People v. Brown CA5

Filed 9/9/21 P. v. Brown CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

F077143

Plaintiff and Respondent,

(Super. Ct. No. F15904751)

v.

SHAWN LAMONT BROWN et al., OPINION

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.

Harrell, Judge.

Robert J. Beles, Joseph L. Ryan, Cliff Gardner and Brooke N. Acevedo, for

Defendant and Appellant Shawn Lamont Brown.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and

Appellant Lachance Larue Thomas.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L.

Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and

Respondent.

-ooOoo-

INTRODUCTION

Defendants Shawn Lamont Brown and LaChance Larue Thomas stand convicted

of first degree willful, deliberate and premeditated murder of Von Randell Correia, Jr.

(the victim) (Pen. Code, §§ 187, subd. (a), 189, subd. (a)).1 The jury found true special

allegations that Brown proximately caused the victim’s death by personally and

intentionally discharging a firearm within the meaning of section 12022.53,

subdivision (d) (section 12022.53(d) or § 12022.53(d)); that Brown personally used a

firearm during the commission of the offense within the meaning of section 12022.5,

subdivision (a) (section 12022.5(a) or § 12022.5(a)); and that, as to Thomas, a principal

was armed with a firearm during the commission of the offense within the meaning of

section 12022, subdivision (a)(1) (section 12022(a)(1) or § 12022(a)(1)).

Brown was sentenced to 25 years to life for the first degree murder conviction

(§ 190, subd. (a)), and a consecutive 25-year-to-life term for personally and intentionally

discharging a firearm under section 12022.53(d).2 Thomas was sentenced to 25 years to

life for the first degree murder conviction, and a one-year term was imposed for the

firearm enhancement under section 12022(a)(1).

On appeal, defendants assert their first degree murder convictions lack the support

of substantial evidence in two respects: there was no substantial evidence of any intent to

kill under a direct or transferred intent theory and the jury should not have been

instructed on transferred intent; and there was no substantial evidence of deliberation and

premeditation. We reject these arguments and find the verdicts of first degree murder as

to Brown and Thomas were supported by substantial evidence.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 The enhancement found true under section 12022.5(a) was stricken pursuant to

section 12022.53, subdivision (f).

2.

Defendants also claim the court erroneously admitted hearsay from an investigator

and a copy from text messages on a cellphone. Brown additionally argues irrelevant

testimony of one of the witnesses was erroneously and prejudicially admitted. We

conclude that, even if some of this evidence was erroneously admitted, considered

individually or cumulatively, it did not result in any violation of defendants’ federal

constitutional rights nor was it prejudicial.

Defendants argue the court failed to instruct on the lesser included offense of

involuntary manslaughter, and the trial court violated their constitutional rights by

instructing the jury to consider a witness’s certainty to assess the accuracy of their

identification testimony under CALCRIM No. 315. Brown separately argues the court

violated his constitutional rights by instructing the jury it could consider Brown’s out-of-

court statements alone to prove his identity as the person who committed the crime under

CALCRIM No. 359. We reject these arguments. There was no substantial evidence to

support an instruction on involuntary manslaughter. Further, beside that the other

instructional claims were forfeited, pursuant to People v. Lemcke (2021) 11 Cal.5th 644

(Lemcke), the trial court did not violate defendants’ constitutional rights by instructing

the jury to consider the witness’s certainty as one factor in considering their identification

testimony under CALCRIM No. 315, nor did the trial court violate Brown’s

constitutional rights by instructing the jury how to consider Brown’s out-of-court

statements under CALCRIM No. 359.

Finally, we agree with defendants that their obligation to pay victim restitution

must be joint and several, and we agree with the People that Brown’s abstract of

judgment must also be amended to reflect the correct amount of victim restitution ordered

by the court. Thomas and the People agree, and we concur, that Thomas’s abstracts of

judgment incorrectly list twice the court’s imposition of fines and fees. As a result, the

determinate abstract of judgment as to Thomas issued on Judicial Council Forms,

form CR-292 shall be stricken, and the indeterminate abstract of judgment as to Thomas

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issued on Judicial Council Forms, form CR-290, must be amended to include the

one-year firearm enhancement imposed under section 12022(a)(1).

Aside from the modification of the victim restitution obligation to joint and several

and the modifications to the abstracts of judgment, ante, we otherwise affirm the

judgments.

FACTUAL SUMMARY

Just after midnight on July 28, 2015, police responded to a report of shots fired at

the Ashwood Garden apartment complex in Fresno. At the scene, officers discovered an

unconscious man bleeding and lying on the ground on the north and east side of the

apartment complex. It appeared he was shot, and he was transported to the hospital

where he died from a gunshot wound in his back that perforated his heart and one of his

lungs. Upon autopsy, the death was ruled a homicide.

I. Prosecution Case

A. The Shooting and Arrest of Defendants

On the evening of July 27, 2015, Torrie McGee made arrangements with Thomas,

someone she had dated, to pick him up where he was and take him to his home. McGee

drove to Thomas’s location at an apartment near the intersection of First Street and

McKinley Avenue (First and McKinley). She texted Thomas at 10:21 p.m. that she was

on her way. At 10:28 p.m., she texted Thomas that he should come outside. Thomas

came out of the apartment building with Brown, who McGee knew also went by the

name Bsmash. She had met Brown before, but she had not expected Thomas to have

anyone with him. When they got in the car, Thomas got in the front seat and Brown got

in one of the back seats. Thomas told McGee they were going to the Ranchwood

apartments, which is a complex on the east side of Fresno. McGee drove straight there,

making no stops.

At Ranchwood, Thomas and Brown exited the car, leaving McGee to wait inside

the car for their return. Thomas and Brown walked to some apartment and were only

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gone for a few minutes before they returned to the car. Thomas directed McGee to go

back to First and McKinley where she had originally met them. McGee drove them back

to First and McKinley, but once there she parked on a different street from where she had

picked them up. When she parked, they all sat in the car for a while and Brown made a

call from his cell phone. McGee could not hear who was on the other end of Brown’s

call, but McGee assumed it was a female. Brown was telling the person on the phone

that he wanted that person to call someone else and for that someone else to go to a

location on First and McKinley. Brown told the person on the phone to act like they were

drunk and having a party. McGee heard Brown say the word McLane, which she

believed was just a street away from First and McKinley.

Brown’s conversation made McGee feel “[w]eird.” She did not understand why

he would be telling people to come over and act like they were drunk and having a party.

She began texting a friend during Brown’s conversation. She texted the friend at

11:07 p.m. that “‘[t]hey’” were doing “‘weird ass shit’” and that “‘[t]hey’re having

bitches set up motherfuckers up and shit .…’” She texted she did not “‘want to be

involved in no weird ass shit, for real, for real.’” The phone call made her scared and

nervous. At 11:15 p.m., the friend sent McGee a text saying, “‘Oh wow, come home,’”

and McGee responded, “‘No, I’m scared to say something to him,’” referring to Thomas.

McGee was afraid it was going to “blow up into something bigger, or even be an

argument” if she said anything to Thomas about the call.3

After Brown’s phone conversation ended, Thomas and Brown got out and had a

conversation outside behind the car, which McGee could not hear. When they were done

talking, they got back into the car, and McGee drove them back to where she had picked

them up originally. Brown went into an apartment building to charge his phone; McGee

3 The jury was instructed McGee’s testimony concerning Brown’s phone conversation

could not be used against Thomas. The jury was also instructed McGee’s fear of Thomas was

not to be used as evidence of Thomas’s character.

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had no idea how long Brown was in the apartment building. McGee told Thomas she

needed to go home, so Thomas called or texted Brown to come back to the car. Thomas

asked Brown if Brown was going to stay with Thomas, and Brown said yes. Thomas

then directed McGee to drive them to the intersection of Shields and Maple. McGee

thought she was taking them to the Sycamore apartment complex, which is near that

intersection—Thomas visited the Sycamore frequently and McGee thought he had a

friend at that building that Brown knew too.

However, when they arrived at the Shields and Maple intersection, Thomas told

her to go across the street to a different apartment complex—the Ashwood apartments—

and to pull into the parking lot and park. McGee made a U-turn on Shields and

proceeded to a parking lot in the Ashwood complex. McGee backed into a parking spot

and Thomas said he and Brown would be right back. McGee did not remember telling an

officer it was Thomas who told her to back into the spot. McGee stayed in the car and

listened to music with the windows up. After they got out of the car, McGee heard

gunshots. She did not remember how long they were out of the car before she heard the

shots–she estimated it was probably less than two minutes. After she heard the gunshots,

Brown and Thomas came back to the car about one minute later. She thought they were

acting “[n]ormal,” although she remembered telling an investigator later they were out of

breath. McGee asked Thomas where they were going and he directed her to get on the

nearby State Route 168 (Highway 168). She did not ask them what had happened, and

she denied telling an officer that she did not ask Thomas because she was scared of

him—she just never had a chance to ask him anything.

A police car pulled McGee’s car over at the on-ramp to Highway 168. She

thought she might have asked what was going on, and Thomas said to calm down. She

denied seeing anything thrown out of the car windows between leaving Ashwood and

being pulled over on the on-ramp. She did not know whether she had any gloves in the

car at that time—she had a lot of stuff in her car.

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She learned later Thomas and Brown were arrested for their involvement in this

incident, and they were released from jail a few days later. After his release, Thomas

called her and said something to her about talking to people she was not supposed to be

talking to—she assumed he meant the police. He said he would see her soon and hung up

the phone, which she interpreted as a threat. This call occurred a few days before he was

arrested again. She admitted she first denied hearing any gunshots when she was at

Ashwood with Thomas and Brown—she was scared Thomas and Brown would do

something to her if she talked to the police about what had happened.

On cross-examination, McGee testified her discomfort with Brown’s cell phone

conversation was related to events she thought were going to occur at First and

McKinley. She did not believe anything Brown was discussing had anything to do with

either the Sycamore or the Ashwood apartments. Nothing had led her to believe any type

of setup was going to occur at the Ashwood apartments. She testified that at no point

during the entire evening had she ever seen either Thomas or Brown with a gun. She

denied knowing the victim or having ever seen him before, except perhaps on social

media. McGee testified she had never seen Thomas with the victim, nor had Thomas

mentioned having any type of problem with the victim.

Around midnight, three people were outside at the Ashwood apartments near the

common area outdoor courtyard. Jennifer was smoking with another woman, Shawna,

and Shawna’s 13-year-old daughter (S.L.) was also with them. Jennifer was sitting with

her back to Shields Avenue (Shields) and was facing the parking lot area. She saw a

silver Dodge Charger drive past the apartment complex in a west to east direction, and

then came back in an east to west direction. She heard a car pull into the lot and then

heard at least one car door close. Right after this, she saw two people at a distance of

about 38 feet. One man wore a dark top with a hood (a hoodie) that was pulled up and

dark pants or jeans. Jennifer could see dreadlocks under the hood, and she noticed the

hood was pointed up like there was hair stuffed into it. She estimated the hooded man

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was about 5 feet 5 or 6 inches tall; she did not remember telling police she thought he

was about 5 feet 9 inches tall. She thought he was thinner and shorter than the second

man, and she had described him to police as a Black man in his early 20’s.

The second man Jennifer saw was also Black and he was wearing a white T-

shirt—he was taller and larger than the first man; she estimated he was between 5 feet 10

inches to 6 feet tall. He also had dreadlocks with lighter tips. He stood about a foot

behind the hooded man. The two men stood in her view for “a minute or so” and

appeared to speak to each other, although she could not hear what was said. Then, the

hooded man looked over at Jennifer, Shawna and S.L., and he walked forward toward the

courtyard area. The man in the white T-shirt disappeared and seemed to walk back to the

carport area, but she lost sight of him. She never saw the man in the whiteTt-shirt again

at the complex.

The hooded man walked forward into the courtyard out of her sight—he was

obscured by some bushes. Seconds later, Jennifer heard someone say, “‘You got any

trees?’” but she could not tell who said it—it came from the direction where the hooded

man had gone. The voice of the person asking the question sounded male and his voice

was raised as though he were yelling the question. She also heard the voice ask, “‘Do

you have them on you?’” She also testified she heard the voice ask, “‘Are you

holding?’” After these questions, she heard five or six gunshots that were coming from

the direction where the hooded man had walked. The hooded man suddenly appeared

again, backing up. He made a movement with his right hand, which looked strange to

Jennifer as though he was putting something in his pocket, and then he turned around,

looked toward Jennifer again, and took off at a jog toward the parking area. She thought

perhaps he had been shot by the way he was turning and bending his head down, but she

could not tell. She could not see his hands—they were in his pockets or covered by his

shirt, and she never saw a gun. She did not remember telling a detective the hooded man

had his hands at his waist trying to remove something before the shooting.

8.

Jennifer heard the sound of a car—although she never saw it pull into the parking

lot or leave before or after the shooting. From her vantage point, the view of the parking

lots on the east and west sides were obscured by buildings—she could see only a portion

of Shields, the road that runs in front of the complex to the south. She thought she had

seen a silver-colored car slowing down on Shields before the shooting, but she had not

seen the car turn into the complex’s parking lot. She heard only what sounded like a car

that seemed to let people out and then had to turn around because the parking lot has only

one exit and entrance. After the shooting, she heard car doors close and sounds of the car

pulling away.

Immediately after the shooting and hearing the car doors slam, Jennifer ran into

the house to check on a woman she provided care to because that woman was calling out,

given the sounds of the gunshots. Shawna and S.L. followed her into the apartment, but

Shawna and S.L. went through the apartment and out the front door while Jennifer

attended to the person for whom she was providing care in the apartment.

Shawna testified that around midnight on July 27 to 28, 2015, she was sitting

outside with Jennifer and her daughter, S.L. As they were sitting there, she saw one man

come into view about 30 feet away from her. He appeared to be a 22- to 24-year-old

Black man, 5 feet 6 to 5 feet 8 inches tall, and about 140 pounds. He was wearing a

hooded sweatshirt or jacket with a front pocket and jeans; the hood was covering his

head, and the hood was puffy, like something was in it—she believed it was the man’s

dreadlocked hair.

He was walking toward the laundry room and she lost sight of him. To her, he

seemed to be walking unusually, like he had something in his jacket. She could not see

his hands, he had them in his jacket. She was able to see him talking and she heard him

ask someone who seemed to be a little distance away, “‘Do you have any trees?’” She

assumed the other person she could not see said yes because she then heard him ask “‘Do

you have them on you?’” As soon as she heard those words, she heard gunshots. She

9.

never saw a gun and she had lost view of the person in the hood at the time of the shots.

After the gunshots, she saw the hooded man running back to the west parking lot. It

looked like he was carrying or hiding something. She lost sight of him when he went

back to the parking lot.

Shawna and S.L. then ran to the front of the building where she knew the car had

to exit, and Shawna saw the hooded man in a car with a second individual. She saw the

hooded man get into a car, and saw another individual driving the car. The driver looked

like a larger Black man, but she could not really see what he looked like—she thought he

had on a white T-shirt, but she really could not describe what he was wearing. On cross-

examination, she could not recall whether the driver was wearing a white T-shirt.

