People v. Trotter CA2/7

Filed 10/20/22 P. v. Trotter CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B318152
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA058971)
v.
RAMON TROTTER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Tomson T. Ong, Judge. Affirmed in part and
reversed in part with directions.
Noriega Law Firm and Lauren Noriega, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Steven E.
Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2005 a jury convicted Ramon Trotter of first degree
murder, three attempted murders, and related crimes in
connection with a shooting spree on the freeway. The jury also
found true the special circumstance allegation the murder was
committed “by means of discharging a firearm from a motor
vehicle, intentionally at another person or persons outside the
vehicle with the intent to inflict death.” (Pen. Code, § 190.2,
subd. (a)(21).)1 The trial court sentenced Trotter on the murder
conviction to a prison term of life without the possibility of parole,
and on each of the three attempted murder convictions to life in
prison with a minimum term of parole eligibility of seven years.
The court also imposed additional terms for various firearm
enhancements. We affirmed Trotter’s convictions on direct
appeal. (People v. Trotter (July 25, 2007, B187097) [nonpub.
opn.].)
In 2021 Trotter filed a petition under section 1172.6
(former section 1170.95), which, as amended effective January 1,
2022, authorized certain individuals convicted of murder under
the felony-murder rule or murder, attempted murder, or
voluntary manslaughter under the natural and probable
consequences doctrine, to petition for resentencing. After finding
Trotter had made a prima facie showing he was eligible for relief,
the superior court issued an order to show cause, held an
evidentiary hearing, and denied the petition. Trotter argues the
court erred in denying his petition because the prosecution failed
1 Statutory references are to the Penal Code.
2
to prove beyond a reasonable doubt he is ineligible for relief
under section 1172.6. We reverse the superior court’s order
denying Trotter’s petition on one of his three attempted murder
convictions, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Trotter of Murder, Attempted
Murder, and Other Crimes
One evening in October 2002, shortly before midnight,
Trotter drove a white SUV to a skating rink, where he drove
around the parking lot while his passengers spoke to various
people there.2 As people began to leave after the rink closed,
Trotter followed three cars onto the freeway. The driver of one of
the cars was Latisha Stephens; she had a passenger in her car,
Leonora Anaya. The driver of one of the other cars was Kenith
Murphy (he had no passengers), and the driver of the third car
was Curtis Galbert (also with no passengers).
After a few minutes on the freeway, one of the occupants of
Trotter’s car fired a shot into the driver’s side of Stephens’s car.
Anaya, the passenger, heard a gunshot and saw the driver’s side
window shatter and Stephens slump over the steering wheel.
Anaya saw a light-colored SUV “driving by” at the time of the
shooting; after the shooting, she observed the SUV “driving off” in
the carpool lane. Anaya moved onto Stephens’s lap to gain
control of the car and drove off the freeway at the first exit.
2 We granted the People’s motion to augment the record with
the record of Trotter’s direct appeal (People v. Trotter, supra,
B187097). (See Cal. Rules of Court, rule 8.155(a)(1).)
3
Trotter drove his car up to Murphy’s car, “pulled up
alongside” it, and slowed down. Two guns appeared out of the
windows of Trotter’s car, and the occupants started firing into the
passenger’s side of the second car. Murphy saw muzzle flashes
and observed that the driver and the rear passenger wore “skull
caps” pulled down to their eyebrows. Murphy heard his window
shatter and Trotter’s car “speed up” toward the car in front of
him.
Trotter pulled his car up “almost parallel” to Galbert’s car,
and the occupants of Trotter’s car fired into the driver’s side of
Galbert’s car. Galbert said Trotter’s car “matched his speed” as
he heard shots hitting his car. Galbert leaned forward “to stay
out of the bullets’ path,” veered toward the right, and got off the
freeway at the first exit. Trotter then drove his car back to
Murphy’s car, this time along the driver’s side, and the occupants
fired “a couple of more shots” at Murphy.
Stephens died from a gunshot wound to the head. The
other victims survived. At trial, the prosecution introduced
evidence Trotter was a gang member.
The jury convicted Trotter on one count of first degree
murder (§ 187, subd. (a)), three counts of attempted murder
(§§ 187, subd. (a), 664), and three counts of shooting at an
occupied motor vehicle (§ 246).3 On the murder conviction, the
jury found true the special circumstance allegation Trotter
committed the murder by means of shooting a firearm from a
3 The jury also convicted Trotter of other crimes in
connection with an unrelated incident. (People v. Trotter
(July 25, 2007, B187097) [nonpub. opn.].) Those convictions are
not part of this appeal.
4
motor vehicle with the intent to inflict death (§ 190.2, subd.
(a)(21)), the allegation a principal personally and intentionally
discharged a firearm causing great bodily injury or death
(§ 12022.53, subds. (d), (e)(1)), and the allegation a principal
personally and intentionally used and discharged a firearm
(§ 12022.53, subds. (b), (c) & (e)(1)). On the attempted murder
convictions, the jury found true the allegations that the
attempted murders were “willful, deliberate, and premeditated”
(§ 664, subd. (a)) and that a principal personally and
intentionally used and discharged a firearm (§ 12022.53, subds.
