People v. Wilson CA2/1 ( 2024 )

Filed 1/26/24 P. v. Wilson CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B320007
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA115286)
v.
BRANDEN CHARLES WILSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Chestopher L. Taylor, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Sharon Fleming, 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, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Branden Charles Wilson appeals from his convictions for
murder, two robberies, and other related offenses, for which he
received a sentence of life without the possibility of parole in
addition to a determinate sentence. We agree with Wilson that
under the circumstances of this case he could not be convicted as
an aider and abettor and an accessory after the fact to robbery.
We therefore reverse the accessory conviction. We further hold
the trial court should have stayed execution of sentence on one of
the robbery convictions, when that robbery was the predicate
felony underlying Wilson’s murder conviction.
We otherwise affirm the convictions. Any error in
inadvertently providing the jury with the transcript of a witness’s
police interview was harmless beyond a reasonable doubt, and
the trial court did not err in admitting evidence of Wilson’s prior
uncharged crimes.
FACTUAL BACKGROUND
To provide context for the issues on appeal, we summarize
below pertinent evidence admitted at trial. We describe
additional evidence in our Discussion, post.
1. The Travelodge robbery
Apart from video evidence and the testimony of victims Z.C.
and Z.M., the information summarized below comes from the
testimony of sisters A.P. and K.P., both of whom entered into
immunity agreements in exchange for their testimony.
On September 9, 2020, Wilson was staying at a Travelodge
motel with Mykeel Peddycoart, A.P., K.P., and a man called “5
Meals.” Wilson went by the nickname “Brando,” and Peddycoart
went by the nickname “20 Shots” or “BabyK20Shotz.” At the
time, Wilson and A.P. had been dating for two or three weeks.
2
Wilson told the group they were broke and needed to get
some money. He proposed a plan to rob someone at the motel.
According to Wilson’s plan, Peddycoart would handle the gun,
and 5 Meals would grab the items from the victim. Wilson
instructed Peddycoart and 5 Meals to change their clothing in an
alleyway before and after the robbery and hide the gun there as
well, because “[y]ou can’t bring it back unnoticed.” K.P. would
stand as lookout, and A.P. would stay in the room to open the
door when everyone returned.
Wilson and K.P. walked around the Travelodge property
and Wilson told her to identify the location of the security
cameras. At some point, someone came to the motel and gave
Wilson a duffel bag containing an AK-47 rifle. Wilson referred to
the rifle as his “baby.” A.P. testified she had seen the rifle a week
or two earlier when she and Wilson drove to North Long Beach
and he had picked it up.
The robbery happened that night. K.P. stood on a balcony
with Wilson and watched as Peddycoart and 5 Meals approached
a car in the Travelodge parking lot. Peddycoart was armed with
the AK-47. The security camera footage showed two men
standing at the open trunk of the car. Peddycoart and 5 Meals
ran up, Peddycoart brandishing the rifle, and 5 Meals and one of
the men struggled for a moment. The second man ran away and
Peddycoart pursued him briefly. 5 Meals stood by the car,
possibly opening the doors. Finally, Peddycoart and 5 Meals ran
away.
Z.C. and Z.M. were the two victims. Z.C. testified he was
hit by gunfire as he ran away. Z.M. testified the armed robber
fired five or six shots. K.P. similarly testified Peddycoart fired
six to eight shots. A.P. was in the motel room but heard the
3
shots, and testified that when Peddycoart came back to the room,
he said he had shot somebody.
Peddycoart and 5 Meals changed clothes in the alley as
planned, and Wilson recovered their discarded clothes from the
alley. Wilson and K.P. also recovered the AK-47. A.P. saw
Wilson return with a duffel bag containing both clothing and the
rifle.
Back in the room, they emptied a bag taken in the robbery.
According to K.P. and A.P., it appeared the bag contained drugs,
including possibly methamphetamine and fentanyl. Wilson was
upset that they had not obtained more, referring to the haul as
“nothing” and stating they’d robbed the wrong person. Wilson
talked about possibly robbing the people in the room below theirs,
whom he believed had liquor and money.
2. The 7-11 robbery
a. Video evidence
The jury saw the following security video evidence. The
morning of September 10, 2020, the day after the Travelodge
robbery, George Teamer pulled his car into a 7-11 parking lot and
entered the store. A few seconds later, Wilson, Peddycoart, A.P.,
and K.P. walked up to the 7-11 carrying duffels and other bags,
which they set down on the sidewalk outside the store. A.P. and
K.P. went inside the store and waited near the counter, where
Teamer also was standing. When Teamer went up to the
counter, A.P. appeared to be looking at him. She exited the store,
walked up to Wilson, and leaned towards him to say something
into his ear.
A.P. then went back into the store as Wilson and
Peddycoart spoke to one another. Peddycoart picked up one of
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the duffels and walked around the side of the store. He walked
into an alley, put on a mask, and took a rifle out of the duffel.
Inside the 7-11, Wilson came in just as Teamer was
leaving. A.P., seeing Wilson, nodded towards Teamer. Wilson
immediately turned around and followed Teamer out of the store.
As Teamer was about to get into his car, Wilson spoke to
him from the sidewalk. Teamer paused, and Wilson walked up to
him to talk further. As they spoke, Peddycoart came around the
corner pointing the rifle. Wilson glanced towards Peddycoart and
continued to talk to Teamer, who was turned away from
Peddycoart and did not see him. Peddycoart walked up to the
two men, at which point Teamer saw him and got into his car,
attempting to close the door. Wilson quickly moved forward,
sticking his arm over the car window into the car. When he
pulled his hand out, he was holding what appeared to be a
necklace. Teamer’s car backed up in a semicircle and came to a
halt elsewhere in the parking lot. Peddycoart and Wilson
grabbed their bags from the sidewalk and ran around the corner.
