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The People v. Lorne Paul Kelley and Ricky Lee Nelson


December 10, 2010


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.

P. v. Kelley and Nelson



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 heading for the car. On their way to their car, Nelson demanded of Frankie, "Bitch, what are you looking at?" Nelson rushed Frankie and tried to hit him, but Frankie stepped back and was only grazed.

Isaiah called for his friend Keith as soon as Nelson rushed toward Frankie. Keith had been with Isaiah at the tavern and "was kind of looking out for" Isaiah because of Isaiah's leg. Nelson said something about the Army and that Marines are pussies. Isaiah said he was a Marine, had lost his leg in Iraq, and if Nelson was really in the Army he would not say "those things."

Once Nelson took a swing, Samano, Miett, and Casas ran toward Nelson, Isaiah, and Frankie. Samano did not notice where Kelley was when Nelson took his swing. As they ran to Nelson and Isaiah, another fight broke out and other bouncers went there.

Samano got in between Nelson and Isaiah. Nelson was aggressive, pounding his chest, and trying to reach over Samano to throw a punch. Samano repeatedly told Nelson to leave and that the police had been called. He had to physically restrain Nelson from attacking Isaiah and Frankie. Samano pushed Nelson in the chest, backing Nelson up to the white car. He kept backing Nelson up until Nelson, with one foot already inside the car, was almost seated. Samano then heard someone had been stabbed.

Believing Samano had the Nelson situation under control, Lopez went to the aid of another bouncer who had "two other gentlemen on him." Lopez pulled one of the men off the bouncer and put that man in a choke hold. At that point, a friend of the man told Lopez, "Hey, dude, I will take control. I got him." Lopez released the man. The friend and that man walked off. Lopez said the man he pulled off the bouncer and had in a choke hold was Wilson. Lopez was "pretty sure" the friend was Scott.

Cirillo, who was working the line with the bouncers, had been looking back toward the tavern. When he turned back around, he saw a mass of people "pushing and shoving and fighting." He grabbed the first person he saw who was not a bouncer: Kelley. When Cirillo pulled Kelley out of the fray, Kelley turned around to face Cirillo, raised his right hand and struck Cirillo on the left side of the neck. It did not feel like a normal punch. Cirillo then took Kelley to the ground.

Henggeler had started toward the altercation between Nelson, Isaiah, and Frankie, but saw it was being handled. He turned to the west where White was 10 to 15 feet away. He heard White say, "blood, blood." White sounded nervous. Henggeler did not see any blood at that point. White then said somebody had a knife. White grabbed his throat with both hands. Henggeler saw "a lot" of blood coming through White's hands. White went to his knees and fell over.

Henggeler saw other bouncers struggling with Kelley on the ground. Kelley was face down and Cirillo was on top of him, holding Kelley's wrist. Kelley had a knife in his left hand. Henggeler attempted to take the knife from Kelley. Next thing Henggeler knew he was on the ground with Kelley standing over him. Henggeler could feel his grip on Kelley's wrist slipping. Kelley closed the knife on Henggeler's finger, cutting him.

While Kelley was standing over Henggeler, someone to Henggeler's left said, "drop the knife." Henggeler did not know whether the man was talking to Kelley. Seeing the man was not a bouncer, and fearing for his own safety, Henggeler kicked the man, who may have been Scott, in the chest. Henggeler then kicked Kelley in the head. Kelley fell backward and dropped the knife. Henggeler got the knife and Kelley ran.

When Cirillo heard White yell "blood," Cirillo let go of Kelley and went to White. Cirillo put his hand over White's wound. The wound gushed with every beat of White's heart.

Lopez went to White after dealing with Scott and Wilson. He then ran to his car for his first aid kit. Lopez saw Kelley run to the red car and saw the car leave.

As Samano ran toward White, Nelson got out of the white car and headed in the same direction. Thinking Nelson was going to intercede, Samano cut him off. Nelson took a swing at Samano and, after some fighting, Samano physically controlled Nelson, putting him into a headlock.

Henggeler saw the white car briefly stop as it was leaving. A female was driving. Assuming it was the same car from which Kelley got the knife, Henggeler stabbed the tires on one side of the car with the knife he took from Kelley. Henggeler then gave the knife to Prieto who gave it to the police.

Fowler testified Scott and Kelley drove away in the red car and the other six from their party, including Nelson, left in the white car. Brittany drove with Nelson in the front passenger seat.