(b), (c) & (e)(1)). On the convictions for shooting at an occupied
vehicle, the jury found true multiple firearm allegations
(§ 12022.53, subds. (b)-(d), (e)(1)).4 The jury also found true the
allegation Trotter committed the offenses for the benefit of, at the
direction of, or in association with a criminal street gang, with
the specific intent to promote, further, or assist in criminal
conduct by gang members (§ 186.22, subd. (b)(1)(C)).
The trial court sentenced Trotter on his murder conviction
to life in prison without the possibility of parole, plus 25 years to
life for the firearm enhancement. The court sentenced Trotter on
each of his three attempted murder convictions to a term of life in
prison with a minimum parole eligibility of seven years, plus 20
years for the firearm enhancement. The court also imposed but
stayed execution of a term of 15 years to life on each of Trotter’s
4 On one of the convictions for shooting at an occupied
vehicle, the jury found true the allegations under section
12022.53, subdivisions (b), (c), (d), and (e)(1), and on the other
two convictions for shooting at an occupied vehicle, the jury found
true the allegations under section 12022.53, subdivisions (b), (c),
and (e)(1).
5
three convictions for shooting at an occupied vehicle. (People v.
Trotter, supra, B187097.)5
B. Trotter Files a Petition Under Section 1172.6, and the
Superior Court Denies It
On March 18, 2021 Trotter filed a petition for resentencing
under section 1172.6. Trotter alleged that a complaint,
information, or indictment “was filed against [him] that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,”
that he “was convicted of murder and attempted
murder following the [prosecution’s] use of [the] felony-murder
rule and aiding and abetting [natural and probable consequences
theory] at trial,” and that he “would not have been convicted by
plea or jury of murder or attempted murder today because of the
changes to Section[s] 188 and 189 made effective January 1, 2019
by SB 1437.” The People filed an informal response arguing they
could “prove beyond a reasonable doubt that . . . Trotter remains
guilty of murder . . . under a direct aiding and abetting theory.”
The superior court issued an order to show cause.
At the evidentiary hearing the court without objection
received the record of Trotter’s conviction, including the
transcript of the trial. The People argued Trotter could still be
convicted of first degree murder under, among other theories,
direct aiding and abetting liability. The People argued Trotter
aided and abetted the murder and attempted murders by driving
the SUV in the manner he did, including how he “positioned the
5 We recite the procedural history from the appellate opinion
in Trotter’s direct appeal. (See § 1176.2, subd. (d)(3); People v.
Flores (2022) 76 Cal.App.5th 974, 988.)
6
car, both in speed and by maneuvering, next to each of the
victim’s cars.” The People also argued the jury’s true findings on
the special circumstance allegation under section 190.2,
subdivision (a)(21), and on the allegation the attempted murders
“were deliberate and premeditated” supported the conclusion
Trotter “committed first degree murder and remains guilty under
the laws as they exist today.”
Counsel for Trotter argued the record did not indicate
Trotter formed a plan to shoot people or even knew his
passengers were armed. According to counsel for Trotter, the
jury’s true finding on the special circumstance murder was “not
dispositive,” and the parties had “to relitigate” the finding under
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark).6 Counsel for Trotter also
questioned whether the gunfire from the occupant of Trotter’s car
6 In People v. Banks, supra, 61 Cal.4th 788 the Supreme
Court held the special circumstance allegation under section
190.2, subdivision (d), which provides for increased punishment
for certain aiders and abettors of first degree felony murder,
requires that “[t]he defendant must be aware of and willingly
involved in the violent manner in which the particular offense is
committed, demonstrating reckless indifference to the significant
risk of death his or her actions create.” (Id. at p. 801.) The
Supreme Court also held the defendant’s “personal involvement
must be substantial” and listed several factors courts should
consider in determining whether a defendant was a “major
participant” in the commission of a crime. (Id. at p. 803.) In
People v. Clark, supra, 63 Cal.4th 522, the Supreme Court listed
factors to “aid [the] analysis” of whether the defendant “exhibited
‘reckless indifference to human life’ within the meaning of section
190.2, subdivision (d).” (Clark, at p. 618.)
7
caused Stephens’s death and claimed a feeding tube caused her
blood sugar to drop, which in turn caused her death.7
The superior court ruled the cause of Stephens’s death was
“not really an issue” because “that has been litigated already and
that’s the law of the case.” Instead, the court stated, the
determinative issue was “whether or not . . . Trotter is a direct
aider and abettor or major participant under any of those
theories.” The court summarized the facts of the shooting and
stated that “the question is whether or not . . . Trotter shared the
same kind of intention as the person who shot because he is the
driver.” The court stated that “the slowing down and speeding up
actually does not favor the defense” because “the whole purpose
behind it was to align the cars so that the shooting can properly
take place.” The court also stated Trotter would have pulled over
“if, in fact, that was not the intention of . . . Trotter to have the
shooting in . . . [Stephens’s] car by [his passenger].” The court
found that, based on how Trotter drove the SUV and “positioned”
the car “as the captain of the ship” to “accomplish its means,”
Trotter essentially, “except for pulling the trigger, . . . effectuated
the shooting.” The court found Trotter was “a major participant”
and denied his petition. Trotter timely appealed.
7 Stephens’s gunshot wound caused significant injury to her
brain. She could not breathe or eat on her own; and had a
feeding tube, which caused peritonitis.
