People v. Tucker CA2/7 ( 2023 )

Filed 8/22/23 P. v. Tucker CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B317092
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Case
v. No. NA111269)
ISAIAH JAMES TUCKER et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County, Laura Laesecke, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal,
for Defendant and Appellant Isaiah James Tucker.
Tracy J. Dressner, under appointment by the Court of
Appeal, for Defendant and Appellant Phillip Bullard, Jr.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithy, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Eric J. Kohm, Deputy Attorney General,
for Plaintiff and Respondent.
________________________
A jury convicted Isaiah James Tucker and Phillip
Bullard, Jr. of first degree premeditated murder and found true
specially alleged firearm and criminal street gang enhancements.
The court struck the enhancements and sentenced both Tucker
and Bullard to indeterminate state prison terms of 50 years
to life.
1
On appeal Tucker and Bullard contend the court’s aiding
and abetting instruction (CALJIC No. 3.01) improperly allowed
the jury to convict them of murder based on imputed malice; the
jury’s findings of premeditation were not supported by
substantial evidence; and the trial court effectively vouched for
the accuracy of the People’s evidence when overruling a defense
objection during closing argument. They also contend the court
erred in denying Bullard’s motion to bifurcate the gang
enhancements and, even if the ruling denying bifurcation was
proper when made, section 1109, part of Assembly Bill No. 333
(Stats. 2021, ch. 699, § 3) (Assembly Bill 333), effective
January 1, 2022, mandating bifurcation of gang enhancements
when requested, is retroactive to cases not yet final and requires
reversal of their convictions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An information filed May 21, 2020 charged Tucker and
2
Bullard with murder (Pen. Code, § 187, subd. (a)) (count 1) and
1
Tucker and Bullard have joined the arguments in each
other’s separate briefs to the extent pertinent. (Cal. Rules of
Court, rules 8.200(a)(5), 8.360(a).)
2
Statutory references are to this code.
2
Bullard with possession of a firearm by a felon (§ 29800,
3
subd. (a)(1)) (count 3).
The information specially alleged the murder had been
committed to benefit a criminal street gang (§ 186.22,
4
subd. (b)(1)(C)), Bullard personally used and intentionally
discharged a firearm causing death (§ 12022.53, subds. (b), (c),
(d)) and a principal intentionally discharged a firearm causing
death (§ 12022.53, subds. (c), (d), (e)(1)). It also alleged Bullard’s
firearm offense was committed to benefit a criminal street gang.
(§ 186.22, subd. (b)(1)(A).)
Finally, the information specially alleged Tucker and
Bullard had each suffered a prior conviction for a serious felony
within the meaning of section 667, subdivision (a), and a prior
conviction for a serious or violent felony within the meaning of
the three strikes law (§§ 667, subds. (b)-(i), 1170.12).
Tucker and Bullard pleaded not guilty and denied the
special allegations.
2. The Evidence at Trial
a. The bar fight and shooting
In January 2019 Johnisha Brown asked her boyfriend,
Maurice Ross, to meet her at a Long Beach bar known to be a
3
The information also charged a third defendant, Rodney
Willis, with first degree murder and being a felon in possession of
a firearm. Willis, who was tried together with Tucker and
Bullard, is not a party on appeal.
4
At times we employ the shorthand “to benefit a criminal
street gang” to mean for the benefit of, at the direction of or in
association with a criminal street gang with the specific intent to
promote, further or assist in criminal conduct by gang members.
(See § 186.22, subd. (b)(1).)
3
hangout for the Insane Crips criminal street gang. Brown had
been invited to the bar by her friend, Sharell Johnson, who was
bartending there. Before Ross arrived, Brown had asked Johnson
if there were “any gangbangers” in the bar, telling her Ross was a
member of the Bloods, a rival of the Insane Crips. Johnson
assured her there were not.
Brown left the bar briefly to meet Ross at the nearby train
station. Rodney Willis, an associate of the Insane Crips, was at
the bar speaking with Johnson when Brown returned with Ross.
Brown and Ross sat down at the bar; Willis sat at a table behind
them. Shortly thereafter Tucker and Bullard arrived at the bar
in Tucker’s SUV. Willis stepped outside to meet them. Willis
spoke to Tucker and Bullard for a few minutes before all three
men entered the bar together.
Inside the bar Ross used Brown’s cell phone to record
himself making gang signs indicating his membership in the
Bloods. Brown told him to stop. Ross left the table to use the
restroom. When Ross returned, he saw Bullard speaking with
Brown and confronted him about flirting with his girlfriend.
Bullard apologized. Ross and Brown went outside to smoke.
Tucker, Bullard, Willis and several other individuals followed
them. Outside the bar Bullard and Ross shook hands, seemingly
diffusing any animosity between them. Willis, however,
remained very angry that Ross was in Insane Crips territory and
began “gangbanging Ross.” Ross said to someone else in the
group, “What’s up with you weird ass Long Beach Niggas?”
Willis took that comment as a sign of disrespect. Willis identified
himself as “Eastside Insane,” and he or Tucker told Ross he was
in the wrong city. Ross responded he “fucks with Eastside.” The
confrontation escalated. Bullard and Willis backed Ross up
4
against the building. Willis swung at Ross with a closed fist as if
to punch him in the face, but Willis missed and fell to the ground.
Ross ran away. Brown followed Ross at a slower pace.
Willis ran back to the bar to go inside; but, when Johnson
stopped him from entering, he immediately ran after Ross while
Bullard walked slowly behind them. Tucker, too, followed.
Tucker and Willis suddenly changed direction and ran back
toward the bar and Tucker’s SUV. As Tucker ran past Brown,
she heard him shout, “I’m going to get the blower,” which Brown
interpreted to mean a gun. Brown yelled at Ross to run. Tucker
got into the driver’s seat of his SUV; Bullard entered the SUV on
the front passenger’s side; and Willis, who had retrieved his
backpack from the bar, joined them in the vehicle. The group
drove toward the train station. When they saw Ross on the train
platform, Tucker stopped the SUV; and all three men ran out.
