People v. Faatai CA2/3

Filed 1/31/23 P. v. Faatai CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B318851
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA110614)
v.
TAYLOR L. FAATAI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James D. Otto, Judge. Remanded for
resentencing.
Mark Yanis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Stefanie Yee, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
At Taylor Faatai’s trial for the murder of Christopher
Johnson, the trial court admitted drawings Faatai had done
depicting shootings and a video featuring Faatai rapping about
gangs. Faatai contends that the evidence should have been
excluded and that its admission rendered his trial fundamentally
unfair. We conclude that Faatai was not prejudiced by the
admission of the evidence but remand for resentencing because
the trial court imposed an unauthorized sentence.
BACKGROUND
I. Events leading to Johnson’s murder
Faatai was a member of the Sons of Samoa gang, which
goes by SOS. His moniker was Mace, and he used maceso3rd for
his Instagram account. In Instagram posts, Faatai expressed his
contempt for people who pretend to be gang members.1 In May
2018, he posted, “Act a fool where u say u act a fool at, cos all this
Gram bangin[2] gon get u Waccd, thas a fact. I’m ina field fake
niggas INTERNET.” In August 2018, he posted, “ ‘Aye dummy …
Don’t rap about IT, if u ain’t doing IT #mace3rdsaidit FCN
liers.’ ” The next month, he posted, “Jus cos they got tha street
number at the end of they ig name don’t mean they from tha
Set…. fcn actors 100 100 100 #WeDontKnoYouNigga
#AintNevaStarvedWitUs.” Another post warned, “Stop usin my
Set for tha fame u weird ass niggas. I’m chin checn niggas on
1 A gang expert testified that it is disrespectful to claim
membership in a gang to which you do not belong. Doing so can
result in being injured or killed.
2 Gram banging is a way to promote one’s gang using social
media.
2
sight cuhs (wheelchair emoji) St… y’all betta stay ready,
#NoWarninShots On my Grandpa in heaven 100 100 100.”
Dejon Smith, who went by Musterd, was Faatai’s friend.3
Musterd had also been friends with Johnson, but they had a
falling out. Johnson claimed to be a member of the Sex Money
Murder gang, which is a Crip set in North Long Beach. On
October 5, 2018, Musterd called out Johnson on Instagram,
saying “you are not a gang member! You are not from Long
beach. You are from Wilmington bitch. I am not from out here
Nigga I’m from south central. Bittch. I will beat yo fuckin ass
bitch.” Musterd then messaged Faatai that “bro is a claimer he
don’t even bang. He don’t wanna catch this fade he wanna bring
other people in to this but ok Ima look for bro rn.” Faatai
responded, “fuc ass monkey nigga. Ik that was chu when I seen
u.” “Monkey” and “Sex Monkeys” are derogatory terms for
members of Sex Money Murder.
The next day, October 6, 2018, Musterd messaged Faatai,
“Nd said so Wat fucc[4] sos. Me he said fucc that bitch ass nigga
mace.” Faatai responded, “Say no mas” and “its on.” About 10
minutes later, Faatai messaged savytherado32 that “Niggas
doesn’t tha set” and “I need my shit ASAP.” According to the
gang expert, in this context, “shit” usually refers to a weapon.
Savytherado32 said he would “give you your shit” but would not
go on a “burnt mission,”5 to which Faatai responded, “I fight my
3 Because another witness shares the same surname, we
refer to Dejon Smith as Musterd to avoid confusion, intending no
disrespect.
4 The gang expert testified that because a “c” followed by a
“k” means Crip Killer, gang members will cross out the “k” and
replace it with a “c.”
5 A “mission” usually refers to carrying out violence.
3
own battles.” They then texted about meeting, and Faatai told
savytherado32 to meet Faatai, who was waiting in a tan Chevy
Traverse. In additional messages to savytherado32, Faatai
continued to refer to “monkeys.”
On October 7, 2018, Johnson messaged Musterd that they
could have talked out their problems, but Musterd had “made it
serious” and now Johnson felt “threatened when you had Mace on
me.” Musterd told Johnson that he’d “added mace name for no
reason in a argument then sos. nowwww mace is it bro. Bro I’m
sorry but mace Finna get you bro. Nd he don’t play play bro. you
fucked up from me me for him bro it’s too late.”