8
DISCUSSION
A. Senate Bill No. 1437 and the Section 1172.6 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) substantially modified the law governing accomplice
liability for murder, eliminating the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843) and
significantly narrowing the felony-murder exception to the malice
requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see
People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis
(2021) 11 Cal.5th 952, 957).8 As amended by Senate Bill
No. 1437, section 188, subdivision (a)(3), prohibits imputing
malice based solely on an individual’s participation in a crime
and requires proof of malice to convict a principal of murder,
except under the revised felony-murder rule in section 189,
subdivision (e). The latter provision requires the People to prove
specific facts relating to the defendant’s individual culpability:
The defendant was the actual killer (§ 189, subd. (e)(1)); the
defendant, though not the actual killer, with the intent to kill
8 In October 2021 the Governor signed Senate Bill No. 775
(2021-2022 Reg. Sess.), which amended former section 1170.95,
subdivision (a), to allow persons convicted of attempted murder
under the natural and probable consequences doctrine to petition
for resentencing. (Stats. 2021, ch. 551, § 2; see People v. Coley
(2022) 77 Cal.App.5th 539, 544.) Effective June 30, 2022, the
Legislature renumbered section 1170.95 to section 1172.6
without changing the text of the statute. (Stats. 2022, ch. 58,
§ 10; see People v. Strong, supra, 13 Cal.5th at p. 708, fn. 2.)
9
assisted in the commission of the murder (§ 189, subd. (e)(2)); or
the defendant was a major participant in a felony listed in section
189, subdivision (a), and acted with reckless indifference to
human life, “as described in subdivision (d) of Section 190.2,” the
felony-murder special-circumstance provision. (Strong, at p. 708;
see Gentile, at pp. 842-843.)
Senate Bill No. 1437 also authorized, through section
1172.6, an individual convicted of felony murder or murder based
on the natural and probable consequences doctrine to petition the
superior court to vacate the conviction and be resentenced on any
remaining counts if he or she could not now be convicted of
murder because of the changes Senate Bill No. 1437 made to the
definitions of the crime. (See People v. Strong, supra, 13 Cal.5th
at p. 708; People v. Lewis, supra, 11 Cal.5th at p. 957; People v.
Gentile, supra, 10 Cal.5th at p. 843.) As the Supreme Court
clarified in Lewis, and as amendments by Senate Bill No. 775
made explicit, if a section 1172.6 petition contains all the
required information, the court must appoint counsel to represent
the petitioner if requested. (Lewis, at pp. 962-963; see § 1172.6,
subds. (b)(1)(A), (3).) The prosecutor must then file a response to
the petition, the petitioner may file a reply, and the court must
hold a hearing to determine whether the petitioner has made a
prima facie showing he or she is entitled to relief. (§ 1172.6,
subd. (c).)
Where, as here, the petitioner has made the requisite
prima facie showing he or she is entitled to relief under section
1172.6, the court must issue an order to show cause and hold an
evidentiary hearing to determine whether to vacate the murder
conviction and resentence the petitioner on any remaining
counts. (§ 1172.6, subd. (d)(1).) At that hearing the court may
10
consider evidence “previously admitted at any prior hearing or
trial that is admissible under current law,” including witness
testimony. (§ 1172.6, subd. (d)(3).) The petitioner and the
prosecutor may also offer new or additional evidence. (Ibid.; see
Gentile, supra, 10 Cal.5th at pp. 853-854.)
On appeal from an order denying a petition under section
1172.6, we review the trial court’s factual findings for substantial
evidence. (People v. Richardson (2022) 79 Cal.App.5th 1085,
1090; People v. Ramirez (2021) 71 Cal.App.5th 970, 985.) We
“‘“examine the entire record in the light most favorable to the
judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value that would support a rational trier of fact in finding
[the defendant guilty] beyond a reasonable doubt.’” [Citation.]
Our job on review is different from the trial judge’s job in
deciding the petition. While the trial judge must review all the
relevant evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
rational fact finder’s findings beyond a reasonable doubt.”
(People v. Clements (2022) 75 Cal.App.5th 276, 298; see
Richardson, at p. 1090.) “‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence.’” (People v. Brooks (2017) 3 Cal.5th 1, 57; see
People v. Nieber (2022) 82 Cal.App.5th 458, 476.)
11
B. Trotter Is Ineligible for Resentencing Relief on His
Murder Conviction
1. Relevant Proceedings in the Trial Court
The trial court instructed the jury with CALJIC No. 3.00,
which defined principals and aiders and abettors: “Persons who
are involved in committing or attempting to commit a crime are
referred to as principals in that crime. Each principal, regardless
of the extent or manner of participation, is equally guilty.
Principals include: (1) those who directly and actively commit or
attempt to commit the act constituting the crime; or (2) those who
aid or abet the commission or attempted commission of the
crime.” The court also instructed the jury on aiding and abetting
liability with CALJIC No. 3.01: “A person aids and abets the
commission or an attempted commission of a crime when he or
she: (1) with knowledge of the unlawful purposes of the
perpetrator; and (2) with the intent or purpose of committing or
encouraging or facilitating the commission of the crime; and
(3) by act or advice, aids, promotes, encourages, or instigates the
commission of the crime. . . .”
