People v. Booker ( 2020 )

Filed 12/10/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B295128
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA142561)
v.
DAMON LAMAR BOOKER et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed in part; reversed
in part and remanded with directions.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant Damon Lamar Booker.
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant George Lewis.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts B-H of the Discussion.
Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Codefendants Damon Lamar Booker and George Lewis
appeal from judgments of conviction entered after a jury trial for
first degree murder; attempted willful, deliberate, and
premeditated murder; and shooting at an occupied vehicle. The
jury found true the special allegations Booker personally used a
firearm causing great bodily injury or death in the commission of
the offenses and the offenses were committed for the benefit of a
criminal street gang.
In the published part of the opinion we address Booker’s
and Lewis’s contentions the trial court prejudicially erred in
instructing the jury on the “kill zone” theory of concurrent
specific intent to prove the attempted murder in light of the
Supreme Court’s holding in People v. Canizales (2019) 7 Cal.5th
591, 596-597 (Canizales) that “a jury may convict a defendant
under the kill zone theory only when the jury finds that: (1) the
circumstances of the defendant’s attack on a primary target,
including the type and extent of force the defendant used, are
such that the only reasonable inference is that the defendant
intended to create a zone of fatal harm—that is, an area in which
the defendant intended to kill everyone present to ensure the
primary target’s death—around the primary target and (2) the
alleged attempted murder victim who was not the primary target
was located within that zone of harm.” We agree with Booker
and Lewis this is not one of the “relatively few cases in which the
[kill zone] theory will be applicable and an instruction
2
appropriate.” (Id. at p. 608.) It was prejudicial error for the trial
court to instruct the jury on the kill zone theory.
In the unpublished portion of the opinion we address
Booker’s and Lewis’s arguments the trial court erred in failing to
instruct the jury certain trial witnesses were accomplices as a
matter of law; there is insufficient evidence to corroborate the
testimony of those witnesses; the court erred in failing to hold a
hearing on juror misconduct; and remand is necessary for the
trial court to exercise its discretion whether to strike the firearm
enhancements. We also consider Booker’s assertion his trial
counsel provided ineffective assistance of counsel and Lewis’s
argument the trial court committed instructional error. These
contentions lack merit.
We reverse Booker’s and Lewis’s convictions of attempted
murder and remand for further proceedings consistent with this
opinion. In all other respects we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
An information charged Booker and Lewis, along with
codefendants William Weaver, Marcus Posey, and Jeremiah
Stone, with the first degree murder of Jose Raya (Pen. Code,1
§ 187, subd. (a); count 1); the attempted willful, deliberate, and
premeditated murder of Reann Lott (§§ 187, subd. (a), 664; count
2); and shooting at an occupied vehicle (§ 246; count 3). As to all
counts, the information alleged the defendants committed the
offenses for the benefit of, at the direction of, or in association
1 All undesignated statutory references are to the Penal
Code.
3
with a criminal street gang (§ 186.22, subd. (b)); Booker or a
principal personally used a firearm (§ 12022.53, subds. (b) &
(e)(1)); Booker or a principal personally and intentionally
discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); and Booker
or a principal personally and intentionally discharged a firearm
causing great bodily injury or death (§ 12022.53, subds. (d) &
(e)(1)).
Booker and Lewis pleaded not guilty and denied the special
allegations. Before trial all defendants moved to dismiss the
charges against them pursuant to section 995. The trial court
granted the motions by Weaver, Stone, and Posey, but denied the
motions by Booker and Lewis.
An amended information additionally alleged as to each
count both Booker and Lewis suffered two prior convictions of
serious or violent felonies, which constituted strikes within the
meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12).
B. The Evidence at Trial
1. The People’s case
The shooting
Lott testified she was with her boyfriend Raya on the
evening of December 17, 2016. Lott and Raya drove in Lott’s car,
a white Pontiac Grand Prix, to a liquor store to buy beer. As Lott
walked to the entrance of the liquor store, she noticed a white car
with tinted windows parked in a lot on the side of the building.
Lott thought the back end of the white car and its lights
resembled her own car. As other cars drove by, their lights
illuminated the inside of the white car, and Lott saw “there
[were] a lot of people in the car.”
4
Inside the liquor store, Raya saw a friend near the counter
and started talking with him. Lott left Raya with his friend and
walked into another aisle to get the beer.
Booker, Lewis, Weaver, Stone, and Posey entered the store
together, then separated and moved throughout the store.2 As
the men spoke to one another, Lott heard the men used the word
“cuzz,” which Lott recognized as slang commonly used by
members of Crips street gangs. The men were staring at Raya
and his friend. Lott felt tension in the air.
Raya’s friend asked the men where they were from. One of
the men answered “Fruit Town,” to which Raya’s friend
responded he “was cool with them.” Raya did not speak to the
men, nor did they speak to Raya. Raya was not a member of any
gang. Shortly thereafter, the five men left together without
buying anything.
When Raya and Lott left the store, the white car with
tinted windows was no longer parked in the lot. The two
returned to Lott’s car. Raya drove, and Lott was in the front
passenger seat. They drove down 130th Street toward Lott’s
home. Raya told Lott the man he was speaking with in the store
was a friend and a member of the Largo street gang. Lott then
noticed a white car following closely behind their car on 130th
Street. The white car was “riding” their bumper. Lott said to
Raya, “[T]hey look like they’re about to hit us.” Raya stopped at a
stop sign or stop light. The white car pulled up next to Lott’s car
on the driver’s side “within seconds” of Raya stopping the car.
Lott recognized the car was the same white car from outside the
liquor store. Raya told Lott to duck down, which she did. As she
2 Lott identified the five men after viewing surveillance video
footage taken inside the liquor store.
5
ducked, Lott saw a hand emerge from the front passenger
window of the white car, and she heard five shots fired at their
car. Lott was not hit. The white car then drove in reverse. A
black car in front of them also “drove off.” Lott could not recall
whether the black car drove forward or in reverse after the
shooting. Lott did not remember whether there was a third car.
After the shooting, Lott’s car rolled forward then stopped when
Raya “smashed on the brakes.”
At around 6:43 that evening, Los Angeles County Sherriff’s
Department (LASD) Deputy David Navarrete heard the sound of
gunshots while on patrol and responded to the scene of the
shooting. While traveling northbound on Wilmington Avenue
from 131st Street, Deputy Navarrete observed a white Grand
Prix stopped in the middle of the road blocking traffic. Deputy
Navarrete saw a man in the driver’s seat of the car slumped over
and bleeding from his head. Paramedics on the scene determined
Raya was dead. The driver’s side front window of the Grand Prix
was shattered, but there was no damage to any other windows.
No bullet holes were found on the car’s body or doors. Deputy
Navarette estimated it would take one minute to drive from the
liquor store to the scene of the shooting on 130th Street.
LASD Detective Kasey Woodruff also responded to the
scene of the shooting on the evening of December 17. Detective
Woodruff obtained surveillance footage from a video camera
mounted inside the liquor store and two video cameras hung
outside Greater Zion Church, located at the corner of 130th
Street and Wilmington Avenue. Surveillance video of the interior
6
of the liquor store taken the night of the shooting showed Booker,
Lewis, Weaver, Stone, and Posey in the store.3
At approximately 6:40 p.m. on December 17, Frederick
Gordon, an elder in the Greater Zion Church, was inside the
church when he heard “pops” outside that sounded like gunfire.
He went outside to check and saw “a car backing up from 130th.”
One of the church surveillance videos showed a white car driving
down 130th Street, followed by two more white cars, and then a
black car. The video then showed the black car driving in
reverse, followed by a white car also driving in reverse, returning
the way they came. Another church surveillance video from the
same time period showed a white car driving down 130th Street
toward Wilmington Avenue. When the white car stopped at the
intersection of Wilmington Avenue, a second white car
maneuvered around to the driver’s side of the first car. A third
white car approached the two cars from behind, and then drove in
reverse back the way it came.
Forensic pathologist Scott Luzi testified Raya was shot
once in his left arm above the elbow and twice in his head near
his left ear. Dr. Luzi determined Raya died from multiple
gunshot wounds to the head. Raya’s injuries were consistent
with Raya having raised his left arm to the same level as his
head at the time he was shot.
3 LASD Sergeant John Ganarial reviewed still images taken
from the liquor store interior surveillance video and identified
Booker and Lewis. Deputy Orlando Saldana reviewed the same
surveillance video and identified Booker, Lewis, Posey, Stone,
and Weaver.
7
The initial arrest of Booker and search of his
vehicle
Los Angeles Police Officer Oscar Morales was on patrol on
the evening of January 4, 2017. He observed two Black males
running and then entering a four-door white Oldsmobile Intrigue
with tinted windows. Officer Morales made a U-turn to follow
the white car, which then crossed four lanes of traffic without
signaling. Officer Morales activated his patrol car’s lights and
sirens to effectuate a stop, but the white car accelerated. Officer
Morales followed the car until it struck a fence. The driver
(Booker) exited the vehicle, slipped through the fence, and began
to run down an alley. Officer Morales caught up with Booker and
arrested him. Detective Woodruff searched the car after it was
impounded and recovered a wallet containing Booker’s name and
photograph from the inside panel of the driver’s side door and a
document with Booker’s name inside the center console. The car
was tested for gunshot residue, but none was found.
The arrests and interviews of Booker, Weaver,
Posey, Stone, and Lewis
On February 16, 2017 sheriff’s deputies arrested Booker
(following his earlier release), Weaver, and Posey for Raya’s
murder. In his recorded interview with Detectives Woodruff and
Karen Shonka, Weaver admitted he was a member of the Poccet
Hood Compton Crips street gang4 “since [he] was young.”
