Filed 9/1/15 P. v. Asberry CA5




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067710
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF144270B)
                   v.

ALOYSIUS EMMANUEL ASBERRY,                                                               OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         Kyle Gee, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Aloysius Emmanuel Asberry (Asberry) was convicted of second degree murder
and deliberate and premeditated attempted murder. The evidence showed that he acted
not as the direct perpetrator but as an aider and abettor. He argues that the jury
instructions were erroneous because they failed to express the idea that, to be guilty of
these offenses as an aider and abettor, he had to have an intent to kill. Asberry maintains
that, if the jury found the direct perpetrator acted with implied malice, it would be
incorrect for it to find Asberry guilty as an accomplice without making a separate finding
that Asberry intended to kill.
       Alternatively, Asberry argues that the jury should not have been instructed that the
direct perpetrator (who was not tried in the same trial) could have committed murder on
an implied-malice basis in the first place. Asberry says he could not be guilty of murder
as an aider and abettor if implied malice was the direct perpetrator’s mental state, so the
jury should not have been allowed to consider that theory of murder. This argument is
based on the notions that an accomplice must share the intent of a direct perpetrator and
that implied malice is not an intent and thus cannot be a shared intent.
       For murder, both of Asberry’s arguments are contrary to the settled law. To be
guilty of murder as an aider and abettor, the jury had to find that the direct perpetrator
committed murder, that Asberry knew of the direct perpetrator’s intention to commit the
criminal act, and that Asberry intended to assist. If the direct perpetrator acted with
implied malice—that is, intentionally committed an act of which death was a natural and
probable consequence, while knowing of this danger and having a conscious disregard
for life—and Asberry knew of the direct perpetrator’s intention of committing such an
act, intended to assist, and did assist, then Asberry is guilty of second degree murder.
Neither the direct perpetrator nor the accomplice need have an intent to kill under this
theory of murder.
       For attempted murder, it is true that a direct perpetrator and an accomplice both
must have an intent to kill, but the jury instructions in this case were sufficiently clear on
that point.
       We will order the correction of a clerical error in the abstract of judgment and
otherwise affirm.

                                              2.
                        FACTS AND PROCEDURAL HISTORY
       Bakersfield police responded to a report of shots fired around 1:41 a.m. on
September 26, 2012. In an alley near the intersection of 34th Street and Panama Street,
they found Christopher Gonzales (Christopher) face down on the ground, dead with a
gunshot wound to the chest. Nearby on his knees, also bleeding from a gunshot wound,
was Christopher’s brother, Andrew Gonzales (Andrew). Andrew told officers there had
been an argument and the shooter was a black teenage boy who was accompanied by two
young black men.
       The district attorney filed an information charging Asberry and Peter Collins
(Collins) in the shootings. As will be seen, these defendants were accused as
accomplices, not direct perpetrators. The People’s evidence indicated that a third
perpetrator, Gary A. (Gary), was the shooter. The information charged Asberry and
Collins with Christopher’s murder (Pen. Code,1 § 187) in count 1 and with the attempted
murder (§§ 187, 664) of Andrew in count 2. The information alleged that Asberry and
Collins committed both offenses for the benefit of, at the direction of, or in association
with a criminal street gang. (§ 186.22, subd. (b).) Both offenses were alleged to be
deliberate and premeditated (§ 189), and it was alleged, as to both offenses, that a
principal intentionally and personally discharged a firearm, causing great bodily injury or
death (§ 12022.53, subds. (d), (e)(1)). For the murder count, the information charged a
gang special circumstance for both defendants. (§ 190.2, subd. (a)(22).) The information
further alleged that Asberry had a prior conviction for burglary. This conviction was the
basis of a second-strike enhancement allegation (§§ 667, subds. (c)-(j), 1170.12,
subds. (a)-(e)), a prior-prison-term enhancement allegation (§ 667.5, subd. (b)), and a
prior-serious-felony enhancement allegation (§ 667, subd. (a)) for both counts. Asberry’s
prior conviction for being in possession of a stolen vehicle was the basis of another prior-

       1Subsequent   statutory references are to the Penal Code unless otherwise noted.


