People v. Smith CA2/4 ( 2024 )

Filed 1/4/24 P. v. Smith CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B321024
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A711739
v.
DONALD FRANKLIN SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Henry J. Hall, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Dana Muhammad Ali and Colleen
M. Tiedemann, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
In 1995, a jury convicted defendant and appellant Donald
Franklin Smith of two counts of first degree murder, two counts
of second degree murder, and one count of attempted murder.
After a penalty trial, the jury returned a verdict of death.
In 2020, Smith filed a petition for resentencing under
former Penal Code section 1170.95.1 The trial court issued an
order to show cause on the second degree murder and attempted
murder counts, then, following an evidentiary hearing, granted
Smith relief on those counts. The court subsequently vacated the
death sentence, and resentenced Smith to consecutive terms of
life without the possibility of parole on the first degree murder
counts.
On appeal, Smith argues because the jury was instructed
on the natural and probable consequences doctrine, the trial
court erred by denying his petition on the first degree murder
convictions at the prima facie stage. He further argues he is
entitled to an evidentiary hearing on one of those counts. We
disagree. The trial court properly denied relief on those counts at
the prima facie stage because the record demonstrates they were
not based on the natural and probable consequences doctrine, but
rather on the theory that Smith harbored the intent to kill. We
therefore affirm the trial court’s order denying relief on the first
degree murder counts.
1 All undesignated statutory references are to the Penal
Code. Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute.
2
PROCEDURAL BACKGROUND2
In 1995, a jury convicted Smith of the first degree murders
of Andre Armstrong and James Brown (counts three and four),
the second degree murders of Loretha Anderson and Chemise
English (counts one and two), and the attempted murder of
Carlos English (count five). (§§ 187, subd. (a), 664.) The jury
found true the special circumstance allegation that Smith
committed multiple murders and at least one of the murders was
in the first degree. (§ 190.2, subd. (a)(3).) Following a penalty
phase trial, the trial court sentenced Smith to death. The
Supreme Court affirmed the judgments of Smith and his
codefendants in People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335 (Bryant, Smith, and Wheeler).
In 2020, Smith filed a resentencing petition under former
section 1170.95. In February 2022, the trial court held an
evidentiary hearing, then issued a written order granting relief
on the second degree murder and attempted murder counts. The
court vacated the convictions on those counts, but denied relief on
the first degree murder counts.
In March 2022, the trial court vacated the death sentence
and scheduled a resentencing hearing. Then, in April 2022, the
court sentenced Smith to consecutive terms of life without the
possibility of parole on those counts.
Smith timely appealed.
2 We granted Smith’s request for judicial notice of the record
of his jury trial. That record was prepared as part of Smith’s
automatic appeal in California Supreme Court case number
S049596.
3
FACTUAL BACKGROUND3
“The presentation of guilt phase evidence lasted two and
one-half months. It included the testimony of 121 witnesses and
more than 270 exhibits including hundreds of pages of documents
and a number of video and audio tapes. In the penalty phase, 41
witnesses testified over the course of seven days. We present here
for background purposes a synopsis of the significant evidence,
generally viewed in the light most favorable to the verdicts.
Additional factual and procedural details necessary to resolve
defendants’ appellate claims are provided in the pertinent
discussion.
“A. Guilt Phase
“1. Overview
“The original charges included a number of noncapital
offenses with additional defendants involved in the Bryant
Family drug operation. The court severed and tried the capital
allegations first. The prosecution’s basic theory was that Bryant
directed the shootings of Armstrong and Brown because
Armstrong was a threat to Bryant’s business. The prosecution
maintained that Smith, Wheeler, and codefendant Settle were
underlings who participated in the murders at Bryant’s direction.
After Armstrong and Brown were killed, the prosecution
asserted, Wheeler shot Ms. Anderson and Chemise and
3 The following facts are taken from the Supreme Court’s
decision resolving Smith’s direct appeal in Bryant, Smith, and
Wheeler, supra, 60 Cal.4th 335. We include this information
solely to provide background and context for the parties’
arguments, and do not rely on it to resolve this appeal. (See
People v. Delgadillo (2022) 14 Cal.5th 216, 222, fn. 2.)
