(Super. Ct. No. BAF004719) APPEAL from a judgment of the Superior Court of Riverside County, Patrick F. Magers, Judge.
The opinion of the court was delivered by: Benke, Acting P. J.
On transfer from the Supreme Court
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant and appellant Vince Bryan Smith of two counts of second degree murder (Pen. Code,*fn2 § 187, subd. (a), counts 1 & 2) and one count of active participation in a criminal street gang (§ 186.22, subd. (a), count 3). On both counts 1 and 2, the jury found true an allegation that the murders were committed for the benefit of, at the direction of or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
The jury also found that Smith did not commit multiple murders as alleged in the special circumstance (§ 190.2, subd. (a)(3)) and did not intentionally kill the victims while an active member of a criminal street gang and in furtherance of that gang (§ 190.2, subd. (a)(22)).
The trial court sentenced Smith to 15 years to life on count 1 and imposed sentence on count 2 concurrent to count 1. On both gang allegation findings, the court imposed the 15-year mandatory parole eligibility term under section 186.22, subdivision (b)(5) and an additional 10-year term on each count under 186.22, subdivision (b)(1)(C), but stayed the 10-year terms. On count 3, the court imposed the middle term of two years and imposed the sentence concurrent to the terms on counts 1 and 2.
Smith raised myriad issues on appeal, including that the trial court erred when it imposed the two-year term on count 3. In our opinion filed June 8, 2012, we modified the abstract of judgment to show court security fees in the total amount of $60, or $20 per conviction, as provided in former section 1465.8, subdivision (a)(1) and to delete the 10-year gang enhancement imposed under section 186.22, subdivision (b)(1)(C). Otherwise, we affirmed the judgment of conviction.
Smith filed a petition for review with the California Supreme Court. On September 12, 2012, the court granted the petition and transferred the case back to us with directions to reconsider our opinion in light of People v. Mesa (2012) 54 Cal.4th 191, 199-200, which held that section 654 did not permit separate punishment for the section 186.22, subdivision (a) crime of active participation in a criminal street gang when the only evidence of such participation was the current charged offenses.
In light of People v. Mesa, we conclude in this reissued opinion that in addition to the relief previously granted, Smith's sentence on count 3 must be stayed pursuant to section 654, subdivision (a).
FACTUAL AND PROCEDURAL OVERVIEW*fn3
A. Background of Gangs Involved in the Killings
At all times relevant in this case, Smith was a member of the Gateway Posse Crips criminal street gang (GPC). Vincent McCarthy (Vincent), one of the two murder victims in this case and a friend of Smith, was a member of and a leader in GPC. The other murder victim was Demetrius Hunt (Demetrius), Smith's cousin and an "associate" of GPC. As a Crips gang, GPC is the prominent enemy of Blood gangs. At the time of the killings, GPC had about 100 members in the Palm Springs area.
Pueblo Bishop Bloods (PBB) was another street gang involved in the killings. PBB originally formed in Los Angeles; as the gang grew, its territory expanded beyond Los Angeles. At the time of the killings, PBB had about 200 to 300 members. PBB members were known to carry guns and use them against rival gangs, where fights often turned violent and deadly. Before the killings, there was a history of violence between PBB and GPC.
Robert McMorris (Robert) was a member of YAH Squad (YAH)*fn4 which is based in Banning, California. YAH began as a dance crew or clique in 2002 and eventually transitioned into a criminal street gang. At the time of the killings, YAH had about 10 members and had developed an affiliation with PBB because one of the members of YAH, Deshawn Littleton (Deshawn), was also affiliated with PBB. In fact, the Littleton family was one of our four main families involved in PBB.
Certain members of YAH were known to carry guns. A few months before the killings, YAH member Jermarr Sessions (Jermarr) showed his gun to a neighbor and said he carried it for protection. Edward Scott (Edward), also a YAH member, twice flashed a gun at another neighbor. Dominic Betts (Dominic), who attended Banning High School with several YAH members, testified seeing YAH members carrying guns about 10 times.
Specifically, Dominic saw Deshawn carrying a .38-caliber Glock pistol and saw this gun at Deshawn's house about five times. Dominic testified that it was normal for YAH members to carry guns for protection from other gangs and that he had been involved in fights with YAH members when the fights turned particularly violent, including in one instance when Dominic, who described himself as an "associate" of YAH but not a member, beat another gang member (likely a Blood) over the head with a baseball bat after identifying himself as a YAH member and while other YAH members watched.
