People v. Corder CA2/5

Filed 5/16/22 P. v. Corder CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B261370

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA073839)
v.
ORDER MODIFYING OPINION
BRIAN BOSEMAN CORDER et AND DENYING PETITION FOR
al., REHEARING
[There is no change in judgment]
Defendant and Respondent.

BY THE COURT:

It is ordered that the opinion filed herein on April 14, 2022,
is modified as follows: On page 24, in the first full paragraph,
second sentence delete “argued that Crutchfield was” and add
“explained the elements necessary to find defendants guilty
under the natural and probable consequences theory as set forth
in the instructions, but her argument focused on Crutchfield’s
role as”. At the end of the second sentence insert “In her
rebuttal, the prosecutor made no mention of the theory.”
The sentences, as modified by this order, shall read as
follows: She explained the elements necessary to find defendants
guilty under the natural and probable consequences theory as set
forth in the instructions, but her argument focused on
Crutchfield’s role as a direct aider and abettor of the attempted
murder. In her rebuttal, the prosecutor made no mention of the
theory.
There is no change in judgment.
Appellant Crutchfield’s petition for rehearing is denied.

____________________________________________________________
RUBIN, P. J. BAKER, J. MOOR, J.

2
 Filed 4/14/22 P. v. Corder CA2/5 (unmodified opinion)
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B261370

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA073839)
v.

BRIAN BOSEMAN CORDER et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Dalila Corral Lyons, Judge. Affirmed,
remanded with directions.
John A. Colucci, under appointment by the Court of Appeal,
for Defendant and Appellant Brian Boseman Corder.
Lynda A. Romero, under appointment by the Court of
Appeal, for Defendant and Appellant Frederika Carmouche.
Mark R. Yanis, under appointment by the Court of Appeal,
for Defendant and Appellant Stephon Crutchfield.
 Rob Bonta and Xavier Becerra, Attorneys General, Lance
E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Idan Ivri and David
A. Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________

This case involves charges against defendants and
appellants Brian Boseman Corder, Fredericka Carmouche, and
Stephon Crutchfield, based on an attack on Corder’s wife, GiGi.
In count 1, Corder and Carmouche were found guilty of
conspiracy to commit murder.1 (Pen. Code, § 182, subd. (a)(1).)2
All three defendants were found guilty of willful, deliberate, and
premeditated attempted murder in count 2 (§§ 187, subd. (a), 664,
subd. (a)), torture in count 4 (§ 206), and mayhem in count 5
(§ 205).3 Carmouche and Crutchfield were convicted of burglary
in count 3.4 (§ 459.) The jury also found true the allegations that
Carmouche and Crutchfield personally inflicted great bodily
injury on the victim (§ 12022.7, subd. (a)), and that Carmouche

1 Crutchfield was found not guilty in count 1.

2All statutory references are to the Penal Code unless
otherwise specified.

3Defendants were found not guilty of aggravated mayhem
in count 5, but were convicted of the lesser offense of mayhem.

4The burglary charge against Corder in count 3 was
dismissed pursuant to a section 995 motion.

2
personally used dangerous and deadly weapons within the
meaning of section 12022, subdivision (b)(1), in counts 2 and 3.5
The trial court sentenced Corder to 25 years to life in count
1, and imposed and stayed sentences pursuant to section 654 in
counts 2, 4, and 5. Carmouche was also sentenced to 25 years to
life in count 1, with the sentences in counts 2–5 and the section
12022, subdivision (b)(1), and section 12022.7, subdivision (a)
enhancements imposed and stayed under section 654.
Crutchfield was sentenced to life in prison in count 2, plus three
years for personal infliction of great bodily injury, with sentences
imposed and stayed under section 654 in counts 3–5.
On appeal, all three defendants contended that the trial
court erred in allowing the jury to consider a natural and
probable consequences theory of aiding and abetting the
attempted premeditated murder in count 2, and in refusing to
require the victim to review documents that she stated would not
help refresh her memory. Corder and Carmouche further
contended that: (1) the trial court erred in failing to sua sponte
instruct on lesser included offenses of conspiracy to commit
murder; (2) the trial court erred in allowing the jury to consider
both an act subsequent to the target offense and the agreement
itself as overt acts in furtherance of conspiracy to commit
murder; (3) their convictions for torture were not supported by
substantial evidence; and (4) they were prejudiced by cumulative
errors at trial. Finally, Corder separately contended the trial
court erred in prohibiting a defense witness from testifying in his
Marine Corps uniform, and in excluding evidence that Corder

5The jury found not true allegations that Crutchfield
personally used a dangerous and deadly weapon.

3
suffered from posttraumatic stress disorder (PTSD).6 We
affirmed the convictions. (People v. Corder (Dec. 19, 2016,
B261370) [nonpub. opn.].)
Defendants petitioned for review arguing that their
convictions for attempted murder on a natural and probable
consequences theory were prohibited by the United States
Supreme Court’s opinion in Alleyne v. United States (2013) 570
U.S. 99 (Alleyne) and our Supreme Court’s decision in People v.
Chiu (2014) 59 Cal.4th 155 (Chiu). Our Supreme Court granted
review but deferred briefing pending consideration and
disposition of People v. Mateo, S232674 (Mateo) or further order
of the court. (S239594, Mar. 22, 2017.)
On April 10, 2019, after Senate Bill No. 1437 (Stats. 2018,
ch. 1015, § 1(f), p. 6674) (Senate Bill 1437) went into effect, the
Supreme Court transferred the matter back to this court with
directions to vacate our decision and reconsider the case in light
of Senate Bill 1437.
We vacated our December 19, 2016 opinion and issued a
revised opinion addressing all of defendants’ arguments,
including their new arguments relating to Senate Bill 1437. We
again affirmed the trial court’s judgment.
Defendants again petitioned for review, this time arguing
that Senate Bill 1437 applied to their convictions for attempted
murder. Our Supreme Court granted review but deferred

6 In his opening brief, Corder joined in any contentions of
his codefendants that accrued to his benefit. (Cal. Rules of Court,
rule 8.200(a)(5).) Subsequent to filing her opening brief,
Carmouche joined in several of the contentions listed above,
providing additional argument by letter, filed with the court on
May 17, 2016.

4
briefing pending consideration and disposition of a related issue
in People v. Lopez, S258175, or further order of the court.
On December 22, 2021, the Supreme Court transferred the
matter back to this court with directions to vacate our decision
and reconsider the case in light of Senate Bill No. 775 (Stats.
2021, ch. 551, § 2) (Senate Bill 775), which became effective on
January 1, 2022.
We vacated our November 20, 2019 opinion, and now issue
this revised opinion addressing all of defendants’ arguments,
including their new arguments relating to Senate Bill 775 and
recently enacted Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1)
(Assembly Bill 518), which defendants briefed as permitted under
California Rules of Court, rule 8.200.7 We remand the matter as
to all defendants for the limited purpose of allowing the trial
court to determine whether to exercise its discretion under
Assembly Bill 518, but otherwise affirm the trial court’s
judgment.

7 Crutchfield’s request to file supplemental briefing on the
issue of “natural and probable consequences torture” was denied
by order of this court on January 20, 2022. We do not consider
the arguments pertaining to that issue contained in his
supplemental brief.

5
 FACTS

Prosecution

GiGi and Corder’s Relationship

GiGi, the victim, had been married to Corder for about six
years at the time of the charged offenses. GiGi lived in an
apartment in Canoga Park. Corder was an active duty member
of the Marine Corps, stationed in San Pedro. Corder came home
when he could.
GiGi and Corder had a rocky, sometimes violent, marriage.
Corder tackled and punched GiGi once when she confronted him
about e-mails he had sent to other women. GiGi’s mother
witnessed Corder straddling GiGi and punching her in the face.
Corder tried to kill both himself and GiGi once by repeatedly
turning off the car engine on a freeway, and then zigzagging
between lanes. Corder threatened GiGi in their frequent
arguments, saying things like: “Bitch, I’m done with you, I’m
fucking going to kill you,” and “You’re fucking not going to wake
up tomorrow morning. You’re dead tonight.” Corder told GiGi he
would end up in jail for hurting her. GiGi admitted responsibility
for some of the violence. She once hit Corder with a broom after
he verbally abused her.
In March 2012, GiGi told Corder she was pregnant. Corder
was irate. He told GiGi, “This is bad. This is all bad. This is
going to kill us.” He also said, “Oh, my God, you need to have an
abortion. We can’t have this baby. This will kill us.” He sent
GiGi text messages threatening her and telling her to get an
abortion. Corder threatened to stop paying the rent and the bills

6
when GiGi told him that she would not get an abortion. They
began receiving “three day” notices because Corder had not paid
the rent. GiGi called Corder’s commanding officer and informed
him that Corder had threatened her, pressured her to have an
abortion, and stopped paying their bills. Corder’s attitude
changed completely after the call. He apologized.