4
attempted to murder Carlos to eliminate them as potential
witnesses.
“Smith presented no evidence at the guilt phase. Wheeler
testified and admitted some low-level activity in the drug
business, but claimed he was not involved in the murders. Bryant
also admitted he was a member of the organization. He asserted
his role was less significant than the prosecution alleged, and
that he had no role in the murders.
“2. Prosecution Evidence
“In the 1980’s, Bryant and his older brother Jeff Bryant
(Jeff) controlled a large-scale cocaine operation in the suburbs of
Los Angeles. Their organization was known as ‘the Family’ or ‘the
Bryant Family’ and had over 100 employees. A number of these
testified at trial about Family operations. Seized records
indicated the Family took in well over $1 million during three
months of 1988.
“The Family used a number of houses to prepare and sell
drugs and process the money from sales. Typically, the houses
were fortified. Windows and doors were covered and locked, [and]
metal gates with electronic locks and blackout screens were
erected at front entrances to create ‘sally ports.’ Someone
entering the house would be enclosed between two locked gates
and unable to see farther into the residence. Barricaded or
reinforced locked doors inside blocked access between rooms.
“These fortifications were encountered during interdiction
operations in 1984 and 1985. Ultimately, police served search
warrants at several Family houses. Service of the warrants
required the use of various entry tactics. Sometimes a vehicle
resembling a military tank would break a hole in an exterior wall
so officers could enter. As a result of these investigations, Jeff
5
pleaded guilty to charges of selling cocaine and operating a house
where narcotics were sold. Defendant Bryant pleaded guilty to
conspiracy. He admitted hiring a coconspirator to sell cocaine at a
Bryant Family ‘rock house’ on Wheeler Avenue, the same house
where the murders later occurred (hereinafter sometimes
referred to as Wheeler Avenue). Apparently, these events were
only a minor setback; widespread operations continued. When
Bryant was released from custody, he ran the street enterprise.
Although Jeff remained imprisoned, he was still considered the
overall Family leader. Houses damaged during police raids were
repaired, refortified, and returned to service.
“The Family also engaged in ancillary violent activities. As
relevant here, in 1982, Bryant and Jeff hired Andre Armstrong to
act as a ‘hit man.’ Armstrong subsequently shot Reynard
Goldman for failing to pay a $50 drug debt. He killed Kenneth
Gentry, who had vandalized another Bryant brother’s van.
Bryant, Jeff, and Armstrong were charged with the Goldman
assault and Gentry murder. After the Family bribed and
threatened witnesses, charges against the Bryant brothers were
dropped. Armstrong, however, was convicted at trial of felony
assault and first degree murder. When his convictions were
reversed on appeal, he pleaded guilty to felony assault and
voluntary manslaughter. He was paroled in July 1988.
“While Armstrong was in prison, Bryant and other Family
employees sent thousands of dollars to him and his relatives.
Several months before Armstrong was paroled, the Family helped
his friend James Brown set up a cocaine operation in Monterey.
Nonetheless, Armstrong remained unhappy with the level of
support he had received. Weeks after meeting Brown in
Monterey, Armstrong decided they should return to Los Angeles.
6
Armstrong told several people, including police officers who had
interviewed him in prison, that he intended to ‘squeeze’ the
Bryants for money and part of their business. He considered
them weak, and felt they failed to honor their promise to prevent
his conviction. While in Monterey, Armstrong began an intimate
relationship with Bryant’s ex-wife, Tannis Curry. These decisions
proved ill advised.
“On Friday, August 26, 1988, Brown, Andrew Greer, Elaine
Webb, and Loretha Anderson and her two children moved to Los
Angeles. Armstrong and Tannis had gone there a few days
earlier. Bryant had provided an apartment, but it was dirty.
Armstrong wanted Bryant to pay for cleaning before they moved
in. On Saturday, the group went to a pool hall to meet Bryant
and complain about the accommodations. On Sunday, Armstrong,
Brown, and Greer went to Tannis’s separate apartment.
Armstrong paged Bryant, then received a call. He told the others
they were to meet ‘Stan’ at a Wheeler Avenue house to pick up
$500 and cleaning supplies. Armstrong told Tannis to bring a
pistol, which she placed in her purse.
