The People v. Smith

Filed 4/15/13 On transfer from the Supreme Court
CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D060317

Plaintiff and Respondent,

v. (Super. Ct. No. BAF004719)

VINCE BRYAN SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Patrick F.

Magers, Judge. Affirmed as modified.

Cannon & Harris and Gregory L. Cannon for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Meredith S.

White, Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of DISCUSSION parts B through H.
 A jury convicted defendant and appellant Vince Bryan Smith of two counts of

second degree murder (Pen. Code,1 § 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

1 Unless otherwise noted, all statutory references are to the Penal Code.
2
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 OVERVIEW2

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

2 We view the evidence in the light most favorable to the judgment of conviction.
(See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and
procedural history related to issues raised by Smith are discussed post, in connection with
those specific issues.
3
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)3 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

3 "YAH" stands for "Young Ass Hustlers."
4
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

5
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.4 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

4 Demontre testified at Smith's preliminary hearing. As discussed post, Demontre
was killed in October 2007. His testimony from the preliminary hearing was read into
the record in Smith's trial.
6
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

7
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.5 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."6 At that point, a neighbor got between Smith and Tovey and everyone left.

On February 7, 2006—the day of the killings, Smith told Robert he was taking

him to get "jumped out" of YAH.7 Deshawn told YAH members that they were going to

"fight Gateway [e.g., GPC] homies."

5 Darien Howard (Darien) lived at the Peppertree Apartments. Darien testified he
heard Tovey tell Smith, "[Y]ou disrespected my blood" and explained that Deshawn and
Tovey were cousins.

6 "Gun play" in gang jargon means guns will be involved in a confrontation.

7 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 that jumped him or her into the
gang.
8
 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

9
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.

10
 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.

11
 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.

C. Forensic Evidence

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.

12
 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.

DISCUSSION

A. Aiding and Abetting

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 likely8 were rival gang members, Smith argues he could not be

8 Smith argues that the prosecutor "seemed to acknowledge" that Deshawn, and not
13
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.)

Smith, was the actual shooter in this case. Nonetheless, Smith argues "there really was
no direct evidence whatsoever showing who fired the fatal shots" in this case.
14
 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

15
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

committed the crime of ;

"AND

"3. Under all of the circumstances, a reasonable person in the defendant's position

would have known that the commission of the was a natural

and probable consequence of the commission of the ." (Italics

added.)

16
 Then-applicable CALCRIM No. 403 defined a "coparticipant" as "[T]he

perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim

or innocent bystander."9

Thus, the above authorities clearly show that aider and abettor liability under the

natural and probable consequences doctrine is not limited to crimes committed by a

confederate, as Smith argues.

In our view, Smith's argument is premised on a fundamental misunderstanding of

the natural and probable consequences doctrine: "Aider and abettor culpability under the

natural and probable consequences doctrine for a nontarget, or unintended, offense

committed in the course of committing a target offense has a different theoretical

underpinning than aiding and abetting a target crime. Aider and abettor culpability for

the target offense is based upon the intent of the aider and abettor to assist the direct

perpetrator commit the target offense. By its very nature, aider and abettor culpability

under the natural and probable consequences doctrine is not premised upon the intention

of the aider and abettor to commit the nontarget offense because the nontarget offense

was not intended at all. It imposes vicarious liability for any offense committed by the

direct perpetrator that is a natural and probable consequence of the target offense.

9 CALCRIM No. 403 was revised in 2010. Revised CALCRIM No. 403 continues
to premise aider and abettor liability on crimes committed by a "coparticipant" and
employs the same definition of coparticipant that was used in former CALCRIM No. 403
that was applicable when Smith was tried and convicted.
17
(People v. Garrison (1989) 47 Cal.3d 746, 778 [accomplice liability is vicarious].)

Because the nontarget offense is unintended, the mens rea of the aider and abettor with

respect to that offense is irrelevant and culpability is imposed simply because a

reasonable person could have foreseen the commission of the nontarget crime." (People

v. Canizalez, supra, 197 Cal.App.4th at p. 852.)10

In any event, we decline to adopt a rule premising aider and abettor liability under

the natural and probable consequences on whether the nontarget offense was committed

by a "perpetrator," an "actual perpetrator" or a "person," on the one hand, or a

"confederate" of defendant, on the other hand, particularly in the light of the facts of the

instant case where the killings resulted from a gang confrontation between members of

rival gangs.

Indeed, the rule proposed by Smith would require the People to prove the identity

of the shooter and match the bullets fired to the shooter, a task which is often difficult, as

this case demonstrates.11 (See People v. Albillar (2010) 51 Cal.4th 47, 62 [noting that

10 Although liability for aiding and abetting a target crime requires among other
elements that a "defendant knew that the perpetrator intended to commit the [target]
crime" (CALCRIM No. 401, italics added), this element is not required when imposing
liability under the natural and probable consequences doctrine. Instead, accomplice
liability under the doctrine focuses on whether a reasonable person in the defendant's
position would have known that the commission of the nontarget offense by a
"coparticipant" was a natural and probable consequence of the commission of the target
offense by the defendant and coparticipant. (CALCRIM No. 403, ante.)

11 See footnote 9, ante.

18
part of a gang's "internal code" is to ensure that gang members do not cooperate with

police]; People v. Vazquez (2009) 178 Cal.App.4th 347, 354 [noting that witnesses,

including other gang members, often are " 'fearful to come forward, assist law

enforcement, testify in court, or even report crimes that they're victims of for fear that

they may be the gang's next victim or at least retaliated on by that gang.' "].)

In addition, the rule proposed by Smith would undermine the doctrine's policy of

extending criminal liability to a defendant who knowingly and intentionally encourages,

assists or influences a criminal act of another when the latter's crime is the natural and

probable consequence of the criminal act so encouraged, assisted or influenced. (See

People v. Brigham (1989) 216 Cal.App.3d 1039, 1052-1053.)

