People v. Brown CA2/4 ( 2023 )

Filed 5/26/23 P. v. Brown CA2/4
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B309004
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA147507
v.
JEFFERY BROWN et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Tammy Chung Ryu, Judge. Reversed in part,
remanded with instructions.
Robert Booher, under appointment by the Court of Appeal,
for Defendant and Appellant Jeffery Brown.
Stephen M. Hinkle for Defendant and Appellant Chayce
Mitchell.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Shezad Thakor and
Heidi Salerno, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury found defendant and appellant Jeffery Brown guilty
of one count of first degree attempted murder. It found defendant
and appellant Chayce Mitchell guilty of three counts of first
degree attempted murder. The jury also found gang, firearm, and
great bodily injury allegations true with respect to both Brown
and Mitchell (“appellants”). Appellants separately raise
numerous contentions on appeal and join each other’s arguments.
We agree with Brown that his conviction must be reversed
because the jury was instructed it could convict him of attempted
murder under the natural and probable consequences doctrine.
After the trial, the Legislature codified the principle that the
natural and probable consequences doctrine is no longer a viable
theory of attempted murder liability. (Sen. Bill No. 775 (2021-
2022 Reg. Sess.) (“SB 775”) [amending Pen. Code,1 § 1170.95,
later renumbered to § 1172.6].) We therefore reverse the
judgment as it pertains to Brown and remand to permit a retrial
of Brown on a valid theory of attempted murder if the prosecution
so elects.
We also agree with Mitchell that: (1) two of his attempted
murder convictions must be reversed under People v. Canizales
(2019) 7 Cal.5th 591 (Canizales); and (2) in light of Assembly Bill
No. 333 (Stats. 2021, ch. 699) (“AB 333”), his case must be
remanded for a new trial on the gang allegations. In all other
respects, the judgment as it pertains to Mitchell is affirmed.
1 All undesignated statutory references are to the Penal
Code.
2
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an amended
information charging appellants in counts one through four with
attempted willful, deliberate and premeditated murder of four
intended victims. (§§ 664/187, subd. (a).) With respect to both
appellants, the information contained gang, firearm, and great
bodily injury enhancements on all counts. (§§ 186.22, subd.
(b)(1)(C), 12022.53, subds. (b), (c), (d), & (e)(1).) The court later
dismissed count four on the prosecution’s motion.
The jury convicted Brown on count one and acquitted him
on counts two and three. It also found the attempted murder was
premeditated and deliberate, was committed to benefit a criminal
street gang, and that a principal fired a gun, causing great bodily
injury. The jury found Mitchell guilty on all three counts and
found all allegations pertaining to him true.
The trial court sentenced Brown to life in state prison with
the possibility of parole on the attempted murder, plus 10 years
for a gun enhancement (§ 12022.53, subd. (b)), and stayed a 10-
year term on the gang enhancement. It sentenced Mitchell to 55
years to life in state prison, consisting of 15 years to life on count
1, a consecutive term of 15 years to life on count 2, and a
consecutive term of 25 years to life for the section 12022.53,
subdivision (d) gang enhancement on count 1.2
Appellants timely appealed.
2 The court imposed a concurrent sentence of 15 years to life
on count 3.
3
FACTUAL BACKGROUND
A. Prosecution Evidence
i. Summary
Appellants Brown and Mitchell were East Coast Crip gang
members who were enemies of Grape Street Crips. Grape Street
Crips were allies with the Hat Gang Crips. One afternoon,
appellants walked down an alley about 20 yards apart, carrying
firearms into Hat Gang territory. They approached a party whose
host was a Grape Street Crips associate and where other Grape
Street members were present. Brown came up behind Wayne
Givehand, a high-ranking Grape Street Crips member, said
“Fake Street,” intended as a disrespectful comment toward Grape
Street, and pulled out a firearm. Givehand saw the gun, punched
Brown, grabbed Brown’s wrist above his hand holding the gun,
and put him in a headlock. Mitchell shot Givehand in the lower
back. Brown told Mitchell to get Givehand off him. Mitchell shot
Givehand in the chest. Givehand ran away and Mitchell followed
him, shooting him several more times. Mitchell also shot and
wounded Dontae Pogues, John West Matthews, and another man
near Givehand.
When police later arrested Mitchell, he was in possession of
the gun that was used to shoot Givehand and the other victims.
After being arrested, Mitchell and Brown both admitted to the
police that they were in the alley the day of the shooting. They
also made statements to one another at the police station
suggesting consciousness of guilt, which officers recorded and
played to the jury. Mitchell later made statements suggesting
consciousness of guilt on a phone call with his girlfriend that was
also recorded and played for the jury. Surveillance video captured
4
part of the shooting. A gang police officer who had encountered
Mitchell on 20-30 prior occasions offered lay testimony to the jury
that the video showed Mitchell was the shooter. A different gang
officer who had made contact with Mitchell on 60 prior occasions
offered the same testimony.
ii. The Shootings
On August 25, 2018, Tyna Johnson hosted a daytime
birthday party for her son’s first birthday on E. 92nd Street near
Compton Avenue. There were 100 children and 60 to 80 adults in
attendance. The party included a bouncy castle for the children.
Johnson was an associate of the Grape Street Crips. Four Grape
Street Crips members attended the party. One was Johnson’s
cousin, Givehand, who was a member of the Grape Street Crips
gang. He was there with his four-year-old son. Givehand stood
with his son next to his cousin near the alley, talking to other
party guests. Givehand heard someone say “Fake Street,” which
Grape Street Crips members consider a derogatory term, and
immediately respond to with violence. Hearing the term caused
Givehand to turn. He saw Brown, who was wearing a hoodie, pull
a gun out of his waistband. Givehand pushed his son out of the
way, punched Brown in the chin, grabbed Brown’s wrist above
the hand holding the gun, put Brown in a chokehold, and tried to
take his gun to prevent him from firing the weapon.
Appellant Mitchell shot Givehand in the back.3 Givehand
turned around and saw Mitchell in a hoodie with a gun. Brown
3 Although Givehand did not identify Mitchell and Brown in
court, as mentioned above, the prosecution presented other
evidence indicating Mitchell and Brown were the assailants,
including surveillance video of the incident.
5
said, “Get him off of me.” Givehand moved toward Mitchell, and
let go of Brown, who fell to the ground. Givehand reached for
Mitchell, but was too weak. Mitchell shot Givehand in the chest.
Givehand hid behind a car where he fell over. He got up, ran, and
again fell behind the side of the car. Mitchell stood over him.
Mitchell attempted to shoot Givehand again but his gun jammed.
Givehand kicked Mitchell, got up, and ran toward the backyard
of the house where the children were. Mitchell pursued
Givehand. Mitchell stood directly above another man, Givehand’s
cousin Darrell McNeely, and shot at him. McNeely got up and ran
away. Givehand ran to the house and dove inside the door.
Givehand then heard a total of six or seven shots before losing
consciousness. He was shot three times. The bullets pierced his
lung, and he lost one of his kidneys. As a result of his injuries,
Givehand spent six months in the hospital.
Johnson heard five to six shots while she was at the
neighbor’s apartment complex. She saw a shooter, who she
described as short,4 run past her down the alley, and jump over
the fence.
Another cousin of Johnson’s, John West Matthews, was
also at the party, hanging out in the back of the alley. When he
heard gunshots and saw everyone run, he ran into the backyard.
He heard seven shots and ran into the house. He went to his
sister’s house around the corner. When he got inside, his feet
started tingling. He took off his shoe to discover his foot was
bleeding and realized he had been shot.
Dontae Pogues, Johnson’s uncle, was also at the party. He
had lived with Johnson for 15 to 16 years and had moved out
before the party. He had his back to the alley when he heard
4 Appellant Mitchell is five feet six inches tall.
6
shots. He grabbed two kids and ran toward the house. He looked
back and saw two men in the alley. He was shot in the back of
both heels and was unable to walk or run. He heard seven to
eight gunshots. He went to the hospital and had surgery to
remove one of the bullets.
iii. Gun Evidence
At the scene of the shooting, police discovered four .22
caliber casings in the alley near a car. Forensic testing showed
the .22 caliber casings had been fired from the Walther .22
recovered during appellant Mitchell’s arrest. When the Walther
.22 was tested, the empty cartridge did not eject properly as a
semiautomatic weapon normally should, and failed to feed the
next bullet into the chamber. For each shot, the criminalist had
to manually pull back the slide to eject the cartridge to allow the
magazine to feed into the chamber.
