P. v. Prado

Filed 4/4/11 P. v. Prado CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE JOHNNY PRADO,
Defendant and Appellant.
B221964
(Los Angeles County
Super. Ct. No. KA084737)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Charles Horan, Judge. Affirmed.
Matthew Alger for Defendant and Appellant.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette,
Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General,
Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________________

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Defendant Jose Johnny Prado appeals from the judgment entered upon his jury
conviction of first degree murder. Defendant contends the trial court committed
reversible error when it failed to instruct the jury that (1) under the natural and probable
consequences doctrine, an aider and abettor could be guilty of a lesser degree of murder
than the perpetrator, and (2) the absence of heat of passion is an element of malice
aforethought. Defendant also contends that he was prejudiced by the trial court‟s
inadequate inquiry into the effectiveness of his appointed counsel.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The murder victim, Oscar Torres, owned a Hummer stretch limousine that his
friend Anthony Limon drove for him. On October 4, 2008, Torres arranged for Limon to
drive Jose Saenz, who went by the name Toro. Saenz directed Limon to pick up three
other individuals, including defendant. They went to a liquor store and a bar, cruised
around Hollywood and were headed to Montebello when Saenz told Limon to drive to
Torres‟s house in Whittier.
Once there, Saenz, Limon, and defendant went up to Torres‟s front door. Torres
eventually let them in. In the meantime, someone turned the limousine around and
parked it in front of the house facing in the opposite direction. Defendant entered
Torres‟s house last and stayed closest to the door. Saenz pulled a gun and pointed it at
Torres within seconds of entering. Limon stepped between them and tried to take the gun
away from Saenz. Defendant pushed Limon away and they struggled. Limon did not see
a gun in defendant‟s hand but felt what appeared to be a gun. While Limon was trying to
run to another room, he heard a pop. He saw defendant and Saenz hitting Torres with
their fists. Limon then rushed defendant, and the two struggled again. Someone hit
Limon on the back of the head. He was shot in the back either when he heard the original
popping sound or during his second struggle with defendant. He heard someone say,
“Dome him” or “Kill him.”

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The outside surveillance system captured Torres running out of the house chased
by Saenz, who was shooting at him. Torres fell to the ground face up, and Saenz stood
over him, shooting him repeatedly in the head. Saenz then ran into and out of the house
and entered the limousine, which had started moving during the shooting. On his way
out of the house, defendant wiped the door frame with his shirt sleeve while holding a
gun in his other hand. He ran after Saenz, turned around, and ran back into the house,
racking the slide of a gun, then ran out and entered the limousine.
The 19 entry and exit gunshot wounds on Torres‟s body indicated that he had been
shot repeatedly in the back and in the face. Ten spent casings were recovered from the
front yard; an eleventh casing was found in the house. All bullets were fired from the
same handgun. About forty firearms were recovered from the house, as well as four pay-
owe sheets, one of which bore the name “Toro.”
Defendant was charged with one count of murder as to Torres and one count of
attempted premeditated murder as to Limon. The jury convicted him of first degree
murder and acquitted him of the attempted murder charge. The court denied defense
counsel‟s motion for a new trial and defendant‟s request to represent himself. Defendant
was sentenced to a term of 25 years to life for the murder conviction, with a one-year
enhancement for a sustained allegation of a prior prison term.
Defendant timely appeals.
DISCUSSION
I
Defendant contends the court incorrectly instructed the jury on the law of aiding
and abetting and malice aforethought. The trial court in criminal cases must instruct the
jury sua sponte on the applicable law. (People v. Breverman (1998) 19 Cal.4th 142, 154
(Breverman).) Its failure to properly instruct the jury is reviewed de novo. (People v.
Martin (2000) 78 Cal.App.4th 1107, 1111.) The contention that an instruction misstates
the law is cognizable even absent an objection in the trial court. (People v. Smithey
(1999) 20 Cal.4th 936, 976, fn. 7.)

