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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Arturo Herrera VASQUEZ, Defendant and Appellant.

No. G003913.

Decided: December 29, 1987

William C. Spater, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael D. Wellington and Lilia E. Garcia, Deputy Attys. Gen., for plaintiff and respondent.


Arturo Herrera Vasquez appeals his convictions for second degree murder, attempted murder, and conspiracy to commit assault with a deadly weapon.   Vasquez argues the convictions of attempted murder should be reduced to assault with a deadly weapon because they are inconsistent with the mental states required for second degree murder.   He also complains the jury should have been instructed on the law of aiding and abetting before making a decision on the “armed” allegations, and alternatively argues he could not be sentenced both for being armed vicariously and for personal use of a firearm.   Finally Vasquez contends that because the court did not state its reasons for sentencing him consecutively, he must be resentenced.


17–year–old Lionel Suarez, a member of the Citron gang, went to a party on the night of February 9, 1985.   While there Suarez encountered members of two rival gangs, Travellers and F-troop.   Among the Travellers present were Suarez's 16–year–old brother, Leonard Suarez, his 16–year–old uncle, Ruben Suarez, Art Rodriguez and Martin Viramontes.

During the party a fist fight erupted.   One of the F-troop members hit Lionel in the mouth, bloodying his lip.   Shots rang in the air as someone yelled, “F-troop.”   As the party broke up, Lionel left to get fellow Citron members who would exact revenge on his assailant.   Leonard Suarez, Ruben Suarez, Martin Viramontes and Art Rodriguez departed for a neighborhood gathering place called Travellers Wall, which consisted of a block wall bearing a mural.   There they met Joe Maciel, Mark Aragon and someone named Pepe.

Meanwhile Lionel had assembled his girlfriend Francine, Citron adherents Arturo Vasquez, Demicio Ramirez (“Mouse”), Gerald Avila (“Negro”), and Hilario Ramirez (“Lario”).   Arming themselves with a .25 caliber pistol and a .9 millimeter Beretta, everyone except Mouse drove in a pickup truck to Vasquez's house, where they were joined by another Citron member driving an El Camino.   In the bed of the El Camino sat Mouse.   Vasquez went inside the house and soon returned wearing a heavy, bulky jacket.   He climbed into the bed of the pickup truck and both vehicles set out for the party.

As they entered the Travellers neighborhood Vasquez pulled the .9 millimeter Beretta from his pants and gripped it with both hands, resting his arms on the truck's side rail and aiming the gun toward Travellers Wall even before the wall was in sight.   The pickup truck, with the El Camino following, drove about five to ten miles per hour as it approached Travellers Wall.   Negro saw Vasquez fire at the wall three times;  from the El Camino Mouse fired seven additional shots with the .25 caliber gun.   After Vasquez told Lario, the driver, that someone at the wall had fallen, Lario drove the truck back to the Citron neighborhood.

Returning on foot to Travellers Wall, Lionel and Francine discovered Lionel's Uncle Ruben had been killed by a bullet wound to the heart.   The bullet was consistent with one fired from a .9 millimeter Beretta pistol.   Martin Viramontes sustained a bullet wound to his finger, but the others escaped injury by jumping behind the wall when the shooting started.

Vasquez, Lario and Negro returned to a friend's apartment, where Vasquez told Bob Gambrel he had fired four or five times and was sure he had shot someone.   Vasquez added that Mouse had emptied his clip.

The next afternoon Lionel Suarez told Vasquez that Lionel's Uncle Ruben had been killed in the shooting.   Vasquez told Suarez to keep his mouth shut, and together they concocted an alibi.   When Bob Gambrel told police Vasquez was involved in the shooting, police “wired” Gambrel and tape-recorded Vasquez's incriminating statements to him about the shooting, disposal of the gun, and the alibi.   In addition, Vasquez told some friends he had shot the wrong person.

A jury convicted Vasquez of the second degree murder of Ruben Suarez, conspiracy to commit assault with a deadly weapon on members of Travellers and F-troop, the attempted murder of Viramontes, Leonard Suarez, Rodriguez, Aragon, Maciel and the anonymous Pepe, and obstruction of justice.   The jury additionally found it true that Vasquez personally used a firearm in the murder and all the attempted murders, and was vicariously armed with Mouse's gun as well.


