Filed 4/2/24 P. v. Hasley CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, F084914
Plaintiff and Respondent, (Super. Ct. No. BF173252A)
v.
ORDER MODIFYING OPINION AND
GERRELL HASLEY, JR., DENYING REHEARING
[No Change in Judgment]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on March 13, 2024, be modified as
follows:
1. On page 3, the last sentence of the first full paragraph, beginning “The total
aggregate sentence” is modified to read as follows:
The total aggregate sentence imposed was an indeterminate term of 25
years to life plus life with the possibility of parole after seven years and a
determinate term of two years eight months.
2. In the paragraph commencing at the bottom of page 9 below the subheading
Forensic Evidence and ending at the top of page 10, the fourth sentence, beginning
“Specifically” is modified to read as follows:
Specifically, as to the exterior front passenger-side door handle, “for the
African-American population …, it would be 31 sextillion times more
likely that it’s [defendant] than a coincidental match to an unrelated
person.”
3. On page 26, in the first full paragraph, delete the sentence following the
citation to People v. Valerio (1970) 13 Cal.App.3d 912, 924 and add the following
sentences:
Here, while defendant and Thomason had separate juries, it was still
incumbent on defendant’s counsel to argue in favor of instructing his jury
with CALCRIM No. 335 instead of CALCRIM No. 334, specifically as to
Thomason. Counsel may have had a tactical reason for not making this
request in this atypical situation. In any event, as we subsequently discuss,
any error in failing to instruct the jury pursuant to CALCRIM No. 335 was
harmless.
There is no change in the judgment. Except for the modifications set forth, the
opinion previously filed remains unchanged.
Appellant’s petition for rehearing is denied.
PEÑA, J.
WE CONCUR:
DETJEN, Acting P. J.
SMITH, J.
2.
Filed 3/13/24 P. v. Hasley CA5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084914
Plaintiff and Respondent,
(Super. Ct. No. BF173252A)
v.
GERRELL HASLEY, JR., OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally
Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On July 15, 2022, a jury convicted defendant Gerrell Hasley, Jr., of, among other
offenses, the first degree murder (Pen. Code, §§ 187, subd. (a), 189; count 1) and
aggravated kidnapping (§ 209, subd. (b); count 3) of Moises Leon.1 (Undesignated
statutory references are to the Penal Code.) Subsequently, as to count 1, defendant was
sentenced to an indeterminate term of 25 years to life, and as to count 3, he was
sentenced to a consecutive indeterminate term of life with the possibility of parole after
seven years.
On appeal, defendant contends: (1) the trial court prejudicially erred when it
denied his severance motion and allowed introduction of evidence that he “was in
possession of another firearm, not the murder weapon, four days after the homicide”
(capitalization omitted); (2) that “[a]side from the accomplice statements and testimonies,
there is a lack of evidence connecting [him] with the murder itself or with the predicate
felonies of robbery, kidnapping, and torture”; (3) the trial court prejudicially erred when
it “improperly failed to instruct that the suspect witnesses were accomplices as a matter
of law” and when it “instructed that [he] had the burden of proof to show that the
prosecution witnesses, prime suspects in the robbery murder, were accomplices”; and (4)
“it was an abuse of discretion for the trial court to impose a consecutive term on Count
Three” because “[t]here was a single intent and objective to the kidnapping for robbery
and the murder.”
We conclude, that as to each individual claim, the trial court did not err, nor was
there insufficient evidence apart from the accomplices’ statements and testimonies.
Accordingly, we affirm the judgment.
PROCEDURAL HISTORY
On October 10, 2018, the Kern County District Attorney filed an information
charging defendant with first degree murder (§ 187, subd. (a); count 1) with the allegation
1Moises Leon also went by the name of Raul Soriano and is referred to as “Raul”
throughout the record. However, all documents throughout the clerk’s transcript refer to the
victim as “Moises Leon.” Therefore, we will refer to the victim as “Leon” throughout the
entirety of this opinion.
2.
the murder was done by one of the following means: (1) destructive device or explosive;
(2) weapon of mass destruction; (3) armor penetrating ammunition; (4) poison; (5) lying
in wait; (6) torture; (7) willful, deliberate, and premeditated killing; (8) discharge of a
firearm from a motor vehicle, intentionally at another person outside the vehicle, with the
intent to inflict death; or (9) perpetration of, or attempt to perpetrate; arson, rape,
carjacking, robbery, burglary, mayhem, or kidnapping; torture (§ 189, subd. (a)); torture
(§ 206; count 2); aggravated kidnapping (§ 209, subd. (b); count 3); robbery (§ 212.5,
subd. (c); count 4); arson (§ 451, subd. (d); count 5); and unlawful possession of a
firearm by a felon (§ 29800, subd. (a)(1); count 6).
On July 15, 2022, a jury found defendant guilty on all counts. Subsequently, as to
count 1, the trial court sentenced defendant to an indeterminate term of 25 years to life.
As to count 3, the trial court sentenced defendant to an indeterminate term of life with the
possibility of parole after seven years, to run consecutive to count 1. As to count 5, the
trial court sentenced defendant to the middle term of two years, to be served consecutive
to count 3. As to count 6, the trial court sentenced defendant to the term of eight months,
which is one-third the middle term of three years, to be served consecutive to count 5. As
to count 2, the trial court sentenced defendant to an indeterminate term of life with the
possibility of parole after seven years, but stayed the sentence pursuant to section 654.
As to count 4, the trial court sentenced defendant to the middle term of three years, but
stayed the sentence pursuant to section 654.2 The total aggregate sentence imposed were
two indeterminate terms of 25 years to life plus life with the possibility of parole after
seven years and a determinate term of two years eight months.
2Both the minute order and abstract of judgment incorrectly state defendant was
sentenced to the lower term of three years. Second degree robbery, of which defendant was
found guilty, is punishable by “two, three, or five years” in prison (§ 213, subd. (a)(2)).
3.
FACTS
The Prosecution Case-in-Chief
Background
In July 2018, defendant, Seantazz Thomason, Derrick Sutton, and Jamie Reed all
lived at the Q Street apartment complex in Bakersfield. Alyssa G., a minor, lived with
Reed. (Derrick Sutton, Jamie Reed, and Alyssa G. testified pursuant to a testimonial
immunity agreement.) Reed also associated with Leon, and they worked together to steal
merchandise and resell it at Leon’s store. Reed referred to this practice as “boosting.”
Leon would give Reed half the cash received from reselling the stolen merchandise.
The Plot to Rob Moises Leon
During the summer of 2018, Reed often observed Leon with large amounts of cash
on his person. Leon “would always be showing it. He would always say that he had
enough to buy a car with it if he wanted to buy one, if he saw one. [Reed] always told
him he needed to keep it in his pocket.” On July 26, 2018, Reed called Sutton and
suggested “we rob [Leon].” Reed and Sutton decided Reed was “going to call [Leon]
back to [her] apartment [¶] … [¶] [and] when he left, that’s—that’s when it would
happen.” Alyssa G. overheard this conversation and heard Reed explain to Sutton how
she wanted the robbery to “go down.” Reed was the “mastermind” behind the robbery.
