People v. Perkins CA3 ( 2024 )

Filed 5/29/24 P. v. Perkins CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C096468
Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-
2015-0007403)
v.
SHAUN TERRIEL PERKINS,
Defendant and Appellant.
SUMMARY OF THE APPEAL
On the afternoon of August 24, 2015, defendant Shaun Terriel Perkins stole Danny
Coffey’s car. When defendant stole the car, Marlene McGehee’s unloaded gun and a
sealed bag of ammunition were in the trunk. We note that Coffey and McGehee are now
deceased.
That night, between 10:17 p.m. and 10:20 p.m., defendant drove through the
intersection of South Hunter and East Church Streets in Stockton, pulled over and, using
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the gun that had been in the trunk of the car, shot and killed Marcelino Urbina. The next
morning, August 25th, defendant abandoned the car but kept the gun. That afternoon,
defendant went to a homeless center located less than a block from South Hunter and
East Church Streets. There, he confronted one of the center’s residents, A.T., who
thought defendant wanted something, likely money. When the confrontation between
defendant and A.T. escalated, defendant put a gun close to A.T.’s face. As A.T. fled,
defendant fired the gun in his direction. Police responded to the resulting 9-1-1 call and
arrested defendant.
A jury convicted defendant of the misdemeanor unlawful taking of Coffey’s
vehicle, the misdemeanor grand theft of McGehee’s firearm, the felony attempted
robbery of A.T., the assault of A.T. with a firearm, and of being a prohibited person in
possession of a firearm. That jury was unable to reach a verdict on the charge that
defendant murdered Urbina, and the court declared a mistrial on the charge.
The court held a second trial, and at that trial, the jury found defendant guilty of
the first degree murder of Urbina.
Based on the guilty verdicts, various enhancement findings by the juries, and on
its own findings regarding defendant’s prior convictions, the trial court sentenced
defendant to a determinate term of 26 years to life and an indeterminate term of 75 years
to life. Included in defendant’s sentence were six-month concurrent terms for each of the
two misdemeanor convictions.
On appeal, defendant makes seven claims. First, he argues that based on
embellishments the trial court made to the jury instruction it provided both juries on the
issue of reasonable doubt, all the verdicts at both trials must be reversed. Second, he
argues the trial court erred in dismissing two jurors during the first trial. Third, he argues
there was insufficient evidence to support the first jury’s attempted robbery verdict.
Fourth, he argues his conviction for assault with a firearm must be reversed due to
embellishments the trial court made to the jury instruction for that offense during the first
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trial. Fifth, he argues he was improperly convicted and sentenced for both the taking of
the vehicle and the theft of the gun because both thefts were accomplished in one act.
Sixth, he argues that there was insufficient evidence during the second trial to support a
finding that the murder of Urbina was deliberate and premeditated. Seventh, he argues
the abstract of judgment incorrectly identifies his murder conviction as one for “felony
murder.”
We affirm the trial court’s judgment, but order the trial court to correct the abstract
of judgment to identify the murder conviction as one for “first degree murder” and not
“felony murder.”
FACTS AND HISTORY OF THE PROCEEDINGS
Facts
We present the facts in chronological order. When we describe the evidence
related to the Urbina killing, we refer to evidence presented at the second trial. When we
describe the confrontation between defendant and A.T., we refer to evidence presented at
the first trial.
The Theft of the Corsica and the Gun
At each trial, the court reporter read the testimony of Coffey and McGehee at the
preliminary hearing. According to their testimony, on August 24, 2015, brother and
sister McGehee and Coffey were planning to go to the shooting range to fire her .40
caliber Smith and Wesson handgun. They later were side-tracked and did not go to the
firing range. In anticipation of the trip to the gun range, Coffey had put the gun in the
trunk of his Chevy Corsica. The gun was unloaded and in an unlocked metal box. There
was a full, unopened plastic bag containing 100 rounds of ammunition in the trunk.
Around noon, Coffey drove to a friend’s. He left the car in front of his friend’s
apartment, with the car unlocked and his keys in the ashtray. Coffey and his friend left
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for about 20 to 30 minutes, and when they returned Coffey’s car was gone. His friend
gave him a ride to McGehee’s where he called the police.
The Murder at Church and Hunter
There is a restaurant called Dos Hermanos on the northeast corner of South Hunter
and East Church Streets in Stockton. South Hunter runs north and south, and East
Church runs east and west. There is an empty parking lot on the northwest corner of the
intersection of South Hunter and East Church Streets which parking lot is immediately
west of Dos Hermanos.
Local residents testified that at approximately 9:30 p.m. or 10 p.m. on August 24,
2015, they heard multiple gun shots coming from the direction of Dos Hermanos.
R.M. and I.M. lived on the 100 block of East Church Street, roughly one block
west of East Church and South Hunter. Immediately after he heard the shots, I.M. looked
out a window. And, about 20 seconds after he heard the shots, he saw a vehicle coming
from South Hunter and going towards El Dorado Street, which is a block west of South
Hunter. He was not sure if it was a van or a car. It was dark outside, and the car looked
dark. He thought the car was going fast for where it was and that he heard it speed up.
R.M. went to stand by the gate in front of her home and looked towards South
Hunter and East Church. R.M. testified she saw a commotion on the corner, and some
people standing over a body. She testified she thought she heard a person speaking
Spanish, and that person seemed shocked about what had just happened. She testified she
heard a car “rev” its engine, but she did not see people get into it. She believes the victim
would have been on the sidewalk near the empty lot or on the curb. R.M. explained that
the area of South Hunter Street and East Church Street was where farmworkers would
often get picked up early in the morning and then hang out after work. She said, “there
was always people there, workers.”
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R.M. testified she heard a car come from the direction of South Hunter and East
Church, and it sped past her house. It was a smaller, older sedan. The car turned north
onto El Dorado without stopping at the stop sign.
Z.V. was six and living on South Hunter Street. About a minute or two after she
heard gun shots, she looked through her door onto South Hunter Street and saw a car
going by very fast. It was dark, and she could not see the color of the car, but it looked
like a four-door car. It was going in a direction away from Dos Hermanos.
At around 2:30 a.m. on August 25, 2015, H.G., co-owner of Dos Hermanos,
arrived at the restaurant, which was his practice because he would open around 3 or 3:30
a.m. to sell food to field workers. Someone asked him to call an ambulance because
there had been blood on the ground, and there was a man who had been lying there a long
time who was not responsive. H.G. went in the restaurant and called for an ambulance.
He recognized the man on the ground as “Mars” who lived in the second house from
where he was lying.
Officers who arrived testified they found the victim to be cold, stiff, and
nonresponsive and they could not find a pulse. The body was on the west sidewalk of
South Hunter Street near the parking lot across from Dos Hermanos, approximately 70
feet from East Church Street, and lying face down. Paramedics declared the victim dead.
The victim’s feet faced East Church. A trail of ants led to an area where there was blood
under the victim’s face. There were blood stains on the victim’s lower back and a
puncture wound near his lower belt line. Officers were unable to locate a cellphone,
wallet, or identification card on the victim, but one officer was able to use a hospital band
to identify the victim as Urbina, who lived near where he was found.
A paramedic gave a similar description of Urbina’s condition, noting that the body
had rigor.
One officer testified he found a Speer .40 caliber bullet casing on the north side of
East Church where it meets South Hunter, roughly 60 feet from the body.
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The evidence technician who arrived at 2:55 a.m. testified that the shell casing
located at the northwest corner of East Church and South Hunter on the edge of the
sidewalk was a Speer .40 caliber Smith and Wesson casing. He said that another officer
pointed to a defect in a fence located at 427 South Hunter Street, which is separated from
the empty lot by a wood fence. He also noted a bullet hole in a stop sign on the
northwest corner of South Hunter and East Church. He could not say if the hole had
anything to do with this shooting.
The doctor who performed the autopsy on Urbina testified that Urbina’s cause of
death was a gunshot wound from a .40, .45, or 9-mm caliber bullet, which had caused
massive internal bleeding. He testified that Urbina had been shot from behind, at a
distance of greater than two to three feet, and that either the muzzle of the gun was lower
than the lower-back entry wound or Urbina was bending over when he was shot. The
doctor also believed Urbina’s wound was consistent with a gun being shot at his back
from the right of his back. The bullet passed through Urbina’s body and perforated his
spinal cord, causing him to fall immediately. Urbina was 83.
Video Surveillance Footage
Detective Alaniz, the lead detective on the case, obtained video footage from
surveillance cameras at Dos Hermanos and testified regarding what those videos showed.
One video clip lasted 19 seconds and ended at approximately 10:18:31 p.m. He
testified the video showed a vehicle driving east—though based on later testimony, it
appears he meant west—then pulling over slightly in front of a rescue mission about one-
half block away before moving along.
Another outside camera pointed south and captured a view of the intersection of
South Hunter and East Church. This video clip began at 10:18:25 p.m. and ended at
10:18:33 p.m. It showed a car crossing the intersection, its brake lights going on, and the
car going out of view. It appeared that the car pulled over to the curb.
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Another outside camera pointed west and gave a view of the intersection of East
Church and South Hunter. A clip from that camera that began at 10:18:17 p.m. shows the
vehicle going west then, at 29 seconds into the clip (10:18:46 p.m.), the driver had
crossed South Hunter Street, stepped on the car’s brake, and pulled over. The car
stopped, and all its lights went out. The lights went out at approximately 10:18:40 p.m.
Alaniz noted the taillights were unique and, having looked at the Corsica, he believed it
was the same car. The video ended at 10:19:52 p.m. Before the video ends, the brake
lights or taillights came back on at about 10:19:50 p.m. The car left, and Detective
Alaniz believes it went north. Up ahead of where the car pulled over, and going in a
north direction, was a spot where Hazelton and El Dorado merged.
The jury was shown a photograph of the Corsica.
Detective Alaniz also reviewed surveillance footage taken from inside Dos
Hermanos which footage had audio. The clip he reviewed began at about 10:19:27 p.m.
and ends at 10:19:42 p.m. Alaniz testified that in the video, you hear one gunshot, then
an eight-second pause, then four more gunshots. The first shot was fired at
approximately 10:19:31 p.m. When asked if he could hear people talking on the video,
Detective Alaniz said, “[y]es,” then clarified, “[y]ou could hear like—you couldn’t
distinctly tell that it was words, but you could tell there was something going on outside.”
And he said, “[n]o” when asked if he heard yelling, a commotion, or something like that.
Considering the video clips together, Detective Alaniz testified that he determined
that the taillights on the car were off for approximately 50 seconds before the first
gunshot. He testified the car’s brake light went back on about 12 seconds after the last
gunshot.
In the footage he watched, it did not appear to Detective Alaniz that a lot of people
were around near the time of the gunshots. However, he testified, given his general
knowledge of the area, “there was [sic] always people walking around late at night,” and
that it is a high crime area. He did not see any other car that could be associated with the
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gunshots in the timeframe of the shooting. The cameras did not show Urbina’s body or
the shooting.
Further Investigation at the Location of the Murder
Detective Alaniz and an evidence technician later searched the area of 127 East
Church Street, near where Urbina was shot. According to the evidence technician, they
found four .40 caliber cartridge casings on the side of the road. The casings were located
to the east side of the property located at 127 East Church Street, near the north curb line
of East Church Street.
Country Market Video Footage
Detective Alaniz reviewed footage taken at the Country Market the night of
August 24, 2015, and testified regarding that footage at both trials.
Between 11:03 p.m. and 11:05 p.m. on August 24, 2015, defendant was seen on
surveillance cameras pulling up to a gas pump in the gas station which was part of the
Country Market in Stockton. Defendant went into the store where he made a purchase.
Defendant returned to the car and drove away, leaving at approximately 11:12 or
11:13 p.m. Alaniz testified the taillights on the car were similar to the taillights captured
in footage from the location of Urbina’s murder.
Recovery of the Corsica
On August 25, 2015, at 5:30 a.m., P.E. returned to the apartment complex where
she lived and found another car parked in her assigned parking space. A man matching
defendant’s race wearing clothing she described as similar to the clothes defendant was
wearing in the Country Market video got out of the car. When P.E. asked the man to
move the car, he told her he could not move the car because it was not his, and that she
could do what she wanted with the car like he was going to gift it to her or she could sell
it. P.E. went to her apartment and called the police.
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An officer sent to P.E.’s building checked the plates on the car and identified it as
Coffey’s stolen Chevy Corsica.
Coffey went to P.E.’s apartment building and retrieved his car. The interior of the
car was a mess and contained items that did not belong to Coffey. Coffey put those items
in a garbage bag in the trunk. Coffey realized the gun was missing later, when the police
came to speak with him at McGehee’s house.
When detectives, including Detective Alaniz, and an evidence technician went to
look at items Coffey had stored in the bag, a .40 caliber bullet casing fell out when they
opened the trunk of the car. The detectives took items that did not belong to Coffey,
including a receipt for the Country Market, time stamped 11:10 p.m. on August 24, 2015.
A DNA test of a plastic cigar tip found in the Corsica yielded a DNA profile that
matched defendant. The DNA profile is estimated to occur at random among unrelated
individuals in approximately one in 16 quintillion African Americans.
A swab from the e-cigarette butt found in the Corsica yielded a mixture of DNA
from two people. Defendant was excluded from being a contributor to the mixture of
DNA on that e-cigarette butt.
The Incident at the Mission
The Gospel Rescue Mission (the mission) is a homeless outreach center about a
half block east of Dos Hermanos.
On August 25, 2015, L.S. was working as a receptionist at the mission. The
mission provides services for homeless and lower income persons in the area, including a
residential drug and alcohol program, and overnight shelter for homeless men. At
approximately 3:30 p.m., she was working in an office when they heard gun shots from
the courtyard of the mission, and she called 9-1-1. She could not tell exactly where the
shots were coming from. She heard one shot.
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The court reporter read A.T.’s testimony from the preliminary hearing at both
trials.
A.T. testified at the preliminary hearing that on a Tuesday morning in August, he
was walking to the mission. When asked if someone confronted him that day, A.T.
responded “[y]es . . . but it wasn’t this guy.” He said some guy tried to hit him with a
gun, that he didn’t remember, and he had been drinking.
When asked if someone came up to him who wanted food or money, A.T.
responded they “wanted something,” and they “shot a blank or something.” When asked
to clarify about the blank, A.T. said he got hit in the arm but did not have a wound.
A.T. testified he did not want to go to court to talk about this and did not really
know what he was doing in court.
A.T. testified regarding the man who approached him that, “I think he was just
being a jerk, you know.” A.T. said he was not frightened when the man came up to him,
but he was frightened after the gunshot.
A.T. admitted at one point he threw water at the man with the gun to try to get him
to “change his mind.” A.T. testified the man pulled a gun out after he threw water on the
man. But, later, when asked if he saw the gun when he first started talking to the man,
A.T. said, “[h]e pulled the gun and tried to put it in my face right away.” When asked if
the man was asking for money or food when he pulled out the gun, A.T. responded, “[h]e
asked me for money right away. I don’t know.” Later, on cross-examination, when
asked if the person asked for money or food, A.T. responded, “[n]o. Just being a fool.”
A.T. said, “I threw water. I hit the corner. He fired a shot. Police come. They
check my elbow. I told them I don’t want no charges. They leave.”
A.T. said the person he had a confrontation with didn’t look like defendant at all.
He said the man looked more African and dirtier, while defendant looked more clean-cut.
The other guy looked “more cheek bones, more skinny, more like he’s been on the street
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longer, sleeping on the ground or something.” A.T. said the guy had darker skin color;
very dark black.
