People v. Charles CA3 ( 2022 )

Filed 12/29/22 P. v. Charles 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C092841
Plaintiff and Respondent, (Super. Ct. Nos. 16FE014627,
17FE002458)
v.
DION PATRICK CHARLES et al.,
Defendants and Appellants.
THE PEOPLE, C093057
Plaintiff and Respondent, (Super. Ct. Nos. 13F07333,
14F02499, 16FE013142)
v.
DION PATRICK CHARLES,
Defendant and Appellant.
As six-year-old I.P. looked out the window of a car driven by her mother,
Angelina P., she saw defendant Adreiona Taylor in the car next to them yelling at I.P.’s
mother to pull over. Taylor fired a gun six times and I.P. was shot in both arms. At trial,
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the prosecutor established that Taylor was the shooter and her brother, defendant Dion
Patrick Charles was the driver. Charles and Taylor were found guilty of attempted
murder of Angelina P. and of discharging a firearm at an occupied vehicle. Taylor was
also found guilty of attempted murder of I.P. On appeal, both defendants challenge the
sufficiency of the evidence supporting their convictions. Charles also challenges the
admission and use of hearsay evidence, and the trial court’s response to the jury’s
questions regarding knowledge and intent.1 Both defendants raise various sentencing
issues, including that the trial court erred in imposing upper term sentences due to the
amendments to Penal Code section 1170, subdivision (b), made by Senate Bill No. 567
(2021-2022 Reg. Sess.). We agree with defendants in this last regard and shall remand
their case for resentencing and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, Angelina P. and Rene Cassiano were friends until Cassiano passed away
in April 2016. Prior to his death, Cassiano dated Taylor and when Angelina spent time
with Cassiano, Taylor was frequently present. Angelina and Taylor were friends on
social media. Angelina was also familiar with Charles, Taylor’s brother, because he lived
next door to Angelina’s grandmother.
The week before Cassiano died, Angelina gave him sensitive information about
Taylor, likely causing Cassiano to end his relationship with Taylor. Taylor was
apparently upset that Angelina contributed toward Cassiano’s funeral expenses. While
Angelina claimed, “there was never no beef” between Taylor and herself, Taylor did not
1 On February 2, 2021, we granted Charles’s motion to consolidate case Nos. C092841
and C093057.
2
want Angelina at the funeral and Facebook messages posted by Taylor suggest there was
a “beef.”2
Nearly a month after Cassiano’s funeral, Taylor posted the following on
Facebook:3 “It’s hella funny reading this shit in Rene’s old phones. MF be so fucking
fake and two faced,” “I gave him everything I could ever give a person. [¶] I took care
of him for three years mentally, emotionally, and physically. Can’t nobody say shit about
that. I could care less what the fuck anyone thinks of me . . . . [¶] So fuck you, fuck
you, fuck you again. Oh, and to the bitches I seen in the text messages, y’all are getting
it, so be on the lookout ‘cause this bitch is gonna -- is goin’ mainy[4] and . . . [m]e knows
that ain’t a pretty sight. So line em up ‘cause you bitches are getting knocked down.”
1. The Shooting
Angelina was a reluctant witness both immediately after the shooting and at trial.5
When officers interviewed her, some thought she was not forthcoming. Two detectives
testified that when they confronted Angelina at the hospital with this perception,
Angelina started to cry and expressed concern over being labeled a “snitch.” She said
Taylor had a big family who would want to retaliate and she was afraid. She admitted
2 For example, on May 14, 2016, the day of Cassiano’s funeral, Taylor corresponded
with someone over social media complaining that Cassiano’s family “did that sneaky shit
taking money from that weird bitch Angelina.”
3 On July 27, 2016, law enforcement preserved Taylor’s Facebook account, even though
it had been deleted that day. Taylor had photographs of Cassiano on her Facebook page
and she listed him both as her boyfriend and the love of her life.
4 “Mainy” is slang for “crazy.”
5 Angelina was held in custody to ensure her presence at trial. After initially taking the
stand, the trial court commented out of the presence of the jury, “[i]t’s obvious to me, and
I believe maybe to the jury . . . that she’s not being entirely honest.” After Angelina
testified, the trial court released her from custody but not from the subpoena; the court
admonished her to respond to any calls for additional testimony.
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she told her mother about the shooting and that she wanted her mother to report the
details to law enforcement officials for her.
The officers recorded their interviews with Angelina, many of which were played
to the jury. The following summarizes the evidence introduced in various forms; we
specify the manner of introduction when necessary.
Between 7:00 and 7:30 p.m. on July 26, 2016, Angelina and her six-year-old
daughter I.P. drove in Angelina’s orange Audi, in the Fruitridge area of South
Sacramento. I.P. was in the rear passenger side seat and the window next to her was
rolled down. As Angelina approached the stoplight at 44th Street and Fruitridge Road,
she saw Taylor seated in the front passenger seat of a white four-door sedan, which was
traveling on Fruitridge and turning onto 44th. Angelina repeatedly described the car as a
dirty, old “scraper” four-door sedan with chipped paint by the grill.6 Angelina turned
right onto Fruitridge, and the white car turned to follow, “driving crazy . . . right behind”
her. The white car pulled up alongside Angelina’s passenger side, the side where I.P.
was sitting. Although Angelina repeatedly said she did not see the driver’s face, she
described him as a black male, a “big guy,” wearing a white T-shirt with wavy hair and a
fade haircut. A light-skinned black female passenger, later identified by Angelina as
Taylor, leaned over the driver, whose seat was reclined, and repeatedly told Angelina to
pull over.
I.P. had her head out her window. She saw and heard a woman in the car next to
them scream her mother’s name and tell her to get out of the car. To I.P, the woman
sounded mad. I.P. described the woman’s face as having brown skin, with red dots like
6 Charles was the registered owner of a white Chevrolet Lumina. The vehicle’s front
passenger side fender was damaged. Charles let other people use this car.
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pimples, and dark brown hair.7 I.P. also saw that same woman in the newspaper and on
the television.
Angelina told one officer that as she turned onto Lawrence Drive, the white car
followed and fired gunshots. I.P. confirmed the shots came from the same car containing
the woman who had yelled at her mother. Angelina did not see a gun or a flash from the
white car. Although she did not see Taylor pull the trigger, Angelina expressed
confidence that Taylor was the shooter. Angelina was sure Taylor was in the vehicle, and
that it had to be the female who shot at them. Angelina also stated that her assailants
must have been aware that I.P. was in the car because I.P. had been looking out the
window just prior to the shooting.
As for the vehicle from which the shots were fired, Angelina described it as an
Oldsmobile or Buick. She recognized it as Charles’s car. She recognized the car because
she had been in the vehicle with Cassiano, who used to drive it. Because of her
familiarity with it, Angelina knew the car had bench seating in the front. Angelina used
to see the car parked near her grandmother’s house in the Oak Park neighborhood.
After shots were fired, I.P. complained of pain and a burning sensation; Angelina
pulled over near the intersection of 44th Street and 23rd Avenue. A citizen stopped to
help and ultimately drove them to the hospital. Angelina was certain the people in the
white car followed her again while she was en route to the hospital.
I.P. suffered gunshot wounds to both arms, and a bullet lodged itself in her left
arm. One of the bones in her right arm was shattered. I.P. underwent three surgeries to
address her injuries.
7 This testimony was consistent with I.P.’s forensic interview, conducted on January 12,
2017.
5
2. Immediate Investigation
Felicia G., Angelina’s mother, learned that I.P. was injured and went to the
hospital. When she arrived, Angelina was hysterical. At some point, Angelina told her
mother that I.P. was shot when they were driving on Fruitridge Road, and Taylor and her
brother Charles were responsible for the shooting. Felicia explained that Angelina and
Taylor had had an argument over social media and Felicia thought some of the messages
from Taylor were threatening. Angelina did not want to speak with the police herself
because she was worried about being a “snitch,” so Felicia reported her conversation with
Angelina to the police at the hospital that day, including Angelina’s identification of
Taylor as the shooter. However, the report did not reflect that she mentioned any
information about the driver.
Officers gathered evidence from Angelina’s orange Audi parked in front of the
entrance to the emergency room. The vehicle had bullet holes in the rear driver side
window, in the right passenger side door where I.P. sat, and in the metal trim above the
doors on the right passenger side, where the bullet lodged itself. One bullet struck just
above the passenger side rear door. Another bullet traveled through I.P.’s open window
and through the rear driver side window. Another bullet went through the rear passenger
door, through the rolled down window, and out the rear driver side door. Law
enforcement officers also found six spent .40-caliber shell casings in the eastbound lane
of Fruitridge Road.
Officers also gathered surveillance video from a Fox 40 studio near Stockton
Boulevard and Lawrence Drive, which recorded Angelina’s vehicle traveling eastbound
in the number one lane of Fruitridge Road and a white sedan approaching the passenger
side of Angelina’s vehicle in the number two lane on July 26, 2016, at 7:26 p.m.