Willis and Tucker chased Ross; Bullard got into the driver’s seat.
Willis caught up to Ross; and Ross hit him in the face,
causing Willis to fall to the ground and chip a tooth. Ross fled.
When Ross ran behind the SUV, Bullard drove the car in reverse
as if trying to strike Ross. Ross managed to escape being hit, but
seconds later two residents (a husband and wife) of a nearby
apartment building saw the driver of the SUV extend his arm out
the window with what appeared to be a gun and heard several
gunshots. (At trial the husband stated he had early onset
dementia and could not remember what he had told police the
night of the shooting. The wife remembered telling police she
saw the shooting, but acknowledged she was not sure if what she
saw in the driver’s hand was a gun. She did know the object was
shiny, and she heard gunshots right after seeing it.)
5
Brown, who had followed Ross and was near the
passenger’s side of the SUV when the gunfire occurred, also
heard the shots and saw muzzle flashes coming from the SUV’s
driver’s side. Brown was certain the driver, whom she did not
see, was the shooter. Because she had seen Tucker drive away
from the bar to follow Ross, Brown believed Tucker was the
driver. Surveillance footage indicated Bullard was driving by the
time the shooting occurred.
Ross was shot in the back and killed. Brown saw the SUV
speed away from the scene. Tucker hid the SUV with friends and
relatives.
After the shooting Willis ran back to the bar. He was later
picked up at the bar in a car belonging to Bullard.
Most of the confrontation inside and outside the bar and
the ensuing chase was captured on surveillance cameras. The
footage was played for the jury. The shooting itself was not
recorded by surveillance cameras.
b. Willis’s custodial interview
Bullard and Tucker were arrested a few weeks after the
shooting. Willis remained at large for several months until he
turned himself in. During his custodial interview Willis said he
heard Brown and Johnson talking and had known Ross was a
member of the Bloods before Ross arrived at the bar. When Ross
disrespected the Insane Crips, Willis chased Ross intending to
beat him up, not shoot him. Willis said he had been drinking
alcohol all day and was very drunk. He withdrew his
semiautomatic nine-millimeter gun from his pocket and fired his
weapon only after hearing a gunshot and a window shatter above
him; he believed someone was shooting at him. Willis said he did
not intend to kill anyone. He did not show his gun to Tucker or
6
Bullard and did not know about any gun in the SUV other than
the one he carried with him. He claimed the fight happened
because everyone was drunk. It had nothing to do with “gangster
shit.”
c. The People’s ballistics evidence
No firearm was ever recovered. Police found seven
cartridge casings from a nine-millimeter semiautomatic gun on
the corner of Anaheim Street and Locust Avenue; four bullet
fragments found nearby were also from a nine-millimeter
weapon. While all the fragments came from a single weapon, and
all the casings came from a single weapon, it could not be
determined if the casings and fragments came from the same
weapon. Another bullet fragment found inside a building was too
small to determine whether it came from the same gun as the
casings or other fragments. Police discovered an oval-shaped
bullet hole in a window of a business at 205 E. Anaheim Street
where Willis had said he had heard a window shatter. The
People’s firearms expert acknowledged that she did not conduct a
bullet trajectory analysis.
d. The People’s gang expert
Long Beach Police Officer Fernando Archuleta testified as
an expert on the Insane Crips. Archuleta stated the bar was
located in Crips territory and frequented by Insane Crips. Based
on Tucker’s tattoos and Willis’s statements, Archuleta opined
Tucker was an Insane Crips member and Willis an associate.
Archuleta was not personally aware whether Bullard belonged to
any gang. Asked by the prosecutor about Bullard’s tattoo of the
number 211, Archuletta briefly stated he was familiar with the
number “because that’s the Penal Code for robbery” and there is
a Crips gang located in the City of Lynwood called the 211 Crips.
7
He also stated Bullard had told him one time during a traffic stop
that he was from Lynwood. On cross-examination Archuleta
clarified he had no expertise concerning the 211 Crips and no
knowledge whether Bullard’s 211 tattoo signified membership in
any gang. Archuleta opined, based on a hypothetical scenario
resembling the facts of the case, that the shooting was committed
to benefit the Insane Crips.
The jury also heard evidence the primary activities of the
gang included robberies, burglaries, batteries, possession of
firearms and narcotics sales, “escalating up to shootings that
result in murders.” Long Beach Police Officer Chris Zamora also
presented evidence of the gang’s predicate acts: One Insane
Crips gang member pleaded guilty to voluntary manslaughter in
2014, and another was convicted of murder and attempted
robbery with a gang enhancement in 2010.
e. The People’s theory of the case
The People argued there were two shooters: Willis and
Bullard. The prosecutor told the jury it did not have to decide
which man shot the bullet that killed Ross to find all three men
guilty of first degree premeditated murder. According to the
People’s theory of the case, Willis, Bullard and Tucker had joined
together in a planned effort to hunt down Ross and kill him in
retaliation for Ross’s disrespect of the Insane Crips in its
territory.
f. The defense case
Tucker and Bullard did not testify. Willis, testifying in his
own defense, told a somewhat different story from the one he
related during his custodial interview. Although he told police he
fired his gun only after hearing a gunshot, Willis testified that on
reflection he did not think the sound he had heard was a gunshot
8
and believed he had been the only shooter. He later said he lied
to police when he told them he had heard a gunshot.
David Kim, a forensic criminalist, opined, based on his
experience, the location of the bullet casings and his trajectory
analysis, the shot that killed Ross could not have come from any
of the occupants in the SUV.
