People v. Gonzalez

Kalac then heard Estrada call Rosales to order $150 of methamphetamine and $50 of heroin. Estrada told Rosales to meet at the laundromat across the street from the Crystal Inn on Prairie Avenue in 30 minutes. After the phone call, Garcia said that he would act as lookout. Garcia and Gonzalez left the hotel room.

Kalac and Jennifer helped load bags into Estrada's black Cadillac so that she could move to the American Inn, a hotel a few

Estrada and Garcia did not testify during the defense's case, but Gonzalez testified in his own defense. Gonzalez confirmed that he was with Estrada, Kalac, Garcia, and Jennifer at the Crystal Inn on the day of the shooting. Yet instead of planning to rob Rosales, Gonzalez testified that he asked Estrada to call Rosales so that they could purchase crystal methamphetamine. Estrada called Rosales to arrange the transaction. It was Gonzalez's testimony that there was no talk of robbing Rosales and that he had $165 on him on the day of the shooting, and so he had no need to commit robbery. Gonzalez also testified that he did not have a gun or see any guns in the hotel room.

Estrada asked Gonzalez to meet Rosales because Estrada had to pack up and move to a new hotel after the Crystal Inn hotel manager told them to leave. Gonzalez left the hotel, followed by Garcia, to meet Rosales at the laundromat across Prairie Avenue.

After waiting outside the laundromat for 20 to 30 minutes, Gonzalez noticed Rosales sitting in the passenger seat of a car. Rosales was "mad-dogging" Gonzalez, that is, looking at Gonzalez in an aggressive manner. Gonzalez walked over and said, "What's up, Victor?" Rosales did not respond, and Gonzalez repeated his greeting. When Rosales did not respond a second time, Gonzalez asked, "Do you want me to get Erica?" Rosales pointed a handgun at Gonzalez. Gonzalez testified that, out of fear for his life, he grabbed the gun from Rosales. The gun ended up in Gonzalez's right hand. Rosales tried to retrieve the gun by grabbing Gonzalez's right wrist with both hands. As Gonzalez pulled away and turned his body, the gun went off. Gonzalez testified that he did not intentionally pull the trigger or try to kill Rosales.

Gonzalez then ran away and found Garcia. Walking along Prairie Avenue, Gonzalez and Garcia subsequently ran into Kalac. Gonzalez testified that he gave Kalac the gun, but did not tell Kalac to dispose of it.

The trial court instructed the jury on first degree felony murder based on robbery. The trial court did not instruct the jury on any other theory of murder, such as murder with malice aforethought, lesser included offenses of murder with malice aforethought, or defenses to murder with malice aforethought. The jury found defendants guilty of count one for first degree murder based on the felony-murder instruction. The jury also found true the robbery-murder special-circumstance allegation and not true the allegation that a principal was armed with a firearm.

The jury acquitted Gonzalez of count two for shooting at an occupied vehicle. As to both counts, the jury found not true the allegation that

The failure to instruct on lesser included offenses supported by substantial evidence was state law error. Under California law, trial courts must instruct the jury on lesser included offenses of the

Whether a trial court commits error by omitting an instruction on a lesser included offense depends not only on whether the evidence supports the possible commission of an alternative crime, but whether that alternative crime constitutes a "lesser included offense" as we have defined it. We have established two tests for whether a crime is a lesser included offense of a greater offense: the elements test and the accusatory pleading test. ( People v. Reed (2006) 38 Cal.4th 1224 , 1227-1228, 45 Cal.Rptr.3d 353 , 137 P.3d 184 .) Either of these tests triggers the trial court's duty to instruct on lesser included offenses. Under the elements test, one offense is another's "lesser included" counterpart if all the elements of the lesser offense are also elements of the greater offense. ( Id. at p. 1227, 45 Cal.Rptr.3d 353 , 137 P.3d 184 .) Under the accusatory pleading test, a crime is another's "lesser included" offense if all of the elements of the lesser offense are also found in the facts alleged to support the greater offense in the accusatory pleading. ( Id. at p. 1228, 45 Cal.Rptr.3d 353 , 137 P.3d 184 [discussing circumstances where, because the accusatory pleading alleged that defendant was a felon as part of a charge of "carrying a concealed firearm," a lesser included offense of that alleged crime would be "being a felon in possession of a firearm"].)