The court instructed the jury on the natural and probable
consequences doctrine with CALJIC No. 3.02. The court told the
jurors that, to find Trotter guilty of murder, attempted murder,
or shooting at an occupied motor vehicle, they had to find Trotter
aided and abetted the commission of the crime of willful,
unlawful, malicious discharge of a firearm from a motor vehicle
(former § 12034, subd. (d)) or driving a vehicle and knowingly
permitting any other person to discharge a firearm from a vehicle
(former § 12034, subd. (b)), and that the murder, attempted
murder, or shooting at an occupied motor vehicle was a natural
12
and probable consequence of the commission of either target
crime.9
The court instructed the jury on the elements of murder
(CALJIC No. 8.10), the definition of malice (CALJIC No. 8.11),
the elements of murder perpetrated by means of discharging a
firearm from a motor vehicle with the intent to inflict death
(CALJIC No. 8.25.1), the elements of attempted murder (CALJIC
No. 8.66), and the requirements for a true finding on the
allegation the attempted murder “was willful, deliberate, and
premeditated” (CALJIC No. 8.67). And the court gave CALJIC
No. 8.80.1, which defined the special circumstance allegation
under section 190.2, subdivision (a)(21): “If you find the
defendant in this case guilty of murder of the first degree, you
must then determine if the following . . . circumstance is true or
not true: that the murder was intentional and perpetrated by
means of discharging a firearm from a motor vehicle intentionally
at another person or persons outside the vehicle with the intent
to inflict death. The People have the burden of proving the truth
of a special circumstance. If you have a reasonable doubt as to
whether a special circumstance is true, you must find it to be not
true. If you find that a defendant was not the actual killer of a
human being, or if you are unable to decide whether the
defendant was the actual killer or an aider and abettor, you
cannot find the special circumstance to be true unless you are
satisfied beyond a reasonable doubt that such defendant with the
intent to kill aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted any actor in the commission of
9 In 2010 the Legislature renumbered section 12034 to
section 26100. (Stats. 2010, ch. 711, § 4, operative Jan. 1, 2012;
see People v. Rodarte (2014) 223 Cal.App.4th 1158, 1160, fn. 2.)
13
the murder in the first degree.” The court did not instruct on the
felony-murder rule.
After discussing the evidence Trotter was guilty of
attempted murder and shooting at an occupied vehicle, the
prosecutor stated: “We’ve talked about attempted murder. We’ve
talked about shooting at an occupied car. We’re about to talk
about murder. The defendant does not have to have an intent to
kill, OK. He doesn’t have to have the intent to kill. It’s just the
people who are shooting from the car that have to have the
intention.” Counsel for Trotter objected, “Misstates the law.”
The court responded, “It’s overruled. The jury will take the law
from the jury instructions.”
The prosecutor continued: “He doesn’t have to have an
intent to kill. It’s just the shooters who do. He does not have to
have . . . premeditated or deliberated. It’s the shooters who have
had to have premeditated and deliberated in terms of the attempt
to kill. So again, the natural and probable consequences,
whatever the shooter did, the defendant is equally guilty.”
The prosecutor discussed the cause of death, the
requirements for the jury to find the perpetrators acted with
malice, and the elements of murder by means of discharging a
firearm from a vehicle with the intent to kill. The prosecutor
explained the special circumstance allegation under section
190.2, subdivision (a)(21): “You also have an allegation, a special
circumstance, in this case which you’ll need to make a decision on
which will also be on the verdict form. . . . The special
circumstance is also drive-by murder. OK. It’s the same. It’s the
same piece of law in terms of what the special circumstance
involves: shooting from a vehicle at someone outside of the
vehicle with the intent to kill. For the murder, as we’ve talked
14
about with aiding and abetting and the natural and probable
consequences theory, the defendant does not have to have the
intent to kill, right? He can aid and abet in the shooting from the
vehicle, and then whatever the shooters do, he’s responsible for.
It’s different with a special circumstance. With a special
circumstance, to find the special circumstance to be true, you
must decide that the defendant had the intent to kill when he
aided and abetted the shooters in the drive-by murder. OK. So it
adds that extra element of, did the defendant, in fact, intend to
kill when he is positioning his vehicle, the [SUV], alongside these
various victims’ vehicles on the freeway?”
The prosecutor argued: “And certainly, we have evidence of
that. If you look at the driving, the pattern of driving that’s
described by the victims, OK. With respect to Miss Anaya, she
simply says that the vehicle comes by in the carpool lane and
Miss Stephens is shot. But with respect to Mr. Murphy, we know
that he says that the [SUV] comes up on the passenger side and
actually comes up alongside him. Who is responsible for that?
The driver. Right. The driver has ultimate control of this
vehicle. He’s responsible for how and where the vehicle is
positioned and he’s responsible for how the shooters are
positioned, so to speak, with respect to the victims’ vehicles.” The
prosecutor continued to describe Trotter’s driving pattern with
respect to Galbert’s car and stated, “Does [Trotter] have the
intent to kill during the drive-by? Yes, in terms of when he’s
positioning his vehicle alongside of these victims’ vehicles, he’s in
control. He’s in control. So, the special circumstance is, in fact,
true.”
