Filed 5/23/22 P. v. McGhee CA2/8
(opinion on transfer from Supreme Court)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B265136
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA071844)
v.
DIAMONTE JEROME MCGHEE
et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County, David B. Gelfound, Judge. Affirmed in part,
reversed in part and remanded with directions.
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant Eric Michael Edwards.
H. Russell Halpern for Defendant and Appellant Diamonte
Jerome McGhee.
Kamala D. Harris, Xavier Becerra and Rob Bonta,
Attorneys General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Susan Sullivan Pithey, Assistant
Attorney General, Shawn McGahey Webb, Idan Ivri, Amanda V.
Lopez and Gary A. Lieberman, Deputy Attorneys General, for
Plaintiff and Respondent.
******
In 2014, defendants Diamonte Jerome McGhee and Eric
Michael Edwards were convicted by jury on numerous counts,
including special circumstance murder, attempted murder,
assault with a firearm, and robbery. In our original decision filed
March 16, 2017, we affirmed their convictions based on the law
that existed at that time.
Defendant Edwards petitioned our Supreme Court for
review. Defendant McGhee did not seek review. On April 10,
2019, the Supreme Court transferred the matter back to this
court with directions to vacate our decision in its entirety and
reconsider the cause in light of the passage of Senate Bill 1437
(2017–2018 Reg. Sess.).
As originally enacted, Senate Bill 1437 amended “ ‘the
felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v. Lewis
(2021) 11 Cal.5th 952, 959 (Lewis).)
Senate Bill 1437 also added Penal Code section 1170.95
which set forth a procedure whereby a “person convicted of felony
murder or murder under a natural and probable consequences
2
theory” could petition for resentencing relief. (Former § 1170.95,
subd. (a).)
In an unpublished decision, we again affirmed McGhee’s
conviction. We also affirmed Edwards’s conviction, concluding
the changes effected by Senate Bill 1437 did not apply to
attempted murder, nor was Edwards entitled to raise a Senate
Bill 1437 challenge on direct appeal. (People v. McGhee (Aug. 15,
2019, B265136) [nonpub. opn.].)
Edwards filed another petition in the Supreme Court. In
October 2021, while this case was pending in the Supreme Court,
the Legislature passed Senate Bill 775 (2021–2022 Reg. Sess.)
which, among other things, amended the language of Penal Code
section 1170.95 by expanding the scope of the resentencing
provision to include individuals who had been convicted of
attempted murder under a natural and probable consequences
theory. (Stats. 2021, ch. 551, § 2.) Senate Bill 775 also amended
the statute to expressly provide that relief may be sought on
direct appeal. Section 1170. 95, subdivision (g) now provides 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 Sections 188 and 189 by Senate Bill 1437.”
On February 16, 2022, the Supreme Court transferred the
matter back to this court with directions to vacate our opinion
and reconsider the cause in light of Senate Bill 775. Edwards
and the Attorney General’s office filed supplemental briefs.
Having vacated our entire opinion again, we address below
the issues raised by both defendants. As to defendant McGhee,
who did not petition for review, we again affirm the judgment of
conviction. As to defendant Edwards, we reverse his convictions
3
for murder and attempted murder (counts 1, 2, 3, 12 & 17),
vacate the special-circumstance finding and firearm
enhancements associated with those counts, and otherwise affirm
the judgment.
PROCEDURAL SUMMARY
McGhee, Edwards, and a third defendant, Branden
Trevaughn Higgs (collectively defendants), were charged with
numerous offenses arising from separate events that occurred on
two different days in October 2011. Higgs is not a party to this
appeal.
For the events that occurred on October 29, 2011, McGhee
and Edwards were charged with one count of attempted
premeditated murder (Pen. Code, §§ 187, subd. (a), 664; count 6)
and six counts of assault with a semiautomatic firearm (§ 245,
subd. (b); counts 7–11, 16).
For the events that occurred on October 31, 2011, all three
defendants were charged with one count of murder (Pen. Code,
§ 187, subd. (a)) with a special circumstance allegation the
murder occurred during the commission of a robbery (§ 190.2,
subd. (a)(17); count 1), four counts of attempted premeditated
murder (§§ 187, subd. (a), 664; counts 2, 3, 12, 17), four counts of
assault with a semiautomatic firearm (§ 245, subd. (b); counts 13,
14, 15, 18), conspiracy to commit robbery (§ 182, subd. (a)(1);
count 4), and second degree robbery (§ 211; count 5).
Various firearm allegations were alleged. (Pen. Code,
§§ 12022, subd. (a)(1), 12022.5, 12022.7, subd. (a), 12022.53,
subds. (b)–(d).) As to Edwards and Higgs, it was alleged that a
principal used a firearm in the commission of the offenses.
Personal firearm use was alleged as to McGhee. It was also
4
alleged McGhee had two prior serious felony juvenile
adjudications. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).)
Defendants were tried jointly before the same jury, which
issued mixed verdicts. The jury acquitted Higgs on the
conspiracy count and deadlocked on all remaining counts for both
incidents. The jury acquitted Edwards on all counts related to
the events on October 29, 2011. The jury convicted McGhee of
one count of assault, deadlocked on the attempted murder count
and acquitted him of the remaining assault counts.
For the counts related to the October 31, 2011 robbery and
shooting, the jury acquitted McGhee and Edwards of conspiracy
to commit robbery but found them guilty on all other counts. The
jury also found true the robbery-murder special-circumstance
allegation and all of the firearm allegations.
The court found true McGhee’s prior conviction allegations
and sentenced him to life without parole (LWOP), plus 209 years
to life.
As to Edwards, who was 17 in October 2011, the court
exercised its discretion pursuant to Penal Code section 190.5,
subdivision (b) to not impose a sentence of life without parole on
the murder count. The court imposed a sentence of 53 years to
life plus five years, calculated as follows: 25 years to life for the
murder count, plus a consecutive one-year term for the firearm
enhancement; consecutive terms of life with the possibility of
parole, plus one year for the firearm enhancement on each of the
four attempted murder counts. The court imposed and stayed the
sentences on the remaining counts pursuant to section 654.
McGhee and Edwards appealed.
5
FACTUAL BACKGROUND
1. Facts Prior to October 29, 2011
At the end of October 2011, McGhee, Edwards, Higgs, and
Keyada Robinson were staying at Michelle Hudson’s home in
Santa Clarita. (For clarity, we use the first names of individuals
who share a common surname.) At the time, all three defendants
were 17 years old. Higgs and Edwards were cousins, but McGhee
“really didn’t know” Edwards. On October 28, 2011, McGhee
showed Michelle’s son Skyler a gun while Edwards and Higgs
were present.