3. Social Media
Two days after the shooting, two posts appeared on Angelina’s Facebook page.
The first was addressed to “Adreiona Celestina” or “Celecstina, Taylor”, and it said,
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“ ‘[Y]ou coward ass bitch. Where you at? You running now?! What you scared of, you
wankst (phonetic) enough to shoot my daughter, but now you nowhere to be found . . .
Can’t run for long.’ ” The second message said, “ ‘The six-year-old girl, [I.P.], that was
shot on July 26th at 7:30 p.m. was shot by Adreiona . . . Celecstina Taylor aka Noney. Is
[sic] there was also a male driver but doesn’t know his name yet.’ ” In other messages
Angelina sent to friends via Facebook messenger two days after the shooting, Angelina
identified Taylor as the one who had shot I.P. One of the messages stated, “ ‘She shot at
my car and shot my baby. I seen with my own eyes.’ ” That same day, Angelina sent
Detective Evelyn Madriago a text message explaining that “people [who] were talking”
identified Charles as the driver. At some point, Angelina also texted her father to say that
Charles was the driver.
Detective James Waters interviewed Angelina over the telephone on August 10,
2016. Angelina identified the driver as “Dion” after she explained that, although she did
not see the driver’s entire face, she saw his hair and his facial hair. She also recognized
the vehicle as Charles’s. Upon further reflection and after “putting everything together,”
she knew it was Charles. On cross-examination, Detective Waters clarified that Angelina
did not directly state that Charles was the driver, but she suggested it.
4. Geolocation Analysis
An expert testified regarding geolocation evidence obtained through cell phone
records, and explained that the records provided an approximation, not an exact location,
of the cell phone. Charles’s cell phone records revealed that two calls were made from
his cell phone at 7:17 and 7:20 p.m. The initial call was made from along Fruitridge
Road and Highway 99, in the South Sacramento area. The latter call indicated movement
toward Oak Park. At 7:49 p.m., the cell phone had moved such that it was utilizing a cell
tower that faces Highway 99 and is slightly south of Highway 50, which is just outside of
the coverage area for the intersection of Fruitridge Road and Lawrence Avenue. By
8:00 p.m., the cell phone moved slightly south of Highway 50. At 8:23 p.m. and
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8:30 p.m., Charles’s cell phone was in the Oak Park neighborhood, near the University of
California, Davis Medical Center. Afterward, the phone moved north and almost out of
Sacramento County. The phone then traveled into the Oroville area in Butte County.
After that point, the phone remained in Oroville and did not return to Sacramento until
the morning of July 30, 2016, at which time it was next to the sheriff’s department station
where detectives interviewed Charles.
5. Defendants’ Arrest and Criminal Charges
Law enforcement officers received anonymous tips that Charles and Taylor “had
fled” to Oroville. Although they lived in the Oak Park neighborhood of Sacramento,
officers learned that Charles and Taylor had family who lived in Oroville.
Three days after the shooting, officials learned that Charles’s Chevrolet Lumina
was parked at a family member’s home in Oroville. Four days after the shooting, on
July 30, 2016, detectives served search warrants at two residences in Oroville in
connection to the shooting.
While searching one residence in Oroville, an officer found a purse containing a
large sum of cash and identification and ATM cards in the name of Adreiona Taylor as
well as a bag containing men’s clothing and paperwork bearing Dion Charles’s name.
Charles’s white Lumina was parked at the other residence in Oroville. The right
front fender of the car was damaged and missing paint. Officers also found gunshot
residue on the headliner above the driver’s seat and on the headliner of the passenger’s
seat of that car.
Officers found and arrested Charles and Taylor at the first residence; Charles was
located inside a parked boat. Officers confiscated the LG flip cell phone that Charles
possessed when he was taken into custody.
The same day Charles was arrested, Detective Kimberly Mojica interviewed him.
Detective Mojica estimated Charles to be between 6 feet 5 inches and 6 feet 6 inches tall.
Charles initially denied owning a white Chevrolet Lumina. When pressed, Charles
8
admitted that he owned the vehicle, but he claimed he did not drive it on July 26, 2016,
because he was camping in Oroville from July 13 to 27. According to Charles, he last
saw the Lumina at his mother’s home on July 28, 2016. When asked how the Lumina got
to the home in Oroville, Charles said he did not know and claimed it was there when his
girlfriend drove him to Oroville on July 29. Throughout the interview, Charles gave
inconsistent explanations about his whereabouts on the day of the shooting and ensuing
days. Similarly, Charles made conflicting statements about the Lumina. Nonetheless, the
last thing Charles said was that he did not drive his Chevrolet Lumina on Fruitridge Road
at the time of the shooting.
Detectives Madriago and Mojica also interviewed Taylor. When Detective
Madriago showed Taylor photographs of Cassiano and Angelina, she claimed she did not
know them. Taylor similarly claimed she was unfamiliar with Charles’s Chevrolet
Lumina when shown a photograph.
Taylor and Charles were each charged with attempted murder of Angelina (count
two) (Pen. Code, §§ 664/187, subd. (a))8 and discharging a firearm at an occupied vehicle
(count three) (§ 246). For each of these charges, the prosecution also alleged Charles
personally used a firearm during the commission of the offenses within the meaning of
section 12022. In count two, the prosecution alleged Taylor personally and intentionally
discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c). In
count three, the prosecution alleged Taylor personally and intentionally discharged a
firearm causing great bodily injury to I.P., within the meaning of section 12022.53,
subdivision (d). The prosecution also charged Taylor with attempted murder of I.P.
(count one) (§§ 664/187, subd. (a)) and further alleged that Taylor personally and
8 Undesignated statutory references are to the Penal Code.
9
intentionally discharged a firearm within the meaning of section 12022.53, subdivisions
(b), (c) and (d).
The jury found Charles guilty of both counts, and found true the allegation that a
principal was armed with a firearm within the meaning of section 12022, subdivision
(a)(1). The jury found Taylor guilty of all counts and found true all of the firearm
allegations.
The trial court sentenced Taylor to an aggregate term of 11 years four months,
plus an indeterminate term of 25 years to life.
The trial court sentenced Charles to an aggregate term of 11 years eight months.9
This appeal followed.10
DISCUSSION
I
Sufficiency of the Evidence
Charles argues there was insufficient evidence that he was present for the shooting
and therefore both of his convictions must be reversed. Taylor does not challenge her
convictions for attempted murder of Angelina or for discharge of a firearm at an occupied
vehicle. Instead, she argues there was insufficient evidence she knew I.P. was in the car,
much less that she had specific intent to kill I.P., and her conviction for attempted murder
of I.P. must be reversed. We are not persuaded.
“ ‘ “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
9 The trial court also sentenced Charles in Sacramento County Superior Court case
No. 16FE013142 to a two-year prison term on a conviction for unlawful possession of
methamphetamine for sale (Health & Saf. Code, § 11378) to run concurrently with the
sentence in Sacramento County Superior Court case No. 16FE014627. No issues are
raised as to that conviction or sentence.
10 This case was fully briefed and assigned to this panel on August 15, 2022.
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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.” (People v. Lindberg (2008) 45 Cal.4th 1,
27.) 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.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) 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.” (People v. Kraft (2000) 23 Cal.4th
978, 1053.)’ ” (People v. Dalton (2019) 7 Cal.5th 166, 243-244.) Substantial evidence
includes circumstantial evidence and the related reasonable inferences. (People v. Holt
(1997) 15 Cal.4th 619, 669, citing People v. Raley (1992) 2 Cal.4th 870, 891.) That the
evidence might lead to a different verdict does not warrant a conclusion that the evidence
supporting the verdict is insubstantial. (Holt, at p. 669.) This standard is the same under
federal or California law. (People v. Hernandez (1988) 47 Cal.3d 315, 345-346.)
A. Attempted Murder
“Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee
(2003) 31 Cal.4th 613, 623.) Intent to unlawfully kill and express malice are, in essence,
“one and the same.” (People v. Saille (1991) 54 Cal.3d 1103, 1114.) Thus, to be guilty
of attempted murder, a defendant must harbor express malice toward the named victim—
a showing the assailant either desires the result or knows to a substantial certainty the
result will occur. (People v. Houston (2012) 54 Cal.4th 1186, 1217.) There is rarely
direct evidence of intent, but it may be inferred from all of the circumstances underlying
the intent, including the defendant’s actions. (People v. Smith (2005) 37 Cal.4th 733,
741.) While reasonable minds may differ on the resolution of whether the defendant had
the intent to kill, the reviewing court’s “sole function is to determine if any rational trier
11
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
(People v. Lashley (1991) 1 Cal.App.4th 938, 946.)
The doctrine of transferred intent does not apply to attempted murder. (People v.
