People v. Mercado CA2/3

Filed 4/28/23 P. v. Mercado CA2/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B322524
Plaintiff and Respondent, (San Bernardino County
Superior Ct. Nos.
v. FVI17002214,
FVI17002215)
REYNA MERCADO, et al.,
Defendants and Appellants.
APPEALS from a judgment of the Superior Court of San
Bernardino County, Tony Raphael, Judge. Remanded for
resentencing.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant Reyna Mercado.
Christopher Nalls and Robert Booher, under appointment
by the Court of Appeal, for Defendant and Appellant Danielle
Cummings.
Rob Bonta, Attorney General, Lance E. Winters, Assistant
Attorney General, Charles Ragland, Senior Assistant Attorney
General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________
Reyna Mercado (Mercado) and Danielle Cummings
(Cummings) (collectively defendants) were jointly tried for the
killing of 12-year-old Makiya W. The trial took place in front of
two juries. At the conclusion of trial, one jury found Mercado
guilty of murder in the first degree (Pen. Code, § 187, subd. (a);
count 1)1 and shooting at an inhabited dwelling (§ 246; count 2).
The other jury found Cummings guilty of the same counts.
On appeal, defendants contend: (1) substantial evidence
does not support the juries’ verdicts as to the first degree murder
counts; and (2) remand for resentencing on count 2 is necessary
because of the trial court’s erroneous application of the merger
doctrine, and for the trial court to consider recently enacted
Senate Bill No. 567 (2020–2021 Reg. Sess.) and Assembly Bill No.
124 (2020–2021 Reg. Sess.).
We affirm the verdicts and remand the matter for
resentencing as to count 2 only.
1All subsequent statutory references are to Penal Code
unless otherwise specified.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. People’s case
A. Events leading up to encounter at DD’s Discounts
In April 20172 , Christopher Hicks (Hicks) and Cummings
became acquainted while working at the same retail department
store. At the time, Hicks was in a relationship with Maesha
McCullers (McCullers), and they resided together in a house on
Monaco Drive (the Monaco house) in Victorville. There were
three additional adults and six minors (including Makiya)
residing in the Monaco house.3
Sometime in May, McCullers began to suspect Hicks of
infidelity. By going through Hicks’s cellphone records and
Facebook account, McCullers learned of Cummings’s existence
and initiated contact with her through Facebook. Using
Facebook, McCullers also began communicating with Anthony
Pitts (Pitts), the person Cummings identified as her “significant
other” on Facebook. McCullers also contacted Pitts’s mother on
Facebook.
McCullers and Cummings eventually spoke over the
telephone wherein Cummings maintained that her relationship
with Hicks was strictly platonic. Shortly after this conversation,
McCullers discovered a cellphone hidden in Hicks’s backpack.
Hicks reported that Cummings had given him the cellphone so
2 Because the underlying events took place in 2017, all
subsequent date references are to that year unless otherwise
specified.
3 McCullers was Makiya’s mother. At the time of Makiya’s
death, both individuals were approximately the same height and
had the same hair style.
3
that they could communicate surreptitiously. This information
angered McCullers and led to an exchange of text messages
between McCullers and Cummings. In this exchange, McCullers
told Cummings that she would fight Cummings and “beat her
ass.” Cummings continued to deny a sexual relationship with
Hicks, and expressed anger at McCullers’s accusations with
messages like: “Girl, he’s lying. IDGAF. Now I’m tired of yo ass
harassing me. Shit, I didn’t put that shit in there. Tell that
muthafucka stop lying.” Over text message, McCullers reiterated
her desire to fight Cummings and provided Cummings with the
address to the Monaco house as an invitation to fight.
In late May, McCullers requested that Hicks move out
given his infidelity. Cummings came to the Monaco house to pick
up Hicks and his belongings, and together they drove to a motel.
Cummings and Hicks began to reside together at the motel.
Around this time, Hicks became acquainted with Mercado, who
Cummings identified as her “sister” and best friend. Hicks and
Mercado became Facebook friends, and on several occasions,
Mercado drove Hicks to the AM/PM convenience store located
next to the Monaco house.
On the night of May 31, McCullers met Pitts at an
apartment in Adelanto. They smoked marijuana. Pitts then
showed off two firearms in his possession, namely a handgun and
a sawed-off shotgun.4 McCullers took a number of photographs of
4 In court, McCullers identified the murder weapon as the
same shotgun Pitts displayed to her that night. Hicks testified
that Cummings told him that she had purchased a sawed-off
shotgun for Pitts with money she had received from a tax return.
Cummings denied purchasing the shotgun for Pitts.
4
the interior of the Adelanto apartment, believing that it was
where Cummings resided. McCullers described the interior as
“pretty nasty.”
Meanwhile, the dispute between McCullers and Cummings
continued to escalate over text message. On June 1, McCullers
sent a message indicating that she was at Cummings’s workplace
and was ready to fight.5 Cummings later responded: “Let’s go
there then. I know exactly where you stay, boo. You must not
know who tfk . . . y’all fucking with.” McCullers threatened to
report Cummings to child protective services and the county’s
housing authority based on the “nasty pictures” that she took of
the Adelanto apartment. Cummings demanded that McCullers
stop harassing her and contacting Pitts’s mother.
On or about July 3, Hicks and Cummings ended their
intimate relationship, and Hicks moved back to the Monaco
house. In late July, McCullers posted on Facebook photographs
of the Adelanto apartment in order to embarrass Cummings.
This infuriated Cummings and she confronted Hicks about the
photographs at work. Cummings warned Hicks that unless
McCullers took down the unflattering photos, Cummings “was
going to have her baby daddy come shoot up [the Monaco] house.”