II. The murder of Johnson
On October 25, 2018, at around 6:00 p.m., high school
friends Autaija Smith, Patricia Rose, Manuel Torres, Faith
Bustos, and Johnson, were walking home after grabbing snacks
from a store. They were at an intersection when a guy got out of
a car. Smith described the guy as almost six feet tall and “big,”
“like broad in the shoulders,” and wearing a jacket, long pants,
and blue underwear. When Johnson saw the guy, Johnson began
to “speed walk[ ]” away from the car. The guy, who had a gun
out, and Johnson exchanged words, and Smith heard the guy say
that Johnson was talking about “fuck monkeys.” Johnson said he
wasn’t trying to fight and didn’t know what the guy was talking
about. Smith then saw the guy fire five shots.
Rose testified at trial that Johnson had been her boyfriend.
She described the car that passed them as “like a SUV” and light
goldish in color. A guy wearing a Bape brand hoodie with a shark
design on it exited from the front passenger side, ran to the group
of friends, took out a gun, and said, “ ‘You know what this is.
Mace, nigga. Fuck Monkeys.’ ” Johnson replied that he had
4
nothing on him and raised his hands. Rose asked what the
problem was, and what was going on. Johnson ran, and the guy
fired at him. After shooting at Johnson, the guy ran back to the
car, and Rose took photos of the car. In video after the shooting,
Rose can be heard saying that Musterd “called this boy to shoot
him” and that the shooter was Samoan with a hood name of
Mace.
At trial, Rose identified Faatai as the shooter. Rose had
heard Mace’s name before because Mace had made a song, and
Johnson’s friend, Musterd, had a Samoan cousin named Mace.
Rose and Johnson followed Musterd on Instagram. After
Johnson was killed, Rose found photographs of Mace on
Instagram and recognized him as the shooter. According to Rose,
Johnson and Musterd had argued about a girl, and Rose
suggested that Musterd told Mace about the argument.
Torres also testified at trial. He described the shooter’s car
as “copperish, like, a chevy,” and boxy in structure. When the
shooter approached Johnson, Torres heard Johnson say he didn’t
have anything on him, but the shooter said he didn’t care. The
shooter wore a Dodgers sweatsuit, a Bape sweatshirt with a
shark face, and red vapor air max shoes. He had curly hair.
Although Torres said he saw the shooter’s face, at trial Torres did
not identify Faatai as the shooter when first asked if he saw the
shooter in the courtroom. But when asked a second time, Torres
identified Faatai. Torres had previously identified Faatai as the
shooter at the preliminary hearing. Also, two days after Johnson
was murdered, Torres identified Faatai as the shooter from a
photographic six-pack. Torres wrote on the six-pack that he saw
about 75 percent of the shooter’s face because the shooter had a
hood on, “but I seen his Instagram page and instantly knew it
5
was him because I seen him shoot my brother Christopher cold
hearted with my own eyes.”
III. The investigation
Five 9-millimeter casings recovered from the scene were
fired from the same gun. From the photographs Rose took of the
car, a detective identified it as a 2011 Chevy Traverse, which is a
small SUV.
Law enforcement searched Faatai’s home on November 1,
2018. In a bedroom, they found a notebook with writing and
drawings in it. In one drawing (People’s exhibit 61), an
individual holding an automatic firearm shoots a bullet through
the head of a man wearing a baseball cap backwards. A second
drawing (People’s exhibit 62) depicts a drive-by shooting: two
people shoot from a car at two people. “SOS” and “Mace#3” are
written on the drawing. The third drawing (People’s exhibit 92)
is of a man shooting an automatic gun at a bald man as the gun
ejects five casings. “Sons of Samoa” is written above the shooter’s
head.
A rap video entitled Set Trippin and featuring Faatai was
played for the jury. In it, Faatai raps about the “S gang” and
“niggas trippin’ in the field,” and “Grip the steel, where you
from?” Faatai identifies himself as “Mace 3 with the strap,” and
raps, “Keep the set out yo’ mouth, nigga if you don’t want no
beast. Waistline or the hands knock out yo’ teeth.” Faatai and
other men in the video display guns.
