Filed 12/15/15 P. v. Cortez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068051

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1103048)

WALTER MORALES CORTEZ et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Riverside County, Michael J.

Rushton, Judge. Affirmed in part and reversed in part with directions.



         Arthur Martin, under appointment by the Court of Appeal, for Defendant and

Appellant Walter Morales Cortez.

         Rodger P. Curnow, under appointment by the Court of Appeal, for Defendant and

Appellant Lilia Teresa Rivas.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff

and Respondent.
       In People v. Chiu (2014) 59 Cal.4th 155 (Chiu), our Supreme Court determined

that an aider and abettor may no longer be convicted of first degree murder on the theory

the victim's death was the natural and probable consequence of the aider and abettor's

participation in another crime committed by the actual killer; the court held that a natural

and probable consequence theory will only support an aider and abettor's conviction of

second degree murder.

       Here, two defendants were tried for murder and attempted murder before the

court's opinion in Chiu was rendered, and the trial court instructed the jury that one of the

defendants could be convicted of first degree murder on a theory the victim's death was

the natural and probable consequence of her participation as an aider and abettor. Under

Chiu, the natural and probable consequence instruction the trial court gave was

erroneous, and, in light of the prosecutor's reliance on that theory in her argument to the

jury, we are not convinced beyond a reasonable doubt the error was harmless.

Accordingly, the aider and abettor's first degree murder conviction must be reversed.

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. Shooting

       Defendants and appellants Walter Morales Cortez and Lilia Teresa Rivas are

married. Cortez was the founder of a "tagging crew" known as Brown Evil (BE); Rivas

was an associate of BE. The Romoland Vatos Locos (RVL) is a Riverside County

criminal street gang; RVL and BE compete as rivals over territory in Riverside.

       On June 10, 2011, an escalating series of confrontations between BE members and

RVL members ended when an RVL member, Adrian Acosta, walked up to the fenced

yard of a home occupied by BE members. Adrian Acosta confronted Rivas and

                                              2
challenged her to fight; she slapped him and a fist fight broke out between them. Raul

Acosta, Adrian's older brother, attempted to intervene and break up the fight.

       At that point, Rivas knew her husband was armed. Earlier in the day, she had

repeatedly told other BE members that Cortez was "strapped" and that she and Cortez

were ready to "take care of things." Rivas backed away from the fight and yelled to her

husband, Cortez, who was nearby: "He hit me, shoot him, shoot him." Cortez pulled out

a .38-caliber revolver; Raul Costa jumped in front of his younger brother and yelled:

"Don't shoot my brother." Although the fight between Rivas and Adrian Acosta had

stopped, and Rivas was standing next to Cortez inside the fence, Cortez fired four shots;

three hit Adrian Acosta in the chest, and he died at the scene; one shot hit Raul Acosta,

and he was able to flee from the scene.

       The following day, Cortez burned the clothes he was wearing at the time of the

shooting and threw the gun into the ocean. Cortez also tried to get another BE member to

take responsibility for the shooting; for her part, Rivas prevailed upon a family member

to write an alibi letter to police stating that Cortez and Rivas were not at the house at the

time of the shooting.

       B. Trial Court Proceedings

       By way of an amended information, Cortez and Rivas were each charged with one

count of first degree murder and one count of attempted first degree murder (Pen.

Code,1 §§ 187, subd. (a), 664, subd. (a)); in addition, the information alleged that Cortez

personally and intentionally discharged a firearm causing great bodily injury or death

(§ 12022.53, subd. (d)).

1      All further statutory references are to the Penal Code unless otherwise indicated.
                                              3
      Cortez and Rivas each testified on their own behalf. Cortez testified he shot in the

direction of the Acosta brothers because he thought Rivas might have been stabbed and

he thought he needed to defend her. Rivas testified she told Cortez to "pull it out"

because she thought that the fight would end if Cortez brandished the gun; she denied

telling Cortez to shoot anyone.

      The trial court gave the jury, among other instructions, versions of CALCRIM

Nos. 301 and 403. As given by the trial court, CALCRIM No. 301 required that Cortez's

and Rivas's testimony be corroborated if they were accomplices. The version of

CALCRIM No. 403 provided to the jury permitted the jury to find Rivas guilty of

murder and attempted murder if Adrian Acosta's murder and the attempted murder of

Raul Acosta were the natural and probable consequences of Cortez's commission of the

crimes of brandishing a firearm or assault with a firearm, and Rivas knew that Cortez

was going to commit those crimes and aided, facilitated, promoted, encouraged or

instigated Cortez's commission of those crimes.