Surveillance videos on each end of the alley captured the
shooting. In one of the videos, the gun misfired in the same
manner Givehand described. The shooter used the slide to clear
the malfunction. The video showed the shooter was left handed.
Mitchell is left handed.
iv. Gang Evidence and Identification of Appellants
As noted above, Grape Street Crips and Hat Gang Crips
are allies. The alley behind Johnson’s apartment was a Grape
Street Crips hangout controlled by the Hat Gang. Grape Street
Crips and East Coast Crips were “mortal enemies.”
Givehand is an active member and lieutenant in the Grape
Street Grips. A lieutenant is a leader who can make decisions
and direct other gang members. Givehand had a “beef” with East
Coast Crips because they did not like him. In a video, Givehand
7
rapped about the rivalry with East Coast Crips, making reference
to killing East Coast Crip members and being shot. Matthews,
one of the other men who was shot, had “GIP Ant” tattooed on his
neck, which stood for “Grape In Peace,” the Grape Street Crips
way of saying rest in peace to his nephew named Ant. Matthews
was a Grape Street affiliate, not a member, who earned the right
to have a Grape Street Crips tattoo. Pogues claimed he was a
former member of Grape Street Crips.
Police officers, who arrived within one to two minutes after
a 911 call, saw a large crowd of people screaming and crying, and
found Givehand in the living room of the house. Because the
shooting took place in a gang area, only one or two people would
talk the officers.
Officer Manuel Armenta, a gang enforcement officer, knew
Mitchell and was familiar with Brown. He had made 20 to 30
contacts with Mitchell since April 2018. Many of his contacts
were in Washington Park where East Coast Crips congregate; it
is a stronghold of a subset known as 89 East Coast Crips. Officer
Armenta observed Mitchell tagging “East Coast Crips” in
Washington Park. Mitchell’s moniker was C-Dog. Mitchell’s gang
tattoos included EC, for East Coast. Officer Armenta had made
10 to 15 contacts with Brown, which included detentions in
Washington Park. Half of the time he made contact with Brown,
Brown was with Mitchell. Brown’s gang moniker was Tiny.
Officer Armenta opined that the shooter in the alley
surveillance video was Mitchell. He based his opinion on the
person’s demeanor, mannerisms, walk, and when the hoodie fell
off, a clear view of a face that Armenta believed matched
Mitchell’s face. Also, the shooter’s hairstyle, body, build, stature,
and skin color matched Mitchell’s.
8
Gang expert Officer Hebert Ybanez testified that the East
Coast Crips were a criminal street gang with primary activities
consisting of narcotic sales, vandalism, robberies, burglaries,
shootings, firearm possession, and homicides. Officer Ybanez
believed appellants were East Coast Crips gang members, and he
had contact with each of them around 60 times. Appellants were
together 90 percent of the time he made contact with them.
Officer Ybanez testified gang members staggering their
arrival 30 yards apart was a common tactic used by gangs in
order to increase their chance of survival.5 The first shooter
would have a backup in case something went wrong.
On August 30, 2018, five days after the shooting, Officer
Ybanez made contact with Mitchell and noticed his hands were
scraped and had scabs. At the time, he did not have a “9” tattooed
on his face. Officer Ybanez contacted Mitchell on September 10,
2018, and noticed that he recently had a “9” tattooed on his face
and additional gang tattoos on his hands. Gang tattoos must be
earned; one cannot decide to get one without committing crimes
on behalf of the gang. The “9” tattoo was thus indicative that
Mitchell had committed a new crime related to the gang.
Based on a hypothetical question involving facts similar to
this case, Officer Ybanez opined that the crime would have been
committed both in association and for the benefit of a criminal
street gang.
Officer Ybanez also opined that the individual in the
surveillance video walking down the alley in a hoodie was Brown,
based on his mannerisms, walk, stature, and body type. He
5 Video evidence showed this was the manner in which
Brown and Mitchell approached the party just before the
shooting.
9
opined the second man walking down the alley 20 seconds later
wearing a hoodie was Mitchell, based on his walk, body structure,
and skin complexion. When the shooter’s hoodie came off, Officer
Ybanez recognized him as Mitchell.
v. Arrest of Appellants
On October 11, 2018, the police stopped a stolen car that
Mitchell was riding in as a passenger. The officers found a loaded
.22 semiautomatic Walther handgun with a bullet in the chamber
under the driver’s side rear seat cushion. Mitchell had time
between the police initiating the stop and the driver stopping to
conceal the handgun under the rear cushion. The officers
arrested Mitchell. At the jail, the police found a balled up piece of
tinfoil inside his underwear. An officer asked him what it was
and he told him, “Shells.” The officer asked, “Did you say shells?”
Mitchell responded, “I meant weed.” The officer said, “I thought
you said shells.” Mitchell replied, “It’s a new type of weed.” The
tinfoil contained seven .22 caliber rounds, which were the same
brand as the ones in the handgun found in the car.
Based on matching the firearm to the Givehand shooting,
on November 13, 2018, officers arrested appellants. Mitchell’s
phone contained photographs and videos relevant to the case and
gang membership. One photo was of Mitchell with a handgun on
his left hip. The gun was the same gun that he was arrested with
and that was used in the shooting.
vi. Detectives Interview Appellants; Jail House
Recordings
After their arrest, appellants Mitchell and Brown admitted
they were in the alley the day of the shooting. The detectives
placed Brown on a bench outside Mitchell’s jail cell where they
10
could not see each other but they could talk. Mitchell told Brown,
“We wasn’t even there . . . . They said that they just got us for
investigation. They want us to sing, cuz [¶] . . . . [¶] It’s not gonna
happen.” “Sing” meant tell on each other. Brown responded, “I’m
not gonna [Unintelligible] [¶]. . . . [¶] I said I don’t do R&B.” “I
don’t do R&B” meant he would not tell. Mitchell said, “I think
somebody’s telling on us. He said we was on camera?” Brown
responded, “Yeap.” Mitchell said, “Please, please just don’t—
please don’t say nothing. Don’t say anything (unintelligible).
Don’t say nothing.”
Brown admitted to the detectives that someone in the alley
had choked him and said that could have been the reason
Mitchell “busted,” meaning shot, Givehand. The detectives
interviewed Mitchell again, played that portion of Brown’s
interview, and placed him back near Brown. The following
exchange occurred:
[Mitchell]: So what they tell you? Huh? Huh? “Tiny”?[6]
[Brown]: Yeah.
[Mitchell]: So what they tell you?
[Brown]: Didn’t say [anything].
[Mitchell]: So you taking the rap?
[Brown]: Huh-uh.
[Mitchell]: Huh?
[Brown]: Hell, no.
[Mitchell]: Oh. So you just gonna tell on me, huh?
[Brown]: No. I ain’t tell—telling on nothing. I
(unintelligible).
[Mitchell]: Huh?
6 As noted above, Brown’s moniker was Tiny.
11
[Brown]: Man, silence.
[Mitchell]: The what?
[Brown]: Silence is key.
[Mitchell]: Bro, they got—they just . . . showed me the voice
recording [ ].
[Brown]: They showed you what?
[Mitchell]: The voice recording, . . . . You [said] “Oh, it could
be.”
[Brown]: [What] the [expletive] you talking about, . . . they
said—[expletive] said—he said, “We got a video.”
[Mitchell]: So he said, “So is that the reason—” So is that
the reason why—why—why Chayce busted? You said, “It
could be.”
[Brown]: I said, “[Expletive]—”
[Mitchell]: Bro, I heard the voice recording, [expletive]. I
heard the voice recording.
[Brown]: He said—he said—he said, I—I—I said, “It could
be. I don’t know.”
