People v. Concha

Harris identified Hernandez from a six-pack photographic lineup, but could not identify Concha from a photographic lineup. At the preliminary hearing and at trial, however, he identified both defendants as two of the men who confronted, threatened, and attacked him. Decoud also positively identified Hernandez as one of the three male Hispanics that chased Harris down Normandie and as the one he saw returning, holding his side.

On that same evening, Gabriel Estrada was employed as a security guard outside the emergency room of the California Hospital Medical Center. Paramedics came to Estrada and informed him that there was a man in the parking lot bleeding who needed help. Estrada contacted nurses and doctors, and they ran out to the parking lot with a gurney. Estrada observed a male Hispanic lying on the ground (presumably Max Sanchez) and three other males standing over him. One of the three men standing over Sanchez said, “He need[s] help. He’s bleeding.” Estrada asked what happened, and the man replied, “He’s just bleeding. He was stabbed real bad and needs . . . help.” The man with whom Estrada spoke was a Hispanic male with no shirt and tattoos on his chest. That man (presumably Concha) informed Estrada that he “was stabbed too . . . ,” and asked Estrada whether he “should go in?” Estrada replied, “Come in. We can help you out,” but the man just sat there and said again, “Should I go in?” Estrada said, “yeah, we can help you out,” but the injured man refused to enter the hospital.

The other two male Hispanics told the man trying to help Sanchez to get in a van, and the man complied. The van was a white, older model vehicle. As the van left the emergency room parking lot, Estrada wrote down the license plate number and gave it to the police. About 45 minutes to an hour after the van left, Estrada again saw the injured man who had refused help. Concha returned to the emergency room in a rescue ambulance with a stab wound to his neck or chest. He and his two companions had shaved heads. Estrada reviewed a security videotape of the emergency room ambulance bay from that night and was able to identify himself depicted on the video running out

According to Concha’s taped interview with police, he “got into a little argument with some black guy . . . probably like [around] . . . [][] Normandie and Vermont [presumably Vernon].” “[He] was close to his house.” Concha identified a photograph of his cousin “Max” (presumably Sanchez). When asked if “you guys got into an argument. . . [wjith some black guy driving a car?,” Concha replied, “I don’t know if he was driving or not. I just remember the one that was fighting and then ... I got out [of the car] to help him fight.” Concha admitted that the white minivan located by police behind Concha’s house belonged to him. Concha dropped Sanchez off at the hospital and he “went home.” And he remembered that when he “got home [he] start[ed] passing out or something ... .[][].. . [He had lost] a lot of blood.”

On the evening of the incident, Hernandez’s younger brother, Anthony, observed his cousin, Sanchez, arrive at their house around 6:00 or 7:00 p.m. Sanchez and Hernandez were “very close.” Sanchez brought beer with him, and he and Hernandez were drinking in the living room. Concha arrived, but when Hernandez’s mother discovered Concha’s arrival, she “kicked [the three men] out” about 8:00 or 9:00 p.m.

PROCEDURAL BACKGROUND

In connection with the attempted murder counts, the trial court instructed the jury as follows: “If you find the defendant guilty of attempted murder,

DISCUSSION

A. Legal Principles

1. Willful, Deliberate and Premeditated

First degree murder includes any “kind of willful, deliberate, and premeditated killing.” (Pen. Code, § 189.) Under the provocative act doctrine, the necessary mens rea for the first degree murder convictions is determined from defendants’ mental state during the attempted murder of Harris. We therefore analyze the facts relevant to whether defendants personally acted with willfulness, premeditation, and deliberation in committing that crime.

Attempted murder, as the jury found in this case as to each defendant, “ ‘requires the specific intent to kill ....’” Attempted murder requires “express malice, i.e., intent to kill.” (People v. Stone (2009) 46 Cal.4th 131 , 136, 139 [ 92 Cal.Rptr.3d 362 , 205 P.3d 272 ]; see also People v. Smith (2005) 37 Cal.4th 733 , 742 [ 37 Cal.Rptr.3d 163 , 124 P.3d 730 ].) The word “willful” means intentional. “[Willfulness does not include any concept that is not contained in express malice.” (People v. Moon (2005) 37 Cal.4th 1 , 29 [ 32 Cal.Rptr.3d 894 , 117 P.3d 591 ].) Accordingly, we focus on “deliberate and premeditated” because the finding of attempted murder includes a finding of willfulness.

“ ‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in forming a course of action;

In People v. Anderson (1968) 70 Cal.2d 15 , 26-27 [ 73 Cal.Rptr. 550 , 447 P.2d 942 ], the Supreme Court described the categories of evidence relevant to premeditation and deliberation that have been found sufficient to sustain convictions of first degree murder: “(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ {People v. Thomas, supra, 25 Cal.2d 880 , at pp. 898, 900-901); (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).” (See also People v. Mayfield (1997) 14 Cal.4th 668 , 768 [ 60 Cal.Rptr.2d 1 , 928 P.2d 485 ].)

In People v. Lenart (2004) 32 Cal.4th 1107 , 1127 [ 12 Cal.Rptr.3d 592 , 88 P.3d 498 ], however, the court stated, “The Anderson factors are not the exclusive means for establishing premeditation and deliberation. (People v. Perez (1992) 2 Cal.4th 1117 , 1125 [ 9 Cal.Rptr.2d 577 , 831 P.2d 1159 ].) This court has, for example, concluded that an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive. (People v. Hawkins (1995) 10 Cal.4th 920 , 957

2. Applicable Harmless Error Standard

“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18 , 24 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ].) It has been held with respect to instructional error, “ ‘the omission of an element [of a substantive offense] is an error that is subject to harmless-error analysis’ under Chapman (Neder v. United States (1999) 527 U.S. 1 , 15 [ 144 L.Ed.2d 35 , 119 S.Ct. 1827 ]) . . . .” (People v. Prieto (2003) 30 Cal.4th 226 , 256 [ 133 Cal.Rptr.2d 18 , 66 P.3d 1123 ].) The court in Neder v. United States, supra, 527 U.S. at pages 9-10 (Neder), stated, “We have often applied harmless-error analysis to cases involving improper instructions on a single element of the offense. See, e.g., Yates v. Evatt, 500 U.S. 391 [ 114 L.Ed.2d 432 , 111 S.Ct. 1884 ] (1991) (mandatory rebut-table presumption); Carella v. California, 491 U.S. 263 [ 105 L.Ed.2d 218 , 109 S.Ct. 2419 ] (1989) (per curiam) (mandatory conclusive presumption); Pope v. Illinois, 481 U.S. 497 [ 95 L.Ed.2d 439 , 107 S.Ct. 1918 ] (1987) (misstatement of element); Rose [v. Clark (1986) 478 U.S. 570 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101 ]] (mandatory rebuttable presumption). In other cases, we have recognized that improperly omitting an element from the jury can ‘easily be analogized to improperly instructing the jury on an element of the offense, an error which is subject to harmless-error analysis.’ Johnson[ v. United States (1997) 520 U.S. 461 ,] 469 [ 137 L.Ed.2d 718 , 117 S.Ct. 1544 ] (citations omitted); see also California v. Roy, (1996) 519 U.S. 2 , 5 [ 136 L.Ed.2d 266 , 117 S.Ct. 337 ] (per curiam) (‘The specific error at issue here—an error in the instruction that defined the crime—is ... as easily characterized as a “misdescription of an element” of the crime, as it is characterized as an error of “omission” ’). In both cases—misdescriptions and omissions—the erroneous instruction precludes the jury from making a

The court in Neder, supra, 527 U.S. at page 15, did say that the proper harmless error test “is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” But, as Justice Baxter observed, “this test does not depend on proof that the jury actually rested its verdict on the proper ground (Neder.; supra, at pp. 17-18), but rather on proof beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error (id. at p. 18). Although the former can be proof of the latter (see id. at p. 26 (cone. opn. of Stevens, J.)), the Neder majority made clear that such a determination is not essential to a finding of harmlessness (id. at p. 16, fn. 1), which instead ‘will often require that a reviewing court conduct a thorough examination of the record’ (id. at p. 19).” (People v. Cross (2008) 45 Cal.4th 58 , 71 [ 82 Cal.Rptr.3d 373 , 190 P.3d 706 ] (cone. opn. of Baxter, J.).)

