People v. Moy CA2/2 ( 2023 )

Filed 10/24/23 P. v. Moy CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B321804
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA104428)
v.
TYRONE DEVONTE MOY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Daniel J. Lowenthal, Judge. Affirmed.
Marilee Marshall, 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, Assistant
Attorney General, Wyatt E. Bloomfield and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
On April 1, 2022, a jury found defendant and appellant
Tyrone Devonte Moy guilty of first degree murder (count 1; Pen.
Code, § 187, subd. (a)),1 with a true finding that defendant
personally discharged a firearm causing great bodily injury
(§ 12022.53, subds. (b)-(d)). The jury also found defendant guilty
of possession of a firearm by a felon (count 2; § 29800, subd.
(a)(1)) and two counts of assault with a firearm (counts 4 & 5;
§ 245, subd. (a)(2)) with a true finding that defendant personally
used a firearm (§ 12022.5).2 The trial court sentenced defendant
to 25 years to life for count 1, and also imposed a concurrent term
of 10 years, composed of eight months for count 2, three years for
count 4, plus four years for the firearm enhancement, and one
year for count 5, plus 16 months for the firearm enhancement.
Defendant timely appealed. He argues that the trial court
erred in failing to (1) instruct the jury that Marcia Macias
(Macias) was an accomplice as a matter of law; and (2) stay his
sentence on count 2 pursuant to section 654.
We affirm.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Count 3 alleged that Mariah Rice (Rice) was an accessory
after the fact to murder. (§ 32.)
2
FACTUAL BACKGROUND
I. Defendant shot and killed the victim after they fought over
which gang controlled Ramona Park
A. The initial fight at the park
USO Squad and Mac Mafia were street gangs that both
claimed territory near Ramona Park in Long Beach.
On May 3, 2016, Abel Jones (Jones), Ernest Foree, and
Geron Lacy (Lacy) were at Ramona Park. Lacy, a member of
USO Squad, started “banging on people,” which is a gang-related
term indicating that Lacy was asking about other individuals’
gang affiliations. Lacy said he was from USO Squad and that the
park was USO Squad territory. A Mac Mafia member, Joshua
Robinson (Robinson), responded that the park belonged to
Mac Mafia. Defendant, also a Mac Mafia member, approached
and said that he would back up Robinson in a fight. Defendant
took off his shirt and immediately threw a punch at Lacy. He
and Lacy punched each other. Soon, many people joined in the
fight.
B. The fight disperses and people leave
After about 20 minutes, the fight dispersed. Alexus
Gilmore (Gilmore) and Vanity Lebeau (Lebeau), who were dating
at the time and are now married, were associates of Mac Mafia.
After the fight, many people got into Gilmore’s red Chevy Impala,
including Lebeau, defendant, Robinson, and Marvin Lard (Lard),
Lebeau’s brother.3 Gilmore drove to Andy Street, which was a
nearby Mac Mafia stronghold.
3 Lard was also a Mac Mafia associate and maybe a member
of the gang.
3
C. Defendant exits the car, returns minutes later, and
instructs Macias to drive back to the park
On Andy Street, Gilmore parked next to Macias and Rice,
who were in a blue Nissan. Macias was driving the car, but it
belonged to Rice. Defendant and Lard got out of Gilmore’s car.
Defendant was still not wearing a shirt. Defendant went
somewhere out of sight for approximately five minutes and
returned. Defendant and Lard then got into Macias’s car.
Defendant sat in the back seat on the right side of the car, and
Lard sat behind the driver in the back seat on the left side of the
car. Rice was still in the front passenger seat. Defendant told
Macias to drive to Ramona Park because “there was a fight, and a
boy and his family were waiting.”
Macias started driving to the park. Gilmore followed
because people were saying that they wanted to go back to the
park to fight.
Defendant was upset and directed Macias to drive with
urgency to the park. Defendant was talking about the fight.
D. Defendant shoots and kills Lacy
When they arrived at the park, defendant directed Macias
to drive around a truck that was stopped at a stop sign. They
passed Lacy, and defendant shot him by firing the gun out of the
window. Rice identified defendant as the shooter and testified
that the shots came from directly behind her, where defendant
was sitting.
Meanwhile, Lacy and Jones had stayed at the park. They
were talking about the fight when Jones noticed that the red
Impala that left earlier had returned. Jones saw defendant,
whom he recognized from the fight, holding a revolver out of a car
4
window. Defendant shot at Lacy from the back right seat. He hit
Lacy in the back of the head with one bullet.
