THE PEOPLE v. ITZEL GUTIERREZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ITZEL P. GUTIERREZ, Defendant and Appellant.

B225054

-- December 12, 2011

Daniel G. Koryn, under appointment by the Court of Appeal for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted Itzel P. Gutierrez of felony murder, robbery and conspiracy to commit robbery and found true special circumstance allegations the murder was committed during a robbery and burglary.   On appeal Gutierrez contends the special circumstance findings were not supported by substantial evidence, the jury instructions on aiding and abetting were erroneous and her sentence of life without the possibility of parole constitutes cruel and/or unusual punishment in violation of the California and United States Constitutions.   She also challenges various aspects of her sentence, contending imposition of concurrent terms for robbery and conspiracy to commit robbery and a parole revocation fine were unauthorized.   We reverse the special circumstances finding for lack of substantial evidence and modify the judgment to correct several sentencing errors.   In all other respects, we affirm.

FACTUAL AND PROCEDURAL HISTORY

1. The Information

Gutierrez was charged in an amended information with murder (Pen.Code § 187, subd. (a)),1 robbery (§ 211) and conspiracy to commit robbery (§§ 182, 211).   The information specially alleged the murder was committed while Gutierrez was engaged in the commission of a robbery and burglary (§ 190.2, subd. (a)(17)) and the robbery was perpetrated in an inhabited dwelling and committed in concert with others (§ 213, subd. (a)(1)(A)).   Gutierrez pleaded not guilty and denied the special allegations.

2. The Robbery and Murder of Jose Carrillo

According to the evidence presented at trial, Gutierrez recruited her friend, Erika Rodriguez, and Rodriguez's friends, Armando Torrez and Anthony Hernandez, to rob Gutierrez's stepfather, Jose Carrillo, and to split the proceeds of the robbery.   Initially the plan was to rob Carrillo at his home.   Gutierrez drew a floor plan of Carrillo's house and gave it to her confederates to assist them in perpetrating the robbery.   Hernandez, Torrez, Rodriguez and Rodriguez's boyfriend, Emmanuel Jimenez, drove by Carrillo's house on the evening of January 12, 2008 intending to enter the house, but they aborted the plan after Jimenez became fearful they would be caught.

Gutierrez and her confederates subsequently decided that Gutierrez would lure Carrillo to a motel in Sylmar later that night by promising to provide him with a prostitute and drugs.   In accordance with the new plan, Gutierrez called Carrillo and told him to go to the motel.   After Carrillo had arrived at the motel, Rodriguez knocked on his door and was invited by Carrillo into the room.   Minutes later, Hernandez and Torrez knocked on Carrillo's motel room door.   When Carrillo opened the door, Hernandez and Torrez stormed in and began beating and choking him.   Meanwhile, Rodriguez took a black bag Carrillo had brought with him and left the room.   Later, Hernandez and Torrez left the motel in Carrillo's car.   They stripped the car of various parts and then met Gutierrez, who drove them in her car to a number of automated teller machines (ATMs) to withdraw money using Carrillo's ATM card.   Afterward, Gutierrez drove Hernandez and Torrez home.

Some time after Gutierrez had dropped off Hernandez and Torrez, she went to the motel and asked the manager to open her stepfather's door.   They found Carrillo's body, lying face down on the floor, “hog-tied” with bed sheets that had been removed from the bed.   One of the sheets was knotted around Carrillo's neck.   The medical examiner who performed the autopsy on Carrillo testified he had died of asphyxiation from strangulation.

3. Gutierrez's Statements to Police and Items Recovered During a Search of Her Vehicle

Gutierrez was interviewed by police at the motel.   She initially denied any participation in the crimes.   She told the detectives she had been at the motel earlier in the evening helping Rodriguez check into a room where Rodriguez planned to smoke drugs:  Rodriguez needed her help because she did not have an identification card.   After checking Rodriguez into the motel and visiting with her for a while, Gutierrez left for her waitressing job, where she had worked all night.   She became concerned about Carrillo when she did not hear from him.   She believed Rodriguez was involved in Carrillo's death.   She told police Rodriguez was a criminal—she was involved in credit card and identification theft—and was friends with gang members.

