The Fourth Appellate District Court affirmed in part and reversed in part a judgment and remanded. The court held that a firearm sentence enhancement was improperly imposed on a defendant who could not have been vicariously liable for the shooting death of a fellow gang member. This is because the gang member who was shot and killed could not have been a principal or an accomplice to his own death.
Jose Camino and a fellow gang member, Rolando Palacios, were involved in a gun fight with a rival gang. Palacios, the lone shooter in Camino’s group and the only one who was armed, was shot and killed by a bullet of unknown origin. Police interviewed Camino twice at the police station. Prior to the first interview Camino was not read his rights under Miranda v. Arizona (1996) 384 U.S. 436. In this interview, Camino revealed that he, Palacios, and a third individual had driven into the alley in pursuit of rival gang members. Camino stated that Palacios had stepped out of the car and shot at members of the rival gang. For the second interview Camino was moved to a different room, advised of his rights and interviewed him a second time. Camino described the same events that he had in the previous interview.
At a jury trial, the People conceded that Camino’s statements from the first interview were inadmissible but introduced statements from his second interview. The jury convicted Camino of the second degree murder of Palacios (count 1) as well as of attempted murder of one of the rival gang members (count 2) and of street terrorism (count 3). With regard to counts 1 and 2, the jury found that Camino committed those crimes for the benefit of a criminal street gang within the meaning of § 186.22 (b)(1) and that Camino vicariously discharged a firearm within the meaning of § 12022.52(c) and (e)(1), an enhancement that mandated a consecutive twenty-year term. Camino appealed.
The court of appeals affirmed in part, reversed in part and remanded, holding that the firearm sentence enhancement was improperly imposed on Camino. The Court agreed with Camino’s argument that the jury instruction regarding gang-related firearm enhancement (CALCRIM No. 1402) as read here was misleading because Palacios could not have been the principal or an accomplice to his own murder. Penal Code §12022.53(e)(1) states that the enhancement applies to any person who is a principal in an offense if it is pleaded and proved both that the person violated Penal Code §186.22(b), a felony for the benefit of a criminal street gang and that any principal in the offense discharged a firearm as specified under §12022.53. Under §12022.53(e)(1), Camino, as a principal in Palacios’ murder by virtue of the provocative acts doctrine, satisfied by the first prerequisite because he committed the offense for the gang of which he and Palacios were members. This doctrine holds that if an individual acts in a way that shows disregard for human life and the probable consequence of which is death, that individual may be held responsible for the death(s) that may result.
Yet, under the second prerequisite, Camino was vicariously liable only for the personal discharge of a gun by another principal in the murder of Palacios. Palacios, the only shooter in Camino’s group, could not be found guilty of murder in connection with his own death. Therefore, Palacios was not a principal in the offense or murder that was charged against Camino and the jury’s finding that Camino vicariously shot a gun during commission of Palacios’ murder was unsupported by substantial evidence. Therefore, it was clear that the jury was misled by CALCRIM No. 1402 and that the error was prejudicial because it could be reasonably assumed that the jury would have reached a result more favorable to Camino if the misleading information had been absent. The 20-year firearm enhancement was removed from Camino’s sentence.
This case is: People v. Camino; C.A. 4th, October 4th, 2010; G041887.