On cross-examination, counsel asked A.T. if he argued when the guy asked for
food, A.T. said, “Yeah. Yeah. I already backed a little bit. I was – I was in a bad
mood.” A.T. said he did not take off running after he threw the water. But “I hit the
corner, like I was trying to get out of the way. I knew he was going to shoot.”
A.T. testified he did not see the person shoot at him. He agreed he did not see the
man shoot because he had his back turned. He heard one or two gunshots.
The court reporter read Peter Duckworth’s testimony from the preliminary hearing
because he was deceased at the time of trial.
According to Duckworth’s testimony, on the afternoon of August 25, 2015, he was
in the courtyard of the mission. He heard a loud bang. Then A.T. and defendant came
into the courtyard, with defendant trailing A.T. by about seven to 10 feet. Defendant had
a gun, which he was carrying down by his side. Duckworth had not seen defendant
around the mission before. The men did not speak to Duckworth. Duckworth said,
“gun” loudly and went into an office around the corner. About a minute-and-a-half later,
A.T. entered the office. Duckworth saw A.T. holding his elbow as if it was sore and
complaining about something stinging his arm. Duckworth did not see blood on A.T.
About five to 10 minutes after he saw defendant enter the courtyard, Duckworth
saw defendant on a bike on Church Street.
B.K. was the chief operating officer for the mission. He testified that A.T. was not
really “all there.” He believes A.T. has a severe mental illness or a developmental
disability. A.T. stayed at the mission from time to time, though at the time of trial B.K.
had not seen A.T. in a long time.
On August 25, 2015, at approximately 3:30 p.m. B.K. called 9-1-1 after somebody
told him there was someone in the courtyard with a gun. B.K. does not recall hearing a
shot. He went to the kitchen and looked out windows—where you can see most of the
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courtyard—to see if it was safe, and he did not see anyone with a gun. When he went to
the courtyard and went out the gate, Duckworth followed him. He was on the 9-1-1 call
when Duckworth identified someone. The man appeared to be a black man on a bicycle.
He thinks L.S. or Duckworth likely told him about the gunshot, which he does not
remember hearing.
The transcript from B.K.’s 9-1-1 call shows he called 9-1-1 at 3:33 p.m. B.K.
testified he spoke with A.T. while he was on the call. On the transcript, B.K. asks “[d]id
he shoot you or what?” A man who identified himself as A.T. responded, “[h]e tried to
and it hit my arm. Did it?” B.K. responded, “your arms are pretty red, but it don’t look
like no bullet hole.”
When officers arrived in the area to investigate and look for defendant, Officer
Justin Bauer met with A.T. around the corner of the mission. A.T. was very scared and
did not want to be there and was not fully cooperative. Officer Bauer did not see any
injuries on A.T. A.T. made a statement that a metal railing in the front of the mission
scratched him. Officer Bauer looked at some railing near the entrance and saw some
damage that seemed pretty fresh. He identified what he believed was a recent chip in the
paint. He directed field evidence technicians to look at the area for possible damage from
a gunshot. Bauer found a shell casing near the front of the mission. The evidence
technician said the casing was a S&W .40 caliber Speer Casing.
Defendant’s Arrest
Officers were sent to the area of the mission shortly after the 9-1-1 calls were
made. They found defendant nearby riding a bicycle. Officers found a gun with a loaded
magazine on defendant as well as an additional magazine. An officer checked the serial
number for the gun and determined it was registered to McGehee, which the officer later
confirmed with McGehee.
A cell phone was also taken from defendant.
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Casings Analysis
Detective Alaniz testified that he sent a magazine, firearm, and seven shell
casings—one from the trunk of the car, one from the mission, and five from the scene of
the homicide—to the Department of Justice to see if the casings were fired from the gun.
A senior criminalist for the department testified that the casings were .40 Smith
and Wesson caliber. All the casings had characteristics that would lead her to believe
they could have been fired from the same firearm. She also test-fired the firearm six
times. She concluded that the seven casings collected were fired from McGehee’s gun.
The criminalist also testified that, given the configuration of the gun, fired casings
will generally go to the right and rear of the shooter. She also testified that the gun was a
semi-automatic, which meant it would fire one bullet with each trigger pull, and that she
had needed to apply six pounds of pressure to pull the trigger on the gun.
Cell Phone Record Analysis
The People called as a witness an expert in cellular communications to discuss the
cell phone records from the cell phone found on defendant at the time of his arrest.
According to the expert, at 2:11 p.m. on August 24, 2015, when the Corsica was
stolen, there was no activity. However, calls at 2:47 p.m. and 2:55 p.m. connected to a
cell site that appears to include the location where the vehicle was stolen. Beginning at
around 10 p.m., the data shows the phone moving in a southern direction, towards the
homicide area. Then at 10:15 p.m. and 10:17 p.m. it connected to a cell site that includes
the area of homicide. The 10:17 p.m. connection was two minutes before the gunshot
audio was captured. The phone next connected to a cell cite again at 10:28 p.m.
Starting at 11:13 p.m., the phone connected to the cell site nearest the Country
Market. It continued to connect to that cell site until 12:05 a.m. on August 25, 2015.
Then, at 1:07 a.m., it connected back with a cell site near the homicide. It again
connected with the cell site near Country Market at 1:19 a.m.
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The phone connected to a cell site at 10:40 a.m., 11:30 a.m., and 11:35 a.m. on
August 25, 2015, that includes the area where the vehicle was recovered.
The phone records reflected the phone communicating with individuals who
visited defendant while he was in county jail.
“I did it”
Detective Alaniz testified to obtaining a search warrant to collect DNA from
defendant. In November 2015, he went with another detective to meet defendant in the
county jail. According to Detective Alaniz, when he provided a copy of the search
warrant to defendant, defendant said, “I don’t want to waste your time. I did it.”
Detective Alaniz then collected DNA samples. The interaction was not recorded because
Detective Alaniz was strictly there to collect defendant’s DNA.
Proceedings
The operative information sets forth six counts.
After the first trial, a jury found defendant guilty of Count Two, the misdemeanor
unlawful taking of Coffey’s vehicle, in violation of Vehicle Code section 10851,
subdivision (a).
The first jury found defendant guilty of Count Three, the misdemeanor grand theft
of McGehee’s firearm, in violation of Penal Code section 487, subdivision (d)(2).
(Undesignated section references are to the Penal Code.)
The first jury found defendant guilty of Count Four, the felony attempted robbery
of A.T., in violation of sections 664 and 221. The first jury found true enhancement
allegations that defendant personally and intentionally discharged a firearm within the
meaning of section 12022.53, subdivision (c), and that defendant personally used a
firearm within the meaning of section 12022.5, subdivision (a), when he committed
Count Four.
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The first jury found defendant guilty of Count Five, the assault of A.T. with a
firearm in violation of section 245, subdivision (a)(2). The jury found true the
enhancement allegation that defendant personally used a firearm within the meaning of
section 12022.5, subdivision (a), when he committed Count Five.
The first jury found defendant guilty of Count Six, the possession of a firearm by a
prohibited person in violation of section 29800, subdivision (a)(1).
The first jury was unable to reach a verdict on Count One, which accused
defendant of the first degree murder of Urbina. The trial court declared a mistrial on
Count One.
Following a second trial, the jury found defendant guilty of Count One, the first
degree murder of Urbina. The second jury found true enhancement allegations that in the
commission of Count One, defendant intentionally and personally discharged a firearm
resulting in death, within the meaning of section 12022.53, subdivision (d), and that he
personally used a firearm, within the meaning of section 12022.5, subdivision (a).
At a bifurcated trial, the trial court found true the enhancement allegation that
defendant had a prior strike conviction under sections 1170.12, subdivision (b), and 667,
subdivision (d).
The trial court pronounced its sentence on May 31, 2022. On Count One for first
degree murder (§ 187, subd. (a)), applying the strike enhancement, the trial court
sentenced defendant to 50 years to life. The trial court then added an enhancement of 25
years to life for the section 12022.53, subdivision (d), enhancement and stayed the
sentence for the section 12022.5, subdivision (a), enhancement. Thus, the trial court
imposed an unstayed term of 75 years to life on Count One.
The trial court imposed six-month concurrent sentences on Counts Two (§ 10851,
vehicle taking) and Three (§ 457, subd. (b)(2)).
The trial court sentenced defendant to the upper term of six years on Count Four,
attempted second-degree robbery (§§ 211 & 664) with a consecutive 20-year term for the
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section 12022.53, subdivision (c), enhancement, for a total determinate term of 26 years.
The court imposed but stayed a 16-month enhancement to Count Four under sections
12022.5, subdivision (a), and 12022.53, subdivision (f).
On Count Five, for assault with a firearm (§ 245, subd. (a)(2)), the trial court
imposed an upper-term sentence and doubled it due to the strike finding assessing a
penalty of eight years. The trial court stayed the sentence on this count under section
654.
On Count Six, for being a prohibited person in possession of a firearm (§ 29800,
subd. (a)(1)), the trial court imposed an upper-term sentence and doubled it due to the
strike finding assessing a penalty of six years. The trial court stayed the sentence on this
count under section 654.
In total, the trial court ordered defendant to serve a determinate term of 26 years,
and an indeterminate term of 75 years to life, with the indeterminate term to be served
consecutive to and following the determinate term. The trial court also imposed various
fines and fees and awarded defendant 2,394 days credit for time served.
Defendant filed a notice of appeal on June 23, 2022.
DISCUSSION
I
Instruction on Reasonable Doubt
Defendant argues that the jury was incorrectly instructed on the standard of proof
beyond a reasonable doubt at both trials, and, therefore, that the verdicts on all counts
must be reversed. He takes particular issue with the trial court’s defining the word
“abiding” to mean “lasting,” claiming the definition failed to convey how deeply jurors
must be convinced of a defendant’s guilt before finding a defendant guilty. Defendant is
not entitled to reversal based on the court’s instructions regarding reasonable doubt.
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A. Additional Background
At both trials, the court instructed the jury with CALCRIM No. 220 which
explains the concept of proof beyond a reasonable doubt.
As given in both trials, the written version of CALCRIM No. 220 states, in part:
“A defendant in a criminal case is presumed to be innocent. This presumption
requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I
tell you the People must prove something, I mean they must prove it beyond a reasonable
doubt [unless I specifically tell you otherwise].
“Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all possible doubt
because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable
doubt, you must impartially compare and consider all the evidence that was received
throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a
reasonable doubt, [they are] entitled to an acquittal and you must find [them] not guilty.”
In reciting CALCRIM No. 220 orally to the jury, at both trials, the trial court
added some language to the first and second paragraphs (the subject text) of the
instruction. In the following sections, which describe changes the trial court made to the
subject text in reading it aloud, changes and embellishments are indicated by italics.
1. Changes to the Instructions in the First Trial
In the first trial, the trial court said the following when going over the subject text:
“A defendant in a criminal case is presumed to be innocent. This presumption
requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I
tell you the People must prove something, I mean they must prove it beyond a reasonable
doubt unless I specifically tell you otherwise.
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“Proof beyond a reasonable doubt is proof–what is it, guys? It’s proof that leaves
you in your mind as a juror with an abiding conviction that the charge is true. Now, the
only other expansion or definition—abiding means a lasting conviction, not something
where it’s two minutes to 12:00 and we want to go eat. Well, go with it. Fine. I don’t
know, let’s go. It’s a lasting conviction, okay, of the truth of the charge. [¶] The
evidence need not eliminate all possible doubt, and both lawyers talked about this,
because everything in life is open to some possible or imaginary doubt.”
2. Changes to the Instructions in the Second Trial
In the second trial, the court said the following when reading the subject text:
“A defendant in a criminal case is presumed to be innocent. This presumption
requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I
tell you the People must prove something, I mean they must prove it beyond a reasonable
doubt. And that’s in this case. There’s some cases with different burdens for different
issues. This is not a sex or elder abuse case.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. That’s the only definition I can give you. Used in all
58 counties in the state. We don’t have different ones in San Diego and different ones in
Siskiyou. The only expansion is when I say it leaves you with an abiding conviction,
that’s a lasting conviction. That’s the definition. [¶] The evidence need not eliminate all
possible doubt because everything in life is open to some possible or imaginary doubt.”
The court also did not use the phrase “unless I specifically tell you otherwise” in
its oral recitation of the subject text in the second trial.
Additionally, in the second trial, the court began its oral recitation regarding the
meaning of reasonable doubt by saying, “[w]e all talk about reasonable doubt. What is
it? I mentioned it when we picked you. It’s a brief reference because there’s a lot going
on.”
18
At the beginning of the trial, the court had stated, “[b]eyond a reasonable doubt
means this, sometimes young lawyers in picking a jury say, well, Mr. Jones, what does
beyond a reasonable doubt mean to you? I always stop them because it’s not relevant.
The only relevancy is what is the standard. The standard we’re using in this case and all
criminal cases, beyond a reasonable doubt means this: At the end of the case you look at
the totality, all the evidence, not just the first witness or last. You look at it all and do
you have an abiding conviction of the truth of the charge? Abiding means lasting.”
B. Standards and Principles of Review for Jury Instruction Challenges
“We review a claim of instructional error de novo.” (People v. Thomas (2023)
14 Cal.5th 327, 382.) We determine the correctness of jury instructions by looking at the
entire charge of the court, and not from isolated parts of an instruction or from a
particular instruction. (People v. Carrington (2009) 47 Cal.4th 145, 192.) “We interpret
the instructions so as to support the judgment if they are reasonably susceptible to such
interpretation . . . .” (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.) When
erroneous oral instructions are supplemented by correct written ones, we assume the jury
followed the written ones. (See People v. Grimes (2016) 1 Cal.5th 698, 729.) This is
notably true when a jury is instructed to be governed only by instructions in their final
wording. (Ibid.)
C. Analysis
1. Principles Regarding Reasonable Doubt Instructions
The Due Process Clause of the Fourteenth Amendment of the United States
Constitution protects a defendant, “against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” (In re Winship (1970) 397 U.S. 358, 364 (Winship); Jackson v. Virginia (1979)
443 U.S. 307, 315-316; see also People v. Aranda (2012) 55 Cal.4th 342, 349 (Aranda).)
“[T]he reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the
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necessity of reaching a subjective state of certitude of the facts in issue.’ [Citation.]”
(Winship, at p. 364.) “[T]rial courts must avoid defining reasonable doubt so as to lead
the jury to convict on a lesser showing than due process requires.” (Victor v. Neb. (1994)
511 U.S. 1, 22 (Victor).)
When a trial court provides a jury instruction that lowers the reasonable doubt
standard, reversal is required. (See Aranda, supra, 55 Cal.4th at p. 365.) “An instruction
that effectively lowers the prosecution’s burden of proving guilt beyond a reasonable
doubt is structural error because it ‘vitiates all the jury’s findings’ and its effect on the
verdict is ‘necessarily unquantifiable and indeterminate.’ (Sullivan[ v. Louisiana (1993)]
508 U.S. [275,] 281, 282; see Hedgpeth v. Pulido[ (2008)] 555 U.S. [57,] 61 [‘harmless-
error analysis applies to instructional errors so long as the error at issue does not
categorically “ ‘vitiat[e] all the jury’s findings’ ” ’].)” (Aranda, supra, 55 Cal.4th at
p. 365, italics omitted.) But not every error related to providing instruction on the
reasonable doubt standard is structural, and some errors remain subject to harmless error
review. (See id. at pp. 365-366.)
To determine whether the error is structural, “we ask whether the error rendered
the trial ‘fundamentally unfair or an unreliable vehicle for determining guilt or
innocence’ [citation], or whether the effect of the error is ‘necessarily unquantifiable and
indeterminate’ (Sullivan, supra, 508 U.S. at p. 282).” (Aranda, supra, 55 Cal.4th at
p. 366.) To make this assessment, we ask, “ ‘whether there is a reasonable likelihood that
the jury understood the instructions to allow conviction based on’ insufficient proof.
