Filed 9/18/15 P. v. Charfauros CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064666

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD235440)

ALEX CHARFAUROS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Kenneth

K. So, Judge. Affirmed as modified.



         Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Tami

Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Alex Charfauros guilty of 15 criminal offenses arising from an

incident on October 27, 2010, in which San Diego Police Officer Christopher Wilson was

shot and killed while forcing entry into a closed bedroom in Charfauros's apartment.

Specifically, Charfauros was found guilty of second degree murder of a police officer

(Pen. Code, §§ 187, subd. (a), 190, subd. (b) [count 1]);1 four counts of premeditated

attempted murder of a police officer (§§ 664, subd. (e), 187, subd. (a), 189 [counts 2-5]);

attempting to harm a police dog resulting in serious injury (§§ 600, subds. (a), (c), 664

[count 6]); four counts related to the possession or sale of methamphetamine (§ 182,

subd. (a)(1); Health & Saf. Code, §§ 11379 [count 15], 11370.1, subd. (a) [count 7],

11378 [count 9], 11366 [count 12]); resisting, delaying or obstructing a police officer

(§ 148, subd. (a)(1) [count 16]) and conspiracy to commit the same offense (§§ 148,

subd. (a)(1), 182, subd. (a)(1) [count 13]); conspiracy to commit an act injurious to the

public health or public morals or to pervert or obstruct justice or the due administration of

the laws (§ 182, subd. (a)(5) [count 14]); possession of a firearm by a felon (former

§ 12021, subd. (a)(1) [count 10]); and unlawful possession of ammunition (former

§ 12316, subd. (b)(1) [count 11]). In connection with several of the counts, the jury also

found that Charfauros was vicariously armed with a firearm (§ 12022, subd. (a)(1)).

       The trial court sentenced Charfauros to prison for an indeterminate term of 85

years to life, plus a determinate term of 11 years.




1      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                              2
       Charfauros contends (1) insufficient evidence supports the convictions for murder,

attempted murder and serious injury to a police dog; (2) the trial court prejudicially erred

in admitting certain testimony of law enforcement officers; (3) the trial court improperly

imposed an enhanced sentence for the attempted murder counts based on findings that the

attempted murders were willful, deliberate and premeditated, as that allegation was not

made in the indictment; (4) the trial court improperly imposed and stayed full-term

sentences on certain of the subordinate determinate terms, i.e., counts 7, 9, 10, 11, 12 and

14, instead of one-third the middle-term sentence; and (5) the trial court erred in the

amount of the laboratory fee imposed under Health and Safety Code section 11372.5,

subdivision (a).

       We conclude Charfauros's last two arguments have merit, but reject all of the

others. Accordingly, we modify the judgment to reflect corrected sentences on counts 7,

9, 10, 11, 12 and 14 and a corrected laboratory fee. As modified, we affirm the

judgment.2

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       In October 2010, Charfauros, who was on probation, lived in a two-bedroom

upstairs apartment in San Diego with Holim Lee and Lee's girlfriend, Lucky Xayasene.

Lee was wanted on a warrant for assault with a deadly weapon, and United States


2     Charfauros has also filed a petition for writ of habeas corpus (In re Alex
Charfauros, D066787). On October 21, 2014, we indicated that habeas petition would be
considered at the same time as this appeal. In an order concurrently filed with this
opinion, we have denied the petition for writ of habeas corpus.
                                              3
Marshal Service Deputy Jeffrey Roxas obtained information that Lee had been seen two

weeks earlier at Charfauros's apartment. In an attempt to ascertain Lee's whereabouts,

Deputy Roxas asked Charfauros's probation officer, Officer Bobby Burns, if they could

go together to search Charfauros's apartment.

      On October 27, 2010, around 10:00 p.m., a group of probation officers and United

States Marshals Service deputies arrived unannounced at Charfauros's apartment to

conduct a probation search. As the officers prepared to knock on the apartment door, the

door was opened from inside by a surprised Asian man. Officer Burns did not think the

man looked like Charfauros, and he therefore asked if Charfauros was there. The man

said, "Nope," and slammed and locked the door.

      The officers kicked in the locked door and began to move through the apartment.

A bedroom door at the end of the hallway was hanging off its hinges and had a large hole

in the middle. That bedroom was later determined to be Charfauros's room. The door to

the second bedroom was closed. That bedroom was later determined to be Lee and

Xayasene's bedroom.

      Meanwhile, an officer posted outside the apartment saw Charfauros trying to

climb down a ladder out of his bedroom window. The officer directed Charfauros to go

back inside the apartment, and Charfauros complied. A short time later, the officers

inside the apartment saw Charfauros's hand extending out of the doorway of his bedroom.

Charfauros eventually complied with orders to get down on the ground and crawl down

the hallway to the living room. Charfauros was handcuffed and taken out onto a landing

and then downstairs into a courtyard.

                                            4
       Based on Officer Burns's belief that Charfauros was not the person who opened

and then slammed the door, the officers believed someone else was likely still inside the

apartment, and they radioed for assistance from the San Diego Police Department. While

waiting for the police officers to arrive, several probation officers heard clicking or

crackling sounds coming from Lee and Xayasene's closed bedroom.

       After Charfauros was taken into custody, police officers, probation officers and

United States Marshals Service deputies repeatedly asked Charfauros to tell them who

was in the apartment and whether there were any weapons or drugs in the apartment.

Charfauros was questioned by several officers from the time he was handcuffed in the

apartment through the time that he was detained downstairs in the courtyard. Officers

who participated in or overheard the questioning of Charfauros testified that Charfauros

replied that he did not know who was in the apartment because he had been asleep before

the officers arrived. Several officers heard Charfauros state that there were no weapons

in the apartment.

       San Diego Police Department officers arrived on the scene and relieved the

probation officers and United States Marshals Service deputies who were posted in the

apartment. Police officers determined based on photographic identifications made by

some of the probation officers that the person who opened and then slammed the door to

the apartment was likely Lee, and that Lee was still in the apartment.

       Police officers decided to employ a police dog and to attempt to gain entry to Lee

and Xayasene's closed bedroom by kicking in the door. While San Diego Police Officer

Lorenzo Ruiz kicked in the door, San Diego Police Officers Michael Chinn, Travis

                                              5
Whipple, Christopher Wilson and Michael McLeod, along with his police dog Monty,

took positions in the apartment. Immediately after Officer Ruiz kicked open the bedroom

door, a volley of gunfire erupted from inside the bedroom. Officers McLeod, Chinn and

Whipple returned fire. Officer Wilson was fatally shot in the head. Police dog Monty

received a gunshot wound to his snout.

       During the shooting, Charfauros remained handcuffed in the downstairs courtyard,

still claiming that he did not know who was in the apartment and that no weapons were

present. One officer testified that during the shooting, Charfauros said, " 'Oh shit, oh shit.

I can't believe this is happening.' " Approximately 20 minutes had elapsed from the time

that Charfauros was taken out of the apartment in handcuffs to the eruption of gunfire

inside the apartment.

       The officers called for the assistance of the SWAT team, and the apartment was

eventually cleared. Lee and Xayasene were found dead in the bedroom, having both

committed suicide by gunshots to their heads. Two other people, Patrick Luangrath and

Melissa Ortiz were removed from the bedroom and taken into custody. There were

several firearms in Lee and Xayasene's bedroom, along with ammunition. In addition

over 80 grams of methamphetamine was found in the apartment. Lee's gun fired the shot

that killed Officer Wilson. Xayasene had a .45 caliber handgun in her hand, which was

determined to have also fired rounds. Charfauros's DNA was found on a shotgun that

was recovered from Lee and Xayasene's bedroom, and shotgun shells were located in

Charfauros's bedroom.



                                              6
       Charfauros was charged with the murder of Officer Wilson; the attempted murder

of Officers Ruiz, Chinn, Whipple and McLeod; causing serious injury to police dog

Monty; along with nine other charges, including resisting a police officer, charges related

to the methamphetamine and the firearms and ammunition found in the apartment, and

two other conspiracy charges.

