People v. Washington CA2/3 ( 2022 )

Filed 12/6/22 P. v. Washington CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B305402
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA142617
v.
JOHNNIE LEE WASHINGTON
et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County. Patrick E. Connolly, Judge. Affirmed
in part, reversed in part, and remanded with directions.
Donna L. Harris, under appointment by the Court of
Appeal, for Defendant and Appellant Johnnie Lee Washington.
Joshua L. Sigel, under appointment by the Court of Appeal,
for Defendant and Appellant Aneesah Hughes.
Richard A. Levy, under appointment by the Court of
Appeal, for Defendant and Appellant Jarrett Grace.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Johnnie Lee Washington, Aneesah
Hughes, and Jarrett Grace of numerous crimes—including
first degree murder, conspiracy to murder, attempt to murder,
and assault with a firearm—after finding they shot three of
Washington’s ex-girlfriends and killed his unborn child. On
appeal, the defendants argue the trial court made evidentiary,
instructional, and sentencing errors, there is insufficient evidence
supporting some of their convictions, and the jury improperly
convicted them of both murdering and attempting to murder
the same victim. We agree with the defendants on the latter
issue and conclude the court made sentencing errors in Hughes’s
and Grace’s cases. We affirm the judgments in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
1. The charges
The People charged Washington, Hughes, and Grace
(together, Defendants) with conspiracy to murder and attempted
murder of Ywainesha Taylor and Storm Reeves (Pen. Code,
§§ 664, 187, subd. (a), 182, subd. (a)(1)),1 murder and attempted
murder of Reeves’s fetus (§§ 664, 187, subd. (a)), and assault with
a firearm on Brejae Washington, Javaree Clayton, and Octavia
Mercadale (§ 245, subd. (a)(2)). The People also charged Hughes
with attempted murder of Iman Miller (§§ 664, 187, subd. (a)).
1 Future undesignated statutory references are to the Penal
Code.
2
The People alleged various firearm and gang allegations as
to all three defendants.
The People presented evidence at trial showing the
following.
2. January 29, 2017 attempted murder of Iman Miller
Defendant Washington and Iman Miller started “hooking
up” in November 2016. Washington was dating defendant
Hughes at the time. Although Washington dated many women,
Hughes was his “main” girlfriend.
Miller and Hughes ran into each other one night in
December 2016. Hughes threw a drink on Miller and challenged
her to a fight. Miller agreed, and they fought at a nearby
high school. Miller got the better of the fight. Later that night,
Hughes intentionally drove her car into Miller’s car, ramming
it three times.
After the fight, Hughes posted messages on social media
saying she had been pregnant, but Miller caused her to miscarry
by kicking her in the stomach. Hughes repeatedly called Miller
and sent her messages challenging her to another fight. In
one exchange at the end of December 2016, Hughes told Miller
to “drop a location” for a fight. Miller replied, “You just mad I
beat the baby outta you, now bye bitch, be mad at that.” Miller
eventually gave Hughes a location for them to fight. Hughes
went to the location, but Miller was not there.
On January 29, 2017, Miller drove to St. Andrews Park.
She stopped her car in the parking lot and started talking to
some people, including defendant Grace. Grace and Washington
were friends and members of the Eight Tray Gangsters.
At some point, Miller saw Hughes drive into the parking
lot. Hughes stopped her car, and Washington got out of the
3
passenger-side door. Miller immediately left the park and
started driving home because she “didn’t want any problems.”
On her way home, Miller noticed Hughes driving behind
her very closely. Hughes followed Miller for about a mile.
Hughes then pulled her car to the side of Miller’s car, rolled down
her window, and fired three to four gunshots in Miller’s direction.
One of the bullets grazed Miller’s leg. Hughes drove away
without saying anything.
Miller got out of the car and ran to a nearby house.
Sometime later, Hughes drove past the house slowly and made
eye contact with Miller. Hughes again did not say anything.
3. February 21, 2017 attempted murder of Ywainesha
Taylor, and assaults with a firearm on Brejae
Washington, Javaree Clayton, and Octavia
Mercadale
Washington and Ywainesha Taylor dated for six years.
In 2014, they had a son, Jayveon.
In August 2014, Washington went to Taylor’s house,
took her phone, and threatened to shoot her and everyone else
in the house. In April 2015, Washington severely beat Taylor.
Washington and Taylor broke up that same year, but they
continued to have sex.
On February 13, 2017, Hughes sent Taylor a number
of messages challenging her to a fight. Taylor replied that if
Hughes wanted to fight because Washington was unfaithful,
she would be fighting for the rest of her life. Taylor also implied
she had sex with Washington the night before.
A few hours later, Hughes sent Taylor a message asking,
“ ‘[w]hen can I see my kid,’ ” apparently referring to Jayveon.
Taylor replied with a sarcastic remark referencing Hughes’s
4
recent miscarriage. Hughes again asked to see Jayveon, and
Taylor told her she could see the child when “you can finally
push one out.”
About a week later, on February 21, Taylor’s mother,
Octavia Neil, told Taylor that Washington called and wanted to
take their child, Jayveon. Taylor refused. Hughes and Taylor
then had an argument about seeing the child.
Later that day, around 2:00 p.m., Washington and a man
wearing a “T” hat and glasses showed up at Neil’s apartment.
Hats with the letter “T” are common attire for members of the
Eight Tray Gangsters. Washington claimed Taylor told him to
take Jayveon. Neil called Taylor, who was at a county building,
and asked if Washington was allowed to take the child. Taylor
said no, which Neil relayed to Washington. Washington said
he would wait for Taylor outside. According to Neil, Washington
was not angry or upset.
Around the time Washington left Neil’s apartment, a
security guard saw Washington, Grace, and a man wearing
red pants become verbally aggressive with a male resident of
the apartment complex. Washington and the man wearing red
pants lifted up their shirts, showing they each had a gun. The
guard told the men the police were on their way; Washington,
Grace, Hughes, and the man wearing red pants got into a black
SUV and drove off.
A surveillance video from the apartment complex shows
Washington, Grace, Hughes, and a man with red pants walking
toward the resident. Grace has his hands near his waist, but
no gun is visible. At some point, Grace, Washington, Hughes,
and the other man turn around and quickly walk away from
the apartment.
5
Around this time, Taylor left the county building in Brejae
Washington’s gray car. Brejae2 was driving and Taylor was
sitting in the front passenger seat; Javaree Clayton and Octavia
Mercadale were sitting in the backseat. The plan was to stop
somewhere and then go to Taylor’s mother’s apartment.
Phone records show Washington and Brejae called each
other ten times between 1:58 p.m. and 2:30 p.m. While Brejae
was driving, someone else called her and asked, “[T]his you
in front of us?” Taylor then received a social media message
asking, “ ‘Is that you in the gray car?’ ”
After reading the message, Taylor looked around and saw
a black SUV pull alongside the passenger side of Brejae’s car.
Washington was driving, and Hughes was sitting in the front
passenger seat. There were about four men in the backseat, but
Taylor did not recognize them. One of the men in the backseat
pointed a gun at Brejae’s car. He was wearing a black shirt and
a hat with a “T” on it.
Washington and Hughes told Taylor to pull over. Hughes
grabbed the steering wheel and directed Washington to “shoot
[them].” Washington started shooting a gun, and his car
“wiggled.” One of the bullets struck Taylor in the right buttock
and traveled into her left buttock. Taylor tried to crawl into
the backseat to escape the gunfire. She heard approximately
seven shots. There were two bullet holes in the front passenger-
side door of Brejae’s car. Brejae sped up, and Washington
followed her for a while. Brejae eventually drove to a probation
office to ask for help.
2 For the sake of clarity, we refer to Brejae Washington by
her first name.
6
Taylor later told a detective she had an app on her phone
that allowed other people with iPhones to view her location,
which she believed Washington had used to locate her in
Brejae’s car.
4. February 23, 2017 attempted murder of Storm Reeves
and murder of her fetus
a. Events leading up to the shooting
Storm Reeves met Washington when she was 16 years old,
and they started having sex off and on. Around August 2016,
Reeves confronted Hughes about hooking up with Washington
behind her back. About a month later, Reeves discovered she
was pregnant with Washington’s child, and she immediately
shared the news with Hughes.
In September 2016, Hughes posted a message on social
media stating someone had set her car on fire. Although Reeves
denied responsibility, she posted a message taking credit for it
in order to upset Hughes and Washington. Reeves also posted
a message disrespecting Hughes’s gang and challenging her
to a fight.
Around December 30, 2016, Hughes posted a message on
social media saying, “ ‘The last bitch that I just fought made me
lose my baby. And see where Storm [Reeves] at, cuz she next.’ ”
Reeves interpreted the message to be a threat to her unborn
child.
In late January 2017, Washington told someone, “[Reeves’s]
a gon[ ]er.” Around the same time, Hughes said she was trying
to “ ‘catch’ ” Reeves. At some point, Washington sent Reeves
a message saying, “[You] heard what happened to Iman [Miller].
100K[,]”and “Don’t let me catch [you].”
7
Around this time, Grace started sending Reeves messages
claiming he wanted to have a romantic relationship with her.
Reeves had previously met Grace through Washington, and they
were friendly with each other. Reeves, however, thought it was
“weird” that Grace was contacting her, as he knew she was on
bad terms with Washington. Grace asked Reeves for her address
and said she could trust him. At the time, Reeves was living
in San Bernardino. She gave Grace a fake address.
On February 3, 2017, Washington asked Grace about
Reeves and said it was “ ‘serious’ ” because Grace was the only
person in contact with her. Grace responded that Reeves wanted
him to visit her, but “ ‘that’s out.’ ” Grace asked Washington,
“ ‘[W]hat you want me to do?’ ” Washington replied: “ ‘I don’t
care. Cap her or something.’ ” “ ‘Uk. Gotta be on her necc.’ ”
Grace responded, “ ‘That’s what I’m asking you.’ ” Washington,
“ ‘Yea.’ ” Grace, “ ‘Owekilla.’ ”
The feud between Reeves, Hughes, and Washington
escalated in February 2017 after Reeves posted Hughes’s
mother’s address on social media. Hughes responded by posting
a request for help finding out where Reeves was living. Hughes
wrote, “I want that bitckh. [¶] It’s a lot been going on. [¶] I caught
the bitckh Iman [Miller] and all.”
Hughes made several other requests for help locating
Reeves. On February 13, 2017, for example, a man sent Hughes
a message asking if her car had been set on fire. Hughes
responded, “ ‘[Laughing my ass off.] Yeah.’ ” Hughes then asked
the man to “ ‘[t]ry to find out where [the woman who did it] live.’ ”
Hughes told the man to “ ‘[a]ct like you want to fuck with her.’ ”
Around the same time, Hughes told someone else to “ ‘get coo[l]
with Storm [Reeves], so you can find out where she live.’ ”
8
Hughes said, “ ‘[A]ct like you don’t like me, if she ever ask
about me.’ ”
In mid-February, Washington told Reeves he wanted to
see her, but Reeves refused. Reeves brought up the fact that
she burned Hughes’s car, and she told Washington that Hughes
should fight her.
Around this time, Reeves and Hughes exchanged numerous
messages trying to arrange a fight. During one exchange, Reeves
said, “ ‘I blew yo car up. Come for me.’ ” Hughes responded,
“ ‘You didn’t blow my car up.’ ” Hughes told Reeves to “ ‘[c]ome
to Vernon and 65th’ ” to fight, to which Reeves replied, “ ‘Bitch,
I still ain’t lost my baby.’ ”
Around February 17, 2017, Reeves posted a message on
social media saying she would target anyone who threatened to
hurt her kids, and anyone helping the person making the threats.
She also posted messages disrespecting Washington’s mother and
gang, and stating Washington, Hughes, and their families could
not see her baby.
The same day, Washington told Grace to “ ‘[s]ee where
Storm’s at.’ ” Grace responded, “ ‘Okilla.’ ” Grace then called
Reeves.
b. The shooting
After exchanging messages with Grace for several weeks,
Reeves finally agreed to meet him in person early in the morning
of February 23, 2017. Grace reassured her she was safe with him
and he would not let Washington or Hughes touch her. Reeves
was seven months pregnant at the time.
Reeves’s friend agreed to drive her from San Bernardino to
Los Angeles. At 12:31 a.m., Grace sent Reeves a message asking
where she was. Reeves replied she was on her way and would
9
tell him when she was outside. Grace asked which direction she
was coming from, and Reeves responded, “ ‘Down Fig.’ ” When
Grace sent the messages, phone records show he, Washington,
and Hughes were all in the same area, near Washington’s house.
A few minutes later, Reeves’s friend dropped her off a short
distance from 77th and Raymond, which is where Grace told her
to meet him. Reeves saw Grace waiting and started walking
toward him. As she approached, Grace said, “Eight Tray
Gangsters,” and a car “rolled up” from the opposite direction.
Reeves gave varying accounts of what happened next.
Initially, she told detectives that Hughes was driving the car
and Washington was the passenger. Hughes got out of the car,
and Reeves started “talking shit,” trying to instigate a fight.
Hughes went back to the car and grabbed a gun. She shot Reeves
in her stomach and passed the gun to Washington, who shot
Reeves in her back and mouth.
Reeves gave a different account at the preliminary hearing.
She testified that, after Hughes shot her in the stomach, Grace
chased her down and tried to “ ‘finish [her] off.’ ” She said she
was certain Grace shot her in the mouth.3
At trial, Reeves gave yet another account of the shooting.
She testified that Washington was driving the car and Hughes
was the passenger. When Reeves saw them, she said, “ ‘What’s
up? You wanna fight? You threaten my baby. What’s the
3 At trial, Reeves claimed she was not “in [her] right mind”
at the preliminary hearing. The investigating detective testified
Reeves was experiencing serious medical problems at the time.
According to the detective, on the way to the hearing, she
repeatedly said she did not want to testify and did not want
to be a “snitch.”
10
deal?’ ” Hughes responded from inside the car, “ ‘Bitch, I don’t
give a fuck about none of that, and all this.’ ” They argued
back and forth.