Hicks testified that Cummings often threatened to have Pitts
come and shoot up the Monaco house whenever the ongoing
dispute between Cummings and McCullers flared.
At the end of July, McCullers posted on Facebook some
photographs of her enjoying an outing at a waterpark with Hicks.
5 McCullers testified that she was not in fact at
Cummings’s workplace on that date and that the message was a
bluff.
5
In response, McCullers received “like a thousand” messages from
Mercado through Facebook messenger.6 Hicks, who viewed these
messages, described their content as: “Our kids are going to get
up in the morning, they getting up for school. They are going to
wake up to Jesus. I’m going to cocktail your house. Kiss your
kids goodbye every time you leave to go to AM/PM because there
might be a chance you might not make it back.” Hicks confronted
Mercado about these messages and asked her why she was
getting involved. Mercado indicated that she was fed up with
Hicks and McCullers “double teaming” Cummings and that she
would no longer tolerate their poor treatment of Cummings.
Around this time period, the dispute between McCullers
and Cummings continued to escalate. McCullers boasted about
having sex with Hicks during the period when he was residing
with Cummings at the motel. Cummings in turn revealed that
she was having sex with Hicks during the period in May when
she claimed that they were in a strictly platonic relationship. In
another message, Cummings indicated that Hicks would
eventually return to her and that she “will always win” by
“playing dumb.”
At one point during their ongoing text message exchange,
Cummings indicated her knowledge that McCullers had
purchased a gun. Cummings wrote: “You purchased a gun
because you feel I harass you, which I don’t. Your husband baby
daddy, baby mama, whatever he is to you, told me it was for me.
[¶] Don’t you think you’ve done enough? Chris is back at home
6For purposes of this appeal, it is undisputed that Mercado
used the name of “Nechi Walker” for her Facebook profile.
6
with you. Why am I still being harassed? Why is my life so
important? You’re doing better then?”
On August 2, Cummings sent McCullers the following text
message: “All y’all can consider yo self dead . . . . Fuck y’all. I
don’t need to get my nd. I’ll call my daddy, in you not the only
one with a gun. I will shoot your fat ass. Fuck y’all. Get
whoever. It’s on now.” 7
As the dispute between Cummings and McCullers
escalated over text message during the time period of late July to
early August, Mercado continued sending more messages to
McCullers over Facebook. One message stated: “Bitch, I’ll have
your own bd set you up. I’m with that killing shit bitch. Fuck a
fight.” Another message: “How would you feel to get that call
knowing you no longer have a baby daddy. He was found dead at
AM/PM. Too bad for your raggedy ass kids fat bitch.” Mercado
also wrote:
“San Bernardino is what I am. I can show it to you too.
That’s why when I come, it’s not going to be pretty. I’m
going to come with the whole San Bernardino . . . . [¶] And
like I said, you f* with my sister, you’re f* with me. So it
didn’t matter if I said something or pulled up with her
when I come. I’m coming b*. [¶] I’ll f*around and throw a
7 McCullers testified that she was not familiar with the
term “nd” and did not know what the term was referencing. She
later testified that she understood the term “bd” to stand for
“baby daddy.”
7
whole fire. What do you call those things? Cork screws.
Yep, one of those do your f.” 8
Additionally, Mercado wrote: “And I pretty sure y’all got kids and
dogs. So let’s not have to go there. Don’t reply talk’n shit either.
We finna fade all day or don’t say shit back. Leave my sis alone
before you wind up missing bitch. On my life you better not take
me there. You don’t know me at all first.” 9
McCullers testified that she understood the term “pull up”
as used in the context of Mercado’s message to mean that
Mercado was “going to pull up to my home and kill me.”
McCullers admitted that the term “pull up” could also mean
“come to” or “come over.”
B. Encounter at DD’s Discounts
On August 9, McCullers and Makiya went to DD’s
Discounts retail store to buy Makiya a backpack. McCullers saw
Cummings and Mercado, along with their respective children,
doing their own shopping. McCullers pointed them out to the
store manager, with whom McCullers had a friendly relationship.
Sensing a possible altercation, the store manager persuaded
McCullers not to start anything because Makiya was present.
McCullers left the store and drove to the Monaco house, which
8 McCullers testified that Facebook messenger will
sometimes replace profane words with the first letter of the word
and an asterisk.
9 McCullers testified that she understood the term “finna”
to mean “about to,” and the term “fade” to mean something akin
to causing bodily harm, shooting, and killing. McCullers further
testified that she understood the term “missing” to mean “to
become dead.”
8
was located less than a mile away. Once home, she dropped off
Makiya and enlisted the assistance of two women who were there
at the time. The group drove back to DD’s Discounts to confront
Cummings and Mercado.
Upon entering the store, McCullers located Cummings and
Mercado at the register and asked, “Do we still have an issue?”
Mercado indicated that she wanted to secure the children in her
car before anything took place. McCullers assented to this
request and went back outside with her two companions, while
Cummings and Mercado remained in the store. The store
manager observed that while inside the store, Mercado was
yelling and throwing her hands about, and appeared angry over
the situation. At one point, the store manager heard Mercado
state that if McCullers intended to do “ ‘some bitch shit,’ ” then
“they were going to pull up on her.” Another employee of DD’s
Discount testified that she heard Mercado state: “ ‘I’m not going
to go out there because I have my kids. I’ll just get her later.’ ”
Cummings then made a telephone call, which the store
manager suspected was to law enforcement based on snippets
that she overheard. The store manager sent McCullers a text
message warning her that law enforcement was on its way.