Vasquez argues his attempted murder convictions must be reduced to assaults with a deadly weapon because the jurors were not required to specify whether the second degree murder verdict was based on express malice or implied malice.   As such, he maintains, the murder verdict could have been rendered on an implied malice theory.   Therefore, since Vasquez's mental state was identical during the murder and the attempted murders (which were virtually simultaneous), it is possible the jurors based their attempted murder verdicts on implied malice as well.   Implied malice cannot substitute for the specific intent to kill required to support an attempted murder verdict.  (People v. Santascoy (1984) 153 Cal.App.3d 909, 913–914, 200 Cal.Rptr. 709.)

Vasquez cites no statutory or decisional law to support his contention jurors must specify the legal theories underlying verdicts.   He draws an analogy to the rule, recently reiterated in People v. McDonald (1984) 37 Cal.3d 351, 379–383, 208 Cal.Rptr. 236, 690 P.2d 709;  that where verdicts fail to specify a degree, the court must fix the degree at the lesser of the two.   But the McDonald holding is based squarely on the statutory mandate that the jury determine the degree of a crime.  (Pen.Code, § 1157.)1  Nothing in McDonald requires jurors to specify the legal theory upon which they arrive at a verdict.

 As stated in People v. Heideman (1976) 58 Cal.App.3d 321, 130 Cal.Rptr. 349, “A defendant may be convicted of murder of the first degree without unanimity of agreement on one of several theories advanced by the prosecution.   Thus, some jurors may find that the murder occurred during the course of a felony;  others may find that it was deliberate and premeditated [citations].”  (Id., at p. 333, 130 Cal.Rptr. 349.)   Similarly, the jurors in the case before us were not required to state whether their second degree murder verdict was based on express or implied malice.   Further analysis, therefore, is limited to whether a second degree murder verdict can be reconciled with attempted murder verdicts relating to the surviving victims.

 Second degree murder is of two kinds.2  The definition of one type was provided to this jury in CALJIC No. 8.30, which states, “Murder of the second degree is the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish premeditation and deliberation.”   In the shorthand of criminal law, this is known as an unpremeditated express malice murder.   The other variety, defined for this jury in CALJIC No. 8.31, is an act “the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for human life.”   This is known as second degree implied malice murder.

Second degree express malice murder is differentiated from first degree murder only by the absence of premeditation and deliberation.   Attempted murder, in the only form in which it existed when this crime was committed, likewise did not require premeditation and deliberation—but did require express malice, that is, the specific intent to kill.3  (People v. Santascoy, supra, 153 Cal.App.3d at p. 913, 200 Cal.Rptr. 709.)   In other words, the elements of second degree express malice murder and attempted murder are the same, except that murder embodies the completion of the crime.

It was not inconsistent, therefore, for the jury to find Vasquez guilty of the second degree murder of Ruben Suarez and the attempted murder of the others.   Nor was there an inherent contradiction in the companion verdicts finding Vasquez guilty of conspiracy to assault Travellers and F-troop members with a deadly weapon.   Viewing the evidence in the light most favorable to the judgment, as we must (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738), the jury may have believed the Citron group initially agreed to avenge Lionel Suarez's beating by an armed pursuit of his attacker and the attacker's compatriots, perhaps even intending to shoot at them.4  Once at the scene, however, Vasquez decided not just to threaten those gathered at Travellers Wall, but to shoot to kill.   Apparently finding Vasquez did not premeditate the killing sufficiently for first degree murder, the jury settled upon second degree murder of the express malice variety.   Thus the mental states required for the murder and attempted murder convictions were entirely consistent.

Vasquez's contention the attempted murder convictions must be reduced to assaults with a deadly weapon is meritless.   There was no error in the jury's not specifying the legal theory underlying the murder verdict.


 Vasquez next argues the court erred by incorrectly instructing on the law of aiding and abetting as it allegedly pertained to whether he was vicariously armed with Mouse's handgun.   Vasquez complains that although aiding and abetting instructions were given, they failed to incorporate the principles of People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318.   As such, he says, “Since the jury was not required to find that appellant was an aider and abettor who acted with the specific intent to commit, encourage, or facilitate the offense, a finding that appellant was armed within the meaning of Penal Code section 12022(a) cannot be sustained.”   We disagree.

