People v. Mixon CA2/2

Filed 4/27/21 P. v. Mixon CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B299457
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. TA143131)
RICARDO MIXON et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County. Patrick Connolly, Judge. Affirmed and
remanded with directions.
Brett Harding Duxbury, under appointment by the Court of
Appeal, for Defendant and Appellant Ricardo Mixon.
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant Deshun Armstead.
Steven Schorr, under appointment by the Court of Appeal,
for Defendant and Appellant Daniel Hill.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In an act of revenge following the shooting of their fellow
gang member, defendants and appellants Ricardo Mixon (Mixon),
Deshun Armstead (Armstead), and Daniel Hill (Hill) went into
rival gang territory and shot and killed two innocent victims.
Following a jury trial, defendants were each convicted of two
counts of first degree premeditated murder (Pen. Code, § 187,
subd. (a)).1 As to each defendant and both counts, the jury found
true the allegations that defendants had committed multiple
murders (§ 190.2, subd. (a)(3)); the murders were gang-related
(§ 186.22, subd. (b)(1)); and that a principal discharged a firearm
causing death (§ 12022.53, subds. (d) & (e)(1)). The jury further
found true the allegation that Mixon personally discharged a
firearm causing death (§ 12022.53, subd. (d)).
Armstead and Mixon were each sentenced to 70 years to
life in state prison plus two consecutive terms of life without the
possibility of parole (LWOP). Hill was sentenced to 50 years to
life in state prison plus two consecutive LWOP terms.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Defendants timely appealed their judgments of conviction,
raising a host of arguments. We agree with the parties that the
matter must be remanded to the trial court with directions to
amend the abstracts of judgment to reflect (1) no parole
revocation fine as to all three defendants, and (2) a joint and
several obligation to pay victim restitution. Also, the 10-year
gang enhancement imposed against Armstead is stricken. And,
the trial court is directed to order that errors in Hill’s probation
report be corrected and then transmitted to the California
Department of Corrections and Rehabilitation. In all other
respects, we affirm the judgments.
FACTUAL BACKGROUND
I. Prosecution’s Evidence
A. After Khiee Grant (Grant) was shot by apparent gang
rivals, Hill indicates his intent to take action in response
At around 4:45 p.m. on April 23, 2017, Grant was walking
in Los Angeles, when men in a car stopped alongside him and
asked if he was a gang member. Grant turned away from them.
One of the men shot Grant in the back and drove away.
Grant was an Athens Park Blood gang member2 known as
“Poppie.” The shooting occurred very close to 13111 South San
2 At trial, on direct examination by the prosecutor, Grant
denied that he was a gang member, denied that he knew anyone
who was an Athens Park gang member, denied that his moniker
was Poppie, and denied knowing any of the defendants. He
denied making various statements to the officers who spoke to
him at the hospital, but insisted he had been forthcoming with
them.
3
Pedro Street, an apartment complex commonly referred to as the
Villas. A parking lot at that complex was used as a hangout for
Athens Park gang members and a closely allied gang called
Miller Gangster Bloods.
Grant used his phone to call for an ambulance. Before
emergency personnel arrived, a bystander Grant supposedly did
not know stopped to assist, and drove Grant to the hospital. That
Good Samaritan, not Grant, called the police.
At 4:45 p.m., Los Angeles County Sheriff’s Department
Detective Gregory Richardson arrived at 129th Street and
San Pedro in response to a call regarding the shooting. An
individual at the scene told him that a bystander had driven the
victim to the hospital. Detective Richardson went to the hospital
and spoke to Grant, who did not identify who had shot him.
At 5:04 p.m., Hill texted someone to say his “‘little cousin’”
Poppie had just been shot, and that he intended to “go to the
AP’s.”3 The person advised Hill to “‘be safe’” and “‘watch [his]
surroundings.’”
B. That evening, defendants and other gang members
gather at the hangout near where Grant was shot
There are various surveillance cameras at the Villas, and
they recorded defendants and other gang members gathering in
the parking lot shortly after Grant was shot.
Armstead was wearing a red hoodie, white undershirt, long
white or gray basketball shorts, black shoes, and white socks.
3 “AP’s” is an acronym for Athens Park, but it is also used to
refer to the Villas.
4
His right sock was noticeably higher than the left (and would
remain so throughout the night, as documented by the videos).
Hill was wearing a black baseball hat, long-sleeved white
shirt, light blue jeans, and a black backpack. After arriving at
the lot, he changed his shoes.
Mixon was wearing a red hoodie, and black pants with
large white patches or symbols, and red shoes.
The video showed all three defendants mingling with
several other known gang members, including Thomas Speed
(Speed) and Daivon McKinley (McKinley). Speed was an Athens
Park member, was roughly 10 years older than Hill and Mixon,4
and had the level of seniority to organize a shooting.
Meanwhile, Los Angeles Police Department Officer Manuel
Armenta, who was assigned to monitor Athens Park and Miller
Gangsters, became aware of Grant’s shooting after seeing gang
members discussing it on social media. Officer Armenta had
encountered Grant multiple times in the past, both at the Villas
lot, and in the company of Athens Park gang members, including
Speed.5 Officer Armenta had also encountered Armstead and
Mixon in the past. Indeed, he had contacted Mixon while Mixon
was in the company of Speed, and had contacted Armstead while
Armstead was with Speed. Officer Armenta visited the Villas
almost daily in the course of his duties.
4 At the time of the murders, Mixon was 19 years old, Hill
was 20 years old, and Armstead was 24 years old.
5 At trial, Grant said that he did not know Speed.
5
Seeing the social media discussion of the shooting, Officer
Armenta and his partner went to the Villas lot to talk to the gang
members congregating there, gather information about Grant’s
shooting, and attempt to discourage a retaliatory shooting. The
officers arrived at the lot at around 8:30 p.m. and interacted with
approximately 18 men. Since it was such a large crowd, two
other officers arrived to assist. The interaction was videotaped
by the officers’ body cameras and surveillance cameras at the
scene, and audiotaped through the patrol car’s system. The
recordings, which included overlapping conversations, were
played at trial.
One video showed the officers interacting with all three
defendants.
The interactions between the officers and men at the lot
were conversational; there were no threatening comments or
conduct by anyone. The officers found no weapons on the men in
the lot. The officers received a request for assistance and
departed the lot at around 8:55 p.m. Before leaving, Officer
Armenta directed all the men to go home, but did not ask about
Grant’s shooting.
C. Hill drives Armstead and Mixon to commit the murders
At 8:57 p.m., Hill left the Villas lot in the Audi that would
be used in the murders. McKinley was driving, and Hill was in
the backseat. The four-door Audi had distinctive features
including that, when its doors were open, round lights were
projected on the ground.
6
At 9:17 p.m., Armstead and Mixon left the Villas lot in a
white Cadillac STS driven by Speed.6 Immediately behind the
white Cadillac was a dark blue Cadillac driven by yet another
gang member.
Meanwhile, victims Aaron Roseboro (Roseboro) and his
cousin Shakere Chambers (Chambers) were walking in front of
the townhouse where Roseboro lived in Los Angeles. Neither
Roseboro nor Chambers were involved with gangs. However,
they were young and Black, and Roseboro was wearing a Yankees
baseball cap, which was commonly worn by members of the East
Coast Crips gang. The townhouse was on a residential street
that had not been the site of gang activity for several years, but it
was in a territory claimed by the East Coast Crips.
At 9:39 p.m., the white Cadillac STS drove past the street.7
At 9:42 p.m., Hill, now driving the Audi, pulled up alongside the
6 Officer Armenta had seen Speed driving the Cadillac in the
past.
7 The shootings were videotaped by surveillance cameras in
the area, and the videos were played for the jury. Defendants’
faces could not be seen in the video recordings. Armstead and
Hill’s heads were covered by hoodies, and Hill remained behind
the wheel of the Audi. However, they were still identifiable by
body types and clothing. Mixon was dressed the same as earlier,
including the pants with patches. Armstead was dressed the
same as before, including the higher right sock. Hill’s long white
sleeves and dark hat were visible. The Audi’s distinctive round
lights were projected on the ground when defendants opened the
doors to commit the murders.
7
two victims and stopped. Armstead and Mixon exited the Audi
and immediately started firing. Mixon was holding a rifle and
fired numerous shots, striking Roseboro five times and Chambers
four times. Armstead was holding a handgun. He fired a single
shot into the living room of the townhouse. His gun then jammed
and he attempted to clear the jam. Armstead and Mixon
reentered the Audi, and Hill drove them away. Chambers died
immediately. Roseboro died a few minutes later.
D. Defendants return to the prior gathering site
At 9:46 p.m., the Audi was videotaped returning to the
Villas, with Hill still driving and Armstead and Mixon still
inside. Although their faces were not visible on the recorded
video, Hill’s long white sleeves and the red hoodies worn by
Armstead and Mixon were visible on the recording.8 The Audi
returned from the North, which was consistent with taking a
direct path from where the murders had occurred, approximately
1.3 miles from the Villas.
The Audi drove out of view of the video cameras for a few
seconds. Less than a minute later, defendants walked into view
of the video cameras from where the Audi had gone, still dressed
as they had been at the time of the murders, except Armstead
had removed his red hoodie. Mixon was still wearing a red
8 Discussing the videos, the trial court opined that it was
“clear” that the Audi’s driver was wearing a long-sleeved white
shirt when the car returned to the Villas lot. The trial court also
noted how specifically the shooters’ clothing matched what
defendants were wearing before and after the shooting at the
Villas.
8
hoodie and also seemed to be holding a red hoodie. Hill was
twirling a lanyard or cable, which he had been doing at the Villas
before the murders. At 9:53 p.m., the cameras recorded Speed
handing Hill what appeared to be a phone.
In the minutes before and during the murders, several calls
were placed between Mixon and Hill’s phones. Cell phone
location data showed both phones in the area of the murders at
the time of the murders.
E. Mixon’s police interview and admission to participating
in the revenge shooting
Mixon was arrested on April 28, 2017, and participated in a
recorded interview with Detectives Samuel Marullo and Sarah
Callian later that day. He said that he left the Villas in the white
Cadillac, and was dropped off so he could get in the Audi. He
claimed that he was directed to drive the car. In discussing why
he switched cars, he indicated that it was because he felt he
might be harmed if he refused, and expressed concern about
cooperating with the police. When asked why he committed the
shooting, Mixon asked if that was a “rhetorical question,” and
then answered that it was because of Grant’s shooting. Mixon
said that he arrived at the Villas right after Grant was shot and
saw him bleeding heavily before a friend took Grant to the
hospital. In describing seeing Grant bleeding, Mixon began
crying.