White died due to a stab wound to his neck. The weapon pierced the internal jugular vein and severed the right superior thyroid artery. When the paramedics arrived, they found Cirillo had been stabbed in the neck as well. Once he was at the hospital, Cirillo discovered he had also been stabbed in the chest and cut on the bridge of his nose.

Defense Evidence

Brittany testified in Kelley's defense. She said she left the car unlocked and gave Nelson the key to her car once they were inside the tavern. She gave him the keys because she did not have any pockets "and he was holding [her]stuff." She said that later that night she picked up Nelson's jacket off the ground and the keys were in the jacket. She put the jacket in the trunk of her car. She moved the jacket and other clothing items to the backseat when the spare tire had to be removed from the trunk to replace the rear tire cut by Henggeler.

Kelley testified in his own defense. He said that Scott drove the red car that night and had the keys. Kelley denied threatening to kill anyone and denied going to the white car in the parking lot. Kelley saw Reberta and Brittany try to get Nelson to go to the car. Kelley said he too attempted to get Nelson to leave. Kelley went to the red car to sit in it with Shannon, but the car was locked. Since Scott had the keys, Kelley started to go back toward the confrontation and watch the argument. Having been fed up with the scene, Kelley and Scott got into the red car and started driving away. Scott stopped to get more people in the red car, so he started backing up. Scott stopped the car and got out before the car was in park, so Kelley put the car in park. Kelley thought he heard Shannon and Jeanine screaming, so he got out of the car and ran back toward where the white car was parked.

As Kelley ran toward the women, out of the corner of his eye he saw White and Cirillo running at him. He thought they were going to attack him. Kelley stopped and grabbed his knife from his pocket, where it had been all night. He opened it and held it out for the bouncers to see it. The bouncers began hitting him. He swung the knife a few times but did not think he hit anyone.

Scott testified he left the scene in the red car with Kelley before they stopped and returned. Scott tried to grab the knife during the subsequent altercation. He admitted three prior felony convictions.

Kelley also introduced evidence White had been violent in a bar fight at Hennessey's Tavern on December 16, 2006. The prosecution then introduced evidence that the patrons were at fault in that fight and that White was a peaceful person.



Kelley's Appeal

Kelley's defense at trial was one of self-defense. He contends the trial court prejudicially erred in instructing the jury, at the prosecutor's request, on mutual combat and the limited availability of self-defense. He argues there was no evidence of mutual combat and the error requires reversal unless the prosecution can establish beyond a reasonable doubt the error was harmless, citing Chapman v. California (1967) 386 U.S. 18. As the jury was instructed on Kelley's theory of defense, the reference to the limited right to self-defense in a context that did not apply here did not have the effect of withdrawing Kelley's defense from jury consideration and we think the appropriate prejudicial error analysis is found in People v. Watson (1956) 46 Cal.2d 818, 836.

The Attorney General agrees this case did not involve mutual combat, but argues the instruction was nonetheless proper because it also covered the right of self-defense for one who was the initial aggressor. In the alternative, it is urged that any error was harmless and Kelley forfeited the right to raise the issue on appeal by failing to object to the instruction.

The court instructed the jury pursuant to CALCRIM No. 3471: "A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if: 1. He actually and in good faith tries to stop fighting; and 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; and, 3. He gives his opponent a chance to stop fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting." (Italics added.)

Relying on People v. Ross (2007) 155 Cal.App.4th 1033 (Ross), Kelley argues the error in giving this instruction was compounded by the court's failure to define mutual combat for the jury. The mutual combat "doctrine applies only to a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight." (Id. at p. 1036.) To support a mutual combat/self-defense instruction, "there must be evidence from which the jury could reasonably conclude that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Id. at p. 1047.) In Ross, the court found the failure to define mutual combat "left the jury free to suppose that any exchange of blows disqualifies both participants from claiming a right of self-defense." (Id. at p. 1036.)

