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Superior Court of Riverside County, No. BAF004719, Patrick F. Magers, Judge. Court of Appeal, Fourth Appellate District, Division One, No. D060317.
Gregory L. Cannon, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Scott C. Taylor, Meredith S. White, Steven T. Oetting and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Chin, J., with Cantil-Sakauye, C. J., Baxter, Werdegar, Corrigan, Bamattre-Manoukian, JJ.,[*] concurring. Concurring Opinion by Liu, J.
[180 Cal.Rptr.3d 103] [337 P.3d 1161]
A person who aids and abets a crime is guilty of that crime, sometimes called the target crime. Additionally, that person is guilty of any other crime a principal in the target crime commits, sometimes called the nontarget crime, that is a natural and probable consequence of the target crime. In this case involving violent criminal street gangs, we must decide whether defendant was properly convicted of the murders of two of his fellow gang members even though he neither personally killed them nor desired their deaths. Because, under the peculiar circumstances of the case, a reasonable jury could find that a principal or principals in the target crimes committed the murders, and they were a reasonably foreseeable consequence when defendant aided and abetted the target crimes, we conclude that he was properly convicted of them. Accordingly, we affirm the judgment of the Court of Appeal, which reached a similar conclusion.
[337 P.3d 1162] I. Factual and Procedural History
This factual recitation is taken primarily from the Court of Appeal opinion authored by Justice Benke.
Three criminal street gangs played a role in this case: the Gateway Posse Crips (Gateway Posse), the YAH (short for Young Ass Hustlers) Squad, and the Pueblo Bishop Bloods (Pueblo Bishop). Pueblo Bishop members were
known to carry guns and use them against rival gangs. Gateway Posse and Pueblo Bishop were enemies, and there had been a history of violence between them.
Defendant Vince Bryan Smith was a member of Gateway Posse. Each of the two murder victims, defendant's friend, Vincent McCarthy, and his cousin, Demetrius Hunt, was either a member or an " associate" of the gang. Defendant's friend, Julian McKee, was a member of yet another gang, but one that was affiliated with Gateway Posse.
The YAH Squad began as an unaffiliated dance crew in 2002 and eventually transitioned into a criminal street gang whose members often carried guns. At the time of the killings, the YAH Squad had about 10 members. It had developed an affiliation with Pueblo Bishop because one of its members, Deshawn Littleton, was also affiliated with that gang. Members of the YAH Squad present at the killings included Littleton, Jermarr Session, Edward Scott, Aaron Lee, Lonnie Walton, and Jesus Hernandez. Defendant's younger brother, Robert McMorris, was a member of the YAH Squad, but he wanted to leave the gang.
In addition to Littleton, Pueblo Bishop members involved in this case included Tovey Moody (Tovey) and Wealton Moody (Wealton).
Before the killings, YAH Squad members were " upset" with McMorris (defendant's brother) because he was not adequately representing or participating in the gang. Gang members participate by [180 Cal.Rptr.3d 104] earning money for or defending the gang and its territory. When a gang member is not participating, the member may receive a " discipline," essentially a beating by fellow gang members. Because YAH Squad members planned to discipline McMorris, he wanted to quit being a member of the gang.
A few days before the killings, defendant, appearing " really mad," drove to a liquor store where YAH Squad members had congregated and asked Edward Scott, " When you all supposed to be putting hands on my little brother?" After defendant explained that his younger brother was McMorris, Scott told him that nobody was supposed to put hands on McMorris because he was " the little homie." Lonnie Walton, who witnessed this exchange, testified that defendant threatened to kill one of the group " over [his] brother" and, as defendant was leaving, it appeared he " threw" the hand sign for Gateway Posse.
There was testimony that Deshawn Littleton, who was also present at this exchange, and Scott were angry at defendant because he had " disrespected" the YAH Squad. As the group walked back to their apartments, Littleton
pounded his fists and said that he was " going to beat the fuck out of [McMorris]." Littleton also mentioned he was going to call Tovey, a member of Pueblo Bishop, about the incident.
