People v. Armstrong CA2/5

Filed 4/8/16 P. v. Armstrong CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B258639
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA420534)
v.
JOHN ARMSTRONG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis
J. Landin, Judge. Affirmed in part, modified in part, and reversed in part with directions.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General,
for Plaintiff and Respondent.
________________________
The jury found defendant and appellant John Armstrong guilty of second degree
murder. (Pen. Code, § 187.)1 It found true the special allegation that Armstrong
committed the murder while engaged in the crime of robbery within the meaning of
section 190.2, subdivision (a)(17), and that the murder was committed for the benefit of a
criminal street gang. (§ 186.22, subd. (b)(1)(C).)
The trial court sentenced Armstrong to 15 years-to-life in prison, plus 10 years for
the gang allegation. The court stated that it was imposing and staying sentence on the
robbery-murder special circumstance, but did not pronounce a sentence.
Armstrong contends that: (1) insufficient evidence supports his conviction; (2) the
trial court erred in failing to sua sponte instruct the jury on voluntary and involuntary
manslaughter as lesser included offenses of murder; (3) admission of testimony from the
preliminary hearing for codefendant Curtis Deshawn Lowe’s 1990 manslaughter
conviction violated Armstrong’s constitutional rights to due process and a fair trial; (4)
the prosecutor committed misconduct during closing argument; (5) he was prejudiced by
cumulative error at trial; (6) the jury’s true finding on the robbery-murder special
circumstance must be stricken; and (7) the abstract of judgment must be corrected to
reflect that direct victim restitution fines and burial costs are payable jointly and severally
with codefendants Lowe and Sedric Wayne Scott.2
We agree with Armstrong that the jury’s true finding on the robbery-murder
special circumstance must be stricken because it is inapplicable as a matter of law to a
second degree murder conviction, and that the abstract of judgment must be amended to
reflect that the $5,000 in direct victim restitution fines and burial costs imposed are
1
All future references are to the Penal Code unless otherwise stated.
2
Armstrong, Lowe, Scott, and Nathaniel Willard were tried jointly. Lowe and
Scott have a separate direct appeal pending in case number B260127. The trial court
granted Willard’s request for dismissal pursuant to section 1118.1. Subsequent to his
dismissal from the case, Willard testified for the prosecution.
2
payable jointly and severally with codefendants Lowe and Scott, but otherwise affirm the
judgment.
FACTS
Prosecution
The Murder of Patrick Lister
On May 14, 2012, Armstrong and Scott, members of the Swans criminal street
gang, were standing in front of the Three Star Market with several other Swans members,
including Nathaniel Willard and Mitchell Johnson. Patrick Lister was walking toward
the market, when Scott and Armstrong “hit him up” and asked him “where he was from.”
Lister did not respond. He walked past Scott and Armstrong and entered the market.
They followed Lister into the market and confronted him just inside the doorway. Scott
tore a gold chain from Lister’s neck and ran out of the market, taunting him. Lister
pursued Scott with his arms extended. Scott threw a punch at Lister. Armstrong ran over
and punched Lister. Scott pocketed the chain. A group of Swans members surrounded
Lister and began beating him.
Lowe was not present when the incident started. He ran from across the street and
joined the group surrounding Lister after the altercation began. Lowe’s sister Keisha
came out of a laundromat behind the market and saw the men beating Lister. She
recognized Lister as the brother of her close childhood friend. Keisha grabbed Lowe by
the neck and yelled, “What are you all doing? That’s Veronica’s brother.” She told the
gang members to get off of Lister, and the group broke apart. Scott returned the chain to
Lister. Keisha saw blood on Lister’s shirt and told him he was “leaking.” Keisha saw
that Lister’s chest was covered in blood.
Lister died on May 17, 2012, from a six-inch deep stab wound to the left side of
his chest that pierced his heart. The wound would have required the use of significant
3
force. Lister also sustained a three-inch deep nonfatal stab wound to his lower back.
There were no defensive wounds to his hands. Lister was 5 feet 9 inches tall, and his
weight was estimated at approximately 170 to 180 pounds.
Officers recovered a gold chain with a broken clasp from Lister’s car.
Surveillance Video
Portions of the attack on Lister were recorded on the market’s video surveillance
cameras. Defendants stipulated that they were depicted in the videos. The videos
showed numerous Swans members at the scene, including Armstrong, Scott, Willard, and
Johnson, greeting one another and shaking hands. The videos displayed Armstrong and
Scott approaching Lister. Scott is shown ripping the chain and running away while
holding it over his head. Lister is seen chasing him, with his arms extended toward the
chain. Scott throws a punch in Lister’s direction, and then shoves the chain into his
pocket. Armstrong also throws a punch in Lister’s direction, and then all three men move
out of camera range.
Moments later, Lowe is shown walking into view from the direction of the fight.3
He moves something from his left hand to his right hand, puts it in his pocket, and goes
into the market. Scott, Armstrong, and Willard then appear on camera, coming from the
same direction as Lowe. A man wearing blue walks toward the market. At the entrance,
he and Armstrong talk and shake hands. As the man starts to go into the market, Lowe
walks out and pokes him in the chest, pushing him back. Armstrong puts his arm out
straight across Lowe’s arms and chest as Lowe advances toward the man in blue.
Armstrong says something to Lowe, and the two bump hands in a friendly manner. Lowe
walks back into the market, followed by the man in blue. While standing below the
inside camera, Lowe opens his right palm and looks down at it. Armstrong and Lowe
leave the market together talking in a friendly manner, and disappear from view.
3
The stabbing was not depicted in the recording.
4
Witnesses
The police arrested Willard4 on June 8, 2012. In a recorded conversation, which
was played for the jury, Willard admitted to a confidential informant that he had been
present at the incident. Willard stated that he was a Swans member and he saw the fight
between Scott and Lister. Lowe stabbed Lister, and Armstrong was also involved. Scott
returned the chain to Lister when the fight ended. He saw Lister bleeding from the
stabbing. Officers interviewed Keisha and Johnson. Johnson stated that “Everybody out
there [at the market was] from Swans.” He saw Scott and Armstrong fighting Lister.
Johnson said that Lowe stabbed Lister, but he did not actually see the stabbing. When
Johnson got off the school bus that day, Lowe flashed a “little palm knife” that flipped
open. It was “a little bit longer” than five inches. Lowe did not just show the knife to
Johnson; he showed it to “everybody.”
