People v. Valdez

CHIN, J.

I respectfully dissent. The majority opinion holds that the trial court had no sua sponte duty to instruct on the lesser included offense of second degree murder because there was no substantial evidence to support such an instruction. (Maj. opn., ante, at pp. 114-119.) I disagree. On this record, the jury could have reasonably concluded that defendant fatally shot the victim, but have had reasonable doubts as to whether defendant Alfredo Reyes Valdez robbed the victim or killed him for the purpose of robbing him. Because the instructions gave the jury no alternatives other than first degree robbery murder or acquittal, it was faced with an unwarranted all-or-nothing choice on the charged offense. The prejudicial effect of this instructional error was further amplified by; (1) another instruction given—which failed to distinguish the first degree felony-murder charge from the robbery-murder special-circumstance allegation, and (2) an evidentiary error—which denied the defense evidence that the police found and arrested another person at the crime scene with blood on his clothing. Because I cannot conclude that the trial court’s failure to instruct on second degree murder was harmless, I would reverse the guilt judgment and remand the case to give the People the option of retrying defendant or accepting a second degree murder conviction. (People v. Edwards (1985) 39 Cal.3d 107, 118 [ 216 Cal.Rptr. 397 , 702 P.2d 555 ].)

I. FAILURE TO INSTRUCT ON SECOND DEGREE MURDER 1

“ ' “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether *141 all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154-155 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ] (Breverman), italics added.)

In other words, a trial court errs if it fails to instruct, sua sponte, on lesser included offenses that find substantial support in the evidence. (Breverman, supra, 19 Cal.4th at p. 162 .) “ ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, was committed.” (Ibid.) 2

In finding that there was no substantial evidence the killing was other than robbery murder, the majority states: “At most, defendant raises the issue of sufficiency of the evidence relating to the robbery, and from that would have us hold that he acted with malice in killing defendant and he could, therefore, have been found guilty of second degree murder . . . .” (Maj. opn., ante, at p. 116.) The majority misconstrues defendant’s argument as well as the substantial evidence test in the context of lesser included offense instructions. The issue is not whether the robbery evidence was sufficient to sustain the robbery-felony-murder conviction, but whether a jury could have reasonably concluded that defendant committed second degree murder but not robbery felony murder. (See Breverman, supra, 19 Cal.4th at p. 162 .)

Preliminarily, I do not dispute that there is substantial evidence to support the first degree felony-murder conviction. (See maj. opn., ante, at p. 104.) In the context of determining whether substantial evidence supports the jury’s actual verdict, we—as an appellate court—must review the whole record in the light most favorable to the prosecution to determine *142 whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ].) In addition, we must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)

Here, ample evidence exists to support the jury’s finding that defendant shot the victim. Defendant’s palm print, made in wet blood that was consistent with that of the victim, was discovered on a Jennings .22-caliber handgun only one day after the shooting. Although the handgun holds a total of seven rounds, only three were left in the handgun when found by the police. The victim had been shot four times. Defendant was last seen alone with the victim, who was then fatally shot within a 10-minute window of opportunity. The jury could reasonably conclude that defendant used four of the bullets in the handgun to shoot the victim, with three rounds remaining. Moreover, defendant lied to the police about the handgun found in the car, denying knowledge of its existence and having touched it.

The evidence of robbery was weaker, but enough to support the jury’s finding that defendant killed the victim during the commission of a robbery. As the majority explains, the victim had cashed a $1,200 check two days before the killing; the victim boasted, in defendant’s presence, that he was going to Mexico the next morning and was taking $3,000 with him; defendant was the last person seen with the victim; when the police arrived, they found the victim’s left pants pocket turned inside out, with apparent bloodstains on the interior of the pocket. The $1,200 or $3,000 was never recovered and defendant, who was unemployed, had $100 on his person when he was arrested the next day. (Maj. opn., ante, at p. 104.) Viewing the circumstantial evidence in the light most favorable to the prosecution, the jury could infer that defendant robbed the victim. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11 [ 82 Cal.Rptr.2d 413 , 971 P.2d 618 ] [appellate court must accept logical inferences that jury might have drawn from the circumstantial evidence even if court would have concluded otherwise].)

