People v. Stinson CA3 ( 2022 )

Filed 3/4/22 P. v. Stinson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C087504
Plaintiff and Respondent, (Super. Ct. No. STK-CR-
FECOD-2017-0000918)
v.
ANTUAN JERMALE STINSON,
Defendant and Appellant.
THE PEOPLE, C087504
Plaintiff and Respondent, (Super. Ct. No. STK-CR-
FECOD-2017-0000919)
v.
HAROLD MILES,
Defendant and Appellant.
1
Codefendants Antuan Jermale Stinson and Harold Miles were convicted of the
murder and attempted robbery of T.L. (the father), the attempted murder of T.L.’s son
(the son), and the killing of T.L.’s dog (the dog).
On appeal, Stinson and Miles jointly argue that (1) the prosecutor committed
misconduct during closing argument; (2) the trial court erred in declining to declare a
mistrial based on juror misconduct; and (3) the trial court erred in denying their challenge
to the prosecutor’s use of peremptory challenge to dismiss a juror.
Stinson separately challenges his convictions related to killing the dog, arguing the
jury instructions were erroneous and the evidence was insufficient. Stinson also contends
that (1) there was insufficient evidence to support the special circumstance finding that he
acted as a major participant in the commission of the attempted robbery with reckless
indifference to human life; and (2) there is an alleged ambiguity in his sentence resulting
from a purported conflict between the court’s tentative sentence and its imposed
sentence.
For his part, Miles contends the trial court erred in denying his motion for
acquittal for the attempted murder of the son. In supplemental briefing, Miles argues in
the alternative that the instructions relating to the attempted murder charge violated his
Sixth Amendment rights and were infirm under Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437).
Finding codefendants’ arguments without merit, we will affirm.1
FACTUAL AND PROCEDURAL BACKGROUND
In November 2015, the father lived in a triplex, along with the son. A common
courtyard led to the front door of the duplex. An iron gate separated the courtyard from
the street, and the gate was kept locked. An additional metal security door secured the
1 The panel as presently constituted was assigned this matter in June 2021.
2
entrance to the father’s home. The security door could be opened only by using a key to
unlock a double deadbolt. The father sold marijuana and often had some at the house,
along with large amounts of cash. He also owned a pit bull.
Stinson and Miles lived in separate residences on the same street as the father;
they were familiar with the father and had been to his home. The father was so familiar
with Stinson that he nicknamed him “little nephew.”
On November 4, 2015, the father was home with his girlfriend, his girlfriend’s two
children, and the son. At one point, the father left to get air in his car’s tires. Two men
wearing black hoodies approached the front gate and asked one of the girlfriend’s
children if the father was there. The men sounded mad. The child told them the father
was not there, and the men left. The child testified one of the men was Stinson.
The father eventually returned home. The girlfriend heard him arguing with
someone outside. She heard the father beg, “Just take the money. That’s all I have.”
The father continued, “Please, just take it. My family’s in there. It’s right there. Don’t
kill me.” The girlfriend heard a “tussle,” so she told the son to check on the father. The
girlfriend then heard multiple gunshots and hid with her children under a bed.
The son, who was unarmed, ran to the front door but he could not open the locked
security door. Through the security door, the son saw the father and a man in a black
hoodie grabbing each other in the courtyard. Although the son did not recognize the man
at the time, he later identified him as Miles. The son then ran out the back door of the
house, jumped over a fence into his neighbor’s yard, and ran toward the front of the
house. After the son ran out the door, one of the girlfriend’s children heard a dog
barking. The child then heard more gunshots.
Meanwhile, as the son was running outside towards the front of the house, he also
heard gunshots. It sounded as if the shots were coming from the front of the house. As
the son climbed to the top of another fence to get to the father, he saw and immediately
recognized Miles, who appeared unarmed, and Stinson, who was using both hands to
3
hold a shotgun. Stinson shot the son and he fell. The son screamed and asked Stinson
what he was doing. The son stood up and retreated to the backyard. As he was running,
he heard another shot, and it sounded the same as Stinson’s first shot at him. The son
eventually got back into the father’s house. The son’s chest hurt, and he discovered that
had been hit in the chest with shrapnel from the shotgun.
The son looked out the father’s front door and saw Miles and Stinson running
down the street toward the corner. He did not notice anyone else, but he kept his focus
on the two men. The son then saw the father lying face down, bleeding and
unresponsive. Medical help arrived, but the father died at the scene from 18 gunshot
wounds, including three to his chest and abdomen. The son later identified Stinson and
Miles in a police photo lineup.
A. Additional witness testimony
Four witnesses who were near the father’s home at the time of the incident
testified they heard gunshots. One witness testified he heard a shot from a handgun
followed by a pause and then a shot from a shotgun.
A neighbor also testified he heard four to five gunshots as he was standing outside
his home. He then saw two men try to enter a house. One of the men had a “fade”
haircut, and the other had dark hair with the tips dyed a lighter color, possibly yellow.
Based on news reports, the neighbor later recognized the man with the fade haircut as
Miles. The neighbor heard Miles tell his companion, “Put that gun in your pants.” The
two men then took off running at a “frantic pace.” The neighbor saw a gun barrel
sticking out of the top of the pants of the man with the dyed hair. The firearm appeared
to be a rifle or a shotgun.
The day after the shooting, the neighbor picked Stinson and Miles out of a police
photo lineup. The investigating officer testified the neighbor made the identification
without hesitation. The neighbor testified he told police at the time that he had seen the
same individuals on the police department’s Facebook page earlier that morning before
4
the lineup, and he thought they looked like the men he had seen just after the shooting.
The neighbor denied that he picked out the men because he had seen them on Facebook.
A fifth witness who was driving in the area testified he saw a pit bull running in
the street. He then saw three men run around a corner and get into a parked vehicle, with
two getting in the front and the third getting in the back. All three men wore black
hoodies.
B. Police investigation
Police arrived and found bullet holes in the fence. In the backyard, they found the
father’s dog shot dead. Police found $65 cash inside the father’s shirt breast pocket.
While searching the father’s home, they found a loaded .40-caliber handgun in the master
bedroom. Police did not find any empty casings associated with the gun and they did not
find any other weapons in the home.
Police found marijuana in the kitchen, two digital scales, plastic sandwich baggies,
and foil bags. There also were plastic baggies containing marijuana. A detective testified
at trial that, in his opinion, the items found indicated the marijuana was intended for sale.
Police found multiple bullet casings, expended bullets, and bullet fragments in or
near the courtyard, garage, driveway, and front door. In all, police found seven .45-
millimeter casings and nine .10-millimeter casings at the scene. Police also found one
.223 cartridge (live round) in the driveway, one casing in the garage, and one casing in
the front yard of the house next door. In addition, there was a bullet strike in the fence
that separated the father’s house from the neighbor next door.
The forensic pathologist who conducted the autopsy on the father opined the
shooter had used a handgun, probably a .10-millimeter or .45-caliber, rather than a rifle or
shotgun. In addition, the father had been shot from at least three feet away.
Police initially detained the son as a suspect. They also detained Miles the next
day in a nearby home, where they also found four live 12-gauge shotgun shells. Police
5
found no other ammunition or weapons in the home. Stinson was arrested four months
after the shooting.
C. Stinson’s testimony
Stinson testified that on the day of the shooting he was inside his home when he
heard gunshots. He looked out his front door and realized his dog had run outside.
Scared his dog would get hurt or hurt someone, Stinson grabbed his loaded rifle and went
outside to find his dog.
Stinson then saw a man coming over the neighbor’s fence holding a handgun.
Stinson did not recognize the man, who wore his hair in dreadlocks. Scared, Stinson
fired a single shot above the man in an attempt to scare him. The man fell, and Stinson
began running. Stinson saw Miles, who is Stinson’s brother-in-law. Miles, who was not
holding a gun, seemed “[f]rantic.” Stinson asked Miles to help him find his dog, and
Miles agreed. The two ran as they searched for Stinson’s dog. At one point, Stinson put
his gun in his shorts. They eventually found the dog about four blocks away, and they
went to the liquor store to buy cigarettes.
On the way home, Stinson noticed a lot of police. He did not know why they were
there. The area had been taped off, so they headed to the nearby home of Stinson’s
mother. Stinson and his girlfriend then headed to Sacramento, so he could see his
children.
The next day, Stinson learned that the father had been shot and killed, and that he
and Miles were suspects. He stayed in Sacramento for a month, and then went to Fresno
for at least a month so he could spend time with his other children. Stinson finally
returned to Stockton in March 2016 so he could turn himself in. Before he could do so,
he was arrested in a traffic stop.
6
D. Verdict and sentencing
In April 2018, the jury found Stinson guilty of first degree murder of the father
(Pen. Code, § 187, subd. (a));2 attempted second degree robbery of the father (§§ 664,
211); attempted first degree murder of the son (§§ 664, 187, subd. (a)); and animal
cruelty by shooting or killing a living dog. (§ 597, subd. (a).) The jury also found
Stinson committed the murder while committing a robbery. (§ 190.2, subd. (a)(17)(A).)
The jury found not true the firearm enhancement allegations to each of the charges
against Stinson. (§§ 12022.53, subds. (b)-(d), 12022.5, subd. (a).)
On the same day, the jury found Miles guilty of attempted second degree robbery
of the father (§§ 664, 211) and attempted first degree murder of the son. (§§ 664, 187,
subd. (a).) In finding Miles guilty of first degree attempted murder, the jury found true
that Miles committed the attempted murder willfully and with deliberation and
premeditation. The jury found not true the firearm enhancement allegations to each of
the charges against Miles. (§§ 12022.53, subds. (b)-(d), 12022.5, subd. (a).)