They went into the alley, Peddycoart grabbed the duffel he had
left there, and they jogged away.
The parties stipulated Teamer died from a gunshot wound.
It is not clear from our viewing of the video if or when Peddycoart
fired the rifle. It appears the driver’s side window broke as
Teamer pulled away, but it is unclear if that was from a gunshot
or Wilson struggling to keep the door open.
b. Other evidence
A.P. testified when she saw Teamer in the 7-11 wearing a
gold chain around his neck, she went outside to tell Wilson so he
could steal it. She did not witness the robbery, but at some point
realized Wilson and Peddycoart were gone, and she heard a
5
woman yelling that her boyfriend had been shot. K.P. also
testified she did not witness the robbery, but confirmed that A.P.
told Wilson about Teamer’s jewelry.
PROCEDURAL HISTORY
For the events at the 7-11 on September 10, 2020, the
People charged Wilson with the following: count 1, the murder of
Teamer, with the special circumstance that the killing occurred
during the commission of a robbery (Pen. Code,1 §§ 187, subd. (a),
190.2, subd. (a)(17)); count 2, second degree robbery (§ 211); count
3, shooting at an occupied vehicle (§ 246); and count 4, conspiracy
to commit robbery (§ 182, subd. (a)(1)).
As to counts 1, 2, and 3, the People alleged that a principal
used and discharged a firearm causing great bodily injury or
death (§ 12022.53, subds. (b)–(d), (e)(1).) As to count 4, the
People alleged a principal was armed with a firearm (§ 12022,
subd. (a)(2)). The People further alleged counts 1 through 4 were
committed for the benefit of, at the direction of, and in
association with a criminal street gang with the specific intent to
promote, further, and assist in criminal conduct by gang
members (§ 186.22, subd. (b)(1)).
For the events at the Travelodge on September 9, 2020, the
People charged Wilson with the following: count 5, accessory
after the fact to robbery (§ 32); count 6, second degree robbery
(§ 211); and count 7, conspiracy to commit robbery (§ 182,
subd. (a)(1)). Wilson was further charged with possession of a
firearm by a felon (§ 29800, subd. (a)(1), count 9).2
1 Unspecified statutory citations are to the Penal Code.
2 The information did not include a count 8.
6
As to all counts, the People alleged Wilson had previously
been convicted of two serious or violent felonies, subjecting him to
sentencing under the “Three Strikes” law (§§ 667, subds. (b)–(j),
1170.12) and an enhancement under section 667,
subdivision (a)(1).
Before trial, the trial court granted Wilson’s motion to
dismiss the gang allegations under section 186.22 on counts 1
through 4, finding insufficient evidence. The court also struck
the firearm allegations as to counts 1 through 3, which applied
only to gang-related crimes. After the close of evidence, at the
prosecution’s request the court dismissed count 3, shooting at an
occupied vehicle.
The jury found Wilson guilty of the remaining counts 1, 2,
4, 5, 6, 7, 9, and found true the robbery special circumstance on
count 1 and the firearm allegation on count 4.
As to the prior conviction allegations, the People elected not
to proceed as to one of them, which was a juvenile offense.
Wilson conceded he had suffered the other prior conviction.
The trial court sentenced Wilson to life without the
possibility of parole for the murder count with the robbery special
circumstance. The court further imposed a consecutive
determinate sentence of 10 years, 8 months, selecting the
midterm on count 2, robbery, as the principal term, doubled
because of the prior strike, and adding one-third the midterms
doubled on counts 5, accessory to robbery, 6, robbery, and 9,
firearm possession. The court stayed sentencing on the two
conspiracy counts, counts 4 and 7, pursuant to section 654, and
declined to impose the enhancement under section 667,
subdivision (a)(1). The court awarded credits and imposed fines
and fees.
7
Wilson timely appealed.
DISCUSSION
A. Any Error in the Jury Receiving Inadvertently
Admitted Evidence Was Harmless
Wilson contends he was prejudiced by the inadvertent
admission of a transcript of K.P.’s police interview. We conclude
any error was harmless beyond a reasonable doubt.
1. Additional background
a. K.P.’s police interview
The transcript of K.P.’s police interview is over 100 pages
long, and much of it is consistent with her testimony at trial.
Our summary here focuses solely on information she provided at
the interview that she did not provide at trial.
K.P. identified A.P.’s boyfriend as “Brando.” She said he
was a member of a Long Beach “African American” gang. She
identified the two African American gangs in Long Beach as the
“Insanes and 20s,” and although she was “sure” Brando belonged
to one of them, she did not know which one. Asked if K.P. had
“heard [Brando] put out the ‘hood’s name,” she said, “YTL.” She
did not know what YTL stood for.
Because her confederates were elsewhere in the police
station while she was being interviewed, K.P. expressed concern
they might hear what she was saying to the police. The
interviewing detectives told her no one could hear her, and asked
again if Brando was in a gang. She again said yes, and said it
was either “20s or Insane.” She said, “He says YTL so, YTLs
could be from Insanes or he from Babies and YTLs, 20s.” The
8
detectives asked again if he was “20s” and what “they call him.”
K.P. again said, “Brando,” which she called his “ ‘hood name.”