       At trial, several officers testified that Charfauros's refusal to give information

about who was in the apartment and his statements that there were no weapons in the

apartment were important factors in how events developed. As the officers testified, had

Charfauros told them that firearms were present in the closed bedroom, they would have

called for a SWAT team response rather than attempting to enter the closed bedroom

themselves.

       Several officers also testified at trial that although Officer Burns did not believe at

the time of the incident that Charfauros was the person at the apartment door, upon

further review of photographic evidence, they concluded that it was Charfauros, not Lee,

who opened and then slammed the apartment door. The jury also heard evidence that

Charfauros was an active member of a criminal street gang and was selling

methamphetamine together with Lee. Videos from cell phones found in the apartment

showed Charfauros, Lee and Xayasene smoking methamphetamine in Lee and

Xayasene's bedroom on multiple occasions and established that there had been several

guns in plain sight in the apartment's living room and Lee and Xayasene's bedroom on

October 26, 2010, the day before the shooting.



                                              7
       The jury found Charfauros guilty of second degree murder of a police officer

(§§ 187, subd. (a), 190, subd. (b) [count 1]); four counts of willful, deliberate and

premeditated attempted murder of a police officer (§§ 664, subd. (e), 187, subd. (a), 189

[counts 2-5]); attempting to harm a police dog resulting in serious injury (§§ 600,

subds. (a), (c), 664 [count 6]); possessing methamphetamine while armed with a firearm

(Health & Saf. Code, § 11370.1, subd. (a) [count 7]); possession for sale of

methamphetamine (id., § 11378 [count 9]); maintaining a place for selling

methamphetamine (id., § 11366 [count 12]); conspiracy to sell or furnish

methamphetamine (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379

[count 15]); resisting, delaying or obstructing a police officer (§ 148, subd. (a)(1)

[count 16]); conspiracy to delay or obstruct a police officer (§§ 148, subd. (a)(1), 182,

subd. (a)(1) [count 13]); conspiracy to commit an act injurious to the public health or

public morals or to pervert or obstruct justice or the due administration of the laws

(§ 182, subd. (a)(5) [count 14]); possession of a firearm by a felon (former § 12021,

subd. (a)(1) [count 10]); and unlawful possession of ammunition (former § 12316,

subd. (b)(1) [count 11]). For several of the counts, the jury further found that that

Charfauros was vicariously armed with a firearm. (§ 12022, subd. (a)(1).)

       Charfauros was sentenced to prison for an indeterminate term of 85 years to life,

plus a determinate term of 11 years.




                                              8
                                             II

                                      DISCUSSION

A.     Substantial Evidence Supports the Conviction for the Assaultive Crimes

       Charfauros contends that his convictions for the second degree murder of Officer

Wilson, four counts of attempted murder and one count of seriously injuring a police dog

(collectively, the assaultive crimes) are not supported by substantial evidence. As we

will explain, we reject Charfauros's argument.

       In considering a challenge to the sufficiency of the evidence, "we review the entire

record in the light most favorable to the judgment to determine whether it contains

substantial evidence — that is, evidence that is reasonable, credible, and of solid value —

from which a reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt . . . . We presume every fact in support of the judgment the trier of fact could have

reasonably deduced from the evidence. . . . If the circumstances reasonably justify the

trier of fact's findings, reversal of the judgment is not warranted simply because the

circumstances might also reasonably be reconciled with a contrary finding. . . . 'A

reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' "

(People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)

       1.     The People's Theories of Charfauros's Criminal Liability for the Assaultive
              Crimes

       The People presented three theories of Charfauros's criminal liability for the

assaultive crimes: (1) Charfauros was guilty of conspiring with Lee and Xayasene to

resist, obstruct or delay a peace officer (as charged in count 13) and to commit an act


                                             9
injurious to the public health or morals or to pervert or obstruct justice and the due

administration of the laws (as charged in count 14),3 with the natural and probable

consequence of Charfauros's participation in that conspiracy being Lee and Xayasene's

commission of the assaultive crimes; (2) Charfauros aided and abetted Lee and Xayasene

in resisting, obstructing or delaying a peace officer (as charged in count 16), with the

natural probable consequence of those offenses being the commission of the assaultive

crimes; and (3) Charfauros aided and abetted the assaultive crimes committed by Lee and

Xayasene.4

       Charfauros contends that none of these theories of criminal liability for the

assaultive crimes are supported by substantial evidence. As we will explain, we find at

least two of these theories supported by substantial evidence, and we accordingly reject

Charfauros's challenge to the sufficiency of the evidence for the assaultive crimes.




3      Counts 13 and 14 relied on the same criminal conduct, namely the coconspirators'
resistance and obstruction of law enforcement officers on October 27, 2010. However, as
the prosecutor explained during closing argument, the charges in count 14 were intended
to be broader than the charges in count 13, because they also encompassed resistance and
obstruction of the United States Marshals Service deputies. (See § 830.1 [defining peace
officer].) As the criminal acts giving rise to both counts are the same, we discuss the
substantial evidence supporting those counts together.

4      The jury was instructed to consider whether Charfauros was guilty of first degree
murder or second degree murder, and it returned a verdict of second degree murder.
After the trial in this case, our Supreme Court established that "a defendant cannot be
convicted of first degree premeditated murder under the natural and probable
consequences doctrine." (People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu).) As
Charfauros was convicted of second degree murder, Chiu's holding does not impact
Charfauros's conviction.
                                             10
       2.     Charfauros's Criminal Liability for the Assaultive Crimes as a Natural and
              Probable Consequence of a Conspiracy to Resist, Delay or Obstruct a
              Peace Officer or Obstruct Justice as Charged in Counts 13 and 14

       We first discuss whether substantial evidence supports Charfauros's conviction for

the assaultive crimes on the theory that the assaultive crimes were a natural and probable

consequence of the crime of conspiracy to resist, delay or obstruct a peace officer or

obstruct justice as charged in counts 13 and 14.

       The question of whether substantial evidence supports a criminal conviction for

the assaultive crimes under this theory breaks down into two distinct issues. The first

issue is whether substantial evidence supports a finding that Charfauros committed the

crimes charged in counts 13 and 14, in that he conspired to resist, delay or obstruct law

enforcement officers. Second, assuming that Charfauros was properly convicted of the

commission of the conspiracy to resist, delay or obstruct the law enforcement officers as

charged in counts 13 and 14, the next issue is whether substantial evidence supports a

finding that the assaultive crimes were a natural and probable consequence of that

conspiracy. We examine each issue in turn.

              a.     Substantial Evidence Supports a Finding That Charfauros
                     Committed the Crimes of Conspiring to Resist, Delay or Obstruct
                     Law Enforcement Officers as Charged in Counts 13 and 14

       " 'A conviction of conspiracy requires proof that the defendant and another person

had the specific intent to agree or conspire to commit an offense, as well as the specific

intent to commit the elements of that offense, together with proof of the commission of

an overt act 'by one or more of the parties to such agreement' in furtherance of the

conspiracy.' " (People v. Russo (2001) 25 Cal.4th 1124, 1131.) Here the underlying

                                             11
substantive offense for the conspiracy in count 13 was the crime of resisting, delaying or

obstructing a peace officer in the commission of his or her duties in violation of

section 148. The crime is committed if " '(1) the defendant willfully resisted, delayed, or

obstructed a peace officer, (2) when the officer was engaged in the [lawful] performance

of his or her duties, and (3) the defendant knew or reasonably should have known that the

other person was a peace officer engaged in the performance of his or her duties.' "

(People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759.) The underlying substantive

offense for the conspiracy in count 14 was the crime of perverting or obstructing justice,

or the due administration of the laws in violation of section 182, subdivision (a)(5). That

substantive offense includes "anything done by a person in hindering or obstructing an

officer in the performance of his official obligations." (Lorenson v. Superior Court

(1950) 35 Cal.2d 49, 59.)