Lacy was pronounced dead at the scene.
E. Multiple witnesses identify defendant as the shooter
Gilmore was driving behind Macias’s car and saw the
shooting. She knew that defendant was the shooter because the
shots came from the back right side of the car, the shooter was
not wearing a shirt, and the shooter had prominent tattoos.
Lebeau, riding in the front passenger seat of Gilmore’s car,
also saw the shooting and identified defendant as the shooter
because the shots came from the back passenger seat. She could
see that the shooter was not wearing a shirt, and defendant did
not have on a shirt when he got into the car.
F. Macias, defendant, and the others drive away
Macias drove away. Defendant told her to “slow down” and
head back to Andy Street. When they arrived at Andy Street,
defendant was still in the back right seat. Many people went to
Macias’s apartment. Macias told Rice to park her car at a nearby
church in case the car was being followed; Rice arranged for that
to happen.
Gilmore also parked her car at the church and went to
Macias’s apartment. Everyone was in shock. They were asking
defendant, “‘Why did you do that? Why would you shoot at a
park when there’s kids there.’” Defendant replied, “‘Y’all better
not say nothing. Shut up.’”
II. Investigative work and testimony at trial
A. Jones
Days after the shooting, police showed Jones a
photographic lineup, and Jones identified defendant as the
shooter. Jones was immediately certain when he made his
5
identification and pointed out defendant’s photograph. Although
Jones identified Lard as the shooter at the preliminary hearing
when he was asked to look at the counsel table with both Lard
and defendant present, he also identified defendant as the
shooter at trial.
B. Rice, Lebeau, and Gilmore
Rice, Lebeau, and Gilmore were originally charged with
murder in this case, and eventually pleaded guilty to murder
pursuant to a leniency agreement in which the charges would be
reduced to one count of being an accessory to murder. Their
truthful testimony was a prerequisite to the leniency agreement;
failure to testify truthfully would result in being sentenced on the
murder charge. At trial, all three of them provided a version of
events substantially consistent with the summary of facts set
forth above. That said, before the leniency agreement was in
place, Rice, Lebeau, and Gilmore were not always forthcoming
with law enforcement.
C. Macias
Macias also testified at trial. She was originally charged
with murder, but as a result of legislative changes to murder
liability,4 she pleaded guilty to assault likely to cause great bodily
injury. When testifying at trial, she claimed that she could not
4 Effective January 1, 2019, Senate Bill No. 1437 (2017-2018
Reg. Sess.) was enacted 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).)
6
recall anything about the shooting. The trial court found that
Macias was being disingenuous in her claim that she could not
remember. Her prior inconsistent statements were admitted into
evidence by playing recorded portions of a law enforcement
interview.
In that interview, Macias was reluctant to talk because she
was afraid for her family’s safety. Macias originally denied being
the driver of Rice’s car. However, she eventually admitted that
fact.
Macias said during the interview that when defendant first
arrived at Andy Street and got out of Gilmore’s car, he was upset.
He was not wearing a shirt. Defendant left for a few minutes and
then came back. Three males got into the backseat of the car
Macias was driving, including defendant. Defendant was sitting
in the middle back seat.5 A person she identified as “J Mac”6 sat
in the right rear passenger seat.
Macias drove to the park and Gilmore followed in her car.
Defendant was angry on the drive to the park. He made
statements like, “[T]his n**** got me f****ed up, like, he
should’ve never took off on me first.” Macias told defendant that
she heard that he had hit Lacy first. Defendant told her to “shut
the f*** up.” The men in the backseat discussed fighting Lacy,
but there was no talk of any guns. Defendant said that he
5 As noted, the other witnesses in the case stated that there
were two individuals in the backseat, defendant and Lard. The
prosecution was not able to question Macias about this
inconsistency between the testimonies because she feigned being
unable to recollect anything when she testified.
6 J Mac was identified elsewhere as Robinson.
7
wanted to return to the park and fight. Macias thought they
were going back to fight. She did not know that defendant had a
handgun.
Defendant told Macias not to park, so she pulled up to drop
him off. He said, “’There goes that n****,’” around the same time
that he shot Lacy. Macias heard two shots. She did not know
that defendant had a gun until they were at the park and
defendant fired his gun. Defendant had to lean over Robinson in
the right rear passenger seat to shoot out the window.
After the shooting, Macias drove back to Andy Street. She
cussed at defendant for committing the shooting. Defendant
replied that he did not care and said he should have someone
beat her up. When someone else in the car expressed that they
were upset with defendant’s actions, he said, “‘It’s already done.’”
