People v. McMorries CA2/1 ( 2020 )

Filed 12/31/20 P. v. McMorries CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B298519
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA144696)
v.
CRAIG ALLEN MCMORRIES
et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, H. Clay Jacke, II, Judge. Affirmed in part,
reversed in part.
Chris R. Redburn, under appointment by the Court of
Appeal, for Defendant and Appellant Craig Allen McMorries.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant Daniel Garcia.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Nima Razfar,
Deputy Attorneys General, for Plaintiff and Respondent the
People of the State of California.
____________________________
A jury convicted defendants Craig Allen McMorries and
Daniel Garcia of one count each of first degree murder (Pen.
Code, § 187, subd. (a)),1 one count each of shooting at an occupied
building (§ 246), and two counts each of possession of a firearm
by a felon. (§ 29800, subd. (a)(1).) The jury also found true
allegations that the crimes were committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that each
defendant personally discharged a firearm causing great bodily
injury or death. (§ 12022.53, subd. (d).) The trial court imposed
an aggregate sentence of 65 years to life on each defendant.
The defendants raise separate challenges on appeal.
McMorries contends that his convictions must be reversed
because the trial court erred by failing to instruct the jury
that a prosecution witness was an accomplice, and because the
prosecutor committed misconduct by shifting the burden of proof
during closing arguments. He also contends that the court erred
by failing to stay under section 654 his sentence for shooting at
an occupied building. We disagree.
Garcia contends that one of his convictions for possession
of a firearm must be reversed because the crime is a continuing
1Subsequent unspecified statutory references are to the
Penal Code.
2
offense that he violated only once. In addition, Garcia contends
that the abstract of judgment must be amended to correctly
reflect the fines the trial court imposed, and to correct his credit
for time served. We agree with all of Garcia’s claims.2
FACTS AND PROCEEDINGS BELOW
The murder occurred at a detached residential garage
in Carson that operated as an informal casino, where people
would gather to play cards or use gambling machines installed
inside. At around 5:30 a.m. on October 6, 2017, approximately
15 people were inside the garage when they heard a knock at
the door. Franklin Atoigue answered the door and said, “Oh,
shit.” Two men fired six bullets into the garage, one of which
struck Atoigue in the chest, killing him. Apart from Atoigue,
none of the people inside the garage saw the shooters. Video
footage from surveillance cameras in the alley where the garage
was located showed a heavyset man fleeing from the garage at
5:37 a.m.
Approximately three weeks later, on October 25,
Los Angeles County Sheriff ’s deputies arrested McMorries’s
sister Trudy3 on a misdemeanor warrant. In a subsequent
interview, Trudy told a detective that McMorries had admitted
2 In his opening brief on appeal, Garcia contended that we
must remand the case for a new sentencing hearing because the
trial court was unaware that it could reduce his enhancement
for firearm use (§ 12022.53, subd. (d)) to a lesser enhancement.
In his reply brief, he recognized that this argument was without
merit and withdrew it. We agree with that determination.
3 We refer to Trudy McMorries by her first name in order
to distinguish her from defendant Craig Allen McMorries. We
intend no disrespect.
3
to her that he was involved in the murder. Trudy confronted
Garcia about it, and Garcia also admitted he was involved,
saying “[t]he garage door opened and the guy got killed.”
An officer showed Trudy the surveillance footage, and she
identified McMorries as the heavyset man fleeing from the
scene. According to Trudy, McMorries was a member of the
Carson 13 gang, and Garcia was a member of the Catskill
gang. The two gangs are allied with each other against
the Scott Park Piru gang, a predominantly Samoan gang in
Carson. Atoigue was not a gang member, but he appeared to
be of Samoan ancestry. At trial, Trudy testified that she did not
remember most of the statements she made to police, and that
she told police what they wanted to hear for fear that they would
take her daughter away. In a jailhouse phone call after Trudy
testified, McMorries told his mother that Trudy had done well.
McMorries’s mother said, “I told her what to do. I hope she
listened.” McMorries answered, “She did.”