The instant case provides a vivid example of the injustice that would result if, as

Smith argues, we untethered the natural and probable consequences doctrine from its

"foreseeability" mooring. (See People v. Prettyman, supra, 14 Cal.4th at p. 260 [doctrine

"is based on the recognition that 'aiders and abettors should be responsible for criminal

harms they have naturally, probably and foreseeably put in motion.' "].) In the instant

case there is overwhelming evidence supporting the jury's finding that a reasonable

person in Smith's position would have known that the murders of Vincent and Demetrius,

(allegedly) by rival gang members (nontarget offense), was a natural and probable

consequence of the commission of the crimes of disturbing the peace or assault or battery

(target offense), inasmuch as rival gang members from the Cribs and Bloods were both in

19
attendance for Robert's "jump out"; Smith brought members of GPC to the jump out as

backup in case things got out of hand; there already had been altercations between Smith

and members of YAH/PBB regarding Robert's "treatment" by YAH; and PBB was

known to carry guns and use them against rival gangs, including GPC. To ignore all

these facts and nonetheless conclude on this record that Smith could not be liable for

murder as an aider and abettor merely because the killings involved individuals who

accompanied Smith to the "jump out" or because the murderer was from a rival gang,

would turn the natural and probable consequences doctrine on its proverbial head.12

B. Jury Instructions

1. Governing Law

" ' "It is settled that in criminal cases, even in the absence of a request, the trial

court must instruct on the general principles of law relevant to the issues raised by the

evidence. [Citations.] The general principles of law governing the case are those

principles closely and openly connected with the facts before the court, and which are

necessary for the jury's understanding of the case." [Citation.] That obligation has been

held to include giving instructions on lesser included offenses when the evidence raises a

question as to whether all of the elements of the charged offense were present [citations],

12 In light of our rejection of Smith's argument that aider and abettor liability
required the killer of Vincent and Demetrius to be a "confederate" of Smith, it is
unnecessary to decide whether his murder convictions must be overturned for lack of
evidence that the killings were committed by a confederate of Smith.
20
but not when there is no evidence that the offense was less than that charged.

[Citations.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) If there is substantial

evidence supporting such an instruction, it must be given even if it is inconsistent with

the defense presented. (People v. Barton (1995) 12 Cal.4th 186, 194–195.)

However, "the trial court need not instruct on a lesser included offense whenever

any evidence, no matter how weak, is presented to support an instruction, but only when

the evidence is substantial enough to merit consideration by the jury. [Citation.]"

(People v. Barton, supra, 12 Cal.4th at p. 195, fn. 4.) We independently review a claim

that the trial court erred in failing to instruct on a lesser included offense. (People v. Cole

(2004) 33 Cal.4th 1158, 1215.)

2. Heat of Passion and Perfect/Imperfect Defenses

Voluntary manslaughter is a lesser included offense of murder. (People v. Lewis

(2001) 25 Cal.4th 610, 645; People v. Barton, supra, 12 Cal.4th at p. 199.) A homicide is

voluntary manslaughter rather than murder if the defendant killed in a "sudden quarrel or

heat of passion" (§ 192, subd. (a)) or in an unreasonable but good faith belief in the need

to act in self-defense. (People v. Blakeley (2000) 23 Cal.4th 82, 89, 91; accord, People v.

Breverman, supra, 19 Cal.4th at p. 163.) "Because heat of passion and unreasonable self-

defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by

negating the element of malice that otherwise inheres in such a homicide [citation],

voluntary manslaughter of these two forms is considered a lesser necessarily included

21
offense of intentional murder [citation]." (People v. Breverman, supra, 19 Cal.4th at p.

154, fn. omitted.)

a. Heat of Passion

A homicide is deemed to result from heat of passion only if there is a provocation

of such character and degree that it would cause a reasonable person of average

disposition " ' "to act rashly or without due deliberation and reflection, and from this

passion rather than from judgment." ' [Citations.]" (People v. Breverman, supra, 19

Cal.4th at p. 163.) Significantly, the " 'provocation which incites the defendant to

homicidal conduct in the heat of passion must be caused by the victim [citation], or be

conduct reasonably believed by the defendant to have been engaged in by the victim.' "

(People v. Manriquez (2005) 37 Cal.4th 547, 583.) " 'The provocative conduct by the

victim may be physical or verbal, but the conduct must be sufficiently provocative that it

would cause an ordinary person of average disposition to act rashly or without due

deliberation and reflection. [Citations.]' " (Id. at pp. 583-584.) " ' "Heat of passion arises

when 'at the time of the killing, the reason of the accused was obscured or disturbed by

passion to such an extent as would cause the ordinarily reasonable person of average

disposition to act rashly and without deliberation and reflection, and from such passion

rather than from judgment.' " [Citation.]' [Citations.]" (Id. at p. 584.)

"Thus, '[t]he heat of passion requirement for manslaughter has both an objective

and a subjective component. [Citation.] The defendant must actually, subjectively, kill

22
under the heat of passion. [Citation.] But the circumstances giving rise to the heat of

passion are also viewed objectively. As we explained long ago in interpreting the same

language of [Penal Code] section 192, "this heat of passion must be such a passion as

would naturally be aroused in the mind of an ordinarily reasonable person under the

given facts and circumstances," because "no defendant may set up his [or her] own

standard of conduct and justify or excuse himself [or herself] because in fact his [or her]

passions were aroused, unless further the jury believe that the facts and circumstances

were sufficient to arouse the passions of the ordinarily reasonable man [or woman]."

[Citation.]' [Citations.]" (People v. Manriquez, supra, 37 Cal.4th at p. 584.)

Here, Smith argues there was sufficient evidence to require a heat of passion

instruction because the jury could have found that Tovey and/or Deshawn pulled out their

weapons and fired the fatal shots when they were provoked by Smith "at the culmination

of a jump out attended by members of two to four gangs," after Smith pulled out a gun

and pointed it at the people who were beating his younger brother Robert after Robert

was knocked to the ground. We disagree.

First, Smith in his lengthy brief cites no evidence in the record, much less

sufficient evidence " ' "from which a jury composed of reasonable [persons]

could . . . conclude[]" ' " (see People v. Breverman, supra, 19 Cal.4th at p. 162) that

Tovey and/or Deshawn actually, subjectively killed Vincent and/or Demetrius under the

heat of passion. (See People v. Manriquez, supra, 37 Cal.4th at p. 584.) For this reason

23
alone we reject Smith's argument the trial court erred in failing to give sua sponte the heat

of passion instruction.

Second, our high court repeatedly has rejected arguments that "insults or gang-

related challenges would induce sufficient provocation in an ordinary person to merit an

instruction on voluntary manslaughter." (See People v. Enraca (2012) 53 Cal.4th 735,

759.)

Third, even assuming Smith could proffer sufficient evidence to satisfy the

subjective and objective components of heat of passion, Smith's brief includes no citation

to any evidence showing that the victims in this case—Vincent and Demetrius—caused

the provocation that incited Tovey and/or Deshawn to use lethal force. (See People v.

