People v. Dennis CA4/3 ( 2022 )


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  • Filed 7/8/22 P. v. Dennis CA4/3
    Opinion following tra nsfer from Supreme Court
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
    FOURTH APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,
    Plaintiff and Respondent,                                        G055930
    v.                                                          (Super. Ct. No. 12CF1469)
    CORBIN YOSHIO DENNIS,                                                 OPI NION
    Defendant and Appellant.
    Appeal from a judgment of the Superior Court of Orange County, Richard
    M. King, Judge. Affirmed in part and reversed in part.
    Barbara A. Smith, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and
    Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland and Steve Oetting,
    Assistant Attorneys General, Arlene A. Sevidal, Lynne G. McGinnis and Andrew
    Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
    After being convicted of three counts of willful, deliberate, and
    premeditated attempted murder, three counts of second degree robbery, three counts of
    assault with a semiautomatic firearm, and a gang-related offense, with various
    enhancements attached to each, defendant Corbin Yoshio Dennis was sentenced to a
    determinate term of 23 years, 8 months and a consecutive indeterminate term of 45 years
    1
    to life. At trial, one of the theories argued by the prosecution was that defendant was
    guilty of the attempted premeditated murders under the natural and probable
    consequences doctrine based on his involvement in the target crime of unlawfully
    challenging another person to fight in a public place.
    In a prior published opinion, another panel of this court affirmed the
    judgment in part, reversed it in part, and remanded for further proceedings. (People v.
    Dennis (2020) 
    47 Cal.App.5th 838
    , review granted July 29, 2020, S262184, transferred
    with directions and depublished Jan. 5, 2022.) Our Supreme Court granted review and
    transferred the matter back to us with directions to vacate our prior decision and
    reconsider in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775), which
    took effect on January 1, 2022. The parties thereafter filed supplemental briefs
    addressing Senate Bill 775’s effect on the appeal. (Cal. Rules of Court, rule 8.200(b)(1).)
    Complying with the Supreme Court’s directions, we vacated our prior
    decision. We agree with the parties that defendant’s three attempted murder convictions
    must be reversed in light of Senate Bill 775’s amendments to Penal Code section
    2
    1170.95. While defendant seeks remand for resentencing on the remaining counts, we
    agree with the Attorney General that the prosecution must be given the opportunity on
    remand to decide whether to retry defendant’s attempted murder charges on a valid legal
    1
    As a convenient shorthand, we will refer to the findings that the attempted
    murders were “willful, deliberate, and premeditated” as simply “premeditated.”
    2
    All further statutory references are to the Penal Code unless otherwise
    stated.
    2
    theory. If the prosecution foregoes that option, defendant will be entitled to a full
    resentencing hearing. (See People v. Buycks (2018) 
    5 Cal.5th 857
    , 893 [“when part of a
    sentence is stricken on review, . . . ‘a full resentencing as to all counts is appropriate, so
    the trial court can exercise its sentencing discretion in light of the changed
    circumstances’”].) Thus, we reverse defendant’s attempted murder convictions, vacate
    the enhancements attached to them, and vacate defendant’s sentence in its entirety. In all
    other respects, we affirm the judgment.
    FACTS
    As three teenagers socialized next to an abandoned railroad right-of-way,
    two males, later identified as defendant and Luis Mendoza, climbed over a nearby fence
    and approached them. Mendoza asked the group where they were from, to which one
    replied they were not from anywhere. He repeated his question as one of the three, M.G.,
    took steps toward him. Mendoza pulled out a semiautomatic pistol from his waistband.
    M.G. again responded to the question, this time stating, “We don’t claim anybody. If
    you’re going to shoot us, shoot us.”
    The situation escalated with defendant and Mendoza both declaring they
    were from “Hard Times” or saying “this is Hard Times.” Mendoza followed up by
    shooting M.G. in the shoulder and in each leg. M.G. fell to the ground and the two others
    in his group started to run away. Mendoza proceeded to fire three or four more shots in
    their direction as they ran, then he and defendant took off on foot in a different direction.
    When police officers arrived at the scene, M.G. was lying on the ground
    suffering from gunshot wounds. He was transported to a hospital where he received
    treatment over the course of a few days before being released. Officers recovered three
    nine-millimeter bullet casings from the crime scene.
    That same evening, defendant and Mendoza approached another set of three
    teenagers walking through the abandoned railroad right-of-way. Holding a
    3
    semiautomatic gun, Mendoza ordered them to “get on the ground or you’re going to die,
    and drop your shit.” He took the gun and hit one of the three, A.C., in the head, causing
    him to bleed and fall to the ground. A.C. put his cellular phone and skateboard on the
    ground next to him, and another of the three, R.C., got on the ground and did the same
    with his portable media player, skateboard and keys.
