People v. Covarrubias (2016) · DecisionDepot

People v. Covarrubias

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Sep 8, 2016 No. S075136Published

Before: Cantil-Sakauye, Werdegar, Chin, Corrigan, Liu, Cuéllar, Kruger

Filed 9/8/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S075136 v. ) ) DANIEL SANCHEZ COVARRUBIAS, ) ) Monterey County Defendant and Appellant. ) Super. Ct. No. SC942212C ____________________________________)

A jury convicted defendant Daniel Sanchez Covarrubias of the first degree murders of Ramon Morales, Martha Morales, and Fernando Martinez (Pen. Code, § 187, subd. (a); counts 1 through 3),1 attempted murder of 11-month-old Alejandra Morales (§§ 187, 664; count 4), assault with a firearm of Alejandra Morales (§ 245, subd. (a)(2); count five), three counts of robbery (§ 212.5, subd. (a); counts 6 through 8), residential burglary (§ 459; count 9), and conspiracy to commit robbery and burglary (§ 182, subd. (a)(l); count 10). The jury further found true the special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)) and allegations that the murders were committed while defendant was engaged in the commission or attempted commission of the crimes of robbery and burglary (§ 190.2, subd. (a)(17)(A), (G)).

1 All further statutory references are to the Penal Code unless otherwise indicated.

As to counts 1 through 9, the jury found that a principal was armed with a firearm, a .38-caliber handgun and a .30-30 rifle, (former § 12022, subd. (a)(1)) and an assault weapon, an AR-15 semiautomatic assault rifle, (former § 12022, subd. (a)(2)). The jury found not true the allegation that defendant was personally armed with a knife (former § 12022, subd. (b)) and was unable to reach a verdict on the allegation that defendant personally used a handgun (former § 12022.5, subd. (a)). Following the penalty phase of the trial, the jury returned a verdict of death. The trial court denied defendant‘s motion for modification of the penalty to life imprisonment without the possibility of parole (§ 190.4, subd. (e)) and sentenced him to death on the murder counts. On the remaining counts, the court imposed an aggregate determinate sentence of 32 years four months, stayed pending execution of the death sentence. This appeal is automatic. (§ 1239, subd. (b).) We reverse the judgment of death because of the erroneous excusal of a prospective juror during jury selection, remand the matter for a new penalty determination and reconsideration of the question of a restitution fine under the currently applicable statute, and affirm the judgment in all other aspects. I. FACTS

A. Guilt Phase

1. Prosecution Evidence

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Regarding question No. 59(C), Prospective Juror No. 16 stated that if the case proceeded to the penalty phase, he would ―probably‖ refuse to vote for the death penalty and automatically vote for life in prison without possibility of parole regardless of the evidence. He wrote in response to question No. 59(E) that he ―possibly‖ would change his answer to question No. 59(C) if the court instructed and ordered him to consider the aggravating and mitigating evidence before voting on the appropriate penalty. When asked in question No. 59(F) whether he could set aside his personal feelings about the law and follow the court‘s instructions on the law, Prospective Juror No. 16 wrote, ―Yes — most probably.‖ At the hearing on the challenge for cause, the trial court noted that ―[Prospective Juror] No. 16 states that he is a CTF captain; strongly opposes the death penalty; probably would disregard the evidence and vote for life without possibility of parole under any circumstances, although the other questions were sufficiently within the ballpark of rationality and responsibility.‖ The prosecutor challenged the prospective juror for cause based on the prospective juror‘s stated feelings that the death penalty should be abolished and the state does not have a right to take a life and that the prospective juror did not commit to follow the law in deciding this case. Defendant‘s counsel argued the prospective juror‘s written responses were equivocal and that oral, in-person voir dire was warranted. The trial court dismissed Prospective Juror No. 16 for cause. Based on our independent review of the record, Prospective Juror No. 16‘s questionnaire responses to the crucial Witt inquiries were ambiguous, failed to provide an adequate basis to support his excusal for cause, and called for the trial court to conduct oral voir dire. Granted, Prospective Juror No. 16‘s responses indicated intense personal opposition to the death penalty, e.g., ―the state does not have the right to take a life in revenge for the crime the person commits,‖ and ―I oppose it completely.‖ Crucially, however, his written answers to the Witt

inquiries under question No. 59 were equivocal and suggested his death penalty views were not unalterable. Prospective Juror No. 16 wrote in response to question No. 59(C) that he would ―probably‖ automatically refuse to vote for the death penalty and automatically vote for life in prison without possibility of parole regardless of the evidence, but ―possibly‖ would change that answer if the court instructed him to consider the aggravating and mitigating evidence before deciding penalty. Similarly, in response to question No. 59(F), he wrote that he ―yes — most probably‖ could set aside his personal feelings about the law and follow the court‘s instructions. Nothing in the foregoing written responses obviated the need for oral voir dire or supported a finding that Prospective Juror No. 16‘s opposition to the death penalty was so strong that he was unwilling to set aside his personal views and perform the duties of a capital juror in accordance with the law. Indeed, elsewhere in his questionnaire, Prospective Juror No. 16 suggested that he would consider the evidence and was open to voting for either penalty. He wrote that consideration of a defendant‘s background would be helpful in deciding penalty, that he would not ―automatically‖ reject such evidence in deciding penalty, and that the sole fact defendant may have children ―would [not] preclude [him] personally from imposing the penalty of death.‖ The trial court had an obligation to resolve the uncertainties in Prospective Juror No. 16‘s written responses and orally examine him in person to the extent necessary to permit a reliable determination of whether he was disqualified under Witt. (Leon, supra, 61 Cal.4th at p. 592; Riccardi, supra, 54 Cal.4th at p. 782; Stewart, supra, 33 Cal.4th at p. 445.) This case is not like People v. Russell (2010) 50 Cal.4th 1228, 1263, in which we affirmed a for cause dismissal based on questionnaire responses alone of a prospective juror who stated that he ― would ‗probably‘ follow the law as the judge instructed‖ but ― was ‗not absolutely certain