9
F. Hill’s police interview and admission that he drove the
Audi because he had been ordered to do so by older gang
members
On May 2, 2017, Hill was arrested and participated in a
recorded interview with Detectives Marullo and Callian.
During the interview, Hill was shown video taken at the
Villas before the murders, and he identified himself as the person
wearing a backpack and changing his shoes. He said that he got
in the car with others, went to a location on Mettler Street, and
socialized for roughly 30 minutes. Detective Marullo commented
on how upset he was that older gang members would put a
person like Hill “in that situation,” and told Hill that those senior
members were free and enjoying themselves while he was in
custody. Hill said that he was frightened that if he cooperated
with police, he would be attacked in jail, and explained that his
brother was currently in jail and had told him about how
dangerous it was.
After being shown video of the Audi returning to the Villas,
Hill described parking it out of sight of the cameras. Hill briefly
used ambiguous language (“I do believe I parked it, yes”), but
then confirmed that he had parked and exited the Audi. He did
not want to identify the men he was videotaped walking with.
He said that “older people” directed him to drive the car. He
claimed that he drove the Audi to the Villas from Mettler Street.
Detective Marullo explained that he knew Hill was lying about
merely driving the Audi from Mettler Street to the Villas.9
9 At trial, Detective Marullo explained that the time between
the murders and the Audi’s return to the Villas, as well as the
10
Detective Marullo said that, although they knew Hill was not one
of the shooters, they wanted to know the nature of his
involvement—whether he knew about the plan, and whether he
had been ordered to participate. Hill responded, “I was ordered
to do it. I was pushed to do it.”
G. Armstead’s arrest and fake identity
On July 3, 2017, Armstead was arrested in Las Vegas.
When stopped, he gave a fake name and presented a driver’s
license, credit card, and social security card in that fake name.
Prior to the arrest, Armstead had posted on social media that it
was “stressful to be on the run.”
Two videos found on Armstead’s phone (and presented at
trial) showed him holding a nine-millimeter handgun.
H. Gang evidence
Officer Armenta testified that the primary activity of the
Athens Park and Miller Gangster gangs was committing illegal
narcotics sales and violent crimes, including murder. Members of
those gangs had committed murders, and also been killed
themselves. At the time of Grant’s shooting, those gangs’ only
significant rival in the area was the East Coast Crips. Respect
was very important to gang members, and it was essentially
“required” for a gang to take violent revenge upon being attacked
by rivals, especially if the attack occurred in their own territory.
direction it came from before turning into the lot, was consistent
with having come directly from the murders. The timing and
direction were not consistent with driving to the Villas from the
location on Mettler Street mentioned by Hill in the interview.
11
Although every gang member was required to commit
crimes on behalf of the gang, only roughly 10 percent participated
in crimes as violent as drive-by shootings. As to such shootings, a
member might volunteer, but would be directed or authorized to
do so only if trusted to carry it out. When directed to commit a
crime, a gang member risked serious injury from his own fellow
gang members if he refused to carry out the assignment. A gang
member that cooperated with the police risked being harmed or
killed by other gang members.
Like Grant, Armstead was an Athens Park gang member.
His tattoos included one that indicated that he was a “Crip
Killer” and one that reflected an alliance between Athens Park
and Miller Gangsters. It was unknown whether he had the Crip
Killer tattoo before the instant murders. Photographs were
presented showing Armstead socializing with other gang
members at the Villas, and throwing signs that indicated
disrespect to the East Coast Crips. At some point after the
instant murders, Armstead got new tattoos, including one
showing alliance with Miller Gangsters.
Hill too was an Athens Park member. Prior to the instant
murder, he had Athens Park tattoos, and had been photographed
throwing a sign indicating disrespect to the East Coast Crips.
After the murders, he got several gang tattoos on his face,
including one that indicated he was a Crip Killer, and one
insulting the East Coast Crips.
Mixon was a Miller Gangsters member. After the murders,
Mixon got new Miller Gangster tattoos.
12
II. Defense Evidence
Armstead called his older sister to testify. She stated that
Armstead had been living in Las Vegas prior to the murders, but
would sometimes visit family in Los Angeles. She felt law
enforcement was blaming him for “something he didn’t do.”
Mixon and Hill called no witnesses.
III. Armstead’s Conduct during Trial
During trial, Armstead engaged in substantial misconduct,
some of which was observed by the jury.10 During the
prosecutor’s closing argument, it became apparent to counsel for
Armstead that Armstead was about to make an outburst. The
trial court excused the jury. Armstead directed profanity at the
prosecutor, said he no longer wished to be in the courtroom, and
confessed to committing the murders: “Athens Park Bloods,
dude, we’s did that. So what, dude. F*** these people, you all.”
Upon resuming the proceedings, the trial court informed
the jury that Armstead had chosen to be absent. The following
day, Armstead was permitted to return to the courtroom.
However, as soon as his attorney began his closing argument,
Armstead produced either feces or vomit and started rubbing it
on his face and the table. The jury was once again removed from
10 Prior to trial, Armstead was admonished by the trial court
for making sounds. Midway through trial, out of the jury’s
presence, he began directing slurs and using profanity towards
the prosecutor.
13
the courtroom before order could be restored and the proceedings
resumed.11
DISCUSSION
I. Defendants’ Batson/Wheeler12 Objections
Defendants contend that the prosecutor13 improperly
excluded four prospective jurors for being Black. Specifically,
Mixon argues that the trial court erred in failing to demand that
the prosecutor explain his reasons for dismissing those
prospective jurors, failed to evaluate whether the prosecutor’s
stated race-neutral explanations were sincere, and impermissibly
volunteered its own opinion as to possible race-neutral
justifications for excluding those four Black prospective jurors.
In that way, Mixon claims, the trial court utilized the wrong
Batson/Wheeler standard when evaluating defendants’ motion.
Mixon also asserts that the defense attorneys’ comments, when
considered together, amounted to an assertion that the
prosecutor had excused prospective jurors on account of gender,
11 The trial court opined Armstead’s behavior reflected
planning, not incompetency. Nevertheless, Armstead did receive
a mental health examination. The trial court also opined that
video of Armstead’s outburst showed Hill and Mixon reacting in a
manner that indicated that they had advance knowledge of his
planned disruption.
12 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).
13 There were two prosecutors. Like Hill and the People, we
refer to both as “the prosecutor” for ease.
14
and the trial court failed to properly demand that the prosecutor
respond to that claim. Finally, Mixon contends that the trial
court did not demonstrate even a “hint of concern” to its task, and
such “comfortable indifference” to constitutional requirements
compels reversal of the judgment as opposed to remanding the
matter for a new Batson/Wheeler hearing.
Armstead joins in Mixon’s arguments. He further contends
that the trial court failed to make a sincere and reasoned attempt
to evaluate the credibility of the prosecutor’s stated reasons for
excusing the Black prospective jurors. According to Armstead,
the trial court’s comments reflect that it had determined that the
prosecutor had dismissed the prospective jurors on account of
race, but nevertheless denied defendants’ motion. Finally, for the
first time on appeal, Armstead argues that some of the race-
neutral reasons cited by the prosecutor also applied to other
individuals on the panel.
Hill joins in Armstead’s and Mixon’s claims.
A. Relevant proceedings
1. Initial questioning of prospective jurors
Jury selection began on March 26, 2019. All of the
prospective jurors at issue in the instant claim were in the first
group of 18 jurors put in the box. The trial court questioned the
prospective jurors first. The prospective jurors were then
questioned by Mixon’s counsel, Hill’s counsel, and Armstead’s
counsel. Thereafter, the prosecutor questioned the 18 prospective
jurors.
During the course of his questioning, the prosecutor
directly questioned the prospective jurors sitting in seat
15
numbers 1, 6, 7, 8, 13, 14, 16, and 18. In addition, the prosecutor
invited responses from all of the prospective jurors. For example,
he asked general questions and then followed up if anyone raised
their hands. He asked a follow up question to Prospective Juror
No. 2406 and then asked other jurors if they agreed with his
comments. He also asked a follow up question to the prospective
juror in seat number 16 and then asked the other prospective
jurors if they agreed. Later, he asked the prospective juror in
seat number 18 a question and again asked the other prospective
jurors if they agreed.
2. Relevant Prospective Jurors14
Prospective Juror No. 3127, who is Black, stated that she
had been convicted of vandalism and assault. She married her
husband sometime after he had been convicted of robbery with
use of a firearm and sentenced to 14 years in state prison. She
said that she would sometimes not report crimes to police
because she did not want to get involved and for concern of the
“outcome that may come along with that.” Also, a relative that
she regularly spoke to was “the supervising clerk” in the district
attorney’s office in the Compton courthouse.
Prospective Juror No. 1059, who is Black, stated that one of
her brothers had been convicted of bank robbery, and another one
had been convicted of possession of marijuana. She had family
14 During defendants’ Batson motion, six prospective jurors
were discussed, although only four were actually cited as grounds
for the motion: Prospective Juror Nos. 3127, 1059, 3100, and
2406.
16
members that were gang members. Her car had been stolen
three times and no one had ever been caught. She worked for the
Los Angeles County Probation Department in a juvenile camp.
After summarizing her occupation, she added: “I don’t have any
jury experience, they kick me off all the time.”
Prospective Juror No. 6874, who is probably Latina,
reported that her stepbrother was an officer in the Los Angeles
Police Department. She thought a police officer would be less
likely than a nonofficer to admit to having made a mistake. Even
if a crime had been on video, she would still want to hear
testimony from the victim. She had not reported a crime in the
past because she did not think that the culprit would be caught
and it would be a “waste of time.” Her car had been broken into
“various times,” and no one had been caught.
Prospective Juror No. 3100, who is dark-skinned and
possibly of Samoan, Asian, or African-American descent, said
that her brother had been “in and out” of custody and she did not
believe that he had been “treated fairly.” She specifically
believed that his sentence of 14 years in state prison was
excessive for “just . . . beating up some guy.” She viewed the
police negatively because of an incident roughly 20 years earlier
when police killed two of her “distant relatives” when they
responded to a “domestic issue with the wife.” She did not think
that she could be a “fair” juror and did not think that she was the
right person to be a juror in this case. Her car had been broken
into, and the perpetrator had not been caught.
Prospective Juror No. 2406, who is Black, stated that his
home had been burglarized, he had testified at a trial, and had
17
not been satisfied with the way the process was handled. He did
not believe he could “get facts” from hearing testimony. He
thought police officers were less likely than nonofficers to admit
having made a mistake due to their degree of power, and that
“nine out of ten” officers would not admit having made a mistake.
