California Court of Appeal Jul 8, 2022 No. E074516AUnpublished
Filed 7/8/22 P. v. O’Brien CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE,
Plaintiff and Respondent, E074516
v. (Super. Ct. No. FWV19001320)
MICHAEL PATRICK O’BRIEN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. Affirmed in part, vacated in part, and remanded.
Jean Ballantine under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne S.
Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and
Respondent.
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I.
INTRODUCTION
Defendant and appellant Michael Patrick O’Brien shot and killed his ex-
girlfriend’s fiancé, Rudy Areyan. A jury convicted defendant of first degree murder 1 (Pen. Code, § 187, subd. (a)) and found true the allegation that he discharged a firearm,
There is no such indication in the record. The jury’s verdict stated only that it
found defendant guilty of first degree murder. Nothing in the record suggests that the
jury convicted defendant solely on a lying-in-wait theory. (See People v. Wear (2020) 44
Cal.App.5th 1007, 1021 [juror note stating some jurors believed defendant was guilty on
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invalid theory “affirmatively demonstrate[d]” that some jurors convicted defendant on an
invalid theory].)
The only evidence about the jury’s thought process comes from a question it asked
the trial court during its deliberations. The jury asked, “[i]n reference to the ‘lying in
wait’ (1st deg. murder), do all 3 elements need to be proven for it to be considering ‘lying
in wait’? Or, does it just need to be one of those elements?” The trial court instructed the
jury that it had to find that the People proved all three elements beyond a reasonable
doubt. This does not show that the jury convicted defendant solely on a lying-in-wait
theory of first degree murder. If anything, the jury’s question suggests the jury found that
the People had not proven all three elements of lying-in-wait murder and thus the jury did
not convict defendant on that theory.
In any event, substantial evidence supports defendant’s conviction under a lying-
in-wait theory of murder. First degree murder by lying in wait requires (1) a concealment
of purpose, (2) a substantial period of watching and waiting for an opportune time to act,
and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a
position of advantage. (People v. Russell (2010) 50 Cal.4th 1228, 1244.) Thus, lying in
wait is “‘the functional equivalent of proof of premeditation, deliberation and intent to
kill.’” (People v. Hardy (1992) 2 Cal.4th 86, 162.) “The purpose of the watching and
waiting element is to distinguish those cases in which a defendant acts insidiously from
those in which he acts out of rash impulse.” (People v. Stevens (2007) 41 Cal.4th 182,
202.)
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Here, “the jury could reasonably conclude [that defendant] concealed [his]
murderous intention and struck from a position of surprise and advantage, factors which
are the hallmark of a murder by lying in wait.” (People v. Hardy, supra, 2 Cal.4th at p.
164.) As to the first element for lying-in-wait murder, “[t]he concealment required for
lying in wait ‘is that which puts the defendant in a position of advantage, from which the
factfinder can infer that lying-in-wait was part of the defendant’s plan to take the victim
by surprise. [Citation.] It is sufficient that a defendant’s true intent and purpose were
concealed by his actions or conduct. It is not required that he be literally concealed from
view before he attacks the victim. [Citations.]’ [Citations.]” (People v. Webster (1991)
54 Cal.3d 411, 448.) Although the relevant evidence was conflicting, all of it supports a
finding that defendant acted with “a concealment of purpose.” The jury heard evidence
that defendant told Mariscal to drive where he was located and that he was either waiting
outside when Mariscal and Areyan arrived or that he was in Mariscal’s car just before
confronting Areyan. There is no evidence in the record that defendant made it known
that he had a gun on him. And the fact that Areyan “was generally aware of defendant’s
presence does not negate the element of concealment.” (Ibid. see People v. Poindexter
(2006) 144 Cal.App.4th 572, 586 [affirming lying-in-wait murder conviction when the
defendant approached the victim holding a shotgun in plain view then shot the victim
three times from a close proximity].)
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As to the second element, “lying in wait need not continue for any particular
period of time provided that its duration is substantial in the sense that it shows a state of
mind equivalent to premeditation or deliberation.” (People v. Cage (2015) 62 Cal.4th
256, 279.) The jury heard evidence that defendant told Mariscal to drive to his location
about 20 minutes before the murder occurred. From this evidence, the jury could
reasonably infer that defendant had sufficient time to premeditate and deliberate
murdering Areyan. (See People v. Mendoza (2011) 52 Cal.4th 1056, 1073 [a few
minutes of waiting is sufficient for lying in wait murder].)
As to the final element, it is undisputed defendant shot Areyan in the top of the
head. This suggested that Areyan was bent over with his head facing defendant, and thus
was not looking at defendant when defendant shot him. The jury could thus rationally
find that defendant “struck from a position of surprise and advantage.” (People v. Hardy,
supra, 2 Cal.4th at p. 164.)