McCullers and her friends left DD’s Discounts at approximately
5:15 p.m. 10
10 When McCullers was called as a witness by Cummings in
the defense’s affirmative case, she testified that at 5:17 p.m.,
after she left DD’s Discounts, she received a text message from
the store manager warning her that defendants were “coming to
y’all when they drop the kids off.” McCullers testified that she
did not take the warning seriously because defendants had
9
After McCullers and her friends left DD’s Discounts, she
received a voicemail from a person who sounded like Mercado.
The voicemail stated: “ ‘No one’s gonna fight in a store where
there’s a bunch of cameras. I don’t get down that way. I told you
that I’m gonna catch you unexpectedly.’ ” A text message from
the same telephone number followed the voicemail, stating:
“ ‘You did that. My turn.’ ”
Around 6:00 p.m., Jeanette Hodges (the girlfriend of
Mercado’s brother) received a telephone call from Mercado.
During this conversation, Mercado told Hodges about the
encounter at DD’s Discounts, and stated that Mercado and Pitts
“were going to go shoot up that house.”11
C. The purchase of ammunition at Turner’s
Outdoorsman
At approximately 7:55 p.m., Cummings, Mercado, and Pitts
entered the Turner’s Outdoorsman (Turner’s) sporting goods
store in Victorville. A cashier who was working that evening
observed that the three individuals were laughing and talking to
threatened to “pull up” on two or three occasions previously, and
nothing happened. Furthermore, it seemed to McCullers that
Cummings appeared “a little spooked” when approached at DD’s
Discounts, and McCullers concluded at the time that Cummings
“had a lot of mouth through the text messages and Facebook
stuff, but in person she looked spooked.”
11 This evidence came out at trial through an audio
recording of an interview that Hodges had with the San
Bernardino Sheriff’s Department shortly after the shooting. At
trial, Hodges testified that she did not remember making this
statement during the recorded interview.
10
each other upon entering the store. As they entered, Pitts
approached the gun counter while Cummings and Mercado went
to the aisle that held mace and pepper spray. Pitts retrieved two
boxes of shotgun shells from the gun counter and approached
Cummings and Mercado, who were “laughing and talking about
something amongst each other.” Pitts handed the two boxes of
ammunition to Cummings, who in turned placed the ammunition
in front of the cashier along with some pepper spray. As the
cashier was ringing up the items, the cashier heard Mercado say
aloud that she would rather “pop a cap” in someone instead of
using a taser. Both Cummings and Mercado laughed at this
comment. Once the cashier rang up the items, Cummings
realized that she did not have enough money to purchase the two
boxes of shotgun shells and the pepper spray that she had
selected, so she opted for a different pepper spray that was less
expensive. Cummings paid for the items with cash. The group
left the store at 8:07 p.m.
D. Shooting of Monaco home and aftermath
That night, at approximately 8:22 p.m., Patrisha Davis
(McCullers’s mother) was in the kitchen of the Monaco home.
She heard a “loud blast” and saw a nearby sliding door shatter.
She heard several “booms” after that initial blast and upon
entering the living room, she observed shattered walls and items,
and large holes through the front picture window that faced the
street. She saw Makiya lying on the ground moaning, and could
see blood seeping through Makiya’s shirt.12 According to Davis,
12A coroner for the county of San Bernardino testified that
Makiya’s cause of death was a shotgun wound to her chest and
11
at the time of the shooting, the curtains were drawn in front of
the picture window. However, because the curtains were sheer
and a lamp was illuminated inside, it was possible to see people
standing or walking by the window from the outside.
Danielle Council (another adult residing in the Monaco
home) testified that at approximately 8:20 or 8:22 p.m., she was
sitting on a couch in the living room with her infant next to her in
a stroller. Makiya was seated nearby on another couch. Council
heard a “bang” that she initially believed was a firework. Makiya
stood up just as a second shot was fired through the picture
window in the living room. Council heard bullets whizzing
through the room and glass shattering. Council recalled hearing
a total of four shots. Council glanced outside, saw a white car
parked across the street, and a silhouette of a person moving
away from the house.
Ca. H., (12-years-old at the time of trial) testified that she
was in the Monaco home at the time of the shooting. After the
gunshots stopped, she ran upstairs, looked through a window,
and saw a man who was wearing a dark mask running toward a
white car. Once the man was inside the car, it sped off. Ca.’s
testimony at trial differed from her interview with law
enforcement, which took place shortly after the shooting. During
that interview, Ca. stated that after the shooting, she ran outside
and saw a man and a white car. Ca. did not mention during the
interview that she ran upstairs or saw the man in question
wearing a mask.
abdomen, and that she died minutes after she was shot. Shotgun
pellets were found in her liver, lungs, and spleen.
12
Ch. H., who was 11-years-old at the time of trial, testified
that on the evening of the shooting, she was on the stairs of the
Monaco home with her sister Ca. Ch. recalled hearing four shots
and seeing Makiya on the ground twitching. After the shooting
ended, Ch. testified that she went upstairs and saw a white car
leave and “smoke.” On redirect, Ch. testified that she saw the
white car from downstairs (not upstairs) and that the smoke was
coming from the car after it left. Ch.’s testimony at trial differed
from her statement given to law enforcement shortly after the
shooting. In her statement, Ch. indicated she was upstairs when
she first heard the gunshots and ran to her mother’s room
because she thought the sounds were of fireworks.
Hicks and McCullers were at their sons’ football practice
when they learned of the shooting. Hicks called Cummings and
accused her of bringing Pitts over to shoot at the Monaco home.
Cummings denied any knowledge of a shooting and indicated to
Hicks that she was at home asleep. Hicks did not believe her, in
part, because the background noise of their telephone call
sounded like she was in a moving vehicle. Over the course of
several more phone calls to Cummings, he heard the voices of
Pitts and Mercado in the background.