At some point, Hughes stopped talking and got out of
the car. Hughes was holding a gun and shot Reeves in the
stomach multiple times. Reeves turned and started running,
and she heard Washington say, “Give it to me, give it to me.
Come here. Come here. Go. Go. Go. You done.” Someone then
shot Reeves twice in the back and once in the buttock, and she
fell to the ground. Washington walked up to her and shot her
in the mouth. Reeves blacked out.
Around this time, a neighbor woke up to the sound of
three loud bangs. He looked outside and saw a man struggling
to pick up something. A dark SUV with LED lights pulled up
and a male voice said, “ ‘Come on. Hurry up. Let’s go.’ ” The
man who was struggling got in the passenger side of the SUV,
which drove away. The man was carrying some type of clothing.
Reeves suffered serious injuries but survived. Doctors
delivered Reeves’s fetus by an emergency C-section, but the fetus
was already dead. The fetus did not suffer any trauma, and
the coroner opined the fetus died because of the gunshot wounds
to Reeves.
Police executed a search warrant at Washington’s
apartment, and they discovered a black SUV parked in the
rear of the complex. Inside the SUV, police found Washington’s
identification card, debit card, and medical card. Hughes’s
fingerprints were on the passenger-side visor mirror. There
was an irregularly shaped bloodstain in the backseat, which
contained Reeves’s DNA. In addition, the SUV’s headlights
matched those that the neighbor saw the night of the shooting.
11
The police arrested Grace about a month after the shooting,
and they put him in a jail cell with an undercover Perkins4 agent.
Grace implied to the agent that Washington and Hughes shot
Reeves in the stomach. Grace also told the agent he “put the
whole play in motion.” We discuss Grace’s statements to the
Perkins agent in more detail below.
5. Verdicts and sentences
The jury convicted Washington of attempted premeditated
murder of Taylor (count 1), conspiracy to murder Taylor (count 5),
first degree murder of Reeves’s fetus (count 6), attempted
premeditated murder of Reeves’s fetus (count 13), attempted
premeditated murder of Reeves (count 7), conspiracy to murder
Reeves (count 8), and three counts of assault with a firearm
on Brejae, Clayton, and Mercadale (counts 10, 11, and 12).
The jury found true allegations that Washington and a principal
personally discharged a firearm causing great bodily injury
or death to Taylor, Reeves, and Reeves’s fetus (§ 12022.53,
subds. (d), (e)(1)), and that he personally used a firearm during
the assaults (§ 12022.5, subd. (a)).
The jury convicted Hughes of conspiracy to murder Taylor
(count 5), first degree murder of Reeves’s fetus (count 6),
attempted premeditated murder of Reeves’s fetus (count 13),
attempted premeditated murder of Reeves (count 7), conspiracy
to murder Reeves (count 8), and attempted premeditated murder
of Iman Miller (count 9). The jury found true allegations that
Hughes and a principal personally discharged a firearm causing
great bodily injury or death to Reeves and Reeves’s fetus
(§ 12022.53, subds. (d), (e)(1)), and that Hughes personally
4 Illinois v. Perkins (1990) 496 U.S. 292, 297.
12
discharged a firearm at Miller (§ 12022.53, subd. (c)). The jury
found Hughes not guilty of attempted murder of Taylor (count 1)
and the assault charges (counts 10, 11, and 12). It also found
not true the firearm allegations related to the conspiracy to
murder Taylor.
The jury convicted Grace of conspiracy to murder Taylor
(count 5), first degree murder of Reeves’s fetus (count 6),
attempted premeditated murder of Reeves’s fetus (count 13),
attempted premeditated murder of Reeves (count 7), and
conspiracy to murder Reeves (count 8). The jury found all
the firearm allegations not true. It also found Grace not guilty
of attempted murder of Taylor (count 1) and the assault charges
(counts 10, 11, and 12).
As to all the defendants, the jury either found not true
or deadlocked on the gang enhancement allegations.
The trial court sentenced Washington to an aggregate term
of 21 years and eight months, plus 150 years to life.5 It sentenced
Hughes to an aggregate term of 20 years plus 107 years to life.6
It sentenced Grace to an aggregate term of 75 years to life.7
5 The court sentenced Washington as follows: on counts 5, 6,
and 8, three terms of 25 years to life plus three consecutive terms
of 25 years to life for the firearm enhancements (§ 12022.53,
subd. (d)); on count 10, three years plus 10 years for the firearm
enhancement (§ 12022.5, subd. (a)); and on counts 11 and 12,
two terms of one year plus two terms of three years and four
months for the firearm enhancements (§ 12022.5, subd. (a)).
The court stayed the sentences on counts 1, 7, and 13 under
section 654.
6 The court sentenced Hughes as follows: on count 5,
25 years to life plus a consecutive 25 years to life for the firearm
enhancement (§ 12022.53, subd. (d)); on counts 6 and 8, two
13
Defendants timely appealed.
DISCUSSION
1. The trial court was not required to instruct the jury
to determine the number of conspiracies
Defendants argue the trial court erred by failing to instruct
the jury to consider whether their agreements to murder Taylor
and Reeves were part of a single, overarching conspiracy, rather
than two separate conspiracies.
“A conspiracy exists where two or more people agree
to commit a crime, they specifically intend both to agree and
to commit the crime, and one of them performs an overt act
in furtherance of their agreement. (§§ 182, subd. (a)(1), 184.)”
(People v. Kopp (2019) 38 Cal.App.5th 47, 83 (Kopp).) Because
the “essence of the crime of conspiracy is the agreement, . . . it
is the number of the agreements (not the number of the victims
or number of statutes violated) that determine[s] the number
of the conspiracies.” (People v. Meneses (2008) 165 Cal.App.4th
1648, 1669 (Meneses).)
“ ‘Where two or more persons agree to commit a number
of criminal acts, the test of whether a single conspiracy has been
formed is whether the acts “were tied together as stages in the
formation of a larger all-inclusive combination, all directed to
terms of 25 years to life; and on count 9, seven years to life plus
20 years for the firearm enhancement (§ 12022.53, subd. (c)).
The court stayed the sentences on counts 7 and 13 under
section 654.
7 The court sentenced Grace to three consecutive terms of
25 years to life on counts 5, 6, and 8. It stayed the sentences
on counts 7 and 13 under section 654.
14
achieving a single unlawful end or result.” ’ [Citation.] ‘Relevant
factors to consider in determining this issue include whether
the crimes involved the same motives, were to occur in the
same time and place and by the same means,’ and targeted
a single or multiple victims.” (Meneses, supra, 165 Cal.App.4th
at p. 1672.)
Although there is a split of authority on the issue,
“[m]ost decisions, including the most recent cases, have held
that the trial court has a duty to instruct the jury to determine
the number of conspiracies committed where there is evidence
to support alternative findings.” (Kopp, supra, 38 Cal.App.5th
at p. 84.)
In People v. Jasso (2006) 142 Cal.App.4th 1213, for
example, a jury convicted the defendant of three counts of
conspiracy to import drugs based on evidence showing he made
several phone calls to a single contact, who then arranged for
three women to attempt to smuggle drugs into a prison. Each
attempt was unsuccessful. (Id. at pp. 1215–1220.) On appeal,
the defendant argued the trial court should have instructed
the jury to decide whether there was a single conspiracy instead
of three separate conspiracies. (Id. at p. 1220.) The court agreed,
concluding the evidence could have supported a finding of a
general, all-inclusive conspiracy aimed at achieving a single,
unlawful result: smuggling drugs into prison. (Id. at p. 1221.)
The court noted the alleged conspiracies occurred during
the same narrow time frame, they involved the same modus
operandi, and there was evidence indicating the failed attempts
were efforts by the defendant to test his contact in the hopes
of forming an ongoing business relationship. (Ibid.)
15
The court in Kopp, supra, 38 Cal.App.5th 47, similarly
concluded a trial court erred by failing to instruct the jury to
determine the number of conspiracies. In that case, the evidence
showed the defendants agreed to murder one witness and
dissuade another witness from testifying in a separate assault
case. (Id. at pp. 57–60.) The People charged the defendants
with two conspiracies—one for each victim—yet argued in closing
that both were part of a larger, uncharged conspiracy to prevent
the ordinary administration of justice. (Id. at pp. 86–87.) In
concluding the trial court had a duty to instruct on the number of
conspiracies, the reviewing court noted both alleged conspiracies
involved the same overall goal (to ensure key witnesses did not
testify in the assault case), the same conspirators, the same overt
acts, and overlapping evidence. (Id. at pp. 87–88.) The court
concluded that, “considering the prosecutor’s closing argument,
the evidence of the conspiracies, and the alleged overt acts,
this seems to be one of those unique cases wherein it is apparent
that only one conspiracy existed.” (Id. at p. 88.)
Here, unlike in Jasso and Kopp, the record does not
support a finding that Defendants’ individual agreements were
tied together as stages in the formation of a larger all-inclusive
combination, all directed to achieving a single unlawful end or
result. Defendants fail to point to any evidence even suggesting
they hoped to achieve some greater end by murdering both
Taylor and Reeves. Instead, it is apparent the murders
themselves were the desired ends. Defendants insist the jury
could have found they formed a single conspiracy to eliminate
Washington’s ex-girlfriends (or, at least, the ex-girlfriends
who were causing them trouble). The elimination of
Washington’s ex-girlfriends, however, is nothing more than
16
a summation of the individual crimes that Defendants agreed
to commit; it does not constitute the sort of “single unlawful
end or result” that is required to find an overarching conspiracy.
Nor do any other relevant factors support a finding that
Defendants formed a single, overarching conspiracy. The record
shows Defendants targeted the victims at different locations and
times, using different modus operandi, and for different reasons.
Defendants, for example, tracked down Taylor in the middle
of the day and shot her from a moving car. In contrast, they
lured Reeves under false pretenses to a desolate location late
at night before shooting her at close range while on foot. The
evidence further shows Defendants were motivated by separate
feuds with each victim. Although those feuds concerned similar
issues—e.g., access to Washington’s children, the victims’ sexual
relationships with Washington, and Hughes’s miscarriage—
there is nothing to suggest Defendants believed Taylor and
Reeves were jointly responsible for them.
On the record before us, no reasonable juror could have
concluded Defendants’ agreements to murder Taylor and Reeves
were part of a single, overarching conspiracy. Therefore, even if
trial courts generally have a duty to instruct juries to determine
the number of conspiracies, the court was not required to give
such an instruction in this case.
2. The trial court did not prejudicially err by
instructing the jury on lying-in-wait murder
The trial court instructed the jury it could find Defendants
guilty of first degree murder of Reeves’s fetus under two theories:
(1) the murder was committed by lying in wait, or (2) the murder
was willful, deliberate, and premeditated. Defendants argue
the court should not have instructed on the lying-in-wait theory
17
because one cannot lie in wait for a fetus as a matter of law.
Washington alternatively argues the court should not have
given the instruction because there is insufficient evidence
showing he was lying in wait for the fetus.
We need not decide whether the court erred because, even
assuming it did, the error was harmless beyond a reasonable
doubt. As to all three defendants, the jury found true allegations
that the murder of Reeves’s fetus was “willful, deliberate, and
premeditated, setting the count as a First Degree Murder . . . .”
Washington and Hughes do not challenge the sufficiency of the
evidence supporting those findings and, as we discuss below,
substantial evidence supports the finding as to Grace. As
a result, beyond a reasonable doubt, the jury relied on a valid
theory to convict Defendants of first degree murder. Any
instructional error, therefore, was harmless. (See People v. Avila
(2009) 46 Cal.4th 680, 709 [potentially erroneous lying-in-wait
instruction was harmless where the jury unanimously found
the murders were willful, deliberate, and premediated].)
Grace concedes the verdicts provide “a conclusive showing
that the jury relied on premeditation.” Nevertheless, he argues
that, because the verdict forms state the finding “ ‘set[s] the
count as a First Degree Murder,’ ” and because the verdict forms
did not give the jury the option of finding true an allegation
of lying in wait, it is possible some jurors agreed to the
premeditation allegation because it “made no difference”
and there was no reason to “waste time trying to figure out
if they all agreed on premeditation.” This is pure speculation
and does not create a reasonable doubt as to whether any error
was harmless.
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3. The trial court was not required to instruct the jury
on heat-of-passion voluntary manslaughter
Washington and Hughes argue the trial court erred
by failing to instruct the jury on heat-of-passion voluntary
manslaughter and attempted manslaughter as lesser included
offenses of murder and attempted murder. Hughes separately
argues the court erred by failing to instruct the jury on
conspiracy to commit manslaughter based on a heat-of-passion
theory.
a. Background
During a discussion of jury instructions, Washington
requested that the court instruct the jury with CALCRIM No.
570 on heat-of-passion voluntary manslaughter. He argued
there was “great provocation by Ms. Reeves, to extend over
a long time period, including tormenting the defendant about
the miscarriage, offensive comments in general, the potential
burning of the car, the claiming of the burning of the car, that all
amounts to something a jury could find as sufficient provocation
to reduce it from a murder to a manslaughter.” Grace added,
“also there should be an instruction that provocation that doesn’t
justify manslaughter should reduce a first [to a] second, that
should include, under [Washington’s counsel’s] theory of drip,
drip, drip.”
The court declined to instruct the jury on heat-of-passion
manslaughter, explaining there is not substantial evidence
to reduce murder to manslaughter. The court did not rule on
the request for an instruction on provocation, nor did it give
such an instruction.
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b. Relevant law
A court trying a criminal case must instruct on general
legal principles relevant to the issues raised by the evidence and
necessary for the jury to understand the case, including lesser
included offenses. (People v. Enraca (2012) 53 Cal.4th 735, 759
(Enraca).) To justify a lesser included offense instruction,
substantial evidence—evidence from which a reasonable jury
could conclude the facts supported the instruction—must appear
in the record. (Ibid.)
“Murder is the unlawful killing of a human being, or
a fetus, with malice aforethought.” (§ 187, subd. (a).) When
a defendant intentionally and unlawfully kills or attempts to kill
in a heat of passion in response to a provocation by the victim,
the defendant lacks malice and is guilty only of voluntary
manslaughter, which is a lesser included offense of murder.