      In her closing argument, the prosecutor told the jury that, under the natural and

probable consequences doctrine, Rivas could be found guilty of both first degree murder

and attempted first degree murder.

      The jury found both Cortez and Rivas guilty of first degree murder. The jury also

found both guilty of the attempted murder of Raul Acosta and, in a separate finding, that

the attempt was an attempt to commit first degree murder; the jury also found Cortez had

personally and intentionally discharged a firearm, causing great bodily injury. The trial

court sentenced Cortez to 82 years to life in prison and Rivas to 32 years to life in

prison. Both defendants filed notices of appeal.

                                             4
                                      DISCUSSION

                                             I

                                     Common Issues

       A. Corroboration

       The version of CALCRIM No. 301, which the trial court gave the jury, stated:

"Except for the testimony of Walter Morales Cortez and Lilia Teresa Rivas[, which]

require[s supporting] evidence[, i]f you decide that he or she is an accomplice[,] the

testimony of only one witness can prove any fact." The trial court also gave the jury a

version of CALCRIM No. 334, which stated: "Before you may consider the statement or

testimony of Lilia Teresa Rivas as evidence against Walter Morales Cortez, and

conversely, before you may consider the statement or testimony of Walter Morales

Cortez against Lilia Teresa Rivas, you must decide whether Walter Morales Cortez and

Lilia Teresa Rivas were accomplices. A person is an accomplice if he or she is subject to

prosecution for the identical crime charged against the defendant. Someone is subject to

prosecution if:

       "1. He or she personally committed the crime;

       "OR

       "2. He or she knew of the criminal purpose of the person who committed the

crime[.] [¶] . . . [¶]

       "If you decide that a declarant or witness was not an accomplice, then supporting

evidence is not required and you should evaluate his or her statement or testimony as you

would that of any other witness.



                                             5
       "If you decide that a declarant or witness was an accomplice, then you may not

convict the defendant of the crimes charged in counts 1 and 2, the lesser included

offenses to those crimes or the gun use enhancements, based on the accomplice's

statement or testimony alone. You may use the statement or testimony of an accomplice

to convict the defendant only if:

       "1. The accomplice's statement or testimony is supported by other evidence that

you believe;

       "2. That supporting evidence is independent of the accomplice's statement or

testimony;

       "AND

       "3. That supporting evidence tends to connect the defendant to the commission of

the crimes."

       With respect to the defenses of self-defense and the defense of others, and

defendants' alternative contention the shooting occurred in the heat of passion, the jury

was instructed that the burden was on the prosecution to show beyond a reasonable doubt

that those circumstances did not occur.

       On appeal, Cortez and Rivas contend that CALCRIM No. 301, as given by the

trial court, unduly interfered with their respective defenses of self-defense and the

defense of others, as well as their claim that they acted in the heat of passion, because

those matters depended in some measure on the respective testimony each provided on

the other's behalf. They argue the instruction suggested to the jury that their own

testimony was not sufficient to establish their defenses or mitigate their crimes to

manslaughter. We find no prejudicial error.

                                              6
       As the Attorney General points out, in reviewing claims of instructional error, we

"must consider whether it is reasonably likely that the trial court's instructions caused the

jury to misapply the law. [Citation.] '[T]he correctness of jury instructions is to be

determined from the entire charge of the court, not from a consideration of parts of an

instruction or from a particular instruction.' [Citations.]" (People v. Carrington (2009)

47 Cal.4th 145, 192.) Importantly, we must presume jurors are intelligent and "capable

of understanding and correlating jury instructions." (People v. Martin (1983) 150

Cal.App.3d 148, 158.)

       The CALCRIM No. 334 instruction, which defined the term accomplice and

explained that accomplice statements could not be used against either defendant without

corroboration, substantially diminished any risk jurors would misinterpret CALCRIM

No. 301 when they considered Rivas's and Cortez's contentions that at the time of the

shootings they were afraid Rivas might be killed or seriously injured. Indeed, CALCRIM

No. 334 largely provides the amplification, which defendants suggest CALCRIM No.