[he] would.‘ ‖ The prospective juror in that case ―clarified, ‗I am strongly opposed to the death penalty,‘ and stated he ‗simply would not vote for‘ death, and that no matter the evidence, he would ‗ALWAYS vote for life without the possibility of parole.‘ ‖ (Ibid.) We held that the trial court properly excused the prospective juror because his written questionnaire responses were clear, unequivocal, internally consistent, and demonstrated that he was ― ‗unwilling to temporarily set aside [his] own beliefs and follow the law.‘ ‖ (Id. at p. 1262.) Here, in contrast, Prospective Juror No. 16‘s questionnaire answers were ambiguous and did not clearly demonstrate that his death penalty views would prevent or substantially impair the performance of his duties as a capital juror. Therefore, we conclude the trial court erred in excusing the prospective juror based solely on his questionnaire answers and without followup questioning on voir dire. (Witt, supra, 469 U.S. at p. 424; Leon, supra, 61 Cal.4th at p. 592.) ―The general rule is that, absent a showing of prejudice, an erroneous excusal of a prospective juror for cause does not mandate the reversal of judgment. This rule is based on the principle that a ‗[d]efendant has a right to jurors who are qualified and competent, not to any particular juror.‘ (People v. Holt (1997) 15 Cal.4th 619, 656.) But . . . under existing United States Supreme Court precedent, the erroneous excusal of a prospective juror for cause based on that person‘s views concerning the death penalty automatically compels the reversal of the penalty phase without any inquiry as to whether the error actually prejudiced defendant‘s penalty determination. (Gray, supra, 481 U.S. at pp. 659-667 (opn. of the court); id., at pp. 667-668 (plur. opn. of Blackmun, J.); id., at p. 672 (conc. opn. of Powell, J.).)‖ (Riccardi, supra, 54 Cal.4th at p. 783.) Accordingly, we are compelled by Gray to reverse defendant‘s penalty phase verdict, and we need not resolve defendant‘s remaining challenges to the

to physical restraints of any kind in the courtroom while in the jury‘s presence, unless there is a showing of a manifest need for such restraints.‘ (People v. Duran (1976) 16 Cal.3d 282, 290-291.) Similarly, the federal ‗Constitution forbids the use of visible shackles … unless that use is ―justified by an essential state interest‖ — such as the interest in courtroom security — specific to the defendant on trial.‘ (Deck v. Missouri (2005) 544 U.S. 622, 624, italics omitted.) We have held that these principles also apply to the use of an electronic ‗stun belt,‘ even if this device is not visible to the jury. (People v. Mar (2002) 28 Cal.4th 1201, 1219.)‖ (Lomax, supra, 49 Cal.4th at pp. 558-559.) ― ‗In deciding whether restraints are justified, the trial court may ―take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.‖ (Deck v. Missouri, supra, 544 U.S. at p. 629.) These factors include evidence establishing that a defendant poses a safety risk, a flight risk, or is likely to disrupt the proceedings or otherwise engage in nonconforming behavior.‘ (People v. Gamache (2010) 48 Cal.4th 347, 367.) Although the court need not hold a formal hearing before imposing restraints, ‗the record must show the court based its determination on facts, not rumor and innuendo.‘ [Citation.] The imposition of physical restraints without evidence of violence, a threat of violence, or other nonconforming conduct is an abuse of discretion.‖ (Lomax, supra, 49 Cal.4th at p. 559.) On appeal, defendant does not challenge the court‘s finding of a manifest need for restraint. Instead, defendant argues that in deciding what restraint to employ, the trial court erred by failing to consider less restrictive physical restraints and the adverse psychological impact of the stun belt on him. In general, ―when physical restraints are called for, a trial court should impose ‗the least obtrusive or restrictive restraint‘ that will ensure effective security.‖ (Lomax, supra, 49 Cal.4th at p. 562.) Here, the trial court stated that it

would not use shackles to restrain defendant because it wanted to ―avoid any untoward appearance‖ that he was dangerous or a flight risk. It believed the stun belt was a ―legitimate and reasonable insurance policy‖ against defendant taking any action toward escape or violence, and that the device could be used inconspicuously under defendant‘s clothing. When counsel expressed concern that defendant feared the device might be accidentally activated, the trial court explained that it would specifically instruct the bailiff to avoid doing so absent ―some kind of emergency going on.‖ Moreover, the trial court informed counsel that it would revisit the use of the stun belt as a restraint should any problem arise during trial. ―In People v. Mar, supra, 28 Cal.4th at pages 1225-1230, we examined the potential psychological consequences of wearing a stun belt and the physical effects from electric shock in subjects with certain medical conditions. However, recognizing that our decision was the first to consider use of the REACT belt in California criminal trials, we expressly stated that our discussion of these topics was offered to provide guidance ‗in future trials.‘ (Id. at p. 1225, italics added.)‖ (Lomax, supra, 49 Cal.4th at p. 562.) Defendant‘s trial occurred four years before we decided Mar. In ordering the use of the stun belt, the trial court addressed defendant‘s fear that the device would be accidentally activated, which is one of the risks we identified in Mar that trial courts should consider before requiring a defendant to wear a stun belt. (See People v. Mar, supra, 28 Cal.4th at pp. 1225- 1226.) We will not fault the trial court in this case for failing to consider the other potential psychological consequences subsequently identified in Mar. (See Lomax, supra, at p. 562; see also People v. Bryant, Smith, and Wheeler (2014) 60 Cal.4th 335, 391 (Bryant, Smith, and Wheeler).) In sum, the court did not abuse its discretion in ruling that use of the stun belt was appropriate in these circumstances.

court prejudicially erred by denying the defendant‘s request to instruct on claim of right on the ground the evidence did not support giving the instruction. (Id. at p. 957.) In People v. Williams (2009) 176 Cal.App.4th 1521, the Court of Appeal extended the claim-of-right defense to an accomplice charged with burglary and robbery who believed in good faith that he was helping a principal, his brother, retake the principal‘s own property, a car and a laptop, from the victim, the principal‘s former girlfriend. (Id. at pp. 1525, 1527-1529.) The Williams court explained that ―[i]t would defy logic and common sense to hold that a defendant who absconds with goods by force under a good faith belief that he was repossessing his own property does not thereby commit robbery, but that his accomplice, who assists him in the same act and shares the same intent, may be found guilty. The latter, just as surely as the former, lacks the specific intent to deprive another of his or her property.‖ (Id. at p. 1528.) Therefore, the Court of Appeal concluded that ―a good faith belief by a defendant, tried as an accomplice, that he was assisting his coprincipal retake the principal‘s property negates the ‗felonious intent‘ element of both larceny and robbery, and that an instruction on the claim-of-right defense must be given where substantial evidence supports such a belief.‖ (Id. at pp. 1528-1529.) It held the trial court erred in refusing the defendant‘s request to instruct on the claim-of-right defense, because he testified that he believed he was assisting a coprincipal obtain the co-principal‘s own property and ―ample evidence,‖ including a bill of sale for the car that was in the principal‘s name, supported a jury finding that he had a good faith basis for that belief. (Id. at p. 1529.) Here, in addition to Tufunga and Williams, our decision in People v. Anderson (2011) 51 Cal.4th 989, 996 (Anderson) provides helpful guidance, particularly because unlike the defendants in Tufunga and Williams, defendant did

