
    [No. C078671.
    [No. C078866.
    Third Dist.
    Apr. 11, 2016.]
    Third Dist. Apr. 11, 2016.]
    THE PEOPLE, Plaintiff and Respondent, v. MARQUON DEANTHONY VASQUEZ, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. SHOREEM DOMINIQUE BRYANT, Defendant and Appellant.
    [CERTIFIED FOR PARTIAL PUBLICATION]
    
      Counsel
    Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Marquon Deanthony Vasquez.
    John R Schuck, under appointment by the Court of Appeal, for Defendant and Appellant Shoreem Dominique Bryant.
    Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
    
      
      Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts I, III, IV, and V of the Discussion.
    
   Opinion

ROBIE, J. —

Defendants Marquon Deanthony Vasquez and Shoreem Dominique Bryant were tried together in front of separate juries for murder and attempted murder with allegations these crimes were committed for the benefit of a street gang. Vasquez fatally shot Deandra Horton and wounded her companion, Tionee Duncan, who was confined to a wheelchair. Bryant had driven Vasquez to where the shooting took place and was also the getaway driver. The shooting was in retaliation for an altercation between Vasquez’s cousin (Kaveon Plummer-Lee) and one of Duncan’s friends (Marcus Lebeau). Bryant, Vasquez, and Plummer-Lee were members of the North Highlands Gangster Crips. Lebeau was a member of the rival Bloods.

The first jury found Vasquez guilty of second degree murder (a lesser included offense of the charged first degree murder) and attempted voluntary manslaughter (a lesser included offense of the charged attempted murder) and found not true the gang enhancements. The second jury found Bryant guilty as an aider and abettor of both first degree murder and attempted murder and found true the gang enhancements.

On appeal, Bryant challenges the sufficiency of the evidence for his convictions and the gang enhancements, and Vasquez challenges the sufficiency of the evidence for his convictions, the instructions, and his counsel’s performance. Finding no merit to these challenges, we affirm the judgments.

FACTUAL AND PROCEDURAL HISTORY

A

The Prosecution’s Case

The shooting of Horton and Duncan took place in an apartment complex parking lot around 1:30 p.m. in March 2013. Duncan lived in that apartment complex, and his friend Lebeau helped care for him. That day, however, Duncan was out with his girlfriend Horton, who was pushing Duncan in his wheelchair back to his apartment after an outing to a Subway restaurant.

Just before the shooting, Bryant and Vasquez had been together in the same complex in the apartment of their friend, Jacquelyn Reese. Bryant and Vasquez walked out of Reese’s apartment, and Bryant got in the driver’s side of a Chrysler and Vasquez got in the passenger’s side. Bryant drove the car across one of the apartment parking lots and parked. Vasquez got out of the car and ran to the other side of the parking lot, where Horton and Duncan were. Vasquez approached Horton and Duncan from behind and opened fire on both of them. Vasquez fatally shot Horton five times in the back. Vasquez also shot Duncan in his back, side, shoulder, and hip. Duncan then shot back, and Vasquez fell to the ground. Vasquez telephoned Bryant and told him, “Come get me. Come get me.” Immediately, Bryant pulled up in the Chrysler, picked up Vasquez, and “[sped] out real fast.” Bryant then texted his friend (who was also Vasquez’s cousin) Plummer-Lee.

Bryant, Vasquez, and Plummer-Lee were North Highlands Gangster Crips. About three months before Vasquez’s shooting of Horton and Duncan, Plummer-Lee had been shot by rival Bloods gang member Lebeau, while Plummer-Lee was getting out of his grandmother’s car. Vasquez’s mother told Vasquez that the shooting of Plummer-Lee by Lebeau had traumatized her and Vasquez’s grandmother, because the shooting happened in front of both women. According to a gang expert, if one gang member was disrespected, the whole gang considered itself disrespected. Gang members may retaliate not just against the person who disrespected them, but also against persons associated with the enemy, which instills more fear into their enemies and the community.

The night before the shooting, Vasquez called Bryant, and immediately upon getting off the phone with Bryant, Vasquez called Plummer-Lee. After talking with Plummer-Lee, Vasquez then called Bryant again. The next day, about seven to eight minutes before the shooting, Vasquez and Plummer-Lee exchanged phone calls. Bryant also called Vasquez during that time.

B

Bryant’s Defense

Bryant testified in his own defense that the phone calls he and Vasquez exchanged before the shootings were about getting “weed.” Bryant happened to be driving near the apartment complex when Vasquez called him and told him that he was hurt. Bryant then drove to the apartment complex and put Vasquez in his car.