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A
Defendant contends that CALJIC Nos. 3.00 and 3.02 were incorrectly given
because they did not inform the jury that he could be guilty of a lesser offense than
Saenz. The correctness of jury instructions is determined “from the entire charge of the
court, not from a consideration of parts of an instruction or from a particular instruction.”
(People v. Castillo (1997) 16 Cal.4th 1009, 1016.) We therefore examine the entire set of
jury instructions given in this case.
The case was originally submitted to the jury on the theory that defendant intended
to aid and abet Torres‟s murder. Generally, an aider and abettor is guilty of the crime he
or she intended to aid and abet. (People v. McCoy (2001) 25 Cal.4th 1111, 1117
(McCoy).) If the mens rea of the aider and abettor “is more culpable than the actual
perpetrator‟s, the aider and abettor may be guilty of a more serious crime than the actual
perpetrator.” (Id. at p. 1120.) Conversely, if the aider and abettor‟s mens rea is less
culpable, the aider and abettor may be guilty of a lesser crime. (People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1165 (Samaniego).) The court instructed the jury in terms
of CALJIC No. 3.00 that “[e]ach principal, regardless of the extent or manner of
participation[,] is equally guilty.” Courts have found the “equally guilty” language of
CALJIC No. 3.00, and of the similarly worded CALCRIM No. 400, to be misleading.
(People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero); Samaniego, supra, 172
Cal.App.4th at 1164-1165). Instructing the jury that principals are “equally guilty”
amounts to reversible error when the trial court precludes the jury from making
appropriate findings under other instructions. (See Nero, 181 Cal.App.4th at p. 519-520
[reversible error where the trial court reread CALJIC No. 3.00 twice after the jury asked
whether it could convict the defendant of a lesser crime]; cf. Samaniego, 172 Cal.App.4th
at p. 1165-1166 [no reversible error where the jury made appropriate findings under other
instructions].)
Here, the trial court also instructed the jury in terms of CALJIC No. 3.01, that
liability for a crime is premised on the aider and abettor‟s own knowledge and intent, and
No. 3.31, that there must be a union of act and mental state. The jury was separately

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instructed on murder as a violation of Penal Code section 187 (CALJIC No. 8.10),
express malice (CALJIC No. 8.11), and first and second degree murder (CALJIC
Nos. 8.20 and 8.30). In response to these instructions, the jury asked the court to clarify
whether defendant would be an aider and abettor to murder if Saenz had manifested an
intent to kill but defendant only knew that a lesser offense, such as “roughing up,” would
be committed. Contrary to defendant‟s contention, the jury‟s question does not indicate
that the jury was mislead by CALJIC No. 3.00. Rather, it indicates that the jury was
following CALJIC Nos. 3.01 and 3.31 and was considering whether, based on his
knowledge and intent, defendant could be guilty of a lesser crime than murder. Unlike
the court in Nero, the court here did not answer the jury‟s question by rereading CALJIC
No. 3.00 and thus cannot be said to have mislead the jury.
Instead, the court answered the jury‟s question by instructing in terms of CALJIC
No. 3.02 on the doctrine of natural and probable consequences. Under this doctrine, an
aider and abettor may be guilty of any other crime committed by the perpetrator that is a
natural and probable consequence of the crime he or she intended to aid and abet.
(McCoy, supra, 25 Cal.4th at p. 1117.) As modified to fit this case, CALJIC No. 3.02
instructed the jury it had to be satisfied beyond a reasonable doubt that defendant aided
and abetted the commission of the crime of assault or assault with a firearm, that his co-
principal committed murder, and that murder was a natural and probable consequence of
the commission of the crime of assault or assault with a firearm.
Under the doctrine of natural and probable consequences, the aider and abettor
may be guilty of a lesser necessarily included offense to the crime the actual perpetrator
ultimately committed if only the lesser offense is “a reasonably foreseeable consequence”
of the crime originally aided and abetted. (People v. Woods (1992) 8 Cal.App.4th 1570,
1587-1588 (Woods).) Defendant argues that CALJIC No. 3.02 was misleading because it
did not inform the jury that defendant could be guilty of a lesser degree of murder than
Saenz if the lesser degree of murder was a natural and probable consequence of the crime
of assault or assault with a firearm under the circumstances known to defendant.
Defendant relies on Woods, but that case does not premise the natural and probable

