First degree premeditated murder conviction reversed because it may have been based on the natural and probable consequences doctrine. Vega-Robles was convicted of numerous gang-related crimes, including the first degree murder of Grockett. The evidence at trial showed that Vega-Robles imported large quantities of methamphetamine from Mexico and sold it to two different gangs: FAIM and RST. Those gangs, in turn, re-sold the meth to lower-level dealers, including Grockett. Vega-Robles and others, including a FAIM gang member, shot and killed Grockett due to a disagreement over the price of the drugs. The jury had been instructed, and the prosecution argued, that Vega-Robles was guilty of the first degree murder of Grockett based on the following theories: (1) direct perpetrator, (2) direct aider and abettor, (3) natural and probable consequence of the conspiracy that furthered the common plan under CALCRIM No. 417, and (4) natural and probable consequence of aiding and abetting a conspiracy to sell drugs (the “target offense”) under CALCRIM No. 402. On appeal, Vega-Robles argued that the jury was improperly instructed as to first degree murder. Held: Grockett murder conviction reversed. While the appeal was pending, the California Supreme Court decided People v. Chiu (2014) 59 Cal.4th 155, which held that an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. The Attorney General conceded Chiu error and prejudice as to the Grockett murder. The court agreed, finding that it was unable to say beyond a reasonable doubt that the jury did not base its verdict on the invalid theory that the first degree murder was a natural and probable consequence of a conspiracy to sell drugs.
First degree premeditated murder conviction affirmed despite Chiu error because the killing was also a first degree murder under the felony murder theory based on the circumstances in this case. Vega-Robles was also charged and convicted of the first degree murder of another lower-level dealer, Guzman-Mercado. Vega-Robles asked RST members to rob Guzman of money and drugs, but during the attempted robbery, they shot and killed him. The jury received instructions on a number of theories including natural and probable consequence liability for murder and felony murder. On appeal, Vega-Robles argued for reversal on the basis of Chiu error. The Court of Appeal agreed with the Attorney General’s concession the natural and probable consequence instruction was erroneous under Chiu. However, for the Guzman-Mercado murder, the court concluded the error was harmless beyond a reasonable doubt. Once the jury found defendant guilty of attempted robbery, Guzman’s killing was first degree murder under the felony murder instructions given in the case, unless a logical connection between the cause of death and the robbery or attempted robbery was missing. A logical connection existed here: Guzman was killed in the process of separating him from his property.
Substantial evidence supports gang enhancements (Pen. Code, § 186.22, subd. (b)(1)) even though neither the defendant nor victims were gang members because the crimes benefited gangs the defendant sold drugs to. Vega-Robles also argued that there was insufficient evidence to support the gang enhancements alleged in his case. Although Vega-Robles was not a gang member and neither Grockett nor Guzman were gang members, there was substantial evidence that Vega-Robles participated in the crimes “in association with” RST and FAIM, which are criminal street gangs, with the specific intent to promote, further, or assist in the gangs’ primary criminal activityselling methamphetamine. Under the circumstances of this case, RST and FAIM’s drug trades benefitted from activities that advanced Vega-Robles’ drug enterprise and vice versa. There was substantial evidence that Vega-Robles “acted in concert with members of the RST and FAIM criminal street gangs with the requisite intent by using gang members to pick up and deliver drugs, collect monies and, on occasion, rob and kill other drug dealers, and by distributing his drugs through the gang networks already in place.”
Defendant’s prosecution for conspiracy to sell drugs in state court did not violate double jeopardy even though he had already pled guilty in federal court to using a phone to facilitate the distribution of cocaine. Before the State of California tried Vega-Robles for conspiracy and murder, he pled guilty in federal court to using a communications facility (a telephone) to facilitate the distribution of cocaine. When murder and conspiracy charges were brought against him in state court, Vega-Robles argued that the state prosecution was barred on double jeopardy grounds. The trial court disagreed, finding no double jeopardy violation under either state or federal law. The trial court did not err. Vega-Robles’ federal double jeopardy rights were not violated because the double jeopardy clause of the Fifth Amendment does not preclude multiple convictions in different sovereign jurisdictions for the same criminal act. (Heath v. Alabama (1985) 474 U.S. 82, 93.) Although state double jeopardy protections are more expansive than federal protections, they did not bar Vega-Robles’ prosecution for conspiracy. Under Penal Code sections 656 and 793, where there is a prior acquittal or conviction in another jurisdiction, “a conviction in this state is not barred where the offense committed is not the same act but involves an element not present in the prior prosecution.” (People v. Comingore (1977) 20 Cal.3d 142, 146.) The state conspiracy charge involved the element of agreement between two or more persons. The federal conviction for using a telephone to facilitate the distribution of cocaine, by contrast, did not require proof of agreement. Accordingly, state double jeopardy protections were not violated.