Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Lance A. Ito, Judge. Los Angeles County Super. Ct. No. BA232436
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and James Humes, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Richard T. Breen and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion following rehearing
COOPER, P. J.
Anthony Ray Brumfield appeals after his conviction by jury of first degree murder (Pen. Code, §§ 187(a), 189; undesignated section references are to that code), with a special circumstance finding that the murder was intentional and was committed by shooting from a vehicle at a person outside it with intent to inflict death (§ 190.2, subd. (a)(21). The jury found not true enhancement allegations that appellant had used and discharged a firearm in the commission of the offense (§ 12022.53, subds. (b)-(d)), and that the crime was committed for the benefit of a street gang with intent to promote gang activity (§ 186.22, subd. (b)(1)). Appellant was sentenced to life without possibility of parole, and was ordered to pay victim restitution of $25,696.66 (§ 1202.4, subd. (f)), as well as a $10,000 restitution fine (id., subd. (b)), and a $10,000 parole revocation fine (§ 1202.45).
Appellant raises the following contentions: (1) There was insufficient evidence to sustain the conviction; (2) the court reversibly erred by instructing the jury on aider-abetter principles; (3) the court reversibly erred in failing to instruct the jury on (a) second degree murder or manslaughter as lesser included offenses, (b) malice as an element of first-degree murder by shooting from a vehicle, and (c) intent to kill as a prerequisite to the special circumstance if appellant were found to have aided and abetted the murder; (4) the court erroneously denied appellant’s motion for new trial; and (5) the restitution order and the parole revocation fine must be stricken. Respondent agrees with the last contention, concerning the parole revocation fine.
We conclude that both the parole revocation fine and the restitution order must be reversed, subject to further proceedings concerning restitution. In all other respects, we affirm the judgment.
FACTS
Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that at about 4:00 p.m. on June 2, 2002, the victim, Dontavis Marshall, was driving on Slauson Avenue. With him in the car were Keisha Ward in the front passenger seat, Kentrall Scott seated behind Marshall, and another woman next to Scott. A gold-colored Chevrolet Blazer (the SUV) drove up alongside. Its front passenger window was down, and a man, dressed according to Ward in a black shirt or sweatshirt and baseball cap, and with braces on his teeth, extended his arm and pointed a handgun at the car. Marshall and his passengers ducked, and the man, later identified by Ward as appellant, fired several shots, mortally wounding Marshall.
Scott reported seeing two guns, but later stated he had been mistaken and had seen only one. As will appear, two guns in fact were fired at the car.
Off-duty Los Angeles County Sheriff’s Deputy Marvin Pollard, driving behind the two vehicles, witnessed the shooting. He also observed a few seconds of communication between the vehicles before the shooting began.
As Marshall slumped down, his car struck the SUV, which hit the curb and rolled over onto its roof, on adjacent railroad tracks. Appellant was ejected from the vehicle. Ward and Scott maneuvered the car to a stop, and drove to a fire station for help. Scott then left, because he was on probation and did not wish to encounter police.
Deputy Pollard observed the aftermath. Two men wearing white t-shirts ran away from the SUV. Appellant, who was wearing a dark sweatshirt, appeared to have difficulty moving. Pollard reported the incident and appellant’s problem through 911. Appellant soon left, but he was pursued and apprehended by Los Angeles Police officers. When so stopped, appellant displayed various cuts and abrasions. His sweatshirt bore an inscription indicating the Broadway Gangster Crips. Evidence at trial showed Marshall and Scott to be affiliated with the 6 Deuce East Coast Crips, a gang that was at odds with other Crips gangs, including the Broadway Gangster Crips.
Police spoke to Ward, and took her to view appellant in the field. She identified appellant as the shooter. She later so identified him from a six-pack display, and did so again at trial. Ward was inconsistent, however, about whether the shooter had worn braces. And in testimony for the defense, Scott stated he had had two conversations with Ward in the weeks after the shooting. In one, he said, Ward stated she had identified appellant in the field because he was the only person they had; later, she said the person she had identified wasn’t the shooter, but he would suffer anyway.