But the issue here—regarding the duty to instruct on a lesser included offense—is very different than the mere question whether substantial evidence supports conviction of the greater offense. Unlike an appellate court, a jury is not required to view the evidence in the light most favorable to the prosecution. It is free to accept all, none, or some of the evidence in support of the prosecution’s case; the same is true for evidence in support of the defense case. (See People v. Jeter (1964) 60 Cal.2d 671, 675-676 [ 36 Cal.Rptr. 323 , 388 P.2d 355 ] [second degree murder issue squarely posed if jury believed only that portion of the defendants’ testimony that negated *143 commission of robbery, but accepted the prosecution’s testimony in all other respects].) It is within the province of the jury to assess and weigh all of the evidence independently. Thus, the issue here is whether the jury—in assessing and weighing the evidence independently—could have reasonably concluded that defendant committed second degree murder, but not first degree robbery murder. The issue is not, as the majority seems to suggest, whether substantial evidence exists to support the robbery-murder conviction or whether the jury reasonably found first degree robbery murder on this record.

If the evidence established as a matter of law that defendant committed first degree felony murder, the trial court did not err in failing to instruct the jury on second degree murder. “Where the evidence points indisputably to a killing committed in the perpetration of one of the felonies [Penal Code] section 189 lists, the only guilty verdict a jury may return is first degree murder. (People v. Jeter (1964) 60 Cal.2d 671, 675 [ 36 Cal.Rptr. 323 , 388 P.2d 355 ]; People v. Lessard (1962) 58 Cal.2d 447, 453 [ 25 Cal.Rptr. 78 , 375 P.2d 46 ]; People v. Perkins (1937) 8 Cal.2d 502, 516 [ 66 P.2d 631 ].) Under these circumstances, a trial court ‘is justified in withdrawing’ the question of degree ‘from the jury’ and instructing it that the defendant is either not guilty, or is guilty of first degree murder. (People v. Riser (1956) 47 Cal.2d 566, 581 [ 305 P.2d 1 ].) The trial court also need not instruct the jury on offenses other than first degree felony murder or on the differences between the degrees of murder. (People v. Rupp (1953) 41 Cal.2d 371, 382 [ 260 P.2d 1 ]; People v. Bernard (1946) 28 Cal.2d 207, 214 [ 169 P.2d 636 ].)” (People v. Mendoza (2000) 23 Cal.4th 896, 908-909 [ 98 Cal.Rptr.2d 431 , 4 P.3d 265 ], first italics added.)

Here, the evidence does not point indisputably to murder in the perpetration of a robbery. The majority considers the defense evidence in isolation (struggle; victim shot at close range) and concludes it is insufficient to support a lesser-included second degree murder instruction. (Maj. opn., ante, at p. 116.) However, that evidence should be viewed together with the prosecution’s case, which was far from compelling in establishing a capital felony-murder robbery.

Although the evidence shows that the victim cashed a $1,203 United States Treasury check two days before the murder, no evidence existed that the victim had the cash on him or that it was in the house when he was killed. Although the evidence showed that the victim said he was going to Mexico the next morning and was taking $3,000 with him, no evidence existed that defendant heard the victim’s statement. Moreover, at the time of the statement, the room was filled with men who had been drinking alcohol, defendant was not situated next to the victim, and the television was on. Gerardo Macias testified that the victim made the statement directly to him, *144 but Arturo Vasquez testified that he did not hear it. Because the victim had been in his own house, the jury need not necessarily infer that he carried a wallet on him at the time of the killing. Presumably, an unemployed person, with the intent to kill for the purpose of robbery, would take everything of worth. Yet, when the body was found, the victim possessed $80 and jewelry. When arrested, defendant possessed $100 cash, not $1,203 or $3,000 cash. Three days after the arrest and four days after the killing, the police searched defendant’s house. They did not find cash or any of the victim’s personal property.

The prosecutor conceded at trial that defendant did not go to the victim’s house to rob and kill him. Instead, the prosecution’s theory was that defendant formed the intent to rob and kill while he was at the victim’s house. The majority emphasizes the inference that defendant heard the victim boasting he was going to Mexico the next morning with $3,000. (Maj. opn., ante, at pp. 104—105.) Yet the prosecutor did not rely on that inference, apparently recognizing that it was not a particularly compelling one. Instead, she argued that, because the police did not find a wallet, money, a driver’s license, an ATM card, plane tickets, a bank savings book, or the victim’s gun on his person or in his house, the jury could infer that defendant took something from the victim. The prosecutor argued: “I don’t think [defendant] went over there to kill him, but he saw the opportunity and he did. He saw maybe money on the ground. He saw maybe—maybe he only wanted the gun, and the fight was on for the gun, and in order to get away with the robbery, he shot and killed [the victim]. And [the victim], in his last breaths of life, ran after that defendant, ran down the street dying, trying to do what? Get—retrieve the property that was taken from him by the [defendant.]” However, no evidence existed that any of the enumerated items, except for the gun, was on the victim’s person or in the house at the time of the killing. No evidence existed that the victim ran after defendant to retrieve his property. Thus, the evidence raises the question whether all of the elements of robbery felony murder were present. (Breverman, supra, 19 Cal.4th at p. 154 .)

