People v. Corder CA2/5

Filed 10/31/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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 in part,
reversed in part, and remanded with directions as to defendant
Stephon Crutchfield. Affirmed and remanded with directions as
to defendants Brian Boseman Corder and Fredericka Carmouche.
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 Fredericka Carmouche.
 Mark R. Yanis, under appointment by the Court of Appeal,
for Defendant and Appellant Stephon Crutchfield.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Roberta L. Davis 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

1 Crutchfield was found not guilty in count 1.

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

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

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

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injury on the victim (§ 12022.7, subd. (a)), and that Carmouche
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

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

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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.

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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 issued a
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. We remanded 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 affirmed the trial court’s
judgment.
Defendants petitioned for review a third time. Our
Supreme Court denied review as to Corder and Carmouche, but
granted Crutchfield’s petition for review. The Supreme Court
deferred further action in the matter pending consideration and
disposition of a related issue in In re Lopez, S258912 or further
order of the court.
On May 31, 2023, the Supreme Court transferred the
matter back to this court with directions to vacate our decision
and reconsider the cause in light of its decision in In re Lopez
(2023) 14 Cal.5th 562 (Lopez). We have vacated our April 14,
2022 opinion, and now issue this revised opinion addressing all of

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defendants’ arguments, including their new arguments relating
to Lopez.7
Crutchfield’s conviction for willful, deliberate, and
premeditated attempted murder in count 2 is reversed and the
associated personal infliction of great bodily harm enhancement
is vacated. The cause is remanded to the trial court to allow the
prosecution to retry Crutchfield on a legally valid theory if it so
elects. The trial court’s judgment is otherwise affirmed.
We affirm the judgment as to Corder and Carmouche, but
remand for the limited purpose of allowing the trial court to
determine whether to exercise its discretion under Assembly Bill
518 as to each.

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.

7 It is unclear whether the Supreme Court intends for this
court to consider the impact of Lopez with respect to Corder and
Carmouche, whose petitions for review it denied. However, in
light of the Supreme Court’s order to vacate the opinion and issue
a new opinion, we have done so in an abundance of caution.

6
 GiGi and Corder had a rocky, sometimes violent, marriage.
Corder tackled and punched GiGi once when she confronted him
about emails 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
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

7
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
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

8 Corder attended the Los Angeles Film and Recording
School.

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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.
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.

9
 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,
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

10
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.

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.”

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 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
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

9 Other 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

12
 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
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

before answering the door because she was embarrassed about
being naked.

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

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 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.

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.

12 “Fame” was a name used by Crutchfield.

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 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,
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.”
On June 7, 2012, approximately a week before the
attempted murder, Carmouche texted Corder complaining about
a physical altercation she had with her mother’s boyfriend that
left a blood stain on the carpet. Carmouche texted: “ ‘I don’t

15
know what to do. I hurt him pretty bad. I’ve been trying to get
the smell of blood off my hands for 2 hours. I am disturbed as
fuck.’ ” Corder responded, “ ‘Just soak ur hands in warm water
and peroxide for about 5 minutes . . . . wash ur hands w/soap,
then lotion them up.’ ” Carmouche replied, “ ‘Aaaaah, peroxide!
Thats it. Forgot I was talking to an expert here. . . .’ ” Corder
then texted, “ ‘. . . and don’t text shit like that . . . . I just deleted
it . . . .’ ”
In texts on June 13, 2012, Carmouche told Corder that she
planned to get a tattoo “ ‘for both of us to show U Im serious.’ ”
She texted, “ ‘I want to commit myself to U regardless if U do or
not Im just loyal like T-H.’ ” and “Seriously U need to wakeup
and realize how I feel for you. And my willingness to devote
myself to you.’ ”
There were other 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

16
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.

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

17
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
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

18
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
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

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

19
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.
Carmouche was not originally included in the plan to scare
GiGi. Corder 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, to meet
Corder. Corder drove all three defendants to GiGi’s apartment
building. As Crutchfield and Carmouche 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 near her chest to avoid harming the baby, and then punched
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.

