People v. Patton CA2/5 ( 2014 )

Filed 5/8/14 P. v. Patton CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B246498
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA080505)
v.
DAISHJON PATTON et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County, James
R. Brandlin, Judge. Modified in part and affirmed as modified with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant Daishjon Patton.
David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant Burke Robinson.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant, Daishjon Patton, of first degree murder as charged in
count 1. (Pen. Code, § 187, subd. (a).)1 The same jury also convicted Mr. Patton and a
co-defendant, Burke Robinson, of two counts of attempted willful, deliberate and
premeditated murder as alleged in counts 2 and 3. (§§ 664, 187, subd. (a).) The jury
further found true gang benefit and firearm use allegations. (§§186.22, subd. (b)(1)(C);
12022.53, subds. (b), (c), (d) & (e)(1).) Mr. Patton was sentenced to 50 years to life in
state prison. The trial court found Mr. Robinson had a prior conviction within the
meaning of sections 667, subdivisions (b) through (i) and 1170.12. Mr. Robinson was
sentenced to: two consecutive life terms on counts 2 and 3; plus a consecutive
indeterminate term of 25 years to life on count 2 (§ 12022.53, subd. (d)); and a
consecutive determinate 20-year term on count 3 (§ 12022.53, subd. (c)). We modify the
judgments and affirm as modified.
II. THE EVIDENCE
A. Overview
We view the evidence in the light most favorable to the judgment. (Jackson v.
Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal. 4th 622, 690.)
Mr. Patton and Mr. Robinson were members of a predominantly African-American gang.
The gang’s primary activities included murder, attempted murder, assault with
great bodily injury, robbery, weapons possession and narcotics sales. In his cellular
telephone, Mr. Patton had a photograph of himself displaying a gang sign. Mr. Patton
also had photographs of Mr. Robinson displaying gang signs.
1 Further statutory references are to the Penal Code unless otherwise noted.
2
On January 29, 2011, Mr. Patton went into a neighborhood claimed by a rival
Hispanic gang. Mr. Patton shot and killed Edwin Perla, a member of the rival Hispanic
gang. This is the murder charged in count 1.
On March 7, 2011, Mr. Patton and Mr. Robinson went into a neighborhood
claimed by a rival African-American gang. Mr. Robinson shot and attempted to kill two
individuals perceived to be rival gang members, Steven Abner and Okeem Ross. These
are the attempted murders charged in counts 2 (Mr. Abner) and 3 (Mr. Ross). At the time
of the murder and attempted murders, Mr. Patton was 16 years old.
B. January 29, 2011
1. The murder
On January 29, 2011, between 6:15 and 6:27 p.m., Juan Garcia was walking south
on New Hampshire Avenue toward 112th Street. The area was claimed by a Hispanic
gang. Mr. Garcia saw a friend, Edwin Perla. Mr. Perla was walking towards Mr. Garcia
on the opposite side of the street. Mr. Perla was a member of the Hispanic gang.
Mr. Perla spoke to Mr. Garcia. Mr. Perla said he was going to the “weed house,” a
residence on the block where marijuana was sold.
Shortly thereafter, Mr. Garcia encountered Mr. Patton and an unidentified African-
American companion. Mr. Garcia recognized Mr. Patton. Mr. Garcia regularly saw
Mr. Patton in the neighborhood. Mr. Garcia knew Mr. Patton was a gang member.
Mr. Patton was wearing glasses. Mr. Garcia had seen Mr. Patton wearing glasses in the
past. Mr. Patton issued a gang challenge to Mr. Garcia. Mr. Patton asked, “Where you
from . . . ?” Mr. Garcia said, “I don’t bang,” and “I ain’t from nowhere.” Mr. Garcia was
asked if he knew where the “weed house” was located. Mr. Garcia pointed Mr. Patton in
the direction of the residence where the marijuana was available. Mr. Garcia continued
walking south toward 112th Street. But then Mr. Garcia realized Mr. Perla and
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Mr. Patton were rival gang members. Mr. Garcia became concerned for Mr. Perla’s
safety. Mr. Garcia turned and ran back toward the house where marijuana was sold.
Mr. Patton and the unidentified African-American man confronted Mr. Perla, a
rival gang member, near the house. Mr. Garcia witnessed the encounter. Mr. Patton
asked Mr. Perla, “Where you from . . . ?” Mr. Perla began to answer. Then Mr. Patton
shot Mr. Perla in the head who then fell to the ground. Mr. Patton shot Mr. Perla three
more times. Mr. Garcia saw Mr. Patton and the unidentified African-American man run
north toward an alley. Mr. Perla died as a result of multiple .44-caliber gunshot wounds.
Anaberta Renteria was in her apartment near 112th Street and New Hampshire
Avenue at the time. She heard two or three gunshots. She looked outside. Ms. Renteria
saw two African-American men running fast towards an alley.
Terrell White was standing on his front porch that evening. Mr. White saw a
Latino walk by. Two or three minutes later, Mr. White saw two young African-American
men, about 18 or 19 years old. One wore a black jacket and glasses. The other was
wearing a dark blue or black “hoodie” with a T-shirt hanging down below his sweatshirt.
The young man wearing the glasses spoke to Mr. White. Mr. White was asked whether
he knew where they could get some weed. Mr. White said he did not. The individual
responded, “Okay, Blood.” That comment was followed by a gang slur. Mr. White “felt
something . . . wasn’t right” and went inside his house to get a gun. Two minutes later,
he heard a gunshot.
2. The investigation
At 6:35 p.m. on January 29, 2011, someone made an outgoing call from
Mr. Patton’s cellular telephone. The call was routed through a cellular tower at 9900
South Vermont Avenue. The cellular tower was just under a mile by car from the
shooting location. Mr. Patton’s cellular telephone had to have been within a mile and
one-half of the tower.
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On February 22, 2011, Mr. Garcia told Detective Q. Rodriguez it was Mr. Patton
who shot Mr. Perla. Mr. Garcia used Mr. Patton’s gang moniker in making the
identification. On February 28, 2011, Mr. Garcia viewed a photographic lineup.
Mr. Garcia identified Mr. Patton as the gunman. Mr. Garcia was certain of his
identification. According to Detective Rodriguez, Mr. Garcia identified Mr. Patton
“within seconds” of viewing the lineup. Detective Rodriguez described Mr. Garcia’s
identification: “He just sounded sure of himself. He said, ‘Right there.’” Mr. Garcia
testified: “[I]t didn’t even [take] me not even a second, the moment I saw the pictures I
was, like, it was the one, it was the upper one . . . . I was, like, ‘that’s him right there.’”
Mr. Garcia also identified Mr. Patton as the gunman at the preliminary hearing and trial.
At trial, the parties stipulated that, on June 18, 2012, subsequent to the present crimes,
Mr. Garcia was arrested for misdemeanor petty theft.
On March 8, 2011, Detective Rodriguez showed Mr. White a photographic lineup.
A photograph of Mr. Patton was in position number five. Detective Rodriguez described
Mr. White’s actions: “He grabbed the six-pack with two hands, and he looked at it. It
appeared to me that he looked at the top row of photographs, then he looked down,
looked around the left - - the bottom row of photographs from right to left. And then he
went and stopped in the lower middle photograph, which is position number 5.”
Detective Rodriguez said to Mr. White, “‘It appears you’re looking at a particular
photograph.’” Mr. White said yes, he was looking at number five. Mr. White said
number five looked familiar, but he was not certain.
3. For the benefit of a criminal street gang
Detective Derek White was the lead investigator in the case. Detective White
testified in response to a hypothetical tracking the facts of the January 29, 2011 shooting.
Detective White believed the homicide described in the hypothetical crime was
committed for the benefit of a criminal street gang.
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C. March 7, 2011
1. The attempted murders
On March 7, 2011, in the late afternoon, defendants went into territory claimed by
a rival African-American gang. Mr. Robinson issued gang challenges to three individuals
in succession. When this occurred, Mr. Patton was standing next to Mr. Robinson. In
doing so, Mr. Robinson employed a ruse. Mr. Robinson said he was from the local gang.
Detective White testified this tactic is aimed at accomplishing the gang member’s goal—
to shoot a rival gang member. Mr. Robinson referenced the local gang in order to bait a
potential victim into claiming membership in the local gang. As Detective White
explained: “[T]hey were baiting in the other gang by [claiming the local gang]. It baits
in the other gang member to say, ‘Yeah, I’m from [the local gang] too.’ And then the
assault occurs. [¶] . . . [¶] [The significance of that is] to try to - - if they’re going to go
into an area of a rival gang member, they want to shoot a rival gang member. It doesn’t
always work out that way, but their goal is to - - obviously to shoot a rival gang member.
[¶] . . . [¶] If a gang member challenges a gang member, they’ll usually answer back
with their gang because they’re proud to be from that gang. So by saying this is [the
local gang] - - in situations, investigations I had before, they’ll answer back, yeah, I’m so
and so from [the local gang], and then the assault happens, where, no, this is [the rival
gang] and then they sho[o]t him.”
Walking side by side, defendants approached Jonathan Williams. Mr. Williams
was in front of his home. Mr. Williams lived on 111th Street between Denker and
Normandie Avenues. Mr. Williams testified defendants both looked angry.
Mr. Robinson and Mr. Patton were dressed in dark clothing. Mr. Robinson was wearing
a black “hoodie” and beanie. Mr. Robinson was also wearing dark blue or black pants.
Mr. Patton wore a black hoodie, a blue shirt, possibly black pants and glasses.
Mr. Robinson issued a gang challenge to Mr. Williams. Mr. Robinson put his hand on
his waistband. Mr. Williams saw what looked like a gun handle. Mr. Williams felt
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threatened. He thought he was going to be shot. Mr. Williams retreated into his house.
Mr. Robinson called Mr. Williams a “scary ass nigger.” The encounter lasted less than
one minute. When Mr. Robinson issued the gang challenge, Mr. Patton was standing on
the sidewalk watching what was going on. Mr. Williams testified, however, Mr. Patton
appeared to know what Mr. Robinson was going to do.
As noted, Mr. Williams was entering his home to escape defendants. As this was
occurring, two friends, Mr. Ross and Mr. Abner, arrived to visit Mr. Williams. Mr. Ross
was driving a red Mustang. Mr. Abner was in the passenger seat. As they approached
Mr. Williams’s house, Mr. Ross saw two males in all dark clothing. Mr. Robinson was
wearing a dark “hoodie-type” sweatshirt. Mr. Robinson had two-toned baseball gloves
on his hands. Mr. Robinson looked directly at Mr. Ross and displayed the local gang’s
sign. Mr. Patton was standing about four feet away from Mr. Robinson. Mr. Ross
testified, “I could tell they [were] together . . . .” Mr. Williams telephoned Mr. Ross.