Detective Woodruff informed Weaver there was a warrant for his
arrest for murder and asked him whether anything happened
4 The Poccet Hood Compton Crips street gang is also known
as “Corner Poccet” or simply “Poccet Hood.” For the sake of
brevity, we generally refer to the gang as “Poccet Hood.”
8
with Booker, Lewis, and other Poccet Hood gang members on
December 17, 2016 at 6:40 p.m. Weaver did not answer. When
he was shown a still image from the liquor store’s surveillance
video, Weaver admitted visiting the liquor store on December 17.
Weaver acknowledged four other Poccet Hood gang members
were in the liquor store as well. Weaver said he left without
buying anything. He then drove to a second liquor store with his
brother in Weaver’s white Buick Regal, which Weaver
volunteered had “no tint.” Weaver denied any knowledge of
Raya’s killing.5
The same day Detectives Woodruff and Shonka interviewed
Posey. Posey admitted he had been a member of Poccet Hood,
but he claimed he had “been out for years.” Posey admitted
knowing Booker, Lewis, Weaver, and Stone. Posey initially
denied involvement with Raya’s murder. But when he was
shown a still image from the liquor store’s surveillance video,
Posey stated, “That’s me,” and he admitted visiting the liquor
store on December 17 to buy alcohol. Posey had gone to the
liquor store with Stone in Stone’s car, which Posey believed was a
black Infiniti. Posey stated, “I ain’t got shit to do with anything.
That’s what’s so fucked up.” According to Posey, after he and
Stone left the liquor store, they headed home. Detective Shonka
interjected, “But what changed it? Something changed it, right?”
Posey responded, “Me not being behind the driving wheel, that’s
what changed.” Detective Shonka asked, “[Stone] did what?
What did he do?” Posey replied, “He didn’t go home . . . .”
5 Audio recordings of the interviews of Weaver and Lewis
and video recordings of the interviews of Posey and Stone were
admitted into evidence and played for the jury.
9
Posey then made a phone call to his girlfriend from the
interview room. After speaking with her, Posey explained to the
detectives he and Stone left the liquor store together “in the black
car” and “turned down 130th.” They drove behind Weaver, who
drove alone in his white car. Booker and Lewis were in front of
Weaver in Booker’s white car, which Posey thought was a Grand
Am. Lewis was driving, and Booker was in the front passenger
seat. Posey heard multiple gunshots and saw a flash coming
from the passenger side of Booker’s car. Posey explained, “[I]t
[was] just out of nowhere . . . .” After the shooting, Booker and
Lewis “pulled off” and drove south. Weaver reversed and drove
off. Stone and Posey also backed up, then made a U-turn and
headed home. Posey denied the shooting was discussed or
planned in advance. On the night of the shooting, Posey did not
see a gun or know that anyone had a gun. Posey denied speaking
with Booker, Lewis, Stone, or Weaver about what happened. At
some point, Booker called Posey and said, “I want to talk to you,”
but the two never discussed the shooting.
On February 17, 2017 Booker called an unidentified woman
from jail in a recorded call. Booker told her he had been charged
with murder. He added, “I think I’m going to get out. Even if I
gotta take 15 to 20.” Booker mentioned that Posey, Stone, and
Weaver were also in jail. The woman asked, “So, you was with
them, supposedly, in December?” Booker responded, “[I]t’s a
whole bunch of . . . bullshit. And then they—they talking about
looking for somebody I don’t know.”
Stone was arrested on March 1, 2017. When he was
arrested, a black Lexus sedan was in the driveway, photographs
of which were introduced into evidence. In his recorded interview
with Detective Woodruff, Stone admitted he knew Booker, Lewis,
Weaver, and Posey. On the evening of the shooting, Stone had
10
driven Posey to the liquor store in Stone’s black Lexus “to get
some blunts.” When the two arrived at the liquor store, Weaver,
Booker, and Lewis were already inside. Stone and Posey left the
liquor store without purchasing anything, and they returned to a
party for the great-grandmother of Posey’s child. Stone identified
Booker and Lewis entering the liquor store in a still image from
the liquor store’s surveillance video. Stone denied being a
member of Poccet Hood or any other street gang. He also denied
knowing about the murder of Raya and stated, “I didn’t see
anybody get shot.” But Stone admitted he heard “a gun pop”
after returning to the party.
Lewis was arrested in Las Vegas on March 23, 2017 for a
parole violation. In his recorded interview with Detectives
Woodruff and Shonka, Lewis admitted he knew Booker, Weaver,
Stone, and Posey, and each of the four were members of Poccet
Hood. Lewis initially denied he was a member of Poccet Hood,
but he admitted it when the detectives pointed out his tattoo,
which read “Poccet Hood.” Lewis said he was in Compton in “the
beginning of December” to meet with his parole officer, but he
returned to Las Vegas by the day of the shooting. When he was
shown a still image from the liquor store surveillance footage,
Lewis denied he was pictured or present in the liquor store on
December 17, 2016. Lewis also denied speaking to Booker,
Weaver, Stone, or Posey on that day.
Posey’s proffer interview
On January 18, 2018 Deputy District Attorney Brian Kang
and Detective Woodruff interviewed Posey.6 Posey admitted he
6 At the outset of the interview, Kang presented Posey with a
proffer agreement, which Posey signed.
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was a member of Poccet Hood with the monikers “Tiny Dog” and
“Peanut.” According to Posey, Largo is one of the main rivals of
Poccet Hood. Posey knew Booker, Weaver, Lewis, and Stone for
many years. About 5:00 on the night of the shooting, Posey was
at his grandmother’s house with his family celebrating his
grandmother’s birthday when Stone stopped by in his black
Lexus. Posey got into Stone’s car to go to the liquor store to get
alcohol. On their way Weaver pulled up by himself in his white
car.7 Weaver followed Stone’s car, and then Booker and Lewis
pulled up in a white car, which Booker was driving. Posey and
Stone told Booker and Lewis they were heading to the liquor
store. The three cars then went together to the liquor store.
Stone, Weaver, and Booker parked their vehicles near the liquor
store. Posey did not see Raya and Lott park or enter the store.
The liquor store was located on the border of Poccet Hood
and Largo territory. Posey entered the store after the other four
men. When Posey entered the store, he went down an aisle
toward the back of the store while Booker, Weaver, and Lewis
went toward the cash register where “the guy banged on them or
whatever.” Posey heard “one of those guys” say, “Where you
from?” Posey did not hear Booker, Lewis, Weaver, or Stone say
anything. According to Posey, no one said “Fruit Town.” Posey
tried to avoid the “commotion” by going to the back of the store.
Weaver exited the store, and Posey and Stone followed
without purchasing anything. Posey and Stone got in Stone’s car;
Weaver into his car; and Booker and Lewis into Booker’s car,
with Booker in the driver’s seat. Stone and Posey sat “for a
second” in the car and waited for Weaver to pull out. Detective
7 Posey described Weaver’s car as a white “Oldsmobile
Cutlass” or “Century.”
12
Woodruff asked, “Were . . . you and [Stone] planning on following
Weaver and Lewis and Booker somewhere?” Posey responded,
“Not really. I wasn’t driving, so I didn’t have full control of the
steering wheel, so, no.” Weaver pulled out, and Stone followed.
They turned on 130th Street, where Booker had pulled his car
over. Weaver pulled over, as did Stone. No one spoke. Lewis
and Booker switched seats, with Lewis now in the driver’s seat.
Lewis also took off his gray sweatshirt and gave it to Booker, who
put it on. According to Posey, a gang member would switch
clothing with another “[t]o cover [his] self.” While this was
happening, a white car, like a Pontiac Grand Am, passed by the
three pulled-over cars. Posey did not see the occupants of the
passing vehicle.
After the white car passed, all three cars followed it down
130th Street, first Lewis, then Weaver, then Stone. At the
intersection of 130th Street and Wilmington Avenue, Booker
stuck his arm out of the window and “started shooting . . . into
the white car.” Posey heard five to seven shots. Weaver and
Stone drove in reverse, and Lewis and Booker turned left and
drove south. Stone dropped Posey off at Posey’s grandmother’s
house and left.
Booker later called Posey and said, “You know, we need to
talk.” Posey responded, “Shit. For what?” Booker called Posey
“a couple times” after that, but they did not speak again. Posey
later spoke with Lewis, but only about music. Posey spoke with
Weaver often, but the two only discussed the shooting once, when
Posey asked about it and Weaver responded, “I don’t know, bro.”
Detective Woodruff asked, “Do you know where the gun
went?” Posey responded, “No, I don’t. I didn’t have—never had
nothing to do with the gun, never none of it . . . .” Detective
Woodruff inquired, “Have you ever seen that where someone’s
13
gonna go do a mission, and there’s . . . a primary vehicle and a
following vehicle and maybe another follow vehicle?” Posey
responded, “[N]ot really. I mean, if you gonna shoot someone,
you really want to be by yourself.” Posey added, “That’s just
nothing but a lot of people watching you.”
Telephone calls
Between 6:00 and 7:10 on the evening of the shooting, five
calls were made between Weaver and Posey; Weaver and Lewis;
Booker and Weaver; Booker and Stone; and Stone and Lewis.
Booker called Lewis at 6:49 and 6:51 p.m., and Lewis called
Booker at 6:58 p.m. Posey sent a text message to Booker at
7:58 p.m. At 8:03 p.m. Booker called Posey.
Trial testimony of Weaver, Stone, and Posey
Although Weaver initially invoked his Fifth Amendment
right against self-incrimination, he testified after the prosecution
offered him use immunity. However, he responded to all the
prosecutor’s questions with “I don’t know,” “I don’t remember,” or
“I plead the 5th.”
Stone also testified after he was offered use immunity.
Stone denied membership in or knowledge of the Poccet Hood
street gang. When the prosecutor asked Stone about the liquor
store incident, Stone repeatedly responded, “I can’t recall, sir.”