[Mitchell]: Bro, you can’t tell me nothing. You—you—you
can’t tell me nothing, bro. You can’t. I just heard the voice
recording, bro. He just told me that, bro. He told me
everything, bro. He told me, “Yeah. Your homie just put you
on all that, bro, all that.”
[Brown]: I didn’t put you on [expletive]—[expletive], you
hear—that’s crazy. Man, he said, is that the reason—”
[Mitchell]: Bro, bro, bro. He just—he—he just played the
voice recording, bro. He talking about, [expletive], I’m not
never getting out and he got all the evidence and my boy
just ratted me out and this other [expletive].
12
[Brown]: [Expletive], (Unintelligible) that [expletive] don’t
mean anything.
[Mitchell]: So—so if I get washed, just know it’s because of
you.
[Brown]: [Expletive], it ain’t because of me. On the dead
homie, [expletive].[7]
[Mitchell]: Bro. [Expletive] just played the voice recording,
bro. I’m not going for nothing nobody telling me right now,
nothing. This [expletive] just played the voice recorder, the
whole thing. [¶] . . . [¶] I heard you, bro. [¶] . . . [¶] Cuz
said, [expletive], “So since you were getting choked out, is
that the reason why Chayce turned around and bust?” And
you said, “It could be.” Instead of saying, “I don’t know,”
you’re saying, “It could be.” That’s crazy. [¶] . . . [¶] Now
they talking about booking me for attempted murder.
That’s what he just said. . . .
Later, Mitchell said, “Bro, you better tell [them] I didn’t do
it, bro. Huh. You hear me?” Brown responded, “That’s saying that
I was who did it.” After more conversation, Mitchell, said:
Can’t believe you said that, bro. I can’t believe it. I thought
you already knew, like, everything, I don’t know. I don’t
know. I don’t know. I thought you already knew that. You
in there telling them you coming from the weed shop. Bro.
Then, you gonna say “It could be.” Like, bro. Now, I’m
worried, [expletive], bad, [expletive]. [¶] At first, I wasn’t
worried about shit. Now, I’m worried like a[n] [expletive].
Crip. I was just about to—me and Vanessa was just about
to have a baby, hood. Man. All my plans go down the drain.
7 “Dead homie” means “I swear to God on this.”
13
Man, I hope they release me at night, bro. [¶] . . . [¶]
[Expletive], man. Man, what you said, it really got a
[expletive] worried, bro. Dead homies. Just by what you
said. Worried as [expletive], man. . . .
Mitchell then told someone in the jail cell, “Hey, Dep.
[expletive] told on me. [¶] . . . [¶] This [expletive] told on me, bro.
[Expletive]. He told on me. Oh, [expletive]. . . .”
After the detective told Mitchell how he believed the
shooting occurred, Mitchell called his girlfriend Alexis from jail,
which was recorded. He complained that Tiny had “slipped up”
and “said some [expletive]” to detectives who “replayed it and
then played it to” him, and now he was “facing attempted
murder.” He told her,
[T]he [expletive] that happened this time, bro, these
[expletives] repeated the whole [expletive], bro. And this
[expletive] is serious . . . . [I]f I go to court, [expletive], and
they sentence me, . . . bro, Alexis, I’m not gonna see you for
a long . . . time, bro, on hood. On my soul, bro. On my soul, I
not gonna see you for a long [ ] time, bro.
Alexis replied, “I don’t even know what to say. I don’t even
know why you went over there, bro. [¶]. . . [¶] you been making
some dumbass decisions, [expletive]. . . .” After Alexis said that it
probably was not that big of a deal and that the police were not
going to keep him because they were “[messing] with your head
like they usually do,” Mitchell told her, “Well, they not [messing]
with my head, [expletive]. They not [messing] with my head, bro.
They told the whole story, [expletive]. They told the whole story,
bro.”
14
B. Defense Evidence
Appellants rested without calling any witnesses or
presenting any evidence on their behalf.
DISCUSSION
I. Brown’s Attempted Murder Conviction Must Be
Reversed Because the Jury Was Instructed It Could
Convict Him under A Natural and Probable
Consequences Theory8
Brown argues the trial court committed prejudicial error by
instructing the jury it could convict him of attempted murder
under the natural and probable consequences doctrine. The
Attorney General agrees the trial court erred, but contends the
error was harmless. We agree with Brown.
A. Applicable Legal Principles
SB 775 took effect on January 1, 2022. Among other
changes, SB 775 “[c]larifies that persons who were convicted of
attempted murder . . . under . . . the natural and probable
consequences doctrine are permitted the same relief as those
persons convicted of murder under the same theories.” (Sen. Bill
No. 775 (2021-2022 Reg. Sess.) at § 1(a); see § 1172.6, subd. (a).)
SB 775 also allows a defendant convicted of attempted murder
based on the natural and probable consequences doctrine whose
conviction is not final to “challenge on direct appeal the validity
8 Because Mitchell does not join this argument, the following
analysis pertains only to Brown.
15
of that conviction based on the changes made to Sections 188 and
189 by Senate Bill 1437.” (§ 1172.6, subd. (g).)9
B. Background
After the close of evidence, Brown moved for a section
1118.1 dismissal in light of People v. Chiu (2014) 59 Cal.4th 155(Chiu), arguing that a first degree premediated attempted
murder can no longer be attributed to a non-shooter through a
natural and probable consequences theory. The trial court denied
the motion, concluding Chiu applied only to murder, not
attempted murder.
The trial court instructed the jury on principles of aiding
and abetting, natural and probable consequences, and attempted
murder. It instructed the jury on the elements of aiding and
abetting using CALCRIM No. 401. With respect to the natural
and probable consequences doctrine, the court instructed the jury
using CALCRIM No. 403.10
9 This provision was intended to supersede the California
Supreme Court’s holding that section 1172.6 (formerly 1170.95)
petitions were the exclusive remedy for retroactive Senate Bill
No. 1437 relief on nonfinal judgments. (People v. Gentile (2020)
10 Cal.5th 830, 853-859, superseded in part by SB 775 as
explained in People v. Hola (2022) 77 Cal.App.5th 362, 370
(Hola).)
10 That instruction stated:
To prove that the defendant is guilty of willful, deliberate,
and premeditated attempted murder, the people must prove that:
1. The defendant is guilty of assault with a firearm;
16
During closing argument, the prosecutor argued Brown was
guilty of attempted murder for having shown up in the alley with
a gun, even if he did not fire it. The prosecution then made
arguments concerning the natural and probable consequences
doctrine, saying:
But there’s . . . another theory of liability that allows
us to get to the same conclusion. And that’s something
called the natural and probable consequences theory.
Again, this isn’t something I wrote, ladies and gentlemen.
This is the way the law is written. And it’s the law that you
2. During the commission of assault with a firearm, a
coparticipant in that assault with a firearm committed the crime
of willful, deliberate, and premeditated attempted murder;
And
3. Under all of the circumstances, a reasonable person in
the defendant's position would have known that the commission
of the willful, deliberate, and premeditated attempted murder
was a natural and probable consequence of the commission of the
assault with a firearm.
A coparticipant in a crime is the perpetrator or anyone who
aided and abetted the perpetrator. It does not include a victim or
innocent bystander.
A natural and probable consequence is one that a
reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural
and probable, consider all of the circumstances established by the
evidence.
To decide whether crime a crime of willful, deliberate, and
premeditated attempted murder was committed, please refer to
the separate instructions I will give you on those crimes.
17
have to follow. But the defendant is guilty. And I’ll move on
to this next.
The prosecution then explained the doctrine:
[D]uring the commission of the assault, if a
coparticipant, in this case defendant Mitchell, in that
assault committed the crime of attempted murder and
under all the circumstances a reasonable person in . . .
defendant Brown’s position would have known the
commission of the attempted murder was a natural and
probable consequence of the commission of him pulling out
the firearm, then he too is guilty of the attempted murder.