(People v. Lasko (2000) 23 Cal.4th 101, 104.)
Heat-of-passion voluntary manslaughter has both objective
and subjective components. (Enraca, supra, 53 Cal.4th at p. 759.)
To satisfy the objective component, the victim’s behavior must
have been provocative enough to cause an ordinary person with
an average disposition to act rashly or without deliberating
or reflecting. (Ibid.) The provocation “may comprise a single
incident or numerous incidents over a period of time.
[Citations.]” (People v. Le (2007) 158 Cal.App.4th 516, 528.)
To satisfy the subjective component, the evidence must
show the defendant was actually under the influence of a strong
passion induced by the victim’s objectively provocative conduct,
and acted with passion rather than judgment. (Enraca, supra,53 Cal.4th at p. 759.) “The passion aroused can be anger, rage,
or any violent, intense, highly wrought or enthusiastic emotion,
20
except revenge.” (People v. Wright (2015) 242 Cal.App.4th 1461,
1481 (Wright).) It “must be so strong that the defendant’s
reaction bypassed his thought process to such an extent that
judgment could not and did not intervene.” (People v. Beltran
(2013) 56 Cal.4th 935, 949.)
“[I]n a murder case, unless the People’s own evidence
suggests that the killing may have been provoked or in honest
response to perceived danger, it is the defendant’s obligation
to proffer some showing on these issues sufficient to raise a
reasonable doubt of his guilt of murder.” (People v. Rios (2000)
23 Cal.4th 450, 461–462.)
c. Murder of Reeves’s fetus
The trial court did not err in failing to instruct the jury
on heat-of-passion manslaughter with respect to the killing
of Reeves’s fetus. As Hughes concedes, there is no such crime
as manslaughter of a fetus. (See People v. Valdez (2005) 126
Cal.App.4th 575, 580.) Accordingly, manslaughter is not a
lesser included offense of murder of a fetus.
Hughes nevertheless contends the court had a duty to
instruct the jury that provocation could negate malice, thereby
precluding it from finding her guilty of any crime against the
fetus. Hughes, however, overlooks the requirement that “the
provocation which incites the killer to act in the heat of passion
case must be caused by the victim or reasonably believed by
the accused to have been engaged in by the decedent.” (People
v. Lujan (2001) 92 Cal.App.4th 1389, 1411–1412 (Lujan); see
People v. Steele (2002) 27 Cal.4th 1230, 1252–1253 [the objective
component of heat of passion requires provocation by the victim].)
Here, there is no evidence from which the jury could have
concluded Reeves’s fetus provoked Defendants, or that
21
Defendants reasonably believed that to be the case. Indeed,
a fetus is simply not capable of the sort of provocation required
to negate malice.
We reject Hughes’s contention that, under the doctrine of
transferred intent, any defense to the attempted killing of Reeves
would transfer to the killing of her fetus.8 The People did not rely
on a theory of transferred intent or argue that Reeves’s fetus was
an unintended victim. Instead, the prosecution proceeded under
the theory that Defendants specifically intended to kill both
Reeves and her fetus. Consistent with the prosecution’s chosen
theory, the trial court did not instruct the jury on the doctrine
of transferred intent. Hughes’s transferred intent arguments,
therefore, are wholly irrelevant. In any event, as we discuss
below, there is insufficient evidence that Hughes was acting
under the heat of passion when she attempted to murder Reeves.
Accordingly, there was no heat-of-passion “defense” to transfer.
d. Conspiracies to murder Taylor and Reeves
Hughes argues the trial court had a duty to instruct the
jury that, if it found she was acting under the heat of passion
when she conspired to kill Taylor and Reeves, it must find
8 The doctrine of transferred intent provides that, if a
defendant intends to kill one victim but mistakenly kills another,
the defendant’s intent is “deemed to transfer” from the intended
victim to the unintended victim. (People v. Bland (2002) 28
Cal.4th 313, 317, 320–321.) Under those circumstances, any
defenses or theories that would reduce the defendant’s culpability
with respect to the intended victim also transfer to the
unintended victim. (People v. Mathews (1979) 91 Cal.App.3d
1018, 1023.)
22
her guilty of conspiracy to commit manslaughter, rather than
conspiracy to commit murder.
Initially, the parties dispute whether there is such a crime
as conspiracy to commit manslaughter. In People v. Horn (1974)
12 Cal.3d 290 (Horn), the California Supreme Court held a
conspiracy to kill “could take the form of conspiracy to commit
first degree murder, conspiracy to commit second degree murder,
and conspiracy to commit manslaughter.” (People v. Cortez
(1998) 18 Cal.4th 1223, 1233 (Cortez).) Nearly 25 years later,
the high court disapproved Horn and held there is no crime
of conspiracy to commit second degree murder; instead,
“all conspiracy to commit murder ‘is necessarily “conspiracy
to commit [premeditated] first degree murder.” ’ ” (Cortez,
at pp. 1226, 1233–1234.) Although Cortez’s reasoning arguably
also precludes the crime of conspiracy to commit manslaughter,
the court did not expressly decide the issue. We also need not
decide the issue because, even assuming there is a crime of
conspiracy to commit manslaughter, the trial court was not
required to instruct on it in this case.
In Horn, the Supreme Court explained that whether
a defendant conspires to commit manslaughter, as opposed
to murder, turns on the defendant’s mental state at the time
of the agreement. The court reasoned that, “[i]f, gripped by
mental illness, intoxication, or heat of passion, a man kills
without malice, he commits manslaughter; it necessarily follows
that if this same man, under those same circumstances, conspires
to kill, he conspires to commit manslaughter. Even though
his befuddled brain still possesses the bare capacity to agree to
the conspiracy, his inability to appreciate the gravity of his act,
or to harbor malice aforethought compels us to classify the object
23
of his conspiracy as a manslaughter.” (Horn, supra, 12 Cal.3d
at p. 299.)
On the record before us, no reasonable juror could have
concluded Hughes conspired to commit manslaughter under
a heat-of-passion theory. To prove the conspiracy counts, the
prosecutor relied entirely on circumstantial evidence from which
the jury could infer Hughes and the other defendants agreed
to commit the murders. The record contains no direct evidence
of those agreements; nor does it contain evidence from which
the jury could determine, with any precision, when and where
Defendants formed the agreements. Absent such evidence, it
would be pure speculation to conclude Hughes was acting under
the heat of passion when she agreed to kill Taylor and Reeves.
Accordingly, the trial court was not required to instruct the jury
on conspiracy to commit manslaughter.
e. Attempted murders
Hughes and Washington contend the trial court was
required to instruct the jury on heat-of-passion attempted
manslaughter related to their attempts to kill Miller, Taylor,
and Reeves. Hughes, in particular, argues the jury could have
convicted her of attempted manslaughter based on evidence
showing the victims taunted her about her miscarriage, posted
her address online, claimed credit for setting her car on fire, and
challenged her to numerous fights. Washington similarly argues
that “small disputes on Facebook led to online feuds between
[the victims] and Hughes, endless challenges to fight, the burning
of Hughes’ car and a fight that caused Hughes to miscarry her
and [Washington’s] child. The feuds continued with even greater
fervor after the miscarriage. [Washington] and Hughes both
were taunted about the loss of their baby. Reeves told
24
[Washington] he would have no relationship [with] his child,”
and Taylor refused to allow him to spend time with his other
child.
Assuming for the sake of argument the evidence satisfies
the objective component of heat-of-passion manslaughter—which
is far from certain—the trial court nevertheless properly declined
to give the instruction because there is insufficient evidence of
the subjective component. We discuss each attempted murder
in turn.
i. Hughes’s attempt to kill Miller
As to the Miller shooting, Hughes did not testify at trial,
so there is no direct evidence of her state of mind. The only
indirect evidence shows she was calm and controlled throughout
the incident. Miller, for example, testified Hughes followed
her in a car for about a mile, pulled up beside her, and started
shooting without saying a word. A short while later, Hughes
returned to the area and silently made eye contact with Miller.
On this record, no reasonable juror could have concluded Hughes
shot at Miller while she was “ ‘so inflamed that . . . she would lose
reason and judgment. . . .’ [Citation.]” (People v. Thomas (2012)
53 Cal.4th 771, 813.) The court, therefore, was not required
to instruct on heat-of-passion manslaughter. (See People v.
Manriquez (2005) 37 Cal.4th 547, 585 (Manriquez) [court not
required to give heat-of-passion instruction where there was no
evidence the defendant exhibited anger, fury, or rage].)
ii. Washington’s attempt to kill Taylor
As to the Taylor shooting, Washington did not testify
at trial, so there is no direct evidence of his state of mind during
the incident. Nor is there indirect evidence showing he was
under the influence of a strong passion as a result of Taylor’s
25
provocation. To the contrary, Taylor’s mother testified
Washington was not upset or angry when Taylor refused to allow
him to take his child earlier that day. Although a security guard
testified Washington subsequently became “verbally aggressive”
toward another man in the apartment’s parking lot, there
is nothing suggesting the altercation was in any way related
to Taylor. (See Lujan, supra, 92 Cal.App.4th at pp. 1411–1412
[the provocation must be caused by the victim or reasonably
believed by the accused to have been engaged in by the victim].)
In any event, there is no evidence showing Washington was
in the same emotional state when he shot Taylor. The evidence
instead shows only that he pulled up next to Brejae’s car, told
her to pull over, and started firing in Taylor’s direction when
she refused. On this record, no reasonable juror could have
concluded Washington was acting under the influence of a
strong passion when he shot Taylor.
iii. Hughes’s and Washington’s attempt to
kill Reeves
As to the final incident, the case for a heat-of-passion
instruction is somewhat stronger given the evidence that
Reeves attempted to provoke Defendants immediately before
the shooting by insulting Hughes and challenging her to fight.
Nevertheless, as in the other incidents, there is no evidence
that Reeves successfully induced a strong passion in either
Washington or Hughes. As noted above, neither Washington
nor and Hughes testified at trial, so there is no direct evidence
of their states of mind during the shooting. Neither defendant,
moreover, points to any indirect evidence even suggesting they
were acting under the influence of intense emotion that obscured
their reasoning or judgment. Absent such evidence, the court
26
was not required to give a heat-of-passion instruction. (See
Manriquez, supra, 37 Cal.4th at p. 585.)
People v. Bridgehouse (1956) 47 Cal.2d 406, People v.
Borchers (1958) 50 Cal.2d 321, and People v. Berry (1976) 18
Cal.3d 509, are distinguishable. In those cases, the defendants
testified at trial, so there was direct evidence of their mental
states. Moreover, the evidence showed that, near the time
of the killings, the defendants were “mentally and emotionally
exhausted and . . . white and shaking” (Bridgehouse, at p. 414),
suicidal (Borchers, at p. 327), and in “a state of uncontrollable
rage, completely under the sway of passion” (Berry, at p. 514).
There is no comparable evidence in this case.
iv. Any error was harmless
Even if the trial court should have instructed the jury
on heat-of-passion attempted manslaughter, the error was
harmless under any standard. (See Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman) [reversal is required unless
the error was harmless beyond a reasonable doubt]; People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson) [reversal is required
only if it is “reasonably probable that a result more favorable
to the appealing party would have been reached in the absence
of the error”].)
“Error in failing to instruct the jury on a lesser included
offense is harmless when the jury necessarily decides the factual
questions posed by the omitted instructions adversely to [the]
defendant under other properly given instructions.” (People v.
Lewis (2001) 25 Cal.4th 610, 646.) In People v. Wharton (1991)
53 Cal.3d 522 (Wharton), for example, the California Supreme
Court held a trial court’s failure to instruct a jury that
provocation can occur over a considerable period of time was
27
harmless where the jury found the defendant acted willfully,
deliberately, and with premeditation. The court reasoned that
such a “state of mind, involving planning and deliberate action,
is manifestly inconsistent with having acted under the heat
of passion—even if that state of mind was achieved after a
considerable period of provocatory conduct . . . .” (Id. at p. 572.)
On the attempted murder counts in this case, the trial
court instructed the jury that if it found Washington or Hughes
guilty, it must decide whether they acted willfully, deliberately,
and with premeditation. The court fully defined those terms
and further instructed the jury that a “decision to kill made
rashly, impulsively, or without careful consideration of the
choice and its consequences is not deliberate and premeditated.”
In light of these instructions, the jury would have
understood that the prosecution’s burden to prove deliberation
and premeditation included the burden to negate any reasonable
doubt that Washington and Hughes acted rashly under any
amount of provocation. The jury also would have understood that
if the evidence showed Washington and Hughes did act rashly,
they did not deliberate and premeditate. With respect to each
attempted murder count, the jury found true that the crimes
were committed with premeditation and deliberation. As in
Wharton, “[t]his state of mind, involving planning and deliberate
action, is manifestly inconsistent with having acted under the
heat of passion . . . and clearly demonstrates that defendant[s]
[were] not prejudiced by the failure to give [their] requested
instruction.”9 (Wharton, supra, 53 Cal.3d at p. 572; see People
9 Because the jury found Hughes and Washington
premeditated and deliberated the murder of Reeves’s fetus,
28
v. Wang (2020) 46 Cal.App.5th 1055, 1071–1072; People v.
Franklin (2018) 21 Cal.App.5th 881, 894–895; People v. Peau
(2015) 236 Cal.App.4th 823, 831–832; People v. Speight (2014)
227 Cal.App.4th 1229, 1246.)
Hughes suggests the jury’s premeditation and deliberation
findings are not definitive as to the Taylor and Reeves counts
because the court instructed the jury that it could find the
allegations true if “either the defendant[,] a principal[,] or both
of them acted with that state of mind.” Therefore, she argues,
it is conceivable that the jury found the allegations true after
concluding Washington or Grace acted with premeditation
and deliberation, but she did not.