301 needed to make it accurate. Thus, we are not inclined to find that where, as here,

there was no request for an amplification of CALCRIM No. 301, the trial court erred in

giving its version of CALCRIM No. 301 along with CALCRIM No. 334. Taken

together, the instructions were more likely to be interpreted as requiring caution when

considering incriminating inferences to be drawn from the other defendant's statements.

       Moreover, any instructional error in failing to more fully amplify CALCRIM No.

301 was not prejudicial. In determining the impact of such an instructional error, if it

occurred, we are governed by the familiar standard set forth in People v. Watson (1956)

46 Cal.2d.818, 836. (See People v. Breverman (1998) 19 Cal.4th 142, 149.) Here, the

                                              7
only harm the challenged instruction may have caused was in damaging defendants'

credibility. However, Cortez's and Rivas's credibility was substantially undermined by

their respective efforts to manufacture an alibi and induce someone else to take

responsibility for the shootings, and the testimony of witnesses to the shooting who stated

that the fight was over by the time Cortez started firing at the Acosta brothers. Given

defendants' lack of credibility and other evidence of their guilt, there is little, if any,

probability a more fully amplified version of CALCRIM No. 301 would have resulted in

a more favorable verdict for either defendant.

       B. Sufficiency of the Evidence

       Next, the defendants contend the prosecution failed to show beyond a reasonable

doubt that, when he shot the Acosta brothers, Cortez was not acting either to defend

Rivas or in the heat of passion. Again, we reject defendants' contention.

       " ' "When the sufficiency of the evidence is challenged on appeal, the court must

review the whole record in the light most favorable to the judgment to determine whether

it contains substantial evidence--i.e., evidence that is credible and of solid value--from

which a rational trier of fact could have found the defendant guilty beyond a reasonable

doubt." ' " (People v. Hill (1998) 17 Cal.4th 800, 848-849, quoting People v. Jennings

(1991) 53 Cal.3d 334, 364.) The defendant bears the burden of demonstrating the

insufficiency of evidence and must present the facts in the light most favorable to the

prosecution. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) Thus, the

appellate court "must presume in support of the judgment the existence of every fact the

trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d

294, 314, citing People v. Johnson (1980) 26 Cal.3d 557, 576-577.)

                                                8
       As we have noted, here witnesses testified that earlier in the day, after an initial

confrontation with RVL members, Rivas told other BE members that Cortez was

"strapped"; significantly, witnesses testified the fight with Adrian Acosta was over when

Cortez began shooting and that, at that point, Rivas was standing next to Cortez. After

the shooting, both defendants made fairly substantial efforts to conceal their participation

in the crime: Cortez attempted to get an acquaintance to take responsibility for the attack,

and Rivas asked a relative to establish an alibi for both of them. In addition, Cortez

burned the clothing he was wearing at the time of the killing and threw the gun he used

into the ocean. Plainly, this conduct was not consistent with a belief Cortez was acting in

lawful defense of Rivas but was far more consistent with criminals who were conscious

of their guilt of a very serious crime. Taken together, the testimony of witnesses who

saw the shooting and defendants' manifest consciousness of guilt was more than

sufficient to prove that the shootings were neither in the defense of Rivas nor in the heat

of passion, but were a cold-blooded attack on rival gang members.

                                              II

                               Rivas's Separate Contentions

       A. Natural and Probable Consequence Doctrine

       Rivas also contends that in light of Chiu, her convictions for first degree murder

and attempted first degree murder must be reversed and remanded with instructions that

convictions for second degree murder and attempted second degree murder be entered

and that she be resentenced. We agree in part.




                                              9
       1. People v. Chiu

       In Chiu, a jury convicted the defendant of first degree willful, deliberate, and

premeditated murder, after the jury was instructed the defendant was guilty of that

offense if he aided and abetted in either of two target offenses—assault and disturbing the

peace—and murder was the natural and probable consequence of those target offenses.

The defendant in Chiu had participated in a brawl between two groups of high school

students; during the course of the brawl, he told one of his friends to "grab the gun," and,

when the friend appeared with the gun but hesitated to shoot, the defendant and a third

participant yelled, "shoot him, shoot him." The defendant's friend then shot and killed a

member of the rival group.