Manriquez, supra, 37 Cal.4th at p. 583.) If anybody caused the provocation, according to

Smith it was him, when he claims witnesses saw him pull out a gun and point it not at

Tovey and/or Deshawn, but rather at the YAH members who were beating Robert. Thus,

for this additional reason we conclude the trial court did not have a duty to instruct sua

sponte on heat of passion.

b. Perfect Defenses

"Perfect" self-defense is a complete defense to a murder charge and requires

evidence that the defendant reasonably believed he or she was in imminent danger of

death or great bodily injury. (People v. Moye (2009) 47 Cal.4th 537, 550.) As noted

ante, "imperfect" self-defense negates malice, reduces homicide to voluntary

24
manslaughter and exists when the defendant subjectively, but unreasonably, believed in

the need for self-defense. (Ibid.)

We reject Smith's argument that the trial court erred when it failed to instruct on

perfect defense of another. Smith argues he was entitled to this instruction because

witnesses testified he drew a gun (which he denied) after Robert was beaten to the ground

during the jump out. Thus, according to Smith he was acting in defense of his brother.

However, Smith's conduct with respect to his brother had no bearing on whether

defense of another justified the murders because Deshawn and/or Tovey (allegedly) fired

the fatal shots, not Smith. Thus, we look to Deshawn and/or Tovey to determine whether

this defense was applicable.

As before, Smith has cited to no evidence in the record, much less substantial

evidence (see People v. Moye, supra, 47 Cal.4th at p. 553 [" 'the existence of "any

evidence, no matter how weak," will not justify instructions on a lesser included

offense' "]), showing Deshawn and/or Tovey reasonably believed that Robert, Aaron,

Edward and/or any other individuals involved in the fight at the jump out were in

imminent danger of suffering bodily injury; that Deshawn and/or Tovey reasonably

believed that the immediate use of force was necessary to defend against that danger; and

that Deshawn and/or Tovey used no more force than reasonably necessary to defend

against that danger. (See e.g., People v. Villanueva (2008) 169 Cal.App.4th 41, 49-50.)

25
 In addition, Deshawn was not entitled to a defense of another instruction inasmuch

as he was one of the individuals, along with Smith, who initiated and/or participated in

the jump out. (See People v. Enraca, supra, 53 Cal.4th at p. 761 [self-defense "may not

be invoked by a defendant who, through his [or her] own wrongful conduct (e.g., the

initiation of a physical attack or the commission of a felony), has created circumstances

under which his [or her] adversary's attack or pursuit is legally justified."].)

Indeed, Robert testified he heard Deshawn tell Edward and Aaron, "You guys

know what you guys got to do." In addition, on the day of the killings Deshawn told

YAH members that they were going to "fight Gateway [e.g., GPC] homies." The record

also shows Smith wanted the jump out for Robert because Smith did not want Robert "in

that shit," or words to that effect. Thus, for this separate and independent reason we

conclude the defense of another instruction was not warranted under the facts of this case.

We also conclude Smith was not entitled to a perfect self-defense instruction

because Smith has failed to cite to any evidence in the record that Deshawn and/or Tovey

entertained a reasonable belief that they were in, or one of them was in, imminent danger

of death or great bodily injury when one or both of them (allegedly) shot Vincent and/or

Demetrius. Rather, the evidence in the record strongly suggests that when Smith stepped

in to stop the beating of Robert during the jump out, Deshawn promptly pulled out a gun

and started shooting.

26
 The record shows that Smith requested and the trial court gave an imperfect

defense instruction. Smith claims the instruction was erroneous and his murder

conviction must be reversed. We turn to this issue next.

c. Imperfect Defenses

The trial court instructed the jury on imperfect defense of another/self-defense,

CALCRIM No. 571, as follows:

"A killing that would otherwise be murder is reduced to voluntary manslaughter if

the defendant killed a person because (he/she) acted in (imperfect self-defense/ or

imperfect defense of another).

"The defendant acted in (imperfect self-defense or imperfect defense of another)

if:

"1. The defendant actually believed that (he or someone else) was in imminent

danger of being killed or suffering great bodily injury;

"AND

"2. The defendant actually believed that the immediate use of deadly force was

necessary to defend against the danger;

"[But]

"3. His belief was unreasonable.

"Belief in future harm is not sufficient, no matter how great or how likely the harm

is believed to be.

27
 "In evaluating the defendant's beliefs, consider all the circumstances as they were

known and appeared to the defendant.

"If you find that the decedents threatened or harmed the defendant or others in the

past, you may consider that information in evaluating the defendant's beliefs.

"If you find that the defendant knew that the [decedents] had threatened or harmed

others in the past, you may consider that information in evaluating the defendant's beliefs.

"If you find that the defendant received a threat from someone else that (he)

reasonably associates with the decedents, you may consider that threat in evaluating the

defendant's beliefs.

"Great bodily injury means significant or substantial physical injury. It is an

injury that is greater than minor or moderate harm.

"The People have the burden of proving beyond a reasonable doubt that the

defendant was not acting in (imperfect self-defense/ or imperfect defense of another). If

the People have not met this burden, you must find the defendant not guilty of murder."

Smith argues the use of the word "defendant" in CALCRIM No. 571 misled the

jury because the instruction as written would not apply to Smith unless he, as opposed to

Deshawn and/or Tovey, killed another person. The People agree the instruction should

have used the word "perpetrator" in lieu of the word "defendant," but contend that error

was harmless. We agree with the People.

28
 First, although the trial court chose to instruct on imperfect defense of

another/self-defense, our independent review of the record suggests there was insufficient

evidence to support such an instruction. Indeed, there is a lack of evidence in the record,

and none cited by Smith, suggesting that Deshawn and/or Tovey actually entertained

even an unreasonable belief that they were, or one of them was, in imminent danger of

death or great bodily injury when they or one of them (allegedly) shot Vincent and/or

Demetrius. (See CALCRIM No. 571.) For this reason alone, we conclude any error in

using the word "defendant" as compared to "perpetrator" in CALCRIM No. 571 was

harmless. (See People v. Watson (1956) 46 Cal.2d 818, 826; People v. Breverman,

supra, 19 Cal.4th at p. 178 ["[I]n a noncapital case, error in failing sua sponte . . . to

instruct fully, on all lesser included offenses and theories thereof which are supported by

the evidence must be reviewed for prejudice exclusively under [People v.] Watson" and

thus such error may be reversed "only if, 'after an examination of the entire cause,

including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the

defendant would have obtained a more favorable outcome had the error not occurred

[citation]." (Fn. omitted.)].)

Second, in reviewing CALCRIM No. 571 in the light of the other instructions

given the jury and of the closing arguments of counsel, we conclude CALCRIM No. 571

was not confusing to the jury. (See People v. Moore (2011) 51 Cal.4th 1104, 1140 [in

evaluating a claim whether an instruction is misleading, we consider the instructions as a

29
whole, not just in isolated parts]; People v. Smithey (1999) 20 Cal.4th 936, 963 [same];

People v. Kelly (1992) 1 Cal.4th 495, 524-527 [reviewing court examines the jury

instructions as a whole, along with the attorney's closing argument to the jury, to

determine if the instructions sufficiently conveyed the correct legal principles].)