([Victor, supra, 511 U.S.] at p. 6.)” (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 840 (Daveggio and Michaud); see also People v. Potts (2019) 6 Cal.5th 1012, 1032-
1033 (Potts).)
The Constitution does not require particular words in instructing the jury on the
burden of proof, but “ ‘taken as a whole, the instructions [must] correctly convey the
20
concept of reasonable doubt to the jury.’ [(Holland v. United States, 348 U.S. 121, 140,
99 L. Ed. 150, 75 S. Ct. 127 (1954).)]” (Victor, supra, 511 U.S. at p. 5, italics added.)
In California, the Legislature has codified the reasonable doubt standard. Section
1096 states, “[a] defendant in a criminal action is presumed to be innocent until the
contrary is proved, and in case of a reasonable doubt whether his or her guilt is
satisfactorily shown, he or she is entitled to an acquittal, but the effect of this
presumption is only to place upon the state the burden of proving him or her guilty
beyond a reasonable doubt. Reasonable doubt is defined as follows: ‘It is not a mere
possible doubt; because everything relating to human affairs is open to some possible or
imaginary doubt. It is that state of the case, which, after the entire comparison and
consideration of all the evidence, leaves the minds of jurors in that condition that they
cannot say they feel an abiding conviction of the truth of the charge.’ ”
Additionally, section 1096a provides that, “[i]n charging a jury, the court may read
to the jury Section 1096, and no further instruction on the subject of the presumption of
innocence or defining reasonable doubt need be given.”
2. Use of the Word “Lasting”
Here, defendant complains that in both the first and second trial the court erred in
instructing the jury that the word “abiding” means lasting. But our Supreme Court has
recognized that an abiding conviction is one of a “lasting, permanent nature.” (See
People v. Brigham (1979) 25 Cal.3d 283, 290 (Brigham).) Thus, the court’s explanation
that the term “abiding” means “lasting” was an accurate statement of the law.
Defendant maintains that in defining the term abiding to mean “lasting” the court
improperly diluted the definition by excluding a requirement regarding how strongly and
deeply the conviction must be felt. Defendant argues that in Brigham, supra, 25 Cal.3d
at pages 290-291, the Court explained that the term abiding has both a temporal
component and “intensity component.” That is, defendant argues that abiding is meant to
21
convey both (1) how strongly and deeply a conviction must be held; and (2) that the
conviction must be lasting and permanent. And, he reasons, by defining “abiding” to
mean “lasting,” the trial court eliminated the need for a “subjective state of near
certitude” from the reasonable doubt standard. (See Winship, supra, 397 U.S. at p. 364.)
This argument takes the cited language from Brigham out of context and ignores the
common understanding of the word “abiding.”
In Brigham, supra, 25 Cal.3d at page 290, footnote 8, the Court considered the
continuing viability of an instruction in which (1) the term “abiding” was not used; and
(2) the instruction simply told the jury that the requisite proof was “that degree of proof
which produces conviction in an unprejudiced mind.” The Court explained the
instruction without the term abiding was not sufficient because, “[t]he lasting, permanent
nature of the conviction connoted by ‘abiding’ is missing and the juror is not informed as
to how strongly and how deeply his conviction must be held.” (Id. at pp. 290-291.)
Defendant’s argument reads Brigham as if the Court ascribed the term “abiding” with a
two-pronged definition, where both prongs are essential, and the term “lasting” is
insufficient to convey that the conviction must be deeply felt. We do not read the text
this way. Rather, we read Brigham to convey that the term “abiding” is essential because
it means “lasting, permanent,” and without knowing the “lasting, permanent” nature of
the conviction required to enter a finding of guilt, the jury is not sufficiently instructed on
how deeply the conviction must be held. That is, the “intensity component” to which
defendant refers is not independent of the “lasting” nature of an abiding conviction.
Rather, the need for the “intensity component” is conveyed by the need for the conviction
to be “lasting, permanent” i.e., abiding.
Defining the term “abiding” to mean “lasting,” and interpreting Brigham this way,
is consistent with a common understanding of “abiding” as found in the dictionaries. For
example, the Fourth Edition American Heritage Dictionary (2007) at page 3 defines the
term abiding as “[l]asting for a long time; enduring.” Similarly, Merriam-Webster’s
22
Eleventh Edition Collegiate Dictionary (2006) at page 2 defines “abiding” as “enduring,
continuing.” (All caps removed.) Thus, there is nothing in the trial court’s use of the
term “lasting” in explaining proof beyond a reasonable doubt that would lead jurors to
conclude that their belief in defendant’s guilt must be anything less than “abiding.”
The other cases defendant cites in support of his argument do not persuade us that
defining “abiding” to mean “lasting” was incorrect or otherwise diluted the standard by
removing the requirement of a subjective state of near certitude. (See Jackson v.
Virginia, supra, 443 U.S. at p. 315 [the reasonable doubt standard impresses “upon the
factfinder the need to reach a subjective state of near certitude”]; Victor, supra, 511 U.S.
at pp. 14-15 [“An instruction cast in terms of an abiding conviction as to guilt, without
reference to moral certainty, correctly states the government’s burden of proof. [(Hopt v.
Utah[ (1887)] 120 U.S. [430, ]439)] (‘The word “abiding” here has the signification of
settled and fixed, a conviction which may follow a careful examination and comparison
of the whole evidence’ ”)]; People v. Pierce (2009) 172 Cal.App.4th 567, 573 [“The
United States Supreme Court and the California Supreme Court, respectively, have
described ‘an abiding conviction’ as one that is ‘settled and fixed’ (Hopt v. Utah[, supra]
120 U.S. [at p.] 439 []) and one that is ‘lasting [and] permanent’ ([Brigham, supra,]
25 Cal.3d [at p. 290] [])”]; People v. Freeman (1994) 8 Cal.4th 450, 503, 505 [observing
that “[t]he trial court used the phrase ‘an abiding conviction’ that the high court held
saved the standard instruction” in an opinion that was more concerned with the meaning
of the terms “moral evidence” and “moral certainty”]; see also People v. Muniz (2011)
2011 Cal.LEXIS 12603 [granting review of and thereby superseding People v. Muniz
(2011) 198 Cal.App.4th 1324].)
It is true that in People v. Zepeda (2008) 167 Cal.App.4th 25, 30-31, this court
found that the “[u]se of the term ‘abiding’ tells the juror his conviction must be of a
‘lasting, permanent nature,’ and it informs him ‘as to how strongly and how deeply his
conviction must be held.’ ([Brigham, supra,] 25 Cal.3d [at pp.] 290–291 [], italics added,
23
fn. omitted.)” Likewise in People v. Light (1996) 44 Cal.App.4th 879, 885, the Fifth
District Court of Appeal described Brigham’s language regarding the import of the term
“abiding” by stating, “ ‘abiding conviction’ was found to adequately convey the
requirement that the jurors’ belief in the truth of the charge must be both long lasting and
deeply felt.” But neither of these cases finds that the “lasting” nature of a conviction that
is conveyed when one refers to an “abiding conviction” is not what also conveys that it is
a deeply felt conviction. That is, neither suggests there is something about the word
“abiding” as used in jury instructions—which is in addition to a common, dictionary
definition of the word—that describes a certain depth of feeling.
3. Additional Language in the First Trial
With respect to the reasonable doubt instruction given in the first trial, defendant
also takes issue with the trial court’s amorphous adlibbed language in which it said an
abiding conviction is, “not something where it’s two minutes to 12:00 and we want to go
eat. Well, go with it. Fine. I don’t know, let’s go.”
It has been written that “California trial (and appellate) judges know that, at least
initially, no further instruction on the subject of reasonable doubt need be given beyond
that [set forth in [] section1096a], that ‘individual courts should not . . . modify the
standard instruction’ (People v. Freeman, supra, 8 Cal.4th at p. 504), and that to further
instruct on the concept of a reasonable doubt is ‘perilous’ (id. at p. 504).” (People v.
Pierce, supra, 172 Cal.App.4th at p. 578 (conc. opn. of Hull, J.).) Put differently, a trial
judge walks a fine line between affirmance and reversal when the judge decides to adlib
on the concept of reasonable doubt. If the judge errs, the entire trial may become a
nullity.
We can only speculate as to what the trial court hoped to impart to the jury with
this additional casual language, although we can guess it had to do with the concept of an
“abiding” conviction. But whatever it was, we would strongly advise the trial court to
24
refrain from such adlibbing in the oral delivery of the CALCRIM instructions which have
been written and adopted after considerable and careful study (see, Judicial Council of
California Criminal Jury Instructions (2024), Preface, and Guide for Using Judicial
Council of California Criminal Jury instructions (2024)), particularly, when giving the
instructions on the concept of reasonable doubt. To do otherwise is “perilous” indeed.
Nonetheless, we do not find it reasonably likely that the jury understood this
remark to lower the People’s burden of proof. (See Daveggio and Michaud, supra,4 Cal.5th at p. 840.) It was an apparent attempt to tell the jury what an “abiding
conviction” is not. Nor do we find it comparable to the cases cited by defendant that
trivialize the concept of an “abiding conviction” or those where courts or prosecutors
have equated reasonable doubt determinations to the analysis one might apply to make
decisions in their own lives. (See People v. Johnson (2004) 115 Cal.App.4th 1169, 1172
[noting people may get on airplanes and plan vacations even though have some
reasonable doubt, and concluding, “[w]e are not prepared to say that people planning
vacations or scheduling flights engage in a deliberative process to the depth required of
jurors or that such people finalize their plans only after persuading themselves that they
have an abiding conviction of the wisdom of the endeavor”]; People v. Nguyen (1995)
40 Cal.App.4th 28, 36 [“The prosecutor’s argument that people apply a reasonable doubt
standard ‘every day’ and that it is the same standard people customarily use in deciding
whether to change lanes trivializes the reasonable doubt standard. . . . The marriage
example is also misleading since the decision to marry is often based on a standard far
less than reasonable doubt . . . .”].)
4. Additional Language in the Second Trial
With respect to the second trial, in addition to taking issue with the trial court’s
use of the word “lasting” to define abiding, defendant also takes issue with other
language the trial court adlibbed at the beginning of the trial and while giving the
25
instructions to the jury. First, defendant points to the language at the beginning, where
the court (1) explained it disallows questions of the jurors about what a reasonable doubt
is, because the “only relevancy is what is the standard”; (2) defined the standard as “an
abiding conviction of the truth of the charge”; and (3) said, “[a]biding means lasting.”
Second, defendant notes adlibbed language in the delivery of the reasonable doubt
standard, in which the court explained that the standard applied in all counties of the
state.
Defendant argues that the impact of these comments was to tell the jurors to “put
aside what proof beyond a reasonable doubt means to them personally and decide the
case according to an objective statewide standard that only requires a ‘lasting’ conviction.
Their subjective feelings on that matter were said to be irrelevant.” Defendant argues
that the impact of this is that—in addition to conveying that the standard relies on a
“lasting conviction”—jurors would believe they are required to put aside their own
understanding of what a reasonable doubt is and that the standard does not require a
“subjective state of near certitude.”
This argument is unpersuasive. First, as we explained above, the use of the term
“lasting” was not incorrect and does allow for consideration of the depth of feeling one
might need to have for the conviction to be lasting. Second, while jurors’ own lack of
reasonable doubt may be susceptible to and require a “subjective level of certitude,” that
doesn’t mean the law prohibits courts from defining the term “reasonable doubt.” (See
Victor, supra, 511 U.S. at p. 5 [“the Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so as a matter of course”].) Providing
jurors with a definition of “reasonable doubt,” and (correctly) telling them there is a
definition of reasonable doubt that applies statewide does not deprive them of their ability
to consider their subjective feelings when deciding if they believe the People have met
their burden of proof.
26
II
Dismissal of Jurors During the First Trial
A. Additional Background
1. Release of Juror No. 10
In the first trial, the court repeatedly instructed jurors to not discuss the case before
deliberations, not even with each other.
On October 27, 2021, Steven Flores, who had served as a field technician for the
Stockton Police Department in the investigation of this case, testified. When the People
asked Flores about his employment status, he responded, “I’m currently unemployed due
to the vaccine mandate.”
The next morning, it was brought to the court’s attention that Juror No. 11 had
said she had some concerns about jurors making comments about witnesses. To begin its
investigation into the matter, the court brought in Alternate Juror No. 4, Juror No. 4, and
Juror No. 12 one at a time.
Alternate Juror No. 4 and Juror No. 12 both said they had not heard anything when
the court asked them if they had heard any of the jurors talking about the case, including
about witnesses. In contrast, Juror No. 4 said she had.
After the court established that the juror whom Juror No. 4 had heard talking about
the case was Juror No. 10, the court asked more questions. According to Juror No. 4,
Juror No. 10 had talked about witness testimony in the case more than once. Juror No. 4
characterized Juror No. 10’s actions as coming back “[a]fter every break” and saying
“vague things” that “pertains to the trial.” Examples Juror No. 4 offered included a
comment by Juror No. 10 that he thought the case was the judge’s first trial; a question
following testimony about bullets where he asked, “ ‘well how do we know what type of
bullet it is and what type of gun it is?’ ” Juror No. 4 said Juror No. 10 made these
comments when all the jurors were in the room, and it happened just about every time
27
they returned from a break. Juror No. 4 said that when Juror No. 10 made comments,
other jurors did not engage in discussion. The People asked Juror No. 4, “it’s not like,
oh, gosh, these breaks [are] making us wait all this time. It’s like substantive things
going on in this trial. Is that fair to say?” Juror No. 4 responded, “[y]es.”
Before bringing in a second batch of three jurors—Juror Nos. 11, 1, and 10—the
court said it was leaning towards letting Juror No. 10 go, because, he “can’t follow the
rules repeatedly.”
Juror No. 11 reported that Juror No. 10 made “vague” comments almost every
time they left the court. As examples, Juror No. 11 said Juror No. 10 had said something
in relation to Flores’s testimony that he was no longer employed due to the vaccine
mandate. Juror No. 11 reported that another juror had responded about how COVID
keeps people from having jobs and whether to vaccinate was a personal decision. Juror
No. 11 also reported that the prior day Juror No. 10 had commented about how long it
was taking to go through the process of discussing the bullets, and the prior week when a
witness had needed an interpreter he had said something like, “wow, I hope we don’t
have to go through that again.”
The court asked, “[h]as he said other comments specific to witnesses and the
evidence in the case? I’m not talking about gee, it’s a little late starting or parking is not
good, the elevator got stuck?” Juror No. 11 responded, “[n]o, we all talk about general
stuff like that.” When asked if others engaged in case specific discussions with Juror No.
10, Juror No. 11 reiterated, “[t]here’s no [sic] case specific . . . . It’s the little digs he
does.” When the court asked if Juror No. 10 was the only one Juror No. 11 had heard
make comments, Juror No. 11 responded, “[h]e’s the one that instigates it most of the
time.”
The People asked questions and clarified that when Juror No. 10 made comments,
all the jurors were together.
28
After Juror No. 11 finished answering questions and before the court brought in
Juror No. 1, the court said, “I’m probably going to let him go, guys, because it’s not
working out. One intemperate comment isn’t going to kill us, but repeated comments of
this type can only lead to more problems and it is a violation of the rule not to talk about
the case. Even though we didn’t get into anything real specific, it is causing some
problems of violating the rule of not speaking about the matter.” The court noted that
Juror No. 10 “is a nuclear engineer, so this is concerning. MIT graduate. I need him to
follow the rules. His dad was a judge. This is not a guy who hasn’t had some contact
with higher education at the highest level and a family that was in the law. His dad died
23 years ago, but he was 35 when his dad died.”