Smith, supra, 37 Cal.4th at pp. 739-740.) “To be guilty of attempted murder, the
defendant must intend to kill the alleged victim, not someone else.” (People v. Bland
(2002) 28 Cal.4th 313, 328.) Whether the defendant acted with specific intent to kill
“must be judged separately as to each alleged victim.” (Id. at p. 331.) Accordingly, the
prosecution had to prove that defendants purposefully shot at I.P. and Angelina, with
express malice as to each person, in order to establish the requisite state of mind for their
respective convictions for attempted murder.
1. Defendant Taylor
Taylor claims there was no direct evidence and very little circumstantial evidence
she knew I.P. was in the car, and even less evidence to support an inference that Taylor
had any intent to harm I.P. Taylor asserts the prosecutor’s closing argument effectively
conceded there was insufficient evidence to support the theory that Taylor specifically
intended to kill I.P. when she instead argued Taylor inadvertently shot I.P. when she
missed her intended target: Angelina. Without alleging prosecutorial misconduct, Taylor
essentially argues that the prosecutor put forth a “kill zone” theory of liability, without
the corresponding instructions on that theory.11 Naturally, the People disagree.
a. Additional Background
The prosecutor argued during closing argument:
11 Taylor also argues that even if the prosecution had requested kill zone instructions, the
evidence would not support such a request. We need not address this argument, however,
as requirements of ripeness “ ‘prevent[] courts from issuing purely advisory opinions, or
considering a hypothetical state of facts in order to give general guidance rather than to
resolve a specific legal dispute’ [citation].” (In re Joshua S. (2007) 41 Cal.4th 261, 273.)
12
“So the first element is that [Taylor] took a direct but ineffective step towards
killing [I.P.] . . . [¶] And the second is that the defendant intended to kill [I.P.]
[¶] . . . [¶] . . . But when you’re looking at the first element, did [Taylor] take a direct but
ineffective step towards killing [I.P.]? The evidence . . . shows that she fired six times at
the car with [I.P.] in it. That’s a direct but ineffective step. Firing one time is a direct but
ineffective step for killing somebody because a firearm is designed to kill. That’s the
purpose of a firearm. You don’t shoot someone to hurt them. You don’t shoot someone
or shoot near someone to say hello. You don’t control what impact that bullet has on a
body once it leaves a gun. You shoot someone to kill them. And that’s common sense.
“And the direct step that she took was shooting six times. And we know she got
her twice. . . . [¶] . . . [¶] But we know from common sense, when you shoot at someone
six times, again, you are not trying to hurt them, you’re certainly not saying hello. Okay.
That is just common sense. [¶] And we know that [Taylor] could see [I.P.] We know
that. The window was down. . . . [¶] . . . [¶] She certainly knew [I.P.] was in the back of
the car when she fired six times. She didn’t care who she was shooting. She was
intending to kill both of those people because she had no control over where those bullets
were going.”
During a break in the prosecutor’s argument the parties discussed whether the
prosecutor was relying on a kill zone theory of liability; the prosecutor affirmed she was
not.
The prosecutor continued her closing argument:
“[L]ike we talked about earlier, when [Taylor] opened fire to that car, she intended
to kill everyone in it. [¶] And we can look, and the law says that when you fire at a car,
knowing that there’s more than one person in it, your intent can go to all of them. It goes
to all of the people in the car. [¶] Because like I said earlier, you can’t pick and choose.
When you unload a firearm into a car, you don’t—once that bullet’s gone and out of that
gun, you don’t get to pick and choose who it hits. [¶] This certainly isn’t a case where
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[Taylor] was saying, ‘Don’t worry, [I.P.], I’m not trying to kill you, I’m only trying to
kill your mom,’ right? She’s shooting into the car, not caring. Because she just wants to
kill whoever’s in that car. Even though we know the real beef is with Angelina.”
b. Discussion
Contrary to Taylor’s claim, there was sufficient evidence to support a conclusion
that Taylor saw I.P. in the car, and thus harbored the specific intent to kill her as well as
Angelina. Angelina opined that people in the white car must have seen I.P. because I.P.
was looking out of the window before the shots were fired. There was ample evidence to
support this inference. The white car drove along the passenger side of Angelina’s car,
where I.P. was sitting. Angelina saw Taylor lean over from the passenger side of the
white car, over the reclined driver, to yell out of that driver side window at Angelina.
Angelina’s ability to see Taylor’s actions of leaning over the driver strongly suggest that
Taylor was close enough to Angelina’s car such that she could have, and likely did, see
I.P. I.P. testified she stuck her head out of the window and saw and heard Taylor’s angry
demand for Angelina to pull over. She saw Taylor clearly and long enough to be able to
describe her hair and skin color, including the fact that she had red, pimple-like marks on
her face. A reasonable inference from these facts is that Taylor saw I.P. prior to the
shooting, and thus knew of I.P.’s presence in the car prior to firing the gun six times. (Cf.
People v. Booker (2011) 51 Cal.4th 141, 178 [inference that the defendant was aware of
the presence of a baby prior to setting fire to the apartment was reasonable where the
defendant told the police that he had heard a baby, somewhere, crying that night and a
playpen was next to the victim’s bloodstained bed]; see also People v. Chinchilla (1997)
52 Cal.App.4th 683, 691 [one shot could support a conviction on two counts of attempted
murder because it was reasonable for the jury to infer, from testimony by one officer that
she was crouched behind but above the other, and was visible to the defendant].)
Although Taylor argues there is insufficient evidence of her specific intent to kill,
again, we disagree. Given the reasonable inference that Taylor saw I.P. prior to shooting,
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and still fired six shots into the side of the car where I.P. was sitting, many of which
entered through I.P.’s door hitting and shattering one of her bones, a trier of fact
reasonably could have found that Taylor was substantially certain that I.P. would be
killed when Taylor fired the weapon. That the bullets did not actually kill I.P., or hit
Angelina, does not undermine the jury’s finding regarding Taylor’s intent as to I.P. That
Taylor had no particular motive for shooting I.P. is not dispositive, as motive is not an
element of the crime of attempted murder. (People v. Houston, supra, 54 Cal.4th at
p. 1218.)
We also disagree with Taylor’s argument that the prosecutor’s initial closing
argument effectively conceded an inability to prove specific intent to kill and asked the
jury to disregard that element of the offense. The prosecutor specifically argued that the
evidence demonstrated Taylor’s efforts to target I.P. and Angelina with a specific intent
to kill when Taylor chose a firearm as her weapon then fired six shots in the direction of
I.P. (who was visible) and Angelina. The prosecutor argued, “This certainly isn’t a case
where [Taylor] was saying, ‘Don’t worry, [I.P.], I’m not trying to kill you, I’m only
trying to kill your mom,’ right? She’s shooting into the car, not caring. Because she just
wants to kill whoever’s in that car. Even though we know the real beef is with
Angelina.” Contrary to Taylor’s claim, this argument conveys to the jury the
prosecution’s theory that Taylor had specific intent to kill both I.P. and Angelina but
would have been satisfied if either goal was accomplished. “The act of firing toward a
victim at a close, but not point blank, range ‘in a manner that could have inflicted a
mortal wound had the bullet been on target is sufficient to support an inference of an
intent to kill . . . .’ [Citation].” (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690;
see also People v. Houston, supra, 54 Cal.4th at p. 1218.) We conclude the prosecutor
urged the jury to find Taylor had specific intent to kill I.P.
More importantly, the trial court instructed the jury that specific intent to kill I.P.
was required to find Taylor guilty of the attempted murder of I.P.; the jury was not
15
instructed on the kill zone theory under CALCRIM No. 600. CALCRIM No. 600, as
instructed, states in part: “To prove that a defendant is guilty of attempted murder, the
People must prove that: [¶] 1. The defendant took at least one direct but ineffective step
toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that
person. [¶] A direct step requires more than merely planning or preparing to commit
murder or obtaining or arranging for something needed to commit murder. A direct step
is one that goes beyond planning or preparation and shows that a person is putting his or
her plan into action. A direct step indicates a definite and unambiguous intent to kill. It
is a direct movement toward the commission of the crime after preparations are made. It
is an immediate step that puts the plan in motion so that the plan would have been
completed if some circumstance outside the plan had not interrupted the attempt.” We
presume the jury followed these instructions. (See People v. Edwards (2013) 57 Cal.4th
658, 764 [presuming jury will follow instruction that statements of attorneys are not
evidence]; People v. Bryden (1998) 63 Cal.App.4th 159, 184 [“Further, the court
instructed the jury that questions and statements by the attorneys do not constitute
evidence, and the jury is presumed to follow the court’s instructions”].) Taylor has
provided no basis to conclude otherwise.
In sum, there was sufficient evidence to support the verdict of attempted murder of
I.P. and there is no reason to conclude the prosecutor’s statements in her initial closing
argument conceded otherwise.
2. Defendant Charles
Charles argues the prosecution’s evidence failed to connect him to the shooting.