Later on, Thomason approached Sutton and told him “he wanted to get in on the
robbery.” Sutton told Thomason he “was going to use a BB gun” and he was “just trying
to make it smooth, just get the money and let [Leon] go.” However, Thomason disagreed
and told Sutton “he wanted to use real guns,” but Sutton said he “didn’t want to do that.”
Sutton and Reed had observed Thomason in the past with a firearm.
The Murder of Moises Leon
Later that same night, Reed called Leon and told him “[t]o come back over and to
hang out with [her] and Alyssa.” (According to Reed, Leon “had a thing for Alyssa.”)
4.
Leon came over to the apartment and they “discussed [Leon] … buying some beer and
coming back to hang out some more.” Leon then left the apartment and Alyssa G.
observed Reed text Sutton it was “go time.” Subsequently, Reed and Alyssa G. heard
“commotion” outside the apartment door. Reed described hearing “[f]ighting, people
fighting.” Specifically, she testified she heard “[p]eople, they were like arguing, and
somebody getting hit. When it was close to [her] door, [she] overheard voices talking
about taking him to his bank to get money from the bank. Then it faded.” Alyssa G.
testified, “It was just like a lot of movement, like something was hitting the floor or [she]
heard commotion. That was just it, like banging but like falling to the floor, then [she]
heard [Leon] at one point.” During this commotion, Leon was heard saying, “‘[Reed],
help.’” Reed also heard defendant and Thomason say, “‘Let’s take him to the bank.’”
Reed then told Alyssa G. “to go take a shower, and [Reed] started vacuuming.”
Reed looked out the window and saw Leon’s truck, later identified as a red 2011
Chevrolet Silverado (Silverado), pull out of the parking lot and exit the apartment
complex; defendant and Thomason were in the Silverado with the victim. Fifteen
minutes later, Sutton approached Reed and told her “it had gone too far and he didn’t
want to be involved anymore,” and “that the two gentlemen [defendant and Thomason]
had left in the [Silverado] with [Leon].”
Later on, Thomason returned to the apartment and told Reed “he jumped out of the
car when [Leon] got shot.” At another point during the evening, Reed found Leon’s
white shirt with blood on it outside her front door; she burned the shirt in a pot behind the
apartment. Reed then returned to the apartment and gave Alyssa G. “a bottle of peroxide
mixed with bleach” and told her “to go scrub the dried blood off the stairs.” Alyssa G.
saw “[m]aybe like four or five” drops of blood on the stairs.
The next day, Reed observed Thomason holding a pillowcase with something
wrapped inside. Thomason told her there was a firearm inside the pillowcase, but she
never personally observed the firearm.
5.
During a police interview, Reed told law enforcement she also observed a firearm
“she referred to as the … automatic in a backpack that was brightly colored.” Further,
she told officers “the gun that she saw [Thomason] with that night was a scary gun,
which was bigger than [one of the interviewing officer]’s gun.” Reed also told officers
she had observed Thomason “with a sawed-off shotgun before.” Additionally, after
Reed’s initial contact with law enforcement a few days after the incident, she visited
defendant at a hotel “[t]o warn him that he needed to—that he needed to go, that he
needed to try to get away.”
The Subsequent Fire and Murder Investigation
On July 27, 2018, at approximately 3:30 a.m., the fire department responded to a
vehicle fire on Pacheco Road in Bakersfield. Law enforcement and fire personnel located
a Silverado parked in a parking stall in an alley with both its rear passenger side door and
hood open. Fire personnel observed “smoke coming out the windows, [and] fire inside
the cab.” The fire was located “on the dash[board] of the front passenger side.” Fire
personnel “brought the hose line to the passenger side and extinguished the rest of the fire
there.”3 Thereafter, they “opened up the back, just to open it up [and] [t]hat’s where
[they] found the deceased individual,” later identified as Leon.
Leon was observed “laying on his stomach sprawled out” and “did not have a shirt
on.” There was blood along the back of his head and chest, and “there was also blood on
the floorboard of the vehicle in the rear.” Leon “had significant burning trauma to the
front of his body and to his face,” and “[h]e had several injuries on his back that were
3A fire investigation discovered “torn up pages of a phonebook and some other debris
that appeared to be from the glove box of the vehicle that had burned and that had also burned
the carpet below those items.” Arson investigator Victor Mabry testified there “were indeed two
separate and independent areas of fire, [and] [t]hey were both intentionally set on fire with an
open flame device, such as a cigarette lighter or a match, and the ordinary combustible items of
paper, like a telephone book and items in the glove box that [he] found inside.”
6.
readily apparent from the exterior of the vehicle.” He also “had pretty significant
swelling between his eye and nose,” and “his left shoulder was deformed, dislocated.”
Further, Leon had a bullet wound in his left shoulder, a bullet graze wound on his
chest and right shoulder, and a bullet graze wound on his left ear near where a bullet
entered through the base of the skull. A bullet was located inside Leon’s skull, and it was
determined it was shot into his head behind his left ear and it was “traveling upward
forward and to the right.” There was “no soot, stippling, nor [was] there any gunpowder
residue deep within the wound tissue,” which meant the firearm must have been at least
two to four feet away when fired. It was determined Leon’s body was burned after death.
Further, it was determined Leon had “been deceased for 2 to 12 hours” before being
discovered by fire personnel. Pathologist Eugene Carpenter testified the cause of death
was “[m]ultiple gunshot wounds.”
Physical Evidence Found at the Crime Scene
Law enforcement also investigated the surrounding crime scene. Officers
searched the Silverado and located “blood on the floorboard of the vehicle in the rear”
and a “transfer of smeared blood on the headrest of the front driver’s and passenger seat.”
Further, there were “blood transfer patterns on the door handle as well as the door latch,”
and blood staining on the front driver’s seat and gray center console. In the Silverado’s
rear bed area “[t]here was a dent with a—what appeared to be the impression of
[something] being pressed up against it,” and there was a “transfer of blood on the bed.”
Thomason’s left palm print was located on the driver’s side of the truck.
Officers also located “a bullet projectile … underneath the headliner or inside the
headliner.” It was determined “the bullet was traveling from a direction just, in general,
from the driver’s side toward the passenger side of the vehicle.” However, it was unclear
whether the bullet was shot from the driver’s seat or the rear driver’s side.
7.
It was stipulated “[t]he spent bullet recovered during the autopsy of … Leon and
the two spent bullets located in the red [Silverado] where Mr. Leon’s body was found
were fired by the same gun; however, none of these three spent bullets were fired by the
Jimenez Arms .380 gun, which was located on August 1, 2018 in a bag carried by
[defendant].”
Reed’s Interview with Law Enforcement
Sergeant Robert Pair interviewed Reed for over an hour on July 30, 2018.
Sergeant Pair received information Reed knew “more than what she was providing during
the initial interview and wanted the opportunity to speak to her again to see if she would
be truthful.” Therefore, on July 31, 2018, he interviewed Reed a second time. She
provided officers with defendant’s telephone number and told officers she observed both
defendant and Thomason leave in the Silverado. During a photo lineup, Reed identified
defendant as “Bless-Bless,” one of the individuals involved in the offenses. (Defendant
went by the nicknames of “Mac,” “For-eva,” and “Bless-Bless.”)
