People v. Vital

• Decision Date: 03 October 2019
• Docket Number: B288533
• Citation: 40 Cal.App.5th 925,254 Cal.Rptr.3d 22
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alonzo Lee VITAL, Defendant and Appellant.

40 Cal.App.5th 925

254 Cal.Rptr.3d 22

The PEOPLE, Plaintiff and Respondent,

v.Alonzo Lee VITAL, Defendant and Appellant.

B288533

Court of Appeal, Second District, Division 3, California.

Filed October 3, 2019

Certified for Partial Publication.^*

Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.

HANASONO, J.^**

Alonzo Lee Vital instructed a mother to engage in acts of a sexual nature with her three-year-old son. A jury found him guilty of oral copulation with a child 10 years old or younger and other related charges. However, the trial court incorrectly instructed the jury that Vital, instead of the mother who directly perpetrated the acts, had to be 18 years old or older. In the published portion of this opinion, we discuss why this was prejudicial error. In the unpublished portion, we conclude that we must reverse the convictions on counts 2, 5, 6, 7, and 8, and remand for resentencing because there was insufficient evidence the direct perpetrator, mother, was 18 years old or older.

FACTUAL AND PROCEDURAL HISTORY

1. Facts

a. Prosecution Evidence

On December 16, 2015, Vital exchanged text messages with Zaria Vaughan, whom he had met on social media three or four years earlier. Vital reminded Vaughan of an earlier promise to perform oral sex on his "lil lil homie." Vaughan initially replied, "That was years ago." When Vital told her that the "lil homie" was 11 years old, Vaughan expressed unwillingness. She said she was too old and had kids. When she complained that the "lil lil homie" was not even 15 years old, Vital asked if 15 was the youngest age she would consider. Vaughan replied, "No the youngest I will go is 18."

On December 17, 2015, Vaughan sent 11 video clips to Vital. Six of the video clips depicted Vaughan performing oral sex on her three-year-old son. Four of the videos depicted Vaughan simulating sexual acts, including rubbing her buttocks against her son’s penis. The remaining video showed the child facing the camera, naked with his penis in his hand.

In between receiving the video clips, Vital exchanged text messages with Vaughan, instructing her to perform various acts of a sexual nature, place the camera in specific positions, and send the videos. During this time, Vital and Vaughan also spoke on the phone.

Two months later, Vital was with his friend, Joshua Anderson. Vital allowed Anderson to borrow his cell phone. Out of curiosity, Anderson looked at the text messages on the cell phone, and discovered the video clips of Vaughan and her son. Anderson described the video as containing acts between a "young boy" and an "adult woman." Anderson left Vital’s home, taking the cell phone with him.

Anderson showed the video clips to Daythron Lockley. Lockley described the video as depicting an "older woman" performing oral sex on a child. Lockley gave the cell phone to Los Angeles County Sheriff Deputy David Pine.

Deputy Pine watched a portion of the videos. He described one of the videos as containing a "female black adult" performing oral sex on a five to eight-year-old male. Deputy Pine provided the cell phone to Los Angeles County Sheriff Detective John Amis.

Detective Amis also viewed the videos and text messages on the cell phone and extracted additional data from it.

On February 16, 2016, Detective Amis spoke with Vital, who told him that he was 23 years old. Vital met Vaughan from social media three or four years earlier. He admitted that Vaughan sent the videos to him, and that what he did was "[s]omewhat" wrong.

2. Procedure

A jury convicted Vital of oral copulation with a child 10 years old or younger ( Pen. Code, § 288.7, subd. (b) ; counts 2, 5, 6, 7, and 8);¹ lewd or lascivious acts on a child under 14 years old (§ 288, subd. (a); counts 3, 9, 10, 11, and 12); possession of child pornography (§ 311.11, subd. (a); count 4); and conspiracy to use a minor for sex acts (§§ 182, subd. (a)(1)/311.4, subd. (c); count 13). The jury acquitted Vital of one count of violating section 288.7, subdivision (b).

On March 2, 2018, the trial court sentenced Vital. The trial court imposed six years on count 3, and an additional two years consecutive, for each violation of section 288, subdivision (a), in counts 9 through 12. The trial court imposed two years each for counts 4 and 13, and stayed each term pursuant to section 654. The total aggregate term for the determinate portion of the sentence was 14 years in state prison.

The trial court imposed consecutive terms of 15 years to life for counts 2 and 5, both violations of section 288.7, subdivision (b). The trial court imposed 15 years to life for each of the remaining violations of section 288.7, subdivision (b), in counts 6, 7, and 8. The indeterminate sentences in these counts were to run concurrently with counts 2 and 5. The total indeterminate portion of the sentence was 30 years to life in state prison.