The next day, defendant told Macias that Lacy died and he
(defendant) could not be in the area. He told her not to talk to
the police. During an interview with police, she identified
defendant as the shooter in a six-pack photographic lineup.
DISCUSSION
I. Alleged instructional error
Defendant argues that CALCRIM No. 334, which required
him to prove that Macias was an accomplice, was given in error
because Macias was an accomplice as a matter of law under the
natural and probable consequences theory.
A. Relevant proceedings below
Prior to closing arguments, the parties discussed jury
instructions outside the presence of the jury. In particular, the
parties and trial court considered whether Macias qualified as an
accomplice as a matter of law for purposes of CALCRIM No. 335.
Initially, the trial court stated that Rice, Lebeau, Gilmore, and
8
Macias were all accomplices as a matter of law and instructed the
jury with CALCRIM No. 3357 as to each of them.
However, after discussion with the attorneys and review of
People v. Garrison (1989) 47 Cal.3d 746, the trial court informed
the jury that it had misread an instruction. As to Macias, the
trial court then instructed the jury with CALCRIM No. 3348 that
defendant had the burden of proving that Macias was an
accomplice.
B. Relevant law and standard of review
Section 1111 provides, in relevant part, that a conviction
cannot be based on the testimony of an accomplice unless the
testimony is corroborated by independent evidence that connects
the defendant to the crime. (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 103 (Coffman and Marlow).) An “accomplice”
is “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.” (§ 1111; see also Coffman
and Marlow, supra, at p. 103.) This definition includes principals
and aiders and abettors, but excludes persons who are merely
7 CALCRIM No. 335 instructed the jury that these
individuals were accomplices, and accomplice testimony could not
be relied on by itself to convict defendant; supporting evidence
connecting defendant to the crime was required.
8 CALCRIM No. 334 instructed the jury that it had to
determine if Macias was an accomplice. If it found that she was
not an accomplice, then the instruction directed the jury to
evaluate her testimony as it would any other witness. If, on the
other hand, the jury found that she was an accomplice, the jury
was directed to view her testimony with suspicion and supporting
evidence was required to convict defendant.
9
accessories. (People v. Fauber (1992) 2 Cal.4th 792, 833–834
(Fauber).)
“All persons concerned in the commission of a crime,
whether it be felony or misdemeanor, and whether they directly
commit the act constituting the offense, or aid and abet in its
commission, or, not being present, have advised and encouraged
its commission, . . . are principals in any crime so committed.”
(§ 31; accord, People v. Horton (1995) 11 Cal.4th 1068, 1113–1114;
Fauber, supra, 2 Cal.4th at p. 833.) To be liable as an aider and
abettor, one must act both with knowledge of the perpetrator’s
criminal purpose and the intent of encouraging or facilitating
commission of the offense. (People v. Hayes (1999) 21 Cal.4th
1211, 1271, fn. 19.) An aider and abettor is liable not only for the
offense that he or she intended to facilitate or to encourage, but
also for any reasonably foreseeable offense committed by the
principal. (Id. at p. 1271, fn. 20.) Yet “‘[m]ere presence at the
scene of a crime which does not itself assist its commission or
mere knowledge that a crime is being committed and the failure
to prevent it does not amount to aiding and abetting.’
[Citations.]” (People v. Pettie (2017) 16 Cal.App.5th 23, 57.)
Accessories, defined in section 32, “are not accomplices as
to whose testimony corroboration is required.” (Coffman and
Marlow, supra, 34 Cal.4th at p. 103.)
A trial court has a sua sponte duty to instruct the jury on
how to treat accomplice testimony if the trial evidence suggests
that a witness could be an accomplice. (People v. Tobias (2001)
25 Cal.4th 327, 331; People v. Guiuan (1998) 18 Cal.4th 558, 569.)
“Whether someone is an accomplice is 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
10
court instruct a jury that a witness is an accomplice as a matter
of law.” (People v. Valdez (2012) 55 Cal.4th 82, 145–146; see also
Fauber, supra, 2 Cal.4th at p. 834; People v. Tewksbury (1976)
15 Cal.3d 953, 960.) “The Bench Notes to CALCRIM No. 335 are
in accordance with this statement of the law and, in no uncertain
terms, advise that a trial court should: ‘Give this instruction only
if the court concludes that the witness is an accomplice as a
matter of law or the parties agree about the witness’s status as
an accomplice. [Citation.] If there is a dispute about whether the
witness is an accomplice, give CALCRIM No. 334.[’]” (People v.