When the court asked Juror No. 1 if he had heard anyone on the jury panel talking
about the case in any way, Juror No. 1 said he had not. When the People asked if Juror
No. 1 had heard any comments about bullets, guns, or witnesses being vaccinated, Juror
No. 1 responded, “[t]here was only one comment that was the witness that said that he
was unemployed due to the vaccination mandate. That comment came up once and that
was it.”
After excusing Juror No. 1 and before bringing in Juror No. 10, the court said, “I
think we’ve talked to a sufficient number of people . . . who are highly responsible and
supervisory jobs and big careers. So I’m going to bring [Juror No. 10] in. I’m going to
ask him if he’s heard anybody talking about the case, because we know what these two
jurors say. We’ll see what he says. You guys can ask him questions. I’m going to be
candid. I’m going to let him go. I can’t have that kind of misconduct. It’s not egregious
in the sense of direct comments about the evidence or advocacy, but it does violate the
rules and if you violate the rules at this level, I’m concerned about deliberations, the rest
of the case, what other problems a person who can’t follow the rules would create and
also this is a guy, as I said earlier, with the educational background and family history,
dad was a judge, he should know these rules count.”
29
The court then brought in Juror No. 10. Juror No. 10 denied (1) hearing anybody
making any comments about the witnesses or evidence in the case; (2) anyone saying
anything about firearms, bullets, COVID with a witness, or Flores; and (3) hearing
anyone discuss the evidence or people involved in the case, “in any way.”
When Juror No. 10 left the courtroom, the court and counsel discussed whether to
release the juror. Defense counsel argued against removing Juror No. 10, while the
People felt removal was warranted.
After hearing from counsel, the court stated, “[w]e’ve heard from two highly
responsible jurors, [Juror No. 11] and [Juror No. 4], about the conduct [Juror No. 10] has
engaged. I’m not going to repeat it all, other than to briefly say his comments apparently
do involve case evidence, the bullet, the gun, Mr. Flores’s COVID situation, whatever it
may be. He’s been admonished repeatedly in the presence of all of them. I think there’s
only one time I may have not mentioned the admonition because they’ve heard them over
and over in the weeks we’ve done this. Admonishing him again I don’t think is going to
work out. I think he just doesn’t get it. If he did, he would follow the rules that we
have.” The court stated, “[m]y decision is abundance of caution I think he needs to be
removed here so we can prevent future violations that could be more serious. I didn’t put
the question to him. I’ve done this before. We have sufficient evidence from the other
jurors here who basically are unbiased neutral people. They don’t have axe to grind.
Don’t know him. They’ve been a team in terms of being a jury, but they have no
animosity for the man. They are just reporting what he’s doing. It’s risen to enough
concern and it’s happened enough that [Juror No. 11] brought it to the attention of the
clerk and [Juror No. 4] vouched for it and verified it. The other jurors didn’t hear
anything. It might be their ears aren’t as sensitive to these issues as [Juror No. 11] and
[Juror No. 4]. [¶] It’s a concern and the necessary one is to remove [Juror No. 10] with
our thanks.”
30
The court then had Juror No. 10 brought back into the courtroom. When the court
explained to Juror No. 10 that it was discharging him from the jury, Juror No. 10 asked,
“[i]s it permissible for me to ask why?” The court explained, “[t]here may have been a
number of people you made comments about the case. When I say don’t talk about the
case, that’s a real iron clad rule. Some kind of subterfuge on your part. Being silent
about the case is a big issue here and something we have to have people take firmly to
heart because otherwise it causes significant problems like this situation with you are
regrettable. [¶] The lawyers appreciate your time. They thank you for coming down.
Given the rules I’m bound by I do have to relieve you. Thank you so much.”
2. Release of Juror No. 9
The jury began its deliberations in the first trial on November 9, 2021. The jury
was instructed orally, “[d]o not do any research regarding this case on your own or as a
group. Do not use, obvious thing, dictionary, internet or any other reference materials.
Do not investigate the facts or the law. You have the evidence. This is the law. We
don’t need to go outside these corners.” In reciting this instruction orally, the court
stressed this instruction is, “[a]lways an important one on a case.” The written
instructions also told jurors not to do any research, use the internet, or investigate the law.
On November 12, 2021, the court brought in counsel and defendant and informed
them that the foreman, Alternate Juror No. 4, had called the clerk to inform the clerk that
someone was possibly doing outside research. The court brought in Alternate Juror No. 4
to ask questions.
Alternate Juror No. 4 said Juror No. 9 had asked a question regarding what would
happen if the jury was deadlocked on an issue. Alternate Juror No. 4 said that one juror
had said they did not know the answer, and another said maybe that was a question they
should ask the judge. Alternate Juror No. 4 then explained that Juror No. 9 indicated he
would “handle his question” on his phone, and then Juror No. 9 did, in fact, look up the
31
question. Alternate Juror No. 4 said Juror No. 9 had said that according to his
information, someone could be retried for something if there was a deadlock on a count.
Alternate Juror No. 4 said Juror No. 9 did this while all the jurors were present, and
another juror got very upset and kept repeating that Juror No. 9 could not be doing that.
According to Alternate Juror No. 4, Juror No. 9 then said nothing further on the topic,
and none of the other jurors engaged in a discussion with him about it.
After Alternate Juror No. 4 exited the courtroom, the court asked counsel for their
thoughts, noting that “[i]t’s not substantive law in terms of the charges, but it is a
violation, so it’s misconduct. The issue is how prejudicial is it to anybody here?”
The court addressed the jury as a group, and it explained there may have been
some outside research in the case, explained why outside research is not allowed, and
reiterated the seriousness of the rule. The court then told the jury it was going to ask each
juror (1) if they heard the conversation regarding the research; and (2) if they could
disregard what they heard and continue to act as a fair and impartial juror following the
rules that the court read to them.
The court excused everyone but Alternate Juror No. 4, and it asked her if she felt
that this issue would impair the fairness of anybody or herself. She said she did not
believe it would.
The court then brought in the other jurors one at a time, leaving Juror No. 9 for
last.
The other jurors all said no research had been performed by another juror that
would impact their ability to remain a fair juror.
Juror No. 1 stated Juror No. 1 felt the research performed by a juror was not about
the case but more of an effort to get the definition of something. Juror No. 1 could not
remember what was looked up. Juror No. 1 confirmed the juror who looked the term up
told others the definition after the juror had looked it up.
32
Juror No. 2 said someone looked at their phone and made an advisement regarding
if someone could be tried again, and all the jurors were present when a juror did some
research on his phone.
Juror No. 4 said it was correct that a juror did some outside research. Juror No. 4
said the person kept repeating what the person had looked up, and that she told the
foreperson the person was Googling the issue, which should not have been done. She
said the juror who had looked up the information verbalized the information he Googled.
Juror No. 7 did not remember hearing or seeing a juror performing outside
research on his phone while the jury was in deliberations and all the jurors were present.
However, Juror No. 7 did recall hearing some comment, but did not see any phones or
anything. Juror No. 7 believed that Juror No. 9 had said something about how fast a
gunshot can travel per second. When the People asked Juror No. 7 questions about if
Juror No. 7 had heard anything about what might happen if they could not agree on a
charge, Juror No. 7 had heard something to the effect of if they could not agree, “would a
new trial be able to take place, kind of range.” Juror No. 7 characterized the conversation
regarding what would happen if they could not agree on a charge as occurring more “in
the background” and “not exactly addressed.” Juror No. 7 could not recall if anyone
commented back.
With Juror No. 11, the court began by explaining it had been informed a juror had
done some research on the case during deliberations in front of all the jurors. The court
clarified that the person had brought to the other jurors’ attention the topic of whether a
person can be retried if the jury can’t agree on it. Juror No. 11 said, “[n]ow I know what
you’re talking about.” Juror No. 11 identified Juror No. 9 as a person who had made the
comment. She said Juror No. 9 had made some comments before the jury began
deliberating. She felt this put everybody else on the defensive. Juror No. 11 could not
think of any other issues Juror No. 9 had raised.
33
Juror No. 12 recalled that someone had gone online to look up “hung jury.” That
person relayed something to the effect of a hung jury would result in a mistrial. Juror No.
12 characterized the matter as “kind of a side conversation.” It was the only incident of
someone bringing in outside information that Juror No. 12 could recall.
Juror Nos. 5, 6, and 10 did not recall someone doing outside research on their
phone when all jurors were present.
After finishing speaking with Juror No. 12, the court noted, “[w]e’ve got
everybody who can remain fair and impartial. Except we haven’t talked to [Juror No. 9],
the instigator. We know from a number of people here . . . that [Juror No. 9] is doing
research on his own, one is the hung jury, the other is bullet speed.”
The court asked the People their thoughts on keeping Juror No. 9. The People
noted that jurors are repeatedly told not to research anything about the case. The People
said that though the topic researched might not have been specific about the case they
wanted the juror excused, because they wanted to make sure the jury is fair and impartial.
The court said it was concerned because Juror No. 9 seemed like a forceful
individual, and, while the court would not get rid of someone for having strong opinions,
it seemed like the juror might go “off the grid” on his own and look up things like bullet
speeds and hung jury issues.
The court asked the defense if it had any objection to letting Juror No. 9 go, and
defense counsel responded, “[n]o objection. I—just my comment, my only comment
would be that I think that—I think a warning would be appropriate if we didn’t have the
experience with [Juror No. 10] or the Court reminded the jury the importance of not
doing these outside things, and so I’ll submit.” When the court asked if it was okay to
release Juror No. 9, defense counsel responded, “[y]es.”
Before bringing in Juror No. 9, the court said, “I’m going to release him. This is
not a debate. We have a number of other jurors who are quite clear he is the instigator of
this. It’s not solicited by any other jurors. No, it’s not evidence specific in the sense that
34
he’s researching People’s exhibits, except this bullet speed is a concern because that
could be evidence specific. Although we did talk a little bit about speed, but that wasn’t
a germane factor here. That wasn’t an issue.
“The other issue, he’s not following the instructions. I’m going to find it’s not
prejudicial at all with the other jurors. We polled them individually, yes, I’m in for the
ride. I can continue to be a fair and impartial person. The person jeopardizing that is
[Juror No. 9]. I’m going to excuse him.”
The court then brought in Juror No. 9. The court explained, “[i]t’s come to light
that you may have conducted some outside research on the case.”
Juror No. 9 said, “[w]ait a minute. Do I get to defend myself on that?”
The court responded, “[w]ell, you know, I’ve had enough conversations with
others that I don’t think we’re going to go there at this time.”
Juror No. 9 said, “[o]h my goodness. I am totally shocked.”
The court said, “I talked to the lawyers and they are both in agreement. When
they both agree and I’m of like mind, I think we’re going to go ahead. We’re going to let
you stand down and be excused on the case. There’s nothing more I’m going to add and
I know they won’t either.”
Juror No. 9 then asked what he had been accused of, and the court responded,
“we’re just going to let that go by the boards with our thanks for coming down and
you’re free to head out.”
After Juror No. 9 left, the court noted on the record, “[i]t’s always regrettable
when we can’t let people say their piece. There’s a problem when we have a number of
jurors, at least a third of the jury saying this guy is doing stuff that’s of concern to us. He
shouldn’t be doing it. . . . Getting an explanation from [Juror No. 9] is not going to cure
it. [¶] Again, just a note for the record, yeah, it’s misconduct. For him it would be
prejudicial in my opinion. The other jurors there is no prejudice.”
35
B. Principles of Law and Review
Under section 1089, “[i]f at any time, whether before or after the final submission
of the case to the jury, a juror . . . upon other good cause shown to the court is found to be
unable to perform his or her duty . . . the court may order the juror to be discharged and
draw the name of an alternate.” (§ 1089; see also People v. Armstrong (2016) 1 Cal.5th
432, 450.) “Thus, before excusing a seated juror, the trial court must find there is good
cause to believe the juror is unable to perform his or her duty.” (People v. Henderson
(2022) 78 Cal.App.5th 530, 556-557 (Henderson).)
“[A] juror’s serious and wilful [sic] misconduct is good cause to believe that the
juror will not be able to perform his or her duty.” (People v. Daniels (1991) 52 Cal.3d
815, 864 (Daniels).) “Where . . . the record supplies evidence that a juror cannot be
trusted to follow the court’s instructions going forward, the court may discharge the
juror.” (People v. Peterson (2020) 10 Cal.5th 409, 474 (Peterson).) Indeed, “a court
may exercise its discretion to remove a juror for serious and wilful [sic] misconduct,” as
shown by a juror’s “repeated violation of the court’s instructions, even if this misconduct
is ‘neutral’ as between the parties and does not suggest bias toward either side.”
(Daniels, at pp. 863-864; see also People v. Flores (2021) 70 Cal.App.5th 100, 111 [“Not
following instructions is itself a form of jury misconduct”]; People v. Linton (2013)
56 Cal.4th 1146, 1194 [“A juror who violates his or her oath and the trial court’s
instructions is guilty of misconduct”]; People v. Ledesma (2006) 39 Cal.4th 641, 738 [“In
appropriate circumstances a trial judge may conclude, based on a juror’s willful failure to
follow an instruction, that the juror will not follow other instructions and is therefore
unable to perform his or her duty as a juror”].)
“Both the scope of any investigation” into an allegation of juror misconduct “and
the ultimate decision whether to discharge a given juror are committed to the sound
36
discretion of the trial court.” (People v. Romero (2017) 14 Cal.App.5th 774, 781;
Peterson, supra, 10 Cal.5th at p. 472; People v. Bowers (2001) 87 Cal.App.4th 722, 729.)
“ ‘ “In determining whether juror misconduct occurred, ‘[w]e accept the trial
court’s credibility determinations and findings on questions of historical fact if supported
by substantial evidence.’ ” ’ (People v. Linton, supra, 56 Cal.4th at p. 1194; see People
v. Nesler (1997) 16 Cal.4th 561, 582 [] (plur. opn.).) We will uphold the trial court’s
decision if the record supports the basis for that decision as a ‘ “demonstrable reality.” ’
([People v. ]Williams[ (2015) 61 Cal.4th 1224,] 1262.) This means simply that the record
must reveal the reason for the court’s decision to discharge a juror and in turn substantial
evidence must support that reason. (People v. Duff (2014) 58 Cal.4th 527, 560 [].) So
long as it does, ‘ “the court’s action will be upheld on appeal.” ’ ([People v. ]Sattiewhite[
(2014) 59 Cal.4th 446,] 486.)” (Peterson, supra, 10 Cal.5th at pp. 472-473.)
The demonstrable reality test is more comprehensive and less deferential than
substantial evidence review. (People v. Barton (2020) 56 Cal.App.5th 496, 509
(Barton).) “ ‘ “It requires a showing that the court as trier of fact did rely on evidence
that, in light of the entire record, supports its conclusion that [good cause for removing
the juror] was established.” ’ ([People v. Fuiava (2012) 53 Cal.4th 622,] 712.) Under the
demonstrable reality standard, reviewing courts ‘must be confident that the trial court’s
conclusion is manifestly supported by evidence on which the court actually relied.’
([People v. ]Barnwell[ (2007) 41 Cal.4th 1038,] 1053.) In reaching that conclusion, this
court considers ‘not just the evidence itself, but also the record of reasons the court
provides.’ (Ibid.) The ‘heightened’ and ‘more stringent’ demonstrable reality standard
‘more fully reflects an appellate court’s obligation to protect a defendant’s fundamental
rights to due process and to a fair trial by an unbiased jury.’ (Id. at p. 1052; see also
People v. Allen and Johnson (2011) 53 Cal.4th 60, 71 [].)” (Barton, supra,
56 Cal.App.5th at p. 509.)
37
In Henderson, supra, 78 Cal.App.5th at pages 557-558, this court “distill[ed] the
following summary from our high court’s explanation of the demonstrable reality test . . .