The prosecutor played a music video purporting to show Stone,
Booker, and Lewis singing lyrics including, “I’m out the Poccet,”
“Bitch I’m out thuggin’, I be riding on the suckas,” “It’s killing
14
season, O bitch,” and “If the situation funny, best believe that I’m
a bust.”8 Stone denied he was in the video.
In his testimony, Posey denied being a member of Poccet
Hood or any other gang. But he admitted Poccet Hood was a
“Compton Crip gang” and he had “Crip” tattooed on his back and
a “P” and an “H” tattooed on each hand, the initials for Poccet
Hood. Posey answered “I don’t remember” to every question the
prosecutor asked regarding the night of December 17, 2016; his
relationship to Booker, Lewis, Weaver, and Stone; and his
subsequent arrest and interviews. Posey denied killing Raya.
Gang evidence
Sergeant John Ganarial worked in the LASD gang unit on
and off during the period from 2000 to 2013, and he was familiar
with the Poccet Hood gang. Sergeant Ganarial had personal
contact with Booker and was familiar with Lewis, Weaver, and
Posey. He opined the four were documented members of the
Poccet Hood gang. As to Stone, Sergeant Ganarial described his
family as “very influential” within the Poccet Hood gang. Los
Angeles Police Officer Oscar Medina testified he initiated a traffic
stop on September 28, 2016 on a white Buick that Weaver was
driving. Weaver told Officer Medina he was from Poccet Hood
and went by the moniker “Ill Will.” Weaver had the word “Illest”
tattooed on his back and “P” and “H” tattooed on his hands.
LASD Deputy Orlando Saldana, a gang investigator for the
Compton sheriff’s station, was familiar with the Poccet Hood
street gang. The Largo 36 street gang is a rival of Poccet Hood,
but Largo 36 did not have a feud with the Fruit Town gang. The
8 The music video and a transcript of the video’s lyrics were
admitted into evidence.
15
liquor store sits on the border of Poccet Hood and Largo territory.
Deputy Saldana opined Booker, Lewis, Weaver, and Posey were
Poccet Hood gang members, relying in part on photographs of
gang symbols tattooed on each of the men and photographs
depicting Booker, Lewis, and Weaver together flashing Poccet
Hood gang signs. In response to a hypothetical based on the facts
of the case, Deputy Saldana opined the shooting was committed
for the benefit of or in association with the Poccet Hood Compton
Crips street gang. Deputy Saldana reasoned that under the
hypothetical, the gang members worked in association with one
another to “get a better, more clear shot” by pulling up next to
the victims’ vehicle.
2. Lewis’s case9
Lewis testified he never lived in Poccet Hood territory but
began associating with the gang during high school. Lewis
admitted he was a member of the gang and the liquor store was
“in the hood.” On the day of the shooting, Lewis traveled to
California from Las Vegas, where he was living, to see his parole
officer. Earlier in the evening he “was hanging out” with Booker,
Weaver, Stone, and Posey. The five men went to the liquor store,
but Lewis drove his own car, a burgundy Impala. Booker, Stone,
and Weaver drove their own cars and followed each other to the
store. Lewis parked on the street. The men did not “hang out”
outside the liquor store before they entered the store. Lewis did
not remember hearing anyone in the liquor store say “[w]here you
from.”
9 Booker did not testify or call any witnesses.
16
When Lewis left, he did not talk to his friends, and he
drove by himself to the house of the father of his sister’s child.
Lewis did not hear any gunshots. But he admitted speaking
separately with Booker, Weaver, and Stone by phone “within
minutes” after the shooting. Lewis returned to Las Vegas after
staying two days in California.
3. The People’s rebuttal
Phone records showed Lewis arrived in the Los Angeles
area on the evening of December 16, 2016, and he returned to Las
Vegas on December 18. The records also showed Lewis’s phone
was in the general area of the shooting at 6:43 p.m. on
December 17.
C. The Verdict and Sentencing
The jury found Booker and Lewis guilty on count 1 of first
degree murder; on count 2 of attempted willful, deliberate, and
premeditated murder; and on count 3 of shooting at an occupied
vehicle. The jury also found true all the special allegations.
After a bifurcated trial, the trial court found true the prior
conviction allegations against Booker and Lewis.
The court sentenced Booker and Lewis to aggregate terms
of 170 years to life in state prison. As to count 1, the trial court
imposed sentences of 25 years to life, tripled to 75 years to life
under the three strikes law (§ 667, subd. (e)(2)(A)(i)). The court
imposed consecutive sentences of 25 years to life on count 2 under
the three strikes law (§ 667, subd. (e)(2)(A)(ii)). The court
imposed on counts 1 and 2 additional terms of 25 years to life for
the firearm enhancement (§§ 12022.53, subd. (d) [Booker],
12022.53, subds. (d) & (e)(1) [Lewis]) and 10 years under section
667, subd. (a)(1) (two 5-year terms). The court imposed and
17
stayed sentences of 60 years to life on count 3 pursuant to section
654.10
Booker and Lewis timely appealed.
DISCUSSION
A. The Trial Court Erred in Instructing on the Kill Zone
Theory of Concurrent Intent To Kill
1. Jury instructions and closing argument
The trial court instructed the jury with CALJIC No. 8.66,
“In order to prove attempted murder, each of the following
elements must be proved: [¶] 1. A direct but ineffectual act was
done by one person towards killing another human being; and [¶]
2. The person committing the act harbored express malice
aforethought, namely, a specific intent to kill unlawfully another
human being.” The court further instructed the jury with a
modified version of CALJIC No. 8.66.1, “A person who primarily
intends to kill one person or persons known as the primary target
may at the same time attempt to kill all persons in the
immediate vicinity of the primary target. The perpetrator
specifically intending to kill the primary target by lethal means
may also attempt to kill everyone in the immediate vicinity of the
primary target. If the perpetrator has this specific intent and
10 The trial court imposed and stayed the additional firearm
enhancements charged as to Booker and Lewis. The court
appears to have also imposed a 15-year minimum parole
eligibility date for the gang enhancement under section 186.22,
subdivision (b)(5), while noting the enhancement would have no
effect on the sentence. However, the abstracts of judgment do not
reflect imposition of the gang enhancement.
18
employs the means sufficient to kill the primary target and all
others in the immediate vicinity of the primary target, the
perpetrator is guilty of the crime of attempted murder of the
other persons in the immediate vicinity. [¶] Whether a
perpetrator actually intended to kill the victim either as a
primary target or as someone within the immediate vicinity is an
issue to be decided by you.”
During his closing argument the prosecutor explained the
kill zone theory: “They’re guilty of attempted murder if they
intended to kill Reann Lott. But they’re also guilty of it if they
intended to kill—not necessarily car[ing] about who it was
exactly. But if they tried to kill everyone in the immediate
vicinity of the primary target. Does everyone understand that?
That the intent to kill—there was intent to kill the person. But
there’s also an intent to kill if that person is intending to kill all
the people in that immediate vicinity based on what you see,
based on the number of the shooting and the bullets and the way
it was conducted.”
2. The kill zone theory of concurrent intent to kill
“To prove the crime of attempted murder, the prosecution
must establish ‘the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended
killing.’” (Canizales, supra, 7 Cal.5th at p. 602; accord, People v.
Covarrubias (2016) 1 Cal.5th 838, 890; People v. Perez (2010)
50 Cal.4th 222, 224 [“[S]hooting at a person or persons and
thereby endangering their lives does not itself establish the
requisite intent for the crime of attempted murder.”].) “[A]n
intent to kill cannot be ‘transferred’ from one attempted murder
victim to another under the transferred intent doctrine.”
19
(Canizales, at p. 602; accord, People v. Bland (2002) 28 Cal.4th
313, 327-328 (Bland).)
In Bland, supra, 28 Cal.4th at pages 329-330, the Supreme
Court first articulated the kill zone theory of attempted murder,
explaining, “‘The intent is concurrent . . . when the nature and
scope of the attack, while directed at a primary victim, are such
that we can conclude the perpetrator intended to ensure harm to
the primary victim by harming everyone in that victim’s
vicinity. . . . Where the means employed to commit the crime
against a primary victim create a zone of harm around that
victim, the factfinder can reasonably infer that the defendant
intended that harm to all who are in the anticipated zone.’” As
examples of appropriate applications of the kill zone theory, the
Bland court described a defendant placing a bomb on a
commercial plane intending to harm a primary target on the
plane by killing all the passengers and an assailant attacking a
group of people by using “‘automatic weapon fire or an explosive
device devastating enough to kill everyone in the group.’” (Id. at
p. 330.) The Court described these scenarios as those where
“‘[t]he defendant has intentionally created a “kill zone” to ensure
the death of his primary victim, and the trier of fact may
reasonably infer from the method employed an intent to kill
others concurrent with the intent to kill the primary victim.’”
(Ibid.) The Bland court concluded that where the defendant and
a second shooter fired a “flurry of bullets at the fleeing car” in
order to kill the driver, injuring two passengers, the evidence
“virtually compels” an inference the defendant created a kill zone
that would support attempted murder convictions as to both
passengers. (Id. at pp. 330-331, 333.)
The Supreme Court in People v. Perez, supra, 50 Cal.4th at
page 232 again considered the kill zone theory and found the
20
defendant had not created a kill zone by firing a single shot from
a moving car at a group of eight individuals 60 feet away,
therefore supporting only one, not eight, counts of attempted
murder. The Perez court explained, “‘[A] shooter may be
convicted of multiple counts of attempted murder on a “kill zone”
theory where the evidence establishes that the shooter used
lethal force designed and intended to kill everyone in an area
around the targeted victim (i.e., the “kill zone”) as the means of
accomplishing the killing of that victim.’” (Ibid.; see People v.