K.P. identified the other man at the 7-11 as her “boyfriend,”
whom she had started dating a week earlier. She said she called
him by his “ ‘hood name,” which was “Baby 20 Shots.” She said
he was from the “20s” gang, and confirmed he had “20 ink on
him.” The detectives asked if Baby 20 Shots “have any Steelers
stuff on him,” and K.P. said no, but Brando did. K.P. said she
could not remember either Brando’s or Baby 20 Shots’s real
names, because “[t]hey never say their names, they only say their
‘hood names.” Asked how she knew Baby 20 Shots was from the
20s gang, she said “YTL” and “tattoos.”
Later in the interview, the detectives asked if K.P. thought
Baby 20 Shots earned his money legitimately or illegitimately,
and K.P. said, “Illegitimate.” Asked how he earned his money,
she said, “Obviously, I think he robs people on the street. I’m not
stupid.” She said something about a prior robbery he had told
her about, but the transcript indicates most of it was
unintelligible from the recording.
She said she first saw the AK-47 rifle the day before the
Travelodge robbery. She said, “[F]or gang members, they like to
show off what they have. So, I guess they were showing off that
gun.”
Regarding the Travelodge robbery, K.P. said Brando was
the “mastermind,” and “[h]e planned everything.” She knew
Brando and the others were going to commit a robbery “[b]ecause
that’s what they do.”
K.P. said she was afraid to go home, because “[t]hey don’t
play in gangs out in Long Beach. They don’t play. And once a
snitch, always a snitch. You get packed out.” At one point, a
9
detective admonished her for “hang[ing] around a bunch of 20s”
committing robberies.
K.P. described driving to Palmdale prior to the robberies.
On the drive, Brando and “Joseph” were talking about how they
had used the AK-47 to scare another gang member. She said
Brando and Joseph had robbed the person of $1,500.
Later, K.P. said she was scared of “those two,” apparently
referring to Brando and Baby 20 Shots. K.P. asked how many
years in prison the others were facing, and the detective said at
this point he was just trying to figure out the facts. K.P. said,
“Facts is they murdered someone.” The detective noted K.P. had
said she had not witnessed the murder. K.P. said, “I didn’t need
to see it. They were just that crazy.”
b. Proceedings at trial
During trial, the defense requested the trial court exclude
any mention of gangs, given the court’s striking of the gang
allegations for insufficient evidence. The court agreed gang
evidence was “not needed,” and expressed its “concern[ ] about
the prejudicial impact to Mr. Wilson.”
Later, the prosecutor stated he intended to use portions of
K.P.’s interview transcript during his examination, although he
would not seek to admit it into evidence. The prosecutor queried
whether the transcript should be marked as an exhibit. Defense
counsel stated she had no objection to marking the transcript “as
long as it doesn’t go into evidence.” The clerk then marked the
transcript as People’s exhibit 7.
At the close of evidence, the prosecutor made a block
request that exhibits 1 through 60 be admitted into evidence.
The defense did not object and the court admitted all 60 exhibits.
10
The court instructed the jury that the items received into
evidence as exhibits would be sent with them to the jury room.
When this court received the trial exhibits as part of the
appellate record, those exhibits included the interview transcript.
We therefore presume the transcript was sent to the jury room
along with the other exhibits and was available to the jury during
deliberations.
2. Analysis
The parties disagree as to who was responsible for the
inadvertent admission of the interview transcript. The Attorney
General argues the fault is with Wilson, whose counsel failed to
object to the admission of the transcript, and therefore we should
deem Wilson’s arguments on appeal forfeited. Wilson argues the
error was either the trial court’s or the prosecutor’s; alternatively,
to the extent Wilson’s counsel was at fault, Wilson claims
ineffective assistance of counsel.
Whoever was at fault, we agree with Wilson the jury
should not have received the interview transcript. The trial court
expressly ruled the jury was not to hear any evidence of Wilson’s
gang membership, deeming that evidence potentially prejudicial,
and also unnecessary given the court’s earlier striking of the
gang allegations and enhancements. The admission of the
transcript, which contained many references to Wilson’s gang
membership, was not consistent with the court’s ruling. Further,
because Wilson did not know the transcript would be admitted,
he had no reason to question K.P. on cross-examination about her
interview statements regarding his gang membership, her fear of
reprisal from the gang, or his being “crazy” enough to commit
murder. The jury therefore received those statements without
Wilson having an opportunity to address them.
11
The question then is whether the inadvertent admission of
the transcript was prejudicial. Wilson contends the error was of
federal constitutional proportion. We will assume arguendo it
was, and therefore will affirm only if “beyond a reasonable doubt
. . . the error complained of did not contribute to the verdict
obtained.” (Chapman v. California (1967) 386 U.S. 18, 24; see
People v. Clair (1992) 2 Cal.4th 629, 669, fn. 10 [applying
Chapman harmless error test to defendant’s claimed
constitutional errors stemming from jury’s receipt of unredacted
audiotape recording and transcript].)
Wilson argues K.P.’s statements in the transcript regarding
his gang membership, her fear of gang reprisal, and that she
knew he and Peddycoart had murdered Teamer because “[t]hey
were just that crazy,” could have affected the jury’s verdict on the
murder count and robbery special circumstance. He contends
there was no evidence he was the actual killer or intended to kill
Teamer. Therefore, to convict him of murder with the robbery
special circumstance, the jury had to find he was a major
participant in the robbery and acted with reckless disregard for
human life. (See § 189, subds. (a), (e)(3) § 190.2, subds.
(a)(17)(A), (d).)