       The People's theory of Charfauros's liability for counts 13 and 14 was that

Charfauros specifically agreed with Lee and Xayasene that if law enforcement officers

ever attempted to enter the apartment, they would violently resist. As alleged in the

indictment and set forth in the jury instructions, the People identified several overt acts

by Charfauros, Lee and Xayasene in support of the conspiracy, including Charfauros's

slamming and locking of the apartment door when he encountered the officers at the

door; Charfauros's statement to the officers that no weapons were present in the

apartment, which served to lead the officers into an ambush situation; and Lee and

Xayasene's subsequent shooting at the officers after the bedroom door was kicked open.

As it is beyond dispute that ample evidence supports a finding that Charfauros, Lee and

                                             12
Xayasene committed those overt acts, the only disputed issue is whether substantial

evidence supports a finding that Lee, Xayasene and Charfauros specifically entered into a

conspiratorial agreement to violently resist if law enforcement officers came to the

apartment. We therefore turn to that issue.

       Although there is no direct evidence of an agreement between Lee, Xayasene and

Charfauros to violently resist law enforcement officers, an agreement between

coconspirators may be proven through circumstantial evidence. (People v. Homick

(2012) 55 Cal.4th 816, 870 [an agreement between coconspirators " 'must often be proved

circumstantially' "].) " 'The existence of a conspiracy may be inferred from the conduct,

relationship, interests, and activities of the alleged conspirators before and during the

alleged conspiracy.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.) Here, the

record contains sufficient circumstantial evidence to support a finding that Lee, Xayasene

and Charfauros agreed to violently resist if law enforcement officers ever entered the

apartment.

       Initially, we observe that the evidence showed that Lee, Xayasene and Charfauros

had good reason to expect that it might be necessary for them to resist law enforcement.

The evidence established that Lee and Charfauros were committing the crime of selling

methamphetamine out of the apartment, and Lee was a wanted fugitive. Charfauros, Lee

and Xayasene all knew that there was a possibility that police would enter the apartment

at some point. Specifically, Charfauros was on probation with a waiver of his Fourth

Amendment right to be free from warrantless searches of his residence, and his probation

officer had recently spoken to him on the telephone indicating that he intended to visit

                                              13
Charfauros's residence. Further, the jury heard testimony about a recent incident at the

apartment in which Charfauros, Lee and Xayasene were concerned that police may have

been outside. With Charfauros's and Lee's awareness of the risk that police would enter

the apartment, discover their drug-related activity and take Lee into custody on his

warrant, a finder of fact reasonably could draw the inference that Lee, Xayasene and

Charfauros considered and discussed how they would respond if law enforcement

officers arrived at the apartment. Further, the fact that Lee, Xayasene and Charfauros

kept multiple firearms in the apartment is circumstantial evidence that they had decided

to respond to the risk of law enforcement arriving at the apartment by arming themselves

and making the necessary preparations to violently resist.

       The strongest indication that Lee, Xayasene and Charfauros agreed to violently

resist law enforcement comes from a statement that Charfauros made to family members

in a telephone call from jail two weeks after the shooting. During that conversation,

Charfauros reiterated several times that he was "supposed to be dead with" Lee, and

stated that it was "a thin line between what I chose that day" and what could have

happened. Charfauros's statement about what was "supposed to" happen supports an

inference that Charfauros and Lee had a preconceived plan to violently resist law

enforcement officers together. Further, as the People point out, at trial the jury was

shown evidence of a large sign in Lee and Xayasene's bedroom stating, "We must protect

this house," and Charfauros repeated those words in a video found on a cell phone in the

apartment. The fact that Lee, Xayasene and Charfauros were associated with the phrase

"We must protect this house" on a sign in the apartment is further evidence of an

                                             14
agreement to engage in violence to protect the apartment if law enforcement entered.

Also supporting a finding that Lee and Charfauros had agreed to support each other in

resisting law enforcement is the fact that Charfauros was recorded in a conversation

while in custody explaining that he "had [Lee's] back."

       In addition, Charfauros's act of slamming the apartment door on the law

enforcement officers and falsely stating that there were no weapons in the apartment is

conduct consistent with an agreement to resist. A reasonable finder of fact could view

that conduct as further circumstantial evidence that Charfauros was acting according to a

preconceived plan with Lee and Xayasene to resist law enforcement officers if they

arrived at the apartment.

       Charfauros contends that his attempted escape out of the window and eventual

surrender shows that that he was not acting according to a plan to violently resist.

Although that is one inference that could be drawn from those facts, it is not the only

reasonable inference. An equally valid interpretation of the facts is that because all of the

guns were in Lee and Xayasene's closed bedroom when law enforcement officers arrived,

with no firearms in Charfauros's bedroom, Charfauros did not have immediate access to

weapons for violent resistance, and thus he carried out the agreement to violently resist

by initially slamming the door on the officers and then giving them false information that

there were no guns in the apartment, which led the officers into an unexpected violent

ambush by Lee and Xayasene.

       In sum, based on the circumstantial evidence, substantial evidence supports

findings that (1) Lee, Xayasene and Charfauros entered into an agreement with the intent

                                             15
to violently resist law enforcement officers if they arrived at the apartment; and (2) Lee,

Xayasene and Charfauros engaged in several overt acts in support of that agreement.

Accordingly, substantial evidence supports the finding that Charfauros took part in a

conspiracy to resist law enforcement officers as charged in counts 13 and 14.5

              b.     Substantial Evidence Supports a Finding That the Assaultive Crimes
                     Were a Natural and Probable Consequence of the Conspiracy to
                     Resist, Delay or Obstruct Law Enforcement Officers

       Having determined that substantial evidence supports a finding that Charfauros

took part in a conspiracy to resist law enforcement, the next issue is whether the

assaultive crimes were a natural and probable consequence of that conspiracy.

       Charfauros may be found criminally liable for the natural and probable

consequences of participation in the conspiracy to resist law enforcement under the well-

established rule " 'that each member of a conspiracy is criminally responsible for the acts

of fellow conspirators committed in furtherance of, and which follow as a natural and

probable consequence of, the conspiracy, even though such acts were not intended by the

conspirators as a part of their common unlawful design.' " (People v. Guillen (2014) 227

Cal.App.4th 934, 998.)




5      Although not discussing the argument under a separate argument heading in his
appellate brief, in the course of discussing his claim that insufficient evidence supports
his conviction for the assaultive crimes, Charfauros also asserts that his convictions for
conspiracy in counts 13 and 14 are not supported by substantial evidence and should be
reversed. We reject that argument because, as we have explained, substantial evidence
supports a finding that Charfauros took part in a conspiracy to resist, delay or obstruct
law enforcement as charged in counts 13 and 14.

                                             16
       "A nontarget offense is a 'natural and probable consequence' of the target offense

if, judged objectively, the additional offense was reasonably foreseeable." (Chiu, supra,

59 Cal.4th at p. 161, italics added.) "[T]he issue does not turn on the defendant's

subjective state of mind, but depends upon whether, under all of the circumstances

presented, a reasonable person in the defendant's position would have or should have

known that the charged offense was a reasonably foreseeable consequence . . . ." (People

v. Nguyen (1993) 21 Cal.App.4th 518, 531 (Nguyen).) "For a criminal act to be a

'reasonably foreseeable' or a 'natural and probable' consequence of another criminal

design it is not necessary that the collateral act be specifically planned or agreed upon,

nor even that it be substantially certain to result from the commission of the planned act.

For example, murder is generally found to be a reasonably foreseeable result of a plan to

commit robbery and/or burglary despite its contingent and less than certain potential."