He argues there was: insufficient evidence that he was the driver when he lent his car to
others; Angelina provided only a generalized description of the driver and repeatedly
stated she did not see the driver’s face; and no ballistic or forensic evidence supported the
conclusion that he participated in any way. He contends that cell phone tower evidence is
insufficient to connect him to the shooting because it only registered his approximate
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locations within a five-mile radius, and no other independent evidence suggested he was
present at the scene. He argues the prosecution’s evidence was limited to speculative
connections between Charles and the shooting based on the fact that he was Taylor’s
brother and the driver was identified as a black man. Charles further argues even if he
was present, there was insufficient evidence of his guilt either as a direct perpetrator or
under a theory of aiding and abetting.
The People do not dispute that Charles was never identified as the driver. Instead,
the People argue the evidence, and the inferences drawn from it, support his convictions
under an aider and abettor theory. We agree with the People.
An aider and abettor is one who acts “with knowledge of the criminal purpose of
the perpetrator and with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560,
italics omitted.) “[P]roof of an attempt by a direct perpetrator is sufficient for purposes of
aiding and abetting liability. If a direct perpetrator is thwarted and guilty only of an
attempt, an aider and abettor may still be guilty of aiding and abetting the attempt.”
(People v. Perez (2005) 35 Cal.4th 1219, 1226, italics omitted.) A defendant’s presence
at the scene of the crime, companionship, and conduct before and after the offense are
factors which may be considered in making the determination of whether they aided and
abetted the crimes. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Here, virtually all of these factors are present. First, there is substantial evidence
that Charles’s car was used to commit the shooting. To law enforcement, Angelina
consistently stated that the white car was a dirty, old “scraper” four-door white sedan
with chipped paint by the grill—an Oldsmobile or Buick. Although the likely candidate
was actually Charles’s Lumina, any impeachment value in the discrepancy between the
Chevrolet model Angelina identified and the model Charles owns is minor given the
other factors connecting the car involved in the shooting to Charles. Specifically,
Angelina said she recognized the car as belonging to Charles. She was familiar with the
17
car because she had been inside it with Cassiano. She knew the car involved in the
shooting had a bench seat in the front, which was the same for the Lumina. The Lumina,
a dirty, white, four-door sedan with a damaged front end, otherwise matched the
description of the car involved in the shooting.
There was also substantial evidence that Charles was present and drove the car
during the shooting. Angelina told her mother at the hospital that Charles and Taylor
were responsible for the shooting, but said she was not going to tell the police out of fear
of being labeled a “snitch.”12 She also texted her father that Charles was the driver. She
told police the driver was a bigger, light-skinned black male with wavy hair and a fade
haircut. Charles was approximately 6 feet 5 inches to 6 feet 6 inches tall. “[P]utting
everything together,” Angelina later told police that Charles was the driver. In addition,
the cell phone tower evidence placed Charles’s cell phone in the area before, during and
after the shooting. Indeed, consistent with Angelina’s claim that the white car followed
her to the University of California, Davis medical facility, Charles’s cell phone was
detected by a cell phone tower near that medical facility by 7:49 p.m. Charles’s cell
phone continued to connect with cell towers on the path to Oroville, where Charles and
his sister were found four days later.
Substantial evidence also supports the conclusion that Charles was not merely
present for the shooting but aided and abetted Taylor in the commission of the offense.
Angelina said the driver had his seat back and that Taylor leaned over him to yell at
Angelina to pull over. The driver then “turned crazy” in order to get behind Angelina’s
car, after which shots were fired. Gunshot residue was found on the driver’s and
12 We have no power on appeal to reweigh the evidence or judge the credibility of
witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) Thus, we do not accept
Charles’s invitation to consider whether inconsistencies in witness testimony, such as
Felicia’s admission that her statements given at the hospital do not mention the driver, as
significant enough to undermine the testimony.
18
passenger’s side headliner. Although it was impossible to tell when that residue was left
there, it is reasonable to infer that it was deposited there as Taylor leaned over Charles to
fire the weapon at least six times out of his window. The inference that Charles knew of
the presence of the gun under those circumstances is inescapable, and Charles’s
participation in maneuvering the car to get close to Angelina’s car helped Taylor
facilitate the shooting. The jury had sufficient evidence to conclude Charles shared
Taylor’s intent to kill Angelina. Indeed, Charles then fled to Oroville, from which action
the jury was allowed to infer his consciousness of guilt. Following his arrest, he gave
multiple inconsistent statements to the police. All of this amounts to sufficient evidence
for the jury to have found Charles guilty of the crimes of attempted murder and shooting
at an occupied vehicle.
II
Testimony Regarding Text Message
Charles argues the trial court prejudicially erred in allowing Detective Madriago to
testify to the contents of a text message she saw, sent from Angelina to her father, in
which Angelina said that Charles drove the car during the shooting. Because this
evidence was double hearsay and was admitted without the proper foundation, he argues,
the trial court committed error under state and federal law. We disagree.
A. Additional Background
Prior to trial, defense counsel moved to dismiss the case pursuant to California v.
Trombetta (1984) 467 U.S. 479, 488-489, in light of missing or destroyed evidence:
proof of text messages, about which Detective Madriago testified at the preliminary
hearing. Although the motion referenced a particular text from Angelina to Detective
Madriago, at the hearing on the motion, the parties discussed the fact that multiple text
messages formerly in Detective Madriago’s possession were missing. The prosecutor
represented that Detective Madriago transferred to a new unit, received a new phone, and
could no longer locate the screenshots of the text messages. The prosecutor assured the
19
court and defense counsel she would continue the search for the communications, but
noted that Detective Madriago would be available to testify as to the contents of those
messages. The trial court denied the motion to dismiss, finding there was no bad faith on
the part of the prosecution.
During trial, the prosecutor asked Detective Madriago whether she saw text
messages sent by Angelina to a family member. Defense counsel objected on grounds of
both hearsay and lack of foundation. The court commented: “[I]t would be good if we
knew to whom those were sent. I mean, I think it’s being offered for rebuttal for -- her
testimony was impeached so many times that I think any reference by her to who the
driver was, to whoever it was, would be inadmissible, but it would be helpful to find out
who those persons were.”
Detective Madriago then testified that the text message she viewed was sent by
Angelina to her father, and in the text message Angelina identified Charles as the driver.
Next, Detective Madriago testified that she confirmed that the message came from
Angelina’s phone. In fact, Detective Madriago had Angelina’s father open the contact on
his phone and show her that it was associated with Angelina’s phone number. Detective
Madriago then testified that Angelina had identified “Dion” as the driver.
B. Analysis
On appeal, Charles challenges the admissibility of the text message on the same
two grounds as he did at trial: lack of foundation and hearsay. We first address Charles’s
hearsay claim, in which he contends the content of the text message should have been
excluded as inadmissible double hearsay. He maintains Detective Madriago’s testimony
about the text message did not meet any exception to the hearsay rule and carried no
indicia of reliability. The People disagree, arguing the statement qualified as a prior
inconsistent statement and was properly admitted. We agree with the People.
Initially, we note that contrary to Charles’s claim, Detective Madriago’s testimony
about the content of the text message is not double hearsay—she did not relay what
20
Angelina’s father said Angelina wrote. Instead, Detective Madriago viewed the message
herself, as if Angelina had texted the message to her. Thus, we need only be concerned
with one layer of hearsay. (Cf. People v. Anderson (2018) 5 Cal.5th 372, 403 [explaining
double hearsay appears when a witness testifies to what another person said the defendant
told that other person].)
We review evidentiary rulings for an abuse of discretion, and a trial court’s
decision to admit or exclude evidence will not be disturbed on appeal unless the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice. (People v. Thomas (2011) 51 Cal.4th 449,
485.)
Hearsay is defined as “evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) “Except as provided by law, hearsay evidence
is inadmissible.” (Evid. Code, § 1200, subd. (b).) As relevant here, one such exception
to the hearsay rule is commonly referred to as the prior inconsistent statement exception.
(Evid. Code, § 1235.)
Evidence Code section 1235 authorizes the admission of a witness’s prior
inconsistent statement into evidence when the statement is inconsistent with his or her
testimony at the hearing and is in compliance with Evidence Code section 770. (Evid.
Code, § 1235.) Under Evidence Code section 770, an inconsistent statement is not
admissible unless the witness either testified and was given “an opportunity to explain or
to deny the statement” or “has not been excused from giving further testimony in the
action.” (Evid. Code, § 770, subds. (a) & (b).) We conclude these requirements were
met in the instant case.
