Opinion
B302339
02-08-2023
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO FELIX et al., Defendants and Appellants.
Peter H. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Armando Felix. David D. Carico, under appointment by the Court of Appeal, for Defendant and Appellant Jeremiah White. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott. A. Taryle, Colleen M. Tiedemann and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA139142 Allen Joseph Webster, Jr., Judge. With respect to Armando Felix, affirmed in part, vacated in part, and remanded. With respect to Jeremiah White, affirmed in part, reversed in part, vacated in part, and remanded.
Peter H. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Armando Felix.
David D. Carico, under appointment by the Court of Appeal, for Defendant and Appellant Jeremiah White.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott. A. Taryle, Colleen M. Tiedemann and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, J.
This appeal follows Armando Felix's and Jeremiah White's (defendants') convictions in 2019 of the murder of Vance Byrd, the attempted murder of Randall Byrd, and a conspiracy to murder Vance Byrd. The jury also found true gang and firearm enhancements. Felix and White were tried on the same charges twice before. The juries in the first trial (in 2017) and the second trial (in 2018) were unable to reach a verdict.
The central issue in the lengthy trial was identity. Felix disputed the prosecution's theory that he was the shooter and White disputed the prosecution's theory that he was the driver. Defendants' gang membership in the Main Street Mafia Crips was undisputed, and it was undisputed that the Hoover Criminals gang was a rival to defendants' gang. The Byrds lived in territory claimed by the Hoover Criminals gang.
Defendants raise numerous challenges to the judgments of conviction. We conclude that we must reverse White's conviction for attempted murder for lack of substantial evidence. We conclude there was no evidence supporting the inference that White intended to kill Randall Byrd, the father of Vance Byrd. Because of recently enacted law changing the requirements to prove the gang enhancement, we also conclude with respect to both White and Felix, that the gang enhancements and gang related firearm enhancements must be vacated. Upon remand, the prosecution may elect to retry the now-vacated gang and firearm enhancements.
We reject defendants' argument that the pretrial photographic lineup shown to Randall Byrd and another eyewitness, J.G., was unduly suggestive. We also reject defendants' argument that the trial court committed federal and state error when it limited the cross-examination of the prosecution witness who reported the murder to the police. Given the extensive cross-examination of the prosecution's witness, the trial court did not prevent defendants from presenting a defense or abuse its discretion in concluding that additional impeachment evidence would consume an undue amount of time. We reject defendants' argument that the prosecutor violated an agreement that Randall Byrd would not testify during rebuttal. We conclude there was no evidence that the prosecutor agreed to any such condition.
Although defendants challenge several jury instructions, we find no instructional error warranting reversal of defendants' convictions. We also conclude that, because we are reversing White's attempted murder conviction and vacating several enhancements, defendants' challenges to their sentences are premature.
With respect to White, we reverse the conviction for attempted murder, vacate the gang and gang related firearm enhancements, and otherwise affirm the judgment of conviction. With respect to Felix, we vacate the gang and gang related firearm enhancements and otherwise affirm the judgment of conviction. The case is remanded for additional proceedings if the prosecution elects to retry the vacated enhancements and for resentencing.
FACTUAL BACKGROUND
The record is large and defendants have raised a number of issues requiring a detailed summary of the trial testimony and proceedings, which follows. We provide additional factual background in our Discussion.
1. Vance Byrd is shot and killed on December 4, 2015
Shortly after 9 p.m. on December 4, 2015, someone shot and killed Vance Byrd, the son of Randall Byrd. Prior to the shooting, Randall Byrd, A.J., and a third unnamed person were outside the Byrds' house.
Shortly before the shooting, Randall Byrd and A.J. observed two cars-a black Infinity and a silver Mercedes-drive by twice. A.J. went inside her home, located near the Byrds' home because she did not want" 'to be a statistic.'" Meanwhile, Vance Byrd parked his car in front of the Byrds' house.
Vance Byrd went inside the Byrds' house, but then exited the house, telling Randall Byrd that Randall should not be outside alone. As Randall Byrd was closing the gate in front of the house, he observed someone running towards him firing shots. Randall Byrd testified the shooter held the gun with two hands. The shooter stood about 10 to 15 feet away from Randall Byrd and shot multiple times, hitting Vance Byrd. Randall Byrd was surprised the shooter did not hit him because the shots were fired in his direction. Vance fell down on the driveway, in front of the Byrds' house.
J.G. lived near the Byrds. J.G. heard five or six gunshots, looked outside his window, and observed a man wearing a hat, run towards a metal object, grab the object, and run back to the car. J.G. described the object as silver and believed it could have been a firearm clip or a knife.
After the shooting, Byrd told Detective John Jamison he heard five shots.
A bullet penetrated Vance Byrd's skull, killing him. A bullet grazed his finger and another entered the back of his leg. Police found three 9-mm cartridge casings and three bullet fragments at the scene of the shooting.
The shooter was a passenger in a black Infiniti and, as noted, a silver Mercedes followed the Infinity. It is undisputed that Felix's aunt owns a black Infiniti and either White or White's father owns a silver Mercedes.
The day after the killing, on White's Facebook account, White wrote," 'I found out. I heard. Don't bang. Just live in Hoover's.'" White indicated he was referring to "the N that died." The person with whom White was corresponding referred to the decedent as Vance.
2. Randall Byrd identifies Felix as the shooter and testifies White was not the driver
Byrd described the shooter as a Hispanic or light-skinned African-American 5 feet 8 or 9 inches tall and about 25 years old. Byrd did not notice whether the shooter had facial hair. Byrd told police that the shooter wore a hat, which covered his hair. Byrd described the hat as black, white, and red. Byrd saw the shooter twice. He saw a "glimpse" of the shooter when the shooting started. After the shooting, Byrd saw the shooter kneel down, from about 25 feet away. Nothing blocked Byrd's view of the shooter when the shooter crouched down on the ground. On the night of the shooting, Byrd did not know if he would be able to identify the shooter.
On December 6, 2015 (two days after the shooting), Byrd heard a rumor that persons named Mondo and Gotti G. or Gotti J. were responsible for the murder. Byrd did not know who either Mondo or Gotti G. (or J.) was. An unidentified person told Byrd that Mondo had puffy hair. Byrd conveyed this information to detectives.
In a six-pack shown to him on December 7, 2015, Byrd identified Felix as the shooter. At trial, Byrd identified Felix as the shooter. Byrd testified that Felix was wearing a hat at the time of the shooting and that the hat looked like a snow hat. Byrd testified that he was focused on the shooter's face. During the prosecution's rebuttal, Byrd testified that Jeremiah Atlas was not the shooter. Byrd testified that he was positive Atlas was not the shooter. (As set forth later on in our opinion, Atlas testified he was the shooter.)
During cross-examination by White's counsel, Byrd testified that White was not the driver.
3. In December 2015, Ryan Lewis reported White was the driver and Felix was the shooter; at trial, Lewis testified she lied in 2015
The prosecutor called Ryan Lewis as a witness. Ryan Lewis reported the murder to the police 10 days after it occurred and identified Felix as the shooter and White as the driver. We summarize her interview with police and then describe her trial testimony, at which she recanted her earlier identification of Felix as the shooter and White as the driver.
a. Lewis's December 14, 2015 recorded interview
Lewis went to the police station on December 14, 2015 (10 days after the shooting), and reported she had information about a shooting that occurred about a week earlier. Lewis reported that White was related to her two sisters. He was not related to her, but she referred to him as her brother.
Lewis's tape-recorded interview was played for the jury.
Lewis reported that White and Felix murdered Vance Byrd, although she did not refer to Vance Byrd by name but referred to him as "the boy." Lewis reported that the killing was gang related. Lewis said White's "Mercedes was behind the black Infiniti." Lewis also reported White's moniker was Gotti J. and White was a member of the Main Street Mafia Crips. Lewis stated Felix's monikers included Mondo. Lewis said White and Felix were in the black Infiniti. Lewis did not know "exactly how they shot him," but White told her "both of them killed him and then they had to come back because [Felix] dropped his car keys next to the body." Lewis reported they used a "gun that they had in the hood."
Police later recovered a gun used in the shooting in an area available to multiple members of the Main Street Mafia Crips.
Lewis said, "[W]hen they [White and Felix] get drunk, that's what they do. They drive around and . . . look for innocent person[s]" to shoot. According to Lewis, Felix and White "seen the boy walking I guess out the house and they . . . stopped the car and then [Felix] shot out the car first and then they both got in the car and shot the boy." Lewis reported, "They said they seen the boy. When they was driving on Hoovers, they was looking for a Hoover. They said they was drunk and they was looking for a Hoover and they was driving and [Felix] spotted the boy...." According to Lewis, White told her both he and Felix shot the victim, and Felix's keys fell next to the victim's body.
Lewis further told the police that Fifty and Eastwood (other members of the Main Street Mafia Crips) were in the silver Mercedes. Lewis said White and Felix learned that the victim was not a gang member. Lewis also reported that Felix lived at his aunt's house in Compton.
Lewis stated that White and Felix changed their phone numbers on the day after the shooting. She reported, "They thought he was a gang banger until he [White] found out the next day he wasn't and he said, oh, well, he shouldn't have been in Hoovers." Lewis reported Felix's hair was "cut now." Previously, Lewis saw Felix with curly hair.
When police showed Lewis a picture of Jeremiah Atlas, she indicated that he was not involved in the murder.
b. Lewis's testimony on direct examination by the prosecutor
At trial, Lewis testified that in December 2015, she lived in an apartment in Bellflower with White and White's wife (sometimes referred to as his girlfriend) Michelle. Lewis testified she knew Felix.
Lewis testified that on December 4, 2015, White was at the apartment the entire day. Lewis said White never told her about a murder. She further testified she did not know whether White was a member of the Main Street Mafia Crips gang. Lewis testified that White did not have a car in December 2015. Lewis testified that White's father owned a silver Mercedes. Lewis testified that she never saw White drive the silver Mercedes. Lewis also testified that Felix does not own a car.
Lewis claimed she made "a false report" to the police, explaining, "I lied in the police station." Lewis testified that she "made a big ass lie." Lewis testified that she "heard the story" and she "just put them in the story because Jeremiah [White] pissed [her] off." Lewis testified, "I just heard about it and I pinned it on them." Lewis testified that she did not remember who told her about the murder. Lewis testified that one of the reasons she made up the story was that she owed White money.
When questioned by the prosecutor about her December 2015 interview with the police, Lewis testified that she told the police that White talked about a murder he committed with Felix. Lewis explained that White was "bragging" and "claimed" that both he and Felix shot the victim. Lewis testified that she told the police that after a news report, White said, "[W]e did that." Lewis acknowledged that she told the police that White and Felix "were drinking in [the] Main Street hood, [and] they decided to drive into Hoover territory to look for someone to shoot." Lewis told the police that White said he was in the black Infiniti with Felix. Lewis told the police that White was driving the black Infiniti and Felix was in the passenger seat. Lewis told police that White said Felix thought the victim was from the Hoover gang; White wasn't sure whether the victim was a gang member; but White and Felix decided to "shoot anyway." Lewis told police that Felix shot at a boy in a driveway and that Felix dropped his keys. Lewis told police that Felix ran back out of the car to pick up his keys. Although she testified it was not true, Lewis told the police that White said the Mercedes was behind the black Infiniti. At trial, Lewis testified that White never told her that he learned the victim was not in the Hoover gang.
Lewis told the police that White used a gun "from the hood," not White's personal gun. She testified that she "heard the story and [she] mixed it up." Lewis testified that she told the police White said his father was going to take the car and claim that it was at his house the whole time.
Lewis admitted that each time she testified under oath, her testimony was different.
c. White's counsel's cross-examination
During cross-examination, Lewis testified she made a fake Instagram account about White. She did that because she was mad at him. Lewis testified she did not see any news coverage about the murder of Vance Byrd. She said she had not spoken to White since before December 14, 2015.
Lewis testified that prior to December 14, 2015, she lived in an apartment with White, White's wife Michelle and Lizel, who also was known as Gotti 3. Lewis received information about the shooting from Lizel. Lewis overheard Lizel discuss the shooting.