She saw the car turn west out of the parking lot toward the highway. The car

appeared to be a silver or gold Dodge Charger. Shawna saw a police officer in a patrol

car on Shields shortly after—the officer was parked there. Shawna and S.L. told the

officer that the killer was getting away in that car. The officer took off after the car.

Shawna and S.L. then walked around the complex to see if anyone had been shot. They

located a person facedown at the back of the complex. She and her daughter were the

first people there, but shortly after that, three men joined them. Shawna recognized the

victim as someone she had seen at the complex before—he would visit two brothers who

lived there. The three other men included the two brothers that the victim would visit and

another man. They were talking to each other saying, “I thought it was you.” S.L. called

911, and Shawna and S.L. waited until the police arrived.

Shawna testified that a couple of weeks before the shooting she had had seen the

Dodge Charger driven by the man in the white T-shirt. She did not remember seeing the

man outside of the car.

On cross-examination, Shawna could not recall whether she had identified one of

the brothers the victim would visit as the shooter to the district attorney’s (D.A.)

investigator, nor did she recall telling the investigator one of them might have been the

10.

shooter. She had, however, told the D.A.’s investigator that the two brothers the victim

would visit had come to her door after the shooting and asked her what she was telling

the police. She told the investigator she had seen one of them staring at her apartment,

which made her feel a bit uneasy. The brothers were young, Black men in their 20’s;

they also had dreadlocks. To her, the brothers looked like the driver and the man in the

hood from the night of the shooting.

S.L., who was 13 years old at the time of the shooting and 15 years old at the time

of trial, testified she was visiting her mother, Shawna, at the complex the night of the

shooting. Jennifer, Shawna, and S.L. were outside around midnight—Jennifer was

smoking, and S.L. was on her phone watching videos. S.L. saw two people come into the

complex—the first one was dressed in a black hoodie with the hood pulled over his head,

but she could only see the side of his face at first. This man was Black and she described

him as skinny and about 5 feet 8 inches tall. The second person was in a white T-shirt; he

was not as skinny as the man in the hood and he was a little taller. She saw the man in

the white T-shirt peering out from behind a wall. The man in the hoodie was looking

straight ahead, and then he looked back at the man behind him in the white T-shirt. S.L.

could hear that there were people by the laundry room.

S.L. explained that about five minutes before the gunshots, she had seen the victim

by the laundry room. She did not know him well, but he had brought them movies in the

past. Before the shooting, she heard the victim talking to other people—there was more

than one voice coming from the direction of the laundry room—but she never saw

anyone other than the victim. She did not recognize any of the other voices, but she

heard the victim’s voice and at least one other person near the laundry room.

She heard the man in the hoodie ask, “‘You got any tree[s]?’” He also asked

something like “‘Are you holding?’” A few seconds after the man asked these questions,

S.L. heard gunshots. She saw the side of the hooded man’s body jump as though

surprised. She described the hooded man’s reaction to the shots as though it scared him,

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“like it wasn’t supposed to go off that much.” She had looked up when the hooded man

started talking, and then she looked back down. She did not look back up until after

about two shots were fired. There was nothing obstructing her view of the shooter, but

she saw no muzzle flash. S.L. never saw a gun and she could not see the hooded man’s

hands—his back was to her.

After the gunshots, the hooded man turned around and went back in the direction

of the west parking lot, and S.L. heard car doors. S.L. got up and went to the front gate

and saw a silver car pull away. There happened to be a police officer parked on Shields

in front of the apartment complex. Shawna and S.L. told the officer about the gunshots,

and the officer went after the car. S.L. could not see how many people were in the car

when it pulled out; she believed the windows were darkly tinted.

Shawna and S.L. found the victim with three other men around him. They were

trying to call 911 and were asking the victim if he was okay. After police arrived on the

scene, Shawna and S.L. went back to their apartment.

S.L. acknowledged during her trial testimony that when she was interviewed by

police that night, she never told them she saw the man in the white T-shirt, and that she

did not identify the man in the white T-shirt during the infield showup. She explained

that when officers were questioning her, she was trying to decide for herself, but her

mother kept giving her input and that was making her nervous. She did not want to give

the wrong answer, and she did not want to seem as though she were lying by

contradicting what her mother saw—so she just said she had not seen the man in the

white T-shirt. At trial, however, her testimony was that the person in the white T-shirt

she was shown at the police station was the man in the white T-shirt she had seen at the

complex on the night of the shooting.

Officer Dominique Comeyne was working patrol on July 28, 2015, just after

midnight. She had been dispatched to the Sycamore apartment building on Shields. She

parked in front of the Sycamore apartments, which is located just to the south and across

12.

Shields from the Ashwood apartments; from her car she heard four to seven shots fired

around 12:15 a.m. The shots sounded as if they were fired north of her, but were very

close. Comeyne advised dispatch of the shots fired and requested additional units. She

drove east on Shields, made a U-turn in front of the Ashwood apartments, and parked

facing west on Shields. She started to exit her vehicle, but saw two females walking

toward her. Comeyne also observed a four-door silver vehicle exiting the west side of the

Ashwood complex.

Comeyne asked the females if the silver car was involved with the shots fired, and

they confirmed it was. She advised dispatch and then pursued the silver vehicle, which

was headed west on Shields. The vehicle took the on-ramp to Highway 168; Comeyne

lost sight of it for approximately three seconds when the car went down the ramp. She

never saw any objects, including a gun, come out of the vehicle while she was pursuing

it.

Comeyne performed a felony traffic stop of the silver car on the on-ramp. When

additional police units arrived, the occupants of the silver vehicle were held at gunpoint

and directed to exit the vehicle. McGee was the driver, Thomas exited the front

passenger side of the car wearing a white T-shirt, jeans, and a black baseball hat; and

Brown exited from the right rear passenger door wearing jeans, a blue shirt, and a hooded

sweatshirt. McGee consented to a search of the vehicle, but no weapons were found

inside.

Later, after an infield identification by witnesses, Comeyne escorted Brown. As

he was walking with Comeyne, he asked her whether it was “‘a positive I.D.” and

“‘Those were the witnesses?’” Comeyne did not answer his first question, and in

response to his second question she explained to him she would have to talk to the

detectives.

Officer Jeffery Lee was dispatched to the on-ramp to assist with Comeyne’s felony

stop of the silver car. After the occupants of the silver car were safely removed, he began

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walking up the on-ramp from the silver car toward Shields to see if anything had been

discarded prior to the stop. He found a firearm on the pavement of the on-ramp

approximately 100 yards north of Shields. The slide of the gun was locked back, the

magazine was attached, but there was no ammunition in it. In his experience, a slide in

the locked-back position indicates the weapon had been fired until no ammunition

remained.

B. Investigation

Lead detective Bartlett Ledbetter arrived at the Ashwood apartments crime scene

at about 2:50 a.m. He also walked through the on-ramp crime scene, where he saw a

divot in the ground several feet above where the gun came to rest. The divot looked fresh

to him and had some very sharp corners. The silver car stopped on the on-ramp was not

searched other than the initial search consented to by McGee and performed at the time

of the stop—he ordered it towed and sent to an impound lot for a search after a warrant

was obtained. No drugs were found in the suspect vehicle or any of the victim’s

belongings. There was no indication anything had been stolen from the victim.

1. Witness Interviews

Back at the Ashwood apartment complex, Ledbetter recorded an interview with

each of the witnesses. His interview with Jennifer occurred at about 4:30 a.m. She

indicated two men had been at the complex at the time of the shooting. One had the hood

of his shirt up, and it looked as though his hair might have been stuffed in it. She

described the hooded man as being a Black male around 5 feet 9 inches tall, about

140 pounds, and in his early 20’s. She told Ledbetter the second individual was a Black

male in a white T-shirt and jeans with long dreadlocked hair—the second individual was

bigger, taller and just a bit older than the hooded man—the second man stood

approximately 5 feet10 inches to 6 feet tall.

Part of Ledbetter’s recorded interview of Jennifer was played for the jury. In that

interview, Jennifer stated she did not see anyone shoot; one man was wearing a hoodie,

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but she could not see his face; she may have seen the man in the white T-shirt at the

apartment before; and she said she would not be able to recognize the face of the man in

the hoodie.

Ledbetter next interviewed Shawna. She provided a description of a suspect who

was thin with a blue jacket and a hood. She also said his hood was puffy and pointed, but

she never saw the suspect’s hair. She also saw a vehicle leaving the west parking lot, but

she did not see the driver.

A portion of Ledbetter’s recorded interview with Shawna was played for the jury.

Shawna told Ledbetter she had seen the Dodge Charger around the complex before. She

thought there might have been someone with the person she had seen in the hood, but she

“didn’t see anyone, really.” She did not get a “super good look” at the man in the hood;

she lost sight of him after he asked questions and then a few seconds later she heard shots

fired. She thought there had to be a second person because someone had to be driving the

car. She described the car as a two-door vehicle, and she told Ledbetter she could not see

who was in the car or how many people there were.

Ledbetter then interviewed S.L., who had been sleeping just prior to the interview.

The individual S.L. saw was a Black male wearing a black sweatshirt with a hood and

jeans. She described him as thin. Neither Shawna nor S.L. said they saw a person

wearing a white T-shirt. Shawna was present for S.L.’s interview; Shawna interjected

one time and Ledbetter told her to be quiet. Shawna said at one point in the interview she

was happy law enforcement had gone after the car coming out of the complex.

2. Witness Identifications

After their separate interviews at the apartments, Jennifer, Shawna and S.L. were

all transported to the police station so that an infield showup of the suspects could be

conducted—this happened about 5:30 a.m. Jennifer was shown Thomas first. She said

she recognized him by his face and his white T-shirt. She described him as the one

hanging back at the apartment complex that night. Jennifer also identified Brown. She

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was very sure this was the person she had seen in the hood after she asked that his hood

be put up during the identification.

Ledbetter testified Shawna was hesitant as to identifying Brown, but she said she

recognized him as the man she had seen. Shawna thought the jacket Brown was wearing

did not look like the jacket she had seen on the hooded man. As to Thomas, she thought

he looked familiar, as though she had seen him before, but she could not make a positive

identification. She did not recognize Thomas as anyone she had seen that night.

S.L. identified Brown as the person she saw in the hood, but when she viewed

Thomas she said she had not seen him that night although he looked familiar to her.

The witnesses also participated in a field showup to identify the car they had seen.

Jennifer testified the car she was shown at the on-ramp was the car she had seen on

Shields before the shooting; viewing photographs from the witness stand, she identified

the car in the photos as the car she had seen that night. Shawna and S.L. were together

when they looked at the suspect vehicle on the on-ramp. They disagreed about whether

that vehicle was the one they had seen at the apartment complex. S.L. told Ledbetter it

was not the vehicle, but Shawna said there was no doubt it was the same car. To S.L. the

headlights of the car on the on-ramp looked different and the windows were not tinted,

although it was the same color and size as the car she had seen. On redirect, S.L.

acknowledged the car on the on-ramp had its windows rolled down.

3. Interview with McGee

Ledbetter testified about his three interviews with McGee, which occurred on

July 28, 2015, August 6, 2015, and on February 14, 2017. In the first interview, McGee

told Ledbetter she had received a call and went to the Ashwood apartments on Shields to

pick up Thomas and Brown, and they were stopped by the police immediately after that.

Then, she changed her story. She said she had originally picked them up at First and

McKinley and drove them to various locations. She denied hearing any gunshots when

parked at the Ashwood apartments but later acknowledged she had heard gunshots. She

16.

told Ledbetter that when she pulled into the Ashwood apartment parking lot, Thomas told

her to back into a parking space. She said she thought it was weird they were going to

that particular apartment complex because she thought they were going across the street

to the Sycamore complex—she did not think Thomas knew anyone at the Ashwood

apartments.

She also told Ledbetter it was only 30 seconds after the gunshots that Brown and

Thomas came back to her car. She told Ledbetter that Thomas would not let her speak

with Brown because he did not like her talking with his friends. She said she was afraid

of Thomas; she had seen him hit a girl before and he had done something to McGee once,

too.4

4. Evidence Collected on the On-ramp

A crime scene technician was dispatched to the on-ramp at Shields on July 28,

2015, and he documented the scene photographically. He also took photos of the firearm

Officer Lee had discovered, which was unloaded. There were five cell phones

discovered in the vehicle. The gun was found 565 feet south of the silver car—the

distance from Shields to the silver car was just over 1,000 feet. A divot was also found in

the dirt along the on-ramp near the gun, although it was not conclusively made by the

gun; the divot could have been there before the stop. The technician also collected

samples from Brown, Thomas and McGee to test for gunshot residue (GSR).

5. Evidence Collected at the Apartment Complex

The Ashwood apartment buildings are situated around a pool and outdoor

courtyard areas. There are two parking lots—one to the east and one to the west of the

complex that extend north from Shields; each lot has a single entrance/exit onto Shields.

There are carports along the outer edge of the parking lots. Shields runs east to west on

the south side of the complex.

4 McGee testified Thomas had pulled her hair once.

17.

In the middle of the complex, outside between buildings, there are two grassy

courtyards to the north and south of a pool. On the south courtyard officers, located six

.38-caliber shell casings, some clothing, flip-flop shoes, and bullet strikes on the exterior

wall and interior of the nearby laundry room. The bullet casings were found to the west

of the laundry room. The bullet strikes along the west-facing wall of the laundry room

and the laundry room door measured from around 28 to 52 inches off the ground. Of the

four bullet holes in the laundry room, three bullets were recovered; one of the bullets

penetrated a dryer inside the laundry room and was not recovered. A deformed copper-

jacketed bullet was found in the east parking lot. A secondary crime scene was also

located at the north end of the complex toward the easterly located buildings. This is

where officers located the victim, blood, a shoe, and a cell phone. An investigating

officer testified it was 79 degrees at 11:53 p.m. on the night of the shooting, and the

lighting was relatively good as he could identify faces at 50 to 60 feet.

6. Evidence Collected From the Car After Impound

On July 31, 2015, after the suspect vehicle was photographed and searched at a

secured impound lot, black knit gloves were found on the floorboard of the rear right

passenger compartment. Three cell phones were located in the center console. GSR

swabs were taken from the door handles and seatbelts, and the gloves were preserved in a

refrigerator for DNA testing.

7. GSR, Fingerprints and DNA

Kaitlin Bauer, a criminologist, testified that GSR is made of microscopic particles

that are formed when a gun is fired; GSR has three main parts—lead, barium and

antimony. The particles can be found in two-component parts, rather than three—

although two-component particle combinations are not themselves GSR but they will,

when found with three-component particles, help to establish that GSR is present.

Generally, someone within three to five feet of a fired weapon will have GSR on

them. Those GSR particles will start to diminish after about four to six hours. The

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presence of more than three GSR particles is indicative of being near a weapon when it is

fired. However, three or fewer GSR particles is considered a low-level sample, and it is

difficult to exclude environmental transfer as the source of that number of particles.

When a sample has more than three particles, environmental transfer is much less likely

to be the source of the GSR.

GSR samples were acquired from the hands of Thomas, Brown and McGee; each

were analyzed, and the gloves found in the back, right side of the car were also tested and

analyzed. The sample from Brown’s left hand contained only one 3-part component

particle, and his right hand contained one 2-part component particle. Bauer concluded

GSR was present, but at a very low level.