20
 Crutchfield heard Carmouche say, “Get her, get her.” She
also said, “Your husband is not coming, bitch.” Crutchfield heard
glass breaking several times. He fled when he was attacked by
GiGi’s dog. As Crutchfield left he saw Carmouche crouching by
GiGi, but he could not see what Carmouche was doing.
Crutchfield and Carmouche left the apartment and ran to
Corder’s car, which was parked a few blocks away. The original
plan was for Crutchfield and Carmouche to leave. Corder “was
supposed to go to the apartment and rescue and be the hero.”
But Corder did not go to the apartment when Crutchfield was
there. When they got back to the car, Corder was already there.
He 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
with GiGi by roughing her up. The situation escalated when
GiGi fought back.
Crutchfield denied saying “ ‘Die bitch.’ ” and “ ‘The bitch
won’t die.’ ”, but he remembered Carmouche saying “ ‘Die bitch.’ ”
Crutchfield wondered why Carmouche said this because they
were not planning to kill anyone, but he did not say anything to
Carmouche about it. Crutchfield saw Carmouche crouching near
GiGi as he was leaving. He testified, “ ‘I had to leave. I was like,
‘This is going way too far. I gotta get out of here.’ ” Crutchfield
never saw what Carmouche was doing.

Corder

Monda Fakhroo testified that she was visiting friends at
the apartment building where GiGi lived on June 15 or 16, 2012.

21
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

Conspiracy to Commit Murder

“ ‘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).)
“Conspiracy is a crime distinct from the substantive offense that
is its object; it does not require commission of the substantive
offense (target offense). [Citations.] The conspiratorial
agreement is itself the essence of the crime, and is what it seeks
to punish.” (People v. Cortez (2018) 24 Cal.App.5th 807, 818.)
Corder and Carmouche make two challenges to their
convictions for conspiracy to murder in count 1, which we discuss
in turn.

22
 Lesser Included Offenses

Corder and Carmouche first contend that their convictions
for conspiracy to commit murder in count 1 must be reversed
because the trial court failed to instruct on the lesser included
offenses of conspiracy to commit assault, conspiracy to commit
assault with a deadly weapon, and conspiracy to commit assault
with force likely to produce great bodily injury. We reject the
contention.

Law

“ ‘ “ ‘ “[I]t is settled that in criminal cases, even in the
absence of a request, the trial court must instruct on the general
principles of law relevant to the issues raised by the evidence.
[Citations.] The general principles of law governing the case are
those principles closely and openly connected with the facts
before the court, and which are necessary for the jury’s
understanding of the case.” [Citation.] That obligation has been
held to include giving instructions on lesser included offenses
when the evidence raises a question as to whether all of the
elements of the charged offense were present [citation], but not
when there is no evidence that the offense was less than that
charged. [Citations.]’ ” ’ (People v. Valdez (2004) 32 Cal.4th 73,
115.)” (People v. Banks (2014) 59 Cal.4th 1113, 1159 (Banks),
abrogated on another ground by People v. Scott (2015) 61 Cal.4th
363.)
“The rule that juries must be instructed on lesser included
offenses ‘ “prevents either party, whether by design or

23
inadvertence, from forcing an all-or-nothing choice between
conviction of the stated offense on the one hand, or complete
acquittal on the other. Hence, the rule encourages a verdict,
within the charge chosen by the prosecution, that is neither
‘harsher [n]or more lenient than the evidence merits.’ ” ’ (People
v. Smith (2013) 57 Cal.4th 232, 239–240 (Smith ).)” (Banks,
supra, 59 Cal.4th at pp. 1159–1160.)
“ ‘On appeal, we review independently the question
whether the trial court improperly failed to instruct on a lesser
included offense.’ (People v. Souza (2012) 54 Cal.4th 90, 113.)
‘For purposes of determining a trial court’s instructional duties,
we have said that “a lesser offense is necessarily included in a
greater offense if either the statutory elements of the greater
offense, or the facts actually alleged in the accusatory pleading,
include all the elements of the lesser offense, such that the
greater cannot be committed without also committing the
lesser.” ’ (Smith, supra, 57 Cal.4th at p. 240, italics added.)
When applying the accusatory pleading test, ‘[t]he trial court
need only examine the accusatory pleading.’ (Id. at p. 244.) ‘[S]o
long as the prosecution has chosen to allege a way of committing
the greater offense that necessarily subsumes a lesser offense,
and so long as there is substantial evidence that the defendant
committed the lesser offense without also committing the greater,
the trial court must instruct on the lesser included offense.’
(Ibid.)” (Banks, supra, 59 Cal.4th at p. 1160.)