Alyssa G.’s Interview with Law Enforcement
Alyssa G. testified that when she spoke with officers she was using
methamphetamine and her “state of mind was really messed up.” During the interview,
Alyssa G. stated she had observed Thomason with a firearm on the night of the murder.
Initially, Alyssa G. did not believe defendant was involved, however, she changed her
story and said, “I didn’t know that [defendant] was involved at all. No, I take it back—
not until I heard his voice yelling at him then I knew he was involved.” Reed also told
Alyssa G. defendant shot Leon and “threw him in the car in the passenger’s seat and set
the car on fire.”
Defendant’s Arrest and Interview
On August 1, 2018, law enforcement located defendant at a motel on Easton Drive
after his cell phone was “pinged.” (“An exigent ping is where you can acquire GPS data
8.
location for the device where it’s being located off the closest tower hit [and] [¶] …
[¶] [i]t will give you like a pin of where they believe it’s at.”) Officers arrested defendant
and he “advised he had a firearm in a bag he was carrying.” Officers seized a “black
trash bag” and inside were “miscellaneous clothing, cosmetic items, and then later a
firearm.” Specifically, it was a .380 caliber Jimenez firearm – the firearm that was the
subject of the stipulation. (It was further stipulated defendant had a felony conviction
prior to July 2018.)
That same day, officers interviewed defendant. Defendant admitted he owned and
possessed the Jimenez firearm, but denied being inside the Silverado the night of the
murder.
Subsequent Law Enforcement Investigation
Cell Phone Data
Law enforcement also seized defendant’s cell phone. Kern County District
Attorney Investigator Brian Canaday testified as an expert in analyzing cell phone data.
Investigator Canaday analyzed defendant’s cell phone usage and concluded both his cell
phone and Leon’s cell phone “used the Verizon tower that provides coverage to the Q
Street area” at 8:21 p.m. and 8:54 p.m. Further, defendant’s cell phone was in the area of
Pacheco Road in the time frame between 9:50 p.m. and 11:00 p.m. Subsequently, at
12:54 a.m. and 12:55 a.m., defendant’s cell phone was still in the same area of Pacheco
Road. Finally, on July 27, 2018, at 1:21 a.m. and 1:34 a.m., defendant’s cell phone
received a call from Sutton.
Forensic Evidence
Criminalist Garett Sugimoto was assigned to the Kern Regional Crime Laboratory
and worked as a DNA analyst. Sugimoto analyzed DNA from swabs taken at the crime
scene. Although defendant was excluded from the DNA profile found at the interior rear
driver-side door and the interior rear passenger-side door, he could not be excluded from
9.
DNA profiles found on the interior and exterior front passenger-side door handles on the
Silverado. Specifically, as to the front passenger-side door handle, “for the African-
American population …, it would be 31 sextillion times more likely that it’s [defendant]
than a coincidental match to an unrelated person.”
Thomason’s Trial Testimony
Thomason and defendant were tried together; however, each had a separate jury.
(Thomason filed a separate notice of appeal, which we address in case No. F084809.)
Thomason testified he was working on his car when he “heard a bunch of
commotion over by … Reed’s house, and then they were over there fighting and stuff.”
He observed defendant, “[defendant’s] supposed[] street dad[,]” Sutton, and Leon
fighting. Defendant then forced Leon into the Silverado. Subsequently, defendant got in
the driver’s seat, defendant’s “street dad” in the front passenger seat, and Leon into the
rear passenger seat of the Silverado. Thomason acknowledged previously telling officers
Sutton was the front passenger, but testified he was mistaken.
After observing Leon being forced into the Silverado, Thomason entered the rear
driver’s seat of the Silverado next to Leon “[t]o defuse the situation, to try to defuse the
situation.” Leon had blood coming “[f]rom his head” and “[h]e was swollen in the face
at the time.” Defendant and Leon started arguing about money and “[t]hat’s when [Leon]
took out his wallet, and [Thomason] showed [defendant]. Look, [defendant] there’s no
money in here.” Defendant and Leon started “grabbing hands” and fighting on the center
console area. At this point, Thomason observed defendant shoot Leon three times from
the driver’s seat. Subsequently, Thomason told defendant, “[D]rop me off. I don’t want
to be in this vehicle, you know. I don’t know what the heck is going on, and that’s when
[Thomason] had got dropped off” at Panama Lane where his wife eventually picked him
up. Thomason then got rid of his clothes because they were covered in blood. Thomason
further testified he never owned nor possessed any firearms.
10.
Defendant did not testify in his defense. However, in support of his defense
argument he lacked the motive to steal Leon’s money, the parties stipulated, “[Defendant]
received a tax refund in the amount of $7,500 in May of 2018 and disability backpay in
the amount of $2,700 on June 30, 2018, and an additional amount of disability backpay in
the amount of $700 on July 3, 2018.”
DISCUSSION
I. The Trial Court Properly Denied Defendant’s Severance Motion as to the
Felon in Possession of a Firearm Charge (Count 6)
Defendant contends the trial court prejudicially erred when it denied his severance
motion and allowed introduction of evidence that he “was in possession of another
firearm, not the murder weapon, four days after the homicide.” (Capitalization omitted.)
A. Additional Factual Background
The information charged defendant with being a felon in possession of a firearm
(§ 29800, subd. (a)(1); count 6) on July 27, 2018. Trial counsel filed a “Motion to Sever
Count Six from Counts One Through Five” pursuant to section 954. Specifically, trial
counsel argued “Count 6 is not connected together in its commission with Counts 1–5,”
and “[e]vidence that [defendant] allegedly possessed a firearm on August 1, 2018, … will
cause jurors to be more inclined to improperly infer criminality on the part of defendant,
and convict on the other very serious and distinctly different life-exposure counts alleged
in Counts 1–5.”
At the motions in limine, the prosecutor argued that count 6 “should be allowed to
remain within the charge [¶] … [¶] [because] it’s extremely relevant as it relates
specifically to the felony murder.” After further argument, the trial court stated its ruling
as follows:
“Okay. First, under [section] 954, I think the elements can be met
by the prosecution. [Evidence Code section] 352 always is the final
analysis to do. It sounds like the firearm is relevant, not forensically, but
based on the changes of the law in felony murder.
11.
“In regard to the concern of felon in possession, I believe that can be
sanitized. I just did it in a trial right before this so that he was not allowed
to legally possess the firearm, something like that. If there’s an agreement
to that and a stipulation to that, which would then require [defendant] to
make a determination whether he wanted to admit that prior for that
purpose or not outside the presence of the jury. So that can be addressed.
“I believe that the prior conviction is—although it’s always in
dispute, is not really in dispute so that a sanitized version could be provided
to the jury that would be less prejudicial and indicates simply that he was
not allowed to possess the firearm, which would then not address a prior
felony unless, of course, he testifies, then that might be relevant for
impeachment purposes. [¶] … [¶]
“… Okay. I’m not going to sever Count 6. My tentative was to
sever, but I’ve changed that thought for the reasons I stated. I am
amendable [sic] and I think it would be helpful, if [defendant] is amendable
[sic] to it, to address how to—I mean, not sanitize but make a little less
prejudicial the fact that he was not to possess a firearm before. Of course,
if [defendant] testifies, that’s fair game to be used as a prior felony
conviction because it would go to credibility.”
