California Court of Appeal Mar 13, 2025 No. E084719Unpublished
Filed 3/13/25 In re Tillman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re ANDREW TILLMAN
on Habeas Corpus. E084719
(Super.Ct.No. RIF72212)
OPINION
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Sean Crandell,
Judge. Petition denied.
Jason L. Jones, under appointment by the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazara and Steve
Oetting, Deputy Attorneys General, for Respondent.
In 1996, defendant and petitioner Andrew Tillman was the driver of the vehicle in
which the front seat passenger shot at the victims, killing one. In 1999, a jury convicted
defendant of first degree murder (as an aider and abettor) and found he was a principal
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armed with a firearm and, as a principal and an aider and abettor, he discharged a firearm
from a motor vehicle with the intent to inflict death. (Pen. Code, §§ 187, subd. (a),
12022, subd. (a)(1), 190.2, subd. (a)(21), unlabeled statutory references are to the Penal
Code.) This court affirmed his conviction on direct appeal.
Subsequently, defendant filed multiple petitions for writ of habeas corpus as well
as a petition for resentencing. In 2023, after we denied his last petition (case
No. E081672), defendant petitioned the California Supreme Court, arguing he received
constitutionally ineffective assistance of appellate counsel who failed to challenge his
conviction on the grounds of instructional error. The Supreme Court ordered the
Secretary of the Department of Corrections and Rehabilitation to show cause in this court
why defendant “is not entitled to relief based on his claim that trial and appellate counsel
rendered ineffective assistance by failing to argue that the jury instructions erroneously
allowed the jury to find the drive-by shooting special circumstance true based either on
an intent to kill or a reckless disregard for human life.” (In re Andrew Tillman on Habeas
Corpus, Sept. 25, 2024, S282048.)
The Attorney General concedes the alternative theory in the instruction that
allowed a true finding based on aiding and abetting with reckless disregard for human life
was incorrect, but argues the petition should be denied because it is procedurally barred,
and the jury’s express finding of intent to kill shows its conclusion was not based on the
theory of reckless disregard for human life. Assuming the petition is not procedurally
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barred, we conclude defendant is not entitled to relief because the jury found he acted
with the intent to inflict death within the meaning of section 190.2, subdivision (a)(21).
I. PROCEDURAL BACKGROUND AND FACTS1
Prior to December 12, 1996, members of a Hispanic gang named the Elsinore
Young Classic (EYC) shot at defendant’s house, causing a feud between EYC, on the one
side, and defendant and his friends, on the other. (Carter, supra, E025621.) On
December 12, defendant threw a going-away party for a friend at his grandfather’s house.
(Ibid.) Daniel Carter, Rene Canales, Julius Cheek, and Gabriel Adame were in
attendance, and one brought a rifle to the party. (Ibid.) During the party, they discussed
EYC and appeared upset. (Ibid.)
Later, defendant and his friends left in a car to buy alcohol, though one participant
said they left because they had seen some “Latinos.” (Carter, supra, E025621.)
Defendant was driving, and Carter sat in the front passenger seat. (Ibid.) At the
intersection near a Texaco station where the murder occurred, they encountered three
people, Frances Rios, Vickie Sanchez, and Alonzo Escobar (the victims). (Ibid.) Carter
challenged the victims as to whether they were with EYC. (Ibid.) One of the women
told him to leave them alone. (Ibid.) Defendant turned into the Texaco station while
1 We follow both parties’ lead and take our factual summary from our prior opinion from the direct appeal of the judgment (People v. Carter, et al. (Sep. 8, 2000, E025621) [nonpub. opn.] (Carter)) that is included in the exhibits to defendant’s petition. (Cal. Rules of Court, rule 8.1115(b)(1).) We incorporate the record in case No. E078605 into the record in this case. (Cal. Rules of Court, rule 8.147(b)(1).)
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Carter aimed a rifle at the victims and said to them, “What are you going to do now?”
(Ibid.) Carter then shot and killed Sanchez; reloaded the rifle, and fired a second shot
that grazed Rios’s hair. (Ibid.) Defendant and his friends returned to his grandfather’s
house while Carter bragged about the shooting. (Ibid.)
