Opinion
A149481
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. JONAS RANDALL SEMORE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1502233B)
A jury convicted defendant Semore of second degree murder. He asserts the evidence was insufficient to convict him as an aider and abettor, and that the trial court erred prejudicially in instructing the jury on aiding and abetting liability as a basis for conviction. We affirm.
STATEMENT OF THE CASE
In 2015, the Humboldt County District Attorney charged defendant Semore by information with the murder of David Ganfield. The information alleged Semore personally used a dangerous and deadly weapon, specifically, a baseball bat, during the commission of the offense. (Pen. Code, §§ 187, 12022, subd. (b)(1).) A jury acquitted defendant of first degree murder and found him guilty of murder in the second degree. The jury found not true the deadly weapon use allegation. The court sentenced defendant to 15 years to life in prison. Defendant timely appeals.
A second person, Nickolas Johnson, was jointly charged by felony complaint with Ganfield's murder. Johnson's case was severed from Semore's before the preliminary hearing.
Unless otherwise indicated, all statutory references are to the Penal Code.
STATEMENT OF FACTS
Cause of Death
On April 28, 2015 at 11:48 p.m., David Ganfield was dropped off at Mad River Community Hospital emergency room in McKinleyville. Ganfield appeared to be unconscious and had sustained life-threatening injuries to his head. He was pronounced dead at 3:22 a.m. on April 30, 2015. Cause of death was blunt impact head injuries.
Events Leading Up to Ganfield's Death
On April 28, 2015, Daniel Reynolds owned a four-bedroom house in Blue Lake, California, in which he lived with several other people, including July Siepp, Sarah Jones, and her boyfriend Randall Cook. "A lot of different people" often visited and sometimes spent the night at the house, which had a reputation as a "flop house" where "a lot of methamphetamine" was used.
Around sunset on the evening of April 28, Jones and Cook drove to McKinleyville, about a 15-minute drive from Blue Lake, to pick up defendant from a house there and bring him to Reynolds' house, where defendant planned to buy a truck from Siepp. Before defendant got in the car, he gave Jones a gun to hold for him; she put it in the back of her pants. By the time defendant and Siepp finished their transaction, it was about 9:30 p.m. Methamphetamine was consumed inside the house, then defendant indicated to Jones he was leaving. He did not ask for the gun, which she put in her room.
Jones and defendant went outside, where people were milling around out front. Semore asked her to go down the hill to the roundabout to look for Nick Johnson to tell him not to come to the house. Semore also told Jones there had been a disagreement or fight between Johnson and Ganfield, and Johnson had gotten the better of Ganfield. Jones got distracted and went inside the house instead of going to look for Johnson. Semore told her to go to her room and stay in there to "watch [his] shit," meaning the gun.
Meanwhile, on April 28, Samantha "Sam" Martinez drove Reynolds home from the Blue Lake Casino at around 10:00 or 11:00 p.m. When they arrived, there was a group of people outside the house, including Nick Johnson, Jeremy Cringle, and defendant Semore. The group, minus Cringle, went inside the house. Reynolds told Martinez he had better get out of the car to see what was going on and Martinez drove off. Another car with two people in it left around the same time she did.
Martinez later told Humboldt County Sheriff's investigator Gregory Musson that a car had pulled up to the house shortly after she did. As she was leaving, two people jumped into the car and left about the same time she did. The car was right behind her and she thought they were going to follow her. At trial, Martinez did not remember as many details, such as whether the car left before or after she did. The recording of the conversation between Martinez and Musson was played for the jury.
About 10 seconds later, Reynolds heard "[s]omebody [whaling] on somebody, whack, whack, whack, about four good whacks," followed by "screaming and swearing." Reynolds and Cringle also heard moaning coming from inside the house. According to Cringle, "It sounded like somebody was hurting pretty bad." Then, the group rushed out of the house all at once "like a bunch of cattle all grouped up together trying to get out at one time." Johnson exited the house holding a baseball bat. The group dispersed and quickly drove away in two cars that were parked in front of the house.