The Attack

On June 15, 2012, GiGi was four months pregnant and
suffering from severe nausea. She contacted Corder that
morning, asking him to come home and help her. He said that he
would come as soon as he could, but he did not return. GiGi
continued to text and call him throughout the day, becoming very
angry. She texted Corder: “If you don’t come back and make this
right, you will regret it, I promise you.”
Someone pounded on the front door of GiGi’s apartment
around 10:00 o’clock that evening. GiGi went to see who it was
and saw a finger covering the peephole, something Corder would
often do, so she unlocked the door. She went back to bed,
thinking that Corder heard her unlocking it and would come in.
Instead, she heard the door close. She texted Corder, “Where are
you? Did you just come and leave? What happened?” Corder
eventually called GiGi and told her he had not been at the door.
He said he was at school and would be back soon.8
Around midnight, GiGi heard someone throwing rocks at
her patio doors, something Corder would do when he forgot his
keys. She turned on the outside light and saw Corder, who

8 Corder attended the Los Angeles Film and Recording
School.

7
waved at her. GiGi turned off the light and went to open the
front door for Corder. She was naked because she had just
thrown up on her clothing.
When GiGi opened the door, Crutchfield burst through and
tackled her to the ground “like a linebacker.” He straddled GiGi
and punched her in the face relentlessly. GiGi fought back. She
screamed for help. She screamed that she was pregnant, and
called Corder’s name. She thought Crutchfield was going to rape
her.
Carmouche came into the apartment behind Crutchfield.
She rummaged through the kitchen cabinets, pulling out various
objects, including candelabras, a Pyrex dish, and a frying pan,
which she then used to hit GiGi on the head. GiGi was in terrible
pain. She was afraid for her life and for her baby. Crutchfield
continued to punch GiGi on her face and chest while Carmouche
hit GiGi’s head. GiGi screamed, “My husband’s coming. I’m
pregnant. Help me.” Someone responded, “Your husband’s not
coming, bitch.” GiGi screamed and begged for help throughout
the attack. One of her attackers said, “The bitch won’t die.” As
this was happening, GiGi saw Corder sitting on the bed. She
only saw his legs, but she was certain it was Corder. GiGi was
hit in the face with a frying pan and lost two teeth. She believed
that both Corder and Carmouche hit her with the frying pan at
different times during the attack.
Carmouche grabbed GiGi’s neck and wrenched it so hard it
went numb. Carmouche grabbed GiGi’s face, tilted GiGi’s head
sideways, and sliced GiGi’s throat repeatedly with pieces of a
broken Pyrex dish. She stabbed GiGi’s breasts. GiGi thought she
was going to die, and that her attackers would not stop until they
believed she was dead. She played dead to protect her baby.

8
Carmouche covered GiGi’s nose and mouth with her hands until
GiGi passed out.
When GiGi regained consciousness, she was lying on her
bedroom floor surrounded by broken glass. She crawled to the
phone on the nightstand and called her mother for help. The call
ended when someone hit GiGi over the head and she blacked out
a second time.
GiGi’s mother called 911 at 12:52 a.m. She told the
dispatcher that her daughter had just called and was being
attacked.
Kathy Aguirre was visiting her family in an apartment in
the building where GiGi resided. She heard a very loud thump
and a woman screaming for help. The woman also screamed that
she was pregnant. Aguirre called the police at 12:41 a.m. They
arrived soon afterward.
Jane Hankins, who also lived in the building, heard loud
yelling, thumping, and glass breaking. A woman yelled, “Get out,
get out, get out,” at least 50 times. “It was very severe, emotional
yelling.” Hankins called 911 at 12:37 a.m. She told the
dispatcher that someone was “just screaming their head off.”
After she hung up the phone, the door to GiGi’s apartment
slammed shut and Hankins heard someone sobbing.
The police called Hankins to get the security code for the
building at 12:51 a.m. She could not remember the code, so she
went to open the door. As she was going to the door, a man
yelled, “Help. Somebody call 911.” She thought the man was
GiGi’s husband or boyfriend.
Los Angeles Police Officer Jeffrey Johnson and his partner
arrived at the apartment at around 12:40 a.m. The front door
was partially open. GiGi was lying on the floor, covered in blood,

9
with injuries to her head. Corder was tending to her. GiGi
repeatedly asked about her phone and her dog. She did not
answer the officers’ questions. The officers observed red stains on
the wall over GiGi’s bed; her pillow; the nightstand; a folding
knife and pink bowl on the nightstand; the carpeting, bedding,
sliding glass door, and blinds; broken chair legs, one of which was
found on the bed; a phone on the kitchen counter; a frying pan; a
broken candelabra; a shoeprint in the kitchen; a fan; the exterior
door knob; and outside of the apartment. There were broken
fixtures and furniture, including a fan and a chair. There was
broken glass throughout the apartment. Broken teeth were
discovered near the bed. It looked as if an “extreme struggle” had
taken place.
Forensic Nurse Examiner Sandra Wilkinson examined
GiGi at the Northridge Hospital emergency room on June 16,
2012. She observed numerous cuts on GiGi’s body, linear
abrasions on her back, blood smears on the soles of her feet, and
two missing fingernails, which were likely defensive wounds.
GiGi had multiple cuts on both hands, which also appeared to be
defensive wounds. GiGi had subconjunctival hemorrhages
consistent with strangulation, a deep incision beside her right
eyebrow, bruising to the neck and jaw, and numerous shallow
and deep incisions. She sustained a cut close to the right carotid
artery, which could have been fatal had the carotid artery been
severed. GiGi’s lips were swollen; she had missing teeth, as well
as a cut that created a total separation from her lip to her nose.
There was a deep cut on GiGi’s right upper chest. Her entire
body was smeared with blood.

10
 The Investigation

Interviews of GiGi

Detective Rene January and her partner interviewed GiGi
at 8:25 p.m. on June 16, 2012. The interview took place in the
hospital, about an hour after GiGi was awoken from an induced
coma. A breathing tube had just been removed from GiGi’s
throat, and she was having difficulty speaking. GiGi was still
groggy and felt “drugged.” She said she “didn’t know right from
left.”
GiGi told the detectives Corder had been outside throwing
pebbles at the sliding glass door. She did not know there were
people waiting to attack her. She was “99.999 percent” certain
Corder had not done this to her. She said a man and a woman
attacked her. Both of them had cut her with sharp objects. The
man and the woman were hurting her simultaneously at one
point in the attack.
Later, GiGi’s mother asked her what had happened. GiGi
said three people came into her apartment. Two of the people
were strangers, but she thought the third person was Corder.
Her vision was blurred, so she could not be certain. The female
attacker kept saying, “Just die. Just die.” GiGi thought the
female attacker also said, “The bitch won’t die. The bitch won’t
die.” GiGi said she was naked when she was attacked.
GiGi’s mother called the police to inform them that she was
more alert and could remember additional details. Detective
January conducted a second interview on June 18, 2012. Corder
had been arrested by that time. GiGi told Detective January that
Corder was sitting on the foot of the bed as her attackers were

11
beating her. GiGi did not see Corder’s face, but she had been
married to him for years and knew his legs and pants.9 She was
certain Corder had been there.10
GiGi described the man who attacked her as Black with a
short afro and buggy eyes. She thought he might have had some
hair on his chin. He was about five feet six inches, or five feet
eight inches, and in his 20s or 30s. The female attacker was a
thin Black woman with short straightened black or brown hair.
She was about five feet six inches to five feet seven inches tall.
The woman wore blue denim capri pants with a belt, gloves, a
pink shirt with writing and glitter on it, and a denim jacket that
was shorter than her pink shirt. GiGi said the woman was
wearing latex gloves, which she felt on her face during the attack.
GiGi thought her husband was outside during the initial
attack, because he had just thrown pebbles at the sliding glass
door. She told her attackers that her husband was outside. They
responded, “Your husband is not coming, bitch. Die, bitch, die.”
Once she was on the ground, the first male attacker was
“[p]unching her furiously, like a maniac.” GiGi remembered
being hit with a skillet, a Pyrex dish, and five glass candelabras.
The woman dropped the Pyrex dish on GiGi’s head, and then

9Other witnesses had seen Corder wearing shorts.
Hankins said that Corder was wearing shorts when he called out
for someone to help GiGi. GiGi’s mother said that Corder was
wearing shorts with blood on them at the hospital.

10 GiGi testified that at the time of the first interview she
was having trouble accepting the fact her husband had done this
to her. She had also originally told the police she put a robe on
before answering the door because she was embarrassed about
being naked.

12
picked up pieces of the glass. She grabbed GiGi’s face, tilted her
head sideways, and tried to slit her throat repeatedly. She looked
GiGi in the eyes and stabbed her breasts.11

Interview of Corder

Los Angeles Police Detectives Maria Dingman and
Macchiarella spoke to Corder at Northridge Hospital on June 16.
Corder said he had last spoken to GiGi at about 11:00 p.m.
Corder went from the Marine base to his father’s home, and then
attended a class from 8:30 p.m. to 11:30 p.m. He arrived at the
apartment at about 12:15 a.m.
During the interview, Detective Macchiarella viewed text
messages on Corder’s telephone. He asked Corder to show him a
text message from “Fame.”12 Corder said he deleted it.

Interview of Crutchfield

Detective Richard Moakley interviewed Crutchfield on
June 16. Crutchfield said he had been at school for a morning
class and spent the rest of the day with a friend. He did not
mention going to GiGi’s apartment.

11GiGi inconsistently stated that the female attacker only
beat her on her head and cut her throat.

12 “Fame” was a name used by Crutchfield.

13
 Carmouche and Corder’s Medical Examinations

Dr. William Jou treated Carmouche at the emergency room
at Kaiser Panorama City Medical Center around 1:00 p.m. on
June 16. Carmouche said she had cut her knee and hands when
she fell on broken glass approximately 11 hours earlier.
Nurse Wilkinson examined Corder on June 16. She noted
that there was blood on his hands, fingernails, and penis. He had
superficial cuts.