Mr. Williams wanted to warn Mr. Ross of defendants’ presence, but the warning came
too late. Mr. Williams testified: “I tell [Mr. Ross] to get back in the car. These two
dudes that’s walking up, they like tripping. They got a gun or whatever, and I don’t want
nothing to happen to you so to get back in the car.”
Mr. Ross and Mr. Abner encountered defendants as they exited Mr. Ross’s car.
Mr. Robinson referenced the local gang and displayed that gang’s hand sign. Mr. Abner
responded that his family was from the local gang. Mr. Robinson then referred to his
rival African-American gang. Mr. Robinson said: “Oh Yeah? Psyche.” Mr. Robinson
then uttered the African-American gang name. Mr. Robinson reached into his waistband,
pulled out a gun and began shooting. Mr. Robinson shot Mr. Abner four times.
Mr. Abner yelled for Mr. Ross to, “Go get help.” Mr. Ross backed up several steps and
then ran in a zigzag fashion. He could hear defendants running behind him. Mr. Ross
heard gunshots as he ran. He assumed the person that was shooting was behind him.
When the shots stopped, Mr. Ross looked back. Defendants were behind him, across the
street, running in the same direction as Mr. Ross. They were four or five feet away from
each other. Mr. Ross testified, “They were . . . yelling out stuff.” They were saying
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something like, “[Y]eah, we did that.” Mr. Ross was not sure whether he heard one voice
or two. Mr. Ross later discovered a bullet hole in the crotch area of his pants.
At trial, Mr. Ross was shown a photograph of a pair of gloves. The photograph
was taken from Mr. Patton’s cellular telephone. Mr. Ross testified the gloves in the
photograph were similar to the gloves Mr. Robinson was wearing at the time of the
shooting.
Mr. Williams saw Mr. Robinson shooting. Mr. Williams described Mr. Patton as
“observing” what was occurring. Mr. Williams saw Mr. Abner fall. Mr. Williams saw
Mr. Ross running. Mr. Ross was running towards Mr. Williams. Mr. Ross was in the
middle of the street running in a zigzag fashion. Mr. Williams testified, “I seen
[Mr. Robinson] still continuing to fire at [Mr. Ross], [until Mr. Robinson] ran out of
bullets, I guess . . . .” Both defendants then fled. Mr. Williams had a clear view of the
entire scene.
Mr. Abner also saw Mr. Robinson make the hand sign for the local gang.
Mr. Patton was looking in the opposite direction at the time. Mr. Robinson was wearing:
a black hoodie sweatshirt; an undershirt; a black beanie; black and white gloves; and long
pants. His undershirt hung down below his sweatshirt. Mr. Robinson had gang tattoos
on his face. Mr. Patton was wearing glasses, a black shirt and a black hoodie.
Mr. Robinson walked up to Mr. Abner. Mr. Robinson then said the name of the
local gang. Mr. Abner responded he had family members who were part of the local
gang. Mr. Robinson repeated the gang name. Mr. Abner “fanned [Mr. Robinson] off”
and reached to open the Mustang’s passenger door. Mr. Abner testified he was not afraid
when defendants approached. Mr. Abner assumed defendants were from the local gang,
as were members of Mr. Abner’s family. Mr. Abner did not think there would be any
trouble.2
2 Mr. Abner testified: “Q . . . what were you thinking at that moment? [¶] A I
wasn’t scared. Because once again, the guy threw up [the local gang] at me, and I’m very
familiar with that area. . . . That’s where I grew up. The gang sign is not, you know,
nothing unfamiliar to me. So I felt like if he had a problem or altercation with me, it
8
Mr. Robinson blocked Mr. Abner’s path. Mr. Robinson announced his gang
affiliation. Mr. Robinson stepped back until he was five to six feet away from
Mr. Abner. Mr. Robinson pulled out a gun and twice shot Mr. Abner in the left thigh.
Mr. Abner fell into the front passenger seat of the Mustang. Mr. Robinson shot
Mr. Abner in the knee. Mr. Abner told Mr. Ross: “‘Run. Like, go. Go. I’m shot. Go.
Get help.’” Mr. Ross got out of the car and ran across the street. Mr. Robinson then shot
at Mr. Ross. Mr. Abner described what happened next: “[Mr. Robinson’s] shooting at
[Mr. Ross], and he walks around the car. He’s in the back of the car now. And he shoots
again at [Mr. Ross]. [Mr. Ross] is on the other side of a van. So then [Mr. Robinson]
walks across the street, and he’s looking under the car. He’s looking for [Mr. Ross]. [¶]
So I’m watching as I am crawling over the passenger seat. And [Mr. Robinson] – as I get
to the driver’s side, I look to the left. I see [Mr. Robinson] shooting at [Mr. Ross].
[Mr. Robinson] sees me. He shoots me again in my hip.” Defendants ran away together
towards Normandie Avenue. Mr. Robinson took off running first and Mr. Patton
followed. As they ran, they yelled out their gang name.
Karen Patton was in her house when she heard gunshots. She briefly looked out a
window. She saw an African-American male in a white T-shirt running west towards
Denker Avenue. Ms. Patton called an emergency operator.
wasn’t going to be a problem for me to discuss it. [¶] So when he walked up to me and
said ‘[the local gang’s name],’ I said, ‘What’s up? [Local gang name], bro. My people
from this area.’ [Meaning, I am not a local gang member but I have family members
from this neighborhood.] And he said, ‘Yeah?’ [¶] . . . [¶] . . . [W]hen he threw up that
gang sign at me, I kind of, I felt like, why you throwing up a gang sign at me? You
know, if you’re from this area, then you would see my face before and you would know
me, just because I grew up in this area. You know, everyone knows each other and
knows everybody. [¶] . . . [¶] [Then,] [h]e repeats hisself. He repeats hisself. He says,
[local gang name] again. I said, ‘man,’ and I fanned him off. And I go to open the
passenger door. [¶] . . . [¶] . . . And he said, ‘Psych, [rival gang name].’ And he pulled
out the gun, and that’s when he started shooting.”
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2. The investigation
a. defendants are detained
Detective Raul Magadan and Deputy John Herman were in an unmarked sheriff’s
car in the area. They heard approximately seven gunshots. A police radio broadcast
issued concerning the shooting stated two African-American males had been seen
running from the scene. While driving west on 111th Street, Detective Magadan saw
defendants running north on Raymond Avenue toward 111th Street. They were running
away from the area where the shooting occurred. They were only a few blocks from the
location of the shooting. Detective Magadan and Deputy Herman detained defendants
and searched them. No weapon was found. However, both defendants tested positive for
gunshot residue. The positive results meant either defendant could have fired a weapon,
come into contact with a surface that had gunshot residue on it, or been near a firearm
when it was discharged.
Detective Magadan testified Mr. Robinson said, “‘Some [rival gang members] are
shooting at me, and that’s why I’m running.’” When detained, Mr. Patton was wearing
glasses and a white T-shirt or tank top. Mr. Patton was not wearing nor was he in
possession of any gloves or a hooded sweatshirt. Mr. Robinson was dressed in a white
shirt and blue jeans. Mr. Robinson did not have any gloves or a beanie in his possession.
He had two tattoos on his arm. Deputy Ericka Gooseberry drove Mr. Ross and
Mr. Williams to a field show-up. When Deputy Gooseberry observed defendants, they
were both wearing white T-shirts and dark pants. Deputy Gooseberry did not see any
black hoodies, black beanies, or gloves.
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b. the identifications
i. field showups
Mr. Ross identified defendants during a field show-up several blocks away from
the shooting scene. Mr. Ross was “a hundred percent” certain Mr. Robinson was the
assailant. Mr. Ross identified Mr. Patton as “the other one.” At trial, Mr. Ross said he
was less certain about his identification of Mr. Patton as one of the assailants. Deputy
Gooseberry testified Mr. Ross was adamant and confident in his identifications. She
testified, “[He] answered with confidence, and there was no hesitation.”
Mr. Williams also identified Mr. Robinson as the gunman during a field show-up.
Mr. Williams saw Mr. Robinson during the field show-ups. Mr. Robinson said, “[T]hat’s
the guy.” Mr. Williams further testified, “I was a hundred percent sure that that was
him.” Mr. Williams also identified Mr. Patton at the field show-up. Deputy Gooseberry
transported Mr. Williams to the field show-up. Deputy Gooseberry testified that
Mr. Williams identified Mr. Robinson: “[Mr. Williams] was very adamant. He was
confident that that was the person involved in the incident. And he identified him right
away without any hesitation.” Deputy Gooseberry confirmed that Mr. Williams also
identified Mr. Patton as the person who was with the person who fired the gun.
ii. photographic lineups
On March 10, 2011, Mr. Ross viewed a photographic lineup. Mr. Patton’s
photograph was in position number six. Mr. Ross told Detective White number three or
number six “looked similar to [one of the assailants]” or “could be him.” Mr. Ross
testified he was unsure when making the identifications of numbers three and six. When
cross-examined, Mr. Ross said he was unable to identify anyone; he was unsure.
Mr. Ross looked at a second photographic lineup. It contained Mr. Robinson’s
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photograph in position number two. Mr. Ross identified number two as the person who
fired the shots right away. Mr. Ross wrote, “90 [percent] sure it could be the shooter.”
Also on March 10, 2011, Mr. Williams viewed two photographic lineups. The
first lineup included Mr. Patton’s photograph in position number six. Mr. Williams was
unable to identify anyone in the first lineup. The second lineup included a photograph of
Mr. Robinson in position number two. Mr. Williams immediately identified
Mr. Robinson as the person who fired the shots. Mr. Williams wrote, “‘That’s the
shooter.’”
On March 10, 2011, Mr. Abner viewed two photographic lineups. The first lineup
included Mr. Robinson’s photograph in position number two. Upon viewing that lineup,
Mr. Abner circled photographs number one and three. Mr. Abner said he was 20 percent
certain as to photograph number one. And he said he was 80 percent certain as to
photograph number three. Mr. Patton’s photograph was in position number six in the
second lineup. Mr. Abner was unable to identify any of the six individuals pictured.
Detective White testified, “[Mr. Abner] told me that he wished he could see them in
person in a live lineup; it would help him out better.”
iii. preliminary hearing and trial identifications
At trial, Mr. Ross identified defendants as the two men he saw during the field
showup. Mr. Ross identified Mr. Robinson as the gunman. Mr. Ross testified, “I’m a
hundred percent sure.” Mr. Ross remembered the tattoos on Mr. Robinson’s face.