Gutierrez was interviewed several more times, each time substantially changing her story after being presented with information contradicting her account.   Gutierrez finally admitted she knew Hernandez and Torrez, who, according to Gutierrez, were gang members and friends of Rodriguez.   Gutierrez, who was 19 years old at the time of the murder, was angry at her stepfather for “kicking her out” of his house when she was 18 years old and needed his money to pay off loans she had received from friends.   Gutierrez acknowledged drawing a floor plan of her stepfather's home for her confederates, but insisted she knew he was not in real danger because there was no way her friends could get into his house.

When the plan to rob Carrillo at his house was aborted, Gutierrez and her three confederates came up with a plan to steal Carrillo's rims from his car.   To this end, she told Carrillo to go to the motel to meet a woman.   She drove Hernandez and Torrez to the motel at 1:40 a.m. during her work break to show them the expensive rims on Carrillo's car, which was parked in the motel parking lot;  she then returned to work.   According to Gutierrez, the two men were only supposed to steal the rims, not rob Carrillo or take his car.   Later that morning after she had finished working, she called Torrez to find out what had happened at the motel.   At some point Hernandez and Torrez met Gutierrez and got into her car.   Hernandez put his arm around her neck and told her, “This is what I did to your dad.”   When Gutierrez asked why, he said, “What, you think we weren't going to do anything?”   They then assured Gutierrez her stepfather was fine;  they had only tied him up with bed sheets.   Gutierrez drove Hernandez and Torrez to several ATMs where they used Carrillo's ATM card to obtain money from his bank account.   Concerned about her stepfather and not sure whether to believe Hernandez's and Torrez's assurances that he was safe, she drove back to the motel and found Carrillo dead.

When police officers searched Gutierrez's car, they found nine $20 bills from ATMs, a motel key card for the room she had checked Rodriguez into the night of the murder, a floor plan of Carrillo's home drawn by Gutierrez, Carrillo's credit cards and identification card and ATM receipts showing Carrillo's ATM card had been used to withdraw money following the robbery.   Telephone logs from Gutierrez's cell phone provider showed she had made several calls to her coconspirators and Carrillo during the hours leading up to Carrillo's murder and immediately following the murder.

Jimenez testified Gutierrez had called Rodriguez's cell phone several times during that night to find out what had happened.   Gutierrez admitted she had tried unsuccessfully to erase those calls from her cell phone after discovering Carrillo's body.   She knew Hernandez and Torrez were gang members and explained she initially did not want them involved because she knew, if they participated, “things were going to get out of control.”

Gutierrez did not testify at trial and did not present any defense witnesses.   Her theory at trial was that she had planned with Rodriguez, Hernandez and Torrez only to steal the rims from Carrillo's car.   She did not plan to rob or murder Carrillo.

4. The Verdict and Sentence

The jury convicted Gutierrez on all counts and found the special circumstances true.   Gutierrez was sentenced on count 1 (felony murder with special circumstances) to life without the possibility of parole.   Gutierrez was also sentenced to six-year terms on count 2 (robbery) and count 3 (conspiracy to commit robbery) with each of those terms to run concurrently with the term imposed on count 1. In addition, the court ordered direct victim restitution in the amount of $12,337, imposed a $200 restitution fine and imposed and stayed a $200 parole revocation fine.

CONTENTIONS

Gutierrez contends the special circumstance findings are not supported by substantial evidence;  the jury instructions on aiding and abetting were misleading and prejudicial;  her concurrent sentences for robbery and conspiracy to commit robbery violate section 654;  her prison sentence of life without the possibility of parole is cruel and/or unusual punishment in violation of the federal and California Constitutions;  the restitution order is not supported by substantial evidence;  and imposition of the parole revocation fine was error in light of her sentence of life without the possibility of parole.

