Opinion
C076209
10-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER MARQUIS LEWIS et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F06372)
In the early morning hours of June 15, 2010, several assailants attacked, robbed, and killed Fernando Vichez. During a jury trial, the evidence showed that defendant Fitima Laquish Goodman drove defendants Alexander Marquis Lewis, Laquwon Tyrece Warr and Jermaine Antonio Barnes to the scene of the crimes. While Goodman stayed in the truck, Lewis, Warr and Barnes left the truck and attacked Vichez, demanding money from him. Vichez's wallet was taken, and Barnes shot Vichez, killing him.
A jury convicted each defendant of second degree robbery and first degree murder under a felony-murder theory with a true finding of a felony-murder special circumstance. The jury also found that Barnes discharged a gun causing death and that the other three defendants participated in crimes in which a principal was armed with a firearm. The trial court sentenced Barnes and Goodman to terms of life without the possibility of parole, plus an additional term for the firearm enhancements. The trial court sentenced Warr and Lewis, who were juveniles at the time of the robbery and murder, each to a term of 25 years to life.
On appeal, defendants assert the following contentions:
(1) Warr and Lewis contend they are entitled, under Welfare and Institutions Code section 707 as amended by Proposition 57, to conditional reversal and a transfer hearing in the juvenile court;
(2) Barnes contends that consolidation of his trial with Lewis's trial deprived him of due process and a fair trial;
(3) Barnes, Goodman and Lewis contend the trial court erred by admitting evidence concerning a later incident in which Barnes brandished a gun;
(4) Goodman contends the trial court erred by admitting evidence of statements made by Barnes as adoptive admissions against her;
(5) Barnes contends the trial court erred by admitting evidence of text messages he sent the day before the robbery and murder;
(6) Goodman, Warr and Lewis contend there was insufficient evidence to corroborate the testimony of accomplices;
(7) Goodman and Warr contend the trial court erred by denying a request to give special instructions to the jury concerning the corroboration requirement;
(8) Barnes contends the trial court erred by indicating in an instruction that he was the direct perpetrator of the crime;
(9) Warr contends the prosecutor committed prejudicial misconduct by stating that the argument of Warr's counsel had changed from the opening statement to the closing argument;
(10) All defendants contend the trial court erred with respect to its responses to a jury question;
(11) Goodman contends she received ineffective assistance of counsel if any error was invited, waived, or forfeited;
(12) Barnes and Goodman contend multiple errors resulted in cumulative prejudice requiring reversal;
(13) Goodman and Warr contend there was insufficient evidence to sustain the felony-murder special circumstance;
(14) Warr and Lewis contend that imposition of terms of 25 years to life violated the Eighth Amendment;
(15) Warr and Lewis contend the California Supreme Court erred in concluding that provision of a meaningful opportunity to be released on parole after 25 years satisfies the demands of the Eighth Amendment;
(16) Lewis contends the abstract of judgment must be amended to reflect the judgment imposed;
(17) Goodman contends the trial court erred by not awarding presentence custody credit;
(18) Warr notes the trial court failed to impose mandatory parole revocation fines; and
(19) Barnes contends he is entitled to remand to permit the trial court to consider striking his firearm enhancement under new legislation.
We conclude as follows:
Regarding contention (1), Warr and Lewis are entitled, under Welfare and Institutions Code section 707 as amended by Proposition 57, to conditional reversal and a transfer hearing in the juvenile court to determine whether the matters involving them should proceed through the juvenile system or be transferred back to the criminal court.
As for contention (13), there was insufficient evidence to support the felony-murder special circumstance alleged against Goodman because she was not a major participant in the robbery, and as a result, her sentence must be modified to impose a term of 25 years to life, plus the firearm enhancement; however, there was sufficient evidence to support the felony-murder special circumstance as to Warr.
On contention (15), there was no error, but we will remand the matter to the trial court for the limited purpose of conducting a hearing at which the parties may make a record of information relevant to the eventual youth offender parole hearings for Warr and Lewis.
With regard to contention (16), the abstracts of judgment with respect to Warr and Lewis must be corrected to conform to the judgment as entered.
As for contention (17), Goodman is entitled to 1,209 days of presentence custody credit.
On contention (18), parole revocation fines must be assessed against Goodman, Warr, and Lewis.
And as to contention (19), Barnes is entitled to remand for the trial court to consider exercising its discretion to strike his firearm enhancement.
Regarding the remaining contentions and in all other respects, we conclude there was no prejudicial error.
BACKGROUND
A
Fernando Vichez departed a casino in Sacramento around 1:30 a.m. on June 15, 2010, carrying hundreds of dollars. He also carried a company phone and company gas card from his employer. K.G. saw Vichez walking on the sidewalk ahead of her and a truck driving slowly down the street. The truck stopped, and three men from the truck attacked Vichez, overwhelming him. Two of the attackers were black males, but K.G. was not sure of the race of a third attacker. One of the attackers was a black male, slender, with a medium dark complexion wearing a red shirt and had shoulder-length dreads or braids. The other black male, lighter skinned, was bald or had short hair and was wearing a black shirt. The third male also had a black shirt on. All of the attackers were between five feet, five inches and six feet tall.
The attackers beat Vichez until he fell to the ground, and the attacker with the red shirt stepped back and shot Vichez multiple times. After the shooting, one of the attackers checked Vichez's pockets. The men ran back to the truck, and the truck drove away. The truck, a newer model (around 2005), was gray with a distinctive, thick, vertical black stripe on the tailgate.
Goodman later threatened K.G. when they were both incarcerated.
Deputy Eric Duncan of the Sacramento County Sheriff's Department was nearby and heard the gunshots. He immediately responded to the scene, where he saw Vichez on the ground and K.G. standing over him. When Deputy Duncan later reviewed video from his onboard camera, he saw that, on the way to the scene of the shooting, he crossed paths with a gray four-door truck that fit K.G.'s description of the truck involved in the shooting. A surveillance video from a nearby business showed Vichez and the truck around the time of the attack.
Vichez died from multiple gunshots wounds, six of which were shots in the back at an angle that suggested he was lying on the ground on his stomach when the shooter fired from above. At the hospital, $1,100 was found in his pocket, but there was no wallet and no cell phone.
Eight shell casings were recovered from the scene of the shooting. They bore a stamp indicating they were nine-millimeter FC Luger ammunition.
On June 28, 2010, less than two weeks after the robbery and murder of Vichez, Barnes brandished a handgun. Sergeant Scott Hyatt of the Sacramento County Sheriff's Department responded to a call about the brandishing. As Sergeant Hyatt was investigating, a Nissan truck matching the description of the truck involved in the robbery and murder came into the parking lot with Goodman driving. The woman who made the call about the brandishing identified the truck as the one Barnes had arrived in. Having been briefed about the truck that morning, Sergeant Hyatt made contact with Goodman. The truck was seized, and a search of the truck revealed various kinds of ammunition in the glove box, including six live rounds of nine-millimeter FC Luger ammunition. The fingerprints of Barnes, Warr, and Lewis, as well as Zevante Goodman, were found in the Nissan truck.
Zevante Goodman is defendant Fitima Goodman's son. We refer to the son as Zevante and the mother as Goodman.
A search of the residence of Goodman and Barnes on July 5, 2010 revealed live nine-millimeter FC Luger ammunition. It also revealed paperwork indicating that Goodman and Barnes lived there.
Cell phone records established that, within minutes of the robbery and murder of Vichez, several calls were made between a cell phone registered to Barnes and a cell phone registered to Warr, in addition to numerous other calls between the phones in the hours before the robbery and murder.
B
Because there is a contention that the evidence did not corroborate the accomplice statements, we separately summarize statements and testimony of the defendants and their accomplices:
Chelsea Washington
Chelsea Washington was charged with the robbery and murder of Vichez along with the defendants in this case. She pleaded guilty to robbery with a six-year prison term and with an agreement that she would testify truthfully in this case. In June 2010, Washington was in a dating relationship with Barnes, and she also knew that Barnes was in a relationship with Goodman.
Washington was out walking on the street with Lewis, Warr, and Zevante on June 15, 2010, after midnight. Lewis was wearing a black shirt. Zevante left the group to get some shoes for Washington. After Zevante left, Lewis, Warr, and Washington saw a man who appeared to be Mexican. Warr stopped the man and asked him for a dollar. The man pulled out of his pocket, in Washington's words, "[a] lot of money" and handed Lewis $5. Warr told Lewis and Washington that he was going to punch the man, but Washington told Warr not to do it. The man with the money also told Warr not to do it, and the man walked away.
Warr called Barnes and told Barnes there was a man with money walking around. Washington, Lewis and Warr followed the man. As they were following the man, Goodman, Barnes and Zevante arrived in Goodman's four-door truck with Goodman driving and picked them up. The truck passed the man with the money and Lewis pointed him out. Goodman stopped the truck, and Barnes, Warr, Lewis and Zevante got out. Washington stayed in the truck with Goodman. Zevante stayed next to the truck while Barnes, Warr and Lewis approached the man and started fighting with him. Eventually, the man fell face down on the street, and Lewis went through the man's pockets, taking the man's wallet and phone. Barnes pulled out a gun and shot the man about eight times.
Barnes, Warr and Lewis returned to the truck and got inside, while Zevante jumped into the bed of the truck. Barnes became angry as they drove away because they did not get the money. Barnes told Lewis not to call him for anything like that again.
Zevante
Sixteen-year-old Zevante lived with his mother (Goodman) and Barnes, who was Goodman's boyfriend, in June 2010. Charged with murder in this case, Zevante pleaded guilty to robbery with an agreed-upon six-year term.
On the night of the robbery and murder, Zevante left his house with Washington, Warr and Lewis. However, he returned to the house to retrieve headphones for himself and shoes for Washington. After he left the house again, Goodman and Barnes picked him up in Goodman's truck. They also picked up Washington, Warr and Lewis. Zevante saw that Barnes had his gun.
Goodman stopped the truck, and Barnes, Warr, Lewis and Zevante got out of the truck. Zevante did not know why they were stopping, and he stayed next to the truck. Barnes, Warr and Lewis attacked a man, and Barnes shot him. Zevante looked in the truck and saw that Washington was in tears and Goodman had her head down on the steering wheel.
Zevante jumped into the bed of the truck while the other men got into the truck, and Goodman drove away. The next day, Goodman told Zevante that they would never again talk about what happened.
Defendant Lewis
On the night of the robbery and murder of Vichez, Lewis was at the house where Goodman, Barnes, and Zevante lived. He left the house to take a walk with Washington, Warr, and Zevante. Zevante left the group, and they encountered a man on the street. Lewis asked him for money, and the man gave some money to Warr. Washington said something about the man having a lot of money and that they should rob him, and she called Barnes. Warr got a call on his phone, and Warr told the others they were getting picked up. Goodman and Barnes picked up Washington, Lewis, and Warr in the truck.
The group in the truck looked for the man with the money. The truck stopped, and Barnes told Lewis to get out and stop the man. Lewis got out of the truck because he was afraid of Barnes. Lewis approached the man and asked for more money, but Barnes arrived, waving a gun. The man hit Barnes, but Warr pulled the man away. Barnes recovered and shot the man. Lewis participated because he was afraid of being shot or pistol-whipped by Barnes.
After the shooting, Lewis and the others ran back to the truck. Barnes had the man's wallet, and he opened it when he got back to the truck. Finding no money, Barnes ordered Lewis to go back and get the money. Lewis got out and pretended to search the man for money before running back to the truck empty-handed. He told the others he could not find any money.
Defendant Barnes
Barnes had a dating relationship with both Goodman and Washington, which caused stress when they found out about each other. On the night of the robbery and murder of Vichez, Barnes got a call from Washington, who told him that a man had given them $5 but was acting weird and wanted sex. Barnes and Goodman left Goodman's house in Goodman's truck. They picked up Zevante, Lewis and Washington. Washington pointed out the man on the street, and Goodman stopped the truck. Barnes, Washington and Lewis got out of the truck. Lewis began fighting with the man, and Washington helped Lewis. Barnes heard gunshots, so he and the others got back in the truck and left.
Barnes claimed he never had a nine-millimeter pistol. He testified that Washington lied because he would not leave Goodman, and Zevante lied because Zevante did not want Goodman (his mother) to be with Barnes.
Barnes sent text messages to Goodman before the robbery and murder. After his arrest, Barnes made phone calls that were recorded by detectives. We recount that evidence, and other evidence, in the discussion as relevant to the contentions on appeal.
C
The jury found each defendant guilty of first degree murder on a felony-murder theory and found true the special circumstance that each defendant committed the murder while engaged in the commission of robbery or attempted robbery. (Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(17).) The jury also found each defendant guilty of second degree robbery. (§ 211.) As to Barnes only, the jury additionally found true the allegation that Barnes intentionally discharged a firearm resulting in death during each crime (§ 12022.53, subd. (d)), and as to the other defendants, the jury additionally found true the allegation that a principal was armed with a firearm during each crime (§ 12022, subd. (a)(1)).
Undesignated statutory references are to the Penal Code.
The trial court sentenced Barnes to life without the possibility of parole, plus an additional term of 25 years to life for the intentional-discharge-of-a-firearm enhancement. It sentenced Goodman to life without the possibility of parole, plus an additional term of one year for the principal-armed-with-a-firearm enhancement. And it sentenced Warr and Lewis each to a term of 25 years to life. As to Warr and Lewis, the trial court struck the principal-armed-with-a-firearm enhancement in the interests of justice.
The trial court imposed but stayed other terms pursuant to section 654.
DISCUSSION
We begin our discussion by noting that each of the defendants generally joins the other defendants' arguments. "While we note these joinders, they are not well taken to the extent defendants have failed to argue a miscarriage of justice in each individual circumstance. 'Joinder may be broadly permitted (Cal. Rules of Court, rule 8.200(a)(5)), but each appellant has the burden of demonstrating error and prejudice (People v. Coley (1997) 52 Cal.App.4th 964, 972; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice."]).' (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.)" (People v. Nilsson (2015) 242 Cal.App.4th 1, 12, fn. 2.)
I
Warr and Lewis contend they are entitled, under Welfare and Institutions Code section 707 as amended by Proposition 57, to conditional reversal and a transfer hearing in the juvenile court.
At the time of the crimes, Warr and Lewis were 17 years old, and the prosecution filed charges against them directly in criminal court. The Welfare and Institutions Code formerly allowed the prosecution to file a criminal case against a minor in criminal court in some circumstances without first filing a petition in the juvenile court. (Welf. & Inst. Code, former § 707, subd. (d)(1); Stats. 2008, ch. 179, § 236, p. 903.) But in November 2016, the voters approved Proposition 57, which amended Welfare and Institutions Code section 707 to require that any allegation of criminal conduct against any person under 18 years of age be commenced in juvenile court, regardless of the age of the juvenile or the severity of the offense. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, pp. 141-145.) The prosecutor may file a motion to transfer the case from juvenile court to criminal court, in which case the juvenile court must consider specified criteria to determine whether transfer is appropriate. (Welf. & Inst. Code, § 707, subds. (a)(1), (2)(A)-(E).)