Johnson (2016) 243 Cal.App.4th 1247, 1269.)
When the issue of whether a witness is an accomplice is
disputed, “[t]he burden is on the defendant to prove by a
preponderance of the evidence that a witness is an accomplice.”
(Fauber, supra, 2 Cal.4th at p. 834.)
We review a claim for instructional error de novo. (People
v. Posey (2004) 32 Cal.4th 193, 218.) “In reviewing a claim of
instructional error, the court must consider whether there is a
reasonable likelihood that the trial court’s instructions caused
the jury to misapply the law in violation of the Constitution.”
(People v. Mitchell (2019) 7 Cal.5th 561, 579.) We consider the
challenged instruction “in the context of the instructions as a
whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an
impermissible manner.” (People v. Houston (2012) 54 Cal.4th
1186, 1229.)
C. The trial court properly declined to instruct CALCRIM
No. 335 as to Macias
As defendant points out, and as the People agree, at the
time of the crime, Macias was potentially liable for second degree
11
murder under the natural and probable consequences doctrine
because she drove defendant to the park.9 (People v. Chiu (2014)
59 Cal.4th 155 [a defendant may be guilty of aiding and abetting
second degree murder under the natural and probable
consequences theory]; People v. Gordon (1973) 10 Cal.3d 460, 469
disapproved of on another ground by People v. Ward (2005)
36 Cal.4th 186, 212.) That said, the trial court correctly did not
instruct that she was an accomplice as a matter of law
(CALCRIM No. 335) because Macias’s status as an accomplice
was a matter of reasonable dispute.
To be found guilty under the natural and probable
consequences doctrine, “the trier of fact must find that the
defendant, acting with (1) knowledge of the unlawful purpose of
the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of a predicate or
target offense; (3) by act or advice aided, promoted, encouraged or
instigated the commission of the target crime. But the trier of
fact must also find that (4) the defendant’s confederate
9 The fact that, at the time of trial, that theory of murder had
been vitiated does not determine whether Macias was an
accomplice. (See People v. Gentile (2020) 10 Cal.5th 830, 843
[“Senate Bill 1437 bars a defendant from being convicted of
second degree murder under a theory that the defendant aided
and abetted a crime, the natural and probable consequence of
which was murder”].) To the extent the trial court believed that
accomplice liability is measured at the time of trial, we still
affirm the judgment because, as discussed below, Macias was not
an accomplice as a matter of law. (See People v. Zapien (1993) 4
Cal.4th 929, 976 [a ruling or decision, itself correct in law, will
not be disturbed on appeal merely because given for a wrong
reason].)
12
committed an offense other than the target crime; and (5) the
offense committed by the confederate was a natural and probable
consequence of the target crime that the defendant aided and
abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 262, italics
& fn. omitted; see also People v. Gonzales (2001) 87 Cal.App.4th
1, 8.)
As applied to this case, for Macias to have been guilty of
murder under the natural and probable consequences doctrine, a
factfinder would have had to conclude that Macias: (1) acting
with knowledge of defendant’s unlawful purpose; and (2) with the
intent or purpose of committing or encouraging or facilitating the
commission of a predicate or target offense (assault); (3) by act or
advice aided, promoted, encouraged or instigated the commission
of the target crime (assault); and (4) defendant committed
murder, which (5) was a natural and probable consequence of the
target crime.
Although there was some evidence to support this theory,
the evidence was not so compelling and overwhelming that it
showed that Macias was an accomplice as a matter of law. For
example, even if it is true that Macias knew that defendant
would commit a crime when he returned to the park (assault),
some factfinders might decide that murder was not a natural and
probable consequence of that assault. (People v. Nguyen (1993)
21 Cal.App.4th 518, 531 (Nguyen).) After all, Macias told law
enforcement that she did not know that defendant was going to
bring a gun and assault Lacy via firearm, rather than continue
the fistfight. (See People v. Avila (2006) 38 Cal.4th 491, 566–567
[“although circumstantial evidence indicated Rojas was an
accomplice in Medina’s rape and in the murders, such evidence
did not compel a conclusion that he was an accomplice, in light of
13
his denial of involvement in those crimes. Accordingly, the trial
court did not err in ruling that Rojas’s accomplice status was a
jury question”].) In other words, while some factfinders might
agree with defendant that the evidence showed that Macias was
an accomplice based on the natural and probable consequences
doctrine, the circumstances were not so obvious that—as a
matter of law—every reasonable factfinder would agree. (People
v. Hayes, supra, 21 Cal.4th at pp. 1271–1272.)