                                             3.
prison-term enhancement allegation (§ 667.5, subd. (b)) for both counts. Finally, in
count 3, the information charged Asberry and Collins with active participation in a
criminal street gang. (§ 186.22, subd. (a).) The prior offenses described above were
alleged for sentence-enhancement purposes in connection with count 3 as well.
       At trial, Andrew testified that he lived near a Fastrip convenience store at 34th and
Q Streets and went to the store with Christopher around 1:30 a.m. on September 26,
2012. Approaching the store, he saw Asberry, Collins, and Gary standing in the alley.
Inside the store, he met his friend Emmanuel Body, to whom he had previously sold
drugs. Body was high on methamphetamine and appeared to be scared of something.
Andrew and Christopher bought beers and a cigar. Andrew shared the cigar with Body
outside the store, and then Andrew and Christopher headed for Christopher’s house while
Body walked away in another direction.
       In the alley, Andrew again saw Asberry, Collins, and Gary. As Andrew and
Christopher passed by the other three men, about two or three feet away, Collins said
Body was no good and Andrew and Christopher should not talk to him. Andrew
answered, “I know him. He’s a cool cat. He’s good with me.” Andrew and Christopher
continued down the alley. Andrew heard footsteps following them and looked back. He
saw Collins take something from the area of his hip and hand it to Asberry. Asberry
handed it to Gary, who put it in his waistband. At first, Andrew thought the object could
have been a cell phone. The three were about 15 feet away.
       Andrew, not yet sure what the object was, became concerned and told Christopher
that the two of them should move to opposite sides of the alley and let the other three
pass. As he walked by, Gary mumbled something to Christopher that Andrew could not
make out. Christopher replied, “We’re just trying to—oh, I’m just trying to go home, but
it’s whatever, dog.” Gary responded, “I ain’t no nigga.” Christopher answered, “I didn’t
call you a nigga. I called you dog.”



                                             4.
         After Asberry, Collins, and Gary passed by, Andrew and Christopher were
expecting a fight. Gary drew a gun from his waistband and “tried to cock it back” but “it
locked it up on him, and he was struggling.” This was when Andrew realized the object
Gary put in his waistband after receiving it from Asberry was a gun. As Gary struggled
to operate the gun, Asberry said to him, “Fuck it, give it to me.” Asberry grabbed the gun
and tried to take it from Gary. Gary pulled it away and succeeded in moving the slide
back.
         Gary began firing. He fired 9 to 12 times. First he shot and killed Christopher.
Then he shot Andrew. Andrew was hit four times. Gary and Asberry ran away in one
direction and Collins in another. Andrew believed he and his brother were shot because
they had been talking to Body.
         Body testified that he had known Andrew since middle school and they sometimes
sold drugs to each other. Body was acquainted with Collins and had once had a physical
fight with him. The fight was over Gary’s mother. Collins was dating her. Body also
was acquainted with her but was not dating her. According to Body, Collins appeared to
be under a misapprehension about the nature of Body’s relationship with her. Body
admitted he had been a member of the Bloods criminal street gang for seven years but
denied having told police that Collins and Asberry were members of the Eastside Crips
gang. Body said he was not aware of any rivalry between the Bloods and the Eastside
Crips.
         Body testified that he lived near the Fastrip at 34th and Q Streets and was there
around 1:30 a.m. on the night of the shooting. He saw Collins, Asberry and Gary outside,
before entering the store, and briefly spoke with Asberry. Asberry asked whether Body
knew Gary and whether he had any problems with Gary. Body knew Gary only by sight.
He told Asberry he had no problems. Then Body went inside.
         Inside the store, Body saw Andrew and Christopher. Andrew gave Body $20
worth of methamphetamine to sell. They exited, had a smoke, and walked away.

