Filed 12/10/14 P. v. Beltran CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066357

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FVA801476)

FIDEL BELTRAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Ronald M. Christianson, Judge. Affirmed.

         Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Lynne

G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

         In this case, which involves what defendant Fidel Beltran refers to as his "mercy

killing" of his friend and coworker, Baraquel Alonzo Cruz, the San Bernardino County
District Attorney filed an information in June 2009 charging Beltran with (1) murder

(count 1: Pen. Code,1 § 187, subd. (a)); (2) making a criminal threat (count 2: § 422;

alleged victim: Jose Jesus Hernandez); and (3) dissuading a witness (Jose Jesus

Hernandez) (count 3: § 136.1, subd. (c)(l)). As to count 1, the information alleged that,

in committing the murder, Beltran personally and intentionally discharged a firearm

causing great bodily injury and death within the meaning of section 12022.53,

subdivision (d) (hereafter section 12022.53(d)); he personally and intentionally

discharged a firearm within the meaning of section 12022.53, subdivision (c) (hereafter

section 12022.53(c)); and he personally used a firearm within the meaning of section

12022.53, subdivision (b) (hereafter section 12022.53(b)).

         At the close of the evidence phase of the trial, the court granted Beltran's section

1118.1 motion for acquittal as to count 2 (making a criminal threat) and dismissed that

count.

         The jury found Beltran guilty of second degree murder as a lesser included offense

of count 1 and found to be true all three of the firearm enhancements. The jury found

Beltran not guilty of dissuading a witness.

         The court thereafter sentenced Beltran to an aggregate prison term of 40 years to

life, consisting of an indeterminate term of 15 years to life for the second degree murder

conviction, plus a consecutive indeterminate term of 25 years to life for the section

12022.53(d) firearm enhancement.



1        All further statutory references are to the Penal Code.
                                                2
       Beltran raises two contentions on appeal. First, he contends his second degree

murder conviction must be reversed because the victim, Cruz, was Beltran's friend; Cruz

asked him to assist him in committing suicide by shooting him; and, thus, the court

prejudicially erred by denying his request for a jury instruction on the law of voluntary

manslaughter as a lesser included offense of murder based on the absence of malice.

       Second, Beltran contends that, if this court affirms his murder conviction, the

section 12022.53(d) firearm enhancement of 25 years to life must be stricken, and a

determinate term of 20 years imposed in its place under section 12022.53(c) because (1)

"the plain language of [section 12022.53(d)] indicates that it applies 'to any person other

than an accomplice,'" (2) Cruz was an accomplice because he "was an aider and abettor

as well as a coconspirator to the crime of his killing" in that "[he] asked [Beltran] to kill

him," and thus (3) the court erred in preventing the jury from determining whether Cruz

was an accomplice by modifying the jury instruction on section 12022.53(d) "by

eliminating the need for the jury to determine whether Cruz was 'any person other than an

accomplice.'"

       For reasons we shall explain, we affirm both Beltran's murder conviction and the

related section 12022.53(d) firearm enhancement. Accordingly, we affirm the judgment.




                                               3
                               FACTUAL BACKGROUND

       A. The People's Case

       On August 13, 2008,2 at around 7:30 p.m., officers from the San Bernardino

County Sheriff's Department were dispatched to a remote dirt road in an unincorporated

area of Fontana. There they found a man's body lying face up on the ground. The man

was wearing construction boots, blue jeans, and a long-sleeved T-shirt containing the

emblem, "MJW Concrete." The deceased was later identified as Baraquel Alonzo Cruz,

who was born in early 1954.

       The scene was processed for evidence and investigators found an expended nine-

millimeter cartridge casing five to six feet away from Cruz's body. Cruz's body was

transported to the coroner's office for an autopsy.

       Steven Trenkle, a forensic pathologist, performed the autopsy and determined that

a bullet entered Cruz's mouth, passed through the cervical spine, and exited through the

back of his neck. Dr. Trenkle determined that the cause of death was the gunshot wound

to the head and neck. He opined that a person sustaining such an injury would be dead

within a matter of minutes absent immediate medical intervention.     Sergeant David

Burgess and Detectives Jon Minard and Scott Landen went to MJW Concrete and spoke

to Jose Jesus Hernandez. Hernandez, Beltran, and Cruz worked together at MJW.