People v. Medina (2009) 46 Cal.4th 913 (Medina) does not
compel a different result. In that case, the issue was whether
substantial evidence supported the murder and attempted
murder convictions. (Id. at p. 919.) Thus, the question presented
was whether “‘“any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”’
[Citation.]” (Ibid.) That is not the issue in the instant case; in
this case, the question presented is whether every reasonable
factfinder would agree that Macias was guilty of murder as a
matter of law.10 The finding of sufficient evidence in Medina only
shows Macias could have theoretically been convicted in this
case—not that she was guilty as a matter of law.
Defendant contends that Macias knew that he was armed
when he entered her car; therefore, she must have known as a
matter of law that death was a natural and probable consequence
10 For similar reasons, defendant’s reliance upon People v.
Montes (1999) 74 Cal.App.4th 1050, 1055–1056, and People v.
Olguin (1994) 31 Cal.App.4th 1355, 1375–1376 is misplaced.
While those courts recognized that gang confrontations can easily
escalate to gunfire, they did not hold that such confrontations
always (or must as a matter of law) so escalate.
14
of the upcoming assault at the park. There are several problems
with defendant’s argument.
First, it is not supported by the record. Macias, in her
interview with law enforcement, stated plainly that the first time
she saw the handgun was at the park. While Macias drove
defendant to the park, defendant and the males in the car
discussed fighting Lacy, but there was no talk of any handgun.
She thought they were going back to fight.
Relying on a single page in the supplemental clerk’s
transcript, defendant claims that Macias knew that defendant
had the firearm when she drove him to the park. Defendant
misinterprets the appellate record. When the exchange between
Macias and the detectives is read in context, it is clear that
Macias did not know that defendant had a firearm when he
entered the car:
“Detective Goodman: Okay. Well, uh, tell me this. Who
brought the gun out to give to [defendant] or did [defendant] have
it the whole time?
“Maria Macias: [Defendant] had it.
“Detective Goodman: The whole time?
“Maria Macias: When he got in the car.
“Detective Goodman: Okay.
“Maria Macias: When—when—when [defendant] got in the
car, nobody handed [him] nothing. So [defendant] had it.
“Detective Goodman: How about—okay. So before—before
he entered the car, nobody handed it to him?
“Maria Macias: No. Nobody handed him nothing.
“Detective Goodman: Okay.
“Maria Macias: [Defendant]—[defendant] must have had it
on him the whole time, or—or something.”
15
In this exchange, Macias was not admitting that she knew
that defendant had the handgun with him the entire time;
instead, consistent with earlier statements, she was reasoning
that he “must have had it on him the whole time” because nobody
handed him a handgun when he entered the car. These pages of
the appellate record do not support the inference that Macias
knew that defendant had the handgun when he entered the car.
Second, even assuming that Macias did state that she knew
that defendant had a handgun when he entered the car, the jury,
as instructed (CALCRIM No. 226), was not obligated to believe
her. No other testimony suggested that anyone, including
Macias, knew that defendant entered the car with a handgun.
Third, even if she knew that he was bringing a handgun
back to the park, that evidence does not compel the conclusion
that, as a matter of law, death was a natural and probable
consequence of the contemplated assault. (Nguyen, supra,
21 Cal.App.4th at p. 531 [“[t]he determination [of] whether a
particular criminal act was a natural and probable consequence
of another criminal act . . . is a factual question to be resolved by
the jury”].)
D. Defendant’s claim that the trial court erred in failing to
instruct the jury on the natural and probable consequences
doctrine as to accomplice liability for murder
To the extent defendant argues that the trial court erred in
failing to instruct the jury on the natural and probable
consequences doctrine as to accomplice liability for murder, that
contention fails. Aside from the fact that it is insufficiently
argued on appeal (see, e.g., People v. Williams (1997) 16 Cal.4th
153, 206), it lacks substantive merit. Our Supreme Court has
clarified that a trial court does not have a sua sponte duty to
16
instruct on the natural and probable consequences doctrine of
accomplice culpability, and about target and nontarget offenses,
unless the prosecution relies on that doctrine to prove the
defendant’s guilt or the defense requests the instructions. (People
v. Avila, supra, 38 Cal.4th at pp. 568–569; People v. Prettyman,
supra, 14 Cal.4th at pp. 269–270; see also People v. Gonzalez
(2002) 99 Cal.App.4th 475, 484–485.) Here, defendant does not
direct us to any evidence in the appellate record that the
prosecution either relied upon this theory or that he requested
this instruction below.