The day after Trudy told the detective about McMorries’s
involvement in the murder, sheriff ’s deputies arrested McMorries
as he was driving a pickup truck accompanied by K.S. The truck
belonged to K.S.’s husband. Deputies searched the vehicle and
discovered a loaded nine-millimeter Ruger gun locked in a
compartment in the rear of the vehicle. In an interview with a
detective, K.S. said that the gun belonged to McMorries, and that
she had seen him the day before with the gun in his pants and
some bullets in his pocket. At trial, K.S. recanted her previous
statements and claimed that the voice in the recording of the
interview was not hers.
On the same day that McMorries was arrested, sheriff ’s
deputies spotted Garcia at a nearby condominium complex.
4
When Garcia saw the deputies, he immediately began running
away and discarded a backpack he had been wearing. The
deputies searched the area and recovered the backpack. Inside,
they discovered a loaded .380 caliber Bersa handgun, as well as
mail belonging to Garcia.
Criminalists at the Sheriff ’s Department determined that
the bullets and casings recovered from the scene of the murder
came from the firearms recovered during Garcia and McMorries’s
arrests, and that the .380 bullet that killed Atoigue had been
fired from the gun discovered in Garcia’s backpack. DNA from
the gun recovered during McMorries’s arrest matched McMorries.
On December 4, 2017, sheriff ’s deputies arrested Garcia’s
girlfriend Lucy Barbic on suspicion that she was an accessory to
the murder. Barbic told police that on the night of the murder,
she was “hanging out” with Garcia in his garage, approximately
one mile away from the location of the shooting. McMorries was
present, as was another man, Robert Sedano.4 The three men
left the garage while Barbic remained inside with a woman
named Sooyoung. A few minutes later, Barbic heard gunshots.
Garcia called Barbic on her cellular phone and asked her to come
pick him up because “[t]hey’re shooting.” At around the same
time, Sedano returned and told Barbic and Sooyoung that they
had to leave. Barbic left and walked back to her vehicle, where
she saw McMorries running toward the garage. He was sweaty,
breathing heavily, carrying a firearm and had a crazy look in
his eyes. During the next hour, Garcia and Barbic called and
4 The prosecution accused Sedano of acting as a lookout in
the murder and tried him alongside McMorries and Garcia. The
jury was unable to reach a verdict as to Sedano, and the court
declared a mistrial.
5
messaged one another several times. Garcia asked Barbic to pick
him up, but Barbic refused to do so and went to a friend’s house
instead.
Later that day, Garcia told Barbic that “the Samoans were
over there shooting at them, and they had to go shoot back at
them.” The next day, Barbic overheard a phone conversation
in which McMorries admitted that they had “murders on
their . . . gun[s].” Barbic confirmed that the guns the deputies
recovered belonged to the defendants, and that McMorries was
the man seen in the surveillance video.
Between 5:30 a.m. and 5:40 a.m. on October 6, 2017,
the same time that the shooting occurred, McMorries’s cellular
phone was used to call the customer service number at the
cable company Spectrum, and then immediately afterward to
call Southern California Edison. Data from the phone company
showed that the calls originated from the area near where
McMorries lived and where the murder took place. There was
no evidence of who used the phone to make the calls.
Following his arrest, Garcia communicated with Barbic
from jail via both phone calls and letters, and used code words
that Barbic interpreted to mean he was asking her to remove
items from his residence and help him establish an alibi. Barbic
agreed to help him.
DISCUSSION
A. Accomplice Instruction
McMorries contends that the trial court erred by failing
to instruct the jury sua sponte that Barbic was an accomplice
to the murder, and that her testimony alone was not sufficient
to convict him. We disagree. The evidence showed at most
6
that Barbic was an accessory after the fact, not an accomplice.
Furthermore, even if she were an accomplice, the error would
have been harmless because there was substantial corroborating
evidence connecting McMorries to the crime.
A defendant may not be convicted on the testimony
of an accomplice without corroboration by other evidence.