The Relationship of the Three Defendants

Corder met Carmouche and Crutchfield at the Los Angeles
Film and Recording School in Hollywood, which they all
attended. On April 17, 2012, Carmouche texted Corder, “Morn,
Lovely. Yes, I have been drawn to you since day one. We should
def get together soon and chill. I have a good feeling about you
. . . .” On May 4, 2012, Carmouche texted, “What are your turn-
ons?” Corder replied, “Sexy outfits and touching, i.e., massages,
oral, et cetera. All relaxing things like that.” Carmouche sent
texts to various people indicating that she and Corder were in a
romantic relationship. On June 11, 2012, Carmouche texted
Crutchfield that she loved Corder and would do “dumb shit” for
him. On June 13, 2012, she texted Corder, “Believe no matter
what I will take care and protect you” and “I wld do everything
for you.” Carmouche texted a friend the same night, threatening
to kill the friend if he interfered with her relationship with
Corder. She texted, “Yes tht was a threat. I love Brian. Nothing
will keep me from him. If u r willing to wrk around tht, then we
are fine.” Carmouche texted Crutchfield around noon on June 16,

14
2012, “We’re so close and I really do love Brian. I have never
actually loved any man before and for me to do dumb shit.”
There were text messages between the three defendants in the
days before GiGi was attacked.

Defendants’ Whereabouts Prior to the Attack

Records of the Los Angeles Film and Recording School
indicated that all three defendants were enrolled, but that none
had attended classes during the first week of June 2012. They
were later dropped from their courses. On June 15, 2012,
Corder’s identification badge was used to enter the school at 8:32
p.m. Still photographs from the school’s surveillance cameras
showed Corder entering the lobby at 10:03 p.m., and walking
around inside the building at 10:36 p.m. Corder’s cell phone
records indicated that his phone was near the school at 10:00
p.m. and that his phone was used to call Crutchfield’s phone.
Carmouche’s cell phone records indicated that her phone
was near GiGi’s apartment at 10:08 p.m., 10:40 p.m., and 10:41
p.m. Crutchfield’s phone records placed his phone near the film
school at 11:26 p.m. and 11:30 p.m. In a deleted text Crutchfield
sent to Corder at 11:31 p.m. on June 15, he wrote, “Outside.”
Video surveillance from the school showed Crutchfield entering
the building at 11:32 p.m. The surveillance video showed Corder
in the film school at 11:27 p.m., and leaving the building at 11:35
p.m.

15
 Defendants’ Whereabouts and Communications
Following the Attack

Cell phone records showed calls of 30-second duration
between Carmouche and Crutchfield at 12:53 a.m. and 12:55 a.m.
on July 16. Ten telephone calls were placed from Carmouche’s
phone between 12:53 a.m. and 1:51 a.m., including one to
Crutchfield. Phone records showed that Crutchfield’s phone was
still in Canoga Park at 12:54 a.m.
Corder’s phone received several text messages between 3:53
a.m. and 4:33 a.m., including a message from Crutchfield at 4:33
a.m. There was an 11-minute call between Corder and
Crutchfield at 4:22 a.m.

Physical Evidence

On June 20, 2012, four swabs that showed a positive
reaction for possible blood were collected from a 2005 silver
Jaguar. The Jaguar was owned by Corder’s father and Corder
drove it regularly. Also collected were swabs of possible
biological material from the mouth of a water bottle, the mouth of
a plastic bottle in the rear left foot space, the textured grip of an
airsoft pistol found in the car, and the rear-facing edge of the
front right backrest. Corder’s clothing, including his boots, socks,
green swimming trunks, and white plaid shorts, were collected
for analysis.
Criminalist Monica Zielinski took swabs from the screen
and keypad of the cell phone recovered from GiGi’s kitchen
counter for DNA testing. She also took a reference sample of

16
GiGi’s blood, and buccal swabs from Corder, Carmouche, and
Crutchfield.
Criminalist King Chow sent samples from bloodstains from
the rear center seat of Corder’s car, the right seat, the interior
right door, and the rear bumper; white, green and yellow shorts;
gray and black Air Jordan shoes; a steel folding knife; and a
frying pan for DNA testing. All of the items had reddish stains
and a preliminary test for blood yielded positive results.
DNA analyst Stephanie Sivak initially received six items of
evidence, including two swabs from the cell phone and the
reference samples from GiGi and defendants. She later received
four samples from stains in the Jaguar, two samples from red
stains on a knife, two samples from red stains on a frying pan,
one sample from a red stain on a pair of shorts, and one sample
from a red stain on a right shoe. The red stain from the rear
center seat of the Jaguar matched Carmouche’s DNA profile. A
stain from the front right seat contained a mixed profile, with
Carmouche as the major contributor and GiGi as a minor
contributor. The red stain on the rear bumper matched GiGi’s
DNA profile. The red stain from the interior right door of the car
and the stain on the shorts both matched Crutchfield’s DNA
profile. The stain from the handle of the frying pan matched
Carmouche as the major DNA contributor and GiGi as the minor
contributor. The red stains on the bottom of the frying pan
matched GiGi’s DNA profile. The red stain on the right shoe
contained a mixture of DNA profiles, including GiGi’s DNA
profile as the major contributor and Carmouche’s as the minor
contributor.
On June 20, 2012, 29 fingerprints were lifted from the
Jaguar. The prints from the outside of the trunk were

17
Carmouche’s fingerprints, prints from the inside of the passenger
door were Crutchfield’s, and prints from inside the driver’s side
front door pocket were Corder’s.
A search of Carmouche’s residence yielded a wig with
reddish-brown hair, a pink tank top, and a pair of black jeans.

Defense13

Crutchfield

A forensic print specialist testified that prints from the
folding knife found in GiGi’s apartment did not match
Crutchfield’s fingerprints.
Crutchfield’s mother, his aunt, and the assistant principal
from his high school testified to his good character.
Crutchfield testified on his own behalf. He met Corder and
Carmouche in a class at the Los Angeles Film and Recording
School. He believed Carmouche had a romantic interest in
Corder, but the feeling was not mutual. Corder told Crutchfield
that GiGi was mistreating him and hitting him. Corder and
Crutchfield agreed that Crutchfield would scare GiGi so that
Corder could “rescue” her. The plan was for Corder to throw
stones at the patio doors so that GiGi would unlock the front door
for Crutchfield to get inside the apartment. Corder said he
thought he could make GiGi appreciate him more by playing the
hero. Crutchfield knew GiGi was pregnant and believed that
Corder wanted the baby.

13
Carmouche did not present testimony or evidence on her
own behalf.

18
 Carmouche was not originally included in the plan to scare
GiGi. Crutchfield asked her if she wanted to participate on the
night of the attack, and Carmouche agreed. Crutchfield and
Carmouche did a “test run” that night to familiarize themselves
with the building. Crutchfield covered the peephole on GiGi’s
apartment door with his finger so she would not see him.
After the test run, Carmouche and Crutchfield returned to
the film school, where they had been earlier that evening.
Defendants drove from the school to GiGi’s apartment building.
As they were waiting for GiGi to open the apartment door,
Crutchfield saw that Carmouche was carrying a folding knife, but
he did not say anything about it to her. He also noticed that
Carmouche was wearing gloves.
When GiGi opened the door, Crutchfield punched her, and
she stumbled backward. He punched GiGi again and straddled
her, punching her several more times. In total, Crutchfield
punched GiGi about six or seven times. He felt sick to his
stomach because he did not like what he was doing.
Crutchfield heard Carmouche say, “Get her, get her.” She
also said, “Your husband is not coming, bitch.” Crutchfield was
attacked by GiGi’s dog, so he ran into another room, where he
could not see what Carmouche was doing. He heard glass
breaking several times.
Crutchfield and Carmouche left the apartment and ran to
Corder’s car, which was parked a few blocks away. When they
got back to the car, Corder asked what happened to GiGi.
Crutchfield said he did not know. Carmouche did not say
anything.
Crutchfield did not want to kill GiGi. He never agreed to
cut her neck. He thought he would help Corder’s relationship

19
with GiGi by roughing her up. The situation escalated when
GiGi fought back.

Corder

Monda Fakhroo testified that she was visiting friends at
the apartment building where GiGi lived on June 15 or 16, 2012.
Fakhroo saw a Black man jump over a fence. The man asked if
anyone heard his wife screaming.
Marine Sergeant Lonel Springs testified that he met
Corder when they were stationed together at Camp Pendleton in
2005. They served in Fallujah together. On one occasion,
Springs had seen GiGi hit Corder with a broom, which she held
like a baseball bat. Corder had a reputation for being level-
headed, calm, cool, and collected.

DISCUSSION

Attempted Premeditated Murder—Natural and Probable
Consequences

The jury convicted defendants of attempted willful,
deliberate, and premeditated murder. The court instructed the
jury it could find defendants guilty of attempted murder as direct
perpetrators, direct aiders and abettors, or as aiders and abettors
under the natural and probable consequences doctrine.
(CALCRIM Nos. 400 [Aiding and Abetting: General Principles];
401 [Aiding and Abetting: Intended Crimes]; 403 [Natural and
Probable Consequences]; and 600 [Attempted Murder].)

