California Court of Appeals, Second District, Fourth Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEALS from judgments of the Superior Court of Los Angeles County, No. TA121201 Eleanor J. Hunter, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant, Marcus Trevelle White.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant, Dimitri Devon Gales.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
In the underlying action, juries found appellant Dimitri Devon Gales guilty of attempted voluntary manslaughter and shooting at an inhabited dwelling, and appellant Marcus Trevelle White guilty of possession of a firearm by a felon and shooting at an inhabited dwelling. Appellants contend their convictions must be reversed due to the erroneous admission of evidence, insufficiency of the evidence, and instructional error; in addition, they request that we independently review the transcript of an in camera hearing before the trial court, and that we correct an error in the determination of their custody credits. Respondent acknowledges an error in the
custody credit determination, and further maintains that the trial court failed to impose certain mandatory fees.
In the published portion of this opinion, we reject Gales’s contention there is insufficient evidence to support his conviction for shooting at an inhabited dwelling (Pen. Code, § 246),  concluding that an aider and abettor of that offense need not know of, or share, the perpetrator’s specific intent to shoot at an inhabited dwelling, even when the perpetrator has such an intent. In the unpublished portions of the opinion, we reject appellants’ remaining contentions regarding the admission of evidence, the sufficiency of the evidence, and instructional error, and upon an independent review of the in camera hearing, ascertain no improperly withheld evidence. We nonetheless conclude appellants’ sentences contain errors, and modify the judgments to correct them.
RELEVANT PROCEDURAL HISTORY
On August 24, 2012, a four-count amended information was filed, charging appellants in counts 1 and 2 with the attempted willful, deliberate, and premeditated murders of Luiz Diaz and Jason Ayala (§§ 187, subd. (a), 664), and in count 3 with shooting at an inhabited dwelling (§ 246.). In count 4, the amended information charged appellant White with possession of a firearm by a felon (former §42021, subd. (a)(1)). Each count contained allegations that appellants committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)), and that appellant White had suffered a prior conviction, for purposes of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In addition, accompanying counts 1 through 3 were gun use allegations (§§ 12022.5, 12022.53, subds. (b), (c), (d)). Appellants pleaded not guilty and denied the special allegations.
The trial was conducted before two juries, one for each appellant. Gales’s jury found him guilty as charged in count 3 (shooting at an inhabited dwelling). Regarding counts 1 and 2, his jury found him guilty only of attempted voluntary manslaughter relating to Diaz, as a lesser included offense of count 1. Gales’s jury also found that his crimes were committed for the benefit of a criminal street gang, and that in connection with the offense of attempted voluntary manslaughter, a principal personally discharged a firearm causing great bodily injury. White’s jury found him guilty as charged in count 3 (shooting at an inhabited dwelling) and count 4 (possession of a firearm by a felon), and not guilty with respect to the remaining counts. White’s jury further found that he personally used a firearm in committing the offense charged in count 3.
During the trial, White waived trial by jury on the prior conviction allegation, and admitted the prior conviction when he testified. Following the juries’ verdicts, the trial court permitted the prosecutor to file a second amended information alleging that White had suffered a prior conviction for a serious felony (§ 667, subd. (a)(1)). After White denied that allegation, the court found the prior felony conviction allegations against White to be true. The court sentenced Gales to a total term of 18 years to life, and White to a total term of 20 years four months. These appeals followed.
A. Prosecution Evidence
1. Events Surrounding Shooting
Luis Diaz testified that in December 2011, he belonged to a gang called the “Compton T-Flats, ” and his nickname was “Dopey.” His friend, Jason Ayala, was a member of a different gang known as Primera Flats. According to Diaz, the Tree Top Piru gang was a rival gang.
Diaz further testified that on December 8, 2011, at approximately 2:26 p.m., he and Jason Ayala were standing in front of an apartment building on Elm Street in Compton. Appellants walked up to Diaz and Ayala, and Gales asked Diaz, “Are you Dopey from TF?” After Diaz replied in the affirmative, White pulled out a gun, pointed it at Diaz, and asked, “What that Tree Top life be like?” As White began shooting, Diaz and Ayala ran down the driveway adjoining the apartment building. Diaz then jumped over a wall bordering the driveway. As soon as Ayala rejoined him, Ayala told Diaz that Diaz had been shot. Diaz discovered he was bleeding from a wound in his right arm. When Los Angeles County Sheriff’s Department deputy sheriffs arrived, Diaz described the assailants to them.
Alice R. Corona and her daughter testified that on December 8, 2011, they were driving out of the driveway of an apartment building on Elm when they heard a shout. Down the street they saw two Black men chasing two Hispanic men. They also heard shooting. Neither Alice Corona nor her daughter identified appellants as the two Black men, but the former stated that she saw one of the Black men in a “pointing” stance, and later stated that the taller of the two Black men held a gun. Evidence was presented that Gales is six feet, two inches tall, and White is five feet, eight inches tall.
Jason Ayala did not testify at trial. Following an Evidence Code section 402 hearing, the trial court permitted Los Angeles County Sheriff’s Department Deputy Sheriff Edgar Solano to testify regarding Ayala’s statements shortly after the shooting. According to Solano, on December 8, 2011, he and his partner responded to a call regarding that incident. They were flagged down at the scene by Ayala who, appearing nervous and very excited, told the officers, “they shot my friend.” Behind Ayala, Deputy Sheriff Solano saw Diaz, lying on the ground, bleeding profusely from an apparent gunshot wound. Ayala stated that he and Diaz were approached by two Black ...