Alexandria Whitaker, who lived at the same apartment
complex as Mercado and considered herself Mercado’s best friend,
testified that on the evening of August 9, Mercado asked her to
babysit Mercado’s children. Sometime after 8:00 p.m., she
observed Mercado returning to the apartment building in her car
with Cummings and Pitts. Mercado appeared unusually subdued
and quiet, and Cummings appeared upset and afraid. About an
hour later, Pitts went to Whitaker’s apartment and requested to
use her car. She agreed and Pitts returned approximately 15
13
minutes later to return Whitaker’s keys. Whitaker described
Pitts’ demeanor as “weird and panicky” during this interaction.13
Around midnight, Mercado and Cummings drove to
Hodges’s home to pick Hodges up for a trip to Las Vegas. The
purpose of the trip was to pick up Mercado’s niece who was
staying in Las Vegas. According to Hodges, the group drove to an
apartment complex and waited three hours in the parking lot.
After waiting three hours, the group decided to leave and return
home. Once they crossed the state line back into California, they
were picked up by the San Bernardino County Sheriff’s
Department.
On August 10, the day after the shooting, officers searched
Whitaker’s car. Inside the trunk, they found a shotgun resting on
top of a bag containing ammunition. A criminalist for the
Sheriff’s Department tested the shotgun found in Whitaker’s
trunk and confirmed through ballistics analysis that it was the
weapon used to fire the shotgun shells recovered from the scene
of the shooting. Further analysis confirmed that the recovered
13 In the presence of the Mercado jury only, Whitaker
testified that between the hours of midnight and 2:00 a.m. on
August 10, Mercado informed her that a shotgun was in her car.
When asked more questions about Mercado’s statement,
Whitaker testified that she was confused and that someone else
(not Mercado) told her a gun was in her car. When asked who
told her about the gun, Whitaker refused to answer the question
indicating “it’s irrelevant to the situation.” Whitaker testified
that she did not bother to call the police upon learning that a gun
was in her car because she knew that officers would be on their
way to search her car.
14
shells matched the brand and gauge of ammunition purchased by
Cummings at Turner’s on the night of the shooting.
II. Cummings’s testimony
Cummings testified that her friendship with Mercado dated
back to when she was 11 years old. Although Mercado was not
related to her biologically, she referred to Mercado as her “sister.”
As to Pitts, Cummings first met him in 2015 and had a
child with him in 2016. Their relationship was “off and on”
through 2017. Throughout their relationship, Pitts was
physically abusive toward Cummings. The physical abuse
consisted of punching, choking, hitting her with a firearm, and
threatening her life. According to Cummings, Pitts would become
abusive “when things didn’t go his way or he didn’t get what he
wanted.” Pitts constantly remarked: “I’m 5 Crip” when he
threatened Cummings with physical harm.
Initially, Pitts physically abused or threatened Cummings
in private. However, toward the end of 2016, Pitts began to
engage in abusive behavior on a daily basis and frequently in
front of others. Cummings testified that Pitts physically
threatened her family, including cousins who attempted to
intervene on her behalf. Cummings resided with Pitts until May
2017, when Cummings moved out and began living with her
mother.
In early June, Cummings and Hicks began residing
together at a motel. Cummings testified in late June, she ran
into Pitts in the parking lot of a county agency. Pitts forced her
(and their child, who was with Cummings at the time) into his
car. Pitts interrogated her at gunpoint about her relationship
with Hicks. She lied to Pitts and convinced him that her
relationship with Hicks was strictly platonic.
15
As to her dispute with McCullers, Cummings testified that
even though McCullers constantly harassed and baited her over
social media, she was frightened of McCullers and had no desire
to engage in any type of physical altercation with McCullers.
Cummings maintained that she was raised not to fight with
people and in fact had tried on multiple occasions to deescalate
the situation by refusing to fight. McCullers had threatened
Cummings multiple times over text message, but deleted all of
these messages before sharing screenshots with law enforcement.
When asked about the text message that she had sent on
August 2 that contained the threat, “y’all can consider [yourself]
dead,” Cummings denied sending that particular text.
Cummings testified that on that date, she received a text from an
anonymous person threatening to “shoot up” Pitts’s “hood.”
When Pitts saw this anonymous text, he suspected it came from
McCullers and Hicks, and sent McCullers that threatening text
message while pretending to be Cummings. Cummings
acknowledged that she had written every other text message that
McCullers had attributed to her as the sender.
When asked about whether she had made threats to Hicks
about having her baby daddy shoot up his home, Cummings
denied ever making such statements. Cummings testified that in
the months leading up to the shooting, Pitts would become
enraged every time he learned that McCullers contacted his
mother and would take his anger out on Cummings through
physical abuse.
Cummings testified that on August 9, after her initial
encounter with McCullers at DD’s Discounts, she called 911 while
McCullers waited outside in the parking lot. A recording of the
911 call was played to both juries and during this recording, a
16
voice is heard stating: “No. I’m going to their house today. I’m
not about to let this slide. No. No. No. I’m going there. No.”
Cummings testified that Mercado was the person who made that
statement.
After the encounter at DD’s Discounts, Cummings and
Mercado returned to Mercado’s apartment. Pitts was at the
apartment babysitting. When Cummings recounted the events of
the afternoon, Pitts became angry because he reasoned that there
would be no reason for McCullers to challenge Cummings to a
fight unless Cummings was still in an intimate relationship with
Hicks. Pitts pulled out his shotgun, placed it at Cummings’s
head, and forced her to go fight McCullers. Cummings began to
cry, went downstairs with Pitts and Mercado following her, and
the three individuals immediately entered Mercado’s car.