E. Defendant’s constitutional rights were not violated
Defendant claims that not instructing that Macias was an
accomplice as a matter of law violated his constitutional rights.
Not so. As set forth above, there was no error—Macias was not
an accomplice as a matter of law. It follows that there was no
attendant federal constitutional error.
Even assuming instructional error occurred, it did not rise
to the level of federal constitutional error. It is well-settled that
“[e]rror in failing to instruct the jury on consideration of
accomplice testimony at the guilt phase of a trial constitutes
state-law error, and a reviewing court must evaluate whether it
is reasonably probable that such error affected the verdict.”
(People v. Williams (2010) 49 Cal.4th 405, 456.) Although section
1111 provides that a conviction cannot be sustained upon the
testimony of an accomplice unless it is corroborated, “the use of
accomplice testimony is not catalogued with constitutional
restrictions.” (United States v. Augenblick (1969) 393 U.S. 348,
352–353.)
Defendant further claims that failing to give CALCRIM
No. 335 as to Macias (and only giving CALCRIM No. 334)
17
violated his federal due process by relieving the prosecution from
proving the elements of the offenses charged. We disagree. The
prosecution was not alleviated from proving any element of the
charged offense beyond a reasonable doubt.
“California law permits placing the burden to prove the
accomplice status of a witness on a defendant. [Citation.] This is
because whether a witness is an accomplice is collateral to the
defendant’s guilt or innocence. [Citation.] It is an issue that
need not be established to prove an element of the defendant’s
crime. [Citation.] CALCRIM No. 334’s instruction that a
defendant must prove, by a preponderance of the evidence, a
witness’s status as an accomplice thus, in general, correctly
states the law. [Citation.]” (People v. Martinez (2019)
34 Cal.App.5th 721, 729.)
Defendant’s comparison of this case to Yates v. Evatt (1991)
500 U.S. 391, overruled on other grounds in Estelle v. McGuire
(1991) 502 U.S. 62, 72, is unavailing. “Yates involved
misinstruction on the element of malice in a murder case. The
jury was erroneously instructed that the requisite element of
malice could be established based on either of two mandatory
presumptions: that ‘“use of a deadly weapon”’ establishes malice,
and that the ‘“willful, deliberate, and intentional doing of an
unlawful act”’ operates in the same way. [Citation.] Both
‘mandatory presumptions’ were unconstitutional [because they
tended to shift the burden of proof on malice from the prosecution
to the defendant], as conceded by respondents in Yates.
[Citation.]” (People v. Harris (1994) 9 Cal.4th 407, 425.) That did
not occur here. The instructions given did not shift the burden of
proof on the elements of the charged offenses from the
18
prosecution to defendant. (Waddington v. Sarausad (2009)
555 U.S. 179, 190–191.)
Finally, defendant’s Sixth and Fourteenth Amendment
rights were not violated. Those amendments guarantee a
defendant’s right to present a complete defense. (People v.
Gonzales (2012) 54 Cal.4th 1234, 1258.) Defendant was not
denied that right at trial.
F. Any error was harmless
Even if the trial court had erred by not instructing that
Macias was an accomplice as a matter of law, that alleged error
was harmless under any standard. (Chapman v. California
(1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818,
836.) The erroneous decision to instruct with CALCRIM No. 334
rather than CALCRIM No. 335 “is harmless if the record contains
‘sufficient corroborating evidence.’ [Citation.] Corroborating
evidence may be slight, entirely circumstantial, and entitled to
little consideration when standing alone. [Citations.] It need not
be sufficient to establish every element of the charged offense or
to establish the precise facts to which the accomplice testified.
[Citations.] It is ‘sufficient if it tends to connect the defendant
with the crime in such a way as to satisfy the jury that the
accomplice is telling the truth.’ [Citation.]” (People v. Valdez,
supra, 55 Cal.4th at pp. 147–148.)
Macias’s testimony was corroborated by Jones. Days after
the shooting, Jones identified defendant as the shooter in a
photographic lineup. Jones was immediately certain when he
made his identification and pointed out defendant’s photograph.