At the time of the killings, many of the YAH members lived at or frequently visited the apartment complex on Williams Street (Williams Street Apartments) in Banning. That complex was nicknamed "The Pueblos." About one block from the Williams Street Apartments was another apartment complex called the "Peppertree Apartments."
B. Events Leading Up to the Killings in February 2006
Before the killings, YAH members were upset with Robert because he was not adequately representing or participating in the gang. Gang members participate by earning money for and/or defending the gang and its "turf" (e.g., gang territory). When a gang member is not participating, the member may receive a "discipline" or "DP," which is essentially a beating by other members of the member's own gang.
YAH members planned to discipline Robert. YAH member Aaron Lee (Aaron) threatened Robert a few weeks before the killings. As a result, Robert decided he wanted out of YAH. Smith also wanted his brother out of YAH.
A few days before the killings, then 12-year-old Demontre C. walked to a liquor store with members of YAH.*fn5 As they were outside the liquor store, Smith drove up, got out of his car and approached YAH member Edward and said, "I need to talk to you." Smith, who appeared "really mad," asked Edward, "When you all supposed to be putting hands on my little brother?" When Smith clarified that Robert was his younger brother, Edward told Smith that nobody was supposed to put hands on Robert because he was "the little homie."
YAH member Lonnie Walton (Lonnie) testified he also was present at the liquor store and witnessed this exchange, that he heard "bits and pieces" of the conversation, that Smith told the group he would "kill one of you little niggers over my brother" and that he wanted his brother out of YAH.
Demontre testified that although Edward told Smith that Robert was supposed to get a "DP" for not representing YAH, Edward agreed there was not a problem with Robert. As Smith was leaving, Lonnie testified it appeared Smith threw up the hand sign for GPC.
Deshawn also was present at the liquor store during the exchange between Smith and Edward. Deshawn and Edward were angry at Smith because he had "come at [Edward] foul," which Demontre testified meant Smith had disrespected YAH. As the group walked back to the apartments, Deshawn more than once said--while pounding his fists--that he was "going to beat the fuck out of that nigger [Robert]." Deshawn mentioned he was going to call PBB member Tovey Moody (Tovey) about the incident.
A few days before the killings, Lonnie testified that various YAH members were hanging out in the parking lot next to the Williams Street Apartments. At some point, Tovey arrived, spoke with Edward and Deshawn and then gave Deshawn "something." Edward, Deshawn and Tovey then got into a truck and left.
A few minutes later, Lonnie testified he heard multiple gunshots. PBB member Wealton Moody (Wealton), who was hanging out with YAH members in the parking lot, yelled "sawoop," which is a Blood call. Wealton received a phone call shortly thereafter and he, Lonnie and one or more YAH members ran the short distance to the Peppertree Apartments where Smith was "held up."
Lonnie testified that when they arrived at the Peppertree Apartments, Tovey and Smith were arguing about the liquor store incident. Demontre testified that he was visiting a friend at the Peppertree Apartments when he heard the confrontation between Tovey and Smith and that Tovey told Smith, "I heard you came at my little homie foul," or words to that effect. By "little homie," Tovey was referring to Deshawn.*fn6 According to Demontre, Smith responded, "[W]ell, I didn't want my little brother in that shit." Tovey then told Smith he had no problem with Smith's demand.
However, Smith was angry. According to Demontre, Smith threatened
to "bring some of [his] homies to make sure none of this shit pops
off," which Demontre took to mean that Smith was going to bring backup
to ensure nothing went wrong when Robert got out of YAH. Tovey then
remarked to Smith, "I know you're not talking about gun play."*fn7
At that point, a neighbor got between Smith and Tovey and
On February 7, 2006--the day of the killings, Smith told Robert he was taking him to get "jumped out" of YAH.*fn8 Deshawn told YAH members that they were going to "fight Gateway [e.g., GPC] homies."
Smith picked up Robert after school, then picked up Vincent, Demetrius and Julian McKee (Julian), a member of Eastside Banning Park Crips gang affiliated with GPC. Smith brought Julian and the others to the "jump out" because Smith wanted Robert out of YAH and because he wanted to make sure Robert did not get beaten too badly and things did not get out of hand. Vincent had a gun in his waistband. As they drove, they discussed the jump out and agreed they would shoot back only if shot at first. Robert told Smith that YAH members Edward and Aaron had jumped him into the gang.