Throughout the trial the prosecution's theory was that Vasquez and Mouse were principals, as well as accomplices.5  All principals in the commission of a felony—even those who lack knowledge their cohort is carrying a firearm—are liable for the one-year “armed” enhancement.  (People v. McGreen (1980) 107 Cal.App.3d 504, 524–525, 166 Cal.Rptr. 360.)   The prosecution need not prove scienter.  (Ibid.)  CALJIC No. 3.00, defining “principals,” and CALJIC No. 3.10, defining “accomplice,” were both read to the jury.6

Even if we assume Beeman (decided in 1984) changed the McGreen rule, the very language Vasquez says is lacking was contained within the accomplice instruction.  (Compare CALJIC No. 3.10 with People v. Beeman, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Further, Beeman, unlike this case, presented a substantial question whether the defendant unwittingly performed acts which helped his codefendants commit a robbery.   Here there was no dispute that Vasquez and Mouse were acting together when they shot at the Travellers Wall group.   Finally, Vasquez does not show how he was prejudiced by the Beeman concept's placement in an instruction on accomplice liability rather than aiding and abetting.  (See People v. Beeman, supra, 35 Cal.3d at pp. 562–563, 199 Cal.Rptr. 60, 674 P.2d 1318.)   The jury found Vasquez guilty of conspiracy to commit assault with a deadly weapon, foreclosing an argument Vasquez might have been ignorant of Mouse's plans for the gun.   We also note uncontroverted evidence shows that Vasquez himself supplied Mouse's firearm before their foray into the Travellers neighborhood.   He can hardly claim ignorance of its intended use now.


 Vasquez next argues he was improperly sentenced on two firearm enhancements in violation of the rule of In re Culbreth (1976) 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23.   The court imposed a two-year enhancement on Vasquez for his personal use of a firearm during the murder, and attached to one of the attempted murder counts a consecutive year for being vicariously armed with Mouse's gun.  (Pen.Code, §§ 12022.5, 12022, subd. (a).)  Vasquez contends the court was precluded from adding the extra year for the armed allegation because, to quote from Culbreth, the crimes were “part of a single melee.   There was but one occasion, one intent, one objective, one indivisible transaction.   Therefore [a firearm enhancement] may be applied only once.”  (In re Culbreth, supra, 17 Cal.3d at p. 335, 130 Cal.Rptr. 719, 551 P.2d 23.)

We have roundly criticized the Culbreth rule as being analytically unsound and difficult to apply.  (See People v. Raby (1986) 179 Cal.App.3d 577, 582–591, 224 Cal.Rptr. 576.)   Even in cases involving a single defendant and multiple victims, the rule has produced anomalous results.  (Ibid.)  But Vasquez has cited no case, and our research has uncovered none, extending Culbreth's shield to situations where two defendants each use firearms during the same felonies.   We are unwilling to create a new rule that such defendants may not be sentenced for both one personal use (Pen.Code, § 12022.5) and one vicarious armed enhancement (Pen.Code, § 12022, subd. (a)).

Culbreth reasoned that the legislative purpose of Penal Code section 12022.5 was deterring the use of firearms on subsequent occasions.  (In re Culbreth, supra, 17 Cal.3d at p. 333, 130 Cal.Rptr. 719, 551 P.2d 23.)   Accordingly, the operative factor in imposing the enhancement was not multiple victims, but more than one gun use.  (Id., at p. 334, 130 Cal.Rptr. 719, 551 P.2d 23.)   In deciding whether there were multiple uses, ordinarily the court would have to examine the actor's intent, objective, and the transaction's divisibility.  (Id., at pp. 334–335, 130 Cal.Rptr. 719, 551 P.2d 23.)

Not so here.   On the face of it, there was more than one gun use.   After all, there were two guns, each capable of killing the victims.   Two gunmen were firing, more than doubling the victims' chances of being killed or wounded, since Mouse fired several rounds more than Vasquez.   Both Mouse and Vasquez had conspired to use the guns, and Vasquez had supplied his confederate's weapon.   Under the circumstances, the legislative purpose of deterrence is well served by meting out an additional year for Vasquez's being vicariously armed with Mouse's firearm.