Warr and Lewis claim they are entitled to retroactive application of Proposition 57. (Lewis's January 22, 2018 request to join Warr's supplemental briefing on this issue is granted.) In People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), the California Supreme Court held that the requirement to conduct a transfer hearing in juvenile court in the first instance applies to a defendant charged in adult court prior to the effective date of Proposition 57. Here, the requirement applies to Warr and Lewis.
For cases pending in criminal court when Proposition 57 was approved by the voters, the court in Lara, supra, 4 Cal.5th at page 310 approved the procedure implemented by the court in People v. Vela (2017) 11 Cal.App.5th 68 (see 21 Cal.App.5th 1099 for subsequent opinion after transfer from Supreme Court). Under that procedure, a defendant is entitled to a transfer hearing in juvenile court to determine whether the case should proceed through the juvenile justice system or be transferred back to criminal court. Consistent with that approach, we must conditionally reverse the convictions and sentences for Warr and Lewis and send their matters to the juvenile court for transfer hearings. (Welf. & Inst. Code, § 707.)
If, after considering the matters of Warr and Lewis separately, the juvenile court determines it would have transferred their matter to the criminal court, then the matter will be transferred to criminal court and the conviction and sentence (as modified by this decision) will be reinstated. (Welf. & Inst. Code, § 707.1, subd. (a).) Alternatively, if the juvenile court determines it would not have transferred the matter to the criminal court, it will treat the conviction of that defendant as a juvenile adjudication, enter appropriate findings consistent with Welfare and Institution Code section 702 (Welf. & Inst. Code, §§ 602 [defining ward], 702 [wardship determination]), and impose an appropriate disposition after a dispositional hearing. (Welf. & Inst. Code, § 706.)
II
Barnes contends the trial court abused its discretion by denying a motion to sever his trial from the trial of Lewis because they presented antagonistic defenses. Each presented evidence that the other was the shooter. Barnes also contends the trial court erred by denying his motion for new trial on the same ground. He argues that, if his trial counsel failed to preserve this issue for appeal, his trial counsel's performance was constitutionally deficient. We conclude Barnes forfeited this contention because he did not join in the motion to sever before trial, and he has not established ineffective assistance of counsel.
Before trial, Warr, Goodman and Lewis filed motions to sever, but Barnes did not. When the trial court asked Barnes's attorney about it, his counsel responded: "I think I'm the one they want to get away from." Later in the hearing on the motion, counsel for Barnes reiterated that Barnes was the one they all wanted severance from. The trial court denied the motions brought by Warr, Goodman and Lewis.
After trial, Barnes filed a motion for new trial. In the motion, Barnes argued he had joined in the pretrial motion to sever. He claimed denial of the motion denied him a fair trial because the other defendants presented cases antagonistic to his. His attorney argued: "Each of the co-defendants worked at establishing Mr. Barnes as the shooter in this case. They worked at character assassination as well. It was their goal to portray Mr. Barnes as evil and controlling. As a result of the conflicting and antagonistic defenses all of the defendants were convicted." The trial court agreed that the defenses of the other defendants were antagonistic to Barnes's defense, but the trial court disagreed that Barnes was denied a fair trial. Therefore, the trial court denied the motion for new trial.
On appeal, Barnes focuses on the antagonistic nature of Lewis's defense because Barnes, at trial, suggested in his testimony that Lewis's appearance matched the witness's description of the shooter's appearance.
Barnes forfeited consideration of the severance issue because he did not make a motion to sever his trial from Lewis's trial. (People v. Lind (2014) 230 Cal.App.4th 709, 716 [failure to move to sever in trial court forfeits issue on appeal].) Recognizing the possibility that the issue was forfeited, Barnes contends his trial counsel provided constitutionally deficient counsel by failing to make a motion to sever. The contention is without merit.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. [Citations.] This right 'entitles the defendant not to some bare assistance but rather to effective assistance.' [Citation.]" (People v. Mitchell (2008) 164 Cal.App.4th 442, 466, italics omitted (Mitchell).) To demonstrate ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness, and that he was prejudiced by counsel's performance. (Id. at pp. 466-467.) In the context of failure to make a motion, defendant must demonstrate prejudice by showing that such a motion would have been successful. (See People v. Gonzalez (1998) 64 Cal.App.4th 432, 437-438.) Counsel is not required to make futile motions to appear competent. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1252-1253.)
"The Legislature has established a strong preference for joint trials. [Citation.] Section 1098 states, in relevant part: 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials.' 'Joint trials are favored because they "promote [economy and] efficiency" and " 'serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." ' [Citation.]' [Citation.] We review the denial of a severance motion for abuse of discretion, based on the facts as they appeared at the time of the court's ruling. [Citations.] 'Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. [Citation.]' [Citation.] [¶] 'When defendants are charged with having committed "common crimes involving common events and victims," as here, the court is presented with a " 'classic case' " for a joint trial. [Citation.]' [Citation.]" (People v. Winbush (2017) 2 Cal.5th 402, 455-456 (Winbush).)
In Winbush, the California Supreme Court considered a claim of antagonistic defenses where the defendants attempted to shift blame to each other. It concluded that a claim of antagonistic defenses does not, by itself, require severance. (Winbush, supra, 2 Cal.5th at p. 456.)
Here, the defenses presented by Lewis and Barnes were antagonistic. Lewis admitted he had a role in the events that led to Vichez's death. He testified he was afraid of Barnes. He said Barnes told him to stop Vichez and ask for money and that Barnes shot Vichez. On the other hand, Barnes testified that when he got out of the truck he heard gunshots and immediately returned to the truck. He said Lewis had "dreads" or "braids," like the shooter identified by the witness. Despite this antagonism between the defenses of Barnes and Lewis, however, denial of a proper motion to sever would not have been an abuse of discretion because there was sufficient independent evidence inculpating Barnes.
In a similar case, the California Supreme Court explained: "The circumstance that [the defendants] might attempt to fix blame on each other did not by itself require separate trials. . . . If . . . 'there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.' [Citation.]" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 150, fn. omitted.)
Here, there was ample evidence, independent of Lewis's testimony, that established Barnes's guilt. We need not repeat the evidence against Barnes; it is sufficient to note that both Zevante and Washington testified that Barnes was the shooter. Because independent evidence established Barnes's role in the crimes, severance of his trial from the trial of Lewis would not have been required, even if Barnes had moved to sever. Denial of the motion for new trial was proper for the same reason.
Barnes's trial counsel was not constitutionally deficient for failing to make a futile motion. We therefore need not consider whether any alleged deficiency was prejudicial. (Mitchell, supra, 164 Cal.App.4th at p. 466.)
III
Goodman, Barnes and Lewis contend the trial court improperly admitted evidence that Barnes brandished a firearm different from the firearm used in the murder of Vichez about two weeks after Vichez's murder. They argue the evidence was irrelevant and inadmissible hearsay. Because we agree the evidence was irrelevant, we need not consider the hearsay argument. Defendants claim admission of the evidence was not only an abuse of discretion but also a denial of due process. We conclude that although admission of the evidence was an abuse of discretion because the evidence was irrelevant, it was not a denial of due process, and admission of the evidence was harmless.
A
Sergeant Hyatt of the Sacramento County Sheriff's Department testified that on June 28, 2010, at about 11:30 a.m., he went to Little Oak Lane in Sacramento in response to a call that someone was brandishing a firearm. He spoke to Z.S., who told him she had a confrontation with Barnes and that Barnes had a small silver revolver. While Sergeant Hyatt was there, the Nissan truck involved in the murder of Vichez arrived with Goodman at the wheel. Having been briefed on the truck that morning, Sergeant Hyatt recognized it. Z.S. told Sergeant Hyatt that Barnes arrived in that truck.
The connection of Barnes and Goodman with the Nissan truck was relevant to the case against defendants because that connection supported an inference that Barnes and Goodman were involved in the murder.
Before trial, however, defendants objected to the evidence of Barnes's brandishing. The trial court concluded it was relevant and admissible because it explained why Sergeant Hyatt was at the location when he observed the Nissan truck.
After Sergeant Hyatt's testimony was introduced, the trial court gave the following limiting instruction to the jury: "Ladies and gentlemen, you heard the evidence with some testimony about a gun incident involving Mr. Barnes only so as to put in context why the officers went out to that place that day, why it was -- how they came in contact with that truck, how they came to seize it and later on search it. Okay? [¶] So the thing about the gun and the incident involving Mr. Barnes, that is complete hearsay and you should disregard all that. We heard that because it explained why the police went out there and found that truck and what they did with it subsequently. So disregard that for its truth. It wasn't offered for its truth. That's complete hearsay about there being some gun incident involving Mr. Barnes that day. Okay?"
B
The facts that police officers went to the apartment complex in response to a call that someone was brandishing a gun and that Barnes had a gun other than the one used in the murder of Vichez did not make that evidence relevant in this case. The jury was not called upon to consider the reasonableness of the officer's actions; therefore, evidence of why the officer was there or what the witness saw with regard to brandishing was irrelevant. (People v. Lucero (1998) 64 Cal.App.4th 1107, 1109-1110 [evidence of why officers acted was not relevant unless needed to show probable cause].) The Attorney General acknowledges that the gun Barnes brandished at the apartment complex was not the gun used to murder Vichez.
"The trial court has broad discretion in determining the relevance of evidence. [Citation.] We review for abuse of discretion a trial court's rulings on the admissibility of evidence. [Citations.]" (People v. Harris (2005) 37 Cal.4th 310, 337.) In this instance, admission of the evidence of brandishing was an abuse of discretion because it was irrelevant.
"[T]he erroneous admission of [irrelevant evidence] warrants reversal of a conviction only if the appellate court concludes that it is reasonably probable the jury would have reached a different result had the [evidence] been excluded. [Citation.]" (People v. Scheid (1997) 16 Cal.4th 1, 21.) This is the state standard for prejudicial error articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson). Although defendants argue we must apply the federal harmless error standard (harmless beyond a reasonable doubt) because admission of the brandishing evidence violated their due process rights, we disagree because the evidence did not render the trial fundamentally unfair or irreparably damage defendants' chances of receiving a fair trial.
The erroneous admission of evidence can violate due process in one of two ways: (1) its admission can violate due process directly "if it makes the trial fundamentally unfair" (People v. Partida (2005) 37 Cal.4th 428, 439, italics omitted; see Holley v. Yarborough (9th Cir. 2009) 568 F.3d 1091, 1101); or (2) its admission can constitute an "incident" that warrants a mistrial, at least if the defendant's " ' " ' "chances of receiving a fair trial have been irreparably damaged." ' " ' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 703; see People v. Ledesma (2006) 39 Cal.4th 641, 683.)
The brandishing evidence did not render the trial fundamentally unfair and was not an incident warranting a mistrial. The trial court instructed the jury not to consider the brandishing evidence for the truth of the matter but only as an explanation of why Sergeant Hyatt was at the location when the Nissan truck arrived. We presume the jury followed that instruction and did not impermissibly use the testimony as evidence of Barnes's character. (People v. Romo (1975) 14 Cal.3d 189, 194-195.) Goodman claims the instruction was useless because you cannot "unring the bell." (People v. Hill (1998) 17 Cal.4th 800, 845.) To the contrary, in the context of this case, the brandishing evidence was brief and undeveloped. The trial court's instruction to the jury to consider the evidence only for why Sergeant Hyatt was at the location was clear and easy to apply. The evidence was not so prejudicial that the jury could not avoid violating its duty to follow the trial court's instructions.
For the same reasons and because the evidence against defendants was overwhelming, it was not reasonably probable the jury would have reached a different result had the brandishing evidence been excluded. (Watson, supra, 46 Cal.2d 818.) Admission of the brandishing evidence was harmless under the state standard. Even if we were required to determine whether the error was harmless beyond a reasonable doubt, we would conclude that the error was not prejudicial for the same reasons. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710] (Chapman).)
IV
Goodman contends the trial court erred by admitting statements made by Barnes in a phone call after his arrest. She claims the evidence was admitted against her and the statements could not be viewed as her adoptive admissions because, assuming she was the person called by Barnes, there was no evidence of her responses. Goodman forfeited this contention by not making a hearsay objection to the evidence, and in any event, the evidence was not admitted as adoptive admissions.
A
Recordings of two phone calls made by Barnes after his arrest in September 2010 were played for the jury. The recordings were of Barnes's side of phone conversations Barnes had while a detective was away from the room where Barnes was being interrogated.
In the first phone call, Barnes referred to Goodman by name and told her he was in jail. Discussing the evidence the police had against him, he said, "Babe, it's a wrap" and added he was never coming home. Barnes told Goodman the police "know you" and know about the truck, and that the police had cameras and "saw us leave within seconds." He told Goodman: "Babe, just ghost. Just disappear. No, just go." Barnes said, "They know I did it. They know -- They know how I did it. They know everything." Later in the call he said "I didn't do it. I didn't fucking do it." Barnes again told Goodman: "Just go. Just disappear." He said he did not want Goodman to go to jail and reiterated that the police knew the truck.
In the second call, Barnes again referred to Goodman by name and told her to "go somewhere by yourself real fast," adding that "they know for a fact I was there or whatever." Barnes went through a scenario in which a person named Jamal had the gun and shot the victim. Apparently, Barnes had told the detective this story because the detective was trying to verify who Jamal was. Barnes told Goodman: "Just tell them what I told you." He said Jamal held a gun to his head and Barnes had to drive or take a bullet. Whispering, Barnes added: "You need to talk to Vante to make sure we got the same story."
Before trial, the prosecution moved to admit those phone conversations, arguing that as to Barnes they are not hearsay because they are party admissions. The prosecutor also noted Barnes's statements were not testimonial and did not create any concerns under Aranda/Bruton. (Bruton v. United States (1968) 391 U.S. 123 (Bruton); People v. Aranda (1965) 63 Cal.2d 518 (Aranda) [it is a violation of confrontation rights when an incriminating extrajudicial statement by a codefendant is admitted without the opportunity to cross-examine the codefendant].) Goodman did not object to the admission of Barnes's statements, but she moved for her case to be severed from Barnes's and cited Aranda/Bruton because Barnes's statements in the phone call implicated her.
