THE PEOPLE v. JOSE JUAN MACIAS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Jose Juan Macias appeals his conviction, by jury, of the first degree murder of Sheila Montelongo on August 17, 2008 (Pen.Code, §§ 187, subdivision (a), 189) ¹ , the attempted first degree murders of Robert Ramirez and Miriam Ramirez on the same date, and the attempted first degree murders of Jessie Lopez, Jimmy Vasquez and Robert Young on September 8, 2008.   The jury also found true various firearm use sentence enhancement allegations, including the allegation that appellant personally and intentionally discharged a firearm in committing each offense. (§§ 12022.53, subd. (b)-(e).)   It also found that appellant committed each offense for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).)   The trial court sentenced appellant to a total term in state prison of 145 years to life, plus 20 years.²  He contends the trial court erred when it failed to instruct the jury on all of the elements of aiding and abetting according to CALCRIM No. 401.   Appellant further contends the trial court erred when it instructed the jury that, in evaluating identification evidence, it should consider, among other things, “How certain was the witness when he or she made an identification․”  (CALCRIM No. 315.)   We affirm.

Facts

Leticia Ramirez hosted a family party at her house on the 1300 block of South Downey Road in East Los Angeles.   Shortly after midnight on August 17, 2008, about 15 family members were hanging out in her front yard.   Leticia noticed two men across the street, walk back and forth past her house two or three times.   Then, one of them walked into the middle of the street, drew a handgun and, as he walked closer to her front gate, fired shots at the party guests.   Leticia's cousin, Miriam Ramirez, was shot in the ankle as she walked down the driveway toward the front yard.   Robert Ramirez, another cousin, was shot in the lower back.   Sheila Montelongo, Leticia's aunt, was killed.   Leticia Ramirez identified appellant as the shooter from a “six-pack” photographic line up and at trial.

Gabriela Gonzalez, Leticia's sister, was also at the party.   Like Leticia, she saw the men across the street, walking back and forth past the house.   Just before the shooting began, Gabriela heard appellant say something but she did not understand what he said.   Gabriela helped a sheriff's department sketch artist create a composite sketch of the shooter.   When shown a photographic line up, Gabriela chose appellant's photograph because, she wrote, “he looks similar to the shooter.”   She identified appellant as the shooter at a live line up and in court.

Jose Ramirez, Leticia's cousin, was also at the party.   He saw the shooter walk across the street, toward Leticia's front yard.   When the shooter walked in between two cars toward the sidewalk, he raised a gun and said “Fuck Kobras,” a reference to an East Los Angeles street gang.   Then he fired the gun four or five times.   On August 25, Jose chose appellant's photograph from a “six-pack,” telling the sheriff's deputies that the person in the photo resembled the shooter.   He was shown a second six-pack on another day and did not choose any of the photographs.   In court, Jose identified appellant as the shooter.

When Robert Ramirez first noticed him, the shooter was standing across the street from his cousin Leticia's house.   He was wearing a cap pulled down all the way to his eyebrows and he had a gun in his hand.   Robert yelled to Jose, “He has a gun.”   Robert saw the shooter raise both hands, holding the gun in front of him.   He started running toward the house and heard gunshots.   Just before Robert reached the kitchen door, he heard the murder victim, Sheila Montelongo, say that she had been shot.   Robert stopped and was shot himself, in the lower back.   Sheriff's deputies showed Ramirez a “six pack” photographic line up;  Ramirez did not identify anyone from the line up.

About two weeks later, on September 2, 2008, Robert Young, Jimmy Vasquez and couple of other friends were talking among themselves in the front yard of Angel Basurto's house on the 1400 block of South Downey Road. Basurto noticed two men crossing the street, walking toward his friends, who were standing a few feet away in the yard.   Basurto heard one of them yell the name of a gang, “Los Tigres.”   Young heard one of them say, “Fuck Kobras and Kakas,” which he understood to be a derogatory name for Kobras, a rival street gang.   Basurto is a former member of the Kobras;  one of his nephews is currently involved with the gang.   Young, Vasquez and the others responded that they were from “nowhere,” e.g., that they didn't claim a gang.   When Young saw one of the men reach for his waistband, he assumed the man had a gun and began to run away.   Basurto also saw the man draw a gun and, holding it with both hands, fire it toward his friends.   Young and Basurto both identified appellant as the shooter in a “six pack” photographic line up, at the preliminary hearing and at trial.

On September 7, 2008, sheriff's deputies responded to a call about shots fired in the same neighborhood.   Sheriff's deputies searched the back yard of a nearby house and found appellant hiding under some debris.   Later that day, a resident of the house reported having found a handgun inside a used tire that had been discarded in the back yard.   The gun, a Lorcin .380 caliber handgun, was loaded and a round of ammunition was stuck in the chamber.   Three .380 caliber expended casings were also found nearby.

Appellant stipulated that he possessed the handgun.   A criminalist determined that it fired all of the expended casings found on the night of appellant's arrest.   In addition, the same handgun fired all of the bullets that were recovered from the bodies of Sheila Montelongo, Miriam Ramirez and Robert Ramirez, as well as all of the expended cartridge cases found at the site of those shootings.   Finally, the same gun also fired the expended cartridge cases recovered from the site of the September 2, 2008 shooting at the Basurto home.

Discussion

Omitted Instruction on Aiding and Abetting

In closing arguments, the prosecutor noted that Young's testimony raised the issue of whether appellant was responsible for the September 2 shootings as an aider and abettor.   The prosecutor argued:  “[I]f you go back into the jury room, and ․ for some reason there is a disagreement as to those two shootings what role the defendant played, the law says it doesn't matter.   The law says that if he is the perpetrator, the person who pulled the trigger of the gun, or the aider and abettor, the other person who was there committing the crime as well, he is equally guilty.   And the law goes one step further․  You as a jury don't need to unanimously decide what role he played if there is some disagreement.  [¶] So if for some reason, because we know there were two suspects, if six of you go in the back and say, you know what, I think he was the shooter, and six of you say, you know what, I'm not sure he was the shooter, he might have been the other guy, he is still guilty.   And that's what the law says.”

