IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

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1 Filed 7/25/11 P. v. Hurtado CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS HURTADO, Defendant and Appellant. A (Alameda County Super. Ct. No. C152831) After a jury trial, defendant Jose Luis Hurtado was convicted of (1) second degree murder of Jose Ochoa, while personally using a firearm and inflicting great bodily injury and intentionally discharging a firearm that proximately caused Ochoa s death (Pen. Code, 1 187, subd. (a); , subd. (a)(1); , subds. (b) (d); , subd. (a)); (2) assault with a firearm on Ignacio Pedroza, Francisco Elias, and Larry Valdivia, while personally armed with a firearm ( 245, subd. (a)(2); , subd. (a)); and (3) discharging a firearm at an occupied motor vehicle, while personally using a firearm and inflicting great bodily injury and intentionally discharging a firearm that proximately caused Ochoa s death ( 246; , subd. (a); , subd. (d); , subd. (a)). The trial court sentenced Hurtado to an aggregate term of 40 years to life in state prison. On appeal Hurtado challenges only his second degree murder conviction, claiming prejudicial instructional error. He argues that in contravention of People v. 1 All further unspecified statutory references are to the Penal Code. 1

2 Chun (2009) 45 Cal.4th 1172, 1199 (Chun), which was decided after the trial in this case, the jury was improperly allowed to convict him of second degree murder on a theory of felony murder and without considering his proffered evidence that he acted in imperfect self-defense that would reduce the killing to manslaughter. The Attorney General acknowledges the instructional error, pursuant to Chun, but argues the error is harmless beyond a reasonable doubt. We conclude the instructional error in this case was prejudicial. We therefore reverse the conviction for second degree murder and the corresponding enhancements, and remand for a new trial on that count. In all other respects, the judgment is affirmed. FACTUAL AND PROCEDURAL BACKGROUND On the evening of September 25, 2003, Francisco Elias and three of his friends were in Elias s car on 60th Avenue in East Oakland. Elias was driving, while Larry Valdivia sat in the front passenger seat, and Ignacio Pedroza and Jose Ochoa sat in the back seat. As the car turned onto 60th Avenue, there were several people on the nearby sidewalk. The car came to a complete or rolling stop on 60th Avenue as the occupants looked for Elias s friend s house. Apparently without warning, the car s back window was shattered by a gun shot. A bullet hit Ochoa in the back of his head, and he later died of his wound. No one else in the car was hit by a bullet or otherwise injured. After the shooting, Pedroza told Elias to get help as Elias accelerated the car and left the area. At trial the prosecution s theory of the crime was that Hurtado was either a gang member or a gang affiliate, who had shot at Elias s car without provocation under the mistaken belief the occupants were members of a rival gang. The trial prosecutor proffered evidence that the occupants of Elias s car were not members of a rival gang, could not be mistaken for gang members, were unarmed, and had done nothing that would have provoked gunfire from Hurtado. In his defense, Hurtado testified that at the time of the shooting, he neither was nor acted as a gang member. Earlier on the day of the shooting, he had been the victim of a drive-by shooting. Later that evening, he saw Elias s car and believed its driver 2

3 was similar in appearance to the driver in the drive-by shooting earlier that day. When Elias s car came to a stop, Hurtado thought he heard people yelling, They re going to shoot, they re going to shoot. When Hurtado turned around facing the back of the car, he saw a motion or movement out the car window, and everyone was ducking and people were running. Hurtado thought he was going to get shot or someone in the crowd was going to get shot so he aimed his gun at the trunk of the car, closed his eyes and shot once. He shot at the car trunk to make the driver leave the area and he did not shoot to injure the occupants. After he fired one gunshot, Hurtado turned around and ran to his home. As he ran home Hurtado heard two more gunshots but he did not see who fired those gunshots. He thought the other gunshots came from the middle of the street where Elias s car was located. The gunshots may have actually come from Elias s car because it was a drive-by, albeit Hurtado did not see any guns in the hands of the car s occupants. When Hurtado later learned that someone was shot during the incident he gave his gun to his cousin. During a conference on proposed jury instructions, the trial court and counsel discussed the fact that the law was unclear whether second degree felony murder could be predicated on discharging a firearm at an occupied motor vehicle, and that the California Supreme Court was then considering a case (Chun, supra, 45 Cal.4th 1172) that might resolve the issue. Nevertheless, the trial prosecutor sought an instruction on second degree felony murder because imperfect self-defense is hotly argued by the defense, and that defense theory was not applicable to second degree felony murder. The trial court agreed, as a practical matter, to give the requested instruction on second degree murder based on the theory of felony murder, with the added proviso that imperfect self-defense did not apply to the felony murder theory, after the trial prosecutor indicated she wanted the instruction given because the law was unclear and even if the instruction was later found to be erroneous and led to an appellate reversal of a second degree murder conviction, it was likely the jury would convict Hurtado of discharging a firearm at an occupied motor vehicle and find true the corresponding fire 3