DISCUSSION

1.  The Special Circumstance Findings Are Not Supported by Substantial Evidence

a. Standard of review

A challenge to the sufficiency of the evidence to support a special circumstance finding is reviewed in the same manner as a challenge to the sufficiency of the evidence to support a conviction.  (People v. Cole (2004) 33 Cal.4th 1158, 1229.)  “[W]e review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.  [Citation.]  The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citation.]  In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.  [Citation.]  ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.  [Citation.]  We resolve neither credibility issues nor evidentiary conflicts;  we look for substantial evidence.  [Citation.]’  [Citation.]   A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury's verdict.”   (People v. Zamudio (2008) 43 Cal.4th 327, 357;  accord, Cole, at p. 1229.)

b. Governing law

In order to find the robbery and/or burglary special circumstance to be true, the jury was required to find “[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing or attempting to commit” robbery (§ 190.2, subd. (a)(17)(A)) or burglary (§ 190.2, subd. (a)(17)(G)).  In addition, when the defendant is an accomplice rather than the actual killer, the People must plead and prove the defendant either intended to kill (§ 190.2, subd. (c)) or acted with “reckless indifference to human life” while a “major participant” in the underlying felony. (§ 190.2, subd. (d);  see People v. Thompson (2010) 49 Cal.4th 79, 125–126 [“for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a) [of § 190.2], which includes robbery, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life”].)

Here, the People argued at trial, and the jury found true, that Gutierrez was a major participant in the underlying robbery and burglary and acted with reckless indifference for human life.

c. The finding Gutierrez was a major participant in the underlying felony is supported by substantial evidence;  the finding she acted with reckless indifference to human life is not

The jury's “major participant” finding is amply supported by evidence Gutierrez masterminded the robbery at the motel, actively recruited her coconspirators and lured Carrillo to the motel in order to obtain the keys to his car and other valuables, including his ATM card and access to his bank account.  (See People v. Proby (1998) 60 Cal.App.4th 922, 933–934 [“major participant” means “ ‘notable or conspicuous in effect or scope’ ” or “ ‘one of the larger or more important members' ” of a group];  People v. Hodgson (2003) 111 Cal.App.4th 566, 579 [same].)   Although Gutierrez reiterates on appeal the argument she made in the trial court—that she only intended to steal the rims from Carrillo's vehicle—she merely recites favorable evidence and ignores the plethora of evidence supporting the jury's finding she was a major participant in the underlying felonies.  (See People v. Zamudio, supra, 43 Cal.4th at p. 357 [appellate court reviews the evidence in the light most favorable to verdict].)

The jury's “reckless indifference to human life” finding, in contrast, is not supported by substantial evidence.  “Reckless indifference to human life' ” exists when the defendant “knowingly engag[es] in criminal activities known to carry a grave risk of death.”  (Tison v. Arizona (1987) 481 U.S. 137, 157 [107 S.Ct. 1676, 95 L.Ed.2d 127];  see People v. Estrada (1995) 11 Cal.4th 568, 576 [“Tison thus instructs that the culpable mental state of ‘reckless indifference to life’ is one in which the defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of death’ [citation], and it is this meaning that we ascribe to the statutory phrase ‘reckless indifference to human life’ in section 190.2(d)”].) Phrased somewhat differently, reckless indifference requires a subjective awareness of the grave risk to human life created by the defendant's participation in the underlying felony.   (Estrada, at pp. 577–578.) 2

The People argue, as they did at trial, that Gutierrez's knowledge of the grave risk of death posed by her actions can be inferred from evidence she recruited gang members to assist her in her robbery scheme even though she believed, if they were involved, there was a strong likelihood “things were going to get out of control.” 3  They also rely on Gutierrez's statements to police detectives that Torrez was the type of person who “would do anything for money”;  he had wanted to rob Carrillo and “wouldn't stop at any cost.”