As the Attorney General points out, the jury in Ross was instructed with CALJIC No. 5.56. (Ross, supra, 155 Cal.App.4th at p. 1042, fn. 9.) At the time, CALJIC contained separate instructions on the availability of self-defense in mutual combat and initial aggressor situations. (CALJIC No. 5.54 [initial aggressor]; CALJIC No. 5.56 [mutual combat].) The instruction provided the jury in the present case, CALCRIM No. 3471, combines the two situations into a single instruction. From this, and the fact that the availability of self-defense is generally the same in each situation, respondent argues the CALCRIM instruction is proper when there is evidence the defendant was the initial aggressor. That argument is not persuasive. While that portion of CALCRIM No. 3471 dealing with an initial aggressor was correct and relevant here, that portion dealing with mutual combat was not relevant and should not have been given. As respondent acknowledges, this case did not involve mutual combat. The error in instructing the jury with that portion of CALCRIM No. 3471 relating to mutual combat is that a jury could conclude a defendant was not the initial aggressor, yet convict on the erroneous conclusion that two people exchanging blows qualifies as mutual combat and thus a defendant is required to attempt to withdraw before resorting to self-defense: the very problem identified by the Ross court. (Ross, supra, 155 Cal.App.4th at p. 1044 ["lay meaning of 'mutual combat' is too broad to convey the correct legal principle"].) For that reason, CALCRIM 3471 should be modified to delete the reference to mutual combat when there is no evidence of a pre-existing agreement between the parties to engage in combat.

In Ross, Ross and the alleged victim, Speiser, were involved in a heated verbal exchange until Speiser reacted to something Ross called her and slapped Ross. (Ross, supra, 155 Cal.App.4th at pp. 1037-1039.) Ross responded immediately with a number of punches. (Id. at p. 1039.) The question presented in Ross was whether the evidence supported a mutual combat instruction. (Id. at p. 1041.) The evidence did not support an inference of the existence of a mutual agreement to fight prior to the first slap. (Id. at p.1050.)

The error was prejudicial in Ross because the injury necessary to support the charged offense may have been caused by the first blow struck by Ross after having been slapped. Had the jury known Ross may have been entitled to self-defense without having to withdraw, the evidence supported a reasonable doubt of Ross's guilt. (Ross, supra, 155 Cal.App.4th at p. 1055.)

The error here did not prejudice Kelley. Although Kelley testified he feared being assaulted and defended himself, it is not evident that Kelley's fatal attack was in response to an assault or battery from another in general or White in particular. Indeed, there exists an abundance of evidence to the effect that Kelley was the initial aggressor. He had not been assaulted while he was in front of the bar. Still, he left that area to run to the white car, where it appears he retrieved a knife, and ran back toward the security guards where he stabbed two guards in the neck, killing one. It is not "reasonably probable" (People v. Watson, supra, 46 Cal.2d at p. 836) the jury found Kelley was not the initial aggressor and rejected his self-defense claim because it mistakenly believed Kelley was not entitled to self-defense due to his having been involved in mutual combat with the concomitant duty to withdraw before resorting to self-defense. Therefore, the error in instructing the jury with that portion of CALCRIM No. 3471 dealing with mutual combat was not prejudicial, even when considered in conjunction with the failure to define mutual combat for the jury.

Nelson's Appeal

The case against Nelson was conducted on two theories of aiding and abetting. The first was that Nelson aided and abetted the murder and attempted murder. The second was that Nelson aided and abetted an assault with a deadly weapon, a battery, an assault, or a challenge to fight, and the natural and probable consequences of each of those offenses was murder and attempted murder.

Nelson contends the trial court made a number of prejudicial errors in instructing the jury. He argues that the instructions permitted him to be convicted of first degree murder on the basis of Kelley's, not his, mens rea. He further asserts the instructions permitted him to be convicted of a deliberate and premeditated attempted murder without requiring that offense to have been a natural or probable consequence of the target crimes (assault with a deadly weapon, simple battery, assault, or disturbing the peace) and that the court should have instructed that an "unpremeditated attempted murder" is a lesser possible crime of "premeditated murder." The Attorney General concedes the first degree murder charge must be reversed, but argues the case Nelson relied upon for the latter proposition, People v. Hart (2009) 176 Cal.App.4th 662, was wrongly decided.