The trial court concluded there was no Aranda/Bruton issue as to Goodman because Barnes did not make incriminating statements about Goodman in the phone call. However, because Barnes referred to an unknown male named Jamal whom the jury could speculate was Warr or Lewis, the trial court gave a limiting instruction to the jury not to consider the evidence of Barnes's phone calls "at all regarding Defendants Warr and Lewis." Counsel for Lewis mentioned that Goodman wanted a limiting instruction under Aranda/Bruton as well, but the trial court said it would not give the instruction as to Goodman.
B
A defendant's failure to object to hearsay forfeits a claim on appeal that the evidence was improperly admitted. (People v. Geier (2007) 41 Cal.4th 555, 611.) We cannot reverse a judgment for evidentiary error unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (Evid. Code, § 353, subd. (a).)
Here, Goodman argues on appeal that the trial court improperly admitted Barnes's phone calls as hearsay under the adoptive admission exception. But Goodman did not make a hearsay objection in the trial court, and the trial court did not consider whether the phone calls were adoptive admissions as to Goodman. At most, Goodman objected to Barnes's phone calls on Aranda/Bruton grounds, which are not hearsay grounds. Any hearsay contention on appeal was therefore forfeited. In any event, the phone calls were not admitted as adoptive admissions, so Goodman's claim on appeal that the trial court erred by admitting them as adoptive admissions lacks merit.
In her reply brief, Goodman argues for the first time on appeal that admission of the phone calls was error as to her under Aranda/Bruton. However, "[i]t is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party." (People v. Tully (2012) 54 Cal.4th 952, 1075.)
V
Barnes contends the trial court erred by admitting evidence of text messages he sent the day before the robbery and murder.
A
In a motion in limine, the prosecution moved to admit text messages sent by Barnes the afternoon before the murder. In the text messages, Barnes wrote that he was angry and, in order to feel better, needed to have money or to kill. He also made many other statements, including that he murdered a Mexican. The motion cited Evidence Code sections 1220 [admissions of party opponent] and 1250 [hearsay exception for existing mental state]. Barnes brought his own motion in limine, arguing the text messages about murdering a Mexican, which had been texted hours before the robbery and murder of Vichez, were irrelevant and overly prejudicial under Evidence Code section 352.
At the hearing on the motion to admit the text messages, Barnes argued the text messages did not go to his state of mind because the robbery and murder did not occur until many hours later. In addition, his attorney provided background concerning the text messages. She said: "What we have here, if you read the things in context, it starts out on [June 14] with [Barnes's] wife, []Goodman, finding him in bed with what presumably is Chelsea [Washington], since she's the other text messages in here . . . . And both women get very angry at Mr. Barnes and he takes off."
There were many text messages included in the exchanges, and they show that Barnes was upset, wanting Goodman to give him $30 that she owed him so he could get on a train and be out of her life. He complained about Goodman having sex with other men ("Y U MAD U GETN DICK LVE," "WAT DA FUCK BITCH I WAZ GOIN 2 EAT U OT 2DAY BT FUCK IT GO LET DOG FUCK U BLOOD IM GUD"), asked Goodman for the $30 she owed him ("JUS GVE ME MY 30 BUCKZ 2DAY AND I GET ON DA TRAIN AND OT YO LIFE"), and mentioned violent acts ("IM FINA SET DIZ HOUZE ON FIRE," "IF U AINT WIT ME BITCH U WIL B DEAD WITH GOD ON NEAVEH," "U FINA DIE ON MY LIFE," "ON MY HEARTBEAT IM FINA MURKD ALL THOZE NIGGAZ U FUCKD. WEN I FIND THEM AND I SWEAR ON VEAH IM FINA MURKD U 2. U DNT NEED 2 LIVE U HURT ME"). Barnes also texted about going on a killing spree ("IM ON A KILLN SPREE 2DAY," "WHO EVER I FEEL LIKE MURKN 2DAY") and about robbing someone for money ("IDK RITE NW IM NT N MY RITE MIND I B RED EVERYWHERE. I NEED DOE AND IM FINA ROB WHO OR WATEVA IM FINA KILL SUMBODY I FEEL IT CKUMN"; "IM NT N DA MOOD 2 TALK SITE NW I NFED DOE OR TO KILL 2 MAKE ME FEEL BETTER"). In addition, Barnes made comments about killing a Mexican. ("I JUS SHOT DIZ MEXIKAN," "I JUS MURKD DIZ MEXIKAN BRA," "BLOOD I JUS MURKD A MEXIKAN.")
The last of those text messages was sent around 7:20 p.m. on June 14, 2010. The times recorded in the log of text messages was Central Time, two hours later than the time in California. The robbery and murder of Vichez occurred after 1:30 a.m. on June 15, 2010, more than six hours after the last text message on June 14.
The trial court granted the motion to admit the text messages but ruled that it would give a limiting instruction for the jury to consider the text messages as to Barnes only.
B
Barnes contends the text messages should have been excluded (1) under Evidence Code section 1101 as improper character evidence, (2) because there was no corpus for the murder of a Mexican, and (3) under Evidence Code section 352 because they were unduly prejudicial. We review the trial court's evidentiary rulings for abuse of discretion. (People v. Doolin (2009) 45 Cal.4th 390, 437.)
The Attorney General argues Barnes forfeited his Evidence Code section 1101 challenge because he did not cite that statute in the trial court. Barnes counters the challenge was not forfeited because a relevance objection is sufficient to preserve the Evidence Code section 1101 issue for appeal, citing People v. Williams (1988) 44 Cal.3d 883, 906. We need not resolve this disagreement because the Evidence Code section 1101 challenge lacks merit.
"[E]vidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) However, "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] . . . The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action." (Evid. Code, § 1250, subd. (a).)
The trial court admitted the text messages as evidence of Barnes's state of mind, and it did not abuse its discretion. Even though the robbery and murder of Vichez happened hours after the texts were sent, the texts show that Barnes was in a violent mood, wanted money, and was willing to kill for it. The jury could reasonably infer from the timing, quantity, and quality of the text messages that Barnes was still of the same state of mind when he robbed and murdered Vichez. The texts were not admitted as character evidence in violation of Evidence Code section 1101; they were admitted as state of mind evidence.
Barnes argues that because this was a felony-murder prosecution based on a robbery, "the text messages regarding Barnes's going on a killing spree and murdering a Mexican were not relevant to any element of the charged offenses." We first note that Barnes did not make this argument in the trial court and therefore forfeited it. (Evid. Code, § 353, subd. (a).) In any event, taken as a whole, the text messages showed an intent to obtain money by any means, including by murder, which intent was relevant to Barnes's intent to rob someone, which turned out to be Vichez.
Barnes next claims the prosecution could not introduce evidence of a murder of a Mexican (as stated in Barnes's texts) without introducing evidence of a corpus, that a Mexican was murdered before Barnes sent the text. This issue was forfeited by failing to raise it in the trial court. (Evid. Code, § 353, subd. (a).) In any event, Barnes's statement was not admitted to prove that a Mexican had been murdered before the text messages were sent. No one argued that Barnes had murdered anyone at that point. Instead, it was admitted to show his state of mind.
And finally, the trial court did not abuse its discretion under Evidence Code section 352 by admitting the text messages against Barnes. Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The decision whether to exclude evidence under Evidence Code section 352 is reviewed for abuse of discretion and will not be disturbed unless there is a clear showing the trial court exceeded the bounds of reason, all circumstances considered. (People v. Martinez (1998) 62 Cal.App.4th 1454, 1459.)
Barnes writes: "Barnes's threats to murder Goodman, her boyfriends and others and to burn the house down were the angry outbursts of a jealous man. If the threats had a target it was not Vichez; Barnes's anger was clearly directed at Goodman, Washington and her/their boyfriends. And even then, these threats were more bluster and fanfaronade, and, taken in context, are not credible threats of a future intent to do harm, and certainly not to harm Vichez, a stranger to Barnes. The text messages, however, portray Barnes as a racist, egotistical, violent, obnoxious misogynist. For this reason, the messages were highly prejudicial to Barnes."
While the question about how relevant Barnes's text messages were to his state of mind when he attacked Vichez was an appropriate topic for closing argument to the jury, we agree with the trial court that they were sufficiently probative to merit admission. The text messages, taken as a whole, showed Barnes's state of mind on that day. As for prejudicial effect, Barnes argues only briefly that the text messages cast him in a negative light. Because the text messages were probative and not overly prejudicial in context, Barnes fails to establish that the prejudicial effect of the evidence substantially outweighed its probative value.
VI
Goodman, Warr and Lewis contend there was insufficient evidence to corroborate accomplice statements indicating that they were involved in the crimes against Vichez. We conclude there is evidence independent of the accomplice statements that sufficiently connects Goodman, Warr and Lewis to the crimes.
A defendant cannot be convicted based on the testimony of an accomplice unless the accomplice's testimony is corroborated by other evidence that tends to connect the defendant with the commission of the offense. (§ 1111; see also People v. Perez (2018) 4 Cal.5th 421, 452.) Corroborating evidence need not directly connect the accused with the offense but need only tend to do so. The requisite evidence " 'need not independently establish the identity of the [perpetrator]' [citation], nor corroborate every fact to which the accomplice testifies [citation]." (People v. Romero and Self (2015) 62 Cal.4th 1, 32 (Romero).)
" '[C]orroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.' " (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1176, fn. omitted (Samaniego).) The corroboration "must, without aid from the accomplice's testimony, connect the defendant to the charged offense, but may be circumstantial, slight and entitled to little consideration when standing alone. [Citations.] Corroborating evidence need not be sufficient to establish the defendant's guilt or corroborate the accomplice to every fact to which the accomplice testified. [Citations.] It must raise more than a suspicion or conjecture of guilt, and is sufficient if it connects the defendant with the crime in such a way as to reasonably satisfy the trier of fact as to the truthfulness of the accomplice." (Id. at pp. 1177-1178.)
" 'The entire conduct of the parties, their relationship, acts, and conduct may be taken into consideration by the trier of fact in determining the sufficiency of the corroboration.' " (Romero, supra, 62 Cal.4th at p. 32.) To satisfy the corroboration requirement, the evidence must connect the defendant with the crime rather than just its perpetrators. (People v. Robinson (1964) 61 Cal.2d 373, 400.) Evidence corroborating details of the crime may form part of a picture from which the jury may be satisfied that the accomplice is telling the truth when considered with other evidence tending to connect the defendant to the crime. (People v. Pedroza (2014) 231 Cal.App.4th 635, 657, 659)
We must eliminate from the case the evidence of the accomplice, and then examine the evidence of the remaining witness or witnesses to ascertain if there is evidence tending to connect the defendant with the offense. (People v. Shaw (1941) 17 Cal.2d 778, 804.) Unless we determine " 'that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.' " (People v. Szeto (1981) 29 Cal.3d 20, 27, italics omitted.)
In this case, there were four accomplices who made statements or testified: Barnes, Lewis, Zevante, and Washington. We summarized their statements and testimony above. With the applicable law in mind, we separately examine the corroborating evidence regarding Goodman, Warr and Lewis. We do not recount all of the evidence, but instead recount evidence that sufficiently connects each of them to the crimes.
The corroborating evidence pertaining to Goodman satisfied the corroboration requirement. The corroborating evidence connected Goodman to the Nissan truck with the distinctive stripe, established that the Nissan truck was present at the scene of the crimes, and established the presence of matching bullets in the truck and at Goodman's residence. There is no doubt that Vichez was robbed and murdered. The Nissan truck connected to Goodman was present on the night of the crimes. K.G. saw the truck at the scene of the crimes; Deputy Duncan's onboard camera recorded the truck leaving the vicinity of the crimes; and the same ammunition used to kill Vichez was found in the truck. Just two weeks after the robbery and murder of Vichez, Goodman drove to the place where Barnes was brandishing a weapon, arriving in the driver's seat of the same Nissan truck. Recognizing the truck from the description in a briefing, the sergeant contacted Goodman. The jury could reasonably infer that the truck belonged to Goodman, and based on that inference, the jury could reasonably infer that she was driving her truck the night of the crimes. Ammunition matching the casings found at the crime scene was also found at Goodman's residence. All of this incriminating evidence, even if not sufficient to sustain a conviction by itself, was sufficient to connect Goodman to the crimes and corroborated the accomplice testimony that she was the driver of the Nissan truck when Vichez was robbed and killed. The evidence connecting Goodman to the truck and the ammunition was sufficient to "reasonably satisfy the trier of fact as to the truthfulness of the accomplice. [Citations.]" (Samaniego, supra, 172 Cal.App.4th at p. 1178.)
There was also evidence regarding Warr and Lewis that satisfied the corroboration requirement. The fingerprints of Warr and Lewis were found in the Nissan truck that the attackers used to arrive at, and depart from, the scene of the crimes. Because, as we have explained, corroborating evidence can be circumstantial, slight, entitled to little consideration when standing alone, and need not be sufficient to establish a defendant's guilt or corroborate the accomplice to every fact to which the accomplice testified, the fingerprints constituted sufficient corroborating evidence independent of the accomplice statements with regard to Warr and Lewis.
We note that Lewis testified at trial, connecting himself to the crimes. However, before testifying in his own defense, he made a section 1118.1 motion for acquittal. In the motion he argued the evidence of corroboration was insufficient. We therefore may not consider his testimony in determining whether there was sufficient evidence to corroborate the statements and testimony of accomplices. (See People v. Whalen (2013) 56 Cal.4th 1, 55 [applying corroboration rule on review of denial of section 1118.1 motion].)
VII
Goodman and Warr contend the trial court erred by denying their request for special corroboration instructions. They argue the CALCRIM instructions on accomplice corroboration were insufficient without clarifying language because the instructions given did not inform the jury that (1) the corroborating evidence must connect the defendant to the crime and not merely to someone who committed the crime and (2) the analysis of the corroborating evidence must be undertaken without reference to the accomplice testimony. We disagree that the CALCRIM instructions were deficient because those two principles of law are adequately covered in the CALCRIM instructions.
"Upon proper request, a defendant has a right to an instruction pinpointing the theory of defense . . . if the theory proffered by the defendant is supported by substantial evidence." (People v. Randolph (1993) 20 Cal.App.4th 1836, 1841.) But the trial court may properly refuse an instruction if it is "duplicative or potentially confusing." (People v. Gonzales (2012) 54 Cal.4th 1234, 1276.) "[W]here standard instructions fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused." (People v. Canizalez (2011) 197 Cal.App.4th 832, 857.) "There is no error in a trial court's failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial." (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)
The trial court instructed on section 1111's requirement that accomplice testimony be corroborated, using CALCRIM Nos. 334 and 335. CALCRIM No. 334 applies if there is a dispute concerning whether the witness is an accomplice, and CALCRIM No. 335 applies if there is no dispute concerning whether the witness is an accomplice. Both instructions contain the language relevant to this contention. CALCRIM No. 335, as given here, provides:
"You may not convict any other defendant of the crimes charged in Counts 1 and 2 based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if:
"1. The accomplice's statement or testimony is supported by other evidence that you believe;
"2. That supporting evidence is independent of the accomplice's statement or testimony;
"AND
"3. That supporting evidence tends to connect the defendant to the commission of the crimes.
"Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
"The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice.
"Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence."
During trial, counsel for Warr proposed giving the jury two instructions in addition to CALCRIM Nos. 334 and 335, as follows:
"The evidence need not corroborate the accomplice as to every fact to which he or she testifies, but is sufficient only if it does not require interpretation and direction from the testimony of the accomplice and tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth."
"To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged."
The trial court refused to give the additional instructions. It determined that the principles explained in the additional instructions were adequately covered in CALCRIM Nos. 334 and 335.
Citing authorities such as those noted in the preceding part of our discussion concerning the sufficiency of corroborating evidence, Goodman and Warr argue on appeal that the CALCRIM instructions given at trial do not adequately inform the jury about how to determine whether accomplice testimony is corroborated. Goodman argues: "Two important principles relating to accomplice corroboration fail to appear in CALCRIM 334 and 335, even though the defense requested that the jury be instructed on them. The first is the independent corroborative evidence must connect the defendant to the commission of the crime, and not merely to those who committed it. [Citations.] The second is that analysis of the allegedly independent corroborative evidence is undertaken without reference to the testimony of the accomplices, and not in light of the testimony of the accomplices. [Citations.]" (Original italics.) Warr's argument in this regard is essentially the same. Neither argument has merit.
The instructions did not allow the jury to consider the accomplice statements if it found the corroborating evidence merely connected the defendant to the perpetrators and not to the crime itself. The instructions informed the jury that, before it could consider accomplice testimony, "[t]he supporting evidence must tend to connect the defendant to the commission of the crime." Faithfully applying this instruction, the jury could consider the accomplice statement only if the corroborating evidence tended to connect the defendant to the crime, and not merely to the perpetrator.
The instructions also did not allow the jury to consider other accomplice testimony in determining whether the corroborating evidence connected the defendant to the crime. The instructions allowed consideration of the accomplice statement only if the corroborating evidence was sufficient "independent of the accomplice's statement or testimony."
Because the instructions did not allow consideration of accomplice testimony under the circumstances argued by Goodman and Warr, the trial court did not err by refusing to give the special instructions proffered.
We also reject the claims of Goodman and Warr that other instructions allowed the jury to consider accomplice testimony under circumstances that violate section 1111 and the cases interpreting that statute. CALCRIM No. 226 instructed the jury that it could believe any witness's testimony and should use the same standards in evaluating each witness's testimony. CALCRIM No. 316 instructed the jury that, if a witness had a criminal conviction, "you may consider that fact only in evaluating the credibility of the witness's testimony." And CALCRIM No. 358 instructed the jury that it could consider all statements made by a defendant in reaching a verdict. According to Goodman, "[i]n the context of a case turning purely on accomplice testimony, the instructions were legally misleading. The net result of the instructions given -- and those refused -- was a misdirected jury."
To the contrary, the trial court instructed the jury on how to approach accomplice statements and testimony. A reasonable juror would understand that such specific instructions were not to be disregarded in light of other general instructions given on evaluating evidence. (See People v. Berryman (1993) 6 Cal.4th 1048, 1099 (Berryman) [no instructional error if the jury would not have misconstrued the instructions given], overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
VIII
Barnes contends the trial court erred by instructing the jury with both CALCRIM Nos. 540A and 540B because they had the effect of directing a verdict against him. We disagree.
CALCRIM No. 540A, as given, included the following language:
"The defendant Jermaine Barnes is charged in Count 1 with murder, under a theory of felony murder." The remainder of the instruction gave the elements for determining whether Barnes was guilty of felony murder as the person who actually committed or attempted to commit a robbery and actually killed a person in the process.
Barnes argues CALCRIM No. 540A, as given, was error because it named only Barnes as a possible shooter, thus ruling out Lewis and Warr as shooters. But the trial court did not err in using CALCRIM No. 540A as given, because it correctly identified for the jury the prosecution's theory of the case, that Barnes was the shooter. The instruction did not direct a verdict against Barnes or otherwise prejudice him; rather, it instructed the jury that the only way to find Barnes guilty of felony murder was to find that he was the direct perpetrator. It left to the jury the determination of whether the prosecution proved its theory beyond a reasonable doubt.
As for CALCRIM No. 540B, that instruction, as given, included the following language:
"Defendants [Goodman, Lewis and Warr] are charged in Count I with murder, under a theory of felony murder.
"Defendants [Goodman, Lewis and Warr] may also be guilty of murder, under a theory of felony murder, even if another person did the act that resulted in the death. I will call the other person the perpetrator." (Original italics.)
In its listing of the elements of felony murder, the trial court simply used the term "perpetrator," without specifying Barnes. However, in one of the closing paragraphs of the instruction, the trial court said: "To decide whether defendants [Goodman, Lewis and Warr] and the perpetrator, [Barnes], committed or attempted to commit a robbery, please refer to the separate instructions that I will give you on that crime." Although the trial court should not have referenced Barnes as the perpetrator in that paragraph, the instruction did not direct a verdict against Barnes. The paragraph in which Barnes was identified as the perpetrator instructed the jury on how to decide whether he committed or attempted to commit robbery. In the context of all the instructions, including those requiring the prosecution to prove each defendant guilty beyond a reasonable doubt and laying out the elements of felony murder, no reasonable juror would have believed that the trial court intended to tell the jury, by identifying Barnes as the perpetrator, that it was directing the jury to find that Barnes committed the crimes. (See Berryman, supra, 6 Cal.4th at p. 1099.)
IX
Warr contends the prosecutor committed prejudicial misconduct by stating that the argument of Warr's counsel had changed from the opening statement to the closing argument.
During the rebuttal portion of closing argument, the prosecutor said Warr's counsel had changed his position concerning whether Warr was present at the scene of the crimes. According to the prosecutor, Warr's counsel said in an opening statement that Warr was not there, but then said in closing argument that Warr was there but not involved. Warr's counsel objected to the prosecutor's argument, claiming he did not say during the opening statement that Warr was not there. The trial court noted it did not recall what Warr's counsel said during the opening statement. Addressing the jury, the trial court said: "But again, two things, folks: Number one, you already heard me say, counsel's comments are not evidence. He was just laying out what he thought the evidence would show. So really it's not important. If you deem it important, you can read that transcript again. Counsel's comments are not evidence upon which you can decide any issue in this case. [¶] I'll rule it no harm, no foul."
Warr now claims the prosecutor's comments constituted prejudicial misconduct because they "undermined the credibility of [Warr's] case and shifted the burden of proof . . . ." We conclude Warr forfeited the issue by not objecting to the comments as prosecutorial misconduct. Instead, counsel for Warr simply said, "That's not what I said" and "Misstates the record."
As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (Berryman, supra, 6 Cal. 4th at p. 1072.) Here, counsel simply objected to the comment as misstating the evidence and did not make an assignment of misconduct or request that the jury be admonished. Therefore, no claim of prosecutorial misconduct was preserved for appeal.
In any event, the trial court dealt with the purported misstatement appropriately by instructing the jury that statements of counsel were not evidence. Also, Warr's counsel made it known to the jury that he disagreed with the prosecutor's recollection. There was no prejudice.
Furthermore, Warr's counsel dropped the matter after the trial court told the jury that it did not matter whether there were contradictory statements, and counsel did not attempt to establish for the trial court, by using the record of his opening statement, that he did not make contradictory comments. Warr's counsel appropriately treated the matter as resolved.
X
All of the defendants contend the trial court committed prejudicial error during jury deliberations by giving the jury a written answer to a jury question without input from defense counsel.
The record is unclear concerning whether the parties stipulated to allow the trial court to respond to jury questions without assembling the parties and counsel in court to determine the appropriate answer. The clerk's transcript notes that, after the trial court instructed the jury and sent them out to deliberate, all parties entered into the following stipulation: "After counsels are contacted and afforded the opportunity of input, the Court may respond to jury communications in written form without formally reconvening." The reporter's transcript does not reflect this stipulation, even though other matters concerning deliberations were discussed by all parties on the record after the jury had been sent out to deliberate. We need not resolve this apparent contradiction in the record because we conclude any error was harmless.
A
During deliberations on January 3, 2013 at 1:58 p.m., the jury asked the trial court about the word "defendants" used in CALCRIM No. 1600 as given to the jury: "does this mean true [sic] that to prove [elements] 1-4 all defendants lump together or can they be separate?" The trial court prepared a response to the jury: "Please refer to Calcrim [sic] instructions 203 and 3515. You are to individually (or separately) consider the evidence as to each defendant regarding each charge and special allegation. In this regard, please note that you have been provided individual or separate verdict forms regarding each defendant." CALCRIM No. 203 specifically instructed the jury to "separately consider the evidence as it applies to each defendant."
It is not clear from the record what time the trial court sent its first response to the jury, but it appears to have happened either shortly before or shortly after the trial court sent an e-mail to counsel detailing the court's response. The trial court sent the response by e-mail to the prosecutor and each of the defense attorneys at 2:15 p.m. Counsel for Warr and counsel for Lewis sent e-mails back to the trial court agreeing with the proposed response within a few minutes. But the prosecutor objected by e-mail to the proposed response, writing: "I disagree with the court's response. The jury can collectively consider the defendants' (plural) actions with regards to a robbery. For example, one defendant can use 'force and fear' and another can take property."
Upon receiving the e-mail from the prosecutor, the trial court e-mailed counsel again, writing: "The Court agrees with [the prosecutor] and will send a supplemental response to the jury to include the comments [of the prosecutor]." The trial court then prepared and gave a supplemental response to the jury: "You may also collectively consider the defendants' (plural) actions with regards to a robbery in assessing their individual culpability, if any."
Counsel for Lewis objected by e-mail to the supplemental response, writing: "The response does not state the law; there can be a consideration of others' actions; however this response goes overboard by putting the word collectively into the equation. I thought we were going to have some input into the court's responses before they were sent to the jury." The trial court replied by e-mail: "Your objection is duly noted and is over ruled at this time. The Court will afford you the opportunity to place a formal objection on the record if you wish. ¶ The supplemental response has already been given to the jury."
Goodman did not file a written motion for new trial, and the trial court denied her motion for a continuance to do so. However, at sentencing, the trial court gave counsel for Goodman the opportunity to state on the record the purported grounds for new trial. Goodman's counsel responded that the jury instructions were conflicting. He also said he was unable to receive e-mails on the day the trial court answered the jury question because he was on business elsewhere. He argued that the trial court's responses to the jury question allowed the jury to consider group action. Counsel for the other defendants joined in the arguments.
The trial court concluded: "There is kind of an inherent contradiction in this area of law where we're asking the jurors to assess each defendant individually, while at the same time they are given instructions that appear to conflict with that because the instructions tell them that it's proper for them to consider what the accomplices were doing in concluding whether or not an individual defendant was in fact guilty or not guilty." The court continued: "And I recognize this inherent contradiction in the law. But I believe ultimately I have to fall on the fact that the jurors were properly instructed, more than once by me, that they are to consider each defendant individually. Ultimately as an individual determination. They were told that more than once. They were told that by me twice that day in response to their questions. ¶ And so I think ultimately that the Court did not misstate the law, and so I think there's no basis in my mind to grant the motion for new trial on that basis."
B
"When a jury asks a question after retiring for deliberation, '[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.' " (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.) "[T]he defendant's right to counsel under the Sixth Amendment to the federal constitution requires that the trial court notify defendant or defense counsel and afford them an opportunity to object before responding to [a] jury[] request. [Citations.]" (People v. Lozano (1987) 192 Cal.App.3d 618, 623.) " 'Communication between judge and jury during deliberations without affording defendant and counsel an opportunity to be present impinges on a defendant's constitutional right to the assistance of counsel. [Citations.]' [Citations.] Ex parte instructions also implicate the defendant's right to personal presence at all trial proceedings. [Citations.]" (People v. Hawthorne (1992) 4 Cal.4th 43, 69 (Hawthorne).) Defendants also have a statutory right to counsel's presence when the court answers a jury question on any point of law during deliberations. (§ 1138.) The statute " 'requires that any questions posed by the jury regarding the law or the evidence be answered in open court in the presence of the accused and his or her counsel, unless presence is waived.' " (Hawthorne, supra, at p. 69.)
Defendants contend that both the procedure used and the trial court's responses to the question constituted federal constitutional error. We conclude that any error was harmless beyond a reasonable doubt because the trial court's two responses, taken together with all the instructions to the jury, conveyed correct guidance to the jury. (See Chapman, supra, 386 U.S. at p. 24 [prejudice standard for federal constitutional error].)
In its instructions to the jury, the trial court used CALCRIM Nos. 203 and 3515. CALCRIM No. 203 instructed the jury to "separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately. If you cannot reach a verdict on all of the defendants, or on any of the charges against any defendant, you must report your disagreement to the court and you must return your verdict on any defendant or charge on which you have unanimously agreed." CALCRIM No. 3515 instructed the jury: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one."
In response to the jury's question, the trial court appropriately reminded the jurors of CALCRIM Nos. 203 and 3515. After the prosecutor objected, the trial court added: "You may also collectively consider the defendants' (plural) actions with regards to a robbery in assessing their individual culpability, if any."
Defendants argue on appeal that the use of the word "collectively" in the trial court's response misled the jury. They claim that the response allowed the jury to determine defendants' guilt collectively. To the contrary, the instructions required the jury to consider the guilt of each defendant separately and individually. The trial court's response allowed only that the jury could consider defendants' collective actions in determining guilt. This case involved aiding and abetting, so it was appropriate for the jury to consider the actions of the other defendants in determining whether each defendant was guilty.
Defendants also argue that the jury's question was ambiguous and that having counsel present to debate the meaning of the question would have somehow produced a different response from the trial court to the jury's question. While the jury's question was not a model of clarity, we see no interpretation of the question that was not answered by the trial court's direction to determine the guilt of each defendant separately while considering collectively defendants' actions.
Federal constitutional error requires reversal unless it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Chapman, supra, 386 U.S. at p. 24 ; People v. Wilkins (2013) 56 Cal.4th 333, 350.) Here, even if the process used by the trial court to respond to the jury's question did not comport with constitutional requirements, any error was harmless beyond a reasonable doubt because the trial court gave correct guidance to, and did not mislead, the jury. Defendants would not have obtained more favorable results if a different process had been used.
XI
Goodman contends she received ineffective assistance of counsel if any error was invited, waived, or forfeited.