Analysis

Neither Corder nor Carmouche argues that conspiracy to
commit assault, conspiracy to commit assault with a deadly

24
weapon, or conspiracy to commit assault with force likely to
produce great bodily injury is a lesser included offense of
conspiracy to murder under the elements test. The question
then, is whether one of these crimes is a lesser included offense of
conspiracy to murder under the accusatory pleading test. They
argue that these offenses are lesser included offenses in light of
Overt Act III, as alleged in the amended information, which
states: “On June 16, 2012, Fredericka Carmouche and Stephon
Crutchfield beat and stabbed GiGi C. using numerous weapons
stating, ‘The bitch won’t die.’ ”
Case authority is split on the question of whether overt acts
contained in the accusatory pleading should be considered when
evaluating whether an offense is a lesser included offense of a
conspiracy. In People v. Cook (2001) 91 Cal.App.4th 910, 918, the
Third Appellate District concluded that “the trial court may look
to the overt acts pleaded in a charge of conspiracy to determine
whether the charged offense includes the lesser included offense.”
(Id. at p. 914.) There, defendants had been charged with
conspiracy to commit murder, but the trial court also instructed
the jury on a lesser included offense of conspiracy to commit
assault with a firearm. On appeal, defendants claimed
instruction on the lesser included offense was error. The overt
acts alleged included that the conspirators acquired a firearm
and that, in pursuit of the conspiracy, they shot and killed one
victim and shot and wounded another. (Id. at p. 919 & fn. 22.)
The appellate court observed that when murder is alleged to have
been committed by means of a firearm, “it cannot be so
committed without also committing an assault with a firearm.”
(Id. at p. 920.) The court concluded that “the jury must
determine which felony the defendants conspired to commit, and

25
it cannot make that determination unless it is instructed on the
elements of the target offense charged as well as the elements of
any lesser included target offense which the jury could
reasonably find to be the object of the conspiracy. [Citations.]
Thus, the trial court has a sua sponte duty to instruct the jury on
a lesser included target offense if there is substantial evidence
from which the jury could find a conspiracy to commit the
offense.” (Id. at p. 918.) Because the overt acts alleged
“necessarily include and gave notice of, the elements of assault
with a firearm,” the Court of Appeal held the trial court properly
instructed the jury on the lesser target offense. (Id. at p. 920.)
On the other side of the appellate conflict is People v.
Fenenbock (1996) 46 Cal.App.4th 1688, 47 Cal.App.4th 1167C, in
which Division One of the First Appellate District held “in the
context of deciding whether the trial court was obligated to
instruct sua sponte on lesser included offenses, we conclude that
allegations of overt acts committed in furtherance of the alleged
conspiracy do not provide notice of lesser included target
offenses.” (Id. at p. 1708.) The reason for this is that, when the
charged offense is conspiracy, “[i]t is the agreement, not the overt
act in furtherance of the agreement, which constitutes the
offense.” (Id. at p. 1709.) “In our view, it is the description of the
agreement within the accusatory pleading, not the description of
the overt acts, which must be examined to determine whether a
lesser offense was necessarily the target of the conspiracy. Here,
the information alleged only that defendants conspired to murder
[the victim]. There is nothing in this terse description of the
agreement to indicate an agreement with a lesser objective. We
therefore hold that the trial court was not required to instruct the
jury sua sponte on conspiracy to commit assault, battery, or

