People v. Mendoza

• Decision Date: 31 July 2000
• Docket Number: No. S067104.,S067104.
• Citation: 4 P.3d 265,23 Cal.4th 896,98 Cal.Rptr.2d 431
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Cruz Alberto MENDOZA et al. Defendants and Appellants.

98 Cal.Rptr.2d 431

23 Cal.4th 896

4 P.3d 265

The PEOPLE, Plaintiff and Respondent, v. Cruz Alberto MENDOZA et al. Defendants and Appellants.

No. S067104.

Supreme Court of California.

July 31, 2000.

Rehearing Denied September 13, 2000.¹

William D. Farber, San Rafael, under appointment by the Supreme Court, for Defendant and Appellant Cruz Alberto Mendoza.

David McNeil Morse, San Francisco, under appointment by the Supreme Court, for Defendant and Appellant Raul Valle.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Stan M. Helfman and John R. Vance, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

Under Penal Code section 1157,² "[w]henever a defendant is convicted of a crime ... which is distinguished into degrees," the trier of fact "must find the degree of the crime ... of which he is guilty. Upon the failure of the [trier of fact] to so determine, the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree." Here, we consider this section's applicability under the following circumstances: (1) the prosecution's only murder theory at trial is that the killing was committed during perpetration of robbery or burglary, which is first degree murder as a matter of law (? 189); (2) the court properly instructs the jury to return either an acquittal or a conviction of first degree murder; and (3) the jury returns a conviction for murder, but its verdict fails to specify the murder's degree. We conclude that under these circumstances, section 1157 does not apply because the defendant has not been "convicted of a crime ... which is distinguished into degrees" within the meaning of that section. Thus, the conviction is not "deemed to be of the lesser degree." (? 1157.) We therefore affirm the Court of Appeal's judgment.

Facts

On September 22, 1992, the Marin County Grand Jury returned an indictment accusing defendants Cruz Alberto Mendoza and Raul Antonio Valle of, among other crimes, "[m]urder in violation of Section 187(A)," second degree robbery (? 211), and burglary (? 459). These charges arose out of the killing of Pastor Dan Elledge at The Lord's Church in Novato, California. As special circumstances for sentencing purposes, the indictment also alleged that defendants committed murder while they were engaged in committing robbery and burglary. (? 190.2, subd. (a)(17).)

After the trial court granted defendants' motion for separate trials, the prosecution presented its evidence against defendants simultaneously to separate juries. As to both defendants, the prosecution's only murder theory was that Valle and Mendoza shot and killed Pastor Elledge while burglarizing and robbing The Lord's Church (as one in a series of church robberies). Under section 189, all murder committed "in the perpetration of robbery or burglary "is murder of the first degree." After the close of evidence, the trials proceeded independently for purposes of jury instruction, closing arguments, and return of the verdicts.

A. Mendoza Proceedings

In his defense, Mendoza, who admitted committing other crimes with (and without) Valle, maintained he never entered The Lord's Church and did not participate in any of the crimes Valle committed there, including Pastor Elledge's killing. In connection with the charge for that killing, Mendoza did not contend the jury could convict him of a degree or form of criminal homicide other than first degree felony murder. Nor did he ask the trial court to instruct the jury on lesser included offenses; his counsel agreed that because the prosecution had presented only a first degree felony-murder case, instructions relating to specific intent for other forms of first degree murder were unnecessary. Thus, Mendoza's counsel expressly declined to request instructions on malice aforethought and premeditation and deliberation. At other points during the discussion of the instructions, Mendoza's counsel expressed his understanding that the prosecution's only murder theory was first degree felony murder.