We are not persuaded. Based on the evidence adduced
at trial, it is inconceivable that the jury could have concluded
some, but not all, of the defendants acted with premeditation and
deliberation. In any event, Hughes overlooks the fact that the
jury also convicted her and Washington of conspiracy to murder
each victim. On those counts, the trial court instructed the
jury that, to convict Defendants, it had to find they (1) intended
to agree intentionally and unlawfully to kill the victim and
(2) intended that one of the alleged members of the conspiracy
would intentionally and unlawfully kill the victim. In Cortez,
supra, 18 Cal.4th 1223, the California Supreme Court held that
this mental state “necessarily establishes premeditation and
deliberation of the target offense of murder.” (Id. at p. 1232.)
The jury’s guilty verdicts on the conspiracy counts, therefore,
necessarily establish that Washington and Hughes acted with
any error in failing to instruct the jury on heat of passion related
to that count was also necessarily harmless for the same reasons.
29
premeditation and deliberation when they agreed to kill Taylor
and Reeves. Because there is no basis in the record to conclude
the conspiracies to murder were separate from the attempts to
murder, it is beyond a reasonable doubt that the jury found each
defendant acted with premeditation and deliberation when they
attempted to murder the victims. Accordingly, the court’s failure
to instruct on heat-of-passion attempted manslaughter was
harmless.10 (See Wharton, supra, 53 Cal.3d at p. 572.)
4. The trial court was not required to instruct the jury
on provocation
Washington and Hughes argue the trial court erred by
failing to instruct the jury that provocation insufficient to reduce
murder to manslaughter may nevertheless be relevant to show
they did not act with premeditation and deliberation.
“ ‘Provocation of a kind, to a degree, and under
circumstances insufficient to fully negative or raise a reasonable
doubt as to the idea of both premeditation and malice (thereby
reducing the offense to manslaughter) might nevertheless be
adequate to negative or raise a reasonable doubt as to the
idea of premeditation or deliberation, leaving the homicide as
murder of the second degree; i.e., an unlawful killing perpetrated
with malice aforethought but without premeditation and
deliberation.’ ” (Wright, supra, 242 Cal.App.4th at p. 1494.)
“[A] subjective test applies to provocation as a basis to reduce
malice murder from the first to the second degree: it inquires
whether the defendant in fact committed the act because he was
10 For the same reasons, we reject Hughes’s derivative
arguments that the trial court violated her constitutional rights
by failing to instruct on heat of passion.
30
provoked.” (People v. Jones (2014) 223 Cal.App.4th 995, 1000.)
In other words, the evidence must show the provocation caused
a heat of passion that precluded the defendant from subjectively
deliberating or premeditating. (People v. Hernandez (2010) 183
Cal.App.4th 1327, 1332 (Hernandez).)
At the outset, Washington and Hughes forfeited their
arguments related to a provocation instruction. An instruction
on provocation is a pinpoint instruction relating particular
evidence to an element of the offense, meaning the court must
give the instruction only if a party requests it. (People v. Rogers
(2006) 39 Cal.4th 826, 878.) Although Defendants asked the
court to instruct the jury “that provocation that doesn’t justify
manslaughter should reduce a first [to a] second,” they did not
specifically request that the court instruct the jury on provocation
on the non-murder counts. Their failure to do so forfeits the
issue on appeal as to those counts. (People v. Jennings (2010)
50 Cal.4th 616, 675 (Jennings).)
Washington and Hughes also forfeited the issue as it
relates to the murder of Reeves’s fetus, albeit for a different
reason. “In order to preserve an issue for review, a [party] must
not only request the court to act, but must press for a ruling.
The failure to do so forfeits the claim.” (People v. Ramirez (2006)
39 Cal.4th 398, 472.) Here, the trial court never expressly ruled
on the request for an instruction related to the degree of murder;
the court addressed only the request for a heat-of-passion
manslaughter instruction. By failing to press the court for
a ruling on provocation, Washington and Hughes forfeited the
issue on appeal.
Even if we were to overlook the forfeiture, we would
reject Washington’s and Hughes’s arguments on the merits.
31
As discussed above, there is not substantial evidence showing
either defendant was acting under the heat of passion when they
committed the charged crimes. Absent such evidence, the court
was not required to instruct on provocation. (See Hernandez,
supra, 183 Cal.App.4th at p. 1332 [the evidence must show
the provocation caused the defendant to act under the heat
of passion].)
In any event, any error in failing to give the instruction
was harmless under the Watson standard.11 (See People v.
Earp (1999) 20 Cal.4th 826, 887 [the Watson harmless error
standard applies when a court fails to give a requested pinpoint
instruction].) Washington and Hughes were free to argue
provocation to the jury, even without an instruction. Tellingly,
neither did. Presumably, they recognized the evidence of
premeditation and deliberation was overwhelming, particularly
with respect to the counts related to Reeves and her fetus.
Moreover, as discussed above, the jury also found Defendants
conspired to murder Taylor and Reeves, which conclusively
shows it determined Washington and Hughes did not act rashly
or impulsively when they attempted to do so. On this record,
it is not reasonably probable that Washington or Hughes would
have obtained a more favorable result had the court given a
provocation instruction. Accordingly, any error in failing to
give the instruction was harmless.
11 We reject Washington’s and Hughes’s cursory arguments
that the errors are subject to the Chapman harmless error
standard because they resulted in the violation of their federal
constitutional rights.
32
5. The trial court did not abuse its discretion by
failing to investigate potential juror bias
Defendants contend the trial court erred by failing to
conduct an investigation in response to a note from the jurors
requesting security walk them to their cars. They insist the note
indicates the jurors were biased because it shows they possessed
a widespread and deep fear of retaliation by Defendants’
associates.
a. Background
During deliberations on October 22, 2018, the jury
submitted the following request to the court: “We the jury
request our certificates ready + brought up to the jury room.
May the jury leave our badges in the jury room, so we don’t
have to go down to the 2nd floor waiting room. The jury requests
security walk us to our cars.” The jury adjourned for the day
about an hour and a half later. The record does not contain
a response from the court or any substantive discussion of
the note by the parties.
Ten minutes after resuming deliberations the next
morning, the jury informed the court it had reached verdicts.
Judge Connolly, who presided over the trial, was not available
to take the verdicts, so Judge Ricardo Ocampo substituted in
for him. Judge Ocampo reviewed the court’s file and found
several notes from the jury from the previous day. Judge
Ocampo said one of the notes asked “to have [the jury’s]
certificates ready and brought up to the jury room.” The
prosecutor responded, “We all were aware of that, Your Honor.”
The parties then turned to other issues.
33
b. Analysis
“ ‘The decision whether to investigate the possibility
of juror bias, incompetence, or misconduct—like the ultimate
decision to retain or discharge a juror—rests within the sound
discretion of the trial court. [Citation.] The court does not abuse
its discretion simply because it fails to investigate any and all
new information obtained about a juror during trial. . . . [A]
hearing is required only where the court possesses information
which, if proven to be true, would constitute “good cause” to
doubt a juror’s ability to perform his duties and would justify
his removal from the case.’ ” (People v. Osband (1996) 13 Cal.4th
622, 675–676 (Osband).)
The note from the jury in this case did not provide the court
with any information that, if proven to be true, would constitute
good cause to doubt the jurors’ ability to perform their duties
or justify their removal from the case. The note itself does
not reveal the reason the jurors requested security walk them
to their cars; Defendants’ insistence that the jurors were afraid
of their associates is pure speculation. For all we know, the
jurors made the request for reasons wholly unrelated to the case.
Indeed, it is possible the request was a response to an earlier
security incident involving at least two jurors, which had nothing
to do with the trial.12 It is also telling that, despite being aware
12 The morning of September 7, 2018, the court stated
on the record “there was an incident with the jury today, not
in any relation to this trial at all.” The court did not describe
the incident in detail. It noted there was “something off with
that person,” and then apologized to the jury “that anything
would happen in the courthouse.” The court’s minute order for
that date states there “was an incident with Alternate Juror
Number 3 [ ]. The Sheriff[’s] Department is notified of incident.
34
of the jury’s request, Defendants did not express any concern
in the trial court that it signaled potential bias. On this record,
Defendants have not met their burden of showing the trial court
abused its discretion by failing to conduct an investigation
into potential juror bias.13 (See People v. Manibusan (2013) 58
Cal.4th 40, 53 (Manibusan) [note asking to change the foreperson
did not constitute good cause to doubt the foreperson’s ability
to perform her duties because the note did not reveal the reason
for the request].)
Even if we were to assume the note was related to the
jurors’ fear of Defendants’ associates, the court still was not
required to conduct an investigation. People v. Panah (2005)
35 Cal.4th 395 (Panah), is instructive. In that case, the
defendant’s supporters were “ ‘shadowing’ ” the jurors during
breaks in deliberations. One of the jurors told the bailiff she
felt intimidated by their presence, and another juror expressed
relief when the jury was allowed to congregate in another area
where they could avoid contact with the supporters. (Id. at
p. 480.) The Supreme Court rejected the defendant’s argument
that this showed the jurors were biased, explaining, “What
the record seems to indicate is spectator misconduct on the
part of defendant’s supporters who, intentionally or not, made
Deputy Delfin conducts an interview with Alternate Juror
Number 3. Deputy Delfin also conducts an interview with Juror
Number 11 [ ]. Juror Number 11 was a witness to incident that
occurred involving Alternate Juror Number 3.”
13 For the same reasons, we reject Defendants’ derivative
arguments that the trial court’s failure to conduct an
investigation violated their federal constitutional rights.
35
themselves conspicuous to the jurors in a manner that some
of the jurors interpreted as intimidating. The jurors’
understandable concern does not amount to misconduct, and
there is nothing on the record to support defendant’s claim
that he was denied an impartial jury.” (Ibid.)
Under Panah, the fact that a juror feels intimidated by
a defendant’s supporters alone is not sufficient to show bias.
(Panah, supra, 35 Cal.4th at p. 480.) Accordingly, even if the
note in this case indicated the jurors were fearful of Defendants’
associates, it did not provide good cause to doubt the jurors’
ability to perform their duties or justify their removal from
the case. The court, therefore, was not obligated to conduct
an investigation. (Osband, supra, 13 Cal.4th at pp. 675–676.)
Defendants’ reliance on U.S. v. Johnson (4th Cir. 2020)
954 F.3d 174 and U.S. v. Angulo (9th Cir. 1993) 4 F.3d 843,
is misplaced. Those cases were premised on Remmer v. United
States (1954) 347 U.S. 227, in which the United States Supreme
Court held a district court must conduct an evidentiary hearing
to determine prejudice whenever there has been a direct or
indirect “private communication, contact, or tampering . . .
with a juror during a trial about the matter pending before
the jury.” (Id. at pp. 229–230; see Johnson, at p. 176, Angulo,
at pp. 846–848.) Here, there is nothing in the record even
suggesting a “private communication, contact, or tampering”
with any of the jurors. Johnson and Angulo, therefore, are
inapposite.
36
6. The trial court did not prejudicially err by failing to
instruct the jurors to start their deliberations anew
Defendants argue the trial court erred by failing to instruct
the jury to begin deliberations anew after replacing a juror with
an alternate.14
a. Background
During a break in closing arguments, the court noted
that Juror No. 12 had a preplanned vacation and would likely
need to leave the case. At some point, the trial court and parties
spoke to the juror and agreed she would be replaced after closing
arguments.
During another break in closing arguments, the court
told the jurors that after the prosecutor’s rebuttal, it would give
final instructions and then “ask you to start your deliberations.”
The parties finished their closing arguments the next day.
The court read the final instructions, including the direction
that “[w]hen you go into the jury room the first thing you
should do is to choose a foreperson.” The court also told the
jurors most of the exhibits “will be sent into the jury room
with you when you begin to deliberate.” The clerk then swore
14 In their opening briefs on appeal, Defendants asserted
the court replaced two jurors during deliberations. Because
the record was not clear whether the court replaced one or two
jurors, we remanded the case to the trial court to clarify the
record. On remand, the court clarified that it seated only a single
alternate juror during deliberations. We subsequently invited
the parties to submit supplemental briefs responding to the
record on remand. In those supplemental briefs, Defendants
seem to concede that the trial court seated only one alternate
juror during deliberations. Accordingly, we do not consider
their original arguments related to the second alternate juror.
37
the bailiff at the court’s direction. The court told the jurors
to take their notebooks and go into the jury room, and it directed
the alternates to step outside.
The reporter’s transcript indicates that “at 12:15 p.m.
the jurors exited the courtroom to begin deliberating.”15 Almost
immediately after the jurors and alternates left the courtroom,
the court told the parties that it would excuse Juror No. 12
and seat Alternate Juror No. 1. The parties and the court then
discussed the verdict forms.
The reporter’s transcript indicates the jurors and
alternates returned to the courtroom at 12:30 p.m. The court
excused Juror No. 12 and told Alternate Juror No. 1 he was
selected as the replacement. The court and the jurors then
agreed they could have a lunch break until 2:00 p.m.
Before excusing the jurors for lunch, the court directed
them to “start your deliberations [after returning from lunch],
and with the new Juror No. 12.” The court also informed
the jurors they would have access to most of the evidence in
the jury room, as well as a packet of jury instructions and
verdict forms. A minute order indicates the jurors returned
from lunch and “commence[d] deliberations” at 2:05 p.m.
b. The court was not required to instruct the
jurors to start deliberations anew
Under section 1089, the court may, upon good cause,
replace a discharged juror with an alternate. If the court
replaces a juror during deliberations, in order to comply with
15 On remand, the parties stipulated that the court reporter
generated the notation using an automated keystroke, which she
triggers whenever a court instructs a jury to retire to the jury
room after instructions.
38
the requirement of a unanimous verdict, the court must instruct
the jurors to begin deliberations anew with the substituted juror.
(People v. Collins (1976) 17 Cal.3d 687, 694 (Collins).)
Contrary to Defendants’ claims, the court was not required
to give such an instruction in this case. Under section 1128,
the trial court “shall fix the time and place for deliberation,” and
the “jurors shall not deliberate on the case except under those
circumstances.” The record shows the court directed the original
jurors to take their notebooks to the jury room at 12:15 p.m.,
but it did not instruct them to start deliberating at that time.
The court brought the jurors back into the courtroom 15 minutes
later, seated Alternate Juror No. 1, and then instructed the
jurors to “start your deliberations” after returning from lunch.16
Because the court seated the alternate juror before instructing
the jurors to start their deliberations, there was no need to
instruct the jurors to start their deliberations anew.
