People v. Gaines (2023) · DecisionDepot

People v. Gaines

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jul 5, 2023 No. F083168Published

Filed 6/15/23; Certified for Publication 7/5/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F083168 Plaintiff and Respondent, (Super. Ct. No. BF182466A) v.

BRANDON MICHAEL GAINES, OPINION Defendant and Appellant.

THE PEOPLE, F083228 Plaintiff and Respondent, (Super. Ct. No. BF182466B) v.

DONTAY LARRY ROSS,

Defendant and Appellant.

APPEALS from judgments of the Superior Court of Kern County. John R. Brownlee, Judge. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Brandon Michael Gaines. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant Dontay Larry Ross.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION Defendants Brandon Michael Gaines and Dontay Larry Ross were making a purchase at a convenience store where they exchanged words with a man who was accompanied by his girlfriend and her two young children. A short time after leaving the store, Gaines stopped his vehicle in the street near where the man, girlfriend, and children were walking on the sidewalk while Ross exited the vehicle and shot at the individuals multiple times. Defendants were convicted of premeditated attempted murder and related charges and were sentenced to terms of seven years to life, plus 10 years (as to Gaines) and seven years to life, plus 49 years and eight months (as to Ross). Defendants challenge their convictions for discharging a firearm from a vehicle and permitting someone to discharge a firearm from a vehicle because Ross was not in the vehicle when the shooting occurred. Gaines also challenges his conviction of accessory to attempted murder based upon his act of driving Ross from the shooting because, he argues, it is based upon the same acts as aiding abetting the attempted murder and assault charges. Ross argues the evidence is insufficient to sustain his conviction for criminal threats because the statement that accompanied the shooting, “Fuck you and your kids,” could not be considered a threat and the only evidence of the statement was the victim’s out-of-court statement admitted after that victim testified that no such statement had been made. Ross also challenges his conviction for attempted murder and argues that the evidence was insufficient to demonstrate an intent to kill. Defendants argue that recent amendments to the sentencing law require we remand their cases for resentencing. Ross also argues that remand for resentencing is required because the trial

Related research

court proceedings. In response to defense counsel’s questioning, T.J. acknowledged that Gaines did not do anything that day but drive the vehicle. R.D. testified that he had smoked and taken drugs the morning of the incident.6 He and T.J. had walked to the store where he saw a black man and a white man inside. However, R.D. denied that any harsh words were exchanged. R.D. walked with T.J. and the children back to the motel and took a different route in order to give the children a walk. While in front of the apartment complex, someone shot at them. R.D. testified that he “tucked away” T.J. and the children when the shooting began and then returned to the motel. R.D. testified that he did not remember any details of the shooting nor any statements he made to police afterwards. He also testified that he did not see defendants at the store and they were not the individuals who shot at him. Officer Edgar Davalos interviewed R.D., who provided a false name, the morning of the shooting and recorded the interview using his body camera. R.D. had discarded a knife in the motel parking lot and told Davalos that he had found it on the ground as he ran back to the motel and picked it up because he thought the shooters might follow him. He then explained that he was walking in front of the apartments when he got jumped and heard gunshots. R.D. said, “When we heard the shot, I pushed [T.J. and the children] towards this way and ran—we all ran this way.” “I looked back and I didn’t see [the shooter] but I heard [T.J.] screaming, ‘my kids.’ ” R.D. told Davalos that he did not see the shooters and it could have been anyone. R.D. then said that he was not a snitch but would describe what happened because “[t]hey shoot (unintelligible) my kids.” R.D. described two men, one African-American and one Caucasian, from the store with whom he had exchanged words. R.D. explained to Davalos that while at the store, one of the men had said something to T.J. and he asked the man, “What the fuck you say to her?” Later in the interview, R.D. explained that

after he confronted “the black dude” at the store, that man called to R.D. in the store parking lot through the vehicle’s window and then sped off. R.D. decided to walk a different route back to the motel. As they walked, the two men pulled their vehicle over and R.D. could see that they were now wearing masks, which alarmed him, and he then “push[ed] my kids towards the fuckin’ apartment, run. That’s all I got to tell my kids and my wife, run. By the time I turn around to what they gonna do, they already hopped out and fired.” While R.D. described the driver to Davalos, he claimed that he did not see “the black dude” firing the gun and reiterated, “I am not no snitch.” As he walked from the alley later, R.D. saw the vehicle and described that he had stopped to spank his daughter when the vehicle started to move. He pushed his daughter toward T.J. and tried to pretend he was on the phone with police as the individuals pulled up behind a parked car near them. R.D. explained, “We pull up right here, and dude hops out with a mask and he said, ‘Fuck you and your kids.’ The [black man] said, “Fuck you and your kids, bro. And he—he just—he just started firing so .…” “He’s … firing like this, boom, boom, but he’s advancing.” R.D. later stated, “He said it before he started shooting, ‘Fuck you and your kids.’ So [he] wanted to hit me or my kids.” R.D. saw bullets hit walls and grass, and he heard 15 to 20 gunshots. Davalos testified that R.D. said that he recognized the Caucasian individual from another motel and that he had previously seen the African-American man in the parking lot of the motel where he was staying. Kern County Sheriff’s Deputy Rebekah Karr responded to the area after the shooting at approximately 10:15 a.m. She recovered 10 Winchester Luger nine- millimeter shell casings from the middle of the street. The casings were positioned in the street directly in front of the walkway between two apartment buildings. The apartment complex consisted of four different clusters of buildings on the east side of the street. Officers searched the area and looked for any bullet strikes on the