Here, the record shows the trial court also gave CALCRIM No. 403, as discussed

ante, in which the trial court used the words "coparticipant" to describe the crime of

murder or the lesser offense of voluntary manslaughter for which Smith also was

charged.

Moreover, during closing argument the prosecution argued that Smith was guilty

in counts 1 and 2 under an aiding and abetting theory based on the natural and probable

consequences doctrine:

"Guilty of murder? Is [Smith] guilty of murder? You have before you the legal

theory of this under aiding and abetting and natural and probable consequence. The best

example I can give to you for this particular theory of liability is that if a bunch of gang

members go to a location armed with weapons for a fight and somebody dies, the person

can be guilty of murder even if he did not intend to kill somebody. What does that sound

like? This case."

The prosecution also argued the murder was a reasonably foreseeable consequence

of the gang fight:

30
 "If [Smith] didn't hold the gun and shoot the bullets that were fired that ended the

lives of our two victims, we have to think about was going on in the mind of the shooter

at the time, right?" The prosecution also noted that there was sufficient evidence of first

degree murder, noting:

"What else is premeditated murder? In terms of the other individual, the

individual who actually fired the gun. We're talking about [Deshawn]. What was going

on in [Deshawn's] head at the time?" The prosecution noted that Deshawn's conduct

provided sufficient evidence of premeditation and deliberation to support first degree

murder convictions of Smith, even if Deshawn fired the fatal bullets, based on the natural

and probable consequences doctrine.

Similarly, during closing Smith's defense counsel argued that Deshawn was the

shooter and implored the jury when considering the nontarget offense of murder to

consider the issue through Deshawn's eyes. Defense counsel also argued that to get to

voluntary murder, the jury needed to determine whether "Deshawn . . . act[ed] upon a

sudden quarrel or heat of passion or an unreasonable self-defense." (Italics added.)

Defense counsel reiterated that "if Deshawn . . . allegedly reacts to my client pulling a

gun, which means he is in fear for somebody's life, he has a right to use self-defense or

defense of others. If it's unreasonable—if it's reasonable, it's not a crime, it's a defense.

If it's unreasonable, it's voluntary manslaughter." (Italics added.)

31
 Finally, defense counsel argued at length that Deshawn's actions were not

foreseeable, and thus Smith's commission of the target offense was not sufficient to find

him guilty of the nontarget murder offenses.

Thus, when considering the instructions as a whole and the lengthy argument of

counsel on the issue of Smith's liability as an aider and abettor under the natural and

probable consequences doctrine, we conclude it was not reasonably likely the jury

misapplied CALCRIM No. 571, as given in this case.13

C. Jury Question during Deliberations

1. Additional Background

During deliberations, the jury sent the following question to the court: "Please

explain manslaughter and how it would apply to this case or is it part of every case?

[¶] Do we need to agree with all three parts/portions of voluntary manslaughter criteria to

find Smith guilty?" The court stated for the record that it had discussed the jury question

in chambers with counsel and that it tentatively intended to respond as follows: "[the

jury] can consider voluntary manslaughter in this case as a lesser offense if the jury

13 For the same reasons, we also reject Smith's argument that use of the word
"defendant" in CALCRIM No. 571 precluded the jury from considering the threats
against Robert by members of YAH. In any event, these threats were not relevant to the
states of mind of Deshawn and/or Tovey, which as the shooters were the only mental
states relevant to the determination of whether imperfect defense of others/self-defense
reduced the murders to manslaughter.
32
unanimously finds the defendant not guilty of murder. [¶] The three elements under

CALCRIM [No.] 571 defining manslaughter must be proved beyond a reasonable doubt."

The prosecution agreed with the court's tentative response but requested the court

also tell the jury that it "can base their decision on any one of the facts presented to apply

to each of the [three] elements" of voluntary manslaughter. Smith's trial counsel stated he

agreed in part with the court's tentative response, disagreed with the prosecution's

additional request and suggested, albeit confusingly, the court provide "a little bit of

explanation" as follows: "What I would like to add to what the Court has indicated is

simply a little bit of explanation of—to—also to some extent address the second question

of whether it's a part of every case is to tell them, you know, how murder and

manslaughter, why they get—maybe why they get that as a lesser-included offense, and

in fact, however, the theory of liability in terms of making a non shooter the non killer

liable is the same [for manslaughter as] it would be for murder. Something to that effect.

So they understand what the relationship is. [¶] Submit."14

The court confirmed in writing its tentative response and noted on the record that

if the jury had further questions on this issue, it would consider going into more detail at

that time.

14 We will consider Smith's argument on the merits, despite his counsel's somewhat
inarticulate objection to the trial court's tentative response to the jury question and despite
his counsel's agreement in part with that response. (See People v. Rodrigues (1994) 8
Cal.4th 1060, 1193 [agreement by defense counsel to trial court's response to jury
question forfeits contention on appeal that response was inadequate].)
33
 2. Governing Law and Analysis

Section 113815 imposes on the trial court a mandatory "duty to clear up any

instructional confusion expressed by the jury. [Citations.]" (People v. Gonzalez (1990)

51 Cal.3d 1179, 1212, superseded on another point as stated in In re Steele (2004) 32

Cal.4th 682, 690.) "This does not mean the court must always elaborate on the standard

instructions. Where the original instructions are themselves full and complete, the court

has discretion under section 1138 to determine what additional explanations are sufficient

to satisfy the jury's request for information. [Citation.]" (People v. Beardslee (1991) 53

Cal.3d 68, 97.)

We agree with Smith that the trial court erred as a matter of law when it responded

that the jury was required to find unanimously Smith was not guilty of murder before it

could even consider voluntary manslaughter. Addressing this issue, our Supreme Court

held: "[A] court may restrict a jury from returning a verdict on a lesser included offense

before acquitting on a greater offense, but may not preclude it from considering lesser

offenses during deliberations." (People v. Dennis (1998) 17 Cal.4th 468, 536 (italics

added), citing People v. Kurtzman (1988) 46 Cal.3d 322, 324-325 [a court may "restrict []

15 Section 1138 provides: "After the jury have retired for deliberation, if there be
any disagreement between them as to the testimony, or if they desire to be informed on
any point of law arising in the case, they must require the officer to conduct them into
court. Upon being brought into court, the information required must be given in the
presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel,
or after they have been called."
34
a jury from returning a verdict on a lesser included offense before acquitting on a greater

offense," but may not "preclude [it] from considering lesser offenses during its

deliberations."].)