According to Hernandez, he, Beltran, Cruz, and two other workers were at a construction

job site in Yorba Linda on August 12. Beltran had driven the group to that site in the



2      All further dates are to calendar year 2008 unless otherwise specified.
                                              4
company truck and the job ended at 3:30 p.m. On the way back, after Beltran dropped

the other two workers off at their homes, Hernandez heard Cruz complaining to Beltran

about his family and his problems. When Beltran stopped at a gas station, Cruz said he

was having problems with his daughters. He told Beltran he would be very grateful if

Beltran killed him. When Cruz went inside the gas station, Beltran told Hernandez that

Cruz was "playing with fire" and that he (Beltran) "could do something." Hernandez,

who was in the truck with Beltran, told Beltran to pay no attention to Cruz because Cruz

was "crazy." After they left the gas station, Beltran dropped Hernandez off at his house

and then drove away with Cruz. Cruz answered the phone and Hernandez heard Beltran's

voice in the background.

       The next day, August 13, Hernandez was scheduled to work with Cruz and Beltran

at a job site in Temecula. Beltran was supposed to drive Cruz to the site, but Cruz did not

show up for work. When Hernandez asked Beltran about Cruz, Beltran told Hernandez

that after he took Hernandez home, Cruz drank some beer, he drove Cruz to his

girlfriend's house, Cruz agreed to go to the yard, but Cruz never arrived. Hernandez

called Cruz many times, but he did not answer.

       Hernandez testified that on August 19 Beltran admitted to him at work that he had

killed Cruz. Beltran told Hernandez that he did not feel bad about what happened; he did

not feel any regret.

       While the officers were at MJW, they also spoke to Beltran. Beltran agreed to

accompany Sergeant Burgess and Detective Minard to the sheriff's headquarters to be

interviewed. Detective Minard asked Beltran when he last saw Cruz. Beltran said that

                                            5
while he and Cruz were working, Cruz told him he wanted to kill himself. Cruz did not

explain why; he just said he was "fed up with life." When asked whether he killed Cruz,

Beltran replied, "No, I didn't kill him." Beltran stated he "wasn't there" and he "didn't do

it."

       Following further questioning, Detective Minard told Beltran he was under arrest

for killing Cruz and advised Beltran of his Miranda3 rights. Beltran stated that he

understood his rights and indicated he was willing to talk about what had happened to

Cruz. Beltran said that Cruz was his friend, and Cruz asked him to kill him because he

was fed up with life. Cruz told Beltran that he picked oranges when he was younger and

he worked better than everyone else, but when he got older everyone beat him at the job,

he earned less money, and he got depressed. Beltran said Cruz had told him that when he

turned 54 he was going to take his own life by swallowing poison. Beltran said he told

Cruz that whenever he decided he wanted to die, he would do that "favor" and kill him.

       Beltran also told Detective Minard that while he, Hernandez, and Cruz were at the

job site in Yorba Linda on August 12, Cruz asked him to shoot him. Beltran said that

Hernandez was present when Cruz asked him (Beltran) to kill him. On the way home

from work, Cruz again asked Beltran to kill him. Beltran also indicated that, once he was

alone with Cruz in the truck at a gas station, Cruz again asked him to kill him. Cruz told

him he was fed up with life and said he had a daughter who was a Jehovah's Witness and




3      Miranda v. Arizona (1966) 384 U.S. 436.
                                             6
had not spoken to him in a long time. He also said his wife only spoke to him because he

sent her money.

       During the interview, Beltran also stated that after he took Hernandez home, he

drove Cruz to the location where he killed him. Beltran's Colt nine-millimeter handgun

was on the seat and Cruz saw it. Beltran said he asked Cruz whether he was sure he

wanted to be killed, and Cruz said, "yes." According to Beltran, Cruz said he wanted the

gun to be "emptied all in his chest." Beltran stated that, when he and Cruz got out of the

truck, he asked Cruz again if he was sure this is what he wanted, and Cruz responded,

"Yes, . . . do it." Beltran then admitted that he killed Cruz by shooting him once in the

head. Beltran said he left the gun near Cruz's body and drove home. Beltran added that

he was "at peace" with killing Cruz because it was "a death that [Cruz] wanted," not one

that he [Beltran] wanted.