buildings. Six bullet strikes were found. Bullet strikes on the first building included two found close to a second-story window and one on an air conditioning unit behind bushes alongside the building. The closest bullet strikes were located approximately 25 to 30 feet from the shell casings. Additional bullet strikes were observed on a building further east into the apartment complex and behind the building where the other strikes were found. The bullet strikes found in the first building were approximately eight or nine feet above the ground. Bullet strikes in the second building were approximately fifteen feet from the ground. The shooter could have caused the bullet strikes without leaving the vehicle or walking down the walkway. An evidence technician testified that a person close to the street would have been in the bullets’ paths even though the bullets ultimately struck objects over the heads of the intended targets. Sometime after 10:00 a.m., Pastor Tyler Barksdale was teaching a small group of congregants outside, approximately 125 yards from the street, when the shooting occurred. He had an unobstructed view of the street. While facing the apartments, he heard seven to nine gunshots, looked up, and saw “puffs of smoke” and someone standing in the street outside a vehicle and firing east toward the apartment complex. Barksdale described the shooter as a young, African-American man. After firing the gun, the shooter got into the passenger side of a white Corolla or Camry vehicle that he had been standing near. Barksdale described the vehicle as either in the middle of the street or in the wrong lane (facing south in the northbound lane). Barksdale could not recall if the vehicle’s door was open during the shooting and did not see any other individuals, but he was only paying attention to the shooter and the vehicle. Barksdale identified the firearm as a semiautomatic pistol based upon the sound of the gunshots. A congregant testified that she was outside the church conversing when she heard the gunshots. She turned and saw smoke and “something white” that she later concluded was a vehicle. The congregant told a deputy that she saw an adult male standing next to a white vehicle in the street.

subd. (a)(2)) was a lesser included offense of former section 12034 (the predecessor to § 26100). (Licas, at pp. 364–365). “The dicta of the Supreme Court, ‘while not controlling authority, carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic.’ ” (Mireskandari v. Edwards Wildman Palmer LLP (2022) 77 Cal.App.5th 247, 263, fn. 3.) In Licas, however, the Supreme Court conducted no analysis of the Legislature’s intended meaning of the word “from.” Our Supreme Court agreed with the Court of Appeal that the language of former section 12034, subdivision (c) did not impose a present ability requirement and, in so doing, quoted the court’s observation that the statute defining the crime of shooting from a vehicle required only that “ ‘the perpetrator shoot from inside a vehicle “at” someone who is not inside a vehicle,’ ” nor did the dictionary definition of the word “at.” (People v. Licas, supra, 41 Cal.4th at p. 369.) Therefore, our Supreme Court’s use of the Court of Appeal’s language only extended to the conclusion that the elements of shooting from a vehicle did not require the perpetrator to have a present ability to inflict violence. The Supreme Court did not address the meaning of “from” as used in former section 12034 in Licas. While the Supreme Court may have described the crime in the language used by the Court of Appeal and CALJIC No. 9.05, its analysis addressed only whether the language included the present ability element and, therefore, is not authority for the meaning of “from” as used in former section 12034. “ ‘ “ ‘[C]ases are not authority for propositions not considered.’ ” ’ ” (In re Cabrera (2023) 14 Cal.5th 476, 490.) Therefore, Licas provides no support for defendant’s argument. Ross similarly relies upon cases discussing section 190.2, subdivision (a)(21),8 which defines a special circumstance for murder as “perpetrated by means of discharging

a firearm from a motor vehicle … with the intent to inflict death.” In People v. Rodriguez (1998) 66 Cal.App.4th 157, the court rejected Rodriguez’s claims that section 190.2, subdivision (a)(21) was overbroad and violated due process and the federal prohibition on cruel and unusual punishment. (Rodriguez, at p. 162.) Rodriguez never addressed the meaning of “from a motor vehicle” but referred to section 190.2, subdivision (a)(21) interchangeably as “discharging a firearm from a vehicle at another person with intent to kill” and the “shooting out of a vehicle” special circumstance. (Rodriguez, at pp. 162, 165.) We do not agree that Rodriguez is authority for defendants’ argument that “from a vehicle” means that the shooter must have been inside the vehicle when discharging the firearm because, again, “ ‘ “ ‘cases are not authority for propositions not considered.’ ” ’ ” (In re Cabrera, supra, 14 Cal.5th at p. 490.) Ross asserts that “[i]t takes no insight to understand that ‘from’ in the context of section 26100, subdivision (c), means ‘from within,’ and not ‘outside of’ or ‘near’ or ‘next to.’ ” We disagree. Black’s Law Dictionary (6th Ed. 1990) at page 668 defines the word “from” as follows: “As used as a function word, implies a starting point, whether it be of time, place, or condition; and meaning having a starting point of motion, noting the point of departure, origin, withdrawal, etc., as he traveled ‘from’ New York to Chicago. [Citation.] One meaning of ‘from’ is ‘out of.’ ” A similar definition is found in The American Heritage Dictionary of the English Language (1981) at page 529: “1. Beginning at a specified place or time: walked from the station .… 2. With a specified time or point as the first of two limits: from age four to age eight. 3. With a person, place, or thing as the source, cause, or instrument: a note from the teacher. 4. Out of: take a book from the shelf.… 7. Measured by reference to: far away from home.” Webster’s Third New International Dictionary (1981) at page 913 provides: “1 — used as a function word to indicate a starting point: as (l) a point or place where an