Nelson also contends the evidence is insufficient to support his convictions under either of the aiding and abetting theories advanced by the prosecution. Key to these issues is the knife Kelley used, whether Nelson knew of its existence, its presence in the trunk of the white car prior to Kelley going to the trunk of that car while Nelson was challenging the bouncers to fight, and whether Nelson gave Kelley the key to the car so Kelley could retrieve the knife. The aiding and abetting theories are based upon an inference that somehow during the period of time Nelson and Kelley were yelling at the bouncers and challenging them to fight, Nelson gave Kelley the key to the white car so Kelley could retrieve the knife from the trunk. No witness testified to Nelson giving Kelley the key or to any exchange. The prosecution theorized: (1) Kelley did not have the knife on his person before he went to the trunk because he had been searched upon entering the bar; (2) Kelley would have known to leave the knife in the car because he had been to the bar two nights earlier and presumably was searched then too, (3) Nelson had to leave his baseball cap in the car because hats were not permitted, and (4) Nelson must have known the knife was inside the trunk because he left his hat in the car, which must have occurred at the same time that Kelley left his knife.

A. Sufficiency of the Evidence

"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, 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. [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) As we stated in In re Alexander L. (2007) 149 Cal.App.4th 605, 610 (Alexander L.): "The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.)" "'An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citation.]'" (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297,331.)

Because the court instructed the jury on aiding and abetting and the natural and probable consequences doctrine, we must examine whether there is sufficient evidence to support Nelson's convictions under either theory. We first address Nelson's contention that the evidence is insufficient to support his convictions on the theory he aided and abetted the murder and attempted murder.

B. Aiding and Abetting Murder and Attempted Murder

"All persons concerned in the commission of a crime, . . .whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed." (§ 31.) To prove that a defendant is an accomplice, the California Supreme Court has stated, "[T]he prosecution must show that the defendant acted 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.] When the offense charged is a specific intent crime, the accomplice must 'share the specific intent of the perpetrator'; this occurs when the accomplice 'knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.' [Citation.] Thus, we held, an aider and abettor is a person who, 'acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 259, quoting People v. Beeman (1984) 35 Cal.3d 547.)

Murder is the killing of a human being with malice aforethought. (§ 187 subd. (a).) Malice is express when "there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188) "[U]nlawful 'intent to kill' is the functional equivalent of express malice. [Citation.]" (People v. Swain (1996) 12 Cal.4th 593, 601.) Express malice can be inferred from the act itself together with its surrounding circumstances. (People v. Lewis (2001) 25 Cal.4th 610, 643.)

"A murder that is premeditated and deliberate is murder of the first degree. [Citation.] 'In this context, "premeditated" means "considered beforehand," and "deliberate" means "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action."' [Citation.] 'An intentional killing is premeditated and deliberate if it occurred as the result of pre-existing thought and reflection rather than unconsidered or rash impulse.' [Citation.]" (People v. Jurado (2006) 38 Cal.4th 72, 118.) "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citation.]" (People v. Ervine (2009) 47 Cal.4th 745, 785.) Nelson does not contend Kelley's killing of White was not first degree murder or that Kelley did not attempt to murder Cirillo. Rather, he argues the evidence does not support his convictions for murder and attempted murder.

For Nelson to be guilty of murder and attempted murder, the evidence must support an inference Nelson knew of and shared Kelley's intent to kill. There was no direct evidence of Nelson's knowledge or shared intent. As to knowledge, the prosecutor argued Nelson "absolutely, categorically, unquestionably knew [of Kelley's intent]." And, "He knew why [Kelley] went back to that car." The prosecutor claimed Nelson aided and abetted Kelley by giving Kelley the key to the white car so Kelley could retrieve the knife located in the trunk. We now review the record to analyze the facts from which Nelson's conduct and intent may be inferred.

A number of witnesses, including Kelley's girlfriend Shannon, testified to Kelley and Nelson challenging the bouncers to fight. At first, Kelley paced back and forth behind Nelson while Nelson yelled his insults and challenges. Kelley became agitated and, as time went on, joined Nelson in yelling at the bouncers and challenging them to fight. They both took off their jackets, demonstrating their readiness to fight. The bouncers, by all accounts, acted professionally and did not take the bait.

Brittany testified she picked up Nelson's jacket and shirt that he had thrown to the ground. When interviewed by police on New Year's Day, she said she retrieved the keys from Nelson's jacket. She took the clothing to her car, "popped the trunk" using the remote, and put the items inside. After putting the jacket and shirt in the trunk, she headed back toward the tavern. Nelson and Kelley were still in front of the tavern, "where everybody was at." Brittany then attempted, and eventually succeeded with Samano's assistance, in getting Nelson to go back to her car. Brittany did not give Kelley the key to her car and did not see him go to her car.