2. October 29, 2011 Incident
On Friday night, October 28, 2011, Nikolas Gordian went
to a party in Canyon Country and had an altercation with
McGhee. The next day—Saturday, October 29, 2011—McGhee
and Gordian arranged to meet under a bridge to fight. Gordian,
his brother, and five friends went to the location, and McGhee
arrived with Edwards. (Gordian’s friends did not recognize
Edwards.) McGhee and Gordian started to fight and McGhee
displayed a black .32- or .38-caliber semiautomatic handgun.
McGhee fired one shot at Gordian which hit the ground near him.
According to statements from one of Gordian’s friends to police,
Edwards yelled, “Go blast that nigga,” and McGhee again aimed
at Gordian and yelled, “Shit. I missed my shot.” (At trial, the
friend denied ever making those statements.) Gordian’s group
then ran off.
McGhee and Edwards returned to the Hudson home.
McGhee yelled at Higgs and Robinson for leaving them and
complained that “someone he barely knew had his back when he
had to do something,” referring to Edwards.
6
3. Discussions of Committing Robbery
According to an interview with police, Robinson said
McGhee, Higgs, and Edwards told him on Saturday, October 29,
2011, they wanted to “hit a lick,” that is, commit a robbery.
McGhee brought up the subject, and Edwards and Higgs
discussed it, but not as much as McGhee did. Edwards was
“always the quiet one”; he would “always be the one that will be,
like, low-key in the background. Like, he’s with it, like he’s down
to do it, but he’ll always be the one in the background.”
On Sunday, October 30, 2011, McGhee, Edwards, and
Higgs “were trying to hit another lick.”
4. October 31, 2011 Robbery and Shooting
On Monday, October 31, 2011, defendants left the Hudson
house together around noon. McGhee wore a white sweatshirt.
Higgs wore a white shirt with a large black logo and Edwards
wore “something red,” either a shirt or hat.
That afternoon, Rick Sandoval was walking near a strip
mall in Canyon Country when Alejandro Sanchez-Torrez asked
him for a dollar. Sandoval gave him the 35 cents he had on him.
Sandoval lived in a nearby apartment complex. A dry river bed
or “wash” separated the complex from the strip mall.
As Sandoval sat on a wall reading, a teenage African-
American male wearing a white shirt approached him. (Because
Sandoval’s “primary memory” of the perpetrators was the color of
their shirts, we refer to them in that manner.) As the male in the
white shirt passed Sandoval, Sandoval asked if he would be
interested in purchasing a Nintendo video game device. The
male said he had a friend who might be interested and he would
be back.
7
Several minutes later, the white-shirted male returned
with two other African-American males, one in a red shirt and
one in a black shirt. Sandoval did not have the Nintendo game
device with him but said he would take $30 for it. The red-
shirted male said he would give him $60. The white-shirted male
said something like, “He’s high” and “Don’t listen to him.”
Sandoval asked if they had any “weed.” The white-shirted male
said he had a pound of marijuana. Sandoval asked for $10 worth.
One of the males asked Sandoval for a lighter, so Sandoval gave
him a green BIC lighter, and the males started smoking. At
some point they asked if Sandoval had any money, and he said
no.
Sandoval went to his apartment and got the Nintendo, a
$20 bill, another lighter, and a marijuana pipe. When he
returned, he handed the device to the males, who passed it
around. They did not give it back to him. He overheard one of
them whisper, “Let’s do it fast.” The white-shirted male then
pulled out a small, grayish .22-caliber automatic gun, pointed it
at Sandoval’s face, and told him to put his hands up. Sandoval
complied, although he thought the gun might be fake.
The white-shirted male ordered him down into the wash,
and the three males followed. Sandoval stood against a wall with
his hands up. At some point, he removed his wallet and held it in
his hand. The white-shirted male told Sandoval to give them
everything he had, and Sandoval started emptying his pockets.
The white-shirted male told the others, “Go search this nigger.”
Sandoval responded that he did not have anything else. He
handed his wallet over, and the black-shirted and red-shirted
males searched him, but he was not sure if they took anything
else.
8
As the two others walked away, the white-shirted male
lowered the gun to Sandoval’s chest, and Sandoval heard
three clicks from the gun. The others returned, and one of them
said, “Let’s get this nigger.” The red-shirted male said, “No man,
you know, let him—.” As the white-shirted male tried to fix the
gun, Sandoval threw a rock. The others began throwing rocks,
and Sandoval threw more rocks back. The white-shirted male
said, “Let’s go.” The three males ran across the wash to the strip
mall, and Sandoval chased them. The white-shirted male turned
and pointed the gun at Sandoval and pulled the trigger several
times. Sandoval zig-zagged to avoid any bullets, but the gun did
not fire. At the top of the wash, the white-shirted male stopped,
turned, and pointed the gun at Sandoval again. The three males
were talking to each other and the white-shirted male was still
trying to unjam the gun and shoot at Sandoval, who zig-zagged
again.
The three males ran to a blacktop area. Two of them
looked through Sandoval’s wallet and one of them threw it on the
ground. Sandoval continued to chase them, mostly because he
was angry and wanted them caught. The three males stopped
and faced Sandoval, cursing at him and calling him over.
Sandoval fought them, and they all hit him. He fell to the ground
and was kicked and hit in the head with what he thought was the
gun. He fought back and called out for help. At some point, he
was able to retrieve his wallet and the Nintendo game device.
Sanchez-Torrez, whom Sandoval had encountered earlier,
was nearby with his seven-year-old son Anthony. Anthony saw
the males beating up Sandoval, and Sanchez-Torrez said, “We’re
gonna go help him.” He ran toward the group carrying Anthony’s
aluminum T-ball bat.
9
The white-shirted male pointed the gun at Sandoval again
and pulled the trigger; the gun still did not fire. He then pointed
it at Sanchez-Torrez and pulled the trigger. This time it did fire,
shooting Sanchez-Torrez in the chest. He fell face down. The
white-shirted male turned the gun on Sandoval and shot him in
the leg. The three males fled in the same direction. Sandoval
later identified them, although he was unclear about which color
shirts they were wearing. He thought McGhee wore a black
shirt, and Edwards and Higgs wore white shirts. Sanchez-Torrez
died from the gunshot wound.