Similarly, although defendants argued in closing at trial that they merely intended to steal drugs from Rosales without using force or fear, the jury appears to have rejected this position. If the jury accepted the position that defendants did not intend to use force or fear, it could not have found under the factual circumstances of this case that non-perpetrators Garcia and Estrada intended to kill Rosales by agreeing to help with such a theft. Moreover, there is little evidence to support the contention that Garcia and Estrada knew that committing theft, which does not involve the use of force or fear, carried a grave risk of death. Indeed, there is no evidence that defendants knew that Rosales had a gun or some other means of resisting a theft that would not also require the perpetrator to use "force or fear" to obtain the drugs. There was certainly a possibility that, after stealing Rosales's drugs, Rosales might have had a gun and might have shot one of

We acknowledge that the aider and abettor findings pertain to Garcia and Estrada-and not to Gonzalez. Gonzalez was, after all, the admitted perpetrator of the killing. But the aider and abettor findings as to Garcia and Estrada are sufficient to find harmlessness as to Gonzalez as well on the facts of this case. The primary evidence of robbery presented to the jury was Kalac's testimony that defendants agreed to rob Rosales. Although there may be cases where aiders and abettors and principals have differing intents regarding a crime, defendants here reached a prior agreement and all three of them were involved in the crime. Because the jury believed Garcia and Estrada committed robbery, there is no reasonable probability the jury came to a different conclusion as to Gonzalez.

As a general matter, theft crimes and low-volume drug deals are not the kinds of crimes ordinarily understood to involve a grave risk of death. ( People v. Gomez (2008) 43 Cal.4th 249 , 254, 74 Cal.Rptr.3d 123 , 179 P.3d 917 ["Theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present"]; People v. Macafee (1980) 109 Cal.App.3d 808 , 812, 167 Cal.Rptr. 495 [holding, for purposes of a diversion statute, that a drug offense does not involve "a crime of violence or

Even if one believed the "grave risk" finding and the conclusion that Gonzalez was unarmed conflict in an irreconcilable manner, the outcome would remain unchanged. There is no compelling reason to think that a grave risk of death would arise from a mere drug deal or theft-as opposed to a robbery-in

Finally, Kalac admitted that he had started smoking heroin early in the morning on the day of the shooting and that he was high on heroin from the time he arrived at the Crystal Inn through the aftermath of Rosales's death. In short, the prosecution's main witness had a number of credibility problems. There were ample grounds for the jury to question his testimony, including his claim that defendants intended to rob Rosales.

In addition, the evidence showed that defendants had purchased drugs from Rosales before and that they enjoyed discounts from Rosales because of his relationship with Estrada. The jury also heard testimony that Rosales's sister knew were Estrada lived; after the ambulance took Rosales away, his sister led the police to Estrada's home, where Estrada and Gonzalez were arrested. In light of these facts, the jury reasonably could have doubted that defendants intended to rob Rosales. Robbing him would have ended their favorable pricing on drugs, and Rosales,

In sum, there is more than substantial evidence from which the jury could have doubted that defendants intended to rob Rosales, a required element of robbery-based felony murder. The jury could have instead convicted defendants of malice murder or lesser included offenses had it been properly instructed. The instructional error presented the jury with a choice of finding either felony murder or no homicide offense at all-precisely the kind of all-or-nothing choice that our state Constitution and case law forbid. (Maj. opn., ante , 233 Cal.Rptr.3d at pp. 797-799, 418 P.3d at pp. 846-847.)

Today's opinion says we can have confidence in the felony-murder verdict because the jury's true finding on the robbery-murder special circumstance "necessarily demonstrates the jury's determination that the defendant[s] committed felony murder rather than a lesser form of homicide." (Maj. opn, ante , 233 Cal.Rptr.3d at p. 801, 418 P.3d at p. 849.) The special circumstance required the jury to make additional findings beyond the elements of felony murder-i.e., that "the defendant intended to commit robbery independent of the killing," that "the commission of robbery was [not] merely part of or incidental to the commission of [the] murder," and that "[t]he act causing the death and the robbery or attempted robbery were part of one continuous transaction." If the jury harbored any doubts as to whether defendants committed felony murder, the court contends, the jury would have declined to make these additional findings. (Maj. opn., ante , 233 Cal.Rptr.3d at p. 806, 418 P.3d at pp. 853-854.)

