Filed 10/1/14 P. v. Salazar CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B248963

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. BA376429)
         v.

MIGUEL SALAZAR,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Bob S. Bowers, Jr., Judge. Affirmed as Modified.
         Jeralyn Keller, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Jonathan J. Kline
and Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.
      A jury convicted defendant Miguel Salazar of first degree murder (Pen.
Code, § 187, subd. (a))1 and carjacking (§ 215, subd. (a)), and found true the
special circumstance allegation that the murder was committed during the
commission of carjacking (§ 190.2, subd. (a)(17)(L)). The trial court sentenced
defendant to life in prison without the possibility of parole for the special
circumstance murder, and a term of five years for the carjacking, stayed under
section 654.
      Defendant appeals from the judgment. As we explain more fully below, we
reject defendant’s claims of insufficient evidence, instructional error, and
ineffective assistance of counsel. We order the parole revocation fine in the
minute order from the sentencing hearing stricken. In all other respects, we affirm
the judgment.


                                  BACKGROUND
      Around 3:49 a.m. on June 17, 2007, in the parking lot of a strip mall at the
corner of Vernon and Wall in Los Angeles, defendant and an accomplice, Enrique
Reyes, carjacked Renee Aguilar of his Daewoo automobile. Aguilar was killed
when, after the carjackers entered the vehicle, the car knocked him down and drove
over him, inflicting fatal blunt force trauma injuries. Not until 2010 was defendant
identified as a suspect. He was located in Baltimore, Maryland, and transported
back to Los Angeles to be charged.
      A surveillance video from a laundromat at the strip mall where the killing
occurred captured the crime. The video, which was not of sufficient quality to
identify the participants, was played for the jury, and still photographs taken from


1
      All section references are to the Penal Code.

                                           2
the video were introduced into evidence. As narrated by Los Angeles Police
Detective Miguel Terrezas, the video showed two unidentified men approach
Aguilar’s vehicle and loiter nearby. A few seconds later, a person (later identified
as Aguilar) exited the vehicle, and appeared to struggle with one of the men.
Aguilar moved to the side of the front passenger door of the vehicle, raising his
hand and holding his head. As the car started into reverse and turned, the front end
appeared to strike Aguilar and knock him down. The vehicle then appeared to rise
as if running over something, after which it moved forward, again rising as if
running over something, though from the video one could not see precisely what it
ran over. The vehicle then drove off.
       Detective Terrezas responded to the scene of the homicide in response to a
radio call that there had been a shooting. Once at the location, he learned that the
victim had been run over. On the ground he found a “car club” used to prevent
vehicle theft, car keys, a flat head screwdriver, and blood.
       Anabel Correa, defendant’s then-girlfriend, was with defendant and Reyes
before the crime. Reyes suggested to defendant that they steal someone’s car.
Correa urged defendant not to go, but accompanied him when he went with Reyes
to Vernon and Wall. She saw them go to the parking lot of the strip mall, and
perhaps 15 or 20 minutes later heard screeching noises. Later that morning, Correa
asked defendant what had happened. He told her that he and Reyes “were there
trying to get the car from the man.” She then testified that defendant became angry
and told her “they ran over a man. That’s all I can remember.” Shown a report of
a prior statement she made to the police, she “refresh[ed her recollection] as to
what [defendant] said . . . when [she was] asking him questions about” the
incident. After refreshing her recollection, she testified that defendant said, “You
. . . bitch, I ran over the man.”

                                          3
       The parties stipulated that if called as a witness, Reyes (who was refusing to
leave his cell to come to court) would testify that an audio recording played for the
jury with the assistance of a transcript was a true and accurate depiction of an
interview with the prosecutor on December 20, 2012. In that interview, Reyes
remembered that three years earlier, he had told the prosecutor that “[defendant]
was the driver and I was just the passenger.” He remembered having said that they
“agreed to get into the car . . . and [defendant] was just supposed to jump into the
driver’s seat and take off . . . [b]ut homeboy started to fight back.” Reyes told the
prosecutor that if called as a witness, he would admit that he made these
statements, but did not want to say anything more, because he did not “want to
incriminate [himself] up [s]tate” where he was housed in prison.