Thomas’s right hand had four 3-component particles; his left hand had three 3-

component GSR particles and two 2-component supportive particles. GSR was therefore

present on his hands, environmental contamination was less of a concern, and the sample

indicated Thomas had some sort of interaction with GSR recently—i.e., he fired a firearm

or was in the vicinity of one being fired.

McGee had one 3-part component particle on her right hand, and nothing on her

left. GSR was therefore present, but one particle is a very low-level sample and could

have come from an environmental source.

The gloves found in the car were tested for GSR. The right glove contained

fourteen 3-component GSR particles and six 2-component particles. On the left glove,

there were seventeen 3-component GSR particles, as well as nine 2-part component

particles. Bauer explained GSR can get onto gloves by an individual firing a weapon

while wearing the gloves, being near a weapon that is fired while wearing the gloves, or

coming into some sort of contact with a surface or individual with GSR while wearing

the gloves.

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On cross-examination, Bauer acknowledged GSR can be transferred from police

contact if the officer has fired their service weapon recently. It can also be transferred

from handling ammunition.

A latent print analyst, Vincente Guerreo, testified fingerprints were found on the

gun, but they lacked clarity and the results were inconclusive and could not be positively

matched to Thomas or Brown. Brooke Dorval, a supervisor with the crime scene section

for the police department, testified there were no fingerprints recovered from the gun

magazine or the bullet casings found at the apartment complex.

Buccal swabs were obtained from Thomas, Brown and McGee and analyzed and

compared with DNA collected from various items at the crime scenes. Criminologist

Johnny Upshaw testified DNA found on the gun, magazine, and the gloves could not be

interpreted—too many samples were found on each that the mixture could not be

interpreted—it was neither inclusive nor exclusive of Brown and/or Thomas.

A senior criminologist, Michael Appel, testified about testing he performed on the

casings and the bullets recovered at Ashwood and the gun and magazine recovered at the

side of the on-ramp. The firearm from the on-ramp was a .38-caliber semiautomatic

pistol. Appel explained that semiautomatic and automatic firearms have a slide that feeds

a bullet cartridge into the gun’s chamber; when the trigger is depressed, the gun will fire

the cartridge and the slide will come back again, ejecting the fired cartridge case and

feeding a new bullet into the chamber. A semiautomatic will only perform that action

once per trigger pull. Upon firing a bullet, semiautomatics will eject the bullet cartridge

case. The casings recovered in this case were all .38-caliber, but two of them were from

a different manufacturer than the other four. Appel explained that casings will fly about

10 to 15 feet from where the weapon is fired.

Upon test-firing the gun found on the on-ramp, Appel determined it fired

normally. The gun also locked the slide back when the ammunition in the magazine was

depleted—which is what the gun is designed to do when functioning normally. On a gun

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like this, the slide can also be locked back manually. This gun was a single-

action/double-action. When the gun was fired in single-action mode, the trigger pull took

about 7.5 pounds of force; when operating in double-action mode, the trigger pull

required greater than 12 pounds of force.

Appel explained how the gun’s barrel leaves distinctive markings on the

ammunition it fires. From that, it can be determined whether any bullets recovered were

fired from that particular weapon. Appel testified all six of the casings recovered at the

scene were fired from the gun recovered on the on-ramp. But because of distortion, he

could not determine whether two of the four bullets recovered at the apartment complex

were fired from the gun found at the on-ramp, but they both shared class characteristics

with that gun (items 9 & 11). However, the other bullets recovered from the laundry

room wall were fired from the gun at the on-ramp (items 10 & 12). And, it was also

conclusively determined the bullet recovered from the victim’s body was fired from the

gun found on the on-ramp (item 13). That bullet, however, had a flat spot on it that was

indicative of ricocheting off of something hard. These results were verified and

confirmed on independent testing by another criminologist.

8. Cell Phone Data

Officer Antonio Rivera spoke to Thomas as part of his investigation on July 28,

2015. Thomas indicated his cell phone number, and he identified one of the cell phones

found in the car as his. That phone was booked as item 60. Brown identified three cell

phones from the car as his: a ZTE Concord phone, labeled item 61; an Apple iPhone 6,

labeled item 63; and an LG Optimus, labeled item 62. McGee identified a Samsung

Galaxy Note 3 as her phone, it was labeled item 64.

Forensic examination of the cell phones was performed by James Lutter. In the

data extraction of Thomas’s phone (item 60), one of the contacts in the phone was listed

as “N.O. Bee.” Contact N.O. Bee sent a text message to Thomas’s phone on July 27,

2015, at 6:48 p.m. that said, “‘Tell Bsmash call ASAP, it’s important.’” At 9:49 p.m. that

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night, Thomas’s phone sent a text message to N.O. Bee that said, “‘Bro, we need tht

now.’” A message was received and read by Thomas’s phone from N.O. Bee that said,

“‘Bro, ain’t no bullets in DEA … The bitch at work. I’m wot rog right now.’”

Thomas’s phone sent a message to N.O. Bee that said, “‘Where the thang???’” N.O. Bee

responded to Thomas’s phone, “‘At the crib, bro.’” N.O. Bee also sent a message to

Thomas’s phone that said, “‘I wish you woulk ta told me before I left da crib this

morning.’” Thomas’s phone sent a message back to N.O. Bee saying, “‘Damn, but no

bullets.’” N.O. Bee responded to Thomas’s phone: “‘Exactly.’” Thomas’s phone sent a

text message back to N.O. Bee that said, “‘Okay.’”

Thomas’s phone also communicated with McGee’s phone (item 64). There was

no name associated with her number in Thomas’s contacts. There were four phone calls

and four text messages between Thomas’s and McGee’s phones on July 27, 2015, which

had been deleted before the phone data was extracted. McGee’s phone sent a text to

Thomas’s phone at 10:21 p.m. that said, “‘On m[y] way.’” A second message was sent

from McGee’s phone to Thomas’s phone at 10:28 p.m. that said, “‘Come outside.’”

9. The Autopsy

The victim was found to have a bullet entrance wound on the left side of his back.

There was no stippling around the entrance site, indicating the gunshot came from a

distance greater than 24 to 30 inches. The copper-jacketed bullet, which the coroner was

able to recover from the victim’s body, had traveled through the left rib, the lower lobe of

the left lung, and had pierced the victim’s heart. Abrasions around the victim’s forehead

and nose were consistent with a fall. The cause of death was deemed the gunshot to the

back, and the victim’s death was ruled a homicide.

10. Interview and Hearing Statements of McGee

On August 6, 2015, Ledbetter interviewed McGee again. For the first time, she

talked about overhearing Brown on the phone and that there was some sort of setup

planned. She never mentioned McLane High School, nor did she reference First and

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McKinley in relation to this setup. She made some reference to a meeting happening at

Mayfair, but she also indicated she did not believe the Mayfair area included the Shields

and Maple intersection where the Ashwood apartment complex was located. She denied

she knew anything was going to happen at Ashwood apartments that night, and she said

there was no plan or conversation about what was supposed to happen at Ashwood.

In February 2017 at a follow-up interview with McGee, Ledbetter asked her if she

knew anything about men’s gloves in her car—she said there should not be any gloves in

her car other than perhaps latex gloves she had used for previous work she performed at a

warehouse.

In September 2017, McGee gave testimony at a pretrial hearing where she again

discussed Brown’s phone conversation that she heard in the car the night of the shooting.

She indicated she heard Brown say something to the effect the setup was going to happen

near McLane High School. That was the first time Ledbetter had heard her use McLane

as a location for the setup that she believed Brown was orchestrating.

11. Arrest and Rearrest of Thomas and Brown

Thomas and Brown were arrested on July 28, 2015, but they were released on

July 30, 2015, because the allowable period to detain them without charging them with a

crime had expired. After additional evidence was processed, Ledbetter sought arrest

warrants for Brown and Thomas, which were issued on July 31, 2015. Thomas was

arrested on August 21, 2015 and by then had cut off his braids/dreadlocks. Brown was

arrested in Las Vegas on September 22, 2015.

II. Verdict and Sentencing

The jury found Brown guilty of first degree murder and found true the allegation

he had personally used a firearm within the meaning of section 12022.5(a) and that he

personally and intentionally discharged a firearm causing death under

section 12022.53(d). The jury found Thomas guilty of first degree murder, and found

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true an enhancement allegation that a principal was armed with a firearm during the

commission of the crime under section 12022(a)(1).

Brown was sentenced to 25 years to life for first degree murder and a consecutive

term of 25 years to life for the gun enhancement under section 12022.53(d). The

enhancement under section 12022.5(a) was stricken pursuant to section 12022.53(f).

Thomas was sentenced to 25 years to life for first degree murder, and the court imposed

the one-year enhancement under section 12022(a)(1). Both defendants appealed.

DISCUSSION

I. Substantial Evidence Supports the First Degree Murder Conviction

Brown and Thomas argue there is no substantial evidence of deliberation and

premeditation to support a first degree murder conviction, and they maintain the verdict

must be reversed or reduced to second degree murder.

Thomas also joins Brown’s additional argument that there is no substantial

evidence of an intent to kill under either a direct or transferred intent theory that could

support a first degree murder conviction. As such, they argue the jury should not have

been instructed on transferred intent and the verdict must be reversed on this additional

basis.5

A. Standard of Review

“The Due Process Clause of the Fourteenth Amendment denies States the power to

deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt

every element of the charged offense” (Carella v. California (1989) 491 U.S. 263, 265,

citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by

substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the

relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether,

5 In his opening brief and supplemental reply brief, Thomas joined Brown’s argument as to

these arguments.

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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.’”

(People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must disclose substantial

evidence to support the verdict—i.e., evidence that 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. Zamudio, supra, at p. 357.)

“In applying this test, we review the evidence in the light most favorable to the

prosecution and presume in support of the judgment the existence of every fact the jury

could reasonably have deduced from the evidence.” (People v. Zamudio, supra, 43

Cal.4th at p. 357.) “‘[I]t is the jury, not the appellate court which must be convinced of

the defendant's guilt .…’” (People v. Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “A

reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no

hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s

verdict.” (People v. Zamudio, supra, at p. 357.)

To be guilty of first degree murder, the prosecution must prove beyond a

reasonable doubt that the defendant acted with the intent to kill, and with premeditation

and deliberation. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1223.)

B. Substantial Evidence of an Intent to Kill (Express Malice)

1. Background

There was no evidence offered at trial about Brown’s and/or Thomas’s motive to

kill the victim or any link between Brown and/or Thomas and the victim killed. The

bullet that struck and killed the victim had ricocheted after first striking another surface.

S.L. testified she heard the voice of another person in addition to the victim near the

laundry room a few minutes before the shooting, although she never saw anyone other

than the victim in that location.

Based on the lack of evidence of a motive, the fact the victim was killed with a

ricocheted bullet, and S.L.’s testimony about the possible presence of another person near

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the laundry room, the prosecutor requested an instruction on transferred intent, arguing it

was possible for the jury to infer the victim was not Brown’s intended target. The court

instructed the jury on the doctrine of transferred intent: “If the defendant intended to kill

one person but by mistake or accident killed someone else instead, then the crime, if any,

is the same as if the intended person had been killed.”

During his closing argument, the prosecutor told the jury the following: “And

there’s a thing called transferred intent. That is important in a case like this. If the

defendant intended to kill one person but by mistake or accident killed someone else

instead, then the crime, if any, is the same as if the intended person had been killed. One

thing that I can’t prove to you is who … Brown intended to shoot at that night. It might

have been [the victim], it might have been another person. I can’t establish that.

However, that instruction, transferred intent, means that that’s not necessary to prove to

have a murder conviction. It doesn’t matter who he was trying to shoot at.”

Defendants argue this portion of the prosecutor’s closing argument was an express

concession that the state could not prove that Brown and Thomas intended to kill the

victim pursuant to a direct intent-to-kill theory. In addition, defendants contend, there

was no substantial evidence of any other intended target, and the court should not have

instructed on transferred intent. Because the prosecutor conceded there was no evidence

to prove a direct intent to kill the victim, and because there was no substantial evidence

of any other intended target to support a transferred intent theory, there was insubstantial

evidence of the intent to kill required to support a verdict of first degree murder.

The People maintain the evidence was clearly sufficient to sustain a finding of

Brown’s intent to kill someone—either the victim who was shot or another intended

target. The People argue the evidence Brown fired a gun toward the victim in a close-

range manner that could result in the infliction of a mortal wound had the bullet been on

target supports an inference of the intent to kill. The People maintain there was evidence

26.

from which the jury could have concluded either the victim or another target was the

object of that intent to kill.

2. Analysis

“A killing with express malice formed willfully, deliberately, and with

premeditation constitutes first degree murder.” (People v. Beltran (2013) 56 Cal.4th 935,

942.) Express malice requires an intent to kill “unlawfully.” (§ 188, subd. (a)(1).)

“Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’”

(People v. Smith (2005) 37 Cal.4th 733, 739 (Smith), quoting People v. Saille (1991) 54

Cal.3d 1103, 1114.) Express malice requires a showing the assailant either desires the

result—i.e., death, or knows to a substantial certainty, death will occur. (People v.

Davenport (1985) 41 Cal.3d 247, 262.)

The doctrine of transferred intent applies to the mental state for murder. The

doctrine applies when the defendant intends to kill one person, but mistakenly kills

another. (People v. Bland (2002) 28 Cal.4th 313, 317.) The intent to kill the intended

target is deemed to transfer to the unintended victim so that the defendant is guilty of

murder. (Ibid.) “[A]ssuming legal causation, a person maliciously intending to kill is

guilty of the murder of all persons actually killed. If the intent is premeditated, the

murder or murders are first degree.” (Id. at pp. 323–324, fn. omitted.)

Despite the prosecutor’s statement to the jury during closing argument that he

could not prove “who … Brown intended to shoot at that night,” there was substantial

evidence to support the jury’s verdict under either theory of intent. When evaluating

whether a verdict is supported by substantial evidence, a reviewing court examines the

evidence presented to the jury. The prosecutor’s statements and arguments are not

evidence, and the jury was so instructed. The existence or lack of substantial evidence

does not rise or fall on the wording or phrasing the prosecutor selects—the prosecutor’s

argument can neither manufacture substantial evidence where there is none, nor sweep

away substantial evidence that has been presented. Here, there is substantial evidence

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Brown acted with the express malice—i.e., the intent to kill—required for first degree

murder, regardless whether the jury concluded the victim was the object of that intent or

whether that intent was directed toward another target.

As explained in Smith, there is rarely direct evidence of a defendant’s intent to kill.

Such intent is usually derived from all the circumstances, including the defendant’s

actions. (Smith, supra, 37 Cal.4th. at p. 741.) In reviewing a series of general principles,

the court observed that “‘[t]he act of firing [a gun] 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 .…” [Citation.]’”

(Ibid.) The People cite Smith for this proposition and argue Brown’s act of shooting the

gun six times toward the laundry room was substantial evidence of an intent to kill, even

though the bullet that hit the victim was a ricochet.

Defendants assert that Smith has no application here because it is factually

distinguishable. Smith involved two counts of attempted murder based on the

defendant’s act of firing a single bullet into a slowly moving vehicle, narrowly missing

his ex-girlfriend and her child in the back seat. (Smith, supra, 37 Cal.4th at p. 736.)