Mr. Ross testified, “I just don’t forget faces.” Mr. Ross did not identify Mr. Patton at the
preliminary hearing or at trial as having been with Mr. Robinson at the time of the
shooting.
At the June 28, 2011 preliminary hearing, Mr. Williams identified both
defendants. At trial, Mr. Williams once again identified defendants as the perpetrators of
the crimes. Mr. Abner did not testify at the preliminary hearing. At trial, Mr. Abner
12
identified Mr. Robinson. Mr. Abner was “very positive” that Mr. Robinson was the man
who fired the shots.
c. the weapons
Detective White testified firearms are very valuable to gang members. Firearms
are kept in various places known to the gang members. Firearms are passed among gang
members for protection and for use to commit crimes.
An expended bullet, bullet casings and bullet fragments were found in and around
Mr. Ross’s red Mustang. There were three bullet holes in the front passenger door of
Mr. Ross’s vehicle. Three bullets perforated the door from outside the Mustang and
continued into the interior compartment. A bullet jacket fragment rested just inside the
door’s compartment. Another bullet perforated the center console just to the right of the
hand brake. A projectile came to rest right near the hand brake. Another bullet travelled
from outside the right side of the car to the left side; it exited the left rear quarter panel,
just below the left rear fixed window. Some of the bullet fragments found at the scene of
the March 7, 2011 shooting were fired from either a .357 Magnum, a .38 Special, a .357
Sig or a .9 millimeter handgun. A cartridge case from a .32 caliber automatic was also
found.
On April 4, 2011, a .357 caliber Smith & Wesson revolver was taken from
defendants’ fellow gang member, Walter Jones. On April 20, 2011, Mr. Patton and Mr.
Jones both made appearances in the Inglewood courthouse. During a telephone
conversation between Mr. Patton and his mother, while he was in a lockup in the
Inglewood courthouse, she said: “They don’t have nothing on you. Uh, the D.A. and the
first attorney was talking and both attorneys said they don’t have nothing on - they have -
I guess they have a weapon, but nobody’s - they didn’t find any prints on it.” Mr. Patton
responded: “Oh. Thank you, Momma. Momma, guess what? . . . [¶] I mean, yeah, I
mean, you know - remember I told you somebody had, ah, went to jail with, ah, one of
them things? That you . . . remember you went over there looking for that bracelet? On
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110th?” Immediately thereafter in the conversation, Mr. Patton continued: “And I told
you the boy, he, ah, lost it? . . . [¶] . . . Yeah, well, he in here.”
Later in the recorded telephone conversation, a person identified only as Toya
spoke and reiterated to Mr. Patton the authorities did not have any evidence. The person
identified only as Toya then said to Mr. Patton: “Even if they found the .357 ain’t no
fingerprints on it. So can’t tie nothing to you . . . .” After complaining about
Mr. Patton’s lawyer’s tardiness, the person identified only as Toya said: “It’s stupid as
fuck, but from my eyes, it look pretty good.” Mr. Patton responded: “That’s good.
That’s good.”
In a subsequent telephone conversation, one hour later, Mr. Patton and his mother
again discussed the whereabouts of the “bracelet.” They also discussed who had
possession of Mr. Patton’s “stuff,” his “mail,” and his “jacket.” She said: “Now, can you
tell me about - about my bracelet? Where is it?” Mr. Patton responded by referring to
“[t]he guy” but the conversation was interrupted by a bad connection. When Mr. Patton
and his mother were able to resume their conversation, he said: “The guy - [y]eah. . . . I
think they gonna try to put his case with ours. [¶] . . . ‘Cause he was the one they got
caught with it.” Mr. Patton’s mother asked where he had gotten this information and he
responded: “No, just now. [¶] . . . He’s in the holding tank.” Mr. Patton stated that the
person in the holding tank with him was about ready to walk into the courtroom.
Mr. Patton’s mother attempted to figure out who was the individual about ready to walk
into the courtroom. Mr. Patton responded: “The guy - that guy got caught with - with,
uh - that thing. [¶] . . . Remember I told you that they - somebody got caught with it?”
Thereafter, the conversation shifted to where a “jacket” could be located.
Detective White testified he believed the participants to the conversation were
talking in code about a firearm. Detective White believed the “bracelet” was code for the
firearm used in the shooting. The trial court instructed the jury Detective White did not
know for sure that “bracelet” meant firearm; the evidence was offered to explain why
Detective White took certain actions. Detective White explained: “By listening to the
whole content of the conversation, having talked about the .357 earlier in the
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conversation, having known that Walter Jones was at court at the exact same day, I
formed the opinion that they were talking about the firearm.”
On June 24, 2011, another of defendants’ fellow gang members, Felton Love, was
detained in possession of a loaded .32 caliber semiautomatic Echasa-Eibar firearm. The
bullet casing recovered from the March 7, 2011 shooting had been fired from that
weapon.
3. Mr. Robinson’s in-custody conversations
On March 17, 2011, Sherice Brooks visited Mr. Robinson in jail. The jury
listened to the recorded conversation. Ms. Brooks and Mr. Robinson discussed the
victims of the March 7, 2011 shooting. Mr. Robinson referred to the victims as “[t]he
dark” and “[t]he light-skinned” ones. Ms. Brooks said one of the victims was her cousin
“Hakeem.” Mr. Robinson urged Ms. Brooks to talk to her cousin. Mr. Robinson
instructed Ms. Brooks, “All you gotta do is tell him show up to say I wasn’t there.” A
second visit between Ms. Brooks and Mr. Robinson, who was in custody, occurred on
March 19, 2011. Ms. Brooks and Mr. Robinson discussed the whereabouts of his clothes
and “shit.” Mr. Robinson instructed Ms. Brooks to tell Mr. Love to burn the items.
During a third visit, on March 20, 2011, Mr. Robinson again asked Ms. Brooks about his
clothes and “the thing.” Ms. Brooks said “they” told her “they” put his things in the
trash.
Detective White had listened to the recorded conversations between Mr. Robinson
and Ms. Brooks. After listening to the March 17, 2011 conversation, Detective White
became concerned for Mr. Ross’s safety. Detective White formed an opinion concerning
the March 19, 2011 conversation between Mr. Robinson and Ms. Brooks. Detective
White believed defendant was directing Ms. Brooks and Mr. Love to get the clothing and
the firearm related to the incident and burn them.
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4. For the benefit of a criminal street gang
Detective White testified based on a hypothetical scenario tracking the facts of the
attempted murders of Mr. Abner and Mr. Ross. Detective White believed the
hypothetical crime was committed for the benefit of a criminal street gang. Detective
White relied in part on the fact the assailants went very deep into rival gang territory and
committed the crimes in broad daylight. Detective White testified: “This appears to be
like a mission. Basically gang members go on missions together. Sometimes two or
more individuals from the gang will stick together, and they have different roles. It could
be as simple as a person is a lookout, a person is to provide back-up to show power in
numbers. The individual is also possibly armed to protect him. And also to witness the
crime. A lot of times, gang members want to go back to the gang to say, ‘Yes, we just
did this, and I saw it myself.’”
III. DISCUSSION
A. Joinder
Defendants each purport to join in the other’s arguments on appeal. (Cal. Rules of
Court, rule 8.200(a)(5).) Joinder in appellate arguments is broadly permitted. (People v.
Nero (2010) 181 Cal. App. 4th 504, 510, fn. 11.) However, as to the joined arguments, a
joining defendant must individually meet his or her burden to demonstrate error and
prejudice. (People v. Nero, supra, 181 Cal.App.4th at p. 510, fn. 11.) A defendant
cannot rely solely on a co-defendant’s arguments and reasoning to satisfy his or her own
burden on appeal. (Ibid.) To the extent defendants have not satisfied their burden on
appeal, we consider a given issue only as to the defendant who raised it. (Ibid.)
16
B. The Trial Court Did Not Abuse Its Discretion
In Denying Defendants’ Severance Motions
1. Standard of Review
Defendants contend the trial court abused its discretion in refusing to sever count
1, charging Mr. Patton with Mr. Perla’s murder, from counts 2 and 3. Counts 2 and 3
allege defendants attempted to murder Mr. Ross and Mr. Abner. Our review is for an
abuse of discretion. (People v. Jones (2013) 57 Cal. 4th 899, 925; People v. Vines (2011)
51 Cal. 4th 830, 855.) Our Supreme Court has held, “Separate trials are permitted in the
discretion of the trial court . . . and whether a trial court’s denial of a severance motion
constitutes an abuse of discretion is judged on the facts as they appeared at the time the
court ruled on the motion. (People v. Boyde [(1988) 46 Cal. 3d 212,] 232; People v.
Turner (1984) 37 Cal. 3d 302, 312[, disapproved on another point in People v. Anderson
(1987) 43 Cal. 3d 1104, 1149-1150].)” (People v. Hardy (1992) 2 Cal. 4th 86, 167;
accord, People v. Souza (2012) 54 Cal. 4th 90, 109.) “On appeal following trial, however,
[even if the trial court’s ruling was proper when made,] there remains the question
whether, despite the correctness of the trial court’s ruling, a gross unfairness has occurred
from the joinder such as to deprive the defendant of a fair trial or due process of law.
(See People v. Turner, supra, 37 Cal.3d [at p.] 313; People v. Bean (1988) 46 Cal. 3d
919.)” (People v. Johnson (1988) 47 Cal. 3d 576, 590; accord, People v. Souza, supra, 54
Cal.4th at p. 109.) We find no abuse of discretion and no due process violation.
2. Statutory Requirements
Pursuant to section 954, “An accusatory pleading may charge . . . two or more
different offenses of the same class of crimes or offenses, under separate
counts . . . provided, that the court in which a case is triable, in the interests of justice and
for good cause shown, may in its discretion order that the different offenses or counts set
17
forth in the accusatory pleading be tried separately . . . .” All of the counts charged in the
present case involved the murder or attempted murder of individuals perceived to be rival
gang members. Thus all of the counts charged the same class of crimes. (People v.
Jones, supra, 57 Cal.4th at p. 924; People v. Soper (2009) 45 Cal. 4th 759, 771; People v.
Jenkins (2000) 22 Cal. 4th 900, 947.)
In addition to section 954, we must also consider the section 1098 requirement that
multiple defendants may not be tried together unless they are jointly charged with a
crime. (People v. Ortiz (1978) 22 Cal. 3d 38, 44-45; accord, People v. Magana (1979) 95
Cal. App. 3d 453, 468.) Section 1098 provides, “When two or more defendants are jointly
charged with any public offense . . . they must be tried jointly, unless the court order[s]
separate trials.” Section 1098 states a Legislative preference for joint trials. (People v.