The confrontation went on about five to 10 minutes before Kelley went to the car. Kelley ran back toward the bouncers after apparently retrieving an item from the white car.*fn6 At that point, Nelson was engaged with Frankie and Isaiah. Samano was pushing Nelson back toward Brittany's car while Kelley attacked White and Cirillo. Brittany was in the driver's seat of her car. Semano got Nelson into the car, but Nelson jumped out of the car as Samano ran to the fallen White, and Brittany drove away.

As stated above, the prosecution's theory that Nelson aided and abetted the murder and attempted murder was based upon its assertion that Nelson gave the key to Brittany's car to Kelley so Kelley could unlock the trunk, retrieve the knife and return to kill bouncers. The prosecution's theory, therefore, hinges on the assumption that the car was locked and Kelley retrieved the key from Nelson during the confrontation with the bouncers. But there is no substantial evidence to support this theory, and there is evidence Brittany left the car unlocked when she went into the tavern.

Although a number of witnesses testified about what happened outside the tavern that night, not one ever testified to seeing Nelson give Kelley a key, or anything else for that matter. Neither did any witness testify to Nelson reaching into his pants pockets during the confrontation, an act likely to have been noticed by individuals concerned about an outbreak of violence. If, as the prosecutor argued, Nelson knew Kelley was going to the car to retrieve the knife and gave him the key so he could do so, the exchange had to have taken place during the confrontation, not before. That a key could be exchanged without anyone noticing is, of course, possible. But if that indeed happened, one must question how it is that Brittany subsequently got into her car and drove away while Kelley was engaged with Cirillo and White if Kelley had the key to her car. She certainly could not have obtained it from Nelson because there is no evidence Nelson subsequently received the key back from Kelley (even assuming Nelson gave it to Kelley in the first place).*fn7 There is no evidence Brittany found it lying in the parking lot after Kelley had been to her car. Neither is there any evidence Kelley gave her the key after he retrieved the knife.

"A reasonable inference '"'"'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work'. . . ." [¶] "A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence."'"'"' [Citation.] '[W]here the proven facts give equal support to two inconsistent inferences, neither is established. [Citation.]' [Citation]." (People v. Tran (1996) 47 Cal.App.4th 759, 772.) We have searched in vain for evidence to support the prosecution's theory. There is a complete absence of any evidence tending to indicate Nelson gave Kelley the key to Brittany's car, much less that he did so intending Kelley to retrieve a knife to use in their interaction with the bouncers. Indeed, all the evidence points to the fact that Nelson did not have the key to give to Kelley, and that Brittany had the key during the critical timeframe. Given this state of the evidence, we cannot find Nelson aided and abetted the murder by providing Kelley the key to retrieve the knife. We next turn to the natural and probable consequences doctrine.

C. Natural and Probable Consequences

A defendant need not share an intent to kill to be liable for murder if the murder was the natural and probable consequence of the crime the defendant aided and abetted. "'[An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury.' [Citation.] Thus, under [People v. Croy (1985) 41 Cal.3d 1], a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the 'natural and probable consequence' of the target crime." (People v. Prettyman, supra, 14 Cal.4th at p. 261.) While murder may very well be the natural and probable consequence of a gang fight, under these circumstances it was not the natural and probable consequence of a bar fight. There was no evidence Nelson knew or should have known Kelley went to retrieve a knife.

The jury was instructed regarding four possible target crimes: assault with a deadly weapon (§ 245, subd. (a)(1)), battery (§ 242), assault (§ 240), and disturbing the peace by unlawfully fighting or challenging to fight in public (§ 415, subd. (1)). We may summarily dispose of the deadly weapon target offense. The only deadly weapon in this matter was the knife. The prosecution's theory of aiding and abetting that offense is based upon the same unsupported inference that Nelson gave Kelley the key to the Saturn so Kelley could retrieve the knife from the trunk.

Prior to Kelley retrieving the knife from the trunk of the car, there had been no assault or battery for Nelson to aid and abet. There was a challenge to fight and that challenge constituted disturbing the peace. (§ 415, subd. (1) [proscribes fighting in a public place or challenging another to fight in public place].) But the challenge was to a fistfight, not a knife fight.