: (1) The demonstrable reality test is a heightened standard requiring a stronger
evidentiary showing than the substantial evidence test, which looks at the evidence in a
light most favorable to the judgment; (2) however, like the substantial evidence test,
reviewing courts do not reweigh the evidence; (3) but a reviewing court must look only to
the evidence upon which the trial court actually relied in determining whether the trial
court's decision is supported by the evidence; thus reviewing courts may not base their
decision on evidence upon which the trial court did not actually rely; (4) in addition to the
evidence upon which the trial court relied, a reviewing court must consider the reasons
the trial court gives for its ruling; (5) because a reviewing court must consider ‘the record
of the reasons the trial court provides,’ reviewing courts cannot imply findings the trial
court did not expressly make; and (6) because a reviewing court cannot imply findings,
the trial court should expressly state its reasons for discharging the juror, including
demeanor-based reasons and credibility findings. As to this last point, our high court said
some time ago: ‘A trial court facilitates review when it expressly sets out its analysis of
the evidence, why it reposed greater weight on some part of it and less on another, and
the basis of its ultimate conclusion . . . In taking the serious step of removing a . . . juror
the court must be mindful of its duty to provide a record that supports its decision by a
demonstrable reality.’ (People v. Barnwell[, supra,] 41 Cal.4th [at p.] 1053 [] [removal
of sitting juror for deliberation misconduct].)”
C. Analysis of Release of Juror No. 10
The record supports the removal of Juror No. 10 as a demonstrable reality.
“The Penal Code provides that jurors must not ‘converse among themselves or
with anyone else on any subject connected with the trial, or to form or express any
opinion thereon until the cause is finally submitted to them.’ (§ 1122.)” (In re Hitchings
38
(1993) 6 Cal.4th 97, 118.) Defendant’s jury was so instructed. “Violation of this duty is
serious misconduct.” (Ibid., italics added.)
Here, in explaining its decision to release Juror No. 10, the court noted the other
jurors, who the court found credible, had stated that the topics Juror No. 10 included case
evidence involving the bullet, the gun, and the “COVID situation.” In comments leading
up to making its final decision, the court also observed the “repeated” nature of the
comments and how they “can only lead to more problems.” Substantial evidence, taken
from the statements of other jurors, supports these conclusions. Juror No. 4 informed the
court that Juror No. 10 had said something about the gun and bullets. Both Juror No. 4
and Juror No. 11 characterized Juror No. 10’s comments as repeated. Juror No. 11
reported that Juror No. 10 had made a comment about the Flores’s COVID issue, which
caused another juror to respond. And Juror No. 1 acknowledged that someone had made
a comment about a witness being unemployed due to the vaccine mandate.
Defendant tries to persuade us that Juror No. 10’s comments were trivial, and
therefore not serious, but we are not persuaded. Here, even if we were to treat one
comment taken alone was not serious, collectively, as the trial court discerned, they
reflected that Juror No. 10 could not be trusted to follow instructions moving forward,
which is grounds to discharge a juror. (See Peterson, supra, 10 Cal.5th at p. 474.)
Cherry picking language from the trial court’s reasoning, defendant says the court
removed Juror No. 10 in an “abundance of caution” and recognized that the misconduct
was “not egregious in the sense of direct comments about the evidence or advocacy.”
Defendant argues these phrases suggest the trial court did not find Juror No. 10
committed “serious” misconduct that justifies the removal of the juror. The phrase
“abundance of caution” as the trial court used it simply reflects the trial court’s
understanding that Juror No. 10’s misconduct was serious in large part because the
repeated violations demonstrated he needed to be removed to prevent future violations
that could be more serious. The court’s statement regarding how “egregious” these
39
particular comments might have been did not detract from the serious nature of repeated
violations of the rule. “[A] court may exercise its discretion to remove a juror for serious
and wilful [sic] misconduct, such as that shown by [a juror’s] repeated violation of the
court’s instructions.” (Daniels, supra, 52 Cal.3d at pp. 863-864.) Also, that the
individual comments were not as egregious as they could have been does not mean the
violations of the court’s instructions was not serious.
Defendant argues that this record does not demonstrate Juror No. 10’s violations
were willful, and suggests that perhaps the juror just did not understand the admonition.
This argument is unpersuasive. Any possible lack of clarity about this rule was dispelled
when, before testimony began, the trial court reminded the jurors of the admonition,
explaining, “we can’t talk about the case, about anybody, anything with it. That includes
with each other . . . so, the only time is when you’re in deliberations and all 12 are
present.” (Italics added.) The court fairly concluded that as a highly-educated son of a
judge, Juror No. 10 ought to have understood the admonition as given and refrained from
making repeated comments about things to do with the case.
Defendant also argues that the trial court assumed the worst about Juror No. 10
without affording him the opportunity to speak to the allegations against him. He
suggests that because the court did not give Juror No. 10 the opportunity to provide an
explanation, the trial court’s decision cannot stand. First, we note that while the court
may not have asked Juror No. 10 about his own specific conduct, it did ask him if anyone
had discussed the topics of guns, bullets, COVID with a witness, or Flores, and Juror No.
10 denied anyone had said anything on those topics. Thus, the trial court did not leave
Juror No. 10 without an opportunity to confess he had brought up some of these topics
and to explain why.
Second, the cases defendant cites to support his argument that the court needed to
provide Juror No. 10 the chance to speak about the violations are inapposite.
40
In People v. Compton (1971) 6 Cal.3d 55, 59-60 the court was concerned with
whether an alternate juror’s comments reflected he found the facts of the case so
distasteful that he could not remain unbiased.
Shanks v. Department of Transportation (2017) 9 Cal.App.5th 543, 552-553
(Shanks) found the removal of a juror for refusal to deliberate was improper when the
trial court based its dismissal on only an interview of two jurors who had complained—
after 90 minutes of deliberation—that the removed juror refused to deliberate. It is in this
context that the court wrote, “[i]n most instances, the court will interview all of the jurors
before deciding whether a juror is unable or unwilling to deliberate. At a minimum, it
must interview more than the complaining jurors. [Citation.] It also should interview the
alleged problem juror to obtain his or her response to the complaints. (People v.
Compton], supra,] 6 Cal.3d [at p.] 60 [].)” (Shanks, supra, 9 Cal.App.5th at p. 553.)
People v. Jones (2020) 50 Cal.App.5th 694, 700-702, and People v. Barber (2002)
102 Cal.App.4th 145, 151-152, like Shanks, also concerned the trial court’s consideration
of whether to release a juror for an inability to deliberate.
Here, the court interviewed more than the complaining witnesses and the issue
was not whether the juror had an internal bias or was unwilling to deliberate. The issue
was whether Juror No. 10 had violated the instruction to not talk about anything in the
case until the jury began its deliberations. This is an issue that, in comparison to
questions regarding bias and unwillingness to deliberate, has less to do with the juror’s
state of mind and more to do with observable violations of stated instructions. Three
jurors provided information to the court that suggested its admonition to not talk about
the case had been violated at least once, and two of those jurors—one who was selected
at random—characterized these violations as repeated. This sort of repeated violation
reflects an inability to perform the duties of a juror. (See Daniels, supra, 52 Cal.3d at
p. 865.)
41
D. Analysis of Release of Juror No. 9
The record also supports the removal of Juror No. 9.
The trial court instructed the jury to not do any research, including through use of
the internet, on the facts or the law. The court said this rule was important.
Numerous jurors supplied the court with information that supported a finding that
Juror No. 9 used his phone to research a legal question—the impact of a hung jury—and
shared what he learned with the other jurors. The foreperson reported that while this
happened, another juror got very upset and kept repeating that Juror No. 9 could not be
doing that. Though Juror No. 7 did not report seeing Juror No. 9 use a phone, Juror No. 7
thought she heard Juror No. 9 make a comment based on outside information or research
about the speed a gunshot can travel.
This violation of an “important” instruction, coupled with aspects of Juror No. 9’s
demeanor that the court had observed, provided the court sufficient information to decide
Juror No. 9 could not be trusted to follow the instruction to not perform outside research
going forward, and that Juror No. 9 might then use that information and his “forceful”
personality to influence other jurors. Given this, there was no error in excusing Juror No.
9. (Peterson, supra, 10 Cal.5th at p. 474.)
Defendant’s arguments to convince us the record does not support a finding that
this misconduct was serious and willful are not meritorious. First, defendant suggests the
violation was not serious because the information shared was correct and likely
something many jurors already knew. But this argument focuses too much on the impact
of the violation on the collective jury and not enough on what Juror No. 9’s actions reveal
about his ability to perform as a juror. And his acts reveal he cannot be trusted to follow
instructions, including the “important” one to not conduct research on the internet.
Defendant also argues that, because the court did not question Juror No. 9 about
the incident before it released him, it lacked the information it needed to determine Juror
42
No. 9’s conduct was willful. As we did with defendant’s similar arguments regarding
Juror No. 10, we reject this argument as unpersuasive. The court spoke with every other
juror, and only three were unable to identify anything that suggested the reported incident
occurred. The court’s instruction to not go on the internet was not vague. And, even if
bullet speed was not particularly germane to the issues the jury needed to decide here, it
was not irrelevant or unrelated to a case involving multiple shootings. The court had
enough information to decide that Juror No. 9 willfully violated the instruction, even
without interviewing Juror No. 9.
III
The Conviction for Attempted Robbery
Defendant argues that there was insufficient evidence to support his conviction for
attempted robbery.
A. Standard of Review
This court’s role in reviewing a challenge to the sufficiency of evidence is limited.
(People v. Smith (2005) 37 Cal.4th 733, 738.) We examine the entire record to assess
“whether any rational trier of fact” could have found defendant guilty beyond a
reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Thus, “we review
the evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s
43
verdict. [Citation.]” (Ibid.; see also People v. Lucero (2019) 41 Cal.App.5th 370, 414.)
“That the evidence might lead to a different verdict does not warrant a conclusion that the
evidence supporting the verdict is insubstantial.” (People v. Holt (1997) 15 Cal.4th 619,
669.)
Substantial evidence is that is, “evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v.
Marshall (1997) 15 Cal.4th 1, 35.) The testimony of one witness can be sufficient to
support a conviction, “unless the testimony is physically impossible or inherently
improbable.” (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young); see also People v.
Fierro (2010) 180 Cal.App.4th 1342, 1347.)
B. Substantial Evidence Supports the Attempted Robbery Verdict
“Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) “An attempt to commit a crime consists of two elements: a
specific intent to commit the crime, and a direct but ineffectual act done toward its
commission.” (§ 21a.)
According to A.T.’s testimony, he was approached outside of the mission by
someone who, “wanted something.” The guy was, “being a jerk.” A.T. testified that
when threw water on the man to try to change his mind, the man pulled a gun. A.T. also
testified when asked if he could see the gun when he first started talking to the man that,
“[h]e pulled a gun and tried to put it in my face right away.” A.T. also said, the man had
“asked [A.T.] for money right away.” AT. testified that as he tried to get away from the
man, the man shot a gun, though A.T. did not see him shoot it. A.T. thought the man shot
a blank or something because he got hit in the arm but did not have a wound.
44
L.S. testified she heard a gunshot. Duckworth testified that he saw A.T. holding
his elbow and complaining about something stinging it. The 9-1-1 call between B.K. and
the dispatcher captured A.T. responding to a question regarding if the man shot him by
saying, “[h]e tried to and it hit my arm. Did it?” B.K. responded that A.T.’s arm was
pretty red.
This evidence is sufficient to support factual findings that defendant approached
A.T. and asked for money in a hostile manner, and when A.T. refused and responded
defensively, defendant escalated his efforts by putting his gun in A.T.’s face. Then, when
A.T. tried to get away, he shot at A.T. This supports a conclusion that defendant was
trying to get money from A.T. and was using escalating levels of force to get it. That is,
it is sufficient to support a finding that defendant attempted to rob A.T.
Defendant raises various theories that we reject to support his argument that the
facts do not support an attempted robbery conviction.
First, he points to B.K.’s testimony that he believed A.T. had a severe mental
illness or a developmental disability and argues that (1) the only evidence offered to
prove the robbery occurred was A.T.’s testimony; and (2) A.T. was not consistent or
credible.
As to the first point, A.T.’s testimony was not the only evidence that an attempted
robbery had occurred. While he may have been the only direct witness to his interaction
with defendant, other evidence corroborates that the gun was fired and either grazed A.T.
or was close enough to him to cause him to believe he was hit. As to the second,
“[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends.” (People v. Maury (2003) 30 Cal.4th 342, 403.) Here, A.T.’s
testimony made it fairly clear that he did not want to be in court and was reluctant to
participate in prosecuting the person who shot at him. In these circumstances, a
45
reasonable jury could give more credence to statements he made suggesting A.T.
demanded money and pulled a gun on him than to statements that may have minimized
defendant’s actions.
Second, defendant raises arguments that, as a practical matter, ask this court to
reweigh the evidence. For example, defendant argues that the evidence does not show
that defendant demanded anything from A.T. Rather, defendant maintains, all the
evidence shows is that defendant “wanted” something, and it is unclear what specifically
defendant wanted, or that the request was made in a threatening manner. He argues
that—considering the environment where the encounter occurred—the facts suggest
defendant was possibly engaged in panhandling or a request for information on how to
partake in a meal offered by the mission. Defendant argues that if defendant was seeking
food, there is no evidence he believed A.T. had food on his person. As another example,
defendant argues that the evidence does not show that defendant was motivated by an
intent to steal when he pulled out the gun. Instead, he maintains, the evidence shows that
defendant drew his gun after A.T. assaulted defendant by throwing water at him.
But the evidence also allows for the conclusion that defendant wanted money and
behaved in an increasingly hostile manner towards A.T. in his efforts to get it. A rational
trier of fact could have considered all the evidence, weighed it, and concluded beyond a
reasonable doubt that defendant was guilty of attempted robbery.
IV
Jury Instructions Regarding Assault
Defendant argues that embellishments the trial court made to the jury instructions
for the crime of assault with a firearm resulted in an instructional error. His arguments
regarding the instructional error are twofold. First, he argues the embellishments
eliminated the actus reus for assault. Second, he argues the court erred in explaining the
knowledge element of the offense. We agree with defendant that the instructions as
46
given orally contain embellishments that, when read alone, are misstatements of law.
However, given entirety of the instructions, that the jury was provided with a written
version of the instructions that did not contain the embellishments, and considering the
entire record in this case, we do not find the trial court committed reversible error.
A. Additional Background
During closing arguments, the People argued regarding the assault charge, “Count
5 is assault with a firearm. In order to prove defendant guilty, . . . the People must prove
that the defendant did an act with a firearm that would directly and probably result in the
application of physical—application of force to [A.T.], that the defendant acted willfully,
and when the defendant acted he was aware of facts that would directly and probably
result in the application of force to someone and the defendant had the present ability to
apply force with a firearm.
“What’s not required? The defendant doesn’t have to actually touch anyone. The
defendant actually intended to use force against someone when he acted and the
defendant’s act injured someone.
“If you have a firearm and you point it directly at someone, that is an assault with
a firearm. Period.”
The trial court instructed the first jury on the elements necessary to prove a
violation of section 245, subdivision (a)(2), assault with a firearm, by using a version of
CALCRIM No. 875. An unembellished written copy was provided to the jury.