Subsequently, the trial court instructed the jury that, even if another person
committed the act resulting in death, defendant could still be found guilty of first degree
of murder if:
“1. The defendant committed, or attempted to commit, or aided and
abetted kidnapping, robbery, or attempted robbery;
“2. The defendant intended to commit, or intended to aid and abet
the perpetrator in committing kidnapping, robbery, or attempted robbery;
“3. If the defendant did not personally commit kidnapping, robbery,
or attempted robbery, then a perpetrator, whom the defendant was aiding
and abetting committed or attempted to commit kidnapping, robbery, or
attempted robbery;
“4. While committing kidnapping, robbery, or attempted robbery,
the perpetrator caused the death of another person;
“5. The defendant was a major participant in the kidnapping,
robbery, or attempted robbery; AND
12.
“6. When the defendant participated in the kidnapping, robbery, or
attempted robbery he acted with reckless indifference to human life. [¶] …
[¶]
“A person acts with reckless indifference to human life when he or
she knowingly engages in criminal activity that he or she knows involves a
grave risk of death.
“When you decide whether the defendant acted with reckless
indifference to human life, consider all the evidence. No one of the
following factors is necessary, nor is any one of them necessarily enough,
to determine whether the defendant acted with reckless indifference to
human life. Among the factors you may consider are:
“• Did the defendant know that a lethal weapon would be present
during the kidnapping, robbery, or attempted robbery[?]
“• Did the defendant know that a lethal weapon was likely to be used?
“• Did the defendant know that a lethal weapon was used?
“• Did the defendant know the number of weapons involved?
“• Was the defendant near the person killed when the killing occurred?
“• Did the defendant have an opportunity to stop the killing or to help
the victim?
“• How long did the crime last?
“• Was the defendant aware of anything that would make a
coparticipant likely to kill?
“• Did the defendant try to minimize the possibility of violence?
“When you decide whether the defendant was a major participant,
consider all the evidence. No one of the following factors is necessary, nor
is any one of them necessarily enough, to determine whether the defendant
was a major participant. Among the factors you may consider are:
“• What was the defendant’s role in planning the crime that led to the
death?
“• What was the defendant’s role in supplying or using lethal weapons?
13.
“• What did the defendant know about dangers posed by the crime, any
weapons used, or past experience or conduct of the other
participants?
“• Was the defendant in a position to facilitate or to prevent the death?
“• Did the defendant’s action or inaction play a role in the death?
“• What did the defendant do after lethal force was used?” (Italics in
original)
With regard to the firearm possession, the prosecutor argued the following:
“[Defendant] was found with a firearm. Felon in possession. He
admitted to having it for over a month. It’s a .380. Based on his testimony,
he possessed that firearm the day of the incident.
“Is there any evidence that he had it on his person? He said he had it
for protection. Why wouldn’t he have it on his person? Did he use it to
shoot? No, but he did possess a firearm that day, that being July 27, 2018.
This is the instruction again. Possession for a prior conviction of a felony.
Know that you have a gun and possessed the gun.”
The prosecutor continued:
“[Defendant] was involved in the beating outside of the truck, in the
truck. You see the blood smeared on the front console area. The beating
happened all over the place. He’s involved in it. He has to change his
clothes. He has to cover up the scene and burn it.
“Intentional act, he was involved in the intentional act, intentional
violence. Ultimately, did he fire the fatal shot? No, but what he did is
dangerous to human life. He’s an aider and abett[o]r to second degree
murder. He’s also guilty as it relates to felony murder. I won’t go through
the other one. I’ll focus on felony murder.
“Major participant with a reckless indifference for human life.
What’s the desire for everybody that day—Jamie Reed, Alyssa G[.],
Derrick Sutton, [defendant], and Seantazz Thomason—was to rob Moises
Leon. That was the intent. But all the evidence shows, back of the seat
torn off, wallet thrown out, words of the witnesses, but that’s what the
intent was.
“That’s why [defendant] was in the car. Reckless indifference to
human life, great risk of death. Again the sheer magnitude of the violence
14.
that was inflicted on Mr. Leon. Lethal weapons were present. These
weapons were out and about. He possessed a firearm that day.
Opportunity to stop the killing, did nothing.
“Tried to cover up the crime, length of the crime. Five minutes, ten
minutes, it went on and on. Anything that would make a coparticipant
likely to kill? Again, if someone is being pistol whipped, prodded with a
gun, beaten, shoulder dislocated, your collarbone separated, any reasonable
person would know.
“Tried to minimize the possibility of violence? No. [Defendant]
acted with a reckless indifference for human life during the course of that
incident. Role in the planning of the crime, they’re all involved. Again,
think about the people in the boat with the fishing poles. What they do
after can point back to what the agreement was. Going through the wallet,
tearing seats apart. What does that point to the agreement being?
“The dangers posed by the crime. These are all seen in the blood
and injuries. Position to facilitate or prevent death. He was and he did
nothing, did nothing. Drove him around, drove the dead body all the way
across town. I mean, think about how many hospitals they passed going
south. Think about it. Guy shot three times in the car and is bleeding
everywhere. How many hospitals did they go by?
“Action or inaction play a role in the death. Absolutely, his action
did. What did the defendant do after lethal force was used? Tried to cover
up the crime. He lied to police, went away from his residence where he
was staying, started staying in a motel somewhere. Major participant in
this crime and he acted with reckless indifference.”
B. Applicable Law
Section 954 provides in part, “An accusatory pleading may charge two or more
different offenses connected together in their commission, or different statements of the
same offense or two or more different offenses of the same class of crimes or offenses,
under separate counts.” The trial court “in the interests of justice and for good cause
shown, may in its discretion order that the different offenses or counts set forth in the
accusatory pleading be tried separately or divided into two or more groups and each of
said groups tried separately.” (Ibid.)
15.
We review the denial of a motion to sever for abuse of discretion. (Alcala v.
Superior Court (2008) 43 Cal.4th 1205, 1220.) “‘The state’s interest in joinder gives the
court broader discretion in ruling on a motion for severance than it has in ruling on
admissibility of evidence.’” (Id. at p. 1221.)
“Because it ordinarily promotes efficiency, joinder is the preferred course of
action. When the statutory requirements are met, joinder is error only if prejudice is
clearly shown.” (People v. Scott (2011) 52 Cal.4th 452, 469.) “‘“[I]f the evidence
underlying the offenses in question would be ‘cross-admissible’ in separate trials of other
charges, that circumstance normally is sufficient, standing alone, to dispel any prejudice
and justify a trial court’s refusal to sever the charged offenses.”’” (Id. at p. 470.)
If the evidence is not cross-admissible, “we next inquire ‘whether the benefits of
joinder were sufficiently substantial to outweigh the possible “spill-over” effect of the
“other-crimes” evidence on the jury in its consideration of the evidence of defendant’s
guilt of each set of offenses.’ [Citations.] We consider ‘[1] whether some of the charges
are likely to unusually inflame the jury against the defendant; [2] whether a weak case
has been joined with a strong case or another weak case so that the total evidence may
alter the outcome of some or all of the charges; and [3] whether one of the charges is a
capital offense, or the joinder of the charges converts the matter into a capital case.’
[Citation.] ‘We then balance the potential for prejudice to the defendant from a joint trial
against the countervailing benefits to the state.’” (People v. Thomas (2012) 53 Cal.4th
771, 798–799.)