Expert Testimony
Los Angeles Police Department Gang Enforcement Officer Bobby Romo testified
regarding the Swans criminal street gang, a Bloods gang with over 400 active members.
The Swans members primarily wear red. Their symbol is a swan. They have a rivalry
with the Crips, who wear blue. Swans’ primary activities include murder, assault with a
deadly weapon, vandalism, and criminal threats.
Gangs commit crimes such as shootings, robberies, and tagging to foster fear and
respect from the community and rival gangs. Individual members will commit crimes
and acts of violence to gain status within the gang. Gangs are territorial. If a rival gang
member enters a gang’s territory, gang members will ask where he is from to verify his
gang affiliation. Rival gang members can be killed for entering a gang’s territory. The
4
Willard was called as a witness by the prosecution after the charges against him
were dismissed pursuant to section 1118.1.
5
Three Star Market was on the “main threshold” of Swans territory. Swans members
congregated in the area frequently.
Based on tattoos, admissions, and their habits and associations, Officer Romo
opined that Scott, Lowe, Armstrong, and Willard were members of the Swans gang.
Given a hypothetical tracking the facts in this case, Officer Romo opined that the murder
would have been committed for the benefit of, at the direction of, and in association, with
the gang. The gang members worked in concert. One of them robbed the victim, which
would bolster his own reputation. The gang would view the victim as showing disrespect
when he challenged the robber and tried to get his property back. The others backed up
the robber by participating in the assault, which would be expected of members of the
same gang to protect the gang’s reputation.
Detective Everardo Amaral was assigned to the Los Angeles Police Department’s
Criminal Gang Homicide Division. He had been an officer for 16 years at the time of the
trial, and had extensive gang training, including training to identify gang members.
Detective Amaral was the primary investigating officer in the case. He identified
defendants in the video. Detective Amaral testified that, according to booking photos,
Scott was 5 feet 7 inches tall and weighed 130 pounds at the time of his arrest.
Defense 5
Scott
Scott testified that he had suffered three prior convictions involving weapons
possession. In two of the incidents, he gave false names to the arresting officers.
Scott had been an active member of the Swans gang since high school. Scott
testified that Armstrong was a Swans gang member who went by the gang moniker
“Biscuit.” Mitchell Johnson was a Swans gang member who went by the moniker
5
Armstrong did not testify in his own defense.
6
“Jack.” Willard was also a Swans member. Scott was not friends with Willard and
Armstrong because they were older than he.
On May 14, 2012, Scott walked to the Three Star Market with his friend Randy.
He was waiting for Randy outside the store when he saw Lister at the entrance. Scott had
seen Lister around other members of the Swans gang. Lister was acting and speaking
strangely, but was not addressing anyone. Lister stepped inside and faced Scott. Scott
said, “Why are you tripping? Why don’t you leave.” Lister responded, “Fuck you, man.
We can do whatever.” Scott reached to pull Lister out of the store and touched his chest.
He was trying to grab Lister’s shirt to make him leave. Lister extended his arms and
came at Scott. Scott backed up and swung at Lister. He was afraid that Lister was going
to hit him.
Scott admitted that he and Armstrong approached Lister first, and that Armstrong
was trying to hit Lister. Scott “accidentally” broke Lister’s chain, but he gave it back to
him and walked away. Lister was not bleeding when Scott returned the chain. When
Scott left, Lister was trying to put the chain back on.
Scott did not see Armstrong punch Lister until he viewed the market’s video
surveillance footage. Scott left after the confrontation. He did not know Lister was
stabbed and did not know who stabbed him. Scott did not know Lowe. The first time he
saw Lowe was on the surveillance footage.
Scott did not steal Lister’s gold chain for the benefit of the Swans gang and did not
have a prearranged plan with the other defendants to steal Lister’s chain or kill him. The
Swans were peaceful. He did not know of any violence between the Swans and Crips
gangs. He did not know of any Swans gang member who carried a gun or a knife.
Asking someone on the street “Where you from?” was not threatening, but was just “a
way to get to know someone.”
7
Lowe
Lowe has numerous felony convictions, including a conviction for voluntary
manslaughter committed while he was a Swans gang member in May 1990. An
individual named Kenneth Solomon was involved in a fight with 9 to 10 Swans gang
members. According to Lowe’s testimony, Lowe threw a brick during the fight, which
struck Solomon on his head and killed him. Lowe did not intend to kill Solomon. He
pled guilty to voluntary manslaughter and served five years in prison for the offense.
The prosecution was permitted to impeach Lowe with the preliminary hearing
testimony of Willie Mae McGowan relating to the killing of Solomon. According to the
prior testimony, McGowan and Solomon drove to the vicinity of 839 78th Street in Los
Angeles to buy drugs. When they arrived there were approximately 9 to 10 people
present. Solomon asked, “Who has the snow?” Lowe’s codefendant, Keith Walker, told
Solomon he would have to get out of the car and come over because there were police in
the area. The man who Solomon was supposed to meet walked over to him, punched him
in the stomach, and said, “This is swan.” McGowan believed the man was referring to
the Swans gang. Someone said, “Give up the dove,” and everyone in the group moved
toward Solomon and began beating him. Solomon fell to the ground after being struck
with a flowerpot. Another person said, “Let’s kill this mother fucker.” Lowe picked up a
very large brick and walked over to Solomon. McGowan yelled, “Please don’t kill him.”
Lowe raised the brick up and slammed it down on Solomon’s head. The force was so
great that it caused Solomon’s body to “jump off the ground.” Walker pulled off
Solomon’s jacket, which had $200 in it. Some of the men were touching Solomon’s
pants pockets. McGowan believed Solomon was dead, so she drove away.
Lowe further testified that he had not been involved with the Swans since 1990.
He had multiple tattoos, including a tattoo of a “B,” which did not mean anything; he just
liked Boston. He had a tattoo of a swan on his arm to memorialize his dead wife. The
tattoo had nothing to do with the Swans gang. In 1996, after he was released from prison,
8
Lowe moved from Los Angeles to Rialto, although he used his mother’s address in Los
Angeles for his parole officer.