The jury thus had to determine Wilson’s state of mind
during the 7-11 robbery. To be recklessly indifferent to human
life, “ ‘[t]he defendant must be aware of and willingly involved in
the violent manner in which the particular offense is committed,’
and must then consciously disregard ‘the significant risk of death
his or her actions create.’ ” (People v. Guiffreda (2023)
87 Cal.App.5th 112, 125, quoting People v. Banks (2015)
61 Cal.4th 788, 801.) Merely showing an “[a]wareness of . . . the
foreseeable risk of death inherent in any armed crime” is
12
inadequate; it must be shown the defendant “knowingly creat[ed]
a ‘grave risk of death’ . . . . [Citation.]” (Banks, at p. 808.)
Wilson argues K.P.’s statements that he was a gang
member, she was afraid of him and his gang, and he was “crazy”
enough to commit murder could have tipped the balance against
him on the question of reckless indifference. We disagree.
The trial court instructed the jury on the following
nonexclusive list of factors to determine whether Wilson acted
with reckless indifference: “Did the defendant know that a lethal
weapon would be present during the robbery? Did the defendant
know that a lethal weapon was likely to be used? Did the
defendant know that a lethal weapon was used? Did the
defendant know the number of weapons involved? Was the
defendant near the person killed when the killing occurred? Did
the defendant have an opportunity to stop the criminal killing or
help the victim? Was the defendant aware of anything that
would make the co-participant likely to kill? Did the defendant
try to minimize the possibility of violence?”
Every one of these factors weighed against Wilson. The
evidence showed that the night before the 7-11 incident, Wilson
had orchestrated an armed robbery at the Travelodge. During
that robbery, Peddycoart had fired repeatedly at a fleeing victim
with an AK-47 rifle. Knowing Peddycoart was, as Wilson’s trial
counsel stated, “trigger-happy,” Wilson nonetheless joined
Peddycoart in another robbery attempt at the 7-11 in which
Peddycoart once again was armed with the AK-47. When the
victim, Teamer, attempted to flee in his car, Wilson made no
attempt to stop Peddycoart from firing at Teamer—rather,
Wilson intensified the situation by lunging forward to tear away
Teamer’s necklace.
13
Thus, the evidence showed Wilson knew Peddycoart was
armed with a lethal weapon at the 7-11, the same lethal weapon
Peddycoart had fired at a victim during the robbery the night
before, and despite Wilson’s proximity to both Peddycoart and
Teamer, Wilson did nothing to stop the killing or minimize the
possibility of violence. Under these circumstances, any
reasonable juror would find Wilson acted with reckless
indifference to human life. The inadvertent admission of the
interview transcript was harmless beyond a reasonable doubt.
This conclusion also defeats Wilson’s claim of ineffective
assistance of counsel, which requires a showing of prejudice. (See
People v. Simmons (2023) 96 Cal.App.5th 323, 336 (Simmons).)
Attempting to avoid harmless error analysis, Wilson argues
the error was structural and reversible per se. He reasons that
because he believed all gang evidence would be excluded from
trial, his counsel did not question jurors during voir dire to
determine whether they might harbor biases against gang
members. Accordingly, Wilson contends, he was denied adequate
voir dire and the opportunity to make informed peremptory
challenges, thus creating the possibility that one or more jurors
were biased against him. (See People v. Mil (2012) 53 Cal.4th
400, 410 [a “biased decision maker” is one of a “ ‘ “very limited
class of cases” ’ ” “ ‘subject to automatic reversal’ ”].)
Wilson cites no case in which the inadvertent admission of
evidence at trial gives rise retroactively to structural voir dire
error, and the cases he does cite do not aid his argument. In
People v. Cash (2002) 28 Cal.4th 703 (Cash), the Supreme Court
reversed the defendant’s judgment of death because the trial
court prohibited defense counsel from asking jurors whether they
would automatically impose the death penalty on a defendant
14
who had previously committed murder, there of his
grandparents. (Id. at pp. 721, 723.) Notably, the court did not
deem the error per se reversible, instead stating, “Error in
restricting death-qualification voir dire does not invariably
require reversal of a judgment of death.” (Id. at p. 722.) In that
case, however, the high court concluded the issue of the prior
murder was “a possibly determinative fact for a juror,” and
because the trial court had barred questions on the subject, it
was “impossible . . . to determine from the record whether any of
the individuals who were ultimately seated as jurors held the
disqualifying view that the death penalty should be imposed
invariably and automatically on any defendant who had
committed one or more murders other than the murder charged
in this case . . . .” (Id. at p. 723, italics added.)
In People v. Avila (2006) 38 Cal.4th 491, the Supreme
Court rejected the defendant’s argument that the trial court
erred by requiring him to exercise some of his peremptory
challenges to jurors before all challenges for cause had been
exercised. (Id. at pp. 537–538.) Although “[a] court commits
reversible error if its procedures deny a party’s right of
peremptory challenge,” the court held that rule did not apply
because the defendant had exercised all of his peremptory
challenges, just not in the order he wished. (Id. at p. 538.)
In People v. Contreras (2013) 58 Cal.4th 123, the defendant
contended voir dire was inadequate because the trial court
had not “question[ed] every prospective juror either individually
or collectively about general principles of law concerning both the
standard and burden of proof, and the presumption of innocence.”
(Id. at pp. 142–143.) The Supreme Court stated, “Unless the
voir dire ‘is so inadequate that the reviewing court can say that
15
the resulting trial was fundamentally unfair, the manner in
which voir dire is conducted is not a basis for reversal.’