The trial court instructed the jury on aiding and abetting in terms of CALCRIM 400.   It did not provide the jury with the more detailed pattern instruction, CALCRIM 401, which defines each element of aiding and abetting liability, including the intent required to be an aider and abettor.   Appellant contends his convictions on counts 4 through 6, relating to the September 2 shootings, must be reversed because the trial court failed to so instruct the jury.   We conclude any error was harmless beyond a reasonable doubt.

Here, failure to instruct on all of the elements of aiding and abetting liability removed those elements from the jury's consideration.   This is federal constitutional error which requires reversal unless we can determine that the error was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24;  People v. Prettyman (1996) 14 Cal.4th 248, 271.)   We are thus required to determine whether “it appears beyond a reasonable doubt that the error did not contribute to this jury's verdict.”   (People v. Flood (1998) 18 Cal.4th 470, 504.)  “ ‘To say that an error did not contribute to the verdict is ․ to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’  “ (Yates v. Evatt (1991) 500 U.S. 391, 403 [114 L.Ed.2d 432].)   In other words, an error may be deemed harmless beyond a reasonable doubt “if the record contains no substantial evidence supporting a factual theory under which the elements submitted to the jury were proven but the omitted element was not.”  (People v. Sakarias (2000) 22 Cal.4th 596, 625.)

We conclude the omission of more detailed aiding and abetting instructions was harmless beyond a reasonable doubt because there is no substantial evidence that appellant aided and abetted the September 2 shootings rather than directly perpetrating them.   Young testified that he saw appellant reach for his waistband and, moments later, heard the shots.   Basurto watched appellant draw the gun.   Seconds later, shots rang out.   Neither witness saw appellant's companion with the gun.   The witnesses to the August 17 shooting testified that appellant fired the shots, not his companion.   Appellant stipulated that he possessed the gun that fired all of the shots on both August 17 and September 2. Finally, and most importantly, the jury unanimously found that appellant “personally and intentionally discharged a firearm” during the commission of each attempted murder on September 2. (§ 12022.53, subd. (c).)  Appellant could not both personally and intentionally discharge the shots that constitute each attempted murder and have aided and abetted, rather than directly perpetrated each offense.   The failure to instruct more fully on aiding and abetting liability was, therefore, harmless beyond a reasonable doubt.  (People v. Flood, supra, 18 Cal.4th at p. 507.)

Erroneous Instruction on Eye Witness Identification

The trial court instructed the jury on its evaluation of eye witness identification testimony using the pattern instruction, CALCRIM No. 315.   This instruction directs jurors to consider 15 questions when evaluating identification testimony, including, “How certain was the witness when he or she made an identification?”  (CALCRIM No. 315.)   Appellant contends this portion of the instruction violated his federal constitutional right to due process because there is no scientific correlation between the certainty of an identification and its accuracy.   His argument relies extensively on Brodes v. State (Ga.2005) 279 Ga. 435 [614 S.E.2d 766], in which the Supreme Court of Georgia held:  “In light of the scientifically documented lack of correlation between a witness's certainty in his or her identification ․ and the accuracy of that identification ․, we can no longer endorse an instruction authorizing jurors to consider the witness's certainty in his/her identification as a factor to be used in deciding the reliability of that identification.   Accordingly, we advise trial courts to refrain from informing jurors they may consider a witness's level of certainty when instructing them on the factors that may be considered in deciding the reliability of that identification.”   (Id. at p. 442.)

Appellant did not object to the instruction or request that it be modified to remove the reference to certainty.   As a result, his claim is not cognizable on appeal.  (People v. Richardson (2008) 43 Cal.4th 959, 1022-1023;  People v. Guerra (2006) 37 Cal.4th 1067, 1134.)   Even if the claim had not been forfeited, we would reject it.   No California court has followed Brodes, supra.   To the contrary, our Supreme Court expressly approved the predecessor instruction, CALJIC No. 2.92, as a correct statement of the law.  (People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232;  see also People v. Kennedy (2005) 36 Cal.4th 595, 610 [approving consideration of a witness' level of certainty in determining reliability of identification].)   We are, of course, bound by that authority.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)   Accordingly, we conclude the trial court did not err in instructing the jury in terms of CALCRIM 315.

Conclusion

NOT TO BE PUBLISHED.

We concur:

Superior Court County of Los Angeles

Brett Harding Duxbury, under appointment by the Court Of Appeal, for

Appellant.

Edmund G. Brown Jr., Kamala Harris Attorney Generals, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Samchez, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise stated..  FN1. All statutory references are to the Penal Code unless otherwise stated.

FN2. The sentence includes a term of 25 years to life for the first degree murder, consecutive terms of 15 years to life for three of the attempted murders with concurrent terms for the remaining attempted murder convictions, three terms of 75 years to life for the personal firearm use enhancement (§ 12022.53, subd. (d)), and an additional 20 years for the section 12022.53, subdivision (c) enhancement..  FN2. The sentence includes a term of 25 years to life for the first degree murder, consecutive terms of 15 years to life for three of the attempted murders with concurrent terms for the remaining attempted murder convictions, three terms of 75 years to life for the personal firearm use enhancement (§ 12022.53, subd. (d)), and an additional 20 years for the section 12022.53, subdivision (c) enhancement.

COFFEE, J. PERREN, J. Michael M. Johnson, Judge