       In reversing the defendant's first degree murder conviction, the Supreme Court

discussed the development of the natural and probable consequences theory of culpability

and its role in the crime of murder: "The natural and probable consequences doctrine is

based on the principle that liability extends to reach 'the actual, rather than the planned or

"intended" crime, committed on the policy [that] . . . aiders and abettors should be

responsible for the criminal harms they have naturally, probably, and foreseeably put in

motion.' [Citations.] We have never held that the application of the natural and probable

consequences doctrine depends on the foreseeability of every element of the nontarget

offense. Rather, in the context of murder under the natural and probable consequences

doctrine, cases have focused on the reasonable foreseeability of the actual resulting harm

or the criminal act that caused that harm. [Citations.]

       "In the context of murder, the natural and probable consequences doctrine serves

the legitimate public policy concern of deterring aiders and abettors from aiding or

                                              10
encouraging the commission of offenses that would naturally, probably, and foreseeably

result in an unlawful killing. A primary rationale for punishing such aiders and

abettors—to deter them from aiding or encouraging the commission of offenses—is

served by holding them culpable for the perpetrator's commission of the nontarget

offense of second degree murder. [Citation.] It is also consistent with reasonable

concepts of culpability. Aider and abettor liability under the natural and probable

consequences doctrine does not require assistance with or actual knowledge and intent

relating to the nontarget offense, nor subjective forseeability of either that offense or the

perpetrator's state of mind in committing it. [Citation.] It only requires that under all of

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

or should have known that the nontarget offense was a reasonably foreseeable

consequence of the act aided and abetted by the defendant. (Ibid.)" (Chiu, supra, 59

Cal.4th at pp. 164-166, italics and fn. omitted.)

       However, because the additional elements required for commission of first degree

murder—willfulness, premeditation and deliberation—are not directly related to the

deterrence of harm, which serves as the basis for the natural and probable consequences

theory, and because of the severe penalty for first degree murder—25 years to life, with

no possibility of parole until the defendant has served 25 years in prison (§§ 190,

subd. (a), 3046, subd. (a)(2))—the court found the natural and probable consequences

doctrine will not support a jury's determination that an aider and abettor acted with the

requisite willfulness, premeditation and deliberation. "First degree murder, like second

degree murder, is the unlawful killing of a human being with malice aforethought, but has

the additional elements of willfulness, premeditation, and deliberation, which trigger a

                                              11
heightened penalty. [Citation.] That mental state is uniquely subjective and personal. It

requires more than a showing of intent to kill; the killer must act deliberately, carefully

weighing the considerations for and against a choice to kill before he or she completes

the acts that caused the death. [Citations.] Additionally, whether a direct perpetrator

commits a nontarget offense of murder with or without premeditation and deliberation

has no effect on the resultant harm. The victim has been killed regardless of the

perpetrator's premeditative mental state. Although we have stated that an aider and

abettor's 'punishment need not be finely calibrated to the criminal's mens rea' [citation],

the connection between the defendant's culpability and the perpetrator's premeditative

state is too attenuated to impose aider and abettor liability for first degree murder under

the natural and probable consequences doctrine, especially in light of the severe penalty

involved and the above-stated public policy concern of deterrence.

       "Accordingly, we hold that punishment for second degree murder is

commensurate with a defendant's culpability for aiding and abetting a target crime that

would naturally, probably, and foreseeably result in a murder under the natural and

probable consequences doctrine. We further hold that where the direct perpetrator is

guilty of first degree premeditated murder, the legitimate public policy considerations of

deterrence and culpability would not be served by allowing a defendant to be convicted

of that greater offense under the natural and probable consequences doctrine." (Chiu,

supra, 59 Cal.4th at p. 166.)

       Importantly, the court in Chiu made it clear that an aider and abettor may be found

guilty of first degree murder under a theory of direct participation: "Aiders and abettors

may still be convicted of first degree premeditated murder based on direct aiding and

                                             12
abetting principles. [Citation.] Under those principles, the prosecution must show that

the defendant aided or encouraged the commission of the murder with knowledge of the

unlawful purpose of the perpetrator and with the intent or purpose of committing,

encouraging, or facilitating its commission. [Citation.] Because the mental state

component—consisting of intent and knowledge—extends to the entire crime, it

preserves the distinction between assisting the predicate crime of second degree murder

and assisting the greater offense of first degree premeditated murder. [Citations.] An

aider and abettor who knowingly and intentionally assists a confederate to kill someone

could be found to have acted willfully, deliberately, and with premeditation, having

formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea

required for first degree murder." (Chiu, supra, 59 Cal.4th at pp. 166-167.)