[Citations.]” (Id. at p. 143.) The court concluded the defense had
adequate opportunity to question the prospective jurors, and
voir dire adequately covered the general principles of law in
questionnaires and voir dire before the court. (Id. at pp. 144–
145.)
In People v. Leon (2015) 61 Cal.4th 569 (Leon), another case
addressing limits on death qualification voir dire, the Supreme
Court cited Contreras and held the defense had adequate
opportunity to inquire about the jurors’ views on the death
penalty.3 (Leon, at p. 589.)
Because, as we have explained, Wilson’s guilt for murder
was conclusively established by properly admitted evidence, the
inadvertent admission of the interview transcript was not
“determinative,” thus distinguishing this case from Cash. For
the same reason, the admission of that evidence did not render
the trial fundamentally unfair under Contreras and Leon. Avila’s
reversal rule applies when the trial court prevents a defendant
from exercising his peremptory challenges—it does not address
the instant circumstance, in which a defendant argues merely
that his peremptory challenges were inadequately informed
3 In a section of Leon not cited or relied upon by Wilson,
the Supreme Court held the trial court erred by dismissing jurors
for cause based on their opposition to the death penalty without
first inquiring whether the jurors could set aside their personal
views and follow the law. (Leon, supra, 61 Cal.4th at pp. 592–
593.) The high court held this error required automatic reversal
of the penalty verdict. (Id. at p. 593.) That holding has no
relevance here, where Wilson does not contend the trial court
erroneously dismissed jurors for cause.
16
because of later erroneous admission of evidence. None of these
cases compels the conclusion that the admission of the interview
transcript was structural error.
Wilson notes the Supreme Court in Cash reversed in part
because the trial court’s erroneous limitations on voir dire
rendered it “impossible . . . to determine from the record whether
any of the individuals who were ultimately seated as jurors” held
improper viewpoints. (Cash, supra, 28 Cal.4th at p. 723.) Wilson
argues it is similarly impossible to determine whether any of the
jurors here were biased against gang members, given his
inability to question them on the subject, and therefore “the
defect in the jury selection process cannot be found harmless.”
Again, Cash did not mandate reversal in all instances
where voir dire is improperly limited, instead stating such errors
are subject to harmless error review. (Cash, supra, 28 Cal.4th at
p. 722.) In that case, the error was not harmless because the
issue on which the trial court prohibited voir dire was “possibly
determinative.” (Id. at p. 723.) Wilson’s gang membership
was not determinative given the overwhelming evidence of his
guilt of special circumstance felony murder, and therefore Cash
does not compel reversal.
Wilson argues the record reflects one of the jurors was in
fact biased against gang members. During voir dire, a
prospective juror4 stated his cousin had been convicted of
murder. Asked for his thoughts on his cousin’s “situation,” the
juror said, “Well, I saw him going down the wrong path, being
gang affiliated and doing drugs, so it wasn’t really much of a
4 Wilson represents, and the Attorney General does not
dispute, that the prospective juror ultimately served on Wilson’s
jury.
17
surprise.” The prosecutor asked the juror why he had not himself
chosen “the gang life,” and the juror stated, “I have a large
family. I have seen that there are not many good outcomes of
that life, either you leave it, you die, or end up in prison, so I
didn’t think that was suitable for me.”
We do not agree these statements indicate a particular bias
against gang members. We presume most law-abiding citizens
would view gang membership as a “wrong path” often leading to
death or prison, but this does not render them incapable of
reaching a fair verdict when a gang member is involved. The
juror gave no indication that he would presume a gang member’s
guilt based on his experience with his cousin, only that he
was not surprised his cousin’s choices led to criminality and
prison. This is insufficient to establish bias necessitating
reversal.
B. The Trial Court Did Not Err In Admitting Evidence
of Wilson’s Prior Uncharged Conduct
Wilson contends that under Evidence Code section 1101,
the trial court should have excluded evidence about prior
uncharged robberies because the evidence was improper
character evidence. Alternatively, Wilson argues the court
should have excluded the evidence under Evidence Code
section 352 because its potential for undue prejudice outweighed
its probative value. We review admission of this evidence for
abuse of discretion (People v. Thomas (2023) 14 Cal.5th 327, 358),
and under that standard reject these arguments. Because the
arguments fail on the merits, we do not reach the Attorney
General’s forfeiture arguments.
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1. Additional background
During trial, the court ruled over defense objection that the
prosecution could introduce statements Wilson had purportedly
made about a prior, uncharged robbery he had committed. The
court ruled the statements were admissible as a party admission,
and were relevant to the conspiracy charges and Wilson’s state of
mind as to whether he intended to aid and abet the robbery of
Teamer.
K.P. testified that on a drive to Palmdale a few days before
the Travelodge robbery, Wilson had told her he scared someone
in an alley into giving him money. He told her he had taken
$1,500.
A.P. testified that when she informed Wilson about
Teamer’s gold chain, she did so understanding Wilson “could take
the chain” “[b]ecause of past situations he had told me about
what he had did.” Asked about the past robberies, A.P. said
during a drive to Palmdale a few days before the 7-11 incident,
Wilson told her that on an earlier occasion he, Peddycoart, and
5 Meals had followed a victim from a hotel to the victim’s home
and robbed the victim. Wilson said he waited in the car while
Peddycoart threatened the victim with a gun and 5 Meals took
the victim’s jewelry. Wilson described the gun as an AK-47. A.P.
testified she saw the jewelry Wilson told her he had taken.