Whatever force this logic might have in the abstract, it is unpersuasive in light of the evidence presented to the jury in this case. The prosecution's only theory was that the three defendants decided while at the Crystal Inn to ask Rosales to bring them drugs for purchase and then to rob him. Every piece of evidence the prosecution proffered was calculated to support its theory that Rosales was shot and killed in the course of a robbery. The jury ultimately found defendants guilty of felony murder. Based on the evidence the jury heard, this verdict could only have been based on

The additional findings required by the robbery-murder special circumstance thus provide no independent confirmation of the jury's felony-murder verdict. Instead, the jury's "decision to convict the defendant[s] of [felony] murder essentially compel[led] them, even if they harbor[ed] doubt as to guilt of the underlying felony, to further find the [robbery-murder] special circumstance allegation true." ( People v. Campbell (2015) 233 Cal.App.4th 148 , 168, 182 Cal.Rptr.3d 491 .) It does not matter that "[t]he special circumstance instructions required the jury to only address the special circumstance finding after convicting on felony murder" (maj. opn., ante , 233 Cal.Rptr.3d at p. 802, 418 P.3d at pp. 850-851) or that "the jury instructions clearly required the jury to consider the special circumstance allegation separately from the felony-murder conviction under a beyond a reasonable doubt standard" ( id. at p. 806, 418 P.3d at p. 854). The jury could not have known what consequences would flow from its findings on the special circumstance allegations, since the jury was instructed not to "consider or discuss penalty or punishment

I CONCUR:

KRUGER, J.

What we conclude is that the special circumstance finding here indeed renders the trial court's error harmless. The prejudice arising from the failure to instruct on lesser included offenses and defenses creates a specific kind of risk-that the jury, faced with an all-or-nothing choice between first degree murder or acquittal, convicted defendants of first degree felony murder even though the prosecution failed to satisfy its burden. Such an error is harmless if defendants cannot demonstrate a reasonable probability that the jury would have-without the error-reached a different result. (See People v. Blackburn (2015) 61 Cal.4th 1113 , 1132, 191 Cal.Rptr.3d 458 , 354 P.3d 268 .) A jury's other findings, such as the resolution of a felony-murder special-circumstance allegation, may render the error harmless by resolving factual issues such as the truth of a felony-murder charge against the defendant. (See, e.g., People v. Castaneda (2011) 51 Cal.4th 1292 , 1327-1329, 127 Cal.Rptr.3d 200 , 254 P.3d 249 .) Defendants contend, however, that the jury's decision to convict on first degree felony murder in this case all but compelled the jury to find true the robbery-murder special circumstance because of the jury's purported desire for logical consistency-thereby preventing us from holding the error

On the day of the shooting, Alejandro Ruiz went to Rosales's house and picked him up. Ruiz told police officers that he drove Rosales to meet with defendant Estrada for lunch. When Ruiz and Rosales arrived at the meeting place, Ruiz saw Estrada accompanied by two Hispanic males walking towards the car. Ruiz stated that Estrada pointed at Rosales and that one of the males walked up to the passenger door, produced a handgun, and shot Rosales. The shooter then walked around the car to the driver's side and attempted to pull Ruiz out of the vehicle. Ruiz hit the accelerator and drove away, back to Rosales's house.

We granted review to resolve whether the jury's finding of a felony-murder special circumstance renders harmless a trial court's failure to instruct on murder with malice aforethought, lesser included offenses of murder with malice aforethought, and defenses to murder with malice aforethought.

Whether an error proves harmless or not depends on the kind of error at issue. In particular, it depends on whether the error constitutes a lapse under the federal Constitution or state law, and whether it is structural in nature. We evaluate nonstructural state law error under the harmlessness standard set forth in Watson , supra , 46 Cal.2d at pp. 836-837, 299 P.2d 243 . That standard requires us to evaluate whether the defendant has demonstrated that it is " 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " ( Id. at p. 837, 299 P.2d 243 ; People v. Hernandez (2011) 51 Cal.4th 733 , 746, 121 Cal.Rptr.3d 103 , 247 P.3d 167 [holding that it is "the defendant's burden under Watson ... to establish a reasonable probability that error affected the trial's result"].) In contrast, we evaluate the harmlessness of violations of the federal Constitution under the standard set forth in

Defendants' arguments fail to persuade. Because we are addressing state law error, defendants must show that a different result was reasonably probable under the Watson standard. (See Watson , supra , 46 Cal.2d at pp. 836-837, 299 P.2d 243 ; People v. Blackburn , supra , 61 Cal.4th at p. 1132, 191 Cal.Rptr.3d 458 , 354 P.3d 268 .) The robbery-murder special-circumstance finding here demonstrates that a different result was not reasonably probable. Despite defendants' contentions, we see little reason to conclude that the special circumstance finding was "essentially compelled" by the felony-murder conviction because of some desire for logical consistency. The trial court specifically instructed the jury to take the questions of felony murder and the special circumstance separately, and the special circumstance finding required additional elements beyond those necessary to convict of felony murder. Moreover, the findings on the additional special circumstance elements are incongruous with defendants' contention that they committed a lesser crime than felony murder. In light of these additional findings and the presumption that juries understand and follow instructions, the special circumstance finding prevents defendants from establishing a reasonable probability that the jury would have reached a different result absent the trial court's failure to instruct on lesser included offenses of, and defenses to, murder with malice aforethought.