After the prosecutor used up his time, the trial court
followed up. This prospective juror reaffirmed that he believed
that there was a “high probability” that officers would not admit
to having made a mistake, and added that he had “dealt with
. . . bad cops.” But after more questioning from the trial court, he
said that he was not limiting his opinion to officers, and was
referring to “everybody.” He had spent almost his entire life
living in “gang infested areas” and agreed with the sentiment
that people could socialize with gang members without even
realizing they were gang members.
Prospective Juror No. 2009, who is probably Latina, stated
that her uncle and godfather (it was not clear if this was the
same person) had been in and out of custody for various crimes
including robbery and assault with a deadly weapon, and her
cousin was in custody for a recent “shooting spree” with multiple
victims. She viewed defendants to be as credible as police
officers, and would be more likely to trust a neutral eyewitness
than someone affiliated with either party.
3. Prosecutor’s motion to dismiss prospective jurors
for cause
After the trial court finished asking follow up questions,
the prosecutor moved to dismiss for cause the prospective juror
seating in seat 16, as well as Prospective Juror Nos. 3127, 3100,
18
and 2406. The trial court agreed to dismiss the individual in seat
16, but declined to dismiss the other three. That said, the trial
court agreed that as to all three the prosecutor had at least a
basis for making the request. The trial court acknowledged that
Prospective Juror No. 3127’s comments had raised some doubt,
and the trial court had been surprised that the prosecutor had
not followed up. Regarding Prospective Juror No. 3100, the court
opined that the juror’s views of her own fitness to sit on the case
were not dispositive, and her stated bias against the police was
not grounds for cause since the instant case did not involve use of
force by the police. However, the trial court acknowledged that it
had intended to follow up but had forgotten, knew she would not
“be sitting,” and expected she would “be the first one booted.” As
to Prospective Juror No. 2406, the trial court was “concerned” by
his statements, but disputed the prosecutor’s characterization of
its questioning as “rehabilitat[ing]” him.
During this discussion, Armstead’s counsel offered the
observation that the prosecutor had questioned six people and
that all of them appeared Black. The trial court indicated its
belief that Prospective Juror No. 3100 was Samoan. No record
was made as to how many of the 18 individuals in the box were
Black.
4. Peremptory challenges
As predicted by the trial court, the prosecutor used his first
peremptory challenge against Prospective Juror No. 3100. He
used his next peremptory challenges against Prospective Juror
Nos. 3127, 6874, 2406, 2009, and 1059.
19
5. Defendants’ Batson/Wheeler motion
After the prosecutor challenged his sixth prospective juror,
Mixon’s counsel stated “we have a motion.” Armstead’s counsel
concurred: “I’m making a motion pursuant to [Wheeler]. It’s my
belief that the district attorneys are targeting African
Americans.”
The motion was argued by Armstead’s counsel, who
asserted that the prosecutor was targeting Black people, as
demonstrated by the fact that “five” of the six people excused had
been Black.15 Mixon’s counsel added that five of the six people
dismissed by the prosecutor had been women and all were
minorities “of some sort.” Hill’s attorney “joined” in the motion,
but added no other comment.
6. Prosecutor’s response
The trial court invited the prosecutor to respond. Referring
to Prospective Juror No. 3127, the prosecutor cited the facts that
her husband was in prison, and that she had not reported crimes
in the past. The prosecutor then corrected the false suggestion
that he had only questioned Black people, and emphasized that
he had asked questions open to the entire panel, and then
followed up with those who had raised their hands. The trial
court responded that he had predominantly spoken to Black
people, and that regardless, the more important matter was who
he had actually dismissed.
15 Despite saying “five,” Armstead’s counsel identified only
four individuals: Prospective Juror Nos. 3100, 3127, 2406, and
1059.
20
The trial court asked the prosecutor about Prospective
Juror No. 3100. The prosecutor explained that she believed that
her brother had not been treated fairly.
The trial court then asked about Prospective Juror
No. 2406. The prosecutor explained that he was unhappy with
how the burglary of his home had been handled, and believed
that police officers would not admit to having made a mistake.
Regarding Prospective Juror No. 1059, the prosecutor noted
that she had relatives that were gang members, commented that
some gang members were good people, and in describing her job
with the probation department, emphasized she did not work
closely with law enforcement.
At that point, for unknown reasons, the trial court
interrupted the prosecutor and said, “Let me just stop you there.
Quite honestly, you’re all over the place and you need to be—this
is a special circumstance case. I would expect somebody trying a
misdemeanor case to be more on top of this.”
7. Defendants’ reply
After the trial court stopped the prosecutor from explaining
his reasons for dismissing certain prospective jurors, it asked if
the defense attorneys had anything to say. Armstead’s counsel
stated, “I don’t believe he addressed seven of the jurors.”16
16 It appears that Armstead’s counsel misspoke, since the
prosecutor had only dismissed six individuals, and when he
argued the motion, he only identified four people.
21
The following exchange occurred:
“[The Court]: It doesn’t matter. I’m stopping him here,
because this is just going to be a complete waste of time.
“[Armstead’s counsel]: Okay.
“[The Court]: [Prosecutor], do you have anything to add?
“[Prosecutor]: I can address the other jurors that were
kicked.
“[The Court]: You don’t need to. [¶] Are we good?
“[Armstead’s counsel]: Yes.”
No defense attorney objected or asked for further
discussion.
8. Trial court’s order denying defendants’ motion
After that exchange, the trial court summarized the six
peremptories used by the prosecutor in the order in which they
were made. As to Prospective Juror No. 3100, the trial court
described her as a dark-skinned, possibly Samoan, woman. Her
answers indicated that she could not be fair to the police, that the
prison sentence her brother received had been unfair, and that
this was not the right case for her to be on.
The trial court described Prospective Juror No. 3127 as a
Black woman who had married someone after he was sentenced
to prison, and who made some comments indicating skepticism of
law enforcement.
The trial court described Prospective Juror No. 6874 as
either a White or possibly Latina woman. Instead of
summarizing her statements, the trial court emphasized that it
had found that there was no prima facie case of gender-based
exclusion, stating: “[T]he court is satisfied that, as far as anyone
22
being female, that this is not an attempt to kick females off. The
court’s emphasis here, more so, is with African Americans, as
brought up by [Armstead’s counsel].”
The trial court described Prospective Juror No. 2406 as a
Black man who made statements so negative about law
enforcement that the trial court had also questioned him.
The trial court described Prospective Juror No. 2009 as
either a White or Latina woman. It then stated: “But, again,
there was nothing there that makes the court believe that there
was anything that was—that made it appear that she was
being—[excused] as far as her sex. As a matter of fact, I believed
that she was actually good for the People, and I believed that
they were excluding her because they were going to be excluding
other African Americans.”
The trial court described Prospective Juror No. 1059 as a
Black woman. It summarized her statements, opined that she
would have been a good juror, but emphasized that it credited the
prosecutor’s explanation as truthful.
Ultimately, the trial court stated: “All right. But with
what the People have said so far, it is consistent—their belief is
consistent with the answers that she has given. [¶] And so at
this point in time the court is not finding that there has been a
violation.”
9. Defendants’ omissions
During the discussion of defendants’ motion, no record was
made as to the number of Black people or women on the panel, or
whether the defense had used peremptories to dismiss Black
people or women. No defense attorney argued that the
23
prosecutor’s statements had been factually incorrect, or
attempted to compare the statements the prosecutor cited to
similar statements given by other prospective jurors. And no
defense attorney argued that the trial court’s ruling was unclear
or incomplete, or that the trial court had suggested a reason for
dismissing the prospective jurors not mentioned by the
prosecutor.
B. Relevant law
Both the state and federal Constitutions prohibit the use of
peremptory challenges to remove prospective jurors based solely
on group bias, such as race, gender, or ethnicity. (Batson, supra,
476 U.S. at p. 89; People v. O’Malley (2016) 62 Cal.4th 944, 974;
People v. Gutierrez (2017) 2 Cal.5th 1150, 1157; Wheeler, supra,
22 Cal.3d at pp. 276–277.) It is presumed that the prosecutor
exercised peremptory challenges in a constitutional manner, and
the appellant bears the burden of rebutting that presumption.
(People v. Johnson (2015) 61 Cal.4th 734, 755; People v.
Manibusan (2013) 58 Cal.4th 40, 76.)
In determining whether the presumption of
constitutionality is overcome, the trial court applies the well-
established three-step inquiry set forth in Batson. (People v.
Taylor (2009) 47 Cal.4th 850, 885.) “First, the trial court must
determine whether the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge
based on race. Second, if the showing is made, the burden shifts
to the prosecutor to demonstrate that the challenges were
exercised for a race-neutral reason. Third, the court determines
whether the defendant has proven purposeful discrimination.
24
The ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.
[Citation.] The three-step procedure also applies to state
constitutional claims. [Citations.]” (People v. Taylor, supra, at
pp. 885–886; see also People v. Thomas (2011) 51 Cal.4th 449,
473.)
“At the third stage of the Wheeler/Batson inquiry, ‘the
issue comes down to whether the trial court finds the prosecutor’s
race-neutral explanations to be credible. Credibility can be
measured by, among other factors, the prosecutor’s demeanor; by
how reasonable, or how improbable, the explanations are; and by
whether the proffered rationale has some basis in accepted trial
strategy.’ [Citation.] In assessing credibility, the court draws
upon its contemporaneous observations of the voir dire. It may
also rely on the court’s own experiences as a lawyer and bench
officer in the community, and even the common practices of the
advocate and the office that employs him or her. [Citation.]”
(People v. Lenix (2008) 44 Cal.4th 602, 613.) The proper focus is
on the subjective genuineness of the nondiscriminatory
justifications given, not on their objective reasonableness.
(People v. Reynoso (2003) 31 Cal.4th 903, 924.) A “‘legitimate
reason[]’” for excusing a prospective juror is not a reason that
makes perfect sense, but one that is nondiscriminatory. (Id. at
p. 916.)
“Review of a trial court’s denial of a Wheeler/Batson motion
is deferential, examining only whether substantial evidence
support its conclusions. [Citation.] ‘We review a trial court’s
determination regarding the sufficiency of a prosecutor’s
25
justifications for exercising peremptory challenges “‘with great
restraint.’” [Citation.] We presume that a prosecutor uses
peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses. [Citation.] So long as the trial court
makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are
entitled to deference on appeal. [Citation.]’ [Citation.]” (People
v. Lenix, supra, 44 Cal.4th at pp. 613–614.)
C. Analysis (alleged race-based reasons for exclusion)
Applying these legal principles, we conclude that the trial
court properly denied defendants’ Batson/Wheeler motion. The
prosecutor offered race-neutral explanations for dismissing the
four Black prospective jurors identified by Armstead’s defense
attorney. The prosecutor’s assertions were accurate summaries
of those prospective jurors’ statements and constituted
nondiscriminatory grounds to dismiss them.