The defendants’ counsel presented different theories of the
case. Bullard’s counsel argued Bullard entered the SUV with
Tucker not as part of a plan to hunt down Ross, but because
Tucker was his ride home. When he got in the SUV, Willis had
not yet jumped in with his backpack, which Bullard’s counsel,
like the prosecutor, argued contained the gun used in the
shooting. Then, when Tucker stopped the SUV to chase Ross,
Bullard moved to the driver’s seat to drive the car away from
traffic, not to chase Ross. And, counsel noted, there was no
evidence Bullard was in any gang or had any interest in assisting
Tucker or Willis in retaliating for Ross’s disrespect of the Insane
Crips. As for the witnesses’ testimony the SUV driver had fired a
gun several times, Bullard’s counsel posed an alternative theory:
Bullard had stopped the SUV to pick up Tucker at the same time
Willis, chasing Ross on foot, shot at Ross, leading witnesses to
believe, erroneously, that the shots were from the SUV, not from
Willis’s location on the street or sidewalk. Emphasizing the
testimony of the defense ballistics expert, Bullard’s counsel
argued, based on the number and location of the bullet casings
and the trajectory analysis, Willis fired the shots, not anyone in
the SUV.
Tucker’s counsel argued similarly, adding, the words, “I’ll
get the blower,” if said at all, were uttered by Willis, who was
closer to Brown than Tucker when she heard the comment. He
9
argued there was no evidence Tucker had been armed or knew
Willis was armed and that the evidence showed only an intent by
Tucker to beat Ross up, not a premeditated plan to kill him.
Willis’s counsel articulated a different theory. Highlighting
Brown’s testimony about the shooting, including her testimony
that she had kept her eyes on Willis as he chased Ross and never
saw him with a gun, Willis’s counsel argued that Willis had not
been armed and was not the shooter. He also argued, using the
defense trajectory analysis, one of the bullet fragments could not
have come from Willis’s location on the sidewalk. As for Willis’s
motive to lie about his role in the shooting, his counsel argued,
based on testimony from the gang expert, it was common for gang
members or associates to take the blame to protect a more senior
member. Willis’s counsel argued in the alternative, even if the
jury found Willis was armed and had fired his weapon, Willis was
heavily intoxicated and unable to formulate a specific intent to
kill, let alone do so with premeditation and deliberation.
3. Jury Instructions
The court instructed the jury on, among other things,
murder (CALJIC No. 8.10), premeditation and deliberation
(CALJIC No. 8.20) and direct aiding and abetting (CALJIC
Nos. 3.00, 3.01).
4. Verdict and Sentence
The jury found Tucker and Bullard guilty of first degree
premeditated murder and Bullard guilty of being a felon in
possession of a firearm. The jury found true as to both men the
enhancement allegation that a principal had intentionally
discharged a firearm causing death and found not true the
special allegation that Bullard had personally used or
intentionally discharged a firearm causing death. The jury found
10
5
all gang enhancements true. The court denied Tucker’s and
Bullard’s new trial motions, finding the evidence sufficient to
support the verdict.
In a bifurcated proceeding Tucker and Bullard admitted
they each had suffered a prior serious or violent felony under the
three strikes law and a serious felony under section 667,
subdivision (a). The court sentenced Tucker and Bullard to
50 years to life, 25 years to life for first degree premeditated
murder, doubled under the three strikes law. The court struck
all other special allegations, including the firearm enhancement,
gang enhancement, and the section 667, subdivision (a), serious
felony enhancement in the interest of justice.
DISCUSSION
1. The Trial Court Properly Instructed the Jury on Direct
Aiding and Abetting Principles
a. Governing law
“Murder is the unlawful killing of a human being . . . with
malice aforethought.” (§ 187, subd. (a).) Malice may be express or
implied. Malice is express when there is intent to kill. (§ 188,
subd. (a)(1).) It is implied when the killing is proximately caused
by an act, the natural consequences of which are dangerous to
human life and the act was deliberately performed by a person
who knows that his or her conduct endangers human life and acts
in conscious disregard for human life. (People v. Reyes (2023)
14 Cal.5th 981, 988.)
If the murder is “willful, deliberate, and premeditated,” it is
first degree murder. (§ 189, subd. (a); see People v. Brooks (2017)
5
At the time the jury returned its verdicts for Tucker and
Bullard, it had not reached a verdict on the charges against
Willis. The record does not reflect the outcome of Willis’s trial.
11
3 Cal.5th 1, 58.) “‘“‘[P]remeditated’ means ‘considered
beforehand,’ and “deliberate’ means ‘formed or arrived at or
determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.’”’”
(People v. Potts (2019) 6 Cal.5th 1012, 1027.) “‘“An intentional
killing is premeditated and deliberate if it occurred as the result
of preexisting thought and reflection rather than unconsidered or
rash impulse.”’ [Citations.] ‘The true test is not the duration of
time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly. . . .’ [Citation.] Such
reflection may be revealed by planning activity, motive and the
manner of the killings, among other things.” (Id. at p. 1027.)
For a person to be liable as a direct aider and abettor of
express malice murder, the prosecution must prove the
“defendant aided or encouraged the commission of the murder
with knowledge of the unlawful purpose of the perpetrator and
with the intent or purpose of committing, encouraging, or
facilitating its commission.” (In re Lopez (2023) 14 Cal.5th 562,
579; accord, People v. Reyes, supra, 14 Cal.5th at pp. 990-991
[“‘[d]irect aiding and abetting is based on the combined actus reus
of the participants and the aider and abettor’s own mens rea’”];
People v. McCoy (2001) 25 Cal.4th 1111, 1122.) When an aider or
abettor, with his or her own mens rea of premeditation and
deliberation, knowingly and intentionally assists a confederate to
kill someone, the aider and abettor is guilty of first degree
premeditated murder. (In re Lopez, at p. 579.)
To be liable for an implied malice murder as an aider or
abettor, “‘the direct aider and abettor must, by words or conduct,
aid the commission of the life-endangering act, not the result of
12
that act. The mens rea, which must be personally harbored by
the direct aider and abettor, is knowledge that the perpetrator
intended to commit the act, intent to aid the perpetrator in the
commission of the act, knowledge that the act is dangerous to
human life, and acting in conscious disregard for human life.’”