(§ 1111.) “When there is sufficient evidence that a witness
is an accomplice, the trial court is required on its own motion
to instruct the jury on the principles governing the law of
accomplices.” (People v. Frye (1998) 18 Cal.4th 894, 965–966,
disapproved on another ground by People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) The court’s failure to instruct the jury
on these principles, however, “ ‘is harmless if there is sufficient
corroborating evidence in the record.’ ” (People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 303, quoting People v. Lewis (2001)
26 Cal.4th 334, 370.) The evidence “is sufficient if it tends to
connect the defendant with the crime in such a way as to satisfy
the jury that the accomplice is telling the truth.” (People v.
Fauber (1992) 2 Cal.4th 792, 834; accord, 5 Witkin & Epstein,
Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 686, p. 1058.)
In this case, the trial court was not required to instruct
the jury on accomplice liability because the evidence showed
only that Barbic agreed to help Garcia remove items from his
bedroom and to help him establish an alibi. This was enough to
make her an accessory after the fact,5 but an accessory is not an
accomplice. (People v. Sully (1991) 53 Cal.3d 1195, 1227 (Sully).)
5Indeed, Barbic was charged as an accessory to the
murder. She admitted in her trial testimony that she received
immunity from prosecution in exchange for testifying against
defendants.
7
With no sufficient evidence that Barbic was “liable to prosecution
for the identical offense charged against the defendant on trial
in the cause in which the testimony of the accomplice is given”
(§ 1111), the trial court was not required to give an accomplice
instruction. McMorries argues that Barbic was an accomplice
because she was in a “love-hate relationship” with Garcia, was
associated with the gangs the defendants belonged to, and was
with the murderers just before and just after the killings. But
this is insufficient to make her an accomplice. Even if we assume
for the sake of argument that a reasonable jury could infer that
Barbic knew about or suspected defendants’ plan, no evidence
showed that she “promote[d], encourage[d], or assist[ed] the
perpetrator and share[d] the perpetrator’s criminal purpose,” as
is required for conviction as an aider and abettor. (Sully, supra,53 Cal.3d at p. 1227.)
Even if Barbic was an accomplice, the error in failing
to instruct the jury would have been harmless because there
was strong corroborating evidence of McMorries’s guilt. Other
witnesses, including his own sister, made statements to police
connecting McMorries to the crime. In addition, deputies
discovered one of the murder weapons with McMorries’s DNA
on it in a car McMorries was driving, and the passenger in the
car told a detective that she had seen McMorries with the gun.
Cases with similarly strong corroboration have led the Supreme
Court to determine that any error in failing to instruct the
jury on accomplice testimony was harmless. (E.g., People v.
Gonzalez and Soliz, supra, 52 Cal.4th at p. 303 [testimony
from a nonaccomplice regarding the defendant’s preparation for
a robbery, fingerprints on a vehicle used in the crime, and tape-
recorded statements by the defendant]; People v. Arias (1996)
8
13 Cal.4th 92, 143 [eyewitness testimony of a robbery, as well
as testimony from nonaccomplices that the defendant made
incriminating statements].)
B. Prosecutor Misconduct
McMorries contends that the prosecutor committed
misconduct by shifting the burden of proof to the defendant
to provide evidence that he was not guilty. We disagree. The
prosecutor’s statements were no more than “ ‘ “ ‘fair comment on
the evidence’ ” ’ ” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill)),
and did not constitute misconduct.
1. Relevant Proceedings
Information from McMorries’s cellular phone indicated
that it was used to call the cable company Spectrum for a
five-minute call beginning at 5:30 a.m. on October 17, 2016, and
then immediately afterward for a six-minute call to Southern
California Edison. This was almost exactly the time Atoigue was
killed. Phone company records showed that during these calls,
McMorries’s phone connected to a cellular tower located near
McMorries’s home and to the garage where the shooting took
place. In closing arguments, McMorries’s attorney argued that
the cellular phone data showed that McMorries was not guilty.