She writes that, because "[i]n response to virtually every argument raised in a criminal appeal, the Attorney General asserts that the claim of error was invited, waived, and/or forfeited," she "accordingly presents this alternative assertion of ineffective assistance of counsel" with respect to the other issues she raised in her brief. She thereafter presents a generic contention of ineffective assistance of counsel without discussing any particular instance of trial counsel's representation or how that particular element of representation was prejudicial to her. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698] [requiring showing of deficient representation and resulting prejudice to demonstrate ineffective assistance of counsel].) Goodman writes: "Counsel did not want the jury exposed to inadmissible hearsay in the form of Mr. Barnes's calls, or to inadmissible evidence regarding the alleged brandishing." This is the only reference to any instance in which trial counsel may have provided deficient representation. It is not an appropriate or sufficient way to raise a claim of ineffective assistance of counsel because there is no specific discussion of what trial counsel did in each circumstance and how it was deficient. Having failed to provide sufficient argument, Goodman has forfeited this claim that trial counsel was deficient. (See People v. Williams (1997) 16 Cal.4th 153, 206 [points perfunctorily raised on appeal deemed forfeited].)
In any event, we have already explained that Goodman's contention on appeal that evidence of Barnes's phone call was improperly admitted as an adoptive admission is without merit because that evidence was not admitted as an adoptive admission. We have also explained that evidence of Barnes's subsequent brandishing of a different firearm was not prejudicial. The ineffective assistance of counsel contention has no merit.
XII
Goodman and Barnes contend the cumulative effect of the trial court's errors, even if the errors were harmless individually, resulted in a miscarriage of justice and violated their due process right to a fair trial. The contention is without merit.
For the most part, we have found no error. In those instances in which we found error but concluded it was harmless, there was no accumulation of prejudice. " 'No reasonable possibility exists that the jury would have reached a different result absent any of the acknowledged or asserted errors under the applicable federal or state standard of review. [Citations.]' [Citation.]" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1253, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
XIII
Goodman and Warr challenge the sufficiency of the evidence to sustain the felony-murder special circumstance. Goodman claims she was not a major participant in the crime, and Warr claims he did not act with reckless indifference to human life. We conclude there was insufficient evidence to sustain the felony-murder special circumstance as to Goodman, but there was sufficient evidence as to Warr.
The felony-murder special circumstance applies to the actual killer and to aiders and abettors who either act with intent to kill (§ 190.2, subd. (c)) or who are major participants and act with reckless indifference to human life. (§ 190.2, subd. (d).) As the California Supreme Court noted in People v. Banks (2015) 61 Cal.4th 788, 798 (Banks), the elements of the felony-murder special circumstance in section 190.2, subdivision (d), come from the United States Supreme Court's decision in Tison v. Arizona (1987) 481 U.S. 137 (Tison). In Tison, the court held that the death penalty cannot be constitutionally imposed on a nonkiller aider and abettor unless that person either intended to kill or was a major participant who acted with reckless indifference to human life. (Id. at p. 158, fn. 12.) This language was codified in section 190.2, subdivisions (c) and (d), by the electorate as part of Proposition 115 and it applies to both the imposition of the death penalty and life without the possibility of parole. (Banks, supra, at pp. 797-798, 800, 804.) As a shorthand, we refer to the elements in section 190.2, subdivision (d), as "the Tison elements" and the combination of the elements as "Tison liability."
Major participation requires that a "defendant's personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder." (Banks, supra, 61 Cal.4th at p. 802.) As for reckless indifference, the court in Banks observed: "Reckless indifference to human life 'requires the defendant be "subjectively aware that his or her participation in the felony involved a grave risk of death." ' " (Banks, supra, 61 Cal.4th at p. 807, italics omitted.) "Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a 'grave risk of death' satisfies the constitutional minimum." (Id. at p. 808.) Recently, the California Supreme Court adopted the Model Penal Code definition of reckless indifference, which requires that the defendant " 'consciously disregard[] a substantial and unjustifiable risk' " of death and that the risk " 'be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.' " (People v. Clark (2016) 63 Cal.4th 522, 617 (Clark).) This definition recognizes that, in addition to the subjective element of reckless indifference, there is also an objective element. (Id. at p. 622.) "[R]ecklessness is not determined merely by reference to a defendant's subjective feeling that he or she is engaging in risky activities. Rather, recklessness is also determined by an objective standard, namely what 'a law-abiding person would observe in the actor's situation.' " (Id. at p. 617.)
The Tison elements "often overlap." Major participation, while not sufficing to establish reckless indifference, can still "often provide significant support for such a finding." (Tison, supra, 481 U.S. at p. 158, fn. 12; accord, Clark, supra, 63 Cal.4th at pp. 614-615 [noting the "interrelationship" between the two Tison elements and that they often overlap]; People v. Medina (2016) 245 Cal.App.4th 778, 788 [noting that "[t]hese two requirements -- having a reckless disregard for human life and being a major participant -- will often overlap"].)
Whether there is substantial evidence supporting a finding that the Tison elements have been established is a question that requires consideration of the totality of the circumstances. (Banks, supra, 61 Cal.4th at p. 802.) In Banks, the California Supreme Court set forth a list of nonexclusive circumstances to consider: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major.' " (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
Acknowledging overlap between the major participant and reckless indifference elements (Clark, supra, 63 Cal.4th at pp. 614-615), the California Supreme Court also considered a number of factors in determining whether the evidence was sufficient to establish reckless indifference: (1) knowledge of weapons, and use and number of weapons; (2) physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) duration of the felony; (4) defendant's knowledge of the cohort's likelihood of killing; and (5) defendant's efforts to minimize the risks of the violence during the felony. (Id. at pp. 618-623.)
In this case, viewing the evidence in the light most favorable to the prosecution (Banks, supra, 61 Cal.4th at p. 804), we conclude substantial evidence does not support a true finding on the felony-murder special circumstance allegation against Goodman because she was not a major participant in the crimes. As to Warr, the facts establish he was a major participant and acted with reckless indifference to human life.
The facts relating to Goodman are similar to the facts in Banks, which the California Supreme Court held were insufficient to sustain the felony-murder special circumstance. In Banks, the defendant (who was sentenced to life without the possibility of parole as a result of a felony-murder special circumstance) was the getaway driver for an armed robbery of a medical marijuana dispensary. He dropped his accomplices off and waited a few blocks away for about 45 minutes. (Banks, supra, 61 Cal.4th at pp. 795-796.) During the commission of the crime, one of the perpetrators shot and killed a security guard. (Id. at p. 795.) The defendant picked up some of the accomplices and drove them away from the scene. (Ibid.) In considering whether the defendant was a "major participant" who acted with "reckless indifference to human life," the court noted that felony-murder participants may be placed on a continuum. (Id. at pp. 800-802, 811.) On one end of the continuum, for example, is the getaway driver who was " 'not on the scene, who neither intended to kill nor was found to have had any culpable mental state,' " and who is not eligible for the death penalty or life without the possibility of parole. (Id. at p. 800.) At the other end of the continuum is the actual killer or an aider and abettor who attempted or intended to kill, and who is eligible for a sentence of life without the possibility of parole. (Ibid.)
In finding that the defendant in Banks was not a major participant in the crime, the court noted that there was no evidence he procured the weapons and no evidence that he and his confederates had previously committed murder, attempted murder, or any other violent crime. When the killing was committed, the defendant was not at the scene, did not see or hear the shooting, and had no immediate role in instigating the shooting. There was no evidence he could have prevented the shooting at that point. (Banks, supra, 61 Cal.4th at p. 805; see also Enmund v. Florida (1982) 458 U.S. 782 [defendant who initiated robbery and drove getaway car could not be subject to death penalty because not a major participant].) The court held that "participation in an armed robbery, without more, does not involve 'engaging in criminal activities known to carry a grave risk of death.' [Citation.]" (Banks, at p. 805.)
Here, Goodman participated in the crime by driving the men to find the victim. The jury could reasonably infer from that evidence that Goodman intended to aid and abet a robbery. Once they found Vichez, however, Goodman did not leave the truck. Instead, she stayed at the wheel. Vichez resisted the robbery and struggled with the men before Barnes shot him. Goodman heard the gunshot, unlike the defendant in Banks, but there is no evidence she could have prevented the shooting once the men left the truck. Her reaction to the attack on Vichez, burying her head in the steering wheel, was evidence that the shooting was not what she intended to have happen. Although Goodman knew Barnes had a gun, knew about Barnes's text from earlier in the day about going on a killing spree, and was closer to the actual robbery and murder than was the getaway driver in Banks, we nevertheless conclude that, on the continuum of culpability for felony-murder participants, Goodman's participation was too similar to the conduct of the getaway driver in Banks to justify imposition of a term of life without possibility of parole. Focusing on Goodman's conduct and not the conduct of the other defendants (see Enmund, supra, 458 U.S. at p. 798), we conclude she cannot be subject to a special circumstance finding of felony-murder because she was not a major participant in the crime. (Banks, supra, 61 Cal.4th at pp. 794, 807.)
As for Warr, although the felony-murder special circumstance was found true as to him, the trial court exercised its discretion under section 190.5, subdivision (b), and sentenced Warr to an indeterminate term of 25 years to life rather than life without the possibility of parole. "The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life." (§ 190.5, subd. (b).) A term of 25 years to life was the same term that would have been imposed for first degree murder without a special circumstance. (§ 190, subd. (a).)
Nevertheless, while Warr concedes he was a major participant in the robbery, he argues he did not act with reckless indifference to human life. The Attorney General counters that Warr acted with reckless indifference to human life because it could be inferred he knew Barnes had a gun, he got Barnes involved by calling him, he was involved in the altercation that ended with Barnes shooting the victim, he restrained the victim while Barnes regained his footing and his ability to shoot the victim, and he did not seek help for the victim but instead fled from the scene. We agree with the Attorney General.
Everyone in the group knew there was going to be a robbery. Even though that knowledge may not be enough to show reckless indifference to human life, there are additional facts contributing to such a finding. The jury could infer that, since Barnes had a gun on his lap in the truck, Warr was aware that Barnes was armed. The attackers initially did not use lethal force, but Vichez fought back. Vichez hit Barnes and made Barnes stumble. At that point, Warr grabbed Vichez in a bear hug. As Warr struggled with Vichez, Barnes regained his footing, gestured to Warr and Lewis to move out of the way, and shot Vichez. As soon as the shots were fired, Warr fled with the others rather than rendering aid to Vichez. From this evidence, the jury reasonably inferred that Warr was " ' "subjectively aware that his or her participation in the felony involved a grave risk of death." ' " (Banks, supra, 61 Cal.4th at p. 807, italics omitted; see also Clark, supra, 63 Cal.4th at pp. 618-621 [factors showing reckless indifference].) The evidence was therefore sufficient to sustain the felony-murder special circumstance as to Warr.
XIV
Warr and Lewis were juveniles at the time of the robbery and murder. Warr now contends imposition of an indeterminate term of 25 years to life under section 190.5 violated the Eighth Amendment's prohibition against cruel and unusual punishment because the statute did not allow the trial court to impose a shorter term after considering the factors set forth in Miller v. Alabama (2012) 567 U.S. 460 (Miller) pertaining to a defendant's age. Lewis joins Warr's contention. We conclude the contention is without merit because Miller's requirement that a trial court consider specified age-related factors applies only to imposition of a life without the possibility of parole sentence or the functional equivalent thereof. (People v. Caballero (2012) 55 Cal.4th 262, 267-268.)
The probation reports of Warr and Lewis each recommended imposition of a life without the possibility of parole sentence. At sentencing, however, the trial court deviated from the recommendation and sentenced Warr and Lewis to terms of 25 years to life.
In Miller, the United States Supreme Court considered whether a mandatory sentence of life without the possibility of parole for a murder defendant who committed the murder when he was a minor violates the Eighth Amendment. The court concluded that imposition of a mandatory life-without-the-possibility-of-parole sentence without considering factors related to the defendant's age is unconstitutional because the Eighth Amendment requires the sentencing court to make an individualized determination that life without the possibility of parole is a suitable sentence for the juvenile offender before imposing a life-without-the-possibility-of-parole sentence. (Miller, supra, 567 U.S. at pp. 474-479.)
Citing Miller, Warr argues the Eighth Amendment requires the same individualized determination when a sentence of 25 years to life is imposed. He also argues that, because 25 years to life is the shortest term available to the sentencing court under section 190.5, the court is prevented from exercising its discretion under Miller to impose a shorter term based on the age-related factors. But Miller does not impose such requirements. The reasoning of Miller is based on the punishment of life imprisonment with no opportunity to obtain release. (Miller, supra, 567 U.S. at pp. 474-479.) The same is not true for a term of 25 years to life. The Miller reasoning concerning the Eighth Amendment's prohibition of cruel and unusual punishment does not apply to a juvenile convicted of first degree murder and sentenced to a term of 25 years to life. (See People v. Contreras (2018) 4 Cal.5th 349, 359 [citing Miller].)
XV
In supplemental briefing, Warr contends section 3051, which affords him a meaningful opportunity for release during his 25th year of incarceration, and the California Supreme Court's decision in People v. Franklin (2016) 63 Cal.4th 261 (Franklin) upholding the constitutionality of section 3051, do not comport with Miller.
In response to the developing case law on juvenile sentencing, the Legislature passed Senate Bill No. 260 (2013-2014 Reg. Sess.), which became effective January 1, 2014. (Stats. (2013) ch. 312, § 4.) Senate Bill No. 260 added, among other provisions, section 3051. (Franklin, supra, 63 Cal.4th at p. 276.) With certain exceptions not applicable here, section 3051 provides an opportunity for a juvenile offender to be released on parole irrespective of the sentence imposed by the trial court; it requires the Board of Parole Hearings to conduct a "youth offender parole hearing" on a set schedule depending on the length of the prisoner's sentence. As relevant here, for a sentence of 25 years to life, the statute provides for a hearing no later than the 25th year of incarceration. (§ 3051, subd. (b)(3).)
On May 26, 2016, the California Supreme Court decided Franklin, which held that section 3051's provision of a youthful offender parole hearing mooted the juvenile defendant's constitutional challenge to his sentence of 50 years to life by providing "a meaningful opportunity for release during his 25th year of incarceration." (Franklin, at pp. 279-280.) However, to ensure that the parole hearing provided the defendant with a meaningful opportunity for release, the court in Franklin remanded the case to the trial court for the limited purpose of determining "whether [the defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Id. at p. 284.)
In light of section 3051 and Franklin, we will uphold Warr's sentence because he has a meaningful opportunity for release during his 25th year of incarceration, but we will remand the case to the trial court for the limited purpose of conducting a hearing at which the parties may "make a record of information relevant to [defendant]'s eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) We will do the same with regard to Lewis.