Basically in short form what that means is that,
knowing that he was pulling out a firearm in an area where
there are rival gang members and knowing that he was
going there to target these other individual gang members
and knowing that in that situation pulling out a firearm –
and we heard this from Officer Ybanez today. He said
actually 100 percent of the time, if you pull out a firearm in
that sort of scenario where you are in front of rival gang
members, that will result in a shooting.
So knowing that and understanding that, defendant
Brown, because the attempted murders that were later
committed by defendant Mitchell, now a natural and
probable consequence of him pulling out that firearm, by
virtue of that theory, he too is now basically guilty of all
those attempted murders as well.
The prosecution reiterated:
18
But the point is that, if you believe that all he’s guilty
of is the assault because all he actually did was pull out
that firearm, he’s still guilty of the attempted murders by
virtue of this theory, this natural and probable consequence
theory. Because Officer Ybanez told us, when you . . . arm
yourself with a loaded firearm, you enter territory the way
you do staggered, with a plan, on a mission, and say fake
street to a lieutenant from Grape Street, you are asking for
a shooting to take place. And that’s why the natural and
probable consequence theory comes into play in this case.
C. Analysis
The parties agree, and we agree with the parties, that in
light of SB 775, it was error to instruct the jury that it could
convict Brown of attempted murder based on a natural and
probable consequences theory of liability. (Sen. Bill No. 775
(2020-2021 Reg. Sess.) at § 1(a); see § 1172.6, subd. (a).) It is also
clear under the plain language of the statute that Brown is
entitled to SB 775’s ameliorative benefits on direct appeal.
(§ 1172.6, subd. (g) [“A person convicted of . . . attempted
murder . . . whose conviction is not final may challenge on direct
appeal the validity of that conviction based on the changes made
to Sections 188 and 189 by Senate Bill 1437 . . . .”].) The question
is whether the prosecution can sustain its burden of proving the
instructional error was harmless beyond a reasonable doubt.
(People v. Aledamat (2019) 8 Cal.5th 1, 3-4, citing Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman) [17 L.Ed.2d 705, 87
S.Ct. 824].) We conclude it cannot.
Once a defendant has shown “the jury was instructed on
correct and incorrect theories of liability, the presumption is that
the error affected the judgment . . . .” (In re Martinez (2017) 3
19
Cal.5th 1216, 1224 (Martinez).) Applying this presumption, we
must reverse unless we “conclude[ ] beyond a reasonable doubt
that the jury actually relied on a legally valid theory in convicting
the defendant . . . .” (Id. at p. 1218.)
In Martinez, the defendant was convicted of first degree
murder after the jury was instructed on both direct aiding and
abetting and natural and probable consequences theories of
liability. (Martinez, supra, 3 Cal.5th at p. 1218.) After Martinez’s
conviction, the Supreme Court in Chiu held a natural and
probable consequences theory of liability could no longer serve as
a basis for a first degree murder conviction. (Chiu, supra, 59
Cal.4th at pp. 158-159.)11 The Martinez court concluded the error
in instructing the jury on correct and incorrect theories was
prejudicial. (Martinez, supra, 3 Cal.5th at p. 1218.) In reaching
this conclusion, the Supreme Court noted: “Although the Court of
Appeal and the Attorney General may be correct that there is
sufficient evidence to convict Martinez of directly aiding and
abetting, the evidence also supports the theory that the murder
was a natural and probable consequence of the assaults that
Martinez and his codefendant committed.” (Id. at p. 1226.) This
analysis also applies here. Although the record perhaps contains
sufficient evidence to convict Brown as a direct aider and abettor,
the jury could have convicted on the now invalid alternate theory
that the attempted murder was a natural and probable
consequence of Brown’s assault on Givehand.
11 SB 1437 later superseded Chiu to the extent that it upheld
aider and abettor liability for second degree murder under the
natural and probable consequences doctrine. (People v. Lewis
(2021) 11 Cal.5th 952, 959, fn. 3.)
20
The Martinez court also found it significant that the
prosecution argued the natural and probable consequences theory
to the jury at length during closing argument. (Martinez, supra, 3
Cal.5th. at pp. 1226-1227.) The same happened here, and on this
record, we cannot “rule out a reasonable possibility that the jury
relied on the invalid natural and probable consequences theory”
in convicting Brown of attempted murder. (Id. at p. 1226.) Stated
differently, we cannot conclude beyond a reasonable doubt that
the jury “actually relied on a legally valid theory in convicting
[Brown] of first degree murder.” (Id. at p. 1218.) We therefore
vacate Brown’s conviction. (Ibid.) The matter is remanded to the
trial court to afford the prosecution the opportunity to advance a
valid attempted murder theory at a new trial. (See Hola, supra,
77 Cal.App.5th at p. 370.)
Because we reverse the judgment as it pertains to Brown
based on this instructional error, his remaining arguments are
moot as they pertain to him. The rest of this opinion addresses
arguments relating to Mitchell, including those raised directly by
Mitchell and those raised by Brown but joined by Mitchell.
II. Mitchell’s Kill Zone Argument
Mitchell contends his convictions for the attempted murder
of Pogues and Matthews (counts two and three) must be reversed
based on the Supreme Court’s decision in Canizales. For the
reasons discussed below, we agree.
A. Relevant Proceedings
During discussion of appellants’ section 1118.1 motion,
Mitchell’s trial counsel argued the kill zone was not applicable to
the facts of this case. The Supreme Court had issued its ruling in
Canizales three months earlier. The trial court stated the People
21
had to prove the defendants intended to kill the persons in the
kill zone, and shooting into a crowd, without more, was
insufficient. The People noted the surveillance video showed
Mitchell continuing to shoot into the kill zone after Givehand had
already fled and did so by moving his arm from side to side
directing his weapon in a specific small area. The court found
that the evidence of specific intent for the kill zone was sufficient
to go to the jury.
During discussions on jury instructions, the court stated it
would give CALCRIM No. 600. There was no further discussion
or objection. At the time, the Judicial Council had not yet revised
CALCRIM No. 600 in light of Canizales. The trial court
ultimately instructed the jury on the kill zone using CALCRIM
No. 600.
B. Applicable Legal Principles
“To prove the crime of attempted murder, the prosecution
must establish ‘the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended
killing.’ [Citation.] When a single act is charged as an attempt on
the lives of two or more persons, the intent to kill element must
be examined independently as to each alleged attempted murder
victim; an intent to kill cannot be ‘transferred’ from one
attempted murder victim to another under the transferred intent
doctrine.” (Canizales, supra, 7 Cal.5th at p. 602.) “[T]he
defendant must intend to kill the alleged victim, not someone
else . . . . Someone who intends to kill only one person and
attempts unsuccessfully to do so, is guilty of the attempted
murder of the intended victim, but not of others.” (People v.
Bland (2002) 28 Cal.4th 313, 328 (Bland).)
22
While a defendant’s intent to kill may not be transferred
among victims, it may exist as to several victims simultaneously.
This doctrine of concurrent intent is typically referred to as the
kill zone theory. (Canizales, supra, 7 Cal.5th at p. 603.) Under
that theory, the nature and scope of an attack directed at a
primary or targeted victim “may raise an inference that the
defendant ‘“intended to ensure harm to the primary victim by
harming everyone in that victim’s vicinity.”’” (Id. at p. 602.) It has
long been clear that such an inference is appropriate in situations
where a defendant uses an extreme amount of force to accomplish
his or her goal of killing the primary victim. The classic examples
are placing a bomb on a commercial aircraft on which the
primary target is a passenger, or attacking a group containing
the primary target with “‘automatic weapon fire or an explosive
device devastating enough to kill everyone in the group.’” (Bland,
supra, 28 Cal.4th at p. 330.) Because the outer bounds of the
doctrine remained undefined for some years, there was “potential
for the misapplication of the kill zone theory” to cases where the
inference was not proper. (Canizales, supra, 7 Cal.5th at p. 606.)