On appeal, defendants do not seem to challenge that the
prosecutor failed to offer a race-neutral explanation. Rather,
their objection is that the trial court failed to subject the
prosecutor’s explanation to due scrutiny and that elements in the
appellate record suggest that the prosecutor was lying.
To the extent Mixon and Armstead contend that the
prosecutor only questioned six people and that the questioning of
those six individuals was motivated by race, their claim is
contradicted by the appellate record. The reporter’s transcript
indicates that the prosecutor received answers from eight people
26
during the time afforded him and asked multiple questions that
invited responses from everyone on the panel.
Defendants also contend that the trial court volunteered
reasons for dismissing the prospective jurors that were never
offered by the prosecutor. For example, Armstead claims that the
trial court provided a race-neutral reason not mentioned by the
prosecutor for dismissing Prospective Juror No. 3127, namely
that she had expressed skepticism of law enforcement. Armstead
mischaracterizes what occurred below.
As set forth above, when the prosecutor moved to dismiss
Prospective Juror No. 3127 for cause, the prosecutor reasoned
that her answers indicated that “she doesn’t have faith in police,
in law enforcement.” Although the trial court denied the motion
to dismiss for cause, it noted that it had expected the prosecutor
to follow up during questioning and since he had not done so,
Prospective Juror No. 3127’s statements had been ambiguous
enough not to merit dismissal for cause. Thus, when it noted her
comments at the time it denied defendants’ motion, the trial
court was simply repeating what the prosecutor had earlier
argued.
Similarly, Armstead asserts that, regarding Prospective
Juror No. 3100, the trial court offered “another reason not offered
by the prosecutor for why a prosecutor might theoretically want
to excuse” her—that she said she did not think she was the right
person to be a juror on the case. Armstead is incorrect.
As set forth above, the prosecutor moved to dismiss
Prospective Juror No. 3100 for cause because she said she could
not be “fair” to the prosecution. Although the trial court declined
27
to dismiss her for cause, it acknowledged that she had said that
this was not “the kind of case that she should sit on.”
Presumably the trial court did not forget the conversation it
previously had regarding the prosecutor’s reasons for seeking to
dismiss the prospective jurors, or that it had acknowledged
during that earlier discussion that it was at least a close question
as to whether three of the individuals at issue should be
dismissed for cause.
To the extent defendants argue that the trial court failed to
analyze whether the prosecutor’s race-neutral explanations had
been truthful, they are wrong. The trial court explicitly stated
that it found the prosecutor’s explanation of his justification to be
truthful. And although the trial court opined that Prospective
Juror No. 1059 would have been a good juror, its view was clearly
not universal since that individual introduced herself by saying,
“I don’t have any jury experience, they kick me off all the time.”
(See generally People v. Miles (2020) 9 Cal.5th 513, 562 [the
question is not whether a prosecutor should or should not have
excused a prospective juror].)
Defendants’ suggestion that the trial court did not
scrutinize the prosecutor’s motivations, or was not interested in
the requirements of the state and federal Constitutions, is belied
by the record. The record thoroughly establishes that the trial
court paid close attention throughout the trial, was appropriately
skeptical of the prosecution, and did its best to provide the
parties a fair trial in accordance with the law and in difficult
conditions in light of Armstead’s repeated and intense efforts to
disrupt the proceedings.
28
None of the three defense attorneys argued that the
prosecutor had misstated a fact, or compared the individuals
dismissed to jurors still on the panel, or expressed confusion at
the trial court’s ruling. Nor do defendants argue on appeal that
any misstatement was made by the prosecutor. In fact, when the
trial court asked Armstead’s counsel, who had argued the
Batson/Wheeler motion, “Are we good?” counsel answered, “Yes.”
Under these circumstances, no further oral explanation by the
trial court was required. (See, e.g., People v. Miles, supra, 9
Cal.5th at pp. 539–540 [trial court was not required to engage in
a more lengthy discussion; prosecutor’s stated reasons were
largely self-evident and required no further explication]; People v.
Hardy (2018) 5 Cal.5th 56, 76 [“‘When the prosecutor’s stated
reasons are both inherently plausible and supported by the
record, the trial court need not question the prosecutor or make
detailed findings’”].)
D. Comparative juror analysis
For the first time on appeal, Armstead contends that
comparative analysis shows that the prosecutor gave pretextual
reasons for the removal of the four prospective jurors.
“Comparative juror analysis is evidence that, while subject
to inherent limitations, must be considered when reviewing
claims of error at [Batson/Wheeler]’s third stage when the
defendant relies on such evidence and the record is adequate to
permit the comparisons. In those circumstances, comparative
juror analysis must be performed on appeal even when such an
analysis was not conducted below.” (People v. Lenix, supra, 44
Cal.4th at p. 607.)
29
“[C]omparative juror analysis is but one form of
circumstantial evidence that is relevant, but not necessarily
dispositive, on the issue of intentional discrimination.” (People v.
Lenix, supra, 44 Cal.4th at p. 622.) As noted, “comparative juror
analysis on a cold appellate record has inherent limitations,”
among them that “the prosecutor is never given the opportunity
to explain the differences he perceived in jurors who seemingly
gave similar answers.” (Id. at pp. 622–623.)
In the instant case, the record is insufficient for us to
conduct such analysis. There is no evidence regarding the race or
gender of the other prospective jurors. And, Armstead ignores
the prosecutor’s valid, stated reasons for dismissing these four
individuals.
Armstead claims that if the prosecutor’s stated reasons
were sincere, then he should have dismissed Prospective Juror
Nos. 4438, 8923,17 and 0876. Prospective Juror No. 4438 was
dismissed by the prosecutor. The fact that that prospective juror
may not have been dismissed until after the trial court denied
defendants’ Batson/Wheeler motion has no bearing on our
analysis. And, Prospective Juror No. 0876 never moved to one of
the first 12 seats before the prosecutor accepted the panel, and, in
any event, was dismissed by the defense.
Under these circumstances, it would not be fair or fruitful
to subject the prosecutor’s reasons to comparative analysis. At
17 In his reply brief, Armstead notes that the trial court
excused this juror for cause and, therefore, he “withdraws his
prior comparison to this one particular juror.”
30
the very least, we “‘must keep in mind that exploring the
question at trial might have shown that the jurors were not
really comparable. Accordingly, we consider such evidence in
light of the deference due to the trial court’s ultimate finding of
no discriminatory purpose.’” (People v. Hardy, supra, 5 Cal.5th at
p. 77.)
E. Analysis (alleged gender-based exclusion)
Mixon also argues that the trial court mishandled the
portion of the Batson/Wheeler motion that alleged that the
prosecutor had improperly dismissed prospective jurors because
they were women. He claims that the trial court’s comments
reflected a finding of a prima facie case of gender-based
exclusion, and then impermissibly “chang[ed] its mind . . . mid-
course” to find that no prima facie case had been made.
As set forth above, the defense attorneys did not articulate
a Batson/Wheeler motion on the ground of gender. Rather, all
Mixon’s counsel noted was that five of the six people dismissed by
the prosecutor had been women and all were minorities “of some
sort.” Other than this fact, there is no evidence whatsoever that
the prosecutor excluded these persons because of their gender. In
other words, Mixon did not demonstrate that a prima facie case
had been made. And, notably, on appeal he does not argue that
he made a prima facie case below. Nor could he. There is no
evidence or allegation that the prosecutor struck most or all
women from the venire or that the prosecutor failed to question
them.
Because Mixon did not present a prima facie case of
gender-based exclusion, the prosecutor was not obligated to
31
explain his reasons for dismissing these prospective jurors.18
(People v. Scott (2015) 61 Cal.4th 363, 387 [“a party exercising a
strike thus has no obligation to articulate a reason until an
inference of discrimination has been raised”].)
F. Conclusion
Our Supreme Court has recognized “‘that it is a
combination of factors rather than any single one which often
leads to the exercise of a peremptory challenge’; that ‘the
particular combination or mix of jurors which a lawyer seeks
may, and often does, change as certain jurors are removed or
seated in the jury box’; and that ‘the same factors used in
evaluating a juror may be given different weight depending on
the number of peremptory challenges the lawyer has at the time
of the exercise of the peremptory challenge and the number of
challenges remaining with the other side.’ [Citation.] ‘It is
therefore with good reason that we and the United States
Supreme Court give great deference to the trial court’s
determination that the use of peremptory challenges was not for
an improper or class bias purpose.’ [Citation.]” (People v. Chism
(2014) 58 Cal.4th 1266, 1318.)
Substantial evidence supports the trial court’s express and
implied finding that the prosecutor’s proffered reasons were not
pretextual and that there was no race or gender discrimination.
Armstead’s reliance on comparative juror analysis does not
undermine this conclusion.
18 That said, we note that the same race-neutral reasons for
dismissing the identified prospective jurors apply here as well.
32
II. Denial of Mixon’s Motion to Exclude His Pretrial Statement
Mixon argues that his recorded statement to the police
should have been excluded at trial because the detectives failed
to honor his request for an attorney.
A. Relevant proceedings
Prior to trial, Mixon moved to suppress his recorded
statement to the police on the grounds that he had not validly
waived his federal constitutional rights.
1. The interview
Following his arrest, Mixon participated in a roughly 90-
minute interview with Detectives Marullo and Callian.
At the onset of the interview, Detective Marullo asked
Mixon if he had been arrested and told his rights in the past.
Mixon replied that he had. Detective Marullo then explained
that they were detaining him and therefore he would read him
his rights. Mixon repeatedly interjected and said he knew he
would not be going home following the interview. Detective
Marullo advised him of his rights, and Mixon said he understood
them. Mixon answered questions for a few minutes, claiming to
not remember the premurders interaction with police at the
Villas, and denying being in a gang.
Later, Mixon said, “you said when you was reading me my
rights, uh I could have an attorney present?” Detective Marullo
said he could. Mixon said, “All right, I think this conversation
over ‘til I get an attorney.” Detective Marullo said “Okay.” But
Mixon did not stop talking. Instead, he made clear he wanted to
continue the conversation. He immediately continued, “Because
you’re not trying to tell me why I’m here. You asking me a lot of
33
questions.” Detective Marullo responded that he was simply
doing his job. Mixon responded, “I’m not getting paid to be cold
in that room. I’m not getting paid, and I uh, I’m trying to figure
out what’s going on here.”
Mixon then said, “I just want an attorney.” Detective
Marullo replied, “[Y]ou have every right to have an attorney.
And we respect that, okay. I will inform you what you’re here for.
You’re here for double murder. I can’t ask you any more
questions ‘cause you made it clear that you need an attorney.