Warr argues Franklin was wrongly decided. We need not consider that argument because Franklin is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Warr also argues section 3051 is unconstitutional under Miller because, in Warr's words, it "sets a parole date based upon the length of a juvenile's sentence as determined by adult sentencing rules, rather than upon a sentence derived from the application of the Miller youth factors to an individual's circumstances at sentencing." In other words, Warr argues, Miller not only prohibited sentencing a juvenile to a term of life without the possibility of parole without considering factors related to the juvenile's age, it also introduced a requirement into Eighth Amendment jurisprudence that a judge must consider the Miller youth factors whenever a juvenile is sentenced in criminal court, regardless of the length of the sentence imposed. But Miller does not support this argument.
The holding in Miller was well-defined and limited. The United State Supreme Court wrote: "We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.' " (Miller, supra, 567 U.S. at p. 465.) The same court restated the holding from Miller in Montgomery v. Louisiana (2016) ___U.S.___ [193 L.Ed.2d 599, 610]: "[A] juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile's special circumstances in light of the principles and purposes of juvenile sentencing."
Warr attempts to broaden the holding of Miller by taking statements in the opinion out of context. For example, Warr quotes Miller as holding: " '[A] sentencer misses too much if he treats every child as an adult.' " (Quoting Miller, supra, 567 U.S. at p. 477.) But the full sentence from Miller is as follows: "So [cases relied on by Miller] and our individualized sentencing cases alike teach that in imposing a State's harshest penalties, a sentencer misses too much if he treats every child as an adult." (Ibid.) The "harshest penalties" considered in Miller and the cases on which Miller relied were the death penalty and a sentence of life without the possibility of parole. (See Miller, supra, 567 U.S. 460 [sentence of life without the possibility of parole]; Graham v. Florida (2010) 560 U.S. 48 [sentence of life without possibility of parole for nonhomicide offense]; Roper v. Simmons (2005) 543 U.S. 551, 555-556 [161 L.Ed.2d 1, 13] [death penalty for murder].) Miller, on its face, does not apply to Warr's sentence of 25 years to life.
Accordingly, Warr fails to establish that section 3051 does not comport with Miller.
XVI
Lewis contends the abstract of judgment must be amended to reflect the judgment imposed.
As we have explained, the trial court sentenced Warr and Lewis each to a term of 25 years to life. The trial court struck the arming enhancement in the interest of justice, but the abstracts of judgment for Warr and Lewis reflect that an additional term of 25 years to life was imposed as to each of them under section 190.2, subdivision (a)(17)(A). That notation in the Enhancements section of the abstracts is incorrect. Also, the abstracts reflect that Warr and Lewis were sentenced to a term of life with the possibility of parole. That notation in box 5 of the abstracts is also incorrect. Finally, the abstracts of judgment fail to indicate in box 8 that Warr and Lewis were sentenced pursuant to section 190.2, subdivision (a)(17)(A). We will direct the trial court to correct the abstracts of judgment for Warr and Lewis.
XVII
Goodman contends the trial court erred in failing to award presentence custody credit for the time she was actually incarcerated before trial, with no additional credit for good time or work time. The Attorney General agrees, as do we. Section 2900.5, subdivision (a) provides that a defendant is entitled to credit for "all days of custody." (People v. Johnson (2010) 183 Cal.App.4th 253, 288.)
Goodman was incarcerated beginning on November 22, 2010, and was sentenced on March 14, 2014. She is therefore entitled to 1,209 days of presentence custody credit for the days she was incarcerated, as the parties agree, and the judgment must be modified accordingly.
XVIII
As Warr notes in his opening brief, the trial court failed to impose the required parole revocation fine under section 1202.45. This applies to Warr and Lewis, neither of whom were assessed the mandatory parole revocation fine. It also applies to Goodman because we must modify her life-without-the-possibility-of-parole sentence to a sentence of 25 years to life.
Section 1202.45 provides: "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45, subd. (a).) This additional parole revocation restitution fine "shall not be subject to penalty assessments authorized by Section 1464 or Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, or the state surcharge authorized by Section 1465.7, and shall be suspended unless the person's parole . . . is revoked." (§ 1202.45, subd. (c).)
As to each of these three defendants -- Warr, Lewis and Goodman -- the trial court imposed a restitution fine of $10,000 under section 1202.4, subdivision (b). Therefore, a parole revocation fine must be assessed in the same amount ($10,000 each) under section 1202.45, suspended unless the defendant's parole is revoked. We will modify the judgment to impose and suspend the required section 1202.45 fines. (See People v. Smith (2001) 24 Cal.4th 849, 852-853.)
XIX
Barnes contends he is entitled to remand to permit the trial court to consider striking his firearm enhancement under new legislation.
The trial court imposed a term of 25 years to life on Barnes for the firearm enhancement. (§ 12022.53, subd. (d).) While this appeal was pending, the Legislature passed Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2), giving the trial court discretion to strike firearm enhancements, which, at the time of sentencing, were mandatory and not subject to the trial court's discretion. In People v. Woods (2018) 19 Cal.App.5th 1080, 1091, this court held that the Senate Bill No. 620 amendments giving the trial court discretion to strike firearm enhancements is retroactively applicable to all cases not yet final. (See newly enacted provisions giving trial courts discretion to strike firearm enhancements, §§ 12022.5, subd. (c); 12022.53, subd. (h).)
In supplemental briefing, Barnes argues we must remand for the trial court to exercise its discretion concerning whether to strike the firearm enhancement. The Attorney General acknowledges the applicability of the new legislation but asserts that, given the trial court's comments at sentencing, any remand would be futile. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez) [no remand for resentencing on similar issue because the trial court already made its position clear].)
While the trial court made it clear that Barnes was the most culpable and that his long sentence would be, in the trial court's words, "well-deserved," his base term is life without the possibility of parole. The trial court gave no indication how it would exercise discretion as to the additional term of 25 years to life for the enhancement if it had such discretion. There was no reason to express any intention in that regard because, at the time, the additional term was mandatory.
Accordingly, the record does not clearly indicate that remand would be futile. We express no opinion as to how the trial court should exercise its newly granted discretion on remand. We only conclude that, under the circumstances of this case, the trial court should be provided the opportunity to exercise its discretion in the first instance.
DISPOSITION
As to Barnes, the matter is remanded to the trial court to consider exercising its discretion under section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
As to Warr and Lewis, the convictions and sentences are conditionally reversed and their matters are transferred to the juvenile court for transfer hearings. If, after considering each matter of Warr and Lewis individually, the juvenile court determines it would have transferred the matter to the criminal court, then the matter will be transferred to the criminal court and the conviction and sentence (as modified by this decision) will be reinstated. (Welf. & Inst. Code, § 707.1, subd. (a).) Alternatively, if the juvenile court determines it would not have transferred the matter to the criminal court, it will treat the convictions as to that defendant as juvenile adjudications, enter appropriate findings consistent with Welfare and Institution Code section 702 (Welf. & Inst. Code, §§ 602 [defining ward], 702 [wardship determination]), and impose an appropriate disposition after a dispositional hearing. (Welf. & Inst. Code, § 706.)
As to Warr and Lewis (and subject to the previous paragraph), the judgment is modified to include a parole revocation fine of $10,000, suspended unless parole is revoked. As modified, the judgment is affirmed. However, we remand the matter to the trial court for the limited purpose of conducting a hearing at which the parties may make a record of information relevant to the eventual youth offender parole hearings for Warr and Lewis. The trial court is further directed to amend and correct the abstracts of judgment for Warr and Lewis by omitting the notation in the Enhancements section of the abstracts that Warr and Lewis were sentenced to terms of 25 years to life for an enhancement, by omitting the notation in box 5 that Warr and Lewis were sentenced to terms of life with the possibility of parole, by noting in box 8 that Warr and Lewis were sentenced pursuant to section 190.2, subdivision (a)(17)(A), and by adding the $10,000 parole revocation fine imposed pursuant to section 1202.45.
As to Goodman, the felony-murder special circumstance is reversed and her sentence is modified to an indeterminate term of 25 years to life for first degree murder, plus a one-year determinate term for the principal-armed-with-a-firearm enhancement. The judgment is also modified by adding a $10,000 parole revocation fine under section 1202.45, suspended unless parole is revoked. The judgment is further modified to give Goodman credit for 1,209 days of presentence custody. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting the judgment as modified.
/S/_________
MAURO, J. I concur: /S/_________
HULL, Acting P. J. MURRAY, J., dissenting.
Fernando Vichez might be alive today if Goodman had not facilitated and participated in tracking him down in her truck so he could be robbed at gunpoint by her confederates, and ultimately shot and killed by Barnes, who, Goodman knew, wanted to kill somebody. I concur in the majority opinion except for the majority's conclusion that the evidence is insufficient to support the jury's special circumstance finding on Goodman. From that part of the majority opinion, I respectfully dissent.
I. Standard of Review
I begin with our standard of review. The majority concludes there was not substantial evidence of the major participation element of Tison liability here, but does not fully set forth the standard of review for substantial evidence. In my view, the failure to recognize and adhere to the standard of review for substantial evidence is one of the errors that leads the majority to an erroneous conclusion.
Tison v. Arizona (1987) 481 U.S. 137 (Tison); see also Penal Code section 190.2, subdivision (d). I agree that, as a shorthand, it is useful to refer to the elements in Penal Code section 190.2, subdivision (d), as " 'the Tison elements' " and the combination of the elements as " 'Tison liability.' " (Maj. opn., ante, at p. 41.)
"The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.' [Citations.] . . . We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (People v. Clark (2016) 63 Cal.4th 522, 610 (Clark), italics added.) Under the substantial evidence test, " ' " '[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (People v. Burney (2009) 47 Cal.4th 203, 253 (Burney).) Rather, reversal is required only if " ' "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's [special circumstances finding].' " (People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri); People v. Cravens (2012) 53 Cal.4th 500, 508 (Cravens); People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
II. Tison Liability
A. The Enmund-Tison Continuum
The felony-murder special circumstance applies to aiders and abettors who: (1) are major participants, and (2) act with reckless indifference to human life. (Pen. Code, § 190.2, subd. (d).) Major participation is the actus reus requirement for Tison liability for felony-murder special circumstances and reckless indifference is the mens rea requirement. (People v. Banks (2015) 61 Cal.4th 788, 798 (Banks).)
As a shorthand, I will refer to reckless indifference to human life as reckless indifference.
Further undesignated statutory references are to the Penal Code.
In evaluating evidence of Tison liability, courts look to a continuum represented on opposite ends by the conduct of the defendants in two cases. As our high court has noted, the defendants' conduct in Enmund and Tison "help define the constitutional limits for punishing accomplices to felony murder. [Citation.] The defendants' conduct in those cases represent points on a continuum, a spectrum of culpability for felony-murder participants. [Citation.] At one end of this Enmund-Tison continuum is ' "the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state." [Citation.]' [Citation.] At the other end are the 'actual killers and those who attempted or intended to kill. [Citation.]' [Citation.] 'Somewhere between them, at conduct less egregious than the Tisons' but more culpable than . . . Enmund's, lies the constitutional minimum' showing required for the imposition of death or life without the possibility of parole." (In re Loza (2017) 10 Cal.App.5th 38, 46 (Loza), italics added, quoting Banks, supra, 61 Cal.4th at pp. 800, 802.)
Enmund v. Florida (1982) 458 U.S. 782 (Enmund).
Enmund was the getaway driver in a robbery-murder. (Enmund, supra, 458 U.S. at pp. 784-787 & fn. 2.) There was evidence Enmund had planned the robbery (id. at p. 803 & fn. 5 (dis. opn. of O'Connor, J.)), but there was no evidence he was present when the killing occurred (id. at p. 786). The Tisons participated in an armed prison breakout and subsequent kidnapping and murder of a family whose vehicle the group commandeered. (Tison, supra, 481 U.S. at pp. 139-141.) The person who the Tisons helped escape was their father, who was incarcerated for the murder of a prison guard during an prior prison escape. (Id. at p. 139.)
Whether there is substantial evidence supporting establishment of the Tison elements is a question that requires consideration of the totality of the circumstances. (Banks, supra, 61 Cal.4th at p. 802; Loza, supra, 10 Cal.App.5th at p. 55.) And those circumstances must be viewed by application of the substantial evidence standard. This means that, before placing a defendant on the Enmund-Tison continuum, a reviewing court must first determine what evidence and inferences exist that support the judgment, and then, based on that evidence, place the defendant on the continuum. In my view, the majority has arbitrarily placed Goodman on the continuum, ignoring the evidence and inferences we must adopt under the substantial evidence standard of review.
B. Major Participation
To be a major participant, "a defendant's personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder such as Earl Enmund." (Banks, supra, 61 Cal.4th at p. 802, italics added.) The reference to Enmund in describing who might be an ordinary aider and abettor in an ordinary felony murder provides guidance to what is considered "ordinary" in this context. The Banks court went on to describe Enmund as "the quintessential 'minor actor.' " (Id. at p. 807.) However, the court in Banks was careful to say that the conduct of the getaway driver in Enmund does not necessarily represent "a constitutional maximum, i.e., the most culpable one can be and yet still be constitutionally ineligible for death, such that any variation would move one into the death-eligible zone." (Banks, at p. 811.) Nor did the Banks court view the conduct of the Tison brothers as a constitutional minimum level of culpability for the death penalty. (Ibid.)
In determining whether a defendant is a major participant, the Banks court identified "factors that distinguish the Tisons from Enmund." (Banks, supra, 61 Cal.4th at p. 803.) The non-exclusive list of factors includes: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Ibid., fn. omitted.) Our high court in Banks was careful to note that "[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient." (Ibid.) In Banks, the defendant was a getaway driver like Enmund. (Id. at pp. 794, 802-803.)
C. Reckless Indifference to Human Life
Our high court has adopted the Model Penal Code definition of reckless indifference in the context of Tison liability. A defendant acts with reckless indifference when he or she " 'consciously disregards a substantial and unjustifiable risk' " of death, and " '[t]he risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.' " (Clark, supra, 63 Cal.4th at p. 617.) Thus, there is both a subjective component and an objective component to reckless indifference under this definition. (Ibid.) As our high court has made clear, "although the presence of some degree of defendant's subjective awareness of taking a risk is required, it is the jury's objective determination that ultimately determines recklessness." (Id. at p. 622.)
Clark involved a commercial robbery-murder and our high court identified a non-exclusive list of case-specific factors for use in such cases in determining whether an aider and abettor acted with reckless indifference, including: knowledge of weapons, and use and number of weapons; physical presence at the crime and opportunities to restrain the crime and/or aid the victim; duration of the felony; the defendant's knowledge of a cohort's likelihood of killing; and the defendant's efforts to minimize the risks of the violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-623.) As with the factors identified in Banks for determining major participation, the Clark court noted that no one of these factors it listed for determining reckless indifference " 'is necessary, nor is any one of them necessarily sufficient.' " (Clark, at p. 618.) Although the instant case is not a commercial robbery, some of the Clark factors for determining reckless indifference are pertinent to our analysis.