The same inconsistency, about whether appellant was wearing braces, appertained among several police officers who had had custody of him.
Inside or near the SUV, police recovered, along with other items, a baseball cap and two handguns, a Smith and Wesson and a Rossi, both reported stolen. A criminalist determined that two bullets that had been found in Marshall’s fatal wounds had been fired by the Rossi. About five bullets had entered Marshall’s car, and a fragment found there had been fired by the Smith and Wesson.
In his defense, appellant called, among other witnesses including Scott, an expert on eyewitness identification, who explained various factors conducive to and detracting from accurate or objective identification. In addition, a gang expert opined that the shooting hadn’t been gang-related, contradicting a prosecution expert on this issue.
The trial court instructed the jury on aiding and abetting as well as direct commission of a crime.
DISCUSSION
1. Sufficiency of Evidence.
Appellant first contends that there is insufficient evidence to support his conviction. Appellant concedes there was substantial evidence of his guilt as the perpetrator of the fatal shooting. However, appellant argues, the record establishes that the jury convicted him as an aider-abetter of the shooter, yet there was no substantial evidence supporting this theory. The argument is untenable.
The jury returned a general verdict of guilty. Appellant claims that this verdict must have been rendered on an aiding-abetting theory, largely because the jury also found untrue the various firearm use allegations under section 12022.53. The Supreme Court, however, rejected a similar proposition, in People v. Santamaria (1994) 8 Cal.4th 903 (Santamaria). There the jury had convicted the defendant of robbery and murder, but had found not true the allegation defendant had personally used a knife. Before retrial on a new information following reversal on procedural grounds, the defendant sought to preclude the prosecution, by collateral estoppel by this finding, from asserting he had used a knife in committing the murder. The Court of Appeal agreed, but the Supreme Court did not.
In the course of its analysis, the high court first noted that “The not true finding may be explained by ‘mistake, compromise, or lenity’ [citation] or ‘confusion or ennui.’ [citation].” (Santamaria, supra, 8 Cal.4th at p. 915.) Moreover, even if more reasoned, the finding may well not have had the significance claimed. The court noted that a murder verdict need not express a unanimous theory, as between perpetrator and aider-abetter. (Id. at pp. 918-919.) Therefore, the no-use finding “shows only that there was a reasonable doubt in the minds of the jurors that the defendant specifically used a knife. It does not show the reverse, that the jury specifically found defendant was an aider and abettor.” (Id. at p. 919, original italics.)
The court also added, “Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. Sometimes, as probably occurred here, the jury cannot decide beyond a reasonable doubt exactly who did what.” (Santamaria, supra, 8 Cal.4th at p. 919.)
Furthermore, section 954, which sustains inconsistent verdicts, applies to convictions of offenses involving firearm use that are accompanied by negative findings on use enhancements. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment § 76, pp. 110-111.) In such cases, a negative finding does not convert the conviction into one by an aider-abettor. (People v. Lopez (1982) 131 Cal.App.3d 565, 569-571.)
Appellant claims his situation is distinguishable because other factors establish he was necessarily found to be an aider-abettor. The first is that while deliberating, the jury inquired of the court whether the two instructions on aiding-abetting permitted a finding of guilt without appellant’s having been the shooter. But this inquiry does not necessarily signify that the 12 jurors, or any of them, ultimately found appellant guilty as an aider-abetter. Second, appellant notes that on motion for new trial, the prosecutor opined and argued that appellant had been convicted as an aider-abetter, given the gun-use finding. But the prosecutor’s reasoning, in contradiction of the principles stated in Santamaria, supra, 8 Cal.4th 903, and People v. Lopez, supra, 131 Cal.App.3d 565, is not probative of the content of the verdict.