“Before meeting Stan, the group went to the home of
Tannis’s aunt. When they left, Tannis remained behind. Greer
was concerned about the meeting and did not attend. Anderson
decided she and her children would go along to the meeting so
they could all get something to eat afterwards.
“Several people near the Wheeler Avenue house heard
multiple gunshots at approximately 5:00 p.m. Shortly thereafter,
a tall, thin African-American man emerged, went to a car parked
outside, and shot into the car. He then got in the car and drove
away. One witness identified a photograph of defendant Wheeler
7
as the driver.[4] A witness also saw what might have been a car
owned by Bryant leaving the house after the shooting. Another
witness saw a large green car with a driver, front seat passenger,
and two men in the backseat leaning against each other in an
unusual way.
“Within minutes of the shootings, the victims’ car was
found about seven blocks away. Inside were the lifeless bodies of
Loretha Anderson and Chemise English. Anderson had been shot
several times with both a shotgun and a handgun. Chemise had
been fatally shot in the neck by a handgun at close range. Carlos
was also in the car. While not shot, he was injured by flying
glass.
“Four days later the bodies of Armstrong and Brown were
found in roadside brush approximately five miles from Wheeler
Avenue. Armstrong had been shot twice with a shotgun. A shot to
the center of his chest was probably fired from a distance of four
feet or less. A second to his head was apparently fired with the
shotgun muzzle almost touching his skin. He was also shot with a
handgun. Brown was shot twice with a shotgun and twice in the
chest with a handgun. The fatal shot was fired into his heart with
the handgun muzzle pressed against him. Evidence at Wheeler
Avenue, including blood patterns, bullet holes, and expended
cartridges, indicated that Armstrong and Brown had been shot in
the front entrance sally port. Their bodies were dragged through
the house into the garage.
4 “Although the witness insisted that the photograph of
Wheeler was of the driver of the victim’s car, she repeatedly
pointed to Bryant when asked if she saw the person in court. She
had testified at the preliminary hearing that she had not been
able to ‘get a good i.d.’ of the driver, and did not identify any
defendant as the driver at those earlier proceedings.”
8
“James Williams, a Bryant Family employee, was present
at Wheeler Avenue before and during the crimes. He started
working for the Family at the beginning of April 1988 and
initially worked at Bryant’s pool hall. His primary duty was to
tell cocaine purchasers where to go to acquire drugs. Williams
was quickly promoted to working at the Wheeler Avenue ‘count
house.’ There, money from drug sales was counted and bundled.
Family employees came to the house to pick up their weekly pay.
People wishing to purchase larger quantities of cocaine would
also arrange purchases at Wheeler Avenue.
“Williams, defendant Wheeler, and Lamont Gillon normally
worked daily staggered eight-hour shifts at the count house. A
fourth employee, Anthony Arceneaux, would fill in for the other
three on their days off. Bryant, who was referred to as ‘Chief,’
regularly visited and gave Williams directions. Williams knew
defendant Smith worked for the Family because he picked up his
weekly pay at the house. Williams did not know Smith’s role in
the organization.
“On the day of the murders Williams was working when
Bryant arrived around 2:00 p.m. At some point, Bryant had
Williams contact Arceneaux and tell him not to come to work.
Bryant moved money along with counting and adding machines,
normally kept in the house, into the garage. He also carried a
heavy duffle bag from the garage into a back bedroom. Later,
Wheeler and Smith arrived and joined Bryant in the back room.
It was unusual for Wheeler and Smith to be there on a Sunday
afternoon. Bryant also remarked several times that ‘Johnny’ was
late. Subsequently, codefendant Jon Settle, whom Williams had
never seen at the house before, arrived and went into the back
room also.
9
“Sometime later, Williams heard a gunshot from the rear of
the house. Bryant emerged and asked how loud a noise the shot
had made. Later, Settle came out, chambered a shotgun round,
and returned to the bedroom. Eventually, Bryant, Smith, and
Wheeler came to the front room. Bryant said they were expecting
some people and told Williams what to do when they arrived.