Jones was in her bedroom when she heard a "commotion" in the front room. Jones, Cook, and Siepp went into Jones's bedroom and shut the door behind them. From inside her bedroom, Jones "heard a noise that sounded like somebody was hitting something." She described it to the police as "the most awful fricking, awful noises coming from the [living room]." She also heard a moaning noise through the shut door. From "the way it sounded," Jones "knew something bad had happened." She never saw Ganfield. But Dan Reynolds and Jeremy Cringle knocked on the door and told her "David Ganfield just got beat up in the living room" and that "we needed to take him to the hospital, or he was going to die."
Reynolds and Cringle had gone into the house through Reynolds' bedroom, which was accessible from outside. Cringle had been present earlier that night when Ganfield had arrived at the house ill or drunk and fell asleep on the couch, and he warned Reynolds that Ganfield might still be asleep on the couch. Reynolds and Cringle walked into the living room and found Ganfield slumped over on the couch with a big knot on his head, loudly moaning and groaning. Reynolds told Ganfield he had to go to the hospital. Reynolds asked Cook and Jones to take Ganfield to the hospital because they had a car. Jones did not have a license, so Cook agreed to take him.
Ganfield staggered down the back stairs. He fell to his knees on the way to the car. Someone—Reynolds, Cringle, or Cook—helped Ganfield get into the car. Cook drove Ganfield to the hospital, dropped him off, and left.
Cook was gone from the house for about 25 minutes. After midnight, Jones drove to the casino to pick up defendant, who needed a ride back to the house. She then drove defendant back to the gas station at the casino. She recalled that when they got to the gas station, she mentioned that Cook had taken Ganfield to the hospital. Defendant responded that "[s]omebody had to" or "[s]omebody should have." Defendant said he did not hit Ganfield. Jones did not drive the car after that. While at the gas station she saw police up the road and gave defendant the car keys. She rode home with someone else, because she did not want to get pulled over.
Jones testified she defendant had been a close friend for 15 years and she had a "W-W-J-S-D" tattoo, which stood for "[w]hat would Jonas Semore do."
Sometime after the day of the beating, defendant told Jones he was going to jail about all this, but he had not done it.
Humboldt County Deputy Sheriff Dennis Gagnon was at the hospital on an unrelated service call when Cook arrived. Hospital staff told Gagnon that Ganfield had been brought in from the Blue Lake area and there had been some kind of altercation or fight. Gagnon drove to the Blue Lake area, looking for Cook's car. He found it, unattended, at the casino gas station. When Gagnon asked the gas station clerk if he knew who was filling the car, the clerk pointed to Semore. Cook arrived just as Gagnon was placing Semore in the back seat of the patrol car. Cook explained that he had driven Ganfield to the hospital after being approached by two individuals who paid him money to take Ganfield there. After 20 minutes, Gagnon released Semore and Cook from custody. Cook lied to Deputy Gagnon about how he came to drive Ganfield to the hospital because his girlfriend, Jones, had an outstanding warrant, and if he said something about Ganfield being at the house, where Jones was, she would have been arrested.
Defendant's Admissions
Some of defendant's friends told investigator Gregory Musson about incriminating statements defendant made to them after the beating. Jennifer Crook is defendant's cousin and Eric Harmon is her partner; they have children together. Harmon said that a few days after the beating, defendant told him, "I think we may have killed someone," and he was probably going back to prison. Defendant said, "It was me and Nick [Johnson]." Crook also talked to Musson. She confirmed the conversation between defendant and Harmon had taken place. At trial, both Crook and Harmon denied they spoke to defendant about the beating. However, Crook confirmed that a few days after the beating defendant came to their home and told her and Harmon that he was going to jail for something he did not do. A recording of Harmon's statement to Musson was played for the jury.
