People v. Miller

Opinion

RAMIREZ, P. J.

A jury convicted Eric Hunter of conspiracy to commit willful, deliberate and premeditated murder with malice aforethought (Pen. Code, § 182) and Larry Eugene Miller of accessory after the fact (Pen. Code, § 32), as a lesser included offense of conspiracy to commit willful, deliberate and premeditated murder with malice aforethought. In bifurcated proceedings, the trial court found that each defendant had committed his crime for the benefit of a street gang. (Pen. Code, § 186.22, subd. (b)(1).) Both were sentenced to prison and appeal. Miller contends that his postarrest statements and the recordation of a witness’s past recollection should not have been admitted. Hunter joins him in this latter argument. Miller also contends that the prosecutor engaged in prejudicial misconduct. We reject all these contentions and affirm Miller’s conviction. Hunter additionally contends that the

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jury was misinstructed as to the offense for which he was convicted. We agree with Hunter that the jury was misinstructed and therefore reverse his conviction, which moots his remaining contentions about another jury instruction error and insufficiency of the evidence as to the enhancement. We have responded to Hunter’s contentions concerning the admission of the recordation of the witness’s past recollection as an aid in the event of retrial.

Facts

Hunter and Miller, and other members of the Four Comer Hustlers, had been the recipients of a great deal of law enforcement attention at their customary hangout, an apartment complex in Lake Elsinore, in the weeks preceding November 1, 1993. Graffiti stating “187 em[,]” “247” and “Police[,]” the last of which had been crossed out, which meant to kill the police 24 hours a day, 7 days a week, had been put up with other graffiti in an area of the complex frequented by Four Comer Hustlers. A resident of the complex told police that weeks before November 1, she had overheard Hunter talking with other Four Comer Hustlers about shooting police officers. On November 1, a detective who had just gotten off duty and was on his way home in his own car and another detective in an unmarked police car were shot at as they drove past the complex. Another member of the Four Comer Hustlers admitted to being the trigger man. Although the People’s theory was that Hunter also shot at the officers, in its findings as to the overt acts alleged with the conspiracy charge, the jury found that this was not true. After the shooting stopped, Hunter and others got into Miller’s car and he attempted to drive out of the complex, but was stopped by the police.