20
 Following transfer back from the Supreme Court,
defendants contend that we should vacate their attempted
premeditated murder convictions pursuant to Senate Bill 775,
which permits a defendant whose attempted murder conviction is
not yet final to challenge on direct appeal the validity of that
conviction based on the changes made to sections 188 and 189 by
Senate Bill 1437. (§ 1170.95, subds. (a) & (g).) The parties agree
that, in light of Senate Bills 1437 and 775, the natural and
probable consequences doctrine is no longer a valid theory of
liability for attempted murder. They further agree that, where
the jury was instructed on both a valid theory and an invalid
theory of liability, the appropriate analysis is whether, after
examining the entire cause, including the evidence, and
considering all of the relevant circumstances, the error was
harmless beyond a reasonable doubt. (People v. Aledamat (2019)
8 Cal.5th 1, 3 (Aledamat) [applying the Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman) harmless error analysis to
alternative-theory error].) Here, the parties disagree only as to
whether the error of instructing the jury on an invalid theory of
liability, in addition to a valid theory, was harmless. We
conclude that it was.
Defendants’ contentions rest on the flawed assumption that
the jury may have based the guilty verdicts for attempted murder
in count 2 on the natural and probable consequences theory of
aiding and abetting. We conclude that all three defendants were
necessarily convicted as either direct perpetrators or direct aiders
and abettors of the attempted premeditated murder, such that
Senate Bill 775 does not bar their convictions.

21
 Corder and Carmouche

In Aledamat, our Supreme Court held that, when the jury
is instructed on both a valid and invalid theory of liability, the
reviewing court may examine “what the jury necessarily did find
and ask[] whether it would be impossible, on the evidence, for the
jury to find that without also finding the missing fact as well.”
(Aledamat, supra, 8 Cal.5th at p. 15.) Section 188, subdivision
(a)(3), provides that, with certain exceptions not applicable here,
“in order to be convicted of murder, a principal in a crime shall
act with malice aforethought.” “Malice is express when there is
manifested a deliberate intention to unlawfully take away the life
of a fellow creature.” (§ 188, subd. (a)(1).)
In this case, Corder and Carmouche were convicted of
conspiracy to commit murder in count 1. To find Corder and
Carmouche guilty of conspiracy to commit murder, the jury had
to first find that Corder and Carmouche intended to kill GiGi.
(See People v. Vu (2006) 143 Cal.App.4th 1009, 1025 [a conviction
of conspiracy to commit murder requires a finding of intent to
kill]; People v. Cortez (1998) 18 Cal.4th 1223, 1226 [conspiracy to
commit murder is necessarily conspiracy to commit premeditated
first degree murder].) Because the jury found that Corder and
Carmouche intended to kill GiGi, they were necessarily convicted
as direct perpetrators or direct aiders and abettors of the
attempted murder, the still valid theories of liability. Any error
in the trial court’s instruction of the jury on the additional,
invalid theory of liability (i.e., as aiders and abettors under the
natural and probable consequences doctrine) was harmless
beyond a reasonable doubt.

22
 Crutchfield

Aledamat further held that “[i]n determining . . . whether
the [alternative theory] error was harmless, the reviewing court
is not limited to a review of the verdict itself. An examination of
the actual verdict may be sufficient to demonstrate harmlessness,
but it is not necessary.” (Aledamat, supra, 8 Cal.5th at p. 13.)
“[A]lternative-theory error is subject to the more general
Chapman harmless error test. The reviewing court must reverse
the conviction unless, after examining the entire cause, including
the evidence, and considering all relevant circumstances, it
determines the error was harmless beyond a reasonable doubt.”
(Ibid.)
With respect to Crutchfield, we hold that the record,
including Crutchfield’s own testimony, demonstrates that he was
either a direct perpetrator or a direct aider and abettor, such that
any error by the trial court in instructing on natural and
probable consequences attempted murder was harmless beyond a
reasonable doubt.
First, the facts overwhelmingly support the conclusion that
Crutchfield was either an aider and abettor or a perpetrator of
attempted murder. By his own admission in his testimony, it
was Crutchfield who first rushed into the apartment and
overwhelmed GiGi. Crutchfield rendered GiGi helpless by
repeatedly punching her. He punched GiGi on her face and chest
while Carmouche hit GiGi’s head, demonstrating that the two
acted together in committing the attempted murder.
Significantly, the jury found that Crutchfield personally inflicted
great bodily injury, a finding consistent with his role as a

23
perpetrator or direct aider and abettor whose conduct facilitated
Carmouche’s attempts to murder GiGi.
Second, the prosecutor did not rely on the natural and
probable consequences doctrine, which she discarded as “just an
alternate theory the judge read to you.” She argued that
Crutchfield was a direct aider and abettor of the attempted
murder.
Finally, the jury was instructed under CALCRIM No. 200:
“Some of these instructions may not apply, depending on your
findings about the facts of the case. After you have decided what
the facts are, follow the instructions that do apply to the facts as
you find them.” “[J]urors are presumed to follow the law as given
to them by the trial court.” (People v. Mejia (2012) 211
Cal.App.4th 586, 627 (Mejia).) “Considering these two principles,
as well as the instructions given as a whole [citation], we are
convinced that the jury would have understood [CALCRIM No.
200] exactly as we have and determined, simply, that it did not
apply.” (Id. at p. 628.)
In sum, after examining the entire cause, we conclude the
error was harmless beyond a reasonable doubt. The facts
overwhelmingly demonstrated that Crutchfield was directly
liable for the attempted murder, either as a perpetrator or an
aider and abettor. These were the only theories that the
prosecutor relied on in argument, and, given that the jury was
instructed that it should apply only the law that applied to the
facts presented, we presume that it did so and ignored the

24
natural and probable consequences instruction. (Mejia, supra,
211 Cal.App.4th at p. 628.)14

Conspiracy to Commit Murder—Overt Acts

On appeal, Corder and Carmouche contended that their
convictions for conspiracy to commit murder must be reversed
because two of the overt acts alleged to have been made in
furtherance of the conspiracy to commit murder were invalid.
They argued that it is impossible to know whether the verdicts
were based on proper overt acts because the jury is not legally
required to unanimously agree regarding which overt acts have
been committed, and in this case the verdict forms did not
indicate which acts formed the basis for the verdicts. We need
not discuss the merits of the contentions, because any error is
harmless beyond a reasonable doubt.15

14 The concurrence suggests that, despite the absence of a
request from any party, we should have issued a stay of this
appeal on our own initiative to permit Crutchfield to file and
pursue a section 1170.95 petition in the trial court. Standing
alone, Crutchfield’s waiver is sufficient reason to abstain from
granting a stay, and we need not set forth our view of other
considerations that might impact a refusal to exercise our
discretion to grant one, even if requested. Suffice to say that
there are myriad reasons in this case strongly suggesting
Crutchfield would be unable to show good cause for a stay of
these appellate proceedings.

15No objection was raised in the trial court to these overt
acts. The Attorney General did not argue Corder and Carmouche

25
 The Law of Conspiracy

“‘A conviction of conspiracy requires proof that the
defendant and another person had the specific intent to agree or
conspire to commit an offense, as well as the specific intent to
commit the elements of that offense, together with proof of the
commission of an overt act “by one or more of the parties to such
agreement” in furtherance of the conspiracy.’ [Citations.]”
(People v. Johnson (2013) 57 Cal.4th 250, 257 (Johnson).) A
defendant cannot be convicted unless at least one overt act is
alleged and proved by the prosecution; the existence of an
agreement in the absence of an act done in furtherance of that
agreement is insufficient to impose liability. (§ 184; People v.
Brown (1991) 226 Cal.App.3d 1361, 1367 (Brown).)
“‘“[A]n overt act is an outward act done in pursuance of the
crime and in manifestation of an intent or design, looking toward
the accomplishment of the crime.” [Citations.]’ [Citation.]”
(Johnson, supra, 57 Cal.4th at p. 259.) An overt act must be
performed before the commission of the offense that was the
object of the conspiracy. (Brown, supra, 226 Cal.App.3d at
p. 1369.) An act committed after the commission of the offense
provides insufficient evidence to support a conviction. (Id. at
pp. 1367–1370.) It is not necessary that each of the conspirators
committed the overt act, or that the act be an element of a crime
or an attempt to commit a crime. (Id. at p. 1369.) Although the
jury must be in agreement that an overt act occurred, it is not
required to agree as to the particular act committed. (People v.
Russo (2001) 25 Cal.4th 1124, 1131, 1133.)

forfeited the issue, and we resolve it on grounds other than
forfeiture.

26
 Analysis

Even if the trial court erred by instructing the jury
regarding certain overt acts, any error is harmless beyond a
reasonable doubt. “Commission of the target offense in
furtherance of the conspiracy satisfies the overt act requirement.”
(People v. Jurado (2006) 38 Cal.4th 72, 121; see also People v.
Padilla (1995) 11 Cal.4th 891, 966 [overruled on another ground
in People v. Hill (1998) 17 Cal.4th 800].) Although the murder
itself was not completed, the jury convicted defendants of
attempted murder, which “requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Lee (2003) 31
Cal.4th 613, 623 (Lee).) It is clear that the jury’s guilty verdict
with respect to attempted murder “effectively embraces” the issue
of whether an act was completed in pursuance of the conspiracy
(People v. Chun (2009) 45 Cal.4th 1172, 1204; see also Aledamat,
supra, 8 Cal.5th at p. 10), and demonstrates definitively that
“‘“an outward act [was] done in pursuance of the crime and in
manifestation of an intent or design, looking toward the
accomplishment of the crime.” [Citations.]’ [Citation.]”
(Johnson, supra, 57 Cal.4th at p. 259). The overt act requirement
is satisfied, as a matter of law, by Corder and Carmouche’s
convictions of attempted murder. For these same reasons, any
error in instructions on overt acts 1 and 5 was necessarily
harmless.16

16 Carmouche’s counsel expressly conceded in argument to
the jury that there was no question the overt acts were

27
Conspiracy to Commit Murder—Lesser Included Offenses

Corder and Carmouche contended that the trial court erred
in failing to sua sponte instruct on lesser included offenses of
conspiracy to murder, including conspiracy to commit assault,
assault with a deadly weapon, and assault with force likely to
produce great bodily injury. There is a split of authority as to
whether allegations of overt acts are to be considered in
determining if there are lesser offenses of conspiracy under the
accusatory pleading test. People v. Fenenbock (1996) 46
Cal.App.4th 1688, 1707 (Fenenbock) held that overt act
allegations are not properly considered for determining whether
there are lesser offenses of conspiracy. People v. Cook (2001) 91
Cal.App.4th 910, 918 (Cook) reached the opposite conclusion,
holding that the pleading of overt acts puts a defendant on notice
of the facts alleged and may be considered in determining
whether conspiracy to commit lesser crimes were committed
under the accusatory pleading test. We need not choose between
the holdings in Fenenbock and Cook, or attempt to parse the
analyses in the cases, because any error in failing to instruct on
conspiracy to commit a lesser included offense is nonprejudicial
given the jury’s verdict finding defendants guilty of attempted

committed. He also stated, “[Did Carmouche] inflict great bodily
injury? [¶] Come on. Look at the pictures. I will not sit here
and insult your intelligence and say she didn’t. She did. No
question about it.” “The blood? . . . They went in there to rough
her up. That should be no surprise.” He also stated that
Carmouche had “obviously” hit GiGi with a frying pan, as
supported by the DNA evidence.