Defendant's friend, Rebecca Hamline, told Musson that a few days after the beating defendant told her he "went and beat [Ganfield] in the head with a baseball bat" and had "acted alone." According to Hamline, defendant said "there was only two people in the room when it happened, me and David [Ganfield]." He also said "he just started hitting [Ganfield] with a bat and the next thing you know, somebody's taking [Ganfield] to the hospital." At trial, Hamline testified defendant "[n]ever actually told me that he did it." Instead, defendant told her he was at the house at the time the attack happened and "there was some kind of incident between David [Ganfield] and Nick [Johnson]." When Hamline asked him why he did not stop the beating, defendant said, "Nick would not . . . let the situation go." A recording of Hamline's statement to Musson was played for the jury.
Defense Case
Defense investigator Adam Laird testified it took him 11 minutes, 47 seconds to drive the 6.6 miles from Reynold's house to the Mad River Hospital emergency room. Based on other evidence that on April 28, 2015, a car with two people in it left Reynolds' house and headed toward the casino "simultaneously" with Samantha Martinez, a car pulled up to the casino's gas station around 11:30 p.m., and Ganfield was dropped off at the hospital at 11:48 p.m., defense counsel argued defendant was at the casino when Ganfield was attacked.
A prosecution witness, Holly Davidson, testified she "was within eyeshot" of defendant Semore at the casino from 9:45 p.m. on April 28, 2015, until 2:00 a.m. on April 29, 2015.
DISCUSSION
Aiding and Abetting Instructions
Defendant argues the trial court committed prejudicial error by instructing the jury on the principles of aiding and abetting because no witness testified that defendant said or did anything to encourage or assist the actual perpetrator. Therefore, he argues, "[t]he conviction in this case can only be based on speculation that [defendant] knew what was going to happen, failed to prevent it, and must have encouraged it in some way."
The trial court instructed the jury as follows. "Your duty is to decide whether the defendant on trial here committed the crime charged. [¶] A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. [¶] . . . [¶] To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: One, the perpetrator committed the crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and four, the defendant's words and conduct did, in fact, aid and abet a perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime [does] not, by itself, make him or her an aider and abettor." --------
A trial court has an obligation to instruct sua sponte on " ' "general legal principles raised by the evidence and necessary for the jury's understanding of the case" ' [Citation.] In particular, instructions delineating an aiding and abetting theory of liability must be given when such derivative culpability 'form[s] a part of the prosecution's theory of criminal liability and substantial evidence supports the theory.' " (People v. Delgado (2013) 56 Cal.4th 480, 488.) Here, the prosecution's argument to the jury expressly relied on both aiding and abetting and direct perpetrator theories of liability for Ganfield's murder.
"A party is not entitled to an instruction on a theory for which there is no supporting evidence." (People v. Memro (1995) 11 Cal.4th 786, 868, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) Defendant essentially argues there was no substantial evidence to support the prosecution's aiding and abetting theory or argument. We disagree. Evidence is substantial if "a reasonable jury could find [it] persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) The evidence need only be sufficient to support an inference (People v. Barnett (1998) 17 Cal.4th 1044, 1145), so long as that inference is not speculative (People v. Waidla (2000) 22 Cal.4th 690, 735).
The evidence adduced at trial gave rise to a reasonable, nonspeculative inference that defendant, with knowledge of Johnson's purpose, intended to and did aid, facilitate, promote, or encourage Johnson to beat Ganfield with a baseball bat. "Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense." (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) Jones's testimony established that defendant knew there had been a fight or disagreement between Johnson and Ganfield and that Johnson had gotten the better of Ganfield. Defendant told Jones to find Johnson and tell him to wait before coming to the house. Cringle had seen Ganfield, drunk or ill, arrive at Reynolds' house sometime during the evening of April 28. Cook and Jones had driven defendant to Reynolds' house around sunset the same day. Both defendant and Johnson were among the people milling around in front of Reynolds' house when Reynolds arrived home from the casino around 10:00 or 11:00 p.m. Defendant, Johnson, and others went into the house just after Reynolds arrived. Defendant told Jones to go into her room and watch his gun. Within a few seconds of going inside, sounds of whacking and moaning were heard by Reynolds, Cringle, and Jones. Then the group all rushed out at once, and drove away in two cars. Johnson had a baseball bat.