"Thus, a trial court should not tell the jury it must first unanimously acquit the

defendant of the greater offense before deliberating on or even considering a lesser

offense." (People v. Dennis, supra, 17 Cal.4th at p. 536; see also People v. Berryman

(1993) 6 Cal.4th 1048, 1073 [noting the implicit rejection of a " 'strict acquittal-first rule

under which the jury must acquit of the greater offense before even considering lesser

included offenses.' "], overruled on another ground as stated in People v Hill (1998) 17

Cal.4th 800, 823, fn. 1.)

Although the trial court here erred in how it responded to the jury's question, we

conclude on this record that error was harmless. Indeed, as noted above our independent

review of the record shows there is a lack of evidence in the record, and none cited by

Smith, suggesting that Tovey and/or Deshawn actually entertained even an unreasonable

belief that they or others were in imminent danger of death or great bodily injury when

one or both of them (allegedly) shot Vincent and/or Demetrius. (See CALCRIM No.

571.)

As such, we conclude it was not reasonably probable Smith would have enjoyed a

better outcome had the trial court properly instructed the jury that it could consider the

lesser included offense of voluntary manslaughter based on imperfect defense of

35
others/self-defense. (See People v. Watson, supra, 46 Cal.2d at p. 826; see also People v.

Eid (2010) 187 Cal.App.4th 859, 882 [cited by Smith, in which the court recognized that

a "court's failure under section 1138 to adequately answer the jury's question 'is subject to

the prejudice standard of People v. Watson . . .,' i.e., whether the error resulted in a

reasonable probability of a less favorable outcome."].)

D. Death Certificate of Demontre

Smith next argues the jury's accidental receipt of Demontre's death certificate

constitutes jury misconduct requiring reversal of Smith's conviction.

1. Additional Background

In November 2006, Demontre testified at the preliminary hearing. Demontre was

later killed, and thus the trial court ruled he was unavailable as a witness and allowed his

preliminary hearing testimony to be read to the jury. In late February 2009 after the jury

reached its verdicts, Smith's trial counsel filed a new trial motion on the basis the jury at

the start of deliberations received Demontre's death certificate with the exhibits from

trial. The death certificate provided Demontre died of "multiple gunshot wounds."

The trial court denied Smith's new trial motion. Invoking the People v. Watson

standard to evaluate prejudice, as argued by Smith, the trial court found it was not

reasonably probable that a result more favorable to Smith would have resulted had the

death certificate not been inadvertently given to the jury. In denying the new trial

motion, the court made a "clear record" on this issue as follows:

36
 "As far as the death certificate is concerned, the People proffered that to establish

the death of Mr. Demontre Carroll, which was necessary for the Court to make a finding

of unavailability so the prior testimony could be properly read to the jury. And that was

the reason why the death certificate was marked as an exhibit and considered by the

Court. But for that, the death certificate was of no relevance to the balance of the case. I

would have excluded it as irrelevant and potentially prejudicial. [¶] The situation was

there were numerous exhibits, 450 exhibits, or maybe more. When [the prosecutor] made

her motion—I don't want to speak for her—but I don't think specifically she was thinking

about the death certificate. Because I know that, [Smith's defense counsel], you weren't

either.

"[Defense counsel]: Correct.

"THE COURT: The other attorneys weren't either, because this went to both

juries.[16] [¶] And it happened. It shouldn't have happened. But I think more care

should have been exercised by everyone involved, including the Court. But it happened.

[¶] And let the record be very clear that if it came to my attention that that was going to

the jury, I would have excluded it. [¶] The question now before the Court is whether or

not in the Court's evaluation of the evidence whether there was reasonable probability

16 Smith was tried together with two other defendants. The court therefore
empanelled two juries, one for Smith and one for the other two defendants. Smith's jury
was designated the "green jury," while the jury for the two defendants was called the
"yellow jury."
37
that a result more favorable to [Smith] would have been reached in the absence of the

error. This is a high burden.

"In evaluating all the evidence . . . I can't say that a more probable result—

reasonably probable result would result in this case. I can't say that. The appellate court

will have the benefit of this record, and they may certainly reach a different opinion. But

at this point, I can't say that."

2. Governing Law and Analysis

" 'When, as in this case, a jury innocently considers evidence it was inadvertently

given, there is no misconduct.' [Citations.] Rather, all that appears is ordinary error."

(People v. Clair (1992) 2 Cal.4th 629, 668.) As such, "prejudice must be shown and

reversal is not required unless there is a reasonable probability that an outcome more

favorable to the defendant would have resulted. [Citation.]" (Ibid.) "[A] trial court's

ruling on a motion for new trial is subject to review for abuse of discretion." (Id. at p.

667.)

Smith argues he was unduly prejudiced by the jury's receipt of Demontre's death

certificate because according to Smith, the jury heard evidence he threatened another

witness (e.g., Jochanna, discussed ante) during the preliminary hearing and thus the jury

likely would deduce that Smith had some connection to Demontre's death.

Assuming arguendo the jury reviewed the death certificate that it was

inadvertently given, we nonetheless conclude the trial court properly exercised its

38
discretion in denying Smith's new trial motion when it found it was not reasonably

probable that Smith would have received a more favorable result absent the jury's receipt

and review of Demontre's death certificate.

Indeed, there was no testimony regarding the nature of Demontre's death; the court

simply told the jury he was unavailable as a witness. Thus, other than the death

certificate, which was provided to the jury along with about 450 other exhibits, there was

no evidence how Demontre died, and there certainly was no evidence suggesting Smith

had anything to do with that death.

We decline Smith's invitation to find the trial court abused its discretion and erred

in denying the new trial motion based solely on Smith's speculation of what the jury

might have believed in the matter he asserts. (See People v. Fuiava (2012) 53 Cal.4th

622, 670 [concluding any error by the trial court in failing to "sanitize" defendant's prison

records was harmless "under any standard" because defendant "merely speculates" what

the jury might have understood various notations to mean in those records and

concluding that "even if the jury had deciphered the meaning of the notations [in the

prison records], there is no reasonable probability that the verdict could have been

affected by such collateral issues."].)

Moreover, the record contains overwhelming evidence of Smith's guilt in counts 1

and 2 under the natural and probable consequences doctrine and thus for this separate

reason we conclude the trial court properly exercised its discretion in denying Smith's

39
new trial motion. (See People v. Watson, supra, 46 Cal.2d at p. 836; see also People v.