Lowe was at the Three Star Market on May 14, 2012. He did not know Lister,
Willard, Scott, or Armstrong, did not fight with Lister, did not see anyone else fight with
or stab Lister, and did not kill Lister. Keisha never touched Lowe on the day of the
incident, nor did she pull him away from a group of people. While in the market, Lowe
pushed a man wearing blue with his right hand after the man had made a remark about
his niece or sister.
Lowe testified that the surveillance video showed him taking a “cell phone” from
his right hand and putting it into his left hand outside the store. Lowe was left-handed
and had “limited mobility” in his right arm due to injuries. He did not have the strength
to stab anyone with his right arm, and was not carrying a knife or any other weapon that
day.
Rebuttal
Homicide investigator Dean Vinluan had investigated 25 gang-related homicides,
two of which involved members of the Swans gang. Several of the cases involved fights
that escalated into deadly violence. Gang members settle their disputes more violently
than other people.
DISCUSSION
Sufficiency of the Evidence
Armstrong contends his conviction for second degree murder must be reversed,
because there was insufficient evidence that the stabbing was a natural and probable
consequence of a simple assault and battery. He argues that because he and Lowe did not
know one another, and Lowe was not present when the altercation started, a reasonable
9
person would not have foreseen that a murder by stabbing was a natural and probable
consequence of a “‘beat down’ of Lister.” Armstrong argues that Lowe acted
independently in a manner that was unforeseeable. We are not persuaded.
Law
“In considering an appellate challenge to the sufficiency of the evidence, state law
requires this court to ‘review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ (People v. Johnson (1980) 26 Cal.3d 557,
578.) Under the due process clause of the Fourteenth Amendment, an appellate court
must ‘determine whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307, 318.) The
reviewing court does not address whether it believes the evidence established guilt
beyond a reasonable doubt. ‘Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. [Citation.]’”
(People v. Miranda (2011) 199 Cal.App.4th 1403, 1411-1412.)
“All persons concerned in the commission of a crime, . . . whether they directly
commit the act constituting the offense, or aid and abet in its commission, . . . are
principals in any crime so committed.” (§ 31.) “[A] person [directly] aids and abets the
commission of a crime when he or she, acting with (1) knowledge of the unlawful
purpose of the perpetrator; and [with] (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.” (People v. Beeman
(1984) 35 Cal.3d 547, 561.) “[U]nder the natural and probable consequences doctrine, an
aider and abettor is guilty not only of the intended crime, but also ‘for any other offense
that was a “natural and probable consequence” of the crime aided and abetted.’
10
[Citation.] Thus, for example, if a person aids and abets only an intended assault, but a
murder results, that person may be guilty of that murder, even if unintended, if it is a
natural and probable consequence of the intended assault. [Citation.]” (People v. McCoy
(2001) 25 Cal.4th 1111, 1117.)
Discussion
Substantial evidence supports the jury’s finding that Lister’s murder was a natural
and probable consequence of the assault and battery. Armstrong concedes that he is a
Swans gang member and that he committed an assault and battery against Lister.
Armstrong and Lowe were members of the same gang and shared a common purpose in
attacking Lister. Lowe admitted that he belonged to the Swans gang when he murdered
Solomon in 1990. Officer Romo opined that based on tattoos, admissions, and his habits
and associations, Lowe was a Swans member. Minutes after Lister was stabbed, Lowe
was shown on video shoving a man dressed entirely in blue, the color of the rival Crips
gang, conduct consistent with that of an active Swans member. Johnson testified that
Lowe backed off after Armstrong held him back and told him that the man in blue was
from a friendly gang—an additional indication that Lowe was a Swan and knew that
Armstrong was as well. The Three Star Market was within Swans gang territory and was
a known hangout for Swans members. The surveillance footage showed numerous
Swans members, including Willard, Scott and Armstrong, gathered in front of and just
inside the market, greeting each other and hanging out. The evidence tends to show that
Lowe was a Swans member, and that he likely knew that Armstrong and Scott were
Swans as well.
Armstrong does not challenge the jury’s finding that he acted for the benefit of a
criminal street gang pursuant to section 186.22, subdivision (b)(1)(C). Officer Romo
testified that the primary activities of the Swans include murder and assault with a deadly
weapon. Gang members back each other up in a fight to protect the reputation of the
gang and to boost their own status within the gang. It was reasonably foreseeable that
11
one of the many fellow Swans members who frequented the market would join the fight
to back up Armstrong and Scott. Given the gang’s primary activities, it was also
reasonably foreseeable that whoever rendered aid would be armed with a deadly weapon
and that murder could result as a natural and probable consequence of the assault and
battery. Substantial evidence supports the second degree murder conviction.
Involuntary and Voluntary Manslaughter Instructions
Armstrong contends that the trial court erred in failing to sua sponte instruct the
jury on the lesser included offenses of voluntary manslaughter based on a sudden quarrel
or heat of passion, and involuntary manslaughter based on an unintentional killing
occurring during the commission of an assault and battery. We conclude that the trial
court did not err, nor has Armstrong established prejudice.
Law
“‘A trial court has a duty to instruct the jury “sua sponte on general principles
which are closely and openly connected with the facts before the court.” [Citation.]’ . . .”
(People v. Gutierrez (2009) 45 Cal.4th 789, 824; see People v. Breverman (1998) 19
Cal.4th 142, 154 (Breverman).) This obligation includes the duty to give instructions on
lesser included offenses. (Ibid.) “Both voluntary and involuntary manslaughter are lesser
included offenses of murder.” (People v. Brothers (2015) 236 Cal.App.4th 24, 30.) In a
murder case, the trial court must instruct on these lesser included offenses, if there is
substantial evidentiary support for them. (Breverman, supra, at p. 160.) We review de
novo the claim that a trial court failed to properly instruct the jury on the applicable
principles of law. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
In determining whether substantial evidence exists to support an instruction, trial
courts should not usurp the jury’s function of evaluating the credibility of witnesses.
(Breverman, supra, 19 Cal.4th at p. 162.) Substantial evidence means, in this context,
12
“‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]”’
that the lesser offense, but not the greater, was committed. [Citations.]” (Ibid.)
Speculation is insufficient to require the giving of an instruction on a lesser included
offense. (People v. Mendoza (2000) 24 Cal.4th 130, 174.)
