People v. Concha

• Decision Date: 12 November 2009
• Docket Number: No. S163811.,S163811.
• Citation: 47 Cal. 4th 653,218 P.3d 660,101 Cal.Rptr.3d 141
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Reyas CONCHA et al., Defendants and Appellants.

218 P.3d 660

101 Cal.Rptr.3d 141

47 Cal. 4th 653

The PEOPLE, Plaintiff and Respondent, v. Reyas CONCHA et al., Defendants and Appellants.

No. S163811.

Supreme Court of California.

November 12, 2009.

Maria Morrison, Los Angeles, under appointment by the Supreme Court, for Defendant and Appellant Reyas Concha.

Diana M. Teran, Los Angeles, under appointment by the Supreme Court, for Defendant and Appellant Julio Hernandez.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

Mitchell Keiter, Los Angeles, as Amicus Curiae on behalf of Plaintiff and Respondent.

CHIN, J.

Reyas Concha, Julio Hernandez, and Max Sanchez attempted to murder Jimmy Lee Harris. During the attempt, Harris responded in self-defense by stabbing Max Sanchez to death. Relying on the so-called provocative act murder doctrine, the jury convicted defendants Concha and Hernandez of first degree murder for the death of Sanchez. We granted review to determine whether a defendant may be liable for first degree murder when his accomplice is killed by the intended victim in the course of an attempted murder. We hold that a defendant may be convicted of first degree murder under these circumstances if the defendant personally acted willfully, deliberately, and with premeditation during the attempted murder.

I. FACTS AND PROCEDURAL HISTORY

On July 14, 2005, Reyas Concha, Julio Hernandez, Max Sanchez, and a fourth unidentified man threatened to kill Jimmy Lee Harris during an apparent attempted robbery. Harris fled from the assailants and ran down the middle of a street in Los Angeles. The four men pursued Harris for over a quarter of a mile before cornering him against a fence. Harris attempted to scale the fence and one or more of the assailants began stabbing him. The stabbing continued for several seconds. Harris, realizing that his life was in danger, turned around and attempted to fight the four men off. Harris pulled a pocket knife from his pocket and "began to stab as many of them as [he] could." Harris then fled and found someone who called the police. Harris suffered severe injuries, but he survived. Sanchez died from the stab wounds that Harris inflicted during the attack.

The jury convicted defendants of attempted first degree murder of Harris. (Pen. Code, §§ 187, 664, subd. (a).)¹ Relying on the provocative act murder doctrine, the jury also convicted defendants of the first degree murder of Sanchez. (Pen.Code, § 187 subd. (a).) The jury found true that Hernandez personally used a deadly and dangerous weapon during both the attempted murder and the murder. (§ 12022, subd. (b)(1).) The jury specifically found true allegations that the attempted murder of Harris was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)). However, the jury was not asked to find, and did not specifically find, that each defendant personally acted willfully, deliberately, and with premeditation during the attempt. Hernandez admitted that he had suffered a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The jury deadlocked as to each defendant on an attempted second degree robbery charge (§§ 211, 664) and the trial court granted the prosecution's motion to dismiss the attempted robbery charges.

The Court of Appeal affirmed the convictions. In an opinion by Justice Mosk, the majority held that defendants' first degree murder convictions for the death of their accomplice based on the provocative act doctrine was supported by the jury's finding that the attempted murder of the victim was willful, deliberate and premeditated. The majority reasoned that the murder convictions "were not based on a provocative act implied malice theory that would have required a finding of second degree murder. Instead, the convictions were based on defendants' express malice in attempting to kill Harris." The majority applied the doctrine of transferred intent to reach its conclusion that defendants' mental state in connection with the attempted murder made them guilty of Sanchez's murder in the first degree, reasoning as follows: "Section 189 expressly provides that a willful, deliberate, and premeditated killing is murder of the first degree. The jury found that defendants acted with malice, premeditation, and deliberation in attempting to murder Harris, and found that each committed at least one act in the course of attempted murder that was a proximate cause of Sanchez's killing. Thus, defendants' mental state—express malice, willfulness, deliberation, and premeditation—in connection with the attempted murder of Harris transferred to the killing of Sanchez, making them guilty of his murder in the first degree."

In a separate concurring opinion, Justice Turner concluded that the murder conviction should be reduced from first degree to second degree because the jury's express malice and premeditation finding with respect to the attempted murder count cannot be transferred to the provocative act murder of defendants' accomplice.

We granted review limited to the following issue: "Did the trial court err in allowing the jury to return verdicts of first degree murder when the case was tried on a theory of provocative-act murder?"