We therefore conclude that appellant has failed to establish that he was convicted without evidentiary basis. The evidence of his guilt was sufficient, “such that a reasonable trier of fact could find [appellant] guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
2. Propriety of Aider-Abettor Instructions.
Appellant’s next contention bears some relation to his previous one. Appellant asserts that the evidence did not warrant instructing on an aider-abettor theory, and that in doing so the court committed reversible error. This contention fails at the threshold, for it was proper to give the aider-abettor instructions.
The trial court instructed the jury with CALJIC Nos. 3.00 and 3.01, which respectively define principals to a crime as including aider-abettors, and describe aiding-abetting in accordance with People v. Beeman (1984) 35 Cal.3d 547, 561, as aiding the commission of a crime, with knowledge of the perpetrator’s purpose, and with intent or purpose of committing or facilitating the commission of the crime.
“‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) Assessing whether the trial judge has met this standard necessarily requires consideration of the issues and evidence outstanding when the instructions were given. From this standpoint, it was appropriate for the court here to have given the aider-abettor instructions.
First, there was evidence, from the two guns, their bullets, and Scott’s initial perception, supporting the inference that appellant was not the fatal shooter, but a shooter nonetheless. Ward’s testimony supported this theory as well. And appellant’s intent and purpose were inferrable from the evidence that he had been shooting.
Second, appellant was clothed in the style of a gang, which had a rivalry with the victim’s gang. This provided a motive for assisting in the shooting, even if there was no direct evidence of the gang affiliation of the shooter.
Third, aiding and abetting may be determined from such factors, among others, as presence at the scene of the crime, companionship, conduct before and after the offense, and flight. (E.g., People v. Campbell (1996) 25 Cal.App.4th 402, 409; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.) Here, several of these factors were positively present, and others could be implied. Under the facts before the court, it was entirely sensible and defensible to have instructed on aiding and abetting.
3. Failure to Instruct.
Appellant contends that the trial court erroneously failed to instruct the jury on certain lesser offenses and elements: manslaughter and second degree murder, malice as an element of drive-by first-degree murder, and the necessity for intent to kill by an aider-abetter of the drive-by special circumstance. We find no merit in these contentions.
The court did instruct the jury on murder, express malice, premeditated and deliberated murder, murder by discharging a firearm from a motor vehicle as first degree murder, and the similarly worded special circumstance. These charges corresponded with the facts and circumstances of Marshall’s murder.
Appellant complains, first, that the court should have instructed on the lesser offense of manslaughter, stemming from heat of passion. But there was no evidence supporting this version of the killing, or its components. (See, e.g., People v. Hawkins (1995) 10 Cal.4th 920, 952-953.) Indeed, appellant draws justification for the asserted instruction from the absence of evidence about how appellant and his cohorts spoke or acted before the shooting. But this absence does not support the instruction. Nor did Deputy Pollard’s statements that he observed communication between the vehicles two or three seconds before the shooting, or appellant’s gang expert’s speculation, after opining the shooting wasn’t gang-related, that “It could have been a situation of just road rage . . . .” There was no basis in the evidence for a voluntary manslaughter instruction.
Instructions on second degree murder also were unwarranted. Although appellant argues that the evidence supported finding an intentional murder upon “impulse, ” without premeditation and deliberation, such a murder, committed from a vehicle, would necessarily have been of the first degree, as defined by section 189, subdivision (a). Moreover, the circumstances of this murder, including the firing of numerous shots at the victim, simply did not admit of a finding that appellant lacked intent to kill and acted only with implied malice.
Appellant next asserts that the instruction defining first degree drive-by murder should have specifically included a requirement of express malice. The instruction did contain a requirement of intent to kill, which is the meaning and definition of express malice. (§ 188.) Moreover, the instruction’s opening reference to “Murder” necessarily incorporated previous instructions’ definition of murder as a killing done with malice. Appellant’s argument that a jury could not be expected to comprehend this is unpersuasive. (See People v. Moon (2005) 37 Cal.4th 1, 29.) Finally, appellant’s ultimate contention that a separate instruction and finding of malice were required because there was substantial evidence of heat of passion fails along with that unfounded premise.