In orally delivering the jury instruction for assault with a firearm, the court did not
read the instruction verbatim, instead it added and changed some of the language,
including inserting some language at the beginning of the instruction. The court said the
following, where the italicized text represents changes from or additions to the written
version, except we do not italicize instances where numerals are spelled out or
punctuation or capitalization has been changed:
47
“Now, assault—and I think [the People] mentioned it. Some people think assault
means someone has to be injured or hospitalized. An assault as she mentioned, I’m not
taking sides, if I was to raise a bat, walk over and raise a bat up high, that’s an assault.
You don’t have to hit somebody or beat somebody with it. In this case they allegedly
pointed a weapon, the firearm, at [A.T.].
“In order to prove a violation of [] section 245(a)(2) as charged in Count 5, each of
the following elements must be proved:
“As we go through this, I want you to think of the example because, you know,
without a context, without a factual example, it’s a lot of legalese. What are we talking
about?
“Number one, the defendant did an act with a deadly weapon—in our case the
allegation is a firearm—that by its nature would directly and probably result in the
application of force towards a person. Somebody standing in front of you with a gun or a
bat or a knife.
“Number two, the defendant did that act willfully. Number three, when the
defendant acted, he was aware of facts that would lead a reasonable person to realize that
his act by its nature would directly and probably result in the application of force to
someone. With the bat, somebody might get hit.
“Number four, when the defendant acted he had the present ability to apply force
with a deadly weapon, specifically a firearm.
“Someone commits an act willfully when he does it willingly or on purpose. It
does not require to1 break the law, hurt someone else or gain any advantage.
1 The written instruction said, “[i]t is not required that he intend to.”
48
“The People are not required to prove that the defendant actually touched
2
someone. The People are not required to prove the[ ] defendant actually intended to use
force against someone when he acted. No one needs to actually have been injured by
defendant’s act. However, if someone was injured, you may consider that fact along with
all the other evidence in determining whether the defendant committed the assault, and if
so, what kind of assault it was.
“Great bodily injury means significant or substantial physical injury. It is an
injury greater than minor or moderate harm.
“Then the firearm definition, we covered that. We have it in here and we said it
once and it applies obviously to the one weapon involved here.”
Also relevant to our analysis is the instruction the court provided the jury for the
section 12022.5, subdivision (a), personal use of a firearm enhancement allegation to the
assault with a firearm count. That instructions states that someone “ ‘personally uses a
firearm,’ . . . if he intentionally does any of the following: [¶] 1. Displayed the firearm
in a menacing manner; [¶] 2. Hits someone with the firearm; OR [¶] 3. Fires the
firearm.” The jury found this enhancement allegation to be true.
B. Nature of Assault
We outlined the standard of review for instructional error in section I. B. of this
discussion.
Section 245, subdivision (a)(2), makes it a punishable offense to “commit[] an
assault upon the person of another with a firearm.” Pursuant to section 240, “[a]n assault
is an unlawful attempt, coupled with a present ability, to commit a violent injury on the
person of another.”
2 The trial court omitted the word “that” from “prove that the.”
49
Though the statutory definition of assault speaks to an “unlawful attempt,” (§ 240)
and attempt crimes usually require specific intent, “assault is a general intent crime.”
(People v. Chance (2008) 44 Cal.4th 1164, 1167 (Chance).) “ ‘[The mens rea for assault]
is established upon proof the defendant willfully committed an act that by its nature will
probably and directly result in injury to another, i.e., a battery.’ [Citations.]” (People v.
Williams (2001) 26 Cal.4th 779, 782 (Williams).) It also requires “actual knowledge of
the facts sufficient to establish that the defendant’s act by its nature will probably and
directly result in injury to another.” (Ibid.) But “assault does not require a specific intent
to injure the victim.” (Id. at p. 788.) And a defendant “need not be subjectively aware of
the risk that a battery might occur.” (Williams, at p. 788.) Thus, “[a]lthough the
defendant must intentionally engage in conduct that will likely produce injurious
consequences, the prosecution need not prove a specific intent to inflict a particular harm.
[Citation.] The evidence must only demonstrate that the defendant willfully or
purposefully attempted a ‘violent injury’ or ‘the least touching,’ i.e., ‘any wrongful act
committed by means of physical force against the person of another.’ (People v. McCoy
(1944) 25 Cal.2d 177, 191 [] . . . .) In other words, ‘[t]he use of the described force is
what counts, not the intent with which same is employed.’ [Citation.] Because the
offensive or dangerous character of the defendant’s conduct, by virtue of its nature,
contemplates such injury, a general criminal intent to commit the act suffices to establish
the requisite mental state.” (People v. Colantuono (1994) 7 Cal.4th 206, 214-215.) “The
pivotal question is whether the defendant intended to commit an act likely to result in
such physical force, not whether he or she intended a specific harm.” (Id. at p. 218, fn.
omitted.)
The actus reus of assault “is a defendant’s action enabling him to inflict a present
injury . . . .” (Chance, supra, 44 Cal.4th at p. 1172.) “A defendant has a present ability
to injure when the ‘ “defendant has attained the means and location to strike
immediately” ’ ([Chance, supra,] 44 Cal.4th [at p. 1174] []), even if the injury would not
50
‘necessarily occur as the very next step in the sequence of events, or without any delay’
(id. at p. 1172). Thus, ‘when a defendant equips and positions himself to carry out a
battery, he has the “present ability” required by section 240 if he is capable of inflicting
injury on the given occasion, even if some steps remain to be taken, and even if the
victim or the surrounding circumstances thwart the infliction of injury.’ (Ibid.) ‘Thus, an
assault can occur even when the defendant makes no contact with the victim.’
[Citation.]” (People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 279.)
First of all, we repeat the admonitions we have set forth earlier regarding the trial
court’s adlibbing embellishments to the standard jury instructions again pointing out that
such embellishments are “perilous.”
In assessing the trial court’s embellishments here, it is helpful to look at People v.
McMakin (1857) 8 Cal. 547 (McMakin), a seminal case regarding the evidentiary import
of drawing, but not firing, a gun and like actions.
In McMakin, supra, 8 Cal. at page 547, the defendant drew a gun and threatened to
shoot the victim, who was on horseback, if he did not leave some land. Defendant held
the gun perpendicular to the victim but pointed it so that the ball would strike the ground
first if discharged. (Ibid.) The victim rode off and defendant did not shoot. (Ibid.)
Defendant argued the facts were not sufficient to prove assault. (Ibid.) Our Supreme
Court disagreed. (See id. at p. 549.)
In its analysis, the Court focused on whether the evidence supported a finding that
the intention to commit the act was present. (McMakin, supra, 8 Cal. at p. 548.) The
Court observed that under these facts, “[t]he ability to commit the offense was clear.
Holding up a fist in a menacing manner, drawing a sword or bayonet, presenting a gun at
a person who is within its range, have been held to constitute an assault. So any other
similar act, accompanied by such circumstances as denote an intention existing at the
time, coupled with a present ability of using actual violence against the person of another,
will be considered an assault.” (Ibid.)
51
The Court considered whether an assault could be committed if the evidence
showed that the use of the weapon to shoot was conditioned upon the victim not reacting
in a way defendant desired to the intimidation effort. (McMakin, supra, 8 Cal. at p. 548.)
In answering this question, the Court first observed that, “[i]f the prisoner did not intend
to use the pistol at all, except for the sole purpose of intimidation, then, it is apprehended,
the offense would not have been complete. But when the intent is to go further, if
necessary, to accomplish the purpose intended, and preparations are actually made, and
weapons drawn, and placed in a position to be instantly used offensively, and with effect,
against another, and not in self defense, it would seem to be clear that the offense would
be complete. . . . Where a party puts in a condition which must be at once performed, and
which condition he has no right to impose, and his intent is immediately to enforce
performance by violence, and he places himself in a position to do so, and proceeds as far
as it is then necessary for him to go in order to carry out his intention, then it is as much
an assault as if he had actually struck, or shot, at the other party, and missed him. It
would, indeed, be a great defect in the law, if individuals could be held guiltless under
such circumstances.” (Id. at pp. 548-549.)
In explaining its conclusion that the evidence was sufficient to support a finding of
the requisite intent to act, the court stated, “[t]he drawing of a weapon is generally
evidence of an intention to use it. Though the drawing itself is evidence of the intent, yet
that evidence may be rebutted when the act is accompanied with a declaration, or
circumstances, showing no intention to use it. But when the party draws the weapon,
although he does not directly point it at the other, but holds it in such a position as
enables him to use it before the other party could defend himself, at the same time
declaring his determination to use it against the other, the jury are fully warranted in
finding that such was his intention.” (McMakin, supra, 8 Cal. at p. 549.)
52
C. Analysis
Defendant maintains that the trial court’s error “began” with the court endorsing
the People’s “oversimplified assertion” that if you point a gun directly at somebody, you
have an assault with a firearm, “ ‘[p]eriod’ ” and then providing its own oversimplified
example of an assault when it referred to raising a bat up high as an assault. Defendant
argues that these examples only establish brandishing of a weapon under section 417, and
not assault. Defendant reasons this is so because without the actus reus of an attempt to
use a weapon to commit a violent injury, brandishing a weapon is not an assault.
With respect to defendant’s arguments regarding the actus reus of the offense, we
are not persuaded the illustrations are incorrect or otherwise caused the jury to misapply
the law, particularly when we consider the illustrations as part of the entire charge rather
than as isolated parts. (See People v. Carrington, supra, 47 Cal.4th at p. 192.) Both the
statement regarding pointing a gun and the court’s statement regarding holding a bat up
high arose in the context of explaining that an actual injury is not required to find there
was an assault. And this is true. The act in question need not actually cause an injury.
(See § 240; Mendez, supra, 86 Cal.App.5th at p. 279.)
Furthermore, defendant argues the example regarding the bat is problematic
because the hypothetical assailant would need to at least swing the bat and miss to
complete the battery. We do not agree. Once the bat is raised high and near a potential
victim, the wielder has enabled him or herself to inflict a present injury. (See Chance,
supra, 44 Cal.4th at p. 1172.) To satisfy the actus reus of assault, “[t]here is no
requirement that the injury would necessarily occur as the very next step in the sequence
of events, or without any delay. The McMakin court noted that assault does not require a
direct attempt at violence. (McMakin, supra, 8 Cal. at p. 548.) ‘There need not be even a
direct attempt at violence; but any indirect preparation towards it, under the
circumstances mentioned, such as drawing a sword or bayonet, or even laying one’s hand
53
upon his sword, would be sufficient.’ (Hays v. The People (N.Y. Sup.Ct. 1841) 1 Hill
351, 352–353, cited in McMakin, at p. 548.)” (Chance, supra, (2008) 44 Cal.4th at
p. 1172.)
We acknowledge that the hypothetical action described was further removed from
a present ability to cause harm when the trial court used it in point one of the instruction,
and the court qualified the action requirement by saying, “[s]omebody standing in front
of you with a gun or a bat or a knife.” But, again, given the entirety of the instructions,
the jury would not have reasonably applied the statement to determine an act taken could
be other than one that would directly and probably result in the application of force to a
person as described in case law.
The use of the examples—particularly the one with the bat—is more problematic
when we look at them in relation to the mens rea and knowledge requirements for assault.
Again, the introduction of the examples did not create an error here because they were
offered to explain that no one needs to be injured for an assault to occur. But if divorced
from that context, to say raising a bat high near a person is an assault obscures the
requirement that there be an intention to perform an act that will probably and directly
result in injury to another. (See Williams, supra, 26 Cal.4th at p. 782.) It ignores that it
might be possible for the hypothetical bat-raiser to present evidence to rebut a conclusion
they intended to use the bat in a manner that would complete a battery. (See McMakin,
supra, 8 Cal. at p. 549.) Indeed, while “[h]olding up a fist in a menacing manner” may
provide enough evidence to support a finding of the requisite intent, the hypothetical
regarding the bat, without context of why the bat was raised or the milieu in which it was
raised, is not “accompanied by such circumstances as denote an intention existing at the
time.” (Id. at p. 548.)
The bat hypothetical also led the court technically to misstate the law when the
trial court cross-referenced the hypothetical in giving the point instruction on the
knowledge requirement. The trial court said, “[w]ith the bat, somebody might get hit.”
54
But “might” is not the requirement. The requirement is that defendant be aware of facts
that would lead a reasonable person to realize his act by its nature would directly and
probably result in the application of force to someone. (Williams, supra, 26 Cal.4th at
p. 782.) Again, looking at the greater context the statement appears in, the jury probably
understood that the court only meant that “get[ting] hit” is an example of the type of
direct and probable result that is enough to prove assault, even if no one actually gets hit.
(See People v. Carrington, supra, 47 Cal.4th at p. 192; People v. Vang, supra,171 Cal.App.4th at p. 1129.) That is, a reasonable jury would not look at the instructions
as a whole and decide the need for a direct and probable consequence was being reduced
to a mere possible consequence. But the fact remains that the safer course of action
would have been for the trial court to not embellish the instructions at all.
Thus, the instructions as given with the oral embellishments do contain some
statements that, taken alone, do not accurately reflect the law regarding the elements of
assault with a firearm. However, when seen as a part of the whole of the instructions and
charge, we don’t believe the jury misunderstood what it needed to find.
On the off chance the jury would have misunderstood the oral instructions, two
more factors would save the assault with a firearm finding from reversal.
First, the written instructions do not contain the embellishments and, in fact,
contain correct statements of the law. To the extent one of the trial court’s oral
embellishments might conflict with the written instructions—e.g., if the jury were to have
concluded “might” as used meant something other than and was therefore contradictory
to “directly and probably”—we would assume the jury followed the correct written
instructions. (See People v. Grimes, supra, 1 Cal.5th at p. 729.)
Second, in making a section 12022.5, subdivision (a), truth finding, the jury found
defendant intentionally “[d]isplayed the firearm in a menacing manner”; hit someone
with the firearm, or “fire[d] the firearm.” This finding, “alone may be sufficient to
establish assault. (People v. McMakin[, supra,] 8 Cal. [at p.] 548 [observing that
55
‘presenting’ a gun at [a] person within its range can constitute assault]; People v. Laya
(1954) 123 Cal.App.2d 7, 16 [] [‘The mere pointing of a gun at a victim constitutes an
assault with a deadly weapon, whether or not it is fired at all’].)” (People v. Rivera
(2019) 7 Cal.5th 306, 333.) Additionally, despite defendant’s efforts to characterize
A.T.’s injuries as resulting from hitting a corner at the mission as he tried to flee the
drawn weapon, this is contrary to the evidence that A.T. was heard on the 9-1-1 call
saying the shooter tried to shoot him and it hit his arm, and to A.T.’s testimony indicating
he believed the gun had blanks because he “got hit in the arm” but had no wound.
Moreover, even if one were to conclude that defendant did not pull the trigger while
pointing the gun at A.T. and that A.T.’s elbow hurt because he hit it on some part of the
building, A.T. also testified that defendant “pulled a gun and tried to put it in [A.T.’s]
face right away.” Defendant offered no evidence to rebut the assumption that he had the
requisite intent required for assault when he pulled the loaded gun and put it in A.T.’s
face during their heated encounter. (McMakin, supra, 8 Cal. at p. 549.) Indeed, pulling a
loaded weapon and shoving it in someone’s face during a heated encounter is itself highly
risky behavior. As a result, any error was harmless beyond a reasonable doubt. (Rivera,
supra, at p. 332.)