4 arm enhancements that would subject Hurtado to a mandatory sentence of 25 years to life ( , subd. (d)). The jurors were instructed on first degree murder, 2 and second degree murder based on the theories of express malice, implied malice, or felony murder. The jurors were told they did not need to agree on the same theory, but only that Hurtado committed murder under at least one of those theories. Although the jury was permitted to consider Hurtado s imperfect self-defense argument to reduce murder to voluntary manslaughter, it was specifically instructed that imperfect self-defense did not apply to the theory of second degree felony murder. The jury was given verdict forms for first degree murder, second degree murder, and voluntary manslaughter. The jury found Hurtado not guilty of first degree murder, but guilty of second degree murder, three counts of assault with a firearm, and discharging a firearm at an occupied motor vehicle. As to each conviction, the jury found true the corresponding enhancements. The court sentenced Hurtado to an aggregate term of 40 years to life. Hurtado timely appealed. DISCUSSION We concur with the parties that the jury was improperly instructed that Hurtado could be found guilty of second degree murder based on a theory of felony murder predicated on discharging a firearm at an occupied motor vehicle ( 246). As explained in Chun, supra, 45 Cal.4th at p. 1178, all assaultive-type crimes, such as a violation of section 246, merge with the homicide and cannot be the basis for a second degree felony-murder instruction. However, unlike the situation in Chun, in this case the jury was also instructed that the defense theory of imperfect self-defense was not applicable to second degree felony murder. Thus, we must consider whether Hurtado was prejudiced by the second degree felony murder instruction, which permitted the jury to convict him of second degree murder without requiring a finding of a valid theory of 2 The statutory offense of first degree felony murder predicated on certain statutory felonies did not apply in this case. ( 189.) 4

5 malice, and effectively removed from the jury s consideration the defense theory of imperfect self-defense that would reduce the killing to manslaughter. We may find this instructional error to be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well. (Chun, supra, 45 Cal.4th at p. 1204, quoting from California v. Roy (1996) 519 U.S. 2, 7 [Scalia, J., concurring opn.].) There is no dispute that the jury s verdicts of guilty of assault with a firearm and discharging a firearm at an occupied motor vehicle, with sustained true findings of corresponding enhancements, did not necessarily embrace findings of express or implied malice second degree murder or a rejection of the defense theory of imperfect self-defense that would reduce the killing to manslaughter. The Attorney General argues, however, that the instructional error was harmless because the jury s guilty verdicts of second degree murder and discharging a firearm at an occupied motor vehicle demonstrates that the jury must have found Hurtado acted with implied malice, and the evidence of imperfect self-defense was so lacking in credibility that the jury would have rejected it even in the absence of the instruction to ignore that defense theory. For the reasons we now discuss, we are not persuaded by the Attorney General s arguments. Relying on isolated portions of the record, the Attorney General argues that any juror who convicted Hurtado on the theory of felony murder must have also found he acted with implied malice when he discharged a firearm at an occupied motor vehicle. However, implied malice has both a physical and a mental component. The physical component is satisfied by the performance of an act, the natural consequences of which are dangerous to life. [Citation.] The mental component is the requirement that the defendant knows that his conduct endangers the life of another and... acts with a conscious disregard for life. [Citation.] [Citation.] (Chun, supra, 45 Cal.4th at p. 1181, fn. omitted.) The Attorney General fails to point to any evidence that 5