The jury was deadlocked on allegations that Miles committed first degree murder
of the father (count 1), and that Miles and Stinson unlawfully possessed a firearm (counts
5 & 6), and the court declared a mistrial as to those counts.
The court sentenced Stinson to life without the possibility of parole for the murder
charge; the upper term of three years, stayed pursuant to section 654, for the attempted
robbery charge; life with the possibility of parole for the attempted murder charge; and
the upper term of three years consecutive for the animal cruelty charge. The court also
imposed various fines and fees.
2 Undesignated statutory references are to the Penal Code.
7
The court sentenced Miles to six years (the upper term of three years doubled) for
the attempted robbery charge, consecutive to life with the possibility of parole for the
attempted murder charge. The court also imposed various fines and fees.
DISCUSSION
I
Stinson and Miles contend the prosecutor committed prejudicial misconduct by
arguing that adverse inferences should be drawn against them because they failed to
produce two individuals—Michael Deloach and Freeman Owens—as witnesses.
The Attorney General argues defendants have forfeited the issue because their
counsel failed to request an admonition or object to the prosecutor’s final comment on the
potential witnesses’ presence. (See People v. Tully (2012) 54 Cal.4th 952, 1037-1038 [a
defendant who fails to object on the grounds of misconduct and to seek an admonition
generally forfeits the claim on appeal, unless the harm would not have been cured by an
admonition].) Defendants respond their counsel were ineffective for failing to request an
admonition or object to the prosecutor’s final statement during closing argument.
Regardless, we find defendants’ contentions meritless.
A. Additional background
The parties stipulated that police investigated four local unsolved shootings
occurring between September 2015 and May 2016 from which police collected live
ammunition and expended bullet casings, in addition to a firearm retrieved during an
arrest in a fifth case.
The defense ballistics expert testified he analyzed the .10-millimeter casings found
near the father’s body and concluded the bullets were fired from a Glock handgun. The
expert also determined that the .10-millimeter pistol used during the father’s shooting
8
was used in three of the unsolved crimes that occurred between September 2015 and May
2016.3
During trial, evidence was presented that indicated similar handguns were
connected to Owens and Deloach, who were not charged in this case. Police searched a
residence where Owens and Deloach stayed (the “Saratoga house”) and found a black
mask, a Glock magazine loaded with .45-caliber ammunition, and a Social Security card
belonging to the son. They also found a backpack with more ammunition and cases for
two Glock handguns in the garage. Deloach’s wife told police the backpack belonged to
Owens and Deloach. Evidence also was presented that indicated Owens and Deloach
were involved in additional crimes, including robberies of cannabis delivery people.
Evidence was introduced that Miles had over 150 phone contacts with Owens
between September 27, 2015, and the day of the shooting. Stinson had 15 to 20 phone
contacts with Owens during the same period. 4 Some of the calls with Owens on the day
of the shooting pinged a cell tower that indicated Owens was near the scene of the
shooting. Police found Owens’s palm print on the father’s car.
3 Stinson states in his opening brief that there was evidence presented at trial that
.45-caliber bullet casings found at two other crime scenes were fired by the same Glock
firearm as some of the bullet casings recovered near the father’s body after the shooting.
Additionally, in a third case, police responded to a call about an armed man and found a
.45-caliber Glock on the other side of the fence from a man named Michael Deloach, who
was seen throwing something over a fence and was wearing an empty gun holster.
Although the portion of the record cited by Stinson in support of this proposition includes
evidence that the same .45-caliber Glock firearm was used in the separate crimes
described in Stinson’s brief, our review of the record found that the testimony did not
address whether the gun was the same one used in the shooting of the father. (See
Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 276 [on appeal it is the
“ ‘ “duty of a party to support the arguments in its briefs by appropriate reference to the
record, which includes providing exact page citations,” ’ ” original italics].)
4 Stinson testified he knew Freeman Owens and Michael Deloach, as well as
Deloach’s wife. He would hang out with them at the Saratoga house.
9
At the request of Stinson’s counsel, the court ordered that Deloach and Owens,
who were in custody for different crimes, be transported to court to testify at trial. In the
end, neither man was transported, and neither man testified.
During closing argument, the prosecutor reminded the jury that “[n]o one else is
on trial in this case” except for Stinson and Miles. The jurors were told they were “not
[t]here to make a determination on anyone that has been suggested to you. . . . So please
make sure that you keep focused on why you’re here, not on something else.”
Stinson’s counsel challenged the evidence presented against Stinson and also
argued third party culpability, arguing it did not make sense that Stinson would have
ambushed the father, given their relationship. Counsel also pointed to a statement from a
witness that he had seen more than two men fleeing the shooting scene. In addition,
counsel argued Owens’s palm print was found at the scene of the shooting. When police
searched the home where Owens and Deloach were staying, they found ammunition, the
son’s Social Security card, and a black mask, as well as a backpack containing more
ammunition in the garage. Police also found documents related to the victims of other
crimes, including the cannabis delivery people, and at least one victim identified Owens.
Counsel also noted that their expert had connected at least one of the guns used in the
shooting to other local crimes, and that the .45-caliber gun thrown by Deloach had been
linked to other local crimes. The shooter(s) who killed the father had used a .10-
millimeter Glock and a .45-caliber firearm. In addition, phone records suggested Owens
was in the area around the time of the shooting. Counsel argued this evidence cast doubt
on defendants’ involvement in the crimes at issue here. At one point, defense counsel
asked the jury to disregard the prosecutor’s statement, “Let’s not talk about other people
who aren’t sitting here. Let’s only talk about people who are named as parties.”
Miles’s counsel suggested it was unclear whether Owens or Deloach had killed the
father, and reminded the jury it was not a defendant’s burden to figure out who the actual
killer was.
10
During rebuttal, the prosecutor encouraged the jurors to “look at every single piece
of evidence,” which she argued showed defendants were guilty. She argued the
defendants were asking the jury to believe that a group of people was involved in the
shooting of the father, and that it was Deloach and Owens, because Owens was connected
to at least one other robbery. But the son identified Stinson initially to police (not
Owens), and no one saw anyone else leaving the courtyard. Not even Travis had seen
more than two men fleeing the scene. In addition, Stinson acted like a guilty man by
leaving town for several months after the shooting. Stinson also was connected to the
Saratoga house, where the suspicious items were found. And Deloach was never
connected to the other robberies. Although Deloach was found with a gun similar to that
used to kill the father, that was three to four months after the shooting, and guns were
transitory.
The prosecutor continued: “And this is the danger of what you’re being asked to
do. You’re being asked to convict people without evidence. The people aren’t here to
vouch for Mr. Deloach or for Mr. Owens, but they don’t have any different rights than
anyone else and there’s a reason they are not sitting here.” Stinson’s counsel objected,
arguing the prosecutor’s argument “misstates the facts and also calls for legal conclusion.
Not asking them to convict Mr. Deloach or Mr. Owens.” The court sustained the
objection.
The prosecutor continued: “By the argument you’re being told they did it. That’s
what the argument is. And in essence, that’s what they want you to believe. We’re not
here for Mr. Deloach. We’re not here for Mr. Owens. Why didn’t they bring those
people in here? Why not? I mean, that’s a reasonable thing you would expect. This is
the theory. Why aren’t they here?”
Stinson’s counsel again objected and argued in a bench conference: “I’m sorry, I
really don’t like interrupting. I don’t like interrupting closings, that I really wouldn’t
have except I think it’s improper to argue that we really believe that these people were
11
involved, then we should have brought them here. Counsel knows that we and the Court
signed orders to transfer, but their presence was requested here. It was ordered here, but
they were disobeyed by the prison and jail authorities so we couldn’t get them here. I
think that the People should not be entitled to argue that knowing that we made efforts to
get them here and their failure to be here is not by our fault or by our lack of trying.”
Miles’s counsel argued, “It shifts the burden.” The prosecutor responded, “No, I’ve
never talked about a burden shifting to anyone. What I’m talking about is, and we have
the right to make—what evidence they made, all diligent those efforts were, how far in
advance it is, I don’t have knowledge of. But the People have the right, as do they, to
make a comment on a reasonableness of who could be anticipated. They made the same
argument.” Miles’s counsel responded that even if they had been able to call Owens and
Deloach, they could have invoked their Fifth Amendment right to not testify, and they
“wouldn’t be in front of the jury.” The court responded, “Let me just say this. There is a
difference of saying they are not here as opposed to they didn’t bring them here knowing
that they did try to get them here, so I’m going to sustain the objection. But it is not
shifting the burden because [the People] can comment on it. Sustained.”
The prosecutor resumed her argument in front of the jury: “They are not here.
There’s a reason they are not here. Because there is no evidence to support, but again,
even if you go with the theory of that you’ve been argued to, it doesn’t change the facts
of their involvement. So that’s what’s dangerous is to start engaging in discussion of
other people that are not a part of this case. And Michael Deloach and Freeman Owens
are not a part of this case. They are just not. They are a convenient excuse to try to again
throw you off the scent of the facts and give you an excuse for not doing what you’re
supposed to do, which is to follow the law and follow the evidence as presented here.”
The prosecutor then continued to cast doubt on the defendants’ theory that there were
other people involved in the shooting. At one point, she stated: “Mr. Owens isn’t here.
These two defendants are here. They are the people you make a decision about. And you
12
make sure that when you do that you do it based upon the facts and the law and with the
evidence and not with some wild haired theory that is absolutely made of fiction.” She
then encouraged the jury to find defendants guilty.