After they entered the sally port, Williams was to release the
electronic lock on the outside door so Bryant could leave. When
he had done so, Williams was to go out through the garage to a
green car parked in the driveway and back it into the garage. He
would then walk to a nearby bus stop, watching to see if any
neighbors were looking.
“Eventually, Williams saw two strangers approach. After
they entered the sally port, Williams unlocked the outer gate so
Bryant could leave. As Williams walked back toward the garage,
he heard gunshots and screams. While backing the green car
inside, he saw Wheeler outside with a shotgun. Wheeler
approached a car parked at the curb and Williams heard glass
breaking. After parking the green car Williams saw Bryant in the
garage. Bryant told him to leave. While walking to the bus stop,
he saw Wheeler driving the car that had been parked in front of
the house. Bryant drove away in his own car. Smith and Settle
left in the green car. Bryant later called Williams and told him
not to go back to the house and not to talk about what had
happened.
“Several days later, a Family employee told Williams he
had been identified. Williams was told to leave Los Angeles; the
Family would cover his expenses. He went to Pennsylvania and
received a $500 wire transfer from a Family employee.
10
Eventually arrested in Harrisburg, he gave several statements
about the shootings in exchange for immunity.
“Bryant’s and Wheeler’s fingerprints were found in the
Wheeler Avenue house. Bryant’s prints were found on a portable
telephone and on the page of an address book containing an entry
for the alias victim James Brown was using. Expended cartridges
from three different shotguns were found at the house. An
expended .45-caliber casing was also found in a trash can. It had
been fired from a handgun later recovered in Bryant’s house.
“The day after the shootings, Bryant and Wheeler visited
Jeff at Donovan State Prison.
“Six days after the murders, Bryant bought a new car using
the name of a Family employee. He traded in his relatively new
car, which matched the description of the one Williams said
Bryant had driven to Wheeler Avenue. Examination of the trade-
in yielded positive presumptive tests for the presence of blood at
the driver’s feet.
“Bryant told Ladell Player, a drug dealer supplied by the
Family, that the police had been at Wheeler Avenue because ‘we
had some problems, but we took care of them.’ Bryant also told
Alonzo Smith that, in essence, Brown ‘had to go.’
“On September 25, 1988, police officers searched the
apartment of Wheeler’s girlfriend, and found a handgun
consistent with the one used to shoot Loretha Anderson and her
daughter. They also recovered two newspaper articles related to
the murders, and $ 7,650 in cash hidden in the ceiling.
“On September 29, 1988, police searched Bryant’s house.
They found numerous items related to Family business, the
handgun that had fired the expended cartridge found at Wheeler
11
Avenue, several keys to that house, and papers with telephone
numbers for James Brown and relatives of Andre Armstrong.
“Extensive telephone records suggested the following.
Bryant and Smith talked to Armstrong or his relatives after he
was released from prison. Before the murders Bryant and Smith
exchanged numerous phone calls, Bryant and Wheeler called
each other repeatedly, and each defendant made several calls to
Wheeler Avenue.
“In an effort to establish an apparent additional motive for
Bryant to murder Andre Armstrong, and to further tie Smith to
the murders, the prosecution introduced evidence of two attacks
on one Keith Curry. When attacked, Curry, like victim Andre
Armstrong, had been involved in an intimate relationship with
Bryant’s ex-wife Tannis. He also was friendly with defendant
Smith. The prosecution asserted that Bryant was jealous of
Armstrong’s affair. Because Smith and Armstrong were friends,
Smith’s presence at Wheeler Avenue was designed to place
Armstrong at ease before the shooting.
“Curry testified that he began dating Tannis when her
relationship with Bryant was unstable. Tannis moved into an
apartment where Curry typically spent three or four nights a
week. On the morning of March 16, 1986, Curry left the
apartment and his car exploded. A bomb was triggered by the
car’s movement. Curry was slightly injured. Tannis told an
acquaintance that Bryant said he put the bomb in Curry’s car
and ‘would do it again . . . until [Curry] was dead.’