15
2. The Jury’s True Finding on the Special
Circumstance Allegation Precludes Trotter from
Relief on His Murder Conviction
The jury’s true finding under section 190.2,
subdivision (a)(21), that Trotter aided and abetted Stephens’s
murder by means of discharging a firearm from a motor vehicle
“with the intent to inflict death” necessarily means the jury found
Trotter had the intent to kill. The jury instruction and the
prosecutor’s argument made clear that, to find the special
circumstance allegation true, the jury had to find that Trotter
(not just the shooters) had the intent to kill when he aided and
abetted the shooters in committing murder. As discussed,
Trotter is not eligible for relief under section 1172.6 if he acted
with the intent to kill. (§ 189, subd. (e); see People v. Strong,
supra, 13 Cal.5th at p. 710 [“Senate Bill 1437 relief is unavailable
if the defendant was either the actual killer, acted with the intent
to kill, or ‘was a major participant in the underlying felony and
acted with reckless indifference to human life.’”]; Gentile, supra,
10 Cal.5th at p. 848 [“‘Senate Bill 1437 does not eliminate direct
aiding and abetting liability for murder because a direct aider
and abettor to murder must possess malice aforethought.’”].) By
finding Trotter had the intent to kill, the jury in effect found
Trotter guilty of murder as a direct aider and abettor. (Cf. People
v. Medrano (2021) 68 Cal.App.5th 177, 183-184 [“By convicting
appellant of conspiracy to commit first degree murder,” the jury
“in effect found that appellant was a direct aider and abettor of
the killings” because the jury instruction required the jury to find
he acted “‘with the specific intent to agree to commit . . . first
degree murder and with the further specific intent to commit
such offense.’”].)
16
The jury’s true finding on the drive-by murder special
circumstance allegation means the jury could not have convicted
Trotter of murder under the natural and probable consequences
doctrine. As discussed, by finding Trotter had the intent to kill,
the jury did not impute malice to Trotter and convict him under a
no-longer valid theory. Therefore, Trotter can “presently be
convicted of murder” (§1172.6, subd. (a)(3)), notwithstanding
changes to sections 188 or 189. (See People v. Mancilla (2021)
67 Cal.App.5th 854, 864, 867-868 [defendant was “ineligible for
relief under section [1172.6] as a matter of law” because the jury
did not convict him under a theory of liability affected by the
2019 amendments to the law of murder].)
Trotter mistakenly relies on “recent Supreme Court
rulings” that he says (without naming them) “detail how and why
special circumstance findings predating Banks and Clark do not
result in ineligibility for relief” under section 1172.6. Banks and
Clark, however, concerned the felony-murder rule, not the drive-
by murder special circumstance finding under section 190.2,
subdivision (a)(21). The Supreme Court in Banks and Clark
clarified the requirements for a finding under section 190.2,
subdivision (d), the provision that prescribes increased
punishment (death or life imprisonment without the possibility of
parole) for a defendant who aids and abets the commission of
certain felonies that result in death.10 (See Strong, supra,
10 Section 190.2, subdivision (d), provides: “Notwithstanding
subdivision (c), every person, not the actual killer, who, with
reckless indifference to human life and as a major participant,
aids, abets, counsels, commands, induces, solicits, requests, or
assists in the commission of a felony enumerated in paragraph
(17) of subdivision (a) which results in the death of some person
17
13 Cal.5th at p. 721 [Banks “substantially clarified the law
surrounding major participant findings,” and Clark
“substantially clarified the relevant considerations for
determining whether a defendant has acted with reckless
indifference to human life”].) As discussed, the trial court did not
instruct the jury on the felony-murder rule, and the People did
not allege or argue to the jury that Trotter committed one of the
enumerated felonies under section 190.2, subdivision (a)(17).
(See Gentile, supra, 10 Cal.5th at p. 848 [felony-murder rule does
not apply where the People do not charge the defendant with “a
predicate felony that can serve as the basis for felony murder”];
People v. Medrano, supra, 68 Cal.App.5th at p. 182 [“‘A felony
murder arises when a killing occurs in the course of the
commission of one of the predicate felonies enumerated in . . .
section 189.’”].)
Trotter also argues the prosecutor’s closing argument
“repeatedly reminded” the jury that his “intent was irrelevant.”
This much is true: The prosecutor discussed the natural and
probable consequences theory in her closing argument and told
or persons, and who is found guilty of murder in the first degree
therefor, shall be punished by death or imprisonment in the state
prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has
been found to be true under Section 190.4.” Section 190.2,
subdivision (a)(17), provides for increased punishment where the
defendant commits murder while he or she “was engaged in, or
was an accomplice in, the commission of, attempted commission
of, or the immediate flight after committing, or attempting to
commit” certain enumerated felonies.
18
the jury that under that theory Trotter did “not have to have the
intent to kill,” which was consistent with CALJIC No. 3.02. And
the trial court, after overruling counsel for Trotter’s objection
that the prosecutor had misstated the law, instructed the jury to
“take the law from the jury instructions.” (See People v. Dalton
(2019) 7 Cal.5th 166, 260 [“‘We presume that jurors treat the
court’s instructions as a statement of the law by a judge, and the
prosecutor’s comments as words spoken by an advocate in an
attempt to persuade.’”]; People v. Centeno (2014) 60 Cal.4th 659,
676 [“‘When argument runs counter to instructions given a jury,
we will ordinarily conclude that the jury followed the latter and
disregarded the former.’”]; People v. Meneses (2019)
41 Cal.App.5th 63, 75 [“We presume the jury followed the court’s
instructions, rather than any conflicting comment by counsel, in
reaching a verdict.”].)