Lewis testified she had sex with both Felix and White. Felix broke up with Lewis when he learned she had a sexual relationship with White and White then forced Lewis out of the apartment. Lewis stole $10,000 from White. When she went to the police station to report the killing Lewis was mad at White. She also was mad at Felix. She wanted to "do something to get even." Lewis testified that "when people piss [her] off" she "take[s] revenge."
Lewis testified she was supposed to repay White the money she owed him by December 8, 2015, and she did not repay her debt. Lewis testified that, on the morning before she went to the police station to report the murder, she received text messages about paying back the money she owed White. Lewis said she wanted the police to incarcerate White so that she did not have to repay the $10,000 and because she was mad he threw her out of the apartment. Lewis believed if White were arrested, she would not have to repay the $10,000.
Lewis lied to the police when she told them that White was drinking at the hood on December 4, 2015. She did not tell the police she owed White $10,000 or that he forced her out of the apartment.
Lewis testified she tried to break off White's relationship with his wife. Lewis testified she posted information that White beat his wife, but the information was not true. Lewis testified that she told Felix White raped her, but that was a lie.
d. Felix's counsel's cross-examination
Lewis met Felix in 2015, and they started to date in September 2015. Lewis did not know where Felix lived and lied when she told detectives he lived on Compton Avenue. Lewis testified Felix never said he was involved in a shooting on December 4, 2015. White never told Lewis that Felix shot from the car. White never said anything to Lewis. White never told her that Felix dropped his keys on the body of the person who was shot. Lewis learned information about the shooting from social media.
Lewis testified that in December 2015, Felix's hair was short. Lewis testified that she heard Lizel admit that he was involved in the shooting.
e. The prosecutor's redirect
Lewis testified that Lizel was deceased. She admitted that in 2016, she testified she made the statements to police because she was high. She acknowledged that in 2017, she testified she made the statements because she was mad at White. She also acknowledged that in 2018, she testified she heard the information about the murder from a gang member. In 2019, in the trial that is the subject of this appeal, she changed her testimony to indicate that she learned about the murder from Lizel and on social media.
4. Jeremiah Atlas testifies that he shot Vance Byrd
White called Jeremiah Atlas, Felix's cousin, to testify for the defense. Atlas testified that he shot Vance Byrd. Atlas acknowledged he was facing numerous charges including two murders, a multiple murder special circumstance, and five attempted murder charges. Atlas understood he would be incarcerated for the rest of his life if convicted of these charges. Atlas did not testify at either of the prior trials.
Atlas testified that, prior to shooting Vance Byrd, Atlas drove around looking for Hoover gang members. Atlas noticed Vance Byrd, and because Atlas believed Vance Byrd was a Hoover gang member, shot at Vance Byrd four or five times. Atlas testified he used his right hand to shoot the gun. After the shooting, Atlas realized that he dropped the clip to the gun he was using, and Atlas ran back to the street to retrieve it.
Atlas testified that both Felix and White were Main Street Mafia Crips gang members. Atlas testified he was incarcerated with Felix in March 2018. Atlas requested to be housed with Felix. Atlas testified he was housed with White from June 2018 until January 2019. The day after Atlas and White were no longer housed together, Atlas spoke to White's defense investigator.
Defense investigator Robert Freeman learned Atlas would confess from White. Atlas told Freeman that Felix was his cousin and his big brother. Atlas told Freeman that, at the time he shot Vance Byrd, Timothy Love (not White) was driving the car. Timothy Love was Felix's brother.
Atlas knew about Felix and White's prior trials. Atlas reported that he came forward prior to the third trial (the subject of this appeal) because he did not want Felix "to go down" for something Atlas did. Atlas told Freeman that he had never been housed with the defendants in custody. Freeman later learned that Atlas was housed with defendants.
5. Cell phone evidence
Evidence from cell phone towers was consistent with White's and Felix's cell phones being in the area of the shooting at the time of the shooting.
6. White's alibi
White's father testified that on December 4, 2015, he taught White to ride a motorcycle, and at the time of the murder, father and son were returning the motorcycles to their designated place.
7. Felix's alibi
When interviewed on January 21, 2016, Felix told Detective Jamison he was at his aunt's house on Compton Avenue the entire day. This is the same place where Atlas lived.
On December 22, 2015, officers searched the Compton residence because, based on Lewis's statement, they believed that Felix lived there. Atlas was present at the time of the search. Officers found pants resembling those worn by the shooter. Atlas testified that the pants belonged to him.
8. Gang evidence
Officer Andrew Jenkins testified about gangs. Officer Jenkins explained that committing crimes benefit gangs because gangs seek to instill fear and to obtain a reputation for violence. Officer Jenkins testified about a rivalry between the Main Street Mafia Crips and the Hoover Criminals. He testified the Main Street Mafia Crips' primary activities included drive-by shootings, murders, burglaries, robberies, and selling narcotics. Officer Jenkins described a murder committed in August 2013 by two Main Street gang members. Officer Jenkins opined that Felix and White were members of the Main Street Mafia Crips and testified both Felix and White had tattoos reflecting their gang membership. After hearing a hypothetical question with facts similar to the current case, Officer Jenkins testified that the crime was for the benefit of, and in association with a criminal street gang because it improves the reputation of the criminal street gang.
Officer Jenkins testified that Vance Byrd was not a gang member. Officer Jenkins testified that Felix was part Latino and part African-American.
PROCEDURAL BACKGROUND
The jury convicted defendant Felix of the murder of Vance Byrd, the attempted murder of Randall Byrd, and conspiracy to commit murder. With respect to each crime, the jury found true gang and firearm enhancements, including that Felix personally used and intentionally discharged a firearm causing death to Vance Byrd and that a principal personally used and intentionally discharged a firearm causing death to Vance Byrd. The jury found that the murder and the attempted murder were committed willfully and with premeditation and deliberation. With the exception of the personal use and discharge firearm enhancements, the jury convicted White of the same offenses and the same enhancements. White admitted he suffered a prior conviction for robbery and that it was a serious and violent felony within the meaning of the "Three Strikes" law.
The trial court sentenced Felix to 25 years to life for the murder and an additional 25 years to life for the Penal Code section 12022.53, subdivision (d) firearm enhancement. With respect to the attempted murder, the court sentenced Felix to 15 years to life plus an additional 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The court stayed the sentence on the conspiracy conviction pursuant to section 654. Felix's total sentence was 90 years to life.
Undesignated statutory citations are to the Penal Code.
The court struck White's prior robbery conviction for sentencing purposes. The court noted that it believed White "prompted and pretty much encouraged Mr. Atlas to testify." The court sentenced White to 25 years to life for the murder and an additional 25 years to life for the section 12022.53 firearm enhancement. The court sentenced White to 15 years to life for the attempted murder and an additional 25 years to life for the firearm enhancement. The court stayed sentence on the conspiracy count. White's total sentence was 90 years to life.
Although the abstract of judgment appears to refer to section 12022.53, subdivision (d), the jury found true the subdivision (d) and (e)(1) enhancement. Only the former reflects the personal use of a firearm. Because we reverse all firearm enhancements as to White, we need further consider whether the abstract of judgment is erroneous.
The trial court ordered White and Felix each to pay $300 to the restitution fund pursuant to section 1202.4. The court imposed an additional $300 restitution fund fine pursuant to section 1202.45. The payments of the later sums were suspended unless parole were revoked. The court ordered an additional $90 in security fees and $30 for a court construction fee. No counsel objected to these fines or fees. Defendants timely appealed.
DISCUSSION
A. No Substantial Evidence Supported White's Attempted Murder Conviction
White argues that his conviction for attempted murder is not supported by substantial evidence. Respondent argues that the following evidence supported the conviction: White was a gang member and the Hoover Criminals were rival gang members. In December 2015, Lewis reported that when White was drunk, he would "drive around . . . and look for innocent person[s] and he go "Oh we're just gonna go shoot you like-" White was at the scene of the murder with the "intention . . . to find a Hoover gang member to shoot." Felix approached both Randall and Vance Byrd before returning to the car, which White drove away. As we explain, no substantial evidence showed White intended to kill Randall Byrd.
" 'In reviewing the sufficiency of the evidence to support a judgment of conviction, we examine the entire record in the light most favorable to the prosecution, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 87.)
A conviction for attempted murder requires proof that the defendant intended to kill the victim and a direct but ineffectual act toward accomplishing that goal. (People v. Perez (2010) 50 Cal.4th 222, 229.)"' "[G]uilt of attempted murder must be judged separately as to each alleged victim."' [Citation.] '[T]his is true whether the alleged victim was particularly targeted or randomly chosen.' [Citation.]" (Id. at p. 230.) "Direct evidence of intent to kill is rare, and ordinarily the intent to kill must be inferred from the statements and actions of the defendant and the circumstances surrounding the crime." (People v. Canizales (2019) 7 Cal.5th 591, 602.) The aider and abettor's guilt is based "on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (People v. McCoy (2001) 25 Cal.4th 1111, 1117, italics omitted.)
The evidence is insufficient to show that White intended to kill Randall Byrd, the father of Vance Byrd. Evidence that White's gang, the Main Street Mafia Crips, was at war with the Hoover Criminals supported the inference that White had a motive to kill Vance, who may have appeared to White to be a member of the Hoover Criminals. Lewis's report to police identified this motive. White's Facebook page indicated that he did not learn Vance was not a gang member until after the shooting. The gang war, however, does not support the inference that White intended to kill Randall Byrd as well as Vance Byrd. No evidence supported the inference that Randall Byrd was mistaken as a member of the Hoover Criminals. Evidence that when drunk White would drive around looking for someone to kill is a general statement that does not support the inference that White specifically intended to kill Randall Byrd. The circumstances of the shooting-Felix exiting the car, shooting multiple times, and returning to the car, also does not support the inference White intended Felix kill both Vance and Randall Byrd. Respondent's argument that "[t]he act of shooting a firearm toward a victim at close range in a manner that could have inflicted a mortal wound had the shot been on target . . . support[s] an inference of an intent to kill" is not helpful because White did not shoot a firearm. (People v. Houston (2012) 54 Cal.4th 1186, 1218.) Felix, not White, was the shooter.
Contrary to respondent's argument, People v. Nguyen (2015) 61 Cal.4th 1015, 1053-1056 does not support the conclusion that White's conviction for attempted murder rests on substantial evidence. In Nguyen, the high court held that a defendant gang member may have assisted a fellow-gang member who shot at a rival gang member. The defendant may have assisted by "spotting potential targets" as the defendant rode as a passenger in the back seat behind the shooter. (Id. at p. 1055.) The court relied on expert evidence that the defendant's gang members "would drive around 'hunting for their rivals'" and "they were already in a state of war at the time of th[e] shooting." (Ibid.) Nguyen supports only the conclusion that White intended the killing of Vance Byrd-the person who appeared to be a gang member-not the attempted killing of Randall Byrd.
Because we conclude White's conviction for attempted murder must be reversed, we need not consider White's remaining arguments concerning his attempted murder conviction including that (1) "it is reasonably likely the jury convicted White of attempted premeditated murder based solely upon the perpetrator's mental state"; (2) "the trial court instructed on an invalid theory when it implied that White could be vicariously liable for the non-target offense of attempted premeditated murder as a member of a conspiracy"; and (3) his conviction for attempted murder must be reversed because of recent amendments to section 188, defining murder. (Boldface &capitalization omitted.)
B. Changes in the Law Require Vacating and Remanding the Gang Enhancements and Gang Related Firearm Enhancements
We agree with the parties that recent legislative changes require us to vacate and remand the gang and gang related firearm enhancements.
With respect to Felix, we affirm the personal discharge and personal discharge causing death firearm enhancements. Those enhancements are not affected by the change in the law.
"Section 186.22 provides for enhanced punishment when a defendant is convicted of an enumerated felony committed '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 any criminal conduct by gang members.' [Citation.]" (People v. Delgado (2022) 74 Cal.App.5th 1067, 1085 (Delgado); § 186.22, subd. (b)(1).) At the time of defendant's trial, the prosecution could establish a gang enhancement by showing that the alleged gang had engaged in a "pattern of criminal gang activity," which, at the time of trial, was defined as "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more [enumerated] offenses, provided at least one of these offenses occurred after the effective date of this [Act] 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 ...." (Former § 186.22, subd. (e).) "The offenses comprising a pattern of criminal gang activity are referred to as predicate offenses." (People v. Valencia (2021) 11 Cal.5th 818, 829.)