“Tannis divorced Bryant and married Curry. One evening
Smith and Curry were engaged in small talk when Smith
suddenly shot Curry in the neck, paralyzing him. Smith was
arrested later that night and police found a revolver and what
12
appeared to be rock cocaine packaged for sale in his car. He was
later released on bail after several properties connected to the
Family were posted as security.
“3. Wheeler’s Evidence
“Wheeler testified he joined the Family in early 1988. He
began selling drugs for Eddie Barber, who ran a semiautonomous
‘crew.’ Later, at Barber’s direction, Wheeler started working at
Wheeler Avenue. James Williams ran Wheeler Avenue, and
served as an ‘enforcer.’
“On the day of the murders, Wheeler completed his shift at
7:00 a.m. then spent the day with his girlfriend visiting their
families in Los Angeles. At 3:00 that afternoon and again at 10:45
that evening, he received a page. In response, Wheeler called
Williams who told him not to come to work.
“Eddie Barber had previously instructed Wheeler to visit
Jeff in prison the next day to report about drug operations.
Wheeler was unaware of the shootings until he heard about them
from Bryant, who was also visiting Jeff. If Wheeler had been
involved in the murders he would not have visited Jeff the next
day because doing so would have connected Jeff to the murders.
If he had been involved, he would have fled, using money he had
saved from his drug dealing.
“All Wheeler knew about Bryant’s role in the Family was
he arranged bail when members were arrested. He had not met
codefendant Jon Settle before court proceedings began.
“Wheeler’s girlfriend testified that she did not specifically
remember what she and Wheeler did on the day of the shootings;
they customarily visited family on Sundays.
13
“4. Smith’s Evidence
“Smith offered no evidence at the guilt phase of the trial.
“5. Bryant’s Evidence
“Bryant testified. While admitting his involvement in the
drug business, he denied or attempted to refute evidence
connecting him to the murders. He claimed he worked for his
brother until Jeff went to prison. Bryant then turned the drug
business over to William Settle, who was running things when
the murders occurred. William Settle was the brother of
codefendant Jon Settle. Bryant was never in charge. William
Settle paid Bryant for the use of his pool hall in connection with
the drug business. Bryant also worked at Wheeler Avenue
counting money. He ‘probably’ had been there every day in 1988.
However, he was not there the day of the murders and never
subsequently returned. He had never been there with Williams.
Bryant’s activities were all done at someone else’s direction.
“Bryant did not arrange a meeting with Armstrong at
Wheeler Avenue. He spent most of the day of the murders at
home. He denied that he drove a car like the one seen leaving the
house. He never spoke with Ladell Player about what had
happened at the house. He visited Jeff in prison the day after the
murders to get advice about how to end his association with
William Settle.
“Bryant was uninvolved with the attacks on Kenneth
Gentry, Reynard Goldman, and Keith Curry. He did not know
Gentry, and did not hire Armstrong to kill him. After they were
arrested for the Gentry murder, Armstrong told Bryant he shot
Gentry because they had both been dating the same woman.
Armstrong had decided to preemptively kill Gentry before Gentry
14
acted against him. Bryant had not threatened Reynard Goldman
about any drug debt. He denied knowing anything about the
attempts to bribe witnesses in the Gentry and Goldman
shootings. He had nothing to do with the car bombing of Keith
Curry, and never told Tannis that he wanted to kill him.
“Through the testimony of investigating officers, Bryant
presented various inconsistencies between James Williams’s
statements to the police and his testimony at trial.
“6. Codefendant Settle’s Evidence
“Codefendant Settle testified and presented other evidence
that he was an automobile mechanic and was only peripherally
connected to the Family drug business through his brothers
William and Frank. He did not participate in the murders, but
did sell Bryant a green 1970 Pontiac Bonneville on the day of the
shootings. According to Settle, defendant Wheeler drove Settle’s
brother Frank to pay for the Bonneville and to pick up another
car Settle had repaired for Bryant. Frank later told Settle that
the Bonneville had been used in the murders.” (Bryant, Smith,
and Wheeler, supra, 60 Cal.4th at pp. 352-360.)
DISCUSSION
I. Governing Law
The Legislature enacted Senate Bill 1437 (SB 1437) “to
amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f);
15
accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).) Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775)
expanded SB 1437 to include convictions for attempted murder
under the natural and probable consequences doctrine. (Stats.