(People v. Reyes, supra, 14 Cal.5th at p. 991.)
a. CALJIC 3.01 did not permit the jury to impute the
perpetrator’s express malice to Tucker
In addition to instructing the jury on murder and
premeditation and deliberation, the court instructed the jury
with CALJIC No. 3.01 on aiding and abetting: “A person aids
and abets the commission of a crime when he or she: [¶] (1) With
knowledge of the unlawful purpose of the perpetrator, and [¶]
(2) With the intent or purpose of committing or encouraging or
facilitating the commission of the crime, and [¶] (3) By act or
advice, aids, promotes, encourages or instigates the commission
of the crime. [¶] A person who aids and abets the commission of
a crime need not be present at the scene of the crime. [¶] Mere
presence at the scene of a crime which does not itself assist the
commission of the crime does not amount to aiding and abetting.
[¶] To be guilty as an aider or abettor, the defendant’s intent or
purpose of committing or encouraging or facilitating the
commission of the crime by the perpetrator must be formed
before or during the commission of the crime. [¶] Mere
knowledge that a crime is being committed and the failure to
prevent it does not amount to aiding and abetting.”
While acknowledging that CALJIC No. 3.01 accurately
states the law of aiding and abetting in general and that he was
tried as a direct aider and abettor and not under the natural and
probable consequences doctrine or some other theory of imputed
13
6
malice, Tucker nonetheless contends CALJIC No. 3.01 in this
case improperly permitted the jury to find him guilty of first
degree premeditated murder based solely on his participation in
an aggravated assault. Tucker’s reliance on People v. Powell
(2021) 63 Cal.App.5th 689 (Powell), People v. Langi (2022)
73 Cal.App.5th 972 (Langi) and People v. Maldonado (2023)
87 Cal.App.5th 1257 (Maldonado) to support this argument is
7
misplaced.
In Powell, supra, 63 Cal.App.5th 689 the defendants were
convicted of second degree murder for the stabbing death of the
victim. The jury was instructed under two theories of accomplice
6
Before the Legislature substantially modified the law
relating to accomplice liability for murder in Senate Bill No. 1437
(stats. 2018, ch. 1015, § 1), a person could be convicted of murder
based on imputed malice—that is, without the mens rea required
for murder—under the natural and probable consequences
doctrine or the felony-murder rule. (See People v. Gentile, supra,
10 Cal.5th at pp. 844-845.) Senate Bill No. 1437 eliminated the
natural and probable consequences doctrine as a basis for finding
murder liability (Gentile, at pp. 842-843) and significantly
narrowed the felony-murder exception to the malice requirement
for murder. (See §§ 188, subd. (a)(3), 189, subd. (e).)
7
We determine independently whether a jury instruction
correctly states the law. (People v. Posey (2004) 32 Cal.4th 193,
218.) We consider the correctness of the instructions from the
entire charge of the court, and not from a single instruction.
(People v. Castillo (1997) 16 Cal.4th 1009, 1016; People v.
Quinonez (2020) 46 Cal.App.5th 457, 465-466.) Where there is an
ambiguity, “we inquire whether there is a reasonable likelihood
that the jury misunderstood or misapplied the instruction in a
manner” that violates due process. (People v. Covarrubias (2016)
1 Cal.5th 838, 906.)
14
liability for second degree murder: (1) the then-permissible
imputed malice theory of culpability under the natural and
probable consequences doctrine (CALCRIM No. 403) with the
target offense assault with force likely to produce great bodily
8
injury, and (2) direct aiding and abetting (CALCRIM No. 401).
On appeal one of the defendants, Langlois, argued as a matter of
law an aider or abettor could not be found guilty of an implied
malice murder under a direct aiding and abetting theory because
such a murder was based solely on the natural and probable
consequences of the perpetrator’s act. The Powell court properly
rejected that argument, citing People v. Gentile (2020) 10 Cal.5th
830, 847 (describing the difference between imputed malice,
which requires no mens rea for murder, and implied malice,
which does). (Powell, at p. 713; see also People v. Reyes, supra,
14 Cal.5th at p. 990 [aiding and abetting an implied malice
8
CALCRIM No. 401 and CALJIC No. 3.01 are substantially
similar. CALCRIM No. 401 provides, “To prove that the
defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that: [¶] 1. The perpetrator
committed the crime; [¶] 2. The defendant knew that the
perpetrator intended to commit the crime; [¶] 3. Before or during
the commission of the crime, the defendant intended to aid and
abet the perpetrator in committing the crime; [¶] AND [¶] 4. The
defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime. [¶] Someone aids and
abets a crime if he or she knows of the perpetrator’s unlawful
purpose and he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime. [¶] If all of these requirements are
proved, the defendant does not need to actually have been
present when the crime was committed to be guilty as an aider
and abettor.”
15
murder remains a valid theory of murder liability
notwithstanding Senate Bill No. 1437’s amendments to
sections 188 and 189].)
However, the Powell court agreed with Langlois that
CALCRIM No. 401’s aiding and abetting instruction was not well
suited to the crime of implied malice murder. “[D]irect aiding
and abetting is based on the combined actus reus of the
participants and the aider and abettor’s own mens rea.” (Powell,
supra, 63 Cal.App.5th at pp. 712-713, citing People v. McCoy,
supra, 25 Cal.4th at p. 1122.) In the context of implied malice,
the Powell court wrote in language subsequently quoted in People
v. Reyes, supra, 14 Cal.5th at page 991, the actus reus required of
the perpetrator is the commission of a life-endangering act. “For
the direct aider and abettor, the actus reus includes whatever
acts constitute aiding the commission of the life-endangering act,
not the result of that act. The mens rea . . . is knowledge that the
perpetrator intended to commit the act, intent to aid the
perpetrator in the commission of the act, knowledge that the act
is dangerous to human life, and acting in conscious disregard for
human life.” (Powell, at pp. 712-713.) By couching “direct aiding
and abetting liability in terms of the aider and abettor knowing
the perpetrator intended to commit the crime, the aider and
abettor intending to aid and abet the perpetrator in committing
the crime, and that, by words or conduct the aider and abettor in
fact aided the perpetrator’s commission of the crime,” the
instruction failed to properly focus on the aider and abettor’s
knowledge the perpetrator’s act was dangerous to human life and
conscious disregard for that danger. (Id. at p. 714.) In this way,
the court held, CALCRIM No. 401 was “not tailored for” an
implied malice murder. (Ibid.)