While Gutierrez's statements certainly portray Hernandez and Torrez as bad actors willing to participate in a robbery and burglary, none of them, taken alone or together, supports a finding Gutierrez had a subjective awareness Hernandez or Torrez would likely use deadly force.   There was no evidence Gutierrez knew her cohorts possessed a weapon (indeed, no weapon was used in this case), and no evidence deadly force was discussed at any time before the murder or immediately after when Gutierrez may have had time to help her father.  (Cf. People v. Lopez, supra, 198 Cal.App.4th at p. 1116 [accomplice's knowledge her confederate had a gun was sufficient evidence from which jury could infer defendant “acted with reckless indifference to the life of the man she lured into the alley”];  People v. Bustos (1994) 23 Cal.App.4th 1747, 1751 [although defendant did not have weapon, he planned and participated in robbery with his cohort, whom he knew had a knife];  People v. Mora (1995) 39 Cal.App.4th 607 [defendant guilty of special circumstance murder when defendant helped plan robbery and was instrumental in arranging for confederate to enter victim's home with a rifle];  People v. Proby, supra, 60 Cal.App.4th at p. 929 [defendant guilty of special circumstances murder when he participated in armed robbery and gave the gun to his confederate knowing his “willingness to do violence” to evade apprehension;  special circumstance finding of reckless indifference also supported by evidence defendant fled with his confederate, leaving victim to die].)   Nor was there evidence of Hernandez's and Torrez's proclivities for violence, much less Gutierrez's subjective awareness of them.4

The question before us is not whether the evidence is sufficient to support the felony murder conviction—plainly it is, and Gutierrez does not contend otherwise—but rather whether the evidence supports the jury's special circumstance findings.   On this record the evidence is simply insufficient to support a special circumstance finding qualifying Gutierrez for an aggravated sentence of life in prison without the possibility of parole.5

2. The Court Did Not Commit Prejudicial Error in Instructing the Jury with Former CALCRIM No. 400

The trial court instructed the jury without objection on aiding and abetting in accordance with former CALCRIM No. 400:  “A person may be guilty of a crime in two ways.   One, he or she may have directly committed the crime.   I will call that person the perpetrator.   Two, he or she may have aided and abetted a perpetrator, who directly committed the crime.   A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.”

Citing People v. McCoy (2001) 25 Cal.4th 1111 (McCoy ), People v. Samaniego (2009) 172 Cal.App.4th 1148 (Samaniego ) and People v. Nero (2010) 181 Cal.App.4th 504, Gutierrez contends the instruction, to the extent it characterizes the perpetrator and the aider and abettor as “equally guilty,” was misleading and prejudicial.6  In the context of this case in which the People asserted Gutierrez was guilty of murder only on a felony murder theory, the instruction as given was proper.

In McCoy, supra, 25 Cal.4th 1111, two defendants were tried together on charges of murder and attempted murder arising out of a drive-by shooting.   The Court of Appeal reversed the shooter's conviction for murder and attempted murder, finding the trial court had prejudicially misinstructed the jury on imperfect self-defense, a theory that, if accepted by the jury, would have reduced the perpetrator's crimes to voluntary manslaughter and attempted voluntary manslaughter.   The Court of Appeal also reversed the aider and abettor's conviction for murder and attempted murder, concluding the aider and abettor could not be convicted in the same trial with the actual perpetrator of an offense greater than that for which the perpetrator was convicted.   Because the Court of Appeal could not be confident the perpetrator was properly convicted of murder and attempted murder rather than voluntary manslaughter and attempted voluntary manslaughter, it held the aider and abettor's convictions must also be reversed.  (Id. at pp. 1115–1116.)

The Supreme Court reversed the Court of Appeal and remanded for further proceedings, concluding, in a homicide case in which the degree of the crime depends on various possible mental states, an aider and abettor “may be guilty of greater homicide-related offenses than those the actual perpetrator committed” if the aider and abettor had a more culpable mens rea than the perpetrator.  (McCoy, supra, 25 Cal.4th at p. 1120.)   As an example, the Court posited a defendant (Iago) who falsely told another person (Othello) that the second person's spouse (Desdemona) was being unfaithful, hoping he would kill her in a fit of jealousy.  “[D]epending on the exact circumstances of the killing, Othello might be guilty of manslaughter, rather than murder, on a heat of passion theory.   Othello's guilt of manslaughter, however, should not limit Iago's guilt if his own culpability were greater.”  (Id. at pp. 1121–1122.)  “[W]hen a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person's guilt is determined by the combined acts of all the participants as well as that person's own mens rea.   If that person's mens rea is more culpable than another's, the person's guilt may be greater even if the other might be deemed the actual perpetrator.”  (Id. at p. 1122.)   The Court specifically limited its analysis to cases of homicide, expressing “no view on whether or how these principles apply outside the homicide context.”  (Id. at p. 1122, fn. 3.)