IV. Faatai’s defense
Faatai testified in his defense. Faatai knew Johnson but
had no personal problems with him. Faatai denied being a
member of Sons of Samoa, involvement in any drive-by shooting,
6
and shooting Johnson. Instead, on the day Johnson was killed,
Faatai was supposed to perform at a nightclub in Long Beach, so
he spent the day preparing for the show. At 6:00 p.m., when
Johnson was shot, Faatai was at home, resting. Although the
show didn’t start until about 10:00 or 11:00 p.m., Faatai arrived
at the club at about 9:00 p.m. However, he did not perform
because his fellow artist didn’t show up.
When asked about his Instagram account, he explained
that he was probably talking about clothes when he messaged a
friend saying he needed “my shit ASAP.” He admitted he was in
a tan Chevy Traverse on October 6, 2018, but that was the last
time he was in that car. And when he was in it, he was under the
influence, so he did not know whose car it was.
Faatai drew People’s 61, 62, and 92 when he was at
juvenile and fire camps in 2016.
Faatai admitted he had a Bape hoodie with a shark on it,
but he had it in the summer not in the fall when Johnson was
killed.6
V. Verdict and sentence
A jury found Faatai guilty of first degree murder (Pen.
Code,7 § 187, subd. (a); count 1) with true findings on personal
gun use allegations (§ 12022.53, subds. (b), (c) & (d)) and of
possession of a firearm by a felon with one prior (§ 29800, subd.
6 A photograph of Faatai wearing the sweatshirt in July
2018 was admitted.
7 All further undesignated statutory references are to the
Penal Code.
7
(a)(1); count 2).8 On February 14, 2022, the trial court sentenced
Faatai to 50 years to life on count 1 plus eight months on count 2.
DISCUSSION
I. Admission of the rap video and drawings
A. Additional background
Before trial, the People stated its intent to introduce the
drawings discovered in Faatai’s bedroom and the rap video on the
ground they were relevant to prove motive and identity. That is,
Faatai killed Johnson because Faatai thought that Johnson had
disrespected Faatai’s gang, Sons of Samoa. The rap video was
relevant to that motive because it mentioned Sons of Samoa,
talked about people who disrespect the gang, showed Faatai
displaying semiautomatic handguns, and Faatai used his
moniker, Mace. Over a defense objection under Evidence Code
section 352 that all the video showed were people pretending to
be gang members so that they could break into the music
business, the trial court admitted the rap video as well as the
drawings, finding they were not unduly prejudicial and were
relevant to motive and identity.
During his opening statement, the prosecutor played the
rap video and highlighted for the jury that at the end of it, Faatai
“says Mace3 with a strap [gun].” The prosecutor also referred to
the drawings as depicting Johnson’s murder, adding that “there
are other pictures of the defendant shooting other enemies of his
8 At trial, the parties stipulated that Faatai had a prior
felony conviction. Also, the trial court dismissed gang allegations
under section 186.22, subdivision (b)(1)(C) and (5) when the
prosecutor was unable to proceed on them.
8
gang and referencing all of his allies and who his enemies are.
And finally, a third picture showing him conducting a drive by.”
Then, during trial, the prosecutor introduced the rap video
and drawings into evidence. When the video was played, the trial
court instructed that it was coming in for the limited purpose of
motive and identity.
The prosecutor again referred to the rap video and
drawings in closing argument, saying they established that
Faatai was a member of Sons of Samoa known as Mace because
the video and drawings referenced the gang and the moniker.
References to other gangs established Faatai’s willingness to kill
enemies. And although the prosecutor said he did not know
when Faatai made the drawings, the prosecutor argued that
Faatai’s testimony that they were done in 2016 was not credible
and instead, the person being shot “in this drawing [9] bears a
remarkable resemblance to” to Johnson. After referencing Rose’s
testimony that she heard the shooter identify himself as Mace,
the prosecutor pointed out that Faatai had identified himself as
Mace3 in the video.
The trial court instructed the jury with CALCRIM
No. 1403, that it could consider “evidence of gang activity only for
the limited purpose of deciding whether the defendant had a
motive to commit the charged crime – the crime as charged. The
identity of the shooter. [¶] You may also consider this evidence
when you evaluate the credibility or believability of a witness and
when you consider the facts and information relied upon by an
expert witness in reaching his or her opinion. [¶] You may not
9 It is unclear to which drawing the prosecutor was referring.
If to the drawing of a man being shot through the head, the
victim in that drawing is bald. Johnson was not bald.