2. Analysis
Evidence Code section 1101 provides that, absent one of
several exceptions, “evidence of a person’s character or a trait of
his or her character (whether in the form of an opinion, evidence
of reputation, or evidence of specific instances of his or her
conduct) is inadmissible when offered to prove his or her conduct
19
on a specified occasion.” (Evid. Code, § 1101, subd. (a).) Evidence
of a defendant’s prior crimes is nonetheless admissible “to prove
some fact . . . other than his or her disposition to commit such an
act,” “such as motive, opportunity, intent, preparation, plan,
knowledge, identity, [or] absence of mistake or accident . . . .”
(See id., subd. (b).)
Wilson argues the prior robbery evidence was not relevant
to prove his intent during the Teamer robbery because “there was
nothing unique or especially similar between the description of
the prior robberies and either of the current offenses such that
the evidence helped to prove a disputed element of the offenses.”
Wilson further contends the prior acts evidence was cumulative
of other evidence, such as the video “clearly establish[ing]
[Wilson’s] intent to rob Mr. Teamer of his neckl[ace].”
The uncharged robbery described by A.P. was similar to the
charged robberies in that they were committed with Wilson,
Peddycoart, and/or 5 Meals as a team, with Peddycoart handling
the weapon. Evidence that Wilson previously had planned and
committed robberies with Peddycoart tended to prove that Wilson
intended to assist Peddycoart in robbing Teamer using a similar
modus operandi. Although Wilson argues on appeal the video
evidence clearly established his intent, thus rendering the prior
acts evidence unnecessary, at trial his counsel argued the video
evidence did not establish Wilson intended to rob Teamer.
Instead, counsel argued the video suggested Wilson was sending
Peddycoart away from the area because Peddycoart was “trigger-
happy.” Given the defense’s position that Wilson did not intend
to assist Peddycoart in robbing Teamer, the prosecution was
entitled to introduce evidence tending to show the contrary.
20
Although evidence admitted under Evidence Code
section 1101, subdivision (b) cannot be “ ‘merely cumulative with
respect to other evidence which the People may use to prove the
same issue’ ” (People v. Guerrero (1976) 16 Cal.3d 719, 724), here,
it was the fact of a pattern of similarly executed robberies that
tended to show Wilson’s intent during the 7-11 robbery. Proof of
a pattern necessarily requires evidence of multiple instances of
similar offenses. Such proof is not cumulative, but instead,
essential to establishing the pattern.
The trial court did not abuse its discretion under Evidence
Code section 352 either. That statute grants a court discretion to
“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.”
Similar to his argument under Evidence Code section 1101,
Wilson contends because the video evidence and A.P.’s and K.P.’s
testimony established his intent, the prior crimes evidence was,
at best, marginally necessary and therefore served only to
inflame the jury against him. Wilson further argues the
probative value of the prior crimes evidence was minimal because
apart from the sisters’ testimony, there was no evidence those
crimes occurred, and the sisters’ testimony was suspect because
they were testifying under immunity grants.
We have already explained that the prior crimes evidence
was probative of a pattern of crimes jointly planned and
committed by Wilson and Peddycoart, which in turn tended to
show Wilson’s intent during the 7-11 incident. The trial court
was within its discretion to let the jury decide whether the
21
evidence was credible. As for undue prejudice, evidence of a prior
uncharged robbery with no indication the victim was injured
would be far less inflammatory than the evidence of the charged
crimes, in which Peddycoart opened fire on fleeing victims,
injuring one and killing another.
We further conclude, assuming arguendo the trial court
erred under Evidence Code sections 1101 or 352 in admitting the
prior crimes evidence, Wilson fails to show prejudice. The only
prejudice claimed by Wilson is that error might have affected the
jury’s determination that he acted with reckless indifference to
human life during the 7-11 robbery. As explained in the previous
section, ante, other admissible evidence clearly established
Wilson acted with reckless indifference, and therefore the prior
crimes evidence, if arguendo erroneously admitted, did not affect
the outcome, even under the Chapman standard for federal
constitutional error.
Wilson argues there was undue prejudice because the trial
court did not provide any instructions limiting the jury’s
consideration of the prior crimes evidence to the purposes for
which it was introduced.5 Wilson identifies nothing in the record
indicating the defense requested such an instruction.
5 The Attorney General notes the trial court instructed the
jury with CALCRIM No. 303, stating, “During the trial, certain
evidence was admitted for a limited purpose. You may consider
that evidence only for that purpose and for no other.” At no
point, however, did the trial court indicate to the jury that the
prior crimes evidence was admitted for a limited purpose;
therefore, the jury would have no reason to know CALCRIM
No. 303 applied to the prior crimes evidence.
22
Accordingly, the argument is forfeited. (See People v. Pineda
(2022) 13 Cal.5th 186, 238, fn. 29.)
To the extent Wilson suggests his counsel was ineffective
for failing to object to the prior crimes evidence or request a
limiting instruction, the absence of prejudice discussed previously
defeats such a claim. (Simmons, supra, 96 Cal.App.5th at
p. 336.) Counsel also might have made the tactical decision not
to draw further attention to the prior crimes evidence by
objecting or requesting specific instructions addressing that
evidence. (See People v. Orloff (2016) 2 Cal.App.5th 947, 955
[“ ‘[W]here counsel’s trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find
ineffective assistance of counsel on appeal unless there could be
no conceivable reason for counsel’s acts or omissions.’ ”].)
C. Wilson Has Not Demonstrated Reversible
Cumulative Error
Wilson contends the errors in admitting K.P.’s interview
transcript and the evidence of his prior crimes, even if not
reversible on their own, cumulatively mandate reversal. We have
concluded Wilson suffered no prejudice from the admission of the
interview transcript, and the trial court did not err in admitting
the prior crimes evidence. Accordingly, there was no cumulative
error.