vehicle. (Assem. Bill No. 766 (1987–1988 Reg. Sess.) § 5, as amended on Sept. 10, 1987; Stats. 1987, ch. 1147, § 5.) The legislative history’s expressly stated concerns are the danger associated with discharging a firearm from a vehicle and the need to deter persons from violent actions upon public streets and highways, and these concerns are in no way diminished if the shooter discharges a firearm from a vehicle, stopped in the middle of the street, that he has just exited and is using as cover. (See Manzo, supra, 53 Cal.4th at pp. 886–887 [“The legislative history’s expressly stated concern about the danger associated with shooting ‘into’ a home or an occupied vehicle is in no way diminished if the shooter is so close that the gun breaches the plane of the home or vehicle.”].) In such circumstances, the shooter is discharging his firearm “from” the vehicle and the vehicle is the starting point of the movement. (Webster’s 3d New Internat. Dict., supra, p. 913, col. 3 [“1 — used as a function word to indicate a starting point: as (l) a point or place where an actual physical movement (as of departure, withdrawal, or dropping) has its beginning”].) Moreover, defendants’ interpretation of requiring the shooter to be inside the vehicle when discharging the firearm could cause guilt to turn on whether the shooter opened his window to fire or stepped out of the vehicle’s door and discharged his firearm over the vehicle. (See Manzo, supra, 53 Cal.4th at p. 887 [characterizing Manzo’s argument that he could not be convicted of shooting at a motor vehicle because the tip of the firearm crossed the threshold of the vehicle as causing “guilt to turn on such trivialities as the length of the barrel or the degree to which the shooter’s arm was extended”].) As in Manzo, “[w]e find no indication that the Legislature intended the scope of section [26100] to depend on such inconsequential matters, nor do[ ] defendant[s] explain why the Legislature would have wanted to distinguish among these scenarios.” (Ibid.) Defendants construe the word “from” as used in the statute to require that the firearm and/or the shooter must be “inside” or “within” a motor vehicle at the time of the

shooting. The plain text of the statute, however, does not impose such a requirement, and it would be improper for us to add one. Common understanding of “from” is consistent with a shooter who is either outside or inside the vehicle when firing. Furthermore, defendants’ definition would render the term “from” inapplicable to certain types of motor vehicles, such as motorcycles, which users ride upon and do not have an “inside.” Similarly, it would not account for a shooter standing in the bed of a pickup truck, or sitting on the hood of vehicle, or hanging out of a vehicle window. Moreover, adopting defendants’ construction of the statute would contravene the legislative intent of the statute—the deterrence of drive-by shootings and the need to deter persons from violent actions upon public streets and highways. Although it might be argued that shooting from an immobile vehicle in the street is not within the meaning of “drive-by shooting,” such conduct does undeniably qualify as a violent action upon the street. In interpreting former section 12022.55 (discharging a firearm from a motor vehicle that results in death or great bodily injury), People v. Bostick (1996) 46 Cal.App.4th 287 rejected Bostick’s argument that the jury should have been instructed that the shooting occurred from a vehicle that was “ ‘involved in an actual drive-by on a public street or highway.’ ” (Id. at p. 291.) Finding that the term “ ‘drive- by’ ” did not appear anywhere in former section 12022.55, the court rejected Bostick’s argument that the vehicle must be in motion for the enhancement to apply. (Bostick, at p. 291.) “The argument would fail even if we independently construed the Legislature’s intent. We have no doubt that the gang-type drive-by shooting was one of the primary concerns in enacting [former] section 12022.55[,] [citation], but there are other plausible purposes for the enhancement. The urgency clause … refers not only to the shooting of motorists, but ‘deter[ring] persons from violent actions upon our public streets and highways .…’ [Citation.] Street safety is therefore another independent legislative goal of the statute.” (Id. at p. 292, fourth bracketed insertion in original.)