In her rebuttal argument, the prosecutor responded that
McMorries’s girlfriend K.S. might have made the calls. She
said, “[T]here’s a concept in the law called failure to call logical
witnesses. And so here’s what I tell you. If . . . McMorries was
really the person on the phone, catching up on his utility bills,
defense witness number one would have been Spectrum.”
McMorries objected that this argument improperly
shifted the burden of proof. The trial court responded that the
9
prosecutor “just acknowledged what her burden is. All right?
And that’s to prove guilt beyond a reasonable doubt. The
defendants have no burden.”
The prosecutor continued: “Failure to call logical
witnesses. Where is the person from Spectrum to say, ‘Craig
McMorries has an account; this is the account number; this is
the account number for the residence that it relates to; this is
the credit card that was used on October 6th, 2017’?
“How about defense witness number two, Southern
California Edison. ‘Craig McMorries has an account; this is
the account number; this is the residence it relates to; this is
the credit card that was used on that date and time.’
“So just keep that in mind. They have the same subpoena
power as I do.”
2. Legal Standard and Application
“A prosecutor is held to a standard higher than that
imposed on other attorneys because of the unique function he
or she performs in representing the interests, and in exercising
the sovereign power, of the state.” (Hill, supra, 17 Cal.4th at
p. 820.) “The standards governing review of [prosecutorial]
misconduct claims are settled. ‘A prosecutor who uses deceptive
or reprehensible methods to persuade the jury commits
misconduct, and such actions require reversal under the federal
Constitution when they infect the trial with such “ ‘unfairness
as to make the resulting conviction a denial of due process.’ ”
(Darden v. Wainwright (1986) 477 U.S. 168, 181 . . . ; see
People v. Cash (2002) 28 Cal.4th 703, 733 . . . .) Under state
law, a prosecutor who uses such methods commits misconduct
even when those actions do not result in a fundamentally unfair
trial.’ ” (People v. Friend (2009) 47 Cal.4th 1, 29.)
10
Despite the higher standard that applies to a prosecutor’s
conduct, “[a] prosecutor is given wide latitude to vigorously argue
his or her case and to make fair comment upon the evidence,
including reasonable inferences or deductions that may be drawn
from the evidence.” (People v. Ledesma (2006) 39 Cal.4th 641,
726.) In particular, “prosecutorial comment upon a defendant’s
failure ‘to introduce material evidence or to call logical witnesses’
is not improper.” (People v. Wash (1993) 6 Cal.4th 215, 263.)
The prosecutor’s conduct in this case fell within the scope
of fair comment on the evidence. The prosecutor did not suggest
that McMorries bore the burden of proof regarding the ownership
of the cellular phone, but suggested that the jury should draw
an inference from the defense’s failure to call logical witnesses in
support of McMorries’s position. Moreover, we do not interpret
the prosecutor’s statement as an improper assertion “that
a particular person, if called, would give certain testimony.”
(5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal
Trial, § 762, p. 1186.) Instead, the prosecutor merely pointed
out that McMorries had failed to call witnesses who would have
given relevant testimony about who owned or had access to the
Spectrum and Southern California Edison accounts. If there was
a danger that the jury would misinterpret the burden of proof,
the trial court allayed it by telling the jury, in response to the
objection, that the defense did not bear the burden of proof.
C. Separate Sentence for Shooting at an Inhabited
Building
The trial court imposed on each defendant a sentence of
15 years to life for shooting at an occupied building (§ 246), to be
served consecutively to the sentence of 25 years to life for murder.
(§ 187, subd. (a).) McMorries contends that this was improper
11
because the murder and the shooting at an occupied building
were a single act for which only one punishment can apply.
(See § 654, subd. (a).) We disagree. “There is a multiple victim
exception to . . . section 654 which allows separate punishment
for each crime of violence against a different victim, even
though all crimes are part of an indivisible course of conduct
with a single principal objective.” (People v. Felix (2009) 172
Cal.App.4th 1618, 1630–1631 (Felix).) That exception applies
here, where in addition to killing Atoigue, the defendants
endangered the lives of approximately 15 people by firing
multiple bullets into the garage.