2021, ch. 551.)
SB 1437 also added section 1170.95 to the Penal Code
which, as mentioned above, was later renumbered to section
1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This
section permits individuals who were convicted of felony murder
or murder under the natural and probable consequences doctrine,
but who could not be convicted of murder following SB 1437’s
changes to sections 188 and 189, to petition the sentencing court
to vacate the conviction and resentence on any remaining counts.
(§ 1172.6, subd. (a).) It likewise permits individuals who were
convicted of attempted murder under the natural and probable
consequences doctrine, but who could not be convicted of
attempted murder under current law, to petition the sentencing
court for relief. (Ibid.) It also provides relief for certain
individuals convicted of murder or attempted murder under any
“other theory under which malice is imputed to a person based
solely on that person’s participation in a crime.” (Ibid.)
A petition for relief under section 1172.6 must include a
declaration by the petitioner that he or she is eligible for relief
based on all the requirements of subdivision (a), the superior
court case number and year of the petitioner’s conviction, and a
request for appointment of counsel, should the petitioner seek
appointment. (§ 1172.6, subd. (b)(1).)
Subdivision (c) of section 1172.6 provides: “Within 60 days
after service of a petition that meets the requirements set forth in
subdivision (b), the prosecutor shall file and serve a response.
16
The petitioner may file and serve a reply within 30 days after the
prosecutor’s response is served. These deadlines shall be
extended for good cause. After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for
relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause. If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for
doing so.”
If the trial court determines the petitioner has made a
prima facie showing for relief and issues an order to show cause,
the court must hold a hearing “to determine whether to vacate
the murder [and] attempted murder . . . conviction[s] and to
recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not
previously been sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.” (§ 1172.6, subd.
(d)(1).) At the hearing, the parties may rely on the record of
conviction or present “new or additional evidence” to support
their positions, and “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)
II. Analysis
As discussed in greater detail below, because the record
demonstrates Smith is ineligible for relief as a matter of law on
his first degree murder convictions, we reject his contention that
the trial court erred by denying relief on those counts.
17
A. Background
In 2017, Smith filed a capital habeas corpus petition in the
California Supreme Court. In 2019, the Supreme Court
transferred the matter to the trial court. The original trial judge
was no longer on the court, so the matter was assigned to a
different judge.
In 2020, the trial court requested supplemental briefing
addressing whether SB 1437 affected Smith’s second degree
murder convictions. Smith filed a pro se section 1172.6 petition
requesting appointment of counsel. Smith’s attorney later filed a
supplemental petition for resentencing. In the supplemental
petition, counsel argued Smith was eligible for relief on his
second degree and first degree murder convictions. In its
response, the prosecution conceded Smith had made a prima facie
showing for relief on the second degree murder convictions and
agreed that on those counts, the court should issue an order to
show cause and hold an evidentiary hearing. The prosecution
argued that, with respect to the first degree murder counts, the
record demonstrated as a matter of law that Smith was convicted
under the theory that he harbored the intent to kill.
In 2021, the trial court issued an order to show cause why
relief should not be granted on the second degree murder
convictions. Later, after the passage of SB 775, the trial court
granted Smith’s request to include a challenge to his attempted
murder conviction in his resentencing petition.
At the outset of the evidentiary hearing, held in 2022, the
trial court stated:
I did issue an order to show cause in this matter back
in the day, a little bit before some of the law was
clarified.
18
I thought that based on my reading of the record that
the order to show cause would only apply to counts
one and two [the second degree murder counts] and
then with the changes in the law count five [the
attempted murder count] as well.
I’m not sure that the law allows at this point the
excising out of counts two and three or three and
four, but we can deal with that I suppose.[5]
The evidentiary hearing focused solely on the second degree
murder and attempted murder convictions. During argument,
defense counsel suggested Smith’s first degree murder
convictions did not fall within SB 1437. The trial court
responded:
I think everything’s the subject of the 1437 petition.
At this point I don’t know the way they attach it
allows me to parse it out that way, but I think in
terms of whether there’s going to be relief granted
that there’s not going to be relief to those two counts.