"Liability under the natural and probable consequences doctrine is 'measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 920.) The test "'is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]' [Citation.]" (Ibid.) Thus, the prosecutor's argument that the jury should use the point of view of an imaginary person standing on the tavern's roof and seeing Kelley run to get a knife misstates the standard.*fn8 The imaginary person on the roof watching events unfold was not in the defendant's position, as the doctrine requires. (People v. Wyatt (2010) 48 Cal.4th 776, 781 [facts defendant knew or should have known].) Everything is reasonably foreseeable if viewed from the point of view of a disembodied spirit far above the fray, watching events unfold.

Nelson repeatedly challenged the bouncers to a fistfight during the five-to-10 minutes he was outside the tavern yelling at them. Murder is not natural and probable consequence of a drunken fistfight. (People v. Butts (1965) 236 Cal.App.2d 817, 836-837 [Butts thought he was engaged in a "fist fight, not a knife fight"].) In Butts, Butts, who was drunk, went outside a diner with Otwell to fight a group that had challenged Butts. (Id. at pp. 823-825.) Unbeknownst to Butts, Otwell used a knife, killing one person and stabbing two others. (Id. at p. 825.) In reversing Butts' convictions, the court stated, "Aside from speculation and suspicion, there is no evidence that Butts advised and encouraged use of a knife, that he had advance knowledge of Otwell's wrongful purpose to use the knife or that he shared Otwell's criminal intent to resort to a dangerous weapon." (Id. at p. 836.)

Murder and attempted murder have sometimes been found to be reasonably foreseeable in a fistfight involving gang members, but those cases involved gang fights. This does not mean the law of natural and probable consequences is different when gangs are involved. Rather, these cases demonstrate that shootings and stabbings are foreseeable in gang fights because of the nature of gangs and their use of escalating violence in confrontations. No such considerations are involved here.

On appeal from his conviction for attempted murder in People v. Montano (1979) 96 Cal.App.3d 221, Montano contended that while there was sufficient evidence to establish he aided and abetted the co-defendant in battering the victim, the co-defendant's shooting of the victim was not reasonably foreseeable.*fn9 (Id. at p. 226.) The victim in Montano, a 15-year old member of the 18th Street gang, had been lured into a car by the defendants who were members of the Geraghty gang, driven to the hills in Belvedere, and forcibly removed to a vacant lot below the road where he was eventually shot twice. (Id. at p. 224.)

Montano was from one gang, the victim was from another and had been selected based upon that membership. The attack "was an aspect of gang warfare." (People v. Montano, supra, 96 Cal.App.3d at p. 227.) Moreover, "[t]he frequency with which such gang attacks result in homicide fully justified the trial court in finding that homicide was a 'reasonable and natural consequence' to be expected in such an attack." (Id. at p. 227.)

The gang fight context and the additional facts present in that context was explained in slightly more detail in People v. Godinez (1992) 2 Cal.App.4th 492. There, Godinez, and another Shelltown gang member challenged to fight three members of a rival gang, Old Town National City Insane Boys (O.T.N.C.), who had stopped in Shelltown territory to get gas. As their vehicle drove away from the gas station, two of the O.T.N.C. members decided to accept the challenge, jumped out of the car, and ran toward Godinez and the another Shelltown gang member. (Id. at pp. 495-496.) Five more Shelltown members appeared and Sandoval, one of the two O.T.N.C. members who accepted the challenge, saw he and the victim were outnumbered. Sandoval ran back to the car. The victim realized his predicament too late. Godinez punched him in the face, causing him to fall to the ground. The group of Shelltown members began punching and kicking the victim as he lay face down. One of them made stabbing motions toward him. (Id. at p. 496.) The victim died from his knife wounds suffered in the skirmish. (Id. at p. 497.) Godinez was convicted of voluntary manslaughter as an aider and abettor. (Id. at p. 499.)

The gang expert testified about the gang subculture, the fact that Shelltown and O.T.N.C. were rivals, and that there had been violent confrontations between these gangs in the past. (People v. Godinez, supra, 2 Cal.App.4th at p. 497.) Rejecting Godinez's contention that a homicide was not the natural and probable consequence of a gang attack, the court held that based upon the gang expert's testimony that gang confrontations are violent, often very brutal, "and the common knowledge that an unfortunate reality of modern times is that gang confrontations all too often result in death (which jurors are entitled to consider), there was ample evidence from which a jury could have found the homicide was a natural consequence of the gang attack Godinez aided and encouraged." (Id. at p.500.)