On December 9, 1997, the district attorney filed an information charging
defendant and Carter with one count of murder. (§ 187.) The information also alleged
Carter personally used a firearm (§ 12022.5, subd. (a)), defendant was armed with a
firearm (§ 12022, subd. (a)(1)), and the murder was perpetrated by means of discharging
a firearm from a motor vehicle (§ 190.2, subd. (a)(21)). On May 13, 1999, the jury found
defendant guilty of first degree murder and found all allegations and the special
circumstance to be true, and the trial court sentenced him to an indeterminate term of one
year plus life without parole. Defendant’s judgment was affirmed on direct appeal.
(Carter, supra, E025621.) We concluded, inter alia, “[t]he evidence is sufficient to
support a reasonable finding that Tillman knew that Carter had a gun, and that, when
Carter initially confronted the three individuals on the street, Tillman intentionally
assisted Carter in fatally shooting Sanchez by driving the car into the gas station near the
victims; stopping the car while Carter fired; and then speeding away afterwards.” (Ibid.)
Subsequently, defendant filed unsuccessful habeas petitions in this court in 2002
(case No. E031304) and 2008 (case No. E046331), and unsuccessfully petitioned the
California Supreme Court in 2002 (case No. S107237) and in 2010 (case No. S186027).
In October 2013, defendant filed a petition in propria persona for habeas corpus in this
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court (case No. E059727) arguing ineffective assistance of counsel relating to
instructional error regarding voluntary intoxication and accomplice liability. We
summarily denied it, and his petition to the California Supreme Court (case No. S214638)
was also denied based on In re Robbins (1998) 18 Cal.4th 770, 780 and In re Clark
(1993) 5 Cal.4th 750, 797-798.
In 2015, after having first petitioned the superior court (Superior Court of
Riverside County case No. RIC5105117), defendant filed a habeas corpus petition in this
court (case No. E064140) asserting instructional error under People v. Chiu (2014)
59 Cal.4th 155, 167 [aider and abettor may not be found guilty of first degree
premeditated murder based on the natural and probable consequences doctrine; instead,
aider and abettor liability for that crime must be based on direct aiding and abetting
principles]. We summarily denied the petition on January 5, 2016, and on August 17,
2016, the California Supreme Court summarily denied defendant’s petition for writ of
habeas corpus based on the same issue (case No. S232085).
On September 1, 2020, defendant filed a petition for writ of habeas corpus in this
court (case No. E075619) challenging the special-circumstance finding on the grounds of
insufficient evidence he was a major participant in the crime and he acted in reckless
disregard for human life. We denied the petition, reasoning defendant’s special-
circumstances enhancement was based on section 190.2, subdivision (a)(21), which
requires a finding of intent to kill; thus, the question of whether defendant was a major
participant who acted with reckless disregard for human life was irrelevant, and the cases
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of People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 do
not apply.
On September 24, 2021, defendant filed a petition for resentencing in the superior
court under former section 1170.95. The court denied the petition on the grounds it failed
to state a prima facie case. The court reasoned the special-circumstance jury instruction
“specifically require and instructed the jury that in order to find . . . that allegation true,
they must have found that the defendant had specific intent to kill[;] . . . the verdict forms
they returned . . . specifically stated that they found the defendant had the intent to kill[;]
and . . . the appellate court did make findings that related to these issues[, finding] . . . the
jury returned the verdict based on an intentional intent to kill on behalf of [d]efendant.”
We affirmed the court’s denial of the resentencing petition, stating, “The jury’s true
finding under section 190.2, subdivision (a)(21), that defendant ‘did, as a principal, and
aider and abettor, intentionally discharge a firearm from a motor vehicle with the intent to
inflict death’ necessarily means the jury found defendant acted with the intent to kill.”
(People v. Tillman (May 3, 2023, E078605) [nonpub. opn.].)
Defendant filed another petition for habeas corpus on July 10, 2023, which we
summarily denied on September 1, 2023. (Case No. E081672.) He then petitioned the
Supreme Court (case No. S282048), which issued an order to show cause, returnable to
this court, regarding why defendant is not entitled to relief on his claim trial and appellate
counsel rendered ineffective assistance by failing to argue the jury instructions
erroneously allowed the jury to find the drive-by shooting special circumstance true.
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II. DISCUSSION
Defendant faults his counsel for failing to challenge CALJIC No. 8.80.1 on the
grounds the instruction presented an invalid legal theory and lessened the prosecution’s
burden of proof by incorrectly permitting the jury to make a true finding on the special-
circumstance allegation (§ 190.2, subd. (a)(21) based on a mens rea of reckless
indifference where the law requires a finding of intent to kill. The Attorney General
acknowledges the instructional error, but contends defendant’s petition is procedurally
barred because it is untimely and successive, and his counsel had a reasonable tactical
ground for not advancing the meritless claim given the jury’s express finding of intent to
kill. We will assume the petition is not procedurally barred and consider the merits of the
issue.