“Manslaughter is the unlawful killing of a human being without malice.” (§ 192.)
“Malice is presumptively absent when a defendant kills ‘upon a sudden quarrel or heat of
passion’ (§ 192, subd. (a)). . .” (People v. Cruz (2008) 44 Cal.4th 636, 664.)
“[R]egardless of the manner an act of involuntary manslaughter is committed, the killing
must be unintentional.” (People v. Dixon (1995) 32 Cal.App.4th 1547, 1556.)
Discussion
Voluntary manslaughter under a heat of passion theory requires both provocation
and heat of passion. (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708 (Gutierrez).)
“‘First, the provocation which incites the [perpetrator] to act in the heat of passion case
must be caused by the victim or reasonably believed by the accused to have been engaged
in by the [victim]. [Citations.] Second, . . . the provocation must be such as to cause an
ordinary person of average disposition to act rashly or without due deliberation and
reflection.’ (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.)” (Gutierrez,
supra, at pp. 708-709.) “The test of adequate provocation is an objective one. . . . The
provocation must be such that an average . . . person would be so inflamed that he or she
would lose reason and judgment. Adequate provocation and heat of passion must be
affirmatively demonstrated.” (People v. Lee (1999) 20 Cal.4th 47, 60, citing People v.
Sedeno (1974) 10 Cal.3d 703, 719; People v. Williams (1969) 71 Cal.2d 614, 624.)
“‘“[N]o specific type of provocation [is] required . . . .”’ [Citations.] Moreover, the
passion aroused need not be anger or rage, but can be any ‘“‘[v]iolent, intense, high-
wrought or enthusiastic emotion’”’ [citations] other than revenge [citation].”
(Breverman, supra, 19 Cal.4th at p. 163.)
13
Armstrong argues that “the combination of Lister’s size and the physical
altercation between Lister and Scott, which Scott testified was initiated by Lister” was
sufficient evidence of provocation to support a voluntary manslaughter instruction. We
disagree.
In every version of the evidence presented at trial, Scott instigated the altercation
with Lister. According to Scott’s testimony, which is the most favorable to Armstrong,
Scott initiated both the verbal and physical contact with Lister. Scott testified that he
spoke to Lister first, strongly suggesting to Lister that he leave the market. Scott then
reached out to remove Lister from the market, and touched his chest, accidentally
breaking the chain Lister was wearing. In response, Lister extended his arms, and came
at Scott. Scott took a swing at Lister. At that point, Armstrong joined in the altercation
and hit Lister. Lister had not hit Scott prior to Armstrong’s intervention.
These circumstances would not cause “‘an ordinary person of average disposition
to act rashly or without due deliberation and reflection.’ [Citation.]” (Gutierrez, supra,
112 Cal.App.4th at p. 709.) There was no evidence that Lister touched Scott in any way
before Armstrong joined the altercation. Scott feared Lister would hit him, but he did not
claim that Lister struck him, and Lister was not shown hitting Scott in the surveillance
videos. “‘“A provocation of slight and trifling character, such as words of reproach,
however grievous they may be, or gestures, or an assault, or even a blow, is not
recognized as sufficient to arouse, in a reasonable man, such passion as reduces an
unlawful killing with a deadly weapon to manslaughter.”’ (People v. Wells (1938) 10
Cal.2d 610, 623.)” (People v. Najera (2006) 138 Cal.App.4th 212, 226.) Absent an
affirmative showing of sufficient provocation, the trial court had no duty to instruct sua
sponte on voluntary manslaughter.
Nor did the court have a duty to instruct as to involuntary manslaughter. There are
no facts in the record that would support a finding that the killing was unintentional.
Lister died of a stab wound to the chest, which punctured his heart, and also sustained a
stab wound to the back. There was no testimony that the stabbings were accidental or
that Armstrong lacked a subjective appreciation that stabbing Lister in such a manner
14
would endanger his life. To the contrary, the nature and seriousness of these injuries
leaves little doubt that their infliction was intentional. The medical examiner testified it
would take significant strength to stab Lister deeply enough to puncture his heart, and
any speculation that the injury could have occurred accidentally is belied by the fact that
Lister was stabbed not once, but twice, in different areas of his body. In the absence of
evidence that the killing was unintentional, an involuntary manslaughter instruction was
unnecessary. (See People v. Parras (2007) 152 Cal.App.4th 219, 228 [no duty to instruct
on involuntary manslaughter where nature of victim’s injuries indicated that their
infliction did not involve a simple misdemeanor battery, but an aggravated felony assault
with a deadly weapon or by means of force likely to produce great bodily injury].)
Regardless, Armstrong cannot establish prejudice. Armstrong argues that the
failure to instruct on manslaughter violated his federal constitutional due process rights,
under the standard articulated in Chapman v. California (1967) 386 U.S. 18, 24, that
before such error can be held harmless, “the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.” This is incorrect. Our Supreme Court has
explained: “The sua sponte duty to instruct fully on all lesser included offenses
suggested by the evidence arises from California law alone. Moreover, a failure to fulfill
this duty is not a structural defect in the proceedings, but mere misdirection of the jury, a
form of trial error committed in the presentation of the case. Hence, by virtue of the
California Constitution, reversal is not warranted unless an examination of ‘the entire
cause, including the evidence,’ discloses that the error produced a ‘miscarriage of
justice.’ (Cal. Const., art. VI, § 13.) This test is not met unless it appears ‘reasonably
probable’ the defendant would have achieved a more favorable result had the error not
occurred. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)” (Breverman, supra,19 Cal.4th at p. 149.)
Overwhelming evidence established that Armstrong committed second degree
murder by participating in the “beat down” of Lister, which, as a natural and probable
consequence, resulted in Lister’s death. The surveillance video showed Armstrong and
Scott instigating an altercation with Lister and following him into the market. When
15
Scott grabbed Lister’s chain and ran, Armstrong followed him and threw a punch in
Lister’s direction before moving out of the camera’s view. Willard admitted Armstrong’s
involvement in the fight to a confidential informant. Johnson stated to the police that
Armstrong and Scott were fighting with Lister, and did not cease fighting him until
Keisha broke them apart. Immediately after the fight broke up, Lister said that he had
been stabbed, and lifted up his shirt to reveal blood covering his chest. There can be little
doubt that Lister was stabbed in the fight while defendant was still participating.