We agree that “firing a gun from a motor vehicle is an especially treacherous and cowardly crime. It allows the perpetrator to take the victim by surprise and make a quick escape to avoid apprehension, as illustrated by the facts here.” (People v. Bostick, supra, 46 Cal.App.4th at p. 292.) The Legislature could rationally have determined that the foregoing considerations justify imposing an increased sentence on the perpetrator. While recognizing that “ ‘drive-by’ shootings certainly grab the headlines,” Bostick concluded, “the use of a motor vehicle as a staging ground for shootings which cause death or great bodily injury, whether the vehicle happens to be in motion or stationary, on a public street or private property, is a greater evil which the Legislature could and did attempt to deter through the clear language of the statute.” (Ibid.) The rule of lenity would require that we adopt defendants’ reading of the statute if “ ‘ “two reasonable interpretations of the same provision stand in relative equipoise.” ’ ” (Manzo, supra, 53 Cal.4th at p. 889.) However, we do not believe that degree of uncertainty is found in this case. The legislative history, the purpose of the statute, general public policy concerns, and logic all favor an interpretation that would recognize a violation of section 26100 when a driver stops his vehicle in the middle of the street, the shooter opens the vehicle’s door and, while standing at the open door and behind the vehicle, commences shooting at victims who are standing on the sidewalk. An interpretation exculpating a defendant in those circumstances, even if a reasonable reading of the statutory text, is not, for the reasons given above, equally as reasonable as the one proffered by the People. The rule of lenity does not mean “ ‘ “that the act be given the ‘narrowest meaning.’ It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislative body].” ’ ” (Manzo, at p. 890; see id. at p. 889 [rejecting application of the rule of lenity and finding “[t]he legislative history, the purpose of the statute, general public policy concerns, and logic all favor an interpretation that would recognize a violation of section 246 when the shooter stands outside and fires at an occupied motor vehicle, regardless of whether the shooter is standing so close that

B. Applicable Law and Analysis “[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.” (People v. Beeman (1984) 35 Cal.3d 547, 561; see § 31.) “By contrast, section 32 provides that ‘[e]very person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, … having knowledge that said principal has committed such felony … , is an accessory to such felony.’ ” (In re Malcolm M. (2007) 147 Cal.App.4th 157, 165 (Malcolm M.).) “[T]o convict a person under this section, there must be proof that a principal committed a particular felony, the accused knew the principal committed a felony, the accused did something to help the principal get away with the crime, and the accused acted with the intent to help the principal get away with the crime.” (Ibid.) Our decision in Malcolm M. reviewed the case law regarding this issue and noted that California cases were divided over whether to adopt the rule that a person cannot be convicted or sentenced as both a principal and an accessory to the same felony. (Malcolm M., supra, 147 Cal.App.4th at pp. 165–169.) In summary, “Several cases have expressed approval of the rule, though on varying grounds and largely in dicta. (People v. Prado (1977) 67 Cal.App.3d 267, 271–274; People v. Francis (1982) 129 Cal.App.3d 241; People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1256.) Of those cases, only in Francis did the Court of Appeal actually vacate an accessory conviction on the grounds that, as a matter of law, the defendant could not be convicted as both a principal and an accessory to the same crime. (People v. Francis, supra, 129 Cal.App.3d at pp. 251– 253.)[19] Two other cases, however, have expressed disapproval of that rule, although

could find no evidence that the Legislature intended to broaden term “theft” to include burglary as a crime where the perpetrator cannot be convicted of receiving the stolen property (id. at p. 863). Prado also relied upon People v. Wallin (1948) 32 Cal.2d 803 (Wallin) as “[t]he sole California authority touching upon this question … which hints at the principle of mutual exclusivity of the crime of the principal and accessory after the fact.” (Prado, supra, 67 Cal.App.3d at p. 272.) However, we read Wallin as rejecting the premise that being a principal and being an accessory are necessarily mutually exclusive as a matter of law. In that case, Mrs. Paz had a disabled child, and she and Wallin discussed killing the little girl. After Mrs. Paz did so, Wallin helped her dispose of the body and was charged with accessory to murder. Wallin requested that the trial court instruct the jury that Mrs. Paz, a witness at Wallin’s trial, was an accomplice whose testimony required corroboration. (Wallin, at pp. 804–805.) The Attorney General argued that Mrs. Paz could not be an accessory after the fact to her own crime; hence, she was incapable of committing the offense with which Wallin was charged. (Id. at p. 806.) Our Supreme Court disagreed, stating: “The murder was completed as soon as the child was killed, and no subsequent acts on the part of Mrs. Paz or any other person were required to be shown in order to establish the elements of that offense. [Wallin]’s crime of being an accessory under section 32 was separate and distinct [citation], although it, of course, depended on the previous commission of the murder. He became chargeable under section 32 when he aided Mrs. Paz to conceal her crime, and she became liable to prosecution for the identical offense by reason of section 31 when she encouraged him to assist her in avoiding arrest and punishment.” (Id. at p. 807.) In so holding, Wallin recognized that “[i]t may be that a murderer who acts alone in concealing her crime cannot be separately charged as an accessory, but it does not follow that she cannot become liable as such if she encourages another to aid her in avoiding arrest and punishment.” (Wallin, supra, 32 Cal.2d at p. 806, italics added.) We