C. Analysis
“‘“[T]he first step in assessing whether a combined trial [would have been]
prejudicial is to determine whether evidence on each of the joined charges would have
been admissible, under Evidence Code section 1101, in separate trials on the others.”’”
(People v. Jenkins (2000) 22 Cal.4th 900, 948, quoting People v. Bradford (1997) 15
16.
Cal.4th 1229, 1315–1316.) In other words, the cross-admissibility of the evidence is
sufficient to negate prejudice without any further showing. (People v. Jenkins, at p. 948.)
However, the absence of cross-admissibility, by itself, is insufficient to demonstrate
prejudice. (People v. Memro (1995) 11 Cal.4th 786, 850.)
Here, the People argue “the evidence at issue would have been cross-admissible in
separate trials because [¶] … [¶] [defendant’s] possession of a firearm four days after the
murder was relevant to demonstrate his knowledge and use of weapons.” We disagree.
Although a “‘defendant’s awareness that a gun … will be used,’ whether the defendant
personally used a lethal weapon, and the number of lethal weapons used” is relevant to
proving an individual acted with reckless indifference to human life (In re Harper (2022)
76 Cal.App.5th 450, 460, quoting People v. Clark (2016) 63 Cal.4th 522, 618–622), the
mere possession of a firearm, not used by the defendant during the target offenses and
possessed several days after the offenses had already concluded, is hardly relevant to
prove reckless indifference to human life as to the felony murder. (See People v. Osuna
(2014) 225 Cal.App.4th 1020, 1038 [holding that being a felon in possession of a firearm
is considered a nonviolent and nonserious offense], disapproved of on other grounds in
People v. Frierson (2017) 4 Cal.5th 225, 240, fn. 8; see People v. White (2014) 223
Cal.App.4th 512, 524 [“Thus, while the act of being armed with a firearm—that is,
having ready access to a firearm [citation] —necessarily requires possession of the
firearm, possession of a firearm does not necessarily require that the possessor be armed
with it” (italics added)].) Accordingly, the evidence surrounding defendant’s possession
of a firearm (count 6) was not cross-admissible.
However, the absence of the cross-admissibility factor is not dispositive. (People
v. Memro, supra, 11 Cal.4th at p. 850.) “In the absence of cross-admissibility, we turn to
the remaining factors to assess whether the trial court abused its discretion.” (People v.
Simon (2016) 1 Cal.5th 98, 123–124.) First, joinder of the felon in possession of a
firearm charge (count 6) with the remaining charges was not “‘likely to unusually inflame
17.
the jury against the defendant.’” (People v. Thomas, supra, 53 Cal.4th at pp. 798–799.)
As noted above, the facts surrounding the kidnapping, robbery, torture, and murder were
heinous. Defendant aided and abetted Thomason in robbing and torturing Leon, and
ended up burning the Silverado and Leon’s body after Thomason shot and killed him in
cold blood. As it relates to the firearm charge, the People introduced evidence that: (1)
defendant was found with a .380-caliber Jimenez firearm located in a trash bag he was
carrying several days after the offenses concluded; (2) none of the bullets found at the
crime scene “were fired by the Jimenez Arms .380 gun”; and (3) defendant had a felony
conviction prior to 2018. Based on the severity of the kidnapping, robbery, torture, and
murder offenses, the gun possession evidence was not likely to inflame the jury. Indeed,
during his argument to the jury, the prosecutor never once mentioned the gun possession
evidence in support of finding defendant guilty of first degree murder.
Second, although unclear, it appears defendant contends the possession charge was
used to buttress a weak felony-murder case. To demonstrate the potential for a
prejudicial spill-over effect, a defendant must show an “extreme disparity” in the strength
or inflammatory character of the evidence. (Belton v. Superior Court (1993) 19
Cal.App.4th 1279, 1284.) “The core prejudice concern arising in connection with this
[factor] is that jurors may aggregate evidence and convict on weak charges that might not
merit conviction in separate trials.” (People v. Simon, supra, 1 Cal.5th at p. 127.)
However, the concerns outlined in Simon are not present in this case because the
evidence against defendant demonstrating his guilt was overwhelming. Defendant was
seen leaving with Thomason and Leon in the Silverado where Leon was then beaten,
tortured, and murdered; there was evidence demonstrating defendant may have been both
the shooter and the individual who burned the Silverado with Leon inside; defendant’s
cell phone was used in the area of Pacheco Road—the same area where the burned
Silverado was located; and defendant’s DNA was found inside the Silverado,
demonstrating he was in the vehicle when Leon was tortured and murdered.
18.
Finally, none of the counts alleged against defendant was a capital charge. Here,
other than the lack of cross-admissibility, the other three factors to be considered do not
weigh in favor of a prejudice finding. Therefore, it was reasonable for the trial court to
conclude that trying both the July 27, 2018, charges and the August 1, 2018, firearm
possession charge (count 6) together would not be unduly prejudicial to defendant when
balanced against the benefits to the state of joinder.
II. There Was Sufficient Evidence to Corroborate the Accomplices’ Testimony
Defendant further contends that “[a]side from the accomplice statements and
testimonies, there is a lack of evidence connecting [him] with the murder itself or with
the predicate felonies of robbery, kidnapping, and torture.”
A. Applicable Law
Section 1111 states: “A conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof.” This statute
reflects the Legislature’s determination that “‘because of the reliability questions posed
by’” accomplice testimony, such testimony “‘by itself is insufficient as a matter of law to
support a conviction.’” (People v. Najera (2008) 43 Cal.4th 1132, 1137, quoting People
v. Cuevas (1995) 12 Cal.4th 252, 261.) “Thus, for the jury to rely on an accomplice’s
testimony about the circumstances of an offense, it must find evidence that, ‘“without aid
from the accomplice’s testimony, tend[s] to connect the defendant with the crime.”’”
(People v. Romero and Self (2015) 62 Cal.4th 1, 32.)
We review de novo whether an accomplice’s testimony was sufficiently
corroborated. (People v. Pedroza (2014) 231 Cal.App.4th 635, 650.) Such evidence
must tend to connect the defendant with the commission of the offense, but it does not
need to corroborate every fact to which the accomplice testified. (§ 1111; People v.
19.
Perez (2018) 4 Cal.5th 421, 452.) Corroborating evidence may be circumstantial or
slight, and it is entitled to little consideration when standing alone. (Id. at p. 453.) “The
evidence ‘is sufficient if it tends to connect the defendant with the crime in such a way as
to satisfy the jury that the accomplice is telling the truth.’” (People v. Lewis (2001) 26
Cal.4th 334, 370.) The evidence must be viewed in the light most favorable to the
judgment, and witness credibility is not considered. (People v. Pedroza, at p. 650.)
B. Analysis
Here, defendant argues he “was convicted exclusively by means of accomplice
testimony,” specifically, testimony by Alyssa G., Reed, Thomason, and Sutton. Although
the accomplice testimony provided substantial evidence of defendant’s guilt, it was not
the only evidence of guilt presented in this case. The prosecutor introduced evidence
establishing that both defendant’s and Leon’s cell phones “used the Verizon tower that
provides coverage to the Q Street area” at 8:21 p.m. and 8:54 p.m.—the area where Leon
was first forced into the Silverado. Subsequently, between 9:50 and 11:00 p.m.,
defendant’s cell phone utilized a tower that provided coverage to Pacheco Road—the
area where the Silverado was later found burned with Leon’s body inside. Defendant’s
phone was still utilizing this tower at 12:54 and 12:55 a.m., which corroborated
Thomason’s testimony he was involved throughout the entire series of events.