People v. Martinez (1984) 150 Cal.App.3d 579, 198 Cal.Rptr. 565, cited by Vasquez, is inapposite.   In that case the Court of Appeal held codefendants could not be punished for assault with a deadly weapon (a screwdriver), and personally using a deadly weapon (the same screwdriver), and the codefendant's use of his own screwdriver, during a robbery of the same victim.   Rejecting this triple use of facts, the appellate court said, “[T]o punish each defendant for using a deadly weapon in this robbery, for personally assaulting [the victim] with a deadly weapon, and for aiding and abetting his codefendant's assault, was to punish for at least one weapon-use too many.”  (Id., at p. 606, 198 Cal.Rptr. 565.)  (Culbreth was never mentioned.)   But unlike the defendant in Martinez, Vasquez was not punished with an enhancement that was also an element of the underlying crime;  use of a firearm is not inherent either in murder or attempted murder.   And Vasquez was not punished for using the same weapon on a different victim, or a different weapon on the same victim, but for Mouse's use of a different weapon on a different victim.   In other words, there was no dual use of facts to support the armed enhancement.   We find no error.


 Lastly Vasquez argues his case must be remanded because the court failed to state its reasons for sentencing him to serve the indeterminate 15 years to life term consecutively to the determinate term for attempted murder.7  The Attorney General contends the trial court need not state reasons for running an indeterminate term consecutively to a determinate term.

Penal Code section 1170, subdivision (c) 8 requires the court to state its reasons for a sentence choice, and a consecutive sentence is such a sentencing choice.  (People v. Bejarano (1981) 114 Cal.App.3d 693, 704, 173 Cal.Rptr. 71.)   But Penal Code section 1170 by its terms applies only to determinate sentences 9 ;  indeterminate sentences are controlled by Penal Code section 1168, subdivision (b).10  Section 1168, subdivision (b), quite logically, does not require a statement of reasons, because it contains no range of fixed terms from which to choose.

Neither of the above sections is much help in analyzing the present problem.   Each speaks only to how sentences under its scheme are to be imposed, not how they are to be imposed in combination.   The Attorney General argues the answer is to be found in Penal Code section 669.   That statute provides in relevant part:  “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently or consecutively;  life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another or with any other term of imprisonment for a felony conviction.   Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment imposed pursuant to [section 1170] ․ the determinate term of imprisonment shall be served first․”

The Attorney General concludes, “It is unclear that Penal Code section 669 requires a statement of reasons for imposing a consecutive life sentence.   As written, Penal Code section 669 requires only that the trial court designate whether the life sentence shall run concurrently or consecutively to a determinate sentence.”   Yet even if Penal Code section 669 itself does not mandate a statement of reasons, the question still remains:  When the court makes an indeterminate sentence consecutive, does some other rule or statute require a statement of reasons?

Vasquez contends, “California Rules of Court, Rules 410(g), 425, 433, and 443, require that the court pronounce its reasons for selecting consecutive sentences.”   Not so.  Rule 410, subdivision (g) merely recites a general objective of sentencing uniformity.  Rule 425 lists criteria affecting the decision to impose consecutive or concurrent sentences, but does not address a statement of reasons.  Rule 433, subdivision (c)(3) requires the sentencing judge to determine “whether the sentences shall be consecutive or concurrent if the defendant has been convicted of multiple crimes.”   Again, no mention is made of the court stating reasons.  Rule 433, subdivision (c)(5) commands the judge to “[p]ronouce the court's judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law.”   The latter section is self-limiting;  unless “required by law,” the court need not state reasons for its choices.   Similarly, Rule 443 provides:  “Whenever the giving of reasons by the sentencing judge is required, the judge shall state in simple language the primary factor or factors that support the exercise of discretion or, when applicable, state that the judge has no discretion․”   Again we encounter a “Catch–22.”   Unless specifically required, the court need not state reasons.

Having examined the statutes and Rules of Court pertaining to sentencing, we find no provision expressly mandating a statement of reasons for running an indeterminate sentence consecutive to a determinate sentence.   It is ironic, given the court's power under such circumstances virtually to “throw away the key,” that consecutive sentences of much lesser magnitude are subject to Penal Code section 1170(c), requiring reasons to be stated.

Apparently the Legislature intended such a result.  Penal Code section 669 was amended in 1978 to permit life sentences to run consecutively to other prison terms.  (People v. Gallegos (1985) 170 Cal.App.3d 386, 388, 216 Cal.Rptr. 230.)  “The amendment served two purposes:  (1) to provide an additional deterrent for defendants committing crimes for which a life term may be imposed, and (2) to serve the punitive purpose of the determinate sentencing law (DSL) by subjecting defendants guilty of multiple crimes and enhancements to additional punishment over and above that which they must serve on the life sentence crime.  [Citation.]”  (Ibid.)   Had the Legislature meant to compel trial judges to give reasons for making life sentences consecutive to determinate terms, it could have done so when it amended Penal Code section 669.

