Filed 12/6/19 P. v. Johnson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES EARL JOHNSON,

Defendant and Appellant.

C083889

(Super. Ct. No. 15F06105)

A jury convicted defendant Charles Earl Johnson of involuntary manslaughter as an aider and abettor and of being a felon in possession of a firearm. The jury also found true an allegation that defendant was a principal and was armed with a firearm in the commission of the involuntary manslaughter. The trial court sentenced him to five years eight months in prison.

Defendant now contends the trial court (1) had a sua sponte duty to instruct on the natural and probable consequences doctrine of aiding and abetting when it gave a modified CALCRIM No. 580 involuntary manslaughter instruction which identified trespass as an uncharged target offense, and (2) erred in omitting the natural and probable consequence language in CALCRIM No. 580. Finding no prejudicial error, we will affirm the judgment.

BACKGROUND

Mariana T. began spending time with the victim, Marcus Gonzalez, after she ended her relationship with Dezmon McClary. McClary learned of the new relationship and he was jealous. McClary threatened Mariana with a shotgun and he also threatened to harm Gonzalez.

Mariana’s sister told police Mariana showed her messages from McClary stating, “when I catch him slippin’, I’m gonna get him.” McClary explained the phrase “catch him slippin’ ” meant catching a person off guard. There was evidence that defendant made additional threats.

On the day of the manslaughter, McClary and defendant entered an apartment where Gonzalez and Mariana’s sister were present. McClary carried a shotgun and defendant had a small handgun. McClary asked Mariana’s sister about Mariana’s location, but the sister said she did not know. McClary then stood over Gonzalez, who was on the floor behind the couch, and said, “We caught you slippin’ ” or “I caught you slippin’ ” Mariana’s sister and a friend ran and hid. Defendant stood by McClary but did not say anything and did not point his gun at anyone. The sister and her friend heard a gunshot, and Gonzalez died of a shotgun wound to the chest.

McClary and defendant were tried together but with separate juries. McClary testified at the trial. He admitted being angry about Mariana ending their relationship and being jealous of her seeing other men. But he offered the following version of events. He drank a lot of alcohol and used methamphetamine and cocaine the night before the shooting. He sent Mariana messages and called her numerous times but she did not respond. He then asked defendant to go with him to the apartment. McClary stopped somewhere to get a handgun, which he gave to defendant. McClary had his shotgun. At the apartment, McClary and Gonzalez had a few words; McClary lifted his shotgun, with his finger on the trigger, when Gonzalez pulled up his pants and the shotgun discharged. McClary fled, threw the shotgun away and deleted information from his cell phone. McClary denied that he intended to kill anyone and that he and defendant had planned to kill Gonzalez.

Defendant’s jury acquitted him of first degree murder. (Pen. Code, § 187, subd. (a).) It also found him not guilty of the lesser included offenses of second degree murder and voluntary manslaughter. But it convicted him of the lesser included offense of involuntary manslaughter, and it also convicted him of being a felon in possession of a firearm. (§ 29800, subd. (a)(1).) In addition, it found an allegation true that he was a principal and was armed with a firearm in the commission of the offense, within the meaning of section 12022, subdivision (a)(1).

The trial court imposed the upper term of four years for involuntary manslaughter, a consecutive one year pursuant to section 12022, subdivision (a)(1), and a consecutive eight months (one-third the mid-term) for being a felon in possession of a firearm, for a total aggregate prison term of five years eight months.

DISCUSSION

I

Defendant contends the trial court had a sua sponte duty to instruct on the natural and probable consequences doctrine of aiding and abetting when it gave a modified CALCRIM No. 580 involuntary manslaughter instruction which identified trespass as an uncharged target offense. The parties agree we review defendant’s claim of instructional error de novo. (People v. Canizalez (2011) 197 Cal.App.4th 832, 850.)

A

With regard to Gonzalez’s death, the People prosecuted defendant as an aider and abettor. The trial court instructed the jury on aiding and abetting liability by giving CALCRIM Nos. 400 and 401. It told the jury, “A person may be guilty of a crime in two ways. One, he may have directly committed the crime. I will call that person the perpetrator. Or two, he may have aided and abetted a perpetrator who directly committed the crime. [¶] A person is guilty of a crime whether he committed it personally or aided and abetted the perpetrator.” Further, “[t]o prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and [¶] 4. The defendant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does, in fact, aid, facilitate, promote, encourage or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him an aider and abettor.”

With regard to involuntary manslaughter, the trial court instructed with CALCRIM No. 580 as follows: “When a person commits an unlawful killing, but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. [¶] The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without the intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter. [¶] The defendant committed involuntary manslaughter if: [¶] 1. The defendant committed a lawful act in an unlawful manner; [¶] 2. The defendant committed the act with criminal negligence; and [¶] 3. The defendant’s acts caused the death of another person. [¶] Criminal negligence involves more than ordinary carelessness, inattention or mistake in judgment. A person acts with criminal negligence when: [¶] 1. He acts in a reckless way that creates a high risk of death or great bodily injury; and [¶] 2. A reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with criminal negligence when the way he acts is so different from the way an ordinarily careful person would act in the same situation that his act amounts to disregard for human life or indifference to the consequences of that act. [¶] In order to prove murder or voluntary manslaughter, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life. If the People have not met either of these burdens, you must find the defendant not guilty of murder and not guilty of voluntary manslaughter.”

The trial court did not give the CALCRIM No. 403 natural and probable consequences doctrine instruction. The record does not show a request for that instruction or a request to modify the CALCRIM No. 580 instruction or an objection to the instructions given.