                                         DISCUSSION
    I. Sufficiency of the Evidence/Instructional Error
       The court’s instructions on the felony-murder special circumstance
allegation erroneously stated that if the prosecution failed to prove that defendant
was the actual killer, then the jury could not find the felony-murder special
circumstance to be true unless it found that defendant “with the intent to kill aided,
abetted, or assisted any actor in the commission of the murder in the first degree.”
(Italics added.)2 The instruction was incorrect, because the felony-murder special


2
        As for the special circumstance allegation, the court first gave a modified version
of CALJIC No. 8.80.1, as follows: “If you find the defendant in this case guilty of
murder of the first degree, you must then determine if the following special circumstance
is true or not true: That the murder was committed while engaged in the commission of
the crime of carjacking in violation of Penal Code section 190.2(a)(17)(L). [¶] The
People have the burden of proving the truth of a special circumstance. If you have a
reasonable doubt as to whether a special circumstance is true, you must find it to be not
true. [¶] If you find that a defendant was not the actual killer of a human being, or if you
                                              4
circumstance applies to “a person other than the actual killer . . . if that person was
a major participant in the underlying felony . . . and either intended to kill or acted
with reckless indifference to human life.” (People v. Cleveland (2004) 32 Cal.4th
704, 752, italics added.) Neither of those mental states is required for the actual
killer. (People v. Contreras (2013) 58 Cal.4th 123, 163-164 [“[t]he felony-murder
special circumstance . . . is valid absent any requirement that a defendant who
actually killed during an enumerated felony acted with the intent to kill”; also
disagreeing with the contention that “to withstand constitutional scrutiny, the
felony-murder special circumstance . . . minimally requires a finding of ‘reckless
indifference to human life’ for actual killers lacking an intent to kill.”].)
       Seizing upon the error in the special circumstance instruction, and
characterizing the issue as one of insufficiency of the evidence, defendant contends
that the special circumstance finding must be reversed, because the evidence was
insufficient to prove that he (as the purported passenger in the carjacked vehicle,
not the driver) acted with the intent to kill Aguilar. We disagree.




are unable to decide whether the defendant was the actual killer or an aider and abettor,
you cannot find the special circumstance to be true unless you are satisfied beyond a
reasonable doubt that such defendant with the intent to kill aided, abetted, or assisted any
actor in the commission of the murder in the first degree. [¶] In order to find a special
circumstance alleged in this case to be true or untrue, you must agree unanimously.”
(Italics added.)
        The court then instructed pursuant to CALJIC No. 8.81.17: “To find that the
special circumstance referred to in these instructions as murder in the commission of
carjacking is true, it must be proved: [¶] 1. The murder was committed while the
defendant was engaged in the commission of a carjacking; and [¶] 2. The murder was
committed in order to carry out or advance the commission of the crime of carjacking or
to facilitate the escape therefrom or to avoid detection. In other words, the special
circumstance referred to in these instructions is not established if the carjacking was
merely incidental to the commission of the murder.”

                                             5
        First, to the extent the issue may be viewed as one of insufficiency of the
evidence, it fails because “[w]here the jury considers both a factually sufficient and
a factually insufficient ground for conviction, and it cannot be determined on
which ground the jury relied, we affirm the conviction unless there is an
affirmative indication that the jury relied on the invalid ground.” (People v. Marks
(2003) 31 Cal.4th 197, 233 (Marks).) Here, consistent with the evidence provided
by Reyes and Correa, the prosecutor’s primary theory was that defendant was the
actual killer – the driver of the carjacked vehicle. Under that theory, the
prosecution was not required to prove that defendant acted with an intent to kill (or
reckless disregard for life) in order to sustain the special circumstance.
        Substantial evidence clearly supported the conclusion that defendant was the
driver. In an interview with the prosecutor (the contents of which were admitted
by stipulation), Reyes remembered having told the prosecutor in a prior interview
that “[defendant] was the driver and I was just the passenger.” He also
remembered having said that they “agreed to get into the car . . . and [defendant]
was just supposed to jump into the driver’s seat and take off . . . [b]ut homeboy
started to fight back.” Reyes told the prosecutor that if called as a witness, he
would admit that he made these statements, but did not want to say anything more,
because he did not “want to incriminate [himself] up [s]tate” where he was housed
in prison. Similarly, Correa testified that defendant became angry when she asked
him what happened, and all she could remember him saying was that “they ran
over a man.” However, she refreshed her recollection from a prior written
statement and clarified that defendant had said, “You . . . bitch, I ran over the
man.”
        Thus, there was ample evidence from which the jury could conclude that
defendant was the actual killer of Aguilar. As we have noted, if the jury convicted