Additionally, the prosecutor introduced DNA evidence, which established that
defendant’s DNA could not be excluded from the profiles found on the interior and
exterior front passenger-side door handles of the Silverado. This corroborated the
accomplices’ testimonies defendant was inside the Silverado at the time of the
kidnapping, robbery, torture, and murder. Nonetheless, defendant argues that
“[r]egardless of when the DNA was deposited, [his] DNA did not prove [he] ever
touched the door handle [because] [t]he DNA was just as likely to have come from a
skin-to-skin transfer with [Leon], such as by shaking hands.” Although this may have
20.
been a reasonable inference from the evidence, the jury could have also believed the
presence of defendant’s DNA inside the Silverado made it likely defendant was inside the
vehicle and was a major participant of the robbery and torture. (People v. Perez, supra, 4
Cal.5th at p. 452 [holding that corroborating evidence may be circumstantial or slight].)
Accordingly, both the cell phone and DNA evidence corroborated Thomason’s, Reed’s,
Alyssa G.’s, and Sutton’s testimonies as to defendant’s involvement in the underlying
offenses.
III. CALCRIM No. 334
Defendant further contends the trial court prejudicially erred when it: “improperly
failed to instruct that the suspect witnesses were accomplices as a matter of law;” and (2)
“improperly instructed that [he] had the burden of proof to show that the prosecution
witnesses, prime suspects in the robbery murder, were accomplices.”
A. Additional Factual Background
During the jury instruction conference, the trial court stated that in regards to
Thomason, Sutton, Reed, and Alyssa G., it would instruct the jury on CALCRIM
No. 334. There was no objection. Subsequently, the jury was instructed with CALCRIM
No. 334 as follows:
“Before you may consider the statement or testimony of Jamie Reed,
Alyssa G[.], Dereck [sic] Sutton, and Seantazz Thomason as evidence
against the defendant, you must decide whether Jamie Reed, Alyssa G[.],
Dereck [sic] Sutton, and Seantazz Thomason were accomplices. A person
is an accomplice if he or she is subject to prosecution for the identical crime
charged against the defendant. Someone is subject to prosecution if:
“1. He or she personally committed the crime;
“OR
“2. He or she knew of the criminal purpose of the person who
committed the crime;
“AND
21.
“3. He or she intended to, and did in fact, aid, facilitate, promote,
encourage, or instigate the commission of the crime or participate in a
criminal conspiracy to commit the crime.
“The burden is on the defendant to prove that it is more likely than
not that Jamie Reed, Alyssa G[.], Derek [sic] Sutton, and Seantazz
Thomason were accomplices.
“An accomplice does not need to be present when the crime is
committed. On the other hand, a person is not an accomplice just because
he or she is present at the scene of a crime, even if he or she knows that a
crime will be committed or is being committed and does nothing to stop it.
“A person may be an accomplice even if he or she is not actually
prosecuted for the crime.
“If you decide that a declarant or witness was not an accomplice,
then supporting evidence is not required and you should evaluate his or her
statement or testimony as you would that of any other witness.
“If you decide that a declarant or witness was an accomplice, then
you may not convict a defendant of All Crimes Except Count 6 alleged
ONLY against [defendant], based on his or her statement or testimony
alone. You may use a statement or testimony of an accomplice that tends
to incriminate the defendant to convict the defendant only if:
“1. The accomplice’s statement or testimony is supported by other
evidence that you believe;
“2. That supporting evidence is independent of the accomplice’s
statement or testimony;
“AND
“3. That supporting evidence tends to connect the defendant to the
commission of the crime.
“Supporting evidence, however, may be slight. It does not need to
be enough, by itself, to prove that the defendant is guilty of the charged
crime, and it does not need to support every fact mentioned by the
accomplice in the statement or about which the accomplice testified. On
the other hand, it is not enough if the supporting evidence merely shows
that a crime was committed or the circumstances of its commission. The
supporting evidence must tend to connect the defendant to the commission
of the crime.
22.
“The evidence needed to support the statement or testimony of one
accomplice cannot be provided by the statement or testimony of another
accomplice.
“Any statement or testimony of an accomplice that tends to
incriminate the defendant should be viewed with caution. You may not,
however, arbitrarily disregard it. You should give that statement or
testimony the weight you think it deserves after examining it with care and
caution and in the light of all the other evidence.”
Subsequently, after the trial court instructed the jury, the following exchange
occurred between the trial court and the prosecutor:
“[PROSECUTOR]: Your Honor, just a brief issue if I could raise it. I
don’t know if the Court wants me to do it off the record.
“THE COURT: No. Let’s do it on the record.
“[PROSECUTOR]: My only concern is [CALCRIM No.] 334, the
accomplice instruction. I believe that there’s no dispute but the Court gave
[CALCRIM No.] 334. The portion where it said the burden is on the
defendant to prove it is more likely than not that Jamie Reed, Alyssa G[.],
Derrick Sutton, and Seantazz Thomason were accomplices.
“I’m just concerned with the verbiage of that places a burden on the
defendants. So when it was read, it kind of piqued my interest. They don’t
have the burden in this case, but that sentence places an element of a
burden, especially when it’s bringing up Mr. Thomason, who is a defendant
in this case. I just had a concern about that particular line.
“THE COURT: It’s true. It’s the law.
“[PROSECUTOR]: I understand. I just have concerns with that. I
wanted to raise that concern that may be something we can address
tomorrow or I’ll research tonight to see. Like I said, I had requested the
other instruction.
“THE COURT: Well, I know you did, but there wasn’t an agreement
that Mr. Thomason was an accomplice, hence [CALCRIM No.] 334. So I
can just reiterate to both juries that there’s no burden upon either defendant
to prove they’re not guilty.
“[PROSECUTOR]: Okay.
“THE COURT: Does that address it?
23.
“[PROSECUTOR]: Yes.
“THE COURT: Okay.”
The following day and immediately before closing arguments, the trial court
reminded the jury as follows:
“Just to remind you, [defendant] and [trial counsel] on his behalf, they
don’t have to prove that [defendant] is not guilty. The burden, and the sole
burden, rests with the prosecutor …. I think you know that, but just to
remind you of that, and the burden is beyond a reasonable doubt.”
B. The Trial Court Properly Instructed the Jury with CALCRIM No. 334
First, defendant argues “it was error [by the trial court] to fail to read CALCRIM
No. 335 on accomplices as a matter of law” because “[w]ithout CALCRIM No. 335 there
can be no assurance that [he] was not convicted on the uncorroborated testimony of one
or more accomplices.”