Defendant was a Swans member, fighting alongside other Swans members. The culture
of the gang provided strong motivation for him and other Swans to fight Lister to back up
Scott, bolstering their own reputations and the gang’s reputation. The Swans’ primary
activities included murder and assault with a deadly weapon. It was reasonably
foreseeable that when the fight broke out at a gang hangout with numerous Swans
present, another member who was armed with a deadly weapon could step in and commit
murder. In light of the evidence, it is not reasonably probable that Armstrong would have
achieved a better result if the jury had been instructed on either voluntary or involuntary
manslaughter.
Improper Admission of Evidence of Lowe’s Prior Conviction
Armstrong does not argue that the trial court erred in admitting evidence from
Lowe’s 1990 preliminary hearing that ultimately resulted in Lowe’s manslaughter
conviction. Instead, he focuses on what he perceives to be the likely effect of that
testimony against him, despite the trial court’s limiting instructions.
Proceedings
Both prior to and during trial, the prosecutor sought to have the preliminary
hearing testimony from Lowe’s 1990 prior conviction for manslaughter admitted
pursuant to Evidence Code section 1101, subdivision (b). Lowe’s counsel objected that
16
the testimony was inadmissible character evidence each time the prosecutor raised the
issue. The second time the issue was raised, Willard’s counsel objected that there would
be “a bleed-over effect as to the remaining three defendants.” He did not argue the point
further. Following Lowe’s testimony, the prosecutor moved a final time to have the
testimony admitted, and the trial court granted the motion, and allowed the evidence to be
admitted for the purposes of showing Lowe’s intent to aid and abet an assault and intent
to act for the benefit of a criminal street gang.
After the preliminary hearing testimony of Willie Mae McGowan was read into
the record, Scott’s counsel moved for mistrial on the basis that the overall prejudicial
effect of the reading of McGowan’s preliminary testimony violated Scott’s constitutional
right to a fair trial. Counsel argued that although Scott was four years old in 1990, the
cases were strikingly similar. Armstrong’s counsel joined in the motion, expressing
concern that the prosecution would use the evidence against all of the defendants. The
prosecutor responded that as she understood the issue, the jury could only consider the
evidence with respect to Lowe. She anticipated the court would give a limiting
instruction to that effect. The prosecutor argued that the jury was capable of
understanding that none of the other defendants were involved in the 1990 incident. She
offered to stipulate that they had nothing to do with the killing. Given the circumstances,
there was no prejudice to defendants. Scott’s counsel responded that a limiting
instruction would do little to cure the prejudice. The trial court denied the motion for
mistrial, stating that it would give a limiting instruction that made specific reference to
the preliminary hearing testimony.
Prior to closing arguments, the jury was instructed pursuant to CALCRIM No. 304
that: “The testimony from the preliminary hearing that was read to you was admitted as
evidence against Mr. Lowe. You must not consider that evidence against Mr. Armstrong
or Mr. Scott.” It was also instructed under CALCRIM No. 375 that it could only
consider the preliminary hearing testimony “for the limited purpose of deciding whether
or not: [¶] The defendant was the person who committed the offenses alleged in this
case; or [¶] The defendant acted with the intent to assist, further or promote criminal
17
conduct by gang members in this case; or [¶] The defendant had a motive to commit the
offense alleged in this case.” The jury was instructed not to consider the evidence for any
other purpose or to conclude that Lowe had a bad character or was disposed to commit
crime.
In closing, the prosecutor argued, “You heard evidence when Mr. Lowe took the
stand about his prior homicide. The judge just read to you an instruction about it. It was
admitted for two purposes: one, to show that when any witness takes the stand and they
have a prior crime of moral turpitude, you can take that into consideration when you
judge the believability of the witness. There’s certain crimes where the law says if you’re
convicted of those felonies, that the jury can take that into consideration whether or not
you’re a believable person. So it was offered in that sense for impeachment. The judge
also offered it for another reason. That’s the reason you just heard in the instruction.
There are similarities between that crime and this particular crime that can cause you to
come to conclusions regarding Mr. Lowe’s intent and motive on that particular day
because he’s been in the same situation before. So while usually you don’t get to
consider someone’s past, in this particular circumstance you can consider this regarding
his intent.” The prosecutor then described the similarities between the cases: both
involved a large group of Swans gang members, in gang territory, blocks away from each
other. In each, the victim approached alone with the intent to buy something, and a gang
beating ensued. Lowe escalated the situations to murder using a deadly weapon.
While the prosecutor was making her closing argument, Scott’s counsel renewed
his motion for mistrial. He argued that even though the prosecutor was skillfully
attempting to “put this at Mr. Lowe’s doorstep,” the similarities in the cases were so
striking that prejudice would certainly result. A limiting instruction could not cure the
harm. The prosecutor responded that her argument was narrowly tailored to Lowe and
that she reminded the jury to use the prior testimony only as permitted by Evidence Code
section 1101, subdivision (b) and impeachment purposes. The court denied the motion.
When the prosecutor resumed argument she addressed the issue of premeditation
and deliberation of the murder: “Now, I would say, with Mr. Lowe, given we have the
18
[section] 1101[, subdivision] (b) evidence, the evidence of him committing a similar act
prior, you can take that into consideration, the amount of time it takes him to make that
same decision again . . . . [¶] [Y]ou can’t use that evidence of the prior murder against
any of the other defendants, I’m not going to argue it relates to them. They were
probably toddlers when it happened.”
Discussion
Armstrong does not challenge the trial court’s admission of the preliminary
hearing testimony from Lowe’s prior conviction under Evidence Code section 1101,
subdivision (b). Instead, he focuses on the strong similarity between the two crimes, and
argues that the evidence should have been excluded as unduly prejudicial to the other
defendants. To the extent that his argument was forfeited by failure to object to the trial
court, Armstrong claims his counsel was ineffective. We hold the contention forfeited
because Armstrong’s counsel failed to object on the specific grounds now raised (see
People v. Jones (2012) 54 Cal.4th 1, 61) but further conclude that counsel’s performance
was not deficient, nor was Armstrong prejudiced by counsel’s lack of objection.