(Id. at p. 530.) " '[T]o be reasonably foreseeable "[t]he consequence need not have been a

strong probability; a possible consequence which might reasonably have been

contemplated is enough." ' " (People v. Medina (2009) 46 Cal.4th 913, 920.) "A

reasonably foreseeable consequence is to be evaluated under all the factual circumstances

of the individual case . . . and is a factual issue to be resolved by the jury." (Ibid., citation

omitted.)6




6      Specifically in the context of a conspiracy as the target crime, the application of
the natural and probable consequences is limited by the principle that " ' "the act must be
the ordinary and probable effect of the wrongful act specifically agreed on, so that the
connection between them may be reasonably apparent, and not a fresh and independent
                                               17
       Here, the assaultive crimes were a reasonably foreseeable consequence of the

conspiracy to resist law enforcement officers as charged in counts 13 and 14. As we have

explained, the evidence supports a finding that Lee and Charfauros agreed to violently

resist law enforcement officers, and in furtherance of that conspiracy they took the step of

keeping several firearms in the apartment. Under any objective standard, it is reasonably

foreseeable that one of the consequences of a violent resistance to law enforcement

officers by persons armed with firearms is that law enforcement officers, including any

police dogs present, are going to be shot at and possibly injured or killed. Indeed, the

murder and attempted murder of a police officer is one of the most obvious and easily

contemplated consequences of offering violent resistance with firearms when law

enforcement officers force entry into a residence.

       Charfauros contends that the natural and probable consequences doctrine does not

apply here because the underlying target offense was " 'trivial.' " For this argument,

Charfauros relies on our Supreme Court's observation that "[m]urder, for instance, is not

the 'natural and probable consequence' of 'trivial' activities. To trigger application of the

'natural and probable consequences' doctrine, there must be a close connection between

the target crime . . . and the offense actually committed." (Prettyman, supra, 14 Cal.4th

at p. 269.) According to Charfauros, the offense of conspiracy to resist law enforcement

was a trivial offense compared to the assaultive crimes, and thus there was not a

sufficiently close connection for the application of the natural and probable consequences

product of the mind of one of the confederates outside of, or foreign to, the common
design." ' " (People v. Prettyman (1996) 14 Cal.4th 248, 260-261 (Prettyman).)

                                              18
doctrine. We disagree. Under no reasonable interpretation can a conspiracy to violently

resist law enforcement by using firearms be considered a trivial offense; instead it is a

serious and violent offense with a close connection to the crimes of murder, attempted

murder and the serious injury to a police dog that occurred here.

       Charfauros further argues that the natural and probable consequence doctrine does

not apply because "an independent intervening cause cut off any such liability."

Specifically, Charfauros contends that the police officers' decision to kick in the door was

an independent intervening cause. " 'In general, an "independent" intervening cause will

absolve a defendant of criminal liability. . . . However, in order to be "independent" the

intervening cause must be "unforeseeable . . . an extraordinary and abnormal occurrence,

which rises to the level of an exonerating, superseding cause." . . . On the other hand, a

"dependent" intervening cause will not relieve the defendant of criminal liability. "A

defendant may be criminally liable for a result directly caused by his act even if there is

another contributing cause. If an intervening cause is a normal and reasonably

foreseeable result of defendant's original act the intervening act is 'dependent' and not a

superseding cause, and will not relieve defendant of liability." ' " (People v. Cervantes

(2001) 26 Cal.4th 860, 871, citations omitted (Cervantes).)

       Based on this principle, Charfauros argues that the police officers' decision to kick

in the bedroom door, putting themselves in danger of an ambush, was unreasonable and

possibly negligent in light of the officers' suspicion that an armed suspect was inside, and

therefore the police officers' actions were an independent intervening cause of the

assaultive crimes. However, in determining whether an independent intervening cause

                                             19
absolves a defendant of criminal liability, it is not relevant whether police officers acted

reasonably and without any contributory negligence. (People v. Brady (2005) 129

Cal.App.4th 1314, 1326 [" 'The test . . . is not whether the officers acted reasonably but

rather whether defendant realized or should have realized that the officers would respond

as they did.' "].) Instead, the " '[t]he task of the jury is to determine whether the officers'

response was so extraordinary that it was unforeseeable, unpredictable and statistically

extremely improbable.' " (Id. at p. 1327.) Here the officers' actions in response to the

situation were not " ' "unforeseeable" ' " and " ' "an extraordinary and abnormal

occurrence." ' " (Cervantes, supra, 26 Cal.4th at p. 871.) There is nothing unusual,

abnormal or extraordinary about police officers kicking in a door to a closed bedroom

when suspects refuse to come out as demanded by law enforcement. Indeed, such a

course of events is to be expected as a result of resistance to law enforcement directives

to emerge from a barricaded space.

       In sum, as substantial evidence supports a finding that (1) Charfauros took part in

a conspiracy to resist law enforcement as charged in counts 13 and 14; and (2) the murder

of Officer Wilson, the attempted murder of the four other officers and the serious injury

to Monty were a natural and probable consequence of the conspiracy to resist law

enforcement, substantial evidence supports Charfauros's convictions for the assaultive

crimes under the People's first theory of criminal liability, i.e., that those crimes were the

natural and probable consequence of Charfauros's participation in a conspiracy to resist

law enforcement.



                                               20
       3.     Charfauros's Criminal Liability for the Assaultive Crimes Is a Natural and
              Probable Consequence of Resisting, Delaying or Obstructing a Peace
              Officer as Charged in Count 16 Under an Aiding and Abetting Theory

       We next discuss the substantial evidence supporting the People's second theory of

Charfauros's criminal liability for the assaultive crimes, namely that Charfauros aided and

abetted Lee and Xayasene in resisting, obstructing or delaying a peace officer (as charged

in count 16), leading to the assaultive crimes as a natural probable consequence.

              a.     Substantial Evidence Supports a Finding That Charfauros Aided and
                     Abetted Lee and Xayasene in Resisting, Delaying or Obstructing
                     Peace Officers as Charged in Count 16

       The first question is whether the record contains substantial evidence that

Charfauros aided and abetted Lee and Xayasene in resisting, delaying or obstructing

peace officers as charged in count 16.7

       " '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." ' " (People v. Smith (2014) 60 Cal.4th 603, 611

(Smith).) " '[A] person who aids and abets the commission of a crime is a "principal" in

the crime, and thus shares the guilt of the actual perpetrator.' " (Ibid.) As opposed to the


7       We note that there is also ample evidence that Charfauros directly committed the
crime of resisting a peace officer as charged in count 16 by slamming the door and trying
to escape out of the window. However, for the purpose of establishing Charfauros's
vicarious criminal liability for the assaultive crimes, the People focused on the theory that
Charfauros aided and abetted Lee and Xayasene's resistance of a peace officer and was
therefore responsible for the natural and probable consequences of their resistance. We
therefore focus our discussion on the evidence supporting Charfauros's aiding and
abetting Lee and Xayasene's resistance of the peace officers rather than Charfauros's
direct resistance.

                                             21
required element of an agreement to resist law enforcement in the conspiracy counts that

we have discussed above, "[a] person may aid and abet a criminal offense without having

agreed to do so prior to the act." (Nguyen, supra, 21 Cal.App.4th at p. 531.) Thus, in

determining whether substantial evidence supports Charfauros's conviction for aiding and

abetting Lee and Xayasene's resistance to the peace officers, we focus on Charfauros's

acts in support of Lee and Xayasene's resistance, without examining whether the parties

reached any prior agreement that they would help each other violently resist law

enforcement.

       Here, substantial evidence supports a finding that Charfauros aided and abetted

Lee and Xayasene in resisting the police officers at the apartment with knowledge of Lee

and Xayasene's criminal purpose and with the intent to facilitate them. First, based on the

fact Charfauros opened the front door to the apartment before the officers knocked on the

door, jurors reasonably could infer that Charfauros was awake before the officers arrived

and knew that his roommates Lee and Xayasene were home. Further, because

Charfauros was present as Lee and Xayasene ignored law enforcement's repeated orders

for the occupants of the bedroom to come out, a reasonable juror could also infer that

Charfauros knew that Lee and Xayasene had decided to resist the law enforcement

officers instead of complying and being taken into custody. Next, Charfauros engaged in

conduct that specifically aided and abetted Lee and Xayasene's resistance. Specifically,

Charfauros refused to tell the officers that Lee and Xayasene were in the apartment, and

Charfauros lied about there not being any weapons in the bedroom with full knowledge

that there were actually numerous firearms in Lee and Xayasene's bedroom. Substantial

                                            22
evidence therefore supports a finding that by providing false information to law

enforcement about the presence of weapons and refusing to confirm that Lee and

Xayasene were in the apartment, Charfauros aided and abetted Lee and Xayasene in

mounting a violent and unexpected ambush of law enforcement officers when they

kicked in the bedroom door.

              b.     Substantial Evidence Supports a Finding That the Assaultive Crimes
                     Were a Natural and Probable Consequence of Charfauros's Aiding
                     and Abetting Lee and Xayasene's Resistance of Peace Officers

       The next issue is whether substantial evidence supports a finding that the

assaultive crimes were a natural and probable consequence of Charfauros's aiding and

abetting of Lee and Xayasene's resistance of the peace officers.

