Filed 7/24/13 P. v. Guzman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts a nd 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,

v.
ALEXIS GUZMAN et al.,
Defendants and Appellants. 2d Crim. No. B232497 (Super. Ct. No. 1312678)

(Santa Barbara County)

Alexis Guzman (Alexis) and Dennis Garcia Guzman (Dennis) 1 appeal their convictions for first-degree murder (Penal Code, §§ 189/187). 2 They argue
that the trial court committed several instru ctional errors, and Alexis contends that his trial counsel was constitutionally ineffec tive. We reject these challenges, and affirm the prison sentences of 50 years to life for each defendant.
FACTS AND PROCEDURAL HISTORY
I. The Crime Hector Perez (Perez) was fatally shot in an alleyway in Santa Maria,
California.

1 For the sake of clarity, we use their first names.

2 All statutory references are to the Penal Code unless otherwise specified.2 Minutes before the shooting, Alexis saw Perez in the alleyway. The two got into a verbal argument over the volum e of Perez's car stereo. Alexis was a member of the West Park street gang, and the alley was claimed as West Park gang territory. When the argument was not resolved to Alexis's satisfaction, he sent off a flurry of text messages. He told one gang member, Javier Mendez, to bring him a knife. When Mendez could not, Alexis sent him a message stating: "Come by fool we going to do something right now ." At the same time, Alexis told Dennis—his brother and also a West Park gang member—that a member of a rival gang was in the alley, even though Per ez was not a gang member. Alexis also informed his girlfriend that he was "about to beat some fool ri ght now." Dennis did not rush to Alexis's aid; instead, he t ook the time to borrow a gun from another gang member before coming to th e alley. Within minutes, the alley was full of West Park gang members and friends Perez had summoned. A fist fight ensued. Eyewitness ac counts of the fight differed, but a few facts were undisputed: Perez was una rmed. Perez did not throw the first punch. And the fight ended when Perez was shot twice at point black range. Eyewitness accounts of the shoo ter's identity also varied; the gunman was identified as Dennis, as Alexis, or as an unknown third person. Howeve r, Dennis had the gun immediately after the shooting, and bragge d to others that he had shot Perez.
II. Prosecution The People charged both Dennis a nd Alexis with first-degree murder (§§ 189/187). The People furt her alleged that the murder was "for the benefit of, at the direction of, or in association with [a ] criminal street gang" (§ 186.22, subd. (b)), and that a principal "personally and in tentionally discharge[ ed] a firearm . . . proximately caus[ing] great bo dily injury . . . or deat h" (§ 12022.53, subd. (d), (e)(1)). The People further alleged that Dennis personally used a firearm (§ 12022.5, subd. (a)).3 The jury found both de fendants guilty of first-degree murder, and found true the gang enhancement and the en hancement for a principal's discharge of a firearm causing great bodily injury. Th e jury did not reach a verdict regarding Dennis's personal use of a firearm. The court sentenced each de fendant to 50 years to life in state prision—25 years to life on the murder charge, plus a consecutive 25 year-to-life sentence on the disc harged firearm enhancement.
DISCUSSION
I. Instructional Errors The court instructed the jury that Dennis or Alexis could be guilty of first-degree murder if either defendant (1) personally perpetrated the crime of first-degree murder; (2) aided and abette d the other in perpetrating first-degree murder; (3) aided and abetted the other in committing the predicate offenses of assault, battery, assault with force likely to cause great bodily injury, or assault with a deadly weapon if "murder" was a "natural and probable consequence" of one of those predicate offenses ("natural and probable consequences theory"); or (4) conspired with others to commit any of the four predicate offenses if murder furthered the conspiracy and was a natu ral and probable consequence of the conspiracy's common design ("conspiracy th eory"). Dennis and Alexis argue that one or more of these theories is legally de fective, and that this defect requires their
murder convictions to be vacated.
A. Defenses
Dennis and Alexis first contend that the trial court erred (1) in denying Dennis's request to instruct the jury on the defenses of perfect and imperfect self-defense to th e murder charge; and (2) in not instructing the jury sua sponte on the defenses of self-defense and defense of others as to the four predicate offenses underlying the natural and probabl e consequences and conspiracy theories. The trial court's duty to give these inst ructions turns on wh ether the evidence presented was "substantial enou gh to merit consideration by the jury . . . ." ( People4 v. Manriquez (2005) 37 Cal. 4th 547, 581 ( Manriquez ).) 3 "Substantial evidence" means what it says; "'any evidence, no matter how weak,'" will not suffice. ( People
v. Whalen (2013) 56 Cal.4th 1, 68, quoting People v. DePriest (2007) 42 Cal.4th 1, 50.) We independently review the trial cour t's evaluation of the evidence, and in so doing, may not evaluate the credibility of witnesses and must recognize that a single witness's testimony can constitute "substantial evidence." ( Manriquez , supra , at p. 581; People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Wyatt (2012) 55 Cal.4th 694, 698.)
1. Defenses to murder charge There are two species of self-defense under California law—namely, "perfect" self-defense and "imperfect" self-defense. ( People v. Randle (2005) 35 Cal.4th 987, 994 ( Randle ), overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1198-1199 ).) Both defenses requi re that the defendant actually believe that he or she was in "imminent danger of death or great bodily injury . . . ." ( Randle , supra , at p. 994; In re Christian S. (1994) 7 Cal.4th 768, 783 ( Christian S. ) ["Fear of future harm—no matter how grea t the fear and no matter how great the
likelihood of the harm—will not suffice"].) If that belie f is reasonable "'from the point of view of a reasonable person in the [defendant's] position,'" the defendant has acted in perfect self-defen se and the homicide is justified and not a crime at all. ( People v. Humphrey (1996) 13 Cal.4th 1073, 1083, quoting People v. McGee (1947) 31 Cal.2d 229, 23 8; § 197, subd. (1); People v. Flannel (1979) 25 Cal.3d 668, 674-675, superseded on othe r grounds by § 25, subd. (a); People v. Villanueva (2008) 169 Cal.App.4th 41, 49-50.) If that belief is not objectively reasonable, it still negates the "malice" elem ent of murder, and the defe ndant is accordingly guilty
at most of the lesser-included offe nse of voluntary manslaughter. ( Christian S. ,