Effective January 2022, the Legislature enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 3) (Assembly Bill No. 333), which "impose[d] new substantive and procedural requirements for gang allegations." (People v. Sek (2022) 74 Cal.App.5th 657, 665 (Sek).) Assembly Bill No. 333 amended the definition of "pattern of criminal gang activity" provided in section 186.22, subdivision (e), and modified the requisite proof of predicate offenses, including that the currently charged offense may not be used to establish such a pattern. (§ 186.22, subd. (e)(1), (2).) In addition, newly-added subdivision (g) of section 186.22 provides that the language to "benefit, promote, further, or assist" a criminal street gang "means to provide a common benefit" to members that is likewise "more than reputational." (See § 186.22, subd. (g).)
The new requirement that the benefit to the gang be more than reputational applies retroactively to nonfinal cases including the current one. (See Delgado, supra, 74 Cal.App.5th at p. 1087; Sek, supra, 74 Cal.App.5th at pp. 666-667.) Here, the gang expert testified that the benefit to the gang was reputational, and the jury may have relied on that testimony in finding the gang enhancement true. Therefore, with respect to Felix and White, the gang enhancements attached to each offense must be vacated and remanded.
The jury also found true with respect to both defendants, gang related firearm enhancements. Subdivision (e)(1) makes the firearm enhancement applicable to any principal who violated section 186.22, subdivision (b), i.e., the gang enhancement. (People v. Lopez (2021) 73 Cal.App.5th 327, 347.) Where the firearm enhancement is dependent on the finding that the principal was" 'convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members' as set forth in section 186.22, subdivision (b) (see § 12022.53, subd. (e)(1)(A)), the changes to section 186.22 made by Assembly Bill [No.] 333 require that the true findings on these enhancements, too, be vacated and the matter remanded to the trial court." (Lopez, at pp. 347-348.) With respect to White, this requires the reversal of all the firearm enhancements. With respect to Felix, it does not require the reversal of the enhancements indicating that Felix personally discharged a firearm and personally discharged a firearm causing death. Upon remand, if the People choose to retry the gang enhancements, they have the opportunity to meet Assembly Bill No. 333's new requirements. (Sek, supra, 74 Cal.App.5th at p. 669.)
Contrary to White's argument, substantial evidence supported the gang enhancement and related firearm enhancements under section 186.22 as amended. Under the new law, "to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (§ 186.22, subd. (g).) Here, there was evidence White targeted a perceived gang rival- Vance Byrd. Lewis expressly testified that White targeted Vance Byrd because he thought that Vance was a rival gang member and did not learn until later that Vance was not a rival gang member.
In any event, White's challenge to the sufficiency of the evidence to support the gang enhancement is irrelevant. Principles of double jeopardy do not bar a retrial even if the record had lacked substantial evidence to support the gang enhancement under the new law. (People v. Ramos (2022) 77 Cal.App.5th 1116, 1128 (Ramos).) "Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence." (People v. Figueroa (1993) 20 Cal.App.4th 65, 72.) White's argument that the prosecution is required to make an offer of proof that the offenses were gang related is not tethered to section 186.22, which contains no such requirement.
C. Defendants Demonstrate No Prejudice From the Alleged Error In Failing To Bifurcate Trial on the Gang Enhancements
Effective January 1, 2022, section 1109 requires the bifurcation of a gang enhancement when requested by a defendant. Subdivision (a) of section 1109 provides in pertinent part: "If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows: [¶] (1) The question of the defendant's guilt of the underlying offense shall be first determined. [¶] (2) If the defendant is found guilty of the underlying offense . . ., there shall be further proceedings to the trier of fact on the question of the truth of the enhancement." (§ 1109, subd. (a).)
There is a split of authority whether this statute is retroactive. (People v. Tran (2022) 13 Cal.5th 1169, 1239 (Tran).) For purposes of this appeal, we need not resolve this split. The new law does not limit the "introduction of gang evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying charges." (Ramos, supra, 77 Cal.App.5th at p. 1132.) Here, the gang evidence was relevant to defendants' motive to shoot Vance Byrd even though White later learned that Vance Byrd was not a gang member. Thus, some of the gang evidence including defendants' gang membership and the gang rivalry between the Main Street Mafia Crips and the Hoover Criminals would have come in at trial on the substantive offenses even if the gang enhancement had been bifurcated. (Ibid.)
Assuming section 1109 is retroactive, the error was not structural. (Tran, supra, 13 Cal.5th at p. 1209.) Defendants do not show that admission of irrelevant gang evidence rendered the trial unfair or prejudiced them. (See ibid. [explaining that if gang evidence does not render trial fundamentally unfair prejudice is evaluated under standard in People v. Watson (1956) 46 Cal.2d 818 (Watson)].) We conclude it is not reasonably probable the exclusion of the gang evidence irrelevant to the substantive charges would have benefitted either defendant. The main issue in this case was identity, and both defendants pinned blame on a fellow Main Street Mafia Crip-Atlas, who admitted the rivalry with Hoover Criminals. When arguing that the error was prejudicial, defendants do not acknowledge that some of the evidence was "relevant and admissible to prove other facts related to a crime." (Tran, at p. 1208.)
Defendants were not prejudiced for an additional, independent reason-evidence admitted by the prosecution concerning gangs was no more inflammatory than evidence admitted by the defense. Lewis testified during cross-examination that Felix was a member of the Main Street Mafia Crips gang. Atlas testified that the Main Street Mafia Crips were at war with the Hoover Criminals. Atlas testified that he drove around looking for a Hoover gang member and saw someone wearing all orange, which was a Hoover color. Atlas testified that Hoover Criminals killed Main Street Mafia Crips and Main Street Mafia Crips killed Hoover Criminals. Atlas testified that Felix had an HK tattoo, signifying Hoover killer. Atlas testified that both Felix and White were Main Street Mafia Crips gang members. When called by Felix, Detective Jamison testified there was a war between Main Street Mafia Crips and the Hoover Criminals. In short, assuming that the statute requiring the bifurcation of the gang enhancement must be applied retroactively, the assumed improper admission of the gang evidence did not render defendants' trial unfair and it is not reasonably probable defendants would have obtained a more favorable result absent the assumed error.
D. The Trial Court Properly Denied Defendants' Request To Suppress Randall Byrd's Identification of Felix
On December 7, 2015 (three days after the shooting), Randall Byrd identified Felix in a six-pack photographic lineup. Defendants argue the six-pack was unduly suggestive and that Randall Byrd's subsequent in-court identification violated their right to due process. To demonstrate a due process violation, defendants must show both that the identification procedure was improperly suggestive and, under a totality of the circumstances, the identification procedure was not reliable. (People v. Wilson (2021) 11 Cal.5th 259, 283 (Wilson); see also People v. Kennedy (2005) 36 Cal.4th 595, 608, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) We reject the argument on the first prong-the six-pack photographic identification procedure was not improperly suggestive.
We also reject White's argument (joined by Felix) that the trial court prejudicially erred in allowing Detective Jamison to testify as to Randall Byrd's prior consistent identifications of Felix as the shooter. We begin with additional background.
1. Additional background
On December 5, 2015, Randall Byrd told Detective Jamison that the shooter exited the passenger side of the black car. Randall Byrd estimated the shooter was 25 years old and 5 feet 8 or 9 inches tall. As noted, Randall Byrd reported that the shooter looked like he was wearing a hat that was black, red, and white.
On December 6, 2015, Randall Byrd told Detective Jamison that he heard a rumor Gotti J. or Gotti G. and Mondo were responsible for the killing. The unidentified person told Randall Byrd that Mondo was the shooter and that Gotti J. was in the other car. Randall Byrd also heard that Mondo had "poofy" hair. The unidentified person told Byrd that Mondo had curly hair. Byrd reiterated that he thought the shooter was wearing a hat. At that time, Randall Byrd did not know who Mondo was or whether a person named Mondo existed. The individuals to whom Randall Byrd spoke did not show Byrd any pictures.
The next day, Detective Jamison showed Randall Byrd a six-pack photographic lineup that included Felix's picture. Detective Jamison included Felix's photograph because Felix fit the description Randall Byrd had given on the night of the shooting, including his race and height. Detective Jamison used the then-most-recent booking photograph of Felix from March 2014. Detective Jamison testified he used the photograph of Felix because it "was the most current photograph of Armando Felix ...." Detective Jamison testified, "I didn't know what his hair was like after or around that time. I just picked the closest in time, the last most recent photograph we had. So it would be the most current to what he looked like." In the photograph, Felix had curly hair. Detective Jamison did not use a DMV photo from May 2013 in which Felix had short, i.e., not curly hair. Detective Jamison could not have used a December 11, 2015 booking photograph showing Felix with short hair; that photograph was not available when Jamison showed the photographs to Randall Byrd on December 7, 2015.
Felix characterizes the photograph used as "outdated" but fails to identify a more recent photograph that Detective Jamison could have used.
At the preliminary hearing, Detective Jamison testified that he did not use a DMV photo, i.e., the 2013 photo, because the system he used to create a photographic lineup utilizes booking photos. He testified that all photos used to create a six-pack are from prior booking photos. Also at the preliminary hearing, Detective Jamison testified that all of the available photographs (i.e., booking photographs) of Felix showed him with curly hair.
Prior to showing Randall Byrd the six-pack photographic lineup, Detective Jamison told Byrd that he had "some pictures I want to show you." Detective Jamison told Byrd that the pictures would "be of the-the guy that got out of the car, the shooter" not "anybody in the car or anybody that you saw .... Detective Jamison read Byrd an admonishment, which included the following: "This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. Keep in mind that hairstyles, beards and mustaches may be easily changed. Also photographs may not always depict the true complexion of a person. It may be lighter or darker than shown in the photo." "When you've looked at all photos, tell me whether or not you see the person who committed the crime. So just take a look. Maybe he's in there, maybe he's not. Don't feel any pressure that you have to pick somebody." Detective Jamison testified he did not indicate he suspected any person in the photographic lineup.
Randall Byrd identified the picture of Felix. After the identification, Detective Jamison did not tell Byrd not to tell other witnesses whether he identified any person from the six-pack photographic lineup.
A copy of the six-pack photographic lineup is included in our record. The persons in positions one and six had short hair. The other four persons had hair of varying lengths, and the person in position five had "poofier" hair than Felix. Felix is the person with the curliest hair. Five of the six persons-including Felix-had some facial hair in the photographs.
Randall Byrd testified that all persons in the six-pack photographic lineup Detective Jamison showed him appeared to be Hispanic or light-skinned African-American. Randall Byrd testified that the photograph of Felix appeared to "be the lightest one in that six-pack." Randall Byrd further testified that in the picture, Felix had curly hair and there were two other persons who he "really can't tell if they got curls or not." Randall Byrd also testified that he did not identify Felix based on his hair but instead, on whom he saw shoot Vance. Randall Byrd also testified that when he saw the face of the person in position four, i.e., Felix, he "knew" it was the shooter. Randall Byrd testified he focused on the face when he made the identification from the photographic lineup. Byrd reiterated that he did not identify Felix "on anything other than the face."
Detective Jamison showed J.G. the same six-pack (on the same day Jamison showed Randall Byrd), and J.G. was not able to identify anyone. J.G. stated, "It's [the picture of the shooter is] not in here."
Prior to trial, Felix filed a motion to suppress and White joined the motion. Felix's counsel argued that when Detective Jamison made the six-pack photographic lineup, he could have used the DMV photograph but instead, he "chose to use the one showing the big, curly hair in the lineup." At the hearing on the motion to suppress, the prosecutor disputed Felix's characterization of his photo as the only one with curly hair. The prosecutor argued, "[T]here are a few people with some bigger hair, few people with not so big hair. He was read the admonition that hairstyles can change ...." The prosecutor also argued that Byrd based his identification on Felix's face, not his hair.