B. Applicable law and analysis
In California, a prosecutor commits misconduct if her “ ‘pattern of conduct is “so
egregious that it infects the trial with such unfairness as to make the conviction a denial
of due process.” [Citations.] But conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under state law only if it involves
“ ‘the use of deceptive or reprehensible methods to persuade either the court or the
jury.’ ” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) When a prosecutor’s
comments before a jury are at issue, we consider whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an objectionable
fashion. (People v. Clair (1992) 2 Cal.4th 629, 663-664.)
A prosecutor has “wide latitude” during argument and may comment vigorously
on the evidence, so long as the comment is fair. (People v. Hill (1998) 17 Cal.4th 800,
819.) Generally, it is not misconduct for the prosecutor to comment upon the failure of
the defense to call logical witnesses other than the defendant. (People v. Medina (1995)
11 Cal.4th 694, 755.) However, a prosecutor may not comment on the absence of a
witness if that witness has asserted his privilege not to testify, cannot be located, or is
otherwise unavailable. (People v. Ford (1988) 45 Cal.3d 431, 435-436, 444-445.) In
those circumstances, a jury could view such a comment as an invitation “to speculate that
the defendant’s failure to call the witness reflects recognition that the testimony would
not be favorable to the defense. Although the evidence might support that inference, it is
improper to invite a jury to draw the inference if the jury is unaware of an equally
plausible inference that the witness has not been called because he cannot be located.”
(Id. at p. 445.)
13
Defendants argue that the prosecutor knew defense counsel had taken steps to
attempt to call Deloach and Owens as witnesses, including getting a court order for
transportation. According to defendants, the jury would have interpreted the prosecutor’s
comments that there was “a reason” why Deloach and Owens were not at trial as an
invitation to infer that defendants knew Deloach and Owens would implicate defendants
as aiders and abettors in the attempted robbery and murder. Defendants note that the jury
found the gun enhancements against defendants to be not true, suggesting the jury
concluded the father was actually killed by Deloach and Owens, and that defendants were
only guilty because they had aided and abetted the crimes of Deloach and Owens. Even
though the trial court twice sustained defense counsel’s objections, defendants contend
reversal is required because the trial court rejected counsel’s objection that the
prosecutor’s comments had shifted the burden of proof, and because the trial court failed
to admonish the jury about the prosecutor’s improper comments.
Despite defendants’ contentions, we find it is not reasonably likely that the jury
was misled into drawing an improper inference regarding the failure to Owens and
Deloach to testify as witnesses. The trial court twice granted objections by defense
counsel to the prosecutor’s comments about the absence of Owens and Deloach, even
granting a bench conference to address the issue. This would have indicated to the jury
that the prosecutor’s first two comments were improper, especially since she refocused
her argument each time. Moreover, viewed in context of the entire argument (including
defendants’ robust argument that Deloach and Owens were the guilty parties), the
prosecutor’s remarks can only be seen as a reminder to the jury that it should ignore
people who were “not a part of this case” and instead focus on whether defendants were
guilty of the charged crimes.
Given our conclusions, we need not address whether defense counsel provided
incompetent representation in failing to request an admonition or object to the
prosecutor’s third rephrasing of her argument.
14
II
We turn next to defendants’ contention that the trial court erred in declining to
declare a mistrial based on juror misconduct. We are not persuaded.
A. Additional background
Six weeks into the trial, a visitor who was friends with Stinson overheard jurors
complaining to each other during a break that their time was being wasted, the trial was
taking too long, and they wanted to get back to their lives. She also heard Juror No. 1 say
to the other jurors, “I don’t understand why they just didn’t take a deal and save us the
time.” None of the other jurors responded. The visitor informed one of Stinson’s
lawyers, and he informed the court, expressing concern that Juror No. 1 was prejudiced
and had potentially prejudiced other jurors.
The court proceeded to question each juror individually. Juror No. 1 denied
saying that he felt his time was being wasted, or that defendants should take a plea deal.
He acknowledged comments made to other jurors that the attorneys were “spending a lot
of time on things” and forcing jurors to stand in the hallway for long periods. According
to Juror No. 1, there was a general sense among the jurors that they did not like how the
jury was being treated. He also was “curious and baffled” by some of the testimony, and
he and some of the other jurors had commented that some of the witnesses had been
unable to remember some things. He repeatedly stated neither he nor any other juror had
formed any opinion in the case. He also stated that there was nothing impacting his
ability to be a fair and impartial juror in the case.
The court reminded Juror No. 1 that they must not discuss anything about the case,
including the length of trial, witness memory, or what the attorneys were doing. The
court recognized that it was uncomfortable to stand in the hall and also reminded the
juror that the actions of the attorneys must not be imputed to their clients. The court
ordered Juror No. 1 not to discuss anything with his fellow jurors, and then questioned
the remaining 11 jurors and six alternates. If one of the jurors brought up additional
15
information (such as a new potential improper comment), the judge would ask each juror
about it, including bringing jurors back in as necessary. The judge also explained again
that jurors must not discuss anything about the case, and asked them to promise that they
would ask fellow jurors to stop if they heard anything that was against the rules.
During the interviews, nine of the jurors told the judge they had heard complaints
about the length of the trial or the frequency and lengths of the breaks during which the
jury was sent into the hall. Alternate Juror No. 6 reported Juror No. 1 was complaining
about the constant breaks in the hallway and had said the trial was “ridiculous,” and if
something did not happen, he would call his lawyers. Eleven jurors had talked about the
existence of a medical marijuana Web site that had been mentioned during the trial.
Eight jurors had heard general jokes about witnesses’ inability to remember. More
specifically, Juror No. 10 had asked Juror No. 1 how he had gotten out of the court
parking garage so fast, and Juror No. 1 responded jokingly, “I don’t know. I can’t
remember.” Juror No. 11 had heard “a little bit” that some jurors felt that defendants
should have taken a deal to avoid trial. No other juror had heard such a comment. Juror
No. 7 had heard someone say “it would take [him] 15 seconds to make up [his] mind if
we were going to deliberate.” He could not remember who said it, except that it was a
man. No one else heard such a comment. No juror had heard substantive comments
about the case, no one stated they had reached a conclusion about the case, and each juror
stated he or she remained fair and impartial.
The court next spoke again with Juror No. 1, who told the court he never said he
would contact his attorney if the jury kept being sent out into the hall. He answered no
when asked if he heard anyone say they could decide the case in 15 seconds. He did
admit, however, to commenting that, in his opinion, there were a few seconds of
testimony that were critical for judging the case. He reiterated he had not yet made a
decision on the case, but he considered that period of time important and expected to
deliberate about it.
16
Stinson moved for a new trial. He argued several of the jurors had discussed the
facts of the case and formed opinions about the defendants’ guilt prior to the conclusion
of evidence and submission of the case. Jurors had mocked witnesses who could not
remember things, and some had said they thought defendants should have taken a deal.
Jurors had also complained about how the jury was being treated, with Juror No. 1
threatening to call his lawyer. And one juror said it would take him 15 seconds to reach
his decision. Stinson argued it was insufficient to merely remove Juror No. 1 or any
other individual juror, because the entire jury panel had been prejudiced against
defendants. It also was impossible to determine who had made the improper comments,
since the jurors generally refused to identify the speaker or stated that multiple people
had made the comment at issue.
Miles originally moved to dismiss Juror No. 1, but later joined in the motion for a
new trial. He was primarily concerned by the comments from multiple jurors that the
defendants should have taken a plea deal, and the comment by one juror that he could
make his decision in 15 seconds.
The prosecutor agreed to release Juror No. 1, given his comments, but argued it
was unnecessary to have a new trial. She noted that many of the jurors appeared shocked
by the court’s questions, and that making jokes about whether someone can remember
things did not rise to the level of impropriety requiring a new trial. In addition,
acknowledging the existence of a marijuana Web site that had been mentioned by a
witness was not discussing the evidence. Moreover, there was nothing to suggest that
anyone other than Juror No. 1 had talked about a specific timeframe that would be
important for deliberations. The other jurors said they had not yet made up their minds,
and they could be fair and impartial.
The court removed Juror No. 1 but denied the motion for mistrial. Although Juror
No. 11 said multiple jurors suggested defendants should have taken a plea, no other juror
said they had heard that. Every juror said they had not yet made a decision, and that they
17
could be fair and impartial in the case. The court reasoned the burden for a mistrial was
high, and it had not been met here.
B. Applicable law and analysis
Echoing their arguments at trial, defendants claim on appeal that some of the
jurors were “being less than forthright.” They contend it is not probable that no other
juror would have heard Juror No. 1’s comment that he thought the case would be
determined based on a few seconds of time, especially since Juror No. 7 heard someone
say that it would only take 15 seconds to decide the case. Or that only Juror No. 11 heard
multiple jurors saying defendants should have taken a deal. Defendants also note that
only Juror No. 2 heard discussion of time being wasted, and only Alternate Juror No. 6
heard Juror No. 1 threaten to call his lawyers if they were sent out to the hall again. Only
some of the jurors admitted they heard jokes about witness memory, and several defense
witnesses repeatedly stated, “I don’t recall” on the stand. Given this reticence to admit
misconduct, defendants argue, the court should have disregarded jurors’ assurances about
impartiality and a new trial should be ordered.
A defendant has “a constitutional right to a trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been improperly influenced [citations]
and every member is ‘ “capable and willing to decide the case solely on the evidence
before it.” ’ ” (In re Hamilton (1999) 20 Cal.4th 273, 293-294 [citing U.S. Const.,
amends. VI & XIV; Cal. Const. art. I, § 16].) The jury’s impartiality may be challenged
by evidence of statements made that are “ ‘of such a character as is likely to have
influenced the verdict improperly.’ ” (Hamilton, supra, at p. 294, italics omitted.)