Angelina’s text message in which she identified Charles as the driver was
inconsistent with her testimony that she never saw or identified the driver; she only
21
logically assumed Charles was the driver.13 In addition, as the People note, Evidence
Code section 770 was satisfied. This section expressly provides two alternative methods
for presenting a prior inconsistent statement: “[E]ither that the declarant be provided an
opportunity to explain or deny the statement or that he [or she] be kept available for
further testimony.” (People v. Freeman (1971) 20 Cal.App.3d 488, 495.) Here, the
prosecutor kept Angelina available for recall. The trial court specifically informed
Angelina that, while she apparently finished her testimony, she was not released from the
subpoena, was subject to recall, and police would search for her if she did not respond to
a subsequent call for additional testimony. Thus, the text message statement was
properly admitted as a prior inconsistent statement and the jury was left to choose which
version to believe or reject both versions altogether.
Charles finally argues the testimony was not sufficiently trustworthy to be
admissible. Trustworthiness is not an element of the hearsay exception for prior
inconsistent statements (Evid. Code, § 1235) but, like most types of evidence, a matter
for the jury to weigh. (People v. Anderson (2018) 5 Cal.5th 372, 404.) Indeed,
permitting inconsistent statements to be used as substantive evidence, so long as the
requirements of Evidence Code section 770 were satisfied, largely eliminates “ ‘the
dangers against which the hearsay rule is designed to protect’ ” because the declarant
may be questioned about the statement, the trier of fact can observe the demeanor of the
declarant, and the proponent of the inconsistent statement is protected against the
“ ‘turncoat’ ” witness who changes his story on the stand. (People v. Brown (1995)
35 Cal.App.4th 1585, 1596-1597.) Thus, we find Charles’s argument that the text
message lacked trustworthiness fails.
13 Indeed, the trial court essentially acknowledged the inconsistency when it pointed out
the frequency of Angelina’s impeachment.
22
We next address Charles’s contention that the prosecution failed to introduce a
sufficient foundation to authenticate the text message. He complains the prosecution did
not present the actual text or even a screenshot of the text, but rather introduced the
content of the text through Detective Madriago’s testimony. He claims that in admitting
this testimony despite troubling concerns about authenticity, the trial court impinged on
his right to due process and a fair trial. The People respond the trial court implicitly
found the message was authenticated sufficiently to admit the testimony and allow the
jury to consider its weight.
Evidence Code section 1521 provides, in part: “The content of a writing may be
proved by otherwise admissible secondary evidence.” (§ 1521, subd. (a).) “Once the
proponent of the evidence establishes its authenticity, section 1521 requires exclusion of
secondary evidence only if the court determines (1) ‘[a] genuine dispute exists
concerning material terms of the writing and justice requires the exclusion’ or (2)
‘[a]dmission of the secondary evidence would be unfair.’ ” (People v. Skiles (2011)
51 Cal.4th 1178, 1188, quoting Evid. Code, § 1521, subd. (a)(1) & (2).) Oral testimony
may be admissible to prove the content of a writing if certain conditions are met,
including, as relevant here, “the proponent does not have possession or control of a copy
of the writing and the original is lost or has been destroyed without fraudulent intent on
the part of the proponent of the evidence.” (Evid. Code, § 1523, subd. (b).; see Meeks v.
AutoZone, Inc. (2018) 24 Cal.App.5th 855, 863.)
While the scope of the trial court’s discretion is exceedingly broad, the scope of
the foundational question presented is quite narrow. “The foundation requires that there
be sufficient evidence for a trier of fact to find that the writing is what it purports to be,
i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is necessary is
a prima facie case. ‘As long as the evidence would support a finding of authenticity, the
writing is admissible. The fact conflicting inferences can be drawn regarding authenticity
23
goes to the document’s weight as evidence, not its admissibility.’ ” (People v. Goldsmith
(2014) 59 Cal.4th 258, 267.)
This secondary evidence rule does not “excuse[] compliance with Section 1401
(authentication).” (Evid. Code, § 1521, subd. (c).) “[T]o be ‘otherwise admissible,’
secondary evidence must be authenticated.” (People v. Skiles, supra, 51 Cal.4th at
p. 1187; see Evid. Code, § 1401, subd. (b) [“Authentication of a writing is required
before secondary evidence of its content may be received in evidence”].) “[T]he
proponent’s burden of producing evidence to show authenticity ([Evid. Code, ]§ 1400) is
met ‘when sufficient evidence has been produced to sustain a finding that the document is
what it purports to be. [Citation.]’ [Citation.] The author’s testimony is not required to
authenticate a document ([Evid. Code, ]§ 1411); instead, its authenticity may be
established by the contents of the writing ([Evid. Code, ]§ 1421) or by other means
([Evid. Code, ]§ 1410 [no restriction on ‘the means by which a writing may be
authenticated’]).” (People v. Valdez (2011) 201 Cal.App.4th 1429, 1435.)
“Circumstantial evidence, content and location are all valid means of authentication.”
(People v. Gibson (2001) 90 Cal.App.4th 371, 383.) The fact conflicting inferences can
be drawn regarding authenticity does not make evidence inadmissible. (Jazayeri v. Mao
(2009) 174 Cal.App.4th 301, 321.) After the trial court makes a preliminary finding of
authenticity by sufficient evidence, the weight afforded to the document becomes a
question of fact for the jury. (Valdez, at pp. 1434-1435.)
Charles argues the evidence does not meet admissibility requirements under the
Evidence Code because Detective Madriago did not indicate that a record of the specific
incriminating text message had been lost, destroyed, out of her possession or control or
was otherwise unavailable. (See Evid. Code, § 1523.) The People do not respond to this
24
point.14 Neither party address the relevancy of the pretrial discussion regarding the
disappearance of screenshots of text messages where the trial court recognized
documents were lost through no bad faith on the part of the prosecutor and was satisfied
by the prosecutor’s assurance that the detective would be available for cross-examination.
As multiple text messages from the same detective were the subject of that pretrial
discussion, it appears this particular text message was included in that discussion and
resolution. Even if it was not specifically included, Taylor does not elaborate how or
why the foundation found satisfactory for some of the missing text messages would not
also apply to this specific text message.
There was sufficient evidence to support a preliminary finding of authenticity.
Detective Madriago testified that she visually confirmed the text message she saw from
Angelina to her father was sent from Angelina’s phone number. Angelina’s father
showed Detective Madriago that the text message he received from Angelina was, in fact,
associated with Angelina’s phone number. Detective Madriago also described the
content of the text. Because the prosecution presented adequate evidence to support a
finding the text messages were what they purported to be—a communication from
Angelina—we conclude the trial court did not abuse its discretion in admitting the
evidence for the jury to ultimately decide on its weight. (See People v. Perez (2017)
18 Cal.App.5th 598, 620-622.)
Because we conclude there was no error in admitting the testimony, we need not
address the parties’ harmless error analysis.
14 The parties leave this court to scour the record in search of the basis for the
evidentiary ruling. That is not our role. (See Neurelis, Inc. v. Aquestive Therapeutics,
Inc. (2021) 71 Cal.App.5th 769, 797.)
25
III
Jury Instructions
Charles asserts that the trial court “failed to clear up the instructional confusion
expressed by the jury and thus violated the trial court’s duty under section 1138.” As a
result, Charles contends, the jury had no meaningful understanding of how to assess
whether the evidence proved that he had the requisite knowledge and intent for the crimes
charged or simply assisted in Taylor’s escape and detection prevention. We disagree.
A. Additional Background
The jury was instructed on the general principles of aiding and abetting through
CALCRIM Nos. 400 and 401.
During deliberations, the jury asked the following: “401. # 2 Aiding & Abetting
[¶] (1) The defendant knew that the perpetrator intended to commit the crime; Is there a
timeframe, ex. before, during, after? What is the definition of ‘intended’? [¶] (2) Do we
need to agree to all 4 points to find guilty?”
Charles’s counsel requested the court respond to this question by informing the
jury it must unanimously agree that all four parts have been proven beyond a reasonable
doubt. She also requested the court give CALCRIM No. 3500 regarding unanimity
regarding the jury’s decision on intent; i.e. “The jury must unanimously agree that the
intent required for aiding and abetting occurred before or during the crime committed by
the perpetrator. The jury must all agree as to which act constituted the intent.” The
prosecutor disagreed that unanimity was required.
The court responded to the jury’s questions as follows: “The aiding and abetting
has to occur before or during the commission of the crime by the perpetrator. [¶]
‘Intended’ is one of those words that is not specifically defined in the instructions.
Accordingly, the everyday, ordinary meaning should be used. (See CALCRIM 200.) [¶]
Yes, the District Attorney has to prove all four elements of aiding and abetting beyond a
reasonable doubt.”
26
Thereafter, the jury sent a subsequent question: “401. On the aiding & abetting
qualifications, the 2nd part stating ‘Defendant knew perp. intended to commit the crime.’
Does this refer to prior to the crime being committed? Does the 3rd part reflect the
‘intention’ aspect of the 2nd part listed above?”
The jury also sent another question: “Can you show intent during a crime or does
it need to be before? [¶] In relation to 401 #2.”