The structure and contents of the jury instructions demonstrate why the special circumstance finding was not "essentially compelled." The trial court

The weight we give the special circumstance finding is supported by the presumption that jurors understand and follow trial court instructions. (See Smith , supra , 40 Cal.4th at pp. 517-18, 54 Cal.Rptr.3d 245 , 150 P.3d 1224 .) We consider this a " 'crucial assumption' "-one that " 'underl[ies] our constitutional system of trial by

In contrast, the special circumstance finding constitutes the jury's determination-beyond a reasonable doubt-that a robbery murder occurred, and that it involved a grave risk of death. What the separate grave risk of death finding demonstrates-irrespective of the precise factual underpinnings directly supporting the jury's special circumstance determination-is that the jury could have found the special circumstance false, without risking apparent logical inconsistency with the felony-murder conviction.

Finally, the firearm-related findings are consistent with the conclusion that the jury weighed relatively carefully the evidence at trial. Ruiz told police that one of the male defendants was armed with a gun and shot Rosales without provocation after Estrada pointed at Rosales. Kalac testified that he never saw a gun at any point on the day of the shooting. Gonzalez testified that he did not have a gun and that the shooting occurred accidentally after Rosales pulled out a gun and pointed it at Gonzalez. Gonzalez also testified that he gave Kalac the gun after the shooting. At most, the jury's determinations on the gun-related allegations show that the jury did not have confidence, beyond a reasonable doubt, that Gonzalez was armed and that he "willfully and maliciously" shot the firearm at Rosales and into Ruiz's vehicle. ( CALCRIM No. 965.) The jury's willingness to acquit Gonzalez and find the gun-related allegations not true provides some indication the jury carefully weighed the evidence, not that we must disregard its separate special circumstance finding.

On cross-examination, Kalac admitted that part of the conversation among Gonzalez, Estrada, and Garcia about where to obtain

Alejandro Ruiz, who went with Rosales to the drug transaction and witnessed the shooting, did not testify at trial. Ruiz's account was introduced only through Officer Vasquez's trial testimony, including his statement that when he and Rosales arrived at the meeting place, "Estrada pointed at Rosales and ... one of the males walked up to the passenger door, produced a handgun, and shot Rosales." (Maj. opn., ante , 233 Cal.Rptr.3d at p. 795, 418 P.3d at p. 844.) Ruiz's statements were never subjected to cross-examination, and the jury had no reason to necessarily credit his version of events given his complicity in the drug transaction. Gonzalez, testifying in his own defense, said that he did not have a gun and that the shooting occurred accidentally after Rosales pulled out a gun and threatened Gonzalez.

The jury apparently had doubts about Ruiz's statements because it acquitted Gonzalez of the charge of shooting at an occupied

I agree that "[w]here a jury's findings are irreconcilable, we normally attribute such tensions to compromise, lenity, or mistake, and give effect to all of the jury's findings." ( Id. , at p. 807, 418 P.3d at p. 855.) In giving effect to all of the jury's findings, however, why should we conclude (1) that the aider and abettor special circumstance finding confirms the validity of the felony-murder verdict, and the firearm-related findings can be chalked up to compromise, lenity, or mistake, instead of (2) that the firearm-related findings call into question the felony-murder verdict, and the aider and abettor special circumstance finding can be chalked up to compromise, lenity, or mistake? There is no additional jury finding that tends to independently confirm one interpretation or the other. Even if the court were correct that the first interpretation is more plausible (and I am not persuaded it is), there would still be a reasonable probability that the second interpretation is what in fact occurred.

I would thus hold there is a reasonable probability that the jury would have reached an outcome more favorable to defendants if it had been instructed with malice murder and its lesser included offenses and related defenses,

Later on the day of the shooting, police officers arrested Estrada and Gonzalez at Estrada's house. Police found no weapons on Gonzalez or Estrada. Gonzalez's, but not Estrada's, hands tested positive for gunshot residue. Police arrested Garcia on December 17, 2009, at his house. Garcia attempted to run away, but police apprehended him.