26
mayhem as lesser offenses included within the charged offense of
conspiracy to commit murder.” (Id. at p. 1709.)
In People v. Cortez, supra, 24 Cal.App.5th 807, Division
Two of the Fourth Appellate District charted a middle course.
The court agreed with People v. Cook, supra, 91 Cal.App.4th 910,
to the extent that the alleged overt acts could be considered in
determining whether the accusatory pleading encompasses an
allegedly lesser included offense. (Cortez, supra, at p. 820.)
However, the focus must nonetheless be on the conspirators’
agreement, not the conspirators’ acts. That is, the court should
consider whether the overt act allegations “establish[ ] that the
defendant has agreed or conspired to commit lesser included
target offenses.” (Ibid.) There is no duty to instruct on
conspiracy to commit assault with a firearm as lesser to
conspiracy to commit murder when “[t]he description of the
conspiratorial agreement to commit murder cannot be fairly read
to describe or encompass . . . conspiracy to commit assault with a
firearm . . . .” (Id. at p. 821.) The court noted that even if the
defendants actually committed an assault with a firearm, it did
not change the original nature of their conspiracy, which was to
commit murder, and it did not render assault with a firearm a
necessarily included target offense of the conspiracy to commit
murder. (Ibid.)
We agree with Cortez and Fenenbock to the extent they
reason that the crime of conspiracy turns on the agreement, not
the overt acts. If the alleged agreement was only to commit
murder, it cannot be said that an agreement to commit assault,
assault with a deadly weapon, or assault with force likely to
produce great bodily injury is a lesser included offense. This is

27
true even when the overt acts may be consistent with a different,
unalleged conspiracy.
Here, the information alleged that defendants “unlawfully
conspire[d] together and with another person and persons whose
identity is unknown to commit the crime of MURDER.” Overt
Act I—which defendants argue was not a valid overt act, as we
will next discuss—stated: “On June 15, 2012, Brian Corder,
Fredericka Carmouche and Stephon Crutchfield created a plan to
kill Brian Corder’s estranged wife, Gigi C.” Conspiracy to commit
assault, assault with a deadly weapon, and assault with force
likely to produce great bodily injury are not necessarily included
within these allegations.
We also reject Corder’s and Carmouche’s argument that the
allegations of the attempted murder charge in count 2, which
catalogued the deadly weapons allegedly used by Corder and
Carmouche, inform the inquiry. Our Supreme Court has held
that gun use enhancement allegations in an accusatory pleading
could not be used to establish that assault with a deadly weapon
was a lesser included offense of a charged robbery. (People v.
Wolcott (1983) 34 Cal.3d 92, 100–102.) Following the Supreme
Court’s decision, appellate “courts have concluded that under the
accusatory pleading test, gun use and great bodily injury
enhancement allegations accompanying an attempted murder
charge do not render assault with a deadly weapon a lesser
included offense of the charged attempted murder. (People v.
Parks (2004) 118 Cal.App.4th 1, 6; People v. Richmond (1991) 2
Cal.App.4th 610, 616.)” (People v. Alarcon (2012) 210
Cal.App.4th 432, 436.) The allegations contained in the
attempted murder charge here are even more removed from the

28
conspiracy charge than an enhancement allegation, and we will
not consider them.
Finally, we reject Corder’s and Carmouche’s argument that
the trial court had a sua sponte duty to instruct on the alleged
lesser included offenses solely because there was substantial
evidence at trial (particularly the testimony of Crutchfield) that
there was an agreement to scare and rough up Gigi: they argue
such evidence was sufficient to support instructions on the lesser
included offense. A trial court’s sua sponte duty to instruct on
lesser included offenses, however, is only triggered when the
offense is a lesser included offense under the elements or
accusatory pleading test and supported by sufficient evidence in
the record. (See Banks, supra, 59 Cal.4th at p. 1160.)
For all of these reasons, we conclude that the trial court
had no duty to instruct on conspiracy to commit assault,
conspiracy to commit assault with a deadly weapon, or conspiracy
to commit assault with force likely to produce great bodily injury
as a lesser included offense of conspiracy to murder.