                                              5.
Collins, Asberry, and Gary were in the alley. One of them called out to Body, but Body
kept walking. Body asked Andrew and Christopher if he could give them a ride home in
his car. He “felt bad vibes” and did not feel good about letting them walk home. He told
them it would be in their best interest if they rode with him. Andrew and Christopher did
not want a ride and headed home on foot. Body continued on toward his car and was
about a block away from the store when he heard gunshots.
       Sean Morphis, a police officer, testified that he interviewed Body on October 4,
2012. Body told Morphis that Gary was present when Body and Collins had their fight
over Gary’s mother. Body said he had been dating Gary’s mother. Body also said that
when he was walking into the Fastrip store on the night of the shootings, Asberry told
Body that if Body wanted to fight somebody, he should fight Asberry. Body said he
believed Asberry and Gary wanted to start trouble with him. He told Morphis he begged
Andrew and Christopher to accept a ride from him and not to go down the alley.
       The prosecution presented testimony on gang issues by several police officers.
One officer opined that, at the time of the shooting, Asberry and Collins were members
of the Eastside Crips, Body was a Blood, and Christopher was a member of the Eastside
Bakers. Andrew had been an Eastside Baker at one time, but had dropped out by the time
of the shootings. The same officer opined that a hypothetical crime based on the facts of
the case would be done in association with and for the benefit of the Eastside Crips. The
jury’s findings on the gang allegations are not at issue in this appeal, so we will not
discuss the gang evidence in more detail.
       In his closing argument, the prosecutor said Collins gave the gun to Asberry, who
gave it to Gary; then Gary shot the victims. The prosecutor urged the jury to find
Asberry and Collins guilty of murder and attempted murder as aiders and abettors of
Gary, and to find the crimes gang-related because Asberry and Collins were Crips, and
Gary, a minor, was acting to prove himself worthy of membership in the Crips by
shooting associates of Body, a member of the rival Bloods.

                                              6.
       On count 1, the jury found Asberry not guilty of first degree murder; found not
true the allegation that the crime was willful, deliberate and premeditated; and rejected
the gang-murder special circumstance. It found Asberry guilty, however, of second
degree murder. On count 2, the jury found Asberry guilty of attempted murder and found
the attempted murder to be willful, deliberate, and premeditated. The jury could not
reach a verdict on the gang and firearm-enhancement allegations on counts 1 and 2 or on
the gang offense charged in count 3. The court declared a mistrial on those charges. The
court found true the prior-conviction allegations on counts 1 and 2.
       On count 1, the court imposed a sentence of 30 years to life (15 years to life for
second degree murder (§ 190), with the minimum term doubled because of the prior
strike (§ 667, subd. (e)), plus five years pursuant to section 667, subdivision (a), and one
year pursuant to section 667.5, subdivision (b). The second section 667.5,
subdivision (b), allegation was stricken. On count 2, the court imposed a sentence of nine
years (the upper term under section 664, subdivision (a)), plus five years pursuant to
section 667, subdivision (a), and one year pursuant to section 667.5, subdivision (b). The
second section 667.5, subdivision (b), allegation was again stricken. The total was 30
years to life plus 21 years.
                                       DISCUSSION
       Asberry maintains that the jury instructions on aiding and abetting and murder
were erroneous. In a criminal trial, the court must give an instruction requested by a
party if the instruction correctly states the law and relates to a material question upon
which there is evidence substantial enough to merit consideration by the jury. (People v.
Avena (1996) 13 Cal.4th 394, 424; People v. Wickersham (1982) 32 Cal.3d 307, 324,
overruled on other grounds by People v. Barton (1995) 12 Cal.4th 186, 201.) Even
without a request, a trial court in a criminal case is required to give correct jury
instructions on the general principles of law relevant to issues raised by the evidence.
(People v. Michaels (2002) 28 Cal.4th 486, 529-530.)