16
In the case before it, however, the Powell court held any
error in the instruction was harmless beyond a reasonable doubt.
(Powell, supra, 63 Cal.App.5th at p. 714.) The court explained
that the People did not argue Langlois was guilty as a direct
aider and abettor of an implied malice murder; they argued he
directly aided and abetted an express malice murder or he was
guilty of second degree murder under the natural and probable
consequences doctrine. Because the jury necessarily found
Langlois guilty of second degree murder either under the easier-
to-prove natural and probable consequences doctrine or as a
direct aider and abettor of an express malice murder, the failure
to tailor CALCRIM No. 401 to implied malice murder was
9
necessarily harmless. (Powell, at pp. 715-716.)
In Langi, supra, 73 Cal.App.5th 972 a defendant convicted
in 2007 of second degree murder for the beating death of the
victim petitioned the court under section 1172.6 (former
section 1170.95), seeking resentencing on the ground he had been
convicted under a theory of imputed malice. While
acknowledging the jury had not been given a natural and
probable consequences instruction (and the jury found him not
guilty of felony murder), the court, citing Powell, supra,
63 Cal.App.5th 689, found CALJIC No. 3.01 effectively permitted
9
The Powell court did not consider the validity of Langlois’s
conviction under the natural and probable consequences doctrine
because the Supreme Court had held Senate Bill No. 1437’s
amendments eliminating the natural and probable consequences
doctrine as a theory of accomplice liability for murder could only
be raised by a petition for postconviction relief. (People v. Gentile,
supra, 10 Cal.5th at pp. 854-855.) The Legislature subsequently
provided that a defendant could raise the argument on direct
appeal. (See § 1172.6, subd. (g).)
17
the jury to find he had aided and abetted a second degree murder
based on his participation in “the crime,” without having to find
he aided the perpetrator with knowledge of, and conscious
disregard for, the fact the perpetrator’s act was dangerous to
human life. Because the court could not conclude as a matter of
law that the jury did not find the defendant guilty of an implied
malice murder based on an improper theory, the court reversed
the order finding the defendant ineligible for resentencing relief
as a matter of law and remanded the matter for an evidentiary
hearing. (Langi, at p. 984.)
The Powell/Langi analysis concerning the propriety of
CALCRIM No. 401 and CALJIC No. 3.01 in cases involving
implied malice murder does not assist Tucker. The People’s
theory of the case was that Tucker was guilty of aiding and
abetting an express malice murder. The jury, properly instructed
as to premeditation and deliberation and aiding and abetting,
found Tucker guilty of first degree murder, necessarily
concluding he had harbored both express malice and the elevated
mens rea of premeditation and deliberation. (Cf. People v. Coley
(2022) 77 Cal.App.5th 539, 547 [when jury convicted appellant of
attempted murder, it necessarily found intent to kill, express
malice; Powell and Langi, which found CALCRIM No. 401 and
CALJIC No. 3.01 “ill suited” to implied malice murder cases, are
inapposite].)
Misreading Maldonado, supra, 87 Cal.App.5th 1257,
Tucker contends Powell and Langi’s analysis is not limited to
second degree murder cases and applies to first degree
premeditated murder. In Maldonado a defendant convicted in
2013 of first degree lying-in-wait murder petitioned the court
under section 1172.6 for postconviction relief, arguing CALCRIM
18
No. 401 permitted the jury to convict him based on his
participation in the crime and not on the proper mental state
required for implied malice murder. The court agreed because
first degree lying-in-wait murder, unlike first degree
premeditated murder, could be accomplished with implied rather
than express malice, making use of CALCRIM No. 401
problematic: “The People argue Powell and Langi are
distinguishable because the convictions in those cases were for
second degree murder, while appellant was convicted of first
degree murder. The distinction is immaterial because, as
explained above, first degree lying-in-wait murder can be based
on a theory that the perpetrator acted with implied malice rather
than an intent to kill. Powell and Langi’s analyses of the
standard instructions for aiding and abetting an implied malice
murder apply here.” (Maldonado, at p. 1267.)
As discussed, the People argued at trial, and the jury
found, that Tucker was guilty as an aider and abettor of an
express malice, premeditated murder. The court’s instructions on
premeditation and deliberation, together with CALJIC
10
Nos. 3.00 and 3.01, ensured that Tucker was convicted as a
direct aider and abettor based on his individual mental state and
10
In addition to CALJIC No. 3.01, the court instructed the
jury with CALJIC No. 3.00: “When the crime charged is murder,
the aider and abettor’s guilt is determined by the combined acts
of all the participants as well as that person’s own mental state.
If the aider and abettor’s mental state is more culpable than that
of the actual perpetrator, that person’s guilt may be greater than
that of the actual perpetrator. Similarly, the aider and abettor’s
guilt may be less than the perpetrator’s if the aider and abettor
has a less culpable mental state.”
19
not simply his participation in the crime. Whether we find it is
not reasonably possible the jury interpreted the instructions in
the manner Tucker suggests or that any error in the instruction
is harmless in light of the jury’s premeditation and deliberation
findings (cf. Powell, supra, 63 Cal.App.5th at pp. 715-716), the
result is the same: Tucker’s conviction for first degree
premeditated murder stands, provided it is supported by
11
substantial evidence.
2. Substantial Evidence Supports the Jury’s Findings of
First Degree Premeditated Murder for Both Tucker and
Bullard
a. Standard of review and governing law
In considering a claim of insufficient evidence in a criminal
case, “a reviewing court considers the entire record in the light
most favorable to the judgment below to determine whether it
contains substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—from which a rational
trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Mendoza (2011) 52 Cal.4th 1056, 1068-1069.)
“In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
11
Bullard joined in Tucker’s CALJIC No. 3.01 argument.
(See footnote 1.) It fails in his appeal for the same reasons.
20
evidentiary conflicts; we look for substantial evidence.
[Citation.]’ [Citation.] A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support”’ the
jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357;
accord, People v. Dalton (2019) 7 Cal.5th 166, 243-244; People v.