Overt Acts

Corder and Carmouche next contend 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 argue that it is
impossible to know whether the jury’s verdicts were based on
proper overt acts because the jury is not legally required to
unanimously agree regarding which overt acts have been

29
committed, and in this case the verdict forms did not indicate
which acts formed the basis for the verdicts.

Law

A defendant cannot be convicted of conspiracy 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.)

Analysis

Corder and Carmouche argue that Overt Act I—“On
June 15, 2012, Brian Corder, Fredericka Carmouche and Stephon
Crutchfield created a plan to kill Brian Corder’s estranged wife,

30
Gigi C.”—is not a valid overt act because it alleges only that
defendants agreed to conspire, and that Overt Act V—“On June
15, 2012, Brian Corder drove Fredericka Carmouche and Stephon
Crutchfield from the residence of Gigi C. after they attempted to
kill her.”—is not a valid overt act because the act took place after
the attempted murder.
Even if we assume that the trial court erred by instructing
the jury regarding these overt acts, any error is harmless beyond
a reasonable doubt.14 The jury convicted Corder and Carmouche
of premeditated, willful, and deliberate attempted murder—i.e.,
the jury unanimously found that Corder and Carmouche
attempted to commit the crime that was the object of the
conspiracy. 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 People v. Aledamat
(2019) 8 Cal.5th 1, 10 (Aledamat)), 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 by Corder and Carmouche’s convictions of attempted

14 No objection was raised in the trial court to these overt
acts. The Attorney General did not argue Corder and Carmouche
forfeited the issue, and we resolve it on grounds other than
forfeiture.

31
murder. Any error in the instructions with respect to Overt Acts
I and V was necessarily harmless.15
Corder and Carmouche argue that this court (which relied
on the same reasoning in its previous, now-vacated opinions)
improperly used their allegedly invalid convictions for conspiracy
to commit murder and attempted murder to bolster one another
in a circular fashion. Corder and Carmouche miscomprehend our
reasoning. The issues are certainly intertwined, but the logic is
not circular. As we will explain below, each conviction is
supported by a valid jury finding that was necessary to the other
conviction. Taken together, the jury’s valid findings in
connection with different elements of the two convictions satisfy
the elements of both convictions beyond a reasonable doubt.

Attempted Premeditated Murder—Natural and Probable
Consequences

The jury convicted defendants of attempted willful,
deliberate, and premeditated murder. The court instructed the
jury that 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.

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

32
(CALCRIM Nos. 400 [Aiding and Abetting: General Principles];
401 [Aiding and Abetting: Intended Crimes]; 403 [Natural and
Probable Consequences]; and 600 [Attempted Murder].)
Following the Supreme Court’s second transfer back to this
court, defendants contended 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. (§ 1172.6, 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. Under current
law, a jury must find the defendant acted with malice (for our
purposes, intent to kill) before it may find a defendant guilty of
attempted murder. 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 in this case. In our prior
opinion, we concluded that any error was harmless with respect
to all three defendants. We now reconsider our decision in light
of the standard for harmless error that the Supreme Court
recently articulated in Lopez, supra, 14 Cal.5th 562. We conclude
that the error was harmless as to Corder and Carmouche, but not
as to Crutchfield.

Law

Where, as the parties agree happened in this case, “a jury
is instructed on alternate theories of liability, one legally valid
and one legally invalid, a federal constitutional error has

33
occurred. The defendant has been deprived of his or her right to
‘a jury properly instructed in the relevant law.’ [Citation.] The
error therefore requires reversal unless we determine the error
was harmless beyond a reasonable doubt.” (Lopez, supra, 14
Cal.5th at p. 580.)
In Lopez, supra, 14 Cal.5th 562, the defendant was
convicted of first-degree premeditated murder after the jury was
instructed on aiding and abetting under a natural and probable
consequences theory of liability that had been held invalid in
Chiu, supra, 59 Cal.4th 155.16 The Court of Appeal found the
error harmless beyond a reasonable doubt in light of the Supreme
Court’s recent opinion in Aledamat, supra, 8 Cal.5th 1. The
appellate court based its decision on the jury’s true finding on a
“gang-murder special circumstance, which required the jury to
find that an aider and abettor acted with intent to kill, and the
‘overwhelming’ evidence against [the defendant] more generally.”
(Lopez, at p. 567.) The Supreme Court reversed, observing that
“[t]he Court of Appeal discounted the prosecutor’s discussion of