Appellant’s final contention regarding instructions is that the court erred by not specifically instructing that if the jury found appellant guilty of the murder as an aider-abetter, it would have to find that he acted with intent to kill in order find the drive-by special circumstance (§ 190.2, subd. (a)(21)) true as to him. This contention is invalid.
The drive-by special circumstance includes an element of intent to kill, by statutory definition. The trial court instructed on this element, stating that the perpetrator of the murder must have discharged the firearm with specific intent to inflict death. Appellant complains that no such reference was made to an aider-abetter, as under section 190.2, subdivision (c), which requires intent to kill by a defendant who is not the actual killer, in order to qualify for death or life without parole. But other instructions directly imposed the intent requirement for an aider-abetter. CALJIC Nos. 3.00 and 3.01 required that guilt by aiding and abetting include knowledge of the perpetrator’s unlawful purpose, plus intent to commit the crime, or to encourage or facilitate its commission. These instructions, together with the one requiring intent to kill as an element of the special circumstance, adequately conveyed that this intent was required for an aider-abetter to be subject to the special circumstance. (People v. Hardy (1992) 2 Cal.4th 86, 192; see People v. Williams (1997) 16 Cal.4th 635, 689, 691.)
The cited cases treated the giving of these instructions as rendering omission of an intent instruction harmless beyond a reasonable doubt. (Cf. People v. Champion (1995) 9 Cal.4th 879, 929.) The same would be true here. Moreover, the Use Note to CALJIC No. 8.80.1 (April 2006 ed.) page 420 states that if, as here, the special circumstance includes the element of intent to kill, it is unnecessary to give an instruction expressly providing an intent to kill requirement with respect to aiders and abetters.
4. Motion for New Trial.
Appellant’s next contention is that the trial court erroneously denied his motion for new trial, on grounds of newly discovered evidence (§ 1181, subd. 8). The court so ruled on the basis that appellant’s central witness was not credible. We first summarize the evidence on which the motion was presented.
The pivotal witness was Pauline Gallardo, who testified that on the day of the shooting she had been a close friend of appellant, and had later become his girlfriend, three-quarters to one year before she testified. Ms. Gallardo stated that at about 4:00 p.m. on June 2, 2002, she and appellant were hanging out in front of a liquor store on 54th Street and Broadway. Appellant flagged down a gold SUV carrying Kenneth McIntyre aand Marquis Shaw (whom Ms. Gallardo recognized, and referred to using monikers.) McIntyre was driving, and Shaw was in the passenger seat. He wore braces on his teeth. Appellant asked them to take him to a swap meet, and got into the rear seat. The vehicle departed.
Ms. Gallardo returned to the store half an hour to an hour later. McIntyre and Shaw, with two others, arrived in a different vehicle, and stopped near a crowd in the parking lot. Ms. Gallardo then overheard Shaw telling the group that they had just shot someone, in the car next to them. She also heard him say that appellant had not known what was going to happen and had nothing to do with it. Nonetheless, he had been apprehended, at 48th Street or 58th Street and Normandie Avenue. According to Ms. Gallardo, McIntyre repeated or confirmed Shaw’s statements about appellant.
In addition to Ms. Gallardo’s account, appellant presented evidence, from a police detective, about Michelle Wright, who had testified at trial that she had rented the SUV and it had been stolen from her. Ms. Wright, who recognized photos of McIntyre and Shaw but would not identify them out of fear, refused to answer whether she had permitted others to drive the SUV on the shooting date. The detective determined that her phone bills reflected calls from Shaw’s home number, and an out-of-state penal institution where he was situated. Ms. Wright would not identify the callers.