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consequences doctrine on defendant‟s knowledge or view of the circumstances. Rather,
the test is objective: “whether a reasonable person under like circumstances would
recognize that the crime was a reasonably foreseeable consequence of the act aided and
abetted. [Citation.]” (Id. at p. 1587.) Consistent with Woods, CALJIC No. 3.02 instructs
the jury to determine objectively whether murder was a reasonably foreseeable
consequence of assault or assault with a firearm.
CALJIC No. 3.02 did not instruct the jury how to determine the degree of murder,
but the court already had instructed the jury on first and second degree murder in terms of
CALJIC Nos. 8.20 and 8.30. These instructions were consistent with Woods, where the
court reasoned that “[e]ven when lesser offense instructions are not required for the
perpetrator because the evidence establishes that, if guilty at all, the perpetrator is guilty
of the greater offense, the trial court may have a duty to instruct sua sponte on necessarily
included offenses as to aider and abettor liability.” (Id. at p. 1593.) The error reviewed
by the court in Woods was that the trial court had instructed the jury that it could not find
the aider and abettor guilty of second degree murder if it found the perpetrator guilty of
first degree murder. (Id. at pp. 1579-1580.) Here, the trial court instructed on second
degree murder even though the execution-style killing of Torres left no doubt that the
perpetrator was guilty of first degree murder. (See People v. Lenart (2004) 32 Cal.4th
1107, 1127 [the manner of killing may supply the element of premeditation and
deliberation].) It did not affirmatively preclude the jury from finding defendant guilty of
second degree murder. Woods is, therefore, distinguishable.
CALJIC 8.20 instructs the jury to find murder in the first degree if “the killing was
preceded and accompanied by a clear, deliberate intent on the part of the defendant to
kill, which was the result of deliberation and premeditation.” It then explains that “[t]o
constitute a deliberate and premeditated killing, the slayer must weigh and consider the
question of killing and the reasons for and against such a choice.” CALJIC 8.30 defines
second degree murder as “the unlawful killing of a human being with malice
aforethought when the perpetrator intended unlawfully to kill.” (Italics added.) The
interchangeable use of the terms “defendant,” “slayer,” and “perpetrator” is not

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problematic in cases of direct liability for murder where they all refer to the same person.
But a defendant charged as an aider and abettor is not the slayer or perpetrator. Given
without modification in this case, the instructions create some confusion whether
defendant (the aider and abettor) or Saenz (the slayer or perpetrator) must have had a
deliberate intent to kill.
In People v. Concha (2009) 47 Cal.4th 653 (Concha), a provocative act murder
case, the court stated that “[o]nce liability for murder is established in a provocative act
murder case or in any other murder case, the degree of murder liability is determined by
examining the defendant’s personal mens rea and applying [Penal Code] section 189.”
(Id. at p. 663; italics added.) Although defendant did not rely on Concha, we invited the
parties to brief the effect of this statement on the natural and probable consequences
doctrine. After considering the supplemental briefs, we conclude that the holding in
Concha is not meant to apply to an aider and abettor‟s liability under that doctrine. The
Concha court followed closely the reasoning of McCoy, supra, 25 Cal.4th at pages 1118-
1119, that a defendant‟s personal mens rea is relevant for first degree murder. (See
Concha, at pp. 660, 662, 665, and 666.) The issue in McCoy was an aider and abettor‟s
guilt of the intended crime, and the court stated that “[n]othing we say in this opinion
necessarily applies to an aider and abettor‟s guilt of an unintended crime under the
natural and probable consequences doctrine.” (McCoy, at p. 1117.) Based as it is on
McCoy, the Concha court‟s discussion of a defendant‟s personal mens rea does not
determine an aider and abettor‟s liability for first degree murder under the natural and
probable consequences doctrine. The reference to the defendant‟s intent in CALJIC 8.20
is inconsequential in this case because the rest of the instructions on murder point to the
perpetrator‟s, not the aider and abettor‟s, mens rea. Any confusion caused by this
reference would favor defendant because it would preclude the jury from convicting him
of first degree murder if he did not deliberately intend to kill, even were that crime a
reasonably foreseeable consequence of the target crime of assault with a firearm.
Defendant cites People v. Hart (2009) 176 Cal.App.4th 662 (Hart), for the
proposition that “the trial court has a duty, sua sponte, to instruct the jury . . . that it must