9
consider this evidence for any other purpose. You may not
conclude from this evidence that the defendant is a person of bad
character or that he has a disposition to commit a crime.”
B. Harmless error
Faatai contends that the rap video and drawings should
have been excluded under Evidence Code section 1101, which
generally prohibits bad character evidence, and that the evidence
was not otherwise admissible under the exception in subdivision
(b) of that section for evidence relevant to prove, for example,
motive or identity. (See generally People v. Ewoldt (1994) 7
Cal.4th 380.) He further contends that the evidence was
inadmissible under recently enacted Evidence Code section 352.2,
which restricts admissibility of forms of creative expression.10
10 Evidence Code section 352.2 provides, “In any criminal
proceeding where a party seeks to admit as evidence a form of
creative expression, the court, while balancing the probative
value of that evidence against the substantial danger of undue
prejudice under Section 352, shall consider, in addition to the
factors listed in Section 352, that: (1) the probative value of such
expression for its literal truth or as a truthful narrative is
minimal unless that expression is created near in time to the
charged crime or crimes, bears a sufficient level of similarity to
the charged crime or crimes, or includes factual detail not
otherwise publicly available; and (2) undue prejudice includes,
but is not limited to, the possibility that the trier of fact will, in
violation of [Evidence Code] Section 1101, treat the expression as
evidence of the defendant’s propensity for violence or general
criminal disposition as well as the possibility that the evidence
will explicitly or implicitly inject racial bias into the proceedings.”
10
We will assume without deciding that the evidence was
inadmissible under Evidence Code section 1101.11 Even so, it is
not reasonably probable the verdict would have been more
favorable to Faatai absent the error. (See, e.g., People v. Coneal
(2019) 41 Cal.App.5th 951 [applying state law harmlessness
standard of People v. Watson (1956) 46 Cal.2d 818].)12 Coneal, for
example, involved the retaliatory murder of a gang member. At
the defendant’s trial for the murder, the trial court admitted five
rap videos featuring the defendant and/or his gang and
containing violent lyrics about killing rivals, drive-by shootings,
and catching rivals by surprise. (Id. at p. 968.) The court found
that absent evidence the lyrics represented “real versus made up
events, or some persuasive basis to construe specific lyrics
literally, the probative value of lyrics as evidence of their literal
truth is minimal.” (Ibid.) Otherwise, the rap videos skirted too
dangerously close to constituting evidence of the defendant’s bad
character and should have been excluded. (Id. at p. 971.)
Although the trial court erred in admitting the rap videos,
Coneal, at page 972, found their admission harmless because the
defendant admitted he was a gang member, admitted trying to
get a gun the day the victim was killed, and admitted being at
the scene of the shooting, although he denied being the shooter.
Ballistics evidence also showed that there were two shooters,
contrary to the defendant’s story that there was just one.
11 We therefore do not decide whether Evidence Code section
352.2 applies retroactively to this case and whether the evidence
was admissible under that section.
12 We would reach the same conclusion even under the
beyond a reasonable doubt standard in Chapman v. California
(1967) 386 U.S. 18.
11
Here, any prejudice from the rap video and drawings, first,
was mitigated by the trial court’s limiting instruction that the
jury could consider evidence of gang activity “only for the limited
purpose of deciding whether” Faatai had a motive to commit the
charged crime, the shooter’s identity, and to evaluate the
credibility or believability of a witness. (CALCRIM No. 1403.)
The jury was further instructed not to consider the evidence for
any other purpose, including to conclude Faatai was a person of
bad character or that he had a disposition to commit a crime. We
presume the jury followed this instruction. (See, e.g., People v.
Olguin (1994) 31 Cal.App.4th 1355, 1368.) Faatai, however,
appears to suggest that the trial court should have instructed the
jury with CALCRIM No. 375. But defense counsel did not ask for
that instruction and instead agreed that the jury should be
instructed with CALCRIM No. 1403. Moreover, CALCRIM No.
375 limits the use a jury may make of uncharged criminal
conduct evidence. It is unclear that CALCRIM No. 375 applies to
the rap video and the drawings, and Faatai’s appellate counsel
makes no clear argument it does.
Second, the rap video and the drawings arguably were not
compelling evidence that Faatai had a motive to kill Johnson,
that Faatai was known as Mace, and that he killed Johnson.