3 For true defenses (such as a perf ect self-defense and defense of others), the trial court's duty also turns on the extent to wh ich the defense is consistent or inconsistent with the defendant's theory of the case. ( People v. Booker (2011) 51 Cal.4th 141, 179.)5 supra , at p. 773.) This "imperfect" self-def ense is accordingly not a true defense,
but rather an instruction on a lesser-included offense. ( Manriquez , supra , 37 Cal.4th at p. 581.) However, a defendant may not assert e ither type of self-defense if he was wholly or partly responsible for crea ting the circumstances that precipitated his use of deadly force. Thus, a defendant who "'seeks or induces the quarrel which leads to the necessity for killing his adve rsary"' may not claim self-defense unless he "'honestly endeavor[s] to esca pe'" from the fight he started ( People v. Hill (2005) 131 Cal.App.4th 1089, 1102-1103 ( Hill ), overruled on other grounds in People v.
French (2008) 43 Cal.4t h 36, 48, fn. 5; People v. Holt (1944) 25 Cal.2d 59, 66 ( Holt ); Christian S. , supra , 7 Cal.4th at p. 773, fn. 1), or unless such escape is impossible because his adversary launches a "sudden and deadly counter assault." ( People v. Sawyer (1967) 256 Cal.App.2d 66, 75; People v. Quach (2004) 116 Cal.App.4th 294, 302; accord, Holt , supra , at p. 66 ["'A man has not . . . the right to provoke a quarrel and take advantage of it, then justify the ho micide' . . ."].) A defendant is also precluded from asserti ng self-defense if he and the victim mutually agreed to engage in combat "before the claime d occasion for self-defense arose." ( People v. Ross (2007) 155 Cal.App.4th 1033, 1047.)
The trial court did not err in dec lining to give eith er self-defense
instruction to the murder ch arge for two reasons. First, the undisputed evidence foreclosed both types of self-defen se as a matter of law. (E.g., People v. Watie (2002) 100 Cal.App.4th 866, 8 77-879 [no instruction required if evidence precludes
self-defense instruction as a matter of law].) The defendan ts each sought and induced the quarrel that led to Perez's shooting: Alexis to ld Dennis to come to the alley and "sweetened" the incentive by fals ely reporting that a rival gang member was there, and Dennis borrowe d a gun and went to the a lley. Dennis, Alexis, or another gang member threw the first punch. Moreover, Dennis or Alexis never attempted to withdraw from the fight they prompted, and the unarmed Perez never6 launched a "sudden and deadly counter assault." At a minimum, Dennis, Alexis and Perez agreed to engage in mutual co mbat because Perez and Alexis summoned back-up and Dennis showed up ready to fight. Second, substantial evidence does not support a finding that either defendant actually feared imminent great bo dily injury or death. Alexis did not walk away from his verbal quarrel with Pe rez; instead, he spent several minutes sending text messages in order to summ on Mendez, Dennis and others; trying to acquire a knife; and bragging to his girlfriend that he was about to "beat some fool." This evidence precludes any argument that Al exis was actually in imminent fear.
The same can be said of Dennis. Upon learning that a rival gang member was in the alley, De nnis did not immediately come to his brother's aid; instead, he took the time to get a gun. This does not reflect imminent fear. Dennis
contends that he borrowed the gun only for defensive use because gang members need to protect one another and because he might have heard that Perez had previously assaulted someone else with a knife. We are not persuaded. A similar argument was rejected in Hill , which affirmed the denial of a self-defense
instruction when the defendant took the time to get a weapon before confronting the victim. ( Hill , supra , 131 Cal.App.4th at pp. 1102- 1103.) Moreover, if protecting one's fellow gang members was enough by itse lf to place a defendant in imminent fear, self-defense instructions would be categorically required in every gang violence case, but that is not the law. De nnis's further argument that he obtained a gun because of Perez's prior knife fight with someone else is also without merit:
Dennis did not know Perez was in the alley until after he borrowed the gun, and Perez was weaponless when he and Dennis st arted their fist fight. Although Dennis was not required to testify to his own fear ( People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262), "'th ere must be evidence from which a jury could find'"
that he labored under an actual fear that deadly force was immediately necessary for protection ( People v. Oropeza (2007) 151 Cal.App.4th 73, 82). Here there was