But I am telling you what you’re being . . . arrested and booked
for. So you’ll be arrested for double murder.” Detective Marullo
and his partner stood up to leave.
Mixon immediately said, “Wait, wait, wait.” Detective
Marullo responded, “You said you want an attorney.” Mixon said,
“No, no, no, no, you talking about double murder, bro.” Mixon
asked if he was really being arrested for double murder.
Detective Marullo answered affirmatively, and this exchange
occurred:
“[Mixon]: No, no, no, sit back down, bro. Sit back down.
“[Detective Marullo]: No, you said you requested an
attorney.
“[Mixon]: Man, sit down, bro.
“[Detective Marullo]: You want me to sit down?
“[Mixon]: I want you to sit down.
“[Detective Marullo]: Let me be clear about this ‘cause I
need to be extremely fair to you, and you have every right for me
to be fair to you. If I take a seat, you’re welcoming me to take a
34
seat right now. Does that mean that you’re giving up your right
for now to have an attorney present?
“[Mixon]: Yeah.”
Thereafter, they discussed the murders. Mixon asserted he
only knew about the murders from hearing about them on the
news, claimed he left the Villas with women in a gold hatchback
to buy marijuana, claimed he had been wearing a black shirt and
shorts, and denied being the man on the video taken at the Villas
before the murders. He claimed drug use had impacted his
memory, admitted to remembering the interaction with officers
before the murders, and said that he was afraid he would be
killed if he cooperated with the police and went to jail. He
admitted to having lied about his clothing, said he left the Villas
in the white Cadillac and then transferred to the Audi, and
insisted he had been the one driving the Audi. He did not
actually describe the murders or say who else was involved, but
said he participated because he was told to, and was afraid of
what might happen to him if he refused. He described arriving at
the Villas in time to see Grant before Grant was taken to the
hospital, and said the instant murders happened because of
Grant’s shooting.
2. Defense expert testimony
Gary Steiner (Steiner), a former police officer, opined that
the interview should have ended when Mixon asked for an
attorney, and critiqued the officers for being armed during the
interview, having two officers in the room instead of one, and not
allowing Mixon phone calls within three hours of his arrest. He
also said that the officers should have explored whether Mixon
35
was intoxicated or had a learning difficulty, but cited no evidence
indicating Mixon had been under the influence.
3. Trial court’s ruling
The prosecutor asserted that Mixon’s first mention of an
attorney was vague, the second mention of an attorney was clear
and was honored, and that Mixon thereafter reinitiated by
insisting Detective Marullo keep speaking to him. Counsel for
Mixon argued that Mixon’s request for more information did not
amount to reinitiating the conversation. The trial court agreed
with the prosecutor’s analysis.
4. Evidence related to Mixon’s interview used for his
defense
Mixon also established that during the police interview, he
cried when discussing seeing Grant right after being shot. And,
Mixon established during his cross-examination of Officer
Armenta that a gang member could be killed for cooperating with
the police, and seriously injured for refusing an order by a senior
gang member.
In closing argument, counsel for Mixon argued that Mixon
was guilty of second degree murder, but not first degree murder.
Counsel did not specifically acknowledge the acts committed, but
argued that Mixon acted without premeditation due to some
combination of being upset about Grant’s shooting and the police
contact at the Villas.
B. Relevant law
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) held
that a defendant who is in custody “must be warned prior to any
questioning that he has the right to remain silent, that anything
36
he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford
an attorney one will be appointed for him prior to any
questioning if he so desires.” (Id. at p. 479.)
These rights may be waived, as long as the waiver is
voluntary, knowing and intelligent. (Miranda, supra, 384 U.S. at
p. 444.) There are two dimensions to the waiver: “‘First, the
relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the
waiver must have been made with a full awareness of both the
nature of the right being abandoned and the consequences of the
decision to abandon it. Only if the “totality of the circumstances
surrounding the interrogation” reveals both an uncoerced choice
and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.’” (People v.
Clark (1993) 5 Cal.4th 950, 986, overruled in part on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In other words, once a defendant requests counsel, he
cannot be subjected “‘to further interrogation by the authorities
until counsel has been made available to him, unless [he] himself
initiates further communication, exchanges, or conversations
with the police.’” (People v. Jackson (2016) 1 Cal.5th 269, 339.)
“In considering a claim that a statement or confession is
inadmissible because it was obtained in violation of a defendant’s
rights under [Miranda], supra, 384 U.S. 436, we accept the trial
court’s resolution of disputed facts and inferences, and its
evaluation of credibility, if supported by substantial evidence.
37
[Citation.] Although we independently determine whether, from
the undisputed facts and those properly found by the trial court,
the challenged statements were illegally obtained [citation], we
‘“give great weight to the considered conclusions” of a lower court
that has previously reviewed the same evidence.’” (People v.
Wash (1993) 6 Cal.4th 215, 235–236.)
C. Analysis
Applying these legal principles, the trial court’s ruling was
proper. When Mixon first requested an attorney, the detectives
respected his request by agreeing to stop asking him questions
and telling him that he did not need to talk any further. They
did not ask any question or describe any evidence. Instead, they
simply disclosed the specific information that Mixon requested,
namely the generic crimes that he was suspected of committing.
They stood up and prepared to leave; they only remained because
Mixon insisted that they continue conversing with him.
Before resuming the conversation, the detectives reminded
Mixon that he did not have to talk. But, Mixon said that he
wanted to continue talking. In other words, his comments and
behavior made plain that he did not want to stop talking to the
detectives. Under these circumstances, Mixon’s constitutional
rights were not violated. (People v. Jackson, supra, 1 Cal.5th at
pp. 336–337.)
D. Harmless error
Even if the trial court had erred in allowing Mixon’s
interview to be presented during the prosecution’s case-in-chief,
that error would have been harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24; People v. Moore
38
(2011) 51 Cal.4th 386, 404.) As set forth above, parts of Mixon’s
statement were featured in his defense. Moreover, his
admissions were cumulative to the overwhelming evidence of
guilt presented. In particular, his body type and distinctive
clothing, captured on video before, during, and after the murders,
established that he was one of the shooters.
There was also ample evidence that the instant murders
were committed in retaliation for Grant being shot. Specifically,
Officer Armenta explained that Grant’s shooting would have
called for a violent response by his gang. Mixon was a longtime
gang member and got new Miller Gangster tattoos after the
murders.
III. Prosecutor’s Admission of Part of Hill’s Police Interview
Hill argues that the prosecutor’s introduction into evidence
of part of his police interview violated his constitutional rights.
A. Relevant proceedings
As set forth above, Hill was interviewed by the police,
identified himself in the video taken at the Villas before the
murders, and said he only drove the Audi from a location on
Mettler Street back to the Villas. After being accused of lying,
Hill admitted to driving the Audi back to the Villas, but he
claimed he had been pressured to do so. He also made a
statement that seemed to acknowledge that he drove during the
murders. Evidence of Hill’s recorded statement was presented at
the preliminary hearing.
1. Pretrial proceedings
Prior to trial, Mixon’s counsel sought either a separate trial
or to exclude evidence of Hill’s statement to the police that
39
implicated Mixon. The prosecutor said that he was not sure if he
would introduce any part of the statement, but that if he did, it
would only be the portion where Hill identified himself as the
driver, and not any part in which he implicated the other
defendants. When the matter was brought up again, counsel for
Hill emphasized that if the prosecutor introduced the part of the
interview where Hill admitted to driving, then it would also be
appropriate to admit other parts of the interview where Hill said
that he drove because he was pressured to. The trial court
agreed that portions providing context might also be admissible.
After a recess, the prosecutor said that he intended to
introduce the portion of the interview where Hill identified
himself as the person on the video at the Villas taken before the
murders, wearing the backpack and changing his shoes. Counsel
for Hill noted that he was surprised that the prosecutor did not
intend to introduce more of the statement, and indicated that he
might still seek to introduce the portion of the interview where
Hill said he drove because he was pressured to. The trial court
reserved ruling on whether such evidence would be permitted.
While discussing other evidence prior to trial, the
prosecutor changed his mind about what he wanted to present,
noting that he did not want to be limited as to what he could
present at trial since the defense was aware of the potential
evidence, and “things may change.” While ruling on another
pretrial issue, the trial court noted that “trials are fluid and
things change.”
40
2. Trial proceedings
In the opening statement for Hill, defense counsel stated
that the evidence would show that Hill was neither the person
driving the Audi at the moment of the murders, nor when the
Audi returned to the Villas. Counsel said that the videos were
not clear enough to conclusively show Hill was the driver at
either moment. Rather, the video would only show that Hill
walked into view right after the Audi arrived at the Villas and
parked out of view of the cameras.
During cross-examination of Officer Armenta, counsel for
Hill suggested that McKinley was dressed somewhat similarly to
Hill and might have been the person who drove the Audi during
the murders and back to the Villas. On redirect, Officer Armenta
pointed out differences in how McKinley and Hill were dressed
(most significantly that Hill had long sleeves and McKinley did
not).
The following day, citing the questions asked by Hill’s
defense counsel, the prosecutor indicated his intent to present
that portion of the interview where Hill admitted to driving
defendants to commit the murders. During the ensuing
conversation, counsel for Hill disputed that he had “opened the
door” to the evidence, argued that the entirety of the interview
would need to be played to provide the proper context, and
asserted that admitting the partial confession would force him to
alter his trial strategy after suggesting in his opening statement
that the evidence would not establish that Hill had been the
driver, even when the Audi arrived back at the Villas. Hill’s
counsel noted that the prosecutor had specifically indicated it did
41
not intend to play that part of the interview. He further
contended that allowing the evidence to be presented would
violate Hill’s due process and confrontation rights under the state
and federal Constitutions.
The trial court stated that the evidence the prosecutor
wished to present would contradict “the illusion” suggested by the
defense that someone other than Hill drove the Audi back to the
Villas. The trial court also agreed that the defense could play
more of the interview to provide the relevant context, and that
the parties would be allowed additional time to prepare any
needed transcript. The trial court did not believe that the
prosecutor had acted with the intent to “sandbag” the defense,
and that if it felt otherwise it would have excluded the evidence.
After all, the defense had been aware of the evidence’s existence,
and the jury had been told that the attorneys’ comments were not
evidence and opening statements were merely intended as a
roadmap.
Over the prosecutor’s objection, the trial court ruled that
the portions of the interview that the defense wished to play
would also be admitted, including his statement that he drove the
Audi because he was afraid he would be harmed if he refused an
order, and opined that the statement in its entirety was also
quite favorable to the defense. It was convinced that its ruling
did not violate Hill’s right to a fair trial.