5. Post-murder Facts
Around 3:20 p.m. on the day of the shooting, Los Angeles
County sheriff’s deputies responded to a dispatch call and
detained Edwards and Higgs in a condominium complex near the
crime scene. That evening, detectives interviewed Edwards, who
told them he went to the wash wearing a red shirt and removed a
cell phone from a Mexican male’s pants pocket without his
consent. He tossed the phone back because it was “weird.”
Shortly thereafter, he changed out of his red shirt at a nearby
apartment complex. Detectives also interviewed Higgs, who told
them he had gone to the wash wearing a black shirt and removed
a marijuana pipe from a Mexican male’s pants pocket without
consent. He dropped the pipe. He also changed his shirt at a
nearby apartment complex.
McGhee escaped immediate capture. Sweaty and out of
breath, he ran to the home of his friend Joseph Perez-Coronel.
According to Perez-Coronel’s interview with police, McGhee
displayed a “chrome-ish” “Deuce 5” gun and asked if Perez-
Coronel wanted to buy it. Perez-Coronel heard a helicopter and
“put the two and two together,” asking McGhee, “[A]re they here
10
for you?” McGhee replied, “[M]aybe.” Perez-Coronel asked
McGhee to leave.
Later that evening, McGhee went to the home of another
friend, Aaron Grandchamp, saying he needed a place to stay for
the night. He said he had been with Higgs and Edwards and had
shot somebody at the wash. He also said his mother had a plane
ticket for him to go to Detroit. Grandchamp let him stay
overnight. The next morning, he showed Grandchamp a small
black gun, saying he needed to “stash” it.
That morning, McGhee and Grandchamp went to Michelle
Hudson’s house. Michelle confronted McGhee, telling him
Edwards and Higgs were in custody. He “dropped his head” and
looked at the ground. She told him if he had any involvement in
the murder, he needed to turn himself in. He responded, “[T]his
is not like camp. This is bigger than camp.” At some point,
Robinson referred to a news article and asked McGhee, “[I]t says
somebody got killed. What happened?” McGhee responded,
“Yeah, bro, I shot him.” McGhee left.
A detective spotted McGhee that afternoon walking about
half a mile from the Hudson home. When the detective
attempted to detain him, he ran, although he eventually stopped.
At the scene of the shooting, officers found two .25-caliber
shell casings, the game device, and Sandoval’s wallet. At the
condominium complex where Edwards and Higgs were arrested,
officers found Sandoval’s green lighter, a red T-shirt in an area
where Edwards had run, and two backpacks, one of which
contained clothing and personal hygiene items. Michelle gave
police a .25-caliber shell casing she found in her backyard prior to
the October 31, 2011 shooting. Testing revealed it came from the
11
same gun as the casings found at the shooting scene. Edwards
and Higgs tested positive for gunshot residue.
In a recorded jail call, McGhee told his girlfriend to convey
a message that Grandchamp should not testify against him.
6. Defense Case
McGhee and Edwards did not present affirmative evidence
in their defense. Higgs called the sheriff’s deputy who had
interviewed Sandoval at the hospital after the shooting.
Sandoval told her that, after McGhee tried to shoot him the first
time, Edwards and Higgs told him, “Let’s just go.” Sandoval also
told her McGhee asked him if he ever stole from anyone.
Sandoval said no, and McGhee responded, “Well, we do[,] a lot.”
DISCUSSION
1. Edwards’s Appeal
a. Felony murder (count 1)
The Legislature passed Senate Bill 1437 “ ‘to amend the
felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” (Lewis, supra,
11 Cal.5th at p. 959.)
Senate Bills 1437 and 775 eliminated murder liability
under a natural and probable consequence theory and narrowed
liability for felony murder. Penal Code section 188,
subdivision (a)(3) now provides that “[e]xcept as stated in
subdivision (e) of Section 189 [governing felony murder], in order
to be convicted of murder, a principal in a crime shall act with
12
malice aforethought. Malice shall not be imputed to a person
based solely on his or her participation in a crime.”
Subdivision (e) of Penal Code section 189 provides that a
participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a), which includes robbery, in which
a death occurs is liable for murder only if one of the following is
proven: (1) the person was the actual killer; (2) the person was
not the actual killer, but, with the intent to kill, aided and
abetted the actual killer in the commission of murder in the first
degree; or (3) the person was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in section 190.2, subdivision (d).
At trial, Edwards and Higgs were prosecuted as
accomplices of the shooter, McGhee. It is undisputed the only
theory of murder liability presented against Edwards, and the
only theory on which the jury was instructed to find him guilty,
was felony murder. As such, the jury was instructed with
CALCRIM No. 540B. As relevant here, that instruction, while
valid at the time it was given, allowed the jury to convict
Edwards of felony murder even if he only intended to aid McGhee
in committing robbery and without a finding he personally acted
with the intent to kill or was a major participant who acted with
reckless disregard for human life.
Respondent concedes that due to the postconviction change
in the law, the felony murder instruction is no longer valid.
Respondent argues however the error was harmless because the
jury was also instructed with CALCRIM No. 703 regarding the
robbery-murder special-circumstance allegation. That
instruction required the jury to find that Edwards either acted
with intent to kill or was a major participant who acted with
13
reckless disregard. Respondent says the jury, in finding the
special circumstance true as to Edwards, necessarily found that
Edwards acted with the requisite intent now required under the
amended murder statutes.
But the trial here took place in 2014, before our Supreme
Court issued its decisions People v. Banks (2015) 61 Cal.4th 788
and People v. Clark (2016) 63 Cal.4th 522 clarifying the law
pertaining to accomplice liability for felony murder. As relevant
here, Banks said that for a nonkiller accomplice to be a major
participant, the accomplice “must be aware of and willingly
involved in the violent manner in which the particular offense is
committed, demonstrating reckless indifference to the significant
risk of death his or her actions create.” (Banks, at p. 801.) Clark,
addressing the phrase reckless indifference, said the mere fact a
robbery involves a gun, “on its own and with nothing more
presented, is not sufficient to support a finding of reckless
indifference to human life for the felony-murder aider and abettor
special circumstance.” (Clark, at p. 617.)
Neither Banks nor Clark mandated changes to the felony-
murder jury instructions. But CALCRIM No. 703 was
subsequently amended to include new language based on the
nonexhaustive list of factors the Supreme Court discussed in
Banks and Clark that may be relevant in accurately assessing
nonkiller accomplice liability for felony murder. While the factors
are identified as optional, the Bench Notes to CALCRIM No. 703
state the trial court should determine if the optional bracketed
paragraphs should be given and that those additional paragraphs
should be given if requested by counsel.