none.7 2. Defenses to predicate offenses
Self-defense and defense of others can also be defenses to the crimes of assault (whether simple assault, assau lt with a deadly weapon, or assault with force likely to cause great bodily injury ) and battery. (§§ 692, 694.) Alexis
contends that the trial court erred in not instructing th e jury sua sponte on these defenses as to the four uncharged pred icate offenses underlying the natural and probable consequences and conspiracy theo ries. More specifically, Alexis argues that he jumped into the fight against Perez in defense of Dennis and that the absence
of self-defense and defense-of-others inst ructions precluded th e jury from finding
him not liable under two of the four th eories underlying the murder charge.
We need not decide whether su bstantial eviden ce supports the giving of these instructions because Alex is was not prejudiced by their absence. At trial, the prosecutor argued that Alexis was liable under the natural and probable consequences and conspiracy theories for sending text messages summoning other West Park gang member s. Alexis's attorney ar gued that the text messages never mentioned a fight, and that once the fi ght broke out, Alexis was an innocent bystander who "simply stood there." No one argued that Alexis had jumped into the fight. (E.g., People v. Prettyman (1996) 14 Cal.4th 24 8, 273 [effect of instructional error gauged in part by refe rence to counsel's arguments].) On this record, self-defense and defense-of-other s instructions are irrelevant because Alexis's liability for the murder under th e natural and probabl e consequences and conspiracy theories for sending inflamma tory text messages would have already attached by the time he jump ed into the fight and conseq uently would not have been negated by instructions relevant sole ly to his involvem ent in the fight.
B. Object of natural a nd probable consequences Dennis and Alexis also argue th at the trial court erred when it instructed the jury th at each could be liable for first-degree murder under the natural and probable consequences theory if, among other things, "the commission of
murder was a natural probable consequence" of any of the four predicate offenses.8 Relying on People v. Woods (1992) 8 Cal.App.4th 1570 ( Woods ), the defendants contend that the jury should have been required to find that the natural and probable consequence of the predicate offenses was first-degree murder rather than merely "murder." The People respond that Woods was wrongly decided. Woods's continuing validity is currently be fore our Supreme Court. (See People v. Chiu , reviewed granted Aug. 2012, S202 724, [C063913; nonpublished opinion; Sacramento County Superior Court; 03F08566].) However, we need not take up the
issue of Woods's validity because the trial court committed no error even if Woods remains good law.
Woods held that a trial court erred wh en it informed th e jury that a defendant who aids and abets a predicate o ffense for which murder is a foreseeable consequence must be liable for the same de gree of murder as the perpetrator of the murder. ( Woods , supra , 8 Cal.App.4th at pp. 1580-1592.) The Woods court reasoned that a jury must be instru cted to find that a particular degree of murder was a natural and probable consequence of one or more predicate offenses "where the facts would support a determination that the greater crime [first-degree murder] was not a reasonably foreseeable conseque nce but the lesser offense [second-degree murder] was such a consequence." ( Id. at p. 1588.) However, the evidence in this cas e does not support a finding that first-degree murder was not a reasonably foreseeable consequence of the four predicate offenses, but that second-degree murder was such a consequence. The sole theory for first-degree murder in this case was that the shooter acted "willfully, deliberately, and with premeditation." Accordingly, the question presented is whether the evidence would support a findi ng that it was reasonably foreseeable