       B. The Defense

       Testifying for the defense, Sergeant Daniel Finneran indicated that he responded

to the scene of the killing during the evening on August 13. He stated that "it did not

appear to [him] as if the body had been there for an extended period of time."

       Vincent Sghiatti, a physician and general family medicine practitioner, testified he

was retained by the defense to ascertain the time of death. From his review of the

records, he opined that Cruz died the afternoon of August 13 between 2:00 and 6:00 p.m.

       Several individuals who knew Beltran and Cruz testified that Beltran was honest,

hard working, nonviolent and that he and Cruz had a good relationship.



                                             7
                                      DISCUSSION

                   I. CLAIM OF INSTRUCTIONAL ERROR (COUNT 1)

       Beltran first contends his second degree murder conviction must be reversed

because (1) Cruz, was Beltran's friend; (2) Cruz asked him to assist him in committing

suicide by shooting him, and, thus, (3) the court prejudicially erred by denying his

request for a jury instruction on the law of voluntary manslaughter as a lesser included

offense of murder based on the absence of malice. We reject this contention.

       A. Background

       As pertinent here, defense counsel submitted two proposed special instructions.

The first, proposed special instruction No. 1, provided:

          "A killing that would otherwise be murder is reduced to voluntary
          manslaughter if the defendant killed someone without malice.

          "You have heard evidence that the defendant killed the decedent at
          the decedent's request. You are the exclusive judges of whether or
          not the defendant killed the decedent, and if so, whether the
          defendant killed the decedent at the decedent's request.

          "If you find that the defendant killed the decedent at the decedent's
          request, you may find that the killing was committed without malice.

          "The People have the burden of proving beyond a reasonable doubt
          that the defendant killed the decedent and did so with malice. If the
          People have not met this burden, you must find the defendant not
          guilty of murder.

          "You should then deliberate whether the defendant is guilty of
          manslaughter." (Italics added.)

       The second instruction requested by Beltran's counsel, proposed special instruction

No. 5, provided:


                                             8
          "You have heard evidence that the defendant killed the decedent at
          the decedent's request. You are the exclusive judges of whether the
          defendant killed the decedent, and if so, whether the defendant killed
          the decedent at the decedent's request. If you find that the defendant
          killed the decedent at the decedent's request, you may find that the
          fact that the killing was committed at the decedent's request negates
          any express or implied malice on the part of the defendant." (Italics
          added.)

       At a jury instruction conference, in support of his request that the court give these

proposed instructions to the jury, Beltran's counsel argued that the California Supreme

Court "apparently ha[d] not addressed" the question of whether a killing carried out at the

request of the victim "should act to obviate malice," thereby reducing the crime of murder

to that of voluntary manslaughter.

       The court denied defense counsel's request, responding that the proposed

instructions "fl[y] in the face" of the Supreme Court's decision in People v. Matlock

(1959) 51 Cal.2d 682 (Matlock).

       B. Analysis

       In his opening brief, Beltran correctly acknowledges that "the current law does not

support his contention that his mercy killing of his friend [(Cruz)] at his friend's request

was an act less than murder due to the absence of malice." Indeed, Matlock, supra, 51

Cal.2d 682─which the court cited in denying defense counsel's request that proposed

special instructions Nos. 1 and 5 be given to the jury─is virtually on point. In Matlock,

the California Supreme Court was presented with the issue of whether someone who

actively participates in the final overt act that causes the death of a suicide victim─at the

victim's request (see id. at p. 687)─is guilty of murder or may be found guilty of the


                                              9
felony offense of deliberately aiding, advising, or encouraging the victim to commit

suicide in violation of section 401.4 (Matlock, supra, 51 Cal.2d at pp. 693-694.) The

defendant in that case admitted that he strangled the victim and took the victim's money,

claiming he did so at the victim's request because the victim told him he only had six

months to live and wanted to die in a way that appeared to be a "murder-robbery" in order

to avoid forfeiting the benefits of his insurance policy. (Id. at pp. 689, 694.) A jury

found the defendant guilty of first degree murder and second degree robbery. (Id. at p.

687.)

        On appeal, the Matlock defendant acknowledged he could be guilty of aiding

suicide in violation of section 401, but claimed he could not be guilty of murder, and thus

the trial court erred in refusing his requested jury instructions based on section 401.