Defendants contend the reporter’s transcript indicates
the jurors started deliberating at 12:15 p.m., before the court
seated the alternate juror. The notation in the reporter’s
transcript, however, is not determinative. It is undisputed that
the court reporter generated the notation using an automated
keystroke, which she triggers whenever a court instructs a jury to
retire to the jury room after instructions. The notation does not
reflect that that jurors actually started deliberating at that time.
Defendants alternatively contend it is likely the jurors
believed they were supposed to start deliberating after entering
16 Consistent with that direction, the court’s minute order
states the jurors “commence[d] deliberations” at 2:05 p.m.
Subsequent minute orders, in contrast, state the jurors
“resume[d] deliberations.”
39
the jury room at 12:15 p.m., even though the court did not
directly instruct them to do so. In support, they point to the fact
that, immediately before asking the jurors to enter the jury room,
the court instructed them on the procedures for deliberations
and directed the clerk to swear the bailiff. Defendants also point
out that the court directed the jurors to take their notebooks into
the jury room, which it had previously told them they could do
only while deliberating. Defendants contend the jurors may
have inferred from these circumstances that they were to begin
deliberations as soon as they entered the jury room at 12:15 p.m.
Based on our review of the entire record, we do not think
it is likely the jury started deliberating immediately at 12:15 p.m.
The court had previously told the jurors it would “ask” them to
start deliberating after giving final instructions; it also informed
them the “exhibits will be sent into the jury room with you
when you begin to deliberate.” The court, however, did not ask
the jurors to start deliberating at 12:15 p.m., nor did it send
the exhibits to the jury room with them at that time. Moreover,
when the jurors entered the jury room at 12:15 p.m., Juror No. 12
was already aware that she would be replaced by an alternate
juror for deliberations. It is highly unlikely the jurors would
have begun deliberating under those circumstances.
We also reject Defendants’ contention that we must
presume the jurors started deliberating at 12:15 p.m. because
the record does not show otherwise. “[O]n appeal a judgment is
presumed correct, and a party attacking the judgment, or any
part of it, must affirmatively demonstrate prejudicial error.”
(People v. Garza (2005) 35 Cal.4th 866, 881.) Accordingly, it is
Defendants’ burden to show the jury actually started deliberating
40
before the court seated the alternate juror. If the record is silent
or inconclusive on the issue, as it is here, we must affirm.
c. The court’s failure to instruct the jurors was harmless
Even if the jurors had started deliberating at 12:15 p.m.,
any error in failing to instruct them properly after substitution
of the alternate juror was harmless.
Initially, the parties dispute the proper standard of review.
Defendants contend a court’s failure to instruct a jury to begin
deliberations anew is structural error and therefore not subject
to harmless error review. The Attorney General urges us instead
to apply the Watson harmless error standard. For the reasons
discussed below, we reject both approaches and instead apply
the federal Chapman harmless error standard.
“[S]tructural errors not susceptible to harmless error
analysis are those that go to the very construction of the trial
mechanism—a biased judge, total absence of counsel, the failure
of a jury to reach any verdict on an essential element.” (People
v. Gamache (2010) 48 Cal.4th 347, 396 (Gamache).) In Weaver
v. Massachusetts (2017) 582 U.S. __ [137 S.Ct. 1899], the United
States Supreme Court articulated three broad rationales for
treating an error as structural: “First, an error has been deemed
structural in some instances if the right at issue is not designed
to protect the defendant from erroneous conviction but instead
protects some other interest. . . . [¶] Second, an error has been
deemed structural if the effects of the error are simply too hard
to measure. . . . [¶] Third, an error has been deemed structural
if the error always results in fundamental unfairness. . . .
It therefore would be futile for the government to try to show
harmlessness.” (Id. at p. 1908; see In re Christopher L. (2022)
12 Cal.5th 1063, 1076–1077 [analyzing the Weaver rationales
41
to determine whether the failure to comply with a father’s rights
to presence and appointment of counsel at a child dependency
hearing was structural error].)
None of these rationales applies when a trial court
erroneously fails to instruct a jury to begin deliberations anew.
As to the first rationale, the requirement that courts instruct
jurors to begin deliberations anew arises out of a defendant’s
right to a unanimous verdict (see Collins, supra 17 Cal.3d at
p. 694); that right plainly is designed to protect the defendant
from erroneous convictions. As to the second rationale, this type
of error is no harder to measure than other varieties of trial error.
The California Supreme Court, in fact, has articulated factors
that are relevant to the inquiry and concluded, on many
occasions, that such errors were harmless. (See, e.g., People v.
Nunez and Satele (2013) 57 Cal.4th 1, 61; People v. Proctor (1992)
4 Cal.4th 499, 537 (Proctor); People v. Odle (1988) 45 Cal.3d 386,
405–406, abrogated on other grounds by Ring v. Arizona (2002)
536 U.S. 584, 609; Collins, at p. 697.) For the same reasons,
it is apparent the third rationale—which asks whether the error
results in fundamental unfairness in every case such that it
would be futile for the government to try to show harmlessness—
does not apply.
Defendants contend in passing that Ramos v. Louisiana
(2020) __U.S. __ [140 S.Ct. 1390] (Ramos) renders a court’s
failure to instruct jurors to begin deliberations anew structural
error. In Ramos, our nation’s high court held the Sixth
Amendment’s unanimity requirement applies to state and federal
criminal trials equally. (Id. at p. 1397.) Ramos, however, does
not concern a trial court’s failure to instruct jurors to start
deliberations anew, nor did the high court hold that a violation
42
of the Sixth Amendment’s unanimity requirement is structural
error. Defendants, moreover, fail to explain how Ramos renders
the type of error at issue in this case structural, rather than
simply requiring application of the federal Chapman harmless
error standard.
“There is a strong presumption that any error falls within
the trial error category, and it will be the rare case where a
constitutional violation will not be subject to harmless error
analysis.” (People v. Anzalone (2013) 56 Cal.4th 545, 554.)
This is not one of those rare cases.
We also reject the Attorney General’s contention—based
primarily on Collins, supra, 17 Cal.3d 687—that the state Watson
standard applies to this type of error. In Collins, the California
Supreme Court reviewed a trial court’s failure to instruct jurors
to begin deliberations anew under the Watson harmless error
standard. (Collins, at p. 697.) The court declined to apply the
federal Chapman harmless error standard because, at that time,
the United States Supreme Court had ruled that the federal
constitution does not require unanimous jury verdicts in state
criminal trials. (Collins, at p. 692, fn. 3; see Apodaca v. Oregon
(1972) 406 U.S. 404, 406.) Since Collins, however, the United
States Supreme Court has held the Sixth Amendment’s
unanimity requirement applies to both state and federal criminal
trials. (Ramos, supra, 140 S.Ct. at p. 1397.) A failure to instruct
jurors to begin deliberations anew, therefore, now potentially
violates a defendant’s federal constitutional rights. Accordingly,
we will apply the Chapman harmless error standard, which
asks whether the error was harmless beyond a reasonable doubt.
(See Chapman, supra, 386 U.S. at p. 24.)
43
In determining prejudice, we may consider “whether
the case is a close one and compare the time the jury spent
deliberating before and after the substitution of the alternate
juror.” (Proctor, supra, 4 Cal.4th at p. 537.) Here, the evidence
against Defendants was strong. Assuming the jurors began
their deliberations at 12:15 p.m., they would have deliberated
for no more than 15 minutes before the court seated the
alternate. It is highly doubtful that the jurors would have
engaged in substantive discussions during that brief time,
especially because the court instructed them to begin
deliberations by selecting a foreperson. In contrast, after
the court substituted Alternate Juror No. 1, the jury deliberated
for roughly six hours. Under these circumstances, beyond
a reasonable doubt, the outcome of the case would have
been the same had the court instructed the jury to begin
its deliberations anew. Any error, therefore, was harmless.
7. The trial court did not err by admitting Grace’s
statements to the Perkins agent that implicated
Washington and Hughes
Washington and Hughes argue the trial court erred by
admitting into evidence Grace’s statements during the Perkins
operation that implicated them in shooting Reeves and her fetus.
They contend the statements are hearsay and do not fall within
any exceptions to the hearsay rule. Alternatively, they contend
the admission of the statements violated their constitutional
rights under the Aranda/Bruton17 doctrine.
17 People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United
States (1968) 391 U.S. 123.
44
a. Grace’s statements to the Perkins agent
During the Perkins operation, Grace told the undercover
agent he was from the Eight Tray Gangsters and the police
arrested him for attempted murder. Grace implied he was at
the scene of the crime, so he knew the police did not have a gun
or a witness.
A police officer interrupted the conversation to collect a
DNA sample from Grace. While doing so, the officer told Grace,
“[T]he girl didn’t die. The baby died, but she didn’t, okay?”
The officer also told Grace the police “got the car . . . we got
your Facebook account, we got everything.”
After the officer left, the agent told Grace other prisoners
might be upset that he shot a woman and her child. Grace
replied, “It was, it wasn’t like, no. It was in, in the stomach
type of shit actually.” Grace said the victim was pregnant and
then acknowledged that fact could “make it worse.”
Grace implied Washington and Hughes were involved in
the shooting and had already been booked “for another hot one
type shit.” Grace said Hughes and Reeves had a “hardcore beef”
involving Washington. He also told the agent that Reeves was
pregnant by “[his] boy.”
The agent asked Grace, “[A]n argument happened, right?
‘Cause I’m pretty sure a motherfucker just didn’t roll up and
pop her, right?” Grace replied, “Nah, like nah, it’s—.” Grace
continued a few moments later, “Like, basically, like, you feel me,
I put the whole play in motion type shit. But it happened, I, I
put the whole play in motion. It was over the internet . . . .”
Grace expressed concern that his social media messages
would implicate him in the crime. The agent suggested Grace
could claim to have been trying to meet Reeves for some other
45
purpose, which Grace dismissed because “the timing gonna add
up.” Later, Grace agreed his messages would make it look like
he “smooth talked” Reeves and “led her in for the kill.”
Throughout the conversation, Grace repeatedly mentioned
or implied that he was not the shooter. Grace said he would not
reveal that information to police because then the charges would
all fall on Washington. Grace asked the agent if he would “[have]
a case to fight” if police found his DNA at the scene, but they
could not place him behind the gun. The agent told Grace he
did not actually have to pull the trigger to go down for the crime,
and the police could charge him for telling the “trigger [ ] man”
to “smoke that bitch.” Grace responded, “Doing the same time.”
Later, he acknowledged the police were “gonna try to get me
with conspiracy.”
b. Procedural background
Before trial, Washington and Hughes sought to exclude
portions of the recording that referred to them. Specifically, they
argued Grace’s statements implicating them in the crimes were
inadmissible hearsay and violated their rights to confrontation.
The court overruled the objections, finding the comments were
admissible under the statements against penal interest exception
to the hearsay rule. The court explained that, although “the
argument can be made that [Grace] is trying to mitigate or
exculpate himself—throughout this entire thing, I don’t
believe that he is trying to remove himself.” The prosecutor
subsequently played for the jury the entire recording of Grace’s
conversation with the agent, including the portions that referred
to Washington and Hughes.
46
c. Statements against penal interest
Washington and Hughes first argue the trial court erred
in finding Grace’s comments about them were admissible as
statements against penal interest.
Under Evidence Code section 1230, “[e]vidence of a
statement by a declarant having sufficient knowledge of the
subject is not made inadmissible by the hearsay rule if the
declarant is unavailable as a witness and the statement, when
made, . . . so far subjected him to the risk of . . . criminal liability,
. . . that a reasonable man in his position would not have
made the statement unless he believed it to be true.” To gain
admission of hearsay evidence under Evidence Code section 1230,
“ ‘[t]he proponent of such evidence must show that the declarant
is unavailable, that the declaration was against the declarant’s
penal interest when made and that the declaration was
sufficiently reliable to warrant admission despite its hearsay
character.’ ” (People v. Grimes (2016) 1 Cal.5th 698, 711
(Grimes).) We review a trial court’s admission of hearsay
evidence under Evidence Code section 1230 for an abuse of
discretion. (Ibid.)
In Grimes, our Supreme Court clarified the long-standing
rule that Evidence Code section 1230 does not allow the trial
court to admit “ ‘any statement or portion of a statement not
itself specifically disserving to the interests of the declarant.’ ”
(Grimes, supra, 1 Cal.5th at p. 713, quoting People v. Leach
(1975) 15 Cal.3d 419, 441.) “[Leach] explained that those
portions of a confession inculpating others are not as inherently
trustworthy as those portions that are actually disserving to
the declarant’s interests.” (Grimes, at p. 713.) “ ‘[T]he court
may take into account not just the words but the circumstances
47
under which they were uttered, the possible motivation of the
declarant, and the declarant’s relationship to the defendant.’ ”
(Id. at p. 711.)
Grimes explained that California cases “have taken a
contextual approach to the application of the Leach rule. We
have applied Leach to bar admission of those portions of a third
party’s confession that are self-serving or otherwise appear to
shift responsibility to others. [Citations.] But we have permitted
the admission of those portions of a confession that, though not
independently disserving of the declarant’s penal interests, also
are not merely ‘self-serving,’ but ‘inextricably tied to and part of
a specific statement against penal interest.’ ” (Grimes, supra,
1 Cal.5th at p. 715.) “[T]he nature and purpose of the against-
interest exception does not require courts to sever and excise
any and all portions of an otherwise inculpatory statement that
do not ‘further incriminate’ the declarant. Ultimately, courts
must consider each statement in context in order to answer the
ultimate question under Evidence Code section 1230: Whether
the statement, even if not independently inculpatory of the
declarant, is nevertheless against the declarant’s interest,
such that ‘a reasonable man in [the declarant’s] position would
not have made the statement unless he believed it to be true.’ ”
(Id. at p. 716.) Noting that “context matters,” the court concluded
statements that “tended to underscore [the declarant’s]
responsibility for the crime, rather than diminish it,” were
admissible as declarations against interest. (Id. at p. 717.)