In his closing argument, Hill’s counsel argued that Hill was
not the person driving at the time of the murders, and
alternatively, lacked the intent to kill and participated only
because he was pressured to do so by older gang members. Other
42
than the recorded statement, no evidence was presented
supporting a theory Hill participated because he had been
intimidated into doing so.
B. Relevant law
The trial court has broad discretion to control the order of
proof, and if evidence is directly probative of the charged crimes
and can be introduced at the time of the case-in-chief, it should
be. (People v. Case (2018) 5 Cal.5th 1, 48.) The purpose of this
restriction is to avoid sandbagging the defendant, i.e., to avoid
any unfair surprise. (Ibid.) “‘Thus proper rebuttal evidence does
not include a material part of the case in the prosecution’s
possession that tends to establish the defendant’s commission of
the crime. It is restricted to evidence made necessary by the
defendant’s case in the sense that he has introduced new
evidence or made assertions that were not implicit in his denial of
guilt. [Citations.]’” (People v. Thompson (1980) 27 Cal.3d 303,
330; see also People v. Case, supra, at pp. 48–49.)
We also apply the abuse of discretion standard of review to
any ruling by the trial court on the admissibility of evidence.
(People v. Jablonski (2006) 37 Cal.4th 774, 805.)
C. Analysis
Here, the trial court did not abuse its discretion in allowing
the prosecution to present the challenged evidence. Prior to trial,
Hill knew that the prosecution’s theory was that he drove the
Audi during the murders, knew that his recorded statement
helped prove that point, and was surprised when the prosecutor
indicated that he did not intend to present it. Hill also knew that
the prosecutor’s decisions regarding evidence were subject to
43
change. In other words, although the prosecutor had indicated at
first that he did not intend to present the portion of the interview
at issue, counsel for Hill was well aware of the evidence’s
probative value to both sides, and that things could change
during trial.
By asking that the evidence be presented, the prosecutor
was not suddenly and surprisingly pursuing a different theory of
guilt. Rather, in response to defense counsel’s cross-examination
of Officer Armenta, he was simply presenting more admissible
evidence supporting the theory that Hill drove the Audi to
commit the crimes.
Hill was not sandbagged by the prosecutor’s actions. As
soon as the prosecutor believed that the circumstances had
changed in light of the cross-examination by Hill’s counsel, the
prosecutor asked for permission to present the evidence. The
trial court agreed with the prosecutor that defense counsel had
promoted “the illusion” that someone other than Hill drove the
Audi back to the Villas. In this situation, the trial court acted
well within its discretion in allowing the prosecution to introduce
portions of Hill’s statement to police.
It follows that Hill was not denied a fair trial or was
deprived of his constitutional rights.
D. Harmless error
Even if the trial court had erred by allowing the
prosecution to present the challenged portions of Hill’s statement
to police, that error was harmless in light of the overwhelming
evidence of Hill’s guilt stemming from his active and intentional
participation in these crimes. (People v. Arias (1996) 13 Cal.4th
4492, 176 & fn. 34 [no showing that alleged sandbagging was
prejudicial in light of strength of other evidence and the nature of
the additional evidence presented by the prosecutor].) Shortly
after Grant was shot, Hill was texting about it, saying that he
intended to “go to the AP’s.” Thereafter, he went to the Villas
and congregated with fellow gang members. His clothing was
visible in the Audi just before the murders and when he drove
back to the Villas immediately after the murders. And seconds
after he drove out of view of the camera at the Villas, he walked
back into view with Armstead and Mixon.
Furthermore, in his closing argument, defense counsel
argued that Hill was not the driver at the time of the murders.19
That argument was consistent with Hill’s statement to police
denying that he drove during the murders. Thus, there was no
harm to Hill in allowing portions of his statement to be admitted.
IV. Alleged Prosecutorial Misconduct
For the first time on appeal, Armstead and Hill assert that
the prosecutor erred during argument in stating that they were
“equally guilty” as Mixon, even though they did not fire the fatal
shots. Anticipating the People’s response that this argument has
been forfeited for failure to raise it below, they alternatively
argue that their trial attorneys were ineffective for failing to
make a timely objection.
19 We reject Hill’s contention that the introduction of this
evidence forced defense counsel into arguing “three factually
inconsistent theories.”
45
A. Relevant proceedings
During closing argument, the prosecutor periodically used
the phrase “equally guilty.” For example, the slideshow used
during the prosecutor’s closing argument defined a principal as
someone who either committed the crime or aided and abetted
the commission of the crime, and further provided that: “A
person is equally guilty of the crime whether he committed it
personally or aided and abetted the perpetrator who committed
it.” The following slide defined aiding and abetting, indicating
that the requirements included: “The defendant knew the
perpetrator was going to commit the crime”; “the defendant
intended to aid & abet the perpetrator in committing the crime”;
and the defendant “specifically inten[ded]” to aid the commission
of the crime.
The prosecutor repeatedly voiced the same point
throughout his closing argument. He said express intent to kill
was the applicable theory of murder, and he cited facts showing
premeditation, such as planning, surveillance, arming, and
driving.
The prosecutor said: “A person may be guilty of a crime in
two ways: He directly committed the crime, or he aided and
abetted someone else, the perpetrator who committed the crime.
A person is equally guilty of the crime whether he committed it
personally or aided and abetted the perpetrator who committed
it.” After acknowledging that the shot fired by Armstead did not
hit anyone, the prosecutor said: “But it doesn’t matter. The law
says because he was helping out, he had the intent to kill. It
doesn’t matter that his gun didn’t do the killing. He’s equally
46
liable for the murder. [¶] Let me say that again. He is equally—
Mr. Hill is equally responsible for the murder even though he
didn’t pull the trigger. [¶] And this jury instruction tells us why:
the defendant knew that the perpetrator was going to commit the
crime. We heard from our gang officer. Our gang officer
explained to you that only 10 percent of gangsters are killers;
that everybody had a role in the vehicle. The driver is extremely
important. The passenger is extremely important. So they knew
that this crime was going to happen.”
The prosecutor added: “Someone aids and abets a crime if
he or she knows of the perpetrator’s unlawful purpose, and he or
she specifically intends to and does in fact aid and facilitate,
promote, encourage, instigate. They’re held equally liable; that’s
the law.”
B. Forfeiture
As pointed out by the People, Armstead and Hill have
forfeited any challenge to the prosecutor’s remarks by failing to
object below. It follows that they have forfeited any such claim
on appeal. (People v. Peoples (2016) 62 Cal.4th 718, 797 [absent
evidence of futility, claims of prosecutorial misconduct are
forfeited for failure to make a timely objection and request for
admonition]; People v. Nilsson (2015) 242 Cal.App.4th 1, 25
[defendant’s challenge to “equally guilty” instructional language
was forfeited for failure to raise it at trial].)
For the sake of completeness, we turn to the merits of their
argument.
47
C. Relevant law
Under state law, a prosecutor who uses deceptive or
reprehensible methods to persuade either the trial court or the
jury has committed misconduct, even if such action does not
render the trial fundamentally unfair. (People v. Morales (2001)
25 Cal.4th 34, 44; People v. Hill (1998) 17 Cal.4th 800, 819.)
“[P]rosecutorial misconduct implicates the defendant’s federal
constitutional rights only if it is so egregious that it infects the
trial with such unfairness as to make the conviction a denial of
due process. [Citation.]” (People v. Harris (1989) 47 Cal.3d 1047,
1084.) Generally, misstatements of the law constitute
misconduct. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36;
People v. Mendoza (1974) 37 Cal.App.3d 717, 726–727.)
D. Analysis
Applying these legal principles, the prosecutor did not
engage in misconduct. The prosecutor made clear throughout his
closing argument that, because Armstead and Hill acted to aid
commission of the murders with the specific intent to do so, they
were just as guilty of first degree murder as Mixon even though
they did not fire the fatal shots. There was no suggestion at any
point in the trial that Armstead and Hill had contemplated some
other target crime, let alone any instruction suggesting that they
could be guilty of murder even though they had only intended to
aid a different crime.
Indeed, the prosecutor did not simply make general
statements about the law. He also cited specific facts showing
each defendant’s intent both to assist in the murders and to
benefit their gangs. He referred to the tattoos defendants got,
48
and that, after the shooting, Hill could be seen behaving in a
relaxed manner with the other defendants. The prosecutor also
reminded the jury that his own comments were not evidence and
that the jury should follow the trial court’s instructions to the
extent there was any conflict with his statements.
Furthermore, the concept that each defendant’s mental
state had to be considered separately was reinforced during the
defense closing arguments. Mixon’s attorney argued that Mixon
was guilty of second degree, not first degree, murder because
there was no showing that he premeditated the crime. Hill’s
attorney repeatedly argued that there was no evidence that Hill
had the requisite intent for aiding and abetting liability. And
Armstead’s attorney stated several times that the evidence failed
to prove that he had the intent to kill. Even the prosecutor’s
rebuttal acknowledged that he had to prove that each defendant
had the requisite intent, and argued that the evidence proved
that intent.
Moreover, the trial court instructed the jury regarding the
elements of murder and aiding and abetting. It further told the
jury that the evidence needed to be considered separately “as it
applies to each defendant,” and that “each charge for each
defendant” needed to be decided separately. And, the jury was
instructed that each defendant needed to have “specific intent” in
order to be found guilty of murder. In fact, when the jury asked
during deliberations whether Armstead and Hill could be found
guilty of murder simply because they were present at the scene
when the fatal shots were fired, the trial court told the jurors “no”
and reinstructed on the intent required for aiding and abetting.
49
In short, the prosecutor’s comments were correct
statements of law in context.20
E. Harmless error
Even if the prosecutor had made misstatements, they
would have been harmless. (See, e.g., People v. Collins (2010) 49
Cal.4th 175, 229 [no prejudice where “prosecutor’s remarks were
somewhat ambiguous and constituted only a small portion of her
larger argument”].) As set forth above, there is overwhelming
evidence that Hill and Armstead premeditated the murders.
After Grant was shot, Hill texted someone to say that his “little
cousin” Poppie had been shot and that he intended to “go to the
AP’s.” And Armstead armed himself with a gun and went to rival
territory at night with a companion who was armed with a rifle.
The moment the car stopped, he jumped out of the car and fired.
Although he did not aim his first shot at the victims, he did fire
into a home and stopped firing only because his gun jammed. His
participation also gave his companions, fellow gang members, the
courage to carry out the shootings. In light of the strength of this
evidence, the jury instructions, and the totality of the attorneys’
closing arguments, Hill and Armstead were not prejudiced by the
prosecutor’s use of the phrase “equally guilty.”
V. Denial of Request for Heat of Passion Voluntary Manslaughter
Instruction
Defendants argue that the trial court erred in refusing to
instruct on heat of passion voluntary manslaughter.
