People v. Laster

• Decision Date: 26 February 1997
• Docket Number: No. E016226,E016226
• Citation: 52 Cal.App.4th 1450,61 Cal.Rptr.2d 680
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 1448, 97 Daily Journal D.A.R. 2051 The PEOPLE, Plaintiff and Respondent, v. Ventrice Lajuan LASTER et al., Defendants and Appellants.

Page 680

61 Cal.Rptr.2d 680

52 Cal.App.4th 1450, 97 Cal. Daily Op. Serv. 1448,

97 Daily Journal D.A.R. 2051

The PEOPLE, Plaintiff and Respondent, v. Ventrice Lajuan LASTER et al., Defendants and Appellants.

No. E016226.

Court of Appeal, Fourth District, Division 2, California.

Feb. 26, 1997.

Certified For Partial Publication. ^*

Rehearings Denied March 18, and March 27, 1997.

Review Denied June 18, 1997.

[52 Cal.App.4th 1454] Charles R. Khoury, Jr., John M. Bishop, under appointments by the Court of Appeal, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle B. Davis, Supervising Deputy Attorney General, and Robert B. Shaw, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RICHLI, Associate Justice.

Defendants Ventrice ("Vince") Laster and Frederick Hayes (collectively defendants) were convicted on four counts of deliberate and premeditated attempted murder arising out of a "drive-by" shooting. Defendant Laster admittedly drove the car. Defendant Hayes admittedly was the passenger; the prosecution claimed Hayes was also the shooter. Defendants, however, claimed the shooting was the unplanned and unforeseen act of one of two mysterious passengers in the back seat. The prosecution accordingly argued that, even if neither defendant was the shooter, they were both liable for attempted murder on an aiding and abetting theory.

In this appeal, defendants contend that:

1. The jury instructions erroneously permitted the jury to find defendants guilty of attempted murder on the theory that it was a natural and probable consequence of the offense of discharging a firearm from a motor vehicle (Pen.Code, § 12034, subd. (d)), even though, on the facts of this case, the attempted murder and the discharge of a firearm consisted of the same act.

2. Aiding and abetting requires specific intent, and the trial court erred by failing to instruct accordingly.

3. The jury instruction on permitting the discharge of a firearm from a vehicle (Pen.Code, § 12034, subd. (b)) conflicted with the jury instruction on aiding and abetting.

4. Penal Code section 12034, subdivision (b), which defines the offense of permitting the discharge of a firearm from a vehicle, is unconstitutionally vague.

5. The jury instruction on permitting the discharge of a firearm from a vehicle (Pen.Code, § 12034, subd. (b)) was excessively vague.

6. The target offenses of discharging a firearm from a motor vehicle (Pen.Code, § 12034, subd. (d)) and permitting the discharge of a firearm from a vehicle (Pen.Code, § 12034, subd. (b)) are specific intent crimes, and the trial court erred by failing to instruct accordingly.

7. The trial court should have specified the mental state required to be guilty of permitting the discharge of a firearm from a motor vehicle (Pen.Code, § 12034, subd. (b)) by giving CALJIC No. 3.31.5 (1992 rev.).

8. A defendant who aids and abets an attempted murder is not subject to the increased penalty for willful, deliberate, and premeditated attempted murder (Pen.Code, § 664, subd. (a)) unless he or she personally deliberated and premeditated, and the trial court erred by failing to instruct accordingly.

9. The trial court erroneously failed to instruct that defendants could not be convicted of deliberate and premeditated attempted murder on an aiding and abetting theory unless the necessary mental state on the part of the perpetrator was a natural and probable consequence of the offense defendants intended to aid and abet.

10. The trial court erroneously failed to instruct on second degree attempted murder.

11. The trial court erroneously failed to instruct on attempted voluntary manslaughter.

12. The trial court erred by instructing the jury that it had to agree on whether defendants were guilty of attempted murder before it could consider lesser offenses ("Kurtzman error").

13. The jury instruction on the race enhancements (Pen.Code, § 422.75, subd. (c)) failed to define "in concert."

14. The jury instruction on the race enhancements (Pen.Code, § 422.75, subd. (c)) failed to require that a bias motivation have been a "cause in fact" of the crime.

15. The trial court erred by adding race enhancements (Pen.Code, § 422.75, subd. (c)) to indeterminate life terms.

We find no prejudicial error, and we will affirm.

I FACTUAL BACKGROUND

On July 5, 1994, at about 3 p.m., Venus Blankenship stopped at an ARCO station on University Avenue in Riverside to get gas. She was accompanied by her cousin Nominick Hayes and her two children.