Stone (2009) 46 Cal.4th 131, 135 [trial court erred by instructing
on kill zone theory where defendant shot a single bullet at alleged
victim standing in group of 10 rival gang members 60 feet away
from defendant].)
The Supreme Court revisited the kill zone theory in
Canizales, supra, 7 Cal.5th 591, in which it narrowed application
of the doctrine. (In re Rayford (2020) 50 Cal.App.5th 754, 769
(Rayford).) The Supreme Court held, “[T]he kill zone theory for
establishing the specific intent to kill required for conviction of
attempted murder may properly be applied only when a jury
concludes: (1) the circumstances of the defendant’s attack on a
primary target, including the type and extent of force the
defendant used, are such that the only reasonable inference is
that the defendant intended to create a zone of fatal harm—that
is, an area in which the defendant intended to kill everyone
present to ensure the primary target’s death—around the
primary target and (2) the alleged attempted murder victim who
was not the primary target was located within that zone of harm.
Taken together, such evidence will support a finding that the
defendant harbored the requisite specific intent to kill both the
primary target and everyone within the zone of fatal harm. [¶]
In determining the defendant’s intent to create a zone of fatal
21
harm and the scope of any such zone, the jury should consider the
circumstances of the offense, such as the type of weapon used, the
number of shots fired (where a firearm is used), the distance
between the defendant and the alleged victims, and the proximity
of the alleged victims to the primary target. Evidence that a
defendant who intends to kill a primary target acted with only
conscious disregard of the risk of serious injury or death for those
around a primary target does not satisfy the kill zone theory.”
(Canizales, supra, 7 Cal.5th at p. 607.)
In so holding, the Supreme Court in Canizales cautioned,
“[W]e anticipate there will be relatively few cases in which the
theory will be applicable and an instruction appropriate. Trial
courts should tread carefully when the prosecution proposes to
rely on such a theory, and should provide an instruction to the
jury only in those cases where the court concludes there is
sufficient evidence to support a jury determination that the only
reasonable inference from the circumstances of the offense is that
a defendant intended to kill everyone in the zone of fatal harm.
The use or attempted use of force that merely endangered
everyone in the area is insufficient to support a kill zone
instruction.” (Canizales, supra, 7 Cal.5th at p. 608.)
As we explained in Rayford, supra, 50 Cal.App.5th at pages
769 to 770, “Although the defendants in Canizales fired five shots
from a semiautomatic nine-millimeter gun at a group that
included a rival gang member (Denzell Pride) with whom one of
the defendants had engaged in a verbal altercation earlier that
day, the defendants were not ‘in close proximity to the area
surrounding their intended target,’ but instead were positioned
100 to 160 feet away from a block party on a wide city street, and
the bullets were ‘“going everywhere”’ as Pride and fellow gang
member Travion Bolden ran away after the first shot was fired.
22
(Canizales, supra, 7 Cal.5th at pp. 610-611.) The Canizales court
concluded the evidence was not sufficient to allow the jury to find
the defendants intended to create a zone of fatal harm around
Pride, and it reversed the defendants’ convictions of the
attempted murder of Bolden. (Id. at pp. 611, 615.) The Supreme
Court distinguished these facts from those in other cases in
which ‘the defendants opened fire while in close proximity to the
area surrounding their intended target.’ (Id. at pp. 610-611; see
Bland, supra, 28 Cal.4th at p. 318 [defendant fired flurry of
bullets directly into vehicle]; People v. Vang (2001)
87 Cal.App.4th 554, 564 [defendants sprayed 50 or more bullets
from high-powered, ‘wall-piercing’ weapons at two separate
apartment buildings]; Washington v. U.S. (D.C. 2015) 111 A.3d
16, 24 [defendant fired 10 shots at four people standing in close
proximity to each other and 21 feet from defendant, hitting three
of the group].)”
3. Under Canizales, the evidence at trial was not
sufficient to instruct the jury on the kill zone theory
Booker and Lewis contend under Canizales the
circumstances of the shooting did not support the trial court
instructing the jury on the kill zone theory.11 Rather, they assert
11 The People contend Booker and Lewis forfeited their claim
of error because they failed in the trial court to object or request
an alternative instruction. But we review any claim of
instructional error that affects a defendant’s substantial rights
whether or not trial counsel objected. (§ 1259 [“The appellate
court may also review any instruction given, refused or modified,
even though no objection was made thereto in the [trial] court, if
the substantial rights of the defendant were affected thereby.”];
23
the only reasonable inference supported by the evidence is that
“the gunman was close to Raya and killed him by firing directly
into him from point blank range.” Thus, there was not sufficient
evidence defendants intended to kill Raya by killing everyone in
the zone of fatal harm around Raya, including Lott. We agree.
The People argue the circumstances of the shooting here
support a reasonable inference Booker intended to kill everyone
in the zone of fatal harm around Raya “in the confined location of
[the] car’s cabin” because, unlike in Canizales, Lewis and Booker
pulled their car alongside Lott’s car in close proximity to Raya
and Lott, and Lott was seated next to Raya in the “direct line of
fire of the shots.” Thus, under Canizales two of the
circumstances to support the kill zone theory are present here—
the distance between the defendant and the alleged victim and
the proximity of the alleged victim to the primary target.
(Canizales, supra, 7 Cal.5th at pp. 597, 607.)
However, as the Canizales court explained, “[T]he kill zone
theory does not apply where ‘the defendant merely subjected
persons near the primary target to lethal risk. Rather, in a kill
zone case, the defendant has a primary target and reasons [that]
he cannot miss that intended target if he kills everyone in the
area in which the target is located. In the absence of such
evidence, the kill zone instruction should not be given.’”
(Canizales, supra, 7 Cal.5th at p. 607, quoting People v. Medina
People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [failure to
object to instruction does not forfeit issue on appeal when alleged
error concerns elements of offense]; People v. Gutierrez (2018)
20 Cal.App.5th 847, 856, fn. 8 [“[W]hen an instruction allegedly
affects the substantial rights of the defendant, it is reviewable
even in the absence of an objection.”].)
24
(2019) 33 Cal.App.5th 146, 156.) Here, the type and extent of
force used do not support a reasonable inference Booker and
Lewis intended to kill Raya by killing everyone in the car’s cabin.
At most, the evidence supports a reasonable inference Booker and
Lewis acted with conscious disregard of the risk Lott might be
seriously injured or killed. In contrast to Bland, supra,
28 Cal.4th at pages 330-331, in which two shooters fired a “flurry
of bullets at the fleeing car,” Booker as sole shooter fired a total of
three to seven shots12 directed at the front driver’s side of Lott’s
stationary car. Further, Booker’s shots were directed at Raya at
close range, striking him twice in his head and once in his arm in
a manner consistent with Raya defensively raising his left arm
during the shooting. The driver’s side front window of Lott’s car
was shattered, but there were no bullet holes in the car’s body or
doors that would have reflected a spray of bullets. Nor was there
evidence any bullets reached the front passenger side of the car
where Lott was sitting, and Lott was not injured. Although the
determination whether to instruct on the kill zone “does not turn
on the effectiveness or ineffectiveness of the defendant’s chosen
method of attack,” whether an inference can reasonably be drawn
“is at least informed by evidence” Lott (like Bolden in Canizales)
was not hit by any of the bullets. (Canizales, supra, 7 Cal.5th at
p. 611.) And finally, there was no evidence suggesting Booker
used a rapid-firing semiautomatic or automatic weapon.
By contrast, in the only published case since Canizales to
find the evidence supported a kill zone instruction, People v.
12 Although Lott testified she heard around five gunshots and
Posey testified he heard between five and seven gunshots, the
People presented physical evidence of only three bullets, those
which struck Raya.
25
Cerda (2020) 45 Cal.App.5th 1, 16-17, review granted May 13,
2020, S260915, the shooter used an assault rifle to fire “up to four
times the velocity of handgun ammunition” into two houses,
firing at least 16 shots at one house and multiple shots at a
second house. (See People v. Vang, supra, 87 Cal.App.4th at
pp. 558, 564; cf. People v. Cardenas (2020) 53 Cal.App.5th 102,
114-115 [insufficient evidence supported kill zone instruction
where first two bullets were fired at primary target with alleged
attempted murder victim standing one car’s length behind
primary target, and second round of bullets were fired as
shooters retreated]; Rayford, supra, 50 Cal.App.5th at pp. 779-
781 [trial court prejudicially erred in giving kill zone instruction
where three shooters fired a total of eight bullets across the front
of the house, injuring two of 11 people gathered inside or in front
of the house]; People v. Thompkins (2020) 50 Cal.App.5th 365,
377-379, 394-396 [trial court prejudicially erred in giving kill
zone instruction where shooter fired 10 shots into crowd of 10 to
20 customers in a restaurant, killing two and wounding five
people, with no evidence of an intended target]; People v.
Mariscal (2020) 47 Cal.App.5th 129, 139 (Mariscal) [trial court
erred in giving kill zone instruction where defendant shot at four
of the primary target’s friends after killing the primary target,
but the error was harmless beyond a reasonable doubt].) Under
the circumstances here, the trial court erred in instructing the
jury on the kill zone theory.
4. The error was prejudicial
“When an erroneous instruction is given, the standard of
review turns on whether the instruction was merely factually
unsupported or instead legally erroneous.” (Mariscal, supra,
47 Cal.App.5th at p. 139; accord, Canizales, supra, 7 Cal.5th at
26
pp. 612-613.) When the trial court instructs the jury on both a
factually unsupported theory and a factually supported one, we
review the error under People v. Watson (1956) 46 Cal.2d 818,
836 (Watson), and the error is harmless if it is not reasonably
probable that a result more favorable to the defendant would
have been reached in the absence of the error. (Canizales, at
pp. 612-613; accord, Mariscal, at p. 139.) However, when the
trial court instructs the jury on two legal theories, one of which is
legally erroneous, we evaluate whether the error was harmless
beyond a reasonable doubt under Chapman v. California (1967)
386 U.S. 18, 24 (Chapman). (People v. Aledamat (2019) 8 Cal.5th
1, 13; Rayford, supra, 50 Cal.App.5th at pp. 783-784 [applying
Chapman harmless error standard to find error in instructing on
kill zone was prejudicial].)