The trial court denied Felix's motion to suppress. The trial court concluded that "Mr. Byrd's identification was independent and separate from any other evidence." Randall Byrd described the shooter after the incident. Byrd indicated that he saw the shooter's face. Although Byrd heard rumors about Mondo, "he didn't know who Mondo was and what he looked like." The trial court further found "there's no evidence that this identification was affected by any suggestion by the detective when he basically made that identification in that six-pack." The trial court found that Randall Byrd had identified the shooter based on seeing the shooter twice, not based on any prompting by Detective Jamison. The trial court denied Felix's motion to exclude Byrd's identification of Felix.
During closing argument, Felix's counsel argued that Detective Jamison selected a photograph in which Felix had puffy hair because people told Randall Byrd that the shooter had puffy hair. "Detective Jamison with his 20 plus years of police work manipulated Randall Byrd." "Jamison throws this together real fast. On December 6, 2015, Byrd's [sic] told him about the rumors he had heard. Less than 24 hours [later,] Detective Jamison puts that lineup together." Counsel argued that "[o]f course" Byrd identified Felix because he was the only one with puffy, curly hair. Counsel also argued that Byrd's identification was suspect because of the stress he was undergoing during the shooting. "Randall Byrd could not possibly be able to identify anyone, but for that rumor."
2. The photographic lineup was not impermissibly suggestive
Our high court recently explained: A due process violation occurs"' "only if the identification procedure is 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'"' [Citation.] If we determine the procedure was suggestive, no due process violation arises if '" 'the identification itself was nevertheless reliable under the totality of the circumstances.'"' [Citation.] In assessing the totality of the circumstances, we consider' "such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." [Citations.] "Against these factors is to be weighed the corrupting effect of the suggestive identification itself." [Citation.]' [Citation.]" (Wilson, supra, 11 Cal.5th at p. 283.)
In Wilson, the high court concluded that a lineup was not unduly suggestive when "nothing made defendant' "stand out"' from the other men depicted." (Wilson, supra, 11 Cal.5th at p. 285.) The defendant" 'was neither the oldest nor the youngest of the [six-pack] participants, neither the tallest nor the shortest, neither the heaviest nor the lightest.' [Citation.]" (Ibid.) All of the men in defendant's six-pack were distinct in some respect from one another, with varying hairstyles and clothing, and each of the image backgrounds was somewhat different. But" 'nothing in the lineup suggested that the witness should select defendant.' [Citation.]" (Ibid.)
Defendants' argument that the identification procedure was unduly suggestive presents a mixed question of law and fact. (Wilson, supra, 11 Cal.5th at p. 283.) We review under a" 'deferential standard'" the" 'historical facts'" underlying the trial court's conclusion that the identification procedure was not suggestive. (Ibid.) We must determine whether" 'the law as applied to the established facts [was] violated.'" (Ibid.) We conclude that the identification procedure was not" '" 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'"' [Citation.]" (Ibid.)
First, we reject defendants' argument that Detective Jamison told Randall Byrd the shooter was in the six-pack. Although Detective Jamison referred to the shooter and asked Byrd if he could identify the shooter from the photographic lineup, Jamison's distinguishing the shooter from other participants in the crime was not improper. Detective Jamison expressly told Byrd that the shooter's photograph may not be in the six-pack at all and that Byrd should not feel pressure to select anyone. It bears repeating the admonishment Jamison read Byrd: "This group of photographs may or may not contain a picture of the person who committed the crime now being investigated." "Maybe he's in there, maybe he's not. Don't feel any pressure that you have to pick somebody."
Second, we reject defendants' premise that Detective Jamison selected a photograph to match the rumor Randall Byrd heard on December 6, 2015 indicating that Mondo had puffy hair. Their premise that Detective Jamison "purposely chose" a photograph of Felix with "big, curly, puffy hair" and that Jamison "used the outdated photograph" because of rumors Randall Byrd heard that the shooter had "poofy" hair, is not supported by the record.
Detective Jamison explained that he selected the then-most-recent booking photograph. Defendants do not contest Detective Jamison's testimony that the system used to create six-pack photographic lineups relies on booking photographs. Even if the system permitted the use of DMV photographs, Detective Jamison was not required to use a 2013 DMV photograph when he had available a photograph depicting Felix closer to the date of the shooting. Felix is correct insofar as he points out that Detective Jamison did not use a December 11, 2015 booking photograph. It would have been impossible to use a photograph taken after Detective Jamison showed Randall Byrd the six-pack. In sum, defendants' speculation that Detective Jamison selected the photograph because it showed Felix with curly hair is not supported by any evidence.
Third, defendant's photo did not "stand out" from the other persons in the lineup. Although photographic lineups in which a defendant's photo "stand[s] out" in some way are impermissibly suggestive, that did not occur here. (People v. Johnson (1992) 3 Cal.4th 1183, 1217.) Defendants contend that Felix's picture stood out because the lineup emphasized Felix's distinctive hair. Although the six persons in the lineup had hair styles of varying lengths, Felix did not have the longest, shortest, or the "poofiest" hair. Byrd testified that in the lineup, Felix had curly hair and he was not sure if two other persons could be described as having curly hair, but Byrd also testified that he did not identify Felix based on his hair but instead, focused on Felix's face. Additionally, J.G. was shown the same lineup as Randall Byrd and did not select any person, stating that the person was not in the photographic lineup. J.G.'s failure to select Felix confirms the conclusion that Felix's picture was not selected to make him stand out among the others in the lineup.
More generally, nothing in the photographs caused defendant to stand out suggesting that he should be selected. The photographs were all of men of similar age and complexion. Although defendants emphasize that Felix's photograph was lighter, the difference was not substantial and does not flag Felix's photograph as standing out from the others. (People v. Yeoman (2003) 31 Cal.4th 93, 124-125 (Yeoman) [to determine whether lineup unduly selective ask whether anything caused defendant's photograph to stand out]; People v. Brandon (1995) 32 Cal.App.4th 1033, 1052 [photographic lineup not unduly suggestive where defendant's photograph "does not stand out as the sole possible or most distinguishable choice."].)
In short, defendants have not established the first prong- that the identification procedure was impermissibly suggestive. Therefore, we need not consider the second prong-whether it was nevertheless reliable under a totality of the circumstances.(Yeoman, supra, 31 Cal.4th at p. 125.)
The identification process occurred in December 2015, before our Legislature passed Senate Bill No. 923 (Stats. 2018, ch. 977, § 2), which requires law enforcement agencies to adopt regulations for conducting photographic and live lineups to ensure their reliability and accuracy, and which sets forth various minimum requirements for lineups. (See § 859.7.) Because those requirements were not in effect when defendants committed their crimes or when the photographic lineups occurred, we do not address the statute in resolving this appeal.
3. The alleged error in allowing Detective Jamison to testify as to Randall Byrd's prior identifications was harmless
At trial, Felix's trial counsel objected to Detective Jamison's testimony that Randall Byrd consistently identified Felix in 2016, 2017, and 2018. Over Felix's counsel's hearsay objection, Jamison testified that Byrd "never failed to identify defendant Felix. He has been consistent in pointing out Mr. Felix as the person who shot his son."
Defendants argue that the court abused its discretion in admitting the evidence. Defendants argue that the admission of the evidence was prejudicial because Detective Jamison's testimony "could have convinced the jurors to simply ignore the suggestive procedures utilized at the photographic lineup." Although White argues that the standard of prejudice is Chapman v. California (1967) 386 U.S. 18 (Chapman), state law evidentiary errors are reviewed under Watson, supra, 46 Cal.2d 218. (People v. Robinson (2020) 47 Cal.App.5th 1027, 10321033.)
Under either standard of prejudice, the assumed error in admitting Detective Jamison's testimony that Byrd consistently identified Felix was not prejudicial. The challenged evidence was cumulative of evidence admitted showing that Randall Byrd identified Felix at trial and identified him shortly after the shooting in a six-pack photographic lineup. Defendants' claim of prejudice-that according to them, the jury may have ignored "suggestive procedures"-depends on the existence of "suggestive procedures," a premise we have rejected. Additionally, defendants extensively cross-examined Randall Byrd and Detective Jamison as to Byrd's eyewitness identification, as well as the alleged suggestiveness of the six-pack, and as described above, Felix's counsel argued that the alleged suggestive procedures tainted all of Byrd's identifications.
E. The Trial Court Acted Within its Discretion In Limiting Cross Examination of Lewis
Defendants argue that the trial court abused its discretion, violated their right to due process, and prevented them from pursuing a defense when the court excluded under Evidence Code section 352 evidence of a 911 call Lewis made on December 14, 2015 and evidence of one of Lewis's Instagram posts. We begin with additional background and then address defendants' contentions.
We assume for purposes of this appeal that the claims of federal constitutional error are preserved even though defendants did not raise them in the trial court.
1. December 14, 2015 call to 911
On December 14, 2015 at 2:20 p.m., Lewis, identifying herself as Tiffany, called 911. Lewis reported, "My sister need help. She's in Diamond Bar at the Best Western. She ran away from her ex, and he just found her, and he's talking about he's gonna kill-he just called me talking about he's gonna kill her and beat her ...." Lewis reported that the person's name was Jeremiah White and the victim's name was Michelle. Lewis reported that Michelle ran away from White because White used to beat her. Lewis stated that Michelle was trying to get a restraining order to protect herself from White. Lewis reported that "he's a gang banger, and he's already on the run because of a murder case. I guess they don't have evidence for him...." Lewis said that White had a teardrop tattoo under his eye. Lewis did not know if White was carrying a gun but reported that he owned one. Lewis reported White would be in a blue Lexus or a silver Mercedes.
2. In the first trial, Lewis denied making the 911 call
In the first trial, Lewis testified she did not make the 911 call. The jury heard the recording, and Lewis testified that the voice in the recording was not her voice. Lewis also testified she did not drop Michelle off at a Best Western Hotel. Lewis testified that she did not rent the room. "I didn't rent it. People have fake ID's."
3. In the second trial, Lewis testified she made the call and it contained lies
In the second trial, a recording of the 911 call was played for the jury. Lewis testified that she rented a room for Michelle at the Best Western to facilitate Michelle leaving White. Lewis wanted to rent an apartment with Michelle. Lewis told Michelle that White cheated on Michelle with Angela. Lewis told Michelle about Angela because she wanted Michelle to end her relationship with White and because Lewis wanted the police officer to arrest White. Lewis identified the voice on the 911 call as hers. Lewis testified she did not remember previously testifying that the voice was not hers. Lewis said she "embellished" in the 911 call because she hoped that "the cops and he [White] would get into something." Lewis testified that when she went to report the murder, she hoped that White "would get arrested" and that the "arrest would go badly" for him.
4. The trial court excludes evidence of the 911 call in the third trial
Prior to trial, in an Evidence Code section 402 motion, the prosecutor sought to exclude the 911 call because, among other reasons, its admission would result in an undue consumption of time and confusion of issues. The prosecutor recognized that the defendants wanted to use the 911 call to show that Lewis lied to the 911 operator "in the same way" she lied to the police when she described the murder. The prosecutor argued that Lewis provided truthful information during the 911 call because, according to the prosecutor, White physically abused his wife Michelle. According to the prosecutor, "The statements Ms. Lewis makes on the 911 call are corroborated and actually support her credibility. Her misrepresentations about her name and relationship are minor and understandable, as someone who doesn't want to be considered a snitch, compared to the substance of what she is reporting." The court deferred ruling on the motion until Lewis testified.
At trial, Lewis answered affirmatively when White's counsel asked Lewis whether she caused White's wife to go to Diamond Bar, which is where the Best Western hotel was located. The prosecutor then objected to evidence based on relevance and at a side bar, White's counsel argued: Lewis "tells Mrs. White that Mr. White is cheating on her with another girl, gets her to go to Diamond Bar; then makes the 911 call to the Diamond Bar Sheriff's Department, tells them Mr. White is on his way to possibly kill his wife, Mr. White is carrying a gun, Mr. White has tattoos, he's a gang banger, he has a tattoo of a tear[drop] under his eye, and they better get there quick ...." White's counsel represented that it was all fabricated in order to avoid paying White back the money Lewis owed him and "to get revenge for being thrown out of the apartment, being found out about the affair, and to get him killed."