(Matlock, supra, 51 Cal.2d at p. 693.) Rejecting these claims, the Supreme Court held

that, "[i]n these circumstances," the trial court properly refused to give the instruction

based on section 401 because the defendant's active participation in the final overt act

causing the victim's death barred the application of section 401. (Matlock, supra, 51

Cal.2d at p. 694; see In re Joseph G. (1983) 34 Cal.3d 429, 435 [stating that, in Matlock,

"we held that the defendant's active participation in the final overt act causing the victim's

death, i.e., strangling him, precluded the application of the aiding suicide statute

[(§ 401)]"].) The Matlock court explained that the defendant's active participation in the




4     Section 401 provides: "Every person who deliberately aids, or advises, or
encourages another to commit suicide, is guilty of a felony."
                                              10
overt act that resulted in the victim's death "constitute[d] murder," and it was "wholly

immaterial" that the defendant acted at the request of the victim:

          "'[W]here a person actually performs, or actively assists in
          performing, the overt act resulting in death, such as shooting or
          stabbing the victim, administering the poison, or holding one under
          water until death takes place by drowning, his act constitutes
          murder, and it is wholly immaterial whether this act is committed
          pursuant to an agreement with the victim, such as a mutual suicide
          pact.'" (Matlock, supra, 51 Cal.2d at p. 694, italics added.)

       We addressed Matlock in People v. Cleaves (1991) 229 Cal.App.3d 367 (Cleaves),

which also is virtually on point. In Cleaves, the accused's defense to a murder charge

was that he killed the victim, who was suffering from AIDS, at the victim's request to

relieve the victim's suffering. (Id. at pp. 372-373.) Pursuant to the victim's request, the

defendant assisted him in strangling himself. (Ibid.) At trial the court instructed the jury

on first and second degree murder only, refusing to instruct the jury on the lesser related

offense of aiding and abetting suicide, and also refusing to instruct the jury on voluntary

and involuntary manslaughter. (Id. at pp. 374-375.) The jury found the defendant guilty

of second degree murder, and he appealed to this court. (Id. at p. 371.)

       Relying on Matlock, the Cleaves defendant claimed on appeal that the facts

supported a jury instruction on a lesser related offense of voluntary manslaughter based

on his asserted lack of malice. (Cleaves, supra, 229 Cal.App.3d at pp. 371, 376.) Citing

Matlock we rejected that claim, stating:

          "[Defendant] asks us to fashion a manslaughter crime for a killing
          done at the victim's request, based on the absence of malice, which
          does not now expressly exist under California law. . . . As
          recognized by [the defendant], our Supreme Court in [Matlock],
          supra, 51 Cal.2d at page 694, defined a killing pursuant to an

                                             11
          agreement with the victim as murder. Although Matlock does not
          address the absence of malice issue, as a lower tribunal we decline to
          deviate from the parameters of Matlock." (Cleaves, supra, 229
          Cal.App.3d at p. 376, citing Auto Equity Sales, Inc. v. Superior
          Court (1962) 57 Cal.2d 450, 455.)

       We also stated in Cleaves that "[w]e leave it to our Supreme Court to resolve

whether it is appropriate to examine the malice issue as it pertains to a killing at the

victim's request." (Cleaves, supra, 229 Cal.App.3d at p. 377.)

       Here, we are constrained─as we were in Cleaves─by the California Supreme

Court's holdings in Matlock, supra, 51 Cal.2d at page 694, that an unlawful homicide

committed by a defendant who claims the offense was a mercy killing done at the request

of the victim is murder, and that it is wholly immaterial whether the defendant's active

participation in the overt act resulting in the victim's death took place pursuant to an

agreement with the victim. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d

at p. 455.) Accordingly, we affirm Beltran's conviction of second degree murder.