Juror misconduct raises a presumption of prejudice that may be rebutted by a
showing there is “ ‘no substantial likelihood that one or more jurors were actually biased
against the defendant.’ ” (In re Manriquez (2018) 5 Cal.5th 785, 797, italics omitted.)
We review for substantial evidence a trial court’s determination that misconduct
occurred, but we independently review whether prejudice arose because it is a mixed
18
question of law and fact. (People v. Majors (1998) 18 Cal.4th 385, 417.) “Some of the
factors to be considered when determining whether the presumption is rebutted are the
strength of the evidence that misconduct occurred, the nature and seriousness of the
misconduct, and the probability that actual prejudice may have ensued.” (Hasson v. Ford
Motor Co. (1982) 32 Cal.3d 388, 417.)
“The standard is a pragmatic one, mindful of the ‘day-to-day realities of
courtroom life’ [citation] and of society’s strong competing interest in the stability of
criminal verdicts [citations]. It is ‘virtually impossible to shield jurors from every contact
or influence that might theoretically affect their vote.’ [Citation.]” (In re Hamilton,
supra, 20 Cal.4th at p. 296.) As courts have cautioned, “the criminal justice system must
not be rendered impotent in quest of an ever-elusive perfection. . . . [Jurors] are imbued
with human frailties as well as virtues. If the system is to function at all, we must tolerate
a certain amount of imperfection short of actual bias.” (In re Carpenter (1995) 9 Cal.4th
634, 654-655.)
Here, upon learning of the alleged improper comment, the court immediately
interviewed each juror. In addition to asking about the specific comment, the court asked
open questions in order to elicit additional information and assess the extent of any
prejudice. When jurors mentioned potential additional improper comments, the court
asked the other jurors about those too, and even brought back jurors for additional
questioning as needed. The court also explained again what jurors were allowed to
discuss, and the jurors promised they would tell other jurors to stop if they started talking
about improper subjects.
With the exception of the comments by Juror No. 1, whom the court properly
excused, these interviews revealed that jurors briefly discussed the existence of a
marijuana Web site, complained about waiting in the hall where it was hot and there was
no seating, and made some general jokes about people’s ability to remember things.
These limited comments do not rise to the level of evidence “of such a character as is
19
likely to have influenced the verdict improperly.” (Evid. Code, § 1150, subd. (a).)
Moreover, they do not outweigh the jurors’ statements that they had not heard anything
substantive discussed about the case, that they did not consider the trial to be a waste of
time, and that they had not prejudged the case. In addition, each juror stated he or she
could remain fair and impartial. In sum, there is no indication that the jurors were
actually biased, and the trial court did not err in denying defendants’ new trial motion.
III
We turn next to defendants’ argument that the trial court violated their Sixth and
Fourteenth Amendment rights in dismissing a prospective African-American juror based
on her expressed belief that the likelihood of a fair trial in a criminal case depended on
one’s race. As defendants acknowledge, current California Supreme Court precedent
compels us to find this argument without merit.
A. Additional background
During voir dire, Prospective Juror D. (D.), who is African-American, stated she
worked as a psychology technician with the Department of Corrections and
Rehabilitation. She believed that, depending on one’s race, one had a “different
outcome” in the criminal justice system and ran the risk of not getting a fair trial. When
asked, she said she would not hold the prosecutor to a higher standard of proof than
beyond a reasonable doubt. She also said that her decision would not be affected by the
fact that defendants were African-American, and she would apply the law as given by the
trial court. Her work with inmates would not affect her ability to be a fair juror in this
case. Although she formed quick and strongly held opinions, she did not think she would
find it difficult to communicate with others during deliberations.
D. said she felt she would give everyone a fair chance in the case. Although she
was somewhat uncomfortable being questioned in the courtroom during voir dire, D.
again stated she would be fine deliberating with the other jurors. Although she did not
think that the system was fair for everyone (including African-Americans, Latinos, and
20
Asian-Americans), she was not concerned that defendants (who were African-American)
would fail to get a fair trial. She felt people perceive each other differently, depending on
their race. Still, she would base her decision on evidence and facts.
The prosecutor subsequently moved to strike D. for cause, based on D.’s belief
that the system did not work “evenly” for people of different races. The prosecutor
argued D. looked uncomfortable and angry during voir dire, and she would be prejudiced
against the prosecution.
Miles’s lawyer disagreed, arguing that D. could still be fair and impartial even
though she felt that people of color were treated unfairly in the criminal justice system.
Counsel also noted D. said she would follow the law as given by the court, and she would
avoid holding the prosecution to a higher standard. Stinson’s lawyer also argued D. said
she could be fair, and she had acted the same toward defense counsel as she had toward
the prosecutor.
The court questioned D. further outside the presence of the other potential jurors.
When asked, she clarified that she felt the criminal process was fair, but the outcome
would be different depending on one’s race. For example, if D. had an incident with a
coworker, people would be more likely to believe her coworker because they would
consider D. to be aggressive. In her experience, most people think that African-
Americans are aggressive. Similarly, people could prejudge others in the criminal justice
system. Still, she stated she would not do so, and race would not be a factor for her when
she considered the evidence. However, if she felt the jury was deciding guilt based on
race, she would vote against it “because you [are] basing something off of just his race
versus everything that you gathered as a whole.” She told the court she had not formed
an opinion as to whether the defendants were guilty. She would not look more favorably
upon defendants merely because they were African-American, nor would she use race as
a factor in any of her determinations in the case.
21
After the questioning, the prosecutor renewed her motion to dismiss D. for cause.
Counsel for Stinson disagreed, arguing D. had explained she could be fair and would base
her decision on the evidence. The court denied the motion. When jury selection
resumed, the prosecution excused D. with a peremptory challenge.
Outside the jury’s presence, defendants made a Batson/Wheeler motion.5 The
prosecutor stated she had excused D. for legitimate race-neutral reasons. Counsel for
Stinson noted that D. was the first African-American to be excused. He also argued that
the prosecution was being disingenuous about her reasons for dismissing D., given that at
least one white juror had been seated who said he believed police were more trustworthy.
The prosecutor reiterated that D. not only worked with inmates as a psychology
technician, she also had strong opinions about how African-Americans were treated and
how that might affect the fairness of the instant trial. The prosecutor further argued that
D. had negative life experiences and a bias against the system, believing that it worked
against minorities. In addition, D. appeared uncomfortable in the courtroom and had
stated in her questionnaire that she formed quick opinions.
The trial court found the prosecutor was not improperly motivated by race and
denied defendants’ motion. The trial court noted that D. had made conflicting statements
about her perception of the system, and whether she would vote a certain way if everyone
else’s decision was based on race. Although D.’s experience and attitude toward “the
system” and “people” might be more common among African-Americans, that did not
preclude the prosecutor from excusing D.
B. Applicable law and analysis
“A prosecutor’s use of peremptory challenges to strike prospective jurors on the
basis of group bias—that is, bias against ‘members of an identifiable group distinguished
5 Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson) and People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).
22
on racial, religious, ethnic, or similar grounds’—violates the right of a criminal defendant
to trial by a jury drawn from a representative cross-section of the community under
article I, section 16 of the state Constitution. [Citations.] Such a practice also violates
the defendant’s right to equal protection under the Fourteenth Amendment. [Citations.]”
(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008 (Lewis and Oliver).)
A Batson/Wheeler challenge involves three steps. “First, the defendant must make
out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made
out a prima facie case, the ‘burden shifts to the State to explain adequately the racial
exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.]
Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . .
whether the opponent of the strike has proved purposeful racial discrimination.’
[Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138], fn.
omitted.)
Where, as here, a defendant challenges the court’s finding that the prosecutor’s
reasons were race-neutral (i.e., the third step of the Batson/Wheeler analysis), we
consider the credibility of the prosecutor’s justification. (People v. Hamilton (2009) 45
Cal.4th 863, 900.) Factors to be considered include “ ‘how reasonable, or how
improbable, the explanations are; and by whether the proffered rationale has some basis
in accepted trial strategy.’ ” (Ibid.)
As our Supreme Court has explained, a prosecutor “does not offend Batson or
Wheeler when [she] excuses prospective jurors who have shown orally or in writing, or
through their conduct in court, that they personally harbor biased views.” (Lewis and
Oliver, supra, 39 Cal.4th at p. 1016.) This is true even if the prospective juror is a
member of a cognizable racial group, and their biased view or attitude “may be more
widely held inside the cognizable group than outside of it.” (Ibid.)
23
Because the existence of purposeful racial discrimination is a question of fact, we
review the trial court’s ruling to determine if it is supported by substantial evidence.
(People v. Hamilton, supra, 45 Cal.4th at pp. 900-901.) “As long as the court makes ‘a
sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal.’ [Citation.]” (Lewis and Oliver, supra,
39 Cal.4th at p. 1009.)
For example, in Lewis and Oliver, the defendant brought multiple Batson/Wheeler
motions after the prosecutor excused six African-American males as jurors. (Lewis and
Oliver, supra, 39 Cal.4th at pp. 1009-1010.) All but one of these prospective jurors had
expressed opinions about the criminal justice system, including statements that racial
minorities are targeted by police for pretextual traffic stops, wealthier crime victims are
treated better by police, and the criminal justice system applies differently to racial
minorities. (Id. at pp. 1010-1015.) The trial court found the prosecutor had stated race-
neutral reasons for each dismissal and denied the defendant’s motions, and our Supreme
court agreed. (Id. at pp. 1009-1015.) In so doing, the court rejected the defendant’s
argument that it is unconstitutional for a prosecutor to strike a prospective juror who has
“ ‘had an experience or expresses an opinion reflective of the minority perspective.’ ”
(Id. at p. 1015.) The court reasoned that such an approach would prevent prosecutors
from considering prospective jurors individually, and thereby “stand[ ] the law on its
head” by “promot[ing] the very group stereotyping that Batson and Wheeler forbid.”