Transferred intent does not apply to attempted murder; thus, to establish attempted

murder as to both the ex-girlfriend and the child, the prosecution had to prove the

defendant acted with an intent to kill both the ex-girlfriend and the baby when he fired

the gun. The court concluded the defendant’s act of firing a single round at both mother

and baby from close range, each of whom the defendant knew was directly in his line of

fire, allowed the jury to infer he acted with the intent to kill both victims. (Id. at p. 743.)

We agree with defendants that, as an attempted murder case, Smith is factually

distinguishable, but the principles Smith discussed relevant to intent to kill are applicable

here.

In Smith, before reaching the issue of whether Smith’s intent to kill was specific to

each victim, a factor not relevant here where attempted murder is not at issue, the court

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reviewed principles relevant to establishing express malice—a requirement in both first

degree willful, deliberate and premediated murder and attempted murder.6 The court

articulated two principles of law: first, while motive may often be probative of intent to

kill, it is not an element of a criminal offense and it is not required to establish an intent

to kill; second, intent to kill may be inferred from the defendant’s acts and the

circumstances of the crime. (Smith, supra, 37 Cal.4th at pp. 740–741.) As to the second

principle, the court explained the act of firing toward a victim at close, but not point

blank, range in a manner that could have inflicted a mortal wound is sufficient to support

an inference of the intent to kill. (Id. at p. 741.)

The court explained that these legal principles together reflected that “the act of

purposefully firing a lethal weapon at another human being at close range, without legal

excuse, generally gives rise to an inference that the shooter acted with express malice.

That the shooter had no particular motive for shooting the victim is not dispositive,

although again, where motive is shown, such evidence will usually be probative of proof

of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove

lethal dispositive—the very act of firing a weapon ‘“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.” (Smith, supra, 37 Cal.4th at p. 742.)

These general principles discussed in Smith apply with equal force here where the

intent to kill must be established to support the first degree murder conviction.

Construing the evidence in the light most favorable to the judgment and drawing all

reasonable inferences therefrom, Brown carried a loaded semiautomatic pistol to an

apartment building in the middle of the night. Despite the 79-degree temperature, Brown

6 “When a single act is charged as an attempt on the lives of two or more persons, the

intent to kill element must be examined independently as to each alleged attempted murder

victim; an intent to kill cannot be ‘transferred’ from one attempted murder victim to another

under the transferred intent doctrine.” (People v. Canizales (2019) 7 Cal.5th 591, 602.)

29.

had his hood up over his head to conceal his appearance and gloves on to prevent GSR

from transferring to his hands upon firing the gun. All of the witnesses saw him with his

hood up, and gloves with a significant amount of GSR were found in McGee’s car where

Brown had been sitting.

Brown had his hand on the gun while he carried it—witnesses testified Brown had

his hands in his pockets and it appeared he was carrying something. Brown was ready to

quickly fire the gun upon acquiring his target. Brown got his target’s attention by asking

a couple of questions and then immediately discharged the .38-caliber gun six times in

the direction of where the victim had been seen and heard minutes before, emptying the

magazine of bullets.

There is no evidence to support an inference the gun was fired at the ground or

was somehow fired only to scare the victim or anyone else. All of the gun’s ammunition

was used, and the gun was fired at human height, evidenced by where the bullets struck

the laundry room wall. The jury could infer the gun was aimed to inflict maximum

damage on humans in the path of the bullets. (See People v. Leon (2010) 181

Cal.App.4th 452, 463–464 [reasonable to infer shot fired at a car’s taillight was pointed

in the direction of the passenger compartment and that the defendant intended to kill

when the backseat passenger was hit by the bullet].) The gun used was powerful—the

forensic evidence showed several of the bullets pierced the wall of the laundry room and

traveled into the laundry room. The trigger on this particular gun required a fair amount

of force to pull—from 7.5 pounds in single-action mode to 12 pounds in double-action

mode—supporting an inference the trigger was pulled six times intentionally, not

accidentally.

The circumstances of the shooting in combination with evidence the victim and

possibly one other person were in the vicinity of the laundry room minutes before the

shooting supplied substantial evidence Brown intended to kill whomever the jury

concluded he was ultimately targeting.

30.

Defendants maintain that because no one was hit directly with a bullet and there is

no direct evidence about where Brown aimed the gun, it cannot be established beyond

reasonable doubt Brown fired the gun with an intent to kill anyone. Defendants cite

People v. Ratliff (1986) 41 Cal.3d 675 and People v. Virgo (2013) 222 Cal.App.4th 788

(Virgo) for the proposition merely firing a weapon does not, in itself, establish an intent

to kill. But Ratliff is inapposite because the court’s discussion there related to what the

jury must have necessarily concluded about the shooter’s intent in considering whether

an instructional error was harmless, not whether the shooting under those circumstances

constituted substantial evidence of an intent to kill. (People v. Ratliff, supra, at pp. 695–

696.)

Virgo is similarly unhelpful. In considering whether several attempted murder

convictions were supported by substantial evidence, Virgo observed the defendant’s shots

fired at the ceiling inside the house did not establish the attempted murder of deputies

outside the house taking cover on the ground. (Virgo, supra, 222 Cal.App.4th at p. 799.)

Unlike some of the shots fired by the defendant in Virgo, nothing similar here suggests

Brown fired shots that bore no possible relationship to where the victim or another target

was located.

That the victim was hit with a ricochet does not conclusively establish the victim

was not in Brown’s line of fire. The jury could have reasonably concluded the fact the

victim was hit with a ricochet bullet was due to Brown’s ineffective shooting abilities,

especially since he fired so many times, or that the victim was trying to get away when

Brown opened fire. The bullet struck the victim in his back, and the victim ultimately

collapsed at the north side of the building away from the laundry room. Brown fired the

gun repeatedly toward the location where the victim had been seen and the victim was

actually hit with a bullet. There was substantial evidence Brown shot the gun with an

intent to kill. The jury could have reasonably concluded the victim was the object of that

intent.

31.

Defendants argue there was no substantial evidence to support a transferred intent

theory because the prosecution never established definitively that someone else was

present at the scene—no one was seen coming or going from the laundry room area, and

there was no evidence the other person was the intended target or that Brown harbored a

premeditated intent to kill that person. As discussed ante, the evidence strongly

supported a conclusion Brown acted with an intent to kill given the circumstances of how

he fired the gun six times toward the direction of the laundry room, regardless of his

specific target. The jury could have reasonably concluded the victim was his target, but

the jury could have reasonably drawn a different conclusion given that the victim was hit

with a ricocheted bullet in combination with S.L.’s testimony that she heard another

voice near the laundry room before the shooting. As defendants have repeatedly noted,

the ricochet bullet could support a conclusion the victim was not in the direct line of fire.

In sum, substantial evidence established Brown intended to kill whomever he was

specifically targeting at the laundry room—the evidence of that intent to kill did not

hinge on the specific identity of his target. The substantial evidence allowed the jury to

reasonably conclude the object of Brown’s intent to kill was either the victim or the other

person S.L. heard near the laundry room before the shooting.

C. Substantial Evidence of Premeditation and Deliberation

Defendants additionally contend there was no substantial evidence of

premeditation and deliberation, and the first degree murder verdict is therefore

unsupported and must be reversed.

1. Legal Standard

An intentional killing (express malice) “that is premeditated and deliberated is

murder of the first degree.” (People v. Cortez (1998) 18 Cal.4th 1223, 1232.) “‘An

intentional killing is premeditated and deliberate if it occurred as the result of preexisting

thought and reflection rather than unconsidered or rash impulse.’” (People v. Pearson

(2013) 56 Cal.4th 393, 443.) “The very definition of ‘premeditation’ encompasses the

32.

idea that a defendant thought about or considered the act beforehand.” (Ibid.) 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.’”’” (People v.

Houston (2012) 54 Cal.4th 1186, 1216.)

“‘“The process of premeditation and deliberation does not require any extended

period of time. ‘The true test is not the duration of time as much as it is the extent of the

reflection. Thoughts may follow each other with great rapidity and cold, calculated

judgment may be arrived at quickly .…”’” (People v. Houston, supra, 54 Cal.4th at

p. 1216.)

“In People v. Anderson (1968) 70 Cal.2d 15, 26–27 [(Anderson)], [the Supreme]

[C]ourt reviewed earlier decisions and developed guidelines to aid reviewing courts in

assessing the sufficiency of evidence to sustain findings of premeditation and

deliberation. [Citation.] [The court] described three categories of evidence recurring in

those cases: planning, motive, and manner of killing.” (People v. Halvorsen (2007) 42

Cal.4th 379, 419–420.) “[H]owever, ‘[u]nreflective reliance on Anderson for a definition

of premeditation is inappropriate.’” (People v. Koontz (2002) 27 Cal.4th 1041, 1081;

accord, People v. Casares (2016) 62 Cal.4th 808, 824, disapproved on another ground by

People v. Dalton (2019) 7 Cal.5th 166, 214.) The California Supreme Court recently

reiterated, “In the years since Anderson, “‘we have emphasized that its guidelines are

descriptive and neither normative nor exhaustive, and … reviewing courts need not

accord them any particular weight.’” [Citation.] Anderson provides ‘a framework to aid

in appellate review,’ but it does not ‘define the elements of first degree murder or alter

the substantive law of murder in any way.’” (People v. Morales (2020) 10 Cal.5th 76,

89, quoting People v. Rivera (2019) 7 Cal.5th 306, 324 & People v. Perez (1992) 2

Cal.4th 1117, 1125; accord, People v. Casares, supra, at p. 824; People v. Halvorsen,

supra, at p. 420.)

33.

Yet, the verdict may not stand if based only on “‘“fanciful theories and

unreasonable inferences [or] resort to imagination or suspicion.” [Citation.]’ [Citation.]

‘Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and

does not constitute proof.’” (Anderson, supra, 70 Cal.2d at p. 24.)

Our task on review is to determine whether “any rational trier of fact could have

been persuaded beyond a reasonable doubt” that the murder was deliberate and

premeditated. (People v. Perez, supra, 2 Cal.4th at p. 1127.) Even where a reviewing

court could make contrary factual findings or draw different inferences from that of the

jury, “we are not permitted to reverse the judgment if the circumstances reasonably

justify those found by the jury. It is the jury, not the appellate court, that must be

convinced beyond a reasonable doubt.” (Id. at p. 1126.)

2. Analysis Regarding Brown

Defendants argue the finding of premeditation and deliberation was not supported

by any substantial evidence could only have been based on improper speculation or

conjecture.7

We disagree. There was ample circumstantial evidence from which the jury could

infer the killing was premeditated and planned in advance, and the evidence about the

manner of killing strongly supported an inference the killing was willful and deliberative.

a. Planning

Defendants argue there is no evidence of planning, but we find an ample basis for

the jury to reasonably infer Brown had planned the shooting well before getting to the

apartment complex.

A reasonable juror could have concluded Brown went to the Ashwood complex

equipped with a concealed and loaded semiautomatic weapon with a plan to kill

7 Thomas joins the arguments made by Brown, but Thomas also presents arguments

specific to his liability as an aider and abettor. We address the evidence as to both of them in

turn.

34.

someone. (See People v. Miller (1990) 50 Cal.3d 954, 993 [keeping pipe in a car and

then using it to kill people reasonably suggests the defendant considered the possibility of

murder in advance and exhibited planning activity].) There was evidence that Brown

knew the vehicle was poised for a quick getaway in a parking lot that had only a single

ingress/egress. He wore a hood on a balmy 79-degree night from which it could be

inferred he meant to cover up his dreadlocks and obscure his appearance, and there was

evidence he wore gloves from which it could be inferred he meant to prevent GSR from

transferring to his hands. The witnesses reported Brown walked with his hands in his

pockets, and it appeared as though he were carrying something. This was evidence from

which a reasonable juror could infer he walked through the complex with his hand on the

gun. There was no evidence he appeared to be lost, confused, or was wandering around

the complex—he walked from the direction of the west parking lot toward the laundry

room. It took him less than three minutes outside of the car to accomplish the shooting

and return to the car.

Brown knew where he was going and who he was looking for—an inference that

was supported by the entire arch of the evening’s events, the fact he and Thomas were

only out of the car for mere minutes before the shooting occurred, and the conversation

McGee overheard about a deliberate, prearranged setup. The two or three questions

witnesses heard and saw Brown ask in the courtyard were followed immediately by the

sound of gunshots, which supported an inference Brown had located the victim and fired

as soon as the victim looked up or engaged with the questions. The timing of the

questions followed by the gunshots also supported an inference the victim had been

preselected before Brown even arrived at the complex—there was no argument,

conversation, or even hesitation between the questions and the shooting. (See People v.

Miranda (1987) 44 Cal.3d 57, 87 [lack of provocation by victim allows an inference that

the attacks were result of deliberate plan rather than “‘rash explosion of violence’”],

abrogated on another ground by People v. Marshall (1990) 50 Cal.3d 907, 993, fn. 4.)

35.

The evidence pointed to an orchestrated and preplanned shooting of a particular person in

a particular location.

Brown argues there were different inferences the jury could have drawn. McGee

related very few details about Brown’s conversation that she overheard, and she was

convinced it had nothing to do with the shooting at Ashwood. Brown and Thomas had

conversations that night out of McGee’s presence, but Brown points out there was no

evidence what was said. It is true the jury could have drawn different inferences about

the evidence. However, it is not a reviewing court’s role to reevaluate the evidence.

(People v. Brooks (2017) 3 Cal.5th 1, 58.) Rather, we must presume the existence of

every fact in support of the verdict that could reasonably be inferred from the evidence.

(People v. Booker (2011) 51 Cal.4th 141, 173.)

Moreover, Brown’s argument ignores the fact that he carried a loaded weapon into

a specific apartment complex with a car and driver waiting, put up his hood and wore

gloves on a nearly 80-degree night, kept his hands in his pocket with the weapon, walked

directly to where his victim was located, and fired the gun immediately upon obtaining

confirmation his selected victim was present through the use of the questions. All of this

was accomplished in about two or three minutes, after which Brown immediately

returned to the vehicle, took off the gloves, and got rid of the weapon. There was ample

evidence of planning.

b. Manner of the Killing

Another factor the Anderson court identified that may establish a deliberate and

premediated killing is how the killing is carried out—i.e., the manner of killing. Such

evidence will tend to show the killing “was so particular and exacting that the defendant

must have intentionally killed according to a ‘preconceived design’ to take his victim’s

life .…” (Anderson, supra, 70 Cal.2d at p. 27.) Here, there were facts about the manner

of the killing from which the jury could infer that Brown intentionally killed the victim

according to a preconceived plan or design.

36.

Defendants argue nothing about the manner of killing indicates a preconceived

plan or design. Defendants point out there may have been others beside the victim

present at the laundry room, and there was no indication where the victim was standing

when the shots were fired. The victim was killed with a ricochet bullet, suggesting the

gun was not aimed at the victim, and S.L. testified she thought Brown looked surprised

when the gun went off so many times. Defendants maintain this evidence was much

more consistent with a random explosion of violence rather than a calculated murder.