not request a claim-of-right instruction. In Anderson, we held that a trial court does not have a duty to instruct on its own motion on the defense of accident, so long as the jury received complete and accurate instructions on the mental state element of the charged offense. (Anderson, at p. 996.) As we explained, ― ‗[i]n criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury‘s understanding of the case.‘ [Citation.] That duty extends to ‗ ―instructions on the defendant‘s theory of the case, including instructions ‗as to defenses ― ‗that the defendant is relying on … , or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant‘s theory of the case.‘ ‖ ‘ ‖ ‘ ‖ (Ibid.) ―But ‗ ―when a defendant presents evidence to attempt to negate or rebut the prosecution’s proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a ‗pinpoint‘ instruction relating such evidence to the elements of the offense and to the jury‘s duty to acquit if the evidence produces a reasonable doubt, such ‗pinpoint‘ instructions are not required to be given sua sponte and must be given only upon request.‖ ‘ (People v. Saille (1991) 54 Cal.3d 1103, 1117.)‖ (Id. at pp. 996-997, first italics added.) In Anderson, because the defense of accident served only to negate the mental state element of the charged offense, the trial court‘s obligation to instruct on the defense ―extended no further than to provide [the jury] an appropriate pinpoint instruction upon request by the defense.‖ (Anderson, supra, 51 Cal.4th at p. 998.) In People v. Hussain (2014) 231 Cal.App.4th 261, 269, the Court of Appeal applied Anderson’s rationale to a claim-of-right defense and held that because the claim-of-right defense serves only to negate the mental state required for grand theft, the trial court was not required to instruct on the defense on its

robbery. Ramirez also admitted that he took the hair oil product, neck chain, and .32-caliber handgun when he fled the house. The prosecution argued that defendant was guilty of the charged offenses as a direct perpetrator or under aider and abettor and coconspirator theories of liability. Defendant argues that our decision in People v. Davis (2005) 36 Cal.4th 510 (Davis), compels the conclusion the trial court erred in failing to provide a unanimity instruction. In Davis, the defendant and his accomplices, some of whom were armed, commandeered a car occupied by the driver and a passenger. (Id. at p. 519.) It was night, and the four men drove around with both victims in the car. (Ibid.) The four stopped the car near a high school, and the defendant, armed with a Uzi, took the passenger into a nearby field and fatally shot her. (Ibid.) Defendant returned, and he and one of the accomplices took the driver into the field. (Ibid.) Defendant fatally shot the driver. (Ibid.) Two rings the passenger always wore were later found in the possession of defendant and his accomplices. (Id. at p. 520.) On appeal, the defendant challenged his conviction for robbery of the passenger on the ground that a unanimity instruction was required given he faced one charge of robbery but evidence of two robberies was presented. (Davis, supra, 36 Cal.4th at p. 560.) We reversed the robbery conviction on the ground that the defendant was entitled to a unanimity instruction because the evidence showed two distinct acts of robbery constituting the charged crime — the taking of the car from the driver and passenger and the taking of the rings from the passenger. (Id. at pp. 561-562.) Importantly, ―the potential defenses to the two acts of robbery were entirely different.‖ (Id. at p. 562, italics added; cf. People v. Stankewitz (1990) 51 Cal.3d 72, 100 [no unanimity instruction is required ―when the defendant offers essentially the same defense to each of the acts and there is no reasonable basis for the jury to distinguish between them‖].) Defendant claimed

the passenger ―was not legally in possession of the car,‖ and the taking of the rings ―constituted only the lesser included crime of theft‖ on the ground that there was evidence defendant formed the intent to steal the passenger‘s rings after he killed her. (Davis, at p. 562.) Based on the evidence, some jurors may have had a reasonable doubt that the intent to take the rings was formed while the passenger was alive; others may have had a reasonable doubt whether the passenger was in possession of the driver‘s car. (Id. at p. 561.) We concluded that because ―there was evidence from which the jury could have found defendant guilty of robbery based on the car but not the rings,‖ the trial court‘s failure to provide a unanimity instruction was prejudicial. (Id. at p. 562.) As Davis makes clear, however, a unanimity instruction is not required if ―the defendant offered the same defense to both acts constituting the charged crime, so no juror could have believed defendant committed one act but disbelieved that he committed the other, or because ‗there was no evidence … from which the jury could have found defendant was guilty of‘ the crime based on one act but not the other.‖ (Davis, supra, 36 Cal.4th at p. 562; see, e.g., Riel, supra, 22 Cal.4th at p. 1199 [a unanimity instruction was not required on the robbery charge because the defense as to each act of robbery was the same, i.e., ―defendant was asleep in the backseat of the car and did not participate in any act of robbery‖].) Even assuming that the events in this case may properly be parsed into multiple discrete takings, defendant did not offer ―entirely different‖ defenses to each taking as the defendant did in Davis. (Davis, at p. 562.) Defendant‘s main argument was that Ramirez testified untruthfully about defendant‘s involvement in the crimes. Defendant argued that he had no idea what would occur at the Morales house and was not part of a conspiracy to rob the Morales family. He denied there was a plan to commit a robbery before they arrived at the Morales house. Granted, defendant‘s alleged taking of the handguns

defendant of burglary felony murder based solely on entry into the Morales residence with intent to kill. The error is harmless, however, and reversal of the first degree murder convictions or burglary-murder special-circumstance finding is not required, ―[i]f other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for‖ burglary premised on entry with an intent to steal or commit a robbery. (People v. Chun (2009) 45 Cal.4th 1172, 1205 (Chun); Farley, supra, 46 Cal.4th at p. 1116, fn. 22; see Hedgpeth v. Pulido (2008) 555 U.S. 57 (per curiam) [error involving instructing the jury on multiple theories of guilt, one of which is invalid, is subject to harmless error review].) Here, the verdicts and evidence demonstrate the error was harmless. The prosecution‘s evidence established that defendant, Sanchez, Ramirez, and Nunez went to the Morales house to steal property and to kill Ramon and anyone else present. As detailed earlier, on the day of the homicides, defendant drove Sanchez, Nunez, and Ramirez to, among other places, the foothills east of Salinas to test-fire their loaded rifles. Defendant and Sanchez talked about the plan to enter the house, get drugs, steal ―stuff,‖ and kill those inside so that there would be no witnesses. When they arrived at the house, defendant volunteered to knock on the front door because no one in the house knew him. When nobody answered, defendant opened the door. Once they were inside, Sanchez held Martinez, who had been sleeping on the living room floor, at gunpoint, while Ramirez and Nunez searched the house for property to take. Ramirez took the items to defendant‘s car. After the Morales family returned and the adult victims were subdued by the four men, defendant searched for guns and found two handguns, at least one of which was a .38-caliber handgun. He kept one gun and put the other in Sanchez‘s jacket. The victims were subsequently shot inside the home and all were killed except for the infant.