16 Chiu held that an aider and abettor may not be convicted
of first degree premeditated murder under the natural and
probable consequences doctrine. (Chiu, supra, 59 Cal.4th at
p. 167.) Under Chiu, if the error could not be deemed harmless,
the first degree murder conviction must be reversed and the
prosecutor permitted to either retry the case and seek a first
degree murder conviction under a direct aiding and abetting
theory or accept a reduction of the conviction to second degree
murder. (Id. at p. 168.) Chiu was superseded by amendments to
section 188 made through Senate Bill 1437, which abrogated the
natural and probable consequences doctrine in full with respect
to murder, attempted murder, and manslaughter. (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 248–249 [murder];
§ 1172.6, subd. (a) [attempted murder, manslaughter].)

34
the natural and probable consequences theory of first degree
murder in his closing argument, and it found a jury note
referencing that theory inconsequential under the
circumstances.” (Id. at pp. 567–568.)
In reversing the Court of Appeal, the Supreme Court
elaborated: “In Aledamat, we explored the meaning of the
harmless beyond a reasonable doubt standard in this
circumstance involving alternative theories of liability. We noted
that ‘[t]his harmless error rule applies in a variety of contexts,
such as . . . error in omitting entirely one or more elements of a
charged offense.’ (Aledamat, supra, 8 Cal.5th at p. 9.) We held
that the application of this standard for alternative-theory error
should be consistent with, and not different from, the application
of the same standard for other misdescriptions of the charged
offense. (Ibid.) Specifically, we rejected the argument that
alternative-theory error could be found harmless only where
‘there is a basis in the record to find that “the jury has ‘actually’
relied upon the valid theory.” ’ (Ibid.) Instead, a 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.’ (Id. at p.
15.) In other words, if ‘ “[n]o reasonable jury” ’ would have found
in favor of the defendant on the missing fact, given the jury’s
actual verdict and the state of the evidence, the error may be
found harmless beyond a reasonable doubt. (Ibid.)” (Lopez,
supra, 14 Cal.5th at p. 580.)
The Lopez court further expounded, “This test is exacting,
and it requires much of a reviewing court. ‘[S]afeguarding the
jury guarantee will often require that a reviewing court conduct a
thorough examination of the record. If, at the end of that

35
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.] ‘A
reviewing court making this harmless-error inquiry does not . . .
“become in effect a second jury to determine whether the
defendant is guilty.” [Citation.] Rather a court, in typical
appellate-court fashion, asks whether the record contains
evidence that could rationally lead to a contrary finding with
respect to the omitted element.’ (Ibid.)” (Lopez, supra, 14
Cal.5th at p. 581.)

Corder and Carmouche

In our prior opinion, we held that any error in instructing
on the natural and probable consequences doctrine with respect
to the attempted murder charge was harmless as to Corder and
Carmouche under Aledamat, supra, 8 Cal.5th 1. Our analysis
and conclusion are unchanged.
“It has long been established that an alternative-theory
error is harmless beyond a reasonable doubt where ‘ “it is
possible to determine from other portions of the verdict that the
jury necessarily found the defendant guilty on a proper theory.” ’
(Aledamat, supra, 8 Cal.5th at p. 8.)” (Lopez, supra, 14 Cal.5th at
pp. 585–586.) Here, the jury convicted Corder and Carmouche of
conspiracy to commit murder in count 1. Defendants have not
challenged the jury’s intent to kill finding in connection with
count 1, the conspiracy count, nor could they successfully do so.
The instructions on the conspiracy to commit murder charge were