The People contend even if the evidence was not sufficient
to support the trial court’s instruction on the kill zone theory,
under Watson it is not reasonably probable that absent the error
the jury would have reached a result more favorable to Booker
and Lewis because the kill zone instruction was not misleading
and there was “overwhelming” evidence of defendants’ intent to
kill Lott. Booker and Lewis argue the trial court instructed the
jury on a legally erroneous theory of the kill zone, and we must
therefore consider whether the error in instructing the jury was
harmless beyond a reasonable doubt under Chapman. We need
not resolve the applicable standard, however, because even under
the less stringent Watson standard the error was not harmless.
The Watson test “focuses not on what a reasonable jury
could do, but what such a jury is likely to have done in the
absence of the error under consideration. In making that
evaluation, an appellate court may consider, among other things,
whether the evidence supporting the existing judgment is so
27
relatively strong, and the evidence supporting a different outcome
is so comparatively weak, that there is no reasonable probability
the error of which the defendant complains affected the result.”
(People v. Breverman (1998) 19 Cal.4th 142, 177; accord, People v.
Beltran (2013) 56 Cal.4th 935, 956.)
In Mariscal, supra, 47 Cal.App.5th at page 133, testimony
at trial established the defendant approached a group of five men
seated on bleachers at a baseball diamond and asked where they
were from. When one of the men responded they were not gang
members, the defendant announced his own gang affiliation and
shot the man multiple times. The defendant then aimed at the
four remaining men and fired on them as they tried to escape,
hitting one man in the chest and another in the legs. (Ibid.) Two
of the men died, and the defendant was convicted of two counts of
murder and three counts of attempted murder. (Id. at pp. 131,
133.) The Court of Appeal concluded the trial court erred in
instructing the jury on the kill zone theory where there was
insufficient evidence the defendant had a primary target among
the five men, but the error was harmless because “the undisputed
evidence is that defendant intended to kill all five young men.”
(Id. at pp. 139-140.) The court reasoned, “The evidence is
overwhelming that there was no primary target and that,
instead, defendant intended to kill all of the men on the
bleachers, or as many as he could.” (Id. at p. 140.)
Here, unlike in Mariscal, evidence Booker and Lewis
intended to kill Lott was not “overwhelming.” (Mariscal, supra,
47 Cal.App.5th at p. 140.) It is possible the jury convicted Booker
and Lewis of attempted murder based on direct evidence of their
intent to kill Lott, which would be legally permissible. But it is
likely the jury relied on the erroneous kill zone instruction in
finding defendants intended to kill Lott because she was within a
28
zone of fatal harm. The evidence Booker and Lewis intended to
kill Raya was strong—they saw Raya in the liquor store
socializing with a rival gang member who had asked Booker,
Lewis, and Weaver where they were from. But there was little if
any evidence they intended to kill Lott, who was not near Raya
and his friend when the friend asked the men where they were
from. Further, the five men left the liquor store before Raya and
Lott left the store together. Posey did not see Lott when she
entered the liquor store or when Raya and Lott drove past the
men in their cars while the men were pulled over on 130th Street.
Lott ducked during the shooting, and there was no evidence
Booker or Lewis saw her in the car. In light of the entire record,
Booker and Lewis have met their burden to show it is reasonably
probable they would have achieved a more favorable result had
the trial court not instructed on the kill zone theory. (Watson,
supra, 46 Cal.2d at p. 836.) Accordingly, we reverse Booker’s and
Lewis’s convictions of the attempted murder of Lott13 and remand
for further proceedings consistent with this opinion.14
13 Because we conclude the trial court prejudicially erred in
instructing the jury on the kill zone theory of concurrent intent,
we do not reach Booker’s and Lewis’s arguments their trial
counsel’s failures to object to the instruction constituted
ineffective assistance of counsel or Lewis’s argument he cannot
be liable under the kill zone theory as an aider and abettor.
14 Booker and Lewis do not contend retrial is barred because
the evidence was insufficient to support their convictions of the
attempted murder of Lott on a theory other than the kill zone.
(See People v. Story (2009) 45 Cal.4th 1282, 1295 [“‘[A]n appellate
ruling of legal insufficiency is functionally equivalent to an
acquittal and precludes a retrial.’”].)
29
B. Whether Posey, Stone, and Weaver Were Accomplices Was a
Disputed Fact for the Jury*
Booker and Lewis contend the trial court prejudicially
erred in failing to instruct the jury Posey, Stone, and Weaver
were accomplices as a matter of law given the three men’s
undisputed participation in the events leading up to the shooting.
They also argue insufficient evidence corroborated Posey’s
accomplice testimony. Neither contention has merit.
1. Jury instructions
The trial court instructed the jury with CALJIC No. 3.10,
“An accomplice is a person who is subject to prosecution for the
identical offense charged against the defendant on trial by reason
of aiding and abetting.” The court also instructed the jury with
CALJIC No. 3.14, “Merely assenting to or aiding or assisting in
the commission of a crime without knowledge of the unlawful
purpose of the perpetrator and without the intent or purpose of
committing, encouraging, or facilitating the commission of the
crime is not criminal. Thus a person who assents to or aids or
assists in the commission of a crime without that knowledge and
without that intent or purpose is not an accomplice in the
commission of the crime.” The court further instructed the jury
with CALJIC No. 3.19, “You must determine whether the
witness[es] Marcus Posey, Jeremiah Stone, and William Weaver
[were] accomplice[s] as I have defined that term. [¶] The
defendant has the burden of proving by a preponderance of the
evidence that Marcus Posey, Jeremiah Stone, and William
Weaver [were] accomplice[s] in the crimes charged against the
* See footnote, ante, page 1.
30
defendant.” As to corroboration, the court instructed the jury
with CALJIC No. 3.11, “You cannot find a defendant guilty based
upon the testimony of an accomplice or the testimony by a
codefendant that incriminates the defendant unless that
testimony is corroborated by other evidence which tends to
connect that defendant with the commission of the offense.”
2. Applicable law
Section 1111 provides, “A conviction can not be had upon
the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient
if it merely shows the commission of the offense or the
circumstances thereof. An accomplice is hereby defined as one
who is liable to prosecution for the identical offense charged
against the defendant on trial in the cause in which the
testimony of the accomplice is given.” Section 1111’s definition of
accomplice “‘“encompasses all principals to the crime [citation],
including aiders and abettors and coconspirators.”’” (People v.
Anderson (2018) 5 Cal.5th 372, 410 (Anderson), quoting People v.
Manibusan (2013) 58 Cal.4th 40, 93; accord, People v. Stankewitz
(1990) 51 Cal.3d 72, 90.)
“‘“[A]n accomplice is one who aids or promotes the
perpetrator’s crime with knowledge of the perpetrator’s unlawful
purpose and an intent to assist in the commission of the target
crime . . . .” [Citation.] “In order to be an accomplice, the witness
must be chargeable with the crime as a principal (§ 31) and not
merely as an accessory after the fact (§§ 32, 33).”’” (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 429 (Bryant,
Smith and Wheeler); accord, People v. Manibusan, supra,
58 Cal.4th at p. 93.) “‘Whether someone is an accomplice is
31
ordinarily a question of fact for the jury; only if there is no
reasonable dispute as to the facts or the inferences to be drawn
from the facts may a trial court instruct a jury that a witness is
an accomplice as a matter of law.’” (Bryant, Smith and Wheeler,
at p. 430; accord, Anderson, supra, 5 Cal.5th at p. 410.) Before
instructing the jury a witness is an accomplice as a matter of law,
the trial court’s task is “not to determine whether the jury could
reasonably find [the witness] was an accomplice, but rather
whether it could only reasonably find that he was an accomplice.”
(Bryant, Smith and Wheeler, at p. 430 [whether witness who
followed defendants’ directions immediately before shooting was
an accomplice was a question for the jury where the witness
testified he followed defendants’ orders but did not know what
was going to happen]; accord, Anderson, at pp. 410-411 [whether
witnesses who observed conspirators discuss, plan, and prepare
for burglary were accomplices was properly a matter for the
jury].)
3. The trial court did not err in failing to instruct the
jury Posey, Stone, and Weaver were accomplices as a
matter of law
Certainly a reasonable juror could have concluded Posey,
Stone, and Weaver aided and abetted the crimes committed by
Booker and Lewis based on the evidence they traveled in a
procession of fellow Poccet Hood gang members to the liquor store
located on the border of rival Largo territory; they entered then
exited the store together; they followed in a procession to 130th
Street and pulled over while Booker and Lewis swapped places;
and they trailed Booker’s car as it followed after Lott’s. Each was
present in the liquor store when Raya’s friend, a Largo member,
32
asked where they were from. And they all drove off after Booker
fired into Lott’s car.
But a reasonable juror could alternatively have reasonably
concluded Posey, Stone, and Weaver did not know Booker and
Lewis planned to shoot into Lott’s car and did not share their
intent to do so. Similar to the witness in Bryant, Smith and
Wheeler, supra, 60 Cal.4th at page 430, Posey denied planning or
discussing the shooting with anyone in advance, and he denied
knowing anyone had a gun that evening. Posey stated the
manner of the shooting—a procession of cars following the
shooter’s vehicle—was not typical of a gang “mission” because
“[t]hat’s just nothing but a lot of people watching you.” Weaver
and Stone also denied involvement in the shooting during their
interviews with Detective Woodruff. Moreover, it could
reasonably be inferred from Posey’s testimony—that the men did
not discuss a plan and would not typically carry out a “mission”
in this manner—that Weaver and Stone likewise did not know or
share Booker’s and Lewis’s intent. On this record, the trial court
did not err in determining the inference that Posey, Stone, and
Weaver were accomplices was not the only reasonable inference.