Sanchez, Daniel Sanchez Covarrubias, and Joaquin Nunez committed an arson for hire and received $100 for committing the arson.‖ The fourth overt act alleged was that ―[o]n or about November 16, 1994 Francisco Antonio Sanchez, Daniel Sanchez Covarrubias, Joaquin Nunez, and Jose Luis Ramirez drove to JKD Shooting Sports in the City of Salinas to purchase (with the $100 received from the arson) ammunition and supplies for the rifles to be used in the residential robbery, burglary and killing at the Morales residence at 1022 East Market Street in the City of Salinas.‖ Ramirez testified that, on the day of the homicides, he, defendant, Sanchez, and Nunez went to a trailer park to collect $100 owed to Sanchez. Ramirez showed investigator Moore a trailer at the 101 Trailer Park on North Main Street where Sanchez collected the money. Defendant and the others waited in or near defendant‘s car while Sanchez collected the payment. Avalos testified that in November 1994, he was a business partner with a man named Angel, who lived at the 101 Trailer Park in Salinas. Avalos and Angel had a business disagreement. In the early morning hours of November 16, Avalos discovered his truck had been set on fire. He found a half-gallon-plastic bottle near the truck. Avalos reported the incident to police, and he was subsequently contacted by investigator Moore. Avalos told Moore about the disagreement with Angel and identified the trailer where Angel lived. Arturo Perez testified that he was acquainted with Angel and knew he lived in the same trailer park as his mother. Perez had introduced Sanchez to Angel. Investigator Moore testified that he interviewed Ramirez and learned that in the afternoon of the day of the homicides, Sanchez collected $100 at a trailer in the 101 Trailer Park in Salinas. Over trial counsel‘s hearsay objection, Moore testified that Ramirez told him the payment was related to a vehicle burning in Salinas sometime during the evening prior to the homicides. The trial court

court communications for their truth. We agree with defendant that Moore‘s testimony constituted inadmissible hearsay, but we conclude defendant was not prejudiced by admission of the trailer identifications. ― ‗Hearsay evidence‘ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.‖ (Evid. Code, § 1200, subd. (a).) A ―[s]tatement‖ includes ―nonverbal conduct of a person intended by [the person] as a substitute for oral or written verbal expression.‖ (Evid. Code, § 225.) ―For purposes of the hearsay rule, conduct is assertive if the actor at the time intended the conduct to convey a particular meaning to another person.‖ (People v. Jurado (2006) 38 Cal.4th 72, 129.) Here, Avalos pointed to trailer No. 35 in response to investigator Moore‘s question whether he ―knew people‖ who lived in the 101 Trailer Park. Thus, Avalos‘s act of pointing was intended as a substitute for an oral expression that ―I know the person who lives at trailer No. 35.‖ Similarly, during his interview with Moore, Ramirez pointed to trailer No. 35 in response to Moore‘s question regarding where Sanchez collected his $100 payment. Thus, Ramirez intended his act of pointing to the trailer to substitute for an oral expression that ―Sanchez was paid $100 at trailer No. 35.‖ In each circumstance, the prosecution offered Avalos‘s and Ramirez‘s act of pointing for the truth of the meaning each intended to convey to Moore in answer to his questions, and therefore their act of pointing was assertive conduct and hearsay. (See People v. Mayfield (1972) 23 Cal.App.3d 236, 240-241 [a declarant‘s conduct of pointing to a photograph in response to a question is assertive conduct and constitutes hearsay].) On appeal, the People argue the statements did not amount to hearsay because they were not offered for the truth of the identifications (i.e., Avalos knew someone who lived at trailer No. 35, and Sanchez collected a $100 debt from

―A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‗by one or more of the parties to such agreement‘ in furtherance of the conspiracy.‖ (People v. Morante (1999) 20 Cal.4th 403, 416 § 184.) Although a unanimous jury must agree that an overt act was committed, it need not unanimously agree on the same overt act in order to convict for conspiracy. (Russo, supra, 25 Cal.4th at p. 1135.) Further, an immaterial variance in the proof at trial from the overt act alleged in the charging document does not vitiate a conspiracy verdict if the evidence proves the ―gist‖ of the overt act, and the defendant was sufficiently informed of the offense with which he was charged and has not been misled in making his defense. (People v. Guerrero (1943) 22 Cal.2d 183, 186 (Guerrero) [holding that ―[t]he taking of the prosecutrix to the specified places constituted the gist of the overt acts relied upon as evidencing the defendants‘ formation of the conspiracy, and the presence or absence of compulsion in effecting such removal added nothing to the sufficiency of that accusation‖]; People v. Rodriguez (1923) 61 Cal.App. 69, 80-81 (Rodriguez) [regarding charge of conspiracy to commit burglary, it was sufficient to allege as an overt act that the conspirators attempted ―to enter the office of [a] mining company‖; allegation of the means employed by them for that purpose, i.e., to ―pick the lock of the door of the office‖ was ―unimportant and immaterial‖ and therefore, ―surplusage‖]; see also People v. Maury (2003) 30 Cal.4th 342, 427 [rejecting the defendant‘s claim that variance between pleading and proof on a charge of rape under § 261, former subd. (2) (now subd. (a)(2)) violated his constitutional rights to notice and due process; allegation of rape ― ‗by means of force and fear‘ ‖ in the amended information did not describe an offense different from ―rape by means of violence‖ in jury instruction].)

Regarding alleged overt act number three, quoted above, Ramirez testified that on the day of the homicides, Sanchez collected $100 as payment for a debt while defendant, Nunez, and Ramirez waited in the car. As explained above, there was no substantive evidence introduced that any arson was committed. Nonetheless, applying the test for materiality of the variance between the allegation of overt act number three and the proof introduced at trial, the absence of substantive evidence that defendant, Sanchez, and Nunez committed an arson for hire could not affect the conspiracy verdict. (Guerrero, supra, 22 Cal.2d at p. 187.) First, the gist of overt act number three was that on or about the day before the homicides, Sanchez obtained $100. The means by which Sanchez obtained the money was immaterial. As alleged in overt act number four, discussed below, Sanchez simply applied the money toward the purchase of ammunition for rifles the four men intended to use to commit burglary, robbery, and homicide at the Morales residence; again, the source of the funds had no bearing on the transaction. (Id., at p. 186; Rodriguez, supra, 61 Cal.App. at p. 81.) Second, it cannot be said that defendant was misled in making his defense or otherwise prejudiced by inclusion of the immaterial arson language in the allegation of overt act number three. (Guerrero, supra, at p. 187; Rodriguez, supra, at p. 81.) For these reasons, the variance between the information and the prosecution‘s proof regarding the commission of an arson was immaterial. Therefore, we conclude that even absent substantive evidence of an arson, there was sufficient evidence to substantiate alleged overt act number three. Regarding the allegation of overt act number four, set forth above, the testimony of Ramirez and Fletcher, a clerk at JKD Shooting Sports, and evidence of the purchase receipt, taken together, established that on or about the day of the crimes, the four men went to JKD Shooting Sports and, with the $100 that Sanchez collected at the trailer, bought ammunition for rifles they