                 II. SECTION 12022.53(d) FIREARM ENHANCEMENT

       Beltran alternatively contends that, if this court affirms his murder conviction, the

consecutive sentence enhancement of 25 years to life imposed under section

12022.53(d)5 (for discharging a firearm, causing death, during the commission of the



5       When Beltran murdered Cruz in 2008, former section 12022.53(d) provided:
"Notwithstanding any other provision of law, any person who, in the commission of a
felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section
12034, personally and intentionally discharges a firearm and proximately causes great
bodily injury, as defined in Section 12022.7, or death, to any person other than an
accomplice, shall be punished by an additional and consecutive term of imprisonment in
the state prison for 25 years to life." (Stats. 2006, ch. 901, § 11.1.) In 2010, former
                                              12
murder) must be stricken and a determinate term of 20 years imposed in its place under

section 12022.53(c) because (1) "the plain language of [section 12022.53(d)] indicates

that it applies 'to any person other than an accomplice'" (italics added); (2) Cruz was an

accomplice because he "was an aider and abettor as well as a coconspirator to the crime

of his killing" in that "[he] asked [Beltran] to kill him"; and, thus, (3) the court erred in

preventing the jury from determining whether Cruz was an accomplice by modifying

CALCRIM No. 3149─the standard jury instruction on section 12022.53(d)─"by

eliminating the need for the jury to determine whether Cruz was 'any person other than an

accomplice.'"

       We reject this contention and affirm the section 12022.53(d) firearm enhancement

because (1) Cruz could not have been charged with murder or any other crime had he

survived the shooting; and, thus, (2) Cruz was not an accomplice within the meaning of

the accomplice exception to that firearm enhancement as a matter of law.

       A. Background

       1. Section 12022.53(d) firearm enhancement allegation

       As to the murder offense, the information alleged that Beltran, in committing the

murder, personally and intentionally discharged a firearm causing great bodily injury and

death to the victim (Cruz) within the meaning of the firearm enhancement set forth in

section 12022.53(d).

section 12022.53(d) was amended (operative Jan. 1, 2012) to change the reference to
"Section 12034" to "Section 26100." (Stats. 2010, ch. 711, § 5.) In all other respects
former section 12022.53(d) and the current version of section 12022.53(d) are identical.
Because the post-2008 amendment of the statute does not alter our analysis, in the
interest of clarity we refer here to the current version of section 12022.53(d).
                                              13
       2. Modified version of CALCRIM No. 3149 given by the court

       During an unreported jury instruction conference, the court modified CALCRIM

No. 3149─the standard jury instruction on the section 12022.53(d) firearm

enhancement─and instructed the jury on that enhancement as follows:

          "If you find the defendant guilty of murder in the first or second
          degree in Count 1, you must then decide whether the People have
          proved the additional allegation that the defendant personally and
          intentionally discharged a firearm during that crime causing death.

          "To prove this allegation, the People must prove that: [¶] 1. The
          defendant personally discharged a firearm during the commission of
          that crime; [¶] 2. The defendant intended to discharge the firearm;
          [¶] AND [¶] 3. The defendant's act caused the death of a person.

          "The People have the burden of proving each allegation beyond a
          reasonable doubt. If the People have not met this burden, you must
          find that the allegation has not been proved." (Italics added.)

       Thus, under the modified version of CALCRIM No. 3149 given by the court, the

foregoing italicized third element (hereafter element No. 3), which the prosecution was

required to prove in order to obtain a true finding on the section 12022.53(d) firearm

enhancement allegation, required proof that "[t]he defendant's act[] caused the death of a

person." In modifying CALCRIM No. 3149, the court omitted from element No. 3 the

bracketed phrase "who was not an accomplice to the crime."6 The unmodified version of



6      When Beltran committed the murder in August 2008, element No. 3 of former
CALCRIM No. 3149 (like element No. 3 of the current version of CALCRIM No. 3149)
included the bracketed accomplice exception and provided in part: "To prove this
allegation, the People must prove that: [¶] 1. The defendant personally discharged a
firearm during the commission . . . of that crime; [¶] 2. The defendant intended to
discharge the firearm; [¶] AND [¶] 3. The defendant's act caused . . . the death of . . . a
person [who was not an accomplice to the crime]." (CALCRIM No. 3149 (Spring 2008),
                                            14
element No. 3, had it been given by the court, would have included the bracketed

accomplice exception language and would have required proof that "[t]he defendant's act

caused . . . the death of . . . a person [who was not an accomplice to the crime]."

(CALCRIM No. 3149, italics added.)