Because substantial evidence supports the jury’s finding that defendant committed
murder under both a premeditation and deliberation and lying-in-wait theory, we affirm
defendant’s conviction for first degree murder. (See People v. Seaton, supra, 26 Cal.4th
at p. 645; People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.)
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B. Flight Instruction
The trial court instructed the jury with CALCRIM No. 372, which provides in
relevant part: “If the defendant fled or tried to flee immediately after the crime was
committed, that conduct may show that he or she was aware of his or her guilt. If you
conclude that the defendant fled it is up to you to decide the meaning and importance of
that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
Defendant contends the trial court erred in doing so. We disagree.
We first reject the People’s argument that defendant forfeited the issue by failing
to object to the instruction in the trial court. (People v. Taylor (2010) 48 Cal.4th 574,
630, fn. 13 [defendant did not forfeit argument that flight instruction was impermissibly
argumentative by failing to object].)
In any event, the flight instruction was proper. “‘In general, a flight instruction “is
proper where the evidence shows that the defendant departed the crime scene under
circumstances suggesting that his movement was motivated by a consciousness of guilt.”
[Citations.]’” (People v. Leon (2015) 61 Cal.4th 569, 607 (Leon).)
For instance, in Leon, the California Supreme Court held the trial court properly
instructed the jury on flight when the defendant was charged with evading a police officer
with willful disregard for safety and robbery murder. (Leon, supra, 61 Cal.4th at p. 607.)
The court reasoned that the defendant’s flight was relevant to his consciousness of guilt
for both offenses. (Ibid.)
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Leon controls here. Defendant’s flight from the scene after shooting and killing
Areyan was relevant to his consciousness of guilt for the first degree murder charge. The
trial court therefore did not err in giving CALCRIM No. 372. (See Leon, supra, 61
Cal.4th at p. 607; see also People v. Henry (1937) 23 Cal.App.2d 155, 165 [jury
instruction on flight proper because defendant’s flight was relevant to defendant’s
consciousness of guilt].)
Finally, we disagree with defendant that CALCRIM No. 372 is “improperly
argumentative,” conflicts with section 1127c, lessened the prosecution’s burden,
undermined the presumption of defendant’s innocence, or allowed the jury to find him
guilty based on his flight from the crime scene. Courts have consistently rejected these
arguments and held that CALCRIM No. 372 is properly given to the jury when, as here,
there is substantial evidence that the defendant fled the scene of a crime. (See e.g.,
People v. Paysinger (2009) 174 Cal.App.4th 26, 30 [rejecting arguments that CALCRIM
No. 372 undermines the presumption of innocence or lowers the prosecution’s burden];
People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1158-1159 [rejecting argument
that CALCRIM No. 372 allows jury to “presume[] the existence of” the defendant’s guilt
from his flight]; People v. Price (2017) 8 Cal.App.5th 409, 454 [rejecting arguments that
CALCRIM No. 372 is “impermissibly argumentative” and conflicts with section 1127c].)
We agree with these decisions and follow them here. As a result, we conclude the trial
court did not err by instructing the jury with CALCRIM No. 372.
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C. Juror Unanimity
As we explained above, The People argued defendant was guilty of first degree
murder on two alternative theories: murder by premeditation and deliberation and murder
by lying in wait. Defendant contends the trial court erroneously instructed the jury with
CALCRIM No. 521, which told the jurors that they could convict defendant of first
degree murder only if they unanimously found that he committed the offense, “[b]ut all
of you do not need to agree on the same theory.” Defendant contends this instruction was
prejudicial error because it inaccurately stated the law and thus violated his due process
rights under the federal and state constitutions. We disagree.
First, we disagree with the People that defendant forfeited his arguments on appeal
related to CALCRIM No. 521 because he did not object to the instruction below. (See
People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7 [defendant did not forfeit
constitutional challenge to CALCRIM No. 521 by failing to object to the instruction].)
When, as here, the defendant claims an instruction as incorrectly stating the law and
violating his or her due process rights, “the claim . . . is not of the type that must be
preserved by objection.” (Ibid.)
Our Supreme Court’s “long-standing rule” is that “juror unanimity regarding the
theory of first degree murder is not required.” (People v. Mora and Rangel (2018) 5 2 Cal.5th 442, 496.) Thus, “[b]ecause lying in wait and deliberate and premeditated
2 We disagree with defendant that Alleyne v. United States (2013) 570 U.S. 99 (Alleyne) and Ramos v. Louisiana (2020) ___ U.S. ___, 140 S.Ct. 1390 (Ramos), undermine this rule, which we are bound to follow. (Auto Equity Sales, Inc. v. Superior [footnote continued on next page]
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theories of murder are simply different means of committing the same crime, juror
unanimity as to the theory underlying its guilty verdict is not required.” (People v.
Russell, supra, 50 Cal.4th at p. 1257.) The trial court therefore properly instructed the
jury with CALCRIM No. 521.