       The natural and probable consequences doctrine applies to a defendant who aids

and abets another in committing a crime. "An aider and abettor is guilty not only of the

intended, or target, crime but also of any other crime a principal in the target crime

actually commits (the nontarget crime) that is a natural and probable consequence of the

target crime." (Smith, supra, 60 Cal.4th at p. 611.) As under the natural and probable

consequence doctrine as we have explained it in the context of the conspiracy claims,

"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." ' " (Ibid., italics added.)

       Here, a reasonable person in Charfauros's position should have known that a

violent gun battle resulting in the murder of Officer Wilson, the attempted murder of the

four other officers and serious injury to police dog Monty, was a reasonably foreseeable

                                             23
consequence of Lee and Xayasene's resistance to the peace officers who were trying to

extract them from the apartment. A reasonable person in Charfauros's position, with his

knowledge that firearms were present in the apartment, would know that there was a

significant risk of a deadly gun battle as a result of Lee and Xayasene's refusal to come

out of the bedroom. As we have explained in the context of the conspiracy claims, a

reasonable person should know that police officers are likely to force entry into a room to

apprehend barricaded suspects, and that when firearms are involved, the incident may

turn violent and deadly. Therefore, substantial evidence supports a finding that the

assaultive crimes were a natural and probable consequence of Lee and Xayasene's

resistance of peace officers, which Charfauros aided and abetted.8

       In sum, having concluded that at least two of the People's theories of Charfauros's

criminal liability for the assaultive crimes are supported by substantial evidence, we

reject Charfauros's challenge to the sufficiency of the evidence to support the conviction

on the assaultive crimes in counts 1 through 6.9



8      To the extent that Charfauros contends (1) that the police officers' decision to
force entry into the bedroom was an independent intervening cause of the assaultive
crimes cutting off his liability for the natural and probable consequences of his aiding and
abetting Lee and Xayasene's resistance of the peace officers, or (2) that the target crime
of aiding and abetting Lee and Xayasene's resistance of peace officers was too "trivial" to
support the application of the natural and probable consequences doctrine, those
arguments fail for the same reasons we explained in the context of the conspiracy claims
charged in counts 13 and 14.

9      As we have explained, the People also proceeded under a third theory that
Charfauros was guilty of the assaultive crimes because he directly aided and abetted Lee
and Xayasene in committing those crimes. We need not, and do not, consider whether
substantial evidence would support Charfauros's liability for the assaultive crimes on that
                                            24
B.     The Trial Court Did Not Err in Admitting Evidence of What Actions the Police
       Officers Would Have Taken Had Charfauros Informed Them That Weapons Were
       Present in the Apartment

       We next consider Charfauros's contention that the trial court prejudicially erred in

admitting police officer testimony about the actions that they would have taken had

Charfauros been truthful about the presence of weapons in the apartment.

       During trial several police officers and one deputy of the United States Marshals

Service testified that a SWAT team would have been called in to extract Lee and

Xayasene from the bedroom had Charfauros told them that there were weapons in the

apartment. Specifically, as some of the police officers testified, it is department policy to

call for a SWAT team response if officers obtain information that barricaded suspects

possess firearms.

       Charfauros contends that the trial court erred in admitting this evidence because

(1) it was speculative; (2) it was irrelevant; and (3) any relevance was outweighed by the

risk of undue prejudice.

       1.     The Appellate Challenge to the Admission of the Evidence Is Forfeited
              Because Defense Counsel Did Not Object

       We first consider whether Charfauros adequately preserved these arguments by

making evidentiary objections during trial. "Evidence Code section 353, subdivision (a)

allows a judgment to be reversed because of erroneous admission of evidence only if an

objection to the evidence or a motion to strike it was 'timely made and so stated as to

make clear the specific ground of the objection.' Pursuant to this statute,

theory as well, as we have determined that substantial evidence supports Charfauros's
conviction for the assaultive crimes on two other theories.
                                             25
' ". . . 'defendant's failure to make a timely and specific objection' on the ground asserted

on appeal makes that ground not cognizable." ' " (People v. Demetrulias (2006) 39

Cal.4th 1, 20.) On appeal, a party "may not argue that the court should have excluded the

evidence for a reason different from his trial objection." (People v. Partida (2005) 37

Cal.4th 428, 435.)

       Defense counsel objected only during the testimony of the first witness who was

asked about what actions law enforcement would have taken had Charfauros stated that

firearms were present in the apartment. Specifically, during the testimony of Deputy

United States Marshal Michael Banez, the prosecutor asked Deputy Banez what he meant

when he told Charfauros immediately after the shooting that " 'none of this would have

happened' " if Charfauros had revealed that there were firearms in the apartment.

Defense counsel objected on relevancy grounds. The trial court did not sustain the

objection on that ground, but then interposed its own objection that the question called

for speculation, and it sustained its own objection. At a break in testimony, the

prosecutor asked the trial court to reconsider its evidentiary ruling. The trial court

explained that the question "What would you have done?" is speculative, but that the

evidence that the prosecutor sought to elicit was relevant. The trial court suggested that

although the question, as phrased, was speculative, "there may be alternate ways" to ask

the question.

       During the prosecutor's continued examination of Deputy Banez, the prosecutor

returned to the issue but asked the question in a different way, inquiring why Deputy

Banez told Charfauros that " 'none of this would have happened' " if Charfauros had

                                              26
revealed there were firearms in the apartment. Defense counsel objected on relevancy

grounds, and the trial court overruled the objection. At no point did defense counsel

interpose an objection on the ground that the question called for speculation. Deputy

Banez replied that he made the statement because "the callout would have been

different[]. It would have ended differently" if Charfauros told him guns were in the

apartment. The prosecutor then followed up by asking "how" it would have ended

differently. Defense counsel did not object, and Deputy Banez explained that he would

have called for SWAT team assistance.

       Following Deputy Banez's testimony, six police officers testified — sometimes at

significant length — that they would have called for a SWAT team response had they

obtained information that weapons were present in the apartment. The prosecutor's

questions that elicited the officers' testimony generally inquired what the officers would

have done differently had Charfauros told them that firearms were present. Defense

counsel made no objection to any of the testimony.

       Charfauros acknowledges that he did not object to the six officers' testimony about

what they would have done differently had they known that firearms were present.

However, he contends that he has not forfeited his appellate challenge to the admission of

that evidence because he made objections to the testimony of Deputy Banez on that same

subject, and the objection was sustained, making any further objection futile. We

disagree. "It has long been the rule that '[where] a party has once formally taken

exception to a certain line or character of evidence, he is not required to renew the

objection at each recurrence thereafter of the objectionable matter arising at each

                                             27
examination of other witnesses; and his silence will not debar him from having the

exception reviewed.' " (People v. Antick (1975) 15 Cal.3d 79, 95.) However, defense

counsel's objection to the prosecutor's question about why Deputy Banez told Charfauros

that " 'none of this would have happened' " if Charfauros had revealed there were

firearms in the apartment is not an objection to the same line of questioning or the same

evidence implicated by the police officers' testimony. The police officers were not asked

why Deputy Banez stated that " 'none of this would have happened' " if they knew

firearms were present, or even whether they agreed with that statement by Deputy Banez.

Instead, the officers were asked what they would have done differently if Charfauros had

told them there were firearms in the apartment. Indeed, when a similar question was

asked of Deputy Banez, inquiring how things would have turned out differently if he

knew firearms were present, defense counsel did not object.