The judgment is affirmed.


1.   Penal Code section 1157 provides as follows:  “Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty.   Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”   As explained in People v. McDonald, supra, 37 Cal.3d at p. 381, 208 Cal.Rptr. 236, 690 P.2d 709, “The rule is ․ firmly established that the statute applies whenever the jury neglects to explicitly specify the degree of the crime.  [Fn. omitted.]”

2.   We exclude second degree felony murder, which is not at issue here.

3.   In 1986 the Legislature amended Penal Code section 664, subsection 1, which defines attempt crimes and sets forth their punishment, to create the additional crime of attempted “willful, deliberate and premeditated murder.”   While unpremeditated attempted murder carries a prison term of five, seven or nine years, the new crime of attempted first degree murder is punishable by life in prison.  (Added by Stats.1986, ch. 519, § 2, p. ––––.)  The statute was not in effect at the time of Vasquez's crimes.

4.   The jury did not think the Citron members contemplated killing anyone, however, as shown by acquittals of conspiracy to murder Travellers members and conspiracy to commit voluntary manslaughter upon members of F-troop.

5.   Vasquez maintains that at one point during argument, the prosecutor said Mouse was a principal and Vasquez aided and abetted him in the shooting at Travellers Wall.   The transcript shows the cited comments to be so inarticulate one cannot discern if Mouse or Vasquez is the subject of the “he” who is the aider and abettor.The prosecutor said:  “․ Mouse has apparently the .25 caliber handgun in the second car.   So in this case, Art Vasquez, if he is found guilty of anything here in count 1, you will find that he is—that he personally used a handgun—you will find that he was armed with a gun.   It's a different gun, the small caliber, the Titan, and that Mouse—Mouse is a principal;  he's a coconspirator, theoretically.  [¶]  He's an aider—he's aiding in this shooting, this drive by.   And so if you find that Mouse had a gun, then, of course, the defendant is also armed with a gun, so armed means he's vicariously armed, another person in his group has a gun and is using that gun.  [¶] The personal means he used it himself․ [¶] Art Vasquez said ‘I had the gun.   I fired the .9 millimeter.’   So if you find him guilty of anything under counts IV through IX, each of those counts, you should find that he personally used a gun.  [¶] You should also find that since Mouse also personally used the gun, the defendant was armed vicariously with Mouse's gun․”Despite the fleeting reference to aiding and abetting, the prosecutor's argument, when taken as a whole, clearly revolved around a theory of Mouse and Vasquez as co-principals.

6.   CALJIC No. 3.10 defines an accomplice as “one who is subject to prosecution for the identical offense charged against the defendant on trial.  [¶] To be an accomplice, the person must have aided, promoted, encouraged, or instigated by act or advice the commission of such offense with knowledge of the unlawful purpose of the person who committed the offense and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense.”

7.   The court selected the midterm of seven years for one count of attempted murder, added a consecutive year for being armed with a firearm (the statute itself requires consecutive sentences for firearm enhancements), and imposed concurrent time on the remaining five attempted murder counts.   For obstruction of justice (concocting an alibi with his friends), the court sentenced Vasquez consecutively to the attempted murder counts, and stated its reasons.   The court then imposed the indeterminate sentence for second degree murder, making it consecutive to the determinate counts, but did not record its rationale for so doing.   We assume it is the latter of which Vasquez complains.

8.   The pertinent part of Penal Code section 1170, subdivision (c), is as follows:  “The court shall state the reasons for its sentence choice on the record at the time of sentencing.”

9.   “Nothing in this article shall affect any provision of law which imposes the death penalty, which authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life.”  (Pen.Code, § 1170, subd. (a)(2).)

10.   Penal Code section 1168, subdivision (b) provides:  “For any person not sentenced under [Penal Code section 1170], but who is sentenced to be imprisoned in the state prison, including imprisonment not exceeding one year and one day, the court imposing the sentence shall not fix the term or duration of the period of imprisonment.”

WALLIN, Acting Presiding Justice.