Opinion
C078100
07-13-2017
THE PEOPLE, Plaintiff and Respondent, v. KAWAUN MARQUES LLOYD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF126716A)
A jury convicted defendant Kawaun Marques Lloyd of first degree murder and related offenses. At trial, two of his accomplices testified for the prosecution. On appeal, he contends the accomplices' testimony was insufficiently supported by corroborating evidence. He also contends the abstract of judgment must be corrected to delete a fine that was never imposed. We agree with the second contention. We will order a corrected abstract and otherwise affirm.
BACKGROUND
Defendant shot the victim during a marijuana-sale-turned-robbery. Before and after the robbery, defendant was with three people: Chris, Marcus, and Eric. All three would testify against him.
For ease of reference, these witnesses shall be referred to by their first names. No disrespect is intended.
The jury was instructed that Chris and Marcus were accomplices, and defendant could not be convicted on their testimony, absent corroborating evidence. As to Eric, the jury was instructed to determine whether he was an accomplice before considering his testimony.
A. Chris's testimony
The week before jury selection, Chris pled guilty to voluntary manslaughter in a plea agreement. He testified pursuant to that agreement.
Chris testified that before the robbery he was at Eric's apartment, along with Marcus and defendant. Chris was a close friend of Marcus and had known defendant about as long as he knew Marcus; but Chris did not know Eric well, and did not know his name. Chris knew Marcus as a marijuana dealer, who would rip off buyers and sellers.
At Eric's apartment, the three smoked marijuana. Chris heard a conversation about a marijuana sale. Defendant and Marcus then asked Chris to go with defendant, on what Chris thought would be a marijuana sale. Shortly after, Chris and defendant left for Weber Square park.
Several days after the robbery, Chris told detectives he knew Marcus and defendant were setting up a robbery. --------
At the park, Chris saw the victim standing near a picnic table. Chris sat down at the table and faced away from defendant and the victim. He then heard defendant tell the victim it was a robbery. When Chris looked up, he saw defendant pointing a gun at the victim.
When he saw the gun, Chris stood up and started to walk. As he walked, he heard two or three gunshots, followed by a short pause, then two or three more shots. Chris testified defendant shot and killed the victim—though he did not see the victim get hit.
After the shooting, Chris and defendant left, heading toward Marcus's house. There, they hopped the fence and went into Marcus's basement. Inside, Chris asked defendant what had happened. Defendant just shook his head. Marcus arrived, cursed defendant and asked, "what happened?" Defendant did not respond. Just before Chris left the room, he saw Marcus and defendant divvying up a couple of twenties.
When asked about Eric's involvement, Chris testified that Eric had nothing to do with the robbery.
B. Marcus's testimony
Marcus testified under a grant of immunity. He explained he was a marijuana middleman: he would introduce buyers and sellers. Marcus had met the victim at a bus stop. They exchanged information after the victim asked for a marijuana "hookup."
Marcus was good friends with Eric; they spent a lot of time together. Marcus was also friends with Chris and knew defendant for four years.
Before the robbery, while Marcus, Chris, and defendant were at Eric's apartment, Marcus got a call from the victim asking to buy marijuana. Marcus handed the phone to defendant to talk. Later, Marcus heard defendant ask Chris if he wanted to rob the victim; Chris replied, "Yes, I need the money." Marcus asked defendant why he would rob the victim; defendant responded that he needed money. Chris and defendant then left together.
Marcus and Eric left about a minute later, to go to Marcus's house. Along the way, they heard gunshots.
When they met with Chris and defendant in Marcus's basement, Marcus heard Chris say: "He shot him. He shot him." Marcus asked defendant, "Why did you do that?" Defendant said, "He was acting up." Marcus understood him to mean the victim. At some point, Marcus saw defendant hand money to Chris, who pocketed it.
Later, when Marcus looked up the news online and saw the victim had died, he told defendant, who said, "The Lord's gonna strike me down."
C. Eric's testimony
Eric was 20 years old at the time and had a juvenile robbery adjudication. He, along with his son and girlfriend, lived in an apartment near downtown. He and Marcus were friends; they hung out, played video games, and smoked pot.
The day of the robbery, Eric called Marcus to come over. Marcus arrived with Chris and defendant. The four hung out and watched television. Eric saw Marcus answer a phone and then hand the phone to defendant—but he did not hear the conversation. He then saw defendant make three or four more calls.
Around the last call, Eric heard defendant ask Chris if he wanted to rob someone. Chris responded that he needed the money. Eric "stood there surprised."
Shortly after, defendant and Chris left. A few minutes after that, Marcus and Eric left to go to Marcus's house to play some games. On their way, they heard gunshots. They ran to Marcus's house.