Cummings denied seeing Pitts enter the car with the shotgun he
had been holding to her head.
Pitts, Cummings, and Mercado left the apartment around
7:00 p.m. and drove to Turner’s sporting goods store. Mercado
drove while Cummings sat in the front passenger seat and Pitts
sat in the back seat. Cummings testified that the purpose of
going to Turner’s was to buy pepper spray to assist her in
fighting McCullers. While at Turner’s, Pitts handed her two
boxes of ammunition and directed her to buy them for him
because they were on sale. Cummings did not object to
purchasing the ammunition because she was afraid that Pitts
would physically hurt her.
After the group left Turner’s, they proceeded to the Monaco
house. Upon arriving at the Monaco house, Cummings informed
Pitts that no one was home. Pitts exited the car, and to
Cummings’s surprise, began shooting at the house. After the
17
shooting, they returned to Mercado’s apartment. Pitts packed
some clothes for himself and Cummings packed a bag for their
child. Mercado drove Cummings, Pitts, and the child to the
residence of Pitts’s mother (in Redlands) and dropped off Pitts
and the child.
From Redlands, Mercado and Cummings drove to Hodges’s
residence to pick her up for their planned trip to Las Vegas.
After waiting several hours for Mercado’s niece in Las Vegas,
they drove home and were pulled over by law enforcement before
reaching Victorville.
Cummings testified that when she first spoke to officers,
she denied any knowledge about the shooting. In a subsequent
interview, however, Cummings told officers that Pitts had forced
her to go to the Monaco house to fight. Cummings explained that
she initially lied because she was fearful that Pitts would kill her
for cooperating.
Cummings testified at trial that she had no intention of
killing anyone, never agreed to kill anyone, and never agreed to
shoot at the Monaco house.
III. Proceedings below
On September 11, 2017, the People charged Pitts,
Cummings, and Mercado with the following: murder (§ 187, subd.
(a); count 1); and shooting at an inhabited dwelling (§ 246; count
2). Pitts entered a plea and received an indeterminate sentence
of 50 years to life, with a determinate term of six years stayed.
Over the course of several months in 2019, defendants were
jointly tried before two separate juries. As to count 1, the trial
court instructed the juries that with regards to first degree
murder, the People were proceeding under two theories of
liability: aiding and abetting first degree murder, and conspiracy
18
to commit first degree murder. To convict defendants of first
degree murder under either theory of liability, the People were
required to prove beyond a reasonable doubt that defendants
harbored express malice and that they acted willfully,
deliberately, and with premeditation. 14
The Mercado jury found Mercado guilty of murder in the
first degree and shooting at an inhabited dwelling, and the
Cummings jury found Cummings guilty of the same counts.
At the March 2021 sentencing hearing, the trial court
began with an indicated sentence for Cummings: 25 years to life
imposed for count 1, and the upper term of seven years imposed
and stayed for count 2. The trial court explained that it was
imposing and staying sentence on count 2 pursuant to the
“Merger Doctrine.” It listed as aggravating factors the violence
and great bodily harm, the high degree of cruelty, viciousness,
callousness, the vulnerability of the victim, and the planning
involved, including going to Turner’s before the shooting.
Counsel for Cummings objected on the grounds that under the
merger doctrine, the trial court should impose no sentence at all
on count 2 because the act of shooting into an inhabited dwelling
merged into the act of murder. After taking a break to research
the matter, and after further discussion with Cummings’s counsel
and the prosecution, the trial court concluded that the two acts
had in fact “merged” and sentenced Cummings to: an
indeterminate term of 25 years to life imposed on count 1, and a
14 We omit any discussion of the trial court’s instructions as
to count 2 because those instructions are not relevant to the
issues raised in the present appeal.
19
determinate, aggravated term of seven years imposed and stayed
on count 2.
As to Mercado, the trial court pronounced the same
sentence and listed largely the same factors in support of
selecting the aggravated term on count 2.
Defendants filed timely notices of appeal from the final
judgments.15
DISCUSSION
I. Substantial evidence supports the first degree
murder convictions as to both defendants
A. Standard of review
“In reviewing the sufficiency of the evidence to support a
jury’s verdict finding a defendant guilty of a criminal offense, we
apply the substantial evidence standard of review.” (People v.
Johnson (2019) 32 Cal.App.5th 26, 57.) Under this standard of
review, the appellate court must review the “ ‘whole record in the
light most favorable to the judgment below to determine whether
it discloses substantial evidence—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. Cuevas (1995) 12 Cal.4th 252, 260–261.)
“Further, ‘the appellate court presumes in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.’ ” (People v. Catlin (2001) 26 Cal.4th
15In August 2022, by order of the Supreme Court,
defendants’ appeals were transferred from the Fourth District
Court of Appeal, Division Two, to the Second District Court of
Appeal.
20
81, 139.) The substantial evidence standard applies whether
direct or circumstantial evidence is involved. (Ibid.)
“Although it is the jury’s duty to acquit a defendant if it
finds the circumstantial evidence susceptible of two reasonable
interpretations, one of which suggests guilt and the other
innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable doubt.”
(People v. Kraft (2000) 23 Cal.4th 978, 1053–1054.) “ ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant
a reversal of the judgment. ” ’ ” (Id. at p. 1054.) A reviewing
court will not reweigh the evidence or reconsider witness
credibility. (In re E.H. (2003) 108 Cal.App.4th 659, 669.)