Penunuri (2018) 5 Cal.5th 126, 142.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 the
Supreme Court “identified three categories of evidence that tend
to establish a premeditated and deliberate murder—“planning,
motive, and method.” (People v. Ghobrial (2018) 5 Cal.5th 250,
278.) But “these factors do not “‘exclude all other types and
combinations of evidence that could support a finding of
premeditation and deliberation.’”” (People v. Lopez (2018)
5 Cal.5th 339, 355.) Rather, “‘[t]hey are simply an “aid [for]
reviewing courts in assessing whether the evidence is supportive
of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere
unconsidered or rash impulse.’”” (Ghobrial, at p. 278;
accord, People v. Gonzalez (2012) 54 Cal.4th 643, 663.)
b. Tucker
Tucker contends there was insufficient evidence to support
the jury’s finding he aided and abetted Ross’s murder, let alone
did so with premeditation and deliberation, arguing the primary
evidence of premeditation was his statement, “I’m going to get
the blower,” which Brown claimed meant a gun. Yet, he asserts,
there was no evidence that Brown had any expertise in street
language or that her understanding of “blower” as a slang term
for a firearm was correct. And, given the surveillance video
footage showing him running to his SUV, a Range Rover, it was
21
far more likely he had said, “I’m going to get the Rover.” In
addition, the prosecutor confused the matter during argument
when he coupled Tucker’s statement about “getting the blower”
with Willis’s retrieval of his backpack, indicating Tucker had
12
commanded Willis to get a weapon. Without his statement,
Tucker argues, the evidence at most establishes an intent to aid
and abet a fistfight, not a planned murder.
At the threshold, the contention Brown misunderstood
what Tucker had said was a matter for the jury, not this court.
Tucker does not argue Brown’s testimony was improperly
admitted; and his trial counsel argued its weight to the jury
(albeit without the Rover-reference argument Tucker’s counsel
makes on appeal).
The evidence, including Brown’s testimony, viewed in the
light most favorable to the prosecution, amply supported the
jury’s findings. Tucker, an Insane Crips gang member, angry at
Ross’s insult of his gang, chased Ross on foot. He stopped the
chase and returned to the bar telling his confederates, “I’m going
to get the blower,” which Brown interpreted to mean a gun.
Tucker and Bullard got in the SUV; and Tucker waited for Willis
to return to the car with his backpack, which the prosecutor and
Willis’s counsel argued contained Willis’s firearm, before driving
in pursuit of Ross.
12
During closing argument the prosecutor, referring to the
surveillance footage, commented, without objection, “This is
where Mr. Tucker says, ‘get the blower.’ And immediately
Mr. Willis goes into the bar to get his backpack because that’s
where one of the guns is. There is no other reason why Mr. Willis
goes into that bar except to get his gun. And now they’re going to
chase him down.”
22
Tucker asserts there was no evidence he was armed and no
direct evidence he knew Willis or Bullard was, emphasizing
Willis’s testimony that Willis did not tell anyone he had a gun.
Tucker made the same arguments to the jury, which rely on
favorable inferences drawn from the testimony and Willis’s
credibility and ignore less favorable ones from the People’s case.
There was substantial evidence of motive (gang retaliation),
planning (however brief) and intent to kill to support the jury’s
finding of first degree premeditated murder.
c. Bullard
Emphasizing that the jury found not true the special
allegation he had personally used or discharged a weapon
resulting in death, Bullard argues the jury necessarily found he
13
was not the shooter. To find him guilty of first degree murder,
he continues, the jury had to find he was an aider and abettor
acting with premeditation and deliberation. But, he argues, he
had no motive—he was not an Insane Crips gang member—and
was not so near Tucker when he referred to getting the “blower”
to necessarily hear Tucker’s words or to know that Tucker and
Willis intended to arm themselves and kill Ross. Bullard got into
the SUV because Tucker was his ride home, not as part of a
murderous plan. He was simply “in the wrong bar at the wrong
time with the wrong friend.”
Bullard’s premise that the jury necessarily determined he
was not the shooter misapprehends the legal significance of the
jury’s firearm enhancement findings. Inconsistent findings on a
13
Although the jury found Bullard guilty of being a felon in
possession of a firearm, he explains the jury necessarily found
only that he had “constructive” possession of a firearm, not that
he used it. (See CALJIC No. 12.44.)
23
substantive offense and a related enhancement are valid
provided the guilty verdict on the substantive charge is supported
by substantial evidence. (People v. Brugman (2021)
62 Cal.App.5th 608, 623; People v. Miranda (2011)
192 Cal.App.4th 398, 406; see generally People v. Lewis (2001)
25 Cal.4th 610, 656 [“it is well settled that, as a general rule,
inherently inconsistent verdicts are allowed to stand”; “[a]n
inconsistency may show no more than jury lenity, compromise, or
mistake, none of which undermines the validity of a verdict”].)
There was certainly substantial evidence that Bullard was
the shooter. Witnesses saw the driver of the SUV, which
surveillance footage indicated was Bullard, extend his arm to
shoot; the apartment’s residents heard gun shots immediately
after seeing the driver extend his arm; and Brown saw muzzle
flashes from the driver’s side of the car.
Moreover, whether or not he was the shooter, substantial
evidence established Bullard’s guilt as an aider and abettor of
first degree premeditated murder. While Bullard may have
sought in the beginning to hold himself apart from any dispute
between Willis and Ross, that changed outside the bar when
Bullard assisted Willis in backing Ross up against a wall. Then,
despite several chances to remove himself, he left with his
confederates to find Ross; got into the driver’s side of the SUV
when Tucker and Willis fled the SUV to chase Ross on foot; and,
instead of leaving the scene, backed up the SUV and attempted to
run over Ross, further evidencing an intent to kill.
As for Bullard’s claimed lack of motive, the jury was not
required to find Bullard was a gang member or associate to
conclude he aided and abetted his friends who were. The
evidence in the record fully supported the jury’s findings that,
24
whether the shooter or an aider or abettor, Bullard, together with
Tucker and Willis, hunted Ross down with the plan to kill him.