During the proceedings, the issue of whether the testimony from the preliminary
hearing of Lowe’s prior conviction would be admitted was raised no less than five times
before the testimony was read to the jury. Armstrong’s counsel did not object at any
point in those discussions. Citing to the general rule that appellate courts will consider
matters to which an objection was made and considered by the lower court, Armstrong
argues that Willard’s counsel’s objection that there would be “a bleed-over effect as to
the remaining three defendants” was sufficient to preserve his contention. We disagree.
Setting aside the fact that Willard’s trial counsel was not Armstrong’s trial counsel, the
objection made was not specific. Willard’s counsel never elaborated beyond his single
statement, or explained in what manner defendants would be prejudiced. The objection
was made prior to trial, during the second discussion regarding admission of the
evidence. It was never renewed. As a consequence, the trial court did not consider
19
Willard’s objection or the effect of the evidence on the three remaining defendants prior
to admission of the testimony. Armstrong’s alternative argument that objection would
have been futile, as evidenced by the fact that the motions for mistrial were denied, also
fails. Once the concern of prejudice to the other defendants was brought to the trial
court’s attention, it instructed the jury that the evidence could not be used against any
defendant other than Lowe. The court was clearly receptive to concerns and acted to
remedy them. An objection would not have been futile. Armstrong has forfeited the
challenge on appeal. (See People v. Demetrulias (2006) 39 Cal.4th 1, 20-21 [defendant’s
failure to “make a timely and specific objection on the ground asserted on appeal” forfeits
his appellate arguments based on the erroneous admission of the evidence].)
Nonetheless, we review Armstrong’s contention because he claims trial counsel was
constitutionally ineffective for failing to object.
“The Sixth Amendment guarantees competent representation by counsel for
criminal defendants[, and reviewing courts] presume that counsel rendered adequate
assistance and exercised reasonable professional judgment in making significant trial
decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland v. Washington
(1984) 466 U.S. 668, 690 (Strickland); People v. Freeman (1994) 8 Cal.4th 450, 513.)
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel
under either the state or federal Constitution, a defendant must establish (1) that defense
counsel’s performance fell below an objective standard of reasonableness, i.e., that
counsel’s performance did not meet the standard to be expected of a reasonably
competent attorney, and (2) that there is a reasonable probability that defendant would
have obtained a more favorable result absent counsel’s shortcomings.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham), citing Strickland, supra, at pp.
687-694; see Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23
Cal.4th 978, 1068 (Kraft).) “‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ ([Strickland, supra, at p. 694]; People v. Riel
(2000) 22 Cal.4th 1153, 1175.)” (Cunningham, supra, at p. 1003.)
20
“A defendant who raises the issue [of ineffective assistance of counsel] on appeal
must establish deficient performance based upon the four corners of the record. ‘If the
record on appeal fails to show why counsel acted or failed to act in the instance asserted
to be ineffective, unless counsel was asked for an explanation and failed to provide one,
or unless there simply could be no satisfactory explanation, the claim must be rejected on
appeal.’” (Cunningham, supra, 25 Cal.4th at p. 1003, citing Kraft, supra, 23 Cal.4th at
pp. 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) The decision
to object to the admission of evidence is tactical in nature, and a failure to object will
seldom establish ineffective assistance. (People v. Williams (1997) 16 Cal.4th 153, 215.)
Given the presumption of reasonableness proper to direct appellate review, our Supreme
Court has “repeatedly emphasized that a claim of ineffective assistance is more
appropriately decided in a habeas corpus proceeding. [Citations.] The defendant must
show that counsel’s action or inaction was not a reasonable tactical choice, and in most
cases ‘“‘the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged . . . .’”’ [Citations.]” (People v. Michaels (2002) 28 Cal.4th 486,
526.)
There is nothing in the four corners of the record to indicate defense counsel’s
motivation for his decision not to object, which is reason enough to reject the issue on
direct appeal. Even if we were to conclude the issue was preserved for appeal,
Armstrong fails to establish constitutionally deficient representation because there is no
basis to conclude the jury considered the preliminary hearing testimony against Lowe for
an improper purpose.
There was little room for doubt the stabbing occurred in the course of an assault
and battery or that Armstrong both committed and aided and abetted the assault and
battery. Multiple witnesses testified the attack on Lister occurred, and Armstrong was
involved. Armstrong was shown throwing a punch on the surveillance video. The
preliminary hearing testimony provided only a tenuous link between Armstrong and
Lowe – that Lowe had belonged to the same gang as Armstrong 20 years earlier.
Armstrong was not personally connected to the crime in any way. We have no reason to
21
believe that evidence admitted solely against Lowe, relating to a crime in which
Armstrong was not involved, resulted in any prejudice to Armstrong, particularly because
the jury had already been presented with more than ample evidence of Armstrong’s guilt.
Armstrong’s assertion that the prosecutor improperly used the testimony to argue
generally on the natural and probable consequences theory, gang ties, and gang members
acting in concert is not supported in the record. The prosecutor argued specifically that
the jury could use the testimony to assess Lowe’s intent and motive. She was careful to
emphasize to the jury: “[Y]ou can’t use that evidence of the prior murder against any of
the other defendants, I’m not going to argue it relates to them. They were probably
toddlers when it happened.” Her statement that “[gang members] are willing to back up
their homies,” to which Armstrong also objects, was supported by the gang expert’s
opinion. It did not refer to the preliminary hearing testimony, which she had just stated
could not be used in that manner, or against defendants other than Lowe.
The jury was instructed that the preliminary testimony was not to be used against
Scott or Armstrong (CALCRIM No. 304), and that it could be used for the limited
purposes of establishing identity, intent to assist gang members, and motive to commit
the crime (CALCRIM No. 375). The testimony could not be used as evidence of bad
character and the jury was not permitted to consider the testimony for any other purpose.
(CALCRIM No. 375.) The jury was also instructed regarding the use of gang evidence
generally that it could “consider evidence of gang activity only for the limited purpose of
deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that
are required to prove the gang-related enhancement and special circumstances allegations
charged; [¶] OR [¶] The defendant had a motive to commit the crime charged.[¶] . . . [¶]
[The jury was also permitted to] consider this evidence when . . . evaluat[ing] the
credibility or believability of a witness and when . . . consider[ing] the facts and
information relied on by an expert witness in reaching his or her opinion.” (CALCRIM
No. 1403.) The jury is presumed to understand and follow the instructions of the trial
court. (People v. Archer (1989) 215 Cal.App.3d 197, 204.) Absent some affirmative
22
indication in the record to the contrary, we presume that it did so here. (People v. Holt,
supra, 15 Cal.4th at p. 662.)