Significantly, however, the prosecutor did not tell the jury
that, for the drive-by murder special circumstance, the jury did
not need to find Trotter had the intent to kill. In fact, the
prosecutor stated the opposite: To find the special circumstance
allegation true, the jury had to “decide that [Trotter] had the
intent to kill when he aided and abetted the shooters in the drive-
by murder.” The prosecutor emphasized the special circumstance
allegation “adds that extra element” that Trotter had the intent
to kill when he positioned his car next to each victim on the
freeway. Thus, even though the prosecutor discussed the natural
and probable consequences theory, her argument correctly
distinguished the instruction on that theory from the instruction
on the special circumstance allegation, which required the jury to
find Trotter had the intent to kill when he aided and abetted the
murder of Stephens. (See People v. Sanchez (2001) 26 Cal.4th
19834, 852 [“Jurors are presumed able to understand and correlate
instructions.”].)
C. Substantial Evidence Supported the Superior Court’s
Finding Trotter Aided and Abetted the Attempted
Murders of Murphy and Galbert
“To prove the crime of attempted murder, the prosecution
must establish ‘the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended
killing.’” (People v. Canizales (2019) 7 Cal.5th 591, 602; see
People v. Booker (2011) 51 Cal.4th 141, 177-178; People v.
Cardenas (2020) 53 Cal.App.5th 102, 111.) “Direct evidence of
intent to kill is rare, and ordinarily the intent to kill must be
inferred from the statements and actions of the defendant and
the circumstances surrounding the crime.” (Canizales, at p. 602;
see People v. Nguyen (2015) 61 Cal.4th 1015, 1055 [“‘Evidence of
a defendant’s state of mind is almost inevitably circumstantial,
but circumstantial evidence is as sufficient as direct evidence to
support a conviction.’”].)
“‘A “person aids and abets the commission of a crime when
he or she, acting with (1) knowledge of the unlawful purpose of
the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by
act or advice aids, promotes, encourages or instigates, the
commission of the crime.”’ [Citation.] ‘[T]o be guilty of attempted
murder as an aider and abettor, a person must give aid or
encouragement with knowledge of the direct perpetrator’s intent
to kill and with the purpose of facilitating the direct perpetrator’s
accomplishment of the intended killing—which means that the
person guilty of attempted murder as an aider and abettor must
20
intend to kill.’” (People v. Nguyen, supra, 61 Cal.4th at p. 1054;
accord, People v. Offley (2020) 48 Cal.App.5th 588, 596; People v.
Pettie (2017) 16 Cal.App.5th 23, 52.)
“‘Among the factors which may be considered in making the
determination of aiding and abetting are: presence at the scene of
the crime, companionship, and conduct before and after the
offense.’” (People v. Nguyen, supra, 61 Cal.4th at p. 1054; see
People v. Johnson (2019) 32 Cal.App.5th 26, 60.) The jury may
also consider “‘flight’” in determining “whether a defendant aided
and abetted in the commission of the crime.” (People v. Lara
(2017) 9 Cal.App.5th 296, 322.)
As the superior court found, Trotter, the “captain” of the
SUV, maneuvered his car on the freeway to enable his
passengers to take clear shots at each of the drivers in succession.
Trotter followed the caravan of three cars from the skating rink
onto the freeway. He drove his car at a precise speed to allow the
shooter to hit Stephens in the head with one shot. He drove
alongside the passenger side of Murphy’s car to allow the
shooters to fire at Murphy and drove parallel to Galbert’s car to
allow the shooters to fire 13 bullets into the driver’s door. And,
for good measure, Trotter steered his car back toward Murphy’s
car, this time on the driver’s side, to give the shooters a second
opportunity to kill Murphy. And as he drove and positioned his
car so that his confederates could line up their shots, Trotter
(along with one of the shooters) wore a skull cap pulled down to
the eyebrows, presumably to prevent witnesses from identifying
him, which further supported the conclusion Trotter knew his
passengers planned to commit the shooting. (See In re Jose D.
(1990) 219 Cal.App.3d 582, 585 [substantial evidence supported
the court’s finding the defendant aided and abetted attempted
21
murder where the defendant “deliberately maneuvered the car”
near the victims as his passenger pointed a gun at them, and the
defendant parked the car in front of a house where the passenger
fired at another victim]; see also People v. Nguyen, supra,
61 Cal.4th at pp. 1053-1055 [substantial evidence supported the
jury’s finding the defendant aided and abetted attempted murder
where the defendant assisted the shooter by “spotting potential
targets” from the back seat of the car as a rival gang member
drove by]; People v. Swanson-Birabent (2003) 114 Cal.App.4th
733, 743-744 [“‘one who is present . . . to take charge of an
automobile and to keep the engine running, or to drive the
“getaway” car and to give direct aid to others in making their
escape from the scene of the crime, is a principal in the crime
committed’”].)