that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]… We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact‘s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness‘s credibility.‖ (People v. Lindberg (2008) 45 Cal.4th 1, 27.) ―Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.‖ (People v. Lee (2003) 31 Cal.4th 613, 623; accord, People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) ―Intent to unlawfully kill and express malice are, in essence, ‗one and the same.‘ ‖ (Smith, at p. 739.) Express malice requires a showing that the assailant either desires the victim‘s death or knows to a substantial certainty that the victim‘s death will occur. (Ibid.) Concerning the crime of assault with a firearm, ―[s]ection 245, subdivision (a)(2), punishes ‗[a]ny person who commits an assault upon the person of another with a firearm.‘ Assault is defined as ‗an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.‘ (§ 240, italics added.) ‗Once a defendant has attained the means and location to strike immediately he has the ―present ability to injure.‖ ‘ ‖ (People v. Licas (2007) 41 Cal.4th 362, 366-367.) Defendant contends a ―personal shooting theory cannot be used to uphold the conviction[s] [for attempted murder and assault]‖ because the jury could not reach a unanimous verdict on the allegation he personally used a .38-caliber handgun within the meaning of former section 12022.5, subdivision (a).

laws of our society, and to determine what our community will and will not tolerate.‖ Trial counsel objected that the above italicized portion of the prosecutor‘s closing argument was ―an improper statement of the law.‖ The trial court overruled the objection and admonished the jury as follows: ―Well, counsel is permitted to present to you, as I‘ve said, their theory of the case. They‘re permitted to comment on the facts. They‘re permitted to comment on the law. [¶] What they say is not evidence. And what they say about the law is not the law. You have to follow my instructions on that. [¶] They‘re permitted to comment on both of those areas. This particular comment is somewhat beyond the law. But it is still within the realm of permissible comment.‖ On appeal, defendant contends that the prosecutor‘s remarks about the jurors acting as the ―litmus test . . . to determine what our community will and will not tolerate‖ constituted misconduct because in advocating this approach, she appealed to the jurors‘ passions. He asserts the argument deprived him of his state and federal constitutional rights to due process, a fair trial, and reliable guilt and penalty verdicts. As we explain, there was no misconduct. Preliminarily, defendant‘s claim is forfeited because he did not object on the specific ground of prosecutorial misconduct that he now asserts on appeal. ― ‗As a general rule, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.‘ ‖ (People v. Valencia (2008) 43 Cal.4th 268, 281, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. McDowell (2012) 54 Cal.4th 395, 436.) At trial, counsel objected that the prosecutor‘s comments constituted a misstatement of law. For the first time on appeal, defendant complains that the prosecutor‘s comments constituted an improper

appeal to the passions of the jury. The trial court was not presented with this specific argument and hence, had no opportunity to rule on the issue. We therefore conclude the issue is forfeited on appeal. In any event, defendant‘s claim is without merit. ― ‗A prosecutor‘s misconduct violates the Fourteenth Amendment to the United States Constitution when it ―infects the trial with such unfairness as to make the conviction a denial of due process.‖ [Citations.] In other words, the misconduct must be ―of sufficient significance to result in the denial of the defendant‘s right to a fair trial.‖ [Citation.] A prosecutor‘s misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves ―the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.‖ ‘ ‖ (People v. Clark, supra, 52 Cal.4th at p. 960.) ― ‗It is, of course, improper [for the prosecutor] to make arguments to the jury that give it the impression that ―emotion may reign over reason,‖ and to present ―irrelevant information or inflammatory rhetoric that diverts the jury‘s attention from its proper role, or invites an irrational, purely subjective response.‖ ‘ ‖ (People v. Redd (2010) 48 Cal.4th 691, 742-743.) We consider the assertedly improper remarks in the context of the argument as a whole. (People v. Cole (2004) 33 Cal.4th 1158, 1203.) ―In conducting [our] inquiry, we ‗do not lightly infer‘ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor‘s statements.‖ (People v. Frye (1998) 18 Cal.4th 894, 970.) Here, the complained-of remarks simply repeated what the prosecutor explained at the beginning of her argument was the function of the jury, i.e., to determine whether defendant had broken any laws. Defendant argues that ―[b]y charging the jurors with the responsibility to express the will of ‗civilized society‘ the prosecutor sought to incite the jurors to look beyond the legal and evidentiary issues and reach a verdict simply because [defendant] was part of the group that

form the specific intents or mental states might be affected in his own videotaped statement as to the salient portions of the events of November 16th. [¶] He makes no reference to intoxication. [¶] He seems to have recall of the events of what occurred, why they occurred.‖ Trial counsel was permitted to add further to the record and stated that several witnesses testified regarding defendant‘s alleged intoxication, that is, he was ―drunk‖ and ―intoxicated.‖ Counsel submitted that the evidence was sufficient to permit the jury to decide whether ―he had the capacity to form the specific intent.‖ Out of an abundance of caution, the trial court instructed the jury under a modified version of CALJIC No. 4.21.1, as follows: ―It is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of this condition. [¶] Thus in the crimes and enhancements alleged, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve the defendant of responsibility for the crime. [¶] However, there is an exception to this general rule, namely, where a specific intent is an essential element of a crime. In that event, you should consider the defendant‘s voluntary intoxication in deciding whether the defendant possessed the required specific intent at the time of the commission of the alleged crime. [¶] Thus, in the crimes and enhancements alleged, where a necessary element is the existence in the mind of the defendant of a certain specific intent, that element will be included in the definition of the crimes set forth elsewhere in these instructions. [¶] If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not the defendant had the required specific intent. [¶] If from all evidence you have a reasonable doubt whether the defendant had that specific intent, you must find that the defendant did not have that specific intent.‖