1. Forfeiture
Generally, a “[f]ailure to object to instructional error forfeits the issue on appeal
unless the error affects defendant’s substantial rights” (People v. Anderson (2007) 152
Cal.App.4th 919, 927), or “if the instruction was an incorrect statement of the law”
(People v. Campbell (2020) 51 Cal.App.5th 463, 495). Although both parties concede
trial counsel made no objection to CALCRIM No. 334, defendant argues no objection
was required because his “substantial rights” were affected. As we discuss in detail
below, CALCRIM No. 334 did not affect defendant’s substantial rights, nor was it an
incorrect statement of the law. Therefore, defendant forfeited this instructional error
claim on appeal. However, even if we assume the claim was properly preserved on
appeal, the claim still fails on its merits.
2. Applicable Law
“Whether someone is an accomplice is ordinarily a question of fact for the jury;
only if there is no reasonable dispute as to the facts or the inferences to be drawn from the
facts may a trial court instruct a jury that a witness is an accomplice as a matter of law.”
24.
(People v. Valdez (2012) 55 Cal.4th 82, 145–146; see People v. Fauber (1992) 2 Cal.4th
792, 833–834; People v. Tewksbury (1976) 15 Cal.3d 953, 960.) “The Bench Notes to
CALCRIM No. 335 are in accordance with this statement of the law and, in no uncertain
terms, advise that a trial court should: ‘Give this instruction only if the court concludes
that the witness is an accomplice as a matter of law or the parties agree about the
witness’s status as an accomplice. [Citations.] If there is a dispute about whether the
witness is an accomplice, give CALCRIM No. 334.’” (People v. Johnson (2016) 243
Cal.App.4th 1247, 1269.)
We review a claim for instructional error de novo. (People v. Posey (2004) 32
Cal.4th 193, 218.) “In reviewing a claim of instructional error, the court must consider
whether there is a reasonable likelihood that the trial court’s instructions caused the jury
to misapply the law in violation of the Constitution.” (People v. Mitchell (2019) 7
Cal.5th 561, 579.) We consider the challenged instruction “in the context of the
instructions as a whole and the trial record to determine whether there is a reasonable
likelihood the jury applied the instruction in an impermissible manner.” (People v.
Houston (2012) 54 Cal.4th 1186, 1229.)
3. Analysis
Here, the trial court correctly instructed the jury it had to determine whether
Thomason, Reed, Alyssa G., and Sutton were accomplices pursuant to CALCRIM
No. 334, rather than instructing they were accomplices as a matter of law pursuant to
CALCRIM No. 335. “‘[P]roof of [direct] aider and abettor liability requires proof in
three distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by the
direct perpetrator, (b) the aider and abettor’s mens rea—knowledge of the direct
perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and
(c) the aider and abettor’s actus reus—conduct by the aider and abettor that in fact assists
the achievement of the crime.’” (People v. Pacheco (2022) 76 Cal.App.5th 118, 127,
25.
quoting People v. Perez (2005) 35 Cal.4th 1219, 1225.) “[W]here there is no direct
evidence that a witness acted with the requisite knowledge and intent, the witness is not
an accomplice as a matter of law.” (People v. Gonzalez (2016) 246 Cal.App.4th 1358,
1375; see, e.g., People v. Carrasco (2014) 59 Cal.4th 924, 969 [witness not an
accomplice as matter of law although he accompanied the defendant to the crime scene
and helped the defendant escape after the murder, where the witness denied knowledge of
and intent to assist the defendant in committing the robbery and claimed the defendant
forced him to assist in the escape]; People v. Valdez, supra, 55 Cal.4th 82, 146–147
[witness was not an accomplice as a matter of law despite evidence he drove the
perpetrators to the crime location after being told by the perpetrators that they had to go
there “‘to take care of something,’” which the witness understood to mean assault or kill
someone]; People v. Williams (2008) 43 Cal.4th 584, 637 [witness was not an accomplice
as a matter of law where he denied having the intent to further the defendant’s criminal
purpose and claimed to be present with the defendant for another reason]; People v.
Stankewitz (1990) 51 Cal.3d 72, 90 [presence at the scene of a crime or failure to prevent
its commission insufficient to establishing aiding and abetting].)
First, as to Thomason, in the typical situation, it would have been reversible error
for the trial court to instruct the jury he was an accomplice as a matter of law because the
court “would, in effect, be instructing the jury that the codefendant was guilty of the
offenses charged, thereby invading the province of the jury with respect to the
determination of [his or] her guilt or innocence.” (People v. Valerio (1970) 13
Cal.App.3d 912, 924.) Thus, it was incumbent on defendant’s counsel to argue why such
an instruction would not constitute error in his case.
Second, as to Alyssa G. and Reed, there is no evidence they possessed any
knowledge of Thomason’s and defendant’s unlawful purposes. Although the record
shows Reed concocted the plan to rob Leon, and Alyssa G. aided Reed in this plan, there
is no evidence they were aware of Thomason’s and defendant’s involvement in the
26.
robbery until after the offenses were already in motion. Further, there is no evidence they
were aware of the kidnapping, torture, or murder.
Finally, although Thomason approached Sutton to involve himself in the robbery
and told Sutton he wanted to use real firearms, Thomason testified he was unaware of the
plans to rob Leon, never spoke with Sutton, and instead involved himself in the
altercation to try and “defuse” the situation. Because of this conflicting evidence,
Sutton’s status as an accomplice was disputed. Accordingly, the trial court properly
instructed the jury with CALCRIM No. 334 as to Thomason, Reed, Alyssa G., and
Sutton.
C. No Prejudice
However, even if we assume the trial court erred by not instructing the jury with
CALCRIM No. 335, any error was harmless. Our Supreme Court has held it is state-law
error when a trial court fails to instruct a jury regarding consideration of accomplice
testimony and, as a result, a reviewing court must evaluate whether it is reasonably
probable that such error affected the verdict. (People v. Williams (2010) 49 Cal.4th 405,
456; People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) First, the full context of the jury
instructions minimized any potential prejudice from CALCRIM No. 334. (People v.
Houston, supra, 54 Cal.4th at p. 1229.) At the outset, CALCRIM No. 334 instructed the
jury that “[i]f you decide that a declarant or witness was an accomplice, then you may not
convict a defendant … based on his or her statement or testimony alone,” and that “[a]ny
statement or testimony of an accomplice that tends to incriminate the defendant should be
viewed with caution … [and] [y]ou should give that statement or testimony the weight
you think it deserves after examining it with care and caution and in the light of all the
other evidence” (CALCRIM No. 334). Further, the jury was properly instructed on how
to evaluate Thomason’s, Reed’s, Alyssa G.’s, and Sutton’s testimony (CALCRIM
27.
No. 226 [Witnesses]; CALCRIM No. 302 [Evaluating Conflicting Evidence]; CALCRIM
No. 318 [Prior Statements as Evidence]).
Second, as we discussed in detail ante, the evidence sufficiently corroborated
Thomason’s, Reed’s, Alyssa G.’s, and Sutton’s testimony. Lastly, any presumed error in
providing the jury with CALCRIM No. 334 was further mitigated by the prosecutor when
he consistently referred to the other participants to the robbery as accomplices throughout
his closing arguments. The record discloses there was no real dispute between defendant
and the prosecution regarding the status of the participants as accomplices.
Consequently, assuming it was error to instruct the jury pursuant to CALCRIM No. 334
instead of with CALCRIM No. 335, it was harmless because it is not reasonably probable
defendant would have received a more favorable result absent the assumed error.