The evidence summarized above was sufficient to support instructions on aiding and abetting. A reasonable jury could find the evidence adduced at trial persuasively showed that defendant knew a showdown between Johnson and Ganfield was imminent, and that he was in the group that went inside the house with Johnson with the intent to support Johnson, that his participation in the group did support Johnson, and that he and Johnson fled the scene together. Defendant's admission to Eric Harmon, if believed, that he and Johnson may have killed someone, cemented those inferences. Even defendant's statement to Jones—that somebody had to take Ganfield to the hospital—and Hamline's contradictory versions of what defendant told her—variously that he alone beat Ganfield and that Johnson would not let the situation go—underscored that defendant was actively involved in the beating, not merely an uninvolved observer. "[A] sharp line does not always exist between the direct perpetrator and the aider and abettor: 'It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator. . . . The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices' actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role.' " (People v. Thompson (2010) 49 Cal.4th 79, 117-118.) There was no instructional error.
Substantial Evidence
Defendant also argues the evidence is insufficient to support the jury's verdict of second degree murder on either an aiding and abetting or direct perpetrator theory. Defendant reasons the jury could not have convicted him as the direct perpetrator, because it found not true the allegation, under section 12022, subdivision (b)(1), that he personally used a deadly weapon in the commission of the act, leaving only the aiding and abetting theory. "But there was no evidence to support that theory." We disagree.
When the defendant challenges the sufficiency of the evidence, "we evaluate the whole record to ascertain whether there is substantial evidence to support the verdict." (People v. Tabb (2009) 170 Cal.App.4th 1142, 1151.) Applying the substantial evidence rule, a reviewing court asks "whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of appellant's guilt, i.e., evidence that is credible and of solid value, from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, our sole function as a reviewing court in determining the sufficiency of the evidence is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (In re Michael M. (2001) 86 Cal.App.4th 718, 726, fn. omitted; People v. Johnson (1980) 26 Cal.3d 557, 576-578; Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We do not "reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction." (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) " 'This standard applies whether direct or circumstantial evidence is involved. . . . " ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " ' " (People v. Virgil (2011) 51 Cal.4th 1210, 1263.)
Applying this standard to the facts here, we find the evidence is sufficient, under either an aiding and abetting or direct perpetrator theory, to support the jury's verdict of second degree murder. There was no dispute about the corpus delecti, i.e., that Ganfield was beaten about the head with a blunt object and died of his injuries. Thus, defendant's out-of-court statements could establish the identity of the perpetrator. (People v. Kraft (2000) 23 Cal.4th 978, 1057.) As fully discussed above with respect to defendant's instructional error argument, the evidence supportive of the theory that defendant aided and abetted Johnson was substantial. Moreover, if the jury believed Hamline's testimony that defendant admitted acting alone to beat Ganfield, that evidence was also sufficient to support the direct perpetrator theory. There was also a third theory supported by the evidence: that defendant and Johnson were each other's aiders and abettors, yet both may have landed blows on Ganfield. In conjunction with the murder verdict, the jury's negative finding on the deadly weapon allegation showed at most that the jury had a reasonable doubt that defendant wielded the bat, but none at all that he was actively involved in the assault. "It does not show the reverse, that the jury specifically found defendant was an aider and abettor. . . . The jury may merely have believed, and most likely did believe, that defendant was guilty of murder as either a personal [weapon] user or an aider and abettor but it may have been uncertain exactly which role defendant played." (People v. Santamaria (1994) 8 Cal.4th 903, 919; see People v. Thompson, supra, 49 Cal.4th at p. 120; People v. Pettaway (1988) 206 Cal.App.3d 1312, 1325 ["[A] negative finding on a personal-use enhancement does not necessarily mean the accused was not a direct perpetrator of the crime."].) We hold that under either theory, the evidence was sufficient to support the second degree murder conviction.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.