We disagree. As noted, the entire process of getting to the laundry room, locating

the target, and shooting the gun six times took only about two minutes. Significantly,

Brown did not fire the gun once or twice; he fired six times, emptying the magazine. The

7.5 to 12 pounds of pressure needed to repeatedly pull the trigger indicates firing that

many shots was no accident. He fired the shots from west to east toward where the

victim had been seen near the laundry room minutes before. Most of the bullets hit the

west-facing side of the laundry room wall about two feet to four feet above the ground. It

can be inferred these shots were meant to strike at human height. He fired the gun

without hesitation or delay after posing a few questions; the gun was so powerful several

of the shots passed through the wall of the laundry room. (See People v. Wright (1985)

39 Cal.3d 576, 594 [shooting victim on sight with no hesitation at close range with large-

caliber gun “could well support an inference by the jury that the manner of killing was

‘particular and exacting’”].)

Together, the evidence reflects not just planning in advance—the gun, the

ammunition, the gloves, the hood, the phone call about a setup—but also careful

considerations of a course of conduct while engaged in the process of locating the victim

and firing a powerful gun at human height until it was out of ammunition.

Given the evidence of planning and how the killing was performed, substantial

evidence supported the jury’s conclusion of a willful, deliberative and premeditated

murder.

37.

3. Analysis Regarding Thomas

Aiders and abettors may be convicted of first degree premeditated murder under a

direct aiding and abetting theory. (People v. Chiu (2014) 59 Cal.4th 155, 166–167

(Chiu), superseded by statute in part as stated in People v. Gentile (2020) 10 Cal.5th 830,

849.) Establishing aider and abettor liability “requires proof in three distinct areas:

(a) the direct perpetrator’s actus reus—a crime committed by the direct perpetrator,

(b) the aider and abettor’s mens rea—knowledge of the direct perpetrator’s unlawful

intent and an intent to assist in achieving those unlawful ends, and (c) the aider and

abettor’s actus reus—conduct by the aider and abettor that in fact assists the achievement

of the crime.” (People v. Perez (2005) 35 Cal.4th 1219, 1225.)

To convict a defendant of first degree murder as a direct aider and abettor, “the

prosecution must show that the defendant aided or encouraged the commission of the

murder with knowledge of the unlawful purpose of the perpetrator and with the intent or

purpose of committing, encouraging, or facilitating its commission.” (Chiu, supra, 59

Cal.4th at p. 167.) An aider and abettor to first degree premeditated murder must aid or

encourage the direct perpetrator in the commission of the murder and act with his or her

own willfulness, premeditation, and deliberation. (People v. McCoy (2001) 25 Cal.4th

1111, 1118; People v. Penunuri (2018) 5 Cal.5th 126, 146.)

Thomas joins Brown’s arguments above, but separately discusses the evidence

relevant to his conviction as an aider and abettor. Thomas argues the evidence that he

participated in any planning of the killing was “extremely weak.” We disagree. There

was evidence Thomas arranged to obtain, on an urgent basis, the gun or the ammunition

based on his text messages with N.O. Bee. Thomas solicited the ride from McGee right

around the time he was discussing a gun or ammunition with N.O. Bee. Thomas directed

McGee to an apartment complex where he and Brown stayed for only a few minutes.

Although there is no evidence what happened at that first stop, it established there was an

38.

opportunity between Thomas’s texts with N.O. Bee and the shooting to pick up the gun

and/or ammunition Thomas said he needed in his message with N.O. Bee.

Thomas and Brown had a private conversation outside of the car before they drove

to the Ashwood apartment complex. It was Thomas who directed McGee to go to

Ashwood. (See People v. Wright, supra, 39 Cal.3d at pp. 592–593 [obtaining loaded

firearm and seeking out the victim constitutes evidence of planning activity from which

the jury could reasonably find premeditation].) Once at the Ashwood apartment

complex, Thomas directed McGee to back into a parking spot from which the jury could

infer he knew what was planned and saw the need for a quick escape. Thomas got out of

the car with Brown and accompanied Brown to the complex’s inner courtyard. He and

Brown had a short conversation before Brown advanced toward the laundry room alone.

Right after the shooting, there is no evidence Thomas parted company with Brown after

the shooting—they arrived back at McGee’s car together.

Thomas argues the circumstances of the shooting show only that Brown was

seeking marijuana based on Brown asking about “trees,” after which someone started

firing wildly and only randomly hit the victim with a ricochet bullet. Thomas argues the

fact he arranged for a ride from McGee was consistent with attempting to purchase drugs,

a purchase that apparently went wrong. Yet, other than Brown’s question about trees

seconds before the shooting, there was no evidence Brown went to the apartment

complex to buy drugs. Moreover, Brown started firing the gun immediately after he

asked the questions—there was no argument or discussion between the questions and the

shooting suggesting an actual attempt to purchase anything. Besides Brown’s question

about trees, there is no evidence to infer Thomas planned to obtain the gun and/or

ammunition and the ride for purposes of a drug transaction.

Thomas points out he did not advance as far into the complex as Brown and he

was not with Brown when the shots were fired, so the manner of killing says nothing

about what Thomas intended or deliberated. But there was evidence Thomas knew what

39.

was going to happen and nonetheless accompanied Brown to the courtyard to give aid

and encouragement. He and Brown talked just before Brown advanced alone into the

courtyard. Thomas then hung back, allowing for an inference he knew what was planned

and either did not want to be seen by witnesses or wanted to stay out of the line of fire.

Thomas did not disassociate himself with Brown or otherwise part company with him

when the shooting happened; they returned to the car together—a jury could reasonably

infer the shooting was not a surprise to Thomas. (See In re Lynette G. (1976) 54

Cal.App.3d 1087, 1095 [presence at scene of crime, fleeing with perpetrator and two

others, and maintaining perpetrator’s company shortly after without disassociation

supported aider and abettor liability for robbery].) This was substantial evidence from

which a reasonable jury could infer Thomas knew what Brown intended and that Thomas

shared that intent.

Based on all of the foregoing, a reasonable jury could have concluded beyond a

reasonable doubt that Brown murdered the victim willfully with premeditation and

deliberation and Thomas, knowing of Brown’s intent and possessing the same mental

state, aided and abetted him in doing so.

II. Evidentiary Challenges

Defendants claim the trial court erred in admitting Hall’s testimony about what

S.L. told her, and the court erroneously admitted text messages between McGee and a

friend that constituted hearsay. Brown argues McGee’s testimony about what she

overheard of Brown’s phone conversation was irrelevant and admitted in error.

A. Admission of S.L.’s Prior Statement to Hall

1. Background

A few hours after the shooting, Ledbetter interviewed S.L. at the apartment

complex about what she had seen. She denied seeing anyone other than the hooded man

in the courtyard, and when Thomas was shown to her during the field showup, she said

she had not seen him that night but he looked familiar to her.

40.

On September 18, 2017, the day before S.L. testified, S.L. spoke with Sherri Hall,

an investigator from the D.A.’s office. S.L. asked to review her prior statement to police,

which she did. S.L. then told Hall she wished to make a correction: on the date of the

shooting, in addition to the hooded man, she had seen a Black male, medium build, and

wearing a white T-shirt. S.L. told Hall she had seen the man in the white T-shirt peer

around the corner from where she was seated that night, that he had looked directly at

her, and then he moved back out of her view. She told Hall she had told Ledbetter she

had seen only one person on the night of the shooting in the courtyard—the man in the

hoodie. S.L. told Hall that was the only part of her prior statements to police that was

incorrect.

At trial, S.L. testified she saw two people come into the apartment complex’s

courtyard while she was seated with Shawna and Jennifer. The first man she saw was

dressed in a black hoodie and she could only see the side of his face. The second person

was in a white T-shirt—he was not as tall as the man in the hoodie nor as skinny. She

saw the man in the white T-shirt peering out from behind a wall. The hooded man was

looking straight ahead, but then he looked back at the man who was behind him. She

never saw the man in the white T-shirt after the shooting.

S.L. testified she remembered telling officers that night she had not seen the man

in the white T-shirt. She explained she was trying to decide for herself, but her mother

kept giving her own input; S.L did not want it to seem as though she were lying if she

was saying something different from her mother, so she just said she had not seen the

man in the white T-shirt.

Defendants argue S.L.’s statements to Hall were hearsay and were admitted

erroneously because they did not meet the temporal requirement of the hearsay exception

for prior consistent statements under Evidence Code section 791. Defendants argue that

for these statements to be offered as prior consistent statements, they must have been

made before S.L. made her initial statement to police—making the prior consistent

41.

statement two years after S.L.’s initial statement was well after any motive to fabricate

would have arisen.

The People assert defendants’ hearsay argument is forfeited for purposes of appeal

because neither defendant objected to the admission of these statements at trial. But even

if the argument was not forfeited, the People maintain any error in admitting S.L.’s

statements to Hall was harmless because it was duplicative of S.L.’s trial testimony.

In response, defendants contend the People implicitly concede the admission of

S.L.’s statements to Hall was erroneous as the People make no claim the statements were

properly admitted. Defendants argue S.L.’s prior statement to Hall had the effect of

improperly bolstering S.L.’s entire trial testimony—which was far more inculpatory than

that of Shawna or Jennifer. This error was so egregious it rendered their trial

fundamentally unfair and this court should address their claim even if the issue was

technically forfeited below for failure to object.

2. Analysis

Defendants did not raise this objection to S.L.’s prior statement during trial, and

the claim is therefore forfeited on appeal. (People v. Nunez and Satele (2013) 57 Cal.4th

1, 30, citing People v. Williams (1976) 16 Cal.3d 663, 667, fn. 4 [“It is the general rule …

that questions relating to the admissibility of evidence will not be reviewed on appeal

absent a specific and timely objection at trial on the ground sought to be urged on

appeal.”].)

On the merits, even assuming S.L.’s statement to Hall about seeing the man in the

white T-shirt was erroneously admitted, the error did not render the trial fundamentally

unfair such that it constituted a constitutional due process error nor was the error

prejudicial under state law.

Defendants argue Hall’s testimony was used to bolster S.L.’s credibility with the

jury and suggested S.L.’s trial testimony was more honest and more accurate than her

statement to police. In particular, when S.L. testified at trial for the first time that she had

42.

actually seen Brown shoot the gun that night, defendants claim Hall’s testimony made

that statement more credible and believable.

Defendants do not explain precisely how Hall’s testimony bolstered S.L.’s entire

trial testimony. It is difficult to conclude it would have had any positive effect on S.L.’s

trial testimony, let alone bolster all of it. S.L.’s statement to Hall was made two years

after S.L.’s interview with Ledbetter—it was not a timely correction given it was an

inaccuracy S.L. always knew existed. Nor was the interview with Hall initiated by S.L.

in an effort to correct an inaccuracy after more mature reflection given her age at the time

of the shooting. S.L. merely told Hall what she was going to say at trial, and Hall’s

testimony included nothing that was not covered in S.L.’s trial testimony. The only

possible benefit of Hall’s testimony was to show that S.L. was not modifying her version

of events for the very first time on the witness stand. But the credibility benefit of that

would have been extremely limited considering S.L. spoke with Hall the day before S.L.

testified at trial.

At trial, S.L. claimed she was contradicting her prior statement to Ledbetter about

the man in the white T-shirt because her mother had been with her when Ledbetter

interviewed her and when S.L. participated in the infield showups. S.L.’s implicit

admission she was influenced about how she reported things to police that night because

of her mother did not bolster the credibility of anything she told Ledbetter or the police.

But, the fact that S.L. told Hall about seeing the man in the white T-shirt did not create

any aura of credibility around her trial testimony. S.L. changed her statement to

Ledbetter years after the shooting and only one day before she testified. The passage of

time between the shooting and what she told Hall made any discrepancy or change from

her initial interview generally less credible, not more so. The mere fact S.L. told Hall

about the change in her version of events the day before she testified at trial did nothing

to make her trial testimony inherently more believable or credible.

43.

As for S.L.’s trial testimony she saw Brown shoot the gun, which was inconsistent

with her interview statement to Ledbetter that her view was obstructed when the gun was

fired, this never came up with Hall. In fact, Hall testified S.L. pointed to no other

discrepancies in her statements to Ledbetter other than seeing the man in the white T-shirt

in the courtyard. Far from bolstering S.L.’s trial testimony, this was another reason for

the jury to question S.L.’s testimony in this regard. She never told Ledbetter she saw

Brown shoot the gun, and she did not identify that as an error or omission when she

spoke with Hall. Hall’s testimony did nothing to bolster S.L.’s credibility in a

meaningful way.

S.L. was subjected to thorough cross-examination on the differences between her

statements to Ledbetter and her trial testimony. The jury was aware S.L.’s statement to

Hall was made only one day before S.L. testified, and that the statement to Hall and her

testimony at trial were more than two years after the shooting. Hall’s testimony that S.L.

told her she had seen the man in the white T-shirt on the night of the shooting did not

render defendants’ trial fundamentally unfair.

For these same reasons and because Hall’s testimony was duplicative of S.L.’s

testimony regarding seeing the man in the white T-shirt, there is no reasonable

probability defendants would have received a more favorable result if Hall had not

testified about what S.L. told her. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)

[establishing harm from state law error requires a defendant to show it is reasonably

probable a more favorable result would have been obtained absent the error]; People v.

Boyette (2002) 29 Cal.4th 381, 427–428 [when error is simply one of state evidentiary

law, review standard under Watson applies]; People v. Beltran, supra, 56 Cal.4th at

p. 956 [Watson harmless error test focuses not on what a jury could do, but on what likely

to have done in the absence of the error].)

44.

B. Admission of McGee’s Testimony About Brown’s Phone Conversation

Brown maintains McGee’s testimony about what she overheard him saying on the

phone that night was irrelevant, and the trial court erred in admitting it. Brown claims the

state law error also violated his federal right to due process and a fair trial, but regardless,

the error was prejudicial under even the less stringent state law harmless error test.

1. Background

Before trial, defense counsel moved to exclude McGee’s testimony about Brown’s

phone conversation that McGee overheard. Defense counsel argued the phone

conversation was not relevant to the charged crime because it related to something that

was going to happen only at First and McKinley, not at the Ashwood apartments where

the shooting occurred. The prosecution argued the testimony, in conjunction with

McGee’s text message, was evidence Brown and Thomas went to Ashwood with an

intent to commit a robbery.

On September 15, 2017, an Evidence Code section 403 hearing was held to

determine the relevance of McGee’s testimony about the phone call. McGee testified she

met Thomas and Brown on the night of the shooting at First and McKinley. While they

were in the car together, McGee heard Brown talking on his phone telling someone she

assumed was female to have someone go somewhere in the area of First and McKinley—

in the Mayfair area. Brown was telling the girl to act drunk and like they were going to

party. It sounded like a setup to rob somebody. After the call, Brown and Thomas got

out of the car to have a conversation. When they got back in the car, she drove them

back exactly to where she had picked them up originally. Brown got out of the car and

went into an apartment.

On cross-examination, McGee confirmed nothing she had heard Brown say made

her think something was going to happen at Shields and Maple where the Ashwood

apartment was located. McGee believed that Shields and Maple is not in the Mayfair

45.

area. She believed that whatever Brown was planning was going to occur at the First and

McKinley location.