intoxication upon the aider and abettor‘s mental state ([Mendoza] at p. 1134 [‗a trial court has no sua sponte duty to instruct on the relevance of intoxication, but if it does instruct, as the court here did, it has to do so correctly‘]).‖ In Letner and Tobin, we assumed that the trial court‘s instructions, which predated Mendoza, failed to adequately explain to the jury how voluntary intoxication could affect the mental state of an aider and abettor. (Letner and Tobin, supra, 50 Cal.4th at p. 187.) Quoting Mendoza, supra, 18 Cal.4th at pages 1134-1135, we explained preliminarily that ―we ‗review the instructions as a whole to determine whether it is ―reasonably likely the jury misconstrued the instructions as precluding it from considering‖ the intoxication evidence in deciding aiding and abetting liability. [Citation.] Any error would have the effect of excluding defense evidence and is thus subject to the usual standard for state law error: ―the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant.‖ ‘ ‖ (Letner and Tobin, at p. 187.) Applying these principles, we concluded that any error was harmless: ―Although the voluntary intoxication instructions did not specifically mention aiding and abetting, they did not preclude the jury‘s use of evidence of intoxication in evaluating whether defendants aided and abetted, that is, whether, pursuant to the trial court‘s other instructions, one defendant knew of the other defendant‘s criminal purpose and intentionally aided the commission of the crime. Nor did the prosecutor argue that the jury could not consider voluntary intoxication in determining whether a defendant who was an aider and abettor of the crimes formed the mental state required for aiding and abetting. There is nothing in the record to indicate the jury would not have understood that the mental states set forth in the voluntary intoxication instructions could apply both to the mental states required of a direct perpetrator and to those required of an

aider and abettor. . . . For these reasons, any error in the instructions did not preclude the jury‘s consideration of defense evidence, nor is it reasonably probable that different instructions would have resulted in a verdict more favorable to defendants.‖ (Letner and Tobin, supra, 50 Cal.4th at p. 187.) Here, the defense theory was defendant‘s denial of any knowledge of or intent to further the alleged plan to rob and murder. Trial counsel argued that ―[i]t is not unreasonable to assume that [defendant], himself, really didn‘t believe that anything serious was going to happen. . . . What happens to him when he‘s had too much to drink? He gets happy. He‘s the kind of guy that, he wants to dance. Does that sound like a person who intended to kill the Moraleses that evening? I think not. Amy Trejo said [defendant] was a nice guy. She said she could never, ever imagine that he would do anything like this.‖ Similar to the situation in Letner and Tobin, although the trial court‘s alternate intoxication instruction was not clear in identifying for the jury the mental states that could be affected by defendant‘s intoxication, any error was harmless. There is nothing in the instruction that informed the jury that the intent elements set forth in the specific intent crimes could apply to only the mental states required of a direct perpetrator but not to those required of an aider and abettor. The trial court did not prohibit counsel from arguing, as he did at the hearing on the matter and pursuant to the instructions he requested, that evidence of intoxication was relevant to whether defendant had formed the requisite mental state as an aider and abettor to the specific intent crimes. During argument, counsel expressly asserted that defendant had no knowledge of any plan to rob and murder because he had been drinking: defendant ―had too much to drink‖ and did not think ―anything serious was going to happen.‖ Counsel himself did not limit the argument to the issue of defendant‘s guilt as a direct perpetrator and the jury reasonably would have understood it applied to the determination of defendant‘s

was reasonably foreseeable.‖ (Ibid.) ―The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.‖ (Mendoza, supra, 18 Cal.4th at p. 1133.) The natural and probable consequences doctrine applies equally to aiders and abettors and conspirators. (People v. Prettyman (1996) 14 Cal.4th 248, 260-261 .) Defendant contends on appeal for the first time that the instructions should have incorporated a reasonable person standard in order to guide the jurors in determining what constitutes natural and probable consequences. As a preliminary matter, ―[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.‖ (People v. Lang (1989) 49 Cal.3d 991, 1024.) Because defendant did not object at trial that the instructions were incomplete as given, the issue is forfeited. It is also without merit, as we explain. Defendant argues that the italicized portions of the instructions quoted in the preceding section did not adequately convey the jury‘s role in applying the natural and probable consequences doctrine because they failed to include language similar to that which appears in paragraph 3 of CALCRIM No. 403 (added Jan. 2006, rev. Feb. 2015): ―Under all of the circumstances, a reasonable person in the defendant‘s position would have known that the commission of the ___________ <insert non-target offense> was a natural and probable consequence of the commission of the ___________ <insert target offense>.‖ The Authority following CALCRIM No. 403 includes a citation to People v. Nguyen (1993) 21 Cal.App.4th 518, 531 (Nguyen) for the natural and probable consequences doctrine and reasonable person standard. (Authority to CALCRIM No. 403 (2015 rev.) p. 167.) In Nguyen, the Court of Appeal explained that the question whether a particular crime was a natural and probable consequence of another crime aided

18. Request to Record the Testimony of the Spanish-speaking Witnesses Defendant contends that the trial court erred in denying his request to have his entire trial audio-recorded on the ground that there exists a ―possibility‖ that the Spanish translator may not have accurately translated the testimony of Spanish-speaking witnesses. As a result, defendant asserts that he was deprived of a complete and accurate record of the trial proceedings, in violation of his federal constitutional rights to due process, assistance of counsel, and meaningful appellate review under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and the corollary state constitutional rights (Cal. Const., art. I, §§ 7, 15, 17). The claim lacks merit. ― ‗ ―[S]tate law entitles a defendant only to an appellate record ‗adequate to permit [him or her] to argue‘ the points raised in the appeal. [Citation.] Federal constitutional requirements are similar. The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective appellate review. [Citations.] Similarly, the Eighth Amendment requires reversal only where the record is so deficient as to create a substantial risk the death penalty is being imposed in an arbitrary and capricious manner. [Citation.] The defendant has the burden of showing the record is inadequate to permit meaningful appellate review.‖ ‘ ‖ (Letner and Tobin, supra, 50 Cal.4th at p. 195.) Defendant complains that because there is no memorialized record of the original testimony of the Spanish-speaking witnesses, he is unable to verify the accuracy and reliability of the interpreted testimony that appears in the record. He asserts there are numerous examples in the record in which the English translation of a Spanish-speaking witness does not convey ―a clear and understandable thought.‖ As an example, defendant points to the following colloquy that occurred

the jury. The parties stipulated that the videotaped statement was translated accurately into a written document by a certified interpreter. Prior to the playing of the videotape, the court instructed the jury: ―We‘re going to play a videotape. And you have in your hands a translation of that tape. Some of you — again, some of you may have some proficiency in Spanish. Others of you may have no proficiency in Spanish. You should rely on the transcription, and you should not — none of you, if you happen to have some proficiency in Spanish, should anoint yourselves as any kind of an expert so as to provide aid independently of the evidence to other jurors as to what is or is not being said on the tape. That comports with the general rule that the jury is to rely upon the evidence that is presented in court and not upon evidence from outside sources. So please keep that in mind if there are some of you who do have some proficiency in Spanish.‖ Defendant contends that the court erred because ―although the judge‘s instruction admonished Spanish speaking jurors not to talk ‗to other jurors‘ about their own translation of the recording, the admonition did not preclude Spanish speakers from themselves considering their own translations of the Spanish in the recording.‖ At this stage, the relevant inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violated the Constitution. (Estelle, supra 502 U.S. at p. 72; People v. Avila (2014) 59 Cal.4th 496, 508.) In addition, ― ‗ ―we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.‖ [Citation.]‘ (People v. Richardson (2008) 43 Cal.4th 959, 1028.)‖ (People v. Castaneda (2011) 51 Cal.4th 1292, 1321.) Preliminarily, if defendant did not believe the instruction given was adequate to cover this subject, then he was required to seek modification or clarification of the instruction in the trial court. (See Lucas, supra, 60 Cal.4th at