In Canizales, the Supreme Court clarified—and limited—
the circumstances under which a prosecutor may use the kill zone
theory. It held that the kill zone theory “may properly be applied
only when a jury concludes: (1) the circumstances of the
defendant’s attack on a primary target, including the type and
extent of force the defendant used, are such that the only
reasonable inference is that the defendant intended to create a
zone of fatal harm—that is, an area in which the defendant
intended to kill everyone present to ensure the primary target’s
death—around the primary target[;] and (2) the alleged
attempted murder victim who was not the primary target was
23
located within that zone of harm.” (Canizales, supra, 7 Cal.5th at
p. 607.) Under this standard, the kill zone theory is not applicable
where “‘the defendant merely subjected persons near the primary
target to lethal risk’”; conscious disregard of persons proximate to
the intended target is insufficient to support application of the
theory. (Ibid.) In an appropriate kill zone case, “‘the defendant
has a primary target and reasons [that] he cannot miss that
intended target if he kills everyone in the area in which the
target is located. In the absence of such evidence, the kill zone
instruction should not be given.’” (Ibid.) Factors relevant to the
defendant’s intent to create a kill zone and the scope of such a
zone include “the circumstances of the offense, such as the type of
weapon used, the number of shots fired (where a firearm is used),
the distance between the defendant and the alleged victims, and
the proximity of the alleged victims to the primary target.” (Ibid.)
Canizales cautioned that “there will be relatively few cases in
which the theory will be applicable and an instruction
appropriate.” (Id. at p. 608.)
C. Analysis
We agree with Mitchell that his convictions for the
attempted murder of Pogues and Matthews must be reversed in
light of Canizales. As Canizales cautioned, “trial courts must be
extremely careful in determining when to permit the jury to rely
upon the kill zone theory.” (Canizales, supra, 7 Cal.5th at p. 597.)
“As past cases reveal, there is a substantial potential that the kill
zone theory may be improperly applied, for instance, where a
defendant acts with the intent to kill a primary target but with
only conscious disregard of the risk that others may be seriously
injured or killed.” (Ibid.) “Accordingly, . . . trial courts should
reserve the kill zone theory for instances in which there is
24
sufficient evidence from which the jury could find that the only
reasonable inference is that the defendant intended to kill (not
merely to endanger or harm) everyone in the zone of fatal harm.”
(Ibid., italics in original.)
Applying these principles, we conclude the trial court erred
by acceding to the prosecutor’s request to instruct the jury on the
kill zone theory. In arguing that the jury should be instructed on
the kill zone theory, the prosecution emphasized that the
surveillance video showed Mitchell moving his arm side to side
and shooting at several people within a small area. In issuing its
ruling, the trial court likewise stated there were “just a few
people in the area of the kill zone at that time that the shots
[we]re being fired.” In our review of the surveillance video,
however, we observe that although Mitchell is visible as he is
shooting, the kill zone itself (i.e., the location of Pogues and
Matthews as Mitchell is shooting) is not visible. It is therefore
unclear from the video how big the kill zone is or where Pogues
and Matthews are in relation to Givehand when Pogues and
Matthews are shot by Mitchell.12 Nor does the witness testimony
provided at trial answer these questions. In short, we cannot
conclude, based on the video evidence and trial testimony, that
“there is sufficient evidence from which the jury could find that
12 Although the video does show Mitchell point the gun at and
try to shoot an individual other than Givehand, the record
reveals that other individual was Darrell McNeely. Because
Mitchell was charged with the attempted murder of McNeely in
count four, and because the People ultimately moved to dismiss
that count, the video evidence of Mitchell trying to shoot McNeely
has no bearing on issues relating to the different zone Mitchell
shot at when he hit Pogues and Matthews and whether a kill
zone instruction was warranted with respect to those shots.
25
the only reasonable inference is that the defendant intended to
kill (not merely to endanger or harm) everyone in the zone of
fatal harm.” (Canizalez, supra, 7 Cal.5th at p. 597, italics in
original.) On this record, therefore, we must conclude the trial
court erred by instructing the jury on the kill zone theory. (Ibid.)
We also conclude the error was prejudicial. According to
Canizales, the applicable inquiry is whether “there is a
‘“reasonable likelihood”’ that the jury understood the kill zone
theory in a legally impermissible manner.” (Canizales, supra, 7
Cal.5th at p. 613.) In making this determination, the reviewing
court considers “the instructions provided to the jury and
counsel’s argument to the jury.” (Ibid.)
The parties agree, and we agree with the parties, that the
kill zone instruction provided here was incomplete. It omitted
language, which has since been added to CALCRIM No. 600,
explaining “the People must prove that (1) the only reasonable
conclusion from the defendant’s use of lethal force, is that the
defendant intended to create a kill zone [around a primary
target]; and (2) [the alleged attempted-murder victim] was
located within the kill zone.” (See CALCRIM No. 600.) It also
omitted a list of circumstances, which has since been added to
CALCRIM No. 600, that jurors should consider “[i]n determining
whether the defendant intended to create a ‘kill zone’ and the
scope of such a zone[.]” (Ibid.) The instructions given here were
deficient in a manner similar to the instructions the Supreme
Court found deficient in Canizales – they did not adequately
define the term kill zone or properly direct the jury to consider
evidence regarding the circumstances of defendants’ attack. (See
Canizales, supra, 7 Cal.5th at p. 613.)
26
And here, as in Canizales, the prosecutor’s closing
argument aggravated the potential for confusion. (Canizlaes,
supra, 7 Cal.5th at p. 613.) The prosecutor here argued “not only
is [Mitchell] actually guilty of attempted murder of Mr.
Givehand. But because of the kill zone theory, which says, if the
defendant intended to kill Mr. Givehand which is clear from the
video that he did – so . . . Mr. Mitchell intended to kill Mr.
Givehand and everyone within that kill zone.” She further
argued: “He didn’t need to know their name[s]. He didn’t need to
say, yes, I’m coming for you. He didn’t need to point, the mere
fact that he’s spraying fire in a very close proximity at anyone
that was moving falls within that kill zone [¶] . . . . [¶] So Mr.
Mitchell is guilty of attempted murder of Mr. Givehand. That’s
clear and simple. He’s also guilty of the attempted murder of Mr.
Pogues and Mr. John West [Matthews] through this theory of the
kill zone.” It is reasonably likely that these arguments misled the
jury to believe that the mere presence of Pogues and Matthews in
an area where they could be fatally shot was sufficient to prove
attempted murder liability under the kill zone theory.
In sum, the error was prejudicial because “there is a
reasonable likelihood that the jury understood the kill zone
instruction in a legally impermissible manner. The court’s error
in instructing on the factually unsupported kill zone theory,
combined with the lack of any clear definition of the theory in
the jury instructions, as well as the prosecutor’s misleading
argument, could reasonably have led the jury to believe that it
could find that [Mitchell] intended to kill [Pogues and
Matthews] . . . if [Mitchell] shot at [Givehand] knowing there was
a substantial danger he would also hit [Pogues and Matthews].”
(Canizales, supra, 7 Cal.5th at p. 614.) We therefore reverse
27
Mitchell’s convictions on counts two and three for the attempted
murder of Pogues and Mitchell.13 Our conclusion does not affect
Mitchell’s conviction for the attempted murder of Givehand
(count one).
III. Arguments Concerning AB 333
A. Mitchell’s Case is Remanded for A New Trial
on the Gang Enhancements14
Mitchell and the Attorney General agree that, in light of
AB 333, Mitchell’s case must be remanded to the trial court for a
new trial on the gang enhancements. We agree.
AB 333, which went into effect on January 1, 2022,
“amend[ed] section 186.22 to require proof of additional elements
to establish a gang enhancement.” (People v. Lopez (2021) 73
Cal.App.5th 327, 343 (Lopez).) Among other things, AB 333
“altered the requirements for proving the ‘pattern of criminal
gang activity’ necessary to establish the existence of a criminal
street gang.” (Id. at p. 345.) Prior to AB 333’s enactment, “a
‘pattern of criminal gang activity’ mean[t] ‘the commission of,
attempted commission of, conspiracy to commit, or solicitation of,
sustained juvenile petition for, or conviction of two or more of
[certain enumerated] offenses, provided at least one of these
offenses occurred after the effective date of this chapter and the
last of those offenses occurred within three years after a prior
offense, and the offenses were committed on separate occasions,
or by two or more [persons].’” (Lopez, supra, at p. 345.) “[AB] 333
13 On remand, the prosecution may retry Mitchell on these
counts.