Was there evidence that the offense might have been less than first degree felony murder? (See Breverman, supra, 19 Cal.4th at p. 154 .) The majority answers no, asserting that “ ‘[a]ll the evidence points to robbery as the motive for the killing[]’ . . . .” (Maj. opn., ante, at p. 117.) I disagree. Robbery—as the motive for the killing—may be a reasonable inference from the evidence, but certainly not a compelling one or the only one. Unlike the situation between two strangers in which robbery may be the only inferable motive for a homicide, the relationship between defendant and the victim presented other possible motives. Defendant and the victim knew each other. The evidence showed that the victim ordered defendant out of his house in a “kind of mad” tone and that they argued. Only one expended cartridge casing was found in the house, consistent with a struggle and shooting that may have started in the *145 house and continued outside. Indeed, Vasquez and Rigoberto Perez—upon seeing the blood inside the house—believed that the victim had shot defendant.

Moreover, the majority seems to suggest that, because the evidence reveals no explanation or reason for the shooting other than robbery, a second degree murder instruction was not warranted. However, motive is not an element of murder. (People v. Hillhouse (2002) 27 Cal.4th 469, 503-504 [ 117 Cal.Rptr.2d 45 , 40 P.3d 754 ].) Murder is the unlawful killing of a human being with malice aforethought. (Pen. Code, § 187, subd. (a).) “Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. ([Pen. Code,] §§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102 [ 13 Cal.Rptr.2d 864 , 840 P.2d 969 ].)” (People v. Hansen (1994) 9 Cal.4th 300, 307 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ].) “Malice may be either express or implied. It is express when the defendant manifests ‘a deliberate intention unlawfully to take away the life of a fellow creature.’ ([Pen. Code,] § 188.) It is implied . . . ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ [citation].” (People v. Lasko (2000) 23 Cal.4th 101, 107 [ 96 Cal.Rptr.2d 441 , 999 P.2d 666 ].) “Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.” (People v. Hillhouse, supra, 27 Cal.4th at p. 504 ; see People v. Nabayan (1969) 276 Cal.App.2d 361, 367 [ 80 Cal.Rptr. 779 ] [malice, in support of second degree murder conviction, inferred from circumstances of killing despite lack of evidence of motivation or reason for defendant to murder victim].)

Even if the jury had a reasonable doubt whether defendant killed the victim to rob him, the evidence amply supports a murder conviction. The evidence indisputably shows that someone—and the jury found that someone was defendant—shot the victim four times in the head and upper body at close range. A jury may reasonably infer that when someone shoots a person four times at close range, that person intends to kill, i.e., acts with express malice. At the least, the jury may find implied malice. “[I]t would seem obvious the intentional firing of a gun at the victim at close range is an act dangerous to human life and presents a high probability of death.” (People v. Woods (1991) 226 Cal.App.3d 1037, 1048 [ 277 Cal.Rptr. 269 ] .) 3

*146 The majority relies on People v. Wilson (1992) 3 Cal.4th 926 [ 13 Cal.Rptr.2d 259 , 838 P.2d 1212 ], a case somewhat similar to this case; the defendant knew the victim, and the victim’s body was discovered with no wallet, a $20 bill in the rear pocket, and the pants pocket turned inside out. (Maj. opn., ante, at p. 117.) However, the differences outweigh the similarities. Unlike the present case, in Wilson , the prosecution’s case regarding the robbery murder was strong: the defendant made incriminating statements— both before and after the killing—reflecting that he wanted to kill and did kill the victim for his money; the defendant acted nervously when the victim’s death was being discussed; the victim was last seen with the defendant at a gas station purchasing gas for his van and carrying a wallet attached to his belt; and the victim was discovered shot in his van containing the defendant’s clothes, and there was no evidence of forced entry. Moreover, the defendant explained that he had left some money on the victim so that the killing would not appear related to a robbery, and then took the remaining money and fled. We held that the trial court’s failure to instruct on second degree murder was not error; the evidence was inconsistent with the defendant’s factual claim that another person took the wallet after the defendant killed the victim or that the victim was not carrying a wallet or cash when he was shot. (People v. Wilson, supra, 3 Cal.4th at pp. 940-941.)