       In modifying CALCRIM No. 3149, the court also omitted the following bracketed

definition of "accomplice":

          "[A person is an accomplice if he or she is subject to prosecution for
          the identical crime charged against the defendant. A person is
          subject to prosecution if he or she committed the crime or if: [¶] 1.
          He or she knew of the criminal purpose of the person who
          committed the crime; [¶] AND [¶] 2. He or she intended to, and did
          in fact, (aid, facilitate, promote, encourage, or instigate the
          commission of the crime/ [or] participate in a criminal conspiracy to
          commit the crime).]" (CALCRIM No. 3149, original italics.)

       3. Jury's finding on the section 12022.53(d) firearm enhancement allegation and
the imposition of the 25-year-to-life enhancement at sentencing

       Based on the modified version of CALCRIM No. 3149 given by the court

(discussed, ante), the jury found to be true the section 12022.53(d) firearm enhancement.

As a result of that true finding, the court imposed at sentencing the consecutive

indeterminate prison term enhancement of 25 years to life mandated by section

12022.53(d).

       B. Section 12022.53 and the accomplice exception to section 12022.53(d)

       Section 12022.53, which is also known as the "10–20–life" law, "was enacted in

1997 to substantially increase the penalties for using firearms in the commission of


italics added; cf. CALCRIM No. 3149 (2014).) For clarity's sake we refer to the current
version of CALCRIM No. 3149.
                                             15
enumerated felonies," including, as relevant here, murder. (People v. Palmer (2005) 133

Cal.App.4th 1141, 1148-1149; § 12022.53, subd. (a)(1) (Palmer).) "The statute

prescribes sentence enhancements (prison terms of 10 years, 20 years, and 25 years to

life) for increasingly serious circumstances of firearm use. [Citations.] Section

12022.53[(b)] requires imposition of an additional, consecutive term of 10 years when the

defendant personally uses a firearm during commission of the crime. Subdivision (c)

requires imposition of an additional, consecutive 20-year term when the defendant

personally and intentionally discharges a firearm during commission of the crime.

[Section 12022.53(d)], the provision at issue here, requires imposition of an additional,

consecutive 25-year-to-life term when the defendant 'personally and intentionally

discharges a firearm and proximately causes great bodily injury, as defined in Section

12022.7, or death, to any person other than an accomplice . . . .'" (Palmer, supra, 133

Cal.App.4th at p. 1149, italics added, original italics omitted; § 12022.53(d).)

       Thus, under the accomplice exception set forth in section 12022.53(d), the 25-

year-to-life sentence enhancement provided by section 12022.53(d) does not apply if the

victim of an enumerated crime committed by the defendant was an accomplice to a crime

he or she and the defendant intended to commit. (§ 12022.53(d); People v. Flores (2005)

129 Cal.App.4th 174, 182 (Flores) ["If the victim is an accomplice to the crime he or she

and defendant intended but ends up the victim of one of the enumerated offenses, the

[accomplice] exception in section 12022.53[(d)] applies."].)




                                             16
      C. Analysis

      In this case substantial evidence presented at trial (discussed, ante, in the factual

background) shows, and the Attorney General does not dispute, that Beltran shot and

killed the victim─his friend and coworker, Cruz─at Cruz's request. The jury found

Beltran guilty of second degree murder and the court imposed the challenged firearm

enhancement of 25 years to life under section 12022.53(d) without instructing the jury to

determine whether Cruz was an accomplice to the crime.

      The principal question we must decide is whether Cruz was an "accomplice" to the

murder within the meaning of the accomplice exception set forth in section 12022.53(d).

Under the accomplice exception, as already discussed, the 25-year-to-life sentence

enhancement provided by section 12022.53(d) applies only if the defendant, in

discharging a firearm during his or her commission of an enumerated offense (here,

murder), proximately caused great bodily injury or (as occurred here) death to someone

"other than an accomplice." (§ 12022.53(d); Flores, supra, 129 Cal.App.4th at p. 182.)

Thus, if─as Beltran contends─Cruz was an accomplice to his own murder because he

asked Beltran to kill him, the accomplice exception to the section 12022.53(d) firearm

enhancement applies and we must conclude both that the court erroneously modified

CALCRIM No. 3149 by omitting the accomplice exception language ("other than an

accomplice") that would have required the jury to determine whether Cruz was an

accomplice and that the court erroneously imposed the 25-year-to-life sentence

enhancement under section 12022.53(d). If Cruz was not an accomplice, as the Attorney

General contends, we must conclude both that the court properly gave to the jury the

                                            17
modified version of CALCRIM No. 3149 (discussed, ante), and that it properly imposed

the firearm enhancement under section 12022.53(d).