Bullard, like Tucker, may posit different inferences from the
evidence—and his counsel ably argued that more favorable
interpretation to the jury—but our task is simply to determine
whether the jury’s finding was supported by substantial evidence.
It was.
3. The Court’s Rulings and Comment During Closing
Argument, If Error at All, Were Not Prejudicial
a. Relevant proceedings
During cross-examination the prosecutor questioned the
defense firearms expert, David Kim, about the trajectory of the
shot that hit the window of the building at 205 E. Anaheim
Street. Referring to defense exhibit M., a photograph used by
Bullard’s counsel, and assuming Tucker’s SUV had been located
where the police car in the photograph was, the prosecutor asked,
“Is that a possible trajectory from the car?” Kim responded, “It’s
a better trajectory assumption than somebody shooting from
across the street.” However, Kim explained the location of the
bullet casings made it virtually impossible that the shot was fired
from the SUV. The prosecutor asked Kim to ignore the location
of the bullet casings and to focus on the bullet trajectory. If the
SUV had been in the same location as the police car depicted in
the photograph, “Is that a possible location” to explain bullet
fragment number 13 found in the apartment building? Kim
responded, “Just the proximity of the police car, yes.”
During his initial closing argument the prosecutor stated,
“Even Mr. Bullard’s firearm expert says the shot came from
here,” referring to an image showing a parked police car at the
25
14
location of the shooting. Bullard objected, arguing the
prosecutor had misstated the evidence. The court overruled the
objection stating, “This is for the jury to determine.”
In his closing argument Bullard’s counsel responded to the
prosecutor’s statement: “I just want to address it right now, some
of the misstatements” that the prosecutor made. “So one of the
misstatements he said—he said that my expert said that—this
location where I’m pointing to in the intersection where
testimony that the Range Rover was parked, he said that my
expert said that was the trajectory of item 13. He never said
that. In fact, he said it is virtually impossible. That is a clear
misstatement to say that my expert said that the possible
trajectory of a person from this shooting position ended up in this
building which resulted in fragment number 13. The other thing
he said he had ballistic evidence . . . that shot 13 occurred here.
You heard there is no trajectory evidence presented in this case
by the prosecution because they did not take trajectory
measurements.”
In his final closing argument the prosecutor, referring to a
photograph that was not defense exhibit M, repeated that the
trajectory of the bullet resulting in fragment number 13 from the
police car shown in the photograph made sense and then
asserted, “Lo and behold, guess who is there? A car driven by
Mr. Bullard.” Bullard’s counsel objected, asserting the prosecutor
was using a different photograph from the one he and the
prosecutor had shown Mr. Kim at trial and had again misstated
the evidence. The court overruled the objection. The court stated
14
The record does not indicate whether the prosecutor’s
argument referred to the police car depicted in defense exhibit M
or some other image.
26
the photograph was similar, reminded counsel this was argument
and “[i]t’s up to the jury to decide.” The prosecutor continued,
“[Fragment] number 13 is right here in this building. Again
Mr. Kim said he would expect that shooter to be right here.”
Bullard’s counsel objected once more, asserting the prosecutor
was misstating the evidence. The court replied, “It is not,
[counsel]. This is argument. I remember this testimony.
Overruled.”
At the conclusion of the prosecutor’s argument, outside the
presence of the jury, Bullard’s counsel made his record: “He [the
prosecutor] made an argument that both cars were in the same
position and he used a photograph that was not . . . the
photograph that I asked Mr. Kim about. So he misrepresented
the placement, and he misrepresented Mr. Kim’s testimony as to
the placement.” The court reminded defense counsel that the
prosecutor did not have to accept the defense theory of the SUV’s
location; there was other evidence (from Brown and the husband
and wife) that placed the SUV in the same location as the police
car in the photograph; and the prosecutor could argue inferences
based on that evidence.
b. The court did not commit prejudicial error
Expressly stating his argument is not one of prosecutorial
misconduct, Bullard contends the court erred when it overruled
the objections of Bullard’s trial counsel and compounded the error
by vouching for the accuracy of the prosecutor’s characterization
of the evidence.
We agree the prosecutor’s comment in his initial closing
argument that “[e]ven Mr. Bullard’s firearm expert says the shot
came from here” was imprecise, if not misleading: Kim testified
the shot could have come from the location of the parked police
27
car depicted in the photograph only if the jury ignored the
location of the casings. Nevertheless, the court reminded the jury
this was argument and the jury was to decide the state of the
evidence for itself. And, as Bullard acknowledges, defense
counsel clarified Kim’s testimony for the jury in his closing
argument.
Bullard contends, however, that his counsel had no
opportunity to eliminate the prejudice from the prosecutor’s
similar misstatements in rebuttal. But in rebuttal the prosecutor
properly focused on Kim’s trajectory analysis, telling the jury the
trajectory of bullet fragment number 13 would make sense, then
adding, “Lo and behold, guess who is there. A car driven by
Mr. Bullard.” The prosecutor did not say Kim’s analysis placed
the car in that location. To be sure, the prosecutor went on to
remark that Kim had “expected” the shooter to be in a particular
location when Kim had actually testified it was “possible.” Still,
the nature of that characterization is sufficiently ambiguous to be
within the bounds of reasonable comment on the evidence
(see People v. Martinez (2010) 47 Cal.4th 911, 957 [prosecutor has
significant leeway in commenting on state of the evidence and
may draw reasonable inferences and deductions]; People v.
Wilson (2005) 36 Cal.4th 309, 337); and the court reminded the
jury, during counsel’s arguments and in its oral and written
instructions, that argument was not evidence.
Although the court may well have overstepped when, after
overruling Bullard’s objection it added, “I remember that
testimony,” the court did not vouch for the veracity of the
prosecutor’s evidence; it only indicated there was evidence for the
jury to consider. The court made clear numerous times
throughout argument that the accuracy of counsel’s
28
characterizations was for the jury to decide. On this record the
court’s brief comment, even if improper, did not rise to the level of
prejudicial error.