The prosecutor responded that it was true that White was beating up his wife. The prosecutor represented that the People would need to show that Lewis was not lying at the time she made the call.
White's counsel responded, arguing Lewis's "credibility is the whole enchilada in this case. And if I'm not allowed to attack her credibility, I mean, it's really gutting the defense. She created this whole scenario of getting this woman to Diamond Bar and calling Diamond Bar Sheriff's Department and saying a gang banger is coming over here....She creates these scenarios and these stories to get him either locked up . . . or shot ...." White's counsel argued that questioning Lewis would not be time consuming. Felix's counsel argued that Lewis fabricated the story after White's sister demanded the $10,000 Lewis owed White. Felix's counsel also argued that Lewis was the "star" witness, whose credibility was "the crucial issue."
For the first time on appeal, White makes additional arguments with respect to admissibility of the 911 call. He argues Lewis's false report to law enforcement constituted a crime of moral turpitude. He argues Lewis falsely accused White of being on the run because of a murder case. According to White, if "Lewis had truly thought White was guilty of murder and had information to back that up, she could have reported the murder to the police instead of fabricating an entire incident between White and his wife." White failed to present these arguments below, and therefore, fails to demonstrate that the arguments are preserved on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 435 ["A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct."].) In any event, the arguments are not well founded. White assumes the statements made in the 911 call were false, the very issue the prosecutor sought to question and would have required additional evidence about White's purported domestic violence had the trial court not excluded the 911 tape. White assumes the accusation that he was on the run for a murder case was false, without showing any basis for that assumption. Additionally, Lewis reported the murder to the police, the very conduct Whites argues she should have done.
The trial court rejected defense counsels' arguments. The trial court indicated that defense counsel has "done everything you can to dirty her up. All these motivations why she's not credible. I think it's pretty obvious to whoever is looking that she's not a credible witness. It's very obvious." The court stated, "My position is that it's 352, first of all; the prejudicial effect clearly outweighs the probative value. Two, it's an undue consumption of time." The court indicated, "[I]t's a colossal waste of time and there's enough to go on to dirty this woman up, if that's what you guys want to do, to show that she's not credible." Ultimately, the court excluded evidence of Lewis's 911 call.
When it denied defendants' motions for new trial, the trial court revisited the issue stating, "With respect to Ms. Lewis' testimony, which was basically excluded from testimony, the court basically exercised its discretion pursuant to 352 of the Evidence Code, and believed that the probative value was completely outweighed by the undue consumption of time. [¶] Ms. Ryan [Lewis] testified and she was impeached and basically discredited many, many, many, many ways, many, many, many, many, many times by both competent counsel for the defense."
5. Instagram post
An Instagram post defendants sought to tie to Lewis recited:" 'Whoever so-called family running around with my name in they mouth, I hope you get hit by the car. If you got kids, I hope they die eating cereal.' "
In the first trial, Lewis testified she never had an Instagram account.
In the second trial, Lewis testified she would "post messages about how [she's] upset with [her] family all the time" because "[p]eople piss me off." Lewis testified, "Honestly, I don't know who that post was going to. I have multiple people I was mad at ...." Lewis testified, "[I]t's not related to this" trial, i.e., the trial of Felix and White. Lewis testified that the post was not related to her family being upset that she went to law enforcement.
In the third trial (the one challenged in this appeal), the trial court sustained an objection when White's counsel attempted to question Lewis about the Instagram post. The court asked how the post concerned Felix or White. White's counsel stated that it did not concern either defendant. The court concluded, "Seems to be 352. I think everything that needs to be conveyed that this young lady is not a candidate for sainthood is being established."
6. White's jury argument
White's counsel argued during closing argument, "Hell hath no [fury] like a woman scorned, ladies and gentlemen. Ms. Lewis was dumped. Why was she dumped? She was dating Mr. Felix and she ended up sleeping with Mr. White ...." Counsel continued, arguing Lewis stole $10,000 from White; White throws her out of the apartment; Lewis is "dumped and she's mad as hell." "Ms. Lewis, if you would not trust Ms. Lewis to advise you on important matters in your life, then you have a reasonable doubt. If you would feel uncomfortable if your son was dating Ms. Lewis, then you have a reasonable doubt. If you would not let her babysit your kids, ladies and gentlemen, then you have a reasonable doubt." Counsel also argued, "Ms. Lewis has recanted .... Wouldn't you think that .... they might . . . explore some different routes .... She says, it's all a lie. It's all bologna.... Maybe we ought to check up on some things. Like Mr. Atlas."
7. The exclusion of the 911 call did not violate defendants' right to confrontation or to present a defense
A" 'trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted.' [Citation.]" (People v. Whisenhunt (2008) 44 Cal.4th 174, 208 (Whisenhunt); People v. Chatman (2006) 38 Cal.4th 344, 372 (Chatman).) "The general rule remains that' "the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice."' [Citation.]" (People v. Lawley (2002) 27 Cal.4th 102, 155.) Although few constitutional rights are more fundamental to an accused than the right to present evidence in one's own defense, both the defendant and the prosecution must comply with established rules of evidence. (People v. Ayala (2000) 23 Cal.4th 225, 269.)
Defendants' arguments that they were prevented from presenting a defense and from cross-examining Lewis lack merit. Defendants assume, but fail to show, that the excluded evidence would have produced a significantly different impression of Lewis's credibility. Defendants' arguments rest on the incorrect premises that the 911 call was "critical impeachment evidence" and that questioning Lewis about the 911 call was their "only opportunity" to challenge Lewis's credibility.
The evidence that Lewis allegedly lied when she called 911 to report domestic violence between White and his wife was not "critical" because defendants elicited extensive testimony impeaching Lewis and they had multiple opportunities to challenge her credibility. Once all of the admitted evidence is considered, the record shows that evidence of the 911 call would not have produced a significantly different impression of Lewis.
Evidence admitted at trial showed that Lewis was angry with White and Felix when she went to the police. Lewis testified that she wanted "to get even." Lewis testified that "when people piss [her] off" she "take[s] revenge." Lewis also acknowledged that she owed White $10,000 and that the day before she went to police to report on White and Felix, she had received text messages asking for repayment of the money owed. Lewis testified that she reported White to the police because she wanted the police to lock up White so that she did not have to repay the $10,000 and because she was mad that he threw her out of the apartment. Lewis believed if White were arrested, she would not have to repay the $10,000 debt. Lewis testified that she tried to break off White's relationship with his wife (Michelle). Lewis testified she posted information that White beat his wife but the information was not true. Lewis testified she heard about the murder and she "just put them [White and Felix] in the story because Jeremiah pissed me [Lewis] off." Lewis testified she "made it up [the story]" because she was angry with White. As the foregoing evidence reflects, the trial court allowed defendants to probe Lewis's credibility extensively, as well as her motivations for reporting White and Felix to police on December 14, 2015.
Given the extensive impeachment evidence, there is no merit to defendants' contentions that the trial court prevented them from cross-examining Lewis or from presenting a defense. (People v. Quartermain (1997) 16 Cal.4th 600, 624 (Quartermain) [because impeachment evidence was admitted, additional impeachment evidence would not have created a significantly different impression of the witness's credibility]; People v. Mickle (1991) 54 Cal.3d 140, 169 [no federal constitutional error where trial court limited impeachment and challenged evidence "would not have painted a materially different picture" of witness's credibility].) As previously quoted, White's counsel's closing argument reflects defendants were well able to present the defense that Lewis's 2015 report about the killing should not be credited.
F. The Court Acted Within Its Discretion In Excluding Evidence of Lewis's 911 Call Under Evidence Code Section 352
On appeal, both Felix and White argue that we must reverse their convictions because the trial court abused its discretion when it excluded the 911 call. We conclude that the trial court acted within its discretion when it concluded that admission of the evidence-in light of all the other impeachment evidence-would consume an undue amount of time.
A trial court has discretion under Evidence Code section 352 to exclude cross-examination if it will necessitate an undue amount of time in comparison to its probative value. (Whisenhunt, supra, 44 Cal.4th at p. 207; Evid. Code, § 352, subd. (a) [trial court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time].) California Constitution, article I, section 28, subdivision (d) "which generally provides that 'relevant evidence shall not be excluded in any criminal proceeding,' . . . expressly 'preserve[s] the trial court's discretion to exclude evidence whose probative value is substantially outweighed by its potential for prejudice, confusion, or undue consumption of time. (Evid. Code, § 352.)' [Citation.]" (Chatman, supra, 38 Cal.4th at p. 376.) A trial court's exercise of discretion in admitting or excluding evidence, including impeachment evidence, is reviewed for abuse of discretion and will not be disturbed except on a showing the "trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Defendants assume that Lewis fabricated the details of the 911 call because they credit her testimony during the second trial, which was in stark contrast to her testimony at the first trial, at which she denied making the call or renting a room at the Best Western to protect Michelle from White's domestic violence. During the second trial, Lewis testified she lied about the statements made in the 911 call. Defendants credit her second trial testimony as opposed to her first trial testimony to argue the trial court erred in excluding evidence showing she lacked credibility. Defendants offer no basis for their assumption that Lewis's second trial testimony was truthful. Indeed, at the hearing to exclude the tape, the prosecutor represented that Lewis's accusations of domestic violence in the 911 tape were true, and that if the 911 tape were admitted, the prosecution would have to introduce evidence supporting the truth of Lewis's domestic violence accusations against White.
The court acted within its discretion when it concluded that assessing the truth of the statements made in the 911 call, that is, whether White committed domestic violence against Michelle, would consume an undue amount of time on a collateral issue, especially given defendants' plenary attack on Lewis's credibility throughout the third trial, including obtaining her admission that she testified inconsistently, sometimes intentionally so, in all of the proceedings, including the preliminary hearing and three trials.
G. The Court Acted Within Its Discretion In Excluding Evidence of Lewis's Instagram Post
Defendants fail to demonstrate that an Instagram post in which Lewis hoped her family would die was relevant. Contrary to White's assertion, White was not Lewis's family member. Lewis knew White since she was two years old, but was not related to him. At least as significant is White's trial counsel representation, when he argued that the post should be admitted, that the Instagram post did not involve White or Felix.
Defendants' argument that the post shows Lewis "could have contrived the allegations against White and Felix that they committed the December 4 shooting" is not persuasive. Defendants show no link between Lewis wishing that her family choke on cereal and Lewis's reporting a murder to police. Assuming arguendo Lewis's Instagram post were indicative of her vengeful character, the jury was amply aware (as detailed above) that Lewis turned to revenge when she became angry.
H. Defendants Demonstrate No Error In Allowing Randall Byrd To Rebut Atlas's Testimony
Defendants argue that the prosecutor breached an agreement it had with defense counsel when the prosecutor requested that Randall Byrd be permitted to testify during rebuttal to rebut Atlas's testimony. According to defendants, "the prosecution agreed with the defense that it would not recall Randall Byrd in rebuttal or at any other time in exchange for the defendants allowing Byrd to remain in the courtroom throughout trial." Defendants fail to establish any such agreement. We begin with additional background.
1. Additional background
The prosecutor called Randall Byrd as the first witness. During his direct examination, Byrd testified Felix was the shooter. Byrd offered no testimony about Atlas during the prosecutor's case-in-chief.
After Randall Byrd testified, Felix's counsel stated that she would like the court to "put on the record" that Byrd has been present in the courtroom. The court stated, "[I]t's the court's understanding that Mr. Byrd was allowed to remain . . . throughout the second trial, and so that the court really has no objection to him remaining here. But my understanding [is] that he cannot be called back as a witness-rebuttal witness." White's counsel stated, "Yes, Your Honor. On behalf of Mr. White, that's my understanding also." The prosecutor stated only the following: Byrd "was present during [J.G.'s] testimony. He's not present now. And I'm not sure if he was present for Ms. [Lewis's] testimony."
Subsequently, the trial court revisited the issue and stated that defense counsel asserted "the understanding was that he [Byrd] wouldn't be called back as a witness." Defense counsel also represented that "Mr. Byrd has basically been in the courtroom the entire trial after he testified." The prosecutor responded that Byrd was not in the courtroom during the defense case or during any hearing involving the discussion of Atlas's testimony.