                                           6
defendant of first degree murder on that ground, no additional finding that
defendant intended to kill (or acted with reckless indifference to life) was required
to sustain the special circumstance. (People v. Contreras, supra, 58 Cal.4th at pp.
163-164.)
        It is true that the prosecutor also argued the jury could conclude that
defendant was the passenger in the vehicle, but nonetheless convict him of first
degree murder as an aider and abettor of the carjacking, or as a coconspirator in
that crime.3 It is also true that if the jury had a reasonable doubt whether defendant
was the actual killer, the jury instructions on the special circumstance purported to
require a finding that defendant aided and abetted the murder with the intent to kill.
But because the record does not disclose which theory the jury relied on, it is
enough that the evidence supports the theory that defendant was the actual killer.
On that basis, the special circumstance finding must be affirmed, regardless of
defendant’s claim that the evidence was insufficient to support the finding against
the defendant on an aiding and abetting theory. (Marks, supra, 31 Cal.4th at p.
233.)
        Second, the issue raised by defendant is more properly viewed not as one of
insufficient evidence, but of instructional error in failing to instruct that for a
person other than the actual killer, the special circumstance required proof that
defendant was a major participant in the underlying felony who acted either with
an intent to kill or with reckless disregard for human life. However, this error,




3
        The trial court instructed the jury on premeditated first degree murder, second
degree murder, and first degree felony murder (murder during the commission of
carjacking). In connection with the felony-murder rule, the court instructed on the
vicarious liability of an aider and abettor in the underlying carjacking, and on conspiracy
liability in relation to the carjacking.
                                                7
which placed a greater burden on the prosecution than the law requires, could not
have possibly prejudiced defendant.
      Driver or not, the defendant was necessarily a major participant in the
carjacking and acted with reckless indifference to human life. A “major
participant” in a carjacking is one who plays a “notable or conspicuous” part or is
one of the “more important members” of the group committing the crime. (People
v. Proby (1998) 60 Cal.App.4th 922, 930-931 [involving robbery murder].) Here,
along with Reyes, defendant was one of only two persons who committed the
carjacking. They conspired to commit the crime beforehand, carried it out
together, and fled in the carjacked vehicle together. Thus, there is no doubt that
defendant was a major participant in the crime.
      Assuming for the sake of argument that defendant was the passenger when
Aguilar was struck and run over, defendant’s participation in the carjacking also
demonstrated reckless indifference to human life. The phrase “reckless
indifference to human life” means a “subjective awareness of the grave risk to
human life created by [defendant’s] participation in the underlying felony.”
(People v. Estrada (1995) 11 Cal.4th 568, 578.) As the United States Supreme
Court has observed, the “reckless indifference” and “major participant”
requirements often overlap. “[T]here are some felonies as to which one could
properly conclude that any major participant necessarily exhibits reckless
indifference to the value of human life. Moreover, even in cases where the fact
that the defendant was a major participant in a felony did not suffice to establish
reckless indifference, that fact would still often provide significant support for such
a finding.” (Tison v. Arizona (1987) 481 U.S. 137, 158, fn. 12.)
      As presented at trial, the surveillance video showed that the carjackers
loitered near the vehicle while Aguilar was inside. When he emerged, a struggle