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determine whether premeditation and deliberation . . . was a natural and probable
consequence of the target crime.” (Id. at p. 673.) The court in Hart reversed an aider and
abettor‟s conviction of attempted premeditated murder because the trial court had not
instructed the jury that attempted premeditated murder, rather than just attempted murder,
must be a natural and probable consequence of attempted robbery. (Ibid.) This issue is
now before our Supreme Court in People v. Favor, review granted March 16, 2011,
S189317. We decline to consider whether the holding of Hart may be applicable beyond
the attempted murder context.
Even were it so applicable, on the facts of this case we find no prejudice resulting
from the court‟s failure to instruct the jury that first degree murder, not just murder, must
have been a reasonably foreseeable consequence of the assault with a firearm. Any such
error was harmless under Chapman v. California (1967) 386 U.S. 18, 24. (See Neder v.
United States (1999) 527 U.S. 1, 15 (Neder); People v. Prieto (2003) 30 Cal.4th 226,
256.) The error is harmless where it is clear beyond a reasonable doubt “that a rational
jury would have found the defendant guilty absent the error,” as it is where “a defendant
did not, and apparently could not, bring forth facts contesting the omitted element.”
(Neder, supra, 527 U.S. at pp. 15, 18-19).
The prosecutor argued that Saenz entered Torres‟s house having planned the
murder and he brought defendant as backup. Defendant actively facilitated the murder by
standing closest to the door, pushing Limon out of the way when he tried to wrest the gun
from Saenz, fighting with Limon, and beating Torres. In his closing arguments before
and after the natural and probable consequences instruction was given, the prosecutor
relied heavily on various events recorded by the surveillance cameras. He argued that
some of Saenz‟s gestures caught on film just before Torres opened the door were
evidence of a plan: Saenz motioned to defendant as if to stand in position, rubbed his
hands and smiled, and gave what looked like a thumbs up. The prosecutor argued that
defendant‟s gestures caught on film were evidence that he knew of Saenz‟s plan to kill
Torres: defendant, who entered Torres‟s house last, appeared to close the door in a
manner that would not leave fingerprints and was seen after the murder wiping off the

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door. The prosecutor pointed to the fact that someone turned the limousine around in the
meantime as additional evidence that the murder was planned. Limon did not see a gun
in defendant‟s hand, but he felt what appeared to be a gun, and defendant was captured
on film holding a gun and racking the slide of a gun after the murder. The jury could
infer that defendant had a gun all along as opposed to holding Saenz‟s gun after the
murder.
The jury was instructed on two kinds of aider and abettor liability, and the
prosecution argued both that defendant intended to aid and abet a premeditated murder
and that murder was a natural and probable consequence of an assault with a firearm,
were that the only crime defendant intended to aid and abet. We cannot be sure which
theory the jury applied, but its question to the court that prompted the instruction on the
natural and probable consequences doctrine suggests that defendant was convicted under
that doctrine. During deliberations, the jury sent a second note to the court asking
whether an attempted murder occurred if Torres rather than Limon was Saenz‟s intended
target. The court instructed the jury that, if it believed Saenz intended to shoot Torres
rather than Limon, there could be no attempted murder against Limon. Following that
instruction, the jury convicted defendant of first degree murder as to Torres and acquitted
him of the attempted murder of Limon. The jury‟s second note to the court indicates that
Saenz‟s actions led the jury to believe that he had already attempted to kill Torres while
everyone was inside the house. His deliberate murder of Torres outside the house was
therefore reasonably foreseeable. Both first and second degree murder require an intent
to kill. If murder was a natural and probable consequence of assault with a firearm—the
intended offense about which the court instructed—it is not reasonably possible under the
facts of this case to conclude that there could be a reasonable doubt whether the murder
was willful, deliberate, and premeditated. The jury‟s view of the evidence makes clear
that it would have found defendant guilty of first degree murder even had the court
explicitly instructed that first degree murder, not just murder, could be a natural and
probable consequence of the assault with a firearm or that defendant could be guilty of a
lesser degree of murder than Saenz.

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B
Defendant challenges the jury instruction on malice aforethought on the ground
that it did not inform the jury that absence of heat of passion was an element of malice
and the prosecution had the burden to prove this negative. Alternatively, he argues that
if, as given, the malice instruction was proper under California law, the instruction was
nevertheless contrary to Mullaney v. Wilbur (1975) 421 U.S. 684 (Mullaney), which
placed the burden to prove the absence of heat of passion on the prosecution.
These arguments are mistaken. CALJIC No. 8.50, which sets up the distinction
between murder and manslaughter, satisfies Mullaney. (People v. Rios (2000) 23 Cal.4th
450, 462 (Rios).) The instruction provides that where a killing occurs “in the heat of
passion or is excited by a sudden quarrel that amounts to adequate provocation . . . the
law is that malice, which is an essential element of murder, is absent.” In such cases, in
order to establish that the killing is murder rather than manslaughter, the burden is on the
prosecution to prove beyond a reasonable doubt the absence of the heat of passion or
sudden quarrel. The trial court did not give CALJIC No. 8.50 in this case, instructing the
jury only on express malice in terms of CALJIC No. 8.11. But the trial court had no duty
to give CALJIC No. 8.50 unless the issue of heat of passion on sudden provocation was
“properly presented.” (Rios, supra, 23 Cal.4th at pp. 461-462, quoting Mullaney, supra,
421 U.S. at p. 704). To be “properly presented,” the issue must be suggested by the
prosecution‟s own evidence, or defendant must make a showing on this issue “sufficient
to raise a reasonable doubt of his guilt of murder.” (Rios, at p. 462.)
Defendant argues that the evidence created a possibility that Torres may have
provoked Saenz because Maria Duarte, Torres‟s girlfriend, who was hiding in a bedroom
closet during the incident, testified that she heard a conversation that turned into an
increasingly loud argument. Duarte‟s account was not based on anything other than
vague sounds emanating from the entryway; it was not specific enough to establish that
Torres provoked Saenz or that any provocation was adequate. Limon testified that Saenz
pointed a gun at Torres within seconds of entering the house. The surveillance cameras
caught the murder of the unarmed Torres, who ran out of the house wearing only boxer