Here, Grace’s comments implicating Washington and
Hughes were inextricably tied to and part of specific statements
against his penal interest. Grace admitted to the Perkins agent
that he was at the scene of the shootings and “put the whole
48
play in motion,” which implicated him in—among other crimes—
conspiracy to murder Reeves. His comments regarding
Washington and Hughes provided essential context for those
admissions. They identified the members of the conspiracy,
their respective roles, and Grace’s motive for joining it.
Moreover, to the extent Grace implied that Washington and
Hughes shot Reeves, his comments were relevant to proving that
a co-conspirator committed an overt act in furtherance of the
conspiracy, which is a necessary element of the crime. (§ 184.)
Further, the context in which Grace made the comments
concerning Washington and Hughes indicates they are reliable.
Although Grace insisted he did not personally shoot the victims—
thereby implying that Washington and Hughes were the shooters
—he did so primarily while discussing the potential evidence
that could be used against him. Grace was seeking the agent’s
informed opinion on the strength of the prosecution’s case against
him; he was not trying to shift the blame to others. Indeed,
Grace told the agent he would not reveal to the police that he
was not the shooter because it might implicate Washington.
Grace also seemed to recognize that, regardless of whether he
was the shooter, he was likely to be charged as a conspirator
and could face the same prison sentence.
Considering all the circumstances, Grace’s comments
implicating Washington and Hughes were clearly against his
own interest, such that a reasonable person in his position would
not have made them unless he believed them to be true. The trial
court, therefore, did not abuse its discretion by admitting them
into evidence. (See People v. Smith (2017) 12 Cal.App.5th 766,
793 [a trial court properly admitted out-of-court statements by a
co-defendant because there was “no way in which her statements
49
about being at the scene of the burglary, robbery and murder
in which [the declarant] was a relatively lesser participant
would make any sense without reference to the major actors”].)
d. Aranda/Bruton doctrine
Washington and Hughes alternatively argue the admission
of Grace’s comments violated their constitutional rights under
the Aranda/Bruton doctrine.
The Aranda/Bruton doctrine generally precludes
admission of out-of-court statements by a non-testifying
codefendant that implicate the defendant. (Gamache, supra,
48 Cal.4th at pp. 378–379.) Because the doctrine is grounded
exclusively in the confrontation clause, it is limited to statements
by a codefendant that are testimonial. (People v. Almeda (2018)
19 Cal.App.5th 346, 362 (Almeda); People v. Washington (2017)
15 Cal.App.5th 19, 29 (Washington); People v. Arceo (2011) 195
Cal.App.4th 556, 575.) In order to be testimonial, a statement
“must have been given and taken primarily for the purpose
ascribed to testimony—to establish or prove some past fact
for possible use in a criminal trial.” (People v. Cage (2007)
40 Cal.4th 965, 984.)
The Aranda/Bruton doctrine does not apply to Grace’s
comments implicating Washington and Hughes. Although
the Perkins agent received Grace’s statements for possible use
in a criminal trial, the record does not show Grace knew he
was speaking with a police informant or otherwise anticipated
his statements would be used in a later criminal prosecution.
Accordingly, his statements were not testimonial, and their
admission did not violate the Aranda/Bruton doctrine. (See
People v. Arauz (2012) 210 Cal.App.4th 1394, 1402 [“statements
unwittingly made to an informant are not ‘testimonial’ within
50
the meaning of the confrontation clause”]; People v. Gallardo
(2017) 18 Cal.App.5th 51, 66–68 [statements to a jailhouse
informant were not testimonial because the declarant did not
know he was speaking to an informant or that his statements
would be used in a prosecution]; Almeda, supra, 19 Cal.App.5th
at pp. 362–363 [statements made unwittingly to a government
informant are nontestimonial]; Washington, supra, 15
Cal.App.5th at p. 28 [same].)
8. We reverse Defendants’ convictions for attempt
to murder Reeves’s fetus
Defendants contend we must reverse their convictions
for attempted murder of Reeves’s fetus (count 13) given the
jury also convicted them of murdering the fetus (count 6).
The Attorney General concedes the issue, and we agree with
the parties. A defendant may not be convicted of both a greater
offense and its lesser included offense. (People v. Reed (2006)
38 Cal.4th 1224, 1227.) Attempted murder is a lesser included
offense of murder. (People v. Davidson (2008) 159 Cal.App.4th
205, 210.) Defendants, therefore, could not be convicted of both
the attempted murder and murder of the fetus. Accordingly,
we reverse their convictions on count 13 for attempted murder.
9. Substantial evidence supports Washington’s
convictions for assaulting Clayton and Mercadale
(counts 11 and 12)
Washington contends there is insufficient evidence
supporting his convictions for assaulting Clayton and Mercadale.
He insists the evidence shows he targeted only Taylor, who was
sitting in the front seat of Brejae’s car. Therefore, he argues,
there was no risk of harm to Clayton or Mercadale, who were
sitting in the backseat.
51
“An assault is an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.”
(§ 240.) “Because the gravamen of assault is the likelihood that
the defendant’s action will result in a violent injury to another
[citations], it follows that a victim of assault is one for whom such
an injury was likely.” (People v. Trujillo (2010) 181 Cal.App.4th
1344, 1355.) “[W]hen the defendant shoots into a group of
persons primarily targeting only one of them, the defendant
can be convicted of assault with a deadly weapon as to the
nontargeted members of the group.” (People v. Riva (2003)
112 Cal.App.4th 981, 999 (Riva), disapproved on other grounds
by People v. Anderson (2020) 9 Cal.5th 946, 955–957.)
Even assuming Washington intended to strike only Taylor,
there is sufficient evidence that he had the present ability to
commit a violent injury on Clayton and Mercadale, and such
injuries were likely. The evidence shows Washington fired
as many as seven shots in Taylor’s direction. Although Taylor
was initially in the front seat, she testified she tried to climb
into the backseat after Washington fired the first shot. Because
Clayton and Mercadale were in the backseat at the time, the jury
reasonably could have concluded they were at substantial risk
of being struck by a bullet directed at Taylor.
Even if Taylor had remained in the front seat, the jury
reasonably could have concluded Washington fired the gun in
such a way as to place Clayton and Mercadale at risk of harm.
The evidence shows Washington fired the shots from one moving
car into another. As Washington was shooting, Hughes—who
was seated in the passenger seat—controlled the steering wheel
and the car “wiggled.” Taylor, moreover, testified Washington
fired the gun seven times, yet there were only two bullet holes
52
in the side of Brejae’s car; this suggests Washington missed
the car entirely with five shots. From this evidence, the jury
reasonably could have concluded Washington fired the gun
wildly, making it likely he would strike everyone in Taylor’s
general vicinity, including Clayton and Mercadale. (See Riva,
supra, 112 Cal.App.4th at p. 998 [finding a reasonable person
would realize that firing a gun at a car could strike a nearby
pedestrian].) Accordingly, substantial evidence supports his
convictions for assaulting Clayton and Mercadale.18
10. The trial court did not err by instructing the jury
with CALCRIM No. 875
The trial court instructed the jury with CALCRIM No. 875
as follows:
“To prove that the defendant is guilty of
[assault], the People must prove that:
1. The defendant did an act with a firearm that
by its nature would directly and probably
result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, he was aware
of facts that would lead a reasonable person
to realize that his . . . act by its nature
would directly and probably result in the
application of force to someone; AND
18 We reject Washington’s passing suggestion that Clayton
and Mercadale cannot be victims of assault because there is no
evidence showing either “was aware or placed in apprehension
of being struck by a bullet.” An assault does not require the
victim be aware of the danger. (See § 240.)
53
4. When the defendant acted, he . . . had the
present ability to apply force with a firearm
to a person.”
Washington argues that, because the instruction did not
specify which “person” must be subject to the application of force,
it permitted the jury to convict him of assaulting Clayton and
Mercadale based solely on a finding that Taylor was at risk of
being struck by a bullet. He insists the trial court was required
to modify the instruction to clarify that the jury had to find
each named victim was subject to the application of force.
At the outset, Washington forfeited this issue by failing
to raise it below. “ ‘A party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too
general or incomplete unless the party has requested appropriate
clarifying or amplifying language.’ ” (Jennings, supra, 50 Cal.4th
at p. 671; see People v. Lee (2011) 51 Cal.4th 620, 638 [“failure
to request clarification of an otherwise correct instruction forfeits
the claim of error for purposes of appeal”].) Washington concedes
CALCRIM No. 875 is a correct statement of the law. As a result,
his failure to request a clarifying instruction in the trial court
forfeits the issue on appeal.
Even if we were to overlook the forfeiture, we would
reject Washington’s argument on the merits. Washington relies
primarily on People v. Velasquez (2012) 211 Cal.App.4th 1170(Velasquez), but that case is distinguishable. In Velasquez,
the jury convicted the defendant of five counts of assault with
a firearm based on evidence showing he fired ten shots at a
garage. (Id. at pp. 1171, 1175.) At the time of the shooting,
only one victim was in the garage; the other four were in the
residence. (Id. at pp. 1172–1173.) The trial court instructed the
54
jury with CALCRIM No. 875, but it did not clarify that the jury
had to conclude each victim was at risk of harm. (Id. at p. 1176.)
The Court of Appeal reversed, explaining that because CALCRIM
No. 875 states only that the jury must find a risk of harm to
“a person,” there was a reasonable risk the jury convicted the
defendant of five counts of assault despite finding only the victim
in the garage was at risk of harm. (Id. at p. 1177.)
Here, there was no similar risk. Unlike in Velasquez, the
undisputed evidence shows all the victims were passengers in
the same car and within close proximity of one another during
the shooting. Considered with the undisputed evidence showing
the other circumstances of the shooting—Washington fired
multiple shots from one moving car into another while his
passenger was steering his car—no juror could have reasonably
concluded Washington placed Taylor, but not Clayton and
Mercadale, at risk of harm. In other words, there is no
significant risk that the jury convicted Washington of assaulting
Clayton and Mercadale based solely on a finding that he
placed Taylor at risk of harm. Accordingly, any ambiguity in
CALCRIM No. 875 was harmless beyond a reasonable doubt.
(See Velasquez, supra, 211 Cal.App.4th at p. 1177 [instructional
error is subject to Chapman harmless error standard].)
11. Substantial evidence supports Grace’s convictions
Grace contends there is insufficient evidence supporting
his convictions for conspiracy and attempt to murder Reeves,
murder of Reeves’s fetus, and conspiracy to murder Taylor.
a. Standard of review
In considering the sufficiency of evidence in a criminal
appeal, we review the whole record in the light most favorable
to the judgment to determine whether there is substantial
55
evidence—that is, evidence that is reasonable, credible, and
of solid value—so that any rational trier of fact could find the
defendant guilty beyond a reasonable doubt. (People v. Burton
(2006) 143 Cal.App.4th 447, 451 (Burton); People v. Johnson
(1980) 26 Cal.3d 557, 578; In re L.K. (2011) 199 Cal.App.4th
1438, 1446.) We must “ ‘presume in support of the judgment
the existence of every fact the trier could reasonably deduce
from the evidence.’ ” (Johnson, at p. 576; L.K., at p. 1446.)
“ ‘The same standard applies when the conviction rests primarily
on circumstantial evidence.’ ” (L.K., at p. 1446.) “ ‘ “Although
it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable
interpretations, one of which suggests guilt and the other
innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable doubt.
[Citation.]” [Citation.] Where the circumstances reasonably
justify the trier of fact’s findings, a reviewing court’s conclusion
the circumstances might also reasonably be reconciled with
a contrary finding does not warrant the judgment’s reversal.
[Citation.]’ [Citation.]” (Manibusan, supra, 58 Cal.4th at p. 87.)
b. Relevant law
Murder is “the unlawful killing of a human being, or a
fetus, with malice aforethought.” (§ 187, subd. (a).) Malice can
be either express or implied. It is express when the evidence
shows a deliberate intention to kill, and it is implied when the
defendant engages in conduct dangerous to human life, knows
that the conduct endangers the victim’s life, and acts with
a conscious disregard for life. (People v. Brothers (2015) 236
Cal.App.4th 24, 30.) “Attempted murder requires the specific
intent to kill and the commission of a direct but ineffectual act
56
toward accomplishing the intended killing.” (People v. Lee (2003)
31 Cal.4th 613, 623.)
“ ‘All persons concerned in the commission of a crime, . . .
whether they directly commit the act constituting the offense,
or aid and abet in its commission, . . . are principals in any crime
so committed.’ [Citations.] Thus, a person who aids and abets a
crime is guilty of that crime even if someone else committed some
or all of the criminal acts.” (People v. McCoy (2001) 25 Cal.4th
1111, 1116–1117.) “A person aids and abets the commission
of a crime when he or she, (i) with knowledge of the unlawful
purpose of the perpetrator, (ii) and with the intent or purpose of
committing, facilitating or encouraging commission of the crime,
(iii) by act or advice, aids, promotes, encourages or instigates
the commission of the crime.” (People v. Cooper (1991) 53 Cal.3d
1158, 1164.) “Among the factors which may be considered in
determining aiding and abetting are: presence at the crime
scene, companionship, and conduct before and after the offense.”
(In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
“A conspiracy exists where two or more people agree
to commit a crime, they specifically intend both to agree and
to commit the crime, and one of them performs an overt act
in furtherance of their agreement. (§§ 182, subd. (a)(1), 184.)”
(Kopp, supra, 38 Cal.App.5th at p. 83.) “[T]he crime of conspiracy
to commit murder requires a finding of unlawful intent to kill,
i.e., express malice.” (Cortez, supra, 18 Cal.4th at p. 1226.)
“ ‘Evidence is sufficient to prove a conspiracy to commit
a crime “if it supports an inference that the parties positively
or tacitly came to a mutual understanding to commit a crime.
[Citation.] The existence of a conspiracy may be inferred from
the conduct, relationship, interests, and activities of the alleged
57
conspirators before and during the alleged conspiracy.” ’ ” (People
v. Maciel (2013) 57 Cal.4th 482, 515–516.) The agreement
element of conspiracy must often be proved circumstantially.