Interviewed at Folsom Prison, McIntyre, who wore braces and said he had done so since before June 2002, acknowledged knowing both appellant and Shaw, and stated he had been in several vehicles with Shaw, possibly including one of the same color as was used in this case. In a subsequent interview with a defense investigator, McIntyre stated he had ridden in more than one gold SUV driven by Shaw, he but denied doing so on the shooting date.
The court denied the motion. It found that although Ms. Wright’s credibility had been impeached, elimination of her testimony about how she lost possession of the vehicle would not affect the facts of the crime. As for Ms. Gallardo’s testimony, the court found her not a credible witness. The court found the testimony that Shaw and McIntyre had stated appellant had not known what was going on to be “completely improbable, ” and “incredible.”
The court observed that the statement “probably wouldn’t cross their mind.”
Appellant challenges the trial court’s ruling with respect to the question of whether the newly discovered evidence would ‘‘render a different result probable on a retrial of the cause . . . .” (People v. Martinez (1984) 36 Cal.3d 816, 821.) The scope of review is strict: the court’s ruling on motion for new trial may be reversed only if “‘“‘a manifest and unmistakable abuse of discretion clearly appears.’”’” (People v. Staten (2000) 24 Cal.4th 434, 466.) That is not so here.
The court was entitled to consider the credibility of the new evidence in determining whether it would render a different result reasonably probable in a new trial. (E.g., People v. Delgado (1993) 5 Cal.4th 312, 329.) Concerning the crucial, exculpatory evidence, about Shaw’s and McIntyre’s statement that appellant hadn’t known the shooting would be occurring, the court was justified in assessing Ms. Gallardo’s testimony as incredible, as well as in viewing her credibility as a whole as lacking. (Ibid.) Moreover, at a trial Shaw’s and McIntyre’s statements about appellant’s knowledge would be inadmissible opinions, if not also hearsay. The court did not abuse its discretion when it implicitly ruled that the proferred evidence would not probably produce a different result, and therefore denied the motion for new trial. (Ibid.)
5. Parole Revocation Fine and Restitution Order.
Appellant’s final contentions concern the validity of a parole revocation fine (§ 1202.45) and a restitution order (§ 1202.4, subd. (f)), which were imposed at sentencing. We address these items in order.
The parole revocation fine was rendered under section 1202.45, which provides for such fines “where a person is convicted of a crime and whose sentence includes a period of parole . . . .” Appellant’s sentence, of life without possibility of parole, does not come within this description, and the fine therefore should not have been imposed, as both appellant and respondent agree. We therefore will reverse the parole revocation fine.
The restitution order presents different considerations. The probation report recommended that appellant be ordered to pay victim restitution of $210, although it described additional losses suffered by various members of the decedent’s family. At sentencing, defense counsel, when invited to comment before imposition, declined, stating that “The court has no discretion in a case like this.” The prosecutor then stated that the only thing she had for the court was a form of restitution order from the victims’ compensation board. The court interjected that it had “received something that says the total restitution is $25,700 roughly.” The prosecutor responded, “That’s mine as well.” After the court read a letter from the decedent’s mother, both counsel again submitted, and the court proceeded to impose sentence, including an order that appellant make restitution of $25,600 (later refined to $25,696.26), payable to the board. Appellant now contends that the restitution order was invalid because it was imposed without constitutionally required notice, and because it lacks evidentiary support.
Appellant’s second contention is dispositive. Section 1202.4, subdivision (f)(4)(B), provides that the amount of restiution ordered for and on account of payments by the Restitution Fund shall be established by bills submitted by the California Victim Compensation and Government Claims Board, reflecting the amounts paid by the board and the type of service for which the payments were made. The record on appeal contains no such documentation, and this absence deprives the restitution order of the necessary evidentiary support. We therefore will reverse the order, while allowing for further consideration of the question of restitution.
DISPOSITION
The judgment is reversed insofar as it imposes a parole revocation fine and a direct restitution order. That restitution order shall be subject to reconsideration in the trial court. In all other respects, the judgment is affirmed.
We concur: RUBIN, J., FLIER, J.