       The court found that the trial court's error was prejudicial and that reversal of the

defendant's conviction was therefore required. (Chiu, supra, 59 Cal.4th at p. 168.) The

court allowed the People to accept a reduction of the conviction to second degree murder

or to retry the greater offense. (Ibid.)




                                             13
       2. Analysis–First Degree Murder

       Here, there is no dispute that under the instructions the trial court gave the jury,

the jury could find Rivas guilty of first degree murder under the probable consequences

doctrine. Indeed, the prosecutor relied on the probable consequences doctrine in her

closing argument to the jury. The trial court's instructions also permitted Rivas to be

convicted on the theory that she was a direct participant in the murder of Adrian Acosta.

However, as the Attorney General concedes, in her rebuttal argument the prosecutor

directed the jury to focus primarily on the natural and probable consequences doctrine.

       When, as here, "a trial court instructs a jury on two theories of guilt, one of which

was legally correct and one legally incorrect, reversal is required unless there is a basis in

the record to find that the verdict was based on a valid ground. [Citations.] Defendant's

first degree murder conviction must be reversed unless we conclude beyond a reasonable

doubt that the jury based its verdict on the legally valid theory that defendant directly

aided and abetted the premeditated murder. [Citation.]" (Chiu, supra, 59 Cal.4th at

p. 167.)

       Here, the prosecutor's emphasis on the natural and probable consequences theory

in her rebuttal makes it difficult to conclude with confidence that the jury relied instead

on the theory that Rivas directly aided and abetted premeditated murder. Admittedly,

Rivas's fight with Adrian Acosta, in which mutual blows were apparently struck, and her

statement to Cortez, "shoot him, shoot him," give rise to an inference that, at that point,

she wanted her husband to kill Adrian Acosta and had the requisite intent to support a

first degree murder conviction as a direct aider and abettor. However, those



                                              14
circumstances do not necessarily show that the jury found the required mental state,

especially in light of the prosecutor's argument.

       Contrary to the Attorney General's argument, the jury's finding that the attempted

murder of Raul Acosta was an attempted first degree murder, does not show the jury

found that Rivas directly aided and abetted either the murder of Adrian Acosta or the

attempted murder of Raul Acosta. The instructions that the trial court gave the jury

permitted the jury to use the natural and probable consequences theory to find Rivas

committed an attempted first degree murder as well as first degree murder. In particular,

the instructions permitted the jury to find Rivas committed attempted first degree murder

if either Cortez or Rivas acted willfully, deliberately and with premeditation.

       3. Analysis–Attempted First Degree Murder

       We are compelled by the court's holding in People v. Favor (2012) 54 Cal.4th 868,

877-878 (Favor) to affirm Rivas's conviction of the attempted murder of Raul Acosta and

the jury's specific finding the attempt was an attempt to commit first degree murder.

       The attempt to commit a crime is proscribed by section 664. Section 664,

subdivision (a) sets forth the punishment for attempts to commit felonies, including

attempts to commit murder. In part, section 664, subdivision (a) states: "[I]f the crime

attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the

person guilty of that attempt shall be punished by imprisonment in the state prison for life

with the possibility of parole. If the crime attempted is any other one in which the

maximum sentence is life imprisonment or death, the person guilty of the attempt shall be

punished by imprisonment in the state prison for five, seven, or nine years. The

additional term provided in this section for attempted willful, deliberate, and

                                             15
premeditated murder shall not be imposed unless the fact that the attempted murder was

willful, deliberate, and premeditated is charged in the accusatory pleading and admitted

or found to be true by the trier of fact."