Wealton's girlfriend Jasmine Roth (Jasmine) testified she picked up Wealton on the morning of the killings and together they drove to Los Angeles to visit Wealton's family. Although Jasmine testified she could not remember whether Wealton obtained a gun while in Los Angeles, she admitted telling police during an earlier interview that they drove to Los Angeles to pick up a gun and then drove back to Banning. As they drove, Jasmine heard Wealton speak to his brother Tovey on the phone and heard them mention Smith.
Demontre testified he was hanging out at a friend's house at about dusk on the day of the killings when he was joined by YAH members Lonnie and Edward. At some point, Lonnie and Edward told Demontre they were "about to go put out [Robert]" and left the Peppertree Apartments. A few minutes later, out of curiosity Demontre headed over to the Williams Street Apartments. When he found nobody there, Demontre went back to the Peppertree Apartments and waited for his friend to come outside. After waiting about 45 minutes, Demontre left by himself and went back to the Williams Street Apartments where he encountered a large group of men. Demontre went up to Tovey and out of respect shook his hand. Demontre also shook hands with Deshawn, Edward, Lonnie, Aaron and other "homies" of the group. While they were waiting around, Demontre watched Tovey give Deshawn what appeared to be a gun. According to Demontre, Tovey had another gun on him.
Demontre testified Smith and Robert arrived in Smith's car, followed by two other cars. All of the occupants of the cars got out and approached the group of men that had gathered outside the Williams Street Apartments. Smith appeared angry.
Lonnie testified that Smith, Vincent, Demetrius and Robert pulled up in Smith's car and exited the vehicle. Smith then pointed at Edward and Aaron and said, "I want you guys to put my brother off." According to Lonnie, Smith did not seem particularly angry but did appear upset. Robert appeared nervous. The decision was made to do the "jump out" in a field, next to the Williams Street Apartments. The two groups remained separate as they headed to the field. Just before the fight began, Smith said, "I don't want nobody kicking my brother in the head." According to Lonnie, Smith's attempts to give orders to YAH members did not sit well with them.
At some point, Robert heard Deshawn tell Edward and Aaron, "You guys know what you guys got to do." At that point, according to Robert he squared off with Edward and Aaron and took a swing at Aaron. Smith and Demetrius were just a few feet away.
Robert testified that Aaron swung back and hit him in the face. As they continued, Robert testified Aaron got the best of him, and was basically preventing Edward from hitting Robert because Aaron wanted to settle things himself. At some point, one of the punches thrown by Aaron bloodied Robert and knocked him to the ground. As he fell, Robert grabbed Aaron's shirt. Smith intervened, grabbed Robert and pulled him up. Robert testified that Smith acted calmly as he pulled Robert to his feet.
What happened next was the subject of much discussion at trial.
Lonnie testified that YAH member Jesus Hernandez (Jesus) yelled at Smith, "Fuck that JR [Smith]. He [Robert] got put on by four people." Lonnie testified this meant that because four people had jumped in Robert, four people had to jump him out. In response, Smith said, "Fuck you" and walked over to Jesus and took a swing at him. According to Lonnie, PBB member Curlee Mitchell (Curlee) grabbed Smith and told him to calm down. Lonnie heard a gunshot from behind, ducked and then took off running. As he ran he heard more gunshots and estimated there were a total of seven or eight shots fired.
Robert testified that as Jesus came near the fight, Smith tried to stop Jesus and then took a swing at him, which Jesus blocked. Robert testified he saw Deshawn, who had been leaning on a brick wall nearby, pull out a gun and start shooting. Robert testified he saw the flash from the muzzle. Robert hopped a fence and began running. Lonnie and Jermarr also started running.
Demontre testified YAH members Deshawn, Lonnie, Aaron, Edward and Jermarr came at Robert after Robert approached the group. According to Demontre, all of these individuals struck Robert, who attempted to fight back. With Robert on the ground, Demontre heard Smith say, "Fuck this shit," saw Smith pull out a gun from his pants and point it at several people. Demontre saw Deshawn and Tovey respond by each pulling out a gun. As he dropped to the grass, Demontre heard several gunshots ring out. He then ran from the field back to the Peppertree Apartments. Along the way he saw several other people also running from the crime scene.