6 unerringly demonstrates Hurtado acted with implied malice. Hurtado testified he fired a gun at Elias s car because he believed he or other persons might be the victims of a drive-by shooting by the occupants of Elias s car. He shot at the trunk of the car because he wanted Elias s car to leave the area and he did not intend to hit any of the car s occupants. He fired one gun shot, not multiple gunshots that would have increased the risk of injury to the car s occupants. Given the subjective mental component of implied malice and the evidence regarding Hurtado s actions on the night of the shooting as described, the jury reasonably could have convicted [him] of second degree murder based on a felony-murder theory and not malice, either because convicting him on the less demanding theory of felony murder made it unnecessary to reach the issue of whether [he] harbored malice, or because the jury actually entertained a reasonable doubt that he harbored malice. (People v. Bejarano (2007) 149 Cal.App.4th 975, 992; see id. at pp. 978, [court found jury did not necessarily find implied malice where defendant discharged firearm once, intending to shoot motor vehicle s occupants, rival gang members, but the bullet struck and killed an unintended victim, the driver of another vehicle ]; cf. Chun, supra, 45 Cal.4th at pp. 1179, 1205 [court held jury must have found implied malice second degree murder where defendant, either as a shooter or as an aider or abettor, participated in drive-by shooting in which three occupants of a passing motor vehicle were hit by multiple gunshots fired at close range from three different firearms]; People v. Hach (2009) 176 Cal.App.4th 1450, 1454, 1457 (Hach) [court held jury must have found implied malice second degree murder where defendant was only 10 feet away from the car, knew there were two people in it, and fired an SKS rifle directly into the car ].) We also reject the Attorney General s argument that the jury would have rejected the defense theory of imperfect-self defense even in the absence of an instruction that the defense theory did not apply to second degree felony murder. As in this case, in Hach, supra, 176 Cal.App.4th 1450, the court gave an instruction on voluntary manslaughter (killing provoked by heat of passion), together with an 6

7 instruction on second degree felony murder based on the improper predicate felony of discharging a firearm at an occupied motor vehicle, and also advised the jury that provocation did not apply to felony murder. (Id. at pp. 1456, 1458.) The Hach court therefore considered whether the error in instructing on second degree felony murder was not harmless because its effect was to remove from the case defendant s defense of heat of passion provocation to reduce the killing to manslaughter. (Id. at p ) The Hach court then found the defendant s heat of passion defense did not render the instruction on felony murder prejudicial because the evidence was insufficient, as a matter of law, to support a heat of passion provocation defense. (Ibid.; italics added.) Unlike the situation in Hach, supra, 176 Cal.App.4th at pp , the Attorney General here does not argue the evidence of imperfect self-defense was insufficient as a matter of law. It is argued only that such evidence lacked credibility. However, as conceded by the trial prosecutor, the imperfect self-defense theory was hotly argued by the defense. Additionally, the instruction as given allowed the prosecutor to argue to the jury that even if the jury found Hurtado acted without implied malice and in imperfect self defense, it should still convict him of second degree murder based on a theory of felony murder as its default position. Thus, on this record, we cannot conclude, beyond a reasonable doubt, that the jury convicted Hurtado of second degree murder after necessarily making a finding based on a valid theory of malice and rejecting the defense theory of imperfect self-defense that would reduce the killing to manslaughter. (See Chun, supra, 45 Cal.4th at p [where one of multiple theories is legally invalid, instructional error is harmless only if the jury verdict on other points effectively embraces this one or if it impossible, upon the evidence, to have found what the verdict did find without finding this point as well ].) Because the instructional error was prejudicial, we must reverse the judgment as to the conviction for second degree murder and corresponding enhancements, and remand the matter for retrial on that count. ( 1262.) 7

8 DISPOSITION The judgment is reversed as to the second degree murder conviction and corresponding enhancements and the matter is remanded for retrial on that count. In all other respects, the judgment is affirmed. McGuiness, P.J. We concur: Pollak, J. Siggins, J. 8