Gamache (2010) 48 Cal. 4th 347, 381; People v. Boyde, supra, 46 Cal.3d at pp. 231-232.)
As our Supreme Court has explained, a joint trial is permissible under sections 954 and
1098 when all of the defendants are jointly charged in at least one count. (People v.
Ortiz, supra, 22 Cal.3d at p. 45; People v. Pike (1962) 58 Cal. 2d 70, 84-85.) That
requirement was met here. Defendants were jointly charged in counts 2 and 3.
3. Prejudice
a. overview
Because the statutory requirements for joinder of the charges were met, defendants
could establish a joint trial would be an abuse of discretion only by making a clear
showing of prejudice. (Alcala v. Superior Court (2008) 43 Cal. 4th 1205, 1220; People v.
Mendoza (2000) 24 Cal. 4th 130, 160.) Refusal to sever may be an abuse of discretion
where certain factors prevail. (Alcala v. Superior Court, supra, 43 Cal.4th at pp. 1220-
1221; People v. Memro (1995) 11 Cal. 4th 786, 849-850.) As our Supreme Court has
explained: “‘The factors to be considered are these: (1) the cross-admissibility of the
evidence in separate trials; (2) whether some of the charges are likely to unusually
18
inflame the jury against the defendant; (3) 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 (4) whether one of the charges is a capital offense, or the joinder
of the charges converts the matter into a capital case.’ [Citations.]” (Alcala v. Superior
Court, supra, 43 Cal.4th at pp. 1220-1221; accord, People v. Jones, supra, 57 Cal.4th at
p. 925; People v. Memro, supra, 11 Cal.4th at pp. 849-850.)
b. cross-admissibility
Cross-admissibility of evidence is sufficient standing alone to justify a trial court’s
refusal to sever charges. (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221; People
v. Carter (2005) 36 Cal. 4th 1114, 1154.) Moreover, complete or two-way cross-
admissibility is not required. (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221;
People v. Zambrano (2007) 41 Cal. 4th 1082, 1129, disapproved on another point in
People v. Doolin (2009) 45 Cal. 4th 390, 421, fn. 22.) The evidence substantiating the
gang allegations would be admissible in separate trials. (See People v. Hernandez (2004)
33 Cal. 4th 1040, 1049-1050; Calderon v. Superior Court (2001) 87 Cal. App. 4th 933,
939-941 People v. Funes (1994) 23 Cal. App. 4th 1506, 1516-1518.) Moreover, evidence
of the manner in which Mr. Patton committed the murder would be admissible against
him in a trial of the attempted murders. The murder and attempted murders were
committed under very similar circumstances. In each case: a gang member or members
entered rival gang territory on foot; the gang member or members challenged individuals
perceived to be rival gang members; and then the person with the gun shot or attempted
to shoot the victims multiple times. Evidence of the manner in which Mr. Patton
committed the murder tended to prove he harbored the intent to aid and abet in the
attempted murders. (Evid. Code, §§ 352, 1101, subd. (b).) (People v. Garcia (2008) 168
Cal. App. 4th 261, 277-278; see People v. Rogers (2013) 57 Cal. 4th 296, 325-326; Alcala
v. Superior Court, supra, 43 Cal.4th at pp. 1222-1223.) As noted above, this cross-
admissibility alone suffices to establish the trial court did not abuse its discretion in
19
refusing to sever count 1 from counts 2 and 3. (Alcala v. Superior Court, supra, 43
Cal.4th at p. 1221; People v. Carter, supra, 36 Cal.4th at p. 1154.)
c. inflammatory nature of the charges
As noted above, refusal to sever may also be an abuse of discretion where certain
of the charges are unusually likely to inflame the jury against the defendant. (Alcala v.
Superior Court, supra, 43 Cal.4th at pp. 1220-1221; People v. Memro, supra, 11 Cal.4th
at pp. 849-850.) Defendants argue evidence of the manner in which Mr. Perla was
murdered was likely to inflame the jury against both of them. We disagree. Mr. Perla’s
murder was not particularly inflammatory as compared to the attempted murders of
Mr. Abner and Mr. Ross. Mr. Patton shot Mr. Perla in the head. This caused Mr. Perla to
fall to the ground. Mr. Patton continued to shoot at Mr. Perla who was prone on the
ground. Mr. Robinson shot Mr. Abner multiple times. After being initially hit,
Mr. Abner fell into a car, an enclosed place. Mr. Robinson chased Mr. Ross. During the
chase, Mr. Robinson fired at Mr. Ross multiple times. All of the crimes were gang-
motivated. All of the shootings were unprovoked. In each case, the jury reasonably
concluded the shooter intended to kill. That Mr. Robinson failed to hit either victim in
the head or upper torso did not make the manner in which the attempted murders
occurred less inflammatory than the murder.
d. weak versus strong case
Further, refusal to sever may be an abuse of discretion when a weak case is joined
with a strong case. In such a situation, the “spillover” effect of aggregate evidence on
several charges might alter the outcome of some or all of the charges. (Alcala v. Superior
Court, supra, 43 Cal.4th at pp. 1220-1221; People v. Memro, supra, 11 Cal.4th at pp.
849-850.) Mr. Patton argues that, as compared to the murder case against him, the
attempted murders prosecution was weak with respect both to identification and
20
culpability. Therefore, Mr. Patton argues, trying count 1 with counts 2 and 3 allowed the
prosecution to bolster a weak case with a stronger case. We disagree that this assessment
permits reversal.
The case against Mr. Patton for Mr. Perla’s murder was not significantly stronger
than that for the attempted murders in terms of identification and culpability. It is true
that the evidence identifying Mr. Patton as Mr. Perla’s murderer was stronger.
Mr. Garcia confidently identified Mr. Patton as Mr. Perla’s murderer. This identification
is strengthened by the fact Mr. Garcia knew Mr. Patton. However, Mr. Garcia was the
sole witness to identify Mr. Patton in the murder case. In the case of the attempted
murders, multiple witnesses identified Mr. Patton as a perpetrator. Mr. Ross and
Mr. Williams both identified Mr. Patton at the field showup. Mr. Ross also identified
Mr. Patton in a photographic lineup as looking similar to the companion of the person
who fired the shots. Mr. Williams identified Mr. Patton at the preliminary hearing and
again at trial. Further, with respect to the attempted murders, Mr. Patton and
Mr. Robinson were fellow gang members. The jury found Mr. Patton had committed a
gang murder just one month prior to the attempted murders of Mr. Ross and Mr. Abner.
Further, witnesses to the attempted murders testified: defendants stood next to one
another while Mr. Robinson flashed gang signs and issued gang challenges; defendants
were together when Mr. Robinson opened fire on the victims; Mr. Patton fled side by side
with Mr. Robinson after the shootings; both men shed their outer clothing; and Mr. Patton
was still in Mr. Robinson’s company when they were detained by police officers.
Further, Mr. Patton implicated himself during in-custody telephone conversations.
Mr. Patton and his mother discussed the weapon, a .357 caliber firearm, used in the
attempted murders. Mr. Patton spoke with a person only identified as Toya, who
described the weapon used in the attempted murders as a .357. When Mr. Patton heard
no fingerprints were found on the gun, he responded: “That’s good. That’s good.”
Mr. Patton also said someone had “picked up all the stuff” that day. Mr. Patton wanted to
know what had happened to his things. Given the evidence, the trial court could
reasonably conclude counts 2 and 3 did not present a weak case as compared to count 1.
21
e. confusion
Mr. Robinson argues inevitable evidentiary confusion caused the two shootings to
blend together. There is no substantial likelihood the jury was confused. The crimes
occurred at different times and in different locations. The crimes were perpetrated upon
and witnessed by different individuals. The evidence as to each clearly related only to
either count 1 or counts 2 and 3. The jury was instructed to separately consider the
evidence as to each defendant and each charge. The jury was instructed: “You must
separately consider the evidence as it applies to each defendant. You must decide each
charge for each defendant separately.” (CALCRIM No. 203.) We presume the jurors
obeyed the trial court’s instructions. (People v. Montes (2014) 58 Cal. 4th 809, 888;
People v. Yeoman (2003) 31 Cal. 4th 93, 138-139.)
5. conclusion
The trial court did not abuse its discretion in declining to sever count 1 from
counts 2 and 3. Further, the denial of defendants’ severance request did not cause the
trial to be fundamentally unfair. (See People v. Cook (2006) 39 Cal. 4th 566, 581-583;
People v. Jenkins, supra, 22 Cal.4th at pp. 947-949.)
B. Substantial Evidence Supported The Jury’s Finding
Mr. Patton Aided And Abetted The Attempted Murders
Mr. Patton asserts there was insufficient evidence he aided and abetted in the
attempted murders as charged in counts 2 and 3. Mr. Patton relies in large part on
Mr. Abner’s testimony on cross examination by Mr. Patton’s trial attorney, Ronald J.
Higgins. Mr. Abner testified that: as Mr. Robinson began shooting, Mr. Patton stepped
back and stood there watching; it appeared as if Mr. Robinson was the leader of the entire
event; Mr. Robinson made a gang reference; when the gang reference was made,
22
Mr. Patton was standing behind Mr. Robinson looking the other way; Mr. Patton did not
have a weapon; and Mr. Patton never touched his waist area as if he were trying to
conceal or hold anything. And Mr. Abner did not believe Mr. Patton was encouraging
Mr. Robinson. In connection with Mr. Robinson, Mr. Abner testified, “I didn’t see him
do anything.” And as far as Mr. Abner could see, Mr. Patton did not give any type of
assistance to Mr. Robinson.
The prosecution did not rely on a natural and probable consequences theory. In
these circumstances, as our Supreme Court has explained: “Attempted murder requires
the specific intent to kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing. (E.g., 1 Witkin & Epstein, Cal. Criminal Law (3d ed.
2000) Elements, § 53, pp. 262-263; see, e.g., People v. Swain (1996) 12 Cal. 4th 593, 604-
605.) To be guilty of a crime as an aider and abettor, a person must ‘aid[] the [direct]
perpetrator by acts or encourage[] him [or her] by words or gestures.’ (People v. Villa
(1957) 156 Cal.App.2d 128,134; accord, People v. Gonzales (1970) 4 Cal. App. 3d 593,
600; see generally 1 Witkin & Epstein, Cal. Criminal Law, supra, Introduction to Crimes,
§ 78, p. 124.) In addition, except under the natural-and-probable-consequences doctrine
(see, e.g., People v. McCoy (2001) 25 Cal. 4th 1111, 1118; see generally People v.