Defendants contend that the application of the harmless error standard by the court in People v. Chun (2009) 45 Cal.4th 1172 [ 91 Cal.Rptr.3d 106 ,

Defendants, however, misperceive the harmless error standard applicable to a case such as this one, in which the instructional error did not require the jury to make a finding on an essential element of the offense—a willful, deliberate and premeditated killing. As discussed above, based on the authorities, we do not have to determine if the verdicts reflect that the jury actually determined that both defendants deliberated and premeditated the attempted murder. Rather, we may review the entire record to determine whether it is clear beyond a reasonable doubt that a rational jury would have made the necessary findings of premeditation and deliberation absent the error.

The evidence was such that beyond a reasonable doubt a rational jury would have found that each defendant deliberated and premeditated the attempted murder of Harris. Hernandez and Concha confronted Harris in the alley, while Sanchez and an unidentified fourth assailant stood nearby. Concha demanded money and twice threatened to kill Harris. Although the jury did not reach a unanimous verdict on the attempted robbery counts, that does not mean, as defendants contend, that the jury disbelieved Harris when he testified that Concha twice threatened to kill him. Harris’s testimony in that regard was supported by his subsequent testimony that he told bystanders during the chase that his pursuers were trying to kill him.

Harris resisted all four of the assailants, who then fought with him in the alley. When Harris broke free and ran, the four assailants pursued him for a quarter of a mile. An eyewitness saw Hernandez, who admitted carrying a beer bottle during the chase, leading the group, and saw at least one other member of the group carrying a beer bottle. All four assailants cornered Harris on the side of a house and began to beat and stab him. During the melee, Concha was stabbed by Harris, which fact confirmed that Concha was actively involved in the assault on Harris, regardless of whether Concha was armed with a deadly weapon. The assault was sufficiently aggravated that Harris received multiple stab wounds to his head and body, requiring over 60 stitches to close. (See People v. Prieto, supra, 30 Cal.4th at p. 253 [“In this case, the evidence overwhelmingly established that defendant ‘weighted] and consider [ed] the question of killing’ . . .”].)

Moreover, by returning guilty verdicts on the attempted murder counts, the jury found that each defendant either intended to kill Harris or shared in the

The court in Neder, supra, 527 U.S. at pages 18-19, did state, as quoted above, “We believe that where an omitted element is supported by uncontroverted evidence, this approach reaches an appropriate balance between ‘society’s interest in punishing the guilty [and] the method by which decisions of guilt are to be made.’ [Citation.] ... In a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.” (Italics added.) Defendants argue that evidence was controverted and that they did submit evidence as to the lack of premeditation and deliberation. But the evidence they introduced dealt with their participation in the murder and their intent to kill, and the jury found against them on those points. They did not contest the facts that go specifically to premeditation and deliberation—the confrontation in the alley, the chase, the cornering of Harris and the repeated stab wounds with a deadly weapon. Premeditation and deliberation were submitted to the jury on the attempted murder counts; thus, defendants had the opportunity to address those elements. The facts supporting premeditation and deliberation were uncontradicted once the intent element was established. Although the jury verdict is deficient in that there was not a finding of premeditation and deliberation as to each defendant, the jury did nevertheless render a verdict of first degree murder against both defendants. Based on the evidence, the jury verdict would have been the same absent the error.

That defendants participated in a confrontation with Harris during which threats to kill him were uttered, chased Harris for a quarter mile with deadly weapons, and participated in one fashion or another in the repeated and brutal stabbing and beating of Harris after cornering him, proves the reflection in advance and weighing of considerations sufficient to establish that it is clear beyond a reasonable doubt that a rational jury would have found that both defendants premeditated and deliberated. In sum, once the jury found the necessary intent to commit murder, in view of the circumstances, premeditation and deliberation are readily apparent. Given the facts and findings, the instructional error was harmless under the standard articulated in Neder, supra, 527 U.S. 1 .