While the rap video tended to show that Faatai was a gang
member known as Mace, other evidence left little doubt on that
score: Mace was the name on Faatai’s Instagram account. Also,
his Instagram posts were replete with references to his moniker
Mace, to Sons of Samoa or SOS, and to a gang lifestyle. The
drawings, while depicting violent shootings, are not clear
references to Johnson’s murder, notwithstanding the prosecutor’s
argument that at least one bore a resemblance to it. Rather, the
12
victim in People’s exhibit 61 wears a baseball cap and is shot
through the head: Johnson was not wearing a baseball cap when
he was shot, and he was not shot through the head. In People’s
exhibit 62, two people shoot from a car at two victims at 15th and
Cedar: Johnson’s lone killer got out of the car and shot only
Johnson, and the murder did not occur at 15th and Cedar. The
victim in People’s exhibit 92 is bald and wears a shirt with a M
on it: Johnson was not bald and was not wearing such a shirt
when he was shot. Therefore, there were significant differences
between what the drawings depicted and Johnson’s murder.
Third, Faatai’s own statements established his motive to
kill Johnson. A gang expert explained that falsely claiming to be
a gang member is disrespectful to real gang members and can
result in violent retaliation, and Faatai repeatedly expressed his
contempt for such “fake n[ ]” in his Instagram posts. Musterd
then told Faatai about one such “claimer”: Johnson. And when
Musterd added that Johnson had disparaged Sons of Samoa and
Mace, Faatai called Johnson a “fuc ass monkey” and said, “it’s
on.” A reasonable inference from this is that Faatai intended to
retaliate against Johnson.
Fourth, there was similarly strong evidence that Faatai
intended to retaliate specifically by killing Johnson, because
within minutes of learning that Johnson had disrespected him
and Sons of Samoa, Faatai told savytherado32 that he needed his
“shit ASAP.” Savytherado32 agreed to give Faatai his “shit”—
inferentially a gun—but refused to go on a mission with Faatai,
who said he could “fight my own battles.” Further Instagram
exchanges between Faatai and savytherado32 show that the two
did indeed meet, the reasonable inference being so that
savytherado32 could give Faatai a gun. (See, e.g., People v.
13
Coneal, supra, 41 Cal.App.4th at p. 972 [defendant admitted he
tried to get a gun the day victim was killed].)
Other evidence established that Faatai intended to kill
Johnson. Musterd warned Johnson that Mace was “Finna get
you bro,” and “he don’t play play bro. you fucked up from me me
for him bro it’s too late.” Johnson told Musterd that he felt
threatened by Mace. Indeed, the evidence suggests that Johnson
knew his killer and was immediately afraid, because when the
shooter got out of the Chevy Traverse, Johnson started to walk
quickly away.
Next, physical evidence linked Faatai to the murder. The
killer wore a Bape hoodie with a shark on it, and Faatai owned
such a hoodie. Also, Faatai told savytherado32 on October 6,
2018 that he was in a tan Chevy Traverse. At trial, Faatai
admitted he was in that car on October 6. Weeks later, on
October 25, Johnson’s killer got out of and escaped in a tan or
goldish Chevy Traverse. Thus, just weeks before Johnson was
killed, Faatai was in a car that was the same make, model, and
color of the car the killer used.
Finally, Rose and Torres, both of whom were physically
close to the shooter and Johnson during the incident, identified
Faatai as the killer. Rose heard the killer identify himself as
“Mace.” Both witnesses were steadfast in their identifications.
Immediately after Johnson was shot, video shows Rose saying
that the shooter was a Samoan named Mace. Rose again
identified Faatai as the shooter at trial. Torres similarly
maintained that Faatai was the shooter, identifying him just
days after the murder from a photographic six-pack, at the
preliminary hearing, and at trial.
14
Faatai, however, suggests that Rose’s and Torres’s
identifications were unreliable. Although he cites general
pronouncements about potential problems with eyewitness
identification (see, e.g., United States v. Wade (1967) 388 U.S.
218, 228), the defense did not call an expert on identification and
did not attack the witnesses’ identifications on this ground. And
although he further suggests that this case involved cross-racial
identifications, the record does not conclusively establish the race
of all the witnesses and parties.