DISCUSSION

1. Section 288.7, subdivision (b), requires proof of a minimum age of the direct perpetrator

At trial, Vital was prosecuted under an aiding and abetting theory of liability for the violations of section 288.7, subdivision (b), oral copulation with a child under 10 years of age or younger. Accordingly, the trial court instructed the jury with CALCRIM No. 1128. In this instruction, the trial court told the jury that the prosecutor had to prove Vital was at least 18 years old at the time of the oral copulation with the victim.² Vital contends that this was error because guilt for the offense required proof that Vaughan—not Vital—was at least 18 years old at the time of the oral copulation. Under an aiding and abetting theory of liability against Vital, the prosecutor had to prove the age of Vaughan, who was the direct perpetrator. As we now explain, we agree.

An instruction omitting an element of the charged offense violates a defendant’s rights under the federal and state constitutions. ( People v. Cole (2004) 33 Cal.4th 1158, 1208, 17 Cal.Rptr.3d 532, 95 P.3d 811 ; People v. Flood (1998) 18 Cal.4th 470, 479–480, 76 Cal.Rptr.2d 180, 957 P.2d 869 ; Sullivan v. Louisiana (1993) 508 U.S. 275, 277–278, 113 S.Ct. 2078, 124 L.Ed.2d 182.) "The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law [citations] and also whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jury’s consideration." ( People v. Posey (2004) 32 Cal.4th 193, 218, 8 Cal.Rptr.3d 551, 82 P.3d 755.)

a. A conviction of section 288.7, subdivision (b), under an aiding and abetting theory of liability, requires the direct perpetrator to complete the crime

Principals to a crime are "[a]ll persons concerned in the commission of a crime ... whether they directly commit the act constituting the offense, or aid and abet in its commission." (§ 31.) Proof of liability for a crime under a theory of aiding and abetting falls into four distinct elements: (a) a crime committed by the direct perpetrator, (b) knowledge of the direct perpetrator’s intent to commit the crime, (c) an intent to assist in committing the crime, and (d) conduct by the aider and abettor that in fact assists the commission of the crime. ( People v. Perez (2005) 35 Cal.4th 1219, 1225, 29 Cal.Rptr.3d 423, 113 P.3d 100 ; People v. McCoy (2001) 25 Cal.4th 1111, 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210.)

Accordingly, "the commission of a crime is a prerequisite for criminal liability." ( People v. Perez, supra , 35 Cal.4th at p. 1225, 29 Cal.Rptr.3d 423, 113 P.3d 100.) For a defendant to be guilty under an aiding and abetting theory, it follows that someone other than the defendant must have attempted or committed a crime. ( Ibid . ) "[A]iding and abetting liability cannot attach unless the substantive elements of a predicate offense are met." ( Id . at p. 1227, 29 Cal.Rptr.3d 423, 113 P.3d 100.) Liability for a crime under an aiding and abetting theory is thus " ‘derivative.’ " ( People v. Prettyman (1996) 14 Cal.4th 248, 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) Here, Vital’s liability derived from Vaughan’s. However, the trial court’s instruction omitted this crucial point.

The trial court instructed the jury with CALCRIM Nos. 400 and 401, which explain the theory of aiding and abetting and its elements. CALCRIM No. 401 correctly instructed that aiding and abetting requires the "perpetrator" to have committed the crime.

However, the trial court did not account for the theory of aiding and abetting in CALCRIM No. 1128, the instruction for section 288.7, subdivision (b). Unlike CALCRIM No. 401, CALCRIM No. 1128 used the word "defendant" rather than the word "perpetrator." Consequently, the instruction told the jury that to find guilt, the prosecutor had to prove Vital engaged in an act of oral copulation, and at the time, Vital was at least 18 years old.

This was error. The trial court should have instructed that the direct perpetrator Vaughan (not the defendant Vital) must satisfy the 18 year old age requirement. The trial court incorrectly omitted this element from the jury’s consideration. The instruction relieved the prosecution’s burden to prove Vital was guilty of the offenses under an aiding and abetting theory of liability because it omitted an element of the predicate offense.

b. Omission of the word "personally" from the statute

The Attorney General argues that the 18 year old age requirement for a violation of section 288.7, subdivision (b), applies to whomever is charged as the defendant, regardless of whether he or she is acting as a direct perpetrator or as an aider and abettor. The Attorney General first asserts that the statutory language creates ambiguity as to whether a violation requires actually engaging in oral copulation. Specifically, he focuses...