In People v. Olguin (1994) 31 Cal.App.4th 1355, Southside gang members Mora, Olguin, and Hilario undertook to find out who defaced Olguin's graffiti on a street curb. Olguin took a loaded handgun with him. They came upon two people near the intersection where Olguin had spray-painted his gang graffiti and asked one, Hernandez, if he belonged to Shelley Street and if he crossed out the Southside graffiti. The Shelley Street gang was defunct, but Olguin suspected a former member of that gang had disrespected him by crossing out his graffiti. Hernandez said he did not belong to Shelley Street and that a relative of his crossed out the graffiti. Hernandez's cousin Ramirez walked by as the three Southside members were walking away. (Id. at p. 1366.) Hernandez told Ramirez what happened and Ramirez followed the three and yelled, "Shelley Street." (Id. at pp. 1366-1367.) The three Southside members and Ramirez yelled back and forth at each other for several seconds when Mora knocked Ramirez down with a punch to the face. Hernandez and others began to move toward Ramirez to give aid. Ramirez stood up and started to walk toward Mora, Olguin, and Hilario, when Olguin withdrew the gun from his waistband and shot Ramirez in the chest, killing him. (Id. at p.1367.)

On appeal, Mora argued the evidence did not support his conviction for murder. Although Mora was the perpetrator of the sole criminal act preceding Olguin's shooting of Ramirez (a punch) and contended that as a perpetrator he could not be liable for Olguin's act, we found the real issue was whether the shooting "was a natural and probable consequence of that punch." (People v. Olguin, supra, 31 Cal.App.4th at p. 1376.) We concluded that "[g]iven the intensity of Mora's gang loyalty, as [demonstrated by other evidence], the fact he knew Olguin was unhappy enough about having his graffiti defaced to arm himself and recruit Mora and Hilario to seek out the perpetrator of that insult, the fact all three were shouting at Ramirez when Mora punched him, and the fact Ramirez did not appear intimidated by being outnumbered, escalation of this confrontation to a deadly level was much closer to inevitable than it was to unforeseeable, so there is little room to quarrel with the jury's conclusion." (Ibid.) Here, there was no evidence Nelson knew Kelley would or was likely to arm himself.

The last point, the failure to be intimidated although outnumbered by rival gang members, was a factor considered by our Supreme Court in yet another gang fight/murder case. In People v. Medina, supra, 46 Cal.4th 913, Lil Watts gang members Medina, Marron, and Vallejo were at Ordenes's residence one night, drinking and using methamphetamine. Around 11:00 p.m., the victim showed up at Ordenes's residence to pick up a compact disc. Once the door was open, Ordenes heard Vallejo ask who was at the door and "'where are you from?' [meaning] 'what gang are you from?' a question that constitutes an 'aggression step.'" (Id. at pp. 916- 917.) Ordenes "also knew that, if the inquiring gang member was an enemy, the question could lead to a fight or even death." (Id. at p. 917.) He ordered everyone out of the house. Outside, when he was again asked where he was from, the victim said, Sanfer, a San Fernando Valley gang. Vallejo then punched the victim and Medina and Marron joined in. The victim held his own and the three Lil Watts gang members could not get him on the ground. Ordenes attempted to break up the fight and advised the victim to drive away. Someone was heard to say "get the heat" (get a gun) and, as the victim drove away, Medina walked into the street and fired repeatedly at the victim's car. (Ibid.)

A number of facts supported the determination that the murder was a natural and probable consequence of the gang-related fight. The gang expert testified that when the victim said "Sanfer" in response to the question "where are you from?" Lil Watts gang members viewed the response as disrespectful and started the fight to avenge themselves. He also said a gang member who asked that question could be armed and would be prepared to responds with violence, "ranging from a fistfight to homicide." (People v. Medina, supra, 46 Cal.4th at p. 918.) The expert stated gangs need to be respected and feared by other gangs. (Ibid.) "[D]eath is sometimes an 'option' exercised by gang members as a way to maintain respect." (Id. at pp. 918-919.) The victim, held his own in the fight while being outnumbered three-to-one. From the viewpoint of the Lil Watts gang members, this heaped insult upon insult, and the gang members "would have or should have known that retaliation was likely to occur and that escalation of the confrontation to a deadly level was reasonably foreseeable as [the victim] was retreating from the scene. [Citation.]" (Id. at pp.922-923.)