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. [¶] . . . [I]n order to prove this crime, each of the following elements must be proved: [¶] One, that a human being was killed. [¶] Two, that the killing was unlawful. [¶] And three, that the killing was done with malice aforethought . . . . [¶] 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: [¶] One, the killing resulted from an intentional act. [¶] Two, the natural consequence[s] of the act are dangerous to human life. [¶] And three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life.‖ In addition, under CALJIC No. 8.20, the jury was informed that ―[i]f you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.‖ The same instruction further informed the jury that ―to constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and having in mind the consequences he decides to and does kill.‖ (Italics added.) Under the felony-murder instruction (CALJIC No. 8.21), the jury was informed, in relevant part, that ―[t]he unlawful killing of a human being whether intentional, unintentional, or accidental, which occurs during the commission or attempted commission of the crime of burglary or robbery is murder of the first degree when the perpetrator had the specific intent to commit either of those crimes.‖ The instruction on felony murder for an aider and abettor (CALJIC No. 8.27) told the jury that ―[i]f a human being is killed by any one of several

persons engaged in the commission or attempted commission of the crime of burglary or robbery, all persons who either directly and actively commit the act constituting those crimes or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder in the first degree whether the killing is intentional, unintentional, or accidental.‖ (Italics added.) Finally, the jury was told, pursuant to CALJIC No. 8.26, in relevant part, that ―[i]f a number of persons conspire together to commit burglary or robbery, and if the life of another person is taken by one or more of them in furtherance of the common design, and if the killing is done to further that common purpose or is an ordinary and probable result of the pursuit of that purpose, all of the co- conspirators are equally guilty of murder of the first degree whether the killing is intentional, unintentional, or accidental.‖ (Italics added.) We are satisfied that the italicized language in the above instructions, when considered in light of the trial court‘s instruction under CALJIC No. 3.31 (ante, at p. 101) on the necessity of concurrence of act and specific intent on the robbery, burglary, and conspiracy charges, ―substantially covered‖ the concurrence requirement. (People v. Alvarez, supra, 14 Cal.4th at p. 220.) Further, we disagree with defendant that CALJIC No. 3.31 effectively told the jurors that there was no need to find concurrence as to the murder counts. As given, CALJIC No. 3.31 did not reference the crimes and allegations charged in the murder counts (counts 1-3) and given the jury received more specific instruction that referred to those counts, we presume that the jury did not draw any conclusion about the murder counts from that instruction. (See People v. Myles (2012) 53 Cal.4th 1181, 1212; People v. Thornton (2007) 41 Cal. 4th 391, 440.) For these reasons, we

―A defendant acts with reckless indifference to human life when that defendant knows or is aware that his acts involve a grave risk of death to an innocent human being.‖ Defendant contends that because the jurors found that he was a coconspirator, as shown by its guilty verdict in count 10 with respect to the target crimes of burglary and robbery, they were not required by the instructions to find he intended to kill or acted with reckless indifference to human life as a major participant as is required under Tison v. Arizona (1987) 481 U.S. 137 (Tison) and Enmund v. Florida (1982) 458 U.S. 782 (Enmund) in order to find the special circumstance allegation true. In other words, defendant asserts, the jurors would not have made the requisite findings because the instructions as given required them to do so only if they were ―unable to decide whether the defendant was the actual killer or an aider or abettor or a coconspirator.‖ Defendant asserts the alleged instructional error violated his rights under state law and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Even assuming that defendant did not forfeit the issue on appeal by failing to object below (§ 1259), the claim fails. ―The felony-based special circumstances do not require that the defendant intend to kill. It is sufficient if the defendant is the actual killer or either intends to kill or ‗with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission‘ of the felony.‖ (People v. Rountree (2013) 56 Cal.4th 823, 854, quoting § 190.2, subd. (d); see also Tison, supra, 481 U.S. at p. 158 [―major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the . . . culpability requirement‖ in Enmund]; Enmund, supra, 458 U.S. at p. 797 [the Eighth Amendment does not ―permit[] imposition of the death penalty on one . . . who aids and abets a felony in the

actual killer or if they were unsure whether defendant was ―the actual killer or an aider or abettor or a co-conspirator,‖ they were required to find intent to kill or reckless indifference. The instruction would have been more complete if it had explicitly told the jury that a finding of intent to kill or reckless indifference was required if the defendant was not the actual killer and was liable for first degree murder as an aider and abettor or a coconspirator. (See Letner and Tobin, supra, 50 Cal.4th at pp. 181-182; see also CALCRIM Nos. 702, 703.) Nonetheless, the jurors would have reasonably understood that unless they found defendant was the actual killer, they were required to find intent to kill or reckless indifference. Despite defendant‘s position on appeal, the fact that the jury also found that defendant was guilty of criminal conspiracy was of no consequence with regard to the issue under discussion. The jurors would have understood that the terms ―actual killer,‖ ―not the actual killer,‖ ―aider and abettor,‖ and ―coconspirator‖ were not mutually exclusive. The jury may have believed that defendant was the actual killer and a coconspirator, in which case it learned from the instruction that it was not required to find intent to kill or reckless indifference. If the jury believed that defendant was not the actual killer and had also determined he was guilty of first degree murder as a coconspirator, it learned from the instruction that it was required to find intent to kill or reckless indifference. If the jury was unsure whether defendant was the actual killer but decided he was guilty of first degree murder as a coconspirator, it learned from the instruction that it had to find intent to kill or reckless indifference. We also note that the prosecutor‘s argument concerning the special circumstance allegations was consistent with the law, and she never argued that the jury was not required to find intent to kill or reckless indifference if it found defendant was a nonkiller coconspirator, or if it could not decide whether he was an actual killer. Accordingly, there is no reasonable