Charles’s counsel requested the following response to these questions: “The crime
of attempted murder is a specific intent crime. As a result, the prosecution must prove
that an aider and abettor shared the perpetrator’s specific intent and that he knew the full
extent of the perpetrator’s criminal purpose and gave aid or encouragement with the
intent of facilitating the perpetrator’s commission of the crime. The jury must find that
an aider and abettor shared the perpetrator’s specific intent. In this case, that would mean
that the aider and abettor shared the perpetrator’s specific intent to kill. [¶] If the aider
and abettor formed the intent to facilitate after the shooting, then the aider and abettor can
only be guilty as an accessory after the fact. [¶] 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.”
The prosecutor objected to defense counsel’s proposed response, stating that it
provided the jury more than it had asked and the intent portion related only to the crime
of attempted murder and not the offense of discharging a firearm at an occupied vehicle
under section 246.
Defense counsel responded that it was clear the jury was struggling with the issue
of intent as it applies to aider and abettor liability and the charged crimes include
attempted murder, which is a specific intent crime, as well as the section 246 general
intent offense. Defense counsel argued that her proposal provided an accurate statement
27
of the law and answered the jury’s question, and that it would be error for the court to fail
to provide the jury a correct statement of the law or fail to answer its question.
The court ultimately responded to the jury’s questions: “In response to Question
No. 3: [¶] If you are asking whether the aider and abettor must know of the perpetrator’s
intent to commit a crime before it is committed, the answer is no. Knowledge that the
perpetrator intends to commit the crime may be acquired during the commission of the
crime. The third of [sic] element of CALCRIM 401 states that, with knowledge of the
perpetrator’s intentions, defendant formed the intent to aid and abet the perpetrator in the
commission of the crime before or during its commission.
“In response to Question No. 4: [¶] The knowledge element as set forth in the
second element of CALCRIM 401 can be formed during the commission of the crime.”
Thereafter, the jury asked for a transcript of the closing statements of both the
prosecutor and Charles’s counsel. The court denied that request on the basis that closing
arguments are not evidence.
B. Analysis
When a jury asks a question after retiring for deliberation, section 1138 imposes
upon the trial court a duty to provide the jury with information the jury desires on points
of law. (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.) Where the original
instructions are themselves full and complete, the court has discretion under section 1138
to determine what additional explanations, if any, are sufficient to satisfy the jury’s
request for information. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1213.) Indeed,
comments diverging from the standard instructions are often risky. (E.g., People v. Lee
(1979) 92 Cal.App.3d 707, 716; People v. Beardslee (1991) 53 Cal.3d 68, 97.) Because
Charles does not contend that the original instructions were not full and complete, the
trial court’s decision whether to provide further instruction in response to a jury question
is reviewed for abuse of discretion, and “the legal accuracy of any supplemental
28
instructions provided” is reviewed de novo. (People v. Franklin (2018) 21 Cal.App.5th
881, 887; id. at p. 887, fn. 4; Eid, at p. 882.)
Charles complains that the trial court failed to clear up the jury’s confusion when
it was clear at least one juror was “struggling with the elements of knowledge and intent
in the aider and abettor instructions.” He faults the trial court’s direction to use the
everyday meaning of intent, arguing it provided “no help.” When the jury submitted two
more questions regarding the timing of the aider and abettor’s knowledge and the
relationship between knowledge and the intent to aid, Charles argues, the trial court again
failed to “clear up the confusion.” We note that Charles does not challenge the legal
accuracy of the trial court’s responses to the questions. Rather, his complaint is that they
did not go far enough—like those responses suggested by defense counsel.
We find no error. The trial court answered the jury’s question regarding the
definition of intent. The word intent is not a technical word; it is a common word which
simply means design or purpose. (See Merriam-Webster’s Collegiate Dictionary (11th
ed. 2006) p. 651, col. 1.) Indeed, there is nothing in the Penal Code that suggests that the
Legislature contemplated a scientific, technical or particular mental limitation in the use
of the word intent. Because the term intent is commonly understood, it was within the
court’s sound discretion to provide this particular answer in response to the jury’s
question. (See People v. Waidla (2000) 22 Cal.4th 690, 745-746; see also People v.
Anderson (1966) 64 Cal.2d. 633, 639 [“when terms have no technical meaning peculiar to
the law, but are commonly understood by those familiar with the English language,
instructions as to their meaning are not required”].)
Additionally, the jury’s questions sought clarification on the timing of Charles’s
knowledge of Taylor’s intent to commit the charged offenses necessary for aiding and
abetting liability purposes. Consistent with the elements of aiding and abetting, the trial
court instructed the jury that knowledge had to be acquired either before or during the
commission of the crime, which the trial court instructed through both CALCRIM
29
No. 401 and in its responses to the jury’s questions. This was legally correct. Charles
argues that a more complete answer was required in order to tell the jury that mere
presence coupled with knowledge, or an intent to assist after the fact were insufficient to
prove him culpable as an aider and abettor. But as the prosecutor noted, such responses
would have gone beyond the scope of the questions asked; the jury never indicated these
latter concerns were sources of confusion. Nor did the court plant the seed for such
confusion. In fact, CALCRIM No. 401 already informed the jury that mere presence was
insufficient to establish liability.
Accordingly, we find no error in the trial court’s responses to the jury’s questions.
IV
Cumulative Error
Charles contends that the judgment should be reversed based on the cumulative
prejudice of the court’s errors. However, we have determined that there was no error, so
no prejudice could accumulate. (People v. Vargas (2020) 9 Cal.5th 793, 839.)
V
Sentencing
Charles and Taylor raise a host of sentencing concerns. Charles first claims that
sentences imposed in two cases for which he was on probation must be vacated in light of
new legislation. We disagree that new legislation impacts the trial court’s ability to
sentence Charles in his two cases in which he violated probation. However, we agree
with both Charles and Taylor that new legislation calls into doubt the viability of their
respective upper term sentences, requiring us to remand the matter for a new sentencing
hearing. In light of this conclusion, we need not address any additional sentencing
concerns; Charles and Taylor may raise them at the new hearing.
A. Violation of Probation
Charles claims that Assembly Bill Number No. 1950 (2019-2020 Reg. Sess.),
effective January 1, 2021, requires this court to vacate his sentences in Sacramento
30
County Superior Court case Nos. 13F07333 and 14F02499. He claims that because he
was sentenced in 2020 on these cases and his cases are not yet final, we are required to
apply Assembly Bill No. 1950 retroactively to shorten his probation term from five years,
to two, thereby retroactively depriving the trial court of jurisdiction to revoke his
probation after passage of the two-year mark and rendering the revocation and
termination of his probation invalid. The People agree that Assembly Bill No. 1950
applies retroactively to any case not final as of the effective date, but disagree that the
ameliorative benefits of Assembly Bill No. 1950 apply to this case. The People contend
Charles’s probation was summarily revoked well before Assembly Bill No. 1950 came
into effect and the new legislation does not operate to retroactively invalidate any
revocation or tolling procedures under related statutes. We agree with the People.
1. Additional Background
In Sacramento County Superior Court case No. 13F07333, the prosecution
charged Charles with fleeing or attempting to elude a peace officer (Veh. Code, § 2800.2,
subd. (a)). On January 14, 2014, Charles pleaded no contest to the charge. On
January 21, 2014, the court suspended the imposition of judgment and sentence and
placed Charles on probation for five years. On August 1, 2016, the district attorney filed
a petition alleging a violation of Charles’s probation. On August 18, 2016, the court
revoked Charles’s probation. On September 25, 2020, the court found Charles in
violation of probation and sentenced him to a two-year term to run concurrently with the
sentence imposed in Sacramento County Superior Court case No. 16FE014627.
In Sacramento County Superior Court case No. 14F02499, the prosecution
charged Charles with the following offenses: in count one, unauthorized use of personal
identifying information of another (§ 530.5, subd. (a)); in counts two and three,
commercial burglary (§ 459); and in counts four through seven, obtaining personal
identifying information with intent to defraud (§ 530.5, subd. (c)(2)). On June 5, 2014,
Charles pleaded no contest to one count of burglary (§ 459) and the court sentenced
31
Charles to 180 days in jail and placed him on probation for five years. On August 1,
2016, the district attorney filed a petition alleging a violation of Charles’s probation. On
August 18, 2016, the court revoked Charles’s probation. On September 25, 2020, the
court found Charles in violation of probation and sentenced him to a two-year term to run
concurrently with the sentence imposed in Sacramento County Superior Court case
No. 16FE014627.