Considering the record as a whole, we conclude it is not reasonably probable that
without the purported error Armstrong would have obtained a more favorable result.
(See Cunningham, supra, 25 Cal.4th at pp. 1003-1004.) Counsel’s failure to object did
not constitute ineffective assistance.
Prosecutorial Misconduct
Proceedings
In rebuttal, the prosecutor argued the act of pulling Lister’s chain constituted both
a robbery and a battery, and could be considered to evaluate defendants’ guilt under the
natural and probable consequences theory of second degree murder. Armstrong’s
counsel objected to the argument with respect to the felony-murder rule. The prosecutor
explained she intended to make the argument with respect to the natural and probable
consequences theory only. The court asked the prosecutor to rephrase her argument. The
prosecutor resumed rebuttal, arguing:
“The natural and probable consequence of engaging in this type of behavior, the
chain yanking, unlawful touching, the fighting, the huddle, the tussle, the natural and
probable consequence of any of that is that someone can die. Both of the defendants who
testified admitted that can happen with ordinary people that are getting together, working
together to assault someone. But even more so with gang members who are in a criminal
organization for the purpose of doing so. So any sort of event where the consequence of
that is dangerous to human life.”
There was no objection to these statements during argument.
The prosecutor later argued: “Even if you think, for some reason, [the taking of the
chain is] harmful touching, if you thought I’ll pull you out of here, it’s not a robbery,
that’s a battery. Harmful[,] offensive touching, grabbing. That you can use as a natural
23
and probable consequence. Natural and probable consequence of that under the situation
instigating a violent confrontation with someone can lead to murder.”
She reminded the jurors twice after this that if they had any questions regarding
the law, thought she misstated the law, or if she and defense counsel disagreed on the
law, the judge was the final authority, and the jury should ask the court questions.
When the jury began deliberations, Scott’s counsel moved for mistrial, arguing
that the prosecutor’s statements that someone “can die” or “get killed” were very
different from the standard that “under all of the circumstances, a reasonable person in
the defendant’s position would have known the commission of the murder was a natural
and probable consequence of the commission of the robbery.” The court denied the
motion without comment.
Law
“The standards governing review of misconduct claims are settled. ‘A prosecutor
who uses deceptive or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution when they infect the trial
with such “‘unfairness as to make the resulting conviction a denial of due process.’”
[Citations.] Under state law, a prosecutor who uses such methods commits misconduct
even when those actions do not result in a fundamentally unfair trial. [Citation.] In order
to preserve a claim of misconduct, a defendant must make a timely objection and request
an admonition; only if an admonition would not have cured the harm is the claim of
misconduct preserved for review. [Citation.]’ [Citation.]” (People v. Parson (2008) 44
Cal.4th 332, 359.)
“‘“When a claim of misconduct is based on the prosecutor’s comments before the
jury,‘“the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.”’”’ [Citation.]”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 427 (Bryant).) “‘In
conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging
24
rather than the least damaging meaning from the prosecutor’s statements. [Citation.]’
[Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 553-554.) “Even where a
defendant shows prosecutorial misconduct occurred, reversal is not required unless the
defendant can show he suffered prejudice.” (People v. Fernandez (2013) 216
Cal.App.4th 540, 564.) “Under traditional application of this state’s harmless error rule,
the test of prejudice is whether it is ‘reasonably probable that a result more favorable to
the defendant would have occurred had the district attorney refrained from the comment
attacked by the defendant. [Citations.]’ [Citation.] ” (People v. Bolton (1979) 23 Cal.3d
208, 214.)
Discussion
Armstrong contends the prosecutor committed misconduct by misstating the law
regarding the natural and probable consequences theory of second degree murder in
closing argument. He concedes that counsel did not object to the prosecutor’s statements
at the time or seek an admonition, but argues that doing so would have been futile in light
of the denial of Scott’s counsel’s motion for mistrial. Alternatively, he argues that trial
counsel rendered ineffective assistance. Both arguments fail.
With respect to forfeiture, Armstrong’s argument that an objection would have
been futile lacks merit. In his motion for mistrial, Scott’s counsel argued that the
prosecutor’s burden of proof was lessened with respect to robbery, not assault and
battery. Because the issue was not raised on the same specific grounds, there is no basis
for believing it would have been futile.
Regarding ineffective assistance of counsel, we are again faced with a silent
record with respect to counsel’s decision. There are many tactical reasons that counsel
may have chosen not to object. He may have believed that drawing more attention to the
subject would do more harm than good, or may not have felt that the comment was
objectionable, when viewed in light of the prosecution’s entire argument. On this record,
we cannot say that counsel’s representation was deficient.
25
On the merits, Armstrong argues that the prosecution’s statement that a natural
and probable consequence of an assault and battery is that someone “can die” rather than
be murdered lowered the burden of proof. We conclude there is no reasonable likelihood
that the jury construed or applied the prosecutor’s remarks in an objectionable fashion.
“‘“‘[A] prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom. [Citations.]’”’ [Citations.]”
(People v. Stanley (2006) 39 Cal.4th 913, 951.) The prosecutor was not explaining the
law to the jury when she made the challenged remarks. She was arguing what could
happen under general circumstances, not as laden with danger as the circumstances of
this case were. Soon afterward, she argued that murder was a natural and probable
consequence of assault and battery under the specific circumstances presented, in
conformance with the standard. The prosecutor also admonished the jury twice that the
judge was the authority on the law, not counsel, and she acknowledged that she might
make mistakes or disagree with defense counsel on interpretation of the law. Viewed in
the context of her rebuttal as a whole, the impact of the remarks is slight, at most. (See
People v. Dennis (1998) 17 Cal.4th 468, 522 [prosecutor’s statements must be viewed in
context of her entire argument].) Additionally, the trial court instructed the jury, “You
must follow the law as I explain it to you, . . . If you believe that the attorneys’
comments on the law conflict with my instructions, you must follow my instructions.”
(CALCRIM No. 200.) The jury was also properly instructed on the natural and probable
consequences theory of second degree murder with CALCRIM No. 403. Jurors are
presumed to be intelligent and capable of correctly understanding the court’s instructions.