California (1967) 386 U.S. 18, 24, ―a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is ‗no,‘ ‖ the error is harmless and reversal is not required. (Neder v. United States (1999) 527 U.S. 1, 19 (Neder); id. at pp. 8-15; see also People v. Williams (1997) 16 Cal.4th 635, 689 [―when a trial court fails to instruct the jury on an element of a special circumstance allegation, the prejudicial effect of the error must be measured under the test set forth in Chapman v. California‖].) Here, the trial court instructed the jury on the multiple-murder special circumstance (CALJIC No. 8.81.3) as follows: ―To find the special circumstance referred to in these instructions as multiple murder convictions, is true, it must be proved that: [¶] A defendant in this case has been convicted of at least one crime of murder in the first degree, and one or more crimes of murder in the first or second degree.‖ In addition, the fourth paragraph of CALJIC No. 8.80.1 (ante, pp. 109-110), informed the jury that ―if you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true.‖ (Italics added.) Thus, the instruction correctly told the jury if it found defendant actually killed, it did not have to find he intended to kill in order to find a burglary, robbery, or multiple-murder special-circumstance allegation true. (See People v. Dennis (1998) 17 Cal.4th 468, 516 [―when the defendant is the actual killer, intent to kill is not an element of either the felony-murder special circumstance or the multiple-murder special circumstance‖]; see also People v. Anderson (1987) 43 Cal.3d 1104, 1138-1147, 1149-1150.) If, however, the jury found defendant was not the actual killer or could not decide as between actual killer and aider and abettor or coconspirator the fifth

paragraph of the instruction (ante, pp. 109-110) informed the jury that it could not find a burglary, robbery, or multiple-murder special-circumstance allegation true unless ―you are satisfied beyond a reasonable doubt that such defendant [1] with the intent to kill aided, abetted, and counseled, commanded, induced, solicited, requested, or assisted any act during the commission of the murder in the first degree, or [2] with reckless indifference to human life and as a major participant who aided, abetted, counseled, commanded, induced, solicited, requested or assisted in the commission of the crime of burglary or robbery which resulted in the death of a human being, namely, Ramon Morales, Martha Morales or Fernando Martinez.‖ (Italics added.) This was error. (Nunez and Satele, supra, 57 Cal.4th at p. 45.) In effect, this portion of CALJIC No. 8.80.1 permitted the jury to find the multiple-murder special circumstance true without finding defendant intended to kill a human being. An instructional error in this context is harmless under Chapman however, ―when, beyond a reasonable doubt, it did not contribute to the verdict.‖ (People v. Williams (1997) 16 Cal.4th 635, 689.) As we observed in Williams, this standard may be met when we are able to conclude that the jury necessarily found an intent to kill under other properly given instructions, or when evidence of the defendant‘s intent to kill is overwhelming and the jury ― ‗could have had no reasonable doubt‘ that the defendant had the intent to kill.‖ (Ibid.) Here, as we explain, the error was harmless because overwhelming evidence established, and the jury could have had no reasonable doubt, that defendant intended to kill, and that he was an actual killer. Defendant relies heavily on the fact that the jury did not reach a unanimous verdict on the allegation he personally used a .38-caliber handgun within the meaning of former section 12022.5, subdivision (a), to argue the instructional error concerning the multiple-murder special circumstance was prejudicial. On the contrary, the evidence fairly considered here offers no other reasonable scenario

than defendant being the individual who shot Martha in the head with the .38-caliber handgun in the bedroom and that he did so with the clear intent to kill, rendering the instructional error harmless. Defendant admitted in his videotaped statement that he was such shooter. (―[W]e all shot. We fired the weapons that we had … we shot really like crazy.‖ ―[W]e shouldn’t have done anything … to the lady.‖ (Italics added.)) Defendant‘s admission is entirely consistent with the physical evidence of the murders (the location of the victims, defendant, and his coparticipants, ballistics, defendant‘s fingerprint on the box of .38-caliber ammunition used, and the manner of Martha‘s killing, as described below), and the evidence of the group‘s planning activities and conversations before the home invasion. It is undisputed that Sanchez was armed with and shot the victims with the AR-15 rifle, a weapon that ordinarily requires two hands to fire. It is undisputed that Nunez shot the victims with the .30-30 rifle, a weapon that ordinarily requires two hands to fire. It is undisputed that in addition to suffering gunshot wounds from one or both of these rifles, each victim was shot with a .38-caliber handgun. There was evidence of only two possible handguns that could have been that gun. Both were found by defendant in the kitchen. Defendant kept at least one of the guns. The box of .38-caliber ammunition used to shoot the victims was found in the bedroom and defendant‘s fingerprint was on it. All three calibers of bullets were found in Martha‘s body, which was found in the bedroom. The .38-caliber handgun and .30-30 rifle bullets that caused Martha‘s fatal head wounds were recovered from her shoulder and armpit, respectively. The AR-15 rifle bullet was recovered from her side. The two fatal head wounds caused by the .38-caliber handgun and .30-30 rifle essentially blew off her face. That is, ballistics establishes that the shooter of the .38 handgun was in the bedroom with Martha and Alejandra. The .38 shot to Martha‘s head reflects

a clear intent to kill. (See, ante at pp. 62-63, discussing defendant‘s shooting of baby Alejandra; see e.g., People v. Mayfield (1997) 14 Cal.4th 668, 768 [―The shot was fired at Sergeant Wolfley‘s face, which is consistent with a preexisting intent to kill.‖].) The body of Martinez was found between the bedroom and the living room, consistent with Nunez shooting him as he tried to escape. The body of Ramon was found in the living room, where Sanchez had been holding him at gunpoint throughout the home invasion robbery. There is no rational way that the jury could have found that defendant handled the .38-caliber ammunition in the bedroom, but did not load and shoot his handgun (despite his admission to having fired a weapon) and rather, found Sanchez — the only other person who potentially had a handgun (possibly another .38) in his pocket — (1) used both hands to fire his AR-15 rifle at the victims, (2) somehow obtained the .38-caliber ammunition from the box defendant handled in the bedroom in order to load the handgun from his pocket, and (3) switched from using the AR-15 rifle to using the .38-caliber handgun to shoot the victims again with the smaller weapon. There is simply no plausible explanation based on the evidence why Sanchez would have wanted to change weapons and go into the bedroom to shoot Martha with the small handgun after shooting her with the rifle. Such a scenario also would likely have taken longer than the 30 seconds of ―fairly rapid‖ gunfire heard by the witnesses. Instead, the evidence overwhelmingly supports a scenario of Sanchez shooting the victims with the AR-15 rifle, Nunez shooting the victims with the .30-30 rifle, and defendant shooting the victims with the .38-caliber handgun, which he loaded with ammunition he found in the bedroom, all in a flurry of gunfire. The physical evidence does not depend in any way on Ramirez‘s testimony. The overwhelming evidence thus reflects that defendant intentionally and fatally shot Martha with a .38-caliber handgun. Therefore, the record compels

People v. Covarrubias

IN THE SUPREME COURT OF CALIFORNIA

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II. DISCUSSION

CANTIL-SAKAUYE, C. J.

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