       In sum, as the only objection made by defense counsel was to a question about

why Deputy Banez made a particular statement to Charfauros, and defense counsel never

objected to the questioning of any witness, even Deputy Banez, about how officers would

have proceeded differently had Charfauros revealed that firearms were present,

Charfauros has not preserved an appellate argument that the evidence about what police

officers would have done differently was improperly admitted.

       Further, the only objection that defense counsel interposed during the relevant

portion of Deputy Banez's testimony was based on relevancy. Defense counsel made no

objection that the evidence was unduly speculative or should be excluded because its

prejudicial nature outweighed its relevance under Evidence Code section 352. The lack

                                            28
of any objection on the basis of speculation or Evidence Code section 352, even during

Deputy Banez's testimony, provides an additional basis for our conclusion that

Charfauros has forfeited his appellate challenge that the evidence should have been

excluded on those grounds.

       2.     Charfauros Has Not Established That Defense Counsel Was Ineffective

       Charfauros argues that in the event we conclude that he has forfeited his appellate

challenge to the admission of the evidence about what the police officers would have

done differently had they known that firearms were present, his conviction should be

reversed on the ground that he received ineffective assistance of counsel because defense

counsel failed to object to the admission of the evidence.

       "Under both the Sixth Amendment to the United States Constitution and article I,

section 15, of the California Constitution, a criminal defendant has the right to the

assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) A defendant

claiming ineffective assistance of counsel has the burden to show: (1) counsel's

performance was deficient, falling below an objective standard of reasonableness under

prevailing professional norms; and (2) the deficient performance resulted in prejudice.

(Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); Ledesma, at pp. 216,

218.) Prejudice is shown when "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." (Strickland, at p. 694.) Further "[r]eviewing courts reverse convictions on

direct appeal on the ground of incompetence of counsel only if the record on appeal

                                             29
demonstrates there could be no rational tactical purpose for counsel's omissions."

(People v. Lucas (1995) 12 Cal.4th 415, 442; see People v. Anderson (2001) 25 Cal.4th

543, 569.) "The decision whether to object to the admission of evidence is 'inherently

tactical,' and a failure to object will rarely reflect deficient performance by counsel."

(People v. Castaneda (2011) 51 Cal.4th 1292, 1335.)

       As we will explain, Charfauros has not established that defense counsel performed

below the standard of care by failing to object to questions about what the police officers

would have done differently had they known that firearms were present, as defense

counsel could reasonably have determined that the questions were not objectionable.

Further, because the questions were not objectionable, Charfauros cannot establish that

he was prejudiced by defense counsel's failure to object.

       Charfauros's first contention is that defense counsel should have objected on the

ground of relevancy to the questions about what the police officers would have done

differently had Charfauros revealed that firearms were present in the apartment.

However, evidence of how the police officers would have reacted had Charfauros

revealed that weapons were present was centrally relevant to a main issue in the case.

Specifically, as we have described, one of the People's central theories of Charfauros's

criminal liability for the assaultive crimes was that those crimes were a natural and

probable consequence of Charfauros's participation in Lee and Xayasene's resistance of

the law enforcement officers, either as part of a conspiracy or as an aider and abettor. For

his part in that resistance, Charfauros made false statements to law enforcement that no

weapons were present in the apartment. Evidence that the police officers would not have

                                              30
kicked in the bedroom door had Charfauros revealed the presence of weapons was highly

relevant to establishing that, as a natural and probable consequence of Charfauros's

actions, the police officers kicked in the bedroom door rather than calling in a SWAT

team, leading to the assaultive crimes, including the murder of Officer Wilson and the

serious injury to Monty.

       Charfauros puts misplaced reliance on People v. Schmies (1996) 44 Cal.App.4th

38, 55-56, to support his argument that it was irrelevant whether the officers would have

done anything differently had they known there were firearms in the apartment. Schmies

held that in applying the natural and probable consequences doctrine, it is irrelevant

whether police officers violated a departmental policy through their actions, as the issue

is "not whether the officers acted reasonably but rather whether defendant realized or

should have realized that the officers would respond as they did." (Id. at p. 55.) Here,

however, questions about what the officers would have done differently had they known

there were firearms in the apartment were not directed at eliciting testimony about a

failure to follow police department policy. On the contrary, the officers explained that

they would have taken a different course of action, in accordance with established policy,

had Charfauros told them the truth about the firearms. Accordingly, Schmies is not

applicable.

       Charfauros's second contention is that defense counsel should have objected that

the prosecutor's questions to the police officers called for speculation, in that the officers

were required to speculate about what they would have done differently had Charfauros

revealed there were weapons in the apartment. (See People v. Babbitt (1988) 45 Cal.3d

                                              31
660, 682 [evidence may be excluded as irrelevant when it produces only speculative

inferences regarding a disputed fact]; People v. Gonzales (2012) 54 Cal.4th 1234, 1260

[" 'Speculative inferences are, of course, irrelevant.' "].) The objection would have lacked

merit had defense counsel made it. As the content of the officers' responses shows, the

officers did not infer what they would have done differently based on speculation.

Instead, as a sound basis for their testimony the officers described a departmental policy

which requires that a SWAT team be called in when barricaded suspects are known to

have firearms.

       Charfauros's final contention is that defense counsel should have objected to the

testimony about what the officers would have done differently on the ground that

admission was barred under Evidence Code section 352. Pursuant to Evidence Code

section 352, "[a] trial court may exclude otherwise relevant evidence when its probative

value is substantially outweighed by concerns of undue prejudice, confusion, or

consumption of time." (People v. Scott (2011) 52 Cal.4th 452, 490.) " ' "The 'prejudice'

referred to in Evidence Code section 352 applies to evidence which uniquely tends to

evoke an emotional bias against the defendant as an individual and which has very little

effect on the issues. In applying section 352, 'prejudicial' is not synonymous with

'damaging.' " ' " (Id. at p. 491.) Here, as we have explained, the evidence had substantial

probative value, as it was relevant to establish Charfauros's criminal liability under the

natural and probable consequences doctrine. Further, Charfauros has not identified any

undue prejudice within the meaning of Evidence Code section 352. Although testimony

that the police officers would have called in a SWAT team might be damaging to

                                             32
Charfauros's defense because it supports the People's case on the natural and probable

consequences doctrine, it is not the type of evidence likely to evoke an emotional bias

against Charfauros.

       In sum, because the objections that Charfauros contends defense counsel should

have made were without merit and were unlikely to have been sustained, Charfauros has

not met his burden of establishing that defense counsel's performance was deficient or

that he was prejudiced by defense counsel's failure to object. We accordingly reject

Charfauros's claim of ineffective assistance of counsel based on defense counsel's failure

to object to the officers' testimony.

C.     Charfauros's Challenge to the Enhanced Sentence for the Attempted Murder
       Counts on the Ground That the Indictment Did Not Allege That the Attempted
       Murders Were Willful, Deliberate and Premeditated

       We next consider Charfauros's contention that because the indictment did not

allege that the attempted murders of the four police officers were willful, deliberate and

premeditated, the enhanced 15-year-to-life sentences for those counts violated

Charfauros's statutory and due process rights.

       1.     Background

       In counts 2 through 5, Charfauros was charged with the attempted murder of

Officers McLeod, Chinn, Whipple and Ruiz. The indictment alleged that Charfauros was

criminally liable under section 664, subdivision (e), which provides that "if attempted

murder is committed upon a peace officer . . . and the person who commits the offense

knows or reasonably should know that the victim is a peace officer . . . , the person guilty



                                             33
of the attempt shall be punished by imprisonment in the state prison for life with the

possibility of parole." (§ 664, subd. (e).)

       Section 664, subdivision (f) provides for an enhanced sentence when a defendant

is found guilty of attempting to murder a peace officer, "and it is also charged and

admitted or found to be true by the trier of fact that the attempted murder was willful,

deliberate, and premeditated." (§ 664, subd. (f).) If that finding is made, "the person

guilty of the attempt shall be punished by imprisonment in the state prison for 15 years to

life" and "shall not be released prior to serving 15 years' confinement." (Ibid.) Here, the

indictment did not allege that the attempted murders were willful, deliberate and

premeditated and did not identify section 664, subdivision (f) as a provision included in

the charges against Charfauros. Nevertheless, the jury was instructed that it should

determine whether the attempted murders were willful, deliberate and premeditated. The

jury returned specific verdicts finding that the attempted murders in counts 2 through 5

were willful, deliberate and premeditated. The trial court relied on those findings to

sentence Charfauros according to the enhanced sentence in section 664, subdivision (f)

on counts 2 through 5, imposing sentences of 15 years to life for each of those four

counts.

