Super. Ct. No.07ZF0004 Appeals from judgments of the Superior Court of Orange County, Frank F. Fasel, Judge.
The opinion of the court was delivered by: Bedsworth, Acting P. J.
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Affirmed as to Defendant and Appellant Lorne Paul Kelley. Reversed as to Defendant and Appellant Ricky Lee Nelson.
Defendants Lorne Paul Kelley and Rickey Lee Nelson appeal their convictions for first degree murder and deliberate and premeditated attempted murder, each raising different issues. We affirm Kelley's convictions. Nelson's convictions were based upon more than one theory of aiding and abetting. He claims the court prejudicially erred in instructing the jury and the evidence is insufficient to support his convictions. The Attorney General concedes instructional error requires reversal of Nelson's conviction for first degree murder and requests the district attorney be given the option to retry the murder charge or have Nelson resentenced for second degree murder. We do not reach the instructional error issues because we agree the evidence does not support Nelson's convictions.
The grand jury indicted defendants Kelley and Nelson for the murder of Brandon White (Pen. Code,*fn1 § 187, subd. (a); count one) and the deliberate and premeditated attempted murder of Stephen Cirillo (§§ 187, subd. (a), 664, subd. (a); count two). The indictment also alleged Kelley personally used a knife (§ 12022, subd. (b)(1)) in the commission of each offense and had previously been convicted of a serious felony (§ 667, subd. (a)(1)) and had a suffered a prior "strike" (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)). The jury convicted the defendants of both counts and found that Kelley personally used a knife in the commission of each offense. The court found the prior conviction allegations true in a court trial held after the jury verdicts. Kelley was sentenced to 50 years to life on the murder (25 years to life doubled based upon the prior "strike"), plus a five year enhancement for a prior serious felony conviction, and an additional year for use of a deadly weapon in committing the murder. The court then imposed a consecutive life term on the attempted murder (no parole eligibility on this count for 14 years due to prior "strike") and an additional year for use of a deadly weapon in the commission of the attempted murder. Nelson was sentenced to 25 years to life on the murder and a consecutive life term on the attempted murder. The court imposed direct victim restitution in the amount of $14,508.44, jointly and severally as to each defendant.
On the last Friday in December 2006, defendant Kelley and his girlfriend Shannon Fowler, decided to leave their home in Big Bear and spend that New Year's Eve weekend with Jeanine Guillen and her boyfriend Mitchell Scott in Laguna Beach where Jeanine*fn2 and Scott lived. Kelley and Shannon drove their new red Toyota Corolla to Laguna Beach. That Friday night, the four went to Time Out Tavern in Aliso Viejo. Scott drove them in Jeanine's car. They had a good time and no problems.
On Sunday, New Year's Eve, the four decided to go back to Time Out Tavern. They had a larger group of people this time. Included in their party were Jeanine's cousin Jason Wilson and his girlfriend Reberta Miedl, and another cousin of Jeanine's, Nelson, and his girlfriend Brittany Barrs. As there were eight of them, two cars were needed. Brittany drove the women in her white Saturn Ion (white car). Scott drove the men in the red Corolla (red car).
The group arrived at the parking lot for Time Out Tavern, a three-tier parking structure, and parked the two cars next to each other. The women, except for Reberta, went into Time Out Tavern and the men went to a nearby liquor store. Kelley was wearing khaki pants and a white long-sleeve jacket. Nelson had on a jacket, a brown Angels baseball cap, khaki pants, and wore a grill over his teeth.
Wilson bought something at the store. The store video showed him drinking outside the store. Reberta appeared on the video with Wilson. The video also showed Kelley and Nelson each getting something from a cooler inside the store.