Although Jones identified Lard as the shooter at the preliminary
hearing, when he was asked to look at the counsel table with both
Lard and defendant present, he also identified defendant as the
19
shooter at trial. This evidence was far more than the “slight”
evidence needed to corroborate Macias’s testimony. (See People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1178 [accomplice
testimony was corroborated where defendant’s gang membership
established motive for defendant to participate in the murder and
another witness testified that he “believed” that defendant was in
front of the victim’s apartment at the time the victim was
murdered].) Indeed, Jones’s identification of defendant as the
shooter was sufficient by itself to convict. (People v. Brown (2014)
59 Cal.4th 86, 106 [“unless the testimony is physically impossible
or inherently improbable, testimony of a single witness is
sufficient to support a conviction’”].) Moreover, as in Samaniego,
defendant’s status as a Mac Mafia member, which was
established by an independent gang expert, also connected him to
this Mac Mafia-related crime.
Furthermore, the testimony of Rice, Lebeau, and Gilmore,
which Jones corroborated, provided very strong evidence of
defendant’s guilt such that there is little probability that Macias’s
status as an accomplice made a difference. As set forth above,
each key witness of the shooting described defendant as the
shooter and described his actions in the same manner. It follows
that there is no reasonable probability of a more favorable result
had the jury been instructed that Macias was an accomplice
rather than might have been an accomplice.
Defendant complains that by singling out Macias with a
different instruction, the trial court signaled that she was the one
telling the truth. This argument fails to account for the fact that
the other witnesses, just like Macias, also unequivocally
identified defendant as the shooter. Accordingly, if the jury
20
believed those witnesses rather than Macias, it would still have
found defendant guilty.
In any event, the trial court did not completely fail to
instruct that Macias might have been an accomplice, and
therefore an unreliable witness. Rather, the trial court
instructed that the jury had to decide whether Macias was an
accomplice, and, if so, then it was to view her testimony, which
needed to be independently corroborated, with caution. Other
instructions comprehensively guided the jury’s assessment of
Macias’s, and other witnesses’, testimony. (People v. Carrington
(2009) 47 Cal.4th 145, 192 [“‘[T]he correctness of jury instructions
is to be determined from the entire charge of the court, not from a
consideration of parts of an instruction or from a particular
instruction.’ [Citation.]”) The jury presumptively followed the
trial court’s instructions to determine whether Macias was an
accomplice and, if so, to view her testimony cautiously and not to
return a guilty verdict without corroboration. (See People v.
Mickey (1991) 54 Cal.3d 612, 689, fn. 17 [“The crucial assumption
underlying our constitutional system of trial by jury is that jurors
generally understand and faithfully follow instructions”].)
Accordingly, the full context of the given instructions obliterated
any alleged prejudice. (See People v. Lewis (2001) 26 Cal.4th 334,
371 [the absence of an accomplice instruction may be deemed
nonprejudicial where the jury is otherwise instructed on factors
to consider in determining whether a witness is credible].)
21
II. Alleged error in failing to stay defendant’s sentence on count 2
Defendant argues that the concurrent sentence imposed on
count 2 (possession of a firearm by a felon) should have been
stayed pursuant to section 654 because it was part of an
indivisible course of conduct to murder Lacy.
A. Relevant law and standard of review
Section 654, subdivision (a), provides, in relevant part: “An
act or omission that is punishable in different ways by different
provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished
under more than one provision.” (§ 654, subd. (a).) “At its
simplest, ‘section 654 proscribes double punishment for multiple
violations of the Penal Code based on the “same act or
omission.”’” (People v. Atencio (2012) 208 Cal.App.4th 1239,
1243 (Atencio).)
“Section 654 therefore ‘“precludes multiple punishment for
a single act or for a course of conduct comprising indivisible
acts.”’” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143
(Jones).) The intent and objective of the actor determines
whether a course of criminal conduct is divisible. If all of the
offenses were incidental to, or were the means of accomplishing
one objective, then the defendant harbored a single intent and
can be punished only once. However, if the defendant had
multiple or simultaneous objectives, he may be punished for each
violation even though the violations may share common acts or
were part of an otherwise indivisible course of conduct. (Ibid.)
“Whether section 654 applies to the facts in a given case is
one of fact for the trial court to decide, and such findings will be
upheld on appeal if there is any substantial evidence to support
them.” (Atencio, supra, 208 Cal.App.4th at p. 1242.) We review
22
the trial court’s findings in the light most favorable to the
judgment and presume in support of the sentencing order the
existence of every fact the jury could reasonably deduce from the
evidence. (Id. at p. 1243.) “‘[T]he power of an appellate court
begins and ends with the determination as to whether, on the
entire record, there is substantial evidence, contradicted or
uncontradicted, which will support the determination, and when
two or more inferences can reasonably be deduced from the facts,
a reviewing court is without power to substitute its deductions
from those of the trial court.’” (People v. Ortiz (2012)
208 Cal.App.4th 1354, 1378.)
B. Analysis
Here, defendant was convicted of being a felon in
possession of a firearm in addition to murder. Whether a felon in
possession of a firearm offense “‘“constitutes a divisible
transaction from the offense in which [the defendant] employs the
weapon depends upon the facts and circumstances of each
individual case.”’” (Jones, supra, 103 Cal.App.4th at p. 1143.)