(People v. Homick (2012) 55 Cal.4th 816, 870.) “While mere
association does not prove a criminal conspiracy [citation],
common gang membership may be part of circumstantial
evidence supporting the inference of a conspiracy.” (People v.
Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20.)
c. Conspiracy and attempt to murder Reeves
Grace argues his convictions for conspiracy to murder and
attempt to murder Reeves must be reversed because there is
insufficient evidence showing he knew Washington and Hughes
intended to kill Reeves and shared in that intention. He insists
the evidence instead shows Washington and Hughes shot Reeves
in response to a sudden argument, rather than a plan to ambush
and kill her.
As Grace seems to concede, the record contains
overwhelming evidence showing he formed a plan with
Washington to lure Reeves to the location where Washington
and Hughes shot her. Contrary to Grace’s contentions, there
is also ample evidence that he knew Washington and Hughes
intended to kill Reeves at that location, and he shared in
that intention.
On February 3, 2017, for example, Grace and Washington
discussed over social media Grace’s efforts to gain Reeves’s
trust and lure her out of hiding. Grace asked Washington,
“ ‘[W]hat you want me to do?’ ” Washington replied, “ ‘Cap her
or something,’ ” which meant “shoot her.” Grace responded,
“ ‘Owekilla,’ ” indicating he was in agreement.
58
Grace’s statements to the Perkins agent provide additional
support for a finding that he intended to kill Reeves. When the
agent asked Grace if an argument happened immediately before
Hughes and Washington shot Reeves, Grace responded, “[n]ah,
like nah,” which suggests they had planned the shooting in
advance.19 Grace also told the agent he “put the whole play
in motion” with Reeves, and he acknowledged his social media
messages would make it appear that he “led her in for the kill.”
Although Grace denied being the actual shooter, he never denied
that the “whole play” included shooting and attempting to kill
Reeves.
That Grace knew and shared Washington’s and Hughes’s
murderous intentions is further supported by evidence showing
he had witnessed the Taylor shooting just days earlier. Like
Reeves, Taylor was Washington’s ex-girlfriend and feuding with
Hughes. Given these parallels, it is reasonable to infer Grace
was aware Washington and Hughes intended something similar
with Reeves. That Grace nevertheless continued to assist them
indicates he shared in that intention.
Based on this evidence, the jury reasonably could have
concluded Grace and Washington formed an agreement to
kill Reeves, and both men committed numerous overt acts
in furtherance of that agreement, including luring Reeves
to 77th and Raymond, and shooting her several times. From
19 Grace insists that when he said “[n]ah, like nah,” he was
responding to the agent’s question, “[A] motherfucker just didn’t
roll up and pop her, right?” While that is certainly a reasonable
interpretation, it is not the only one, and we must view the
evidence in the light most favorable to the judgment. (Burton,
supra, 143 Cal.App.4th at p. 451.)
59
the same evidence, the jury reasonably could have concluded
Grace aided and abetted Washington’s and Hughes’s attempts
to murder Reeves. Accordingly, substantial evidence supports
his convictions for conspiracy to murder and attempt to murder
Reeves.
d. First degree murder of Reeves’s fetus
Grace argues there is no evidence—let alone substantial
evidence—that he intended to kill Reeves’s fetus or that he acted
with premeditation and deliberation.
People v. Bunyard (1988) 45 Cal.3d 1189 (Bunyard)20
is instructive on the issue. In that case, the defendant hired
a friend to kill his pregnant wife, and the jury convicted him
of first degree murder of the fetus. (Id. at p. 1200.) On appeal,
the defendant argued there was insufficient evidence showing he
harbored express malice toward the fetus. (Id. at p. 1213.) The
Supreme Court disagreed, explaining that “because of the unique
relationship between a mother and her unborn child, death of
the fetus was certain and inevitable, not merely highly probable.”
(Id. at p. 1233.) Further, because the baby’s birth was expected
any day, had “defendant not intended to kill the fetus, it would
have been easy enough to delay implementation of the plan until
after the birth . . . .” (Ibid.)
Comparable evidence supports Grace’s conviction for first
degree murder of Reeves’s fetus. As Grace concedes, the jury
reasonably could have found he knew Reeves was pregnant
when he lured her to 77th and Raymond. Moreover, as discussed
above, there is substantial evidence that Grace knew Washington
20 Abrogated on other grounds by People v. Diaz (2015) 60
Cal.4th 1176, 1190–1191.
60
and Hughes intended to kill Reeves and shared in that intention.
The jury reasonably could have inferred that, “because of the
unique relationship between a mother and her unborn child,”
Grace knew it was “certain and inevitable” that killing Reeves
would also kill her fetus. (Bunyard, supra, 45 Cal.3d at p. 1233.)
Grace nevertheless went forward with the plan, rather than
waiting until after Reeves gave birth. From this, the jury
reasonably could have concluded Grace knew Washington
and Hughes intended to kill both Reeves and her fetus, and
he shared in that intention. For the same reasons, the jury
could have relied on the evidence showing Grace premeditated
and deliberated the attempted murder of Reeves—which was
overwhelming—to find he also premeditated and deliberated
the murder of the fetus.
Grace contends the jury could not have reasonably
concluded he acted with premeditation and deliberation because
there is no evidence showing he had animus toward the fetus,
made specific plans to kill it, or instructed the other defendants
to shoot Reeves in a way that would do so. (See People v.
Mendoza (2011) 52 Cal.4th 1056, 1069 [courts may look to
evidence of planning activity, preexisting motive, and manner
of killing to assist in reviewing the sufficiency of the evidence
supporting findings of premeditation and deliberation].)
Although this type of evidence is typically present in a
premediated murder, its absence here is not definitive in light
of the prosecution’s theory that Grace aided and abetted the
killing as a favor to Washington. If the jury accepted that theory
—which finds ample support in the record—it is irrelevant that
Grace did not have animus toward the fetus, have a specific plan
for how to kill it, or direct the other defendants to do so.
61
e. Conspiracy to murder Taylor
Grace argues his conviction for conspiracy to murder Taylor
must be reversed because there is no evidence showing he agreed
to kill her.
The evidence shows the following: Taylor was
Washington’s ex-girlfriend and feuding with Hughes on social
media. The day of the shooting, Washington, Grace, Hughes,
and at least two other men drove to an apartment belonging to
Taylor’s mother, Octavia Neil, who was caring for Washington’s
child at the time. Neil refused to give the child to Washington
after she spoke to Taylor on the phone.
After Washington left Neil’s apartment, he and Grace
got into an argument with another man in the apartment’s
parking lot. Washington was armed with a gun, and Grace
made a motion to his waist suggesting he, too, was armed. After
a security guard told them he had called the police, Washington,
Grace, and Hughes returned to Washington’s car and drove away.
Around this time, Washington made several calls to Brejae,
who was driving Taylor in her car. Someone else called Brejae
and sent Taylor a message asking, “[T]his you in front of us?”
and “ ‘Is that you in the gray car?’ ” Washington then pulled his
car alongside Brejae’s car, and one of his backseat passengers
pointed a gun out the window. Hughes told Washington to
“shoot [them],” and Washington fired approximately seven shots
in Taylor’s direction.
From this evidence, the jury reasonably could have inferred
that Washington left Neil’s apartment intending to find and kill
Taylor in retaliation for her refusal to allow him to spend time
with his child. The jury also reasonably could have inferred that
all of the passengers in Washington’s car, including Grace, knew
62
of his intentions and tacitly agreed to help him carry them out.
The occupants clearly discussed Washington’s plan ahead of time,
as evidenced by the fact that a backseat passenger immediately
pointed a gun at Brejae’s car when Washington pulled
alongside it. It is also reasonable to infer that Grace—who
was Washington’s friend and fellow gang member—shared
Washington’s murderous intentions. Indeed, at the time, Grace
was actively helping Washington find and attempt to murder
Storm Reeves, who, like Taylor, was Washington’s ex-girlfriend
and feuding with Hughes.
Grace posits various reasons why the evidence is
insufficient to prove a conspiracy, none of which is persuasive.
First, he contends his role in the Reeves shooting is irrelevant
because there is no evidence that he knew Washington intended
to kill her. Not so. As discussed above, several weeks before
the Taylor shooting, Washington suggested Grace “cap” Reeves,
to which Grace responded, “ ‘Owekilla.’ ” It is reasonable to infer
from this exchange that, at the time of the Taylor shooting, Grace
knew Washington wanted to kill Reeves and was actively helping
him attempt to do so.
Grace next contends his gang affiliation alone is not
sufficient to show he was part of a conspiracy with Washington.
We agree. Grace’s conspiracy conviction, however, is supported
by more than just his gang affiliation. The fact that Grace was
a member of the same gang as Washington simply helps explain
why he would agree to murder Taylor, whom he otherwise had
no apparent motive to kill.
Grace also argues there is insufficient evidence that he
was armed during the confrontation with the resident in Neil’s
parking lot. Even if that were true, it is largely beside the point.
63
If Grace were armed, it would help show he and Washington
intended to kill Taylor before going to Neil’s apartment.
However, as discussed above, the jury reasonably could have
concluded they agreed to kill Taylor after Neil refused to allow
Washington to take his child. If so, the fact that Grace was
unarmed while at Neil’s apartment is wholly irrelevant.
Next, Grace argues the jury could not have reasonably
concluded he and Washington intended to kill Taylor when
they left Neil’s apartment because there is no evidence showing
anyone in the group knew Taylor’s location at the time. He
insists it is pure coincidence that they came across Brejae’s car,
in which Taylor was a passenger. Grace, however, ignores phone
records showing Washington made several calls to Brejae around
the time he left Neil’s apartment. Brejae clearly knew Taylor’s
location, as Taylor was a passenger in her car at the time.
Taylor, moreover, told a detective she had an app on her phone
that allowed others to track her location, which she believed
Washington used to find her. While far from definitive, this
is enough to reject Grace’s claim that he and Washington
had no way to locate Taylor.
We are similarly unpersuaded by Grace’s contention that
the circumstances of the shooting show Washington did not
intend to kill Taylor. In support, Grace points to evidence that
Washington fired as many as seven shots, but he struck Taylor
only once in the buttocks. As we discussed above, the evidence
also shows Washington fired the shots from one moving car into
another, while his passenger controlled the steering wheel and
his car “wiggled.” Under these circumstances, it is not surprising
that Washington may have missed his target with most of his
shots.
64
Grace further contends the jury could not have reasonably
inferred he was in the car during the shooting because the
evidence shows Washington picked up passengers after leaving
Neil’s apartment. Although not entirely clear, we presume Grace
is relying on the fact that Taylor told detectives Washington had
at least five passengers in his car, whereas the surveillance video
shows only four people with Washington at Neil’s apartment.
Grace, however, overlooks the possibility that another passenger
was waiting outside the view of the surveillance camera. In any
event, even if Washington picked up an additional passenger
at some point, there is no reason to believe he would have
dropped off Grace at the same time.
Grace also points to the lack of evidence that he aided
and abetted the actual shooting as proof that he was not involved
in a conspiracy. As Grace seems to concede, however, the
prosecutor was not required to show he aided and abetted the
actual shooting to prove a conspiracy. Although such evidence
certainly would have provided further support for his conviction,
it was not necessary. Accordingly, the lack of evidence that he
aided and abetted the shooting does not require reversal of
the conspiracy conviction.
Finally, Grace contends the fact that he did not admit his
involvement in the Taylor shooting to the Perkins agent shows
he was not involved. While perhaps helpful to Grace’s case, the
lack of an admission is far from definitive, especially considering
Grace and the agent never directly discussed the circumstances
of the Taylor shooting. Grace’s argument, therefore, is nothing
more than a veiled attempt to have us reweigh the evidence,
which we refuse to do on appeal. (See Jennings, supra, 50
65
Cal.4th at p. 638 [the reviewing court does not reweigh the
evidence when considering the sufficiency of the evidence].)
12. The trial court did not err by admitting evidence that
Grace offered to plead guilty to shooting Reeves
Grace contends the trial court erred by admitting into
evidence his unsolicited comments that he wanted to plead guilty
to “shooting” Reeves. He argues the comments were inadmissible
because they were privileged, hearsay, and likely to confuse and
mislead the jury. He also argues the admission of the evidence
violated his federal constitutional right to due process.
a. Background
During a break in the trial, and outside the jury’s presence,
Grace made a comment that the court reporter did not transcribe.
Grace’s counsel responded, “I told him that’s not going to
happen.” Grace then said, “I’ll plead guilty to killing Storm
[Reeves]—or shooting Storm.” A few moments later, he
reiterated, “I plead guilty to shooting Storm.”
The court told Grace, “[T]he People have moved forward
with the trial. All right. So as far as negotiations with the
People, that time passed a long time ago. All right. If you
were to plead open to the court, you would have to plead [to]
everything. It’s not a question of, hey, can I pick and choose
what I plead to and how I plead to it.” The court asked Grace
if he wanted to speak with his counsel. Grace said no.
Washington told the court he intended to introduce
Grace’s statements into evidence, apparently to show that Grace
—and not Washington—shot Reeves. Grace objected, arguing
his statements were inadmissible as “an offer to the plea
negotiations.” His defense counsel explained that, before Grace
made the comments, they had discussed the fact that under
66
the youthful-offender parole law, Grace would be eligible for
parole after serving 25 years, no matter how long his term.
Grace then told his counsel he was going to plead guilty to
shooting Reeves, but not to the other charges.
The prosecutor initially indicated he also intended to
present Grace’s comments to the jury, which he believed were
an attempt to take the fall for Washington. Later, the prosecutor
apparently changed his mind and objected to their admission.
The prosecutor expressed concern that the jury might be confused
about Grace’s motivations unless it learned about his discussions
with counsel regarding the youthful-offender parole law. The
prosecutor, however, did not ask the court to rule on that issue,
and instead indicated he was simply “put[ting] that out there
for a discussion point down the road . . . .” Grace did not
comment on the issue.
The court overruled Grace’s objection and concluded the
comments were admissible as declarations against penal interest.