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shorts, fell on his back after having been shot from behind, and was then repeatedly shot
in the face. The evidence does not suggest that this execution-style murder resulted from
a heat of passion on sudden provocation, and the court was not required to instruct the
jury on an irrelevant issue.
II
Defendant contends that, on the day of sentencing, when he complained of the
adequacy of his appointed counsel‟s representation and asked to represent himself, the
court should have conducted an inquiry under People v. Marsden (1970) 2 Cal.3d 118
(Marsden).
On that day, after the trial court denied the defense‟s motion for a new trial,
defendant asked to go pro. per. in order to file his own motions—based on “inadequate
aid of counsel.” Defendant said he was not prepared to do so without looking at the
transcript of his trial and the law of ineffective assistance of counsel, but he wanted to
state for the record the reasons for his dissatisfaction. The court allowed defendant to do
so, and defendant complained generally of counsel‟s failure to investigate, present
evidence, and call witnesses. The court did not believe defendant was making a Marsden
motion and denied what appeared to be an open-ended request to investigate in pro. per.
and delay the proceeding. After sentencing, defendant again asked to be allowed to
explain on the record his dissatisfaction with counsel. The court again allowed him to do
so, and this time defendant claimed that counsel did not talk to him before filing the
motion for a new trial. When defendant began divulging information that counsel had
told him about her experience and her problems with the prosecution and detectives in the
case, the court warned him that he might be waiving his attorney-client privilege.
When a defendant seeks to substitute new counsel on the ground that appointed
counsel was ineffective, the trial court must permit the defendant to relate specific
examples of the attorney‟s inadequate performance. (Marsden, supra, 2 Cal.3d at
p. 124.) A Marsden motion may be made at any stage of a criminal proceeding.
(People v. Smith (1993) 6 Cal.4th 684, 695-696.) “„“Although no formal motion is
necessary, there must be „at least some clear indication by defendant that he wants a

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substitute attorney.‟” [Citations.]”‟ (People v. Dickey (2005) 35 Cal.4th 884, 920.)
Generally, the trial court in a criminal case has no authority to consider a second motion
for a new trial, but an exception has been recognized for a motion based on ineffective
assistance of counsel. (People v. DeLouize (2004) 32 Cal.4th 1223, 1228 & fn. 1; People
v. Stewart (1988) 202 Cal.App.3d 759.) Appellate courts disagree whether a defendant‟s
expressed desire to file a motion for a new trial based on ineffective assistance of counsel
triggers the trial court‟s duty to hold a Marsden hearing. (See People v. Reed (2010)
183 Cal.App.4th 1137 and cases cited; contra People v. Richardson (2009)
171 Cal.App.4th 479.)
Here, defendant did not indicate that he wanted a substitute attorney; rather, he
asked to represent himself. While his request could be construed as a request to file a
second motion for a new trial, this time based on ineffective assistance of counsel,
defendant stated that he was not prepared to make such a motion and in essence asked for
a continuance to make it at some unspecified future date. On this record, defendant‟s
request did not require the court to conduct a Marsden hearing; nor was defendant
prejudiced by the court‟s failure to do so. Defendant has not shown that his motion for a
new trial would have been granted or that a more favorable result would have obtained.
(People v. Washington (1994) 27 Cal.App.4th 940, 944.) Nor was he deprived of the
right to make his arguments of ineffective assistance of counsel on appeal or in a habeas
corpus petition. (Ibid.)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.

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