20 Because the prosecutor’s comments were accurate in
context, it follows that Armstead and Hill’s ineffective assistance
of counsel argument fails.
50
A. Relevant proceedings
At the close of evidence, Mixon’s defense counsel requested
that the trial court instruct the jury on heat of passion voluntary
manslaughter based upon the evidence that Mixon was upset
about Grant having been shot. Hill and Armstead joined in the
request.
The prosecutor opposed the request, noting that defendants
did not indicate that they were consumed by passion while
interacting with Officer Armenta and did not act as if consumed
by passion in the video showing them after the murders.
Furthermore, defendants had hours to cool off between the time
Grant was shot and when they committed the murders.
The trial court denied defendants’ request. It explained
that even crediting Grant’s testimony that Mixon was upset at
the hospital, there was no evidence to support an instruction on
heat of passion. That said, the trial court informed defendants
that they were welcome to argue that provocation had prevented
them from premeditating the murders.
B. Relevant law
A trial court must instruct on lesser included offenses when
there is substantial evidence the defendant is guilty only of the
lesser offense. (People v. Vargas (2020) 9 Cal.5th 793, 827.)
“Voluntary manslaughter, a lesser included offense of murder, is
defined as the unlawful killing of a human being without malice.”
(Ibid., citing § 192 & People v. Rios (2000) 23 Cal.4th 450, 465.)
An instruction on voluntary manslaughter is required where
there is substantial evidence the defendant acted in the heat of
passion. A heat of passion killing “is one caused by an
51
unconsidered reaction to provocation rather than the result of
rational thought.” (People v. Vargas, at p. 828.) “If reason ‘“‘was
obscured or disturbed by passion’”’ to so great a degree that an
ordinary person would ‘“‘act rashly and without deliberation and
reflection,’”’ [then it can be said that the] killing arose from
‘“‘passion rather than from judgment.’”’ [Citation.]” (Ibid.; accord
People v. Landry (2016) 2 Cal.5th 52, 97 [“heat of passion
sufficient to reduce murder to manslaughter exists only where
the killer’s reason was actually obscured as the result of a strong
passion”].)
“‘[T]he anger or other passion must be so strong that the
defendant’s reaction bypassed his thought process to such an
extent that judgment could not and did not intervene.’
[Citation.]” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 649.)
“‘“‘[I]f sufficient time has elapsed for the passions of an ordinarily
reasonable person to cool, the killing is murder, not
manslaughter.’”’ [Citation.]” (Ibid.; People v. Nelson (2016) 1
Cal.5th 513, 539 [“it is not sufficient that a person ‘is provoked
and [then] later kills’”].) “‘“The provocation which incites the
defendant to homicidal conduct in the heat of passion must be
caused by the victim [citation], or be conduct reasonably believed
by the defendant to have been engaged in by the victim.”’
[Citation.]” (People v. Beck and Cruz, supra, at p. 649.) Planned
revenge does not satisfy the provocation requirement. (People v.
Souza (2012) 54 Cal.4th 90, 115–117; People v. Breverman (1998)
19 Cal.4th 142, 163 [the passion aroused can be any extreme
emotion “other than revenge”].)
52
C. Analysis
Applying these legal principles, defendants were not
entitled to a heat of passion instruction. There was no evidence
that the victims were involved in any provocation or that
defendants acted without reflection. There was also no evidence
that defendants acted while in the grips of passion such that
judgment could not and did not intervene. In fact, defendants
had hours to calm down after Grant was shot.
People v. Brooks (1986) 185 Cal.App.3d 687 does not compel
a different result. In that case, the Court of Appeal held that the
provocation that incites the defendant to homicidal conduct in the
heat of passion must “be conduct reasonably believed by the
defendant to have been engaged in by the victim.” (People v. Lee
(1999) 20 Cal.4th 47, 59; People v. Brooks, supra, at p. 694 [“the
disclosure of information that the victim murdered a family
member of the defendant is legally adequate provocation for
voluntary manslaughter”].) In the instant case, there was no
evidence whatsoever that the two innocent murder victims had
anything to do with the shooting of Grant.
D. Harmless error
Even if the trial court had erred in failing to instruct on
voluntary manslaughter, that error would have been harmless
under any standard. (Chapman v. California, supra, 386 U.S. at
p. 24; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
First, the trial court’s refusal to instruct on heat of passion
manslaughter did not prevent the defense attorneys from arguing
that defendants were so emotional that they were unable to
premeditate the killings. And, the jurors’ finding that defendants
53
acted with premeditation shows that they rejected any suggestion
that defendants acted while consumed by emotion and passion so
strong that judgment could not and did not intervene. (See
People v. Wang (2020) 46 Cal.App.5th 1055, 1071–1072 [failure to
instruct on heat of passion was harmless because jury rejected
heat of passion by finding defendant premeditated the murder].)
Second, any error was harmless in light of the nature of the
evidence. As discussed, any evidence of extreme emotion was
very weak, and evidence of strategic planning was very strong.
Defendants gathered with other gang members after Grant was
shot; they then left in cars with other gang members to commit
the murders. After the crimes, Hill got tattoos celebrating the
executions. Armstead either already had a “Crip killer” tattoo, or
got one to celebrate the murders.
And, notably, a theory of heat of passion was directly
contrary to the other theories advanced by the defense attorneys.
Accordingly, any failure to instruct on heat of passion
manslaughter was harmless.
VI. Denial of Request to Tell the Jury that Provocation Could
Reduce a Murder from First Degree to Second Degree (CALCRIM
No. 522)
Defendants argue that the trial court erred in denying their
request to tell the jury that provocation could reduce a murder
from first degree to second degree. According to defendants,
substantial evidence supported such an instruction pursuant to
CALCRIM No. 522.
CALCRIM No. 522 provides: “Provocation may reduce a
murder from first degree to second degree [and may reduce a
54
murder to manslaughter]. The weight and significance of the
provocation, if any, are for you to decide. [¶] If you conclude that
the defendant committed murder but was provoked, consider the
provocation in deciding whether the crime was first or second
degree murder. [Also, consider the provocation in deciding
whether the defendant committed murder or manslaughter.] [¶]
[Provocation does not apply to a prosecution under a theory of
felony murder.]”
The instruction is a pinpoint instruction and need be given
only upon request and where supported by substantial evidence.
(People v. Rivera (2019) 7 Cal.5th 306, 328.)
For the same reasons set forth in connection with the heat
of passion voluntary manslaughter discussion, the trial court
appropriately declined to instruct the jury with CALCRIM
No. 522. There was no substantial evidence that the victims
provoked defendants, or that defendants subjectively acted
without reason, or that defendants acted immediately.
Defendants were welcome to argue to the jury that the facts
showed they did not act with intent or premeditation, but that is
not the same as concluding that substantial evidence showed that
they acted as a result of provocation.
People v. Berry (1976) 18 Cal.3d 509 does not compel a
different result. In that case, the evidence included testimony by
the defendant and an expert that the “defendant killed in a state
of uncontrollable rage, of passion,” and such testimony was
supported by evidence that the killing occurred after “the long
course of provocatory conduct, which had resulted in intermittent
outbreaks of rage [that] reached its final culmination in the
55
apartment when [the victim] began screaming.” (Id. at p. 516.)
As set forth above, that is not what occurred here.
Even if the trial court had erred in declining to give this
instruction, that error would have been harmless. (See People v.
Pearson (2012) 53 Cal.4th 306, 325 [failure to give pinpoint
instruction evaluated under Watson harmless error standard];
see also People v. Wharton (1991) 53 Cal.3d 522, 571–572 [failure
to give pinpoint instruction harmless under Watson since, among
other things, the instructions did not “preclude” the jury from
considering the defense theory, and the jury verdict showed the
jury rejected the defense theory].)
The instructions regarding murder specified that murder
required intent to kill or intentional commission of an act
dangerous to human life, and that first degree murder required
premeditation. CALCRIM No. 521, which describes
premeditation, specified that a “decision to kill made rashly,
impulsively, or without careful consideration is not deliberate or
premeditated.” Thus, the instructions given did not preclude the
defense from arguing that circumstances caused them to act
rashly and without reflection.
In fact, Mixon did advance that argument as one of several
incompatible theories. The evidence powerfully established that
defendants acted with premeditation, and the jury’s finding that
defendants acted with premeditation showed that it rejected a
theory of provocation.
VII. Duress is not a Defense to Murder
Hill argues that the trial court erred when it told the jury
that duress is not a defense to murder. Specifically, he claims
56
that the trial court erred by giving CALCRIM No. 3402 even
though he was not relying upon the affirmative defense of duress
to defeat the murder charge against him. He contends that this
instruction should not have been given when his theory was that
because he was pressured to participate in a homicide, he did not
share the actual killer’s specific intent to kill. Armstead and
Mixon join in this argument.
A. Relevant proceedings
During the discussion among counsel and the trial court
regarding jury instructions, Mixon’s counsel asked that the jury
be instructed on duress as a defense to murder. She theorized
that the evidence supported the conclusion that Speed had
orchestrated the murders and participated by using Hill’s phone
and relaying the victims’ location. Armstead and Hill joined in
the request. The trial court denied the request because duress
was not a defense to murder and because there was no
substantial evidence that any threat was ever issued. Counsel
for Hill and Mixon said that they still intended to argue to the
jury that the duress prevented their clients from forming intent
for murder. The trial court determined that defendants could
argue that the evidence established that they did not form intent,
but also agreed with the prosecutor’s request to instruct the jury
that duress was not a defense to murder.
Pursuant to CALCRIM No. 3402, the trial court instructed
the jury: “A defendant is not guilty of a crime if he acted under
duress. The defendant acted under duress if, because of [a]
threat or menace, he believed that his [or] someone else’s life
would be in immediate danger if he refused [the] demand or
57
request to commit [a] crime. The demand or request may have
been express[ed] or implied.
“The defendant’s belief that his [or] someone else’s life [is]
in immediate danger must have been reasonable. When deciding
whether the defendant’s belief [is] reasonable, consider all [of] the
circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in the same
position as the defendant would have believed. [¶] A threat of
future harm is not sufficient[. A] danger to life must have been
immediate. [¶] This defense does not apply to the crime of
murder.”
B. Relevant law
Section 26 provides: “Persons (unless the crime be
punishable with death) who committed the act or made the
omission charged under threats or menaces sufficient to show
that they had reasonable cause to and did believe their lives
would be endangered if they refused.” “[T]he defense of duress
requires a reasonable belief that threats to the defendant’s life (or
that of another) are both imminent and immediate at the time
the crime is committed [citations].” (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 100.) “[D]uress is not a defense to
murder, nor does duress reduce murder to manslaughter.
