People v. Lucas

• Decision Date: 06 June 1997
• Docket Number: No. A068400,A068400
• Citation: 55 Cal.App.4th 721,64 Cal.Rptr.2d 282
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 4332, 97 Daily Journal D.A.R. 7189 The PEOPLE, Plaintiff and Respondent, v. Leroy Emmanuel LUCAS et al., Defendants and Appellants.

Page 282

64 Cal.Rptr.2d 282

55 Cal.App.4th 721, 97 Cal. Daily Op. Serv. 4332,

97 Daily Journal D.A.R. 7189

The PEOPLE, Plaintiff and Respondent, v. Leroy Emmanuel LUCAS et al., Defendants and Appellants.

No. A068400.

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

June 6, 1997.

Rehearing Denied July 9, 1997.

Review Denied Sept. 24, 1997.

[55 Cal.App.4th 725] J. Frank McCabe, San Francisco, under appointment by the Court of Appeal, for

Defendant and Appellant Leroy Emmanuel Lucas

Dennis P. Riordan, under appointment by the Court of Appeal, and Dylan L. Schaffer, San Francisco, for Defendant and Appellant Kenneth Ray Donaghe.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, and David D. Salmon, Deputy Attorney General, for Plaintiff and Respondent.

LAMBDEN, Associate Justice.

Leroy Emmanuel Lucas and Kenneth Ray Donaghe were each convicted in a joint jury trial of second degree murder (Pen.Code, §§ 187-189; all undesignated section references are to that code), robbery (§ 212.5) and conspiracy to rob (§§ 182, 212.5), with found-true special allegations of personal gun use (§ 12022.5, subd. (a)) and discharge at an occupied vehicle causing death (§ 12022.5, subd. (b)) as to Lucas, and simple arming (§ 12022, subd. (a)(1)) as to Donaghe. Defendants appeal following sentence to terms of 15 years to life each plus, respectively, 8 years, 4 months, and 3 years. We will affirm.

Defendants carried out the three crimes on July 21, 1993, during an evening of driving around the Redwood City area in the company of Charles (Chuck) Williams and driver William (Bill) Long. Williams and Long testified on promises of partial immunity. A brief overview of the evidence serves to frame the issues.

First in time came the conspiracy to rob. Lucas set out to rob Adam Janson of drugs and money. He made this known to the others, and Donaghe brought along a hand-gun. Donaghe sat in the back seat behind Lucas, the front-seat passenger, and at one of three stops they made in a fruitless hour-long effort to find Janson, passed Lucas the gun to take with him when Lucas asked, "Do you have the heat?" Lucas placed the gun in his waistband and pulled his shirt over it, left the car, failed to find Janson, and returned the gun to Donaghe upon returning to the car.

Next came the actual robbery, which was of a drug dealer in a neighborhood where the four drove to buy marijuana. Lucas announced his intent to take marijuana by pulling the gun, and Donaghe passed it up to him before they arrived. A Hispanic man handed a tinfoil packet to Lucas through the window and said it cost $10. Lucas showed him the gun at the window, said "This is me" (meaning this is mine) or "I don't think so," and the four drove off without paying. Lucas again returned the gun to Donaghe.

Last came the murder. Around 10:30 p.m., as the four were riding down El Camino Real, Lucas noticed a red car adjacent to them at a red light. It was driven by Alvin Bondoc, and friends Zachary Matthews, Tasha Harrison and Greg Ramirez were passengers. (All three passengers testified at trial.) Lucas knew none of them but felt they were looking at them wrong. He said something like, "Look at those punks, they are nothing," and had Long speed up when the light changed. At the next light, Lucas rolled down his window, called out "What the fuck are you looking at?" and leaned out the window to gesture or say "What's up?"--a fighting taunt. Bondoc's passengers did not take the threat seriously. Meanwhile, Donaghe said to his companions something about someone in the red car "dogging" (looking mean and hard at) them. As they drove on, Lucas said "Pass me the gun" or "You still have the heat?" Donaghe passed the gun on Lucas's right side. Lucas took it in his left hand, aimed it out the window, under his right arm, and fired once. The shot shattered the red car's window and fatally struck Bondoc in the head. The red car swerved out of control and crashed into an overpass. The foursome fled, and Lucas said something like, "Why did I do that?"

Lucas testified having used methamphetamine, marijuana and alcohol that night, and feeling paranoid. He admitted getting the gun from Donaghe and pointing it over the door but claimed he did not mean to fire it. Defense testimony suggested a possible drug-induced overreaction or accident, and Lucas's counsel urged jurors to find involuntary manslaughter at best.