The group met up inside Time Out Tavern, where 13 security personnel (bouncers) were on duty. Herbert Henggeler was working as a bouncer that night. While working in the patio, he was approached by Nelson. Nelson asked Henggeler if he wanted to join the Army. Henggeler said he did not and wanted to finish school instead. Henggeler called over to Nicholas Miett, another bouncer, who was a Marine. Henggeler thought it would be funny and that Miett and Nelson could have a conversation. The conversation between Nelson and Miett got heated, with Nelson stating that Marines are "pussies." Miett walked back inside. Kelley went out onto the patio and apologized to Henggeler for Nelson's actions. Henggeler said Kelley was very cordial and they shook hands.
Stephen Cirillo was victim Brandon White's best friend. White was working as a bouncer that night. Cirillo, who also works as a bouncer, had the night off. He arrived at the tavern between 12:50 to 1:00 a.m., to get White's keys because he was going to spend the night at White's apartment. Cirillo was dressed in a pair of black Dickie's pants and a black T-shirt, similar to the clothing worn by the tavern's bouncers.
Cirillo went out onto the patio because he heard his friends Henggeler and Miett were working there. On the patio, a man wearing a grill, Nelson, approached Cirillo, talking about the Army and asked Cirillo what he was doing with his life. At first, Nelson was "easygoing" and there was no problem. Nelson suggested Cirillo should enlist and let the Army pay for his college. Cirillo said he had a 3.86 grade point average and does not need the Army to pay for college, an answer that did not make Nelson "very happy."
Cirillo finished speaking with his friends and went back inside where somebody dropped a glass and White had to clean it up. White had his cell phone and "stuff" in his hand, and asked Cirillo to hold them for him. Cirillo agreed, said goodbye to a few people and left. He started driving home when he realized he had White's cell phone and headed back to the tavern. Cirillo gave White his cell phone back.
Gerardo Samano, head of security for the tavern, testified Nelson was eventually asked to leave the bar by bouncers, but another person left with Nelson. On cross-examination he testified Kelley was escorted out as well because of an incident on the patio. Kelley and Nelson were on the dance floor when they were asked to leave. Samano said they were aggressive with his security personnel stationed on the dance floor, shouting and "making aggressive gestures with their hands." Miett, Samano, White, and Rob Casas, another bouncer, walked Kelley and Nelson out of the tavern.
Cirillo said he was behind the bouncers as they escorted Nelson, who was upset and said something profane about the Marines, out of the tavern. Cirillo stayed with the bouncers because they were his friends and he felt obliged to keep them safe. Kelley asked Cirillo something to the effect of, "Hey, is my buddy being kicked out?" Cirillo said Nelson had too much to drink and was being removed. Kelley showed no sign of aggression.
Bryan Lopez, a Navy corpsman who was working as a bouncer that night, testified two people were being ejected and he heard Nelson on the dance floor say, "F. . . Marines." Nelson was very combative. Lopez put a his hand on Nelson's back and told Nelson it was time to leave. Nelson swung his arm and told Lopez not to touch him. Nelson insulted the Marines and said he was an Army recruiter. Kelley, who was not being aggressive, asked Lopez, "Are you kicking my boy out?" Lopez said they were. Lopez said Kelley was not an issue until they all got outside.*fn3 Samano said there was no physical altercation on the way out of the tavern.
Things changed outside. Samano and four of his bouncers, including White, stood in front of the Tavern. Samano told Nelson he was finished for the night and to leave the premises. Nelson was very loud and said they had no right to kick him out. He swore at the bouncers, called them a bunch of pussies, and said he would "kick all your ass."
Nelson was thumping his chest, challenging the bouncers to fight, continuing to call them pussies, and swearing at them. Kelley was behind Nelson, pacing back and forth, and "pretty much shouting the same type of words." Samano said Kelley and Nelson were about four-to-five feet apart while they were challenging the bouncers to fight and that from time to time Kelley and Nelson spoke to each other.