Defense counsel stated, “Okay. And that says it better. I
don’t want to unduly submit on something.” He then clarified:
“For the record, I’ll say I’m contesting all of the counts under [SB]
1437 but the emphasis of my argument is the [second degree] [ ]
murders [ ] and the attempted murder.”
The trial court later issued a written order granting relief
on the second degree murder and attempted murder convictions
5 It appears the trial court was unsure whether, because it
was proceeding to an evidentiary hearing on some of the counts,
it was therefore required to proceed to an evidentiary hearing on
all counts.
19
but denying relief on the first degree murder convictions. The
court addressed the first degree murder convictions in a footnote,
stating:
[ ] Smith’s legal liability for the first degree murders
of Andre Armstrong and James Brown, as alleged in
Counts Three and Four, is not in issue here. The
parties agree on this.
The evidence is overwhelming that Smith had acted
as “muscle” for the Bryant “Family” in the past, that
he was present and joined in the backroom meeting
where the shootings of those two men were
presumably discussed and planned and had had
numerous communications with codefendant Bryant
during the days leading up to the murders and the
period shortly after the murders. Whether [ ] Smith
personally fired any of the fatal shots is debatable
but there is no question that as at least an actual
aider and abettor to those murders he knew of the
crimes that codefendants Bryant and Wheeler
intended to commit, was aware of their murderous
intent, and assisted in the commission of those
crimes. (People v. McCoy (2001) 25 Cal.4[th] 1111,
1117.) As a direct aider and abettor, he is criminally
liable for the acts for which each of those elements is
present. (Pen. Code § 31, People v. Bryant, Smith and
Wheeler, supra 60 Cal.4[th] 335, 433-434.) Those acts
clearly encompass [ ] the murders of Armstrong and
Brown. The jury so found in convicting [ ] Smith of
first degree willful, deliberate, and premeditated
murders as to those victims. Derivative liability
20
based on direct aiding and abetting survived the
changes in the law resulting from 2018 Senate Bill
1437 and 2021 Senate Bill 775 because it maintains
the requirement that the defendant personally
harbor the mental state of malice aforethought.
(People v. Nguyen (2020) 53 Cal.App.5[th] 1154, 1164;
People v. Offley (2020) 48 Cal.App.5[th] 588, 596.) [ ]
Smith appears to agree with this analysis and
conceded that an order to show cause should only be
issued on the second degree murder counts (Counts
One and Two) and the attempted murder count,
Count Five.[6]
The same day the court issued its written order resolving
Smith’s petition, the court also issued a limited order to show
cause why Smith’s habeas corpus petition to recall and vacate his
death sentence on the first degree murder counts (counts three
and four) should not be granted and a new sentencing hearing
ordered, including a new penalty phase trial should the
prosecution decide to seek the death penalty.
The hearing on the order to show cause was held on March
24, 2022. The prosecution agreed that the trial court had the
authority to recall and vacate the remaining death sentences and
resentence Smith on the first degree murder convictions. The
court vacated the judgment of death on those convictions, and the
prosecution elected not to retry the penalty phase. The court set a
sentencing hearing at which the only issues would be whether
6 At later hearings, Smith’s attorneys challenged the trial
court’s statement that this issue had been conceded, and clarified
for the record they believed Smith was eligible for relief on all
counts.
21
the life sentences on the first degree murder convictions would be
with or without the possibility of parole and whether the
sentences would run concurrently or consecutively.
In April 2022, the court sentenced Smith to consecutive
terms of life without the possibility of parole. In May 2022, the
court denied the guilt phase claims in Smith’s petition for writ of
habeas corpus and dismissed the penalty phase claims as moot.
B. Analysis
Smith argues the trial court erred by concluding he was
ineligible for relief as a matter of law on the first degree murder
convictions, and contends the case must be remanded for an
evidentiary hearing on one of those counts (count four). We are
not persuaded.
It is true, as Smith points out, that the jury was instructed
on the natural and probable consequences doctrine. First, the
court instructed the jury on aiding and abetting liability using
CALJIC No. 3.01. That instruction stated, in pertinent part:
A person aids and abets the [commission] [or]
[attempted commission] of a crime when he or she,
(1) with knowledge of the unlawful purpose of the
perpetrator and
(2) with the intent or purpose of committing,
encouraging, or facilitating the commission of the
crime, by act or advice aids, promotes, encourages or
instigates the commission of the crime.