36
separate from the instructions on the attempted murder charge
and materially different. Notably, they contained no reference to
the natural and probable consequences theory of accomplice
liability.17
As instructed, the jury could not have found Corder and
Carmouche guilty of conspiracy to commit murder and not also
found that defendants intended to kill with respect to the
attempted murder charge. As our Supreme Court stated in
Lopez, where the defendant has been convicted of conspiracy to
commit murder there is “ ‘no possibility [defendants] were found
guilty of [attempted] murder [of the same victim] on a natural
and probable consequences theory.’ ” (Lopez, supra, 14 Cal.5th at
p. 588.) Corder and Carmouche were necessarily found guilty as
either perpetrators of attempted murder, or as a perpetrator and
a direct aider and abettor of attempted murder, both of which are
still valid theories of guilt. Any error in the trial court’s

17 The jury was instructed under CALCRIM No. 563 that to
find a defendant guilty of conspiracy to murder it must find that
the defendants “intended to agree and did agree with each other
to intentionally and unlawfully kill.” The jury was further
instructed under CALCRIM No. 520: “Defendants are charged
with conspiracy to commit murder in count one. This instruction
defines the crime of murder for purposes of your verdict in count
one. [¶] . . . [¶] 1. The defendant intended to commit an act that
would cause the death of another person; [¶] AND [¶] 2. When
the defendant acted, he or she had a state of mind called malice
aforethought. [¶] The defendant acted with express malice if he
/she unlawfully intended to kill. [¶] Malice aforethought does not
require hatred or ill will toward the victim. It is a mental state
that must be formed before the act that causes death is
committed. It does not require deliberation of the passage of any
particular period of time.”

37
instruction of the jury on the additional, invalid natural and
probable consequences theory was harmless beyond a reasonable
doubt. Additionally, in light of our holding that Corder and
Carmouche were properly convicted of attempted murder under a
valid theory, it is not circular to hold harmless any instructional
error with respect to the overt acts associated with the conspiracy
to murder charge based on Corder and Carmouche’s commission
of the attempted murder.

Crutchfield

Unlike Corder and Carmouche, the jury found Crutchfield
not guilty of conspiracy to commit murder. As such, there is no
express jury finding regarding Crutchfield’s mental state that
resolves the harmless error inquiry on the attempted murder
count. Under Lopez, we must look beyond what the jury actually
found and examine the record to determine “ ‘if ‘ “[n]o reasonable
jury” ’ would have found in favor of [Crutchfield] on the missing
fact, given the jury’s actual verdict and the state of the evidence’ ”
before we may find the error harmless beyond a reasonable
doubt. (Lopez, supra, 14 Cal.5th at p. 580.)
Here, Crutchfield testified that he agreed to rough Gigi up
so that Corder could play the hero and regain her affection. He
denied any intent to kill GiGi, and testified that when he realized
it had gone too far he fled the apartment. Crutchfield’s testimony
that he sat on GiGi’s chest rather than her stomach to protect the
baby was consistent with GiGi’s testimony regarding his
positioning, and inconsistent with a finding that he intended to
kill GiGi, as killing her would have endangered the baby’s life.
Crutchfield’s testimony that he did not use any implements to hit

38
GiGi or cut her throat was also consistent with GiGi’s account of
events, and could support the inference that even if Carmouche
intended to kill GiGi by attempting to cut her throat using
broken glass, Crutchfield did not share that intent. Crutchfield
testified that although he saw Carmouche crouching near GiGi as
he left, he never saw her do anything to GiGi. Crutchfield has
thus “ ‘contested the omitted element [of intent to kill] and raised
evidence sufficient to support a contrary finding.’ ” (Lopez, supra,
14 Cal.5th at p. 581.) However unlikely we may find it, it is
possible that a jury could find that Crutchfield entered GiGi’s
apartment with the intent to assault her with force likely to
cause great bodily injury rather than with intent to kill.
Such a finding would not be inconsistent with the jury’s
findings that Corder and Carmouche conspired to murder GiGi.
“A ‘conspiracy may be proved through circumstantial evidence
inferred from the conduct, relationship, interests, and activities
of the alleged conspirators before and during the alleged
conspiracy.’ ” (People v. Kopp (2019) 38 Cal.App.5th 47, 84.)
Texts between Corder and Carmouche demonstrated that Corder
knew Carmouche was violent and obsessively devoted to him.
Crutchfield’s testimony that Corder decided to include
Carmouche at the last minute in what Corder told Crutchfield
was just a plan to rough GiGi up combined with Carmouche’s
actions—bringing a knife and gloves to the apartment and
gathering other deadly objects from the kitchen to use to hit and
cut GiGi—support the reasonable inference that Corder and
Carmouche conspired to commit murder and not assault, while
leaving open the possibility that Crutchfield did not.
It is well established that “[w]hen there has been a
postconviction change in the statutory or decisional law that