(Anderson, supra, 5 Cal.5th at pp. 410-411; Bryant, Smith and
Wheeler, at p. 430.)15
15 Booker also argues Posey, Stone, and Weaver were
accomplices as a matter of law because they were charged with
the same counts in the information, even though the trial court
dismissed all the charges against them pursuant to section 995.
But Booker cites no authority for this proposition, nor is it the
law. (See Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 432
[“the fact that [a witness] was initially charged in the case is not
dispositive” of whether the witness is an accomplice as a matter
33
4. We do not decide whether there was sufficient
corroboration of Posey, Stone, and Weaver’s testimony
because the jury could reasonably have found they
were not accomplices
Booker and Lewis contend there was insufficient evidence
to corroborate Posey, Stone, and Weaver’s testimony. But as
discussed, the trial court did not err in declining to instruct the
jury that the three were accomplices as a matter of law. Only if a
witness is an accomplice as a matter of law do we review whether
corroborating evidence was sufficient to support the accomplice’s
testimony under section 1111. (People v. Dalton (2019) 7 Cal.5th
166, 245 [“Evidence corroborating [a witness]’s testimony was
required for each count as to which [witness] was an accomplice
as a matter of law.”]; Bryant, Smith and Wheeler, supra,
60 Cal.4th at p. 432 [“Because the jurors reasonably could have
found [the witness] was not an accomplice, we need not, and do
not, decide whether there was sufficient corroborating evidence
as to each defendant.”].) Because the jury could reasonably have
concluded that Posey, Stone, and Weaver were not accomplices,
we do not reach whether there was substantial evidence to
corroborate their testimony.16
of law]; People v. Johnson (2016) 243 Cal.App.4th 1247, 1271
[trial court erred in instructing that codefendants were
accomplices as a matter of law where each testified he was not
guilty of the crimes charged, but the error was harmless because
it was not reasonably probable the jury would have found either
defendant was not an accomplice].)
16 Because we reject Lewis’s argument there was insufficient
evidence of corroboration, we likewise reject his claim the trial
34
C. The Trial Court Did Not Err in Instructing the Jury with
CALJIC No. 3.18
The court instructed the jury with CALJIC No. 3.18, as
modified, “To the extent that an accomplice or a codefendant
gives testimony that tends to incriminate the defendant, it should
be viewed with caution. This does not mean, however, that you
may arbitrarily disregard that testimony. You should give that
testimony the weight you think it deserves after examining it
with care and caution and in light of all the evidence in this
case.”
Lewis contends the trial court erred by failing to modify
CALJIC No. 3.18 to instruct the jury to evaluate the portions of
Lewis’s testimony that supported Lewis’s defense under the
general rules of witness credibility, rather than with the caution
applicable to a codefendant’s statements that tend to incriminate
a defendant. This contention lacks merit.
The Supreme Court in People v. Guiuan (1998) 18 Cal.4th
558, 569 (Guiuan) specifically approved the instructional
language used by the trial court here requiring accomplice
testimony be treated with caution where the testimony tends to
incriminate a defendant, explaining “the trial court should not be
required to parse the testimony of an accomplice to determine
whether it may be construed as ‘favorable’ or ‘unfavorable’ to the
court erred in denying his motion to dismiss under section
1118.1. (See People v. Boyce (1980) 110 Cal.App.3d 726, 736 [trial
court correctly denied motion for acquittal under § 1118.1 where
“it could not be determined . . . whether corroboration was
required because a jury question remained” whether witness was
an accomplice].)
35
defendant.” (Accord, People v. Bacon (2010) 50 Cal.4th 1082,
1111 [“The standard cautionary instruction on accomplice
testimony, CALJIC No. 3.18 . . . reflects the language of the
majority opinion in Guiuan . . . .”].)
Lewis argues the language approved in Guiuan and used
here should be modified where a defendant provides testimony in
his defense that also incriminates a codefendant to make clear
the exculpatory portion of the defendant’s testimony should be
evaluated using the general rules of credibility. The Supreme
Court rejected this argument in People v. Alvarez (1996)
14 Cal.4th 155, 218 (Alvarez), in which the defendant, as here,
testified and denied guilt but incriminated his codefendant. The
Alvarez court explained, “[T]he testimony of an accomplice-
defendant that tends to incriminate his codefendant should be
viewed with distrust. [The instruction’s] limitation—the
accomplice-defendant’s testimony should be viewed with distrust
to the extent that it tends to incriminate his codefendant—was
altogether proper.” (Ibid; see Guiuan, supra, 18 Cal.4th at
p. 569, fn. 4 [“The word ‘caution,’ connoting ‘care and
watchfulness,’ signals the need for the jury to pay special heed to
incriminating testimony because it may be biased, but avoids the
suggestion that all of the accomplice’s testimony, including
favorable testimony, is untrustworthy.”]; People v. Johnson
(2016) 243 Cal.App.4th 1247, 1274 [concluding as to testimony of
codefendant-accomplice that was part exculpatory, “Because the
accomplice testimony instructions expressly single out
‘incriminating’ testimony to be viewed with care and caution,
they do not suggest the jury must apply this standard to all
testimony given by an accomplice”].)
Lewis’s reliance on People v. Coffman and Marlow (2004)
34 Cal.4th 1 is misplaced. There, two codefendants testified at
36
trial, and each sought to blame the other for the offenses. (Id. at
p. 104.) The trial court instructed the jury to apply the general
rules of credibility when weighing each defendant’s testimony in
his or her own defense, but if it found the defendant was an
accomplice, it should view the testimony against the codefendant
with distrust. (Ibid.) The Supreme Court rejected the argument
the instruction would be confusing for the jury, but it did not hold
trial courts must modify the accomplice instruction as to the
exculpatory portion of a defendant’s testimony. (Id. at pp. 104-
105.)17
Here, consistent with Guiuan and Alvarez, the trial court
instructed the jury with CALJIC No. 3.18 regarding how to
assess the portions of Lewis’s testimony that incriminated
Booker, as well as CALJIC No. 2.20, which explained how
generally to assess witness testimony. We presume the jurors
followed the instructions that were given. (People v. Covarrubias,
supra, 1 Cal.5th at p. 915.)
17 People v. Fowler (1987) 196 Cal.App.3d 79, relied on by
Lewis, predates the Supreme Court’s decision in Guiuan and is
not controlling. Further, the trial court in Fowler instructed the
jury “‘[t]he testimony of an accomplice which tends to incriminate
the other in the offense for which they are on trial should be
viewed with distrust.’” (Id. at p. 85.) As discussed, the Supreme
Court in Guiuan, supra, 18 Cal.4th at page 569 concluded “that
the phrase ‘care and caution’ better articulates the proper
approach to be taken by the jury,” instead of the “‘with distrust’”
language used in Fowler, at page 85.
37
D. The Trial Court Did Not Abuse Its Discretion in Declining
To Hold a Hearing Regarding Juror Intimidation
1. Proceedings below
On December 21, 2018, following the People’s case in
rebuttal, Lewis’s attorney addressed the court, “Your Honor,
there’s one other issue. Yesterday my fiancé[e] came to observe
the proceedings. And she was seated in the back row by the door.
And when the jurors were returning from the three o’clock break,
she heard Juror No. 2 say to Juror No. 8, quote, ‘Don’t let them
intimidate you.’ And Juror No. 8 replied with, ‘I’m not going to
let them intimidate me. I’ve got Jesus.’” Lewis’s attorney noted
his fiancée was an attorney and available to explain what she
saw, and he requested the court inquire of the two jurors as to
the meaning of the statements. The trial court responded, “Let’s
assume it’s in reference to the plethora of people we have on my
right in the corner. Then it’s still not a discussion about the facts
of this case. It is not then presumed misconduct. Thus I will not
inquire.”
Booker’s attorney joined Lewis’s request, stating, “Your
Honor, it would be relevant if somebody feels they’re being
intimidated in some way or another. . . . If someone’s being
intimidated, that’s relevant to how they may act as a juror.”
Booker’s attorney added, “I expect, if we ask them . . . . And
Juror No. 8 is going to say, ‘Yeah, I had to tell them I had to go on
vacation on the 21st.’[18] And the other one’s saying, ‘Don’t let
them intimidate you.’ I got a feeling that’s what it is. . . . I think,
when intimidation is used by anything but a juror, we need to
know what that is.” The court responded, “Again, I understand
18 The record suggests Juror No. 8 requested to be excused
during voir dire due to a planned vacation.
38
what you’re saying. I’m not going to inquire based upon what I
heard.”
When the jury returned, the court inquired of Juror No. 8
whether continuing to sit as a juror would interfere with her
vacation plans if jury deliberations continued through
December 26. Juror No. 8 responded, “I want to move forward
with my vacation.” With the stipulation of all counsel, the trial
court excused Juror No. 8. Juror No. 2 remained on the panel.
After the jury returned its verdict, Lewis filed a motion for
a new trial, arguing “possible juror misconduct compromised [his]
right to a fair and impartial trial.” The trial court denied the
motion.
2. Applicable law and standard of review
“‘[W]hen a court is put “on notice that improper or external
influences were being brought to bear on a juror . . . ‘it is the
court’s duty to make whatever inquiry is reasonably necessary to
determine if the juror should be discharged and whether the
impartiality of the other jurors has been affected.’” [Citation.]