(Lewis and Oliver, at p. 1016.)
Similarly here, the trial court did not err in finding that the prosecutor was not
motivated by race in excusing Prospective Juror D. Although D. said she thought the
criminal process was fair, she also believed the outcome would be different depending on
one’s race. She also felt people assume African-Americans are aggressive, leading some
to prejudge African-Americans in the criminal justice system. These statements indicate
the prosecutor had reason for her expressed concern that D. would not be fair to the
24
People. To the extent defendants are correct that D.’s individual experiences and attitude
might be more common among African-Americans, as explained in Lewis and Oliver,
that did not preclude the prosecutor from excusing D. Although defendants contend that
Lewis and Oliver was wrongly decided, we are bound to follow the precedent of the
California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)
IV
We turn next to Stinson’s argument that the evidence was insufficient to establish
the special circumstance under section 190.2, subdivision (a)(17)(A) that he murdered the
father during the commission of a robbery attempt. According to Stinson, it is not
possible that the jury believed the prosecutor’s argument that Stinson fired his gun at the
father and killed him, given that the jury found the gun enhancements to be not true.
Stinson further argues there was strong evidence that Deloach and Owens were the
shooters. The .10-millimeter gun used to kill the father was used in other crimes
occurring between September 2015 and May 2016, and handguns similar to those used to
kill the father (the .10-millimeter gun and .45-caliber Glock) were connected to Owens
and Deloach. In addition, the evidence was insufficient to establish Stinson aided and
abetted the murder, since the evidence of Stinson’s involvement in the attempted robbery
was limited. He had only limited phone contact with Owens on the day of the shootings.
And, even though one of the girlfriend’s children identified Stinson as one of the two
men who came to the gate asking for the father, Stinson argues he could not have been
involved because the son saw Stinson in his own front yard as the son jumped the fence
to help the father.
Despite the jury’s finding that the gun enhancements were not true, the People
argue the jury still could have found Stinson was the father’s actual killer. In the
alternative, the People contend the evidence is sufficient to support a jury finding that
Stinson aided and abetted the robbery. We agree with the People. First, under the
25
inconsistent verdict doctrine, the not true finding on the gun enhancements does not
necessarily lead to a finding that Stinson was not the direct perpetrator of the substantive
offenses. Second, even if the jury convicted Stinson of the substantive offense under a
vicarious liability theory, substantial evidence supported a verdict on that theory as well.
A. Standard of review
“ ‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’
[Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]”
(People v. Edwards (2013) 57 Cal.4th 658, 715, italics omitted.)
“ ‘The same standard of review applies to cases in which the prosecution relies
primarily on circumstantial evidence and to special circumstance allegations. [Citation.]
“[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be
reversed simply because the circumstances might also reasonably be reconciled with a
contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s
credibility.’ [Citation.]” (People v. Houston (2012) 54 Cal.4th 1186, 1215.)
The jury is entitled to draw reasonable inferences based on the evidence (People v.
Livingston (2012) 53 Cal.4th 1145, 1166), and we must accept all logical inferences the
jury might have drawn from the evidence, even if we would have concluded otherwise.
(People v. Salazar (2016) 63 Cal.4th 214, 242.) “A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
26
substantial evidence to support” ’ the jury’s verdict. [Citations.]” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
B. Despite the jury’s inconsistent findings, substantial evidence supports
Stinson’s convictions
Under section 954, “[a]n acquittal of one or more counts shall not be deemed an
acquittal of any other count.” Courts have made clear that section 954 permits
inconsistent verdicts to stand if they are otherwise supported by substantial evidence.
(People v. Lewis (2001) 25 Cal.4th 610, 656.) “ ‘[A]ny verdict of guilty that is
sufficiently certain is a valid verdict even though the jury’s action in returning it was, in a
legal sense, inconsistent with its action in returning another verdict of acquittal or guilt of
a different offense.’ ” (People v. Miranda (2011) 192 Cal.App.4th 398, 405 (Miranda).)
This rule applies to inconsistent enhancement findings, and to enhancement findings that
are inconsistent with the verdict on the substantive offenses. (Ibid.) As our Supreme
Court explained, a review for sufficiency of the evidence “ ‘should be independent of the
jury’s determination that evidence on another count was insufficient.’ ” (Lewis, supra, at
p. 656.) “An inconsistency may show no more than jury lenity, compromise, or mistake,
none of which undermines the validity of a verdict. [Citation.]” (Ibid.)
We find Miranda instructive. In that case, the defendant waited by the car while
his two compatriots approached a man in a parked car and asked him to “ ‘share’ ” the
marijuana he was smoking. (Miranda, supra, 192 Cal.App.4th at p. 404.) The man
declined, so one of the other perpetrators yanked off the victim’s necklace, and the victim
chased him. The victim then heard gunshots and saw the defendant firing a handgun at
him. The victim was shot twice. The defendant was caught after a high-speed car chase.
During his testimony, the defendant acknowledged being present but claimed one of the
other men was the shooter. (Ibid.) The jury found the defendant guilty of attempted
murder, second degree robbery, and being a felon in possession of a firearm, and found
true a gang enhancement. (Id. at pp. 402-403.) The jury also found true a principal gun-
27
use enhancement (§ 12022.53, subd. (e)(1)), but found not true the remaining firearm use
enhancements (§§ 12022.53, subds. (b)-(d), 12022.5, subd. (a)). (Miranda, at p. 403.)
On appeal, the defendant in Miranda argued there was insufficient evidence to
support his convictions for attempted murder, robbery, and his remaining charges, since
the jury found all of the personal gun-use enhancement allegations to be not true.
(Miranda, supra, 192 Cal.App.4th at p. 405.) The defendant argued the jury must have
found him guilty of the charges only as an aider and abettor. He then argued the evidence
was insufficient to establish that he acted as an aider and abettor. The appellate court
disagreed, reasoning that the inconsistent verdicts did not necessarily mean that the jury
found the defendant was not the direct perpetrator of the substantive offenses. (Ibid.)
Although there was conflicting evidence, at trial, the victim identified the defendant as
the shooter. (Id. at pp. 406-407.) In addition, there was substantial evidence that the
defendant aided and abetted the substantive crimes. (Id. at p. 407.)
Similarly, in People v. Federico (1981) 127 Cal.App.3d 20, the court rejected the
defendant’s argument that his conviction for murder was inconsistent with the jury’s
finding that the gun enhancements (§§ 12022, subd. (a)), 12022.5), great bodily injury
enhancement (§ 12022.7), and dangerous weapon enhancement (§ 12022, subd. (b)) were
not true. (Federico, supra, at pp. 24, 31.) Acknowledging that the jury’s findings on the
enhancements were inconsistent with its guilty verdict on the murder charge, the court
still found reversal was not required. (Id. at p. 31.) The court reasoned that section 954
resolved this inconsistency, and was persuaded by “ ‘ “ ‘cases recognizing that such
inconsistent verdicts may be caused not by the confusion but the mercy of the jury, of
which the appellant can neither complain nor gain further advantage.’ ” ’ ” (Federico, at
pp. 32-33.)
Similarly, here, substantial evidence supports Stinson’s convictions for the
substantive crimes, and we are not persuaded that Stinson’s conviction for murder is
inconsistent with the jury’s not true findings on the gun enhancements. The girlfriend’s
28
child identified Stinson as one of the two men who came to the father’s home just before
the shooting asking for the father. The son testified that after he heard shots and tried to
jump a fence to reach the father, he recognized Stinson and saw Stinson holding a gun.
Stinson then shot at the son. Witnesses then saw Stinson (along with Miles) fleeing the
scene. Based on this evidence, the jury could have found that Stinson attempted to rob
and then shot and killed the father. Under section 954, the jury’s inconsistency is not
grounds for reversal because substantial evidence supports the verdict.
D. Substantial evidence also supports the theory that Stinson aided and
abetted the murder and attempted robbery
Even if we were to assume that the jury found Stinson guilty of murder and
attempted robbery only as an aider and abettor, substantial evidence supports that theory
as well. The special circumstance under section 190.2 is established for a defendant who
is not the actual killer if (1) the defendant intended to kill (§ 190.2. subd. (c)); or (2)
aided and abetted the commission of the robbery “with reckless indifference to human
life and as a major participant.” (§ 190.2, subd. (d).)
Section 190.2, subdivision (d) was drafted to codify the holding of Tison v.
Arizona (1987) 481 U.S. 137 [95 L.Ed.2d 127]. (People v. Banks (2015) 61 Cal.4th 788,
794 (Banks).) As our Supreme Court has explained, “Tison and a prior decision on which
it is based, Enmund v. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140], collectively place
conduct on a spectrum, with felony-murder participants eligible for death only when their
involvement is substantial and they demonstrate a reckless indifference to the grave risk
of death created by their actions.” (Banks, supra, at p. 794.)
As described in Banks, in Enmund, the defendant drove two armed men to the
victim’s house so the men could rob the victim. (Banks, supra, 61 Cal.4th at p. 799.)
The defendant waited nearby while the robbers entered the victim’s home. During the
course of the robbery, the victim’s wife appeared with a gun, so the robbers shot and
killed the victim and his wife. The defendant drove the robbers away from the scene and
29
helped them dispose of the weapons. The United States Supreme Court reversed the
defendant’s death sentence, reasoning he only intended to commit an armed robbery and
only acted as the getaway driver. (Ibid.)