In the basement, Eric heard Chris say, "He shot him" and defendant say, "He was acting up." Eric then said, "I gotta go," and he left.
Later, Eric was with Marcus, when Marcus was arrested. When Eric spoke to detectives, he initially said nothing about defendant's admission that the victim "was acting up." Later, when police asked why he had not mentioned defendant's admission, he said it was because defendant had relayed a threat to him.
D. The jury instructions
The jury was instructed that Chris and Marcus were accomplices; defendant could not be convicted on their statements and testimony alone, unless corroborating evidence connects defendant to the crime. For Eric, the jury was instructed that before considering his testimony, it must decide if Eric was an accomplice. If it concluded Eric was not an accomplice, supporting evidence would not be required.
The court instructed that someone is an accomplice if he or she is subject to prosecution for the identical crimes charged against defendant. Someone is subject to prosecution if (1) he or she personally committed the crime; or (2) he or she knew of the criminal purpose of the person who committed the crime; and (3) he or she intentionally facilitated, promoted, encouraged, or instigated the crime, or participated in a criminal conspiracy to commit the crime.
The jury was further instructed that defendant has the burden to prove it is more likely than not that Eric was an accomplice. An accomplice need not be present when the crime is committed. But a person is not an accomplice just because he or she is present at the scene of a crime—even if he or she knows a crime will be committed and does nothing to stop it.
The jury convicted defendant of all counts, including first degree murder, and found each enhancement true. The trial court imposed a sentence that included a term of life without the possibility of parole.
DISCUSSION
I
The testimony of accomplices Marcus and Chris was sufficiently corroborated.
A conviction cannot rest on an accomplice's testimony absent corroborating evidence that tends to connect the defendant to the offense. (Pen. Code, § 1111.) Here, on appeal, defendant contends insufficient evidence corroborated the testimony of the two accomplices, Chris and Marcus. He argues the evidence supports the inference that Eric was an accomplice: the robbery was planned in Eric's apartment, in Eric's presence. And immediately after the robbery, Eric was with defendant, Marcus, and Chris, in Marcus's basement.
We conclude the jury could reasonably determine Eric was not an accomplice, and his testimony sufficiently corroborated the accomplice testimony.
A. The jury could reasonably conclude Eric was not an accomplice.
" 'Whether someone is an accomplice is ordinarily a question of fact for the jury; only if there is no reasonable dispute as to the facts or the inferences to be drawn from the facts may the court instruct that a witness is an accomplice." " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 430.) Where jurors could reasonably find a witness was not accomplice, "we need not, and do not, decide whether there was sufficient corroborating evidence as to each defendant." (Id. at p. 432; see also People v. Santo (1954) 43 Cal.2d 319, 326-327 ["Since it could be inferred that [the witness] was not an accomplice, the question whether he was, was properly left to the jury, and as a reviewing court, we are bound to presume in favor of affirming the judgment that the jury found that he was not an accomplice"].)
Here, a jury could reasonably conclude Eric was not an accomplice. No direct evidence connected Eric to the crime. Indeed, Chris testified Eric played no role in the robbery. The fact that the robbery was planned in Eric's apartment, while Eric was present, does not compel the conclusion that Eric was an accomplice.
B. Eric's testimony sufficiently corroborated the accomplice testimony.
Corroborating evidence must do more than show the commission of the crime or its circumstances. (Pen. Code, § 1111.) It must tend to implicate the defendant and relate to some act or fact that is an element of the crime. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) But it need not establish every element of the crime. (Ibid.) And it may be circumstantial or slight. (Ibid.) Corroborating evidence " ' " 'is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet 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.' " ' " (People v. Williams (1997) 16 Cal.4th 635, 680.)
" 'The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.' " (People v. Abilez (2007) 41 Cal.4th 472, 505.)
Here, Eric's testimony tends to connect defendant to the offense. Eric testified he heard defendant ask Chris if he wanted to rob a person. After the robbery, Eric heard Chris say "He shot him" and defendant respond "He was acting up." This testimony independently connects defendant to the crime and corroborates Chris and Marcus's testimony, which in turn squarely establish that defendant planned the robbery and shot the victim.
II
The abstract of judgment must be corrected.
Finally, defendant contends the abstract of judgment must be corrected to delete an erroneously included fine. We agree.
Defendant received a term of life without the possibility of parole. The trial court, accordingly, acted properly in not imposing a parole revocation fine. Yet the abstract of judgment includes such a fine. We must therefore order a corrected abstract. (See People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [the abstract must accurately summarize the oral pronouncement, including all fines and fees].)
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment removing the $300 parole revocation fine. The trial court is further directed to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
RAYE, P. J. We concur: BLEASE, J. RENNER, J.