       2.     Charfauros's Due Process Argument Lacks Merit and His Statutory
              Argument Has Been Forfeited

       Charfauros contends that the sentence of 15 years to life on counts 2 through 5

must be reversed because the indictment did not provide him with notice that he was

being charged with committing willful, deliberate and premeditated attempted murders.


                                              34
       There are two separate issues raised when an enhanced sentence is imposed on a

defendant according to a finding that he committed a willful, deliberate and premeditated

attempted murder of a peace officer in a circumstance, like here, where the accusatory

pleading does not allege a willful, deliberate and premeditated attempted murder.

       The first issue is whether the defendant has been sentenced in violation of

section 664, subdivision (f) because the statute requires that the defendant be charged

with a willful, deliberate and premeditated attempted murder as required by the statute

before an enhanced sentence may be imposed. (§ 664, subd. (f) [stating that the enhanced

sentence shall be imposed "if . . . it is . . . charged and admitted or found true" that the

attempted murder was willful, deliberate and premeditated].) The second issue is

whether the defendant's due process rights have been violated by not receiving notice in

the accusatory pleading that the People were seeking an enhanced sentence based on

allegations the attempted murder was willful, deliberate and premeditated. The due

process issue arises because "[a] defendant has a due process right to fair notice of the

allegations that will be invoked to increase the punishment for his or her crimes."

(People v. Houston (2012) 54 Cal.4th 1186, 1227 (Houston).)

       Here, as to the statutory issue, it is undisputed that the indictment did not comply

with the requirements of section 664, subdivision (f) because it was not "charged . . . that




                                              35
the attempted murder was willful, deliberate, and premeditated." (§ 664, subd. (f), italics

added.)10

       The due process issue is more complicated and requires us to focus on the

applicable legal principles and case law. "The 'preeminent' due process principle is that

one accused of a crime must be 'informed of the nature and cause of the accusation.'

(U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the

charges against him so that he has a reasonable opportunity to prepare and present his

defense and not be taken by surprise by evidence offered at his trial." (People v. Jones

(1990) 51 Cal.3d 294, 317 (Jones).)

       The most applicable case considering due process issues in a similar context is our

Supreme Court's decision in Houston, supra, 54 Cal.4th 1186. Houston concerned the

sentence enhancement in section 664, subdivision (a), which provides for an

indeterminate life term, rather than a determinate term of five, seven or nine years, when

the defendant has been charged with and found guilty of willful, deliberate and

premeditated attempted murder.11




10      As we will explain after discussing the due process issue, because he did not raise
the issue in the trial court, Charfauros has forfeited his right to any appellate remedy
based on the fact that the indictment did not allege that the attempted murders were
willful, deliberate and premeditated.

11     Here, Charfauros was charged with the attempted murder of peace officers.
Therefore, section 664, subdivision (f), rather than section 664, subdivision (a), sets forth
the enhancement applicable for an attempted murder that is willful, deliberate and
premeditated.

                                             36
       In Houston, supra, 54 Cal.4th 1186, our Supreme Court concluded that although

the accusatory pleading did not allege that the attempted murders were willful, deliberate

and premeditated, the defendant received constitutionally adequate notice of those

allegations. Specifically, during trial, while evidence was still being presented, the trial

court in Houston explained to the defendant that the verdict forms would include specific

findings for premeditated attempted murder, informed the defendant that he would be

sentenced to life in prison if convicted, and asked the parties to comment on any

problems with the proposed jury instructions and verdict forms. (Id. at p. 1227.) Under

those circumstances, Houston concluded that the "defendant received adequate notice of

the sentence he faced" even though the indictment did not allege that the attempted

murders were willful, deliberate and premeditated. (Id. at p. 1228.)

       Here, the situation is similar to Houston. The record shows that Charfauros was

on notice during the course of the trial that the jury would be instructed to decide whether

the attempted murders were willful, deliberate and premeditated. Specifically, during

trial while evidence was still being presented in the People's case, counsel discussed

proposed jury instructions with the trial court. One of instructions was CALCRIM

No. 601, which informed the jurors that if they found Charfauros guilty of the attempted

murders, they must also determine whether the attempted murders were willful,

deliberate and premeditated. Defense counsel introduced the discussion of CALCRIM

No. 601 by informing the trial court he was the one who "proffered" the instruction. The

prosecutor responded by stating that he had "no objection to proffering a [section] 189



                                             37
verdict form, and therefore, the appropriate instruction."12 Counsel and the trial court

then briefly discussed the People's theory that the jury could find the attempted murders

to be willful, deliberate and premeditated "if the defendant, a co-conspirator or a

participant . . . acts with" the required state of mind. Charfauros was in the courtroom

when the discussion took place.

       After three more days of testimony the People rested, the defense declined to

present any testimony, and the jury was instructed, without objection, according to

CALCRIM No. 601. The jury returned a specific finding that the attempted murders

were willful, deliberate and premeditated, and at sentencing the probation officer's

sentencing report stated that, based on that finding, section 664, subdivision (f) required

that Charfauros be sentenced to terms of 15 years to life for each attempted murder count.

Without objection from defense counsel, the trial court followed that recommendation

and sentenced Charfauros to four consecutive terms of 15 years to life for the four

attempted murder counts.

       Under the circumstances, because the defense proffered the CALCRIM No. 601

instruction on willful, deliberate and premeditated attempted murder, Charfauros had

notice that the jury was going to be deciding that issue. Further, because the instruction

was discussed while there were still several days of trial remaining and the People had


12     Section 189 defines first degree murder as including, among other things, a
"willful, deliberate, and premeditated killing." (Ibid.) Therefore in referring to a
"[section] 189 verdict form" in the context of discussing the CALCRIM No. 601
instruction, the prosecutor was apparently referring to a verdict form asking the jury to
decide whether the attempted murders were willful, deliberate and premeditated.

                                             38
not yet rested their case, there was a meaningful opportunity for Charfauros to introduce

evidence on the issue of whether the attempted murders were willful, deliberate and

premeditated. Charfauros thus had a "reasonable opportunity to prepare and present his

defense," foreclosing any argument that his constitutional due process rights were

violated due to the fact that the indictment did not charge that the attempted murders

were willful, deliberate and premeditated. (Jones, supra, 51 Cal.3d at p. 317.)

       Having concluded (1) that the requirements of section 664, subdivision (f) were

not satisfied because the indictment did not charge that the attempted murders were

willful, deliberate and premeditated; but (2) Charfauros nevertheless received

constitutionally adequate notice that the People were alleging that the murders were

willful, deliberate and premeditated for the purposes of the sentence enhancement in

section 664, subdivision (f), we next consider whether Charfauros is entitled to any relief

on appeal. As we will explain, we conclude that Charfauros has forfeited any appellate

challenge to the sentence enhancements on statutory grounds because he did not object in

the trial court that the indictment lacked an allegation that the attempted murders were

willful, deliberate and premeditated.

       Our analysis of the forfeiture issue is controlled by Houston. In that case, our

Supreme Court concluded that because the defendant had failed to object to instructing

the jury on a theory that the attempted murders were willful, deliberate and premeditated,

the defendant had forfeited any appellate challenge to the imposition of a sentence

enhancement under section 664 based on the argument that the indictment did not allege

the attempted murders were willful, deliberate and premeditated. (Houston, supra, 54

                                            39
Cal.4th at pp. 1227-1228.) As Houston pointed out, the defendant received adequate

notice of the sentence he faced, and "a timely objection to the adequacy of the indictment

would have provided an opportunity to craft an appropriate remedy." (Id. at p. 1228.)