Counsel for Felix responded, "This was addressed at the very beginning of this case about Mr. Byrd's presence. And it was at the request of the prosecutor that he be able to remain after he gave his testimony. And the court permitted that. He was the first witness put on by the prosecution. He asked that he could remain. He remained .... I cannot rely on [the prosecutor's] representation that he's [Randall Byrd has] been out of the courtroom all during the defense." Felix's counsel further represented that the prosecutor knew Atlas would testify. Felix's counsel argued, "I am strenuously opposed to Mr. Byrd being able to come back and testify when his presence has been in this courtroom." White's counsel objected to Byrd testifying because "any person listening to the prosecution's case in the courtroom would deduce that Mr. Atlas was a possible defense witness."
Both defendants' counsel objected to Byrd testifying during rebuttal because Byrd had been in the courtroom after he testified. The prosecutor stated Byrd was not in the courtroom during the defense case.
Ultimately, the trial court allowed Randall Byrd to testify during rebuttal for the following reasons: "[T]he court's going to take judicial notice of the fact that this courtroom was locked" when Atlas testified. "The court's also going to take judicial notice that Mr. Byrd was not in the courtroom the entire time Jeremiah Atlas was on the witness stand. He was ordered out with everybody else ...." "Mr. Byrd has not been in the courtroom at all during the time that Mr. Atlas was testifying."
During rebuttal, Randall Byrd testified that he saw the shooter twice and nothing blocked his view of the shooter. Byrd repeated his prior testimony that the shooter shot with two hands. During rebuttal, Byrd testified that Atlas was not the shooter. Byrd testified he did not see Atlas on the night of the shooting.
The court sustained an objection when the prosecutor asked, "[I]s it important for you to make sure that the right person is held responsible for the murder of your son?" The court instructed Randall Byrd not to answer the question, and he did not do so.
When asked by defense counsel, Byrd testified that he did not see Atlas in court.
In denying defendants' motions for new trial, the trial court noted that Byrd was not called as a rebuttal witness in the two prior trials. Atlas had not testified in those cases. Byrd was allowed to testify as a rebuttal witness only to Atlas's testimony and Byrd was not in the courtroom during Atlas's testimony.
2. Analysis
On appeal, defendants argue that the trial court erred in allowing Randall Byrd to testify during the prosecution's rebuttal because the parties had an agreement he would not do so if allowed to remain in the courtroom. Defendants assert the "prosecutor entered into an absolute agreement with the defense not to call Byrd again." (Italics added.) According to defendants, the prosecutor agreed not to call Byrd during rebuttal if the defense allowed him to remain in the courtroom. Defendants' premise is incorrect. The record does not show the prosecutor agreed not to call Byrd again. Even if there were such an agreement, the defendants did not fulfill their obligation under the purported agreement because they did not allow Byrd to remain in the courtroom for the duration of trial. To the contrary, Byrd was not present during Atlas's testimony.
The absence of an express agreement distinguishes this case from those relied on by defendants. For example, in Quartermain, supra, 16 Cal.4th at pp. 617-618, the prosecutor expressly agreed that no information obtained during an interview would be used in any proceeding, and then proceeded to use the information as impeachment evidence. Our high court found that "it was fundamentally unfair and a violation of due process for the prosecutor in this case to use at trial defendant's . . . statement in breach of the prosecutor's promise not to do so." (Id. at p. 620.) In U.S. v. Shapiro (9th Cir. 1989) 879 F.2d 468, the "government flatly denied any intention to use Shapiro's prior conviction by agreeing 'not to offer evidence of Mr. Shapiro's prior felony conviction or cross-examine him as to that conviction.'" (Id. at pp. 471-472.) In contrast here, the prosecutor did not expressly agree that Byrd would not testify during rebuttal. In short, defendants demonstrate no agreement prohibiting Randall Byrd from testifying on rebuttal.
Defendants insinuate that the prosecutor committed misconduct. Quoting Berger v. United States (1935) 295 U.S. 78, 88, defendants point out that a prosecutor "may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Defendants' argument that the prosecutor committed misconduct or struck a "foul blow" is based on the inaccurate assertion that the prosecutor agreed that Byrd would not be called as a rebuttal witness. As explained, the record does not support that premise. The argument is also forfeited because defendants did not object in the trial court and request an admonition. (People v. Wright (2021) 12 Cal.5th 419, 444.)
White further argues the "prosecutor exploited the trial court's erroneous ruling allowing Byrd to testify in rebuttal . . . by asking Byrd how important it was to him that the right man was convicted." The trial court instructed Byrd not to answer the question and Byrd complied. White forfeited his insinuation on appeal that the prosecutor committed misconduct in asking the question because he failed to object on that basis in the trial court. (People v. Wright, supra, 12 Cal.5th at p. 444.) White's additional insinuation that the question harmed him is not persuasive because Byrd never answered the question and the court instructed the jury: "If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did." (People v. Edwards (2013) 57 Cal.4th 658, 746 [we presume the jury understands and follows the court's instructions].)
I. Felix Demonstrates No Error In Instructing Jurors on Consciousness of Guilt With CALCRIM Nos. 362 and 371
Felix argues the trial court should not have instructed the jury on consciousness of guilt (CALCRIM Nos. 362 and 371) and that the error requires reversal of his convictions because the prosecutor's reliance on the instructions "to show Felix's consciousness of guilt destroyed any chance Felix had to raise a reasonable doubt with the adversely-influenced jury." After providing additional background, we discuss Felix's arguments.
1. Additional background
The trial court instructed the jury with CALCRIM No. 362: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. You may not consider the statement in deciding any other defendant's guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself. [¶] This instruction pertains to Mr. Felix only."
The trial court also instructed the jury with CALCRIM No. 371: "If the defendant tried to hide evidence against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If someone other than the defendant tried to create false evidence, provide false testimony, or conceal evidence, that conduct may show the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself. [¶] If you conclude that a defendant tried to hide evidence or authorized another person to hide evidence, you may consider that conduct only against that defendant. You may not consider that conduct in deciding whether any other defendant is guilty or not guilty."
During closing argument, the prosecutor argued, "Felix claims he stayed at . . . [the] Compton [address] all day on the night of the murder." Felix claims he did not leave that address until the next morning. "You already know from the cell phone evidence that that's not true." "[W]hy he wants to lie about his whereabouts is something that you have to consider." The prosecutor continued, "The court has given you instructions. And part of the instructions talk about . . . if you believe someone lied about the crime, about the murder . . . you can take that into consideration. And you have to ask yourself like why? Why is he going to lie about it? Why is he going to lie about it and say he never left this location if he-if he didn't commit the crime?" "He lied about it because he did commit the crime." During rebuttal the prosecutor argued, "Why did Armando Felix lie about where he was that night? Because he was there at the scene. He was the one who shot."
During rebuttal, the prosecutor argued both Felix and White were housed with Atlas before Atlas claimed to be the shooter. "The defendant wants you to believe-he wants you to believe a made-up story, made and manufactured by the defendants when they got together with Mr. Atlas."
2. Felix demonstrates no error in giving CALCRIM No. 362
People v. Amador (1970) 8 Cal.App.3d 788, 791-792 (Amador) is the only case Felix cites for the proposition that the trial court erred in giving CALCRIM No. 362. Amador does not support Felix's argument.
Amador states:" 'It should be emphasized that no inference of consciousness of guilt can be drawn from the mere fact that the jury, in order to convict, must have disbelieved defendant's explanation of his relationship with May and Redden [who are not identified]; only where the false statement or testimony is intentional rather than merely mistaken and where such statement or testimony suggests that the defendant has no true exculpatory explanation can it be considered as an admission of guilt. [Citations.] Here defendant did not simply deny his guilt; he ventured upon an explanation so unusual that the triers of fact could conclude that it was an intentional fabrication indicating consciousness of guilt and the absence of any true exculpatory explanation.' [Citations.]" (Amador, supra, 8 Cal.App.3d at pp. 791-792, italics added.)
In Amador, the defendant testified in a burglary case that he was in the vicinity of the victim's home because he was looking for his girlfriend, whom he understood lived on the same street, and that he mistakenly entered the victim's open door, found the house already in disarray, and did not take anything. (Amador, supra, 8 Cal.App.3d at pp. 789-790.) In affirming the defendant's second degree burglary conviction, the Amador court held defendant's version of facts was so unusual that the trier of fact could conclude defendant's testimony was an intentional fabrication without any true exculpatory explanation. (Amador, at p. 792.)
Felix relies on the above italicized language to argue that the jury could not infer consciousness of guilt based on its disbelief of his statements about his location at the time the murder was committed. As in Amador, here the jury could have concluded from the cell phone evidence and ability to collude with Atlas in prison that Felix fabricated his testimony about his whereabouts at the time of the murder. Sufficient evidence, if believed by the jury, supported the inference that Felix intentionally fabricated his whereabouts and was not simply mistaken." '[T]here need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference. [Citations.]' [Citation.]" (People v. Alexander (2010) 49 Cal.4th 846, 921-922.)
3. CALCRIM No. 371
Felix argues the trial court erred in giving CALCRIM No. 371 because no evidence showed that Felix "had anything to do with Atlas admitting guilt." "Felix takes no position on whether there was sufficient evidence White helped to create false evidence given that he was housed with Atlas from June 2018 until January 2019, right after which White told his investigator to speak with Atlas because Atlas would confess to the shooting. [Citations.] Felix notes only that no evidence showed he was involved with having White's investigator speak with Atlas."
Where, as here, there was some evidence that "if believed by the jury, would sufficiently support the inference suggested in the instructions" the court properly gives consciousness of guilt instructions. (People v. Bowman (2011) 202 Cal.App.4th 353, 366.) There was some evidence in the record that, if believed would support the inference that Felix convinced Atlas to testify. Evidence that Atlas-Felix's cousin-was housed with both Felix and White before he confessed to a crime was sufficient to support the instruction. Atlas lied to the investigator about being housed with both Felix and White. Atlas testified that he was housed with both White and Felix and that he spoke to Felix to arrange being housed together. Either Felix or White or both could have influenced Atlas to testify. The fact that White was housed with Atlas just before Atlas decided to confess to being the shooter does not negate Felix's opportunity to influence Atlas's decision when Felix was housed with Atlas.
J. The Jury Did Not Convict White of Murder Based on Imputed Malice
White argues we must reverse his murder conviction because it could have been based only on imputed malice, which is no longer a viable theory for murder. In People v. Gentile (2020) 10 Cal.5th 830 (Gentile), our high court explained, "In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) after determining that there was further 'need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.' (Stats. 2018, ch. 1015, § l, subd. (b).) Among other things, Senate Bill 1437 amended Penal Code section 188 to provide that '[e]xcept as stated in subdivision (e) of [Penal Code] Section 189 [governing felony murder], in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' [Citation.]" (Gentile, at pp. 838-839.)
White was not convicted based on imputed malice. The jury found that White acted with express malice when he murdered Vance Byrd. The jury could find White guilty of first degree murder only "if the People have proved that he acted willfully, deliberately, and with premeditation." The trial court had instructed the jury that: "The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused death." The court also instructed the jury that: "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder." The jury finding that White acted willfully, i.e., with intent to kill forecloses White's argument that he may have been convicted based only on imputed malice.
K. The Conspiracy Instruction Failed To Make Clear that a Conspiracy to Commit First Degree Murder Is Required. The Error Was Harmless Beyond a Reasonable Doubt
Defendants argue the instructions given on conspiracy to commit murder improperly allowed jurors to convict them based on implied malice. As defendants argue, implied malice is not a viable theory to support a conviction of conspiracy to murder. (People v. Swain (1996) 12 Cal.4th 593, 599 (Swain).) Swain explained: "We have noted that conspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the target crime, here murder, the object of the conspiracy. Since murder committed with intent to kill is the functional equivalent of express malice murder, conceptually speaking, no conflict arises between the specific intent element of conspiracy and the specific intent requirement for such category of murders. Simply put, where the conspirators agree or conspire with specific intent to kill and commit an overt act in furtherance of such agreement, they are guilty of conspiracy to commit express malice murder. The conceptual difficulty arises when the target offense of murder is founded on a theory of implied malice, which requires no intent to kill." (Id. at p. 602, italics omitted.) Because a "conviction of conspiracy to commit murder requires a finding of intent to kill," it "cannot be based on a theory of implied malice." (Id. at p. 607.)