The new language in CALCRIM No. 703 includes the
following: “[When you decide whether the defendant acted with
14
reckless indifference to human life, consider all the evidence. No
one of the following factors is necessary, nor is any one of them
necessarily enough, to determine whether the defendant acted
with reckless indifference to human life. Among the factors you
may consider are: [¶] [• Did the defendant know that [a] lethal
weapon[s] would be present during the ?] [¶] [• Did the defendant know that [a] lethal weapon[s]
(was/were) likely to be used?] [¶] [• Did the defendant know the
number of weapons involved?] [¶] [• Was the defendant near the
person(s) killed when the killing occurred?] [¶] [• Did the
defendant have an opportunity to stop the killing or to help the
victim(s)?] [¶] [• How long did the crime last?] [¶] [• Was the
defendant aware of anything that would make a coparticipant
likely to kill?] [¶] [• Did the defendant try to minimize the
possibility of violence?] [¶] [• ]].” (Jud. Council of Cal., Crim. Jury Insts. (2020 ed.)
CALCRIM No. 703.)
On the issue of whether an accomplice qualifies as a major
participant, the amended version allows for these additional
instructions to the jury: “[When you decide whether the
defendant was a major participant, consider all the evidence.
No one of these following factors is necessary, nor is any one of
them necessarily enough, to determine whether the defendant
was a major participant. Among the factors you may consider
are: [¶] [• [What was the defendant’s role in planning the crime
that led to the death[s]?] [¶] [• What was the defendant’s role in
supplying or using lethal weapons?] [¶] [• What did the
defendant know about dangers posed by the crime, any weapons
used, or past experience or conduct of the other participant[s]?]
[¶] [• Was the defendant in a position to facilitate or to prevent
15
the death?] [¶] [• Did the defendant’s action or inaction play a
role in the death?] [¶] [• What did the defendant do after lethal
force was used?] [¶] [• ]].”
(Jud. Council of Cal., Crim. Jury Insts., supra, CALCRIM
No. 703.)
Respondent argues that Banks and Clark did not
materially change the law regarding felony murder and focuses
on the fact the amendments to CALCRIM No. 703 are optional.
Respondent also relies on People v. Farfan (2021) 71 Cal.App.5th
942, 953–954 (Farfan) (denying resentencing relief, concluding
Senate Bill 1437 made “the crime of felony murder subject to the
same elements of proof required for a special circumstance
finding”).
But Farfan did not involve a pre-Banks and Clark special-
circumstance finding. The trial there took place after both
decisions had been issued clarifying the law of felony murder.
(Farfan, supra, 71 Cal.App.5th at pp. 955–956.)
Our Supreme Court is currently considering the issue of
whether a pre-Banks and Clark special-circumstance finding is a
categorical bar to relief under Penal Code section 1170.95.
(People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review
granted Mar. 10, 2021, S266606.)
Pending guidance from the Supreme Court, we conclude
the jury’s true finding on the robbery-murder special-
circumstance allegation is not a categorical bar to relief. We
therefore must assess the instructional error caused by the
postconviction change in the law. Instructional error based on a
misdescription or omission of an element is subject to harmless
error analysis under the test set forth in Chapman v. California
(1967) 386 U.S. 18. (People v. Mil (2012) 53 Cal.4th 400, 409,
16
415-417 (Mil) [reversing burglary-murder and robbery-murder
special-circumstance findings]; accord, Neder v. United States
(1999) 527 U.S. 1, 4.)
Mil, relying on Neder, instructs that a reviewing court
should “ ‘conduct a thorough examination of the record. If, at the
end of that examination, the court cannot conclude beyond a
reasonable doubt that the jury verdict would have been the same
absent the error—for example, where the defendant contested the
omitted element and raised evidence sufficient to support a
contrary finding—it should not find the error harmless.’
[Citation.] On the other hand, instructional error is harmless
‘where a reviewing court concludes beyond a reasonable doubt
that the omitted element was uncontested and supported by
overwhelming evidence.’ ” (Mil, supra, 53 Cal.4th at p. 417.) We
must decide “ ‘whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted
element.’ ” (Ibid.)
The evidence summarized above does not convince us
beyond a reasonable doubt that Edwards acted with intent to kill
or was a major participant who acted with reckless disregard to
human life. We therefore reverse Edwards’s conviction for the
murder of Sanchez-Torrez in count 1. The parties agree, as do
we, that on remand the prosecution may retry Edwards for
murder on a legally valid theory. Where, as here, a
postconviction change in the statutory or decisional law
invalidates the theory upon which a conviction is based, the
prosecution may retry the defendant on a legally valid theory.
(See, e.g., People v. Chiu (2014) 59 Cal.4th 155, 168 (Chiu).)
17
Because we reverse the murder conviction, defendant’s
other arguments challenging his murder conviction are moot,
including his challenge to the sentence imposed.
b. Attempted murder (counts 2, 3, 12 & 17)
Respondent concedes that a reversal on the attempted
murder counts is warranted because of the postconviction change
in the law. We agree.
It is undisputed the jury was instructed that Edwards
could be found guilty of attempted murder based on the natural
and probable consequences doctrine, a theory of liability that is
no longer valid in light of the passage of Senate Bills 1437 and
775. (Pen. Code, § 188, subd. (a)(3); see also People v. Sanchez
(2022) 75 Cal.App.5th 191, 196.) While the jury was also
instructed with direct aiding and abetting principles, the record
demonstrates the prosecution primarily relied on the natural and
probable consequences theory of liability.
This error is also subject to the harmless error test set forth
in Chapman. (People v. Aledamat (2019) 8 Cal.5th 1, 9.) “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.” (Id. at p. 13.)
Respondent concedes the record here does not show beyond
a reasonable doubt the jury did not rely on the invalid theory in
finding Edwards guilty. While the jury found true the allegation
the attempted murders were willful, deliberate and
premeditated, the jury was instructed with CALCRIM No. 601
which told the jury it could find true the premeditation allegation
if “either the defendant or the principal” acted with the requisite
state of mind. Therefore, the premeditation findings are
18
insufficient to conclude the error was harmless beyond a
reasonable doubt.
All four of the attempted murder convictions must be
reversed. Because we reverse based on a postconviction change
in the law, the prosecution, on remand, may retry Edwards on a
legally valid theory. (Chiu, supra, 59 Cal.4th at p. 168.)