Accordingly, he forfeited his appellate challenge to the sentence enhancement based on

section 664. The same result applies here. As we have explained, Charfauros received

notice of the allegations that the attempted murders were willful, deliberate and

premeditated while there was still time to craft a remedy in the trial court. However,

Charfauros did not object, and he accordingly forfeited his appellate challenge based on

the People's failure to comply with the statutory requirement in section 664,

subdivision (f) that the indictment allege that the attempted murders were willful,

deliberate and premeditated.

       3.       Charfauros Has Not Established Ineffective Assistance of Counsel Based
                on Defense Counsel's Lack of Objection to the Contents of the Indictment

       Charfauros contends that in the event we find forfeiture, he is nevertheless entitled

to relief on the ground that defense counsel was ineffective for failing to object that the

indictment lacked allegations that the attempted murders were willful, deliberate and

premeditated.

       As we have explained, a claim for ineffective assistance of counsel has two parts:

deficient performance by counsel and prejudice to the defendant. (Strickland, supra, 466

U.S. at p. 687.) "If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice that course should be followed." (Id. at p. 697.) As we will

explain, because our analysis of the prejudice issue is dispositive, we need only reach that


                                             40
issue to dispose of Charfauros's claim that defense counsel was ineffective for not

objecting that the indictment failed to comply with section 664, subdivision (f) in that it

did not allege that the attempted murders were willful, deliberate and premeditated.

       To establish prejudice, Charfauros has the burden to show "a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." (Strickland, supra, 466 U.S. at p. 694.) Here, the question

of prejudice must focus on the time period during trial when defense counsel was aware

that the People were proceeding under a theory that the attempted murders were willful,

deliberate and premeditated, at which point he could have made an objection that the

theory was barred because the indictment did not comply with section 664,

subdivision (f). That point during the trial was no later than the day when counsel

discussed CALCRIM No. 601 with the trial court. It is unlikely that an objection at that

point would have made a difference to the outcome of the trial. If defense counsel raised

an objection at that point based on the fact that the indictment did not allege that the

attempted murders were willful, deliberate and premeditated, the People would likely

have requested that the trial court permit an amendment to the indictment to allege

premeditation. (§ 1009 [trial court may permit an amendment of an indictment at any

stage of the proceedings]; Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 264

[rejecting the argument that a grand jury indictment cannot be amended by a trial court].)

       As there would have been ample time left during trial for defense counsel to put

on any additional evidence necessary to address the formal premeditation allegations,

defense counsel would not have had a strong argument to defeat an amendment to

                                             41
indictment, and the trial court undoubtedly would have permitted it. Indeed, as our

Supreme Court noted in Houston, one reason for finding forfeiture in the context of

defendant's failure to object to the absence of allegations of premeditation in the

indictment charging attempted murder is that upon a timely objection by defense counsel,

the prosecutor could have asked the trial court to amend the indictment and cure the

problem. (Houston, supra, 54 Cal.4th at pp. 1227-1228.)

       In sum, even had defense counsel objected, there is no reasonable probability that

Charfauros would have obtained any different outcome, and he still would have been

sentenced to an enhanced 15-year-to-life term under section 664, subdivision (f) for each

of the attempted murders.

D.     Error in Imposing Full Terms Rather Than One-third of the Middle Term for
       Counts 7, 9, 10, 11, 12, 13 and 14

       For the determinate sentences on counts 7, 9, 10, 11, 12 and 14 the trial court

imposed full-term sentences, which it ordered to be served consecutively but stayed

pursuant to section 654. Charfauros contends that pursuant to section 1170.1, subdivision

(a), the trial court should have imposed one-third of the middle term sentence for

counts 7, 9, 10, 11, 12 and 14, and he seeks an order amending the abstract of judgment

accordingly. The Attorney General concedes that the trial court erred and that the

abstract of judgment should be amended. As we will explain, the parties' position has

merit, and we will accordingly order the relief that Charfauros seeks.

       When sentencing for the counts punished by determinate terms, the trial court

selected count 15 as the principal term and imposed a full-term sentence of three years


                                             42
for that count. Counts 6, 7, 9, 10, 11, 12, 13 and 14 were sentenced as subordinate terms.

Pursuant to section 1170.1, subdivision (a), consecutive subordinate determinate terms

"shall consist of one-third of the middle term of imprisonment prescribed" for those

crimes and "one-third of the term imposed for any specific enhancements applicable to

those . . . offenses." However, the trial court did not follow that provision for counts 7, 9,

10, 11, 12 and 14. Instead, for those counts, the trial court imposed and stayed the full

middle-term sentences for each of those counts, including full-term enhancements.13

       As the trial court did not sentence counts 7, 9, 10, 11, 12 and 14 according to the

requirement that it impose one-third of the middle term for each count and one-third of

any applicable enhancement, the sentences for those counts are unauthorized. An

appellate court may correct an unauthorized sentence when the error is brought to its

attention. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249 (Valenzuela);

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) We accordingly order that the trial

court correct the abstract of judgment to reflect the imposition of one-third of the middle

term for counts 7, 9, 10, 11, 12 and 14, and one-third of any applicable enhancement for

those counts, all of which shall be stayed under section 654. So corrected, the stayed

sentences for those counts shall be as follows: count 7 — one year; count 9 — eight



13      Specifically, the following consecutive terms were imposed and stayed for the
applicable counts: count 7 — three years; count 9 — two years, plus a one-year
enhancement; count 10 — two years; count 11 — 2 years; count 12 — two years, plus a
one-year enhancement; and count 14 — two years, plus a one-year enhancement. The
trial court imposed sentences for counts 6 and 13 based on one-third of the middle term,
and those counts are accordingly not the subject of Charfauros's appeal.

                                             43
months, plus a four-month enhancement; count 10 — eight months; count 11 — eight

months; count 12 — eight months, plus a four-month enhancement; count 14 — eight

months, plus a four-month enhancement.

E.     Error in the Amount of the Laboratory Fee Imposed Under Health and Safety
       Code Section 11372.5, Subdivision (a)

       Charfauros's final contention is that the trial court erred in the amount of the

laboratory fee that it imposed pursuant to Health and Safety Code section 11372.5,

subdivision (a), because it imposed a fee of $205 instead of $100. The Attorney General

concedes the error.

       Health and Safety Code section 11372.5, subdivision (a) provides that for certain

enumerated crimes, the defendant shall pay a criminal laboratory analysis fee of $50 for

each separate offense. Here, Charfauros committed the enumerated crimes of

(1) possessing a controlled substance for sale (id., § 11378 [count 9]); and (2) selling or

furnishing a controlled substance (id., § 11379 [pursuant to the conspiracy charged in

count 15]). Because each specific enumerated offense incurs a fee of $50, the trial court

should have imposed a total fee of $100. Instead, the trial court imposed a fine of

$205.14

       Under our authority to correct unauthorized sentences, we may order that an

improperly calculated fine be modified and corrected. (Valenzuela, supra, 172


14     In imposing the $205 laboratory fee, the trial court stated that it was in the amount
of "$205, including penalty assessments." Neither Charfauros nor the Attorney General
identify a basis for an additional "penalty assessment," and in light of the Attorney
General's concession that the amount of $205 was imposed in error, we conclude that no
basis in the record has been identified for the assessment of a laboratory fee above $100.
                                             44
Cal.App.4th at p. 1249.) We accordingly order that the laboratory fee imposed pursuant

to Health and Safety Code section 11372.5, subdivision (a) be modified to the amount of

$100.

                                       DISPOSITION

        The trial court is ordered (1) to modify the abstract of judgment to reflect (a) the

imposition of one-third of the middle term and one-third of any applicable enhancement

for counts 7, 9, 10, 11, 12 and 14; and (b) the imposition of a laboratory fee of $100

pursuant to Health and Safety Code section 11372.5, subdivision (a); and (2) to forward

an amended copy of the asbtract of judgment to the Department of Corrections and

Rehabilitation. As modified, the judgment is affirmed.



                                                                                    IRION, J.

WE CONCUR:



BENKE, Acting P. J.



HALLER, J.




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