Then, in addition to instructing the jury on actual malice murder,
the court instructed the jury on the natural and probable
consequences doctrine using CALJIC No. 3.02. That instruction
provided:
22
One who aids and abets another in the commission of
a crime or crimes is not only guilty of that crime, or
those crimes, but is also guilty of any other crime
committed by a principal which is a natural and
probable consequence of the crime or crimes
originally aided and abetted.
In order to find a defendant guilty of a crime under
this theory, you must be satisfied beyond a
reasonable doubt that:
1. The crime of murder was committed
2. The defendant aided and abetted such murder,
3. Thereafter, a co-principal in such crime committed
additional charged murders, and
4. Those additional murders were a natural and
probable consequence of the commission of the
murder or murders which the defendant initially
aided and abetted.
Smith argues that, because the jury was instructed on the
natural and probable consequences doctrine, it is possible the
jury convicted him of the murder of James Brown under this
imputed-malice theory, and consequently, the record does not
demonstrate ineligibility as a matter of law on count four.
Although it is theoretically true these instructions left open
the possibility that the jury could convict Smith on count four
under the natural and probable consequences doctrine, the
record, viewed as a whole, demonstrates Smith is ineligible for
relief as a matter of law on that count. A review of closing
arguments reveals that, in regard to the murder of Brown, the
prosecution did not argue Smith was guilty under the natural
and probable consequences doctrine. Rather, the prosecution’s
23
sole theory concerning the murder of Brown was that Smith
harbored the express intent to kill. The prosecution summarized
its theory as follows: “[Y]ou have Don Smith, Johnny Settle,
Leroy Wheeler and Stan Bryant going in the back room of that
house, going back there and planning what is to occur, bringing
guns to the crime scene and bringing gloves to the crime scene,
laying out a plan to lure Andre Armstrong and James Brown over
there to kill them . . . .” The prosecution’s closing argument thus
makes clear that the only theory of murder liability it presented
to the jury was that Smith harbored the express intent to kill
Brown. Because this was the only theory presented to the jury,
the jury necessarily convicted Smith on that theory, not under
the natural and probable consequences doctrine. In other words,
the record demonstrates the jury found Smith guilty beyond a
reasonable doubt of murdering Brown under current law. (See
generally §§ 187, subd. (a), 188, subd. (a)(1) [express malice is a
valid theory of murder liability under current law].) He is
therefore ineligible for relief as a matter of law on count four.
Although Smith does not argue on appeal that he is
entitled to an evidentiary hearing on count three (the murder of
Armstrong), for purposes of clarity, we note that he is not entitled
to an evidentiary hearing on that count for the same reason is he
not entitled to one on count four – the record demonstrates the
sole theory presented to the jury on both of those counts was that
Smith was guilty of murder because he harbored the intent to
kill. Additionally, because the record demonstrates Smith is
ineligible for relief as a matter of law on counts three and four,
we need not address his argument that the trial court engaged in
improper factfinding on those counts.
24
Lastly, we have considered the Supreme Court’s recent
decision in People v. Curiel (2023) 15 Cal.5th 433 (Curiel) and
how it might impact Smith’s case. Nothing about Curiel alters
our conclusion that, here, the record demonstrates Smith is
ineligible for relief as a matter of law on counts three and four.
Whereas the prosecution in Curiel argued to the jury that Curiel
was guilty of murder under the natural and probable
consequences doctrine (id. at p. 445), here, as explained above,
the sole theory the prosecution presented to the jury on counts
three and four was that Smith was guilty of murder because he
harbored the intent to kill. Because the jury convicted Smith on
counts three and four under this theory, not under the natural
and probable consequences doctrine, Smith is ineligible for relief
as a matter of law on those counts. Curiel is therefore of no
assistance to Smith.
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DISPOSITION
The order denying Smith section 1172.6 relief on his first
degree murder convictions is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
COLLINS, J.
MORI, J.
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