The fact that Ordenes, a former gang member, feared somebody might be killed as a result of the "where are you from?" challenge and directed the men to "'take that into the streets,'" further supports the inference that a homicide was a natural and probable consequence of the challenge (People v. Medina, supra, 46 Cal.4th at p. 922) and that Vallejo and Marron were or should have been aware of it too. Respect (fear) is emphasized in the gang culture and "gang members consider death as a means to maintain respect in some circumstances." (Id. at p. 923.) The expert testified, "'When gangs have a disagreement, you can almost always guarantee it's going to result in some form of violence, whether it be punching and kicking or ultimately having somebody shot and killed.'" (Id. at p. 918.) These facts supported a determination that death was a natural and probable consequence of the attack on the victim by the three Lil Watts gang members.

People v. Montes (1999) 74 Cal.App.4th 1050, also involved a fight resulting in a shooting and death. It too arose in the context of a gang confrontation. Garcia, who was a formal member of the Varrio Penlones Locos gang (VPL), Flores, and two females drove into the parking lot of a fast-food restaurant where Montes and other members of the Orange Krazy Mexicans (OKM) were hanging out. Garcia had been in a conflict with members of OKM just two months earlier at the same restaurant. During that confrontation, Montes hit Flores in the head with a stick. This time, Montes threw a soda on Garcia's car and insulted VPL. Montes and his cohorts surrounded Garcia when Garcia parked his car. Garcia pulled a switchblade, but Montes had a three-foot chain he used to strike Garcia as the other OKM gang members closed in. Flores yelled something about a gun in an effort to save Garcia. Before Garcia and Flores could drive away, OKM member Cuevas ran up to Garcia and shot him a number of times. (Id. at p.1053.)

Montes contended the trial court erred in instructing the jury that it could convict him of murder if it found the offense was a natural and probable consequence of a simple assault or breach of the peace for fighting in public. (People v. Montes, supra, 74 Cal.App.4th at p. 1054.) Montes relied upon People v. Butts, supra, 236 Cal.App.2d 817 for the proposition that the murder was not a natural and probable consequence of the fight because Montes did not know Cuevas had a gun. (People v. Montes, supra, 74 Cal.App.4th at p. 1056.) In rejecting Montes' argument, we observed that Butts was decided in a different era, prior to the development of modern gang warfare. (Ibid.) As the gang expert in Montes explained, the facts in that case "represent a textbook example of how gang confrontation can easily escalate from mere shouting and shoving to gunfire." (Id. at p. 1055.) We recognized that "[w]hen rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them. Given the great potential for escalating violence during gang confrontations, it is immaterial whether Montes specifically knew Cuevas had a gun." (Id. at p.1056.)

There was testimony in the above gang cases explaining the gang culture, what gangs consider respect to be, and the near inevitability of escalating violence in a gang confrontation, all reasons why Butts -- to the extent it may be read to require knowledge of the presence of a weapon in a fistfight -- should not apply in a gang confrontation case. Unlike Montes, and the other gang cases cited above, the present incident did not involve a gang confrontation. Here we consider a challenge to fight directed at a number of paid, professional bouncers by two customers, at least one of whom was very intoxicated. Professional bouncers get challenged all the time; it rarely leads to anything.

Although murder may, more often than not, be a foreseeable (if not inevitable) consequence of a challenge to fight in a gang confrontation context, we cannot say the same is true here. Nelson challenged the bouncers to a fistfight. When it did not appear that fight was going to occur, Nelson sought a fistfight with Frankie, throwing an ineffective punch before Samano placed himself between Nelson and Frankie. And although knowledge of the existence of a weapon present at the scene is not the sine qua non of foreseeability, it remains a factor to be considered.

In the present case, there is no evidence Nelson personally anticipated anything other than a fistfight. Neither is there anything to indicate a reasonable person knowing what Nelson knew would have foreseen that Kelley would resort to use of a knife. This case presents a foreseeability issue analogous to that presented in Butts and dissimilar to that presented in gang cases.

Because we find the evidence does not support Nelson's convictions for murder and attempted murder, we need not and do not address his instructional error claims or the error in his abstract of judgment.



The judgment as to defendant Kelley is affirmed. The judgment as to defendant Nelson is reversed.




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