Prettyman (1996) 14 Cal. 4th 248, 260-263), which is not implicated on the facts
presented here, the person must give such aid or encouragement ‘with knowledge of the
criminal purpose of the [direct] perpetrator and with an intent or purpose of either
committing, or of encouraging or facilitating the commission of,’ the crime in question.
(People v. Beeman (1984) 35 Cal. 3d 547, 560; accord, e.g., People v. Prettyman, supra,
14 Cal.4th at p. 259; People v. Croy (1985) 41 Cal. 3d 1, 11-12.) When the crime at issue
requires a specific intent, in order to be guilty as an aider and abettor the person ‘must
share the specific intent of the [direct] perpetrator,’ that is to say, the person must
‘know[] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid
or encouragement with the intent or purpose of facilitating the [direct] perpetrator’s
commission of the crime.’ (People v. Beeman, supra, 35 Cal.3d at p. 560.) Thus, to be
guilty of attempted murder as an aider and abettor, a person must give aid or
23
encouragement with knowledge of the direct perpetrator’s intent to kill and with the
purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—
which means that the person guilty of attempted murder as an aider and abettor must
intend to kill. (See People v. McCoy, supra, 25 Cal.4th at p. 1118.)” (People v. Lee
(2003) 31 Cal. 4th 613, 623-624.)
We apply the substantial evidence standard of review. Our Supreme Court set
forth that standard of review in People v. Manibusan (2013) 58 Cal. 4th 40, 87: “‘[W]e
review the whole record to determine whether any rational trier of fact could have found
the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record
must disclose substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review
the evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] “. . . We resolve neither credibility issues nor evidentiary conflicts;
we look for substantial evidence. [Citation.]” [Citation.] A reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’” the jury’s verdict. [Citation.]’ (People v.
Zamudio (2008) 43 Cal. 4th 327, 357 . . . .)”
Mr. Patton’s mere presence at the scene and his failure to prevent the shootings are
insufficient to establish he aided and abetted the attempted murders. (People v. Salgado
(2001) 88 Cal. App. 4th 5, 15 [mere presence insufficient]; People v. Culuko (2000) 78
Cal. App. 4th 307, 331 [mere failure to prevent]; People v. Campbell (1994) 25
Cal. App. 4th 402, 409, citing People v. Durham (1969) 70 Cal. 2d 171, 181.) However,
presence at the crime scene, companionship, and conduct before or after the offense are
factors that may be considered in determining aiding and abetting liability. (In re Juan
G. (2003) 112 Cal. App. 4th 1, 5; People v. Campbell, supra, 25 Cal.App.4th at p. 409; In
re Lynette G. (1976) 54 Cal. App. 3d 1087, 1094-1095.) Here, Mr. Patton engaged in a
pattern of gang-motivated assaults. Less than two months prior to the attempted murders,
24
Mr. Patton and an unidentified companion went on foot into rival gang territory. There,
Mr. Patton and the unidentified man confronted individuals perceived to be rival gang
members. Mr. Patton issued gang challenges first to Mr. Garcia and then to Mr. Perla, a
rival gang member. Mr. Patton fatally shot Mr. Perla multiple times. On March 7, 2011,
Mr. Patton and Mr. Robinson, fellow gang members, armed themselves and went on foot
into rival gang territory. Mr. Robinson issued gang challenges to individuals perceived to
be rival gang members. Mr. Patton was standing next to Mr. Robinson when the gang
challenges were made. Mr. Robinson issued a gang challenge to Mr. Williams.
Mr. Robinson then turned toward Mr. Ross and Mr. Abner. Mr. Robinson engaged in a
ruse designed to cause his victims to acknowledge their membership in a rival gang.
Mr. Robinson shot two victims perceived to be rival gang members. The crimes were
committed in a similar manner and with a common gang motive. Thus, Mr. Patton’s
participation in Mr. Perla’s murder was probative of his intent to aid and abet in
committing the attempted murders. (People v. Garcia, supra, 168 Cal.App.4th at pp.
277-278; see People v. Rogers, supra, 57 Cal.4th at pp. 325-326; Alcala v. Superior
Court, supra, 43 Cal.4th at pp. 1222-1223.)
Moreover, defendants were fellow gang members who acted in concert both
before and after the shooting. As noted above, they armed themselves and went on foot
into rival gang territory. They approached Mr. Williams side by side. Both appeared to
be angry. Mr. Patton stood nearby while Mr. Robinson challenged Mr. Williams.
Mr. Williams testified Mr. Patton appeared to know what Mr. Robinson was going to do.
Mr. Patton stood only four feet from Mr. Robinson. Mr. Robinson then looked directly at
Mr. Ross and displayed a gang sign. Mr. Patton would have known that the gang sign
Mr. Robinson was making was that of the rival gang. Mr. Ross testified Mr. Robinson
and Mr. Patton were together. Defendants subsequently approached Mr. Abner and
Mr. Ross together. Mr. Patton remained in close proximity to Mr. Robinson. As they
remained near one another, Mr. Robinson repeatedly made gang references and then shot
the victims. Mr. Patton made no attempt to intervene or to leave. There was no evidence
Mr. Patton was surprised by Mr. Robinson’s actions. In fact, Mr. Patton chased Mr. Ross
25
alongside Mr. Robinson. Mr. Ross could hear the two men running behind him.
Mr. Patton and Mr. Robinson also fled the shooting scene together. As they ran away,
one or both of the defendants yelled out their gang affiliation. Mr. Patton and
Mr. Robinson were still together when, shortly afterwards, they were detained by the
police. Both men had shed their outer clothing. They were running in a direction away
from the location of the shooting, toward their own gang territory.
There was evidence two guns were used. Bullet casings and fragments from two
different firearms were found at the scene. And both victims tested positive for gunshot
residue. Guns that could have been used in the attempted murders were later recovered
from two of defendants’ fellow gang members. Although the victims did not see
Mr. Patton with a gun, the jury could reasonably infer Mr. Patton was armed and fired a
weapon at the victims.
Further, Detective White testified that murder and attempted murder were among
defendants’ gang’s primary activities. Detective White testified hypothetical individuals
acting as had Mr. Patton and Mr. Robinson were on a mission to assault a rival gang
member in rival gang territory. Detective White testified: “This [hypothetical scenario]
appears to be like a mission. Basically gang members go on missions together.
Sometimes two or more individuals from the gang will stick together, and they have
different roles. It could be as simple as a person is a lookout, a person is to provide back-
up to show power in numbers. The individual is also possibly armed to protect him. And
also to witness the crime. A lot of times, gang members want to go back to the gang to
say, ‘Yes, we just did this, and I saw it myself.’” Based on Detective White’s opinion,
the jury could reasonably conclude Mr. Patton acted as a backup, lookout and witness to
the crimes.
Finally, Mr. Abner’s testimony that Mr. Patton did not do anything to aid
Mr. Robinson was not a legal conclusion. The properly instructed jury was not obligated
to adopt Mr. Abner’s perspective. The foregoing was substantial evidence Mr. Patton by
his acts aided and encouraged the crimes. (See In re Juan G., supra, 112 Cal.App.4th at
pp. 5-6; People v. Hoang (2006) 145 Cal. App. 4th 264, 274-276; People v. Hodgson
26
(2003) 111 Cal. App. 4th 566, 576-577; People v. Campbell, supra, 25 Cal.App.4th at pp.
408-410; In re Lynette G., supra, 54 Cal.App.3d at pp. 1094-1095.)
C. Mr. Patton’s Mistrial Motion
Prior to trial, the trial court ruled evidence of statements by a codefendant must be
edited to avoid incriminating the other defendant. In his opening statement,
Mr. Robinson’s counsel, Bruce L. Karey, asserted in part: “The evidence is also going to
show that approximately, I’d say a block and a half away, Mr. Robinson and Mr. Patton
have contact with sheriff deputies. I expect that the evidence will show you that the
minute that they have contact with the deputies, Mr. Robinson says, ‘Hey, these [gang
members] in a red car shot at us.’”
At the conclusion of Mr. Karey’s argument, Mr. Patton’s trial attorney,
Mr. Higgins, made an oral mistrial motion. Mr. Higgins argued: “I move for a mistrial
as to my client. [¶] Counsel unintentionally said that his client said that what we had
agreed is not going to come in. He said, ‘They shot at us.’ And all of that was excised
from the transcript of [Mr. Robinson.] [¶] We have a joint trial. And I don’t see how it
can be undone at this point.” Mr. Karey apologized for his inadvertent violation of the
trial court’s ruling. Following argument by all counsel, the trial court denied the motion.
The trial court ruled: “The motion for mistrial is respectfully denied. [¶] I intend to
instruct the jury that the opening statements of counsel [are] not evidence. That the
evidence comes from the witness stand, and the exhibits that they receive. [¶] And they
will be further instructed at the end of the case.” Immediately after ruling, with the jury
present, the trial court instructed: “Before the prosecution calls its first witness, ladies
and gentlemen, I just wanted to remind you that the opening statements of counsel are not
evidence. The evidence comes through the testimony of witnesses, and any exhibits that
are received into evidence. [¶] So you are not to presume that the statements of counsel
are necessarily correct because they are certainly not evidence.”
27
During a subsequent Evidence Code section 402 hearing, Detective Magadan
testified concerning the detention of Mr. Patton and Mr. Robinson. When detained,
Mr. Robinson said some gang members in a red car had been shooting at them and that
was why they were running. The trial court ruled the defense would be permitted to
inquire regarding the spontaneous statement. The trial court directed Detective Magadan
as follows: “[W]hen you respond to the questions that are being asked as to the statement
by Mr. Robinson, you’re not to use the word ‘us.’ [¶] Mr. Higgins: Or ‘we.’ [¶] The
Court: Or ‘we.’ It’s going to be ‘I’ and/or ‘him.’ So that it’s singular rather than plural.
So it only relates to the speaker.” Detective Magadan acknowledged that he understood.
Later, on direct examination by Deputy District Attorney Ethan Milius, Detective
Magadan testified upon being detained, Mr. Robinson said, “‘Some [gang members] are
shooting at me, and that’s why I’m running.’”
On appeal, Mr. Patton asserts the trial court abused its discretion and violated his
confrontation rights when it denied the mistrial motion. Mr. Patton relies on Bruton v.