A. Further Background Information.
The information charged defendant with murder, alleged his codefendant
personally used a firearm, and the intentional killing was perpetrated by means of
discharging a firearm from a motor vehicle, within the meaning of section 190.2,
subdivision (a)(21).2 The trial court instructed the jury that a principal in a crime
2 The information, in relevant part, provides: “The District Attorney of the County of Riverside hereby accuses DANIEL CARTER and ANDREW TILLMAN of a violation of section 187 of the Penal Code, a felony, in that on or about December 12, 1996, in the County of Riverside, State of California, they did willfully, unlawfully, and with malice aforethought murder VICKIE ANN SANCHEZ, a human being. [¶] . . . [¶] The District Attorney of the County of Riverside further charges that the murder of VICKIE ANN SANCHEZ was committed by the defendants, DANIEL CARTER and ANDREW TILLMAN, and that the intentional killing of the victim was perpetrated by means of discharging a firearm from a motor vehicle, within the meaning of Penal Code section 190.2(a)(21).”
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includes both a person “who directly and actively commit[s] the act constituting the
crime” and a person “who aid[s] and abet[s] the commission of the crime.” (See CALJIC
No. 3.00.) Jurors were told “[a] person aids and abets the commission of a crime when
he or she, [¶] (1) with knowledge of the unlawful purpose of the perpetrator and [¶]
(2) with the intent or purpose of committing or encouraging or facilitating the
commission of the crime, and [¶] (3) by act or advice aids, promotes, encourages or
instigates the commission of the crime.” (See CALJIC No. 3.01.)
The trial court went on to explain the doctrine of natural and probable
consequences, as it was understood at the time: “One who aids and abets another in the
commission of a crime is not only guilty of that crime, but is also guilty of any other
crime committed by a principal which is a natural and probable consequence of the crime
originally aided and abetted.” (See CALJIC No. 3.02.) The elements were
(1) commission of the target crime, here murder; (2) “the defendant aided and abetted
that crime”; (3) “a co-principal in that crime committed the crime of shooting from a
vehicle”; and (4) “[t]he crime of murder was a natural and probable consequence of the
commission of the crime of shooting from a vehicle.” (Ibid.) The court instructed the
jury on the elements of murder (CALJIC No. 8.10),3 the definition of malice (CALJIC
3 “Every person who unlawfully kills a human being with malice aforethought, is guilty of the crime of murder in violation of Section 187 of the Penal Code. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A human being was killed; [¶] 2. The killing was unlawful; and [¶] 3. The killing was done with malice aforethought.”
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No. 8.11),4 murder perpetrated by means of discharging a firearm form a motor vehicle
(CALJIC No. 8.25.1),5 and the requirements for a true finding on the allegation a
principal was armed with a firearm (CALJIC No. 17.15).
Regarding the special-circumstance allegation under section 190.2,
subdivision (a)(21),6 the trial court instructed the jury in relevant part as follows: “The
People have the burden of proving the truth of a special circumstance. If you have a
reasonable doubt as to whether a special circumstance is true, you must find it to be not
true. [¶] If you find that a defendant was not the actual killer of a human being, or if you
are unable to decide whether the defendant was the actual killer or an aider and abettor,
4 “‘Malice’ may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when: [¶] 1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.”
5 “Murder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death, is murder of the first degree.”
6 Section 190.2, subdivision (a)(21), provides: “The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death.” Subdivision (c) clarifies how the special circumstance applies to non-killers: “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.” As the Attorney General notes, “[a]t the time of [defendant’s] trial, as now, section 190.2, subdivision (a)(21), required the prosecution to show that the defendant acted with the intent to kill. (See Stats. 1995, c. 478 (S.B.9), § 2 (Prop. 196, approved March 26, 1996, eff. March 27, 1996).)”