                                              7.
        The trial court has no duty to give an instruction if it is repetitious of another
instruction the court gives. (People v. Turner (1994) 8 Cal.4th 137, 203, overruled on
other grounds by People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) “‘“[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.”’”
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
        An appellate court can address instructional error to which no objection was made
at trial if the error impaired the defendant’s substantial rights. (§ 1259.) But instructional
error warrants reversal only if prejudicial. (People v. Breverman (1998) 19 Cal.4th 142,
178.)
        Here the jury was instructed in accordance with CALCRIM No. 400 that a person
can be guilty of a crime either as a perpetrator who committed the crime directly or as an
aider and abettor. The jury was instructed in accordance with CALCRIM No. 401 on the
elements of aiding and abetting. The prosecution must prove that “the perpetrator
committed the crime”; “the defendant knew that the perpetrator intended to commit the
crime”; “before or during the commission of the crime, the defendant intended to aid and
abet the perpetrator in committing the crime”; and “the defendant’s words or conduct did,
in fact, aid and abet the perpetrator’s commission of the crime.”
        On murder, the jury was instructed in accordance with CALCRIM Nos. 500, 520,
and 521. These instructions included a definition of implied malice:

               “The defendant acted with implied malice if:

               “Number one, he intentionally committed an act;

              “Number two, the natural and probable consequences of the act were
        dangerous to human life;

              “Number three, at the time he acted, he knew his act was dangerous
        to human life;




                                               8.
             “And number four, he deliberately acted with conscious disregard
       for human life.”
       The court instructed the jury on attempted murder in accordance with CALCRIM
No. 600. The instruction explained that, to be guilty of attempted murder, a defendant
must take a direct but ineffective step toward killing a person and must intend to kill that
person.
       Counsel for Collins asked the trial court for a special instruction on aiding and
abetting first degree murder and attempted murder. Asberry’s counsel joined in the
request. The requested instruction stated:

       “An aider and abettor must share the requisite specific intent of the
       perpetrator.

       “The intent required to aid and abet the crimes alleged in Count 1 and
       Count 2, 1st degree murder and attempted murder, respectively, is the same
       intent required of the perpetrator, i.e., willfully, deliberately, and with
       premeditation.

       “The aider and abettor must have shared the perpetrator’s specific intent to
       kill.

       “The specific intent to kill is a necessary element of both Counts 1 and 2.
       The specific intent required is included in the definition of 1st degree
       murder (CALCRIM 521) and attempted murder (CALCRIM 600, 601).”
The trial court refused the special instruction.
       Asberry now argues that the court should have instructed the jury that, to find him
guilty of murder or attempted murder as an aider and abettor, it had to find that he
intended to kill. As an alternative, Asberry argues that the instructions should have told
the jury that it could not find him guilty of murder as an aider and abettor unless the
direct perpetrator intended to kill, or, in other words, that Asberry could not be found to
have aided and abetted a murder that was based on the direct perpetrator’s implied
malice.




                                              9.
       As a preliminary matter, the refused instruction was about the state of mind for
aiding and abetting first degree murder and attempted murder. Asberry concedes the
instruction was “admittedly far from perfect … [and] not correct .…” Since the jury did
not find first degree murder, any error in refusing this instruction was harmless with
respect to count 1. On count 2, the requested instruction was erroneous, since attempted
murder does not require a finding that the perpetrator acted willfully, deliberately, and
with premeditation. The instructions given correctly stated that an attempted murderer
must intend to kill.
       Thus, there was no error in refusing the instruction Asberry requested. For
attempted murder, the instructions given were correct and the requested instruction was
not. On the mental state required for aiding and abetting implied malice murder—the
main topic of Asberry’s appeal—no special instruction was requested.
       We will assume for the sake of argument, however, that the omission of an
instruction of the kind now argued for on the latter topic (implied malice murder) would,
if erroneous, have affected Asberry’s substantial rights within the meaning of
section 1259. If an intent to kill were a necessary element of aiding and abetting second
degree murder, a jury so instructed might (we will assume) reasonably have found
Asberry not guilty of second degree murder. Therefore we will proceed to address the
merits of Asberry’s argument on the murder instructions.
       Asberry’s central contention is that an aider and abettor of second degree implied
malice murder must harbor an intent to kill. This is the key to both versions of his
argument. He says the jury should have been instructed either that Asberry must have
had an intent to kill or else that the shooter must have had an intent to kill and Asberry
must have shared in the shooter’s intent.
       There is, however, no authority for the proposition that an aider and abettor of
second degree implied malice murder must intend to kill. The law is settled, of course,
that a direct perpetrator can be guilty of murder based on implied malice. It is also settled