       Our analysis hinges on the legal definition of "accomplice." As this court

explained in People v. Verlinde (2002) 100 Cal.App.4th 1146, "[a]ccomplice liability is

'"derivative,"' resulting from an act by the perpetrator to which the accomplice

contributed." (Id. at p. 1158, quoting People v. Prettyman (1996) 14 Cal.4th 248, 259.)

"Put another way, '"[a]n accomplice" is one who knowingly, voluntarily, and with

common intent with the principal offender unites in the commission of the crime.'"

(Verlinde at p. 1158, quoting People v. Jones (1967) 254 Cal.App.2d 200, 213.)

       However, for a person to be an accomplice it is not sufficient that he or she

knowingly, voluntarily, and with common intent with the principal offender unites in the

commission of the crime. The California Supreme Court has explained that "[s]ection

1111[7] defines a[n] accomplice as a person 'who is liable to prosecution for the identical

offense charged against the defendant on trial [and] that [t]his definition encompasses all

principals to the crime [citation], including aiders and abettors and coconspirators."

(People v. Stankewitz (1990) 51 Cal.3d 72, 90, italics added.) Thus, in order to be an

accomplice, a person also "'must be chargeable with the crime as a principal (§ 31) . . . .'"

(Verlinde, supra, 100 Cal.App.4th at p. 1158, quoting People v. Sully (1991) 53 Cal.3d

1195, 1227, italics added; § 1111.) "Whether a person is an accomplice is a question of



7        Section 1111 provides in pertinent part: "An accomplice is hereby defined as one
who is liable to prosecution for the identical offense charged against the defendant on
trial in the cause in which the testimony of the accomplice is given." (Italics added.)
                                             18
fact for the jury unless there is no dispute as to either the facts or the inferences to be

drawn therefrom." (Stankewitz, at p. 90.)

       Beltran, however, disputes that in order to be deemed an "accomplice" within the

meaning of section 12022.53(d), a person must be chargeable with a crime. Specifically,

he asserts that Cruz "was an 'accomplice' to his own murder whether or not he could be

charged with a crime." (Italics added.) Correctly noting that section 1111 "is a very old

statute from 1872" (see 50B West's Ann. Pen. Code (2004 ed.) foll. § 1111, p. 383) and

that section 12022.53 "was added in 1997" (see Palmer, supra, 133 Cal.App.4th at p.

1148), Beltran also asserts that, "[h]ad the Legislature in enacting Section 12022.53

meant for the definition of an accomplice to be that of Section 1111, it would have said

so." These assertions are without merit. As Beltran himself acknowledges, it is an

established rule of statutory construction that "the Legislature is deemed to be aware of

statutes . . . already in existence and to have enacted a statute in light of existing statutes

and decisions." (People v. Kelly (2013) 215 Cal.App.4th 297, 305, citing People v. Yartz

(2005) 37 Cal.4th 529, 538.) Thus, when the Legislature enacted section 12022.53 in

1997, it presumably was aware of the definition of accomplice set forth in section 1111,

an existing statute. Accordingly, we presume that if the Legislature in enacting section

12022.53 had intended that the definition of accomplice set forth in section 1111 not

apply, it would have said so. (Yartz, supra, 37 Cal.4th 529 at p. 538; Kelly, supra, 215

Cal.App.4th at p. 305.)

       Turning to the undisputed facts of this case, we conclude that Cruz was not an

accomplice to his own murder within the meaning of the accomplice exception set forth

                                               19
in section 12022.53(d) as a matter of law, and thus the court did not err in modifying

CALCRIM No. 3149 and in imposing the 25-year-to-life firearm enhancement under

section 12022.53(d), because Cruz could not have been lawfully charged with any crime,

including attempted murder, had he survived the shooting perpetrated by Beltran at

Cruz's request. "Murder is the unlawful killing of another human being . . . with malice

aforethought." (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against

the Person, § 97, p. 887, italics added; CALCRIM No. 500 [stating in part that

"[h]omicide is the killing of one human being by another" and murder is a type of

homicide].) Thus, had Cruz survived the shooting, he would not have been chargeable as

an accomplice to attempted murder because he was not liable to prosecution for his own

unlawful killing. (1 Witkin & Epstein, Cal. Criminal Law, supra, § 97. p. 887;

CALCRIM No. 500; see In re Joseph G. (1983) 34 Cal.3d 429, 433 ["[M]ost [American

jurisdictions], including California, attach no criminal liability to one who makes a

suicide attempt."]; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373 ["Neither suicide nor

attempted suicide is a crime under the criminal statutes of California or any other state."])