The court reached the opposite conclusion in Tison, where the two defendants
helped plan and carry out the escape of two men from prison. (Banks, supra, 61 Cal.4th
at p. 799.) The defendants brought weapons to the prison, armed the escapees, and held
guards and visitors at gunpoint. Their car broke down during the escape, so they flagged
down a family who was driving by in order to steal their car. (Ibid.) The defendants
drove the family to the desert, where the two prisoners killed the family in the
defendants’ presence. (Id. at pp. 799, 802.) The United States Supreme Court affirmed
the special-circumstance finding because the defendants were major participants who
acted with reckless indifference to human life. (Id. at pp. 799-800.)
In considering whether a defendant’s conduct is closer to Tison or Enmund,
relevant factors may include: (1) the defendant’s role in planning the crime that led to
death; (2) the defendant’s role in supplying or using lethal weapons; (3) the defendant’s
awareness of the particular dangers posed by the nature of the crime, weapons used, or
past experience or conduct of the other participants; (4) the defendant’s presence at the
scene of the killing, including whether his own actions or inactions played a role in the
death; and (5) the defendant’s actions after lethal force was used. (Banks, supra, 61
Cal.4th at p. 803.) Still, “[n]o one of these considerations is necessary, nor is any one of
them necessarily sufficient. All may be weighed in determining the ultimate question,
whether the defendant’s participation ‘in criminal activities known to carry a grave risk
of death’ [citation] was sufficiently significant to be considered ‘major.’ ” (Ibid., quoting
Tison v. Arizona, supra, 481 U.S. at pp. 152, 157.)
Here, there was sufficient evidence to establish Stinson was a major participant in
the attempted robbery and acted with a reckless indifference to human life. The jury
reasonably could have concluded Stinson helped plan the attempted robbery and was
30
present during its commission. One of the girlfriend’s children identified Stinson as one
of the two men who came to the father’s home just before the shooting and asked for the
father. And, the son and a neighbor saw Stinson at the scene immediately after the
killing.
There also was substantial evidence that Stinson acted with reckless indifference
to human life. Stinson was aware that there was at least one child at home during the
attempted robbery, making it inherently dangerous. Stinson must have recognized the
danger since, according to witnesses, he brought at least one gun with him to the
attempted robbery. In addition, there was no evidence that Stinson tried to stop the
killing of the father or assist him. And, Stinson made the situation even more dangerous
by shooting at the son and then fleeing the scene with Miles. In sum, there is sufficient
evidence that Stinson was either the actual killer or a major participant in the attempted
robbery who acted with reckless indifference to human life.
V
We turn now to Stinson’s challenge to his conviction for animal cruelty under
section 597, subdivision (a), which provides that “every person who maliciously and
intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and
intentionally kills an animal, is guilty of a crime.” We find Stinson’s arguments without
merit.
A. The evidence was sufficient to establish Stinson committed animal cruelty
Stinson first argues the prosecution was required to prove that he personally and
intentionally killed the dog, and there is insufficient evidence to satisfy this standard.
According to Stinson, he could not be guilty because the statute includes the phrase
“maliciously and intentionally,” and, at best, the dog was killed accidentally while he
shot twice at the son. We disagree.
Stinson’s argument was rejected in People v. Alvarado (2005) 125 Cal.App.4th
1179 (Alvarado), which found that section 597, subdivision (a) is a general intent statute.
31
(Alvarado, supra, at pp. 1185-1190.) As the court explained, “if the end in view is
simply a proscribed act, the intent required is only a general one because no further acts
or future consequences are envisioned from the illegal act. [Citations.] Conversely,
when the end in view looks to a further consequence of the act, the intent is specific.
[Citations.] Specific intent crimes typically contain such phrases as ‘ “with the intent
to” ’ achieve or ‘ “for the purpose of” ’ achieving some additional result.” (Id. at p.
1186.)
Conversely, the terms “ ‘willfully,’ ‘knowingly,’ ‘intentionally,’ and ‘maliciously’
are expressions of general, not specific, intent when used in a penal statute.” (Alvarado,
supra, 125 Cal.App.4th at p. 1188.) “ ‘[T]he term “intentionally” requires only that the
agent acted intentionally in engaging in the proscribed conduct, and not that the agent
knew that the conduct was proscribed.’ ” (Ibid.)
Since section 597, subdivision (a) does not state that a defendant must have an
intent to do some further act or achieve some further consequence other than the
proscribed acts, only general intent is required. (Alvarado, supra, 125 Cal.App.4th at pp.
1186-1187.) As such, a defendant’s guilt can be established merely by showing that a
defendant “ ‘acted intentionally in engaging in the proscribed conduct.’ ” (Id. at p. 1188.)
In other words, it is not required to show that defendant had a specific intent to maim,
mutilate, torture, wound, or kill an animal. (Ibid.)
We agree with the reasoning in Alvarado that section 597, subdivision (a) is a
general intent crime. Viewing the record in the light most favorable to the judgment
(People v. Osband (1996) 13 Cal.4th 622, 690), we find sufficient evidence to support
Stinson’s conviction for animal cruelty. One of the girlfriend’s children heard a dog
barking after the son ran out of the house, and then heard more gunshots. The son saw
Stinson at the scene with a gun. A jury could reasonably infer Stinson intentionally shot
the dog in an effort to stop it from barking or otherwise defending the father and the son.
32
Alternatively, as Stinson acknowledges, the jury could reasonably infer the dog was
caught in the line of fire and accidentally killed as Stinson intentionally shot at the son.
B. The court properly instructed the jury regarding the elements of the
animal cruelty charge
Stinson next argues the jury instructions related to the animal cruelty charge were
incomplete. The jury was instructed with CALCRIM No. 2953 as follows: “To prove
that Mr. Stinson is guilty of [animal cruelty], the People must prove, one, Mr. Stinson
killed a living animal, and two, Mr. Stinson acted maliciously. [¶] Someone acts
maliciously when he intentionally does a wrongful act or when he acts with the unlawful
attempt to disturb, annoy or injure an animal.” The jury was also instructed that the
animal cruelty charge only required general intent, which the instruction explained as
follows: “For you to find a person guilty of these crimes or to find the allegation is true,
that person must not only commit the prohibited act but must do so with a wrongful
intent. [¶] A person acts with wrongful intent when he or she intentionally does a
prohibited act. However, it is not required that he or she intended to break the law. The
act require[d is] explained in the instruction for that crime.” (CALCRIM No. 252, as
given.) According to Stinson, the instructions erroneously failed to instruct the jury that
they could only find Stinson guilty of animal cruelty if he intentionally shot the dog.
Given our conclusion that section 597, subdivision (a) is a general intent crime, we
also conclude that the instructions given properly stated the elements of the crime.
C. Any error in giving a limited and extraneous portion of instructions
related to the natural and probable consequences doctrine was harmless
Finally, Stinson argues the jury could have improperly found him guilty of the
shooting of the dog on an aider and abettor theory, based on the prosecutor’s closing
argument and the court’s instructions pursuant to CALCRIM Nos. 400 and 401. The
People respond that Stinson forfeited the issue because he did not object at the trial court.
33
In the alternative, Stinson argues his counsel was ineffective because counsel failed to
object to the instruction. Regardless, we find Stinson’s contentions without merit.
1. Additional background
In discussing the attempted murder of the son during closing argument, the
prosecutor argued: “And again, I have to ask you, what makes sense in this whole—
remember the plants that are all broken up in the back? Remember the other holes in the
fence? How do you think the dog got shot in his head? It wasn’t from that first shot,
which supplements and corroborates what [the son] told you, which was there was more
than one shot. Now, whether or not the dog is collateral damage, whether or not they’re
shooting back there to try to shut the dog up, because the dog was being loud and
barking, any which way you look at it, we have other new perforations inside of that
fence that gives you other information. [¶] And, by the way, we know because it was a
bullet hole in the head of the dog, it was not a shotgun. We know that based upon the
evidence that was out there, there was no shotgun that was used. But we also know that,
once again, there’s independent evidence to prove to you that you’re not being told the
truth by some of the witnesses because, again, if there is not a shot down the direction of
where [the son] is running, how does that dog up end dead? By a bullet wound. Look at
the images. You can’t deny the evidence.”
Stinson’s counsel responded that the prosecution wanted the jury to believe that
Stinson fired twice at the son, with one of those shots hitting the dog. Counsel
acknowledged it was possible the dog had been hit by a ricocheting bullet fired by
Stinson, but argued there was insufficient forensic evidence to establish beyond a
reasonable doubt that was how the dog died. During rebuttal, the prosecutor argued there
was ample evidence that Stinson shot the dog. A police officer and field technician both
testified the dog had a gunshot wound, and there were multiple holes in the back of the
fence.
34
The jury was instructed regarding aiding and abetting pursuant to CALCRIM Nos.
400 and 401, including the following bracketed language that the bench notes state
should be given if the prosecution is also relying on the natural and probable
consequences doctrine: “Under some specific circumstances if the evidence establishes
aiding and abetting of one crime, a person may also be found guilty of other crimes that
occurred during the commission of the first crime.” (CALCRIM No. 400.) The court
then gave CALCRIM No. 401, 6 which the bench notes explain should be done when the
prosecution’s theory is that the defendant intended to aid and abet the target crimes.
(Judicial Council of Cal., Crim. Jury Instns. (2010) Bench Notes to CALCRIM No. 400.)
The court did not give CALCRIM Nos. 402 or 403, which the bench notes explain should
be given when the prosecution’s theory is that any of the crimes were committed as a
natural and probable consequence of the target crime. (Judicial Council of Cal., Crim.
Jury Instns. (2010) Bench Notes to CALCRIM No. 400.) The prosecution did not present
a natural and probable consequences theory, and defense counsel did not object to the
instructions.