                                             10.
that an aider and abettor is guilty as a principal if he or she knew the direct perpetrator
intended to commit the crime; the aider and abettor intended to aid in its commission; and
the aider and abettor did aid in its commission. Asberry has cited no case holding that
these principles do not apply to implied malice murder.
       As Asberry points out, there is no such thing as attempted murder based on
implied malice. An intent to kill is required for that offense. (People v. Collie (1981) 30
Cal.3d 43, 62; People v. Mize (1889) 80 Cal. 41, 43.) There is no authority for the idea
that aiding and abetting murder is the same as attempting murder in this respect, however.
       There also is no basis in logic for this idea, contrary to Asberry’s contentions.
There is no such thing as implied malice attempted murder because it does not make
sense to speak of having conscious disregard for an outcome (death) when, at the same
time, one is attempting to achieve it. By contrast, it does make sense to speak of
intentionally aiding a perpetrator in doing an act when both the perpetrator and the aider
know the act naturally and probably will cause death and both consciously disregard this
probable result. When Asberry passed the gun to Gary, he could have done so while
doing all the following: knowing Gary intended to fire at the victim, intending to assist
in that act, knowing the act would naturally and probably kill the victim, knowing Gary
would fire with conscious disregard for the victim’s life, and sharing in that conscious
disregard. There is no logistical problem here.
       Asberry cites People v. Mendoza (1998) 18 Cal.4th 1114, 1129, in which the court
stated that an aider and abettor of a crime must specifically intend not only his own act of
aiding but also the criminal act the direct perpetrator commits. The court observed, as an
example, that a defendant who handed a bat to a perpetrator would not be guilty as an
aider and abettor of a crime the perpetrator subsequently committed with the bat if the
defendant’s only intent was to hand the other person a bat. (Ibid.) These statements are
consistent with what we have said and with the trial court’s instructions. Under the



                                             11.
instructions, the jury could not have found Asberry guilty of murder if it believed his
intent was merely to hand Gary a gun.
         Asberry also argues that CALCRIM No. 401 “is not clear as to the intent to kill
element for direct aiding and abetting of murder and attempted murder.” This argument
fails with respect to aiding and abetting murder because, as we have explained, there is
no requirement that an aider and abettor of second degree murder intended to kill. For
attempted murder, an aider and abettor and a direct perpetrator both must intend to kill,
but the instructions given were adequate on this point. They stated that a direct
perpetrator of attempted murder must intend to kill, and that an aider and abettor must
know of the direct perpetrator’s intent and must intend to aid him in committing the
crime.
         For all these reasons, we conclude that instructional error has not been shown.
         We have noted that the abstract of judgment describes the conviction on count 1 as
“MURDER: FIRST DEGREE (LIO).” The conviction on count 1 was of second degree
murder. The abstract must be corrected.
                                        DISPOSITION
         The judgment is affirmed. The trial court is directed to correct the abstract of
judgment to show that the conviction on count 1 was of second degree murder, not first
degree murder, and to forward the corrected abstract to the appropriate correctional
authorities.
                                                                   _____________________
                                                                                 Smith, J.
WE CONCUR:


 _____________________
 Hill, P.J.


 _____________________
 Kane, J.


                                              12.