Respondent incorrectly argues that the issue is forfeited. (People v. Mason (2013) 218 Cal.App.4th 818, 823 (Mason) [no forfeiture where instruction is incorrect statement of the law].)
The conspiracy instruction refers to the murder instruction, which includes an implied malice theory. This cross-referencing of the murder instruction in the conspiracy instruction was erroneous. (People v. Beck and Cruz (2019) 8 Cal.5th 548, 642 (Beck &Cruz).) We agree with defendants that pursuant to the given instruction on conspiracy, the jury could have convicted defendants of conspiracy based on implied malice.
We review instructional errors such as the one alleged here under Chapman, supra, 386 U.S. 18. The question is whether it can be "determined beyond a reasonable doubt that the erroneous implied malice murder instructions . . . contribute[d] to the conviction[ ] on the conspiracy count." (Swain, supra, 12 Cal.4th at p. 607.) Where a jury returned general verdicts which did not show whether they found express or implied malice, the error in allowing a jury to convict of conspiracy to murder potentially based on an implied malice theory was prejudicial. (Ibid.) In Swain, the jury verdicts convicting one defendant of second degree murder and finding the other not guilty of murder did not "enable" the court "to conclude that the jury necessarily found the defendants guilty of conspiracy to commit murder on a proper theory, i.e., based on express malice or intent to kill." (Id. at p. 607.)
In contrast here, the verdicts "inform us" of the jury's theory of malice necessary to convict on the conspiracy to commit murder charges. The jury found that both White and Felix committed the murder willfully and with premeditation, deliberation. (Beck &Cruz, supra, 8 Cal.5th at p. 643 [instructional error harmless where jury found defendants guilty of premeditated murder of all victims].) The instructional error was harmless beyond a reasonable doubt because the jury verdicts show that both White and Felix intended to kill Vance Byrd.
White's claims of prejudice are based on a view of the record inconsistent with the jury's finding that White committed a willful, deliberate, and premeditated murder of Vance Byrd. For example, White asserts: Lewis's testimony was suspect. White may have exaggerated his role when he spoke to Lewis. White and Felix could have disagreed whether Vance Byrd should have been a target. White and Felix may not have been together at the time of the crime. Vance did not identify himself as a gang member. Defendants could have driven into Hoover territory to visit family. White's father testified that White was with him at the time of the killing. Neither Felix nor White testified as to their conversation assuming they were together in the Infiniti. White also emphasizes that in the two prior trials the jury did not reach a verdict.
Felix offers no claims of prejudice specific to him.
The jury's finding that the murder of Vance Byrd was committed willfully and with premeditation and deliberation forecloses White's argument that "it is reasonably possible that the jury convicted White of conspiracy to commit murder because White acted with implied malice when he drove Felix's Infiniti into Hoover territory from which Felix emerged to commit the murder . . . and 'waited until defendant Felix returned to the car before fleeing the area.'" (Italics added.) Notwithstanding the evidence that White emphasizes, the jury found White acted with express, not implied malice. White's various theories as to what the jury could have found are not consistent with the jury's finding in the current trial that White acted willfully and with premeditation and deliberation. The fact that the jury in two prior trials could not reach a verdict does not undermine the conclusion that the instructional error potentially referring to implied malice in the context of a conspiracy to murder was harmless beyond a reasonable doubt because other portions of the jury verdict show the jury found White and Felix acted with express malice.
L. Defendants Demonstrate No Reversable Error With Respect to the Overt Acts Identified in the Conspiracy Instruction
The trial court instructed the jury to convict defendants of conspiracy to commit murder, the jury must find that one member of the conspiracy committed at least one of the following overt acts:
"a. They drove in tandem, one behind the other, for the purpose of finding a Hoover gang member to kill;
"b. They brought at least one gun with them;
"c. They drove the cars into the territory claimed by the [H]oover gang;
"d. They drove around that territory looking for someone to kill;
"e. They drove back towards Vance Byrd who was with his father;
"f. They drove by Vance Byrd and his father and stopped just past the Byrds' home;
"g. Defendant Armando Felix exited one of the cars with a gun and fired several rounds at Vance Byrd and his father[;]
"h. Defendants kill[ ] Vance Byrd;
"i. Both cars waited until defendant Felix returned to the car before fleeing the area."
Defendants argue the trial court "misdirected the jury that it could base its conspiracy conviction upon an overt act which occurred after the object of the conspiracy had been completed." According to defendants, the conspiracy "ended no later than when the conspirators found Vance Byrd who was then shot and killed." Respondent argues the evidence supported the conclusion that Vance Byrd died after defendants fled the area and therefore the challenged overt act was not subsequent to the completion of the murder. White discounts respondent's argument by assuming that the overt acts (as they are similarly listed in the information and verdict form) are set forth in the instruction in chronological order. Neither the information nor the verdict form states that "the killing of Vance Byrd[ ] was complete before the defendants fled" as White asserts. The record does not show the time of Vance Byrd's death.
Assuming arguendo defendants fleeing the scene occurred after the object of the conspiracy had been completed, the alleged error was harmless beyond a reasonable doubt because the jury unanimously found another overt act true. The jury convicted Felix and White of first degree premeditated murder of Vance Byrd. This verdict shows that the jury unanimously found that defendants killed Vance Byrd, one of the (unchallenged) overt acts included in the conspiracy. Because the jury necessarily unanimously found true an overt act supporting the conspiracy, the fact that defendants challenge a different overt act demonstrates no prejudicial error.
Respondent points out that defendants did not object in the trial court. Even in the absence of an objection, we may consider an argument affecting a defendant's substantial rights. (Mason, supra, 218 Cal.App.4th at p. 824.) To assess whether an instruction affects a defendant's substantial rights, we must consider whether the alleged error would result in prejudice. (Ibid.)
M. No Evidence Supported an Instruction on Assault With a Firearm or Conspiracy To Commit Assault With a Firearm; Any Such Alleged Error In Failing To Give These Instructions Would Be Harmless Beyond a Reasonable Doubt
"Under California law, trial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense." (People v. Gonzalez (2018) 5 Cal.5th 186, 196.) This rule applies regardless of whether defendants request an instruction on lesser included offenses. (Ibid.) The error in failing to instruct on a lesser included offense is harmless if the jury necessarily concluded that a defendant committed the greater offense. (Id. at p. 200.)
Defendants argue we must reverse their convictions for first degree murder and conspiracy to commit murder because the trial court failed to instruct the jury on assault with a firearm and conspiracy to commit assault with a firearm. Defendants argue there was evidence from which a jury could conclude they intended only to commit an assault with a firearm and not murder because the "victims were not Hoovers and the motivation for shooting at them was unclear." According to defendants, "[n]ot having found a Hoover to kill, the agreement may have been to warn Vance Byrd, frighten him, injure him, and not necessarily kill him."
Defendants' argument is inconsistent with the evidence and directly conflicts with White's argument in support of reversing his conviction for attempted murder. The evidence showed that defendants believed Vance Byrd was a member of the Hoover Criminals when they shot him. Lewis reported: "They said they seen the boy. When they was driving on Hoovers, they was looking for a Hoover. They said they was drunk and they was looking for a Hoover and they was driving and [Felix] spotted the boy ...." The day after the killing, on White's Facebook account, White wrote that he" 'found out'" Vance was not a gang member but lived in the neighborhood claimed by gang members. Defendants cite no evidence to support their theory that at the time of the shooting they believed Vance was not a Hoover and they wanted only to frighten or injure Vance.
In arguing for the reversal of his conviction for attempted murder, White argues: "Lewis told the police that White told her that they were looking for a Hoover to shoot. [Citation.] The black Infiniti and silver Mercedes passed Randall Byrd and [A.J.] twice without stopping. [Citations.] It was not until Vance Byrd, dressed in [o]range, joined his father that the vehicles stopped, and the shooting began. [Citations.] Lewis told the police there was a discussion between White and Felix regarding whether Vance Byrd was a Hoover gang member. They decided to shoot Vance Byrd." White also argued that "[t]he prosecution's evidence was that the appellants intended to kill a Hoover." Felix asserts he joins in the argument that "[a]ppellants were deprived of a fair trial by the court's failure to instruct on assault with a firearm as a lesser included offense to the charge of attempted murder." Felix fails to show how this argument applies to him. (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11 [cursory joinder request insufficient to satisfy burden on appeal].) In any event, Felix cannot demonstrate prejudice because the jury found that the attempted murder was willful, deliberate, and premeditated. The jury thus necessarily rejected the theory that Felix intended only to assault Randall Byrd with a firearm.
In any event, assuming arguendo the trial court should have instructed the jury on assault with a firearm, any error in failing to instruct on the lesser included offense of assault with a firearm was necessarily harmless. (People v. Earp (1999) 20 Cal.4th 826, 886 [where jury necessarily rejected lesser offense, any error in failing to instruct on lesser offense harmless].) With respect to the murder, the jury concluded that Felix and White acted willfully, deliberately, and with premeditation. Therefore, the jury necessarily rejected the theory that defendants intended only to assault Vance Byrd with a firearm. (People v. Lewis (2001) 25 Cal.4th 610, 646 [failure to instruct on lesser included offense was not prejudicial where the jury verdict shows it rejected lesser offense].)
White argues that the trial court erred in failing to instruct on assault with a firearm as a lesser included offense to the charge of attempted murder. We need not consider this argument because we have reversed his conviction for attempted murder.
N. The Instruction on Eyewitness Identification (CALCRIM No. 315) Did Not Violate Defendants' Right to Due Process or To Present a Defense
Defendants argue that CALCRIM No. 315 violated their right to due process because the instruction lowered the prosecution's burden of proof by allowing the jurors "to equate eyewitness certainty with accuracy." They also argue that it prevented them "a meaningful opportunity to present a defense as to why the identification was flawed." We disagree.
The trial court instructed the jury with CALCRIM No. 315 as follows: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] Did the witness know or have contact with the defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] How certain was the witness when he or she made an identification? [¶] Are the witness and the defendant of different races? [¶] Was the witness able to identify other participants in the crime? [¶] Was the witness able to identify the defendant in a photographic or physical lineup? [¶] Were there any other circumstances affecting the witness's ability to make an accurate identification? [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty." (Italics added.)
After defendants' trial, our Supreme Court held that the instruction did not violate a defendant's right to due process. (People v. Lemcke (2021) 11 Cal.5th 644, 646.) The high court, however, held that "reevaluation of the certainty [factor identified in the] instruction is warranted" based on empirical research that eyewitness confidence is not predictive of accuracy. (Id. at p. 647.) The high court was concerned that the certainty factor in the instruction implies "an identification is more likely to be reliable when the witness has expressed certainty." (Ibid.) Using its supervisory power, the high court directed that this factor should be omitted until the Judicial Council has evaluated the instruction. (Id. at pp. 647-648.)
The Supreme Court rejected the argument made by defendants here that CALCRIM No. 315 "operates to 'lower the prosecutions burden of proof.'" (Lemcke, supra, 11 Cal.5th at p. 657.) Our high court instead concluded that the instruction does not equate certainty and accuracy. (Ibid.) "Nor does the instruction state that the jury must presume an identification is accurate if the eyewitness has expressed certainty." (Ibid.) "Instead, the instruction merely lists the witness's level of certainty at the time of identification as one of 15 different factors that the jury should consider when evaluating the credibility and accuracy of eyewitness testimony. The instruction leaves the jury to decide whether the witness expressed a credible claim of certainty and what weight, if any, should be placed on that certainty in relation to the numerous other factors listed in CALCRIM No. 315." (Ibid.) Our high court observed, expert testimony on eyewitness identification, as well as other jury instructions further "undercut" the argument that CALCRIM No. 315 lessened the prosecution's burden of proof. (Id. at p. 658.)
The high court also rejected defendants' argument that CALCRIM No. 315 prevents defendants from presenting a meaningful defense. (Lemcke, supra, 11 Cal.5th at p. 646.) In Lemcke, the defendant presented a "vigorous defense" on the issue of identity. Defense counsel cross-examined witnesses on the identification procedures and presented expert testimony on eyewitness identification. (Id. at p. 660.) Ultimately, the Supreme Court held the defendant "failed to establish that the trial court's decision to include the certainty factor in CALCRIM No. 315 violated his due process rights or otherwise constituted error ...." (Id. at p. 669.)