14 Although Brown raises this same argument, because we
reverse his judgment, the issue is moot as it pertains to him.
28
redefine[d] ‘pattern of criminal gang activity’ to require that the
last of the predicate offenses ‘occurred within three years of the
prior offense and within three years of the date the current
offense is alleged to have been committed,’ and that the predicate
offenses ‘were committed on separate occasions or by two or more
members, the offenses commonly benefited a criminal street
gang, and the common benefit of the offenses is more than
reputational.’ [Citation.] In addition, the currently charged
offense cannot be used as a predicate offense under the
amendments.” (Lopez, supra, at p. 345; see § 186.22, subd. (e)(1).)
AB 333 also made several other changes to the definition of
“criminal street gang,” clarified the definition of “[t]o benefit,
promote, further, or assist,” and added a new provision to the
Penal Code requiring the trial court, upon request, to bifurcate
the guilt and gang enhancement allegation phases of the trial
(i.e., newly-added § 1109). (See Lopez, supra, 73 Cal.App.5th at
pp. 344-345; Stats. 2021, ch. 699, § 5 [adding § 1109].)
We agree with the parties that Mitchell is entitled to the
benefit of AB 333’s amendments to section 186.22 because his
judgment is not yet final. (People v. Tran (2022) 13 Cal.5th 1169,
1206-1207 (Tran), citing In re Estrada (1965) 63 Cal.2d 740.)
Mitchell’s case is remanded to the trial court to give the People
the opportunity to prove the gang allegations in light of the
amendments to section 186.22.
B. Supplemental Briefing Addressing People v.
Burgos
After Brown and Mitchell filed their reply briefs, the Sixth
District Court of Appeal decided People v. Burgos (2022) 77
Cal.App.5th 550 (Burgos), review granted July 13, 2022,
S274743. Brown filed a request for leave to file supplemental
29
briefing in light of Burgos. We granted Brown’s request and set a
briefing schedule allowing the parties to further address the
impact of Burgos on this appeal. Appellants both argue their
convictions must be reversed in light of Burgos. Because we are
reversing Brown’s judgment based on the erroneous natural and
probable consequences jury instruction, the following analysis
pertains only to Mitchell. And because we are reversing
Mitchell’s convictions on counts two and three in light of
Canizales, the following analysis relates only to his conviction on
count one (the attempted murder of Givehand).
1. Penal Code section 1109, Burgos, and
People v. Ramirez
AB 333 added section 1109, which requires, on the request
of the accused, bifurcation of the gang enhancement from the
substantive charge, and trial of the substantive charge first.
Burgos concluded that section 1109 applies retroactively where,
as here, the defendant’s case was not yet final when AB 333 was
enacted. (Burgos, supra, 77 Cal.App.5th at pp. 564-568; see
People v. Ramos (2022) 77 Cal.App.5th 1116, 1129-1131 (Ramos)
[same].)15 The Burgos court explained that section 1109 is
ameliorative in that it, among other things, increases the
possibility of acquittal, thus necessarily reducing possible
punishment. (Burgos, supra, at p. 567.)
15 According to the case docket on the Supreme Court’s
website, review is pending in Burgos on the following issue: “Does
the provision of Penal Code section 1109 governing the
bifurcation at trial of gang enhancements from the substantive
offense or offense apply retroactively to cases that are not yet
final?”
30
Upon concluding defendants were entitled to the
retroactive benefit of AB 333 and section 1109, Burgos turned to
the question of prejudice. It began its analysis by expressing its
opinion that not bifurcating the gang enhancements “likely
constitute[d] ‘structural error’” because “the nature of the
proceeding would have been entirely different” absent the error.
(Burgos, supra, 77 Cal.App.5th at p. 568.) Rather than holding
the lack of bifurcation was structural error, however, the Burgos
court instead concluded that, even assuming harmless error
analysis applied, the error was prejudicial under both People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson) and Chapman, supra,386 U.S. at p. 24 (Chapman). (Burgos, supra, at pp. 568-569.) In
concluding the error was prejudicial, the court noted various
weaknesses in the prosecution’s case relating to issues of identity
and culpability, and concluded those weaknesses were likely
bolstered by the evidence that defendants were gang members.
(Ibid.)
Justice Elia dissented in Burgos, expressing his belief that
section 1109 is not retroactive because it “is not an ameliorative
statute within the meaning of the Estrada rule.”16 (Burgos, 77
Cal.App.5th at p. 569 (dis. opn. of Elia, J.), italics in original.)
Five weeks after Burgos was decided, in People v. Ramirez (2022)
79 Cal.App.5th 48 (Ramirez), review granted Aug. 17, 2022,
S275341, a different panel of the Sixth District Court of Appeal
disagreed with the majority in Burgos, instead holding Justice
Elia was correct that “section 1109 operates prospectively only,
and [a] defendant is not entitled to retroactive application of the
16 Under the Estrada rule, courts presume that amendatory
statutes which lessen punishment are intended to apply
retroactively. (In re Estrada (1965) 63 Cal.2d 740, 744-745.)
31
bifurcation statute.” (Ramirez, supra, 79 Cal.App.5th at p. 65, fn.
omitted.)17 In reaching this conclusion, Ramirez adopted Justice
Elia’s position that section 1109 is not ameliorative because it
“‘does not alter the punishment for an offense, make a lesser
punishment possible, or change the elements of an offense or
defense.’” (Ramirez, supra, at p. 65.)18 Because Ramirez
concluded section 1109 was not retroactive, it did not address
whether the lack of bifurcation was harmless or what prejudice
standard might apply assuming section 1109 did apply
retroactively. (Id. at p. 65, fn. 5.)
2. Analysis
The parties disagree about whether section 1109 is
retroactive. We need not decide that issue, however. Even
assuming it is retroactive, we conclude the admission of gang
evidence here with respect to Mitchell was harmless under
Watson. (See People v. Gonzalez (2018) 5 Cal.5th 186, 195 [“We
evaluate nonstructural state law error under the harmlessness
standard set forth in Watson . . . .”]; Ramos, supra, 77
Cal.App.5th at p. 1131-1133 [applying Watson prejudice standard
and concluding it was not reasonably probable defendant would
have obtained a more favorable verdict had the gang
enhancement been bifurcated].) When officers arrested Mitchell,
17 According to the Supreme Court case docket in Ramirez,
the Supreme Court has granted review and deferred further
action pending the resolution of Burgos or further order by the
Court.
18 Division Three of this District has also held that section
1109 is not retroactive because it “does not reduce the
punishment or narrow the scope of the application of the gang
statute.” (People v. Perez (2022) 78 Cal.App.5th 192, 207.)
32
he was in possession of the gun used to shoot Givehand and the
other victims. He then admitted to the police that he had been in
the alley the day of the shooting. He and Brown made statements
to one another at the police station suggesting consciousness of
guilt, and he made statements on a phone call with his girlfriend
also suggesting consciousness of guilt, all of which were recorded
and played for the jury. Additionally, the jury was shown
surveillance video of Mitchell pointing his gun at Givehand and
pulling the trigger. Officers Armenta and Ybanez, who had each
previously encountered Mitchell dozens of times, opined to the
jury that Mitchell was the shooter in the video based on prior
encounters and his distinct characteristics.19 On this record,
Mitchell cannot demonstrate a reasonable probability that he
would not have been convicted of the attempted murder of
Givehand had the proceedings been bifurcated.20 Indeed, even
assuming Chapman applied, we would find the error harmless
under that standard as well.
IV. Mitchell’s Other Gang Enhancement Arguments
Are Moot
Mitchell raises two other arguments concerning his gang
enhancements: (1) the trial court committed prejudicial
19 As discussed in greater detail below, we reject Mitchell’s
argument that the officers’ lay opinion concerning Mitchell’s
identity as the shooter was inadmissible.