Walton testified that a few days before the killings, while YAH Squad members were hanging out in a parking lot, Tovey arrived, spoke with Scott and Littleton, and gave Littleton " something." Scott, Littleton, and Tovey got into a truck and left. Walton testified he heard multiple gunshots a few minutes later.
Shortly thereafter, Wealton, Walton, and one or more YAH Squad members went to an apartment where defendant was present. Walton testified that when they arrived, Tovey and defendant were arguing about the liquor store incident. Demontre Carroll, 12 years old at the time of these events, testified that he was visiting a friend at the apartments when he heard the confrontation between Tovey and defendant.  He heard Tovey tell defendant, " I heard you came at my little homie [(Littleton)] foul," meaning [337 P.3d 1163] defendant had disrespected YAH Squad. Defendant responded, " [W]ell, I didn't want my little brother in that shit." Tovey told defendant he had no problem with defendant's demand. According to Demontre, defendant threatened to " bring some of [his] homies to make sure none of this shit pops off," which Demontre took to mean that defendant was going to bring backup to ensure nothing went wrong when McMorris was " jumped out" of the YAH Squad. Tovey then remarked to defendant, " I know you're not talking about gun play." At that point, a neighbor got between defendant and Tovey and everyone left.
On February 7, 2006, the day of the killings, defendant told his brother he was taking him to get " jumped out" of the YAH Squad. The Court of Appeal summarized the evidence about what this meant. " To join a criminal street gang, potential members often have to be 'jumped in,' which typically involves three or four members of the gang beating the potential new member for a set period of time while the new member does his or her best to fight back. Likewise, in order to get out of a gang, a member must be 'jumped out,' which typically involves a beating of that member by the same members [180 Cal.Rptr.3d 105] who jumped him or her into the gang."
Littleton told YAH Squad members that they were going to fight Gateway Posse " homies." Defendant picked up McMorris after school, then picked up McCarthy, Hunt, and McKee to make sure his brother did not get beaten too badly and things did not get out of hand. McCarthy had a gun. As they drove,
they agreed they would shoot back only if shot at first. McMorris told defendant that YAH Squad members Scott and Lee had jumped him into the gang.
When defendant, McMorris, McCarthy, Hunt, and McKee arrived, they approached a group of men that had gathered outside some apartments, including members of the YAH Squad and Pueblo Bishop. Demontre observed Tovey give Littleton what appeared to be a gun. He said that Tovey also possessed another gun.
Defendant pointed at Scott and Lee and said, " I want you guys to put my brother off." Those present decided to do the " jump out" in a field next to the apartments. The two groups remained separate as they headed to the field. Just before the fight began, defendant said, " I don't want nobody kicking my brother in the head." Walton testified that defendant's attempts to give orders to YAH Squad members did not sit well with them.
At some point, McMorris heard Littleton tell Scott and Lee, " You guys know what you guys got to do." McMorris began to fight with Scott and Lee. They got the better of him, and Lee hit McMorris, bloodying him and knocking him to the ground. Defendant intervened, grabbed his brother, and pulled him up.
What happened next was the subject of much discussion at trial.
Walton testified that YAH Squad member Jesus Hernandez yelled at defendant, " Fuck that, JR [(meaning defendant)]. He [(meaning McMorris)] got put on by four people." Walton testified this meant that because four people had jumped in McMorris, four people had to jump him out. In response, defendant said, " Fuck you." He walked over to Hernandez and took a swing at him. According to Walton, another Pueblo Bishop member grabbed defendant and told him to calm down. Walton heard a gunshot from behind, ducked, and then took off running. As he ran he heard more gunshots. He estimated he heard a total of seven or eight shots.
McMorris testified that as Hernandez came near the fight, defendant tried to stop Hernandez and swung at him. McMorris saw Littleton, who had been leaning on a brick wall nearby, pull out a gun and start shooting. He saw the flash from the muzzle. McMorris ...