(People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Sanchez (2001) 26 Cal.4th 834,
852.) We do not see any reason to conclude that they incorrectly applied the law.
Having failed to establish either deficiency of counsel or prejudice, Armstrong has
not demonstrated counsel was constitutionally ineffective. (See Cunningham, supra, 25
Cal.4th at p. 1003.)
26
Cumulative Error
Armstrong contends that cumulative errors at trial deprived him of due process.
As we have concluded that the trial court did not err, the contention necessarily fails.
(See People v. Hines (1997) 15 Cal.4th 997, 1062.)
Robbery-Murder Special Circumstance Sentence
Armstrong contends that the trial court’s stated imposition and stay of the robbery-
murder special circumstance sentence was unauthorized and must be stricken. The
Attorney General disagrees, arguing that Armstrong forfeited the issue by failing to raise
it at the sentencing hearing, but that in any case Armstrong’s contention is without merit.
We agree with Armstrong.
The jury convicted Armstrong of second degree murder (§ 187), but also made the
legally superfluous true finding that that the murder was committed while he was
engaged in the commission of a robbery pursuant to section 190.2, subdivision (a)(17).
At sentencing, the trial court imposed a sentence of 15-years-to-life on the second degree
murder count, plus a term of 10 years on the gang enhancement (§186.22, subd.
(b)(1)(C)). The court stated that it was imposing and staying sentence on the robbery-
murder special circumstance, but did not pronounce a sentence.
Section 190.2, subdivision (a) provides, “The penalty for a defendant who is found
guilty of murder in the first degree is death or imprisonment in the state prison for life
without the possibility of parole if one or more of the following special circumstances has
been found under Section 190.4 to be true: [¶] (17) The murder was committed while the
defendant was engaged in, or was an accomplice in, the commission of, attempted
commission of, or the immediate flight after committing, or attempting to commit, the
following felonies: [¶] . . . [¶] (A) Robbery in violation of Section 211 or 212.5.” By its
own terms, section 190.2 is inapplicable where the defendant is convicted only of second
degree murder.
27
“[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed
under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331,
354.) “‘[Such] obvious legal errors at sentencing that are correctable without referring to
factual findings in the record or remanding for further findings are not waivable.’
[Citation.]” (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284.)
In this case, there is no scenario under which a sentence to life without parole or
death may be imposed pursuant to section 190.2, because Armstrong was not found
guilty of first degree murder. The forfeiture rule has no application to this entirely
unauthorized finding. The judgment must be modified to strike the jury’s true finding on
the robbery-murder special circumstance.
Joint and Several Liability
Although Armstrong was tried jointly with Scott and Lowe, his sentencing hearing
was held first, and the other defendants were sentenced on a later date. At Armstrong’s
sentencing hearing, on August 28, 2014, the prosecutor stated: “Your honor, I also
submitted an order and abstract of judgment to the court for amounts owing to the Victim
Compensation and Government Claims Board for funeral and burial expenses in the
amount of $5,000. Per Penal Code section 1203.1, 10 percent is also applicable on that
amount and would be joint and several liability with respect to the other defendants.”
The court asked if Armstrong’s counsel wished to be heard on the amount of restitution,
and counsel submitted. The court then stated, “I’ll order the amount of restitution in the
amount of $5,000 payable to the Victim Compensation Government Claims Board with
interest. That amount is for funeral expenses.” On the same day, the court signed an
order for victim restitution in People v. Armstrong et al. (Super. Ct. Los Angeles County,
2014, No. BA420534), in conformance with its oral pronouncement, specifically stating
that co-offenders Lowe and Scott were found jointly and severally liable. Neither the
minute order of August 28, 2014, nor the abstract of judgment filed on September 3,
2014, referenced the joint and several nature of the fine.
28
Armstrong requests that the abstract of judgment be amended to reflect the court’s
oral pronouncement and order that the $5,000 in direct victim restitution and funeral
expenses imposed be payable jointly and severally with codefendants Lowe and Scott.
The Attorney General argues that the contention was forfeited because Armstrong failed
to request that the abstract of judgment reflect the joint and several nature of the liability
at the sentencing hearing, and because the fine contained in the abstract of judgment is
not unauthorized, which would avoid forfeiture. She argues that, in any case, the issue is
moot because the August 28, 2014 order is legally binding and “supplants” the September
3, 2014 abstract of judgment.
We agree with Armstrong that the issue is not forfeited. Defense counsel had no
reason to believe that the abstract of judgment would not properly reflect the court’s oral
pronouncement at the time of the sentencing hearing, and could not be expected to object.
The Attorney General cites no authority for the proposition that an order supplants a
later-filed abstract of judgment.
“The abstract of judgment is not the judgment of conviction. The court’s oral
pronouncement controls over the abstract of judgment as the latter cannot add to or
modify the judgment which it purports to summarize.” (People v. Samaniego (2009) 172
Cal.App.4th 1148, 1183.) Here, the minute order and abstract of judgment do not reflect
the oral pronouncement. We have authority to order the trial court to correct the abstract
of judgment and minute order, and will do so here. (See ibid. [ordering the abstract of
judgment corrected to reflect the trial court’s oral pronouncement that victim restitution
be payable jointly and severally].)
DISPOSITION
The jury’s true finding on the robbery-murder special circumstance (§ 190.2, subd.
(a)(17)) is stricken, and the judgment is modified accordingly. The trial court is directed
to amend the September 3, 2014 abstract of judgment and August 28, 2014 minute order
to reflect this modification, and to correct the abstract of judgment and minute order to
29
reflect that the $5,000 in direct victim restitution is imposed jointly and severally with
codefendants Curtis D. Lowe and Sedric W. Scott. The court shall forward certified
copies of the amended abstract to the Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed.
KRIEGLER, J.
I concur:
TURNER, P. J.
30
BAKER, J., Concurring
I agree the trial court did not have a duty to instruct on voluntary or involuntary
manslaughter under the circumstances. I find it unnecessary, however, to reach the issue
of whether defendant John Armstrong could establish prejudice from the absence of an
instruction on involuntary manslaughter assuming (contrary to the evidence) the court did
have a duty to instruct on that offense.
BAKER, J.