Donaghe did not testify. His counsel sought to impeach testimony about an apparently retaliatory incident in jail where Donaghe had called Long a "rat" or "snitch" and thrown hot water on him. Counsel urged in part that the shooting was a surprise, not a natural and probable consequence of handing Lucas the gun.

DISCUSSION

Target-crime issues

Donaghe, whose conviction for second degree murder rested on his having aided and abetted Lucas, raises several issues related to that theory.

"Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a 'natural and probable consequence' of the crime originally aided and abetted. To convict a defendant of a non-target crime as an accomplice under the 'natural and probable consequences' doctrine, the jury must find that, with knowledge of the perpetrator's unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant's confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a 'natural and probable consequence' of the target crime that the defendant assisted or encouraged." (People v. Prettyman (1996) 14 Cal.4th 248, 254, 267, 58 Cal.Rptr.2d 827, 926 P.2d 1013 (Prettyman ).)

Those principles were settled at the time of this trial in mid-1994, yet it was unsettled whether courts had a sua sponte duty to instruct on the elements of target crimes. One Court of Appeal decision held "yes" (People v. Mouton (1993) 15 Cal.App.4th 1313, 19 Cal.Rptr.2d 423 (Mouton )); one held "no" (People v. Solis (1993) 20 Cal.App.4th 264, 25 Cal.Rptr.2d 184); and the standard instruction (CALJIC No. 3.02) had been revised in 1992 to present an alternative version to facilitate a "yes" answer. Also, after trial but in time for post-trial motions, our own division had aligned itself with Mouton 's "yes" position, although our case had lost precedential value by the time of sentencing because it had been taken up by the Supreme Court on a grant and hold (People v. Hickles (1994) 49 Cal.App.4th 1860, 32 Cal.Rptr.2d 111, review granted Oct. 13, 1994 (S041629), trans. Feb. 5, 1997, with directions to vacate and reconsider) pending eventual resolution of the issue in Prettyman, supra.

The target-crime issue arose during trial in settling the instructions, and the court, in a curious compromise, said it refused to instruct on target crimes yet gave the revised CALJIC No. 3.02, in altered form. It explained the need for jurors to find a target crime beyond a reasonable doubt but did not specify which crimes were the "target" ones. ¹

The court did instruct on the elements of one logical target crime--drawing or exhibiting a firearm against a motor vehicle occupant in a threatening manner (§ 417.3)--although this was denoted a crime "lesser" to murder. The court denied a new trial motion brought by Donaghe on this ground, and Donaghe now claims two related due process violations.

First, he claims constitutionally inadequate notice (cf. People v. Lohbauer (1981) 29 Cal.3d 364, 173 Cal.Rptr. 453, 627 P.2d 183) of what target crimes were being asserted since: none were charged; the court did not specify them; and the prosecutor in argument suggested more than one. He claims this prejudicially "ambushed" him (cf. Sheppard v. Rees (9th Cir.1989) 909 F.2d 1234). Second, he complains jurors were never instructed to find any particular target crime beyond a reasonable doubt, or to unanimously agree which target crime to use.

Instructions. We take first the instructional arguments, guided by our Supreme Court's recent Prettyman decision. In supplemental briefing, Donaghe proclaims himself "undisputedly entitled to reversal" under Prettyman. The Attorney General does dispute this, however, and so do we.

Prettyman adopted the Mouton rationale with variations. Building on precedent requiring instruction on the predicate felonies for burglary (People v. Failla (1966) 64 Cal.2d 560, 51 Cal.Rptr. 103, 414 P.2d 39), it declared a sua sponte duty to identify and describe uncharged target crimes, reasoning: "[A]n instruction identifying and describing potential target offenses is necessary to minimize the risk that the jury, generally unversed in the intricacies of criminal law, will 'indulge in unguided speculation' (People v. Failla, supra, at p. 564, 51 Cal.Rptr. 103, 414 P.2d 39) when it applies the law to the evidence adduced at trial." (Prettyman, supra, 14 Cal.4th 248, 266-267, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) Such instruction facilitates "the jury's task of determining whether the charged crime allegedly committed by the ... confederate was indeed a natural and probable consequence of any uncharged target crime ... knowingly and intentionally aided and abetted." (Id. at p. 267, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) Jurors need not be told they must "unanimously agree on the particular target crime the defendant aided and abetted"; it is enough that each juror find the commission of one or more qualified target offenses. (Id. at pp. 267-268, 58 Cal.Rptr.2d 827, 926 P.2d 1013.)

The declared sua sponte duty is limited. It arises only when the...