McMorries contends that the multiple-victim exception
does not apply because he did not know there were others
inside the garage. The claim that McMorries was ignorant
of the presence of others in the garage is dubious, given that
there were at least 10 people present inside the relatively
small garage at the time of the shooting, and that the garage
was known in the neighborhood as a location where people
gathered late into the night. Moreover, the multiple-victim
exception does not depend on a defendant’s actual knowledge
of the number of victims. The defendant is more culpable,
and therefore subject to multiple punishment, where he
“ ‘ “ ‘ “commits an act of violence with the intent to harm
more than one person or by means likely to cause harm to several
persons.” ’ ” ’ ” (People v. Centers (1999) 73 Cal.App.4th 84, 99,
italics added.) “[W]here the crime of shooting at an inhabited
residence is involved, a defendant need not be aware of the
identity or number of people in the house to be punished
separately for each victim.” (Felix, supra, 172 Cal.App.4th at
p. 1631.)
12
McMorries also argues that our Supreme Court’s opinion in
Neal v. State (1960) 55 Cal.2d 11, disapproved on another ground
by People v. Correa (2012) 54 Cal.4th 331, 344, bars separate
punishment for his offense of shooting at an occupied building.
We disagree. In Neal, the Court held that a defendant who
started a fire in a bedroom, severely burning its inhabitants,
could not be punished separately for arson and for attempted
murder. (Neal, supra, at pp. 20–21.) But in that case, there were
only two victims, and the defendant was convicted of two counts
of attempted murder. (Id. at p. 15.) In this case, by contrast, the
people present in the garage were victims of the shooting at an
occupied building, but not of murder. “As long as each violent
crime involves at least one different victim, section 654’s
prohibition against multiple punishment is not applicable.”
(People v. Masters (1987) 195 Cal.App.3d 1124, 1128 (Masters).)
Nor are we persuaded that the other people inside the
garage were not victims of shooting at an occupied building
because “[t]he focus of this offense is the inanimate target,” the
building the defendants shot at, rather than the people inside
the building. This claim misconstrues the law. Although a
defendant need not hit or come close to hitting a victim in order
to be guilty of shooting at an occupied building, “the offense
nonetheless is one that, viewed in the abstract . . . poses a great
risk or ‘high probability’ of death.” (People v. Hansen (1994)
9 Cal.4th 300, 310, overruled on another ground by People v.
Chun (2009) 45 Cal.4th 1172, 1199.) This is why it carries
a more severe punishment than shooting at an unoccupied
building. (Compare § 246 with § 247, subd. (b).) To argue that
a person inside the building that the defendant shoots at is not
a victim is to elevate semantics over substance. For this reason,
13
courts have not hesitated to apply the multiple-victim exception
to violations of section 246. (E.g., Felix, supra, 172 Cal.App.4th
at pp. 1630–1631; People v. Anderson (1990) 221 Cal.App.3d 331,
338–339; Masters, supra, 195 Cal.App.3d at p. 1128.) The trial
court did not err by doing so in this case.
Finally, McMorries argues that multiple punishment is
improper under People v. Canizales (2019) 7 Cal.5th 591, in
which the Supreme Court limited the application of the
“kill-zone” theory of attempted murder in cases where the
defendant attempts to kill one victim and places numerous
bystanders at risk. But Canizales applies to attempted murder.
It does not stand for the proposition that a defendant can never
be liable for other crimes that involve placing bystanders at risk.
McMorries was convicted of shooting at an occupied building, not
attempted murder. Canizales is irrelevant.
D. Multiple Punishment for Possession of a
Firearm
McMorries and Garcia were each charged with two counts
of possession of a firearm by a felon. (§ 29800, subd. (a)(1).) The
prosecution alleged that the first count occurred on the day of the
murder, and the second on the day each defendant was arrested.