6 CALCRIM No. 401 states: “To prove that the defendant is guilty of a crime based
on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator
committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit
the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to
aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s
words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶]
Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose
and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage,
or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements
are proved, the defendant does not need to actually have been present when the crime was
committed to be guilty as an aider and abettor. [¶] [If you conclude that defendant was
present at the scene of the crime or failed to prevent the crime, you may consider that fact
in determining whether the defendant was an aider and abettor. However, the fact that a
person is present at the scene of a crime or fails to prevent the crime does not, by itself,
make him or her an aider and abettor].”
35
D. Analysis
According to Stinson, the prosecutor’s statements during closing that “they” might
have been shooting to try to quiet the dog invited the jury to find Stinson guilty of animal
cruelty based on his aiding and abetting the attempted robbery. The instructions would
have led the jury to think this was permissible since they were told that under “ ‘some’ ”
unnamed “ ‘specific circumstances,’ ” they could find Stinson guilty of “ ‘other crimes
that occurred during the commission’ ” of the crime that was aided and abetted. Citing
People v. Chun (2009) 45 Cal.4th 1172, Stinson argues we must overturn his conviction
because it cannot be established beyond a reasonable doubt that the jury based its verdict
on a legally valid theory.
To the extent the trial court erred in giving the extraneous bracketed portion of
CALCRIM No. 400 (see People v. Rivas (2013) 214 Cal.App.4th 1410, 1432 [the
bracketed portion of CALCRIM No. 400 is superfluous unless the prosecution is relying
upon the natural and probable consequences doctrine] (Rivas)), any error was harmless.
“ ‘With regard to criminal trials, “not every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the level of a due process violation. The question
is ‘ “whether the ailing instruction . . . so infected the entire trial that the resulting
conviction violates due process.” ’ [Citation.] ‘ “[A] single instruction to a jury may not
be judged in artificial isolation, but must be viewed in the context of the overall
charge.” ’ [Citation.] If the charge as a whole is ambiguous, the question is whether
there is a ‘ “reasonable likelihood that the jury has applied the challenged instruction in a
way” that violates the Constitution.’ ” [Citation.]’ [Citations.]” (People v. Letner and
Tobin (2010) 50 Cal.4th 99, 182; Rivas, supra, 214 Cal.App.4th at p. 1429 & fn. 9.)
For example, in Rivas, the trial court instructed the jury with the same bracketed
language in CALCRIM No. 400 at issue here, even though the prosecution did not rely
on the natural and probable consequences doctrine. (Rivas, supra, 214 Cal.App.4th at p.
1432.) The appellate court found the error harmless because there were no further
36
instructions given on the doctrine, and neither party referred to the doctrine during their
arguments to the jury. (Id. at p. 1434.) Similarly, in People v. Prettyman (1996) 14
Cal.4th 248, our Supreme Court found harmless the trial court’s failure to specify the
target crimes in its instructions regarding the natural and probable consequences doctrine,
because the prosecutor’s theory was that the defendant had encouraged or assisted his
codefendant and was guilty of murder as an accomplice to the crime. (Id. at pp. 273-
274.) As the court explained, when the parties make “no reference to the ‘natural and
probable consequences’ doctrine in their arguments to the jury, it is highly unlikely that
the jury [will have] relied on that rule.” (Id. at p. 273.)
Similar to Rivas and Prettyman, none of parties here discussed the natural and
probable consequences doctrine during closing arguments, and the only instruction the
jury received about it was the bracketed paragraph. Although the prosecution mentioned
in passing during closing argument that “they” may have been shooting at the dog to
“shut [it] up,” counsel for Stinson clarified that the prosecutor’s theory was that Stinson
fired twice at the son, with one of those shots hitting the dog. The prosecutor also argued
in rebuttal that there was ample forensic evidence that the dog had been shot. In addition,
the court never identified the “specific circumstances,” making the superfluous
instructional language meaningless. On this record, it is not reasonably likely that the
jury interpreted the instructions as Stinson suggests, and his challenge lacks merit.
VI
We turn next to Stinson’s contention that resentencing is required because the trial
court was ambiguous during the sentencing hearing regarding whether the term for the
animal cruelty charge (count 4) would run consecutively or concurrently. Stinson notes
that the trial court indicated during its tentative ruling that it would impose a concurrent
sentence on the charge, but eventually imposed a consecutive sentence. The People
respond that Stinson has forfeited the issue because he failed to object to the change at
the trial court. Regardless, we find Stinson’s contentions without merit.
37
A. Additional background
During the sentencing hearing, the court stated its tentative ruling with respect to
the determinate terms as follows: “As to [the attempted robbery count], that is a 16, 2, 3
triad. And the Court would be inclined to impose the 3-year State Prison term, upper-
term, concurrent based on the rest of his sentence. . . . And on [the animal cruelty count],
the sentence for 597 subsection A, the Court would be inclined to impose the upper-term
of 3 years. It is a 16, 2, 3 offense. But run it concurrent to the rest of the counts.”
After hearing argument and victim impact statements, the court announced its
judgment with respect to counts 2 and 4 as follows: “With regard to [the attempted
robbery count], the felony violation of [sections 664 and 211], second-degree robbery,
the upper-term on that is 3 years. I am indicating that is the Court’s selected term. But,
actually, I believe that to be 654 in [the murder count]. [¶] . . . So it is stayed. With
regard to [the animal cruelty count], 597(A) the upper-term on that is three years. I’m
going to impose the upper-term. The reason I’m imposing the upper-term on that is
because the allegations the dog was killed with a firearm for which not only was Mr.
Stinson prohibited from having a firearm, but he had a conviction for being a felon in
possession of a firearm previously. So with regard to his term, it is 3 years determinant
sentence, followed by a life-term for [the murder count] followed by a consecutive, this is
all consecutive, life without the possibility of parole.” Stinson’s counsel made no
objection to this unambiguous change from the concurrent terms proposed in the tentative
ruling to the consecutive terms imposed in the judgment.
After addressing concerns raised by Stinson’s counsel regarding fines and fees
imposed, restitution, and the description of credits in the probation report, the court asked
twice if there was anything else. Each time, Stinson’s counsel responded, “No.”
The abstract of judgment states that the term for the animal cruelty count is
consecutive.
38
B. Analysis
Contrary to Stinson’s contentions, the court made clear during its pronouncement
of the judgment that the term for the animal cruelty count would run consecutively. As
Stinson concedes, the trial court had discretion to impose this authorized sentence, and
we decline Stinson’s invitation to infer ambiguity merely because the trial court changed
its mind. (See People v. Coelho (2001) 89 Cal.App.4th 861, 886 [“Where the court has
discretion, the imposition of a consecutive, rather than concurrent, term represents a
sentencing choice”]; see also In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-
647 [“ ‘[A] court is not bound by its statement of intended decision and may enter a
wholly different judgment than that announced’ ”].)
VII
Finally, we turn to Miles’s challenge to his conviction for the attempted murder of
the son. Miles first argues the evidence was insufficient to support his conviction, and
the trial court therefore erred in denying his motion to dismiss under section 1118.1. As
Miles notes, the prosecutor’s theory (as expressed during closing argument) was that
Stinson was the shooter, and Miles was guilty of attempted murder because he had aided
and abetted in the crime. According to Miles, there was no evidence he said or did
anything when he saw the son jumping the fence, and he was not armed. Although he
fled the scene and encouraged Stinson to hide his gun, Miles argues this is insufficient to
establish he had the intent to kill the son.
In the alternative, Miles contends the jury’s true finding on the premeditation
allegation attached to the attempted murder count violates the Sixth Amendment. In
support of his argument, Miles cites Alleyne v. United States (2013) 570 U.S. 99 [186
L.Ed.2d 314], which holds that any fact that increases the minimum penalty for a crime is
an element of the offense and must be submitted to the jury and found true beyond a
reasonable doubt. (Id. at p. 103.) According to Miles, the premeditation element was
omitted from the jury’s deliberations because the court instructed that the jury could find
39
premeditation based on either his or Stinson’s state of mind. In addition, argues Miles,
the changes to sections 188 and 189 under Senate Bill 1437 mean that vicarious liability
is no longer permitted for homicide crimes, meaning that he had to personally harbor the
requisite mental state. His contentions are without merit.
A. Additional background
Prior to closing argument, Miles’s counsel filed a motion to dismiss under section
1118.1, arguing there was a lack of evidence presented as to Miles’s culpability in the
charged crimes. He argued there was no evidence Miles was armed, and the girlfriend’s
child was unsure of the identity of the second man who asked to see the father before the
shooting. The prosecutor responded that the evidence against Miles was circumstantial.
She noted that the son saw Miles at the scene just after the father was killed. In addition,
witnesses saw Miles fleeing the scene and telling Stinson to put the gun down his pants.
Given that there were at least two guns involved in the shootings, one could infer that
Miles had already concealed his gun when the son saw him. The court agreed the
evidence was sufficient and denied Miles’s motion.
B. Sufficient evidence supported Miles’s conviction for first degree attempted
murder
“ ‘ “The standard applied by a trial court in ruling upon a motion for judgment of
acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate
court in reviewing the sufficiency of the evidence to support a conviction, that is,
‘whether from the evidence, including all reasonable inferences to be drawn therefrom,
there is any substantial evidence of the existence of each element of the offense
charged.’ ” [Citation.] “The purpose of a motion under section 1118.1 is to weed out as
soon as possible those few instances in which the prosecution fails to make even a prima
facie case.” [Citations.] The question “is simply whether the prosecution has presented
sufficient evidence to present the matter to the [trier of fact] for its determination.”
[Citation.] The sufficiency of the evidence is tested at the point the motion is made.
40
[Citations.] The question is one of law, subject to independent review.’ [Citation.]”