[Citations.]” (People v. Landry, supra, 2 Cal.5th at p. 91.) “‘[I]f
duress is recognized as a defense to the killing of innocents, then
a street or prison gang need only create an internal reign of terror
and murder can be justified, at least by the actual killer.’
[Citation.]” (Id. at p. 92.) “‘[A] person who kills an innocent
58
believing it necessary to save the killer’s own life intends to kill
unlawfully, not lawfully.’ [Citation.]” (Ibid.)
“[A] killing under duress, like any killing, may or may not
be premeditated, depending on the circumstances. If a person
obeys an order to kill without reflection, the jury might find no
premeditation and thus convict of second degree murder.”
(People v. Anderson (2002) 28 Cal.4th 767, 784.) The standard
instruction regarding premeditation conveys that concept. (Ibid.;
accord People v. Landry, supra, 2 Cal.5th at pp. 93–94; People v.
Hinton (2006) 37 Cal.4th 839, 883 [threats and menace do not
constitute a defense to murder]; People v. Vieira (2005) 35 Cal.4th
264, 290 [“because duress cannot, as a matter of law, negate the
intent, malice or premeditation elements of a first degree murder,
we further reject defendant’s argument that duress could negate
the requisite intent for one charged with aiding and abetting a
first degree murder”].)
C. Analysis
Applying these legal principles, the trial court properly
instructed the jury that duress is not a defense to murder.
To the extent that the defense theory was that defendants
knew that their gang was so violent that they were terrified that
they would be killed if they refused to help kill random people,21
21 Early in the proceedings, counsel for Hill specifically said
that he wanted evidence admitted that Mixon had asserted that
he was afraid to refuse an order from a more senior gang
member. During the trial, he also asked Officer Armenta about
the danger posed to a gang member who refused an order. And,
during closing argument, counsel for Hill argued that Hill
59
and that terror prevented them from sharing the actual killer’s
specific intent to kill, nothing in CALCRIM No. 3402 precluded
the jury from so finding. In fact, other instructions allowed the
jury to find that defendants did not have the specific intent to
kill. It follows that it was not reasonably likely that the jury
misapplied CALCRIM No. 3402.
Likewise, to the extent Hill hoped to argue that he
premeditated the murders, but did so reluctantly because he
decided that it was preferable to kill strangers rather than risk
the possibility that he might be harmed, that is an inappropriate
attempt to argue duress. (People v. Anderson, supra, 28 Cal.4th
at p. 784.)
D. Harmless error
Even if the trial court had erred in refusing this
instruction, that error would have been harmless. There was no
evidence that defendants ever actually threatened or had been
threatened in the past or knew someone who had been fatally
disciplined, let alone that such threat might be immediately
carried out. Moreover, as set forth above, the evidence
overwhelmingly established that they premeditated the murders.
And, the jury had the opportunity to find them guilty of second
degree murder or, as to Hill, of being an accessory after the fact,
participated only because he was ordered to do so by senior
members and therefore could not be said to have acted with
intent to aid in a murder. Likewise, Armstead’s counsel argued
during his closing that Armstead acted only because he was
worried that he would be harmed if he did not participate.
60
but determined that they were guilty of premeditated murder.
(People v. Hinton, supra, 37 Cal.4th at p. 883 [jury verdict showed
it rejected theory of duress].) It follows that any alleged
instructional error was harmless as a matter of law.
VIII. Alleged Cumulative Error
Armstead contends that the alleged errors, when combined,
created cumulative prejudice, requiring reversal of the judgment.
Hill joins in this argument. However, “[l]engthy criminal trials
are rarely perfect, and [courts] will not reverse a judgment absent
a clear showing of a miscarriage of justice.” (People v. Hill, supra,17 Cal.4th at p. 844.) No such showing appears here. There were
no errors. And, even if there were, they were harmless. They did
not combine to render this trial unfair. (People v. Cunningham
(2001) 25 Cal.4th 926, 1009 [defendants are entitled to a fair
trial, not a perfect one].)
IX. Superfluous Multiple Murder Finding is Stricken
Following trial, defendants were each convicted of two
counts of first degree premeditated murder (§ 187, subd. (a)). As
to each defendant and both counts, the jury found true the
allegations that defendants had committed multiple murder
(§ 190.2, subd. (a)(3)). As to both murder convictions, the trial
court sentenced defendants to LWOP.
Defendants argue that only one multiple murder special
circumstance should have been found true. The People agree.
We agree with the parties that only one multiple murder
special circumstance should have been found true. (See, e.g.,
People v. Buenrostro (2018) 6 Cal.5th 367, 431 [striking the
“superfluous” multiple murder finding].) Defendants’ LWOP
61
sentences on both counts are not impacted. (See People v.
Garnica (1994) 29 Cal.App.4th 1558, 1564 [a single multiple-
murder special circumstance finding can support multiple
sentences of life without parole].)
X. The 10-Year Gang Enhancement is Stricken as to Armstead
Armstead and Mixon argue that the 10-year gang
enhancements imposed against them were improper. Relying on
People v. Lopez (2005) 34 Cal.4th 1002, 1004 (Lopez), they assert
that the trial court was required to impose the 15-year parole
eligibility date set forth in section 186.22, subdivision (b)(5)
because each received a life sentence.
We are not convinced. Because a term of LWOP contains
no anticipated parole date, it would be incongruous to include a
minimum parole date on such a term. The purpose of sentencing
a defendant to additional enhancements, such as the 10-year
gang enhancement is to protect against the eventuality that the
defendant’s sentence might one day be reduced on direct appeal
or habeas corpus. (See, e.g., People v. Garnica, supra, 29
Cal.App.4th at p. 1564.)
Moreover, the California Supreme Court has suggested
that the minimum parole eligibility provision was never intended
to apply to persons sentence to LWOP. In Lopez, the court
examined the history of the California Street Terrorism
Enforcement and Prevention Act (STEP Act) and noted that a
1988 enrolled bill report that analyzed the financial impact of the
provision stated: “‘“This proposed provision relating to life terms
[former section 186.22, subdivision (b)(3), now section 186.22
[subdivision] (b)(5)] would apply to all lifers (except life without
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possibility of parole).”’” The court concluded that “at the time the
STEP Act was enacted, the predecessor to section 186.22[,
subdivision] (b)(5) was understood to apply to all lifers, except
those sentenced to life without the possibility of parole.” (Lopez,
supra, 34 Cal.4th at p. 1010.) Similarly, in People v. Montes
(2003) 31 Cal.4th 350, the court examined in detail the 1988
enrolled bill report, which summarized the terms that would be
affected by what is now section 186.22, subdivision (b)(5), and
noted that the terms of first degree murder would be affected
only when there were no special circumstances. (See People v.
Montes, supra, at pp. 357–358, fn. 10.) Though these discussions
are dicta, they are nevertheless persuasive. (People v. Valencia
(2011) 201 Cal.App.4th 922, 930–931.) Accordingly, under this
analysis, the trial court imposed the correct gang enhancement.
However, unlike Mixon, Armstead was not found to have
personally discharged a firearm in the commission of the
murders.22 Although Armstead certainly discharged a firearm, it
appears that the jury was only asked, and only found true as to
him, that a principal (Mixon) discharged a firearm. Thus, as to
Armstead, the trial court erred in imposing both the 10-year gang
enhancement under section 186.22, subdivision (b)(1)(C), and the
firearm enhancement under section 12022.53, subdivision (e)(1),
22 At sentencing, the trial court said, without objection, that
the jury had found as to both counts that Armstead personally
discharged a firearm within the meaning of section 12022.53,
subdivision (d). This appears to have simply been a mistake by
the trial court.
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because the firearm enhancement was based on the gang
enhancement.23 (People v. Brookfield (2009) 47 Cal.4th 583, 590.)
The 10-year gang enhancement as to Armstead must be stricken.
XI. The Parole Revocation Fine is Stricken
As to each defendant, the trial court imposed and
suspended a $5,000 parole revocation fine pursuant to section
1202.45. However, defendants were sentenced on both counts to
LWOP. Thus, the parole revocation fine must be stricken.
(People v. Brasure (2008) 42 Cal.4th 1037, 1075; People v.
Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)
XII. Amended Abstracts of Judgment Must Reflect that the Direct
Victim Restitution is Joint and Several
The trial court’s July 31, 2019, and August 13, 2019,
minute orders from defendants’ restitution hearing reflect that
direct victim restitution must be paid, and further specified that
the obligation be joint and several. Thus, as defendants request
and as the People agree, the abstracts of judgment must be
amended to reflect that the obligation is joint and several.
XIII. Hill’s Request for Corrections to the Probation Report
Apparently confusing Hill with Armstead, the probation
officer’s report incorrectly asserts that Hill had been armed and
fired a handgun during the commission of these crimes. Hill’s
23 Section 12022.53, subdivision (e)(2), provides that “[a]n
enhancement for participation in a criminal street gang . . . shall
not be imposed on a person in addition to an enhancement
imposed pursuant to this subdivision, unless the person
personally used or personally discharged a firearm in the
commission of the offense.”
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trial counsel mentioned the errors at sentencing and asked that
the memorandum that the defense prepared for sentencing be
attached when the various documents were sent to the
Department of Corrections. The trial court confirmed that they
would be.
That said, according to Hill, the misstatements in the
probation report have not been corrected. Thus, he asks that we
direct the trial court to make appropriate revisions to the
probation report. Notwithstanding the People’s opposition to this
request,24 we agree with Hill.
Courts have an inherent power to correct clerical errors in
records so as to make the records “‘reflect the true facts.’” (People
v. Mitchell (2001) 26 Cal.4th 181, 185.) “‘The court may correct
such errors on its own motion or upon the application of the
parties.’” (Ibid.) And courts may correct clerical errors at any
time. (Ibid.) In fact, courts have an obligation to correct
inaccuracies in court records, especially those transmitted to the
California Department of Corrections and Rehabilitation; that
includes the probation report. (§§ 1203c, subd. (a)(1), 1203.01.)
The errors can easily be corrected on remand. Accordingly,
we direct the trial court to order an amended probation report
correcting the misstatements.
24 The People overstate Hill’s request in their respondent’s
brief. Hill is not seeking an entirely new probation report; he
only asks that the two misstatements be corrected.
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DISPOSITION
The trial court is directed to prepare new abstracts of
judgment that reflect (1) no parole revocation fine as to all three
defendants, and (2) a joint and several obligation to pay victim
restitution. The trial court is also directed to strike the 10-year
gang enhancement as to Armstead. The trial court is further
directed to order that the errors in Hill’s probation report be
corrected and then transmitted to the California Department of
Corrections and Rehabilitation. In all other respects, the
judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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