Opinion
B329488
07-26-2024
THE PEOPLE, Plaintiff and Respondent, v. JAMAAL GAITHER, Defendant and Appellant.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA240013-01 H. Clay Jacke II, Judge. Sentence vacated; remanded with directions.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
EGERTON, J.
Jamaal Gaither appeals from the sentence the trial court imposed after it granted his petition for resentencing under Penal Code section 1172.6. The Attorney General agrees the court erred in reducing Gaither's murder conviction to assault with a firearm and sentencing him on that count, because the target offense for the prosecution's natural and probable consequences theory on the murder count was charged in a separate count and Gaither was convicted on that count. In light of the parties' agreement-with which we concur- we vacate Gaither's sentence and remand the matter with directions.
References to statutes are to the Penal Code. Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
BACKGROUND
The facts giving rise to this case are set forth in our previous opinion regarding Gaither's petition for resentencing, People v. Gaither (Jan. 19, 2022, B307936) [nonpub. opn.] (Gaither II) and in the opinion of another panel of this court affirming Gaither's conviction on direct appeal, People v. Gaither (Feb. 4, 2004, B153450) [nonpub. opn.] (Gaither I). In 2001 a jury convicted Gaither of the second degree murder of Africa Sweeney (count 1), assault with a firearm on Keith Crawford and Larry Lee (counts 3 and 5, respectively), and assault with a deadly weapon or by means of force likely to produce great bodily injury on Lee (count 6). The jury was unable to reach a verdict on gang and firearm allegations, but another jury later found true gang allegations and an allegation that a principal discharged a firearm causing Sweeney's death. (Gaither II.)
The People also charged Gaither with the attempted murders of Crawford and Lee (counts 2 and 4, respectively). The jury acquitted Gaither of those charges. (Gaither II.)
The trial court (the Honorable Curtis B. Rappe) sentenced Gaither to an indeterminate term of 40 years to life in the state prison for the murder of Sweeney as well as a determinate term of nine years for the assaults with a firearm on Crawford and Lee. The court stayed the sentence for assault on Lee with a deadly weapon or by means of force likely to produce great bodily injury. (Gaither II.) As noted, in 2004 another panel of this court affirmed Gaither's conviction. (Gaither I.)
In 2019 Gaither petitioned for resentencing under section 1172.6. The trial court appointed counsel for him and issued an order to show cause. Gaither contended the prosecution had" 'relied exclusively [on] the natural and probable consequences doctrine based on aiding and abetting and conspiracy theories'" at his trial. (Gaither II.) In opposition to Gaither's petition, the prosecution noted his jury had been instructed on implied malice. The prosecution offered an" 'approach'" that we found difficult to understand. (Id.)
The trial court conducted an evidentiary hearing. The court then issued a written opinion denying Gaither's petition. The opinion stated, "Substantial evidence showed that Gaither was armed with a gun and used it to kill the victim." As we noted in Gaither II, however, the prosecutor had told the jury that Gaither" 'was not the trigger man.'" Moreover, we could not determine from the record whether the trial court had sat as an independent factfinder and applied the requisite standard of proof by the prosecution-beyond a reasonable doubt-that Gaither could no longer be convicted of murder in light of the changes to sections 188 and 189. Accordingly, we reversed the order denying Gaither's petition and remanded the matter for further proceedings. (Gaither II.)
Back in the trial court, on September 8, 2022, the prosecution filed a "Supplemental Brief re Implied Malice Liability." The prosecution noted "directly aiding and abetting an implied malice murder" remained "a viable theory of murder culpability." The prosecutor stated Gaither "directly committed the dangerous act of brandishing a firearm, and . . . he aided and abetted another in brandishing a firearm."
On the next day, September 9, 2022, counsel appeared before the court (the Honorable H. Clay Jacke II). Gaither was present by Webex. The prosecution marked as an exhibit and moved into evidence the 17 volumes of reporters' transcripts from Gaither's trials. Gaither then called an expert witness on "adolescent brain development," Dr. Rahn Minagawa. Later in the hearing, the prosecution marked, and the court admitted into evidence, a transcript of the interrogation of Gaither by police as well as 17 photographs.
On an earlier court date, the court had asked Gaither's counsel if he would like his client to be ordered out from prison for the hearing. Counsel replied, "He's likely to appear by Webex because he has some health problems. It's difficult for him to travel." Gaither appeared at all later hearings by Webex.
As noted in Gaither II, there were three trials. The first jury was unable to reach a verdict. The second jury reached verdicts on the charged offenses but was unable to agree on the gang allegation and, therefore, firearm allegations. A third jury found those allegations true. (Gaither II.)
Gaither was 21 when the crimes were committed.
The court then heard extensive oral argument from counsel. At the conclusion of the hearing, the court noted it would read the many volumes of trial transcripts. The court set the next date for November 4, 2022.