from the gang-related assaults or batte ry against Perez that he would be intentionally shot, but not r easonably foreseeable that he would be shot willfully, deliberately and with premeditation. Th e answer is, "No." Alexis summoned fellow gang members, tried to obtain a weap on, and did so as part of his plan to "beat some fool." Dennis responded to Alexis's summons by obtaining a gun and9 starting a fist fight with Perez. Dennis argues that the jury did not unanimously agree that he was the shooter and asserts th at he acted in self-defense. Regardless whether Dennis, Alexis or another West Park member pulled the trigger, the
evidence indicated that the shooter waited until the fist fight was well under way before firing the gun not once, but two or three times. No ev idence suggested that the shooting was anything other than the anticipated culmination of the escalating
confrontation engineered by West Pa rk gang members, and he nce willful, deliberate and premeditated. Further, self-defense wa s inapplicable for the reasons discussed
above. There was no error under Woods.
C. Second-degree murder "cap" on natural and probabl e consequences liability Alexis argues that an aider and abettor can be liable, at most, for second-degree murder as the natural and probable consequence of any predicate offense. In particular, he contends that (1) section 189 enumerates the permissible types of first-degree murder and does not list murders that are the natural and probable consequence of other offenses a person aids and abets; and (2) it is unfair, as a policy matter, to hold a person w ho merely aided and abetted a predicate offense liable for a first-degree murder that he did not subjectively intend or contemplate. We reject both arguments. Alexis's first argument confuses the types of first-degree murder with the theory of liability by which they may be committed. Courts may not add to the statutorily enum erated list of conduct qualifying as firstdegree murder. (See Adoption of Kelsey S. (1992) 1 Cal.4th 815, 827 ["courts may not add provisions to a statute"].) But Ca lifornia law elsewhere provides that aiders and abettors are liable as principals (§ 31; see also § 971), and "stand[] on equal footing" with the perpetrators ( People v. McPherson (2001) 86 Cal.App.4th 527, 532). Thus, holding aiders and abettors liable for first-degree murder does not amend section 189. The propriety of this conclusion is confirmed by the plethora of decisions affirming first-degree murder convictions resting on a natural and probable consequences theory. (E.g., People v. Williams (1997) 16 Cal.4th 635,10 676, fn. 14; People v. Sandoval (2007) 41 Cal.4th 825, 841; People v. Garcia (2008) 168 Cal.App.4th 261, 272-274.) Alexis's second argument fare s no better. A person who aids and abets a predicate offense that foreseeably results in further crimes need not have intended to encourage or f acilitate the particular crim es later committed by the perpetrator. ( People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) And this result is not an outlier. A co-participant in a joint criminal endeavor—whe ther he is coconspirator, an aider and abettor, or a joint felon—has long been held vicariously liable for his co-participants' foreseeable crimes even though he has a different (and ostensibly lesser) degree of moral culpability. ( In re Hardy (2007) 41 Cal.4th 977, 1025-1026 [coconspirator liability]; People v. Gonzales & Soliz (2011) 52 Cal.4th 254, 296 [aider and abettor liability]; People v. Cavitt (2004) 33 Cal.4th 187, 196 [felony murder liability]; see generally People v. Luparello (1986) 187 Cal.App.3d 410, 437 ["The law . . . implicitly recognizes the greater threat of criminal agency and explicitly seeks to deter crim inal combination by recogniz ing the act of one as the act of all"].) The courts are, in any even t, without authority to rewrite the law of homicide for policy reasons.