Building on the Supreme Court's analysis in McCoy, supra, 25 Cal.4th 1111, Division Two of this court held in Samaniego, supra, 172 Cal.App.4th 1148, former CALCRIM No. 400's “equally guilty” language was error to the extent it did not recognize that an aider and abettor could be guilty of a lesser homicide offense than the perpetrator.  (Id. at p. 1164.)   For the same reason, Division Three of this court also found former CALCRIM No. 400's “equally guilty” language to be error in a multiple-defendant homicide trial.   (People v. Nero, supra, 181 Cal.App.4th at p. 518.) 7

The McCoy, Samaniego, Nero line of authority, which applies to multiple-defendant homicide trials in which the homicide may be varying degrees or types depending on the individual defendant's own mental state (that is, first or second degree murder or voluntary manslaughter), is inapposite here, where the homicide offense was tried solely as a felony murder.   To convict Gutierrez of first degree felony murder, the jury needed only to have concluded she had aided and abetted the underlying felony, in this case, a robbery or burglary.   (See § 189;  People v. Cavitt (2004) 33 Cal.4th 187, 197;  People v. Pollock (2004) 32 Cal.4th 1153, 1175.)   Her mental state or mens rea was simply not an issue with respect to the murder charge itself.8  Although felony murder can be of different degrees, any distinction in culpability is based solely on the nature of the underlying felony itself (see § 189 [enumerating certain felonies which qualify for first degree felony murder;  all other felony murder is murder in the second degree];  People v. Chun (2009) 45 Cal.4th 1172, 1181.)

In sum, former CALCRIM No. 400's statement an aider and abettor is “equally guilty” whether the person committed the felony personally or aided and abetted the person who committed the felony is a correct statement of the law as it applied to the charges of robbery and felony murder in this case.

Gutierrez contends the instruction's “equally guilty” language was erroneous in the context of the jury's special circumstance findings because it allowed the jury to impute to her Hernandez's and Torrez's mental state of either intent to kill or reckless indifference to human life.   Whatever merit Gutierrez's argument may have in other circumstances, in light of our reversal of the special circumstance findings, we need not consider it here.

3. The Court Erred in Sentencing Gutierrez to Concurrent Terms for Robbery and Conspiracy To Commit Robbery Rather Than Staying Imposition of Both Sentences Pursuant to Section 654

The trial court sentenced Gutierrez to life in prison without the possibility of parole for felony murder with special circumstances (count 1) and imposed a six-year term for robbery (count 2) and a six year term for conspiracy to commit robbery (count 3), each to run concurrently with her sentence on count 1. Gutierrez contends, and the People concede, the sentences on count 2 and 3 should have been stayed pursuant to section 654.9

Section 654 prohibits imposition of sentence for both the felony murder and the underlying felony.  (See People v. Holt (1997) 15 Cal.4th 619, 692 [terms for underlying felony properly stayed under § 654 when defendant was also convicted of felony murder];  People v. Wader (1993) 5 Cal.4th 610, 670 [term imposed for robbery properly stayed when defendant also convicted of felony murder based on commission of that offense].)   Similarly, when the conspiracy is not broader than the underlying target felony, section 654 prohibits imposition of sentence for both the conspiracy and the underlying felony.  (People v. Lewis (2008) 43 Cal.4th 415, 539 [under § 654 a “defendant may not be punished for both the underlying crimes and the conspiracy” when “there was no showing that the object of the conspiracy was any broader than the commission of the underlying crimes”];  In re Romano (1966) 64 Cal.2d 826, 828–829 [same].)

Section 654 thus plainly prohibits sentencing Gutierrez for all three felonies—felony murder, the underlying felony (robbery) and conspiracy to commit the underlying felony.   Although there appears to be no case law directly holding section 654 precludes imposition of sentence on both the underlying felony and conspiracy to commit the underlying felony when, as here, the defendant has been convicted and sentenced for felony murder, there is no principled reason to distinguish this situation from those considered in People v. Holt, supra, 15 Cal.4th 619 and People v. Lewis, supra, 43 Cal.4th 415.   Punishing Gutierrez for first degree felony murder effectively incorporates the punishment for both the underlying felony and the target offense of the conspiracy.   Accordingly, we agree with both Gutierrez and the Attorney General that imposition of sentence on counts 2 and 3 should have been stayed pursuant to section 654.  (See generally People v. Scott (1994) 9 Cal.4th 331, 354 [appellate court may modify unauthorized sentence even absent objection in trial court “because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing”].)