28
willful, deliberate, and premeditated murder.17
Failure to instruct sua sponte on a lesser included offense
in a noncapital case does not require reversal “unless an
examination of the entire record establishes a reasonable
probability that the error affected the outcome.” (People v.
Breverman (1998) 19 Cal.4th 142, 165 (Breverman).) “Error in
failing to instruct the jury on a lesser included offense is
harmless when the jury necessarily decides the factual questions
posed by the omitted instructions adversely to defendant under
other properly given instructions.” (People v. Lewis (2001) 25
Cal.4th 610, 646.) This type of error is prejudicial “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 ([People v.] Watson [(1956)] 46 Cal.2d 818,
836).” (Breverman, supra, at p. 178, fn. omitted.)
By convicting Corder and Carmouche in count 2 of the
attempted willful, deliberate, and premeditated murder of GiGi,
the jury necessarily found each had the specific intent to kill
required for conspiracy to commit murder, rather than some
lesser intent. (People v. Smith (2005) 37 Cal.4th 733, 739
[“‘[a]ttempted murder requires the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing
the intended killing’”]; Lee, supra, 31 Cal.4th at p. 623.) The
jury’s verdict unambiguously shows that Corder and Carmouche
acted with the specific intent to kill, rather than with an intent to
commit some lesser form of assault.

17 Earlier in this opinion, we have upheld defendants’
conviction of attempted willful, deliberate, and premeditated
murder against other challenges.

29
 We also conclude any error was harmless given the
strength of the conspiracy charge against Corder and Carmouche.
Unlike Crutchfield (who had no apparent personal motive to kill
GiGi), Corder and Carmouche had an independent motive to kill
GiGi—to eliminate her and the unborn baby in order to carry on
their romantic relationship. There is no credible evidence that
Crutchfield and Carmouche agreed to merely assault GiGi as
part of a far-fetched plan by Corder to win back her affection, a
result that would have been at odds with Corder’s desire to
terminate the pregnancy and Carmouche’s intent to foster her
romantic interest in Corder. “In determining whether a failure to
instruct on a lesser included offense was prejudicial, an appellate
court may consider ‘whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant
complains affected the result.’ (People v. Breverman, supra, 19
Cal.4th at p. 177; see also People v. Sakarias (2000) 22 Cal.4th
596, 621 [error harmless when evidence supporting lesser offense
was weak].)” (People v. Rogers (2006) 39 Cal.4th 826, 870.) This
is such a case.

Scope of Cross-Examination

Crutchfield, joined with brief comment by Corder and
Carmouche, argued that GiGi’s refusal on three occasions while
testifying to review certain documents because she believed the
documents would not refresh her memory was a deliberate
attempt to evade cross-examination in violation of the Sixth
Amendment right to confront witnesses and Fourteenth

30
Amendment right to due process. Crutchfield specifically
contends that “[i]t was error to allow [GiGi] to refuse to look at a
document and see if it would trigger her memory, and . . . it was
error not to allow the defense to introduce that prior statement so
the jury could evaluate whether it was true and whether GiGi
was being hostile to the defense, a fact which the jury could
properly consider in evaluating her testimony.”
GiGi’s testimony covered approximately 327 pages of
reporter’s transcript. She was subjected to extensive cross-
examination. The three instances disputed by defendants do not
arguably result in a violation of their rights to confront and cross-
examine a witness. Defendants also cannot establish prejudice,
as a detective testified to GiGi’s statements as to two of the
disputed matters, and the detective was never questioned as to
the third. The contention is entirely without merit.

Proceedings

During Crutchfield’s cross-examination of GiGi, she
answered numerous questions and reviewed documents five
times to refresh her memory at counsel’s request before she
declined to review a document because it would not assist her
recollection. Her memory was successfully refreshed twice.
When questioned about her statements to police with respect to
Crutchfield’s knowledge of Carmouche’s participation in the
attack, GiGi stated that reviewing a transcript would not refresh
her memory:
“[Crutchfield’s counsel]: Didn’t you previously tell the
detectives that while Mr. Crutchfield was straddling you, beating

31
you, he didn’t know that Ms. Carmouche was hitting you over the
head with items?
“[GiGi]: How would he not know? He’s straddling me and
she’s hitting me in the head. That doesn’t even make any sense.
“[Carmouche’s counsel]: Objection. Nonresponsive.
Motion to strike.
“The Court: Sustained. Stricken.
“[Crutchfield’s counsel]: Did you tell the detectives that,
though?
“[GiGi]: Not that I remember.
“[Crutchfield’s counsel]: Would it refresh your recollection
to look at the --
“[GiGi]: No.
“[Crutchfield’s counsel]: Your Honor, may I read the
transcript to her?
“The Court: No. She said it would not help her refresh her
recollection. Go on to the next question.”
Following this, Crutchfield’s counsel asked GiGi whether
reviewing documents would refresh her memory three more
times, and she agreed that it might. In two instances, reviewing
the documents was helpful. In another instance, counsel
withdrew her question. Counsel then questioned GiGi regarding
whether she made statements to the police with respect to
Corder:
“[Crutchfield’s counsel]: Three different occasions in the
first interview with the detectives, you told them you were afraid
and they better get [Corder] before he gets to and kills or hurts
whoever did this to you?
“[GiGi]: I don’t remember that.
“[Crutchfield’s counsel]: Would it refresh your recollection?

32
 “[GiGi]: I don’t remember.
“[Crutchfield’s counsel]: Would it refresh your recollection
to look at the transcript?
“[GiGi]: No. No.
“The Court: She said no. Next question.
“[Crutchfield’s counsel]: Is the Court going to allow me to
impeach her with her statement?
“The Court: No, because she said she doesn’t remember.”
“[Crutchfield’s counsel]: Did you tell the detectives on the
first interview that you were 99.999 percent sure that it wasn’t
[Corder]?
“[GiGi]: I don’t remember that. . . . [¶] . . . [¶] . . . [¶]
“[Crutchfield’s counsel]: Would it refresh your recollection
to review the transcript?
“[GiGi]: No, because I don’t remember it.”
Soon afterwards, the court recessed for the day. Out of the
presence of the jury, the court reminded the defense that “I don’t
remember” was not necessarily an inconsistent statement that
would open the door to impeachment.
The next day Crutchfield’s cross-examination of GiGi
continued. At sidebar, counsel expressed concern regarding
whether she would be permitted to impeach GiGi with
statements that GiGi could not remember making to police.
“[Crutchfield’s counsel]: In light of GiGi’s previous
testimony, I don’t want to be in a position where we’re not
allowed to impeach her with Detective January’s testimony,
based on a lot of things she said that she could not remember.
She also did not even care to or agree to look at some of the
defense documents in trying to refresh her recollection. She just
won’t look at it to see.

33
 “The Court: Because she said if you presented such a
document, that it would not refresh her recollection. [¶] She is
not required to look at anything unless she says it would assist
her in refreshing her recollection. If a witness says it will not
help her refresh her recollection, that’s it. [¶] So it is not that
she’s refusing to look at the document. She said two or three
times that looking at a document would not refresh her
recollection.
“[Crutchfield’s counsel]: And it is my perception, based on
her previous testimony through the trial, that that’s her position,
saved just for the defense. [¶] I understand emotionally why she
would not want to assist us, but she is not being that
uncooperative with the [Deputy] District Attorney. I don’t think
there is a time where she will tell the [Deputy] D.A., ‘no, it won’t
refresh my recollection.’
“The Court: You’re speculating. There hasn’t been a time
where the [Deputy] District Attorney has asked her to refresh her
recollection and she says whether it would help her or not. [¶]
Did you ever ask her to refresh her recollection?
“[Prosecutor]: No. [¶] My understanding is she already
stated she was super out of it and on drugs, and just came off a
breathing tube during the first interview, and she doesn’t
remember what she told detectives, and counsel keeps asking
her, and she doesn’t remember.
“[Crutchfield’s counsel]: So is it the court’s position the
court will allows us, for things she says she didn’t remember
and/or didn’t remember and it wouldn’t refresh her recollection to
look at a document, will we be allowed to introduce her
statements through the detective?