V
Vehicle Taking and Gun Theft Convictions and Punishments
Defendant argues that because the gun was in the trunk of the car when the car
was stolen, the car and gun were stolen in a single act of theft. Therefore, he argues,
under the single larceny doctrine he could not be convicted of both the taking of the
vehicle under Vehicle Code section 10851, subdivision (a), and the theft of the firearm
under section 487, subdivision (d)(2). In a final paragraph to his single-larceny-doctrine
argument without a separate heading, defendant also argues—again under the theory that
the theft of the vehicle and gun were accomplished in one single act—that section 654
56
prohibits the imposition of punishment for both of these verdicts. We find the single-
larceny argument has not been properly raised and do not consider it. We disagree with
the section 654 argument.
With respect to defendant’s argument regarding the single larceny doctrine, he has
failed to point to where he raised this issue below, and he has not articulated an argument
or theory as to why he was not required to raise it. (See Cal. Rules of Court, rules
8.204(a)(1)(C) & 8.360(a).) Additionally, he has failed to articulate a standard of review
for considering this argument, and thus has failed to explain how he has satisfied it on
this record with his arguments. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) This
leaves us with unanswered questions that would frame our analysis of this issue. We do
not know when in the trial court proceedings defendant believes an error occurred that led
to his final conviction on both counts. We do not know if when the supposed error
occurred or became apparent, he raised an appropriate objection or argument seeking to
correct it. Consequently, we don’t know if he forfeited any argument he might make
regarding that error on appeal. “As a general rule, a party who does not raise an
argument below forfeits the argument on appeal.” (In re Abram L. (2013)
219 Cal.App.4th 452, 462.) Defendant has not argued, let alone demonstrated why, the
forfeiture rule would not apply here. We will not do defendant’s job for him by
searching the record, trying to divine where the trial court ought to have acted to prevent
the alleged error, identifying the proper standard of review in that context, and then
applying it to this record.
Given the way defendant raised his section 654 argument, the argument has also
likely been forfeited. An appellant must “[s]tate each point under a separate heading or
subheading summarizing the point, and support each point by argument and, if possible,
by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B); see Opdyk v.
California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) Failure to
provide proper headings forfeits issues that may be discussed in the brief but are not
57
clearly identified by a heading. (See Arnold v. Dignity Health (2020) 53 Cal.App.5th
412, 422.) But, even if the argument had not been forfeited, we find it unpersuasive.
“Section 654 precludes multiple punishment for ‘a single act or indivisible course
of conduct.’ (People v. Assad (2010) 189 Cal.App.4th 187, 200 [].) ‘ “The divisibility of
a course of conduct depends upon the intent and objective of the defendant. . . . [I]f the
evidence discloses that a defendant entertained multiple criminal objectives which were
independent of and not merely incidental to each other, the trial court may impose
punishment for independent violations committed in pursuit of each objective even
though the violations shared common acts or were parts of an otherwise indivisible
course of conduct.” [Citations.]’ (People v. Akins (1997) 56 Cal.App.4th 331, 338–339
[].) Whether a defendant harbored multiple criminal objectives is a question of fact, the
trial court’s determination of which must be upheld on appeal if supported by substantial
evidence. (People v. Nubla (1999) 74 Cal.App.4th 719, 730 [].)” (People v. Jones
(2021) 65 Cal.App.5th 1, 12; see also People v. Carter (2019) 34 Cal.App.5th 831, 841.)
Here, substantial evidence supports the trial court’s implied finding that the taking
of the car and the taking of the gun were the result of separate and independent
objectives. Based on the testimony of Coffey and McGehee, while the gun may have
been in the car at the time the car was stolen, the gun was in the trunk. Thus, at some
point, defendant opened the trunk, discovered the gun, loaded it, and decided to keep it
and put it to his own use. When he abandoned the car, defendant kept the gun and
continued to use it. All this supports a finding that defendant’s decision to take the gun
and permanently secure it for his own use was not completed in entirely the same action
and at the same time as the taking of the car. That is, it supports a finding that he was
motivated by a separate objective when he took the gun, and the actions he took to
accomplish that objective were not completed at the same time the theft of the car was
completed.
58
Defendant argues that the taking of the gun and car was accomplished with one
act, and that when he took the car he intended to take everything in it. Ergo, he reasons,
the theft of the car and gun were undeniably accomplished with a single intention and act.
The case law defendant cites to support this argument does not do so.
At issue in the cases defendant cites was whether a finding that a defendant
committed a theft of a particular item could be supported even though at the time of the
established taking of the item the defendant was unaware of the precise nature of what he
was stealing, whether that be because defendant did not know a purse contained a gun, a
car contained a briefcase, or a victim was carrying a cell phone. (See People v. DeLeon
(1982) 138 Cal.App.3d 602, 607; People v. Campbell (1976) 63 Cal.App.3d 599, 606-
607, 614-615; In re Jesus O. (2007) 40 Cal.4th 859, 867-868.) They did not consider
when evidence of intervening acts could support a finding of separately punishable thefts.
Cases are not authority for propositions not considered. (People v. Fontenot (2019)
8 Cal.5th 57, 73.)
Though not directly on point, we find this court’s decision in People v. Jones,
supra, 65 Cal.App.5th at page 12, instructive in determining whether to uphold the trial
court’s sentencing on both the car taking and gun theft counts. In Jones, defendant
approached the victim and her grandchild with a gun, demanded she give him her phone,
then forced her to drive him various places. (Id. at pp. 5-6.) Defendant later took over
driving, eventually taking the victim to a location where he forced her to orally copulate
him. (Id. at p. 6.) Afterwards, defendant drove some more, and he finally agreed to let
the victim and her grandchild go. (Ibid.) Before letting them out of the car, he demanded
all the victim’s money. (Ibid.) Among other findings, defendant was found guilty of two
counts of robbery. (Id. at p. 4.) On appeal defendant argued the trial court violated
section 654 by imposing concurrent sentences for both the robbery counts. (Ibid.) We
concluded the evidence was “more than sufficient to support the trial court’s implied
finding that the two robberies were not part of an indivisible course of conduct.
59
Moreover, even though defendant undoubtedly possessed the same intent, i.e., to
permanently deprive [the victim] of her property, when he took both her cell phone and
her money, he had time between the robberies to reflect on his actions and renew his
intent to steal.” (Id. at p. 12, italics added.) Here too, in removing the gun from the
trunk, loading it, and retaining it when he dumped the car, defendant had an opportunity
to decide if he was going to leave the gun as part of the car or take it as a separate item.
He chose the latter. The trial court’s decision to punish him for this separate choice was
not in error.
VI
First Degree Murder Conviction
Defendant argues his first degree murder conviction must be reversed because
there was insufficient evidence to support a finding of premeditation and deliberation.
We disagree.
A. Additional Background
The second jury was instructed that defendant was being prosecuted for first
degree murder on a theory that the murder was willful, deliberate, and premeditated. The
court did not instruct the jury on any other theory of first degree murder.
The defense did not object to admitting the evidence of the incident between the
defendant and A.T. at the mission. And defense counsel agreed “one hundred percent”
with the court’s assessment that it would be “impossible” for the People to agree not to
talk about the evidence at the mission “because it’s relevant. It shows lots of things.
Access to a gun, use of a gun, the same gun . . . that kills Mr. Urbina, the locale.”
However, the defense did make a motion in limine requesting that the prosecution be
barred from mentioning (1) that there was a prior jury trial on facts involved in the
second trial; and (2) that defendant was tried and convicted of charges in the other trial.
60
The trial court agreed that “no one should mention the fact that there was a prior
trial or decision on the prior charges.” It also gave a limiting instruction regarding the
jury’s ability to consider whether the defendant had been prosecuted for those crimes.
B. Differentiating Between First and Second Degree Murder
We described the standard of review for sufficiency of evidence claims in section
III.A. of this discussion. We note that under this standard, “[e]ven ‘assuming a
reasonable jury could have found the evidence did not support premeditation and
deliberation and returned a verdict of second degree murder, [defendant’s conviction]
must stand’ ” when circumstances reasonably justify the jury’s findings. (People v.
Salazar (2016) 63 Cal.4th 214, 245 (Salazar); see also People v. Perez (1992) 2 Cal.4th
1117, 1126.)
The unlawful killing of a human being with malice aforethought is murder.
(§ 187, subd. (a).) Our Legislature has decided to divide murder into two degrees: first
or second. (See § 189, subds. (a)-(b).) According to the statutes defining murder, murder
is in the first degree if done using certain methods not at issue here; if done during the
commission of certain felonies not alleged to have been committed when Urbina was
killed; or if it is “willful, deliberate, and premeditated.” (§ 189, subd. (a).) “All other
kinds of murders are of the second degree.” (§ 189, subd. (b).)
A murder verdict based on a finding of willfulness, deliberation, and
premeditation requires more than a showing that defendant had an intent to kill. (People
v. Disa (2016) 1 Cal.App.5th 654, 664 (Disa); People v. Gomez (2018) 6 Cal.5th 243,
282 (Gomez); People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “ ‘In the context of first
degree murder, “ ‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means
‘formed or arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action’ ” ’ (People v. Lee (2011)
51 Cal.4th 620, 636 []).” (People v. Smith (2018) 4 Cal.5th 1134, 1164; Salazar, supra,
61
63 Cal.4th at p. 245; Potts, supra, 6 Cal.5th at p. 1027.) Thus, “[a]n intentional killing is
premeditated and deliberate if it occurred as the result of preexisting thought and
reflection rather than unconsidered or rash impulse.” (People v. Stitely (2005) 35 Cal.4th
514, 543 (Stitely); see also Potts at p. 1027.)
In considering if there was premeditation and deliberation, “ ‘ “ ‘The true test is
not the duration of time as much as it is the extent of the reflection. Thoughts may follow
each other with great rapidity and cold, calculated judgment may be arrived at
quickly . . . .’ ” ’ (People v. Koontz[, supra,] 27 Cal.4th [at p.] 1080 [], citing People v.
Mayfield (1997) 14 Cal.4th 668, 767 [].)” (Gomez, supra, 6 Cal.5th at p. 282.)
“ ‘The legislative definition of the degrees of murder leaves much to the discretion
of the jury in many cases. That discretion, however must have a sound factual basis for
its exercise . . . . [As] is true as to all factual issues resolved by a jury, the evidence upon
which the determination is made is subject to review on the question of its legal
sufficiency to support the verdict. . . . [The] jury is bound, as are we, to apply the
standards fixed by law. “. . . It is [the jury’s] duty to avoid fanciful theories and
unreasonable inferences and not to resort to imagination or suspicion.” [Citation.]’
(People v. Holt[ (1944)] 25 Cal.2d [59,] 83, 90.)” (People v. Anderson (1968) 70 Cal.2d
15, 23-24 (Anderson); People v. Boatman (2013) 221 Cal.App.4th 1253, 1265.)
In Anderson, supra, 70 Cal.2d at page 26 our Supreme Court provided guidance
regarding, “[t]he type of evidence . . . sufficient to sustain a finding of premeditation and
deliberation.” The Court stated the evidence, “falls into three basic categories: (1) facts
about how and what defendant did prior to the actual killing which show that the
defendant was engaged in activity directed toward, and explicable as intended to result in,
the killing—what may be characterized as ‘planning’ activity; (2) facts about the
defendant’s prior relationship and/or conduct with the victim from which the jury could
reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with
facts of type (1) or (3), would in turn support an inference that the killing was the result
62
of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather
than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the
nature of the killing from which the jury could infer that the manner of killing was so
particular and exacting that the defendant must have intentionally killed according to a
‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the
jury can reasonably infer from facts of type (1) or (2).” (Id. at pp. 26-27, italics omitted.)
The Court observed, “[a]nalysis of the cases will show that this court sustains
verdicts of first degree murder typically when there is evidence of all three types and
otherwise requires at least extremely strong evidence of (1) or evidence of (2) in
conjunction with either (1) or (3).” (Anderson, supra, 70 Cal.2d at p. 27.) “Evidence in
only one of” the Anderson categories, “most often is insufficient.” (People v. Alcala
(1984) 36 Cal.3d 604, 626 (Alcala), superseded by statute on other grounds as recognized
by People v. Falsetta (1999) 21 Cal.4th 903, 911.)
We note, however, that “[t]he Anderson factors are not the exclusive means for
establishing premeditation and deliberation. (People v. Perez[, supra] 2 Cal.4th [at p.]
1125 [].)” (People v. Lenart (2004) 32 Cal.4th 1107, 1127; Young, supra, 34 Cal.4th at
p. 1183.) “ ‘The Anderson analysis was intended only as a framework to aid in appellate
review; it did not propose to define’ ” or alter “ ‘the elements of first degree murder or
alter the substantive law of murder in any way.’ (People v. Perez[, supra,] 2 Cal. 4th [at
p.] 1125 [].) The Anderson guidelines were formulated as a synthesis of prior case law,
and are not a definitive statement of the prerequisites for proving premeditation and
deliberation in every case.” (People v. Hawkins (1995) 10 Cal.4th 920, 957 (Hawkins);
Disa, supra, 1 Cal.App.5th at p. 665; People v. Thomas (1992) 2 Cal.4th 489, 517
(Thomas) [Anderson “did not refashion the elements of first degree murder or alter the
substantive law of murder in any way”].)
The Anderson categories are meant to be “descriptive, not normative.” (People v.
Davis (1995) 10 Cal.4th 463, 511; People v. Elliot (2005) 37 Cal.4th 453, 470-471
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(Elliot).) And “ ‘ “Anderson did not purport to establish an exhaustive list that would
exclude all other types and combinations of evidence that could support a finding of
premeditation and deliberation.” [Citations.]’ [Citation.]” (People v. Mendoza (2011)
52 Cal.4th 1056, 1069; People v. Perez, supra, 2 Cal.4th at p. 1125.) Additionally, the
Anderson factors, “need not be present in any particular combination to find substantial
evidence of premeditation and deliberation,” (Stitely, supra, 35 Cal.4th at p. 543; People
v. Booker (2011) 51 Cal.4th 141, 172), and they need not be “accorded a particular
weight” (People v. Bolin (1998) 18 Cal.4th 297, 331-332).
C. Premeditation and Deliberation Here
Using the Anderson factors as a guide, and keeping in mind that “an
‘[u]nreflective reliance’ on People v. Anderson is inappropriate” (People v. Whisenhunt
(2008) 44 Cal.4th 174, 202, citing Thomas, supra, 2 Cal.4th at p. 517), we find that
sufficient evidence supports the jury’s finding that defendant committed the murder with
premeditation and deliberation. In so doing, we will “vie[w] the evidence in the light
most favorable to the judgment.” (See People v. Lunafelix (1985) 168 Cal.App.3d 97, 99
(Lunafelix).)
We begin with the first factor: planning. Before arriving at the corner, the
defendant slowed down and veered slightly towards the curb in front of the mission,
where the next day he would accost A.T., suggesting that as he drove along East Church
Street the defendant was looking for a location where he might find a potential victim.
Finding no one, he moved along. Next, he pulled over, then stopped and got out of the
car next to the vacant lot, where Urbina was nearby. At the time defendant was standing
on the curb at the intersection, he had earlier unsealed a bag of ammunition, loaded the
gun with at least five shots, and armed himself with the gun. He then used the gun to
shoot Urbina, an unarmed man. All of this suggests planning by the defendant.