D. Firearm Enhancement
Defendant contends that we must remand this case so that the trial court can
exercise its discretion on whether to reduce or modify the 25-year firearm enhancement
to an uncharged lesser included enhancement under section 12022.53. In our prior
opinion, we rejected the argument and followed this court’s decision in People v. Yanez
(2020) 44 Cal.App.5th 452 (Yanez), which held that section 12022.53 “does not afford
any” discretion to impose a lesser firearm enhancement. (Yanez, supra, at p. 460; June
22, 2021, E074516) [nonpub. opn.]) We therefore declined to remand this matter for
Court (1962) 57 Cal.2d 450, 455.) Alleyne held that the jury—not the trial court—must find true beyond a reasonable doubt any fact that increases the mandatory minimum penalty for a crime. (Alleyne, supra, at p. 103.) It says nothing about whether a jury must unanimously agree on a first-degree murder theory. Nor does Ramos. Ramos held that the federal Constitution mandates that jury verdicts in criminal cases be unanimous, but California has long required that. (See Ramos, supra, at p. 1397; People v. Russo (2001) 25 Cal.4th 1124, 1132 [“In a criminal case, a jury verdict must be unanimous.”].) “Given California’s existing requirement of a unanimous verdict, the Supreme Court’s decision [in Ramos] has no direct effect on California.” (People v. Wilson (2020) 56 Cal.App.5th 128, 161 fn.17) Alleyne and Ramos thus do not support defendant’s argument—which our Supreme Court “has repeatedly rejected”—that the jury must unanimously agree on a theory of first-degree murder before returning a guilty verdict for that crime. (People v. Mora and Rangel, supra, at p. 496.)
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Our Supreme Court subsequently decided in People v. Tirado (2022) 12 Cal.5th
688 (Tirado), that trial courts do have the discretion to reduce a section 12022.53 firearm
enhancement to a lesser included enhancement under that provision. Our Supreme Court
therefore vacated this court’s decision in Yanez, ordered the opinion depublished, and
transferred the matter back with directions to reconsider the case in light of Tirado.
(People v. Yanez (Apr. 20, 2022) __ P.3d __, 2022 WL 1180045, at [1].)
At sentencing, defendant urged the trial court to strike the firearm enhancement.
After considering the aggravating and mitigating circumstances, the trial court found that
“it would be a gross misuse of [its] discretion to strike the enhancement.” The record
thus shows that “the trial court clearly indicated when it originally sentenced . . .
defendant that it would not . . . have stricken [the] firearm enhancement.” (People v.
But that does not mean the trial court would not exercise its discretion to impose a
lesser included firearm-use enhancement under section 12022.53, subdivisions (b) (10
years) or (c) (20 years). (See Tirado, supra, 12 Cal.5th at p. 700.) At the time of
sentencing, it was unclear whether the trial court had discretion to impose either sentence
in lieu of striking the enhancement or imposing a greater, charged firearm-use
enhancement. Tirado confirms that the trial courts do have that discretion. (Ibid.)
Because it is not clear from the record whether the trial court would impose a 10- or 20-
year firearm-use enhancement instead of striking or imposing the 25-year enhancement,
we remand for resentencing.
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IV.
DISPOSITION
The conviction is affirmed and the sentence vacated. The matter is remanded for
the trial court to exercise its discretion to determine whether to impose a lesser included
firearm-use enhancement under section 12022.53, subdivisions (b) or (c) and resentence
defendant accordingly. In all other respects, the judgment is confirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J.
We concur:
SLOUGH J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's first-degree murder conviction, finding sufficient evidence of premeditation and deliberation, but vacated the sentence and remanded for the trial court to exercise its discretion regarding the imposition of a lesser included firearm enhancement under Penal Code section 12022.53.
Issues
Whether substantial evidence supports the first-degree murder conviction under theories of premeditation and lying in wait.
Whether the trial court erred in instructing the jury with a flight instruction (CALCRIM No. 372).
Whether the trial court erred in instructing the jury that it did not need to unanimously agree on a theory of first-degree murder.
Whether the trial court has discretion to impose a lesser included firearm enhancement under Penal Code section 12022.53.
Disposition. Affirmed in part, vacated in part, and remanded.
Quotations verified verbatim against the opinion
“Substantial evidence therefore supports the jury’s finding that defendant premeditated and deliberated Ayeran’s murder.”
“Our Supreme Court subsequently decided in People v. Tirado (2022) 12 Cal.5th 688 (Tirado), that trial courts do have the discretion to reduce a section 12022.53 firearm enhancement to a lesser included enhancement under that provision.”
“The conviction is affirmed and the sentence vacated. The matter is remanded for the trial court to exercise its discretion to determine whether to impose a lesser included firearm-use enhancement under section 12022.53, subdivisions (b) or (c)”