Faatai also suggests that Rose was not credible because she
could not recall whether she witnessed an altercation between
Johnson and Musterd during which Johnson pulled a knife on
Musterd. A jury, however, is entitled to believe parts of a
witness’s testimony and disbelieve other parts. (Stevens v.
Parke, Davis & Co. (1973) 9 Cal.3d 51, 67.) The jury therefore
could believe that Rose correctly identified Faatai as the shooter
and that she was lying about her ability to recall the incident
between Johnson and Musterd. Also, even if the jury believed
that Rose was lying about her ability to recall the incident, then
that Johnson pulled a knife on Musterd, who was Faatai’s friend
or cousin, could further show that Faatai had a motive to kill
Johnson.
Faatai also questions Rose’s credibility because she wore to
trial a shirt stating on the back, “Justice for I.C.,” referring to
Johnson. When, after Rose took the oath, the parties realized
what she was wearing, the court took a break and directed Rose
to put on a jacket. It is unclear whether the jurors saw the back
of Rose’s shirt. But even if they did, they were clearly aware that
Rose might have a bias, because she testified that Johnson was
her boyfriend. The jury was fully able to evaluate and to weigh
15
any issues about Rose’s credibility. (See generally People v. Lee
(2011) 51 Cal.4th 620, 632 [determining witness’s credibility is
exclusive province of jury].)
Nor did Faatai’s testimony necessarily help his cause.
Although he denied shooting Johnson, Faatai merely said that at
6:00 p.m. when Johnson was shot, Faatai was at home resting, in
preparation for a show later that evening that never happened.
Faatai also admitted key facts linking him to the murder. He
admitted he had a Bape hoodie with a shark design on it like the
one the shooter wore, except he said he owned it in the summer of
2018 but not the fall of 2018 when Johnson was murdered. He
admitted being in a tan Chevy Traverse in the weeks before the
murder. He admitted using the monikers Mace and Maceso3rd.
And Faatai admitted that “probably” one of his posts referred to
people disrespecting the set [gang], even though he denied being
a member of Sons of Samoa.
Faatai also gave the jury reason to question his credibility
by giving answers that even on the cold record were flippant and
dismissive. When asked what he meant by “fissn” in one
Instagram post, he said, “I don’t know. I’m not a literature
teacher”; when asked what S stood for in another Instagram post,
“ ‘I know chu, but this S,” Faatai said that S is the 19th letter in
the alphabet; when asked what he meant by responding to a post
with “monkey,” he said that monkeys are animals that live in the
jungle; and when asked why he referred to Johnson as a
“monkey,” when it is also a racial slur, Faatai said that Johnson
looked like a monkey.
The evidence of Faatai’s guilt was thus overwhelming and
compelling such that it is not reasonably probable a jury would
have rendered a more favorable verdict had the rap video and
16
drawings not been admitted. Indeed, we note that the jury
reached its verdict in about 30 minutes, suggesting that the jury
did not consider the issue of Faatai’s guilt to be close. (See, e.g.,
People v. Thomas (2011) 51 Cal.4th 449, 484.)
For the same reasons, we do not agree that admitting the
rap video and drawings violated Faatai’s due process rights by
rendering his trial fundamentally unfair, which occurs when
there are no permissible inferences to be drawn from the
evidence. (Coneal, supra, 41 Cal.App.5th at p. 972.) As we have
said, the evidence here supported multiple inferences.
II. Sentencing error
The trial court imposed an indeterminate term of 50 years
to life (25 years to life for the murder plus 25 years to life for the
gun enhancement) on count 1 and a determinate term of eight
months (one-third the middle term) on count 2. In so sentencing
Faatai, the trial court effectively treated the indeterminate term
in count 1 as the principal term and imposed a subordinate term
of one-third the middle term on count 2. This was error.
California Rules of Court, rule 4.451(a), requires a determinate
term (here, count 2) to be computed without reference to the
indeterminate term (here, count 1). The trial court therefore had
to sentence Faatai on count 2 to a term of 16, 24, or 36 months.
Because the eight month term could not lawfully be imposed on
count 2, that term was unauthorized. (See generally People v.
Scott (1994) 9 Cal.4th 331, 354.)
17
DISPOSITION
The sentence is vacated, and the matter is remanded for
resentencing. The judgment of conviction is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
NGUYEN (KIM), J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
18