B. The record contains substantial evidence of
defendants’ express malice
1. Applicable law
“A conviction for murder requires the commission of an act
that causes death, done with the mental state of malice
aforethought (malice). (§ 187.)” (People v. Gonzalez (2012) 54
Cal.4th 643, 653.) “A killing with express malice formed
willfully, deliberately, and with premeditation constitutes first
degree murder.” (People v. Beltran (2013) 56 Cal. 4th 935, 942.)
“Malice is express when there is manifested a deliberate
intention to unlawfully take away the life of a fellow creature.”
(§ 188, subd. (a)(1).) “Express malice is an intent to kill.” (People
v. Gonzalez, supra, 54 Cal.4th at p. 653; see also People v. Polley
(1983) 147 Cal.App.3d 1088, 1092 [“[m]alice is express when
there is manifested an intention unlawfully to kill a human
being”].)
21
“ ‘All persons concerned in the commission of a crime, . . .
whether they directly commit the act constituting the offense, or
aid and abet in its commission, . . . are principals in any crime so
committed.’ ” (People v. McCoy (2001) 25 Cal.4th 1111, 1116–
1117.) Thus, “an aider and abettor’s mental state must be at
least that required of the direct perpetrator.” (Id. at p. 1118.) To
prove conspiracy to murder, the prosecution must prove that
“ ‘[e]ach of the persons specifically intended to enter into an
agreement with one or more other persons for that purpose’ and
that ‘[e]ach of the persons to the agreement harbored express
malice aforethought, namely a specific intent to kill unlawfully
another human being.’ ” (People v. Garton (2018) 4 Cal.5th 485,
516.)
In People v. Anderson (1968) 70 Cal.2d 15, 26, the Supreme
Court identified three categories of evidence courts have used to
assess deliberation and premeditation: (1) planning activity, or
facts about how and what the defendant did before the killing
that show the defendant was engaged in activity directed toward,
and intended to result in, the killing; (2) motive, or facts about
the defendant’s conduct from which the jury could reasonably
infer a reason to kill; and (3) the manner of killing, or facts
showing that the manner of killing was according to a plan or
preconceived design. Notably, the Anderson factors are
descriptive, not normative. (People v. Thomas (1992) 2 Cal.4th
489, 517.) In other words, the “Anderson analysis was intended
as a framework to assist reviewing courts in assessing whether
the evidence supports an inference that the killing resulted from
preexisting reflection and weighing of considerations.” (Ibid.)
22
2. Analysis as to Cummings
Cummings argues that substantial evidence does not
support her conviction for first degree murder because there was
insufficient evidence that: (1) she harbored an intent to kill; and
(2) she knew of Pitts’s intent to kill.
There was ample evidence adduced at trial to support the
jury’s findings as to both elements.
Cummings made several statements from which the jury
could reasonably conclude that she harbored an intent to kill.
After McCullers posted embarrassing photographs of the interior
of Cummings’s home, Cummings threatened Hicks that unless
the photographs were taken down, Cummings would have Pitts
shoot up the Monaco house. Hicks testified that Cummings made
this threat on several occasions, usually whenever the dispute
flared between Cummings and McCullers. Additionally, a week
before the shooting, Cummings sent McCullers a text message
explicitly warning McCullers that she should consider herself
“dead” because Cummings intended to “shoot” her “ass.”
Additionally, Cummings’s conduct on the evening of the
shooting demonstrated both an intent to kill and knowledge that
Pitts intended to kill. After the encounter with McCullers,
Cummings and Pitts (along with Mercado) went to Turner’s and
procured ammunition for a firearm that Cummings had
purchased for Pitts earlier. While at Turner’s, a witness saw
Cummings talking with Pitts and laughing. After purchasing the
ammunition, Cummings led Pitts directly to the Monaco house
(with Mercado driving) and waited for Pitts until he was done
shooting multiple rounds before helping him flee the scene. (See,
e.g., People v. Lee (2011) 51 Cal.4th 620, 636 [bringing loaded gun
to scene shows violence was considered].) At no point after the
23
shooting did Cummings attempt to render aid or contact law
enforcement. Instead, once back at Mercado’s apartment,
Cummings packed a bag for the child that she shared with Pitts
and assisted Pitts (and their child) in seeking refuge at Pitts’s
mother’s home in another city.
On appeal, Cummings argues that her threatening
messages to McCullers were simply part of a text message war
that no one (including McCullers) believed would escalate to
violence. Furthermore, argues Cummings, the fact that she
purchased pepper spray shows that she intended to fight on the
night of August 9 (and not kill). And, Cummings maintains, at
most the evidence showed that she knew Pitts intended to shoot
up the Monaco house, not that he intended to kill anyone. All of
these arguments were made to the jury at trial, and the jury
clearly rejected them. Cummings is asking this court to reweigh
the evidence, draw different conclusions from the reasonable ones
drawn by the jury, and reassess witness credibility. Given the
standard of review, we decline to do so. (In re E.H., supra, 108
Cal.App.4th at p. 669 [reviewing court will not reweigh the
evidence or reconsider witness credibility].)
Finally, Cummings argues that she was acting under
duress, which negates her intent to kill. Cummings points to her
own testimony describing the abusive relationship with Pitts, her
fear that Pitts would hurt her if she objected to the purchase of
ammunition at Turner’s, and her belief that unless she helped
Pitts evade law enforcement, he would kill her and their child.
But the jury was entitled to disbelieve Cummings’s self-serving
testimony and indeed, Cummings’s credibility was very much at
issue at trial. The prosecution presented evidence that
Cummings had a practice of lying when it benefitted her. For
24
instance, she told McCullers she would eventually win back
Hicks’s affections by “playing dumb.” After the shooting, when
Hicks called Cummings to ask why she had brought Pitts over to
shoot up the house, Cummings lied and said she was in bed.