D. The Accessory Conviction Must Be Reversed
Wilson argues because he was convicted of aiding and
abetting the Travelodge robbery, he cannot also be convicted as
an accessory to that crime. Under the facts of this case, we agree.
23
1. Applicable law
Section 31 defines “principals” in a crime, in relevant part,
as “[a]ll persons concerned in the commission of a crime, . . .
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 . . . .” Section 32 defines
“accessory” as “[e]very person who, after a felony has been
committed, harbors, conceals or aids a principal in such felony,
with the intent that said principal may avoid or escape from
arrest, trial, conviction or punishment, having knowledge that
said principal has committed such felony or has been charged
with such felony or convicted thereof . . . .”
Our Supreme Court has established that a defendant may
be guilty both as a principal and as an accessory to the same
crime. (People v. Jennings (2010) 50 Cal.4th 616, 668 [“A
defendant can be convicted of both murder and being an
accessory to murder if the defendant aids the principal both
before and during, as well as after, the murder is committed.”].)
In reaching this conclusion, the high court cited with approval
People v. Mouton (1993) 15 Cal.App.4th 1313 (Mouton) and
People v. Riley (1993) 20 Cal.App.4th 1808 (Riley).
In Mouton, during an argument between two men, one
drew a gun and fired at the other, missing and killing an
uninvolved bystander. (Mouton, supra, 15 Cal.App.4th at
p. 1317.) At trial, the prosecutor argued the defendant was an
aider and abettor because he “agree[ed] to make an armed show
of force with” the perpetrator, brought the perpetrator to the
apartment where the murder occurred, and “st[ood] ready to
assist with an additional weapon as [the perpetrator] confronted
[the intended victim].” (Id. at p. 1324.) The prosecutor argued
24
the defendant also was an accessory because, following the
murder, the defendant “help[ed] in concealing [the perpetrator’s]
jacket and gun” and made “false statements to the police.” (Ibid.)
The jury convicted the defendant of both the murder and acting
as an accessory to the murder. (Id. at p. 1321.) With the
agreement of the prosecutor, however, the trial court stayed the
sentence on the accessory conviction. (Id. at p. 1325, fn. 6.)
The Court of Appeal rejected the defendant’s argument that
he could not be convicted of both offenses. “[T]here is no bar to
conviction as both principal and accessory where the evidence
shows distinct and independent actions supporting each crime.
When a felony has been completed and a person knowingly and
intentionally harbors, conceals or aids the escape of one of the
felons, that person is guilty as an accessory to a felony
under section 32, whatever his or her prior participation in the
predicate felony.” (Mouton, supra, 15 Cal.App.4th at p. 1324.)
Here, the two convictions were not based on the same acts—the
murder conviction was based on the defendant’s conduct “before
and during the shooting incident,” whereas the conduct
underlying the accessory conviction took place after. (See ibid.)
“Although defendant was technically convicted of being an
accessory to his own crime, in substance he was convicted for
two different sets of actions.” (Id. at pp. 1324–1325.)
In Riley, a man, Hayden, robbed a prostitute in a motel
room, but the prostitute’s boyfriend, Rowe, accosted Hayden as he
was leaving the room and took the money back. Hayden rode off
on his motorcycle, “vow[ing] to return” “[i]n a loud, angry voice.”
(Riley, supra, 20 Cal.App.4th at p. 1810.) Hayden returned to the
motel with the defendant in the defendant’s truck 30 to 45
minutes later. The defendant drove slowly around the motel
25
parking lot, stopping the truck near David Woods, who was in the
parking lot with other motel residents. Hayden fired several
gunshots from the truck, killing Woods. (Ibid.)
The day after the killing, the defendant gave a gun to his
business partner “for safekeeping.” (Riley, supra, 20 Cal.App.4th
at p. 1810.) The defendant bragged the gun had been used in a
killing. (Id. at pp. 1810–1811.) When police later obtained the
gun, it matched a bullet found at the crime scene. (Id. at
p. 1811.)
The jury convicted the defendant for both a murder count
and accessory to murder count. (Riley, supra, 20 Cal.App.4th at
p. 1812.) The trial court imposed sentence on both counts, with
the accessory sentence to run concurrent with the murder
sentence. (Ibid.)
As in Mouton, the Court of Appeal rejected the argument
that the defendant could not be convicted as a principal and an
accessory. “Here, . . . the conviction as a principal and the
conviction as an accessory depend upon entirely different
conduct: Defendant’s acts of obtaining the gun and speed loader,
giving them to a drunk and angry Hayden, suggesting that
Hayden return to the motel to retrieve his property, and driving
Hayden to the motel in defendant’s truck comprise the essentials
of his guilt as a principal to the murder. The conviction of
accessory is based on defendant’s act, the following day, of
attempting to dispose of the gun. This act occurred after the
murder was complete.” (Riley, supra, 20 Cal.App.4th at
pp. 1814–1815.) “Once the murder was completed, defendant’s
further acts of attempting to dispose of the murder weapon were
entirely separate and distinct, and served a further and different
26
purpose. The imposition of separate liability for these distinct
and independent actions was proper.” (Id. at pp. 1816–1817.)