“[S]ection 654 is inapplicable when the evidence shows that the
defendant arrived at the scene of his or her primary crime
already in possession of the firearm.” (Id. at p. 1145.) When the
evidence “‘demonstrates at most that fortuitous circumstances
put the firearm in the defendant’s hand only at the instant of
committing another offense, section 654 will bar a separate
punishment for the possession of the weapon by an ex-felon.’”
(People v. Garcia (2008) 167 Cal.App.4th 1550, 1565.) Such
circumstances occur when a defendant shoots an officer with a
gun he took from that officer moments before (People v. Bradford
(1976) 17 Cal.3d 8, 13, 22–23) or when the shooting follows a
struggle with the victim over a gun produced by that victim
23
(People v. Venegas (1970) 10 Cal.App.3d 814, 818–821). (See
People v. Vang (2010) 184 Cal.App.4th 912, 916 (Vang).)11 When,
however, the defendant already has a weapon and then uses it to
commit “another separate and distinct transaction undertaken
with an additional intent which necessarily is something more
than the mere intent to possess the proscribed weapon,” section
654 does not apply. (People v. Ratcliff (1990) 223 Cal.App.3d
1401, 1414 (Ratcliff).)
Here, the evidence showed that defendant was already in
possession of his firearm before he confronted Lacy at the park
and shot him. Because no fortuitous circumstances placed the
firearm in defendant’s hands at the moment when Lacy was
killed, section 654 is inapplicable. (Jones, supra, 103 Cal.App.4th
at p. 1145 [“[S]ection 654 is inapplicable when the evidence shows
that the defendant arrived at the scene of his or her primary
crime already in possession of the firearm”].) “That [defendant]
did not possess the weapon for a lengthy period before
commission of the primary crime is not determinative.” (Jones,
supra, at pp. 1147–1148.)
Urging us to reverse, defendant relies upon People v. Kane
(1985) 165 Cal.App.3d 480 (Kane). In that case, the People
conceded that the defendant could not be punished for both
possession of a firearm by a convicted felon and shooting at an
occupied vehicle under section 654. (Kane, supra, at p. 488.) The
Kane court agreed, observing that the defendant “possessed the
firearm, fired it at [the victim] and hit the [vehicle] in an
11 As noted in People v. Washington (2021) 61 Cal.App.5th
776, 791, “Vang is no longer good law,” but for a different reason
than it is cited for here.
24
indivisible course of conduct.” (Ibid.) The Kane court’s
acceptance of the People’s concession does not support
defendant’s contentions on the facts before us.
Furthermore, Kane has been criticized. (See Ratcliff,
supra, 223 Cal.App.3d at p. 1412 [Kane “failed to address the
issue of prior or subsequent possession of the weapon or, in our
view, reached the wrong result on the facts”].) Ratcliff and Jones
concurred that, apart from Kane, case law has established that
possession of a firearm by an ex-felon is subject to section 654
only where the defendant had fortuitously come into possession of
the firearm at the very moment of commission of an offense in
which he used the firearm. If, on the other hand, the defendant
possessed the firearm before he used it to commit another crime,
the antecedent possession is a separate, and separately
punishable, offense. (Ratcliff, supra, 223 Cal.App.3d at pp. 1410–
1414; Jones, supra, 103 Cal.App.4th at pp. 1142–1149.)
We agree with the analysis of Ratcliff and Jones. Just as in
those two cases, substantial evidence shows that defendant
“arrived at the scene of his . . . primary crime already in
possession of the firearm.” (Jones, supra, 103 Cal.App.4th at
p. 1145.) Defendant was armed when he approached Lacy,
pointed his handgun, and fired. There is no evidence suggesting
that the handgun came into defendant’s possession only at the
instant that he discharged it. As defendant’s possession of the
handgun was “antecedent to and separate from” the shooting, we
conclude that section 654 does not bar the imposition of multiple
punishments in this case. (Id. at p. 1147.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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