And, when Cummings was first questioned by law enforcement,
she initially lied and denied any knowledge of a shooting.
3. Analysis as to Mercado
Mercado argues that substantial evidence does not support
her conviction for first degree murder because there was
insufficient evidence that: (1) she harbored an intent to kill; (2)
she knew of Pitts’s intent to kill; (3) she entered into an
agreement with Cummings to kill; and (4) she acted with
deliberation and premeditation.16
There was ample evidence adduced at trial to support the
jury’s findings as to all four elements.
First, Mercado made several statements from which the
jury could reasonably conclude an intent to kill. After McCullers
posted pictures of herself having fun at a waterpark with Hicks,
Mercado sent her several messages on Facebook stating that
McCullers’s children would wake up to Jesus, and that she
should kiss her children goodbye every time she went to the
AM/PM convenience store because she would not return. As the
16In footnote 15 of her opening brief, Mercado makes a
passing comment about how the trial court erroneously denied a
defense motion in limine to preclude the prosecution from
proceeding under a theory of implied malice second degree
murder. We need not reach the issue of whether the trial court’s
ruling was in fact erroneous as the juries convicted both
defendants of first degree murder.
25
dispute continued to escalate between Cummings and McCullers,
Mercado sent additional threats to McCullers such as: “ ‘I’m with
that killing shit bitch. Fuck a fight.’ ” She asked McCullers how
she would feel if Hicks “was found dead at AM/PM,” warned
McCullers to be careful of her “kids and dogs,” and promised
McCullers that unless she left Cummings alone, she would “wind
up missing.” Immediately after the encounter with McCullers at
DD’s Discounts and just hours before the shooting, Mercado left
McCullers a voicemail warning her that Mercado would come at
her unexpectedly, and that it was now Mercado’s turn. Mercado’s
statements were explicit and direct threats to the lives of
McCullers, Hicks, and their children from which the jury could
reasonably conclude that Mercado harbored an intent to kill.
Second, Mercado made statements that demonstrated her
knowledge that Pitts had an intent to kill. Just hours after the
encounter at DD’s Discounts, Mercado spoke with Hodges (the
girlfriend of Mercado’s brother) and revealed her plan that she
and Pitts were “going to go shoot up that house” in retaliation for
the confrontation initiated by McCullers. Hours after this
conversation, Pitts in fact did precisely what Mercado said he
would do—shoot up the Monaco house. The jury could reasonably
infer from this evidence that Mercado knew of (and shared)
Pitts’s intent to kill.
Third, there was overwhelming evidence from which the
jury could reasonably conclude there was an agreement between
Mercado and Cummings to commit murder in the first degree.
The jury heard evidence that defendants both made threats that
they would have Pitts shoot up the Monaco house, that
defendants jointly went with Pitts to purchase ammunition at
Turner’s and led him directly to the Monaco house afterward,
26
that defendants waited for Pitts to finish shooting before driving
him away from the scene, and that defendants assisted Pitts in
seeking refuge at his mother’s home. This evidence, coupled with
evidence that the defendants shared a close friendship, was more
than enough to support the jury’s finding of an agreement to kill.
Fourth, Mercado’s statements and conduct demonstrated
deliberation and premeditation. As to planning activity, the jury
heard evidence that Mercado planned to shoot up the Monaco
house with Pitts, that Mercado went with Pitts and Cummings to
purchase ammunition for a firearm already in Pitts’s possession,
that Mercado preferred to “pop a cap” rather than use a taser,
and that Mercado drove Pitts and Cummings to the Monaco
house directly from Turner’s under the cover of darkness. With
regards to motive, the jury heard evidence that Mercado was fed
up with the harassment and poor treatment that she believed her
best friend was receiving at the hands of McCullers and Hicks.
And with respect to the manner of killing, the jury heard
evidence that Makiya stood up as the second shot was fired into
the house, that Makiya was approximately the same height as
McCullers, and that a person standing outside could easily
discern shapes and figures through the sheer curtains. The jury
could reasonably infer from this evidence that Pitts shot at
Makiya believing she was McCullers, thus reflecting a
preconceived design of killing the person who Mercado saw as the
source of Cummings’s harassment.
Mercado argues that she was a mere bystander to the
dispute between Cummings and McCullers, that her threatening
messages amounted to nothing more than puffery and bravado,
that she merely accompanied Cummings and Pitts to Turner’s
and bought nothing herself, and that she had no idea that Pitts
27
would fire at the Monaco house. Mercado also points to
Cummings’s testimony at trial that Mercado knew of Pitts’s
violent tendencies, and thus acted under duress on the night of
August 9. Mercado, like Cummings, is asking this court to
reweigh the evidence and to second guess the jury’s credibility
determinations. For the reasons discussed above, we decline to
do so. (See In re E.H., supra, 108 Cal.App.4th at p. 669.)
In sum, the record before us contains more than substantial
evidence to support the juries’ verdicts as to count 1 for both
defendants.
II. Remand for resentencing on count 2 is necessary
because of trial court error and newly enacted
legislation
A. The trial court erroneously applied the merger
doctrine to count 2
Defendants contend, and the Attorney General agrees, that
the trial court erroneously applied the merger doctrine when
sentencing on count 2. We agree as well.
As the Supreme Court explained in People v. Chun (2009)
45 Cal.4th 1172, 1188, the merger doctrine developed as a limit
on the second degree felony-murder rule to “ameliorate [the
rule’s] perceived harshness.” Under the merger doctrine, “the
underlying felony must be an independent crime and not merely
the killing itself. Thus, certain underlying felonies ‘merge’ with
the homicide and cannot be used for purposes of felony murder.”