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you cannot find the special circumstance to be true as to that defendant unless you are
satisfied beyond a reasonable doubt that such defendant with the intent to kill aided,
abetted, or assisted any actor in the commission of the murder in the first degree, or with
reckless indifference to human life and as a major participant, aided, abetted, or assisted
in the commission of the crime of first degree murder which resulted in the death of a
human being, namely Vicky Sanchez.” (See CALJIC No. 8.80.1., italics added.) The
jury also received CALJIC No. 8.81.21 which, in relevant part, provides: “To find that
the special circumstance, referred to in these instructions as murder by means of an
intentional discharge of a firearm from a motor vehicle, is true, it must be proved: [¶]
1. The murder was perpetrated by means of discharging a firearm from a motor vehicle;
[¶] 2. The perpetrator intentionally discharged the firearm at another person or persons
outside the vehicle; and [¶] 3. The perpetrator, at the time he discharged the firearm,
intended to inflict death.” The court did not instruct on the felony-murder rule.
Consistent with the jury instructions, the trial prosecutor emphasized the case
involved a drive-by shooting. After discussing the elements of murder and the
requirements for the jury to find the perpetrators acted with malice, he argued defendant
was liable as a principal who aided and abetted the killing, and because he was necessary
as the driver of the car. The prosecutor then stated, “if you do conclude . . . that drive-by
murder in the first degree applies, and you all vote guilty that . . . [defendant is] guilty of
first-degree murder based upon the drive-by shooting then you go to the special
circumstance.” He explained the special circumstance allegation under section 190.2,
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subdivision (a)(21): “It must be proved that the murder was perpetrated by means of
discharging a firearm from a motor vehicle; two, that the perpetrator intentionally
discharged the firearm at another person or persons outside the vehicle, and; three, the
perpetrator at the time he, in this case, discharged the firearm, intended to inflict death.
[¶] . . . [¶] It also applies to [defendant] when you apply the aider and abetter statute. If
[defendant] had the same intent as [codefendant], then [defendant] is just as guilty as
[codefendant].”
In response, defense counsel argued, “There really is no solid, no concrete, no
reliable evidence of proof beyond a reasonable doubt that [defendant] knew that
[codefendant] was going to shoot Ms. Sanchez, and that [defendant] knew that
[codefendant] was going to kill Ms. Sanchez.” Counsel noted that witnesses’
descriptions of defendant after the shooting as being “in a state of shock,” “sad,” “upset,”
and “not himself,” are sufficient to create reasonable doubt. He claimed the “essence of
the government’s case” is defendant is guilty because he is the driver. Defense counsel
added that witness testimony—just before the shooting, defendant was going to leave and
continue on with the original plan of going to purchase alcohol—shows defendant “didn’t
know that [the shooting] was going to happen.” Thus, counsel maintained defendant “is
not guilty of murder. There is all kinds of reasonable doubt about that. But you could
reasonably find that he is an accessory after the fact to murder.”
In rebuttal, the prosecutor argued defendant’s actions fail to support an assertion
of ignorance. Counsel pointed out that defendant initially left the party to purchase
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alcohol, but returned shortly thereafter, picked up other friends, drove in a pattern that
was not a direct route to a liquor store, pulled into the gas station, and stopped. At the
gas station, codefendant pulled out the rifle, fired the first round, then fired a second
round, before defendant sped off. The prosecutor asserted that under those
circumstances, it is reasonable defendant “knew, and they all knew, that that rifle was in
the car. [Codefendant] pulled out the rifle. And between the time that [defendant] saw
[codefendant] with the rifle, a few seconds went by. Five seconds; that’s a long time
under those circumstances. And then the first shot. High-powered 30.06 rifle. Boom.
Bolt-action rifle. [¶] The seconds tick away as [defendant] drives away. No. Does he
stay right there? Yes, so that [codefendant] can fire another round at the strangers in the
street. After the second round was fired, they drive away.” In closing, the prosecutor
maintained, “[T]he overwhelming amount of evidence shows that [codefendant] was in
the passenger seat, that he fired that rifle out the window, that [defendant] was the driver.
Guilty of drive-by murder in the first degree, and they’re guilty of the special
circumstances.”
The jury returned verdicts against defendant, finding him guilty of first degree
murder and finding all allegations and the special circumstance to be true.7
7 “We, the jury in the above-entitled action, find true the special circumstance alleged under count I of the information, to wit: that the defendant, ANDREW TILLMAN did, as a principal, and aider and abettor, intentionally discharge a firearm from a motor vehicle with the intent to inflict death, within the meaning of Penal Code section 190.21(a)(21).”
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B. Standard of Review.