2. Analysis
Effective January 1, 2021, Assembly Bill No. 1950 amended section 1203.1,
subdivision (a) to limit the probation term for felony offenses to two years, except in
circumstances not present here. (Stats. 2020, ch. 328, § 2; People v. Lord (2021)
64 Cal.App.5th 241, 245.)
Generally, “where the amendatory statute mitigates punishment and there is no
saving clause, the rule is that the amendment will operate retroactively so that the lighter
punishment is imposed,” so long as the amended statute takes effect before the judgment
of conviction is final. (In re Estrada (1965) 63 Cal.2d 740, 748.) “This rule rests on an
inference that when the Legislature has reduced the punishment for an offense, it has
determined the ‘former penalty was too severe’ [citation] and therefore ‘must have
intended that the new statute imposing the new lighter penalty . . . should apply to every
case to which it constitutionally could apply’ [citation].” (People v. DeHoyos (2018)
4 Cal.5th 594, 600.)
We review de novo questions of statutory construction. (People v. Tran (2015)
61 Cal.4th 1160, 1166.) “Statutory construction begins with the plain, commonsense
meaning of the words in the statute, ‘ “because it is generally the most reliable indicator
of legislative intent and purpose.” ’ [Citation.] ‘When the language of a statute is clear,
we need go no further.’ ” (People v. Manzo (2012) 53 Cal.4th 880, 885.)
We conclude (as have all other appellate courts so far) that Assembly Bill
No. 1950 “applies retroactively to defendants who were serving a term of probation when
32
the legislation became effective on January 1, 2021; in such cases, the courts have acted
to reduce the length of their probation terms.” (People v. Faial (2022) 75 Cal.App.5th
738, 743, review granted May 18, 2022, S273840, citing e.g., People v. Greeley (2021)
70 Cal.App.5th 609, 627; People v. Czirban (2021) 67 Cal.App.5th 1073, 1095; People v.
Schulz (2021) 66 Cal.App.5th 887, 894-895; People v. Lord (2021) 64 Cal.App.5th 241,
244-246; People v. Sims (2021) 59 Cal.App.5th 943, 964; People v. Quinn (2021)
59 Cal.App.5th 874, 881-885.) This is largely because Assembly Bill No. 1950 is an
ameliorative change that decreases punishment. “With certain exceptions, the new law
limits the term of probation for a felony conviction to two years. While probation is not
considered punishment in the same way incarceration is, it is clear probation is ‘a “form
of punishment.” ’ ” (Lord, at p. 245.) In addition, there is no saving clause in Assembly
Bill No. 1950 “or other indication it should be applied prospectively only” (Lord, at
p. 245), and the legislative history demonstrates concern that current and future
probationers face unwarranted risks of incarceration due to the lengths of their probation
terms (People v. Sims, supra, 59 Cal.App.5th at p. 961).
We, however, are not persuaded that Assembly Bill No. 1950 invalidates a trial
court’s revocation and termination of a defendant’s probation where, as here, such actions
were properly taken before Assembly Bill No. 1950’s effective date. (See People v.
Faial, supra, 75 Cal.App.5th at p. 743, review granted [cases cited therein];15 Kuhnel v.
15 In granting review in People v. Faial, our high court noted that “[p]ending review, the
opinion of the Court of Appeal, which is currently published at 75 Cal.App.5th 738, may
be cited, not only for its persuasive value, but also for the limited purpose of establishing
the existence of a conflict in authority that would in turn allow trial courts to exercise
discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to
choose between sides of any such conflict. (See Standing Order Exercising Authority
Under California Rules of Court, Rule 8.1115(e)(3), Upon Grant of Review or Transfer
of a Matter with an Underlying Published Court of Appeal Opinion, Administrative
Order 2021-04-21; Cal. Rules of Court, rule 8.1115(e)(3) and corresponding Comment,
par. 2.)” (People v. Faial, supra, 75 Cal App.5th 738, review granted.)
33
Appellate Division of Superior Court (2022) 75 Cal.App.5th 726, 732, review granted
June 1, 2022, S274000; but see People v. Canedos (2022) 77 Cal.App.5th 469, review
granted June 29, 2022, S274244.)
The People argue the retroactivity of Assembly Bill No. 1950 does not help
Charles because the trial court summarily revoked Charles’s probation before Assembly
Bill No. 1950 became effective, and the summary revocation tolled Charles’s probation
under section 1203.2. Section 1203.2 provides that if there is “probable cause to believe
that the supervised person is violating any term or condition of the person’s supervision,”
the person may be rearrested and “the court may revoke and terminate the supervision of
the person if the interests of justice so require . . . .” (§ 1203.2, subd. (a).) Revocation
under this provision, “summary or otherwise, shall serve to toll the running of the period
of supervision.” (Ibid.)
The California Supreme Court addressed the nature of the tolling provision in
People v. Leiva (2013) 56 Cal.4th 498. It found the Legislature intended the tolling
provision “to preserve the trial court’s authority to hold a formal probation violation
hearing at a time after probation would have expired with regard to a violation that was
alleged to have occurred during the probationary period.” (Id. at pp. 514-515, italics
omitted.) The court explained that formal proceedings are not “ ‘to revoke probation, as
the revocation has occurred as a matter of law; rather, the purpose is to give the defendant
an opportunity to require the prosecution to prove the alleged violation occurred and
justifies revocation.’ [Citation.] . . . [Citation.] . . . Accordingly, a trial court can find a
violation of probation and then reinstate and extend the terms of probation ‘if, and only
if, probation is reinstated based upon a violation that occurred during the unextended
period of probation.’ [Citation.]” (Id. at pp. 515-516, fn. & italics omitted.)
Charles counters that Assembly Bill No. 1950 retroactively rendered his third year
of probation a nullity, and thus a revocation of probation could not have occurred during
that third year. (See People v. Canedos, supra, 77 Cal.App.5th at p. 480, review granted
34
[in cases where the defendant’s misconduct occurred outside of the maximum probation
term under Assem. Bill No. 1950, the violation did not “ ‘occur[] during the probationary
period’ ” as amended by the new statute and there is no justification for tolling the
probation term under § 1203.2, subd. (a)].) The People urge that such an argument goes
beyond the ameliorative benefit of Assembly Bill No. 1950 and would essentially create a
legal fiction that no violation occurred. We agree with the People that the amended
statute does not include any terms purporting to modify a trial court’s authority to revoke
and terminate probation due to a defendant’s violation of probation terms or conditions.
Nor did Assembly Bill No. 1950 undertake to amend section 1203.2 or section 1203.3—
the statutes that confer and address such authority. (People v. Faial, supra,
75 Cal.App.5th at p. 744, review granted.)
In 2016, Charles was in his third year of probation and Assembly Bill No. 1950
was not yet in effect. Charles’s probation had not expired under then-existing law when
the prosecutor alleged Charles violated the terms of his probation. The trial court had
jurisdiction to summarily revoke his probation, which it did in August 2016. This tolled
Charles’s probation under section 1203.2. Charles’s status on probation was essentially
frozen for the purpose of later prosecution for the alleged violation. (People v. Leiva,
supra, 56 Cal.4th at p. 515.)
Assembly Bill No. 1950 did not eliminate the trial court’s authority to revoke
Charles’s probation, given that the violation and revocation occurred when Charles was
actually on probation. Assembly Bill No. 1950 did not modify sections 1203.2 or 1203.3,
the provisions dealing with revocation of probation and tolling. “Had the Legislature
intended to overturn pre-2021 revocation and termination orders that were based on
violations committed while defendants were validly on probation, with the effect of
upending their properly executed sentences, we may assume the Legislature could have
demonstrated that intent through statutory language and would have at least mentioned
the matter in the various legislative analyses of the bill. It did not.” (People v. Faial,
35
supra, 75 Cal.App.5th at p. 745, review granted; cf. People v. Buycks (2018) 5 Cal.5th
857, 892 [Prop. 47 retroactively reduced a felony drug conviction to a misdemeanor, but
did not retroactively undo the defendant’s felony conviction for his failure to appear on
that original felony drug charge].) The fact that the trial court formally terminated
probation in 2020 and his appeal is pending after the effective date of Assembly Bill
No. 1950, does not change our conclusion. At all times while Charles’s probation was
tolled, the trial court retained the authority to determine whether there had been a
violation during probation. (People v. Leiva, supra, 56 Cal.4th at p. 515.)
The legislative history of Assembly Bill No. 1950 indicates the Legislature sought
to limit the risk of future violations (People v. Sims, supra, 59 Cal.App.5th at p. 961) but
not ignore violations and revocations that occurred during probationary periods prior to
Assembly Bill No. 1950 taking effect. (See People v. Faial, supra, 75 Cal.App.5th at
p. 747, review granted.) We conclude Assembly Bill No. 1950 does not retroactively
invalidate the trial court’s jurisdiction to revoke Charles’s grants of probation such that
his sentences on those cases must be vacated.
B. Section 1170
Charles and Taylor argue they are entitled to retroactive application of the
relatively recent amendments to section 1170. They argue factors in aggravation were
improperly considered when those factors were not proved beyond a reasonable doubt, as
the amended statute requires. On the other hand, Taylor argues that her youthfulness was
not considered to the degree required by the amended statute. As Charles was also a
youthful offender, this argument applies equally to him. As to Charles, the People do not
respond to these claims. As to Taylor, the People agree that a new sentencing hearing is
warranted in light of amendments to section 1170.