39
invalidates a theory upon which the conviction was based and
reversal is warranted, appellate courts remand the case to the
trial court to allow the prosecution to retry the defendant on a
legally valid theory.” (People v. Hola (2022) 77 Cal.App.5th 362,
371.) Where a defendant’s attempted murder conviction is
reversed based on a direct appeal of the trial court’s judgment
under section 1172.6, subdivision (g), “the prosecution is entitled
to retry him [or her] on that charge if it can in good faith advance
a valid legal theory to support the conviction. [Citation.]” (See
id. at p. 377 [reversing murder conviction and remanding to
permit retrial].) Accordingly, we reverse Crutchfield’s conviction
for willful, deliberate, and premeditated attempted murder in
count 2, vacate the associated personal infliction of great bodily
injury enhancement (§ 12022.7, subd. (a)), and remand the
matter to permit the prosecution the opportunity to retry
Crutchfield on a legally valid theory.

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
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

40
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
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.

41
 “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?
“[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.

42
 “[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.
“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

43
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?
“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

44
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
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

45
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).)

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.

46
 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
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.) Detective January

47
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
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

48
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
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.]”

49
(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
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

50
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.

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

51
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?
“[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?

52
 “[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.
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

18 Corder was allowed to address the court and stated,
without any support, that Springs was on-duty and required to

53
 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
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

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.

54
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,
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

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

55
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?
“[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

56
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?
“[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.

57
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
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

58
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; People v. Ledesma (1987) 43 Cal.3d 171, 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 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.)

59
 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
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

60
punishment under any one of two or more provisions that permit
punishment of the same act, but not more than one provision.
(§ 654, subd. (a).)
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” ’ ”].)
With respect to Crutchfield, the matter will be remanded to
permit the prosecution to retry the attempted murder charge and
associated enhancement. The trial court may decide whether to
exercise its discretion under Assembly Bill 518 at Crutchfield’s
resentencing hearing.
Corder and Carmouche 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
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

61
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

Crutchfield’s conviction for willful, deliberate, and
premeditated attempted murder in count 2 is reversed and the
associated personal infliction of great bodily harm enhancement
is vacated. The cause is remanded to the trial court to permit the
prosecution to retry Crutchfield under a valid theory of liability if
it so elects. The judgment is otherwise affirmed.
As to Corder and Carmouche, the judgment is affirmed.
We remand 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 both 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

62
will remain in effect, and the defendant need not be resentenced
but should be remanded to continue serving the term previously
imposed.
NOT TO BE PUBLISHED.

MOOR, J.

I concur:

RUBIN, P. J.

63
The People v. Brian Boseman Corder et al.
B261370

BAKER, J., Concurring in Part and Dissenting in Part

I join the majority’s analysis and disposition in full with
respect to defendant and appellant Stephon Crutchfield. I also
agree with nearly all of the majority’s rationale with respect to
the other two defendants, Brian Corder and Fredericka
Carmouche.
I respectfully dissent, however, from the majority’s decision
to resolve on the merits those two defendants’ post-Lopez
arguments.1 Our Supreme Court did not grant those two
defendants’ petitions for review—it denied them. Thus, absent
some clear, express direction from our Supreme Court regarding
how we should proceed as to them (regrettably, there is none), I
see no basis to reach their newly raised contentions.

BAKER, J.

1
In re Lopez (2023) 14 Cal.5th 562.