Under Lemcke, we too reject defendants' argument that instructing the jury with the certainty portion of CALCRIM No. 315 violated their right to due process. (See Lemcke, supra, 11 Cal.5th at pp. 657-661.) As in Lemcke, "listing the witness's level of certainty as one of 15 factors the jury should consider when evaluating an eyewitness identification did not render . . . [the] trial fundamentally unfair or otherwise amount to a due process violation." (Id. at p. 661.) The instruction did not lower the prosecution's burden of proof; nor did it require that the jury equate certainty with accuracy. (Id. at p. 657.) Just as in Lemcke, here CALCRIM No. 315 instructed the jury that: "The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty." (Lemcke, at p. 658.) Additionally, as in Lemcke, the court instructed the jury that "[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt." Although this case differs from Lemcke in that no expert testimony was admitted on eyewitness identification, that choice, on defendants' part, does not support a claim that CALCRIM No. 315 violated defendants' right to due process.
We also find no merit to defendants' argument they were prevented from mounting a defense. Defense counsel vigorously cross-examined prosecution witnesses including Randall Byrd and Detective Jamison on Byrd's eyewitness identification. Although counsel chose not to present an expert on eyewitness identifications, nothing prevented them from doing so. The evidence permitted Felix's counsel to argue at length about the reliability of Randall Byrd's eyewitness identification, and he did so.
Felix's counsel argued the prosecutor "wants to say, well, Mr. Byrd, Randall Byrd, never wavered on I.D.'ing Mr. Felix. The other three times that he's testified about what happened on December 4th, he never wavered. Well, heck no, he didn't. Because Detective Jamison made sure he wouldn't waiver. He [Detective Jamison] made sure that that wasn't going to happen. How did he do that? He pulled a photograph of Mr. Felix from March of 2014." Counsel continued, "He goes back to 2014, finds him a photograph where Mr. Felix's hair is puffy and curly. Big, puffy, curly hair. Why does he do that? Because Mr. Byrd has told him the day before he puts together that lineup" that Byrd heard the shooter had puffy hair. "Detective Jamison with his 20 plus years of police work manipulated Randall Byrd. Randall Byrd didn't know what was going on. But you bet you, Detective Jamison knew what he was doing. No doubt about it." Counsel also argued that Detective Jamison told Byrd the shooter was in the six-pack. Felix's counsel also argued, "His Honor has read to you eyewitness identification as instruction 315.... I think you could imagine what kind of stress that Randall Byrd was going through at the time of this shooting. Randall Byrd could not possibly be able to identify anyone, but for that rumor. Ladies and gentlemen, you cannot convict anyone based on a rumor. That's what you have here with the identification of Randall Byrd."
O. The Trial Court Did Not Prejudicially Err In Refusing Defendants' Proposed Pinpoint Instruction on Eyewitness Identification
"Pinpoint instructions 'relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case, such as mistaken identification or alibi. [Citation.] They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.' [Citation.] We are 'mindful of the general rule that a trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.' [Citation.]" (People v. Scully (2021) 11 Cal.5th 542, 592; see also People v. Lyon (2021) 61 Cal.App.5th 237, 252 [trial court may reject potentially confusing instruction].)
Defendants requested the following pinpoint instruction: "The prosecution has the burden of proving the identity of the perpetrator beyond a reasonable doubt. Therefore, you must be satisfied beyond a reasonable doubt that the identification of Armando Felix by Randall Byrd was a product of his own observation rather than the product of suggestions by others." The trial court rejected the pinpoint instruction, stating that CALCRIM No. 315 was sufficient to instruct the jury on eyewitness identification.
Defendants' proposed pinpoint instruction is potentially confusing. The proposed pinpoint instruction suggested that the prosecution could not prove the identity of the perpetrator beyond a reasonable doubt except by reliance on Randall Byrd's observation. The jury could have concluded that Ryan Lewis's December 14, 2015 report identifying Felix as the shooter satisfied the prosecution's burden of showing beyond a reasonable doubt that Felix was the shooter. The proposed pinpoint instruction did not simply suggest additional factors to supplement those in the standard eyewitness instruction (see People v. Wright (1988) 45 Cal.3d 1126, 1143), but instead implied that the prosecution's burden of proof rested on Byrd's observation. The language of the instruction belies defendants' assertion that it simply "reference[d] . . . the influence of suggestion on the accuracy of eyewitness identification."
Assuming arguendo the trial court erred in rejecting the pinpoint instruction, the error was harmless under either Chapman or Watson. Under other instructions given, the jurors were told that they could consider suggestion regarding the accuracy of the eyewitness identification. The court instructed the jury: "In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial." The court instructed the jury: "In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." In evaluating eyewitness testimony, the court instructed the jury to consider whether "there [are] any other circumstances affecting the witness's ability to make an accurate identification."
Defendants claims of prejudice are based on inaccurate assertions. CALCRIM No. 315 did not "unfairly emphasize[ ] the prosecution's theory of the case" as defendants argue. Instead, as detailed above, it lists 15 factors for juror consideration in evaluating eyewitness evidence. CALCRIM No. 315 does not, as defendants assert, "remove[ ] the issue of the suggestiveness of the identification procedure from the jury's consideration." To the contrary, CALCRIM No. 315, expressly allowed the jury to consider suggestiveness when it included "other circumstances affecting the witness's ability to make an accurate identification." Defendants' argument that "it is reasonably probable a result more favorable to [them] will occur at a retrial with a correctly instructed jury that is allowed to consider all of the relevant defense evidence" is not persuasive because the court's instructions allowed the jury to consider all defense evidence notwithstanding the trial court's rejection of the proposed pinpoint instruction. The trial court instructed the jury that it "alone must judge the credibility or believability of the witnesses" and that the jury "may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." Indeed, Felix's counsel, in her argument, highlighted the defense contention that the in-court identification was tainted by the alleged suggestiveness in the pretrial photographic lineup.
See footnote 16.
P. A Reasonable Juror Would Not Have Understood the Instruction on Third Party Culpability in a Manner That Lowered the Prosecution's Burden of Proof
Defendants argue that the instruction on third party liability (Atlas) "shift[ed] the burden of persuasion to the defendants to prove that Jeremiah Atlas committed the murder" and "lower[ed] the prosecution's burden of proof."
White proposed an instruction that instructed the jury: "The defendant is not required to prove Jeremiah Atlas' guilt. The defendant is not required to prove this fact beyond a reasonable doubt in order to be entitled to a verdict of not guilty. The evidence establishing Jeremiah Atlas committed the charged offense need only raise a reasonable doubt in your minds that the defendant is guilty. Evidence that Jeremiah Atlas committed the charged offense may by itself leave you with a reasonable doubt as to the defendant's guilt. However, [its] weight and significance, if any, are matters for your determination. If after considering all the evidence, including any evidence that another person committed the offense, you have a reasonable doubt that the defendant committed the offense, you must find the defendant not guilty.'" Felix's counsel also requested the foregoing instruction.
Neither appellant requested an instruction patterned after the New Jersey Model Jury Instruction referenced for the first time by White on appeal.
The court instructed the jury as follows: "You have heard evidence that Jeremiah Atlas committed the offense for which the defendants are charged. It is not required that the defendants prove [his guilt beyond a reasonable doubt. In order to be entitled to a verdict of not guilty, it is only required that such evidence raises a reasonable doubt in your minds that the defendants are guilty." (Italics added.)
The court initially incorrectly instructed the jury that "It is not required that the defendants prove their guilt beyond a reasonable doubt." (Italics added.) As reflected in the instruction quoted in the text, the trial court corrected the term "their" to the term "his."
We must determine how "a hypothetical 'reasonable juror' would have, or at least could have, understood" the instruction. (People v. Mickey (1991) 54 Cal.3d 612, 670.) "The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.)
A reasonable juror would not have understood the challenged instruction to lessen the prosecution's burden of proof. The instruction itself makes clear that defendants were entitled to a not guilty verdict if the third party evidence raised a reasonable doubt that the defendants were guilty. The instruction, reasonably understood, instructs the jury that if the third-party evidence raises a reasonable doubt of defendants' guilt, the jury must find defendants not guilty. The given instruction neither shifted the burden to defendants to prove Atlas committed the murder or lowered the prosecution's burden of proof.
To the extent defendant argues that the "beyond a reasonable doubt" language should have been omitted from the court's instruction, we agree. White's proposed instruction contained this language, but also told the jury that the defendants were not required to prove Atlas's guilt. Although the trial court could have crafted a better instruction, the given instruction makes clear that defendants were entitled to a verdict of not guilty if the evidence regarding Atlas raised a reasonable doubt as to defendants' guilt. Other jury instructions reinforced this conclusion. The trial court instructed the jury that "[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt." The trial court instructed the jury: "Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty."
Finally, defendants argue that the closing arguments "increased the likelihood that the jury would interpret the instruction in a manner that violated the [C]onstitution." Their argument rests on the incorrect assertion that counsel argued the "evidence had to show beyond a reasonable doubt that Atlas was guilty." The prosecutor argued that Atlas testified he was the shooter because he was facing multiple murder offenses and had nothing to lose. The prosecutor also argued that Atlas would not be charged with Vance Byrd's murder because the evidence, including Byrd's identification, pointed to Felix as the shooter, not to Atlas as the shooter. The prosecutor referenced Atlas talking to defendant "about how he was going to come in and how he was going to testify and to create some sort of doubt in your minds," but the prosecutor did not argue defendants had any burden of proof or that the prosecution's burden of proof was lowered. In referencing the third-party culpability instruction, White's counsel read the instruction and then argued to the jury, "[I]f you find a reasonable doubt, then you must come back with a not guilty verdict, ladies and gentlemen." In short, neither the instruction when read in its entirety nor the arguments of counsel lowered the prosecution's burden of proof.
Q. The Cumulative Error Doctrine Does Not Apply
Defendants argue that the cumulative impact of the evidentiary and instructional errors deprived them of a fair trial. "Cumulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant." (People v. Capers (2019) 7 Cal.5th 989, 1017.) We have not found any errors to aggregate. (See People v. Lua (2017) 10 Cal.App.5th 1004, 1019 [cumulative error doctrine did not apply where "we have found no error, though we have considered the issue of prejudice as an alternative basis for rejecting defendant's claims of error"].) The record does not support defendants' assertion that the "combined effect of the errors undermines the reliability of the verdict."
R. Sentencing Issues
Defendants argue: (1) the trial court had to hold an ability to pay hearing prior to imposing fines and fees; (2) when the trial court sentenced White, the court improperly relied on its opinion that White suborned perjury; (3) the trial court misunderstood the scope of its discretion when it imposed the firearm enhancements; (4) White's and Felix's counsel rendered ineffective assistance of counsel at the sentencing hearing; and (5) Felix's 15-year-to-life sentence for attempted murder was unauthorized. As noted above, as to both defendants, we remand the matter for a potential retrial on the gang and related firearm enhancements, and for resentencing even if the People choose not to retry these enhancements. White also must be resentenced because we have reversed his conviction for attempted murder. Defendants' other challenges to their sentences are therefore premature or moot. We express no opinion on the merits of those challenges.
DISPOSITION
With respect to Armando Felix, the gang enhancement (Pen. Code, § 186.22) attached to each offense is vacated. The gang related firearm enhancements (id., § 12022.53, subds. (c) &(e)(1) (that a principal discharged a firearm) & subd. (d) &(e)(1) (that a principal discharged a firearm causing death to Vance Byrd)) attached to each offense are vacated. In all other respects, including the remaining firearm enhancements, the judgment is affirmed.
With respect to Jeremiah White, the conviction for attempted murder is reversed. The gang enhancement (Pen. Code, § 186.22) attached to each offense is vacated. The firearm enhancements attached to each offense are vacated. In all other respects, the judgment is affirmed.
The case is remanded to the trial court for further proceedings consistent with this opinion.
We concur: ROTHSCHILD, P. J. CHANEY, J.