do not interpret this statement as either adopting or recognizing the applicability of the common law rule of mutual exclusivity or inconsistency between convictions of accessory and the completed crime, but rather, a statement of the obvious proposition that one cannot help oneself to commit a crime. (See § 32 [“[e]very person who, after a felony has been committed, harbors, conceals or aids a principal in such felony”].) Prado concluded, “The foregoing authorities, and right reason, compel a conclusion that” an accused cannot be convicted of the completed felony and as an accessory because “[their] state of mind—the intent required to be an accessory after the fact—excludes that intent and state of mind required to be a principal. The requisite intent to be a principal in a robbery is to permanently deprive the owner of his property. Thus, this is a totally different and distinct state of mind from that of the accused whose intent is to aid the robber to escape. These are mutually exclusive states of mind and give rise to mutually exclusive offenses.” (Prado, supra, 67 Cal.App.3d at p. 273.) We disagree. We have previously recognized that “[c]ourts generally have rejected the notion [adopted by Prado] that being a principal and being an accessory are necessarily mutually exclusive as a matter of law.” (Malcolm M., supra, 147 Cal.App.4th at pp. 165– 166, citing Wallin, supra, 32 Cal.2d 803, Mouton, supra, 15 Cal.App.4th 1313, & People v. Riley, supra, 20 Cal.App.4th 157 (Riley).) After reviewing those authorities, we concluded “that those which eschew or limit Prado are the better reasoned, and that being a principal in a crime and being an accessory to that crime are not mutually exclusive offenses as a matter of law.” (Malcolm M., at p. 169.) Furthermore, our Supreme Court has recognized that “it is well established that an individual may entertain multiple criminal objectives simultaneously.”25 (People v. Biane (2013) 58 Cal.4th 381, 397.)

to the police. (Id. at p. 1324.) Although Mouton argued he could not be convicted of both, the court held: “[T]here is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime.” (Ibid.) The court further noted, “Although [Mouton] was technically convicted of being an accessory to his own crime, in substance he was convicted for two different sets of actions.” (Id. at pp. 1324–1325.) Similarly, in Riley, supra, 20 Cal.App.4th 1808, Riley was convicted of second degree murder as the driver of a truck in which a passenger shot and killed a person and of being an accessory to a murder by giving his business partner the murder weapon the next day. (Id. at pp. 1810–1811, 1812.) In affirming both convictions, the court held: “Once the murder was completed, [Riley]’s further acts of attempting to dispose of the murder weapon were entirely separate and distinct, and served a further and different purpose. The imposition of separate liability for these distinct and independent actions was proper.” (Id. at pp. 1816–1817.) In rejecting a claim that accessory is a defense to the completed crime, our Supreme Court recognized that they were separate crimes and “[a] defendant can be convicted of both murder and being an accessory to murder if the defendant aids the principal both before and during, as well as after, the murder is committed.” (People v. Jennings (2010) 50 Cal.4th 616, 668, citing with approval Riley, supra, 20 Cal.App.4th at p. 1815, Mouton, supra, 15 Cal.App.4th at pp. 1324–1325, & Wallin, supra, 32 Cal.2d at pp. 806–807.) Gaines relies upon Eduardo M., supra, 140 Cal.App.4th 1351, which recognized the conflict in the case law but did not attempt to resolve it. The court stated: “[W]e hold only that a defendant who is convicted as a principal cannot also be convicted as an accessory solely on the basis of [their] immediate flight from the crime scene and [their] subsequent denials of [their] own involvement, even if that conduct incidentally helps other principals to escape.” (Id. at p. 1359.) Eduardo M. believed that its holding was consistent with Riley and Mouton (even though they expressly disapproved of the

features of criminal conduct” that “they are too equivocal to constitute separate acts supporting an inference that the fleeing and guilt-denying felon harbored a separate intent to aid the escape of his coprincipals.” (Eduardo M., at p. 1361.) However, it is a question for the jury as to whether the act of flight could support a separate intent to aid the escape of an accomplice. We have (1) rejected defendants’ case law and the common law rule against dual convictions for the crimes and as an accessory and (2) concluded that legislative intent does not bar application of section 32. Defendants have advanced no other legal principle to support any prohibition for separately convicting a defendant for the completed crime and accessory for assisting an accomplice after the crime. Generally, “there is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime. When a felony has been completed and a person knowingly and intentionally harbors, conceals or aids the escape of one of the felons, that person is guilty as an accessory to a felony under section 32, whatever his or her prior participation in the predicate felony.” (Mouton, supra, 15 Cal.App.4th 1313, 1324.) Once the attempted murder and assaults were completed, Gaines’s further acts of allowing Ross into the vehicle and driving Ross from the scene were separate and distinct and served a further and different purpose. We conclude that Gaines’s separate conduct in driving Ross from the crime scene after the crimes were completed supports the accessory charge, and conviction of that charge is not legally barred by the common law rule that a principle may not be convicted as an accessory to the same crime because (1) there was nothing inconsistent between conviction of Gaines as a principal to the attempted murder and assaults and his conviction as an accessory after the fact, (2) the elements of the offenses do not overlap, and (3) each conviction depended upon an entirely different intent and conduct. The imposition of separate liability for these distinct and independent actions was proper. We affirm the convictions.