34
 “The Court: You cannot impeach her unless there is an
inconsistent statement. Her saying ‘I don’t remember’
occasionally, based on what I have heard so far, it is not
deliberately evasive. It is not intentionally trying to -- that is my
opinion and my finding, that I do not find when she says ‘I don’t
remember,’ given the circumstances in this case, it is very clear to
me that she is not being deliberately evasive. [¶] So it is not -- ‘I
do not remember that word’ does not necessarily equate to
inconsistent. It does in certain cases. Not in this case.”
After continuing discussion on the issue, the trial court
reiterated: “I just want to make sure you’re clear, [counsel]. [¶]
At this point I do not find the witness is being deliberately
evasive when she answers ‘I don’t remember’ or ‘I don’t know.’ I
have not seen that at all. I have been watching her very clearly.
[¶] In this case, more than any other, I have not seen any hint of
that. She’s very forthright. She does not appear to be
intentionally falsifying the ‘I don’t knows,’ or trying to avoid the
answer.”

Law

“The Sixth Amendment of the United States Constitution
grants a criminal defendant the right to confront adverse
witnesses.” (People v. Lopez (2012) 55 Cal.4th 569, 573.) “‘Cross-
examination may expose facts from which jurors can
appropriately draw inferences about the reliability of a witness,
including the possibility of bias. The trial court, however, has
wide latitude to restrict such cross-examination, and such
testimony is properly barred unless the defendant can show the
prohibited cross-examination would have produced a significantly

35
different impression of the witness’s credibility.’ (People v. Brady
(2010) 50 Cal.4th 547, 560; see People v. Smith (2007) 40 Cal.4th
483, 513.)” (People v. Capistrano (2014) 59 Cal.4th 830, 866.)
“The trial court has broad discretion under Evidence Code
section 765 to exercise control over interrogation of witnesses and
protect them from undue harassment or embarrassment. (People
v. Tafoya (2007) 42 Cal.4th 147, 175 [(Tafoya)]; [People v.] Spence
[(2012)] 212 Cal.App.4th [478,] 517 [(Spence)].) On appeal, we
apply the abuse of discretion standard in reviewing a trial court’s
exercise of its authority under Evidence Code section 765.
(Tafoya, at p. 175; Spence, at p. 517.)” (People v. Chenault (2014)
227 Cal.App.4th 1503, 1514.)
Feigned memory loss does not implicate the constitutional
right to cross-examine witnesses. “The circumstance of feigned
memory loss is not parallel to an entire refusal to testify. The
witness feigning memory loss is in fact subject to cross-
examination, providing a jury with the opportunity to see the
demeanor and assess the credibility of the witness . . . . ‘[T]he
traditional protections of the oath, cross-examination, and
opportunity for the jury to observe the witness’s demeanor satisfy
. . . constitutional requirements.’ (United States v. Owens
[(1988)] 484 U.S. [554,] 560.) In the face of an asserted loss of
memory, these protections ‘will of course not always achieve
success, but successful cross-examination is not the constitutional
guarantee.’ (Ibid.)” (People v. Gunder (2007) 151 Cal.App.4th
412, 420 (Gunder).)

36
 Analysis

Based on the above authorities, we reach the following
conclusions. First, GiGi was subject to constitutionally adequate
cross-examination designed to demonstrate her bias and lack of
recollection. After over 300 pages of examination in the
reporter’s transcript, we have no difficulty in finding compliance
with the Sixth Amendment.
Second, even if GiGi feigned a lack of memory by refusing
to attempt to refresh her recollection, defendants’ constitutional
rights were not violated. (Gunder, supra, 151 Cal.App.4th at
p. 420.)
Third, defendants pointed to no precedent in support of
their contention that the trial court must require a witness to
review a document to refresh her memory after the witness has
stated that such review will not be helpful. The trial court did
not abuse its considerable discretion to control the mode of
questioning when it ruled GiGi was not evasive in the few
instances in which she declined to attempt to refresh her
recollection.
Fourth, the jury was able to observe GiGi’s demeanor when
she testified that she could not remember what she said to the
police. The jurors were able to make their own determination as
to whether her answers were credible. The trial court instructed
the jury pursuant to CALCRIM No. 226 to consider how well a
witness could perceive the subject matter of her testimony, the
ability of a witness to remember and describe what happened, the
behavior of a witness while testifying, the attitude of a witness
about the case and about testifying, and whether a witness made
prior consistent or inconsistent statements. This instruction

37
provided the jury with the necessary tools to assess GiGi’s several
refusals to consider refreshing her memory, and afford that
conduct whatever weight it deserved.
Fifth, defendants cannot establish prejudice. (People v.
Byron (2009) 170 Cal.App.4th 657, 676 [Confrontation Clause
violations are subject to federal harmless-error analysis under
Chapman v. California (1967) 386 U.S. 18, 24]; see People v.
Ledesma (2006) 39 Cal.4th 641, 709 (Ledesma).) Detective
January specifically testified to the statements that were the
subject of the last two unsuccessful requests to refresh GiGi’s
recollection, and the detective was not even asked about the first
statement in dispute. The jury therefore heard testimony
regarding two of the prior statements, and defendants made no
attempt to bring out the third statement.

Evidence Supporting Torture Convictions

Carmouche contended that there was insufficient evidence
to support her conviction for torture because the evidence did not
demonstrate that she intended to cause cruel or extreme pain or
suffering for the purpose of revenge, extortion, persuasion, or any
sadistic purpose. Corder joined in her contention, arguing that if
the evidence was insufficient to support Carmouche’s torture
conviction, his conviction as an aider and abettor must also be
reversed. Substantial evidence supports both convictions.

Law

In assessing a claim of insufficiency of evidence, the
appellate court’s task is to review “the whole record in the light

38
most favorable to the judgment . . . to determine whether it
discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) The
federal standard of review is to the same effect: under principles
of federal due process, review for sufficiency of evidence entails
not the determination whether the reviewing court itself believes
the evidence at trial establishes guilt beyond a reasonable doubt,
but, instead, “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307,
319–320.) Where substantial evidence supports the jury’s
finding, and other circumstances support a contrary finding, the
jury’s finding will not be reversed. (People v. Stanley (1995) 10
Cal.4th 764, 793.)
Section 206 provides: “Every person who, with the intent
to cause cruel or extreme pain and suffering for the purpose of
revenge, extortion, persuasion, or for any sadistic purpose,
inflicts great bodily injury as defined in Section 12022.7 upon the
person of another, is guilty of torture. [¶] The crime of torture
does not require any proof that the victim suffered pain.”
“‘Courts have interpreted intent to inflict “cruel” pain and
suffering as intent to inflict extreme or severe pain.’ (People v.
Burton (2006) 143 Cal.App.4th 447, 452 [(Burton)].)” (People v.
Hamlin (2009) 170 Cal.App.4th 1412, 1426 (Hamlin).) “‘Absent
direct evidence of such intent, the circumstances of the offense
can establish the intent to inflict extreme or severe pain.’
(Burton, supra, 143 Cal.App.4th at p. 452.)” (Hamlin, supra, at

39
p. 1426.) It is not necessary that the defendant cause prolonged
pain, or intend to do so. (Id. at p. 1427.) “A jury may consider
the severity of the wounds in determining whether defendant
intended to torture. (People v. Mincey (1992) 2 Cal.4th 408, 432–
433.)” (Burton, supra, at p. 452.) “‘[A] jury may [also] infer
intent to cause extreme pain from a defendant who focuses [her]
attack on a particularly vulnerable area, such as the face, rather
than indiscriminately attacking the victim.’ [Citation.]”
(Hamlin, supra, at pp. 1426–1427.) Intent can be reasonably
inferred when the defendant “deliberately strikes [her] victim on
an area of the body that is already injured.” (Id. at p. 1430.)
“‘[S]carring and disfigurement constitute strong circumstantial
evidence of intent to inflict severe pain and suffering.’ (People v.
Baker (2002) 98 Cal.App.4th 1217, 1224.)” (Burton, supra, at
p. 452.)

Analysis

Crutchfield rushed GiGi, punching her multiple times and
knocking her to the floor. Carmouche knew that Crutchfield had
hit GiGi in the head and continued to do so, yet she attacked
GiGi mercilessly, using various weapons to batter, bruise, stab,
and slash GiGi’s injured face and her breasts. She focused her
attack on these specific, vulnerable areas of the body, attacking
repeatedly. GiGi’s wounds were severe. She lost fingernails
while trying to ward off her attackers. Carmouche hit GiGi in
the head with a frying pan, knocking out two of her teeth. She
sliced GiGi’s neck numerous times and then covered her mouth
and nose until she lost consciousness. Following the attack, GiGi
was placed in a medically induced coma, requiring a breathing

40
tube. Her face and neck were permanently scarred, as the jury
recognized when it convicted defendants of mayhem. (See People
v. Newby (2008) 167 Cal.App.4th 1341, 1347 [mayhem requires a
finding that the victim sustained “a permanent disfiguring
injury”].) These facts strongly support the jury’s finding that
Carmouche intended to torture GiGi.
We are not persuaded by the cases Carmouche relies upon
to argue that torture requires more than the facts of this case
demonstrate. That there are other cases in which the injuries
suffered were more severe and the acts committed even more
horrifying is of no moment. “There is no question there are cases
in which the acts of torture were more gruesome. However,
‘[w]hen we decide issues of sufficiency of evidence, comparison
with other cases is of limited utility, since each case necessarily
depends on its own facts.’ (People v. Thomas (1992) 2 Cal.4th
489, 516.)” (People v. Odom (2016) 244 Cal.App.4th 237, 248.)
The facts of this case amply support a finding of intent to torture.
Finally, there was substantial evidence that Carmouche
tortured GiGi “for the purpose of revenge, extortion, persuasion,
or [another] sadistic purpose.” (§ 206.) Evidence was presented
that Carmouche was infatuated with Corder. She told him she
would do anything to protect him. She told Crutchfield she would
do “dumb shit” on Corder’s behalf. GiGi was Corder’s wife and
was carrying his child. It would be reasonable for the jury to
infer that Carmouche took sadistic pleasure in torturing and
permanently disfiguring a perceived rival. Her concentration on
GiGi’s face and breasts in a way that permanently disfigured and
scarred GiGi further corroborates this inference. In light of the
facts, we conclude that Carmouche and Corder’s torture
convictions were supported by substantial evidence.