Consistent with these proceedings, the trial court instructed Mendoza's jury only on first degree felony murder as follows: "The defendant is accused in Count One of the indictment of having committed the crime of murder, a violation of Penal Code Section 187. [?] Every person who unlawfully kills a human being during the commission or attempted commission of robbery or burglary is guilty of the crime of murder, in violation of Section 187 of the Penal Code, [?] For clarification, that is one definition, that is not the only definition of murder, it's the only one that applies to the facts of this case. [?] In order to prove such crime, each of the following elements must be proved: A human being was killed; the killing was unlawful; and the killing occurred during the commission or attempted commission of robbery or burglary. [?] The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery or burglary, is murder of the first degree when the perpetrator had the specific intent to commit such crime. [?] The specific intent to commit robbery or burglary and the commission or attempted commission of such crime must be proved beyond a reasonable doubt. [?] If a human being is killed by a person engaged in the commission or attempted commission of the crimes of robbery or burglary, all persons who either personally committed the robbery or burglary, or who aided and abetted the robbery or burglary, are guilty of murder in the first degree, whether the killing is intentional, unintentional, or accidental. [?] For purposes of determining whether a person is guilty of murder in the first degree, a defendant who does not form an intent to aid and abet a participant in a robbery or burglary before a murder has occurred is not guilty of murder in the first degree. [?] Thus, if you have a reasonable doubt whether Defendant Mendoza was the actual killer, you may not convict him of murder in the first degree unless the prosecution proves beyond a reasonable doubt that he formed the intent to aid and abet in the robbery before the murder occurred. [?] If you find the defendant in this case guilty of murder in the first degree, you must then determine if one or more of the [alleged] special circumstances are true or not true."

The court also gave the following instruction: "In order to find the defendant guilty of the crime of murder, as charged in Count One, you must be satisfied beyond a reasonable doubt that, first, the crimes of robbery and burglary, charged in Counts Two and Three, were committed; and, second, the defendant aided and abetted such crimes; and, third, a co-principal in such crime committed the crimes of robbery or burglary as charged in Counts Two and Three; and, fourth, the crime of murder was a natural and probable consequence of the commission of the crimes of robbery or burglary as charged in Counts Two and Three."

In addition, in instructing on the "lesser crime[s]" of which the jury could convict Mendoza if it found him not guilty of the charged crimes, the court did not mention any form of criminal homicide other than first degree felony murder. Consistent with these instructions, the verdict forms the court submitted to the jury did not give the jury the option to convict defendant of second degree murder or any other form of criminal homicide.

During its closing argument to the jury, the prosecution reaffirmed its focus on only first degree felony murder, explaining: "In order to find the defendant guilty of the crime of murder as charged [in] this Count 1, you must be satisfied beyond a reasonable doubt, folks, of the following: [?] The crimes of robbery or burglary ... were committed, that the defendant aided and abetted such crimes. I submit to you [he] not only aided and abetted but he actively participated as well in those crimes, a co-principal in such crime committed, the crimes of robbery or burglary as charged in Counts II or III with ... Valle, and the crime of murder was a natural and probable consequence of the commission of the crimes of robbery or burglary as charged in Count II and III." The prosecution further explained: "Murder has been defined for you.... In this case it is the killing which occurred during the commission ... or attempted commission of a robbery or burglary. It is a first degree murder where the unlawful killing of a human being whether intentional, unintentional or accidental occurs during the commission or an attempted commission of the crime of robbery or burglary. And that is murder in the first degree when the perpetrator had the specific intent to commit the crime of either the robbery or the burglary. [?] So, if you folks find that Mr. Mendoza was perpetrating a burglary and Mr. Valle [was] perpetrating a burglary and/or a robbery and that Pastor Elledge was killed during the commission of those crimes, [then] he is guilty of first degree felony murder. And that is what the People submit to you the proof beyond a reasonable doubt shows in this case."

As a transition to discussing the special circumstances instructions, the prosecution then remarked: "Now, there's an instruction separate from the first degree murder which is the felony murder which we just discussed with the instruction." In summing up, the prosecution asserted that the evidence proved beyond a reasonable doubt that Mendoza was "guilty of first degree murder" in connection with Pastor Elledge's killing because he entered The Lord's Church "with the intent to perpetrate a robbery and a burglary of that church." The prosecution concluded by insisting that Mendoza was "legally responsible for the felony murder of Dan Elledge."

Mendoza's counsel began his closing argument by telling the jury: "Your job is...