Kalac later testified that he never saw a gun in the room at the Crystal Inn or after the shooting of Rosales. Stefanie San Angelo, Kalac's former girlfriend, heard about the shooting third-hand and told police that Garcia or Gonzalez gave Kalac the gun used in the shooting when they ran into each other on the street. San Angelo talked to Kalac after speaking with the police. Kalac told her that he had gone to buy drugs with Garcia "and there was another guy and female there. They intended

Defendants appealed their convictions on a number of grounds. As relevant here, defendants contended that the trial court erred by failing to instruct the jury on murder with malice aforethought, its lesser included offenses, and its defenses. Defendants claimed they were entitled to instructions

Gonzalez also argues that the trial court committed a structural error when it omitted instructions on murder with malice aforethought, its lesser included offenses, and its defenses. Here too Gonzalez fails to persuade. The trial court's failure to instruct on lesser included offenses and defenses of murder with malice aforethought is subject to harmless error review. (See Breverman , supra , 19 Cal.4th at p. 176, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ; Salas , supra , 37 Cal.4th at p. 984, 38 Cal.Rptr.3d 624 , 127 P.3d 40 .) And as to the failure to instruct on alternative theories of first degree murder, Gonzalez fails to present a cogent theory of what prejudice arises from the trial court's omission of such instructions. At most, the trial court's failure to instruct on alternative theories was

This particular conclusion-involving a finding that defendants harbored the intent necessary for aider and abettor liability-is based on the evidence presented at trial. It is at the very least incongruous with defendants' contention that defendants committed a crime of lesser magnitude than robbery-based felony murder. The primary dispute at trial was whether defendants sought to rob Rosales or whether they merely sought to purchase drugs or steal from Rosales. Kalac testified that defendants planned to "come up on" Rosales and another witness, San Angelo, told officers that defendants had planned to "jack somebody." In contrast, at closing argument, defendants' attorneys argued the phrase "come up on" merely indicated an intent to commit theft and did not establish that defendants were going to use force or

These intent findings also show that defendants are incorrect that the lack of jury instructions on the elements of theft exacerbated their prejudice.

Where a jury's findings are irreconcilable, we normally attribute such tensions to compromise, lenity, or mistake, and give effect to all of the jury's findings. ( People v. Avila (2006) 38 Cal.4th 491 , 600, 43 Cal.Rptr.3d 1 , 133 P.3d 1076 [" '[I]f an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both.' "]; see also § 954 ["An acquittal of one or more counts shall not be deemed an acquittal of any other count."];

Kalac also did not comprehend the content of Estrada's phone conversation with Rosales, most of which was in Spanish. Kalac testified that the only parts of Estrada's phone conversation he understood were "30 minutes" and "corner of 112th and Prairie." When Kalac was asked on cross-examination whether he would "equate" his comprehension of Estrada's phone conversation with Rosales "to not knowing what the hell they were talking about," Kalac replied, "Somewhat, yes." Defense counsel subsequently asked, "Is it fair to say that while Erica was talking on the phone to this drug dealer, that most of the conversation you couldn't understand to the extent that they could have been talking about the moon was purple and you wouldn't know?" Kalac replied, "That's correct."

Moreover, Kalac's trial testimony contradicted earlier statements he had made. Kalac testified that after Estrada made her phone call to Rosales,

I acknowledge that the jury's true finding on the aider and abettor special circumstance does independently suggest that the jury genuinely believed Estrada and Garcia went to the encounter with Rosales with an intent to rob him. That special circumstance required the jury to determine whether, as aiders and abettors, Estrada and Garcia (1) acted with intent to kill or (2) were major participants in the crime whose participation began before or during the killing, and who acted with reckless indifference to human life. The instructions defined "reckless indifference to human life" as "knowing[ ] engage[ment] in criminal activity that [the defendant] knows involves a grave risk of death." This finding, which goes beyond the elements of felony murder, suggests that the jury believed Estrada and Garcia did not merely seek to purchase drugs or steal them without using force or fear. (Maj. opn., ante , 233 Cal.Rptr.3d at pp. 804-805, 418 P.3d at pp. 852-853.) And I agree that if the jury believed this of Estrada and Garcia, it would be hard to conclude that the jury did not also believe this of Gonzalez. ( Id. at pp. 805-806, 418 P.3d at pp. 852-853.)

But what are we to make of the jury's "not true" finding on the allegation that "one of the principals was armed with a firearm in the commission of [the] crime"? How is it possible that the jury believed both (1) that Estrada and Garcia (and, by extension, Gonzalez) engaged in criminal activity that they knew involved a grave risk of death, and (2) that none of them was armed with a firearm in the commission of the crime? Today's opinion