Finally, after the shooter fired the first shot, Trotter did not
pull over or render aid to Stephens; instead, Trotter pulled up
alongside the next car so that the shooters could try to kill the
driver. Nor did Trotter pull over or render aid to Murphy after
the shooters attempted to kill him; instead, consistent with
sharing the shooters’ intent to kill, Trotter placed his car parallel
to the next victim’s car. And after the third shooting, Trotter did
not pull over or render aid to Galbert but (again) attempted to
assist the shooters in killing Murphy. Trotter’s actions before,
during, and after each shooting was substantial evidence that he
knew the shooters aimed to kill and that, to facilitate each
attempted murder, he aligned his car with each target to help the
shooters to achieve their objectives. As the superior court
observed, except for pulling the trigger, Trotter “effectuated” the
shooting. (See People v. Abelino (2021) 62 Cal.App.5th 563, 578
[presence at the scene of the crime and failure to take steps to
22
prevent a crime may be “considered together with other evidence
in determining that a person is an aider and abettor”]; People v.
Nguyen (1993) 21 Cal.App.4th 518, 529-530 [same]; see also
People v. Garcia (2008) 168 Cal.App.4th 261, 274 [“a defendant’s
conduct after a crime, including flight, is a relevant factor in
determining his liability for aiding and abetting a crime”].)
Citing Murphy’s testimony that the shooters “shot his
vehicle while approaching from behind” and that the SUV “sped
past him immediately after the shots shattered his back window,”
Trotter argues he “drove to purposely place distance between the
vehicles after hearing the gunshots, and that any ‘maneuvering’
was for the purpose of getting his vehicle away from other
vehicles.” The record does not support Trotter’s characterization
of Murphy’s testimony. Murphy testified that, after his rear
windshield shattered, he saw Trotter’s car “coming up” on the
driver’s side and slowing down when it reached the side of his
car, at which point he saw two guns coming out of the windows
and the muzzle flashes from the shots. That the shooters also
fired at Murphy’s car from behind did not undermine the court’s
finding that Trotter’s driving pattern demonstrated he shared the
shooters’ intent to kill. It simply showed the shooters attempted
to kill Murphy from the rear, and when their first attempt failed,
Trotter skillfully placed his car next to Murphy’s to give the
shooters a second opportunity to kill him. The evidence did show,
as Trotter asserts, that he tried to distance himself from each
victim’s car after the shooters fired their shots, but not for the
innocent reason he suggests. The evidence showed Trotter sped
off either to position his car alongside the next victim’s vehicle or
to flee when the shooters had finished shooting. And, of course,
the superior court resolved any potential conflict in the evidence
23
in favor of the People. (See People v. Sifuentes (2022)
83 Cal.App.5th 217, 233 [on appeal from an order denying a
petition for resentencing under section 1172.6, “‘“[c]onflicts and
even testimony [that] is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province
of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination
depends”’”].)
Trotter also argues the People “offered no evidence
demonstrating [he] had knowledge of any passenger’s intent or
plan to commit any crime.” As discussed, however, the People
may establish intent and knowledge with circumstantial
evidence. (People v. Nguyen, supra, 61 Cal.4th at p. 1054; see
People v. White (2014) 230 Cal.App.4th 305, 319 [in determining
the state of mind of the aider and abettor, the “existence of the
requisite knowledge may be established by circumstantial
evidence”].) Trotter’s actions in following the three cars onto the
freeway from the skating rink, positioning his car to enable each
shooting to take place, and fleeing the scene of the crime instead
of rendering aid was substantial evidence that he knew his
passengers intended to shoot people on the freeway and that he
shared their intent to kill Murphy and Galbert.
D. Substantial Evidence Did Not Support the Court’s
Finding Trotter Aided and Abetted the Attempted
Murder of Anaya
“‘“[G]uilt of attempted murder must be judged separately as
to each alleged victim.”’” (People v. Perez (2010) 50 Cal.4th 222,
230; see People v. Canizales, supra, 7 Cal.5th at p. 602 [“When a
single act is charged as an attempt on the lives of two or more
24
persons, the intent to kill element must be examined
independently as to each alleged attempted murder victim.”].)
An “intent to kill cannot be ‘transferred’ from one attempted
murder victim to another under the transferred intent doctrine.”
(Canizales, at p. 602; see People v. Windfield (2021)
59 Cal.App.5th 496, 514.)
The shooter in Trotter’s SUV fired a single shot at
Stephens, hitting her in the head. However, aside from this
evidence, and the evidence Trotter placed his car next to
Stephens’s car to enable the shooter to take the shot, there was
no evidence either the shooter or Trotter took any actions
suggesting Trotter intended to aid and abet the shooter in killing
the passenger in Stephens’s car, Anaya. The shooter did not fire
a second shot at Stephens’s car, and Trotter did not maneuver his
car in a way to suggest he had any intent for the shooter to kill
both Stephens and Anaya with one bullet. The evidence does
suggest Trotter had a conscious disregard for the consequences of
killing Stephens, the driver, but such an inference cannot support
a conviction for attempted murder of her passenger. (See People
v. Stone (2009) 46 Cal.4th 131, 139-140 [“[i]mplied malice—a
conscious disregard for life—suffices for murder but not
attempted murder,” and “transferred intent does not apply to
attempted murder”]; People v. Bland (2002) 28 Cal.4th 313, 327
[same].) Substantial evidence did not support the superior
court’s finding Trotter intended to kill Anaya. (See People v.