II. Ineffective Assistance of Counsel Alexis argues that he is entitled to a new trial because his trial counsel was constitutionally ineffective. He cont ends that his counsel did not object to Dennis's attorney's questions on cross- examination that elicited (1) testimony from two different witnesses regarding a ru mor that Alexis was the shooter; and (2) testimony from another witness w ho mentioned a newspa per article naming
Alexis as the shooter. Alexis asserts that his counsel could ha ve had no strategic reason not to object to this testimony on hearsay grounds, and that its admission prejudiced by him by allowing the jury to hear additional evidence that he was the
shooter. To prevail on his claims of ineffe ctive assistance of counsel, Alexis must establish that (1) his counsel's perfo rmance was "deficient"; and (2) there is a11 "reasonable probability" that, but for that de ficient performance, "the result of the proceeding would have been different." ( Strickland v. Washington (1984) 466 U.S. 668, 687, 694 ( Strickland ).) Counsel is "strongly pr esumed to have rendered adequate assistance." ( Id. at p. 690.) For these reasons , "[a] mere failure to object to evidence or argument seldom establishe s counsel's incompetence. [Citations.]" ( People v. Frierson (1991) 53 Cal.3d 736, 747.) Counsel's decision not to object on hearsay grounds to the witness's reference to a newspaper article mentioning Alexis as the shooter did not constitute deficient performance because that evidence was not hearsay. ( People v. Jones (1998) 17 Cal.4th 279, 309 [failure to make meritless objection does not amount to ineffectiveness].) Out-of-court statements are hearsay only if "offered to prove the truth of the matter stated." (Evid. Co de, § 1200, subd. (a).) The witness who
mentioned the article testified th at he came forward to identify Dennis as the
shooter because the article's report to the contrary was incorrect. Because the article was mentioned for its falsity and not its tr uth, a hearsay objec tion would have been
overruled.
We need not address whether th e absence of any objection to the
rumor that Alexis was the shooter cons tituted deficient performance because its admission did not create a "reasonable pr obability" that the jury would have reached a different result for two reasons. ( Strickland , supra , 466 U.S. at p. 697 [court may decide prejudice issue first].) Fi rst, the rumor was br ought up during the
cross-examination of the witness who affi rmatively testified that he saw Alexis
shoot Perez. The rumor was therefore cu mulative of direct eyewitness testimony. The cumulative nature of this testimony dis tinguishes it from the ca ses Alexis cites. (See People v. Robertson (1982) 33 Cal.3d 21, 41-42 [n o objection to inadmissible
evidence that defendant committed ot her, uncharged murders; admission of evidence prejudicial]; People v. Guizar (1986) 180 Cal.A pp.3d 487, 491-492 [same]; People v. Moreno (1987) 188 Cal.App.3d 1179, 1190-1191 [no objection to sole, inadmissible evidence of corpus delecti ; admission of evidence prejudicial].)12 Second, this cumulativ e evidence did not likel y affect the verdict because, as noted above, no one argued th at Alexis should be found guilty for Perez's murder as the shooter. Instead, Al exis's liability to the murder was tethered exclusively to his role in summoning other gang members to the fight.
DISPOSITION The judgments are affirmed.
NOT TO BE PUBLISHED.

HOFFSTADT, J. *

We concur:

YEGAN, A. P. J.

PERREN, J.

* (Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)Edward H. Bullard, Judge
Superior Court County of Santa Barbara

________________ _____________

Wayne C. Tobin, under appointme nt by the Court of Appeal, for Defendant and Appella nt Alexis Guzman. Leslie Conrad, under appointm ent by the Court of Appeal, for Defendant and Appellant Dennis Garcia Guzman. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Se nior Assistant Attorn ey General, James William Bilderback II, Linda C. Johnson, Supervising De puty Attorneys General, J. Michael Lehmann, Deputy Attorney Gene ral, for Plaintiff and Respondent.