No such inconsistency appears in this record. A jury could reasonably conclude that defendant fatally shot the victim, but have reasonable doubts as to whether he robbed him or killed him for the purpose of robbing him.

II. PREJUDICIAL ERROR

In addition to the all-or-nothing instructions on the charged offense, the jury was not provided with the noncapital option of first degree murder without special circumstances. In defining first degree felony murder, the trial court instructed that “the killing occurred during the commission or attempted commission of a robbery.” It further instructed that, “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery is murder of the first degree when the perpetrator had the specific intent to commit such crime.” In instructing the jury on the robbery-murder special-circumstance allegation, the trial court gave an incomplete version of CALJIC No. 8.81.17, which essentially mirrored the first degree felony-murder instmctions: “The murder was committed while the defendant was engaged in the commission of a robbery.” Omitted from the special circumstance instruction was the following language: “The murder was committed in order to carry out or advance the commission of the [robbery] or to facilitate the *147 escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the [robbery] was merely incidental to the commission of the murder.” Thus, the jury was not told that, to find the special circumstance allegation true, it must find defendant killed for the purpose of robbery. To make matters worse, the prosecutor told the jury during argument that there was no difference between the first degree felony-murder charge and the robbery-murder special-circumstance allegation.

Although the jury found true the special circumstance allegation that defendant committed the murder while “engaged in the commission of the crime of robbery,” that finding necessarily flowed from the murder conviction, because the only basis for finding murder was a robbery felony murder. In other words, once the jury returned a guilty verdict of robbery felony murder, no reasonable jury could find not true the robbery-murder special circumstance; the felony-murder and special circumstance instructions essentially duplicated each other. Because incomplete special circumstance instructions were given, it cannot be said that “the factual question posed by the omitted [second degree murder] instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” (People v. Sedeno (1974) 10 Cal.3d 703, 721 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ], italics added.)

In explaining why lesser included offenses are important in capital cases, the high court stated: “ ‘[I]t is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction—in this context or any other—precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.’ ” (Beck v. Alabama (1980) 447 U.S. 625, 634 [ 65 L.Ed.2d 392 , 100 S.Ct. 2382 ].)

With the all-or-nothing instructions here, defendant was exposed to the “ ‘substantial risk that the jury’s practice will diverge from theory.’ ” (Beck v. Alabama, supra, 447 U.S. at p. 634 .) The risk was further amplified by the fact that the jury did not hear all the evidence that supported the defense. In support of his attack on the police investigation, defendant sought admission of evidence that one of the persons discovered in the back alley (Liberato Gutierrez) was arrested, had blood on him, and seemed nervous during his *148 encounter with the police. (Maj. opn., ante, at pp. 106-109.) Defense counsel argued, “ ‘The purpose, your honor, is that you have a very serious matter, you have a murder investigation that’s going on. You have footprints that have been established by shoes, not by [feet] but by shoes. . . . You have an individual who has blood on his shirt, there is^-the testimony will be that the blood has not been analyzed.’ ” (Maj. opn., ante, at p. 107.)

In responding to the defense offer of proof, the prosecutor never countered that the blood on Gutierrez’s shirt or shoes had, in fact, been analyzed. Moreover, the Attorney General conceded at oral argument that the record fails to indicate that the blood was examined. The trial court denied the defense request, determining that the “ ‘probative value of that testimony is outweighed by the necessity of the undue consumption of further time. It would create a substantial danger of confusing the issues and of misleading the jury.’ ” (Maj. opn., ante, at p. 108, italics added.) Not entirely consistent with the denial ruling, the court admitted evidence that the police detained and interviewed several people in the alley behind the victim’s house, impliedly finding that evidence relevant to the defense.

Contrary to the trial court’s finding, evidence that a man with blood on his clothes found behind the house soon after the murder and the police’s failure to test that blood went to the heart of the defense. The defense was to put the People to its proof. During closing argument, defense counsel argued that the prosecution failed to prove, beyond a reasonable doubt, that defendant killed or robbed the victim, or that a robbery even occurred. A recurring defense theme throughout argument was that the police’s investigation was woefully inadequate, that other people had the opportunity to commit either the killing or a robbery, and that the police failed to investigate those possibilities. Without the blood evidence, defense counsel could only make the diluted argument that the police failed to conduct a shoe print analysis of the shoes worn by the people in the back alley. In my view, evidence that a man with blood on his clothes found behind the house soon after the murder could raise a reasonable doubt as to whether defendant robbed the victim. The victim was found dead outside near his house. After discovering the victim lying bloodied on the ground, Vasquez, Macias, and Perez abandoned him, leaving him alone for a period of time before the police arrived. No direct evidence was presented that the same person both shot and robbed the victim. Given the disputable nature of the robbery evidence, the excluded Gutierrez evidence could have added to any reasonable doubts the jurors may have had on the first degree murder charge. 4