Edwards’s remaining arguments challenging his attempted
murder convictions are moot.
c. The claimed evidentiary error
In his original briefing, Edwards raised a claim of
evidentiary error. The argument is arguably relevant to the
robbery and assault convictions which we affirm and therefore is
not mooted by our reversals on the murder and attempted
murder counts.
Edwards argued the trial court abused its discretion and
violated his constitutional right to present a defense when it
excluded the following statement Robinson made to police about
what Edwards told McGhee and Higgs on the morning of the
robbery and murder: “So then on Monday, Monday morning . . .
Brandon [Higgs], Tay [McGhee], and Eric [Edwards]—Eric was
the one who did not want to go. Eric was the one who did not
want to go. Eric wanted to stay. I know Eric wanted to stay.
Eric’s like, ‘bro, I’m not about to roll with ya’ll. I already know
what ya’ll about to do, I’m not about (to) go.[’] ” Respondent
argues the court did not exclude this statement; defense counsel
simply abandoned any effort to introduce it while cross-
examining Robinson. After reviewing the record, we agree.
It appears the court would have allowed Robinson to testify
that Edwards made the “I’m not about to roll with ya’ll”
statement. Before trial, the court expressly permitted the
19
defense to offer the statement. During a sidebar at trial, when
Edwards’s counsel argued he was saying he did not want to go,
the court responded, “I think that has to come in, to some degree,
the fact he didn’t want to go, but ultimately did go.” At the
conclusion of the sidebar, the court stated its rulings stood, which
reasonably referred to its pretrial ruling admitting the “roll with
ya’ll” statement. When questioning resumed, the prosecutor only
objected to the question asking Robinson about Edwards’s
intent—whether he actually did not want to go. The court seems
to have understood that when it directed Edwards’s counsel to
rephrase the question. Whether it was a misunderstanding or a
tactical decision, it appears Edwards’s counsel simply chose to
not ask Robinson about the statement during cross-examination.
Thus, because the court never excluded the “roll with ya’ll”
statement, it could not have done so incorrectly, and Edwards’s
argument fails.
2. McGhee’s Appeal
McGhee did not petition the Supreme Court for review.
However, in transferring this case to us, the Supreme Court
directed us to vacate our prior decision. Having vacated our prior
decision in its entirety, we address McGhee’s original contentions
and once again affirm his convictions, finding no reversible error.
a. Aranda/Bruton error
McGhee argues the trial court’s admission of redacted
statements by Edwards and Higgs to police violated People v.
Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968)
391 U.S. 123. We disagree.
Citing Bruton and Richardson v. Marsh (1987) 481 U.S.
200 (Richardson), the prosecution moved before trial to introduce
redacted statements Edwards and Higgs separately made to
20
police, with the limitation those statements would only be
introduced against those defendants respectively and no other
defendant. Edwards’s redacted statement stated as follows:
“Mr. Edwards was interviewed at the Santa Clarita Sheriff’s
Station on the evening of 10/31/11. I advised him of his Miranda
[v. Arizona (1966) 384 U.S. 436] rights (description of rights
omitted) and he agreed to speak with me. Mr. Edwards stated
that he went to the wash on 10/31/11. Mr. Edwards stated that
he wore a red shirt. He approached a Mexican male and removed
a cell phone from the Mexican male’s pants pocket without the
Mexican male’s consent. Mr. Edwards stated that he then tossed
the phone back to the Mexican male because the phone was a
‘weird’ ‘Boost’ phone. Mr. Edwards admitted that he changed out
of his red shirt while at an apartment complex a short distance
away a short time later.” Higgs’s statement said as follows:
“Mr. Higgs was interviewed at the Santa Clarita Sheriff’s Station
at 12:11 am on November 1st. Higgs stated that his date of birth
was 8/15/94. I advised him of his Miranda rights (description of
rights omitted) and he agreed to speak with me. Mr. Higgs
stated that he went to the wash on 10/31/11. Mr. Higgs stated
that he wore a black shirt. Higgs admitted that, while at the
wash, he removed a marijuana smoking pipe from a Mexican
male’s pants pocket without the Mexican male’s consent. Higgs
stated that he dropped the pipe onto the ground shortly
thereafter. Higgs stated that he later changed his shirt at a
nearby apartment complex.”
At a hearing on the motion, McGhee’s counsel noted he had
filed a severance motion based on the statements from Higgs and
Edwards and argued that such statements could not “be redacted
and not inculpate” McGhee, so McGhee could not get a fair trial if
21
they were admitted. The court disagreed and admitted the
redacted statements, finding there was no reference to any other
defendant or even mention of “we” or “they.” The statements also
did not shift blame to anyone else. For those reasons, the court
also denied McGhee’s motion to sever.
During opening and closing arguments, the prosecutor
repeatedly told the jury it could only use the statements against
the individual who made them and not against the other
defendants. Likewise, before the statements were introduced and
during formal instructions, the court instructed the jury it could
only use the statements against the individual who made them
and no one else.
Under Aranda and Bruton, a “ ‘ “ ‘nontestifying
codefendant’s extrajudicial self-incriminating statement that
inculpates the other defendant is generally unreliable and hence
inadmissible as violative of that defendant’s right of
confrontation and cross-examination, even if a limiting
instruction is given.’ ” ’ ” (People v. Capistrano (2014) 59 Cal.4th
830, 869, overruled in part on other grounds as stated in People v.
Hardy (2018) 5 Cal.5th 56, 103.) The rule does “not apply to
confessions that are not incriminating on their face, but become
so only when linked with other evidence introduced at trial.”
(Capistrano, at p. 869, citing Richardson, supra, 481 U.S. at
pp. 206–207.) Thus, “admission of a nontestifying codefendant’s
confession against the defendant does not violate the defendant’s
confrontation right if the confession is redacted to eliminate not
only the defendant’s name but any reference to his existence.
[Citation.] ‘When, despite redaction, the statement obviously
refers directly to the defendant, and involves inferences that a
jury ordinarily could make immediately, even were the confession
22
the very first item introduced at trial, the Bruton rule applies
and introduction of the statement at a joint trial violates the
defendant’s rights under the confrontation clause.’ ” (Capistrano,
supra, at p. 869.)
The statements admitted by the court plainly did not
violate Aranda and Bruton because, as the trial court recognized,
they did not refer to McGhee’s existence in any way. They did
not even use pronouns like “we,” “us,” “they,” or “them” to suggest
the presence of any other individual at the robbery. While the
statements might have incriminated McGhee when linked to
other evidence, that does not render the statements improper
under Aranda and Bruton. Further, both the prosecutor and the
court told the jury repeatedly it could only use each statement
against the defendant who made it and no one else. Under these
circumstances, we find no error.
b. Request to excuse jurors and for mistrial
i. Procedural background
McGhee contends the trial court deprived him of an
impartial jury when it refused to excuse three jurors during
deliberations or declare a mistrial after one juror expressed
concern someone might have been photographing them in the
courthouse parking lot. We disagree.