United States (1968) 391 U.S.123, 135-136 and People v. Aranda (1965) 63 Cal. 2d 518,
526-527. Mr. Patton argues these decisions stand for the proposition that the admission
of Mr. Robinson’s incriminating statements, which were not subject to cross-
examination, cannot be cured through jury instruction. Mr. Patton reasons that because
the mistrial motion came early in the trial, beginning jury selection anew would have
been a small price to pay to protect his constitutional rights. Mr. Patton argues
Mr. Robinson’s remark as related by Mr. Karey in his opening statement “clearly”
inferred defendants were together at the time of the shooting. Mr. Patton argues the
foregoing hearsay statement placing him at the shooting was highly incriminating. He
argues it placed him at the shooting scene in a case where eyewitnesses had difficulty
identifying him. Mr. Patton further asserts Detective Magadan’s trial testimony
referencing Mr. Robinson’s statement compounded the earlier error. According to
Mr. Patton, the jury would have equated Detective Magadan’s testimony with Mr.
Karey’s earlier version of Mr. Robinson’s statement.
28
Our Supreme Court has held, “A trial court should grant a mistrial only when a
party’s chances of receiving a fair trial have been irreparably damaged . . . . (People v.
Ayala (2000) 23 Cal. 4th 225, 282.)” (People v. Bolden (2002) 29 Cal. 4th 515, 555;
accord, People v. Harris (2013) 57 Cal. 4th 804, 848.) Moreover, “‘“‘Whether a
particular incident is incurably prejudicial is by its nature a speculative matter, and the
trial court is vested with considerable discretion in ruling on mistrial motions.’”’”
(People v. Lightsey (2012) 54 Cal. 4th 668, 718; accord, People v. Lucero (2000) 23
Cal. 4th 692, 713-714.) Our review is for an abuse of discretion. (People v. Edwards
(2013) 57 Cal. 4th 658, 703; People v. Lightsey, supra, 54 Cal.4th at p. 718.)
Bruton and Aranda address situations in which, “[T]he powerfully incriminating
extrajudicial statements of a codefendant, who stands accused side-by-side with the
defendant, are deliberately spread before the jury in a joint trial.” (Bruton v. United
States, supra, 391 U.S. at pp. 135-136.) That is not what happened here. Mr. Robinson’s
statement as related by Mr. Karey in opening argument was not “powerfully
incriminating.” The challenged reference to Mr. Robinson’s statement was made during
opening argument to the jury; it was not evidence. The jury was so instructed. The jury
was further instructed to consider a defendant’s pretrial statement only as to that
defendant. The jury is presumed to have followed the trial court’s instructions. (People
v. Letner and Tobin (2010) 50 Cal. 4th 99, 196-197; People v. Coffman (2004) 34 Cal. 4th
1, 83; see People v. Taylor (2001) 26 Cal. 4th 1155, 1173-1174.) As our Supreme Court
has repeatedly stated, “Jurors are presumed to be intelligent, capable of understanding
instructions and applying them to the facts of the case.” (Conservatorship of Early
(1983) 35 Cal. 3d 244, 253; accord, People v. Butler (2009) 46 Cal. 4th 847, 873; People
v. Carey (2007) 41 Cal. 4th 109, 130; People v. Lewis (2001) 26 Cal. 4th 334, 390.)
Further, the reference to “us” in Mr. Karey’s opening argument was brief and
isolated. Nothing in the course of the lengthy trial drew any particular attention to the
comment as incriminating Mr. Patton. Further, the undisputed evidence was that two
young African-American men confronted Mr. Ross and Mr. Abner. A central issue
before the jury with respect to Mr. Patton was whether he was one of those two people.
29
The evidence was uncontradicted that defendants were members of the same gang. There
was also evidence they were friends. Mr. Patton’s cellular telephone had a photograph of
Mr. Robinson making their gang’s hand sign. It was uncontroverted that defendants were
detained by law enforcement officers in the vicinity of the shooting. It was undisputed
that defendants were running side by side when the officers encountered them. It was not
Mr. Robinson’s statement to law enforcement officers using the word “us”—as
referenced in opening argument—that was powerfully incriminating. It was defendants’
relationship with each other as fellow gang members. And it was their presence together,
running, in the vicinity of the shooting, that was strong circumstantial evidence of
Mr. Patton’s guilt. In addition, both Mr. Ross and Mr. Williams identified Mr. Patton as
one of the perpetrators. And Mr. Patton implicated himself in telephone conversations he
had while in custody. The evidence placed before the jury was that Mr. Robinson
referred to himself, singularly, and not to “us.” In closing argument, the deputy district
attorney, Mr. Milius, quoted Mr. Robinson as saying: “Some [gang members] in a red
mustang are shooting at me. That’s why I am running.” Mr. Karey’s reference in
opening argument to gang members were shooting at “us” was inconsequential in light of
the evidence of Mr. Patton’s guilt. Mr. Karey’s misstatement was not so incurably
prejudicial that a mistrial was required. Moreover, we find any error was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 22; People v.
Jennings (2010) 50 Cal. 4th 616, 652.)
D. Murder And Attempted Murder Instructions
Mr. Patton argues: the jury was instructed on murder and attempted murder; this
confused the jury and allowed him to be convicted on an implied malice theory; the
jurors were likely to have been confused as to the mental state necessary for attempted
murder; and the jury should have been expressly instructed that attempted murder
requires express malice. (See People v. Visciotti (1992) 2 Cal. 4th 1, 58-59; People v.
Collie (1981) 30 Cal. 3d 43, 61-62.)
30
Mr. Patton did not specifically request a clarifying instruction in the trial court.
Mr. Higgins requested instruction with a modified version of CALCRIM No. 600: “The
defendants are charged in Counts 2 and 3 with attempted murder. [¶] To prove that a
particular defendant is guilty of attempted murder, the People must prove that: [¶] 1
[The] defendant took at least one direct but ineffective step toward killing another person;
[¶] AND [¶] 2 [¶] [The] defendant intended to kill that person. [¶] A direct step requires
more than merely planning or preparing to commit murder or obtaining or arranging for
something needed to commit murder. A direct step is one that goes beyond planning or
preparation and shows that a person is putting his or her plan into action. A direct step
indicates a definite and unambiguous intent to kill. It is a direct movement toward the
commission of the crime after preparations are made. It is an immediate step that puts
the plan in motion so that the plan would have been completed if some circumstance
outside the plan had not interrupted the attempt. [¶] Intent to kill unlawfully is a
necessary element of attempted murder and the prosecution must prove beyond a
reasonable doubt that each defendant individually harbored such an intent. Intent to kill
unlawfully cannot be inferred solely from the commission of another dangerous crime
such as assault with a deadly weapon. In addition to proving that a particular defendant
committed an assault with a deadly weapon or shot at a victim, the prosecution must
present other independent evidence which directly or by solid inference, proves beyond a
reasonable doubt that the defendant intended to kill. [¶] A defendant may be guilty of
attempted murder even if you conclude that murder was actually completed.”
Mr. Higgins argued, “Well, I’m just going to indicate that the last sentence that I
included, I think that that’s a correct statement of the law.” The trial court denied
Mr. Higgins’s request for an instruction with a modified version of CALCRIM No. 600.
The trial court ruled, “The pattern instructions adequately identify the factors for the
jurors to consider and adequately informs them of the law.” As a result, this argument
was forfeited. (People v. Young (2005) 34 Cal. 4th 1149, 1202-1203; People v. Marks
(2003) 31 Cal. 4th 197, 237.)
31
Attempted murder requires proof of a specific intent to kill. (People v. Smith
(2005) 37 Cal. 4th 733, 739; People v. Croy, supra, 41 Cal.3d at pp. 20-21.) Murder, on
the other hand, does not require a specific intent to kill. (People v. Smith, supra, 37
Cal.4th at p. 739; People v. Croy, supra, 41 Cal.3d at p. 20.) As our Supreme Court
explained in Smith: “‘The mental state required for attempted murder has long differed
from that required for murder itself. Murder does not require the intent to kill. Implied
malice—a conscious disregard for life—suffices. (People v. Lasko (2000) 23 Cal. 4th
101, 107.)’ (People v. Bland (2002) 28 Cal. 4th 313, 327 . . . .) In contrast, ‘[a]ttempted
murder requires the specific intent to kill and the commission of a direct but ineffectual
act toward accomplishing the intended killing.’ (People v. Lee[, supra,] 31 Cal.4th [at p.
623]; see People v. Swain[, supra,] 12 Cal.4th [at pp.] 604-605.)” (People v. Smith,
supra, 37 Cal.4th at p. 739; accord, People v. Gonzalez (2012) 54 Cal. 4th 643, 653-654.)
Here, the jury was instructed on murder pursuant to CALCRIM No. 520,
“Defendant Daishjon Patton is charged in Count 1 with murder in violation of Penal
Code section 187.” (Italics added.) The jury was further instructed that murder can be
committed with express or implied malice. The instruction referred explicitly and solely
to Mr. Patton and the crime charged in count 1. With respect to attempted murder, the
jury was instructed pursuant to CALCRIM No. 600: “The defendants are charged in
Counts 2 and 3 with attempted murder.” (Italics added.) Further, the jurors were
instructed, “To prove that the defendant is guilty of attempted murder, the People must
prove that: [¶] 1. The defendant took at least one direct but ineffective step toward
killing another person. [¶] AND [¶] 2. The defendant intended to kill that person.”
CALCRIM No. 600 correctly states the elements of attempted murder. (People v. Ramos
(2011) 193 Cal. App. 4th 43, 47; People v. Lawrence (2009) 177 Cal. App. 4th 547, 557.)
Moreover, the instruction explicitly referred to both defendants and to the charges in
counts 2 and 3. The jury was further instructed to consider the evidence as to each
defendant separately and to decide each charge as against each defendant separately.
(CALCRIM No. 203.) It was clear, therefore, that the murder instruction as to count 1
(CALCRIM No. 520) did not apply to the attempted murder charges in counts 2 and 3.
32
Moreover, as instructed, the jury was required to convict on attempted murder only if it
found an intent to kill. The attempted murder instruction did not imply the jury could
find Mr. Patton guilty of attempted murder on an implied malice theory. (Compare,
People v. Croy, supra, 41 Cal.3d at pp. 20-21.) Thus, the instruction error contention
has no merit.
Even if there was a risk of confusion, any error is harmless beyond a reasonable
doubt. In their closing arguments to the jury, each of the attorneys discussed intent to kill
in relation to the attempted murder charges. Mr. Karey argued the second person—who
the prosecution claimed was Mr. Patton—just stood there and did not do a thing. Further:
“[Whomever] was standing next to those people, his intent was not the same as the other
person’s intent. If, in fact, the shooter’s intent was to kill, you can’t say that was the
intent of the second person.” Mr. Milius, the deputy district attorney, argued that based
on the repeated shots fired at the victims, defendants clearly harbored a specific intent to
kill Mr. Ross and Mr. Abner. Mr. Higgins argued that if the person who fired the gun
intended to kill the victims, the rounds would have been fired at their upper torsos. Thus,
based on the instructions and arguments, it is not reasonably probable Mr. Patton would
have been acquitted if the jury were instructed differently.