(People v Maciel (2013) 57 Cal.4th 482, 522.)
“ ‘A person aids and abets the commission of a crime when he or she, (i) with
knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose
of committing, facilitating or encouraging commission of the crime, (iii) by act or advice,
aids, promotes, encourages or instigates the commission of the crime.’ [Citation.]”
(People v. Delgado (2013) 56 Cal.4th 480, 486.) When attempted murder is alleged, and
guilt does not depend on the natural and probable consequences doctrine, the aider and
abettor “must know and share the murderous intent of the actual perpetrator.” (People v.
McCoy (2001) 25 Cal.4th 1111, 1118.)
An aider and abettor’s intent may be formed either before or during the
commission of the crime. (People v. Montoya (1994) 7 Cal.4th 1027, 1039.) The jury
may infer the defendant’s intent from circumstantial evidence. (People v. Beeman (1984)
35 Cal.3d 547, 558-559.)
“ ‘Among the factors which may be considered in making the determination of
aiding and abetting are: presence at the scene of the crime, companionship, and conduct
before and after the offense.’ [Citation.]” (People v. Nguyen (2015) 61 Cal.4th 1015,
1054; see also In re Jose T. (1991) 230 Cal.App.3d 1455, 1460 [“Neither mere presence
at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient
to establish that a person is an aider and abettor. Such evidence may, however, be
considered together with other evidence in determining that a person is an aider and
abettor”].) Flight can also be relevant in determining consciousness of guilt. (In re
Lynette G. (1976) 54 Cal.App.3d 1087, 1095.)
Reviewing the evidence here in the light most favorable to the judgment, we
conclude there was sufficient evidence to support Miles’s conviction for the attempted
murder of the son. Although Miles’s mere presence alone at the scene of the crime is
insufficient to establish his role as a participant (People v. Nguyen, supra, 61 Cal.4th at p.
41
1055), the evidence showed Miles was actively involved in all the crimes that took place
that day, including the attempted murder of the son. A jury could reasonably infer Miles
was involved in the planning of the attempted robbery, given that he was later seen
wearing the same black hoodie as the two men who showed up asking about the father. It
was also reasonable to infer that Miles was a participant in the attempted robbery and
murder of the father, since the son saw him grabbing the father at the time of the
shooting. A neighbor also saw Miles try to enter the house. Given his active
participation in these crimes, it was reasonable to infer that Miles perceived the son as a
potential threat and intended to kill him. Even if Miles did not appear armed when the
son saw him from the gate, it is reasonable to infer Miles had already hidden his gun,
given that ballistics evidence established multiple guns were used to shoot the father, and
Miles told Stinson to hide his gun as they fled. In addition, Miles did not attempt to help
the father or the son, and Miles and Stinson fled the scene together. Stinson and Miles
were the only people seen fleeing the scene. Under the circumstances, the trial court did
not err in denying Miles’s motion for acquittal.
C. Miles’s conviction for first degree attempted murder did not violate his
Sixth Amendment rights
“First degree murder, like second degree murder, is the unlawful killing of a
human being with malice aforethought, but has the additional elements of willfulness,
premeditation, and deliberation, which trigger a heightened penalty. [Citation.] That
mental state is uniquely subjective and personal. It requires more than a showing of
intent to kill; the killer must act deliberately, carefully weighing the considerations for
and against a choice to kill before he or she completes the acts that caused the death.
[Citations.]” (People v. Chiu (2014) 59 Cal.4th 155, 166, superseded on other issues by
Senate Bill 1437, as stated in People v. Lewis (2021) 11 Cal.5th 952, 959, fn. 3.)
With respect to a perpetrator and a direct aider and abettor, “[a]ttempted murder
requires the specific intent to kill and the commission of a direct but ineffectual act
42
toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.)
In Lee, our Supreme Court considered application of section 664, subdivision (a)’s
penalty provision to direct aiders and abettors. (Id. at pp. 624-625.) Based on the
statutory language, the court concluded the statute does not require personal willfulness,
deliberation, and premeditation of an attempted murderer in the context of direct aiders
and abettors. (Id. at p. 623.) The court further reasoned, “such an attempted murderer
necessarily acts willfully, that is with intent to kill. In addition, he or she also necessarily
acts with a mental state at least approaching deliberation and premeditation—concepts
that entail ‘ “ ‘careful thought and weighing of considerations’ ” ’ and ‘ “ ‘preexisting
reflection’ ” ’ [citation], as opposed to ‘mere unconsidered or rash impulse hastily
executed’ [citation]—because he or she necessarily acts with knowledge of the direct
perpetrator’s intent to kill and with a purpose of facilitating the direct perpetrator’s
accomplishment of the intended killing.” (Id. at p. 624.)
In People v. Favor (2012) 54 Cal.4th 868 (Favor), our Supreme Court extended
Lee to aider and abettor liability for attempted premeditated murder under the natural and
probable consequences doctrine. In Favor, the defendant was accused of committing the
target offense of robbery as an aider and abettor, and of the nontarget offense of
attempted murder as a natural and probable consequence of the robbery. (Favor, supra,
at p. 874.) The jury was instructed pursuant to CALCRIM Nos. 402 and 601.7 (Favor, at
7 Specifically, the instruction per CALCRIM No. 402 in Favor read: “ ‘The
defendant is charged in Counts 4 through 5 with robbery and in Counts 2 through 3 with
attempted murder. [¶] You must first decide whether the defendant is guilty of robbery.
If you find the defendant is guilty of this crime, then you must decide whether he is guilty
of attempted murder. [¶] Under certain circumstances, a person who is guilty of one
crime also may be guilty of other crimes that were committed at the same time. [¶] To
prove that the defendant is guilty of attempted murder, the People must prove that: [¶]
1. The defendant is guilty of robbery; [¶] 2. During the commission of robbery, a co-
participant in that robbery committed the crime of attempted murder, and [¶] 3. Under all
of the circumstances, a reasonable person in the defendant’s position would have known
43
pp. 874-875.) The Favor court found no error with the instructions, reasoning “there is
no requirement that an aider and abettor reasonably foresee an attempted premeditated
murder as the natural and probable consequence of the target offense. It is sufficient that
attempted murder is a reasonably foreseeable consequence of the crime aided and
abetted, and the attempted murder itself was committed willfully, deliberately and with
premeditation.” (Id. at p. 880.)
We decline Miles’s invitation to disregard Lee and Chiu (see generally Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [we are required to follow
decisions of our Supreme Court]), especially since the prosecutor argued Miles was
guilty of attempted murder only as a direct aider and abettor. Chiu made clear that a
direct aider and abettor “may still be convicted of first degree premeditated murder . . . .
[Citation.] Under those principles, the prosecution must show that the defendant aided or
encouraged the commission of the murder with knowledge of the unlawful purpose of the
perpetrator and with the intent or purpose of committing, encouraging, or facilitating its
commission. [Citation.] Because the mental state component—consisting of intent and
knowledge—extends to the entire crime, it preserves the distinction between assisting the
predicate crime of second degree murder and assisting the greater offense of first degree
premeditated murder. [Citations.] An aider and abettor who knowingly and intentionally
assists a confederate to kill someone could be found to have acted willfully, deliberately,
and with premeditation, having formed his own culpable intent. Such an aider and
that the commission of attempted murder was a natural and probable consequence of the
commission of the robbery.’ ” (Favor, supra, 54 Cal.4th at p. 875.)
The jury in Favor was also instructed regarding the attempted
murder/premeditation allegation pursuant to CALCRIM No. 601 that it needed to decide
if the People had proved that the attempted murder ‘ “was done willfully and with
deliberation and premeditation . . . . The attempted murder was done willfully and with
deliberation and premeditation if either the defendant or a principal or both of them acted
with that state of mind.’ ” (Favor, at p. 875.)
44
abettor, then, acts with the mens rea required for first degree murder.” (People v. Chiu,
supra, 59 Cal.4th at pp. 166-167.) We are persuaded this reasoning similarly applies to
first degree attempted murder by a direct aider and abettor. In other words, Alleyne is not
violated because the jury here was required to find Miles knew that Stinson intended to
commit premeditated murder, and that Miles specifically intended to, and in fact aided or
encouraged that crime. (See also People v. McCoy, supra, 25 Cal.4th at p. 1118 [direct
aiders and abettors necessarily “know and share the murderous intent of the actual
perpetrator”].)
D. Senate Bill 1437 and its changes to sections 188 and 189 do not apply to
direct aiders and abettors
Senate Bill 1437 amended the law governing murder liability under felony-murder
and natural and probable consequences theories. (Stats. 2018, ch. 1015, §§ 1-4; see also
People v. Lewis, supra, 11 Cal.5th at p. 959.) Senate Bill No. 775 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775), which went into effect January 1,
2022, clarified that a defendant convicted of attempted murder whose conviction is not
yet final may on direct appeal challenge his conviction based on Senate Bill 1437’s
changes to sections 188 and 189. (§ 1170.95, subd. (g).)
However, the criminal liability of direct aiders and abettors did not change under
Senate Bill 1437. (People v. Gentile (2020) 10 Cal.5th 830, 848; see also People v.
Offley (2020) 48 Cal.App.5th 588, 595-596 [Senate Bill 1437 “did not . . . alter the law
regarding the criminal liability of direct aiders and abettors of murder because such
persons necessarily ‘know and share the murderous intent of the actual perpetrator’ ”].)
As such, the instructions regarding premeditated attempted murder were not infirm under
Senate Bills 1437 or 775.
45
DISPOSITION
The judgments are affirmed.
KRAUSE , J.
We concur:
BLEASE , Acting P. J.
HULL , J.
46