Nelson continued to get more belligerent. Kelley started getting agitated. Nelson took off his jacket and outer shirt, leaving him in a white tank top on his upper body. He was about four or five feet in front of the bouncers at the time. Nelson appeared intoxicated, as well as "very mad and angry." Nelson continued thumping his chest, swearing at the bouncers, and threatened to "kick all your asses." Kelley took off his jacket, leaving him in a white tank top as well. According to Cirillo, once Kelley took off his jacket, Kelley "started to get into it." Samano said Kelley started thumping his chest, yelling, pointing at the bouncers, and called them pussies, and threatened "to kick all your guys' asses."
Samano told his people to maintain distance and to keep repeating to Nelson that he will not be allowed back in and should leave. Samano offered several times to call Nelson a cab and kept telling Nelson to calm down. At this point, none of the bouncers had gotten physical with Nelson or Kelley.
Henggeler walked outside and saw a large number of bouncers on the sidewalk. Kelley was no longer cordial. Nelson and Kelley were very hostile and shouting threats. Henggeler heard Kelley say he was "going to come back here with a bunch of friends" and kill us. Kelley was very angry. Nelson continued to challenge people to fight. According to Henggeler, the bouncers did not yell at Nelson and Kelley because they "found it comical that [Nelson and Kelley] were trying to act so tough, and there was no point to try and argue back."*fn4 Each time Kelley and Nelson moved back, deeper into the parking lot, the bouncers working in a line "move[d] up."
Fowler, who had followed the bouncers, Nelson and Kelley out of the tavern, walked through the bouncers as they were between her, Nelson and Kelley. According to Fowler, the bouncers were talking loudly to Nelson and Kelley, but not yelling at them. She said Kelley was mad and ready to fight, screaming and challenging the bouncers to fight. Nelson also screamed, swore at the bouncers and challenged them to fight. She urged Kelley to leave, but he walked away from her and continued in his challenging and screaming. Fowler said Brittany attempted to get Nelson to leave, but he told Brittany, "If you don't get out of my way, I am going to punch you."
Samano said he saw a woman from Nelson and Kelley's group throw her arms around Kelley in an attempt to stop him, but Kelley threw or pushed her off. Cirillo said he saw a female attempt to get Kelley and Nelson to leave, physically holding them back and telling them to get in the car and leave. Kelley and Nelson continued "to push through, push forward, and just continue what they were doing. [They had] no regard for what she was telling them to do."
Lopez had been sent back into the tavern to watch the dance floor shortly after Nelson and Kelley left the bar. He stayed inside for about 15 minutes before going back outside. By this time, all the bouncers were out front and Kelley and Nelson had been pushed "a little bit further back" from the tavern and deeper into the parking lot. Lopez saw Kelley run to the trunk of a white car and retrieve something from within the trunk and put it behind his back. Samano shone his flashlight on Kelley.
Samano said Kelley ran to a white four-door automobile and as soon as Kelley retrieved an item from the trunk, he put it behind his back, and started to return. Cirillo testified he saw Kelley go to the car and reach into the back seat area of the car.
White was to Samano's immediate left. Samano immediately called the police and told dispatch one of the men had a weapon. "I didn't see the weapon, it looked like, maybe, a knife or something, but I didn't see it." Samano advised security personnel over their radios of the existence of a possible weapon. The bouncers pulled back because they did not know what Kelley had obtained from the car. Samano said a woman from Kelley's group intercepted him and tried to grab Kelley. Kelley pushed her aside and headed toward the bouncers.
At the time Kelley went to the trunk of the car, Nelson was engaged with a Marine with a prosthetic leg. Isaiah Ramirez was an active duty Marine. In his second tour of duty in Iraq, he was hit by a rocket propelled grenade and had to have his right leg amputated. He has a prosthetic leg, but that night he still had to wear a brace on his left leg and had "a little limp." He was leaving the tavern with his cousin, Frankie,*fn5 and the others in their party were behind them. He saw the bouncers had formed a line in front of the tavern and it appeared three men were "trying to start a fight with them." Two of the men wore khaki pants and a white shirt. One had a grill in his mouth. Upon seeing the confrontation, Isaiah told his cousin to keep his head down, not say anything, and keep ...