4. Gutierrez's Stipulation to the Victim Restitution Order Precludes Her Challenge to the Award on Appeal

At the sentencing hearing the court ordered Gutierrez to pay $12,337 in direct victim restitution pursuant to section 1202.4, subdivision (f), which provides, “[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court․”  Before imposing the victim restitution order, the court identified documents in the case file showing that one of Gutierrez's coconspirators, who was tried separately after a severance order, had been ordered to pay the same amount following an evidentiary hearing.   The court inquired whether defense counsel was aware of the evidence to support the restitution order in the companion case and whether there was any reason to set a hearing on the amount of restitution to be imposed in this case.   Defense counsel responded he was aware of the prior victim restitution order and found no need to set a hearing in this case to contest that figure.   Based on this response, the court issued its victim restitution order in the same amount as ordered in the previous case, noting Gutierrez's victim restitution was properly “joint and several” with that of her convicted codefendants.

Gutierrez now argues the record was devoid of evidence to support the court's finding her coconspirators had been ordered to pay any amount in direct victim restitution.10  Despite the manner in which Gutierrez phrases her contention, the question is not one of substantial evidence, but invited error.   Because Gutierrez's counsel expressly stipulated to the amount of victim restitution at trial, she may not now challenge the calculation of the award on appeal.  (See, e.g., People v. Seaton (2001) 26 Cal.4th 598, 638–639 [due to defendant's stipulation to excuse juror, any error in excusing juror was invited and not subject to appellate review];  Mt. Holyoke Homes, LP v. California Coastal Com. (2008) 167 Cal.App.4th 830, 842 [“ ‘ “[i]t is settled that where a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal” ’ ”].)

To avoid the ramifications of the invited error doctrine, Gutierrez contends generally, without substantive argument, the restitution order resulted in an unauthorized sentence and thus falls within a narrow exception to the invited error doctrine.  (See People v. Smith (2001) 24 Cal.4th 849, 852 [although generally only claims properly raised and preserved by the parties at trial are reviewable on appeal, there is a “narrow exception” for “unauthorized sentences” that are “ ‘ “clear and correctable independent of any factual issues presented by the record at sentencing” ’ ”];  In re Andrews (1976) 18 Cal.3d 208, 212 [doctrine of invited error does not apply to unauthorized sentences, which are void and may be challenged at any time].)   However, Gutierrez's challenge to the restitution order is not directed to the court's authority to award victim restitution—indeed, such restitution is mandatory (see Cal. Const., art.   I, § 28, subd. (b)(13)(A);  § 1202.4)—but rather to the sufficiency of the evidence supporting the award.   That belated challenge is not cognizable on appeal.  (See generally Smith, at p. 852 [narrow exception to forfeiture doctrine applies only when error is independent of any factual issues that were or could have been presented at sentencing].)

DISPOSITION

The special circumstances findings in connection with count 1 (first degree felony murder) are reversed, and Gutierrez's sentence on count 1 is modified to reflect a term of 25 years to life pursuant to sections 189 and 190, subdivision (a).   The judgment is further modified to stay imposition of sentence on counts 2 and 3 (robbery and conspiracy to commit robbery) pursuant to section 654.   In all other respects, the judgment is affirmed.   The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.

We concur:

FOOTNOTES

1.  FN1. Statutory references are to the Penal Code.

2.  FN2. Section 190.2, subdivision (d), “was added to existing capital sentencing law in 1990 as a result of the passage of the initiative measure Proposition 115, which ․ eliminated the former, judicially imposed requirement that a jury find intent to kill in order to sustain a felony-murder special circumstance allegation against a defendant who was not the actual killer.”  (People v. Estrada, supra, 11 Cal.4th at p. 575;  accord, People v. Lopez (2011) 198 Cal.App.4th 1106, 1115.)  “The portion of the statutory language of section 190.2(d) at issue here derives verbatim from the United States Supreme Court's decision in Tison v. Arizona [, supra,] 481 U.S. 137.   In Tison, the Court held that the Eighth Amendment does not prohibit as disproportionate the imposition of the death penalty on a defendant convicted of first degree felony murder who was a ‘major participant’ in the underlying felony, and whose mental state is one of ‘reckless indifference to human life.’  [Citation.]  The incorporation of Tison's rule into section 190.2(d)—in express terms—brought state capital sentencing law into conformity with prevailing Eighth Amendment doctrine.”  (Estrada, at p. 575.)