“Where a jury is instructed on alternate theories of liability, one legally valid and
one legally invalid, a federal constitutional error has occurred. The defendant has been
deprived of his or her right to ‘a jury properly instructed in the relevant law.’ [Citations.]
The error therefore requires reversal unless we determine the error was harmless beyond
a reasonable doubt.” (In re Lopez (2023) 14 Cal.5th 562, 580 (Lopez); see Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman).) “Providing the jury with both a valid and
an invalid theory should not be subject to a higher standard of review than applies when
the court provides the jury only with an invalid theory.” (People v. Aledamat (2019)
8 Cal.5th 1, 11-12 (Aledamat).) An alternative-theory error is harmless beyond a
reasonable doubt where “‘it is possible to determine from other portions of the verdict
that the jury necessarily found the defendant guilty on a proper theory.’” (Id. at p. 8.)
“The proper analysis under Aledamat does not rest on ‘“the likelihood that the jurors
would have applied the erroneous instruction,”’ but whether the jury could have found
what it did find without also making the findings necessary for a valid theory.” (Lopez, at
p. 589.)
C. Analysis.
Defendant faults the instructions for allowing jurors (1) to convict him of first
degree murder based on Carter’s mental state alone, and (2) to make a true finding on the
special circumstance as to Tillman so long as they found Carter intentionally discharged
the firearm with an intent to inflict death and Tillman acted with reckless indifference
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when aiding and abetting first degree murder. He argues CALJIC No. 8.80.1 “should
have required the prosecutor prove [defendant] personally harbored an intent to kill when
he aided and abetted Carter.” The Attorney General concedes “the apparent instructional
error,” but asserts it was harmless beyond a reasonable doubt. (Chapman, supra, 386
U.S. at p. 24 [Attorney General bears the burden of showing the error was harmless
beyond a reasonable doubt.].) To that end, he contends the jury’s verdicts, combined
with the information and the prosecutor’s closing argument, leave no reasonable doubt a
rational jury would have convicted defendant of first degree murder and made a true
finding on the special circumstance based on the valid theory of his intent to kill if it had
been properly instructed. We agree with the Attorney General.
“Harmlessness can be shown ‘“if the jury verdict on other points effectively
embraces”’ the valid theory, ‘“or if it is impossible, upon the evidence, to have found
what the verdict did find without finding”’ the facts underlying the valid theory as well.”
(In re Ferrell (2023) 14 Cal.5th 593, 602.) “In other words, if ‘“[n]o reasonable jury that
made all of these findings could have failed to find”’ the facts necessary to support a
valid theory, the alternative-theory error was harmless. [Citation.] Indications that the
jury considered an invalid theory, without more, do not undermine that conclusion[,]”
(Lopez, supra, 14 Cal.5th at p. 592) nor does the prosecutor’s “mere reliance on an
invalid theory” in argument. (Id. at p. 590.)
We consider whether a reasonable jury that made all of the findings in this case
could have failed to find the facts necessary to support the valid alternative theory in the
essentially asks whether any rational juror who made the findings reflected in the verdict
and heard the evidence at trial could have had reasonable doubt regarding the findings
necessary to convict the defendant on a valid theory”].) That valid theory required the
jury to find defendant, as a principal, and aider and abettor, intentionally discharged a
firearm from a motor vehicle with the intent to inflict death. We conclude a reasonable
jury could not have failed to make such finding.
Beginning with the information, the prosecution alleged the special circumstance
was based on the “intentional killing of the victim,” which was “perpetrated by means of
discharging a firearm from a motor vehicle.” There was no reference to reckless
disregard for life. At trial, the evidence showed defendant was an active participant in
the drive-by shooting. After leaving the party for a few minutes, he briefly returned,
picked up additional people (including codefendant Carter who brought the rifle and sat
in the front passenger seat), and left a second time to drive around the streets (not in a
direct path to any liquor store he allegedly was going to) until they located an individual
who they believed to be a member of EYC. Defendant then pulled the car into a gas
station and positioned it to enable each shooting to take place. He waited for Carter to
fire two separate shots, then sped off without rendering aid to the victims. This evidence,
albeit circumstantial, virtually compelled a finding that defendant knew Carter intended
to shoot the victims and that he shared the intent to kill them. (People v. Glukhoy (2022)
77 Cal.App.5th 576, 593-596, 606, review dism. May 31, 2023, S274792 [finding error in
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instructing on legally unsound theory of liability was harmless beyond a reasonable doubt
where “evidence of the valid theory was overwhelming”]; People v. Nguyen (2015) 61
Cal.4th 1015, 1054; see People v. White (2014) 230 Cal.App.4th 305, 319 [in
determining the state of mind of the aider and abettor, the “existence of the requisite
knowledge may be established by circumstantial evidence”].)