A. Applicable Law and Standard of Review Ross contends, in substance, that the evidence is insufficient under the due process clause of the Fourteenth Amendment to the federal Constitution to support his conviction for first degree attempted murder. “ ‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask 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.] We apply an identical standard under the California Constitution.” (Young, supra, 34 Cal.4th at p. 1175.) We have set forth this standard of review in detail ante, in part I.B., and we do not repeat it here. Ross was convicted on counts 1 of attempted murder. “ ‘The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citation.]’ [Citation.] In contrast, ‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.] Hence, … for [a] defendant to be convicted of the attempted murder …, the prosecution had to prove he acted with specific intent to kill that victim.” (People v. Smith (2005) 37 Cal.4th 733, 739, third bracketed insertion in original.) Intent to kill can be established by showing that the assailant either desired the result, i.e., death, or knew to a substantial certainty that the result would occur. (Ibid.) Here, Ross contends the evidence is insufficient to establish his intent to kill because no “credible” witness testified that R.D., or any victim, was “down range” from the shooter, the bullet strikes were found above the height of any alleged victim, and the only reasonable inference for the jury was that Ross was shooting over the heads of the victims and, therefore, had no intent to kill. We disagree.

B. Analysis T.J. testified that R.D. exchanged words with Ross at the store. R.D. testified that he did not know who shot at him and that he did not describe the details of the shooting to any officer. However, Davalos interviewed R.D., and R.D.’s video-taped statement was viewed by the jury. R.D. described the two individuals he first saw at the store as the individuals who later participated in shooting him. At that time, he identified the African-American man as having been the shooter and the man’s Caucasian companion as the driver of a white Camry. R.D. explained that he had exchanged words with the individuals and the victims walked a different route back to their motel because they feared the individuals and did not want to encounter them again. T.J.’s testimony is consistent with R.D.’s statement to Davalos. The recording from a surveillance camera also corroborates that defendants were at the store at the same time as T.J. and R.D. Defense evidence shows that Ross checked out of T.J. and R.D.’s motel that morning. T.J. and R.D. both described that a white Camry was parked on the side of the street when they turned down it and that the vehicle drove up to where they were standing on the sidewalk and stopped in the wrong lane. T.J. testified that Ross got out the vehicle and shot at them from the vehicle approximately 15 to 20 times without shutting the vehicle’s door. She testified that they were approximately five to 10 feet from the street when Ross started shooting at them. R.D. told police that Ross got of the vehicle and said, “Fuck you and your kids,” before he started shooting at them. R.D. concluded, based upon Ross’s words and actions, that “[he] wanted to hit me or my kids.” R.D. saw bullets hitting the walls and grass. Officers found 10 casings in the middle of the street where both T.J. and R.D. had said that Ross was standing when he shot at them. Officers found six strike marks in the nearby buildings, two of which were found in air conditioning units in the bushes and the rest approximately eight to 10 feet from the ground. Two witnesses from the church

testified that they heard shots and saw a man standing by a white car, identified by Barksdale as a white Corolla or Camry. Viewing this record in the light most favorable to the judgment, as we are required to do (People v. Brooks, supra, 3 Cal.5th at p. 57), we conclude a reasonable trier of fact could find beyond a reasonable doubt that Ross acted with intent to kill. That he fired 10 shots (essentially emptying the firearm’s magazine of all bullets) at the victims that were approximately five to 10 feet away provides substantial evidence from which the jury could reasonably infer he harbored the intent to kill. “ ‘The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill .…” ’ ” (People v. Smith, supra, 37 Cal.4th at p. 741.) Ross argues that “no credible witness” placed any of the victims “down range from the shooter when the shots were fired.” However, T.J. testified that Ross fired at her and the other victims and R.D. told Davalos that Ross said, “Fuck you and your kids,” which R.D. interpreted to mean that Ross intended to shoot R.D. and his family. “We do not question the credibility of a witness’s testimony, so long as it is ‘not inherently improbable,’ nor do we reconsider the weight to be given any particular item of evidence.” (People v. Navarro (2021) 12 Cal.5th 285, 302.) In arguing that R.D. completely lacked credibility and his statement to Davalos cannot be considered as substantial evidence, Ross relies upon In re I.C. (2018) 4 Cal.5th 869 for the proposition that determining whether a jury’s criminal verdict is supported by substantial evidence requires us to assess the credibility of the witnesses. However, In Re I.C. addressed whether substantial evidence supported a juvenile court’s jurisdictional finding that was based upon its determination that a child’s statements of abuse bore special indicia of reliability. (Id. at p. 892.) In that context, the substantial evidence standard applies to “ ‘whether the child declarant was particularly likely to be telling the truth when the statement was made.’ ” (Id. at p. 891, quoting Idaho v. Wright (1990)