Garcia contends that this was error because possession of a
firearm by a felon is a continuing offense, for which he could be
convicted only once. The Attorney General concedes that this is
correct, and we agree.
A continuing offense “ ‘is marked by a continuing duty
in the defendant to do an act which he fails to do. The offense
continues as long as the duty persists, and there is a failure to
perform that duty.’ [Citations.] Thus, when the law imposes an
affirmative obligation to act, the violation is complete at the first
14
instance the elements are met. It is nevertheless not completed
as long as the obligation remains unfulfilled. ‘The crime achieves
no finality until such time.’ ” (Wright v. Superior Court (1997) 15
Cal.4th 521, 525–526.) “The Supreme Court has recognized that
possession of a firearm by a felon is a continuing offense.” (People
v. Mason (2014) 232 Cal.App.4th 355, 365 (Mason).)
“ ‘In the case of continuing offenses, only one violation
occurs even though the proscribed conduct may extend over [an]
indefinite period.’ ” (Mason, supra, 232 Cal.App.4th at p. 365.)
In this case, there was evidence that Garcia and McMorries
possessed their handguns on the day of the murder, and that
they had them at the time of their arrest, with no indication
that they ever relinquished the weapons in the interim.
Consequently, they each committed the offense only once, and
could be convicted of only one count. (See id. at p. 366.) The
trial court erred by including a second count in each defendant’s
judgment.
The trial court imposed a concurrent sentence for each
violation of section 29800, subdivision (a)(1). The removal of
one count from each defendant’s sentence will therefore not affect
the aggregate length of the sentence, nor will it call into question
the trial court’s discretionary sentencing choices. For this reason,
we will strike one count of possession of a firearm by a felon from
each6 judgment, without ordering the trial court to hold a new
6 McMorries did not argue separately that one of his
convictions for possession of a firearm should be stricken.
Instead, he stated that he “joins in the arguments made in
the opening brief of Daniel Garcia to the extent they benefit
him.” The Attorney General contends that we should not
give McMorries the benefit of Garcia’s argument, noting that
15
sentencing hearing. (See People v. Shabazz (1985) 175
Cal.App.3d 468, 474.)
F. Correction of the Abstract of Judgment
At the sentencing hearing, the trial court ordered that
Garcia’s parole revocation and restitution fines be stayed. The
abstract of judgment, however, does not reflect the stay. Garcia
and the Attorney General argue that we should order the trial
court to correct the abstract of judgment. We agree that this is
proper and will do so. (See People v. Mitchell (2001) 26 Cal.4th
181, 185 [court may correct clerical errors at any time].)
Garcia also contends that the court erred in calculating
his credits for time served prior to sentencing. We agree. On
the date of sentencing, the trial court awarded Garcia 580 days
of credit for time served. Garcia was taken into custody on
October 26, 2017, and was not released on bail. The date of the
sentencing hearing was 583 days later, on May 31, 2019. We will
order the trial court to amend the abstract of judgment to correct
the miscalculation. (See People v. Acosta (1996) 48 Cal.App.4th
411, 420–421 [defendant may raise miscalculation of credits for
appellate counsel is required “to thoughtfully assess whether
such joinder is proper as to the specific claims and, if necessary,
to provide particularized argument in support of his or her
client’s ability to seek relief on that ground,” rather than to
make a cursory statement joining in any or all of a codefendant’s
claims. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
335, 363.) The Attorney General’s argument is well taken, but in
this case, we see no reason that McMorries is differently situated
from Garcia, nor that he is not entitled to relief on the same
basis.
16
the first time on appeal so long as he also raises other issues on
appeal].)
DISPOSITION
The second count of possession of a firearm by a felon
is reversed as to both Garcia and McMorries. On remand, the
trial court shall amend the judgment against each defendant
accordingly. In addition, as to Garcia, the trial court is ordered
to correct the abstract of judgment to reflect the stay of the parole
revocation and restitution fines, and to correct the number of
credits for time served. In all other respects, the judgments of
the trial court are affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
17