Venus, with her children, went inside to pay; Nominick got out to pump the gas. There were four Hispanic males in a nearby car. One of them got out, came up to Nominick and said, "What the fuck you looking at[,] homes?" Nominick said, "What you talking about, man?" The man asked, "Are you one of them 1200?" Nominick took this to be a reference to the 1200 Block Crips. He answered, "No, I am not even from there."

A second Hispanic male came up, asked Nominick where he was from, then announced, "This is Tiny Dukes." A third Hispanic male rode into the gas station on a bicycle. He asked, "What the fuck you say to my homeboy?" Nominick replied, "I didn't say nothing. What you talking about?" Venus, who had been standing at the store entrance watching the confrontation, said, "I don't think he said anything. We will just leave."

At that point, the third man hit Nominick on the back of the head with a 40-ounce beer bottle. Nominick started running. The first man threw a bottle at Nominick which hit him in the leg. All three men started chasing him. Nominick ran to a construction site, where one of the workers called police.

Meanwhile, Venus drove to the courthouse, where she called her mother. She said some gang members had hit Nominick in the head with a bottle, and he had run off. She "may have" said they were Mexican. Venus also called the police. They told her Nominick was on the other phone, and gave her directions to the construction site. She drove back to look for Nominick, but she couldn't find him. At about 5:30 p.m., she went to her mother's house.

Venus's mother, Francetta Hayes, lived on Hemlock Street in Moreno Valley, with Venus's sisters, Cherie Mays and Darlena Mays. Defendant Laster was Cherie's fiance. Venus's cousin, defendant Frederick Hayes, was staying at the house on Hemlock while visiting from Detroit.

Around 5 or 6 p.m., before Venus got home, Cherie let defendants take her maroon car to go look for Nominick. Around 5:50 or 6 p.m., they returned to the house. Two other people were with them. Venus's mother went out to the car and talked to defendants. Defendants left for about ten minutes, then came back alone.

Virginia Duenas was at Sixth and Franklin, along the east side of Longfellow Elementary School. She heard screeching tires; then she saw Cherie's maroon car. It was swerving and turning "crazy like." There were three or four black males in it. Duenas took down the license plate number.

At about 6:55 p.m., the maroon car was on Eucalyptus Avenue, along the west side of Longfellow Elementary School, next to the basketball courts. There were about 30 people in the basketball area. One was black; the rest were Hispanic. Perhaps two of them were dressed like "gang bangers," with "saggy pants." Ten of them were children.

The basketball area was surrounded by a fence; a gate in the fence opened directly onto a crosswalk at Seventh and Eucalyptus. There was a stop sign on the south side of the crosswalk. The maroon car stopped in the middle of the crosswalk. Witnesses saw four black men inside. One of the men fired about 20 shots, in two bursts, through the gate and into the basketball area.

According to Richard Guzman, who was playing basketball, the shots came from the front passenger window; he could see the flashes. Seven-year-old Albert Gonzalez also testified that the shots were fired from the front passenger window.

The gunfire struck four people. Two-year old Anna Gonzalez, Albert's sister, was hit in the head. Joseph Romero was shot in the abdomen. Arturo Marquez was shot in the back, and Augustine Cervantes Sanchez was shot in the leg.

At about 7:30 or 8 p.m., Nominick called the house on Hemlock. He said he was at Laster's mother's house. Defendants took Venus's car and went to pick him up.

Police traced the license number Virginia Duenas had taken down to the house on Hemlock. Around 10 p.m., Riverside Police Detective Ron Sanfilippo and other officers went there. The maroon car was outside. At about the same time, Hayes and Nominick walked up. The police questioned them briefly. Hayes denied having gone to Riverside.

Sanfilippo went in and told Cherie her car had been used in a shooting in Riverside earlier that day. She told him that around 5:30 p.m., she had lent the car to Vince and Fred. At first, she claimed she didn't know their last names or where they lived. Laster, however, walked into the room; Sanfilippo asked him his name, and he said he was Vince. Cherie then admitted he was her boyfriend.

Sanfilippo also interviewed Venus. She told him about the attack on Nominick. She said that afterward, she spoke to Hayes on the phone and told him some Mexican males had hit Nominick over the head with a bottle at a gas station.

Sanfilippo took both defendants back to the station. They waived their Miranda rights and agreed to be interviewed.

Hayes said he been out to Lake Perris with some friends. When he got back, he heard that some Mexicans had attacked Nominick in Riverside. He and Laster then took Cherie's car to go into Riverside. Laster was driving; Hayes was in the front passenger seat. On the way, they stopped at a grocery store and picked up two other black males. These were introduced to Hayes as "homie or home boy or something." Hayes thought Laster knew them, but wasn't sure if he knew...