On November 3, 2022, Gaither filed a brief addressing the trial testimony and contending the prosecution had failed to prove beyond a reasonable doubt that he was guilty of implied malice second degree murder. On November 4, the prosecution filed a "supplemental statement of facts," attaching a copy of the brief the Attorney General had filed in 2003 in Gaither's direct appeal.
On January 30, 2023, the court issued a written ruling granting Gaither's petition for resentencing. The court found there was "no evidence that Gaither had [an] intent to kill." The court stated, "[R]ecent implied malice cases, where the defendants were direct aiders and abettors, are factually distinct from what we are presented with in Gaither's case." The court noted Gaither "had no direct contact with the victim," who "apparently" was "shot by an unknown assailant."
The court stated brandishing a weapon could be "the dangerous act to an implied malice murder." The court continued, "As an independent fact finder, this is a close call. But what swings the pendulum in the defendant's favor is the testimony of Dr. Minagawa and the Miller [v. Alabama (2012) 567 U.S. 460] factors: immaturity, impetuosity and failure to appreciate the risk and consequences." The court concluded it could not "say beyond a reasonable doubt that Gaither knew and understood that those immature and impetuous actions[ ] would cause another to fire a gun which is truly a dangerous act; that he intentionally aided the act and did so with conscious disregard for life."
In light of the court's ruling, Gaither filed a resentencing memorandum. Gaither asserted the court was required to "vacate and dismiss" his murder conviction, together with the gang and firearm enhancements on count 1. Gaither noted the" 'target offense'" for the prosecution's natural and probable consequences theory in the murder count was the assault on Lee with a deadly weapon or by means of force likely to produce great bodily injury, alleged in count 6, and therefore no redesignation of the murder count was "necessary." The record on appeal does not contain a sentencing memorandum by the prosecutor, or a written response to Gaither's memorandum.
Counsel appeared before the court on February 21, 2023. Gaither was present by Webex. The prosecutor said he was "disappoint[ed] with the court's decision to vacate the murder sentence." He stated, "What bothers me about [Gaither's resentencing memorandum] is that there's nothing there for count 1, the actual murder victim Afri[c]a Sweeney." He continued: "Afri[c]a Sweeney as having been shot and killed is as much a victim of a 245(a)(2) as any of the others at whom guns were pointed, brandished, shot in their general vicinity." The prosecutor proposed that count 1 or count 6 be "designated" a violation of section 245, subdivision (a)(2), assault with a firearm.
The court stated Gaither had been "ordered to be present" but it understood "because of his health he chose to appear via Webex . . . ?" Gaither's counsel replied, "Yes, Your Honor. I spoke with him about that.... [H]e's had some health concerns . . . so . . . we both agreed that it would be better for him to remain in custody there."
The prosecutor referred to "count 7" but he misspoke: count 6 alleged against Gaither was assault (on victim Lee) with a deadly weapon or by means of force likely to produce great bodily injury under section 245, subdivision (a)(1). Count 7 charged a co-defendant, Juano Tweedy, with possession of a firearm by a felon. (Gaither II.)
The court said the prosecutor's argument "ma[d]e[ ] sense," and asked Gaither's counsel to respond. Counsel quoted subdivision (e) of section 1172.6 that provides the offense-in this case, murder-shall be redesignated as the target offense if the target offense was not charged. Here, counsel noted, the target offense was charged in count 6. Counsel cited the jury instructions as well as the prosecutor's closing argument at trial, noting, "[T]he target offense was the 245 on the dance floor when they went after Larry Lee. And that's count 6. And the natural and probable consequence of that act as [the prosecutor] just argued was you run into a dance club, you start a fight, and that triggers somebody to pull out a gun and shoot. And we know that he wasn't the shooter because . . . nobody ever saw him with a gun."
After further argument and colloquies with counsel, the court redesignated the murder count as a violation of section 245, subdivision (a)(2), assault with a firearm. The court resentenced Gaither to the upper term of four years on count 3 (assault with a firearm on Crawford), plus one-third the midterm of one year on each of counts 1 and 5. The court imposed and stayed the low term of two years on count 6. As Gaither had served more than 23 years in prison, the court ordered him released forthwith.
Neither the prosecutor nor the trial court ever expressly stated the victim of the assault with a firearm in the redesignated count 1 would be Sweeney. That seems to be what they had in mind, even though the prosecutor had asked the court to "redesignate" either count 1 (the murder of Sweeney) or count 6 (the assault on Lee).
The record on appeal does not contain an abstract of judgment for the resentencing.