Julian told investigators during a police interview that he did not see who fired the shots, but that once the shooting started he saw Smith with a handgun. Julian, however, said that Smith was not the shooter and that the other group did the shooting.
Demetrius died at the scene after being shot four times. Vincent was shot twice; one of the bullets struck his spinal cord and paralyzed him. Vincent later died at the hospital.
Police investigators recovered two guns, five expended 9 mm bullet casings and two expended .40 caliber casings. The bullets recovered from Demetrius's body were 9 mm, while the single bullet recovered from Vincent's body was a .40 caliber bullet.
D. Smith Threatens a Witness
In February 2006, Jochanna Tamez (Jochanna) lived at the Williams Street Apartments with her mother and son. She was called as a witness at the preliminary hearing and at trial.
During the preliminary hearing, Riverside Deputy Sheriff Denice Hamilton was on duty as the courtroom deputy. While Jochanna was on the stand, Deputy Hamilton saw Smith use his forefinger and thumb to form a gun and then pointed it at his jaw line. Smith held his hand in this position for several seconds while he stared at Jochanna on the witness stand. Smith appeared hostile and irritated. When Deputy Hamilton approached Smith, Smith slowly moved his hand to his neck to make it look as though he was scratching his throat. As a result of the threat, Jochanna changed her testimony out of fear.
Smith argues his murder convictions must be reversed because, according to Smith, as a matter of law a defendant can only be liable for aiding and abetting a confederate--in contrast to a co-participant or co-principal. That is, because the murder victims in this case were Vincent (Smith's friend) and Demetrius (Smith's cousin), and because the murderers likely*fn9 were rival gang members, Smith argues he could not be guilty of the target offense of disturbing the peace or assault or battery, or the nontargeted offense of murder based on the natural and probable consequences doctrine.
In support of his argument, Smith heavily relies on our Supreme Court's decision in People v. Prettyman (1996) 14 Cal.4th 248, 269, where the court discussed the natural and probable consequences as follows: "Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a 'natural and probable consequence' of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the 'natural and probable consequences' doctrine, the jury must find that, with knowledge of the perpetrator's unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant's confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a 'natural and probable consequence' of the target crime that the defendant assisted or encouraged." (Id. at p. 254, italics added.)
However, since deciding People v. Prettyman, our high court has revisited the natural and probable consequences doctrine on a number of occasions, including recently in People v. Gonzales and Soliz (2011) 52 Cal.4th 254 and in People v. Medina (2009) 46 Cal.4th 913. In both instances, our Supreme Court analyzed this doctrine using words other than "confederate" to describe the circumstances in which an aider and abettor can be found guilty not only for the target offense, but also for the nontarget offense.
For example, in People v. Gonzales and Soliz the court described the doctrine as applying to "any reasonably foreseeable offense committed by the person he or she aids and abets." (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 296, italics added; see also People v. Canizalez (2011) 197 Cal.App.4th 832, 851 [using the word "person" and "perpetrator" to discuss liability under this doctrine]; People v. Hoang (2006) 145 Cal.App.4th 264, 269 ["person"].)
Similarly, in People v. Medina our Supreme Court described the doctrine as applying to " 'any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.' " (People v. Medina, supra, 46 Cal.4th at p. 920, italics added; People v. Richardson (2008) 43 Cal.4th 959, 1021 [describing aider and abettor liability under the natural and probable consequences doctrine as requiring " 'knowledge that the perpetrator intends to commit a criminal act together with the intent to encourage or facilitate such act' "]; People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123 [using "actual perpetrator" and "perpetrator" to describe aider and abettor liability under this doctrine]; see also People v. Miranda (2011) 192 Cal.App.4th 398, 407-408 [using the words "actual perpetrator," "perpetrator" and "confederate" to describe aider and abettor liability under the doctrine]; People v. Hart (2009) 176 Cal.App.4th 662, 670-671 ["actual perpetrator"]; People v. Vasco (2005) 131 Cal.App.4th 137, 161 ["perpetrator" and "confederate"].)
What's more, other courts analyzing the doctrine have discussed aider and abettor liability in terms of crimes committed by a "co-participant" (see e.g., People v. Ayala (2010) 181 Cal.App.4th 1440, 1450), which also happens to be the language used in then-applicable CALCRIM No. 403, which provided in part as follows:
"To prove that the defendant is guilty of , the People must prove that:
"1. The defendant is guilty of ;
"2. During the commission of a coparticipant in that ...