    With all three lying on the ground, Mendoza struck two of them in the head
    with the gun. Defendant went through A.C.’s and R.C.’s pockets, took what all three
    individuals had placed on the ground, and Mendoza told the group to leave. Mendoza
    ended the interaction by stating, “Get up or you’re going to die,” and the three ran off.
    Defendant and Mendoza subsequently fled toward an adjacent mobile home
    park. A witness observed two males running through the backyard of her mobile home
    property, one of whom she recognized as defendant. Police officers later located a
    portable media player in the same backyard, as well as a baseball hat and skateboard near
    a wall leading to the mobile home park. They returned the items to R.C.
    A few days later, police officers arrested Mendoza. At the time of his
    arrest, Mendoza possessed a camera and a Samsung cellular phone. Police later
    determined those items belonged to the third individual involved in the second incident at
    the railroad tracks and returned the items to him.
    An information charged defendant with three counts of attempted murder
    (§§ 187, subd. (a), 664, subd. (a); counts 1-3), three counts of second degree robbery
    (§§ 211, 212.5, subd. (c); counts 4-6), three counts of assault with a semiautomatic
    firearm (§ 245, subd. (b); counts 7-9), and street terrorism (§ 186.22, subd. (a); count
    3
    10). As to the attempted murder counts, it was alleged they were committed willfully,
    deliberately and with premeditation, within the meaning of section 664, subdivision (a).
    3
    Defendant was also charged with a misdemeanor count of disobeying a
    gang injunction (former § 166, subd. (a)(10); count 11). This count was bifurcated for
    trial but later dismissed pursuant to the People’s motion.
    4
    Additional allegations against defendant included the following: as to counts 1 through
    6, defendant was a gang member who vicariously discharged a firearm; as to count 1,
    defendant was a gang member who vicariously discharged a firearm causing great bodily
    injury; and as to the first nine counts, defendant committed the charged crimes for the
    benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1).
    A gang expert testified at trial. He explained the origins of the Hard Times
    gang, its common signs and colors, territory, and primary activities. The gang expert
    further explained that one of the gang’s chief rivals is Santa Nita and the alleged
    attempted murders and robberies took place at a location on the border between Hard
    Times territory and Santa Nita territory.
    After confirming his investigation showed defendant and Mendoza were
    both members of Hard Times, the expert opined the charged offenses were done in
    association with a gang and furthered the criminal purpose of a gang because two
    members were present. He further opined the offenses were committed for the benefit of
    Hard Times. The expert testified a gang’s reputation for violence is enhanced when a
    member of the gang brandishes a firearm and calls out the gang’s name. It also
    demonstrates and strengthens the gang’s power and control over territory.
    Additional evidence revealed that in the couple of years before the alleged
    incidents, police contacted defendant multiple times and observed him with Mendoza on
    at least three occasions. On one occasion, defendant denied being a member of the Hard
    Times gang, but on other separate occasions, he admitted he belonged to the gang.
    The jury found defendant guilty of all counts and found true all the
    allegations. Prior to sentencing and in response to an unopposed defense motion, the
    court held a fitness hearing pursuant to Welfare and Institutions Code section 707.
    Although defendant was 16 years old at the time of the charged offenses, the court
    determined he was unfit to be tried as a juvenile.
    5
    The court sentenced defendant to a total of 23 years 8 months, plus 45 years
    to life in state prison. The latter was comprised of a 15-years-to-life sentence on each of
    the three attempted murder counts. The former consisted of the upper term of five years
    for the robbery conviction in count 4, plus a 10-year gang enhancement on that count,
    and one-year terms on the robbery convictions in counts 5 and 6, plus a 40-month gang
    enhancement on each of those counts. Pursuant to section 654, the trial court stayed the
    sentences on counts 7 through 10.
    DISCUSSION
    Originally, defendant brought multiple claims challenging his attempted
    premeditated murder convictions. He contended he was entitled to the ameliorative
    benefits of Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437), which
    abolished the natural and probable consequences doctrine as a theory of vicarious liability
    for murder. (People v. Gentile (2020) 
    10 Cal.5th 830
    , 842-843.) Alternatively, he argued
    the findings that the attempted murders were willful, deliberate, and premeditated must
    be stricken. He reasoned the court committed prejudicial error by failing to instruct the
    jury it was required to determine whether attempted premeditated murder was a natural
    and probable consequence of the target crime before rendering the premeditation
    findings. He also asserted there was insufficient evidence of the alleged target crime,
    challenging another person in a public place to fight (§ 415, subd. (1)), and therefore the
    court committed instructional error by instructing the jury on this target offense.