On redirect examination, McGee recalled Brown saying they were by McLane, but

she reiterated her belief that everything was going to happen at First and McKinley.

Ledbetter testified the Ashwood apartment building is roughly at the intersection of

Shields and Maple. As far as the reference to McLane, Ledbetter testified the distance

from McLane High School to Shields and Maple was about one-sixteenth to a quarter-

mile as the crow flies.

At the hearing’s conclusion, the prosecutor argued it was reasonable to infer the

conversation related to a setup near Ashwood. The prosecutor maintained this was so

because McGee heard reference to McLane and McLane is close to where the shooting

occurred. The prosecutor argued that when McGee had referenced Mayfair in prior

statements to Ledbetter, she really meant McLane. Brown’s counsel argued McGee’s

testimony was so tenuous it ran the risk of being incredibly prejudicial yet totally

speculative and irrelevant. McGee’s testimony was that she believed the setup was going

to occur at First and McKinley.

The court concluded that a reasonable jury could find Brown’s conversation had a

bearing on his planned activities for the evening. The court reasoned it could show the

presence of a motive and, assuming it were established, that the victim in this case was

one of the persons who was to be set up and could go to establish the issue of

premeditation and intent. The court also indicated it would give a limiting instruction

precluding the jury from using Brown’s statements during the phone call against Thomas.

On appeal, Brown argues geography was central to the relevance of this phone

conversation. Even assuming McGee overheard something having to do with a setup, her

own testimony confirmed the events were to occur at First and McKinley, which,

according to Brown, is more than two and one-half miles from Ashwood. Further, even

if McGee overheard the events were going to occur at McLane, this is approximately one

46.

mile away from Ashwood. Either way, the conversation had nothing to do with

Ashwood, and it should not have been admitted.

2. Standard of Review

We review the court’s rulings on the admissibility and relevancy of evidence for

abuse of discretion. (People v. Merriman (2014) 60 Cal.4th 1, 74; People v. Clark (2016)

63 Cal.4th 522, 590.) Such rulings “‘will not be disturbed except on a showing the trial

court exercised its discretion in an arbitrary, capricious, or patently absurd manner that

resulted in a manifest miscarriage of justice.’” (People v. Brown (2003) 31 Cal.4th 518,

534; accord, People v. Jackson (2016) 1 Cal.5th 269, 330.) A trial court has

“considerable discretion” in determining the relevance of evidence. (People v. Williams

(2008) 43 Cal.4th 584, 634.)

3. Analysis

Only relevant evidence is admissible at trial. (Evid. Code, § 350.) “‘Relevant

evidence’ means evidence, including evidence relevant to the credibility of a witness or

hearsay declarant, having any tendency in reason to prove or disprove any disputed fact

that is of consequence to the determination of the action.” (Evid. Code, § 210.) The test

of relevance is whether the evidence tends to logically, naturally and by reasonable

inference establish material facts such as identity, intent, or motive. (People v. Williams,

supra, 43 Cal.4th at p. 633; People v. Hamilton (2009) 45 Cal.4th 863, 913.)

The court did not abuse its discretion in admitting McGee’s testimony about

Brown’s phone call. Brown focuses on the fact McGee definitively stated she believed

that whatever setup Brown was orchestrating related only to the area of First and

McKinley. But the relevance of the conversation does not hinge on the exact location she

heard Brown discussing. McGee mentioned several locations she overheard Brown

reference for the setup, including First and McKinley, Mayfair, and McLane. All of these

areas are less than three miles from Ashwood. Brown was not discussing a setup in

47.

another city; he was discussing a setup to occur that night somewhere within a small

geographic area that was a short distance from Ashwood.

More than that, the phone call revealed the setup was being orchestrated about an

hour before the shooting. McGee’s testimony indicated the setup was going to occur that

night because she thought it was “strange,” it gave her “a weird feeling,” and she wanted

to go home when she heard this. After the call, Brown and Thomas had a private

conversation outside the vehicle, and then they got back into the car and she drove them

back to the same spot she had picked them up originally.

Thomas waited with McGee in her car while Brown went to his apartment to

charge his phone. There was certainly time and opportunity for Brown to alter the

precise details of the setup after this phone call, regardless of what McGee heard at that

particular time about the precise location. The content and timing of the call was relevant

to whether the killing an hour later was planned and intentional.

Although the trial court did not have the benefit of the trial testimony at the time

of the Evidence Code section 403 hearing, the trial evidence confirmed the conversation

was relevant and tended to support the other evidence indicating the killing was planned

in advance. There was sufficient evidence for the jury to reasonably infer Brown walked

into the Ashwood courtyard with his hood up, gloves on, and his hands in his pockets on

the gun.

Based on McGee’s estimate, Brown walked from McGee’s vehicle to the laundry

room, acquired his target, fired six times, and got back to McGee’s waiting car in about

three minutes. The witnesses inside the complex saw the hooded man they later

identified as Brown walk across the courtyard toward the laundry room, heard and saw

him ask two or three questions of someone, and then immediately they heard a gun shoot

five or six times; Brown was then seen running or jogging back toward the west parking

lot. The witnesses never said Brown appeared lost, and the shooting occurred very

48.

quickly after the witnesses first saw him. There was no argument or pause after Brown

asked questions—the gun was fired immediately and repeatedly.

Brown’s preparation and the speed at which Brown was able to locate and kill the

victim pointed to a prearranged and orchestrated killing. The fact Brown was engaged in

a phone conversation about a setup at a location near Ashwood an hour before the

shooting was relevant and, along with the other evidence, supported an inference the

killing was planned and intentional.

McGee’s stated belief the setup was going to occur near First and McKinley and

not Ashwood, and her express statements she did not believe anything was going to

happen at Shields and Maple, went to the weight and credibility of her testimony, not its

relevance. The locations she overheard were all within a couple miles or less of

Ashwood, and the phone call was just an hour before the killing was executed in what

appeared to be a planned and orchestrated manner. She had initially held back any

mention of the phone conversation when she talked to Ledbetter. She varied where she

said the overheard setup was supposed to occur—she mentioned First and McKinley,

Mayfair, and McLane. She certainly had motives to lie about the precise details of that

call—she was afraid of Brown and Thomas and she thought she might bear some type of

criminal culpability if she had known the conversation was linked to Ashwood. The

conversation was relevant to the issue of planning—it was for the jury to assess what

weight to give what portions of McGee’s testimony.

Having found no state law error, we reject defendant’s federal constitutional

claim. (See People v. Abilez (2007) 41 Cal.4th 472, 503 [“garden-variety evidentiary

issue under state law and did not implicate [the] defendant’s federal constitutional right to

present a defense”].)

49.

C. Admission of McGee’s Text Message

1. Background

At a pretrial hearing, Brown objected to a text message between McGee and her

friend on the night of the shooting as hearsay with no exception. The text message was

deemed admissible and the prosecutor asked McGee a series of questions about the text

message at trial after the message had been admitted as an exhibit.

“Q So at 11:06 p.m., did your friend ask you, ‘What’s wrong?’

“A Yes.

“Q And then did you respond with the text that is listed below?

“A Yes.

“Q I’m going to ask that you read that, please.…

“A … It says, ‘They is doin’ weird ass shit, shaking my head.

They’re having bitches set motherfuckers up and shit, shaking my head. I

wanna go home. I don’t want to be involved in no weird ass shit, for real,

for real.’”

Defendants argue that even if the text message was reciting a statement of either

defendant that could have been admitted as a party admission, the text itself was hearsay

and required its own exception to be admissible. Although the prosecution argued at the

motions in limine hearing he planned to use the text if McGee denied it had something to

do with a planned robbery, the text was admitted before McGee denied anything and she

ultimately never denied she thought the phone conversation was about a setup.

The People contend the question “‘What’s wrong?’” asked by McGee’s friend was

not an assertive statement and not offered for truth. Moreover, the text messages McGee

sent her friend were not hearsay because McGee testified at trial and authored her own

messages. But even assuming the text messages were admitted in error, the error was

harmless.

50.

2. Analysis

“On appeal, ‘an appellate court applies the abuse of discretion standard of review

to any ruling by a trial court on the admissibility of evidence, including one that turns on

the hearsay nature of the evidence in question .…’” (People v. Hovarter (2008) 44

Cal.4th 983, 1007–1008.) Under the abuse of discretion standard, a trial court’s ruling

will not be disturbed, and reversal of the judgment is not required, unless the trial court

exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted

in a manifest miscarriage of justice. (Id. at p. 1004.)

“The ‘routine application of state evidentiary law does not implicate [a]

defendant’s constitutional rights.’” (People v. Hovarter, supra, 44 Cal.4th at p. 1010.)

“‘The admission of evidence results in a due process violation only if it makes the trial

fundamentally unfair. [Citation.] “Only if there are no permissible inferences the jury

may draw from the evidence can its admission violate due process. Even then, the

evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citation.] Only

under such circumstances can it be inferred that the jury must have used the evidence for

an improper purpose.”’” (People v. Coneal (2019) 41 Cal.App.5th 951, 972.)

We dispense with an analysis of whether the text message constituted inadmissible

hearsay because even assuming the text message was admitted in error, it did not result in

a fundamentally unfair trial nor was it prejudicial under state law. McGee’s testimony

about Brown’s conversation was admitted, and the text message added no additional

information. Defendants were able to cross-examine McGee extensively about what she

overheard from Brown’s phone call.

Defendants argue the message added weight to McGee’s testimony by showing

that at the time she was in the car, not just at trial, she believed they were planning a

setup. But there was little reason to doubt her testimony that she overheard Brown’s

phone call about a setup such that corroboration would have been helpful. Reporting the

phone call and then testifying about it were against her interests in two ways, both of

51.

which the jury was aware: it showed she may have known something about what was

going to happen—she thought she might be criminally liable if she knew the setup related

to what happened at Ashwood; and she had fears that her testimony would anger

defendants, as she felt Thomas had already threatened her about talking to the police.

Defendants argue the text message supported the theory they were involved in the

shooting, rather than merely bystanders. However, additional confirmation through the

text message that Brown was planning a setup did nothing to connect him to the gun or

identify Brown as the shooter. That was all established by other evidence, including

other witnesses’ testimony; the fact Brown and Thomas were stopped by law

enforcement minutes after the shooting and the gun that fired the lethal bullet was a few

hundred feet from the car they were in; that they were wearing clothing that matched

what the witnesses saw them in at the apartment; and that Thomas had GSR on his hands,

and gloves found in the backseat where Brown had been sitting had a significant amount

of GSR.

Defendants claim the opening text from McGee’s friend asking “‘What’s

wrong?’” allowed the jury to infer McGee had precipitated that question by texting

something alarming and invited the jury to speculate about what that might have been.

However, McGee testified about why she sent the text—the jury knew it scared her and

she wanted to go home. Additionally, had the initiating text message that prompted the

question been of material value, the jury would likely have inferred the prosecution

would have offered it. There was no reason for the jury to speculate the initiating text

message would have been damaging to defendants.

Defendants argue that without the text messages, McGee may have been

considered an accomplice, allowing them to argue her testimony about the setup was an

attempt to minimize her involvement. This argument is without any citation to authority,

and it is not persuasive. “An accomplice is … defined as one who is liable to prosecution

for the identical offense charged against the defendant on trial in the cause in which the

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testimony of the accomplice is given.” (§ 1111.) Under section 1111, “‘[a] conviction

cannot be had upon the testimony of an accomplice unless it be corroborated by such

other evidence as shall tend to connect the defendant with the commission of the offense;

and the corroboration is not sufficient if it merely shows the commission of the offense or

the circumstances thereof.’” When there is sufficient evidence that a witness is an

accomplice, the trial court is required to instruct the jury on the principles governing the

law of accomplices, including the need for corroboration. (People v. Tobias (2001) 25

Cal.4th 327, 331.) The reason for the cautionary instruction is that an accomplice is

inherently untrustworthy because he or she usually testifies in the hope or expectation of

immunity, and an accomplice may try to shift the blame to the defendant in an effort to

minimize his or her own culpability. (Ibid.)

Defendants point to no evidence suggesting McGee was an accomplice under

section 1111 to warrant the cautionary accomplice instruction. McGee testified she

thought she was giving Thomas a ride, she did not ask him any questions, and she never

saw a gun. She was not involved in any conversations about obtaining the gun, and there

were times when she was with them that Thomas and Brown talked outside her presence.

She claimed she did not know the details and she thought whatever was planned was

going to occur at First and McKinley. Even to the extent the jury did not believe

McGee’s testimony about where the setup was to occur or concluded the location

changed after she heard the conversation, there was no evidence she knew what the setup

specifically entailed. While she drove Brown and Thomas to and from the crime scene,

“mere accessories are not accomplices under section 1111.” (People v. Daniels (1991)

52 Cal.3d 815, 867.) The text message was not needed to rebut her potential status as an

accomplice—there was no sufficient evidence that McGee acted as an accomplice.

We also cannot conclude the text messages bolstered McGee’s testimony in any

meaningful way. They did confirm she heard something about a setup, but offered no

additional details. The text messages were duplicative of her testimony regarding

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Brown’s phone call about which she was subject to vigorous cross-examination.

Admission of the text messages, even if erroneous, did not render defendants’ trial

fundamentally unfair nor was it reasonably probable that, but for admission of the text

messages, defendants would have obtained a more favorable result. (Watson, supra, 46

Cal.2d at p. 836.)

III. Instructional Error Claims

Defendants make two claims of instructional error: (1) the trial court erroneously

failed to instruct on the lesser included offense of involuntary manslaughter; and (2) the

jury was improperly instructed to consider a witness’s certainty in making an

identification under CALCRIM No. 315. Brown alone argues the trial court’s instruction

under CALCRIM No. 359 was erroneous.

A. Involuntary Manslaughter Instruction Was Not Required

1. Standard of Review

Voluntary and involuntary manslaughter are lesser included offenses of murder.

(People v. Thomas (2012) 53 Cal.4th 771, 813.) Even in the absence of a request, the

trial court has an obligation to instruct on a lesser included offense if substantial evidence

would support a jury verdict that the defendant was guilty only of the lesser included

offense and not the greater offense. (People v. Gonzalez (2018) 5 Cal.5th 186, 196;

People v. Romero (2008) 44 Cal.4th 386, 402–403.) Substantial evidence is evidence

from which a jury of reasonable people could conclude that the lesser offense, but not the

greater, was committed. (People v. Romero, supra, at p. 403; People v. Breverman

(1998) 19 Cal.4th 142, 162.) “Even evidence that is unconvincing or subject to

justifiable suspicion may constitute substantial evidence and may trigger the lesser-

included-offense requirement.” (People v. Vasquez (2018) 30 Cal.App.5th 786, 792

(Vasquez).) Yet substantial evidence does not equate to “‘any evidence, no matter how

weak’” (People v. Breverman, supra, at p. 162); accord, see People v. Simon (2016) 1

Cal.5th 98, 132 [“Speculative, minimal, or insubstantial evidence is insufficient to require

54.

an instruction on a lesser included offense.”]). The duty to instruct on lesser included

offenses is an issue of state law, not one of federal constitutional law in noncapital cases.

(People v. Gonzalez, supra, at p. 198.)