During deliberations, the trial court advised counsel the
court clerk received a call from Juror 2, who said as she was
leaving the courthouse the previous day a female in a black
Toyota sedan took photographs of her leaving the parking lot.
The incident upset her and she spoke to Jurors 8 and 3 about it.
She also had someone else drive her to court the next day.
The court separately interviewed Jurors 2, 3, and 8 about
the incident. Juror 2 explained to the court:
23
“[A]s I was pulling out, a little bit to my right there was a
black Toyota sedan, and as I was looking to my right I noticed a
hand came out of the car. And to me it looked like it was a cell
phone, and it looked like it was pointed right at my car. So it
would be directly facing the front of my car. And I thought, did I
just imagine that or am I paranoid? So I drove home.
“I looked around to see if I was being followed. No. Got to
my daughter’s school. And I called Juror number eight. I don’t
have everybody’s number, just eight and the alternate. And I
said, did you notice anything funny when you were driving out of
the parking lot? Yeah, there was a black car taking selfies. I
said, ‘Are you sure they were taking selfies, because I thought the
camera was pointed to me.’ And she said, ‘I left after you and
thought they were taking selfies.’
“So she called Juror no—sitting next to me, Juror number
three. And Juror number three said, yes, she saw the phone
come out of the car, and she saw it flash. And she asked her, ‘Do
you think it was a selfie?’ And she said, ‘It looked like the flash
was towards me.’ And also one of the other jurors, the guy, I
don’t know what number he is, he said that when he was pulling
out [of] the parking lot, he also saw the phone come out, but he
thought they were taking selfies. So they thought they were
taking a lot of selfies, and we are paranoid. So somebody is
taking pictures of us, my car, my license.”
The court asked Juror 2 if she recognized the person, and
she said, “All I know, it was a female. I didn’t notice anything
else. I don’t know if I saw hair or how I know it was a female, but
the other two jurors also said it was a female.” The court
informed her it would tell the other jurors it would provide
escorts at lunch and asked her to follow the law and give both
24
sides a fair trial. Juror 2 asked if there were cameras in the
parking structure, and the court responded, “[E]verything will be
looked into. But what I need you to do is not hold that against
any party. We don’t know if they were selfies. You don’t know
who it is associated with. It could be just someone taking
photographs. You have no idea if it relates to any of the parties
involved. Correct?” Juror 2 responded, “Correct.” The court
finished, “So what I will ask you to do is set this aside and be fair
to all sides. Can you do that?” Juror 2 responded, “Correct. As
long as I feel like I’m safe here.” The court said, “We’ll make sure
that you feel safe.” Juror 2 responded, “Okay.” She then agreed
not to discuss the issue with other jurors.
Juror 8 told the court: “I was starting to leave. I noticed
that there was a person sitting in the car. It was an all black car,
and the window was down. Their arms were out the window.
You couldn’t see their faces. And they had like a cell phone
camera, so I thought—at first I didn’t think too much. I thought
they are taking selfies. But usually you would see somebody’s
face or something. It just kind of—I didn’t really think too much
of it, except that it was just strange that the camera was outside
of the car, like almost all the way outside the car, and I knew
there was somebody else in the car with her. It was a young girl.
That much I do know. Skinnier arms. Kind of olive complexion.
[¶] And as I made a right-hand turn, I just thought, okay,
teenager taking selfies. Didn’t really think much of it. Kept
going. Then I received a phone call from Juror number two. And
she asked me, ‘Did you notice a girl in the black car taking
pictures of our cars?’ And I said I didn’t know if she was taking
pictures of her or us, and I told her—”
25
The court asked, “You thought they were possibly selfies?”
She responded, “I thought possibly selfies. And I thought—but
that is strange she saw it too. And she left after I did, probably
like four or five minutes after I did. I think I was out, you know,
way before her because she was still talking to two other jurors in
the parking lot when I was leaving. And so I thought, well, that’s
kind of a long time to wait—or a long time to be taking selfies.
[¶] So then I called another juror and asked if she saw it, and she
said, yes. And I said, ‘Did you think they were taking selfies?’
And she said, well, the only thing that was strange to her was the
flash was going back or was not going back into the car, the flash
was coming out of the car.” The court asked, “So at this point you
don’t know who it was. Correct?” Juror 8 responded, “No.
Absolutely. I never saw the face. I could definitely identify it
was a female. There was probably a ring or something on the
finger. But just the shape of the arms, it was definitely a
female.” The court again inquired, “You thought they might have
been doing selfies?” Juror 8 responded, “Yes,” and added, “I’m
not a hundred percent sure they were taking pictures of our
cars.”
The court asked Juror 8 to set the matter aside, and she
responded she could do that and be fair to both sides. The court
instructed her to follow the law, and she responded, “Absolutely.”
The court asked if she had any “issues,” to which she responded,
“I do not have a problem with that.” She asked for an “[e]scort,
maybe, when we leave,” and the court said it may be able to
arrange that. She said her husband dropped her off that morning
“just to play it safe.” The court asked if she attributed the
incident to anyone, and she said, “Absolutely not.” She then
agreed not to discuss the issue with anyone.
26
Juror 3 told the court: “I was behind a black truck, and
there was a car on my left-hand side with a female that had stuck
her hand out the window with a cell phone. I only saw a flash go
off. It could have been a reflection or flash, but it wasn’t towards
my car. I saw it towards the black truck in front of me. I thought
that was kind of odd somebody is taking pictures, but I can’t say
it was of myself. It was probably of the car in front of me.” She
added, “[T]here was somebody else in the passenger seat, but he
wasn’t paying attention to what she was doing.” She said she did
not recognize the person and “couldn’t tell” if they were taking a
photograph of themselves. She saw “the phone out the window
with the flash that went off.”
The court instructed her to disregard the incident. She
said she could follow that instruction and give all sides a fair
trial. She would not be affected by the incident in any respect.
When asked if she had spoken to other jurors, she said, “I spoke
with Juror number eight. She actually is the one that called me
yesterday. She asked if I had recognized something unusual.