About two hours after deliberations began, the jury sent the trial court a note asking, “Regarding the involuntary manslaughter jury instruction, some jurors are confused about what constitutes a “lawful act” for [defendant] under these facts. What is the “lawful act”? Discussing the question with counsel, the trial court said McClary had requested that the CALCRIM. No. 580 instruction require a finding that the defendant committed a lawful act in an unlawful manner, but defendant did not present such a theory. The trial court determined that in light of the jury’s question, it had a sua sponte duty to give the full CALCRIM No. 580 instruction which required a finding that the defendant committed a crime or a lawful act in an unlawful manner, and to instruct on the elements of trespass. The People and defendant agreed that no lawful act was committed upon entry into the apartment. The parties further agreed that the trial court would instruct that an objective standard applied to involuntary manslaughter in order to avoid confusion between the conscious disregard required for murder and the criminal negligence required for involuntary manslaughter.

The trial court then reinstructed the jury with a modified CALCRIM No. 580 as follows (with changes in italics): “When a person commits an unlawful killing, but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. [¶] The difference between homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his actions created and consciously disregarded the risk. [¶] An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another and done with conscious disregard of that risk is voluntary manslaughter or murder. [¶] An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk of human life is involuntary manslaughter. [¶] The defendant committed involuntary manslaughter if: [¶] 1. The defendant committed a crime or a lawful act in an unlawful manner; [¶] 2. The defendant committed the crime or the act with criminal negligence; and [¶] 3. The defendant’s acts caused the death of another person. [¶] The parties agree that there is no lawful act committed upon entry into the house. [¶] Entering the home of another without permission is trespass. To prove a trespass, it must be proven: [¶] 1. The defendant willfully entered or remained in an apartment belonging to someone else; and [¶] 2. The defendant entered or remained without the consent of the person in lawful possession of the property [¶] Criminal negligence involves more than ordinary carelessness, inattention or mistake in judgment. A person acts with criminal negligence when: [¶] 1. He acts in a reckless way that creates a high risk of death or great bodily injury; and [¶] 2. A reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with criminal negligence when the way he acts is so different from the way an ordinarily careful person would act in the same situation that his act amounts to disregard for human life or indifference to the consequences of that act. This is an objective standard. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] In order to prove murder or voluntary manslaughter, . . . the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life. If the People have not met either of these burdens, you must find the defendant not guilty of murder and not guilty of voluntary manslaughter.”

B

We conclude any error in not instructing the jury on the natural and probable consequences doctrine of aiding and abetting was harmless beyond a reasonable doubt.

“Penal Code section 31, which governs aider and abettor liability, provides in relevant part, ‘All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed.’ An aider and abettor is one who acts ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation.] [¶] ‘ “A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [the target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.” ’ [Citations.] ‘Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.’ [Citation.] [¶] A nontarget offense is a ‘natural and probable consequence’ of the target offense if, judged objectively, the additional offense was reasonably foreseeable. [Citation.] The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. [Citation.] Rather, liability ‘ “is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.” ’ ” (People v. Chiu (2014) 59 Cal.4th 155, 161-162, fn. & italics omitted, superseded by statute as stated in People v. Lopez (2019) 38 Cal.App.5th 1087, 1103.) The natural and probable consequences doctrine is based on the policy that “ ‘aiders and abettors should be responsible for the criminal harms they have naturally, probably, and foreseeably put in motion.’ ” (Chiu, at p. 164, italics omitted.)

McClary and defendant entered another person’s home in the early morning hours, armed with a loaded shotgun and a handgun. McClary confronted Gonzalez, pointed the loaded shotgun at Gonzalez, with a finger on the trigger, and the shotgun discharged. Under these circumstances, a reasonable person in defendant’s position would or should have known that homicide was a reasonably foreseeable consequence of the armed trespass. (See People v. Lucas (1997) 55 Cal.App.4th 721, 732-733 [evidence supported conviction of murder as a natural and probable consequence of misdemeanor brandishing of a firearm]; People v. Luparello (1986) 187 Cal.App.3d 410, 443, 445 [homicide was a natural and probable consequence of a plan by armed men to extract information from an unwilling source]; People v. Rogers (1985) 172 Cal.App.3d 502, 515 [“ ‘the natural and probable consequences of any armed robbery are that someone may be hurt, someone may be shot, [an] innocent bystander may be hurt’ ”].) Additionally, by convicting defendant of involuntary manslaughter, the jury found criminal negligence, i.e., that a reasonable person would have known McClary’s reckless act created a high risk of death or great bodily injury, and causation, i.e., “that the death was a reasonably foreseeable, natural and probable consequence of the defendant’s act.” (People v. Butler (2010) 187 Cal.App.4th 998, 1009-1010; see id. at pp. 1006-1008 [conviction for involuntary manslaughter requires a finding of criminal negligence and proximate cause]; People v. Mehserle (2012) 206 Cal.App.4th 1125, 1141.) In other words, the jury necessarily found that the shooting of Gonzalez was a natural and probable consequence of the armed trespass. Under these circumstances, we conclude that any instructional error was harmless. (People v. Kobrin (1995) 11 Cal.4th 416, 428, fn. 8 [instructional error is harmless where the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant].)

II

Defendant also asserts that the trial court erred in omitting the natural and probable consequence language in CALCRIM No. 580.

The trial court omitted the following paragraph from the CALCRIM No. 580 instruction: “An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.”

The Bench Notes to CALCRIM No. 580 explain that the omitted paragraph should only be given if proximate causation is at issue. (Bench Notes to CALCRIM No. 580 (2016) p. 328.) In this case, because the jury was already instructed that it had to find that McClary’s acts caused Gonzalez’s death and there was no question that Gonzalez died of the shotgun wound, proximate causation was not at issue and there was no error in omitting the language.

Given our conclusion on the merits, we need not consider the associated ineffective assistance of counsel claim.

DISPOSITION

The judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

MURRAY, J.