41
Witness Attire

Corder next argued that the trial court abused its
discretion by requiring a fellow Marine who testified on his
behalf to appear in civilian clothing. Corder argued that his
witness, Lonel Springs, was prevented from presenting himself in
the best possible light, which would have increased his credibility
with the jury. He asserted that as an on-duty Marine, Springs
should have been permitted to wear his uniform. We conclude
that, even if the trial court abused its discretion, Corder’s
contention fails because he has not established prejudice.

Proceedings

At trial, the prosecution objected when Springs presented
himself for testimony dressed in his Marine Corps uniform. The
prosecutor argued that, under Evidence Code section 352, it
would be prejudicial to allow the witness to wear his uniform.
She asserted that Corder was attempting to use Springs’s
military service to bolster his credibility and sway the jury.
Corder’s counsel responded that wearing the uniform would
not be prejudicial: “That’s what he is. So he is wearing his
uniform. Whatever the Marines’ issue is, it is a Marines’ issue.
It is not for this court to decide.”
The court questioned Corder’s counsel regarding the
decision to have Springs wear his uniform:
“The Court: Why is he wearing a uniform to testify in a
civilian case?

42
 “[Corder’s counsel]: I gave him the option of what he
wanted.
“The Court: Did you give him the option, or did you tell
him to wear it?
“[Corder’s counsel]: I gave him the option.
“The Court: Did he ask you whether he should wear it or
not?
“[Corder’s counsel]: Yes.
“The Court: And you said yes?
“[Corder’s counsel]: Yes.”
The court ruled: “Under [Evidence Code section] 352, I
think that his wearing a uniform is, first of all, inappropriate in a
civilian trial. [¶] Secondly, I agree with the People. I think that
it will -- it was worn, in my opinion, given especially what you
just told me, to allegedly add credibility to his testimony, and the
wearing of the uniform, I think, adds nothing to the nature of his
testimony. He allegedly witnessed an incident of domestic
violence . . . in a private setting, not in an official capacity as a
Marine. Even if he did, this trial has nothing to do with his being
a Marine. [¶] So I think it is more prejudicial than probative. It
would mislead the jury and it is not appropriate.”
Corder’s counsel stated that he would ask Springs whether
it was a violation of Marine Corps policies or procedures to wear
his uniform. The court said that it did not know whether it was a
violation or not, but noted that it was a violation for police to
testify in their uniforms regarding a private matter. Regardless,
the court was not going to adjudicate matters of Marine Corps
rules and procedures. The court was concerned solely with the
impact on testimony.

43
 Corder’s counsel responded: “His whole testimony will take
about five minutes, Your Honor. If the uniform changes -- I will
be surprised if that changes anybody’s mind on the facts of the
case.”
Later, Corder’s counsel reported that he had spoken with
Springs, who said the Marines permitted Springs to testify in a
uniform. The trial court did not change its ruling.18
Springs testified that he and Corder met in the Marines in
2005, when they were stationed at Camp Pendleton. They served
in Fallujah together. Springs and his wife became friends with
Corder and GiGi when they returned to the United States, and
saw them daily from 2006 until 2010. Springs recounted an
incident in which he witnessed GiGi hit Corder with a broom,
swinging it as if it was a baseball bat. Corder did not retaliate.
Springs had never seen Corder act violently toward GiGi. He had
last seen Corder in 2010. Corder had a reputation in the Marines
for being “calm, cool, and collective [sic].” He had “helped
[Springs] with [his] temper.”
Springs’s testimony spanned four pages of transcript. None
of the parties elected to cross-examine him.

Analysis

We see no reason to delve into the merits of the issue.
Given the weight of the evidence in this case, the argument that

18Corder was allowed to address the court and stated,
without any support, that Springs was on-duty and required to
wear a uniform. Although Corder mentions his statement, on
appeal he does not argue that Springs was required to wear his
uniform at the hearing.

44
it was prejudicial error to refuse to allow Springs to testify in
uniform borders on the absurd.
Springs’s testimony was very brief. The jury knew that
Springs and Corder were Marines, and that Springs vouched for
Corder’s character. It was undisputed Corder and GiGi had a
volatile relationship, and GiGi had testified to hitting Corder
with the broom. Springs was not a percipient witness to the
charged crimes. His testimony had nothing to do with the attack
on GiGi or Corder’s role in it. We see absolutely no possibility
Corder would have obtained a more favorable result had Springs
testified in uniform.

Posttraumatic Stress Disorder Evidence

Corder also contended that the trial court erred in ruling
“that no mention could be made of PTSD, [and] opining that it
was not a defense to any of the charges.” He argued that trial
counsel’s failure to seek to have the PTSD evidence admitted on
the ground that it supported a “diminished actuality” theory of
defense—i.e. that Corder lacked the specific intent required to
commit the charged crimes—was not forfeited because counsel
was reacting defensively to “the pressure to state the relevance
pre-trial [sic] and the court’s assertion that there was no PTSD
defense to any of the charges,” and also because the argument
was futile in light of the trial court’s ruling.19 Alternately,

19“[PTSD] evidence is admissible for the sole purpose of
showing . . . ‘whether or not the accused actually formed a
required specific intent, premeditated, deliberated or harbored
malice aforethought, when a specific intent crime is charged’

45
Corder argued he was prejudiced by counsel’s ineffective
assistance in failing to seek admission of PTSD evidence on this
basis.
We disagree with Corder’s characterization of the trial
court’s ruling, and conclude there is no merit to his claim that
trial counsel was pressured into abstaining from making a futile
argument. Nor can we agree that defendant has established
ineffective assistance of counsel, as trial counsel was not given an
opportunity to explain his strategic decisions on the record, and
Corder fails to establish that it is reasonably probable that the
outcome of the trial was negatively affected by counsel’s tactical
choice.

Proceedings

With respect to the trial court’s ruling, the following
colloquy took place at a pretrial hearing on the prosecution’s
motion to exclude mention of PTSD:
“The Court: The People are seeking to exclude any
reference to defendant Corder has [sic] PTSD, or -- [Corder’s
counsel], are you going to introduce evidence of defendant having
post-traumatic stress disorder?
“[Corder’s counsel]: I may. I may, based on cross-
examination of GiGi and what is developed at the trial. It may
come in. I don’t think the court can rule on that issue pretrial. I
think it will have to rule as it is confronted during the trial.
“The Court: No. I need to know about it now. [¶] First of
all, what is the relevance of his PTSD?

(§ 28, subd. (a)) . . . .” (People v. Cortes (2011) 192 Cal.App.4th
873, 908, italics omitted.)

46
 “[Corder’s counsel]: Well, there’s text messages that refer
to GiGi saying ‘My husband died in Fallouja [sic].’ She texted
that. [¶] I think that would be relevant based on those text
messages that are going to come out. [¶] One of the prosecution’s
theories, as the court is well aware, is that Mr. Corder did not
want the child, and therefore he decided that he was going to kill
GiGi because of that. [¶] They had a series of text messages. . . .
It lasted most of a particular day and maybe into a second day
about two months before this incident in which GiGi expresses
how upset she is with Mr. Corder, and Mr. Corder is explaining
his side of it, and in that, one of those text messages, she said ‘My
husband died in Fallouja [sic].’ [¶] Well, what does that mean? I
want to find out what that means.
“The Court: How is that relevant?
“[Corder’s counsel]: It is relevant to explain what she’s
talking about there, that he has -- it is all part of the case,
whether he has PTSD or not. We’re not offering it as a defense or
anything like that, but we’re offering it as part of the facts of the
case.
“The Court: [Prosecutor]? How is it relevant that the
defendant had PTSD?
“[Prosecutor]: I just didn’t want it coming out as some sort
of a defense. If [Corder’s counsel] is saying he just wants to
question GiGi about the messages and what she meant . . . and
basically referring to the fact that he came back a different
person, I don’t have an issue with that.
“The Court: Is that your intent?
“[Corder’s counsel]: Yes. That’s it.
“The Court: So you are going to introduce evidence asking
GiGi to clarify the text message?

47
 “[Corder’s counsel]: Yes. That’s all.
“The Court: You have no objection to that?
“[Prosecutor]: I don’t have an issue with that. I just didn’t
want an expert at the last second talking about some type of
psychological defense that I had never heard of.
“The Court: There is no such defense.
“[Corder’s counsel]: There will be no expert coming in. I
can represent that.”
The trial court asked if either Carmouche or Crutchfield
objected to admission of PTSD evidence on this limited basis.
Carmouche’s counsel noted that there were many text messages
and he would not know whether he would object until a specific
issue arose. The trial court reiterated that the evidence would
only be admitted in the limited context of the single text they had
discussed. Corder’s counsel stated, “Among other things, it may
relate to the other issues that come up. But there is no expert
evidence.”
The court responded: “In addition to the expert evidence,
I’m not allowing you to go into a detailed explanation of his PTSD
condition. . . . I know the People are not objecting for you to
probe into the clarification of the text messages that are going to
be introduced, but we’re not going to be sidetracked with regards
to that medical condition.” The court allowed the introduction of
PTSD evidence for the limited purpose discussed.