       In Favor, the court held that a jury could rely on the natural and probable

consequences doctrine in finding an aider and abettor guilty of the crime of attempted

murder and that a jury's separate determination that the crime attempted was first degree

murder would apply to the aider and abettor, even if the aider and abettor did not act with

willfulness, deliberation and premeditation: "Because section 664(a) 'requires only that

the attempted murder itself was willful, deliberate, and premeditated' [citation], it is only

necessary that the attempted murder 'be committed by one of the perpetrators with the

requisite state of mind.' [Citation.] Moreover, the jury does not decide the truth of the

penalty premeditation allegation until it first has reached a verdict on the substantive

offense of attempted murder. [Citation.] Thus, with respect to the natural and probable

consequences doctrine as applied to the premeditation allegation under section 664(a),

attempted murder—not attempted premeditated murder—qualifies as the nontarget

offense to which the jury must find foreseeability. Accordingly, once the jury finds that

an aider and abettor, in general or under the natural and probable consequences doctrine,

has committed an attempted murder, it separately determines whether the attempted

murder was willful, deliberate, and premeditated.

       "Under the natural and probable consequences doctrine, there is no requirement

that an aider and abettor reasonably foresee an attempted premeditated murder as the

natural and probable consequence of the target offense. It is sufficient that attempted

murder is a reasonably foreseeable consequence of the crime aided and abetted, and the

                                             16
attempted murder itself was committed willfully, deliberately and with premeditation."

(Favor, supra, 54 Cal.4th at pp. 879-880, italics omitted.)

       In Chiu, the court took some pains to distinguish Favor: "Relying on Favor, the

People urge us to reach the same result here. However, we find that case distinguishable

in several respects. Unlike Favor, the issue in the present case does not involve the

determination of legislative intent as to whom a statute applies. Also, unlike Favor,

which involved the determination of premeditation as a requirement for a statutory

penalty provision, premeditation and deliberation as it relates to murder is an element of

first degree murder. In reaching our result in Favor, we expressly distinguished the

penalty provision at issue there from the substantive crime of first degree premeditated

murder on the ground that the latter statute involved a different degree of the offense.

(Favor, supra, 54 Cal.4th at pp. 876–877.) Finally, the consequence of imposing liability

for the penalty provision in Favor is considerably less severe than in imposing liability

for first degree murder under the natural and probable consequences doctrine. Section

664(a) provides that a defendant convicted of attempted murder is subject to a

determinate term of five, seven, or nine years. If the jury finds the premeditation

allegation true, the defendant is subject to a sentence of life with the possibility of parole.

(Ibid.) With that life sentence, a defendant is eligible for parole after serving a term of at

least seven years. (§ 3046, subd. (a)(1).) On the other hand, a defendant convicted of

first degree murder must serve a sentence of 25 years to life. (§ 190, subd. (a).) He or

she must serve a minimum term of 25 years before parole eligibility. (§ 3046, subd.

(a)(2).) A defendant convicted of second degree murder must serve a sentence of 15



                                              17
years to life, with a minimum term of 15 years before parole eligibility. (§§ 190, subd.

(a), 3046, subd. (a)(2).)" (Chiu, supra, 59 Cal.4th at p. 163, italics omitted.)

       In light of the holding in Favor, and the court's express unwillingness in Chiu to

depart from it, we are in no position to question its validity. (See Auto Equity Sales, Inc.

v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, the trial court did not err in

permitting the jury to rely on the natural and probable consequences theory in finding that

Rivas attempted to murder Raul Acosta and that the attempt was willful, premeditated

and deliberate.

       B. Aider and Abettor Instructions

       The trial court instructed the jury with CALCRIM Nos. 400 and 401, which set

forth the general principles of aider and abettor culpability.2 On appeal, Rivas argues




2      The version of CALCRIM No. 400 that the trial court provided stated:
       "A person may be guilty of a crime in two ways. One, he or she may have directly
committed the crime. I will call that person the perpetrator. Two, he or she may have
aided and abetted a perpetrator, who directly committed the crime. A person is guilty of
a crime whether he or she committed it personally or aided and abetted the perpetrator.
"Under some specific circumstances, if the evidence establishes aiding and abetting of
one crime, a person may also be found guilty of other crimes that occurred during the
commission of the first crime."
       The version of CALCRIM No. 401 which the trial court provided, stated:
       "To prove that defendant Lilia Teresa Rivas is guilty of a crime based on aiding
and abetting that crime, the People must prove that:
       "1. The perpetrator committed the crime;
       "2. The defendant Lilia Teresa Rivas knew that the perpetrator intended to
commit the crime;
       "3. Before or during the commission of the crime, the defendant Lilia Teresa
Rivas intended to aid and abet the perpetrator in committing the crime;
       "AND
       "4. The defendant Lilia Teresa Rivas'[s] words or conduct did in fact aid and abet
the perpetrator's commission of the crime.
                                             18
that the trial court erred in failing to sua sponte instruct the jury that it could find that

Rivas was guilty of a lesser crime than Cortez. We find no such duty.