Any error was harmless beyond a reasonable doubt. (Chapman v. California,
supra, 386 U.S. at p. 24; People v. Lee (1987) 43 Cal. 3d 666, 676.) The case was
presented to the jury on the theory Mr. Patton committed the attempted murders with an
intent to kill. The jury was never told it could convict Mr. Patton of attempted murder
based on a theory of implied malice. There was no defense or evidence by which the jury
could have found Mr. Patton guilty of attempted murder on an implied malice analysis.
In addition, the jury necessarily found pursuant to other instructions that Mr. Patton had
an intent to kill. The jury found the attempted murders were willful, deliberate and
premeditated. The jury was instructed a defendant “acted willfully if he intended to kill”
when he acted. In order to find the attempted murders were premeditated, the jury had to
find defendants had an intent to kill. If the jury based its verdict as to Mr. Patton on his
personal acts, it necessarily found he intended to kill. If the jury found Mr. Robinson
33
acted with an intent to kill and Mr. Patton aided and abetted that crime, both defendants
were guilty of attempted murder. (People v. Lee, supra, 31 Cal.4th at p. 624; People v.
McCoy, supra, 25 Cal.4th at p. 1118; People v. Beeman, supra, 35 Cal.3d at p. 560.) No
lawyer argued that anything other than a specific intent to kill was a requisite element of
the attempted murder counts. Given the facts, instructions and arguments to the jury, any
error was harmless.
E. Consciousness Of Guilt Instructions
Mr. Patton challenges the consciousness of guilt instructions given in this case:
CALCRIM No. 362 [consciousness of guilt: false statements]; CALCRIM No. 371
[consciousness of guilt: suppression and fabrication of evidence]; and CALCRIM
No. 372 [flight].3 Mr. Patton argues the instructions: allowed the jury to draw irrational
3 The jury was instructed pursuant to CALCRIM No. 362: “If a defendant made a
false or misleading statement before this trial relating to the charged crime, knowing the
statement was false or intending to mislead, that conduct may show he was aware of his
guilt of the crime and you may consider it in determining his guilt. You may not consider
the statement in deciding any other defendant’s guilt. [¶] If you conclude that the
defendant made the statement, it is up to you to decide its meaning and importance.
However, evidence that the defendant made such a statement cannot prove guilt by
itself.” (Italics added.) Instruction under CALCRIM No. 371 was as follows: “If a
defendant tried to hide evidence or discourage someone from testifying against him, that
conduct may show that he was aware of his guilt. If you conclude that the defendant
made such an attempt, it is up to you to decide its meaning and importance. However,
evidence of such an attempt cannot prove guilt by itself. [¶] If a defendant tried to create
false evidence or obtain false testimony, that conduct may show that he was aware of his
guilt. If you conclude that the defendant made such an attempt, it is up to you to decide
its meaning and importance. However, evidence of such an attempt cannot prove guilt by
itself. [¶] If you conclude that a defendant tried to hide evidence, discouraged someone
from testifying, or authorized another person to hide evidence or discourage a witness,
you may consider that conduct only against that defendant. You may not consider that
conduct in deciding whether any other defendant is guilty or not guilty.” (Italics added.)
The CALCRIM No. 372 instruction read: “If the defendant fled or tried to flee
immediately after the crime was committed, that conduct may show that he was aware of
his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide
34
inferences of guilt; denied his fair trial and due process rights under the United States and
California Constitutions; and undermined the proof beyond a reasonable doubt
requirement.
Mr. Patton did not object in the trial court to the consciousness of guilt instructions
on the present grounds. Nevertheless, the arguments are properly before us. (§ 1259;
People v. Taylor (2010) 48 Cal. 4th 574, 630, fn. 13; People v. Wallace (2008) 44 Cal. 4th
1032, 1074, fn. 7.) No due process violation occurred. We apply the following standard
of review: “[We view] the instructions as a whole, and in light of the record at trial, [to
determine whether] it is . . . reasonably likely the jury understood the challenged
instructions to mean defendant had the burden of establishing his [or her] innocence.”
(People v. Frye (1998) 18 Cal. 4th 894, 958, disapproved on another point in People v.
Doolin, supra, 45 Cal.4th at p. 421, fn. 22; accord, People v. Snow (2003) 30 Cal. 4th 43,
97.) When the consciousnesses of guilt instructions are read in light of other given jury
instructions, Mr. Patton’s argument is unpersuasive. CALCRIM No. 200 instructed the
jury to decide the facts based only on the evidence. CALCRIM No. 200 further
instructed the jury to pay careful attention to the instructions and consider them as a
whole. CALCRIM No. 220 told the jury the prosecution was required to prove
defendants’ guilt beyond a reasonable doubt. When all of the instructions are considered
collectively, there is no reasonable possibility the jury understood the challenged
instructions in a way that undermined the innocence presumption. Nor considered
together is there any reason to believe the challenged instructions relieved the prosecution
of its burden to prove guilt beyond a reasonable doubt.
Mr. Patton acknowledges our Supreme Court has repeatedly approved
consciousness of guilt instructions. (E.g., People v. Howard (2008) 42 Cal. 4th 1000,
1020-1021 [CALJIC No. 2.52 & CALCRIM No. 372 (flight)]; 1024-1025 [CALJIC No.
2.03, CALCRIM No. 362 (false statements)]; People v. Coffman and Marlow (2004) 34
Cal. 4th 1, 101-102 [CALJIC Nos. 2.04 (fabricating evidence), 2.06 (suppressing
the meaning and importance of that conduct. However, evidence that the defendant fled
or tried to flee cannot prove guilt by itself.” (Italics added.)
35
evidence)].) Mr. Patton contends, however, that unlike their CALJIC counterparts, the
challenged CALCRIM instructions use the phrase “aware of his guilt.” Mr. Patton
reasons the instructions go beyond advising jurors that false statements or suppression or
fabrication of evidence or flight may be considered as indicative of guilt. Rather, the
challenged instructions advise jurors that such conduct may show the defendant was
aware of his guilt, in Mr. Patton’s view. The Court of Appeal for the Fifth Appellate
District rejected this claim in People v. Hernandez Rios (2007) 151 Cal. App. 4th 1154,
1157-1159. (See also People v. Paysinger (2009) 174 Cal. App. 4th 26, 29-32.) Under
Rios, the use of the term “aware of his guilt” in the CALCRIM consciousness of guilt
instructions does not create an inference any different from that permitted by their
CALJIC predecessors. We agree with Rios and reject Mr. Patton’s argument.
F. Request For Disclosure Of Juror Identifying Information
Following the guilty verdicts, Mr. Patton sought an order releasing juror contact
information. (Code Civ. Proc., §§ 206, subd. (g), 237, subd. (b).) Mr. Robinson joined in
the motion. In support of the motion, Mr. Higgins declared: “As the jurors entered the
courtroom to deliver the verdicts and as the verdicts were being read, I observed several
jurors openly weeping (jurors #5, #11 and #12) as if said verdicts were not the products
of their own free wills. It appeared to the undersigned that said jurors had been placed
under extreme duress to agree to said verdict despite evidence that created reasonable
doubt that Daishjon Patton was the shooter of Edwin Perla on January 29, 2011 and that
he was involved in the incident March 7, 2011. [¶] . . . It is my opinion, based on
having practiced criminal defense since 1982 and having served as defense counsel in
numerous serious felony trials, that the weeping jurors were psychologically forced to
agree to the verdicts. Such duress would constitute juror misconduct and, hence,
prejudice to Daishjon Patton. The only way to obtain evidence to support this reasonable
position and let the court know whether prejudice did occur to Daishjon Patton during the
36
course of his trial requires that counsel be given the addresses and telephone numbers of
all the jurors in order to investigate same.”
At the hearing on the motion, the trial court acknowledged, “[T]here were several
jurors who were tearful at the time that the verdicts were returned in this matter.”
Mr. Higgins admitted he was speculating about the reason for the jurors’ tears and
questioning the jurors would be exploratory. The trial court denied the motion. The trial
court reasoned: “I remember one juror appeared to be tearful coming out of the jury
room. But when the verdicts were reached, that juror began to weep quietly. And there
were a number of other jurors - - and I agree that it’s not three, it could be four female
jurors who were crying at the time that the verdicts were being returned. [¶] And I’m
also mindful of the fact that both the defendants are very young men, and the victim in
this case [was] a very young man. And I think that it would be a lot to expect that jurors
would be robotic in the sense that those issues wouldn’t impact them, particularly the age
of the parties that are involved, both victims and defendants, as well as the serious nature.
But I don’t think that the mere fact that a juror would cry or show emotion necessarily
rises to that level where there’s good cause for the release of that information, so the
motion is respectfully denied.”
On appeal, defendants argue it is reasonable to assume that the four jurors who
were openly weeping were unhappy with the verdicts. Defendants urge that we infer the
verdicts were the product of duress, which could constitute juror misconduct.
Mr. Robinson avers, “Experienced counsel asserted that such overt displays of emotion
[were] often indicative of extreme psychological pressure to vote against their wills.”
Pursuant to Code of Civil Procedure section 237, subdivision (b): “Any person
may petition the court for access to [the court’s record of personal juror identifying
information]. The petition shall be supported by a declaration that includes facts
sufficient to establish good cause for the release of the juror’s personal identifying
information. The court shall set the matter for hearing if the petition and supporting
declaration establish a prima facie showing of good cause for the release of the personal
juror identifying information . . . .” There is a strong public policy in favor of protecting
37
juror privacy. (Townsel v. Superior Court (1999) 20 Cal. 4th 1084, 1092; People v.
Duran (1996) 50 Cal. App. 4th 103, 118.) The Court of Appeal for the Third Appellate
District has explained the meaning of “good cause” in the present context: “[D]efendant
[must] set[] forth a sufficient showing to support a reasonable belief that jury misconduct
occurred . . . .” (People v. Rhodes (1989) 212 Cal. App. 3d 541, 552; accord, People v.