The jury was then instructed on the elements of murder, elements of murder
perpetrated by means of discharging a firearm from a motor vehicle with the intent to
inflict death, principals and aiders and abettors, and the natural and probable
consequences doctrine. And jurors received CALJIC No. 8.80.1, which defined the
special-circumstance allegation under section 190.2, subdivision (a)(2). In closing, the
prosecutor only argued for drive-by murder in the first degree.8 (People v. Glukhoy,
supra, 77 Cal.App.5th at p. 605 [prosecutor’s closing argument is also “a pertinent
circumstance that should be considered in determining whether an error is harmless”].)
Regarding the special circumstance, the prosecutor argued, “Now, if you do conclude . . .
that drive-by murder in the first degree applies, and you all vote guilty that . . . Carter and
[defendant] are both guilty of first-degree murder based upon the drive-by shooting then
8 “There are several theories that you’ll probably hear about. You’re only going to hear one from me; theories as to first-degree murder. If one of them fits, that’s it. [¶] . . . And if you decide that there’s a drive-by murder in the first degree, all of you unanimously then go to the special allegation.” After arguing codefendant Carter fired the rifle at the victims with the intent to kill, the prosecutor then discussed defendant, the driver who did not do the shooting, but lied to the police on multiple occasions to protect himself and others. “You have [defendant] who is a necessary—not just an aider and abettor, he’s absolutely necessary to this crime. You . . . couldn’t have this killing unless you had someone driving the car. [¶] In this case, it’s [defendant]. . . . [A]t the same time he has to have the same knowledge and unlawful purpose of the perpetrator.”
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you go to the special circumstance[,]” which “applies to [defendant] when you apply the
aider and abettor statute. If [defendant] had the same intent as . . . Carter, then
[defendant] is just as guilty as . . . Carter.” Defense counsel countered by arguing that
(1) the evidence failed to prove beyond a reasonable doubt that defendant knew Carter
was going to shoot and kill the victim, (2) the prosecution’s case was simply defendant
was guilty because he was the driver, and (3) defendant left the party to purchase more
alcohol.
The jury rejected defense counsel’s arguments, rejected the argument that
defendant was not a principal armed with a firearm, rejected the lesser offenses of
voluntary manslaughter and accessory after the fact of murder, and convicted defendant
of murder in the first degree as charged in the information. It found that defendant was a
principal armed with a firearm and, as a principal, and aider and abettor, he
“intentionally” discharged a firearm from a motor vehicle with the intent to inflict death.
Thus, the verdicts demonstrate that the jury necessarily credited the evidence that
established defendant’s culpability for the drive-by shooting of the victims with the intent
to kill them. (See People v. Glukhoy, supra, 77 Cal.App.5th at p. 606.)
For the above reasons, we conclude no rational juror who made the findings
reflected in the verdicts and heard the evidence at trial could have had reasonable doubt
regarding the findings necessary to convict defendant on the valid theory. (Aledamat,
supra, 8 Cal.5th at p. 15.)
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III. DISPOSITION
Defendant’s petition for writ of habeas corpus is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court denied the petition for writ of habeas corpus, concluding that any instructional error regarding the special-circumstance allegation was harmless beyond a reasonable doubt because the jury's verdict explicitly found the petitioner acted with the intent to inflict death.
Issues
Whether the jury instructions for the drive-by shooting special circumstance were constitutionally deficient by allowing a finding based on reckless disregard for human life rather than intent to kill.
Whether any instructional error regarding the special-circumstance allegation was harmless beyond a reasonable doubt.
Disposition. denied
Quotations verified verbatim against the opinion
“The jury’s true finding under section 190.2, subdivision (a)(21), that defendant ‘did, as a principal, and aider and abettor, intentionally discharge a firearm from a motor vehicle with the intent to inflict death’ necessarily means the jury found defendant acted with the intent to kill.”
“We conclude defendant is not entitled to relief because the jury found he acted with the intent to inflict death within the meaning of section 190.2, subdivision (a)(21).”