We review the trial court’s failure to instruct on a lesser included offense de novo.

(People v. Brothers (2015) 236 Cal.App.4th 24, 30; Vasquez, supra, 30 Cal.App.5th at

p. 793.) In doing so, we consider the evidence in the light most favorable to defendants.

(People v. Brothers, supra, at p. 30.) We do not evaluate witness credibility, and we

resolve “uncertainty about whether the evidence is sufficient to warrant instructions” in

defendants’ favor. (Vasquez, supra, at p. 792.)

2. Analysis

Manslaughter is “the unlawful killing of a human being without malice.” (§ 192.)

“Accordingly, an instruction on involuntary manslaughter is required whenever there is

substantial evidence indicating the defendant acted without conscious disregard for

human life and did not form the intent to kill.” (Vasquez, supra, 30 Cal.App.5th at

p. 794, fn. omitted.)

Defendants argue there was substantial evidence of a lack of malice that supported

an instruction on involuntary manslaughter. Specifically, defendants point to the fact it

was a ricochet bullet that struck the victim, and no other bullets made contact with

anyone. From this, defendants argue there was a basis to draw an inference Brown never

fired the weapon at anyone—that perhaps he just fired the weapon at the ground or fired

the weapon to scare the victim. There was no eyewitness to the shooting itself and no

evidence whether the gun was aimed at the victim when it was fired, particularly in light

of the fatal shot being a ricochet.

The People dispute there was substantial evidence to warrant an instruction on

involuntary manslaughter. Brown traveled to the Ashwood apartment complex with a

loaded firearm and fired six times before fleeing the scene. At a minimum, Brown’s act

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of firing the weapon six times showed a conscious disregard for human life—implied

malice.

Defendants respond that even if Brown fired the weapon, there is substantial

evidence he had no “intent to kill” in doing so. Yet, the absence of an intent to kill does

not show an absence of any malice. “Malice is implied when an unlawful killing results

from a willful act, the natural and probable consequences of which are dangerous to

human life, performed with conscious disregard for that danger.” (People v. Elmore

(2014) 59 Cal.4th 121, 133.) “[T]he state of mind of a person who acts with conscious

disregard for life[, i.e., implied malice,] is, ‘I know my conduct is dangerous to others,

but I don’t care if someone is hurt or killed.’” (People v. Olivas (1985) 172 Cal.App.3d

984, 988.)

Defendants’ reliance on People v. Wilson (1967) 66 Cal.2d 749 is unavailing.

After discovering men were visiting at his estranged wife’s apartment, the defendant took

a shotgun, forcibly entered her apartment, and killed her and another man. (Id. at

pp. 752–753.) His testimony at trial was that he did not enter the apartment with any

intent to kill, only to scare, which was supported by other evidence. (Id. at p. 756.)

Based on this, there was evidence his use of the weapon was only a misdemeanor, the

felony-murder rule was not applicable, and the court noted the jury could find an absence

of malice. (Id. at pp. 757–758.) There is no similar evidence here that points to an

absence of any malice.

Brown fired a .38-caliber semiautomatic weapon six times in the courtyard of an

occupied apartment complex. Four bullets hit the laundry room wall at approximately

two to four feet above the ground, evidence they were fired at human height. Several of

the bullets went through the laundry room wall and could have struck someone inside the

laundry room; one bullet traveled to the east parking lot, and the other bullet hit the

victim. There is no evidence to support an inference any of the bullets were fired at the

56.

ground or that they were fired only to scare the victim; and the risk of ricochets or a stray

shot was obvious.

Even if a reasonable jury could conclude Brown did not exhibit an intent to kill by

firing the gun the way he did, there was no evidence from which the jury could infer

Brown acted without implied malice to warrant in involuntary manslaughter instruction.

The trial court did not err in failing to instruct on involuntary manslaughter.

B. Instruction on Eyewitness Certainty (CALCRIM No. 315)

1. Background

Eyewitness testimony was offered by three witnesses. The jury was instructed

how to consider witness testimony pursuant to the pattern instruction, CALCRIM

No. 315. The court instructed the jury to consider the following questions in evaluating

identification testimony of the witnesses:

(1) “Did the witness know or have contact with the defendant before

the event?”

(2) “How well could the witness see the perpetrator?”

(3) “What were the circumstances affecting the witness’s ability to

observe, such as lighting, weather conditions, obstructions, distance and

duration of observation?”

(4) “How closely was the witness paying attention?”

(5) “Was the witness under stress when he or she made the

observation?”

(6) “Did the witness give a description and how does that

description compare to the defendant?”

(7) “How much time passed between the event and the time when

the witness identified the defendant?”

(8) “[W]as the witness asked to pick the perpetrator out of a group?”

(9) “Did the witness ever fail to identify the defendant?”

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(10) “Did the witness ever change his or her mind about the

identification?”

(11) “How certain was the witness when he or she made an

identification?”

(12) “Are the witness and the defendant of different races?”

(13) “Was the witness able to identify other participants in the

crime?”

(14) “Was the witness able to identify the defendant in a

photographic or physical lineup?”

(15) “Were there any other circumstances affecting the witness’s

ability to make an accurate identification?” (Boldface added.)

The instruction concluded with this final statement: “The People have the burden

of proving beyond a reasonable doubt that it was the defendant who committed the crime.

If the People have not met this burden, you must find the defendant not guilty.”

Defendants argue the trial court violated their right to due process by listing the

witness’s level of certainty as one of the 15 factors the jury should consider when

evaluating eyewitness identification testimony. They argue this instruction reduced the

state’s burden of proof and undercut their right to present a defense. The People maintain

this claim was forfeited because no objection was made to the instruction at trial, but

even if the merits were considered, the People argue the claim fails.

2. Forfeiture

This claim of instructional error was forfeited because no objection or request for

modification was made at trial. (People v. Sanchez (2016) 63 Cal.4th 411, 461–462

(Sanchez) [forfeiture of instructional challenge to predecessor instruction CALJIC

No. 2.92 for failure to seek modification of instruction at trial].)

58.

3. Analysis

Even considered on its merits, the claim fails.8 Defendants’ argument about

CALCRIM No. 315 is based on empirical research showing that confidence in an

identification is generally not a reliable indicator of accuracy. (See People v. Wright

(1988) 45 Cal.3d 1126, 1142, fn. 13; State v. Lawson (2012) 352 Ore. 724, 777 [“studies

show that, under most circumstances, witness confidence or certainty is not a good

indicator of identification accuracy”]; State v. Cabagbag (2012) 127 Hawaii 302, 311

[“Empirical research has also undermined the common sense notion that the confidence

of the witness is a valid indicator of the accuracy of the identification.”]; Sanchez, supra,

63 Cal.4th at p. 497 (conc. opn. of Liu, J.) [noting “a committee of the National Academy

of Sciences wrote: ‘Evidence indicates that self-reported confidence at the time of trial is

not a reliable predictor of eyewitness accuracy.’”].)

On May 27, 2021, our high court rejected identical arguments in Lemcke, supra,

11 Cal.5th at pages 646, 669–670. The court determined that nothing in CALCRIM

No. 315’s instruction on witness certainty operates to lower the prosecution’s burden of

proof, nor does the instruction state the jury must presume an identification is accurate if

the eyewitness has expressed certainty. (Id. at p. 656.) The court explained the

instruction lists the witness’s level of certainty as merely one of 15 factors the jury should

consider when evaluating the credibility and accuracy of eyewitness testimony; the jury is

left to decide whether the witness expressed a credible claim of certainty and what weight

is to be placed on that factor, if any. (Id. at p. 657.)

8 Because we consider the merits of defendants’ instructional error claim, we decline to

consider their alternate contention that trial counsel were ineffective for failing to object to the

certainty factor language in CALCRIM No. 315. Even assuming their counsel’s performance

was deficient, as we explain post, defendants suffered no resulting prejudice. (See People v. Mai

(2013) 57 Cal.4th 986, 1009 [noting in addition to showing counsel’s performance was deficient,

a defendant “must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s

deficient performance, the outcome of the proceeding would have been different”].)

59.

The court also rejected the defendant’s argument the certainty instruction denied

him a meaningful opportunity to present a complete defense. (Lemcke, supra, 11 Cal.5th

at p. 660) The defendant was permitted to put on a vigorous defense on the issue of

identity; he called an eyewitness identification expert who testified at length about the

weak correlation between certainty and accuracy, particularly with respect to in-court

identifications. (Ibid.) The defendant had the opportunity to cross-examine the

eyewitness and the investigating officers regarding that identification and the procedures

used during photographic lineups. (Ibid.)

The court concluded that in the context of the instructions as a whole and the trial

record, listing the witness’s level of certainty as one of 15 factors the jury should consider

when evaluating an eyewitness identification did not render the defendant’s trial

fundamentally unfair or otherwise amount to a due process violation. (Lemcke, supra, 11

Cal.5th at p. 661.)

Here, like Lemcke, the certainty factor contained in CALCRIM No. 315 was

presented in a neutral manner—it did not equate the certainty of a witness’s identification

with its accuracy, and the certainty factor was one of 15 different factors offered for the

jury’s consideration. The instruction did not advise the jurors what weight to ascribe to

any of the witnesses’ statements of confidence in their identifications of Brown and/or

Thomas.

Further, additional instructions the jury received undercut any contention the

certainty language lowered the burden of proof. The trial court here directed the jury to

presume Brown and Thomas were innocent, and that the prosecution had the burden of

proving all elements of the crime beyond a reasonable doubt. The instruction on

eyewitness identification itself reiterated the requirement with respect to Brown’s and

Thomas’s identity: “The People have the burden of proving beyond a reasonable doubt

that it was the defendant who committed the crime. If the People have not met this

burden, you must find the defendant not guilty.”

60.

Also, like Lemcke, the instruction did not deny defendants a meaningful

opportunity to present a defense. They had opportunity to cross-examine Jennifer,

Shawna, and S.L., pointing out to the jury some of the weaknesses in their identifications.

Defense counsel was also able to highlight some of the problematic aspects of the

identification procedures, such as the fact only one person was shown to the witnesses to

identify. Both defense counsel argued in closing argument that the witnesses were unable

to make any in-court identification of either defendant.

Considering the trial record here, there is no basis to distinguish this case from

Lemcke or any of our high court’s earlier cases that endorsed the use of instructions that

direct the jury to consider an eyewitness’s level of certainty when evaluating

identification evidence. (See Sanchez, supra, 63 Cal.4th at p. 461 [rejecting claim

challenging similar certainty language in CALJIC No. 2.92, the predecessor of

CALCRIM No. 315]; People v. Johnson (1992) 3 Cal.4th 1183, 1230 [rejecting claim the

trial court erred when it refused to strike witness certainty factor set forth in CALJIC

No. 2.92]; People v. Wright, supra, 45 Cal.3d at pp. 1141–1143 [approving CALJIC

No. 2.92].) Our high court’s decisions control. (Auto Equity Sales, Inc. v. Superior

Court (1962) 57 Cal.2d 450, 455.) The certainty instruction did not deprive defendants

of due process or the ability to present their defense.

We also discern no prejudice. Beside any expressions of certainty by the

witnesses, there were several other factors that tended to support the reliability of the

witnesses’ identifications. By all accounts, the lighting in the courtyard that night was

fairly good—one of the officers at the scene testified that in the available lighting he was

able to recognize faces at a distance of 40 feet; the suspects were apprehended minutes

after the shooting and their clothing and physical characteristics matched the witnesses’

descriptions; and the witnesses were able to make the identifications within hours of the

event.

61.

Additionally, the eyewitness identifications were far from the only evidence

connecting defendants to the crime. McGee testified she brought both defendants to

Ashwood and they were both out of the car at the time she heard gunshots. They left

Ashwood immediately after the shooting and were stopped by police minutes later. Both

defendants had GSR on their hands, and while the GSR on Brown was a low-level

sample, the gloves found in the back of the car where he was sitting had a significant

amount of GSR. The gun that definitively fired the lethal bullet was found a few hundred

feet from the car in which Brown and Thomas were riding. While emphasizing the

identifications made by the witnesses, the prosecutor never pointed to the witnesses’

certainty of those identifications as a basis to credit them. Giving the instruction was

harmless beyond doubt. (See Sanchez, supra, 63 Cal.4th at pp. 462–463 [no error and no

prejudice in instructing on witness certainty].)

Although Lemcke held the certainty factor instruction did not result in any federal

constitutional violation in that case—as we similarly conclude here—our high court

nonetheless concluded that the form of CALCRIM No. 315 has the potential to mislead

jurors. (Lemcke, supra, 11 Cal.5th at p. 665.) In the exercise of its supervisory powers,

the court directed trial courts to omit the certainty factor from CALCRIM No. 315 until

the Judicial Council has the opportunity to consider how the language might be better

worded to minimize juror confusion on this point. (Lemcke, supra, at pp. 661, 668–669.)

In supplemental briefing, Brown and Thomas construe Lemcke’s directive to be a

new supervisory power rule premised on the erroneousness of instructing on the certainty

factor, which should be applied retroactively to nonfinal cases.9 Yet, even assuming we

9 Defendants argue Lemcke overruled People v. Johnson, supra, 3 Cal.4th at pages 1231–

1232 and Sanchez, supra, 63 Cal.4th at pages 461–462 to the extent those cases held the

certainty-factor portion of the witness identification instruction was proper. They contend this

new rule should be given retroactive application, relying on People v. Coleman (1975) 13 Cal.3d

867, 889 (probationer’s testimony from a probation revocation hearing held prior to the

disposition of related criminal charges inadmissible in prosecutor’s case-in-chief; new

exclusionary rule to be given prospective application), People v. Brigham (1979) 25 Cal.3d 283,

62.

agreed with this characterization of Lemcke and its asserted retroactive application, any

error in instructing on the certainty factor was harmless in this case for the reasons

already discussed above.

C. Instruction on Defendant’s Statement Alone (CALCRIM No. 359)

Brown argues the court’s instruction under CALCRIM No. 359 violated his due

process rights.

1. Background

Brown made out-of-court statements that were part of the prosecution’s case.

Specifically, McGee testified about what she overheard Brown saying during a phone call

while she was in the car with him. Two of the witnesses at the apartment building

testified that prior to the shooting they heard Brown saying “‘[y]ou got any trees?’” and

something like “‘[d]o you have them on you?’” or “‘[a]re you holding?’”10 Jennifer

testified she heard these questions being asked in the direction of the hooded man—he

had walked out of her line of sight before she heard these questions being asked.

Without objection, the trial court instructed the jury pursuant to CALCRIM

No. 359:

“The defendant may not be convicted of any crime based on his out-

of-court statements alone. You may only rely on the defendant’s out-of-

court statements to convict him if you conclude that other evidence shows

that the charged crime was committed.

“That other evidence may be slight and need only be enough to

support a reasonable inference that a crime was committed.

292 and footnote 15 (disapproving supplemental reasonable doubt instruction under inherent

supervisory powers and expressly providing that holding should have retroactive application to

nonfinal cases), and People v. Engelman (2002) 28 Cal.4th 436, 445–449 (finding no

instructional error, but concluding deliberation instruction had the potential to mislead the jury

and, in the exercise of supervisory power, directing that the instruction not be given in future

trials).