                                          8
ensued between Aguilar and one of the carjackers. Aguilar moved to the side of
the front passenger door of the vehicle, raising his hand and holding his head. As
the car (with both carjackers inside) started into reverse and turned, the front end
struck Aguilar and knocked him down. Without stopping, the vehicle then
appeared to rise, running over Aguilar, after which it moved forward, running over
him again, and drove off.
      This evidence leaves no room for argument that defendant (as the purported
passenger) was unaware that his participation in the carjacking created a grave risk
to Aguilar’s life. (People v. Estrada, supra, 11 Cal.4th at p. 578.) He had
conspired with Reyes to commit the crime, had loitered while Aguilar remained in
the car, and at the very least was present when control of the vehicle was wrested
from Aguilar by force, even if he himself did not engage in the struggle with
Aguilar. Aguilar was standing on the front passenger side of the vehicle, the area
of the vehicle where defendant (as the purported passenger) was seated, when the
vehicle, traveling in reverse, knocked Aguilar down, ran over him, and then ran
over him again as it moved forward. Under these circumstances, defendant, seated
in the passenger side of the vehicle, undoubtedly was aware of the vehicle striking
and running over Aguilar, and thus was also aware that his participation in the
ongoing carjacking created a grave risk to Aguilar’s life.
      In short, defendant cannot benefit from the error in the special circumstance
instruction, because beyond any reasonable doubt (Chapman v. California (1967)
386 U.S. 18) that error did not contribute to the true finding on the special
circumstance finding. A properly instructed jury would necessarily have found the
special circumstance allegation true.




                                          9
   II. Ineffective Assistance of Counsel
      In closing argument, the prosecutor argued that defendant was guilty of first
degree murder under the felony-murder rule, the killing having occurred during the
commission of a carjacking, and argued that the evidence proved that defendant
was the driver of the vehicle. However, he noted that the jury could believe that
defendant was vicariously liable for the murder as an aider and abettor of the
carjacking or coconspirator in the carjacking. The prosecutor stated that if the jury
believed defendant was guilty of first degree murder committed in the course of a
carjacking under any of these theories, then it must find the special circumstance to
be true.
      Defendant contends that his trial counsel was ineffective for failing to object
to the prosecutor’s argument that conviction of first degree murder under the
felony-murder rule also required a true finding on the felony-murder special
circumstance, without any finding that defendant, as the purported passenger in the
carjacked vehicle, either intended to kill or was a major participant in the
carjacking and acted with reckless indifference to human life. However, for
reasons already discussed, it is not reasonably probable that if defense counsel had
objected, a different result would have been reached. (Strickland v. Washington
(1984) 466 U.S. 668, 697 (Strickland) [“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”].) As we have explained,
ample evidence proved that defendant was the driver of the vehicle (for whom no
additional mental state beyond that required for carjacking was required for the
special circumstance), and the evidence also left no doubt that, at a minimum,
defendant was a major participant in the carjacking and acted with reckless
indifference to human life. Thus, it is not reasonably probable that any

                                           10
misstatement of the law by the prosecutor affected the special circumstance
finding. (Strickland, supra, 466 U.S. at p. 694.)


   III. Parole Revocation Fine
      Given defendant’s sentence of life without the possibility of parole, he was
not eligible for imposition of a parole revocation fine under section 1202.45. At
the oral sentencing proceeding on May 16, 2013, the trial court did not order such a
fine, but a clerical error appears in the minute order from the sentencing hearing
reflecting imposition of a $300 parole revocation fine. Defendant contends, and
respondent concedes, that the fine must be stricken. We agree, and order the
parole revocation fine appearing in the minute order of May 16, 2013 stricken.


                                  DISPOSITION
             The superior court clerk is directed to delete the $300 parole
revocation fine that appears in the minute order from the sentencing proceeding on
May 16, 2013, and to forward the corrected minute order to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                              WILLHITE, J.

             We concur:



              EPSTEIN, P. J.                    EDMON, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
 to article VI, section 6 of the California Constitution.
                                         11