Such an inquiry is central to maintaining the integrity of the jury
system, and therefore is central to the criminal defendant’s right
to a fair trial.’” (People v. Fuiava (2012) 53 Cal.4th 622, 702
(Fuiava); accord, People v. Martinez (2010) 47 Cal.4th 911, 941
[“‘“[O]nce a trial court is put on notice that good cause to
discharge a juror may exist, it is the court’s duty ‘to make
whatever inquiry is reasonably necessary’ to determine whether
the juror should be discharged.”’”]; see § 1089 [authorizing the
trial court to discharge and replace a seated juror if “a juror dies
or becomes ill, or upon other good cause shown to the court is
found to be unable to perform his or her duty”].)
39
However, “‘[n]ot every incident involving a juror’s conduct
requires or warrants further investigation.’” (People v. Sánchez
(2016) 63 Cal.4th 411, 459; accord, Fuiava, supra, 53 Cal.4th at
pp. 701-702.) “‘“‘The decision whether to investigate the
possibility of juror bias, incompetence, or misconduct—like the
ultimate decision to retain or discharge a juror—rests within the
sound discretion of the trial court. [Citation.] The court does not
abuse its discretion simply because it fails to investigate any and
all new information obtained about a juror during trial.’”
[Citation.] A hearing is required only where the court possesses
information which, if proved to be true, would constitute “good
cause” to doubt a juror’s ability to perform his or her duties and
would justify his or her removal from the case.’” (People v.
Williams (2013) 58 Cal.4th 197, 290 [“spectator’s assertion that
Juror No. 6 had been ‘nodding off’ was insufficient to apprise the
trial court that good cause might exist to discharge him”]; accord,
Sánchez, at pp. 457-459 [trial court did not abuse its discretion in
failing to inquire about juror who “‘made a very adamant up and
down motion with her head’” in response to certain trial
testimony]; People v. Martinez, supra, 47 Cal.4th at pp. 940-942
[trial court did not err in declining to hold a hearing regarding
juror’s communications with prosecutor’s investigator about
defendant’s juvenile criminal record, during which juror asked
investigator to “‘get her off the jury,’” where contact was
inadvertent result of juror’s employment as clerk at juvenile
hall]; People v. Kaurish (1990) 52 Cal.3d 648, 694 [trial court did
not abuse its discretion in declining to inquire as to unidentified
juror’s derogatory remark at the end of defendant’s case to
defense counsel, “‘Oh, you son-of-a-’”].)
40
3. The trial court did not abuse its discretion in
declining to inquire of the jury regarding intimidation
Booker and Lewis argue the trial court’s failure to inquire
of Juror Nos. 2 and 8 as to possible intimidation violated their
right to an impartial jury. This contention lacks merit.
A sitting juror’s exposure to attempts by jurors or nonjurors
to tamper with the jury by intimidation may constitute good
cause for dismissal. (In re Hamilton (1999) 20 Cal.4th 273, 294-
295 [“A sitting juror’s involuntary exposure to events outside the
trial evidence, even if not ‘misconduct’ in the pejorative sense,
may require similar examination for probable prejudice. Such
situations may include attempts by nonjurors to tamper with the
jury, as by bribery or intimidation.”].) But here, the trial court
did not possess information showing an attempt to intimidate
Juror No. 8 in her role as a juror because the information
provided to the court did not show the asserted intimidation had
any relation to the substance of the trial. Further, Juror No. 2
counseled Juror No. 8 not to be intimidated, and Juror No. 8
indicated she would not be. In addition, Juror No. 8 was excused
from service due to her planned vacation immediately after the
statements were brought to the court’s attention, and there was
no evidence any other jurors had been intimidated.
Fuiava, supra, 53 Cal.4th at pages 701 to 702 is directly on
point. There, a juror reported seeing two courtroom spectators
she associated with the defendant point at and appear to discuss
some of the jurors. The juror stated the incident caused her to
experience nausea, migraines, and inability to sleep due to stress,
although she did not perceive the spectators as threatening. The
juror added that she heard other jurors discussing the incident as
they were leaving the courthouse the prior evening. The trial
court dismissed the juror without investigating whether the
41
remaining jurors had witnessed similar conduct by the
spectators. (Id. at p. 701.) The Supreme Court rejected the
defendant’s contention on appeal the trial court breached its sua
sponte duty to inquire of the remaining jurors. (Id. at p. 702.)
The Fuiava court reasoned the trial court had not observed
inappropriate behavior by spectators, and even if there had been
inappropriate gestures, “these circumstances did not suggest that
other jurors were similarly upset to the extent that they, too,
might not have been able to perform their duties as jurors.”
(Ibid.)
Here, as in Fuiava, the court did not itself witness any acts
of juror intimidation. Additionally, there were no circumstances
suggesting any jurors (including Juror No. 2) were upset or
otherwise affected by possible intimidation. Although Booker is
correct Fuiava is distinguishable in that defense counsel there
did not request a further inquiry into the spectators’ conduct,
that difference does not alter our conclusion. As the Fuiava court
observed, “Adopting defendant’s position would, in essence,
mandate that the trial court conduct an inquiry whenever it
becomes aware of any indication of a possibility that there might
be good cause to remove a juror. That is not the law.” (Fuiava,
supra, 53 Cal.4th at p. 703.)
Booker’s and Lewis’s reliance on People v. Burgener (1986)
41 Cal.3d 505, 520-521, disapproved on another ground in People
v. Reyes (1998) 19 Cal.4th 743, 756, is misplaced. There, the
Supreme Court concluded the trial court abused its discretion in
failing to conduct a further inquiry after the jury foreperson
informed the trial court in camera that a juror was intoxicated
and four other jurors had told the foreperson the same juror
smelled like marijuana. (Burgener, at pp. 520-521.) The
Burgener court explained, “[T]he foreman’s statements were
42
sufficient to raise the possibility [the juror] was intoxicated
during jury deliberations. If, due to the use of intoxicating
substances, [the juror]’s ability to follow the instructions of the
court, to deliberate, to render a verdict or otherwise discharge her
duties was compromised, she ought to have been excused.” (Id. at
p. 520.) Unlike in Burgener, where there was direct evidence a
juror may have been impaired during jury deliberations, here
there is no indication Juror Nos. 2 and 8—or any other jurors—
were intimidated with respect to the proceedings.
E. Booker Has Not Shown Ineffective Assistance of Counsel
Based on His Attorney’s Failure To Object to Admission of
His 2008 Felony Burglary Conviction
Booker asserts his trial attorney provided ineffective
assistance of counsel by failing to object under Evidence Code
section 35219 to admission of evidence of Booker’s prior felony
conviction to establish a pattern of criminal activity by Poccet
Hood gang members, and by failing to request a limiting
instruction for the jury on its use of the conviction. His
contention lacks merit.
1. Proceedings below
At trial, the People introduced evidence of the prior
convictions of four Poccet Hood members: Dan Young (2018
19 Evidence Code section 352 provides, “The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
43
conviction of multiple counts of murder, attempted murder, and
other crimes), Christopher Stone (2018 conviction of murder and
attempted murder), Lewis (2008 conviction of robbery), and
Booker (2008 conviction of felony burglary). Booker’s attorney
did not object to the admission of Booker’s prior conviction and
did not request the trial court give an instruction limiting the
purposes for which the jury could consider Booker’s 2008
conviction.
2. Governing law on ineffective assistance of counsel
“‘“To establish ineffective assistance of counsel, a defendant
must show that (1) counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was
prejudicial, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to
the defendant.”’” (People v. Rices (2017) 4 Cal.5th 49, 80; accord,
People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel); see
Strickland v. Washington (1984) 466 U.S. 668, 687-692.)
“On direct appeal, if the record ‘“sheds no light on why
counsel acted or failed to act in the manner challenged,”’ we must
reject the claim ‘“unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no
satisfactory explanation.”’” (People v. Caro (2019) 7 Cal.5th 463,
488 (Caro); accord, Mickel, supra, 2 Cal.5th at p. 198 [“[A]
reviewing court will reverse a conviction based on ineffective
assistance of counsel on direct appeal only if there is affirmative
evidence that counsel had ‘“‘no rational tactical purpose’”’ for an
action or omission.”]; see People v. Lopez (2008) 42 Cal.4th 960,
972 [“[E]xcept in those rare instances where there is no
conceivable tactical purpose for counsel’s actions, claims of
44
ineffective assistance of counsel should be raised on habeas
corpus, not on direct appeal.”].)
We presume “that counsel’s actions fall within the broad
range of reasonableness, and afford ‘great deference to counsel’s
tactical decisions.’” (Mickel, supra, 2 Cal.5th at p. 198; accord,
People v. Bell (2019) 7 Cal.5th 70, 125 [“‘Unless a defendant
establishes the contrary, we shall presume that “counsel’s
performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.”’”].)
“[T]he decision to object or not object to the admission of
evidence is inherently tactical, and a failure to object will seldom
establish ineffective assistance.” (People v. Beasley (2003)
105 Cal.App.4th 1078, 1092; accord, Caro, supra, 7 Cal.5th at
p. 514 [“The failure to object only rarely constitutes ineffective
representation.”]; People v. Lopez, supra, 42 Cal.4th at p. 972
[“‘[D]eciding whether to object is inherently tactical, and the
failure to object will rarely establish ineffective assistance.’”].)
3. Booker has not shown ineffective assistance of counsel
Section 186.22, subdivision (b)(1), provides for a sentence
enhancement for felonies “committed for the benefit of, at the
direction of, or in association with any criminal street gang.” A
criminal street gang, in turn, “is any ongoing association that has
as one of its primary activities the commission of certain criminal
offenses and engages through its members in a ‘pattern of
criminal gang activity.’ (§ 186.22, subd. (f); [citation].) A pattern
of criminal gang activity is ‘the commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained
juvenile petition for, or conviction of two or more’ specified
criminal offenses within a certain time frame, ‘on separate
45
occasions, or by two or more persons’ (the ‘predicate offenses’).”