Carrasco (2008) 163 Cal. App. 4th 978, 990; People v. Wilson (1996) 43 Cal. App. 4th 839,
850.) As the Court of Appeal explained in Rhodes, “Absent a satisfactory, preliminary
showing of possible juror misconduct, the strong public interests in the integrity of our
jury system and a juror’s right to privacy outweigh the countervailing public interest
served by disclosure of the juror information as a matter of right in each case. This rule
safeguards both juror privacy and the integrity of our jury process against unwarranted
‘fishing expeditions’ by parties hoping to uncover information to invalidate the jury’s
verdict.” (People v. Rhodes, supra, 212 Cal.App.3d at p. 552.) Our review is for an
abuse of discretion. (People v. Jones (1998) 17 Cal. 4th 279, 317; People v. Johnson
(2013) 222 Cal. App. 4th 486, 492.)
The trial court did not abuse its discretion. Mr. Higgins merely speculated as to
the reason several jurors were crying. This was insufficient reason to release juror
identification information. In a related context, in People v. Williams (1997) 16 Cal. 4th
153, 229, defense counsel sought to reopen voir dire because the jury’s penalty phase
deliberations lasted only 1 hour and 45 minutes. Defense counsel speculated the jury cut
short its deliberations out of prejudice. Our Supreme Court held that speculation did not
establish good cause to reopen voir dire. Our Supreme Court held, “‘Voir dire is not to
be reopened on speculation that good cause to impanel a new jury may thereby be
discovered; rather, a showing of good cause is a prerequisite to reopening.’ (People v.
Fauber (1992) 2 Cal. 4th 792, 846.)” (People v. Williams, supra, 16 Cal.4th at p. 229.)
In People v. Wilson, supra, 43 Cal.App.4th at pages 849-852, the defendant was
convicted of first degree murder. Defense counsel premised a request for juror
identification information on the following grounds: “‘[I]t appears that the verdict as to
first degree murder was reached based on the following premise: If Mr. Wilson was at
38
the scene, whether he was the shooter or not, he was a principal. If he brandished a gun
he must have intended to use it; if he intended to use it he must have thought of it
beforehand; and if someone died as a result of that incident the murder must be
premeditated.’” (Id. at p. 850.) Division Three of the Court of Appeal for this appellate
district rejected defendant’s argument. Our Division Three colleagues held the trial court
did not abuse its discretion in denying the motion for release of juror information where
defense counsel did not show good cause. Our Division Three colleagues held,
“[D]efense counsel’s request did not show good cause and stated ‘at best speculation on
the part of how the jurors might have arrived at their verdict’ . . . .” (People v. Wilson,
supra, 43 Cal.App.4th at p. 852.)
The present trial involved a very young defendant and a young victim who was
killed. This was as likely a reason for jurors to be weeping as any other. There was no
showing of any statement made or conduct occurring suggestive that any juror was
pressured or intimidated to reach a specific verdict. The jurors were polled and
individually and unanimously affirmed their verdicts. There was no abuse of discretion.
Mr. Patton relies on three juror dismissal cases: People v. Collins (1976) 17
Cal. 3d 687, 695-696, People v. Diaz (2002) 95 Cal. App. 4th 695, 699, and People v. Van
Houten (1980) 113 Cal. App. 3d 280, 285-288. They are materially different from our
case. In each of those cases there was evidence that emotional distress prevented a juror
from performing the functions of a juror. There is no such evidence in the present case.
Additionally, a trial court’s authority to discharge a juror under section 1089 includes the
authority to conduct an appropriate investigation to determine whether there is good
cause to do so. (People v. Alexander (2010) 49 Cal. 4th 846, 926; People v. Keenan
(1988) 46 Cal. 3d 478, 533.) The trial court’s inquiry is limited in scope in order to avoid
unnecessary intrusion upon the sanctity of the jury’s deliberations. (People v. Alexander,
supra, 49 Cal.4th at pp. 926-927; People v. Cleveland (2001) 25 Cal. 4th 466, 485.)
There is no danger, as here, of intruding upon a juror’s privacy after a case has
concluded. And, as the Attorney General correctly explains, “[N]one of these cases stand
39
for the proposition that, if a juror is crying, then it is likely that the juror was
psychologically coerced into entering his [or her] verdict.”
G. Sentencing
1. Mr. Patton
a. cruel and unusual punishment
Mr. Patton was 16 years old when he committed the present crimes. Mr. Patton
was sentenced to 25 years to life for first degree murder (§ 190, subd. (a)), plus a
consecutive 25 years to life for firearm use (§ 12022.53, subd. (d)). He received
concurrent sentences on the two attempted murder convictions. Mr. Patton argues his 50-
year-to-life sentence is the functional equivalent of life without the possibility of parole
and as such violates the Eighth Amendment’s ban on cruel and unusual punishment.
(Miller v. Alabama (2012) 567 U.S. __ [132 S. Ct. 2455, 2469]; People v. Caballero
(2012) 55 Cal. 4th 262, 268-269 [non-homicide offense].) The Attorney General argues
that as a result of recent legislative activity, there is no Eighth Amendment violation.
This issue is presently before our Supreme Court. (In re Alatriste and Bonilla (2012) 220
Cal. App. 4th 1232, review granted February 19, 2014 (S214652 [Alatriste] and S214960
[Bonilla].) We hold that even if defendant’s sentence is the functional equivalent of life
without the possibility of parole, our Legislature has ameliorated the problem. Section
3051, enacted effective January 1, 2014, affords Mr. Patton a youth offender parole
hearing at an earlier age than had he committed the present crimes as an adult. Section
3051 affords Mr. Patton a meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation. As a result, Mr. Patton’s sentence is not
unconstitutional as the functional equivalent of life without the possibility of parole.
40
b. section 186.22
With respect to counts 1 and 3, Mr. Patton was convicted of felonies committed
for the benefit of a criminal street gang and was subject to punishment by imprisonment
in the state prison for life. As to each of counts 1 and 3, the trial court imposed a
consecutive 10-year sentence under section 186.22, subdivision (b)(1)(C). The trial court
stayed the 10-year criminal street gang enhancements citing section 654, subdivision (a).
The trial court should have struck, rather than imposed and stayed, the 10-year criminal
street gang enhancement as to counts 1 and 3. (People v. Lopez (2005) 34 Cal. 4th 1002,
1004-1005, 1011; People v. Arauz (2012) 210 Cal. App. 4th 1394, 1404-1405.) Mr. Patton
was subject, instead, to a 15-year minimum parole eligibility term under section 186.22,
subdivision (b)(5). (People v. Lopez, supra, 34 Cal.4th at pp. 1004-1005, 1011; People v.
Arauz, supra, 210 Cal.App.4th at pp. 1404-1405.) The judgment must be modified and
the abstract of judgment amended to strike the 10-year criminal street gang enhancement
(§ 186.22, subd. (b)(1)(C)) as to counts 1 and 3. As to Mr. Patton’s sentence on count 2,
no section 186.22 enhancement could be imposed. This is because Mr. Patton was
sentenced under section 12022.53, subdivisions (d) and (e)(1) and there was no finding
he personally used or discharged a firearm in the commission of the offense.
(§ 12022.53, subd. (e)(2).) The judgment must be modified and the abstract of judgment
amended to so provide.
c. section 12022.53
In sentencing Mr. Patton on count 1, the trial court purported to impose and stay
(§ 654, subd. (a)) 10 and 20-year enhancements under section 12022.53, subdivisions (b)
and (c) respectively. For those enhancements to apply, the requisite facts had to be
alleged in the information or indictment and either admitted or found true by the trier of
fact. (§ 12022.53, subd. (j); People v. Gonzalez (2008) 43 Cal. 4th 1118, 1124-1125;
People v. Najera (1972) 8 Cal. 3d 504, 509-510 & fn. 4.) Here, although alleged in the
41
information, the section 12022.53 subdivisions (b) and (c) enhancements were neither
admitted nor found true by the jury. As a result, it was error to impose and stay section
12022.53, subdivision (b) and (c) enhancements in sentencing Mr. Patton on count 1.
The judgment must be modified to strike the enhancements to count 1 under section
12022.53, subdivisions (b) and (c). The abstract of judgment must be amended to omit
those enhancements.
2. Mr. Robinson
The trial court properly imposed and stayed enhancements under section
12022.53, subdivisions (b) (counts 2 and 3) and (c) (count 2) as to Mr. Robinson, albeit
under an incorrect section 654 analysis. (People v. Gonzalez, supra, 43 Cal.4th at p.
1130.) The enhancements were properly imposed and stayed under section 12022.53,
subdivisions (f) and (j). (People v. Gonzalez, supra, 43 Cal.4th at pp. 1125-1130; People
v. Warner (2008) 166 Cal. App. 4th 653, 659.)
3. Mr. Patton and Mr. Robinson
a. assessments
As to each defendant, the trial court imposed a single $40 court operations
assessment (§ 1465.8, subd. (a)(1)) and a single $30 court facilities assessment. (Gov.
Code, § 70373, subd. (a)(1).) The trial court should have imposed the assessments as to
each count. (People v. Sencion (2012) 211 Cal. App. 4th 480, 484-485 [court facilities and
operations assessments]; People v. Castillo (2010) 182 Cal. App. 4th 1410, 1415, fn. 3
[court facilities assessment]; People v. Schoeb (2005) 132 Cal. App. 4th 861, 865-866
[court operations assessment]; see People v. Alford (2007) 42 Cal. 4th 749, 758, fn. 6.)
The oral pronouncement of the judgments must be modified to so provide. The abstracts
of judgment are correct in this regard and need not be amended.
42
b. presentence custody credits
The trial court gave defendants credit for 676 days in presentence custody. In
addition, the trial court awarded Mr. Robinson 101 days of conduct credit. However,
defendants were in custody from their arrest on March 7, 2011, until they were sentenced
on January 11, 2013, a period of 677 days. The judgment must be modified and the
abstract of judgment amended to reflect, as to each defendant, 677 days of presentence
custody credit. (People v. Rajanayagam (2012) 211 Cal. App. 4th 42, 48; People v.
Morgain (2009) 177 Cal. App. 4th 454, 469.) Mr. Robinson’s conduct credit award is
correct.
IV. DISPOSITION
The judgment as to Mr. Patton is modified to strike the 10-year criminal street
gang enhancements (Pen. Code, § 186.22, subd. (b)(1)(C)) as to counts 1, 2 and 3. The
judgment as to Mr. Patton is further modified to strike the count 1 enhancements under
Penal Code section 12022.53, subdivisions (b) and (c). The oral pronouncement of
judgment as to both defendants is modified to impose a $40 court operations assessment
(Pen. Code, § 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code,
§ 70373, subd. (a)(1)) as to each count. And the judgments as to both defendants are
amended to award 677 days of presentence custody credit. The judgment is affirmed in
all other respects. Upon remittitur issuance, the superior court clerk must prepare
43
amended abstracts of judgment and deliver copies to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
MOSK, J.
KRIEGLER, J.
44