D. Overlap of the Tison Elements
The Tison elements "often overlap" and major participation, while not sufficing to establish reckless indifference, can still "often provide significant support for such a finding." (Tison, supra, 481 U.S. at p. 158, fn. 12; accord, Clark, supra, 63 Cal.4th at pp. 614-615 [noting the "interrelationship" between the two Tison elements and that they often overlap]; Loza, supra, 10 Cal.App.5th at p. 48.) "[F]actors demonstrating [the defendant]'s role as a major participant are highly relevant to the analysis of whether he [or she] acted with reckless indifference." (Loza, at p. 52, citing Tison, at p. 153.)
III. Analysis
Goodman contends that the evidence of both Tison elements is insufficient to support the jury's special circumstance finding. The majority agrees that there is insufficient evidence of major participation without reaching the mens rea requirement. I disagree with Goodman and the majority. Applying the substantial evidence test, I would conclude there is substantial evidence to support the jury's special circumstance finding.
The majority writes that Goodman claims she was not a major participant in the crime, but does not mention that she also argued that she did not act with reckless disregard (maj. opn., ante, at p. 41), presumably because it concludes the evidence of major participation was insufficient. Since I conclude the evidence was sufficient, I will address both Tison elements.
A. Goodman's Major Participation
1. Goodman's Contention, the Majority's Conclusion, and the Proper Application of Substantial Evidence Review
Goodman argues that, "at worst," she was nothing more than a getaway driver. The majority concludes that Goodman was not a major participant because "on the continuum of culpability for felony-murder participants, Goodman's participation was too similar to the conduct of the getaway driver in Banks to justify imposition of a term of life without possibility of parole." (Maj. opn., ante, at p. 45, italics added.) I disagree with this conclusion.
First, the test we must employ is not one requiring us to determine whether the evidence justifies imposition of a sentence of life without the possibility of parole. Our role is to determine whether the special circumstance finding is supported by substantial evidence, applying the substantial evidence test and not an arbitrary test about what punishment we feel is warranted. Second, where a defendant may be on the continuum depends on the facts supported under the substantial evidence test. Therefore, placement on the continuum can be done only after looking at the evidence in the light most favorable to the prosecution and presuming every fact the jury could have reasonably inferred from the evidence in favor of the judgment. Third, as I will discuss, based on the totality of the circumstances, Goodman is not similar to the getaway drivers in Banks or Enmund. She is not a "minor" participant as those individuals were and is nowhere near them on the continuum. Substantial evidence supports the jury's finding that she was a major participant.
2. Background
Goodman was more than just a getaway driver. She did not simply bring her confederates to a fixed location near where the robbery was to take place; wait, at a distance out of sight of the robbery for her confederates to commit the robbery; and drive them away thereafter. Moreover, unlike the getaway drivers in Banks and Enmund, Goodman knew the killer here wanted to go on "killing spree."
As Washington, Lewis and Warr were following the victim on foot, Goodman, Barnes, and Zevante arrived in Goodman's truck and picked them up. Just five minutes earlier, Warr had called Barnes to tell them about a man walking around with money. As Goodman drove, Barnes asked, " 'Where's he at?' " According to Washington, Lewis or Warr gave directions to Goodman as to where to drive. According to Zevante, Washington and Lewis began to point ahead. While they were driving, either Lewis or Warr pointed out the victim, saying something to the effect of, " 'That's him' " or " 'There he is right there.' " The truck approached from behind the victim. Goodman drove the truck so slowly that the eyewitness, K.G., who was walking behind the victim, thought the occupants of the truck were going to rob her. The truck was "creeping," going less than 10 miles per hour on Howe Avenue.
Zevante testified he had earphones on and could not hear what the others were saying.
Goodman turned onto a residential side street, quickly made a U-turn, parked the truck, and turned the truck's lights off. According to Washington, Goodman made the turn onto the side street and the U-turn at Barnes's direction. Washington testified the truck was parked about two houses from the stop sign facing the intersection the victim was about to cross. Goodman remained behind the wheel while Barnes, Lewis, and Warr got out of the truck and ducked behind some garbage cans, waiting for the victim. According to Zevante, Barnes, who had had the gun in his lap while they were riding in the truck, now had it in his hand.
Zevante gave various estimates, including a distance that approximated the distance from the witness stand to the back of the courtroom and approximately the distance of three to four houses.
Barnes, Lewis, and Warr surrounded the victim. According to Zevante, Barnes had his gun out and up at that time. Barnes demanded the victim's property. The three men physically assaulted the victim in the middle of the intersection. Washington said Barnes hit the victim from the front, and Lewis and Warr hit the victim from behind. At one point, Warr held the victim by the neck while Lewis punched him. The victim fought back. According to Washington, the physical altercation lasted "close to a minute." According to Zevante, it lasted three to four minutes. The assault on the victim could be seen from the cab of the truck where Washington and Goodman were sitting.
According to Washington, the victim was beat down to the ground by Barnes, Lewis, and Warr. After the victim went to the ground, Lewis and Warr ran to the truck. Barnes stayed, shot the victim multiple times and then ran back to the truck. However, according to E.G., the shooter ran with the other two men in the direction of the side street, but then came back, shot the victim and "pocket checked him." According to Lewis, who testified in his own behalf, he went back to the victim to check his pockets at Barnes's direction. The victim died from multiple gunshot wounds, six of which were shots in the back at an angle that suggested he was lying on the ground on his stomach when the shooter fired from above.
Washington testified that Goodman started crying when the robbery began, before the shooting. As the victim approached the intersection, Zevante, who had gotten out and was standing by the side of the truck, noticed that Goodman had put her head down. According to Washington, both she and Goodman were shocked because Barnes pulled out a gun. Washington testified that Goodman appeared shocked after the shooting because she put her hand over her head and looked down.
After the three had returned to the truck, Barnes asked Lewis if he got the cash they had seen earlier. When Lewis replied that he had not, Barnes got angry and told him to go back and get the money. Lewis went back and patted down the victim.
When Goodman drove them away from the scene, she drove slowly up to the intersection where the victim was. Then she stopped. Thereafter, she made a left hand turn onto Howe Avenue and drove away. According to Washington, no one ordered Goodman to drive away. Dashcam video from a passing patrol vehicle responding to the scene showed Goodman's truck traveling away from the shooting location. The driver was not driving fast or in a way as to call attention to the truck.
Goodman drove the group to her house. Everybody went inside. According to Zevante, Washington, Lewis, Warr, and Barnes argued about money at the house. Barnes was mad because they did not get any money. Later that morning, Goodman took Washington home.
A later search of Goodman's truck after it was seized revealed six live rounds of nine-millimeter FC Luger ammunition, the same kind of ammunition that was used to kill the victim. An FC nine-millimeter cartridge was also found in Goodman's garage.
3. Banks and Enmund Distinguished
What emerges from the facts described ante is a participant who was far more culpable and far more involved in the robbery and killing than the getaway drivers in Banks and Enmund. Goodman certainly was not "the quintessential 'minor actor' " the Banks court described. (Banks, supra, 61 Cal.4th at p. 807.)
Matthews, the getaway driver in Banks, dropped his accomplices off and waited three blocks away, out of sight of the robbery, for 45 minutes. (Banks, supra, 61 Cal.4th at pp. 795-796.) During this time, his confederates were out of his sight. The killer shot the victim at the scene of the robbery in the course of escaping. (Id. at pp. 794-795.) Moments later Matthews received a call from the shooter and drove toward the location of the robbery where he picked up some of his confederates and drove them away from the scene. (Id. at p. 805.) As the Banks court noted, "The evidence in the record places Matthews at the Enmund pole of the Tison-Enmund spectrum. Indeed, . . . his conduct is virtually indistinguishable from Earl Enmund's." (Banks, at p. 805.)
Enmund was parked on a road 200 yards from the farmhouse where his confederates robbed and killed the victims. (Enmund, supra, 458 U.S. at pp. 784, 788.) The high court in Tison characterized Enmund's conduct as "merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery." (Tison, supra, 481 U.S. at p. 157.)
Goodman's participation was far more involved. The vehicle the group used to locate the victim was Goodman's. The victim was not at a fixed location. They had to search for the victim and within five minutes of the call to Barnes about the man with money, Goodman willingly drove the group on the hunt for him. Goodman's driving was crucial to finding the victim, ambushing him, attempting to rob him, and ultimately killing him.
Goodman drove slowly as they approached the victim. She made a turn onto a side street, then quickly executed a U-turn and parked. This put the robbers in a location from which they could launch a surprise attack on the unsuspecting victim, and the jury could reasonably infer that Goodman knew this. While Goodman sat behind the wheel in her truck, Barnes, Lewis, and Warr ducked behind some garbage cans and lay in wait before they accosted the victim in the intersection.
After the shooting, Goodman stayed put so Lewis, at Barnes's direction, could go back to the victim and get his money. Goodman then drove the group away slowly, so as to not call attention to her truck. She brought the group to her house and allowed them all to come inside where there was an argument about the money.
The majority concludes that, "Goodman's participation was too similar to the conduct of the getaway driver in Banks," and from this concludes she was on the Enmund side of the continuum. (Maj. opn., ante, at p. 45.) I disagree. As the above evidence demonstrates, Goodman's involvement was clearly "substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder," and, by comparison, much greater than that of the getaway drivers in Banks and Enmund. (Banks, supra, 61 Cal.4th at p. 802.) Indeed, the jury could have fairly concluded from the evidence that the victim would not have been killed that night were it not for Goodman.
4. Application of the Banks Major Participant Factors
Our high court admonished reviewing courts in Banks that no one of the factors it listed is necessary, nor is any one of them necessarily sufficient, to establish major participation. (Banks, supra, 61 Cal.4th at p. 803.) Every case must be evaluated based on the totality of the circumstances. (Id. at p. 802; Loza, supra, 10 Cal.App.5th at p. 55.) Substantial evidence of several Banks factors and other circumstances relating to Goodman's contribution reflected in the evidence supports the conclusion that she was a major participant.
a. Planning and Execution of the Criminal Enterprise
There is no evidence that Goodman planned the robbery here. However, she showed up with Barnes within five minutes of Barnes receiving a call about a potential victim with money. The evidence shows that she then executed critical portions of the criminal enterprise I have outlined above and thereby facilitated the murder.
Goodman argues that she was merely following directions. The record does indicate that Warr and/or Lewis told her the direction to drive to locate the victim they had been following, and then Barnes directed her to turn onto the side street and make a U-turn after they found him. Goodman does not point to any evidence indicating that she was directed to drive slowly behind and past the victim, to park after making the U-turn, or to turn off her lights after she parked. Nobody told Goodman to drive away or to drive slowly when the group left the scene to avoid attracting attention. The evidence thus indicates that some of Goodman's driving conduct was done of her own volition, without direction. In any event, that she was told where to drive to find the victim and that Barnes told her to turn and make a U-turn after they located him does not lessen her participation. She allowed her truck to be used to track down the victim and she facilitated the hunt by doing the driving. And after the shooting, she drove the group back to her home.
b. The Weapon and Ammunition
There is no evidence Goodman supplied the weapon Barnes used. However, the evidence is clear that she facilitated the storage of the weapon at her home and the storage of ammunition for the weapon in her truck and at her home.
c. Presence
The majority writes that Goodman was "closer to the actual robbery and murder than was the getaway driver in Banks." (Maj. opn., ante, at p. 45, italics added.) Goodman was not just closer, she was present. This is a critical factor here. As the Banks court noted, at the Enmund end of the continuum is the getaway driver who was not present at the scene. (Banks, supra, 61 Cal.4th at p. 800.) Our high court wrote the following about the getaway driver in Banks: "During the robbery and murder, Matthews was absent from the scene, sitting in a car and waiting. There was no evidence he saw or heard the shooting, that he could have seen or heard the shooting, or that he had any immediate role in instigating it or could have prevented it." (Id. at p. 805, italics added.) Matthews, like Enmund and unlike the Tisons, did not see the shooting happen, did not have reason to know it was going to happen, and could not do anything to stop the shooting or render assistance.
Presence is critical because it presents the opportunity to prevent the murder or assist the victim after the shooting. Failure to do both reflects a culpable level of participation that moves an accomplice further towards the major participation side of the continuum. This was recognized by the court in Loza. That court reasoned that the habeas petitioner's "physical presence at the scene, involvement in the actual robbery, and inaction either in attempting to prevent the shootings or in assisting the victims" was particularly significant. (Loza, supra, 10 Cal.App.5th at p. 50, italics added.) Quoting our high court, the Loza court noted: " 'In cases where lethal force is not part of the agreed-upon plan, absence from the scene may significantly diminish culpability for death. [Citation.] Those not present have no opportunity to dissuade the actual killer, nor to aid the victims, and thus no opportunity to prevent the loss of life. Nor, conversely, are they in a position to take steps that directly and immediately lead to death . . . ." (Ibid., italics added, quoting Banks, supra, 61 Cal.4th at p. 803, fn. 5.) From this, the Loza court reasoned, "[a]s a corollary, there may be significantly greater culpability for accomplices who are present." (Loza, at p. 50.)
In Loza, the petitioner suggested he and his companions do a "beer run" at a Mobile gas station store, i.e., grab beer from the store and run out without paying for it. (Loza, supra, 10 Cal.App.5th at pp. 43-44, 49.) Defendant's coperpetrator, Sanford, suggested they might as well rob the Mobil station instead. (Ibid.) The petitioner agreed to the robbery and volunteered to hold the door open for Sanford to escape. (Ibid.) When the Mobile station clerks told Sanford that the money was in a drop safe, Sanford gave them five seconds to hand over the money. One of the clerks said, " ' "Shoot me," ' " at which time Sanford did just that, shooting and killing both clerks. (Id. at p. 44.)
Among the factors the Loza court relied upon in concluding there was sufficient evidence of major participation was the petitioner's physical presence at the scene and his failure to prevent the shooting or assist the victims. (Loza, supra, 10 Cal.App.5th at pp. 50-51.) The court noted that the petitioner watched Sanford walk up to the register while the petitioner held the door open. The petitioner continued to hold the door open when Sanford demanded money, warned that he would shoot, gave one of the clerks five seconds to turn over the money, and then shot both clerks. (Id. at p. 51.) The court reasoned that, by holding the door open, the petitioner provided safe passage out of the store immediately after the shooting. (Ibid.) Among the other critical factors upon which the court relied was the petitioner's conduct in standing by watching without intervening as the shooter counted down, failing to assist the two victims, and instead fleeing the scene with the shooter while screaming to the getaway driver " 'just go.' " (Ibid.)