497 U.S. 805, 822.) The context of the case explains why the court’s review for substantial evidence there focused upon whether a child victim’s statement was reliable. Ross has failed to provide us with any authority that In re I.C. changed prior law that limits our ability to reassess witness credibility when considering the sufficiency of evidence to support a criminal verdict. “Although the appellate court must ensure the evidence is reasonable in nature, credible, and of solid value [citation], it must be ever cognizant that ‘ “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.” ’ ” (People v. Barnes (1986) 42 Cal.3d 284, 303 (Barnes).) We cannot reject the testimony of a witness the trier of fact chose to believe, unless the testimony is physically impossible, or its falsity is apparent without resorting to inference or deduction. (Id. at p. 306.) “The mere fact that there are contradictions and inconsistencies in the testimony of a witness, or that the truth of his evidence is open to suspicion, does not render it inherently improbable within the meaning of the rule. It is for the jury to consider such inconsistencies and determine whether they were such as to justify the repudiation of the testimony of the witness in its entirety.” (People v. Fremont (1941) 47 Cal.App.2d 341, 349; see People v. Harris, supra, 57 Cal.4th at p. 849 [“it is the exclusive province of the … jury to determine the credibility of a witness,” “[w]e [do not] resolve ... credibility issues”].) Although an appellate court can overturn a judgment if supporting evidence “was ‘inherently improbable,’ such a finding is so rare as to be almost nonexistent.” (People v. Ennis (2010) 190 Cal.App.4th 721, 728.) “The inherently improbable standard addresses the basic content of the testimony itself—i.e., could that have happened?—rather than the apparent credibility of the person testifying.” (Id. at p. 729.) On the record here, Ross fails to persuade us that his is so rare a case. Ross failed to demonstrate, during his trial, that it is physically impossible for him to have shot at the victims, and it is not apparent,

without resorting to inference or deduction, that either T.J.’s testimony or R.D.’s statement to Davalos were false. (See Barnes, supra, 42 Cal.3d at p. 306.) Ross also argues that the height of the bullet strikes, being eight to 10 feet from the ground, provides for the reasonable inference that Ross intentionally shot over the heads of the victims and intended only to frighten them. However, T.J. testified that Ross fired the shots at them, R.D. testified that he saw gunshots hitting the grass and walls, and officers found at least two bullet strikes on two air conditioning units behind bushes at ground level, consistent with an attempt to hit the victims. In this case, the evidence shows that the shooting was precipitated by a heated dispute and that Ross and Gaines drove around searching for the victims and then shot at the victims while they were in close range. While Ross argues that he only intended to frighten the victims, another reasonable inference that could be drawn from that evidence is that Ross intended to kill the victims but had poor aim while shooting at them as they fled. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945 [“Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.”].) For these reasons, we find unpersuasive Ross’s argument that the fact he fired shots at the victims and missed should invalidate the jury’s finding of intent to kill. We similarly reject Ross’s argument that the evidence was insufficient to prove the attempted murders were premeditated and deliberate, defined “ ‘ “as the result of preexisting thought and reflection rather than unconsidered or rash impulse.” ’ ” (People v. Burney (2009) 47 Cal.4th 203, 235, quoting People v. Jurado (2006) 38 Cal.4th 72, 118.) “ ‘In this context, “premeditated” means “considered beforehand,” and “deliberate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” ’ ” (Jurado, at p. 118.) “A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting

1. Ross’s conviction can be based upon evidence introduced as a prior inconsistent statement. As support for his argument that a repudiated out-of-court statement alone is insufficient to convict him, Ross relies on language in People v. Montiel (1993) 5 Cal.4th 877 (Montiel), disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, footnote 13. In Montiel, at the penalty phase of a capital case, statements the defendant’s family members made to police officers concerning prior incidents of the defendant’s violence were admitted at trial. (Montiel, at p. 902.) The family members repudiated the statements in their testimony at the penalty trial. (Ibid.) Our Supreme Court concluded that the defendant had forfeited his argument that the extrajudicial statements were inadmissible and insufficient to prove he committed the crimes against his family members. (Id. at p. 928.) However, the court also recognized that an extrajudicial statement repudiated at trial cannot form the sole basis for a conviction because where only a single witness’s extrajudicial statement has been repudiated under oath, the extrajudicial statement lacks the “ ‘ “traditional indicia of reliability,” ’ ” which attach to an accusation made under oath and are subject to cross-examination in a formal judicial proceeding. (Montiel, supra, 5 Cal.4th at p. 929.) Montiel relied on In re Miguel L. (1982) 32 Cal.3d 100 and People v. Gould (1960) 54 Cal.2d 621 (Gould),29 which involved repudiation of a witness’s extrajudicial identification of the defendant as the perpetrator of the crime. After the decision in Montiel, our Supreme Court overruled Gould, to the extent it held “that an out-of-court identification is in all cases insufficient by itself to sustain a conviction and must be corroborated by other evidence linking the defendant to the crime.” (Cuevas, supra, 12 Cal.4th 252 at pp. 271–272.) Instead, the substantial evidence test set forth in People v. Johnson (1980) 26 Cal.3d 557, 578, should be used 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.’ [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ‘ “isolated bits of evidence.” ’ ” (Cuevas, supra, 12 Cal.4th at pp. 260–261.) In this case, the evidence shows that defendants and the victims encountered each other at the store, R.D. and defendants exchanged heated words, defendants drove into the wrong lane close to where the victims were later walking, Ross exited the vehicle with a firearm, and R.D. heard Ross say, “Fuck you and your kids,” leading R.D. to believe that Ross meant to shoot at the victims and causing them to flee in fear of being shot. We conclude that the evidence was sufficient for a jury to conclude that Ross willfully threatened to shoot the victims, intended that the victims perceive his statement to be such a threat, his statement was verbal and, on its face and in relation to the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the victims that Ross intended to shoot them, and that the victims reasonably and actually feared for their safety. (See People v. Toledo, supra, 26 Cal.4th at pp. 227–228.) Ross argues that R.D.’s credibility is too questionable to be considered substantial evidence. As we previously discussed ante, in part III.B., we cannot resolve issues of credibility. (See Young, supra, 34 Cal.4th at p. 1181.) We note, however, “that juries are capable of determining the credibility of out-of-court statements that are inconsistent with a witness’s trial testimony by observing the witness’s in-court demeanor: ‘If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of the words uttered under oath in court.’ ” (Cuevas, supra, 12 Cal.4th at p. 273.) Although an appellate court can overturn a judgment if supporting