       1. Legal Principles

       We agree with Rivas that an aider and abettor may be convicted of a lesser offense

than the principal or perpetrator; importantly, however, an aider and abettor may also be

convicted of a greater offense. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117;

People v. Lopez (2011) 198 Cal.App.4th 1106, 1118.) We have not found, and Rivas has

not cited, any case in which a sua sponte duty to explain these principles has been

imposed on trial courts, when as here the jury has been accurately instructed on the

principles governing aider and abettor culpability. In the absence of such authority, we

are governed by the general principal, that "[a] trial court has no sua sponte duty to revise

or improve upon an accurate statement of law without a request from counsel [citation],

and failure to request clarification of an otherwise correct instruction forfeits the claim of

error for purposes of appeal. [Citations.]" (People v. Lee (2011) 51 Cal.4th 620, 638.)

       We also reject Rivas's related claim that her counsel was ineffective in failing to

ask for a pinpoint instruction on the possibility she may have committed lesser crimes

than Cortez. In light of Rivas's role in fighting with Adrian and the legal possibility that

Rivas might be found guilty of greater crimes than Cortez, counsel's failure to seek a

pinpoint instruction on this issue may well have represented a tactical choice to focus on



      "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful
purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator's commission of that crime.
      "If all of these requirements are proved, the defendant does not need to actually
have been present when the crime was committed to be guilty as an aider and abettor."
                                               19
rebutting application of the natural and probable consequence doctrine and avoid any

discussion of the possibility Rivas was guilty of greater crimes. Where such tactical

possibilities appear on the face of the record, a claim of ineffective assistance of counsel

will not prevail. (See People v. Mai (2013) 57 Cal.4th 986, 1009.)

       C. Juror Information

       1. Trial Court Proceedings

       Following the jury's verdict, Rivas filed a petition under Code of Civil Procedure

section 206, subdivision (g) in which she sought an order releasing the jurors' names,

addresses, and telephone numbers. In support of the motion, she relied on statements

Juror No. 7 made to her counsel after trial and in a written declaration. In her oral

statement to counsel and in her written declaration, the juror stated that the jury believed

that, having found Cortez guilty of first degree murder, and having found that Rivas was

an aider or abettor, it had no choice other than to also find Rivas guilty of first degree

murder. The trial court denied Rivas's petition.

       2. Legal Principles

       Code of Civil Procedure section 206, subdivision (g) permits a defendant to

request the release of sealed juror information upon a showing of good cause within the

meaning of Code of Civil Procedure section 237. (See People v. Wilson (1996) 43

Cal.App.4th 839, 852.) To show good cause, a defendant must make a showing that

supports "a reasonable belief that jury misconduct occurred." (People v. Jones (1998) 17

Cal.4th 279, 317.) Importantly, under Evidence Code section 1150, subdivision (a),

"evidence about a jury's 'subjective collective mental process purporting to show how the

verdict was reached' is inadmissible . . . where . . . they 'at most suggest "deliberative

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error" in the jury's collective mental process--confusion, misunderstanding, and

misinterpretation of the law.' [Citations.]" (Mesecher v. County of San Diego (1992) 9

Cal.App.4th 1677, 1683.)

       3. Analysis

       Here, Juror No. 7's statements were clearly inadmissible under Evidence Code

1150, subdivision (a) as they only reflected the jury's deliberative processes and would

not support any finding of juror misconduct. In the absence of any evidence of

misconduct, there was no good cause for the release of juror information; hence, the trial

court did not abuse its discretion in denying Rivas's petition.

                                      DISPOSITION

       Rivas's conviction of first degree murder is reversed and remanded for further

proceedings. As in Chiu, the People may accept a reduction of the conviction to second

degree murder or retry the greater offense. In all other respects, the judgments of

conviction are affirmed.

                                                                      BENKE, Acting P. J.

WE CONCUR:


HUFFMAN, J.


NARES, J.




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