That’s the person I had the first contact with. And, yes, we were
talking about it out there. I’m not going to lie and say we are
not.” The court asked, “Just generally among the jurors there
was a possible photograph[] taken yesterday?” She responded,
“Correct. That was it. We didn’t debate about what it was
indicating, just recognize there was a car and a female who was
taking pictures.” She indicated she would not discuss the issue
with other jurors.
McGhee’s counsel asked the court to excuse Jurors 2, 3, and
8 for cause. Edwards’s and Higgs’s counsel also moved for a
mistrial, which McGhee’s counsel later joined. The court denied
the mistrial, explaining, “I spoke to Jurors two, eight and three
27
and conducted extensive questioning of them. All of them were
somewhat unclear as to what occurred. One thought possibly it
was selfies. They all indicated it was somewhat suspicious. They
were unable to link it to anyone involved in this case whatsoever.
They all indicated that they could put it aside and be fair to all
sides.” The court denied the request to dismiss any jurors “in
light of the fact there is no good cause shown, and in light of the
responses of the jurors indicating they could be fair and follow
the law.”
The court admonished the full jury: “Ladies and gentlemen
of the jury, it has come to my attention of an incident regarding a
cell phone that occurred yesterday in the parking lot. At this
point there is no evidence that it is connected with anyone
involved in this case. I’m going to be ordering you to disregard
anything you may have heard or saw about the incident. At this
point, you are also ordered not to further discuss this matter. I’m
also going to instruct you, you are not to consider this incident for
any reason whatsoever, and not let it affect your deliberations in
any way. [¶] Also, just as an abundance of caution, the court is
going to provide escorts after lunch, or at the time of lunch, and
when you leave the courtroom. So that’ll be provided for you. So,
again, you must not consider this incident for any reason
whatsoever, and not let it affect your deliberations in any way.”
The court asked if anything would prevent the jurors from being
fair and impartial, and no juror raised a hand.
Later, McGhee’s counsel augmented the record as follows:
“Description by one or more of the jurors was they saw a dark-
colored car and an arm extended outside, one of the jurors said,
and was using two arms to extend outside the car. And one of the
jurors described that arm, olive-colored arm, and I’m sure the
28
court has figured out Mr. Higgs had his sister in court, a young
African American female, and McGhee’s family has had
Mr. McGhee’s sister in court, a young African American female.
So the concern is that any perception of something being done
against a juror I think would be more against the defense than
certainly the prosecution. So I wanted to augment the record
with that because, absent that, anybody reviewing this record
would not know those people were in the courtroom.”
The prosecutor responded: “As I think we’ve all been able
to observe, but the record would be silent on this issue, but
throughout this trial there have been a number of audience
members. I think that there may have been a couple that were
not African American, but I believe that the rest were African
American, most of whom are very dark complected. There are
some of the audience members that are lighter skinned, but I
couldn’t classify any of them as being olive-skinned individuals.
[¶] So my feeling is that nobody in the courtroom, nobody in the
audience will be classified as having olive skin, and therefore will
not be potential suspects in the photographing. Additionally, I
believe that the jurors, when questioned, stated that they did not
identify anybody, they did not identify the photographer, so to
speak, as being anybody associated with this case, and I
assume—I think the implication was clear that included audience
members.”
The court again denied the mistrial motion for the reasons
previously explained on the record. The court noted Juror 2 “did
appear to be upset; however, she did indicate she would be able to
follow the court’s orders and directions and would be able to
continue to be a juror.”
29
ii. Analysis
A criminal defendant has a constitutional right to trial by
an impartial jury, so a “juror’s misconduct or involuntary
exposure to certain events or materials other than what is
presented at trial generally raises a rebuttable presumption that
the defendant was prejudiced and may establish juror bias.”
(People v. Merriman (2014) 60 Cal.4th 1, 95; see People v. Harris
(2008) 43 Cal.4th 1269, 1303 (Harris) [“ ‘[T]ampering contact or
communication with a sitting juror . . . usually raises a rebuttable
“presumption” of prejudice.’ ”].) That presumption may be
rebutted and the verdict left undisturbed “if a reviewing court
concludes after considering the entire record, including the
nature of the misconduct and its surrounding circumstances, that
there is no substantial likelihood that the juror in question was
actually biased against the defendant. [Citations.] Our inquiry
in this regard is a ‘mixed question of law and fact’ subject to
independent appellate review. [Citation.] But ‘ “[w]e accept the
trial court’s credibility determinations and findings on questions
of historical fact if supported by substantial evidence.” ’ ”
(Merriman, supra, at p. 95.) “An admonition by the trial court
may also dispel the presumption of prejudice arising from any
misconduct.” (People v. Tafoya (2007) 42 Cal.4th 147, 192–193.)
It is not clear on this record whether the photographing
incident recounted above related to the trial here or any of the
participants, so we are hesitant to conclude there was any
misconduct that might have tainted the jury. But even if it
constituted misconduct raising a presumption of prejudice, that
presumption was rebutted because the record demonstrates there
was no substantial likelihood any juror was actually biased
against McGhee. The trial court extensively questioned Jurors 2,
30
3, and 8 about the incident, and none of them recognized the
person with the cell phone taking photographs or could even be
certain she was taking photographs of them. If she was, none of
the jurors attributed her conduct to either the prosecution or any
of the defendants. And all of them affirmed they could set the
incident aside and judge the case impartially, even if Jurors 2
and 8 expressed some desire to “play it safe” with a court escort
outside the courtroom. (See Harris, supra, 43 Cal.4th at p. 1304
[courts may rely on statements from jurors that event would not
affect deliberations].) Further, the court admonished the entire
jury not to consider the incident or let it influence deliberations
in any way, and no juror expressed any reluctance in doing so.
Thus, the court properly denied a mistrial and properly declined
to excuse any jurors.
c. Challenge to sentence
McGhee briefly contends the trial court failed to make an
adequate record under Miller v. Alabama (2012) 567 U.S. 460,
465 before sentencing him to LWOP as a juvenile. McGhee’s
appellate counsel complained he made repeated requests to
augment the record but never received the transcript of McGhee’s
sentencing. As respondent points out however, it appears the
record was augmented with that sentencing transcript on July 8,
2015. We do not know why McGhee’s appellate counsel was
unaware the transcript had been added to the record. In any
case, we decline respondent’s invitation to summarily reject
McGhee’s contention and will review the merits.
We find the record here adequate to support McGhee’s
LWOP sentence.
Miller requires a sentencing court, “in exercising its
sentencing discretion, to consider the ‘distinctive attributes of
31
youth’ and how those attributes ‘diminish the penological
justifications for imposing the harshest sentences on juvenile
offenders’ before imposing life without parole on a juvenile
offender.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1361
(Gutierrez).)
