Friday, May 13, 2016
S.C. to Review Gang Member’s Attempted Murder Conviction
Panel to Determine Whether Recent Case Law Undermines Standard for Aider and Abettor Liability
By KENNETH OFGANG, Staff Writer
The state Supreme Court has agreed to revisit whether a defendant who was not the direct perpetrator of an attempted homicide may be convicted based on the “reasonably foreseeable consequences” doctrine.
The justices, at their weekly conference in San Francisco Wednesday, unanimously granted Milton “Gunner” Mateo’s petition for review of his conviction for the attempted murder of Edwin Cuatlacuatl.
Mateo is serving 15 years to life in prison for the March 2013 crime. His co-defendant, Gunni “Psycho” Scroggins, is serving 19 years to life, and his conviction was left standing by the high court yesterday.
Witnesses testified that the defendants and victim had an altercation outside a grocery store in the Westlake area of Los Angeles. The location is within gang territory claimed by the 18th Street gang, and just outside territory claimed by the rival Rockwood gang.
According to the testimony, Mateo recognized the victim as a Rockwood member, lifted his shirt to expose an “18” tattoo on his stomach, and yelled “18th Street” and an epithet insulting the Rockwood gang. He then began punching Cuatlacuatl before Scroggins pulled a knife and started stabbing him.
He was treated at nearby Good Samaritan Hospital. A gang expert testified that the fight and stabbing were consistent with patterns of gang activity, and that robberies and violent attacks on rivals were primary activities of the 18th Street gang.
Jurors found both defendants guilty. But Mateo argued on appeal that Los Angeles Superior Court Judge Laura Priver’s jury instructions were erroneous and incomplete.
The trial judge should not have allowed jurors to find Mateo guilty on the theory that Scroggins’ attempt to kill the victim was a natural and probable consequence of Mateo starting the fight, without distinguishing between premeditated and unpremeditated attempted murder, the defense argued.
If only the latter was a natural and probable consequence, the defense argued, Mateo should not have been convicted. Mateo’s court-appointed appellate attorney, James Koester, further argued that jurors should have been instructed that Mateo had to have foreseen that Scroggins would commit premeditated attempted murder.
Koester acknowledged that the argument was inconsistent with People v. Favor (2012) 54 Cal.4th 868. But subsequent rulings by the California and U.S. supreme courts undermine Favor’s holding, he said.
Justice Audrey Collins, writing for Div. Four of this district’s Court of Appeal, disagreed.
Favor, she said, was determined adversely to the defendant on a “virtually identical” issue—whether a defendant who aided and abetted a robbery could be convicted of attempted premeditated murder where the jury was only instructed that attempted murder was a natural and probable consequence of the robbery. The court said a premeditation instruction was not necessary.
That holding, Collins said, has not been repudiated by Alleyne v. United States (2013) 133 S. Ct. 2151 or People v. Chiu (2014) 59 Cal.4th 155. The justice noted that in Chiu, which rejected the natural and probable consequences doctrine as the basis of a first degree murder conviction, the court distinguished Favor, in part because premeditation is an element of first degree murder, but not of attempted murder, the distinction between premeditated and unpremeditated attempted murder being statutory and relating only to penalty.
Collins also said that while the Chiu court did not discuss Alleyne, it was presumably aware of the ruling, and “elected to leave Favor…intact, and maintain a distinction between first degree murder and attempted premeditated murder for purposes of the natural and probable consequences doctrine.”
In other conference action, the court said it would limit its previously granted review of Kim v. Toyota Motor Corporation (2016) 243 Cal. App. 4th 1366 to the single issue of whether evidence of industry custom may be admitted as relevant to the risk-benefit analysis that the high court has approved in strict liability cases. Div. Seven of this district’s Court of Appeal said such evidence was admissible in order to show that it should not held liable on a theory of strict products liability based on design defect.
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