People v. Pugh CA2/1 ( 2024 )

Filed 5/23/24 P. v. Pugh CA2/1
Opinion following order vacating prior opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B329084
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA037534)
v.
WILBERT PUGH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, John J. Lonergan, Jr., Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Ron Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
In 1998, a jury convicted defendant and appellant
Wilbert Pugh of the murder of Corie Williams and the attempted
murder of Tyrone Lewis. “Effective January 1, 2019, the
Legislature passed Senate Bill [No.] 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.’ [Citation.]” (People v. Lewis (2021) 11 Cal.5th 952, 959.)
Senate Bill No. 1437 also added former Penal Code1 section
1170.95, now section 1172.6, providing the procedure for a
defendant convicted of felony murder or murder based on the
natural and probable consequences doctrine to request
resentencing relief. (People v. Gentile (2020) 10 Cal.5th 830, 843.)
The Legislature subsequently amended section 1170.95 to include
attempted murder. (People v. Whitson (2022) 79 Cal.App.5th 22,
30.)
This is an appeal from the resentencing court’s denial of
Pugh’s resentencing petition after an order to show cause hearing
(§ 1172.6, subd. (d)(3)). In a prior appeal, we reversed the
resentencing court’s conclusion that Pugh was ineligible as a
matter of law for resentencing on his murder conviction.
(People v. Pugh (Mar. 23, 2021, B301904) [nonpub. opn.].) In that
appeal, we did not consider Pugh’s attempted murder conviction
because the prior appeal predated inclusion of attempted murder
in former section 1170.95.
1 Undesignated statutory citations are to the Penal Code.
2
Following remand, the resentencing court held a
section 1172.6, subdivision (d)(3) hearing and found beyond a
reasonable doubt that Pugh was guilty of murder and attempted
murder under current law. Pugh appeals from the resentencing
court’s denial of that petition. Pugh challenges the sufficiency of
the evidence supporting intent to kill. We conclude substantial
evidence supported the resentencing court’s finding of intent to
kill and thus affirm.
FACTUAL BACKGROUND
Our standard of review for sufficiency of the evidence
requires us to interpret the facts in the light most favorable to
the resentencing court’s order. (People v. Reyes (2023) 14 Cal.5th
981, 988.) No witnesses testified at the order to show cause
hearing. Thus, the only testimony before the resentencing court
was from the trial. We summarize that evidence in accordance
with our standard of review.
Pugh was a member of a Crips gang and felt disrespected
when members of a rival Bloods gang displayed gang signs while
riding on a public bus through Pugh’s neighborhood. Beginning
at least in 1996, Pugh and his fellow Crips were upset by the
Bloods’s “disrespect.” Bloods members often wore red to
symbolize their gang membership.
On January 15, 1997, Pugh and codefendant Robert
Johnson discussed a plan to counter the Bloods’s “disrespect.”
They discussed “getting the guys [members of the Bloods gang]
on the bus.” At the time of the discussion, Johnson was armed
with a gun.
On January 16, 1997, Pugh and his confederates, including
Johnson and Randall Amado, waited at a bus stop at the corner
of Imperial and Avalon. Witnesses observed between six and
3
20 people with Pugh. Pugh was the leader of the younger gang
members, including Johnson. Pugh organized the group, asked,
“Y’all ready?” and led them to the bus stop. Pugh was armed
with a weapon. Johnson and Amado also were armed.
When the public bus stopped, Amado and Pugh boarded the
bus. There were members of a Bloods gang on the bus. Amado or
Pugh shouted “BK for life” meaning “Blood Killers” for life. One
of them pointed to Lewis. Lewis was wearing a red shirt even
though he was not a member of a gang. Pugh or Amado, or both
shouted, “Shoot this mother fucking bus up.” Johnson then fired
approximately five shots into the bus.
Along with Lewis, Corie Williams and Tammy Freeman
were passengers on the bus. Corie Williams died from a gunshot
wound to her neck. Freeman was injured by a bullet.
After the shooting, Johnson ran away from the scene and
his confederates followed in the same direction. Pugh said, “[We]
got this girl. We got somebody.” Pugh and Johnson laughed
about the shooting.
PROCEDURAL BACKGROUND
Pugh, Amado, and Johnson were tried together before two
juries, one for Johnson and the other for Pugh and Amado.2 The
jury convicted Pugh of the first degree murder of Corie Williams.
The jury found Pugh guilty of the attempted murder of Tyrone
Lewis and found it was committed willfully, deliberately, and
with premeditation. The jury found Pugh guilty of assault with a
firearm upon Tammy Freeman. With respect to each crime, the
jury found a principal was armed with a firearm.
2In an interview, Johnson admitted being the killer. The
Pugh/Amado jury did not hear that evidence.
4
The court sentenced Pugh to 26 years to life for murder, a
concurrent life sentence with the possibility of parole for the
attempted murder, and a three-year concurrent determinate term
for the assault with a firearm. We affirmed Pugh’s convictions on
direct appeal. (People v. Johnson et al. (June 14, 2001, B129670)
[nonpub. opn.].)
Pugh filed a petition for resentencing pursuant to
former section 1170.95, now section 1172.6. We previously
reversed the summary denial of that petition. (People v. Pugh,
supra, B301904).)
Upon remand, the resentencing court held an order to show
cause hearing. The court indicated it had reviewed the trial
transcript and cited to specific pages in the transcript. Among
other things, the court found that Pugh had intent to kill, the sole
finding being challenged on this appeal.3
DISCUSSION
On appeal, Pugh argues: “While there may have existed a
plan to fight those members of the Bloods gang sitting on the bus,
there was no evidence of a plan or an intent to shoot, or shoot at,
the Bloods. Each of the counts arose as a result of the
unanticipated and unintended use of a gun by co-defendant
Johnson.”