In re Malcolm M. (2007) 147 Cal.App.4th 157 (Malcolm M.)
agreed with Mouton and Riley that a defendant potentially could
be convicted both as a principal and as an accessory to a felony,
but only if “the acts constituting that felony . . . have ceased at
the time of the conduct that violates section 32. Otherwise, the
conduct of aiding or concealing a principal with the intent that he
or she avoid arrest (§ 32) is subsumed into the conduct of aiding
the commission of the crime with the intent or purpose of
facilitating commission of the offense [citation], such that the
defendant is ‘concerned in the commission of a crime’ (§ 31) and is
therefore a principal in its commission [citation]. This is because
an intent to help the perpetrator get away, formed before
cessation of the acts constituting the felony, constitutes aiding
and abetting.” (Malcolm M., at p. 171.)
Applying these principles, Malcolm M. concluded the
defendant could not be convicted as an aider and abettor and
accessory after the fact to possession of an assault weapon.
(Malcolm M., supra, 147 Cal.App.4th at pp. 164–165.) The
juvenile court had found the defendant guilty as an aider and
abettor because he “acted as [the perpetrator’s] ‘eyes and ears’
when [the perpetrator] exited the vehicle” while armed. (Id. at
p. 164.) The accessory count was based on the defendant
attempting to conceal the weapon when police later stopped the
vehicle. (Ibid.) The reviewing court held that the perpetrator’s
“possession of the assault rifle was a continuing offense that
extended throughout the entire time he asserted dominion and
control over that weapon,” and thus the offense “had not been
‘completed’ for purposes of section 32” at the time defendant
27
attempted to conceal the weapon. (Malcolm M., at pp. 169–170.)
“Because the crime was still in progress, [the defendant’s]
presumable purpose of helping [the perpetrator] avoid arrest for
possession was subsumed within, and was not separable from, his
purpose of facilitating [the perpetrator’s] commission of the
offense, and his act aided [the perpetrator] in his criminal
endeavor. Accordingly, he aided and abetted [the perpetrator’s]
continued felonious possession of the weapon.” (Id. at p. 170.)
2. Analysis
In the instant case, the prosecutor argued at trial that
Wilson was guilty as an accessory to the Travelodge robbery
based on “picking up the duffel bags and bringing them back to
the room, the change of clothes, the AK.” The prosecutor argued,
“[T]hat conduct is beyond just the robbery. It’s part of the
robbery conspiracy, that the robbery itself ended, but the
planning afterwards to take and hide the duffel bag, that’s why
there’s sufficient evidence” to support an accessory conviction.
At first blush, it would appear the prosecutor’s accessory
theory is consistent with Mouton and Riley—at the time Wilson
collected the duffel bags and rifle, the robbery itself was
complete, and thus Wilson’s acts arguably were separate and
distinct from the robbery.
What differs between the instant case and Mouton and
Riley, however, is that Wilson’s intent to collect the items after
the robbery was, in the words of Malcolm M., “formed before
cessation of the acts constituting the felony.” (Malcolm M.,
supra, 147 Cal.App.4th at p. 171.) The testimony at trial
established that Wilson was the ringleader of the Travelodge
robbery, and it was he who came up with the plan that
Peddycoart and 5 Meals would change their clothing after the
28
robbery and leave the clothing and rifle in the alley for Wilson to
collect. Because Wilson’s role in collecting the clothing and rifle
was part of the plan from the outset, and his intent to perform
that role formed before the robbery had taken place, his post-
robbery actions were “subsumed within, and w[ere] not separable
from, his purpose of facilitating [the perpetrator’s] commission of
the offense, and his act aided [the perpetrator] in his criminal
endeavor.” (Id. at p. 170.)
Put another way, Wilson’s post-robbery actions were the
means by which he intended from the outset to aid and abet the
robbery. Those actions therefore could not subject him to
culpability as both an aider and abettor and as an accessory after
the fact. The accessory conviction must be reversed. Given this
conclusion, we do not reach Wilson’s alternative argument that
the trial court should have stayed execution of sentence on the
accessory conviction under section 654.
E. Section 654 Requires Staying Execution of Sentence
on Count 2, Robbery
“Section 654 provides that the same act or omission shall
not be punished under more than one provision of law.”
(People v. Montes (2014) 58 Cal.4th 809, 898.) As relevant here,
section 654 bars imposing punishment on a defendant both for
felony murder and the predicate felony underlying that murder.
(Ibid.) Here, the trial court imposed and executed sentence for
both the murder, count 1, and underlying robbery of Teamer,
count 2. Wilson argues, and the Attorney General agrees, this
was error. Although the trial court properly imposed a sentence
on count 2, it was required under section 654 to stay execution of
that sentence. (See People v. Duff (2010) 50 Cal.4th 787, 796
(Duff).)
29
Because the trial court selected count 2 as the principal
count when setting the total determinate term, resentencing is
required on the other determinate terms as well.
F. The Trial Court Should Impose and Stay Execution
of Sentence on the Conspiracy Counts 4 and 7
The trial court ruled the two conspiracy counts, counts 4
and 7, were subject to section 654, and did not impose sentence
on those counts. As noted in the previous section, the proper
procedure under section 654 is to impose sentence, but stay
execution of that sentence. (Duff, supra, 50 Cal.4th at p. 796.)
We requested and received supplemental briefing from the
parties on this issue. On remand, the trial court should impose,
but stay execution of, sentence on counts 4 and 7.
DISPOSITION
The conviction on count 5 is reversed. The convictions
otherwise are affirmed. The entire sentence is vacated. On
remand, the trial court shall impose, but stay execution of,
sentence on counts 2, 4, and 7 pursuant to Penal Code
section 654. The trial court shall resentence Wilson on counts 1,
6, and 9, and forward an amended abstract of judgment to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. CHANEY, J.
30