II. DISCUSSION

Defendants contend the provocative act murder doctrine limits a defendant's liability to second degree murder when the defendant's accomplice is killed by the victim during a willful, deliberate, and premeditated attempt to commit murder. We disagree.

Murder is the unlawful killing of a person with malice aforethought. (§ 187.) Murder includes both actus reus and mens rea elements. To satisfy the actus reus element of murder, an act of either the defendant or an accomplice must be the proximate cause of death. (People v. Roberts (1992) 2 Cal.4th 271, 320, 6 Cal.Rptr.2d 276, 826 P.2d 274 (Roberts); People v. McCoy (2001) 25 Cal.4th 1111, 1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210 (McCoy).) For the crime of murder, as for any crime other than strict liability offenses, "there must exist a union, or joint operation of act and intent, or criminal negligence." (§ 20.) To satisfy the mens rea element of murder, the defendant must personally act with malice aforethought. (McCoy, supra, 25 Cal.4th at p. 1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210.)

A defendant can be liable for the unlawful killings of both the intended victims and any unintended victims. "`[T]here is no requirement of an unlawful intent to kill an intended victim. The law speaks in terms of an unlawful intent to kill a person, not the person intended to be killed.'" (People v. Bland (2002) 28 Cal.4th 313, 323, 121 Cal. Rptr.2d 546, 48 P.3d 1107 (Bland), quoting People v. Scott (1996) 14 Cal.4th 544, 556, 59 Cal.Rptr.2d 178, 927 P.2d 288 (Scott) (conc. opn. of Mosk, J.).)

For example, a defendant is liable for both murder and attempted murder if he or an accomplice attempts to kill a specific person and instead kills a bystander. (Scott, supra, 14 Cal.4th at p. 546, 59 Cal.Rptr.2d 178, 927 P.2d 288.) Similarly, a defendant is liable for two murders if, in the course of killing his intended victim, he or an accomplice also kills a bystander. (Bland, supra, 28 Cal.4th at pp. 325-326, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) In short, a defendant may be liable for murder when he possesses the appropriate mens rea and either the defendant or an accomplice causes an unlawful death. As we explained in Bland, "`[a] mens rea ... is an elastic thing of unlimited supply.... It may combine with a single actus reus to make a single crime. It may as readily combine with a hundred acti rei, intended and unintended, to make a hundred crimes.... Unforeseen circumstances may multiply the criminal acts for which the criminal agent is responsible. A single state of mind, however, will control the fact of guilt and the level of guilt of them all.'" (Id. at p. 325, 121 Cal.Rptr.2d 546, 48 P.3d 1107, quoting Harvey v. State (1996) 111 Md.App. 401, 681 A.2d 628, 637.)

However, the defendant is liable only for those unlawful killings proximately caused by the acts of the defendant or his accomplice. (Roberts, supra, 2 Cal.4th at p. 320, 6 Cal.Rptr.2d 276, 826 P.2d 274.) "In all homicide cases in which the conduct of an intermediary is the actual cause of death, the defendant's liability will depend on whether it can be demonstrated that his own conduct proximately caused the victim's death...." (People v. Cervantes (2001) 26 Cal.4th 860, 872, 111 Cal.Rptr.2d 148, 29 P.3d 225, fn. 15 (Cervantes).) "[I]f the eventual victim's death is not the natural and probable consequence of a defendant's act, then liability cannot attach." (Roberts, supra, 2 Cal.4th at p. 321, 6 Cal.Rptr.2d 276, 826 P.2d 274.) Our prior decisions make clear that, where the defendant perpetrates an inherently dangerous felony, the victim's self-defensive killing is a natural and probable response. (See, e.g., People v. Gilbert (1965) 63 Cal.2d 690, 705, 47 Cal.Rptr. 909, 408 P.2d 365 (Gilbert); People v. Caldwell (1984) 36 Cal.3d 210, 220-222, 203 Cal.Rptr. 433, 681 P.2d 274 (Caldwell).)

In the present case, although it is apparent that defendants Concha and Hernandez did not intend to kill their accomplice, they had the intent to kill a person when they attacked their intended victim, and therefore are guilty of murder as to any killing either of them proximately caused while acting together pursuant to their intent to kill.

Once liability for murder "is otherwise established, section 189 may be invoked to determine its degree." (Gilbert, supra, 63 Cal.2d at p. 705, 47 Cal.Rptr. 909, 408 P.2d 365; see also Caldwell, supra, 36 Cal.3d at p. 217, fn. 2, 203 Cal.Rptr. 433, 681 P.2d 274, quoting Gilbert with approval; Cervantes, supra, 26 Cal.4th at p. 872, fn. 15, 111 Cal.Rptr.2d...