    Defendant further asserted because there was insufficient evidence of the target crime, his
    attempted murder convictions must be reversed due to insufficient evidence.
    In a published opinion, a prior panel of this court concluded Senate Bill
    1437 did not apply to attempted murder. It also concluded substantial evidence supported
    the court’s instruction on the target offense and therefore defendant’s attempted murder
    convictions were supported by substantial evidence. However, it agreed with defendant’s
    6
    claim of instructional error concerning attempted premeditated murder on a natural and
    probable consequences theory and vacated the findings that the attempted murders were
    willful, deliberate, and premeditated. The panel ordered the matter remanded to the trial
    court to give the prosecution the opportunity to decide whether to retry the premeditation
    allegations under jury instructions that required the jury to determine whether attempted
    premeditated murders were the natural and probable consequence of the target offense.
    (People v. Dennis, supra, 
    47 Cal.App.5th 838
    , review granted July 29, 2020, S262184,
    transferred with directions and depublished Jan. 5, 2022.) Having vacated the prior
    opinion, we now reconsider the matter in light of Senate Bill 775, as directed by the
    Supreme Court.
    Defendant contends his attempted murder convictions must be reversed
    pursuant to Senate Bill 775, and the Attorney General concedes the issue. We agree with
    the parties. Because we are reversing defendant’s attempted murder convictions, the
    premeditation findings attached to those convictions must be vacated also. Therefore,
    defendant’s original claim concerning the premeditation findings is now moot and need
    not be addressed. However, we address out of an abundance of caution defendant’s
    original claim that the court’s instruction on the alleged target crime was not supported
    by sufficient evidence and therefore his attempted murder convictions were not supported
    by substantial evidence. Arguably it is unnecessary to do so as this claim concerns the
    now invalid natural and probable consequences theory and defendant cannot be retried on
    this theory. We consider the claim nonetheless to forestall a potential double jeopardy
    argument as it pertains to the attempted murder charges, and should the prosecution
    decide to retry defendant on a still-valid theory. We conclude there was substantial
    evidence to support defendant’s attempted murder convictions under the law at the time
    of his trial.
    7
    I. Substantial Evidence of Attempted Murder
    For the attempted murder charges against defendant, the jury was instructed
    on the aiding and abetting, natural probable consequences doctrine, with the alleged
    target crime being unlawfully challenging another person in a public place to fight
    (§ 415, subd. (1)). In the trial court, defendant’s counsel objected to the court’s
    instruction, arguing the facts, as a matter of law, did not demonstrate a challenge to fight
    within the meaning of section 415. On appeal, defendant contends there was insufficient
    evidence to support giving the instruction, as well as a lack of substantial evidence
    supporting his attempted murder convictions based thereon. We conclude otherwise.
    In a criminal case, the trial court “must instruct the jury on every theory
    that is supported by substantial evidence, that is, evidence that would allow a reasonable
    jury to make a determination in accordance with the theory presented under the proper
    standard of proof. [Citation.] We review the trial court’s decision de novo. In so doing,
    we must determine whether there was indeed sufficient evidence to support the giving of
    [the challenged] instruction. Stated differently, we must determine whether a reasonable
    trier of fact could have found beyond a reasonable doubt that defendant committed” the
    offense on which the court instructed. (People v. Cole (2004) 
    33 Cal.4th 1158
    , 1206.)
    Section 415, subdivision (1), imposes misdemeanor liability on “[a]ny
    person who unlawfully fights in a public place or challenges another person in a public
    place to fight.” “A challenge to fight is prohibited because such a challenge may provoke
    a violent response that endangers not only the challenger but any other persons who may
    be in the public place where the challenge occurs. Because the statute is aimed at the
    inherent danger that a challenge will result in violence, it is irrelevant whether the
    challenger intended to actually cause a fight.” (In re Cesar V. (2011) 
    192 Cal.App.4th 989
    , 998.)
    Here, the evidence demonstrated defendant and Mendoza jumped a fence
    from territory claimed by Hard Times into an area bordering the territory claimed by one
    8
    of their rival gangs, Santa Nita. They approached three males and asked them, “Where
    you from?” The prosecution’s gang expert testified that when gang members “hit up”
    others with such a question, it is a form of aggression. They wait for a reply and then
    “things happen” based on the reply. If the response “comes back as a rival, they’re going
    to have to engage in a fight.” In other words, according to the expert, “if [gang members
    are] initiating contact, they’re expecting to [fight].”