(Id. at p. 1189.) “When the underlying felony is assaultive in
nature, such as a violation of section 246 or 246.3, . . . the felony
merges with the homicide and cannot be the basis of a [second
degree] felony-murder instruction.” (Id. at p. 1200.)
28
As the parties correctly point out, the merger doctrine has
no application in this case because the trial court never
instructed the juries on the felony-murder rule as a theory of
liability for either first or second degree murder. Rather, the jury
was exclusively presented with aiding and abetting (first and
second degree murder) and conspiracy (first degree murder) as
theories of liability. Thus, the trial court erred by applying the
merger doctrine to count 2.
While the parties agree that the trial court erroneously
applied the merger doctrine, they disagree about how this court
should proceed with remand in light of this error. Defendants
argue that we should construe the trial court’s sentence on count
2 as proceeding under section 654, and thus we should remand
with instructions to the trial court to resentence based on
Assembly Bill No. 518 (2021–2022 Reg. Sess.), which recently
amended section 654 to allow for judicial discretion in selecting
the longer or shorter term when a defendant is convicted for the
same act under different provisions of the law.17 The Attorney
17 At the time of defendants’ sentencing in March 2021,
section 654, subdivision (a) required that a defendant who
committed an act punishable by two or more provisions of law be
punished under the provision that provided for the longest
possible term. (Stats. 1997, ch. 410, § 1). “Effective January 1,
2022, Assembly Bill No. 518 amended section 654, subdivision (a)
to permit an act or omission punishable under two or more
provisions of law to ‘be punished under either of such provisions.’
[Citation.] Thus, under newly amended section 654, a trial court
is no longer required to punish under the longest possible term of
imprisonment when multiple offenses are based on the same act
29
General argues that the record does not support such a
construction of the trial court’s ruling, and in any event, section
654 does not apply to the facts of this case.
We reject defendants’ request to construe the trial court’s
sentence on count 2 as having been imposed and stayed pursuant
to section 654. It is abundantly clear from the record that the
trial court stayed and imposed the seven-year sentence based on
the merger doctrine, and not pursuant to section 654. The trial
court stated multiple times that it was proceeding under the
merger doctrine, and explicitly recognized “that this is different
than [section] 654.” Because there is no basis in the record from
which to construe the trial court’s sentence as having proceeded
under section 654, we decline defendants’ request to remand with
instructions to resentence in light of Assembly Bill No. 518. To
the extent the Attorney General is asking this court to remand
with instructions for the trial court not to apply section 654, we
decline that request as well. It is up to the trial court at
resentencing to decide in the first instance whether section 654
applies (or does not apply) to the circumstances of this case. We
express no opinion on that matter.
B. Remand is required for the trial court to consider
Senate Bill No. 567 and Assembly Bill No. 124
Defendants contend, and the Attorney General agrees, that
the matter must be remanded for resentencing as to count 2 for
or omission. [Citation.] Section 654 ‘now provides the trial court
with discretion to impose and execute the sentence of either term,
which could result in the trial court imposing and executing the
shorter sentence rather than the longer sentence.’ ” (People v.
White (2022) 86 Cal.App.5th 1229, 1236.)
30
the trial court to consider Senate Bill No. 567 and Assembly Bill
No. 124, both of which apply retroactively under In re Estrada
(1965) 63 Cal.2d 740. As explained below, we agree as well.
Effective January 1, 2022, Senate Bill No. 567 and
Assembly Bill No. 124 amended section 1170, the determinate
sentencing law, “in several fundamental ways.” (People v. Flores
(2022) 73 Cal.App.5th 1032, 1038.) Both Senate Bill No. 567 and
Assembly Bill No. 124 apply retroactively to defendants whose
convictions were not yet final when the laws became effective.
(Flores, at p. 1039 [Senate Bill No. 567]; People v. Banner (2022)
77 Cal.App.5th 226, 240 [Assembly Bill No. 124].)
Senate Bill No. 567 “amended section 1170, former
subdivision (b) by making the middle term the presumptive
sentence for a term of imprisonment unless certain circumstances
exist.” (People v. Flores, supra, 73 Cal.App.5th at p. 1038.)
“Under this change in law, a trial court ‘may impose a sentence
exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts
underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at
trial by the jury or by the judge in a court trial.’ ” (Id. at p. 1038,
fn. 10.)
Assembly Bill No. 124 amended section 1170 such that the
trial court is now required to impose the lower term (unless
contrary to the interests of justice with aggravating
circumstances outweighing mitigating circumstances) if the
defendant’s own “psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or
31
sexual violence” was a “contributing factor in the commission of
the offense.” (§ 1170, subd. (b)(6)(A).)
Here, the trial court listed a number of different factors in
support of its decision to impose the upper term of seven years on
count 2 as to both defendants including the vulnerability of the
victim, the degree of cruelty, viciousness, and callousness
present, and the level of planning and sophistication.
Defendants, however, did not stipulate to these factors and the
trial court did not specify that it was finding these aggravating
factors true beyond a reasonable doubt, as now required by
Senate Bill No. 567. Additionally, the trial court did not
articulate on the record whether there was evidence (or not) that
psychological, physical, or childhood trauma contributed to the
commission of the underlying offense, which would militate in
favor of imposing the lower term under Assembly Bill No. 124.
Accordingly, remand is necessary for the trial court to
resentence on count 2 and apply Senate Bill No. 567 and
Assembly Bill No. 124.
32
DISPOSITION
Defendants’ sentences on count 2 are vacated, and the
matter is remanded for resentencing as to count 2 only. The
judgments of conviction for both defendants are otherwise
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
NGUYEN (KIM), J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
33