3 Respondent asserts that to be guilty of murder, express
intent to kill is not required; implied malice may suffice. (People
v. Reyes, supra, 14 Cal.5th at pp. 988–989.) We need not consider
implied malice because we conclude substantial evidence
supports the resentencing court’s finding that Pugh acted with
express malice, i.e., intent to kill.
5
As just noted, on appeal from the denial of a resentencing
petition after a hearing, we review for substantial evidence.
(People v. Reyes, supra, 14 Cal.5th at p. 988.) We thus view the
evidence in the light most favorable to the court’s order to
determine whether any reasonable trier of fact could have made
the same determination beyond a reasonable doubt. (Ibid.)
Reversal on a substantial evidence ground “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conclusion of the
trier of fact].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297,
331.) “ ‘There is rarely direct evidence of a defendant’s intent.
Such intent must usually be derived from all the circumstances of
the attempt, including the defendant’s actions.’ [Citation.]”
(People v. Smith (2005) 37 Cal.4th 733, 741.)
The following evidence supported the resentencing court’s
finding that Pugh intended to kill Bloods gang members on the
bus. The day before the shooting, Pugh and Johnson planned to
“get” the Bloods gang members who had been “disrespecting” the
Crips for a long period of time. The day of the shooting, and
armed with a firearm, Pugh led a group to the bus stop at
Imperial and Avalon. Pugh and Amado boarded the bus and one
of them said, “[S]hoot this mother fucking bus up.” After
receiving this instruction, Johnson then tried to kill Lewis and
killed Williams. Throughout these events, Johnson and Pugh
were armed. After the murder, Pugh and Johnson laughed about
it. Taken together, Pugh’s arming himself, leading a group to the
bus stop, boarding the bus, either calling for “shooting the bus
up” or supporting Amado in that quest, and boasting about the
killing afterwards supports the inference that Pugh intended to
kill rival gang members on the bus.
6
The fact that neither Lewis nor Williams was a gang
member does not undermine the conclusion that substantial
evidence supported the resentencing court’s finding of intent to
kill. With respect to Lewis, the mental state required for
attempted murder is the intent to kill a human being, not a
particular human being.[4] (People v. Stone (2009) 46 Cal.4th
131, 141.) Even though Lewis was not a gang member, Pugh
perceived him as a rival gang member because Lewis was
wearing red. Either Pugh or Amado also specifically pointed to
Lewis as a target when they boarded the bus to search for rival
gang members. With respect to Williams, “the doctrine of
transferred intent applies when the defendant intends to kill one
person but mistakenly kills another.5 The intent to kill the
intended target is deemed to transfer to the unintended victim so
that the defendant is guilty of murder.” (People v. Bland (2002)
28 Cal.4th 313, 317.) An aider and abettor can be convicted
based on the transferred intent doctrine. (People v. Vasquez
(2016) 246 Cal.App.4th 1019, 1026; see also People v. Venegas
(2020) 44 Cal.App.5th 32, 38–39.)
Pugh’s contrary argument does not view the evidence in the
light most favorable to the resentencing court’s finding.6 Pugh
contends that he intended only to beat up the members of the
Bloods gang on the bus, not to kill them, and emphasizes he was
4During closing argument, the People acknowledged that
Lewis was not a member of the Bounty Hunter Bloods gang.
5 The trial court instructed the jury on transferred intent
with respect to the murder.
6 In making this argument, Pugh adopts the statement of
facts from his opening brief on his direct appeal.
7
only 20 years old at the time of the shooting. Even if the evidence
could support Pugh’s argument that he intended to beat up the
rival gang members, it also supports the resentencing court’s
conclusion that Pugh intended to kill rival gang members.
Additionally, as respondent argues, “There was no unarmed non-
lethal attack launched against the Blood gang members,” thus
undermining an inference that Pugh and his confederates
intended only to beat up the rival gang members. Although on
appeal Pugh references his age, he offers no legal argument
explaining how his age is relevant to assessing his intent to kill
and thus we do not address it further.7 (People v. Hovarter (2008)
44 Cal.4th 983, 1029.) By failing to consider the evidence in
accordance with our standard of review, he has failed to show the
resentencing court erred in finding Pugh intended to kill.8
(People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
7 Pugh cites authority for the proposition that mandatory
life without parole for juvenile defendants under the age of 18
violates the Eighth Amendment’s prohibition on cruel and
unusual punishment and that a trial court has discretion under
California law to sentence a minor defendant to 25 years to life.
(See, e.g., People v. Gutierrez (2014) 58 Cal.4th 1354, 1360–1361;
Miller v. Alabama (2012) 567 U.S. 460, 465.) These cases do not
apply to Pugh, who was not under 18 at the time he committed
the crimes and not sentenced to life without the possibility of
parole. We recognize that a defendant’s age might be relevant to
assessing whether the defendant acted with reckless indifference
to human life. (In re Harper (2022) 76 Cal.App.5th 450, 469.) In
this appeal, Pugh challenges the resentencing court’s finding as
to his mental state of intent to kill, not any mental state of
reckless indifference to human life.
8 Because we conclude substantial evidence supported the
resentencing court’s order, we need not consider respondent’s
8
DISPOSITION
The order denying Wilbert Pugh’s petition for resentencing
is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
argument that Pugh was ineligible for resentencing as a matter
of law.
9