Another factor the Loza court found significant was the petitioner's handling of the gun. When Sanford earlier got in the Ford Explorer occupied by the group, he put the gun in the back of the vehicle. (Loza, supra, 10 Cal.App.5th at p. 42.) Before going into the store, the petitioner handed Sanford the gun. (Id. at pp. 43, 50.)
Here, while there is no evidence indicating Goodman was in on the planning, looking at the evidence in the light most favorable to the prosecution, the evidence showed she was a willing participant. Moreover, the jury could have inferred that Goodman could have prevented the robbery by simply driving the group out of the neighborhood after the victim was spotted, instead of driving up behind him slowly, turning into a side street, flipping a U-turn, and parking so the men could ambush him. Just as the petitioner in Loza could have urged Sanford not to shoot the clerks, Goodman could have encouraged Barnes not to shoot the victim here. (See Loza, supra, 10 Cal.App.5th at p. 51 [noting that the petitioner "did not intercede in any way" during the countdown].) In other words, unlike Enmund and Matthews, defendant here had an "opportunity to dissuade" the killer. (Banks, supra, 61 Cal.4th at p. 803, fn. 5.) That opportunity existed from the time when Goodman was driving the assailants in pursuit of the victim, through the moment the assailants left the vehicle, and finally to the point in time just prior to when Barnes shot the victim. As noted, she could have driven elsewhere. While the assailants hid behind the garbage cans or when they approached the victim she could have alerted the victim and the neighborhood by honking her horn or flashing her lights. She could have attempted to prevent further harm to the victim by calling attention to the scene again by honking her horn or flashing her lights when the melee began or when the victim resisted or when the victim went to the ground. According to Washington, the physical altercation lasted "about a minute." Zevante estimated that it lasted approximately three to four minutes. Whatever the duration, it can be reasonably inferred from this testimony that there was time to make some commotion in an effort to deter Barnes from shooting the victim. After the shooting, instead of attempting to help the victim or attempting to summon help, Goodman stayed in the truck and waited for Lewis to go back to the victim, search his pockets for money, and then return to the truck. When Lewis got back into the truck, Goodman drove to the intersection where the victim was lying on the ground, stopped, and instead of rendering aid or summoning someone to do so, made a turn and drove slowly away.
At oral argument, counsel for Goodman argued that the getaway driver in Banks, could have driven away as well and from this implied that our high court would not see that as a significant factor. But as I have pointed out, Goodman is different from Matthews. Matthews did not stalk the victim. Goodman did. Matthews had no idea someone would be killed. As I discuss post, Goodman did.
While Goodman was not standing right next to the men when they beat down the victim or when Barnes shot him, every maneuver she made in hunting the victim down and parking the truck facilitated the murder. She made no attempt to prevent the ambush or the subsequent lethal shooting and she failed to assist the victim at any point. Instead, she left the victim in the street. All of this makes Goodman far more culpable than the getaway drivers in Banks and Enmund, neither of whom were present during the actual robbery and shooting.
The court in Banks directed that courts should consider, inter alia, the following multipart question in determining whether there is sufficient evidence to establish major participation: "[1] Was the defendant present at the scene of the killing, [2] in a position to facilitate or prevent the actual murder, and [3] did his or her own actions or inaction play a particular role in the death?" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted, italics added.) Substantial evidence allows me to check off the "yes" box in answer to all of these questions. The majority's simplistic observation that Goodman was "closer" to the robbery-murder than the getaway drivers in Banks and Enmund does not look at the evidence in the light most favorable to the prosecution and ignores the inferences that could be drawn about her participation, failure to prevent the killing, and failure to assist the wounded victim.
d. Awareness of the Dangers
Goodman concedes that the jury could have reasonably inferred that she was aware Barnes had a gun and that the group was looking to rob the victim.
As the majority notes, hours before the robbery-murder, Barnes wrote text messages to Goodman indicting that he was angry and that, in order to feel better, he needed money and wanted to kill someone. He specifically texted that he wanted to go on a "killing spree," and indicated he would murder whomever he felt like "2DAY." (Maj. opn., ante, at p. 22.) He also texted that he had just murdered a Mexican. (Ibid.) As the majority notes, the last of these violent text messages was sent at 5:20 p.m. Pacific Standard Time, and the robbery/murder occurred later that night, sometime after 1:30 a.m. (Ibid.) Acknowledging this evidence, the majority nevertheless concludes Goodman's conduct was "too similar" to the getaway driver in Banks to support a special circumstance finding. I disagree. The getaway driver in Banks had no inkling about the violent tendencies of his confederates. Goodman knew Barnes wanted to go on a killing spree and that he expressed the desire to kill anyone he wanted to "2DAY." Moreover, Barnes had told her he had shot a Mexican earlier that day.
The majority writes that the text message records showed times based on Central Standard Time, which is two hours ahead of our time, and that the time reflected on the records was 7:20 p.m. (Maj. opn., ante, at p. 22.)
As part of the major participant analysis, the Banks court directed courts to consider: "What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants?" (Banks, supra, 61 Cal.4th at p. 803, italics added.) Essentially, this factor requires us to consider whether there is evidence that gave the aider and abettor advance notice of the accomplice killer's propensity for violence. At oral argument, the Attorney General suggested that the text messages here are evidence that sets this robbery apart from an ordinary armed robbery and sets Goodman apart from an ordinary aider and abettor. I agree that this is a significant factor. In an ordinary robbery, ordinary aiders and abettors do not have reason to believe the victim will be killed by a confederate. Goodman did.
In Loza, the court found it significant that when Sanford joined up with the petitioner's group prior to the robbery, he told the group he had just shot someone in the head. (Loza, supra, 10 Cal.App.5th at p. 50.) One of the occupants of the car testified that everyone thought Sanford was only kidding. (Ibid.) Nevertheless, the Loza court reasoned that the jury did not have to credit that witness's belief as to how everyone in the vehicle, including the petitioner, interpreted Sanford's statement. (Ibid.) "Moreover, even if Sanford had not, in fact, just shot someone, and even if petitioner did not entirely believe Sanford had just done so, Sanford's statement at the very least revealed that petitioner with eyes wide open embarked upon an armed robbery with the type of cohort who callously bragged about having shot another human being moments earlier—indeed, apparently in a kidding manner." (Ibid., fn. omitted, italics added.)
Here, the text messages gave notice to Goodman about Barnes's state of mind. Like the petitioner in Loza, the evidence indicates that she went into this "with eyes wide open." When she was driving Barnes around looking for the victim while he had a gun on his lap, she knew that, just hours before, he had threatened to go on killing spree and kill someone "2DAY." This is significant evidence establishing Goodman as a major participant as opposed to an ordinary aider and abettor or "the quintessential 'minor actor,' " getaway driver. (Banks, supra, 61 Cal.4th at p. 807.)
At oral argument, Goodman's counsel was asked about what role the text messages Barnes sent play in our major participation analysis. Counsel reiterated the argument in his briefing, that later text messages sent by Barnes were calmer exchanges about innocuous topics. For example, the last texts were about buying eggs for breakfast.
Goodman's view of the evidence is certainly one way to look at it; Barnes was upset earlier in the day, but calmed down later. But again, we must look at the evidence in the light most favorable to the prosecution, and it was reasonable for the jury to conclude that when a potential robbery-murder victim with money became known to Barnes, he would begin his killing spree and that Goodman, like the petitioner in Loza, was aware of his state of mind.
e. Post-shooting Conduct
The Banks court directs that courts should consider, "What did the defendant do after lethal force was used?" (Banks, supra, 61 Cal.4th at p. 803.) As I have noted, Goodman did nothing to help the victim after the shooting.
The majority finds what it characterizes as Goodman's "reaction to the attack" on the victim to be significant, reasoning that "burying her head in the steering wheel" was evidence that the shooting was not what Goodman intended to happen. (Maj. opn., ante, at p. 45.) I suppose that is one way to look at that evidence. But, as the substantial evidence test requires, we must look at the evidence in the best light for the prosecution and adopt those inferences that support the jury's findings. " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (Burney, supra, 47 Cal.4th at p. 253, italics added.) Regarding this evidence, it is reasonable to infer that Goodman simply did not want to watch her boyfriend Barnes while he shot an innocent person in the back multiple times or that she was exhibiting disappointment in herself for being a knowing participant in such an enterprise. Indeed, as I have noted, this is not the first time she averted her eyes from the attack. Zevante said she looked down as Barnes, Lewis, and Warr approached the victim. And Zevante told the police that, based on her reaction and the expression on her face at that point, he thought she put her head on the steering wheel because he thought "she knew she messed up" in getting him involved.
Although not central to my conclusion about the sufficiency of the evidence, I think it is important to note that the Banks court did not tell courts to consider only what the defendant did immediately after the lethal force was used. In my view, this is because post-robbery/murder conduct can relate back to and shed light on a defendant's level of participation at the time lethal force was used. For example, providing a hideaway for the group to flee after the crime could reflect on a defendant's level of earlier involvement and culpability. Here, Goodman not only drove her confederates away from the scene, but she drove them all to her home where the group argued about the money they did not obtain.
In addition, I note that Goodman did nothing to disassociate herself from the robbery/murder or her fellow confederates. In fact, she appeared on a video with Barnes and Lewis purchasing ammunition at a gun store two weeks after the victim was killed. Later, Goodman threatened K.G. the last time K.G. was incarcerated. In my view, the act of threatening an eyewitness not only evinces a consciousness of guilt, but it also reflects on a defendant's level of participation. Minor actors who are mere getaway drivers would seem far more likely to end their involvement after driving the perpetrators away from the scene rather than hosting the perpetrators at home and subsequently threatening an eyewitness. (See Banks, supra, 61 Cal.4th at p. 807.) --------
f. Conclusion—Major Participation
Our high court has said: " 'The ultimate question pertaining to being a major participant is 'whether the defendant's participation "in criminal activities known to carry a grave risk of death" [citation] was sufficiently significant to be considered "major." ' " (Clark, supra, 63 Cal.4th at p. 611.) Again, I check the "yes" box in answer to this question. Based on the totality of the above circumstances, I would conclude that Goodman was a major participant.
B. Goodman's Reckless Indifference
As noted, there is " 'significant[] overlap' " in the requirements for major participant and reckless indifference. (Clark, supra, 63 Cal.4th at pp. 614-615.) Major participation, while not sufficient to establish reckless indifference, can still "often provide significant support for such a finding." (Tison, supra, 481 U.S. at p. 158, fn. 12; accord, Clark, at pp. 614-615.) And " 'the greater the defendant's participation in the felony murder, the more likely that he [or she] acted with reckless indifference to human life.' " (Clark, at p. 615, quoting Tison, at p. 153.)
Because there is overlap in the Tison elements, there is also overlap concerning the factors to be considered in determining whether there is substantial evidence of those elements.
1. Subjective Component of Reckless Indifference
a. Knowledge of Firearms and Cohort's Likelihood of Killing
Although the mere fact an aider and abettor knows a gun will be used in a robbery is insufficient to establish reckless indifference, knowledge of firearms is still a factor to consider. (Clark, supra, 63 Cal.4th at p. 618.) Again, Goodman concedes there is sufficient evidence to show that she knew Barnes had a gun during the hunt for the victim. Indeed, it was on his lap and ready to be used.
Knowledge of a cohort's likelihood of killing is a factor to be considered in determining reckless indifference. (Clark, supra, 63 Cal.4th at p. 621.) As discussed, Barnes told Goodman he wanted to kill someone "2DAY." Additionally, he texted that he wanted to rob someone to get money. It is reasonable to infer that Goodman knew Barnes would embark upon his killing spree when the opportunity presented itself. The victim here was that opportunity.
As I have noted, Washington testified that Goodman started crying when the robbery began to take place, before the shooting. It is reasonable to infer that Goodman knew what was going to happen. As for Washington's belief that Goodman was "shocked" after the shooting, her opinion was based on Goodman having put her head on the steering wheel. But as I have noted, inferences supporting the judgment can be drawn from Goodman having done so.
b. Goodman's Presence at the Scene and Failure to Minimize Risks
Physical presence at the crime, opportunities to restrain the crime and/or aid the victim, and the failure to minimize risk are factors we must consider in determining whether there is sufficient evidence of reckless indifference. (Clark, supra, 63 Cal.4th at pp. 619, 621-622.) As our high court has observed, "[p]roximity to the murder and the events leading up to it may be particularly significant where . . . the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force. In such cases, 'the defendant's presence allows him [or her] to observe his [or her] cohorts so that it is fair to conclude that he [or she] shared in their actions and mental state . . . . [Moreover,] the defendant's presence gives him [or her] an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.' " (Id. at p. 619, italics added.) It is also relevant that the aider and abettor who was present failed to render aid to a wounded victim. (Ibid.)
Again, substantial evidence exists allowing me to check off these boxes. Goodman knew Barnes was violent, she did nothing to dissuade him, she did nothing to intervene to prevent the killing, she did nothing to aid the victim and she did nothing to minimize the risk. In short, she acted with reckless indifference to human life.
2. Objective Component of Reckless Indifference
The Clark court noted: "If the only relevant aspect of recklessness were the defendant's subjective awareness of his or her disregard of risk to human life, one might argue that a defendant's good faith belief that he or she was not undertaking actions involving a substantial and unjustifiable risk to human life would be sufficient to negate a conclusion of reckless indifference to human life under Tison. . . . But under the Model Penal Code definition, although the presence of some degree of defendant's subjective awareness of taking a risk is required, it is the jury's objective determination that ultimately determines recklessness. . . . [W]e conclude that a defendant's good faith but unreasonable belief that he or she was not posing a risk to human life in pursuing the felony does not suffice to foreclose a determination of reckless indifference to human life under Tison." (Clark, supra, 63 Cal.4th at p. 622, italics added.)
Substantial evidence supports an objective determination that Goodman acted with reckless disregard. Even if Goodman was shocked by Barnes's actions or immediately regretted assisting him, objectively she still acted with reckless disregard.
3. Conclusion—Reckless Disregard
Looking at the evidence in a light most favorable for the prosecution and adopting all inferences in favor of the judgment, I conclude that there was substantial evidence of reckless disregard for human life.
IV. Conclusion
Substantial evidence supports my conclusion that Goodman's conduct and the surrounding circumstances proved that she was a major participant who acted with reckless disregard for human life. " 'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the [special circumstance finding].' " (Penunuri, supra, 5 Cal.5th at p. 142; Cravens, supra, 53 Cal.4th at p. 508; Zamudio, supra, 43 Cal.4th at p. 357.) That is not the case here. I would affirm the jury's special circumstance finding as to Goodman.
/S/_________
MURRAY, J.