1. Additional Background
At sentencing, Charles’s defense counsel argued that he was only 23 years old at
the time of the offense and was deserving of a mitigated sentence.
36
In sentencing Charles, the trial court stated, “the probation [report] laid out some
aggravating facts, and I am agreeing with all of them, and I think that justifie[s] the
sentence, so here is what the Court is going to do. Principal term will be Count Two.
Sentence in that case is upper term of nine years. They’ll be consecutive one year added
for the arming enhancement under 12022(a)(1). Total in Count Two will be 10 years. [¶]
Count Three, that’s a 246. It will be one-third the middle. That will be one year and
eight months, and that will be consecutive.”
As to Taylor, the probation department recommended a sentence of an
indeterminate term of 25 years to life consecutive to the determinate term of 29 years
four months. Instead, the trial court sentenced Taylor to: the upper term of nine years on
count two (as the principal term) (§§ 664/187, subd. (a)), two years four months (one-
third the middle term) on count one (§§ 664/187, subd. (a)), and 25 years to life for the
firearm enhancement associated with count one (§ 12022.53 subd. (d)). The court
imposed but stayed a three-year term on count three. (§ 246.) The court struck the
punishment for the firearm enhancement associated with count two (§§ 1385, 12022.53,
subd. (b)), but denied Taylor’s request to strike the firearm enhancement under section
12022.53, subdivision (d) associated with count one. Taylor’s sentence constituted a
total indeterminate term of 25 years to life and a consecutive term of 11 years four
months. In sentencing Taylor, the trial court agreed with “the aggravating facts set forth
on page five [of the probation report] on Rule 4.421.”16
16 The probation report lists the following factors in aggravation: the crime involved
great violence, great bodily harm, and other acts disclosing a high degree of cruelty,
viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); the manner in which
the crime was carried out indicates planning (Cal. Rules of Court, rule 4.421(a)(8)); and
the defendant has engaged in violent conduct which indicates a serious danger to society
(Cal. Rules of Court, rule 4.421(b)(1)).
37
The court also acknowledged that Taylor was 21 years old at the time of the
offense and, while not a juvenile, she was still “pretty young.” The court continued,
“[b]ut I believe overall that the nature of this crime was -- it will [sic] was a pitiless
crime. Like I said, I know that Ms. Taylor has no record actually previously. It’s one
thing I really have had to think about very very -- for a long time and decide whether or
not somebody who is suffering their first criminal conviction deserves a life sentence, but
I think given the nature of the crime committed in this case and how it was done, firing a
weapon into a vehicle multiple times and with a couple people in it, striking a young
child. I think the aggravating facts are such that in this case a life sentence is, in fact,
justified.” When defense counsel argued that a life sentence constituted cruel and
unusual punishment for a youthful offender like Taylor, the court initially responded that
it understood the argument but that the aggravating factors justified a life sentence in this
case. The court then stated, “I understand the argument being made by counsel, and I
believe that it’s probably right. That is a good possibility that in the not so distant future
the sentencing laws will be revisited if not by the Court, maybe by the Legislature, and
we may be back dealing with this, but I cannot impose a sentence right now anticipating
something that may or may not happen in the future, so that motion [to strike the firearm
enhancement] is denied.” The court further stated that under the circumstances, a
sentence of 25 years to life was “sufficient” and that adding another 29 years as
recommended by the probation department, rather than the 11 years the court imposed,
“just strikes me as being excessive . . . pretty close to violating the Eighth Amendment
cruel and unusual punishment.”
2. Analysis
While defendants’ appeals were pending, section 1170 was amended by Senate
Bill No. 567 (2021-2022 Reg. Sess.; Stats. 2021, ch. 731, § 1.3.) As amended, section
1170, subdivision (b) permits imposition of an upper term sentence “only when there are
circumstances in aggravation of the crime that justify” the upper term and only if “the
38
facts underlying those circumstances have been stipulated to by the defendant, or have
been found true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial.” (§ 1170, subd. (b)(2).) However, “the court may consider the defendant’s prior
convictions in determining sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).) Additionally, as
relevant here, section 1170, subdivision (b)(6) provides: “[U]nless the court finds that
the aggravating circumstances outweigh the mitigating circumstances [and] that
imposition of the lower term would be contrary to the interests of justice, the court shall
order imposition of the lower term if any of the following was a contributing factor in the
commission of the offense: [¶] (A) The person has experienced psychological, physical,
or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence. [¶] (B) The person is a youth, or was a youth as defined under subdivision (b)
of Section 1016.7 at the time of the commission of the offense” and the defendant’s youth
“was a contributing factor in the commission of the offense.” (§ 1170, subd. (b)(6),
effective Jan. 1, 2022; see also § 1016.7, subd. (b) [“A ‘youth’ for purposes of this
section includes any person under 26 years of age on the date the offense was
committed”].)17 We note section 1170, subdivision (b)(6)(B) does not require imposition
of the lower term in every case in which the defendant was under age 26 at the time the
crime was committed. Rather, this provision establishes a presumption of the lower term
if the defendant’s youth was “a contributing factor” in his or her commission of the crime
“unless the court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the interests of
justice . . . .” (§ 1170, subd. (b)(6)(B).)
17 Section 1016.7 was added by Assembly Bill No. 124 (2021-2022 Reg. Sess.; Stats.
2021, ch. 695, § 4).
39
We agree with defendants that Senate Bill No. 567 “ ‘applies retroactively in this
case as an ameliorative change in the law applicable to all nonfinal convictions on
appeal.’ ” (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109; see also In re Estrada,
supra, 63 Cal.2d at pp. 744-746.) We also agree they are entitled to the benefits of the
amendments.
In this case, Charles was under the age of 26, but he was sentenced without the
benefit of this amendment and the record does not otherwise demonstrate that Charles’s
youth was considered in imposing the sentence. Because a court that is unaware of the
scope of its discretion necessarily abuses that discretion (People v. Carmony (2004)
33 Cal.4th 367, 378), the trial court’s ruling is an abuse of discretion and the defendant is
entitled to an opportunity to ask the court to exercise its discretion within the full range of
possible sentences in mind.
Taylor was also under the age of 26 at the time of the offense. Although the trial
court considered Taylor’s youthfulness while imposing her sentence, the trial court did so
in determining whether a 25 year-to-life indeterminate term constituted cruel and unusual
punishment. The trial court did not consider Taylor’s youthfulness in determining
whether the lower term was appropriate under section 1170, subdivision (b)(6). As with
Charles, Taylor was sentenced without the benefit of this amendment, and the trial
court’s ruling was an abuse of discretion. (See People v. Carmony, supra, 33 Cal.4th at
p. 378 [because a court that is unaware of the scope of its discretion necessarily abuses
that discretion].)
Accordingly, we agree the amended law under section 1170, subdivision (b)
requires defendants’ sentences be vacated. We further conclude that remand to the trial
court is necessary for it to apply the newly amended law, including all applicable
provisions of section 1170 amended through Senate Bill No. 567, in the first instance and
40
decide whether defendants are entitled to the lower term.18 (See People v. Flores (2022)
73 Cal.App.5th 1032, 1039.)
C. Remaining Sentencing Issues
Defendants raise additional arguments relating to sentencing. Charles argues the
trial court erred in imposing consecutive sentences under section 654. Taylor argues that
under People v. Tirado (2022) 12 Cal.5th 688, the law regarding the scope of a trial
court’s authority to strike a firearm enhancement has changed since her sentence was
imposed and she is entitled to a new hearing in which the trial court considers its new-
found authority under Tirado. Both defendants argue they are entitled to a new
sentencing hearing so that the trial court may exercise its discretion to determine the
appropriate count on which to stay sentencing under section 654, as amended by
Assembly Bill No. 518 (2021-2022 Reg. Sess.; Stats. 2021, ch. 441, § 1).
In light of our conclusion that defendants are entitled to a full sentencing hearing
on remand, we need not address these issues. On remand, defendants are not prohibited
from making these arguments, as the trial court may revisit all of its sentencing choices in
light of new legislation and caselaw. (See People v. Valenzuela (2019) 7 Cal.5th 415,
424-425 [“the full resentencing rule allows a court to revisit all prior sentencing decisions
when resentencing a defendant”]; People v. Gerson (2022) 80 Cal.App.5th 1067, 1096.)
18 In light of this conclusion, we need not decide defendants’ claim that the trial court
based its decision to impose the upper term on underlying facts that were not proven in a
statutorily permissible manner.
41
DISPOSITION
Defendants’ sentences are vacated and the case is remanded to the trial court for
resentencing. The judgments are otherwise affirmed.
/s/
EARL, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
KRAUSE, J.
42