Houston (2005) 130 Cal.App.4th 279, 301 [admission of hearsay was harmless when

other evidence of defendant's guilt was "overwhelming"].)

E. Invocation of Fifth Amendment Privilege by Potential Defense Witness

Smith next argues the prosecutor violated his right to present a defense by

pressuring defense witness Curlee to invoke his Fifth Amendment privilege against self-

incrimination.

1. Additional Background

Curlee was arrested in Texas in 2006 for his involvement in the instant case.

During a search incident to arrest, officers found three semi-automatic handguns in a

drawer in Curlee's room and a substantial amount of drugs and $110,000 in cash in the

house where Curlee was living with his brother. This evidence was presented to the jury

to demonstrate Curlee's status in PBB. At the time of Smith's trial, Curlee had been

arrested but not charged in connection with the Texas drug offenses.

During Smith's trial, his counsel indicated the defense intended to call Curlee as a

witness. The prosecutor responded:

"I think [Curlee] has made it very clear that he will not speak to anybody without

the presence of his lawyer. I have discussed that with [Smith's defense counsel], but it's

the People's position that [Curlee] needs to have his lawyer here regardless of whatever

research we do."

40
 The record shows the trial court agreed with the People, and noted, "It's an

important issue with respect to Mr. [Curlee] Mitchell. He has to understand that he is still

subject to prosecution, either State or Federally or both. It's important that he

understands that."

Before allowing Curlee to testify, the trial court conducted a hearing regarding

Curlee's Fifth Amendment privilege. The court explained that it believed Curlee did have

a Fifth Amendment privilege not to testify given the possibility Curlee could be

prosecuted in Texas or by the federal government in connection with the drugs and

money found at his brother's house when Curlee was initially arrested.

Curlee's defense attorney Richard Swanson (Swanson) told the court he had

advised Curlee about the potential liabilities and agreed that his client "does have

potential liabilities in regards as to what happened in Texas" under both state and federal

law, but that Curlee wanted to testify anyway because Curlee did not believe anything he

said would incriminate him with respect to the Texas case. The trial court explained to

Curlee that should he testify in the instant case, the prosecutor would be permitted to

cross-examine him regarding his involvement with, and knowledge of, the drugs, money

and weapons found at his brother's house, and his involvement in PBB.

The trial court then specifically warned Curlee about the possible consequences of

testifying:

41
 "THE COURT: And, Mr. Mitchell, I want to make sure that you understand

exactly what's going on. [¶] If you do testify, the district attorney would be allowed to

ask you questions about possible involvement in Texas with reference to the two kilos of

cocaine found, the $110,000 found, and the weapons found, whether you were aware of

it, whether you possessed it, your knowledge of the 52 Pueblo Bishop Bloods, and any

gang involvement that you might or might not have. [¶] Do you understand?

"Mr. Curlee Mitchell: Yes sir.

"THE COURT: In light of that, you've talked to Mr. Swanson. Mr. Swanson was

your trial counsel in here for several months.[17] And I just want to make sure that you

understand the situation and that whatever you say today could be evaluated by law

enforcement in Texas on a state level, as well as a federal level, to determine ultimately

whether or not charges should be filed against you in Texas with reference to those items.

[¶] Do you understand?

"Mr. Curlee Mitchell: Yes, Your Honor."

At the conclusion of the People's evidence, Smith's trial counsel called Curlee as a

witness. After a short recess, Smith's trial counsel indicated that Curlee had changed his

mind about testifying as a general witness in part because the prosecutor "intimidated"

him when the prosecutor told Curlee's counsel that she would be "pulling these transcripts

17 The record shows Curlee already had been acquitted of all criminal charges in the
instant case.
42
and forwarding them to Texas so they could consider them," which Smith's trial counsel

concluded effectively prevented Curlee from testifying in the instant case.

In response, the prosecutor noted that Swanson turned over discovery to the

prosecutor showing that Curlee's brother's case in Texas was pending on appeal, based on

his brother's motion to withdraw his plea. The prosecutor further clarified that she never

spoke directly with Curlee, but only with his attorney, that she did intend to pull the

transcripts from this case and send them to officials in Texas because she had a "duty and

obligation to turn over discovery," and that she decided not to call Curlee as a witness in

the People's case-in-chief, despite listing him as a witness, because he refused to talk to

the People and thus she did not know what he would testify to if he took the stand.

After the verdicts were returned, Smith filed a motion for new trial based on

prosecutorial misconduct. In support of the motion Smith submitted declarations from

Curlee and Swanson.

In his declaration, Curlee indicated that Swanson told him about the prosecutor's

intention to forward transcripts to the Texas officials if Curlee testified in the instant case.

Curlee also said he was told the prosecutor would contact Texas authorities and

recommend Curlee be prosecuted for the drug offenses. As a result of the prosecutor's

comments, Curlee claimed his counsel advised him not to testify, and thus he invoked his

Fifth Amendment privilege and did not appear as a defense witness.

43
 Swanson declared it was his belief that the prosecutor "was going to assist the

other jurisdiction to have Curlee Mitchell prosecuted" if Curlee testified for the defense,

that such tactics "appeared to be vindictive" and that for this reason, he advised Curlee

not to testify for the defense in the instant case.

During a hearing on that motion, the prosecutor questioned Swanson. Swanson

testified that all conversations with the prosecutor regarding whether or not Curlee would

testify took place in the presence of the trial judge. Swanson also testified that the

prosecutor did not say she would request criminal charges be brought against Curlee in

Texas if he testified in the instant case. Swanson admitted that to the extent he advised

Curlee of that possibility, it was based on Swanson's own belief and not on anything said

by the prosecutor.

Swanson also testified that his advice to Curlee not to testify was based in part on

the trial court's warning to Curlee that he still could be facing criminal liability in Texas

and that his testimony in the instant case could potentially affect that liability. Swanson

further testified that Curlee was concerned his testimony in the instant case could also

adversely affect his brother's case, which at the time was pending on appeal in Texas.

Swanson believed the prosecutor's tactics were vindictive because if the prosecutor

intended to provide the transcripts of Curlee's testimony in the instant case to Texas

officials, she could have done so without making a "public statement" of her intent.

44
 Smith argued that the prosecutor was being vindictive because Curlee would not

speak to the People but agreed to testify as a defense witness. Moreover, if allowed to

testify, Smith argued Curlee would have provided "[v]ery brief statements" that Smith

did not have a gun on the night of the murders, that Demontre was not at the scene of the

murders and that "he" tried to break up the fight.18

The prosecutor responded that the Texas case came about only because of the

instant case, when law enforcement went to Texas to locate Curlee, and that the same

team of investigators was responsible for both cases. Thus, the prosecutor argued that

she was required to provide the Texas officials with a certified transcript of Curlee's

testimony from the instant case. In addition, the prosecutor noted that Smith's trial

counsel was the one who first brought up the issue of the transcripts, inasmuch as he

discussed having them sealed. The prosecutor argued that she discussed sending a

certified copy of the transcripts during an in-chambers conference with counsel and the

trial judge.