C

Vasquez’s Defense

Vasquez testified in his own defense that he lived in the apartment complex with his son’s grandmother. Bryant was his friend, but he did not know Duncan or Lebeau. Just prior to the shooting, Vasquez was walking to meet a friend. While en route, he saw a man in a wheelchair (Duncan) with a woman (Horton) about 10 to 15 feet ahead of him. Horton looked back, whispered something to Duncan, and then Duncan looked back at Vasquez. The next thing Vasquez knew, Duncan pulled out a revolver. Vasquez then pulled out his own gun. Duncan fired the first two or three shots, “like pretty slow.” Vasquez “had a semi-automatic, so [he] startfed] firing pretty quick.” He was aiming toward Duncan. The only thing blocking his aim was Horton, whom Duncan was using as a human shield. Vasquez stopped shooting because he had been shot in the leg, felt his leg go out, and fell to the ground.

I

DISCUSSION

Substantial Evidence Supported Bryant’s Convictions on an Aiding and Abetting Theory

II

The Jury Properly Found Bryant Guilty of First Degree Murder on a Direct Aiding and Abetting Theory

Bryant contends that his conviction for first degree murder must be reversed or reduced to second degree murder because the jury could have found him guilty as an aider and abettor of first degree premeditated murder based on a natural and probable consequences theory, an unlawful theory under People v. Chiu (2014) 59 Cal.4th 155 [172 Cal.Rptr.3d 438, 325 P.3d 972] (Chiu). As we explain in detail below, this is not so. The instructions required the jury to find Bryant acted willfully, deliberately, and with premeditation. And, to the extent the jury could have found that the shooting of Horton was the result of transferred intent, Chiu is not applicable because the doctrine of transferred intent does not implicate the concerns raised in Chiu, in which the connection between the defendant’s culpability and the perpetrator’s premeditative state is too attenuated to impose aider and abettor liability for first degree murder.

“There are two distinct forms of culpability for aiders and abettors. ‘First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also “for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.” ’ ” (Chiu, supra, 59 Cal.4th at p. 158.) Chiu involved the second form of aider and abettor culpability. (Ibid.) The Chiu court held and explained, “an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles.” (Id. at pp. 158-159.) The mental states for willfulness, premeditation, and deliberation are uniquely subjective and personal. (Id. at p. 166.) The connection between a defendant’s culpability and the perpetrator’s premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty and public policy concerns of deterrence. (Ibid.) However, “[a]iders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles.” (Ibid.) “An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea required for first degree murder.” (Id. at p. 167.)

Here, the jury was not instructed on the natural and probable consequences doctrine concerning aiding and abetting. Rather, it was instructed on the required findings for directly aiding and abetting the crimes.

Nevertheless, Bryant contends the jury could have found the shooting of Horton was the result of transferred intent and a natural and probable consequence of the shooting of Duncan. From this, he argues that he cannot be liable for first degree premeditated murder under the natural and probable consequences doctrine according to Chiu, and that his conviction must be reversed because it could have been based on this legally incorrect theory. The problem with this argument, though, is the doctrine of transferred intent does not implicate the concerns expressed in Chiu, in which the connection between the defendant’s culpability and the perpetrator’s premeditative state was too attenuated to impose aider and abettor liability for first degree murder. We explain below.

When intent to kill is at issue in murder, it may be proven through the doctrine of transferred intent. “ ‘Under the classic formulation of California’s common law doctrine of transferred intent, a defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same criminal liability that would have been imposed had “ ‘the fatal blow reached the person for whom intended.’ ” [Citation.] In such a factual setting, the defendant is deemed as culpable as if he had accomplished what he set out to do.’” (People v. Bland (2002) 28 Cal.4th 313, 320-321 [121 Cal.Rptr.2d 546, 48 P.3d 1107].) On the other hand, aiding and abetting liability under the natural and probable consequences doctrine occurs when a person is found guilty not only of the intended crime (the target offense) but also of any other crime the perpetrator actually commits (the nontarget offense) that is a natural and probable consequence of the intended crime. (Chiu, supra, 59 Cal.4th at p. 161.) “ ‘Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.’ ” (Ibid.) “A nontarget offense is a ‘ “natural and probable consequence” ’ of the target offense if, judged objectively, the additional offense was reasonably foreseeable.” (Ibid.) “[Liability ‘ “is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.” ’ ” (Id. at p. 162.) Thus, the connection between a defendant’s culpability and the perpetrator’s premedita-tive state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine. (Id. at p. 166.) But the doctrine of transferred intent does not implicate this concern. This is because under the transferred intent doctrine, the intent required for the crime at issue (here, intent to kill for premeditated murder) was already established with respect to Bryant and was transferred to the ultimate victim (Horton). Thus, we reject Bryant’s argument that he could not be found guilty of first degree premeditated murder under this scenario.

III-V

DISPOSITION

The judgments are affirmed.

Nicholson, Acting P. J., and Renner, J., concurred.

The petitions of all appellants for review by the Supreme Court were denied My 27, 2016, S233929. 
      
      See footnote, ante, page 1019.
     
      
       Specifically, the jury was instructed pursuant to CALCRIM No. 401 as follows:
      “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:
      “One: The perpetrator committed that crime;
      
        “Two: The defendant knew the perpetrator intended to commit the crime;
      “Three: Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
      “Four: The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.
      “Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.”
     
      
      See footnote, ante, page 1019.
     