20 Additionally, as the Attorney General points out, some of
the gang evidence introduced at trial was likely admissible to
show motive. (See Ramos, supra, 77 Cal.App.5th at p. 1132; Tran,
supra, 13 Cal.5th at p. 1208 [“We have held that gang evidence,
even if not admitted to prove a gang enhancement, may still be
relevant and admissible to prove other facts related to a crime.”].)
33
instructional error regarding the enhancements; and (2) the court
did not act with informed discretion when it sentenced him on the
enhancements. Because we are remanding Mitchell’s case to the
trial court for a new trial on the enhancements, these arguments
are moot.
V. Mitchell’s Other Evidentiary Arguments
Mitchell also contends the trial court prejudicially erred by
allowing police officers to testify that appellants were the men
depicted in the surveillance videos of the shooting and that a
photograph depicted Mitchell holding the same weapon used in
the shooting. We disagree. The trial court properly admitted the
officers’ identification of appellants as lay opinion testimony
under Evidence Code section 800. And it properly admitted the
identification of the gun as expert testimony under Evidence
Code section 801.
A. Relevant Proceedings
The People introduced identifications of appellants as the
men on the video surveillance from the officers who had the most
contact with them in the years leading up to the shooting.
Counsel objected that the testimony called for a legal conclusion,
constituted speculation, was out of the jury’s purview, and was
inadmissible under Evidence Code section 352. The court
overruled the objection.
Officer Armenta noted that the big screen showing the
video in court was farther away from him than when he had
viewed the same video closer to him. He identified Mitchell as the
second man who walked down the alley. Officer Armenta noted
that when Mitchell turned the corner and his hoodie came off,
there was a “clear view of his face.” He also explained that he
34
could recognize Mitchell because the video showed his
mannerisms, “hairstyle, the proportions of his body, [his] build,
and [his] stature.” Officer Ybanez viewed the video surveillance
played in court and identified Brown as the first man in the
hoodie to walk down the alley. He identified Mitchell as the
second man in the hoodie to walk down the alley. He explained
that on the big TV screen he was looking at it was not as clear,
but close up on the computer screen, “you can clearly see
[Mitchell’s] face profile.” He also explained that he recognized
Mitchell’s “very distinct walk,” as well as his “body structure” and
complexion.
The People sought to introduce evidence that Detective
Pearce determined the gun shown in a photo with Mitchell taken
on his cell phone after the shooting was the same gun the police
found when they arrested him. Counsel objected that the
testimony was prejudicial. The court overruled the objection,
noting the testimony was “very probative.” Detective Pearce
testified that he believed the gun in the photograph was the same
gun police found when they arrested him.
B. Applicable Legal Principles
“A lay witness may offer opinion testimony if it is rationally
based on the witness’s perception and helpful to a clear
understanding of the witness’s testimony. (Evid. Code, § 800.)”
(People v. Leon (2015) 61 Cal.4th 569, 601 (Leon).) “‘[T]he identity
of a person is a proper subject of nonexpert opinion . . . .’” (Ibid.)
“Court of Appeal decisions have long upheld admission of
testimony identifying defendants in surveillance footage or
photographs.” (Ibid.)
“‘An expert may express an opinion on “a subject that is
sufficiently beyond common experience that the opinion of an
35
expert would assist the trier of fact.” (Evid. Code, § 801, subd.
(a).) . . . .’” (People v. Valencia (2021) 11 Cal.5th 818, 831.)
We review the trial court’s rulings for abuse of discretion.
(Leon, supra, 61 Cal.4th 569 at p. 600.) We do not disturb the
trial court’s exercise of discretion on appeal unless it was
exercised in “an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice.” (People v.
Jordan (1986) 42 Cal.3d 308, 316.)
C. Analysis
The trial court did not abuse its discretion in allowing the
officers to offer lay opinion testimony identifying Mitchell in the
video. Leon is instructive. The court in Leon held that because the
officer was familiar with the defendant, his identification
testimony was proper in that it was “based on his relevant
personal knowledge and aided the jury[.]” (Leon, supra, 61
Cal.4th at p. 601.) In concluding the trial court did not abuse its
discretion in allowing the officer’s identification testimony, Leon
also noted: “[B]ecause the surveillance video was played for the
jury, jurors could make up their own minds about whether the
person shown was defendant.” (Ibid.) Here, as in Leon, the
officers were able to identify Mitchell as the shooter in the video
based on their personal knowledge (i.e., their numerous prior
encounters with him). As the officers noted, the video showed the
shooter’s face, mannerisms, body type, distinct walk, and body
proportions. And here, as in Leon, the jury could make up its own
mind whether the person shown was Mitchell and how much
weight to give the officers’ testimony. We reject Mitchell’s
argument that the officers’ testimony was inadmissible because it
amounted to an opinion that Mitchell was guilty, thus infringing
the jury’s role as the exclusive finder of fact. As Leon makes clear,
36
the officers were allowed to offer opinion testimony that Mitchell
was the shooter shown in the video.
We likewise reject Mitchell’s contention that the trial court
improperly admitted the expert testimony of the officer who
identified the gun in the photograph as the one Mitchell was in
possession of when he was arrested.21 Experts may rely on
photographic evidence that accurately depicts material evidence.
(See, e.g., People v. Bolin (1998) 18 Cal.4th 297, 321-322.) The
trial court properly exercised its discretion in allowing the officer
to offer his opinion that the gun in the photograph was the same
one the police found when they arrested Mitchell, and it was for
the jury to decide how much weight to give that opinion. (See
ibid.) Additionally, as the Attorney General points out, because
the ballistics evidence linked the gun found in Mitchell’s
possession to the shooting, even assuming the trial court had
erred, the purported error would be harmless under both Watson
and Chapman.
21 Evidence Code section 801 provides: “If a witness is
testifying as an expert, his testimony in the form of an opinion is
limited to such an opinion as is:
(a) Related to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of
fact; and
(b) Based on matter (including his special knowledge, skill,
experience, training, and education) perceived by or personally
known to the witness or made known to him at or before the
hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his testimony relates, unless an expert
is precluded by law from using such matter as a basis for his
opinion.”
37
VI. Mitchell’s Dueñas argument
The trial court imposed $120 in court security assessments
(§ 1465.8, subd. (a)), $90 in criminal conviction assessments (Gov.
Code, § 70373), a $300 restitution fine (§ 1202.4, subd. (b)(1)), and
stayed a $300 parole revocation fine (§ 1202.45). Relying on
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Mitchell
now challenges the assessments and fine.22 Mitchell concedes he
did not object to the imposition of the assessments or fine.
Mitchell was sentenced 22 months after Dueñas was decided.
Mitchell has forfeited his Dueñas argument by failing to object.
(See People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v.
Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.) He has also
forfeited his argument that the section 1202.4 restitution fine
violated the Eighth Amendment and California Constitution.
(See, e.g., People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7
[failure to object to alleged Eighth Amendment error forfeits
issue on appeal].)
We also reject Mitchell’s contention, raised in the
alternative, that his counsel’s failure to object constituted
ineffective assistance of counsel. To establish ineffective
assistance of counsel, an appellant bears the burden of showing
prejudice, meaning a reasonable probability that but for the
challenged act or omission of counsel, the appellant would have
obtained a more favorable result. (People v. Centeno (2014) 60
22 Our Supreme Court has granted review in People v. Kopp
(2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844,
on the issue of whether a trial court must “consider a defendant’s
ability to pay before imposing or executing fines, fees, and
assessments,” and if so, “which party bears the burden of proof
regarding defendant’s inability to pay.”
38
Cal.4th 659, 674-676; see also In re Crew (2011) 52 Cal.4th 126,
150 [“If a claim of ineffective assistance of counsel can be
determined on the ground of lack of prejudice, a court need not
decide whether counsel’s performance was deficient”].) Although
Mitchell suggests there is a reasonable probability he would have
obtained a more favorable result, he identifies no support in the
record for the assertion that the trial court would have found he
lacked the ability to pay the fines and assessments. (Cf. People v.