The trial court noted that in reading Curlee's declaration, it was concerned by the

statement that Swanson advised Curlee that if he testified for the defense in the instant

case, the prosecutor would recommend to the Texas officials that they move forward with

the case against Curlee. The trial court noted, however, that Swanson denied the

18 It is not clear from the record whether "he" referred to Smith, Demontre or some
other individual.
45
prosecutor made such statements, and further noted that the prosecutor did not make any

such statements during the chambers conference between counsel and the court. The

court recalled the prosecutor saying during that conference she would be providing a

certified copy of the transcript if Curlee testified, but noted that the prosecutor had such

discretion to do so, if not an outright obligation to provide that information to officials in

Texas.

The trial court also noted that at the time it was "very concerned" about Curlee

being "fully advised as to the consequences of his testimony" in the instant case, given

that during cross-examination the prosecutor would have "some latitude" in questioning

Curlee about his knowledge of, and involvement with, the large amount of drugs, cash

and weapons found by law enforcement in Texas. In addition, the court recalled there

was information that when the house where Curlee was living was under surveillance,

Curlee "came outside with his brother, they both got in a car, and that car had an

additional large amount of contraband in the back seat on the floorboard."

The trial court also recalled that if Curlee had testified as a defense witness on

Smith's behalf, Curlee's exposure was substantial: "This wasn't a situation where it was a

petty crime, but a major felony possession for sales of cocaine. [¶] So the Court was very

concerned that Mr. Mitchell understand, being a lay person, that if he came in, his

testimony was not just going to relate to what happened on February the 7th, '06 [e.g., the

night of the killings]; it was going to extend substantially beyond that, and he would be

46
asked concerning his involvement, his knowledge, his nexus with drugs found within

easy access to him in the house in Texas."

The court then concluded there was no prosecutorial misconduct when the

prosecutor advised counsel during the chambers conference that she would be sharing

Curlee's testimony with officials in Texas, and noted that providing such information was

"no surprise" to the court, nor to any of the attorneys: "And that's why I took the time

and effort to advise Mr. Curlee Mitchell that what he was saying in this court was not

going to stay in this court. It certainly could be evaluated in Texas in evaluating whether

or not they had additional information which could possibly warrant him being

prosecuted in the state of Texas." The court thus denied Smith's new trial motion.

2. Governing Law and Analysis

" 'A defendant's constitutional rights to compel the attendance of witnesses, as

guaranteed by the Sixth Amendment, and to due process, as guaranteed by the Fourteenth

Amendment, are violated when the prosecution interferes with the defendant's right to

present witnesses.' [Citations.]" (People v. Lucas (1995) 12 Cal.4th 415, 456.) "To

prevail on a claim of prosecutorial violation of the right to compulsory process, a

defendant must establish three elements. ' "First, he [or she] must demonstrate

prosecutorial misconduct, i.e., conduct that was 'entirely unnecessary to the proper

performance of the prosecutor's duties and was of such a nature as to transform a defense

witness willing to testify into one unwilling to testify.' '' [Citation.] Second, he [or she]

47
must establish the prosecutor's misconduct was a substantial cause in depriving the

defendant of the witness's testimony. [Citation.] The defendant, however, "is not

required to prove that the conduct under challenge was the 'direct or exclusive' cause.

[Citations.] Rather, he [or she] need only show that the conduct was a substantial cause.

[Citations.] The misconduct in question may be deemed a substantial cause when, for

example, it carries significant coercive force and is soon followed by the witness's refusal

to testify." [Citation.] Finally, the defendant must show the testimony he [or she] was

unable to present was material to his defense.' [Citations.]" (People v. Jacinto (2010) 49

Cal.4th 263, 269–270.)

Here, we conclude Smith failed to establish at least two of the three required

elements.

Initially, we note Smith does not argue that the trial court erred when it found that

the prosecution had some latitude to cross-examine Curlee in the instant case, should he

testify as a defense witness, regarding his involvement with, and knowledge of, the drugs,

cash and weapons found in the Texas house where he was living.

We also note that Smith does not argue that the prosecutor committed misconduct

when she indicated during the chambers conference that she was duty bound to provide

officials in Texas with a certified copy of Curlee's testimony in this case should he testify

on behalf of the defense. Indeed, the trial court found there was no misconduct because

the prosecutor had the discretion, if not the obligation, to provide such information to

48
officials in Texas under the circumstances of this case. Smith cites no authority

suggesting otherwise, and thus for this reason alone we conclude the trial court did not err

when it denied Smith's new trial motion for alleged prosecutorial misconduct.

However, even if we assume there was misconduct, we nonetheless would

conclude it was not a substantial cause in depriving Smith of Curlee's testimony. (See

People v. Jacinto, supra, 49 Cal.4th at pp. 269–270.) The record shows the trial court

was "very concerned" that Curlee was properly advised about the possible consequences

of testifying in the instant case given the court's determination that during cross-

examination the prosecutor would be able to question Curlee about the two kilos of

cocaine, money and weapons that were found in the house where Curlee lived with his

brother.

Moreover, the record shows Curlee's own counsel was concerned about Curlee

testifying in the instant case and the possibility that testimony could be used to charge

Curlee in connection with the ongoing case in Texas. The record also shows that Curlee

was concerned about negatively impacting his brother's case in Texas after his brother

received a 40-year sentence and appealed that sentence. Thus, we conclude Smith also

failed to establish the prosecutor's alleged misconduct was a substantial cause in

depriving Smith of Curlee's proposed testimony.19

19 Smith likely could not establish the third element for prosecutorial misconduct, to
wit: that Curlee's testimony was material to Smith's defense. (See People v. Jacinto,
supra, 49 Cal.4th at pp. 269–270.) The record shows Curlee refused completely to talk to
49
 F. Active Gang Participation and Section 65420

Section 654, subdivision (a) provides in part: "An act or omission that is

punishable in different ways by different provisions of law shall be punished under the

provision that provides for the longest potential term of imprisonment, but in no case

shall the act or omission be punished under more than one provision."

As previously mentioned, our high court in People v. Mesa held that section 654

does 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, even if there were multiple objectives. (People v.

Mesa, supra, 54 Cal.4th at pp. 199–200.)