statement may clarify facial ambiguity. (In re George T., supra, 33 Cal.4th at p. 637, citing with approval People v. Butler, supra, 85 Cal.App.4th at pp. 753–754.) Butler held that “the meaning of the threat by [a] defendant must be gleaned from the words and all of the surrounding circumstances.” (Butler, at p. 753.) “Thus, it is the circumstances under which the threat is made that give meaning to the actual words used.” (Ibid.; see id. at p. 749 [finding a threat based on the defendant’s statement to the victim that she needed to mind her own business or she “ ‘was going to get hurt,’ ” coupled with his conduct].) Section 422 requires that the threat be conveyed by a “statement, made verbally, in writing, or by means of an electronic communication device.” (§ 422.) Based on this statutory language, courts have required a threat charged under section 422 to include some words or sound to qualify as a “statement, made verbally.” (Gonzalez, supra, 2 Cal.5th at p. 1140.) In Gonzalez, our Supreme Court reversed a threat conviction where the defendant communicated the threat only by making a gang hand sign and “manually simulated a pistol pointed upward.” (Ibid.) Ross argues that pursuant to Gonzalez, whether a statement conveys a criminal threat can only be determined on the face of the verbal statement alone. We reject his argument that Gonzalez has overruled the case law in this area. Evidence Code section 225 defines “statement” as a communication made either verbally or by nonverbal conduct. After reviewing the legislative history of section 422, Gonzalez concluded that the Legislature “(a) was aware that the ‘made verbally’ language excluded nonverbal conduct, and (b) intended that nonverbal conduct may qualify as a statement under [Penal Code sections] but not section 422.” (Gonzalez, supra, 2 Cal.5th at pp. 1145–1146.) Accordingly, “a threat made through nonverbal conduct falls outside the scope of section 422.” (Id. at p. 1147.) Notably, however, the threat charged in Gonzalez did not include any verbal statement, and our Supreme Court did not address the historical case law involving ambiguous verbal statements. Gonzalez did not overrule

or reject its prior decisions permitting consideration of surrounding circumstances in determining whether a verbal statement was a criminal threat under section 422. Here, R.D. told Davalos that Ross had a gun in his hand when he said, “Fuck you and your kids,” before firing at the victims. Unlike the situation in Gonzalez, Davalos’s testimony and the video recording of R.D.’s statement did not describe purely nonverbal conduct: It described a nonverbal threat accompanied by a verbal statement. While nonverbal conduct alone is insufficient to constitute a criminal threat, a combination of words and gestures may be sufficient. (People v. Culbert (2013) 218 Cal.App.4th 184, 190.) The defendant in Culbert argued his words—“ ‘Don’t lie to me,’ ” and, “ ‘Don't call me that,’ ”—did not implicitly or explicitly threaten to inflict great bodily injury or death and therefore did not constitute criminal threats. (Ibid.) But the words were uttered while the defendant was holding a gun to his stepson’s head. “Few objects are as inherently threatening as a firearm, especially when it is pressed to one’s head. The only rational inference, taking into account the entire context in which these statements were made, is that [the defendant] was threatening to harm [his stepson] if [the stepson] ever again lied or called him names. [The defendant] did not need to add a phrase like ‘or else,’ or ‘I’m going to kill you,’ to make his statements threatening. The firearm pressed against [the stepson’s] temple accomplished that result.” (Ibid.) Similarly, here, Ross’s statement, made at gunpoint, communicated to R.D. that he intended to shoot R.D., his girlfriend, and her children—i.e., that he would “commit a crime which will result in death or great bodily injury” (§ 422), and harm them in a drive- by shooting. Ross’s words and his actions conveyed a “gravity of purpose and an immediate prospect of execution of the threat” that resulted in the victims running from him in fear, as required by section 422. Substantial evidence supports the conviction.

People v. Gaines

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DONTAY LARRY ROSS,

More from California Court of Appeal

Related research

C. Analysis

LEVY, J.

DE SANTOS, J.

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DONTAY LARRY ROSS,

LEVY, J.

DE SANTOS, J.