*149 The prosecution had the burden to prove defendant guilty of robbery felony murder beyond a reasonable doubt. Defendant was entitled to be found guilty of no more than second degree murder if the jury had a reasonable doubt as to whether the prosecution met its burden of proving that defendant robbed the victim. (See CALJIC No. 8.71.) However, the jury’s options were severely restricted. (People v. Barton, supra, 12 Cal.4th at p. 196 [jury denied opportunity to decide whether the defendant was guilty of lesser included offense established by evidence].) Under the circumstances of this case, I find a reasonable probability the verdict would have been different had the errors not occurred. ( Breverman, supra, 19 Cal.4th at pp. 164—169, 178.)

Accordingly, I would reverse the guilt judgment and remand the case to give the People the option of retrying defendant or accepting a second degree murder conviction.

Kennard, J., and Brown, J., concurred.

Appellant’s petition for a rehearing was denied February 24, 2004. Kennard, J., Chin, J., and Brown, J., were of the opinion that the petition should be granted.

The Attorney General argues that second degree murder is not a lesser included offense of felony murder because malice—an element of second degree murder—is not an element of felony murder. Here, at the very least, second degree murder was a lesser included offense under the accusatory pleading test. (People v. Clark (1990) 50 Cal.3d 583, 636 [ 268 Cal.Rptr. 399 , 789 P.2d 127 ].) The amended information alleged that, defendant “willfully, unlawfully, and with malice aforethought murdeffed] ERNESTO MACIAS, a human being” “in violation of PENAL CODE SECTION 187(a), a Felony____” (Italics added.)

I agree with the majority that defendant did not invite the error with respect to second degree murder instructions. (Maj. opn., ante, at p. 115; People v. Cooper (1991) 53 Cal.3d 771, 830-831 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ]; see also People v. Barton (1995) 12 Cal.4th 186, 198 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ] [“[t]he doctrine of invited error does not. . . vindicate the decision of a trial court to grant a defendant’s request no.t to give an instruction that is otherwise proper: the error is still error”].) I also note that, on appeal, defendant does not claim ineffective assistance of counsel for failure to request second degree murder instructions. Because the record does not reveal why defense counsel failed to request the instructions and defendant does not raise an incompetence claim, I do not speculate whether counsel had a tactical purpose or whether counsel even considered second degree murder instructions.

Pointing out the lack of mitigating evidence, the prosecutor argued, “The killing was unlawful. There’s no evidence presented to you of any justification for murdering this man. *146 There was no evidence of self-defense, there’s no evidence he was trying to kill somebody else, there’s no evidence that it was a lawful killing.”

The majority finds that the evidentiary issue was waived because defendant failed to present to the trial court the third party culpability claim that he now asserts. (Maj. opn., ante, at p. 109.) I disagree. In finding waiver, the majority focuses on defendant’s third party claim that specifically targets Gutierrez as the possible killer. However, defendant also argues third *149 party culpability in the general sense: There was reasonable doubt regarding defendant’s culpability because the preferred evidence showed that someone else (including Gutierrez and not just defendant) had the opportunity to kill and/or rob the victim. That appellate argument appears to be consistent with the one made by defense counsel at trial. Although trial counsel said that he was not specifically targeting Gutierrez as the killer, he argued that the police failed to adequately investigate evidence which could incriminate someone else, such as the blood on Gutierrez or the shoe impressions of Vasquez and Perez. (Maj. opn., ante, at p. 107.) Counsel further argued to the trial court: “ ‘There are all important issues that raise issues of reasonable doubt as to whether . . . [defendant] performed this act in this crime.’ ” (Maj. opn., ante, at pp. 106-107.)

Thus, I agree that defendant has waived the claim that he was denied the right to present evidence to support a defense that Gutierrez specifically committed the crimes. But he has not waived the claim that the trial court improperly denied him the right to present evidence attacking the adequacy of the police investigation to establish reasonable doubt. In any event, we can decide the latter issue sua sponte since defendant presented that theory to the trial court.