In this case, Smith was charged in count 3 with violating section 186.22,

subdivision (a). The only evidence of his active gang participation, however, was the

evidence associated with the other charged offenses for which he was convicted in counts

and otherwise cooperate with the People and gave the defense only a "very summary
statement" about what he would say if he testified. However, according to Swanson,
Curlee did not want to give a prior statement to anybody, including the defense. Given
the lack of specificity regarding the substance of that proposed testimony, Smith would
have a difficult time showing Curlee's testimony was material to Smith's defense. In any
event, whether or not Smith had a gun or attempted to break up a fight had little bearing
on Smith's main defense—that murder was not a foreseeable consequence of a gang fight.

20 As we noted ante, the California Supreme Court on September 12, 2012 granted
Smith's petition for review and transferred the matter to us with directions to reconsider
our initial opinion issued on June 8, 2012 in light of People v. Mesa, supra, 54 Cal.4th
191, a case that involves this particular issue.
50
1 and 2. Pursuant to People v. Mesa, we now conclude Smith's sentence on count 3

should be stayed in accordance with section 654, subdivision (a).

G. Imposition of Criminal Conviction Assessment Fee

Government Code section 70373 mandates a $30 conviction assessment "shall be

imposed on every conviction for a criminal offense[.]" (Gov. Code, § 70373, subd.

(a)(1).) The trial court imposed a criminal conviction assessment of $90, consisting of a

$30 assessment for each of Smith's three offenses.

Smith argues the imposition of the Government Code section 70373 criminal

conviction assessment violated the prohibition against ex post facto laws because the

January 1, 2009, effective date of the statute was after his offenses were committed. He

is mistaken.

Courts have repeatedly held that the criminal conviction assessment is not punitive

and therefore may be imposed retroactively without violating the state and federal

prohibitions against legislation. (See e.g., People v. Lopez (2010) 188 Cal.App.4th 474,

479 [concluding the "date of conviction, not the date of the crime, controls application"

of Government Code section 70373]; People v. Phillips (2010) 186 Cal.App.4th 475,

477-478 [concluding the date of defendant's conviction for possession of drugs, and not

the date of the crime, governs imposition of the assessment under Government Code

section 70373, subdivision (a)(1)]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1494

[concluding imposition of the assessment mandated by Government Code section 70373

51
for crimes committed before the statute's enactment does not violate state or federal

prohibitions against ex post facto statutes]; People v. Brooks (2009) 175 Cal.App.4th

Supp. 1, 7 [concluding the assessment in Government Code section 70373, subdivision

(a)(1) is "nonpunitive" and "therefore not a prohibited ex post facto law."].)

We thus conclude the trial court here properly imposed the $90 assessment fee

pursuant to Government Code section 70373, subdivision (a)(1).

H. Correction of Abstract of Judgment

Finally, Smith argues the abstract of judgment must be corrected because at the

time of sentencing the trial court ordered Smith to pay a $200 restitution fine on counts 1

and 2 pursuant to section 1202.4, subdivision (b) and imposed and stayed a parole

revocation restitution fine in the same amount, as required pursuant to section 1202.45.

However, the abstract of judgment shows that the trial court imposed a $600 fine

pursuant to section 1202.4, subdivision (b).

The People contend that the trial court actually imposed separate $200 fines at

sentencing, one for each murder count. In addition, although the trial court did not orally

pronounce a restitution fine on count 3 for active participation in a criminal street gang,

according to the People section 1202.4, subdivision (b) mandates imposition of such a

fine. (See § 1202.4, subd. (b) ["In every case where a person is convicted of a crime, the

court shall impose a separate and additional restitution fine, unless it finds compelling

52
and extraordinary reasons for not doing so, and states those on the record." (Italics

added.)].)

Thus, the People contend the trial court properly imposed a $600 fine, inasmuch as

no reasons were stated on the record for not doing so, and because the minimum

restitution fine of $200 is set by statute. (See former § 1202.4, subd. (b)(1) ["The

restitution fine shall be set at the discretion of the court and commensurate with the

seriousness of the offense, but shall not be less than two hundred dollars ($200), and not

more than ten thousand dollars ($10,000) . . . ."])

We note that in his reply, Smith does not dispute the People's contention, which

we conclude concedes the issue. In any event, we agree with the People's reading of

section 1202.4, subdivisions (b) and (b)(1), and thus conclude the abstract of judgment

correctly states the amount Smith owes in restitution.

However, as to the court security fee imposed by the trial court pursuant to former

section 1465.8, the People concede the trial court imposed the amount of the fee per

conviction recommended in the probation officer's report, which was $20. The abstract

of judgment lists $90 as the total court security fee, or $30 per conviction. Because the

court's oral pronouncement was to impose a $20 fee per conviction as provided in the

probation report (see People v. Mesa (1975) 14 Cal.3d 466, 471 [when a discrepancy

exists between the oral pronouncement rendering judgment and the minute order or

abstract of judgment, the former controls]), we conclude the abstract of judgment must be

53
amended to show court security fees in the total amount of $60 as provided in former

section 1465.8, subdivision (a)(1).21

Finally, Smith argues, and the People concede, that the trial court improperly

imposed a 10-year consecutive sentence on the gang enhancements. (See People v.

Lopez (2005) 34 Cal.4th 1002, 1007-1011 [imposition of both the 15-year minimum

parole eligibility period under section 186. 22, subdivision (b)(5) and the 10-year

enhancement under section 186.22, subdivision (b)(1)(C) is unauthorized].) We agree

with Smith.

DISPOSITION

The matter is remanded to the trial court with directions: (1) to stay pursuant to

section 654 the imposition of sentence on count 3 for Smith's conviction of active

participation in a criminal street gang in violation of section 186.22, subdivision (a); (2)

to amend the abstract of judgment (i) to reflect the section 654 stay of execution of

sentence on count 3, (ii) to show court security fees in the total amount of $60 as

provided in former section 1465.8, subdivision (a)(1) and (iii) to delete the 10-year gang

enhancement imposed under section 186.22, subdivision (b)(1)(C); and (3) to forward a

21 Smith also argues the abstract of judgment erroneously indicates the trial court
imposed a 15-year determinate term. The People contend no such error exists in the
abstract of judgment, as it shows Smith was sentenced to an indeterminate term of 15
years to life, which mirrors the oral pronouncement of judgment. Our independent
review of the abstract of judgment confirms the People's position, one that Smith did not,
in any event, oppose in his reply to respondent's brief.
54
copy of the modified abstract of judgment to the California Department of Corrections

and Rehabilitation. In all other respects, the judgment of conviction is affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

HALLER, J.

55