DISCUSSION
When, as here, a trial court grants a resentencing petition under section 1172.6, the statute states, "[T]he prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1172.6, subd. (d)(3); People v. Fouse (2024) 98 Cal.App.5th 1131, 1143-1144 (Fouse).) The statute provides, "The petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder . . . was charged generically, and the target offense was not charged." (§ 1172.6, subd. (e), italics added.)
Although section 1172.6, subdivision (e) does not define "target offense or underlying felony," it seems clear the phrase means the offense on which liability was based for either the natural and probable consequences doctrine or the felony-murder rule. (See Fouse, supra, 98 Cal.App.5th at p. 1144.)" 'Target offense' is a term used in connection with the natural and probable consequences doctrine, referring to the crime the defendant intended to commit." (People v. Patterson (2024) 99 Cal.App.5th 1215, 1225.)" 'Underlying felony' is a term often used in connection with felony murder, referring to the offense that was the basis for felony-murder liability at trial." (Ibid.) The language of the statute is plain, and courts in resentencing proceedings under section 1172.6 are not free" 'to impose sentences on any conviction that is supported by the evidence.'" (Patterson, at p. 1227.)
At the resentencing proceeding, Gaither's counsel explained -as he had in his resentencing memorandum-that section 1172.6, subdivision (e) did not "authorize[ ]" redesignation of the murder count because "Gaither was charged and convicted of the target offense of assault by means of force likely to produce great bodily injury in Count 6." Turning to the prosecutor, the court asked, "[Y]ou said there's abundant case law. Can you guide me to the case law that says where there's a target offense alleged . . . I [can] still redesignate what I would call a new target offense?"
The prosecutor replied he was "not sure [he could] parse it that narrowly." Apparently confusing the natural and probable consequences doctrine with the felony-murder rule, the prosecutor said "the target offense language . . . jump[ed] out at [him] as being a function of felony murder where you've got, say, a 211 as a target crime and you got a 187 going out from that."
In support of his argument that "the court has broad discretion to make a decision not based on necessarily what the jury was instructed on and so forth but what the evidence supports," the prosecutor cited People v. Howard (2020) 50 Cal.App.5th 727. But Howard was a felony-murder case. It did not involve a natural and probable consequences theory or a target offense. Howard had aided and abetted a burglary of the victim's home, during which his cohort shot and killed the victim. (Id. at pp. 729, 731-732 [jury instructed on felony murder, aiding and abetting, and burglary].) After the appellate court reversed Howard's felony-murder special circumstance, the trial court vacated his murder conviction and redesignated the "underlying felony" as residential burglary. (Id. at p. 730.)
Fouse, supra, 98 Cal.App.5th 1131, is squarely on point.A jury had convicted Fouse-who was the getaway driver-of two counts of attempted murder of a peace officer, three counts of first degree robbery, assault likely to cause great bodily injury, and conspiracy to commit robbery. (Id. at p. 1133.) The trial court had instructed the jury on the attempted murders (and the lesser included offenses of that crime) as the natural and probable consequence of robbery. (Id. at p. 1139.)
The trial court here did not have the benefit of Fouse when it resentenced Gaither. Fouse was decided some 11 months later.
After the trial court granted Fouse's section 1172.6 petition, finding she" 'did not have the intent to kill,'" it redesignated the attempted murder counts as assault on a peace officer with a firearm. (Fouse, supra, 98 Cal.App.5th at pp. 1140-1142.) It also added a felony evading count. (Id. at p. 1142.) While the court did not recall if the jury had been instructed on assault with a firearm as a lesser to attempted murder, it "thought it was 'really what happened here.'" (Id. at p. 1141.)
The court of appeal held this was error. (Fouse, supra, 98 Cal.App.5th at p. 1145.) The court said that, because the target offenses (robbery) were charged and Fouse was convicted of those offenses, the statute "did not permit the court to redesignate the attempted murder convictions to assaults with a firearm on a peace officer and felony evading a police officer." (Id. at pp. 1144-1145.) The court continued, "[S]ection 1172.6 does not provide a procedure by which the court could redesignate the attempted murder convictions to other offenses in this case because the target offenses were charged (and defendant was convicted thereof). Rather, it expressly directs the trial court to vacate the attempted murder convictions and sentence the defendant 'on the remaining charges.' (§ 11726, subd. (d)(3).) Thus, the court exceeded its statutory authority by redesignating the attempted murder convictions as assaults with a firearm on a peace officer and felony evading of a police officer." (Id. at p. 1146.)
Here, the Attorney General, citing and discussing section 1172.6, subdivisions (d)(3) and (e), as well as Fouse, concedes the trial court's redesignation of Gaither's "murder as an assault should be reversed."
DISPOSITION
We vacate Jamaal Gaither's sentence and remand the case to the trial court. The court is directed to dismiss count 1 and resentence Gaither on the remaining counts.
We concur: EDMON, P. J. LAVIN, J.