By stipulation, the prosecutor read a transcript of the comments
to the jury during his case-in-chief. The prosecutor argued in
closing that after hearing the Perkins evidence played at trial,
Grace recognized the jury was likely to convict him and he
raised a “white flag.” The prosecutor also argued Grace made
the comments to help Washington, who, unlike Grace, was
charged with personally using a firearm.
b. Grace’s comments were not privileged
Grace first argues the trial court erred in admitting his
comments because they were privileged offers to plead guilty.
Evidence Code section 1153 provides that “an offer to plead
guilty to the crime charged or to any other crime, made by the
defendant in a criminal action is inadmissible . . . .” The purpose
67
of Evidence Code section 1153 is “ ‘to promote the public interest
by encouraging the settlement of criminal cases without the
necessity of a trial.’ ” (People v. Leonard (2007) 40 Cal.4th 1370,
1404 (Leonard).) In light of this purpose, “the statutory bar
applies only to statements made in the context of bona fide plea
negotiations.” (People v. Magana (1993) 17 Cal.App.4th 1371,
1376.)
In People v. Sirhan (1972) 7 Cal.3d 710,21 the defendant
told the court during a break in trial that he wanted to plead
guilty to first degree murder. When the court asked him why,
the defendant responded, “ ‘I killed [the victim] willfully,
premeditatively, with twenty years of malice aforethought;
that is why.’ ” (Id. at pp. 744–745.) The Supreme Court held
the comments were not privileged, explaining that “the
Legislature intended to exclude solely withdrawn guilty pleas
and bona fide offers to plead guilty and did not intend to
exclude outbursts by an angry defendant during the trial even
if accompanied by an expression of a desire to plead guilty.
Such outbursts, of course, would not lead to the settlement
of the criminal case without a trial and ordinarily would not
end the trial but instead would merely disrupt it. Here it is
apparent that [the defendant’s] admission was made during
such an outburst rather than during a bona fide offer to plead
guilty.” (Id. at pp. 745–746.)
The same is true here. Taken literally, Grace’s offer
to plead guilty to “shooting” Reeves could not reasonably be
construed as bona fide. The prosecution’s theory was that
21 Overruled on other grounds by Hawkins v. Superior
Court, Etc. (1978) 22 Cal.3d 584, 593, fn. 7.
68
Washington and Hughes shot Reeves, and Grace acted as an
aider and abettor. Consistent with that theory, the People
alleged personal use firearm enhancement allegations against
only Washington and Hughes. Grace could not “plead guilty”
to a crime or enhancement with which he was not charged.
Even if we were to construe the comments as an offer to
plead guilty as an aider and abettor, Grace has not shown they
were privileged. Like the defendant in Sirhan, Grace made
the unsolicited comments in the midst of trial and while there
were no ongoing plea negotiations with the prosecution. Grace,
moreover, did not ask for any concessions in return for his plea,
which is a defining characteristic of a plea negotiation. Further,
it is reasonable to infer from counsel’s immediate response to
Grace’s initial outburst—“I told him that’s not going to happen”
—that counsel had informed Grace he could not plead guilty to
a single count at that stage of the case. Excluding statements
of this kind and under these circumstances would not encourage
the settlement of criminal cases. The trial court, therefore,
properly concluded the statements were not privileged under
Evidence Code section 1153. (See Leonard, supra, 40 Cal.4th at
p. 1404 [defendant’s unsolicited statement “I am guilty” during
a change of venue hearing was not privileged because there
were no plea negotiations underway and excluding that type
of statement would not encourage settlement]; People v. Posten
(1980) 108 Cal.App.3d 633, 647–648 [defendant’s offers to plead
guilty made to police officers were not privileged because they
were not made in the course of bona fide plea negotiations].)
Grace alternatively contends the trial court failed to
make the ultimate determination of whether his comments
were privileged, instead leaving the issue for the jury to decide.
69
In support, he points to two instances where the court noted
“argument[s] could be made” that the statements were part of
plea negotiations. The record does not support Grace’s claim.
It is clear from context the court was merely noting that Grace’s
privilege argument was colorable. The court did not instruct
the jury on Evidence Code section 1153, nor did it instruct
the jury to decide whether the comments were privileged.
On this record, it is apparent the court did not submit the
privilege issue to the jury.
c. Grace’s comments were not inadmissible hearsay
Grace contends the trial court erred in finding his
comments were admissible under the declarations against
penal interest exception to the hearsay rule. He asserts his
comments were not against his penal interest because the
“very reason defendants make a plea offer and admit to some
level of guilt is the hope of leniency or some other benefit
compared to the alternative.” Relatedly, he argues a guilty plea
was in his interest because it would have allowed him to gain
favor with Washington while giving up nothing in return.
As noted above, Evidence Code section 1230 provides an
exception to the hearsay rule for an out-of-court statement that
so far subjected the declarant to the risk of criminal liability
that a reasonable person in his position would not have made it
unless he believed it to be true. (Evid. Code, § 1230.) We review
a trial court’s admission of hearsay evidence under Evidence
Code section 1230 for an abuse of discretion. (Grimes, supra,
1 Cal.5th at p. 711.)
At the outset, Grace forfeited his arguments by failing to
object to the evidence on this basis in the trial court. (See People
v. Stevens (2015) 62 Cal.4th 325, 333 [the failure to object to
70
hearsay at trial forfeits an appellate claim that the evidence
was improperly admitted].) Although somewhat unclear, Grace
seems to suggest he was not required to make an objection
because the trial court overruled the prosecutor’s objection on
the same grounds. The record belies this claim. Contrary to
Grace’s contentions, the prosecutor actually suggested to the
court that Grace’s comments were declarations against penal
interest; the prosecutor questioned only whether Grace was
“unavailable” for purposes of the exception. The court, therefore,
never considered the arguments Grace now makes. His failure
to raise the issue below forfeits it on appeal.
Even if we were to overlook the forfeiture, we would reject
Grace’s arguments on the merits. Although the court ruled that
Washington could introduce the comments as statements against
penal interest, the prosecutor ultimately introduced them during
his case-in-chief. Grace readily concedes the prosecutor was free
to do so under the party admissions exception to the hearsay rule.
(See Evid. Code, § 1220.) Because the evidence was admissible
on this basis, we must affirm, regardless of whether the trial
court correctly found the comments were statements against
penal interest.22 (See People v. Chism (2014) 58 Cal.4th 1266,
1295, fn. 12 [“ ‘we review the ruling, not the court’s reasoning,
and, if the ruling was correct on any ground, we affirm’ ”].) In
any event, contrary to Grace’s contentions, “a guilty plea falls
within the hearsay rule exception for declarations against penal
interest.” (People v. Cummings (1993) 4 Cal.4th 1233, 1321,
22 We decline Grace’s invitation to speculate as to whether
the prosecutor would have introduced the comments had the
court not ruled they were admissible as statements against
penal interest.
71
abrogated on other grounds by People v. Merritt (2017) 2 Cal.5th
819, 821.) Accordingly, there is no merit to Grace’s claim that
the trial court should have excluded the evidence under the
hearsay rule.
d. The evidence was not inadmissible under Evidence
Code section 352
Grace argues the trial court should have excluded his
comments under Evidence Code section 352. He contends there
was a substantial risk that the evidence would confuse the issues
or mislead the jurors given their unfamiliarity with the youthful-
offender parole law.
Evidence is not inadmissible under Evidence Code section
352 unless the probative value is substantially outweighed by
the probability of a substantial danger of confusing the issues
or misleading the jury. (People v. Fruits (2016) 247 Cal.App.4th
188, 201, 205.) We review a trial court’s decision to admit
evidence over an Evidence Code section 352 objection for abuse
of discretion. (People v. Rocha (2013) 221 Cal.App.4th 1385,
1397.)
Once again, Grace forfeited this issue by failing to raise
it below. (People v. Valdez (2012) 55 Cal.4th 82, 138.) Grace
did not object under Evidence Code section 352, nor did he seek
to introduce evidence related to the youthful-offender parole law
at trial. Grace asserts he was not required to raise a specific
Evidence Code section 352 objection because the trial court
“recognized that all evidentiary objections encompassed a section
352 component.” It is true that the court made a comment to
that effect while considering objections to voluminous social
media documents. Considered in context, however, it is apparent
the court’s comment was limited to those specific documents;
72
the court was not making a blanket ruling that every evidentiary
objection in the entire case encompassed an Evidence Code
section 352 component.
Even if we were to overlook the forfeiture, we would reject
Grace’s argument on the merits. According to Grace, knowledge
of the youthful-offender parole law was necessary for the jury
to understand how his offer to plead guilty could have helped
Washington without harming himself in return. It is not
apparent, and Grace does not meaningfully explain, why that
would be so. Under the youthful-offender parole law, certain
youthful offenders are eligible for parole after serving a set
number of years, no matter how long their total sentences.
(See § 3051.) When Grace made the comments, however,
he had not yet been convicted of or sentenced for any crimes.
Nor was it a foregone conclusion that he would be.
Even assuming Grace believed he would be convicted
of the charges involving Reeves and her fetus, it is still not
apparent how the jury’s knowledge of the youthful-offender
parole law would have benefited him. Grace, therefore, has
not shown knowledge of the law was necessary for the jury
to understand and evaluate the evidence. The court did not
abuse its discretion by failing to exclude the evidence under
Evidence Code section 352.
e. Due process
Grace contends the admission of his comments violated
his federal constitutional right to due process. We disagree. As
discussed above, the trial court properly admitted the evidence
under California law, and Grace fails meaningfully to explain
how its admission otherwise rendered the trial fundamentally
unfair such that it amounted to a violation of due process.
73
(See People v. Boyette (2002) 29 Cal.4th 381, 414 [generally,
the ordinary rules of evidence do not impermissibly infringe
on the accused’s constitutional rights].)
13. We reverse the court’s order that Grace pay victim
restitution
At Grace’s sentencing, the trial court inadvertently failed
to address the issue of direct victim restitution. At some point
later that day, Grace’s counsel represented to the court that
Grace had agreed to pay $637.50 in victim restitution. The
court then ordered he pay restitution in that amount.
Grace contends this was error because the record does not
reflect that he was present when the court made the restitution
order, or that he waived his presence. (See People v. Nieves
(2021) 11 Cal.5th 404, 508 [a defendant has a constitutional right
to be present at a restitution hearing].) The Attorney General
concedes the error, which we accept. Accordingly, we reverse
the restitution order and remand the case for the court to conduct
further proceedings in accordance with this opinion.
14. We reject Hughes’s arguments related to the firearm
enhancement allegations
As to Hughes, the jury found true several allegations that
a principal discharged a firearm, which proximately caused great
bodily injury or death “within the meaning of Penal Code section
12022.53[, subdivisions] (d) and (e)(1).” Section 12022.53,
subdivision (d), provides a 25-year sentencing enhancement
for a defendant who, in the commission of certain felonies,
“personally and intentionally discharges a firearm and
proximately causes great bodily injury . . . or death . . . .”
Section 12022.53, subdivision (e)(1) states the enhancement
in subdivision (d) also applies to a person who is a “principal
74
in the commission of an offense,” but only if (1) the person
violated the gang enhancement statute (§ 186.22, subd. (b));
and (2) a principal in the offense committed an act specified
in subdivision (d).
Hughes contends that, because the jury did not find she
violated the gang enhancement statute, it did not find true all the
elements required for an enhancement under section 12022.53,
subdivision (e)(1). As a result, she argues, the true findings on
allegations that reference section 12022.53, subdivision (e)(1)
must be reversed. The Attorney General concedes the issue.
We, however, find no error.
Contrary to Hughes’s suggestions, the verdict forms did not
ask the jury to decide whether she was subject to enhancements
under section 12022.53, subdivision (e)(1). Instead, the forms
asked the jury only to make one of the factual determinations
necessary for the enhancements: that a principal discharged a
firearm, which proximately caused great bodily injury or death.
(See § 12022.53, subds. (d), (e)(1)(B).) The references in the
verdict forms to section 12022.53, subdivision (e)(1) were
superfluous, at least as far as the jury was concerned. The trial
court, moreover, correctly declined to impose the enhancements
on Hughes in light of the jury’s failure to find she violated the
gang enhancement statute. Accordingly, there is no error.
15. The court erroneously imposed a 25-year firearm
enhancement on Hughes
As to Hughes, the jury found the firearm enhancement
allegations not true on count 5. Nevertheless, at sentencing,
the court stated the jury found the allegations true, and it
imposed a consecutive 25-year-to-life term. Hughes argues,
and the Attorney General concedes, this was error. We agree.
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We also agree with the parties that the proper remedy is to
vacate Hughes’s sentence and remand the case for resentencing.
16. There is no cumulative error requiring reversal
Defendants argue the cumulative effect of all the errors
at trial requires reversal of their convictions. “In examining
a claim of cumulative error, the critical question is whether
defendant received due process and a fair trial.” (People v.
Sedillo (2015) 235 Cal.App.4th 1037, 1068; accord, People v.
Rivas (2013) 214 Cal.App.4th 1410, 1436.) After reviewing
the entire record, we are satisfied that Defendants received
a trial that was fair and comported with due process.
17. The court must correct errors in Defendants’
abstracts of judgment
The jury convicted Defendants of first degree murder of
Reeves’s fetus in count 6. Defendants’ abstracts of judgment,
however, erroneously indicate the jury convicted them on count 6
of attempted murder of the fetus. On remand, the trial court
shall correct these errors.
DISPOSITION
As to Johnnie Lee Washington, we reverse his conviction
for attempt to murder the fetus (count 13) and affirm his
judgment in all other respects.
As to Aneesah Hughes, we reverse her conviction for
attempt to murder the fetus (count 13) and vacate her sentence
in light of the court’s erroneous imposition of a 25-year firearm
enhancement on count 5. We affirm her judgment in all other
respects. On remand, the court shall resentence Hughes in
accordance with this opinion.
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As to Jarrett Grace, we reverse his conviction for attempt
to murder the fetus (count 13) and reverse the victim restitution
order. We affirm his judgment in all other respects. On remand,
the trial court shall hold a hearing to reconsider the victim
restitution issue.
For all three defendants, the trial court is to prepare
amended abstracts of judgment and forward them to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
ADAMS, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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