3.  FN3. The prosecutor argued in her closing statement, “In this case, ladies and gentlemen, basically, when you send gang members to go rob your stepfather, there's a pretty good chance something could go awry, right?   You're sending people who you've described as, you know, ‘these people will do anything for money,’ and, you know, ‘they're scary people,’ and stuff like that.   And you're sending them to go rob your stepfather.   So that shows a reckless indifference to human life.”

4.  FN4. The record does contain some evidence Gutierrez felt threatened by her coconspirators:  During one of her initial interviews in which she denied involvement in the crimes and identified Rodriguez and her friends as the likely perpetrators, she told detectives, “Look, I'm scared.   The people that are involved, they threatened me.”   When pressed to identify who had threatened her, she did not identify Hernandez or Torrez;  she named Rodriguez, who told her after the murder “she would pay” if Rodriguez were forced to go back to jail.

5.  FN5. In light of our reversal of the special circumstance findings, we modify Gutierrez's sentence by striking the life-without-parole term and replacing it with a term of 25 years to life, the punishment for first degree felony murder.  (See §§ 189, 190, subd. (a);  People v. Scott (1994) 9 Cal.4th 331, 354 [appellate court may modify unauthorized sentence on own motion].)   Gutierrez's contention her sentence as imposed by the trial court constitutes cruel and/or unusual punishment in violation of the federal and California Constitutions is, therefore, moot, as is her claim a parole revocation fine is unauthorized.

6.  FN6. The People insist Gutierrez has forfeited the issue by failing to object to the instruction at trial.   But, as Gutierrez maintains, we review any claim of instructional error that affects a defendant's substantial rights whether or not trial counsel objected. (§ 1259[“[t]he appellate court may also review any instruction given ․ even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”];  People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Of course, we can only determine if the defendant's substantial rights were affected by deciding if the instruction as given was flawed, and, if so, whether the error was prejudicial.   That is, if Gutierrez's claim has merit, it has not been forfeited.   Thus, we necessarily review the merits of her contention there was instructional error.

7.  FN7. CALCRIM No. 400 was revised in 2010 to eliminate the “equally guilty” language.   It now provides, “A person may be guilty of a crime in two ways.   One, he or she may have directly committed the crime.   I will call that person the perpetrator.   Two, he or she may have aided and abetted a perpetrator, who directly committed the crime.  [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.”

8.  FN8. Robbery was the target offense charged, and the People did not contend Gutierrez was guilty of that crime by virtue of the natural and probable consequences doctrine.   Accordingly, in finding Gutierrez guilty of the underlying robbery on an aiding and abetting theory, as well as convicting her of conspiracy to commit robbery, the jury necessarily found she possessed the same culpable intent as the actual perpetrators.  (See, e.g., People v. Beeman (1984) 35 Cal.3d 547, 556–557 [aider and abettor must have intent or purpose to commit or assist in the commission of the criminal offense];  People v. Prettyman (1996) 14 Cal.4th 248, 259 [absent natural and probable consequences doctrine, aider and abettor must share same specific intent as perpetrator to be guilty as aider and abettor];  McCoy, supra, 25 Cal.4th at p. 1118.)

9.  FN9. Section 654, subdivision (a) provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision․”

10.  FN10. We have affirmed the convictions of Hernandez and Torrez.  (See People v. Hernandez (Feb. 17, 2011, B223310) [nonpub. opn.];   People v. Torrez (Oct. 12, 2010, B218513) [nonpub. opn.].) In Hernandez's case, we expressly found the restitution order was supported by substantial evidence.

PERLUSS, P. J.

WOODS, J.ZELON, J.

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