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Loading the gun and exiting the car with it strongly suggests that, at a minimum,
defendant considered the possibility of violence in advance and possessed some intention
to kill if he felt the circumstances warranted it. (Salazar, supra, 63 Cal.4th at p. 245
[bringing a gun shows evidence of planning]; Potts, supra, 6 Cal.5th at p. 1027 [arriving
at the victims’ home with a weapon suggests the murders were planned]; Young, supra,
34 Cal.4th at p. 1183 [jury could infer from entry into a home with a gun that the
defendant considered the possibility of murder in advance and intended to kill even if the
murder was committed outside the home]; Elliot, supra, 37 Cal.4th at p. 471 [arming with
a knife before an attack suggests planning]; People v. Lee, supra, 51 Cal.4th at p. 636
[“defendant brought a loaded handgun with him on the night [victim] was killed,
indicating he had considered the possibility of a violent encounter”]; People v. Miranda
(1987) 44 Cal.3d 57, 87 (Miranda) [“fact that defendant brought his loaded gun into the
store and shortly thereafter used it to kill an unarmed victim reasonably suggests that
defendant considered the possibility of murder in advance”]; People v. Adcox (1988)
47 Cal.3d 207, 240 (Adcox) [bringing a loaded gun and using it to shoot an unarmed
victim reasonably suggests that a defendant considered murder in advance]; People v.
Wells (1988) 199 Cal.App.3d 535, 540-541; People v. Romero (2008) 44 Cal.4th 386,
401.)
The timing and location of the murder also factor into our consideration of
evidence of planning. The fact that the encounter did not occur earlier in the day, but
later in the evening—when it had become dark and the workers who hung out at the
corner were more likely to both have finished their socializing and had not yet arrived for
their next day’s work—suggests defendant planned the encounter for a time when the
area would be comparatively isolated. (See People v. Edwards (1991) 54 Cal.3d 787,
814 (Edwards) [following girls from a campground bathroom to a more remote spot
showed planning]; Elliot, supra, 37 Cal.4th at p. 471 [attack in bar after closing seen as
remote and some evidence of planning].) Moreover, the type of persons the defendant
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was likely to encounter between the mission and the corner at that hour suggests an
additional degree of planning. The mission, which defendant appeared to first survey,
serves men in crisis who are often suffering addiction. And the lot was a hang out spot
for field workers, who, to the extent they would hang out near the lot in evening hours,
had often been drinking. The social status of these potential victims and their potential
intoxication would render them more vulnerable than the average person, less likely to
get involved and report a crime if they did witness it, and less likely to be considered
reliable witnesses.
In his reply brief, defendant scoffs at the People’s characterization of potential
witnesses in the area as “ ‘inebriates or farm workers’ who ‘would not make ideal
witnesses even if they cooperated with law enforcement.’ ” While the People’s
description may be less charitable than deserved, there are valid points to the argument.
Any farmworkers in the area at 10 p.m., based on R.M.’s testimony, had likely been
hanging out at that hour because they were drinking. Alcohol does impair the senses and
one’s ability to perceive what is going on. Additionally, there is a fair chance the
farmworkers and people who were served by the mission would be less likely to involve
themselves in a criminal investigation due to a distrust of law enforcement. This is borne
out by the fact that A.T. could not be found to testify and either trial, and his preliminary
hearing testimony strongly suggests he did not want to be involved in these proceedings.
Finally, the Country Market videos that show defendant was relatively calm at the
market, less than an hour later. That is, he was not so shocked by his actions that he
could not go about his evening in a collected manner. (See People v. Saterfield (1967)
65 Cal.2d 752, 759 [evidence that a murderer appeared relatively calm at a witness’s
home shortly after the murder used to support a finding of premeditation and
deliberation].)
The defendant makes much of the fact that he did not personally buy the gun, but
found it by happenstance in the stolen car. But based on the evidence, when the
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defendant found the gun, it was unloaded. He was the one who loaded it, and he had to
open a sealed a bag of ammunition to do that. He was the one who opted to pull over the
car and get out with the gun. That he had only obtained the gun earlier in the day only
suggests any plan to use the gun was not made over the course of many days, but possibly
only over the course of a few hours. But a few hours, or even minutes, was plenty of
time for the defendant to form a plan to use the gun in a deadly encounter. (See People v.
Brady (2010) 50 Cal.4th 547, 563-564 [“The lack of evidence of extensive planning does
not negate a finding of premeditation”; a decision made in a momentary interaction is
enough]; Disa, supra, 1 Cal.App.5th at p. 666 [planning activity occurring over a short
period of time is sufficient to find premeditation].) Under these facts, the jury could have
reasonably concluded the defendant had decided—that he had planned—before the
encounter to use the gun if the interaction unfolded in a particular way.
The evidence regarding the incident at the mission the next day also lends
credence to conclusions the other evidence supports regarding planning, and it provides a
basis upon which the jury could have logically inferred a motive. In both cases the
defendant shot at the person who was walking away from him. It is logical to conclude
that in both instances the defendant had planned to approach a weaker victim, demand
something, then shoot the victim if the victim refused defendant’s demands. (See Evid.
Code, § 1101, subd. (b) [allowing the use of other acts to show plan and motive].) While
both parties suggest there is very weak evidence of a solid motive here, under these facts
the evidence is not non-existent: defendant was motivated to shoot his victims if they did
not give him what he wanted. Courts have upheld first degree murder convictions with
far more elusive evidence of motive. (See Edwards, supra, 54 Cal.3d at p. 814 [stating
that while the motive was “elusive . . . [a] senseless, random, but premeditated, killing
supports a verdict of first degree murder”].) Even a “lack of a discernable rational motive
does not preclude a conviction for first degree premeditated murder.” (See People v.
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Whisenhunt, supra, 44 Cal.4th at p. 202; Lunafelix, supra, 168 Cal.App.3d at p. 102 [the
law does not require a rational motive to support a finding of first degree murder].)
Defendant tries to minimize the import of the fact that he also shot at A.T. by
suggesting the real reason he shot A.T. was because A.T. threw water at him, and all this
suggests is that defendant was prone to fire his gun when angered. But this overplays the
significance of throwing the water and ignores a more significant common characteristic
the evidence suggests the two events share: in both cases, the defendant did not shoot the
victim while the victim was facing him, but he shot them in the back while they were
moving away from him.
This brings us to the third Anderson factor: the manner of killing. The evidence
supports findings that after he had been out of the car for 50 seconds defendant fired a
shot at Urbina as Urbina was walking away from him. At the time, Urbina was
approximately 60 feet away from him. That is, even if Urbina and defendant had been
engaged in some form of confrontation before the shooting, at least a few seconds had
passed before defendant pulled the trigger the first time. Defendant then paused for eight
seconds as he walked back towards the car. Then, he fired four more shots. The location
of the defect in the fence running along the north side of the empty lot suggests the shots
were fired in the direction the defendant would have estimated the victim would have
been had he continued walking after the first shot.
This evidence supports a conclusion that the manner of killing reflects
premeditation and deliberation. The victim was shot in the back and not during a face-to-
face, heated, direct confrontation. (See Lunafelix, supra, 168 Cal.App.3d at p. 102
[“Throughout the activities prior to the actual shooting, the victim was retreating and
posing no threats”]; Miranda, supra, 44 Cal.3d at p. 87 [Unarmed victims and lack of
provocation leads to “an inference that an attack was the result of a deliberate plan rather
than a ‘rash explosion of violence’ ”]; Hawkins, supra, 10 Cal.4th at p. 956 [superficial
abrasions consistent with a fall and lack of evidence of a struggle contributed to finding
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of premeditation and deliberation]; see also People v. Romero, supra, 44 Cal.4th at p. 401
[that “defendant brought a gun to the video store where, without any warning or apparent
awareness of the impending attack” considered evidence of planning], Adcox, supra,
47 Cal.3d at p. 240 [“The manner of killing—a single fatal shot to the back of the head of
the unarmed victim from a distance of six to ten feet as he kneeled, baiting his
fishhook—further establishes that the shooting was conceived in advance”]; People v.
Brito (1991) 232 Cal.App.3d 316, 323 [“the manner of the shooting can support an
inference of preconceived design since Brito shot his unarmed victim in the back as he
was fleeing, which could suggest he had decided ahead of time he would shoot if the
victim did not comply with his demands”].)
The defendant did not stop at firing a single shot, but paused and decided to fire
four more shots. Both the number of shots and the pause suggest premeditation and
deliberation. (People v. Boyd (1985) 38 Cal.3d 762, 769-770 [“the deliberate manner in
which defendant acted, especially in firing five additional shots at the fleeing and
wounded victim, should be sufficient to justify an instruction on premeditation”]; People
v. Silva (2001) 25 Cal.4th 345, 369 [“The manner of killing—multiple shotgun wounds
inflicted on an unarmed and defenseless victim who posed no threat to defendant—is
entirely consistent with a premeditated and deliberate murder”]; Lunafelix, supra,
168 Cal.App.3d at p. 102 [manner supported premeditation and deliberation when, in part
“[t]he victim was disabled by the first one or two shots and his body,” then, after a pause,
the shooter fired two more shots].) “A theory that a person killed in a fit of rage is
undermined by proof that, after ample opportunity for reflection, the person decided that
continuing a violent attack was appropriate.” (Potts, supra, 6 Cal.5th at p. 1029; see also
People v. Streeter (2012) 54 Cal.4th 205, 244 [murderous acts that occur in “stages”
support a finding of premeditation and deliberation].)
That the first shot defendant fired may have been the fatal shot does not change
that the subsequent shots reflect a manner of killing in which defendant had considered
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the consequences and decided he wanted to make sure Urbina died. “[P]ostmortem
conduct can still be probative of a defendant’s state of mind before the fatal wounds were
inflicted.” (Potts, supra, 6 Cal.5th at p. 1029.) “A reasonable jury could have construed
these shots as an ultimately unnecessary coup de grâce to a fatal attack effected with a
calculated design to kill.” (Elliot, supra, 37 Cal.4th at p. 471.)
In trying to persuade this court that substantial evidence does not support a finding
of premeditation and deliberation, defendant does two things. First, he puts outsized
significance on factual differences between this case and other decisions that have
applied the Anderson factors. Second, he throws out alternative factual scenarios that he
suggests the jury could have—or even ought to have—found, functionally asking this
court to reweigh the evidence and credibility of witnesses, which we may not do.
(People v. Maury, supra, 30 Cal.4th at p. 403 [jury has the exclusive province to
determine credibility of a witnesses and the truth or falsity of the facts upon which a
determination depends].) We briefly provide an example of each argument tactic.
As an example of the first line of argument, the defendant argues that this case is
dissimilar to Alcala, supra, 36 Cal.3d at page 626, which the People cite for the
proposition shooting a lone, 83-year-old man, late at night reflects advanced planning. In
Alcala , the evidence supported findings that the defendant, an adult man, had taken a
small 12-year-old girl to a remote mountain ravine and killed her with a knife. (Id. at
pp. 614-617.) In upholding the first degree murder conviction, the Court reasoned, in
part, “when one plans a felony against a far weaker victim, takes her by force or fear to
an isolated location, and brings along a deadly weapon which he subsequently employs, it
is reasonable to infer that he considered the possibility of homicide from the outset.” (Id.
at p. 626.) We do not disagree that there are dissimilarities between the facts at issue
here and the facts in Alcala. But those dissimilarities do not change that the extent the
victim (and any other potential victim) here was vulnerable and the extent the location
was relatively isolated are relevant for purposes of looking at evidence of planning. All
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the differences between the two cases suggests is that the impact of the evidence may be
less than that of the evidence in Alcala. But a lesser degree of persuasiveness does not
mean the evidence has no impact or relevance.
As an example of the second line of argument, defendant tries to persuade us that
the evidence does not support findings that the area where the shooting occurred was
relatively isolated when that even took place. He then uses this assumed set of facts to
argue that “it cannot be assumed that Urbina was the target or that the shooting had
anything to do with him. Others in the area may have done something to provoke
appellant’s unconsidered or rash response. Urbina may have been hit by a stray bullet.”
But the jury could have weighed the evidence, witness credibility, and the seeming
strength of witnesses’ recollections of events and reasonably concluded that, in fact,
others were not around when defendant shot Urbina.
To support his argument that others were around defendant notes that—in addition
to the car R.M. and I.M. saw go by them on Church—Z.V. said she saw a car zoom by
her on Hunter. But the shooting happened at around 10 p.m. at night, I.M. estimated that
he saw the car that went by his home 20 seconds after the gun shots, and Z.V. estimated it
was probably “a minute or two” between when she heard the gun shots and saw a car
drive by. The jury could easily have placed not much significance on the second car
sighting, concluding it was just a car that happened to be driving by.
Next, defendant tries to support his argument that there were other people around
by pointing to R.M.’s testimony that she saw and heard others on the corner, and
Detective Alaniz’s testimony that he heard voices in the background of the Dos
Hermanos video with audio. With respect to R.M.’s testimony, she admitted on the stand
that she had not previously testified or told police she had seen others. Detective Alaniz
said she never told him this. And, with respect to his supposed testimony about hearing
voices, Detective Alaniz clarified that “you couldn’t distinctly tell that it was words, but
you could tell there was something going on outside.” Based on all of this, it would have
71
been reasonable to conclude that R.M. was not accurately remembering events of the
evening at the time of trial, and the commotion to which Alaniz referred was just the gun
shots.
What is more, a finding by the jury that the area was, in fact, relatively isolated—
and that R.M.’s recollection was not accurate—is supported by the video and
photographic evidence. The videos do not capture anyone walking around. Voices are
not captured on the interior video with the audio taken from the time of the shooting. The
only discernable type of sound is the hum of restaurant equipment and gun shots.
The jury could have looked at this evidence and reasonably concluded the
defendant did not interact with anyone else on the corner. (See Scott v. Harris (2007)
550 U.S. 372, 378-381 [declining to view facts in favor of a non-moving party when the
parties asserted differing facts on a motion for summary judgment, because there was a
video tape capturing events at issue and “[t]here are no allegations or indications that this
videotape was doctored or altered in any way, nor any contention that what it depicts
differs from what actually happened. The videotape quite clearly contradicts the version
of the story told by respondent and adopted by the Court of Appeals.” Also, concluding,
“[t]he Court of Appeals should not have relied on such visible fiction; it should have
viewed the facts in the light depicted by the videotape”].)
Additionally, we note the jury saw exhibits showing an aerial view of the scene of
the murder, the location of Urbina’s body, the location of I.M.’s and R.M.’s home around
a corner a block away from Urbina, and the various foliage and streetlights between
where Urbina’s body was and the M.s’ home. And the jury heard testimony of I.M. and
Z.V. regarding how it was dark and hard to see what was happening on the streets that
night. Looking at all of this together, the jury could have concluded the chance that R.M.
actually saw anyone standing over Urbina’s body was extremely low, and she was
misremembering events.
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The evidence here was sufficient to sustain a finding of premeditation and
deliberation.
VII
Correction of the Abstract of Judgment
The second jury found defendant guilty of first degree murder in violation of
section 187, a felony. The abstract of judgment identifies the crime as “felony murder in
the first-degree.” Defendant argues that the use of the term “felony murder” in this
context is an error and should be corrected. The People agree. We agree the abstract of
judgment is not correct.
“The felony-murder rule makes a killing while committing certain felonies murder
without the necessity of further examining the defendant’s mental state. . . . First degree
felony murder is a killing during the course of a felony specified in section 189, such as
rape, burglary, or robbery.” (People v. Chun (2009) 45 Cal.4th 1172, 1182.) Defendant
was not convicted of any of the felonies specified in section 189, nor was he convicted of
“felony murder.”
The trial court must correct the entry on the abstract of judgment to say “first
degree murder.” (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [“Courts may
correct clerical errors at any time, and appellate courts (including this one) that have
properly assumed jurisdiction of cases have ordered correction of abstracts of judgment
that did not accurately reflect the oral judgments of sentencing courts”].)
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DISPOSITION
We affirm the judgment. We direct the trial court to correct the abstract of
judgement in this case in accordance with our findings in part VII of the Discussion.
HULL, Acting P. J.
We concur:
MESIWALA, J.
WISEMAN, J.
 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
74