(People v. Tran (2011) 51 Cal.4th 1040, 1044 (Tran); accord,
People v. Prunty (2015) 62 Cal.4th 59, 67; see § 186.22, subd. (e)
[requiring proof of two or more predicate offenses on separate
occasions or by two or more persons].)
“[A] predicate offense may be established by evidence of an
offense the defendant committed on a separate occasion.
Further, that the prosecution may have the ability to develop
evidence of predicate offenses committed by other gang members
does not require exclusion of evidence of a defendant’s own
separate offense to show a pattern of criminal gang activity.”
(Tran, supra, 51 Cal.4th at p. 1044.) Under Evidence Code
section 352 the trial court may exclude evidence where the
probative value is substantially outweighed by its prejudicial
effect. But as the Supreme Court explained in Tran, “[B]ecause
the prosecution is required to establish the defendant was an
active participant in a criminal street gang and had knowledge of
the gang’s criminal activities, the jury inevitably and necessarily
will in any event receive evidence tending to show the defendant
actively supported the street gang’s criminal activities. That the
defendant was personally involved in some of those activities
typically will not so increase the prejudicial nature of the
evidence as to unfairly bias the jury against the defendant. In
short, the use of evidence of a defendant’s separate offense to
prove a predicate offense should not generally create ‘an
intolerable “risk to the fairness of the proceedings or the
reliability of the outcome.”’” (Tran, at p. 1048.)
It is not reasonably probable the trial court would have
sustained Booker’s objection under Evidence Code section 352 to
admission of his 2008 conviction for felony burglary, an offense
decidedly less serious than those in the present case. (See Tran,
46
supra, 51 Cal.4th at p. 1047.) Booker’s contention the
prosecution could have relied on the two convictions of Poccet
Hood gang members not on trial is not persuasive. To the
contrary, “the court need not limit the prosecution’s evidence to
one or two separate offenses lest the jury find a failure of proof as
to at least one of them . . . .” (Id. at p. 1049.)
Moreover, Booker has not shown a reasonable probability
he would not have been convicted if the trial court had excluded
the evidence of his 2008 conviction. As discussed, the evidence
Booker shot and killed Raya was strong. Booker was present at
the liquor store immediately before the killing. He was arrested
driving a white car with tinted windows, fitting Lott’s description
of the shooter’s vehicle. And Posey identified Booker as the
shooter.
Booker’s argument his attorney provided ineffective
assistance of counsel by failing to request a limiting instruction
as to the jury’s use of the prior conviction also fails. Booker was
entitled to a limiting instruction at his request. (Evid. Code,
§ 355 [“When evidence is admissible . . . for one purpose and is
inadmissible . . . for another purpose, the court upon request
shall restrict the evidence to its proper scope and instruct the
jury accordingly.”].) But the record does not reveal why Booker’s
attorney did not request a limiting instruction on the jury’s
consideration of Booker’s prior conviction. The decision not to
object may reasonably have been a strategic decision by Booker’s
attorney to avoid drawing unnecessary attention to Booker’s prior
conviction. (See People v. Griggs (2003) 110 Cal.App.4th 1137,
1141 [“[W]hether to seek a limiting instruction is a tactical
decision properly left to defense counsel, since defense counsel
might conclude that the risk of a limiting instruction
(unnecessarily highlighting a defendant’s status as a felon)
47
outweighed the questionable benefits such an instruction would
provide.”].) Affording great deference to defense counsel, we
cannot say Booker’s attorney had no rational tactical purpose for
his failure to object to the evidence. (Mickel, supra, 2 Cal.5th at
p. 198; Caro, supra, 7 Cal.5th at p. 514.)
F. The Record Does Not Support Remand for Resentencing
Pursuant to Section 12022.53, Subdivision (h)
Booker and Lewis contend remand is necessary to permit
the trial court to exercise its discretion whether to strike the
greater of the firearm enhancements imposed as part of their
sentences (§ 12022.53, subd. (d)) and instead to impose a lesser
enhancement (id., subd. (b) or (c)). Their contention lacks merit
because, on the record here, the trial court was aware it had the
sentencing authority under section 12022.53, subdivision (h), to
strike or dismiss the firearm enhancements, but clearly indicated
it would not exercise its discretion.
At sentencing, the trial court stated as to Booker on
count 1, “I’m aware of my discretion to strike the [section]
12022.53[,] subdivision (d) allegation pursuant to [section]
12022.53[,] subdivision (h) and I am not striking that allegation
based upon the facts of the case as well as the prior convictions in
this matter.” As to count 2, the court stated, “I am aware of my
discretion to strike the enhancement pursuant to [section]
12022.53[,] subdivision (h), and, again, I’m choosing not to strike
those allegations based upon the reasons I gave previously.” As
to Lewis on count 1, the trial court similarly stated, “Pursuant
to . . . section 12022.53[,] subdivision (h), again, I am aware of my
discretion . . . . I’m choosing not to exercise my discretion . . .
based upon the circumstances of this crime as well as the prior
convictions of this defendant.” As to count 2, the court stated,
48
“[P]ursuant to . . . section 12022.53[,] subdivision (h) . . . the court
will not dismiss those and exercise my discretion . . . .” Although
the court in imposing and staying the additional firearm
enhancements under section 12022.53, subdivisions (b) and (c),
did not explicitly state it was aware of its discretion to impose
one of those enhancements in lieu of imposition of the greater
enhancement, there is nothing in the record to suggest the court
was not aware of its clear authority under section 12022.53,
subdivision (h), to do so.20
People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison),
relied on by Booker and Lewis, is distinguishable. There, the
jury found true that the defendant personally discharged a
firearm causing death (§ 12022.53, subd. (d)), but no lesser
firearm enhancement under subdivision (b) or (c) was alleged or
presented to the jury. (Morrison, at p. 221.) The Court of Appeal
concluded the trial court had discretion to impose an unalleged
lesser enhancement under section 12022.53, subdivision (b) or (c),
after striking the greater firearm enhancement (§ 12022.53, subd.
(d)). (Morrison, at p. 222; but see People v. Garcia (2020)
46 Cal.App.5th 786, 790-791, review granted June 10, 2020,
S261772 (Garcia) [“[S]ection 12022.53, subdivision (h) does not
grant a trial court the discretion to substitute lesser included
enhancements, at least where the greater enhancement is legally
and factually valid.”]; People v. Tirado (2019) 38 Cal.App.5th 637,
643, review granted November 13, 2019, S257658 (Tirado)
[“Nothing in the plain language of sections 1385 and 12022.53,
20 As to both Booker and Lewis, the court also expressly
declined to exercise its discretion to strike or dismiss the prior
serious felony enhancement under section 667, subdivision (a)(1).
49
subdivision (h) authorizes a trial court to substitute one
enhancement for another.”].)
Morrison is inapposite because, as the court there observed,
“The question of whether the court may elect to impose
uncharged lesser firearm enhancements as part of its discretion
under . . . the amended version of section 12022.53, subdivision
(h) only arises in cases where those enhancements have not been
charged in the alternative and found true . . . .” (Morrison, supra,
34 Cal.App.5th at pp. 224-225.) This is not such a case.
Here, the information alleged Booker and Lewis violated
section 12022.53, subdivisions (b), (c), and (d). The jury found
true each special allegation. Thus, even before the decision in
Morrison, the trial court had discretion under section 12022.53,
subdivision (h), to strike or dismiss any or all of the
enhancements under section 1385. Although the court only
specifically discussed its discretion to strike the greater
enhancement under section 12022.53, subdivision (d), there is
nothing in the record to suggest the court was not aware of its
discretion to strike the greater enhancement but impose the
lesser enhancement, nor does the record suggest the court would
have done so given its repeated references to the serious nature
of the crimes and defendants’ prior convictions.
G. There Is No Cumulative Error
Booker and Lewis contend that even if no single error
warrants reversal, the cumulative effect of the trial court’s errors
requires reversal. “‘Under the cumulative error doctrine, the
reviewing court must “review each allegation and assess the
cumulative effect of any errors to see if it is reasonably probable
the jury would have reached a result more favorable to defendant
in their absence.”’” (People v. Mireles (2018) 21 Cal.App.5th 237,
50
249; accord, People v. Cunningham (2001) 25 Cal.4th 926, 1009
[“‘[A] series of trial errors, though independently harmless, may
in some circumstances rise by accretion to the level of reversible
and prejudicial error.’”].) Because there was no error (other than
as to the attempted murder convictions, which we reverse), there
was no cumulative error.
H. The Abstract of Lewis’s Judgment Must Accurately Reflect
His Sentence
On count 1 for the first degree murder of Raya, the trial
court imposed on Lewis a sentence of 25 years to life for the
firearm enhancement under section 12022.53, subdivisions (d)
and (e)(1). On count 3 for shooting at an occupied vehicle, the
trial court imposed but stayed a sentence of 25 years to life also
under section 12022.53, subdivisions (d) and (e)(1). However, the
abstract of judgment shows the trial court stayed imposition of
the sentence on the firearm enhancement as to count 1, but not
as to count 3. When the new abstract of judgment is prepared, it
must conform to the sentence orally pronounced by the trial
court.21
21 The abstract of judgment for Lewis also fails to reflect the
trial court stayed on count 1 the firearm enhancement under
section 12022.53, subdivisions (b) and (e)(1). The abstract of
judgment for Booker likewise does not reflect the trial court
imposed and stayed as to counts 1 and 2 the firearm
enhancements under section 12022.53, subdivisions (c) and (e)(1).
51
DISPOSITION
We reverse Booker’s and Lewis’s convictions of attempted
murder and remand for further proceedings consistent with this
opinion. In all other respects, the convictions are affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
52