4. Assembly Bill 333’s Changes to the Gang Enhancement
Statutes Do Not Require Reversal
a. Governing law
Assembly Bill 333 significantly modified the procedural and
substantive requirements for trying and proving gang
enhancements. Under the principles enunciated in In re Estrada
(1965) 63 Cal.2d 740, Assembly Bill 333’s amendments to section
186.22 increasing the threshold for proving a gang participation
offense and gang enhancements apply retroactively to defendants
whose convictions are not yet final. (People v. Tran (2022)
13 Cal.5th 1169, 1207; accord, Rodas v. Superior Court (2023)
92 Cal.App.5th 656, 659.)
Assembly Bill 333 also added section 1109, which requires,
when requested by the defendant, that a gang enhancement
charged under section 186.22, subdivision (b), be tried separately
from, and after, determination of the defendant’s guilt of the
underlying offense. (§ 1109, subd. (a) (Stats. 2021, ch. 699, § 5).)
Whether section 1109 applies retroactively has not yet been
definitively determined. (Compare People v. Burgos (2022)
77 Cal.App.5th 550, review granted July 13, 2022, S274743
[holding section 1109 is retroactive to nonfinal cases]; People v.
Ramos (2022) 77 Cal.App.5th 1116, 1129 [same]; People v.
Montano (2022) 80 Cal.App.5th 82, 108 [same] with People v.
Boukes (2022) 83 Cal.App.5th 937, 948, review granted Dec. 12,
2022, S277103 [section 1109 is not an ameliorative statute that
reduces punishment; accordingly, it does not apply retroactively];
29
People v. Ramirez (2022) 79 Cal.App.5th 48, 65, review granted
Oct. 12, 2022, S275341 [same].)
b. Because the court struck the gang enhancement
allegations as to both Tucker and Bullard, their
challenges to the sufficiency of the evidence are
moot
Bullard and Tucker contend the evidence is insufficient to
support the jury’s gang enhancement finding under the iteration
of section 186.22 in effect at the time of trial. They also contend,
and the People agree, that remand is required for retrial under
the additional requirements of proof imposed under Assembly
Bill 333. However, the trial court struck the gang enhancement
allegations (not just the penalty) in their entirety. Accordingly,
any challenge to the sufficiency of the evidence to support the
now nonexistent findings is moot, as we cannot provide effective
relief. (See generally In re D.P. (2023) 14 Cal.5th 266, 276
[mootness arises when events render it impossible for court to
grant any effective relief; for relief to be effective, there must be
an “ongoing harm” capable of being rectified by the outcome
15
plaintiff seeks].)
c. Any error in failing to bifurcate the gang
enhancement at trial was harmless
Bullard and Tucker contend section 1109’s bifurcation
requirements are retroactive and the failure to bifurcate
prejudiced the trial and requires reversal of their convictions.
15
Because the court struck the gang enhancement allegation
and not just the penalty, we cannot conceive of collateral
consequences resulting from the jury’s finding (cf. People v.
Fuentes (2016) 1 Cal.5th 218, 225-226), nor do Tucker and
Bullard assert there are any.
30
In People v. Tran, supra, 13 Cal.5th 1169, the Supreme
Court, after recognizing the disagreement in appellate cases
concerning section 1109’s retroactivity, held it was unnecessary
to address the issue because, using a harmless error analysis, the
gang evidence would have been admissible even if the gang
16
enhancements were bifurcated. (Tran, at p. 1208; see People v.
Session (2023) 93 Cal.App.5th 723, 734 [even if the gang
allegations had been bifurcated, the failure to bifurcate was
harmless; “[m]uch of the gang evidence was also admissible to
prove guilt”]; People v. Boukes, supra, 83 Cal.App.5th at p. 948,
review granted [“[e]ven if we were to hold that [section 1109] does
apply retroactively, we would find in this case that any error in
the lack of bifurcation was harmless”]; People v. E.H. (2022)
75 Cal.App.5th 467, 480 [“[e]ven if section 1109 applied
retroactively to his case . . . [defendant] cannot show it is
‘reasonably probable’ he would have obtained a more favorable
17
result if his trial had been bifurcated”].) We follow the Supreme
Court’s lead and do not address retroactivity because any error in
not bifurcating trial of the gang enhancements was
unquestionably harmless.
16
The Court held harmless error was to be evaluated under
the standard for state law error identified in People v. Watson
(1956) 46 Cal.2d 818, 836 (error is reversible only if “it is
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error”).
(People v. Tran, supra, 13 Cal.5th at p. 1208.)
17
The recent grant of review in People Boukes, supra,
S277103, deferring decision pending consideration of the related
issue in People v. Burgos, supra, S274743, suggests the Supreme
Court is likely to resolve the conflict.
31
The case at bar was predicated on the motives of Tucker,
an Insane Crips gang member, Willis, an associate of that gang,
and Tucker’s friend Bullard, to kill Ross, a member of the rival
Bloods gang, after Ross flaunted his status as a Blood and made
derogatory comments about the Crips in their territory. While
the limited evidence of the gang’s predicate acts would likely
have been excluded in a bifurcated trial on the underlying
charges, the most damaging aspect of the gang evidence was
relevant and admissible.
Bullard contends the error in failing to bifurcate is not
harmless as to him because he was not a gang member and thus
did not share Willis’s or Tucker’s motive. But, as discussed,
Bullard need not be a gang member or associate to want to assist
his friends who are. Bullard was free to, and did, argue at trial
his lack of association with the Insane Crips. But the evidence
relating to the gang and its rivalry with the Bloods was highly
relevant on the underlying charges and the group’s (including
Bullard’s) motive for pursuing Ross after the fight at the bar.
Under these circumstances, it is not reasonably probable that
bifurcation of the gang enhancements would have resulted in a
18
more favorable result for either Bullard or Tucker.
18
Bullard also contends the court erred in denying his pre-
Assembly Bill 333 motion to bifurcate trial of the gang
enhancements. Because much of the gang evidence was relevant
and not unduly prejudicial, the court was well within its
discretion to deny that motion at the time it made its ruling
(see People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1051); and,
as discussed, any error in failing to bifurcate was harmless in
any event.
32
DISPOSITION
The judgments are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
33