Those attributes include (1) a juvenile offender’s
“ ‘chronological age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and
consequences’ ”; (2) “any evidence or other information in the
record regarding ‘the family and home environment that
surrounds [the juvenile]—and from which he cannot usually
extricate himself—no matter how brutal or dysfunctional,’ ”
including “evidence of childhood abuse or neglect, familial drug or
alcohol abuse, lack of adequate parenting or education, prior
exposure to violence, and susceptibility to psychological damage
or emotional disturbance”; (3) “any evidence or other information
in the record regarding ‘the circumstances of the homicide
offense, including the extent of [the juvenile defendant’s]
participation in the conduct and the way familial and peer
pressures may have affected him’ ”; (4) “any evidence or other
information in the record as to whether the offender ‘might have
been charged and convicted of a lesser offense if not for
incompetencies associated with youth—for example, his inability
to deal with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attorneys’ ”; and
(5) “any evidence or other information in the record bearing on
‘the possibility of rehabilitation,’ ” including the extent or absence
of criminal history. (Gutierrez, supra, 58 Cal.4th at pp. 1388–
1389.)
32
Here, as the court noted at sentencing, McGhee was facing
a third strike sentence because the jury found the prior
conviction allegations true. The prosecutor argued for an LWOP
sentence because McGhee “not only murdered somebody and
permanently injured somebody else, but he got two other people
involved that probably never would have been involved in
something like this. And one of them was a close friend of his,
and he really destroyed that person’s life. He got another person
he barely knew involved, and completely destroyed that person’s
life—[.]” McGhee interjected at that point: “They grown men.”
The prosecutor continued, “This defendant caused so much pain
to so many people; pain that’ll not go away. Anthony Sanchez
[(Sanchez-Torrez’s son)] will never have a father. [Rick]
Sandoval will never be the same. This defendant has behaved in
such a callous fashion over a period of time. He shot at Nickolas
[sic] Gordian under a bridge. He conducted himself with such a
wanton and reckless disregard for human life. He’s a danger.
And throughout this process I’ve not seen one wit [sic] of remorse
from him. Not any.”
McGhee’s counsel responded, “[T]his is a young man who
was 17 at the time. 17. And I don’t know if counsel remembers
his youth. I have a clear recollection of mine. It’s just a matter of
luck that I didn’t get in a lot of trouble when I was 17. 17-year-
olds are not adults. They do things impulsively. They don’t think
things out. Their mind is not fully developed. They are going
through a lot of emotional changes in their body, and they act out
differently. [¶] Teenagers are treated differently because they
are not adults. They’re not—and to say that a 17-year-old should
be held when he is kept in prison at the expense of the state until
he is my age or older is a crime in itself, in my opinion. In fact,
33
the case law—there is a decision now that says minors should not
get life without possibility of parole because we’ve had cases
where the person had life without the possibility of parole, comes
back to court and the sentence has been reduced because the
sentence must not be life without the possibility of parole. It is
cruel and unusual punishment. It is punishment for a crime for
actions of a child. [¶] To say that—I don’t know whether [the
prosecutor] had any private conversations with my client. To
make the determination that he doesn’t have any feelings of
remorse for his actions is a statement without any basis. Once
again, we can do something. We’re here to act in a mature way,
and mature adults should not treat a child like an adult and give
them life without the possibility of parole.”
The prosecutor pointed out McGhee had just called
Edwards and Higgs “grown men,” when they were the same age
as he was when they committed the crimes. So McGhee “is
saying that for all intents and purposes everybody was
functioning as grown men and they were acting with the full
cognizance of what was going on. This defendant knew what he
was doing and he needs to be locked up forever.”
In sentencing McGhee, the court expressly recognized the
requirements of Miller: “Looking at the cases regarding
determining whether the defendant will get an L.W.O.P. sentence
or life, when a court elects to sentence a juvenile offender to life
without parole for homicide offense, the court must weigh the
applicable factors set forth in the [sic] Miller v. Alabama. And
the [sic] Miller v. Alabama holds that a mandatory life of
imprisonment without parole for those under the age of 18 at the
time of their crime violates the Eighth Amendment prohibition
on cruel and unusual punishment.”
34
The court continued, “Miller does not bar punishment of
L.W.O.P. for minors, but it does determine that the sentencing
court must consider various factors set forth in the Miller
decision, and in this matter the court has considered the Miller
factors in reaching his conclusion. In this case, the facts of the
case—and, again, I’m not going to go through each one of the
Miller factors, but I have reviewed them and considered them in
my sentencing. [¶] The various facts of the actual incident, just
for the record, is that the defendant arrives with a weapon. He
goes to rob an individual with an accomplice. Fires the weapon
multiple times at a robbery victim. When a good Samaritan
comes to the robbery victim’s aid, that good Samaritan is shot.
The good Samaritan falls and dies right in front of his young son
who sees his father die in front of him. The defendant then again
turns the gun on the robbery victim and fires a weapon. [¶] But
for the fact that gun misfired, this would be a double murder.
The defendant has showed a conscious disregard for human life,
and I do believe that this is one of those rare occasions where the
factors set forth and the type of the crime reflects [an] irreparable
degree of corruption and harm, and it’s just an egregious crime.
So I do believe an L.W.O.P. sentence is appropriate, given the
Miller factors. I have considered them.”
This record satisfies Miller. Although the court did not
expressly discuss all the Miller factors, McGhee’s counsel argued
that his immaturity and impulsivity counseled against an LWOP
sentence. The court considered and rejected that argument,
finding the egregiousness of the crime demonstrated an
irreparable degree of corruption that justified treating McGhee as
an adult subject to an LWOP sentence. Having recognized its
discretion under Miller, the court acted well within that
35
discretion in finding McGhee’s actions in convincing two
accomplices to commit a robbery that led to McGhee’s cold,
callous murder of an innocent bystander attempting to help the
robbery victim was one of those “rare occasions” justifying an
LWOP sentence.
DISPOSITION
The judgment of conviction as to Diamonte Jerome McGhee
is affirmed.
The judgment of conviction as to Eric Michael Edwards is
affirmed in part and reversed in part and remanded for further
proceedings consistent with this opinion. The convictions for
murder (count 1) and all four attempted murders (counts 2, 3, 12
& 17) are reversed. The robbery-murder special-circumstance
finding and all findings and enhancements associated with
counts 1, 2, 3, 12 and 17 are reversed. In all other respects, the
judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
36