Aviles (2019) 39 Cal.App.5th 1055, 1075-1076 [inability to pay
costs of appointed counsel does not establish inability to pay
restitution fine or other court-imposed fees].) Further, the court
might have found him able to pay the fine and assessments from
prison wages. (See id. at pp. 1075-1077 [any Dueñas error was
harmless due to defendant’s ability to earn prison wages equaling
amount of fine and assessments]; People v. Jones (2019) 36
Cal.App.5th 1028, 1035 [same]; People v. Johnson (2019) 35
Cal.App.5th 134, 139-140 [same].) He therefore fails to satisfy his
burden to show prejudice.
VII. Mitchell’s Griffin23 Error Argument
Brown argues his trial counsel was prejudicially ineffective
in failing to object when the prosecution committed Griffin error
during closing argument. Brown takes issue with the following
statement the prosecution made during rebuttal closing: “And I
can promise you, if they were going to a fast food place, that
would be something you would hear about.” Brown contends the
statement was improper because the jury could have interpreted
it as remarking on the accused’s failure to take the stand and
23 Griffin v. California (1965) 380 U.S. 609, 615, 14 L. Ed. 2d
106, 85 S. Ct. 1229 (Griffin).
39
deny guilt. Although Brown’s argument is moot with respect to
him, Mitchell joined Brown’s argument. We therefore address the
issue as it pertains to Mitchell and, as discussed in greater detail
below, reject the argument because Mitchell cannot demonstrate
prejudice.
A. Procedural Background
During the initial closing argument, the prosecution stated:
The other thing I want you to remember as we talk
about the facts and the law in this case is why did the
[appellants] choose to walk down this alley? Why did they
choose to walk down this alley? We have no evidence of
where they were going because you have all the evidence
that’s been presented to you. But we know that they chose
to walk down this alley. We know who they are. And we
know where this alley is. And we know who’s there in the
alley that day. So other than looking for trouble, other than
setting up exactly what they were there to set up, why else
did they choose to walk down the alley?
During closing argument, appellant Brown’s counsel stated:
. . . First, the D.A made a big deal asking the
question what was Jeffrey Brown doing walking down the
alley that day? And the answer is, well, he told Detective
Pearce he was leaving a dispensary. If you look at the
D.A.’s own map, Google map image, you can see a block
away the map says Bud Shop. We all know what that
means. It’s at the corner of 91st and Compton Avenue on
their own map. And you know what? The alley where they
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were walking is in between that marijuana dispensary and
the park.
The thing is you can’t speculate [about] that, because
they were walking through the alley, that they were going
to get into trouble. They could have just [as] likely been
walking through there to go to a fast food joint or a friend’s
house[¶]. . . .[¶] . . . It’s ridiculous for the prosecution to say
they don’t belong there.
In rebuttal, the prosecution stated:
[T]here’s no evidence or reason for [appellants] to be
there. And I understand [counsel] got up here and said, we
don’t know if they were going to a fast food place or live in
the area. There’s no evidence of that. And I can promise
you, if they were going to a fast food place, that would be
something you would hear about. So that’s not—you cannot
speculate as to where they were going if there’s no evidence
of it.
We also know and it’s an undisputed fact that the
area they were in, that alley is in the opposite direction of
their stronghold. There’s no dispute that the park they
usually hang out in is close by. It definitely is. And had
they gone to that Bud Shop that’s in that map, they could
have very easily walked up to that area in the park by
going up Compton or going up 90th or 89th. Why did they
come down south and choose to walk through the alley that
day? Why? Nobody can answer that question. Or at least
[the] defense never answered that question.
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It’s undisputed that they were walking with their
hoods up. I understand counsel said look at the trees. It’s
windy. It’s also 87 degrees. So it’s not going to be a cold
wind. Why are you walking through that alley with your
hoods up?
Also, if you are actually going to hang out because
you just got some weed and you are going to go home and
go to the fast food place and you’re casually with your
homie walking through the alley, why aren’t you walking
together? Because that would be reasonable. And that’s
what would make sense. Hey, Mr. Brown. Let’s go walk
through the alley. We’re just walking through, cruising. Oh
no. We got attacked. Why are you walking with your hoods
up 30 seconds apart if you aren’t planning an attack and if
you aren’t there for a reason.
B. Relevant Law
“[T]he Fifth Amendment . . . forbids either comment by the
prosecution on the accused’s silence or instructions by the court
that such silence is evidence of guilt.” (Griffin, supra, 380 U.S. at
p. 615, fn. omitted.) “The prosecutor’s argument cannot refer to
the absence of evidence that only the defendant's testimony could
provide.” (People v. Brady (2010) 50 Cal.4th 547, 565-566.) “The
rule, however, does not extend to comments on the state of the
evidence or on the failure of the defense to introduce material
evidence or to call logical witnesses.” (Id. at p. 566.)
“A defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion, and on the same ground,
the defendant objected to the action and also requested that the
jury be admonished to disregard the perceived impropriety.”
42
(People v. Thornton (2007) 41 Cal.4th 391, 454.) “A defendant
whose counsel did not object at trial to alleged prosecutorial
misconduct can argue on appeal that counsel’s inaction violated
the defendant’s constitutional right to the effective assistance of
counsel.” (People v. Lopez (2008) 42 Cal.4th 960, 966.)
To succeed on a claim of ineffective assistance of counsel,
the defendant must establish both: (1) counsel’s performance was
deficient because it fell below an objective standard of reasonable
competence; and (2) prejudice resulted. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688, 694 [104 S.Ct. 2052, 80 L.Ed.2d
674]; In re Welch (2015) 61 Cal.4th 489, 514.) “‘Surmounting
Strickland’s high bar is never an easy task.’]” (Harrington v.
Richter (2011) 562 U.S. 86, 105 [131 S.Ct. 770, 178 L.Ed.2d 624].)
To establish prejudice, the defendant must demonstrate “‘a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” (In re Gay (2020) 8 Cal.5th 1059,
1086.)
C. Analysis
Brown argues his counsel was prejudicially ineffective in
failing to object to the following statement the prosecution made
during rebuttal closing: “And I can promise you, if they were
going to a fast food place, that would be something you would
hear about.” Brown contends the “prosecutor’s comments here
constituted classic Griffin error because ‘the jury could have
interpreted the prosecutor’s remarks as commenting upon
defendant’s failure to take the stand and deny his guilt.’”
As mentioned above, because Mitchell joined the argument,
and because the argument is moot with respect to Brown, our
43
analysis pertains only to Mitchell. Turning to Mitchell, we reject
the contention that counsel was prejudicially ineffective in failing
to object to the prosecution’s rebuttal closing statement. Even
assuming the prosecution’s statement was Griffin error, and
assuming counsel was deficient in failing to object, Mitchell
cannot demonstrate prejudice. The evidence presented against
him was strong. When officers arrested Mitchell, he was in
possession of the gun used to shoot Givehand and the other
victims. He then admitted to the police that he had been in the
alley the day of the shooting. He and Brown made incriminating
statements to one another at the police station, and he made
incriminating statements on a phone call with his girlfriend, all
of which were recorded and played for the jury. Officers Armenta
and Ybanez offered lay opinion to the jury, based on numerous
prior encounters, that Mitchell was the shooter in the
surveillance video. In short, Mitchell cannot sustain his burden of
demonstrating a reasonable probability that the results of the
proceedings would have been different had counsel objected. (See
In re Gay, supra, 8 Cal.5th at p. 1086.)
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DISPOSITION
The judgment as it pertains to Brown is reversed, and the
true findings on all allegations relating to him are vacated.
Mitchell’s attempted murder convictions on counts two and three
are reversed, and the true findings on the allegations attached to
those counts are vacated. The true findings on all gang-related
allegations pertaining to Mitchell on count one (i.e., §§ 186.22,
subd. (b)(1)(C) & 12022.53, subd. (e)(1)) are also vacated in light
of AB 333. In all other respects, the judgment as it pertains to
Mitchell is affirmed. The prosecution may elect to retry Brown
and Mitchell on all counts and allegations reversed and vacated
in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, Acting P. J.
We concur:
COLLINS, J.
DAUM, 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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