Analysis

The record demonstrates that the court did not rule that all
PTSD evidence was inadmissible, as Corder represents. The
court allowed Corder to present evidence of his text message for

48
the specific purpose mentioned by defense counsel. It is clear
that Corder’s counsel had no intention of presenting a diminished
actuality defense on the basis of PTSD evidence, and was not
pressured by the trial court in this regard. We view the trial
court’s statement that “[t]here is no such defense,” and its
prohibition on broader admission of the evidence as reassurance
to the prosecution that Corder’s counsel was not seeking to admit
the PTSD evidence as a defense before trial, and would not be
allowed to ambush the prosecution with the defense midtrial.
Corder’s counsel similarly reassured the prosecutor that he would
not be calling an expert witness to testify regarding PTSD. The
trial court did not err in its statements, nor did it force counsel
into a position where he could not comfortably press for
admission on a diminished actuality theory prior to trial. We
cannot conclude the court abused its discretion in ruling that the
defense would not be allowed to present evidence of a defense
that it expressly eschewed. (See People v. Vieira (2005) 35
Cal.4th 264, 292 [“A trial court’s decision to admit or exclude
evidence is reviewable for abuse of discretion”].)
We reject Corder’s contention that counsel was
constitutionally ineffective. (People v. Williams (1998) 61
Cal.App.4th 649, 657.) To establish a claim of ineffective
assistance of counsel, a defendant must show that counsel’s
performance was both deficient and prejudicial, i.e., that it is
reasonably probable that counsel’s unprofessional errors affected
the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687,
693–694; Ledesma, supra, 43 Cal.3d at pp. 216–217.) “The Sixth
Amendment guarantees competent representation by counsel for
criminal defendants[, and reviewing courts] presume that counsel
rendered adequate assistance and exercised reasonable

49
professional judgment in making significant trial decisions.”
(People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland v.
Washington, supra, 466 U.S. at p. 690; People v. Freeman (1994) 8
Cal.4th 450, 513.) If the record sheds no light on why counsel
acted or failed to act in the challenged manner, we must reject
the claim on appeal unless counsel was asked for an explanation
and failed to provide one, or there could be no satisfactory
explanation for counsel’s performance. (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266.)
On this record, we cannot conclude that counsel was
ineffective for failing to seek admission of PTSD evidence to show
that Corder lacked specific intent to commit the crimes. The
record is silent as to the reason for counsel’s tactical choice. We
have no way of knowing whether counsel had Corder examined
for PTSD and if an expert would have been willing to testify to
his condition. There is simply no ground for concluding counsel’s
performance was deficient.

Cumulative Error

Corder and Carmouche argue the errors alleged, even if not
individually prejudicial, are prejudicial when taken together.
There was no cumulative error, as any error was inconsequential.
(See People v. Hines (1997) 15 Cal.4th 997, 1075.)

Assembly Bill No. 518

Finally, in their supplemental briefing following transfer
back from the Supreme Court, all three defendants argue that
the cause must be remanded for the trial court to determine

50
whether to exercise its discretion under Assembly Bill 518, which
became effective on January 1, 2022, after defendants’ last
appeal. The People concede that Assembly Bill 518 applies to
defendants’ case retroactively, and we accept that concession.
Prior to Assembly Bill 518, section 654 provided that an act
or omission punishable in different ways by different provisions
of law could only be punished under the provision with the
longest potential term of imprisonment. Assembly Bill 518
amended section 654 to give trial courts the authority to impose
punishment under any one of two or more provisions that permit
punishment of the same act, but not more than one provision.
(§ 654.)
In this case, all three defendants were convicted of multiple
crimes arising out of the same acts in accordance with the
requirements of section 654 as it existed at the time of their
sentencing hearings. The trial court imposed the longest possible
sentence as to each defendant. We agree with the parties that
Assembly Bill 518 applies retroactively to defendants’ case, which
is not yet final on appeal. (See e.g., People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 309 [holding new laws granting
courts discretion to ameliorate punishment, even if that
discretion is ultimately exercised only in “some cases,” should be
applied retroactively to “‘“every case to which it constitutionally
could apply”’”].)
Accordingly, defendants are entitled to a limited remand to
permit the trial court to determine whether to exercise its
discretion under Assembly Bill 518 and section 654. On remand
the trial court should conduct a hearing for each defendant, in
the presence of the defendant, defendant’s counsel, and the
People to determine whether to exercise its discretion to modify

51
the original sentence as to that defendant. If the court decides to
exercise its newly authorized discretion to impose a term other
than the term with the longest potential term of imprisonment,
the court should proceed to resentence that defendant. If the
court decides not to exercise its discretion to impose a lesser
sentence than that previously mandated, the prior sentence is to
remain in effect, and the defendant need not be resentenced but
should be remanded to continue serving the term previously
imposed. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245,
1255; People v. Buchalter (2001) 26 Cal.4th 20, 35.)

DISPOSITION

The matter is remanded as to all defendants for the limited
purpose of allowing the trial court to determine whether to
exercise its discretion under Assembly Bill 518 and section 654,
and to proceed to resentence one or more of the defendants if it
determines to exercise that discretion. If the trial court decides
not to exercise its discretion to modify the original sentence as to
an individual defendant, that sentence will remain in effect, and
the defendant need not be resentenced but should be remanded to
continue serving the term previously imposed. The judgment is
affirmed.

MOOR, J.

I concur:

RUBIN, P. J.

52
The People v. Brian Boseman Corder et al.
B261370

BAKER, J., Concurring

I write separately because we should be more transparent
about what we are doing, and not doing, in resolving this appeal.
After this court’s most recent 2019 opinion affirming the
convictions of defendants Brian Corder (defendant Corder),
Fredericka Carmouche (defendant Carmouche), and Stephon
Crutchfield (defendant Crutchfield), our Supreme Court granted
review and transferred the matter back to us “with directions to
vacate [our] decision and reconsider the cause in light of Senate
Bill No. 775 (Stats. 2021, ch. 551) [SB 775].” That is an order
that admits of some ambiguity because SB 775 primarily amends
the Penal Code statute that permits a defendant to petition for a
recall of his or her sentence (Pen. Code, § 1170.95, subd. (a))
whereas defendants have not (so far as our record reveals) filed
Penal Code section 1170.95 petitions; they are before this court
on direct appeal of their judgments of conviction.
Penal Code section 1170.95, as amended by SB 775,
provides in subdivision (g) that “[a] person convicted of murder,
attempted murder, or manslaughter whose conviction is not final
may challenge on direct appeal the validity of that conviction
based on the changes made to [Penal Code] Sections 188 and 189
by Senate Bill 1437 (Chapter 1015 of the Statutes of 2018).” That
is presumably why our Supreme Court has returned the cause to
us. But the governing rules for resolving a direct appeal are
different than the rules that govern resolution of a Penal Code
section 1170.95, subdivision (a) petition. And I believe the
difference matters, procedurally speaking, as to defendant
Crutchfield.
The opinion for the court holds any error in instructing the
jury on the natural and probable consequences doctrine in
connection with defendants’ attempted murder convictions was
necessarily harmless as to defendants Corder and Carmouche
because the jury also convicted them of conspiracy to commit
murder and thereby necessarily found they had the intent to kill.
I agree with that. But the jury made no similar finding against
defendant Crutchfield, and the majority relies on its evaluation of
the strength of the evidence to deem the same instructional error
harmless as to him. That is a permissible approach on direct
appeal, and I join it—albeit with the following qualification.
Under Penal Code section 1170.95, subdivision (d), a
defendant who petitions for recall of sentence and establishes his
or her prima facie eligibility is entitled to a determination by the
trial judge addressing whether he or she could still be convicted
of a qualifying crime (e.g., attempted murder) beyond a
reasonable doubt and the defendant may “offer new or additional
evidence” bearing upon the question. (Pen. Code, § 1170.95,
subd. (d)(3).) If defendant Crutchfield files a Penal Code section
1170.95 petition (assuming he has not already), I see nothing
that would prevent him (as opposed to defendants Corder and
Carmouche) from establishing his entitlement to a Penal Code
section 1170.95, subdivision (d) hearing; our Supreme Court and
this division have held a trial court cannot rely on a weighing of
the trial evidence to find the prima facie threshold has not been

2
met. (See, e.g., People v. Lewis (2021) 11 Cal.5th 952, 971; People
v. DeHuff (2021) 63 Cal.App.5th 428, 439-440; see also People v.
Smith (2020) 49 Cal.App.5th 85, 96, review granted July 22,
2020, S262835.) The awkwardness of the present procedural
posture should therefore be apparent: the impact of today’s
holding as to defendant Crutchfield’s challenge to his attempted
murder conviction is limited because the rationale this court
articulates for resolving that challenge would not suffice to deny
him a Penal Code section 1170.95, subdivision (d) hearing at
which he could present new or additional evidence.
We could have avoided this awkwardness by issuing an
appellate stay (see, e.g., People v. Martinez (2019) 31 Cal.App.5th
719, 729), but no party asked for that and the majority declines to
invite the parties to state their views on whether a stay should
issue (despite concluding a limited remand to the trial court is
otherwise required). So we forge ahead, knowing that this court
may again confront an appeal from at least defendant Crutchfield
on a Penal Code section 1170.95 petition and knowing today’s
opinion might not predetermine that issue—which is a question I
note but do not now decide. (See generally Pen. Code, § 1170.95,
subd. (d)(3).)
With the caveats I have stated, I join the opinion for the
court.

BAKER, J.

3