10 Jennifer testified she heard these questions asked in the direction of the hooded man—he

had walked out of her line of sight before she heard these questions being asked.

63.

“The identity of the person who committed the crime may be proved

by the defendant’s statements alone.

“You may not convict the defendant unless the People have proved

his guilt beyond a reasonable doubt.”

2. Analysis

Brown now contends this instruction was erroneous because it allowed the jury to

infer Brown committed the killing based on his out-of-court statements alone, thus

violating his constitutional rights to due process and to a jury determination of guilt

beyond a reasonable doubt.

The People correctly assert that Brown failed to object to the challenged

instruction. As such, the claim is forfeited on appeal. (People v. Covarrubias (2016) 1

Cal.5th 838, 906.) However, even assuming the failure to object did not forfeit the issue

(§ 1259), the claim lacks merit.

In reviewing the claim that the given instruction lowered the standard of proof, we

consider whether there is a reasonable likelihood the jury misapplied the instruction.

(Victor v. Nebraska (1994) 511 U.S. 1, 6.) We do not view the challenged instruction in

isolation, but consider it in the context of the instructions as a whole. (People v. Moore

(2011) 51 Cal.4th 1104, 1140.)

In a criminal trial, the prosecution must prove the corpus delicti, or the body of the

crime itself—the fact of loss, injury or harm caused by a criminal act. (People v. Alvarez

(2002) 27 Cal.4th 1161, 1168–1169.) The corpus delicti rule is this: the prosecution

must establish the corpus delicti independent from the defendant’s admissions, ensuring

that the defendant does not admit to a crime that did not occur. (Id. at p. 1169.) The

independent proof may be circumstantial and is sufficient if it permits an inference of

criminal conduct, even if a noncriminal explanation is also possible. (Ibid.) The amount

of independent proof of a crime can be slight or minimal. The prosecution need make

only a prima facie showing permitting the reasonable inference that a crime was

committed. Once the necessary showing of independent evidence is met, the defendant’s

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extrajudicial statements may be considered by the jury to strengthen the case on all

issues. (People v. Jones (1998) 17 Cal.4th 279, 301–302.)

The identity of the defendant as the perpetrator of the crime, however, is not part

of the corpus delicti. Identity may be established by the defendant’s words alone.

(People v. Frye (1998) 18 Cal.4th 894, 960, disapproved on another ground in People v.

Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) When a defendant’s statements form part

of the prosecution’s case, the trial court must instruct sua sponte that a finding of guilt

cannot be predicated on the statements alone. (People v. Alvarez, supra, 27 Cal.4th at

p. 1170.) The corpus delicti rule is defined in the CALCRIM No. 359 instruction and its

predecessor, CALJIC No. 2.72. (People v. Rosales (2014) 222 Cal.App.4th 1254, 1258–

1259 (Rosales).)

In People v. Rivas (2013) 214 Cal.App.4th 1410, 1427 (Rivas), the Sixth District

Court of Appeal concluded the first two paragraphs of the version of CALCRIM No. 359

given in this case correctly stated the corpus delicti rule, but found the instruction

confusing with regard to the third paragraph about the declarant’s identity: “[T]he

reference to identity in CALCRIM No. 359 presents a risk of confounding the jury by

telling jurors that a defendant’s inculpatory extrajudicial statements, taken alone, do not

suffice to allow the jury to convict the defendant of a charged crime—and yet those

statements, again taken alone, are entertainable to prove the defendant’s ‘identity [as] the

person who committed the crime’ …, which to any juror can only mean the defendant’s

identity as the perpetrator, i.e., the guilty party. The instruction requires reconsideration.”

(Rivas, supra, at p. 1429, fn. omitted.)11

11 The third paragraph of CALCRIM No. 359 was modified in light of the decision in Rivas,

supra, 214 Cal.App.4th at pages 1427–1429. The pattern instruction’s third paragraph now

states as follows: “This requirement of other evidence does not apply to proving the identity of

the person who committed the crime [and the degree of the crime]. If other evidence shows that

the charged crime [or a lesser included offense] was committed, the identity of the person who

committed it [and the degree of the crime] may be proved by the defendant’s statement[s] alone.”

(CALCRIM No. 359.)

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Rivas acknowledged that in People v. Foster (2010) 50 Cal.4th 1301 (Foster) the

California Supreme Court upheld CALJIC No. 2.72—the predecessor corpus delicti

instruction. (Rivas, supra, 214 Cal.App.4th at p. 1429, fn. 8.) But, Rivas distinguished

Foster and noted the wording of CALJIC No. 2.72 differed in that it properly explained

that identity was not an element of the crime, whereas CALCRIM No. 359 did not.

(Rivas, supra, at pp. 1429–1430 & fn. 8.)

A year later, the Second District Court of Appeal disagreed with Rivas’s

conclusion. In Rosales, the court found the third paragraph of CALCRIM No. 359 was

not confusing: “It is … well established that a defendant’s inculpatory out-of-court

statements may … be relied upon to establish his or her entity as the perpetrator of a

crime. [Citations.] This is because the perpetrator’s identity is not part of the corpus

delicti. [Citations.] [⁋] CALCRIM No. 359, like CALJIC No. 2.72, clearly so states.

The corpus delicti rule is stated in the first two paragraphs of CALCRIM No. 359. The

law concerning proof of identity by a defendant’s extrajudicial statements is correctly

stated in the third paragraph. There is no danger a jury will be unable to separate the two

rules any more than in CALJIC No. 2[.]27 which has been approved by our Supreme

Court .… As noted, CALJIC No. 2.72 states in part: ‘The identity of the person who is

alleged to have committed a crime is not an element of the crime [nor is the degree of the

crime]. The identity [or degree of the crime] may be established by [a][an] [confession]

[or] [admission].’ CALCRIM No. 359 states with greater precision and economy of

language, ‘The identity of the person who committed the crime [and the degree of the

crime] may be proved by the defendant’s statement[s] alone.’ CALCRIM No. 359

correctly states the law. [Citations.] There was no reasonable likelihood the jury was

confused and misapplied the instruction. Finally, CALCRIM No. 359 reminds the jury

that the accused may not be convicted unless the prosecution proves guilt beyond a

reasonable doubt. CALJIC No. 2.72, which was approved by our Supreme Court in

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Foster, [supra, 50 Cal.4th at p. 1301], contains no such reminder.” (Rosales, supra, 222

Cal.App.4th at pp. 1260–1261; see People v. Reyes (2007) 151 Cal.App.4th 1491, 1498.)

We find Rosales persuasive. The instruction properly stated the corpus delicti rule

and the law, and the challenged third paragraph merely informed the jury that, in contrast

with the commission of a crime, the identity of the defendant may be proved by

defendant’s statements alone. Immediately following that sentence, the jury was

instructed, “You may not convict the defendant unless the People have proved his guilt

beyond a reasonable doubt.” The jury was so instructed on more than one occasion. We

do not agree with defendants that the corpus delicti instruction was confusing. There is

no reasonable likelihood the jury construed the corpus delicti instruction in a manner that

violated defendants’ rights, and we need not reach their prejudice argument. (People v.

Rogers (2006) 39 Cal.4th 826, 872.)

IV. Cumulative Error

Defendants claim the cumulative effect of the asserted errors, even if harmless

individually, was prejudicial and deprived them of their federal due process right to a fair

trial.

“‘Under the cumulative error doctrine, the reviewing court must “review each

allegation and assess the cumulative effect of any errors to see if it is reasonably probable

the jury would have reached a result more favorable to [the] defendant in their

absence.”’” (People v. Mireles (2018) 21 Cal.App.5th 237, 249.) The touchstone test for

cumulative error is whether the defendant received due process and a fair trial. (Ibid.)

When the cumulative effect of errors deprives the defendant of a fair trial and due

process, reversal is required. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)

“‘[A] series of trial errors, though independently harmless, may in some

circumstances rise by accretion to the level of reversible and prejudicial error.’” (People

v. Cunningham (2001) 25 Cal.4th 926, 1009.) The combined effects of multiple errors

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may indeed render a trial fundamentally unfair. (See People v. Cuccia, supra, 97

Cal.App.4th at p. 795 [several errors led to fundamentally unfair trial].)

We have assumed two evidentiary errors, neither of which were independently

prejudicial: the admission of Hall’s testimony about what S.L. told her about seeing a

man in a white T-shirt in the courtyard the night of the shooting, and the admission of

McGee’s text messages with a friend.

As explained above, both Hall’s testimony and McGee’s text were duplicative of

S.L.’s and McGee’s properly admitted testimony. Moreover, neither the challenged

portion of Hall’s testimony nor McGee’s text message bolstered the credibility of either

S.L.’s or McGee’s trial testimony in any meaningful way. These two assumed errors

were harmless individually, and remained so even when considered together. Defendants

were entitled to a fair trial, not a perfect one. (People v. Bradford (1997) 14 Cal.4th

1005, 1057.)

V. Joint and Several Liability for Restitution

Pursuant to section 1202.4, subdivision (f)(2), the trial court ordered both Brown

and Thomas to pay $4,985.14 in direct restitution to the victim’s family. The court did

not expressly make Brown and Thomas jointly and severally liable, nor do the abstracts

of judgment indicate joint and several liability as to the restitution amount. Defendants

request the court modify the judgment to reflect Brown and Thomas are jointly and

severally liable for the direct restitution order.

The People maintain Brown and Thomas forfeited this claim by failing to object at

the time of sentencing, and there is no requirement that the trial court make the obligation

joint and several. Defendants argue a reviewing court may reach nonevidentiary claims

even in the absence of an objection, and defendants maintain the restitution order

constitutes an unauthorized sentence that can be corrected at any time.

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We exercise our discretion to reach this issue. (People v. Young (2017) 17

Cal.App.5th 451, 463 [fact that a party may forfeit a right to present a claim does not

mean the appellate court is deprived of authority to reach the merits of the issue].)

“Victim restitution is mandatory under the California Constitution. Article I,

section 28, subdivision (b), to the California Constitution provides in pertinent part:

‘(A) It is the unequivocal intention of the People of the State of California that all persons

who suffer losses as a result of criminal activity shall have the right to seek and secure

restitution from the persons convicted of the crimes causing the losses they suffer. [¶]

(B) Restitution shall be ordered from the convicted wrongdoer in every case, regardless

of the sentence or disposition imposed, in which a crime victim suffers a loss.’ (Cal.

Const., art. I, § 28, subd. (b)(13)(A)-(B).) For the purposes of victim restitution under

our Constitution, the parents of the direct crime victim are separate victims. (Cal. Const.,

art. I, § 28, subd. (e); see also … § 1202.4, subd. (k)(3)(A).)” (People v. Nichols (2017) 8

Cal.App.5th 330, 341.)

A victim’s restitution right is to be broadly and liberally construed (People v.

Taylor (2011) 197 Cal.App.4th 757, 761), and on appeal restitution awards are reviewed

for an abuse of discretion (People v. Giordano (2007) 42 Cal.4th 644, 663). “[T]he

court’s discretion in setting the amount of restitution is broad, and it may use any rational

method of fixing the amount of restitution as long as it is reasonably calculated to make

the victim whole.” (People v. Baker (2005) 126 Cal.App.4th 463, 470.)

California courts have held that section 1202.4, subdivision (f), authorizes the

sentencing court to order codefendants convicted of the same offense to pay direct victim

restitution fines jointly and severally. (People v. Blackburn (1999) 72 Cal.App.4th 1520,

1535; People v. Madrana (1997) 55 Cal.App.4th 1044, 1049, 1051–1052.) A restitution

order is intended to compensate the victim for the actual loss, but it is not intended to

provide the victim with recovery greater than that amount. (People v. Chappelone (2010)

183 Cal.App.4th 1159, 1172; People v. Fortune (2005) 129 Cal.App.4th 790, 795–796;

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see § 1202.4, subd. (f) [court shall require defendant make restitution to victim in an

amount based on the amount of loss claimed by the victim or any other showing made to

the court].)

One way for trial courts to hold multiple defendants accountable to pay this

restitution and simultaneously avoid a double recovery by a victim is to explicitly impose

a joint and several obligation on each defendant convicted of the crime at issue. (People

v. Leon (2004) 124 Cal.App.4th 620, 622 [“a court may impose liability on each

defendant to pay the full amount of the economic loss, as long as the victim does not

obtain a double recovery”].)

We agree with defendants that if the specific restitution amount ordered in this

particular case is not made joint and several, the funeral expenses may potentially be paid

twice—once by Brown and once by Thomas, since both carry the full amount of the

funeral expenses as their respective victim restitution obligation. To avoid a double

recovery, we will modify the judgment to provide that the direct victim restitution

obligation is joint and several.

VI. The Abstracts of Judgment Must Be Amended

A. Brown’s Abstract of Judgment

The People note Brown’s abstract of judgment indicating the amount of restitution

is incorrect by one penny ($4,985.15) and should be amended to reflect the amount the

court ordered during its oral pronouncement ($4,985.14). The People are correct, and the

abstract shall be amended to provide the correct amount of restitution ordered. (People v.

Mitchell (2001) 26 Cal.4th 181, 185 [oral pronouncement of judgment controls].)

B. Thomas’s Abstracts of Judgment

As to Thomas, the court issued a determinate sentence abstract of judgment on

Judicial Council Forms, form CR-290, which documents the one-year enhancement

imposed by the trial court under section 12022.5(a)(1). The court also issued an

indeterminate abstract of judgment on Judicial Council Forms, form CR-292 to document

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the indeterminate life term imposed on Thomas for conviction under section 187. Both

abstracts of judgment list the fines and fees imposed by the court.

Thomas argues that including the fines and fees on both abstracts of judgment

could lead to double collection. The People agree and request that the determinate

abstract of judgment, Judicial Council Forms, form CR-290, be stricken, and that the

indeterminate abstract of judgment, Judicial Council Forms, form CR-292, be amended to

reflect the one-year firearm enhancement.

We concur. Since the abstracts of judgment together may have the effect of

doubling the fines and fees ordered by the court, they diverge from the oral

pronouncement of judgment and must be amended. (People v. Mitchell, supra, 26

Cal.4th at p. 185.) As to Thomas, the determinate abstract of judgment recorded on

Judicial Council Forms, form CR-290 shall be stricken, and the indeterminate abstract of

judgment recorded on Judicial Council Forms, form CR-292 shall be amended to reflect

the one-year firearm enhancement imposed by the trial court.

DISPOSITION

The judgment is modified to reflect that the obligation of each defendant to pay

victim restitution under section 1202.4, subdivision (f)(2), in the amount of $4,985.14, is

joint and several. The clerk of the trial court is directed to amend defendants’ abstracts of

judgment accordingly. The clerk of the trial court is further directed to (1) amend

Brown’s abstract of judgment to state the correct amount of restitution ordered; and

(2) amend Thomas’s indeterminate abstract of judgment to include the one-year

enhancement imposed under section 12022.5(a)(1). The determinate abstract of

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judgment as to Thomas is stricken. The amended abstracts of judgment shall be

submitted to the appropriate authorities. The judgment is otherwise affirmed.

MEEHAN, J.

WE CONCUR:

DETJEN, Acting P. J.

SMITH, J.

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