D. CALCRIM No. 334 Did Not Improperly Shift the Burden of Proof to
Defendant
Finally, defendant argues “it was error to instruct that [he] had the burden of proof
to show accomplice status [because] [¶] … [¶] [s]hifting the burden to [him] in these
circumstances was a violation of Due Process.”
“California law permits placing the burden to prove the accomplice status of a
witness on a defendant. ([People v. ]Tewksbury, supra, 15 Cal.3d at pp. 963–968.) This
is because whether a witness is an accomplice is collateral to the defendant’s guilt or
innocence. (Id. at pp. 964–968.) It is an issue that need not be established to prove an
element of the defendant’s crime. (Id. at p. 965.) CALCRIM No. 334’s instruction that a
defendant must prove, by a preponderance of the evidence, a witness’s status as an
accomplice thus, in general, correctly states the law. (People v. Frye (1998) 18 Cal.4th
894, 967–969 … [upholding predecessor to CALCRIM No. 334], disapproved on another
ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)” (People v. Martinez
(2019) 34 Cal.App.5th 721, 729.) Because the issue of “whether a witness is an
accomplice is collateral to the defendant’s guilt or innocence” (ibid.), it was not error for
28.
the trial court to instruct the jury with CALCRIM No. 334, nor did it deprive defendant of
due process.
We also reject defendant’s alternative contention his trial counsel was ineffective
for failing to object to CALCRIM No. 334. “Because we have addressed the merits of
the underlying contentions and have concluded, above, that the actions at issue were not
erroneous or improper, that the instruction[] [was] not warranted, or that any alleged error
was not prejudicial, defendant’s related claim[] of ineffective assistance of counsel fail[s]
and do[es] not require further discussion.” (People v. Ledesma (2006) 39 Cal.4th 641,
748.)
IV. The Trial Court Properly Sentenced Defendant to a Consecutive Life Term
for Kidnapping for Robbery.
Lastly, defendant contends “it was an abuse of discretion for the trial court to
impose a consecutive term on Count Three” because “[t]here was a single intent and
objective to the kidnapping for robbery and the murder.”
A. Additional Factual Background
At the sentencing hearing, the following brief exchange occurred between trial
counsel and the trial court:
“[DEFENSE COUNSEL:] Also, as far as Count 3, the kidnap to
commit robbery, I would ask for the Court to consider running that
concurrent to Count 1 rather than consecutive. It was during the course of
the kidnapping to commit robbery that Count 1 occurred. So the acts were
not independent of each other. It’s the same time, same place, and I would
submit with that.
“THE COURT: Okay. Thank you. [¶] I suppose none of us really
know, maybe [defendant] knows. None of us know the exact sequence of
events as far as kidnapping to commit robbery then the killing of the victim.
The kidnapping to commit robbery obviously started first; otherwise, there
would not have been a victim alive in the car, and we had testimony that he
was.
“So I think it is okay and proper to run that kidnapping, Count 3,
consecutive.”
29.
Thereafter, as to count 3, the trial court sentenced defendant to a term of seven years to
life to run consecutive to count 1.
B. Applicable Law
Section 654 precludes punishing a defendant twice for “[a]n act or omission that is
punishable in different ways by different provisions of law.” (§ 654, subd. (a).) “The
purpose of section 654 is to prevent multiple punishments for a single act or omission,
even though that act or omission violates more than one statute and thus constitutes more
than one crime. Although the distinct crimes may be charged in separate counts and may
result in multiple verdicts of guilt, the trial court may impose sentence for only one
offense.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
Section 654 also precludes multiple punishments for two offenses that arise from
an indivisible course of conduct; if two crimes arose from the same act or series of acts
constituting an indivisible course of conduct, multiple punishment is prohibited. (People
v. Wynn (2010) 184 Cal.App.4th 1210, 1214–1215.) “The divisibility of a course of
conduct depends upon the intent and objective of the defendant.” (People v. Liu, supra,
46 Cal.App.4th at p. 1135.) If two offenses are incidental to one objective, the defendant
may be punished for just one. But, if the “defendant entertained multiple criminal
objectives which were independent of and not merely incidental to each other, the trial
court may impose punishment for independent violations committed in pursuit of each
objective even though the violations shared common acts or were parts of an otherwise
indivisible course of conduct.” (Ibid.) A ruling under section 654 is reviewed for
substantial evidence. (Liu, at pp. 1135–1135.) “‘To satisfy the substantial evidence
standard, the evidence supporting the trial court’s findings must be “‘reasonable, credible,
and of solid value.’” [Citation.]’” (People v. Gyorgy (2023) 93 Cal.App.5th 659, 669.)
30.
C. Analysis
“Where a defendant is prosecuted solely on a theory of first degree felony murder,
section 654 precludes punishment for both murder and the underlying felony. (See, e.g.,
People v. Hensley (2014) 59 Cal.4th 788, 828 [sentence for felony underlying first degree
felony-murder conviction must be stayed under § 654].) However, if the prosecution
presents alternative theories—such as premeditation and felony murder—and there is
evidence supporting a finding that the murder was premeditated, then the trial court may
properly impose a sentence for both the murder and the felony. (People v. Osband
(1996) 13 Cal.4th 622, 730–731 [affirming decision not to stay sentence for rape and
robbery under § 654, where the trial court made implicit finding that crimes involved
more than one objective, even though it was unclear whether murder conviction was
based on felony-murder or premeditation theory].)” (People v. Carter (2019) 34
Cal.App.5th 831, 841.)
Here, defendant’s conviction for first degree murder was not based solely on the
theory of felony murder. The jury was instructed on multiple theories of first degree
murder, including premeditated and deliberated murder, malice murder, and felony
murder. Although the prosecutor’s primary argument was defendant was guilty of felony
murder as a major participant to kidnapping, robbery, or attempted robbery and who
acted with reckless indifference to human life, he alternatively argued that either
defendant or Thomason intentionally “pistol whipped” and “shot [Leon] multiple times,”
and that defendant is “an aider and abett[o]r to second degree murder.” There was
substantial evidence supporting the trial court’s finding the kidnapping to commit
robbery was independent from the murder because “otherwise, there would not have been
a victim alive in the car.” The trial court reasonably could have concluded defendant’s
objective in kidnapping Leon was independent of his objective in aiding and abetting
Thomason, thereby justifying multiple punishments under section 654.
31.
Further, the jury did not have to make an affirmative finding that defendant shot
Leon or aided and abetted in Leon’s murder before returning its guilty verdict on first
degree murder, and the trial court did not need such an affirmative finding by the jury to
exercise its sentencing discretion under section 654. Generally, “in the absence of some
circumstance ‘foreclosing’ its sentencing discretion …, a trial court may base its decision
under section 654 on any of the facts that are in evidence at trial, without regard to the
verdicts.” (People v. McCoy (2012) 208 Cal.App.4th 1333, 1340.) Therefore, the trial
court could properly find defendant harbored multiple criminal intents and objectives in
attempting to kidnap and the murder of Leon. Accordingly, the trial court did not err
when it imposed a consecutive term of seven years to life for defendant’s kidnapping to
commit robbery conviction (count 3).
DISPOSITION
The judgment is affirmed.
PEÑA, J.
WE CONCUR:
DETJEN, Acting P. J.
SMITH, J.
32.