Perez, supra, 50 Cal.4th at p. 231 [substantial evidence did not
support convictions for attempted murder where the defendant
fired a single bullet at a group of peace officers, and there was no
evidence the defendant “specifically intended to kill two or more
persons with the single shot”]; cf. People v. Smith (2005)
25
37 Cal.4th 733, 743 [substantial evidence supported the jury’s
finding the “defendant acted with intent to kill both victims when
he fired off a single round at them from close range, each of whom
he knew was directly in his line of fire”]; People v. Chinchilla
(1997) 52 Cal.App.4th 683, 691 [“Where a defendant fires [one
shot] at two officers, one of whom is crouched in front of the
other, the defendant endangers the lives of both officers and a
reasonable jury could infer from this that the defendant intended
to kill both.”].) Because the People did not prove beyond a
reasonable doubt Trotter could still be convicted of the attempted
murder of Anaya, Trotter is entitled to relief under section
1172.6. (See People v. Howard (2020) 50 Cal.App.5th 727, 736.)
The People argue there “is no evidence to suggest that
[Trotter] acted with ‘intent to kill’ as to Stephens, but that he
harbored a different mental state as to Stephens’s passenger.”
Perhaps, but Trotter did not have the burden to prove he did not
intend to kill Anaya; the People had the burden to show Trotter
did. (See § 1172.6, subd. (d)(3); People v. Lewis, supra, 11 Cal.5th
at p. 960.)
E. Any Procedural Errors Were Harmless
Trotter argues there were several procedural errors at the
evidentiary hearing: The court “inexplicably found that [he] was
a major participant”; the court “based its ruling, denying relief,
upon its own memory of the case”; and the prosecutor made
arguments “without citing to the record.” While the superior
court’s finding Trotter was a major participant was inexplicable,11
11 Whether Trotter was a major participant who acted with
reckless indifference to human life is irrelevant because he was
26
Trotter does not explain how the other two purported errors were,
in fact, errors. For example, Trotter does not argue that the
court’s recollection of the relevant facts was inaccurate, nor does
he identify any statutory or case authority requiring the
prosecutor to provide citations to the reporter’s transcript.12 (See
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363
[if a party’s briefs “do not provide legal argument and citation to
authority on” an issue, the issue is forfeited]; People v. Flint
(2018) 22 Cal.App.5th 983, 995, fn. 11 [failure to support an
argument with “independent authority or analysis” forfeits the
argument]. Indeed, the Legislature’s decision to require a
petitioner to file a petition under section 1172.6 “with the court
that sentenced the petitioner” (§1172.5, subd. (b)(1)) suggests the
court’s prior experience with the case is relevant.
not convicted of felony murder. The court’s error, however, was
harmless because the court found Trotter shared the shooters’
intent to kill and, as discussed, could still be convicted as an
aider and abettor of the attempted murders of Murphy and
Galbert. (See People v. Estrada (2022) 77 Cal.App.5th 941, 949
[where “the record shows [the defendant] was convicted as a
direct aider and abettor,” the defendant is “ineligible for section
[1172.6] relief”]; see also People v. Turner (2020) 10 Cal.5th 786,
807 [“‘“[A] ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If
right upon any theory of the law applicable to the case, it must be
sustained regardless of the considerations which may have
moved the trial court to its conclusion.”’”].)
12 Trotter’s related contention that the prosecutor’s
“argument was based upon assumption and facts not contained in
the trial record” is meritless because the prosecutor referred to
the trial evidence and discussed the testimony of some of the
witnesses.
27
In any event, any such error by the superior court or
claimed misconduct by the prosecutor was harmless. (See People
v. Lewis, supra, 11 Cal.5th at p. 973 [“Typically, when an ‘error is
purely one of state law, the [People v. Watson (1956) 46 Cal.2d
818] harmless error test applies.’”]; People v. Mancilla, supra,
67 Cal.App.5th at p. 864 [same].) The defendant must
“‘demonstrate there is a reasonable probability that in the
absence of the error he . . . would have obtained a more favorable
result.’” (Lewis, at p. 974, see Mancilla, at p. 864.) The
admissible evidence (§ 1172.6, subd. (d)(3)), which includes the
reporter’s transcript of the trial (see People v. Owens (2022) 78
Cal.App.5th 1015, 1020; People v. Clements, supra, 75
Cal.App.5th at p. 293), establishes Trotter could still be convicted
of first degree murder and the attempted murders of Murphy and
Galbert. Thus, even if the court applied the wrong legal analysis
(i.e., the analysis for a defendant convicted of felony murder),
improperly relied on its memory of the trial, or erred in allowing
the prosecutor to make an argument without citing the record,
Trotter cannot demonstrate a reasonable probability that, in the
absence of any such errors, the court would have granted him
relief on the murder conviction and two of the three attempted
murder convictions. (See People v. Garcia (2022) 82 Cal.App.5th
956, 973 [because the defendant “was convicted on a murder
theory that remains valid after Senate Bill No. 1437,” the “trial
court’s purported failure to apply the proper standard of proof in
denying defendant’s petition for resentencing was harmless”];
People v. Garrison (2021) 73 Cal.App.5th 735, 745 [same]; People
v. Myles (2021) 69 Cal.App.5th 688, 707, 711 [any error in
admitting the parole assessment report and transcript of the
parole hearing was harmless because other documents provided
28
“strong circumstantial evidence that defendant acted alone” in
committing the murder].)
DISPOSITION
The order denying Trotter’s petition under section 1172.6
for resentencing on his conviction for the attempted murder of
Anaya is reversed, and the judgment is modified to vacate his
conviction and sentence on that count. In all other respects, the
order denying Trotter’s petition is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
29