APPEAL from a judgment of the Superior Court of Los Angeles County, Norm Shapiro, Judge. Affirmed as to defendant and appellant Bennie T. Nero. Reversed and remanded as to defendant and appellant Lisa Brown. (Los Angeles County Super. Ct. No. BA310575).
The opinion of the court was delivered by: Aldrich, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), our California Supreme Court held that an aider and abettor may be found guilty of greater homicide-related offenses than those the actual perpetrator committed. Extending that holding, we conclude that an aider and abettor may be found guilty of lesser homicide-related offense than those the actual perpetrator committed. This case presents compelling facts for that conclusion. Defendant and appellant Bennie Nero stabbed Milton Yates with a knife, killing him. The prosecution's theory of the case was that Nero's co-defendant and coappellant Lisa Brown aided and abetted him by handing him the knife. Both defendants were charged with murder. The jury was instructed on, among other theories, first and second degree murder, voluntary manslaughter, and aider and abettor liability. During deliberations, the jury asked if they could find Brown, the aider and abettor, guilty of a greater or a lesser homicide- related offense than Nero, the direct perpetrator. They were told that principals in a crime are equally guilty. The jury then found Nero and Brown equally guilty of second degree murder. In the published portion of this opinion, we hold that the instruction was prejudicial error, and the judgment as to Brown must therefore be reversed. In the unpublished portion of this opinion, we affirm the judgment as to Nero.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution's Case-In-Chief
On September 27, 2006, Milton Yates was found stabbed to death in a parking lot fronting a laundromat and a market. Videos from the laundromat's and market's surveillance cameras showed Yates riding a bicycle in the parking lot.*fn2 Nero and Brown came out of the market. Brown got into a car, but Nero remained outside, urinating. Yates rode his bicycle around the car, and Nero walked to him. Brown got out of the car and, after watching the two men, walked to them. Yates and Nero fought. At one point, Nero grabbed the back of his pants and bent near the back of his car. Nero stabbed Yates with a knife four times. Autopsy results showed that Yates ingested cocaine and ethyl alcohol within hours of his death.
Detective Sunny Romero examined Yates's bicycle, but he did not find it possessed any evidentiary value. A photograph of the bicycle, however, shows a black object bound to the bicycle's frame where a water bottle would normally be attached.
Nero testified.*fn3 Brown is his older sister and has been his legal guardian since their mother passed away when he was 13. Around 2003 or 2004, Nero was convicted of grand theft and of driving a vehicle without the owner's consent. As a result, he went to prison, where he developed a fear of knives. In 2004, he was shot and hospitalized for two to three weeks.
On the afternoon of September 26, 2006, Nero ran into Yates. Nero had never seen Yates in the neighborhood, but Nero asked him for a quarter to buy a cigarette. Later that night, Nero and Brown went to the liquor store to buy beer. Nero went inside the store, and when he came out, he urinated, and Brown got into their car. Yates approached Brown, who is a lesbian, and called her a "bull dyke" and "bitch." Yates made other comments and hand gestures by moving his hands back and forth. He went to the driver's side of the car and threatened Nero. He challenged Nero to a fight, saying " `bring it on.' " Nero approached Yates, and Yates hit him. Yates did not appear to be sober.
"Green Eyes" pulled up in a car. Nero asked Green Eyes what he would do if someone disrespected his sister. Green Eyes said it depended on the situation. Green Eyes left, and Yates and Nero resumed fighting. When Nero knelt by the back of his car, he was merely pretending to get a weapon. And when he grabbed the back of his pants, he was merely pulling them up because they were baggy. Yates got a weapon from his bicycle and stabbed Nero's arm, creating a scar that was visible at trial. Struggling over the weapon, the two men fell. Yates dropped the knife.*fn4 Nero picked it up and stabbed Yates, but he did not intend to kill Yates. Nero dropped the knife.
Throughout the altercation between Nero and Yates, Brown was telling them to stop. She never told her brother to fight Yates or encouraged him in any way, and she did not hand him a knife. In his later statement to the police, Nero maintained he acted in self-defense and that his sister told him to stop.
Detective Salaam Abdul examined Yates's bicycle, which was never booked into evidence but was instead released to the victim's son. At trial, he could not recall what the black item on the bike was, but he believed it was "some balled up like plastic that looked like it was crunched together." He did not find anything on the bike having, in his opinion, evidentiary value.
II. Procedural Background
Trial was by jury. On October 30, 2007, the jury found Nero and Brown guilty of second degree murder*fn5 (Pen. Code, § 187, subd. (a)).*fn6 The jury also found that Nero personally used a deadly weapon (§ 12022, subd. (b)(1)). Both defendants filed motions for a new trial, which the trial court denied. On March 19, 2008, the trial court sentenced defendants to 15 years to life. Nero received an additional one-year term for the weapon-use allegation under section 12022, subdivision (b)(1).*fn7 This appeal followed.
I. The Trial Court Did Not Commit Prejudicial Error By Limiting the Video Expert's Testimony
Defendant Nero called a video expert witness to testify that he had reviewed the surveillance video and, among other things, did not see Brown hand Nero a knife. The trial court precluded this testimony, but allowed the expert to testify about the technical aspects of the videos. Defendants now contend that this order was an abuse of discretion and violated his constitutional rights to a fair trial and compulsory process. We disagree.
The prosecutor objected to the defense calling George Reis, a video expert. Nero's defense counsel said that Reis would testify about video resolution, that he did not see Brown hand a knife to Nero, that there were "glitches" in the video, that when Nero bent down at the back of the car he did not retrieve anything, that Yates reached toward the bicycle, that the object on the bicycle's frame appears to be a sheath and that portions of the video are missing.
The trial court said it would allow Reis to testify about the technical aspects of the video, but not as to whether he saw Brown have a knife: "[H]e's not qualified." "Well, he's qualified on the technical aspects of a video and the reasons for certain quality, the reasons in glitches and lighting, things like that. [¶] But I am not going to allow him to come in here and tell us he's a video expert, tell us he didn't see a knife, he didn't see this, he didn't see that. That's what you folks are going to have [to] argue from the evidence."
Reis testified regarding his experience and background at an Evidence Code section 402 hearing. He provided training and consulting services to law enforcement in forensic image analysis and litigation support. He took two years of college photography courses and has been a photographer for 25 years. He worked as a forensic photographer and image analyst for the Newport Beach Police Department and as a crime scene investigator and fingerprint examiner for 15 years. He has been trained by Law Enforcement and Emergency Services Video Association in forensic video analysis and by the International Association for Identification for "various forms of photographic and imaging related disciplines for forensics."
He received seven videos, three from the market and four from the laundromat. He looked at them, frame by frame, for anomalies. He did not see Brown hand an object to Nero. He did see a man wearing a white- sleeved jacket, Yates, reach for something on the bike that appears to be a holder or a knife sheath. There is a "jump in time" on one video. Either equipment malfunction or editing could explain the jump.
After Reis testified at the Evidence Code section 402 hearing, the trial court asked Brown's counsel if he had anything to add. He said he had "no issues here, except" he would like the expert to address the bicycle issue; namely, there was a sheath on the victim's bike that could hold a knife. He argued that the prosecutor, during direct examination, of Detective Romero asked ...