       Beltran's reliance on Flores, supra, 129 Cal.App.4th 174, is unavailing. In that

case the defendant (Flores) and a fellow gang member (Valdivia) conspired to commit a

battery on a rival gang member (Morales). (Id. at p. 182.) While Valdivia was fighting

with Morales during a gang brawl, Flores shot at Morales with a firearm but hit and killed

Valdivia. (Ibid.) The prosecution charged Flores with the murder of Valdivia and

alleged that Flores's sentence should be enhanced under the then-existing version of

section 12022.53(d) that, like the version of section 12022.53(d) at issue in this case,

                                             20
applied only if the victim of the defendant's enumerated crime was someone "other than

an accomplice."8 (Flores, at p. 181.) Like the court in the instant case, the trial court in

Flores failed to include the words "other than an accomplice" when it instructed the jury

on the section 12022.53(d) firearm enhancement. (Flores, at pp. 177, 181.) A jury found

Flores guilty of the first degree murder of Valdivia and also found to be true the section

12022.53(d) enhancement allegation. (Flores, at p. 180.) At sentencing, the trial court

imposed the 25-year-to-life sentence enhancement provided by section 12022.53(d).

(Ibid.)

          On appeal, the Flores court held that when the trial court struck the words "other

than an accomplice" from the jury instruction on the section 12022.53(d) enhancement, it

erroneously "withdrew from the jury the opportunity to consider whether Valdivia was an

accomplice to defendant's discharge of the firearm either as an aider and abettor or as a

coconspirator." (Flores, supra, 129 Cal.App.4th at p. 183.) Observing that "[t]he

Legislature [in enacting section 12022.53(d)] apparently decided that killing one's

accomplice is less blameworthy (or at least less deserving of punishment) than killing a

nonaccomplice" (Flores, at p. 181), the Court of Appeal reasoned that, "[h]ad [Flores's]

shot hit only Morales or Morales and some other person" (ibid.)─in other words, had the



8       The former version of section 12022.53(d) at issue in Flores provided:
"'Notwithstanding any other provision of law, any person who is convicted of a felony
specified in subdivision (a), . . . and who in the commission of that felony intentionally
and personally discharged a firearm and proximately caused . . . death[] to any person
other than an accomplice, shall be punished by a term of imprisonment of 25 years to life
in the state prison, which shall be imposed in addition and consecutive to the punishment
prescribed for that felony.'" (Flores, supra, 129 Cal.App.4th at p. 181, original italics.)
                                               21
murder victim, Valdivia, survived─Valdivia "would surely have been charged as a

coconspirator and an aider and abettor of defendant's crimes, i.e., an accomplice." (Ibid.,

italics added.) The Flores court explained that, "[i]f the victim is an accomplice to the

crime he or she and defendant intended but ends up the victim of one of the enumerated

offenses, the exception in section 12022.53[(d)] applies." (Flores, at p. 182.)

       Beltran's reliance on Flores is unavailing because that case is distinguishable. The

murder victim in Flores was an accomplice for purposes of section 12022.53(d) because,

had he survived the shooting, he would have been liable to prosecution as an aider and

abettor, and as a coconspirator, for the crime he and the defendant intended to commit.

Here, as already discussed, Cruz would not have been liable to prosecution as an

accomplice for the crime he asked Beltran to commit: his own unlawful killing.

       For all of the foregoing reasons, we affirm the 25-year-to-life sentence that the

court imposed on Beltran under section 12022.53(d).

                                      DISPOSITION

       The judgment is affirmed.

                                                                                  NARES, J.
WE CONCUR:


BENKE, Acting P. J.


McDONALD, J.




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