    From this evidence, a reasonable trier of fact could find beyond a
    reasonable doubt that defendant and Mendoza issued a challenge to fight. (See People v.
    Medina (2009) 
    46 Cal.4th 913
    , 922 [former gang member testified “a gang member’s
    query ‘where are you from?’ . . . is a verbal challenge, which (depending on the response)
    could lead to a physical altercation and even death”]; In re Cesar V., supra, 192
    Cal.App.4th at pp. 998-999.) We reject defendant’s contention that an implied challenge
    to fight falls outside the scope of section 415. Defendant provides no legal authority for
    that proposition and nothing in the language of the statute suggests such a limitation.
    And contrary to defendant’s assertion, it is irrelevant there was a possibility no fight
    would ensue. (In re Cesar V., at p. 999 & fn. 5.)
    Because defendant’s argument concerning sufficiency of the evidence to
    support his attempted murder convictions is premised on the same facts and law as his
    challenge to the court’s instruction on section 415, we likewise find it meritless. (See
    People v. Cravens (2012) 
    53 Cal.4th 500
    , 508 [under substantial evidence standard of
    review, “[t]he conviction shall stand ‘unless it appears “that upon no hypothesis whatever
    is there sufficient substantial evidence to support [the conviction]”’”].)
    II. Senate Bill 775
    “Senate Bill 775 amended section 1170.95. As relevant, it now reads: ‘A
    person convicted of murder, attempted murder, or manslaughter whose conviction is not
    final may challenge on direct appeal the validity of that conviction based on the changes
    9
    made to Sections 188 and 189 by Senate Bill 1437 (Chapter 1015 of the Statutes of
    2018).’ (§ 1170.95, subd. (g).) Because section 188, subdivision (a)(3), prohibits
    imputing malice based solely on participation in a crime, the natural and probable
    consequences doctrine cannot prove an accomplice committed attempted murder.”
    (People v. Sanchez (2022) 
    75 Cal.App.5th 191
    , 196.)
    Here, the jury was instructed defendant could be convicted of the attempted
    murders under either a theory he directly aided and abetted Mendoza in the commission
    of those offenses or under a natural and probable consequences theory. (CALCRIM Nos.
    400, 401, 403.) In closing argument, the natural and probable consequences theory was
    the prosecution’s predominant theory. The prosecutor argued defendant was guilty of the
    attempted murders because he aided and abetted Mendoza in a challenge to fight, a
    violation of section 415, subdivision (1), and the attempted murders were a natural and
    probable consequence of defendant’s involvement in the challenge to fight. The jury
    found defendant guilty of the attempted murders in a general verdict that did not specify
    which theory it relied upon in reaching its verdict. As the Attorney General concedes, the
    natural and probable consequences theory is no longer viable under the changes made by
    Senate Bills 1437 and 775 and it cannot be concluded beyond a reasonable doubt that the
    jury’s verdict rested on the still-valid theory of direct aiding and abetting. Thus,
    defendant is entitled to reversal of his attempted murder convictions. (People v. Sanchez,
    supra, 75 Cal.App.5th at pp. 196-197.)
    Defendant requests we remand his case for resentencing on the remaining
    counts. The proper remedy, however, is to remand and give the prosecution the
    opportunity to decide whether to retry the attempted murder charges on a still-valid legal
    theory. (See People v. Hola (2022) 
    77 Cal.App.5th 362
    , 376 [“when there is a change in
    the law during an appeal that invalidates a previously valid legal theory relied upon by
    prosecution and reversal is thereby warranted, a new trial should be permitted on legally
    valid theories”]; People v. Perez (2022) 
    78 Cal.App.5th 192
    , 205.) The prosecution may
    10
    retry defendant on the attempted murder charges “if it can in good faith advance a valid
    legal theory to support” them. (People v. Hola, supra, 77 Cal.App.5th at p. 377.)
    DISPOSITION
    Defendant’s attempted murder convictions are reversed and their attending
    findings and enhancements are vacated. The matter is remanded to give the prosecution
    the opportunity to decide whether to retry the attempted murder charges, premeditation
    findings, and enhancements on a valid theory. The sentence is vacated in its entirety and
    the matter is remanded for further proceedings consistent with this opinion. In all other
    respects, the judgment is affirmed.
    MARKS, J.*
    WE CONCUR:
    O’LEARY, P. J.
    MOORE, J.
    *Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
    article VI, section 6 of the California Constitution.
    11
    

Document Info

Docket Number: G055930A

Filed Date: 7/8/2022

Precedential Status: Non-Precedential

Modified Date: 7/8/2022