Opinion
B330063
10-24-2024
THE PEOPLE, Plaintiff and Respondent, v. IZAC MCCLOUD, Defendant and Appellant.
Steven A. Brody, 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, Michael C. Keller and Charles S. Lee, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA331910 Mark C. Kim, Judge. Affirmed.
Steven A. Brody, 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, Michael C. Keller and Charles S. Lee, Deputy Attorneys General for Plaintiff and Respondent.
ROTHSCHILD, P. J.
In 2010, a jury convicted Izac McCloud of two counts of second degree murder and 46 counts of assault with a firearm. (Pen. Code, §§ 187, 245, subd. (a)(2).) The jury further found that McCloud personally and intentionally discharged a firearm in the commission of the murders proximately causing death (§ 12022.53, subd. (d)) and, as to the assault counts, that he personally used a firearm. (§ 12022.5, subd. (a).) The court sentenced him to 202 years to life in prison.
Subsequent statutory references are to the Penal Code.
On his direct appeal, we affirmed the murder convictions and reversed 38 of the 46 convictions for assault with a firearm. (People v. McCloud (2012) 211 Cal.App.4th 788.) The trial court thereafter resentenced McCloud to 113 years 4 months to life.
McCloud petitioned the court to be resentenced under the predecessor to section 1172.6. After holding an evidentiary hearing, the court found McCloud guilty of two counts of second degree murder. McCloud appealed. We affirm.
Our record does not include McCloud's petition for resentencing or otherwise indicate the date it was filed. The earliest evidence in our record of its existence is an order to show cause dated September 14, 2022, setting an evidentiary hearing on McCloud's petition.
Our factual summary is derived from the evidence introduced at McCloud's section 1172.6 evidentiary hearing, including reporter's transcripts from McCloud's 2010 trial and the clerk's transcripts from McCloud's direct appeal in case No. B228209. We granted McCloud's request to take judicial notice of these records.
On the afternoon of January 19, 2008, McCloud, Jonzel Stringer, and Karon Lofton were at Letwan Lucky's house.
McCloud and Stringer talked about going to a party that evening. Lucky told them they should not go because "bad things happen when you go where you ain't supposed to be." McCloud said they "should . . . bring a 22 or a bigger gun" to the party. A friend of McCloud and Stringer, who Lucky knew as "Black-T," arrived at the house. Black-T showed the others a semiautomatic handgun he had brought with him. According to Lucky, it was a "9, similar to a Glock." Upon seeing the gun, Stringer said to McCloud and Lofton, "[w]e can use that" for "protection" at the party and told McCloud to get the gun from Black-T. Black-T agreed to let them have it.
That evening, Stringer drove McCloud to a birthday party for teenage twins Randall and Carlton Hooks at the Masonic Lodge in Long Beach. The twins' father anticipated that 80 to 100 people would attend. Instead, "[h]undreds" of people showed up. Witnesses described the lodge as being "packed" "elbow-to-elbow," and "[w]all-to-wall people." Many more- including Stringer and McCloud-were in the parking lot or waiting in a long line of people to get inside.
At some point, a scuffle or fight broke out inside the lodge. The twins' father believed the situation had become uncontrollable and decided to shut the party down. Before he could do so, however, gunshots were fired and a window to the lodge shattered. Different bullets hit Dennis Moses and Breon Taylor, who were inside the lodge. Each died as a result of a bullet wound to the head. R.G., also inside the lodge, was hit by a third bullet, but survived.
Later that night, Stringer returned to Lucky's house. According to Lucky, Stringer seemed "nervous" and "scared" and kept walking in circles and saying, "I didn't do it." When Stringer calmed down, he told Lucky that he and McCloud drove to the party, Stringer "walked up to the door to go in, and they socked him in the face." Stringer said he ran back to the car and told McCloud:" '[G]et 'em, get 'em, get 'em.'" Stringer told Lucky he got the gun from McCloud, fired two shots "aiming towards the party" or "[a]t the party," and then handed the gun back to McCloud, who fired six more shots. Stringer then drove them away from the scene.
On cross-examination, Stringer's counsel introduced evidence of Lucky's prior statements to detectives that did not identify Stringer as a shooter. At one point, a detective asked Lucky:" 'Did he [Stringer] say who was shooting,'" to which Lucky answered: "No, but I think he was trying to say it was Izac [McCloud]."
When Lucky was asked at trial what Stringer was referring to when he initially said he "didn't do it," Lucky said that Stringer was not the one who shot the victims; McCloud shot them.
Several days after the party, McCloud told Lucky that Stringer had driven him and Karon Lofton to the party at the Masonic lodge. McCloud said that Stringer had come running out of the party saying that, in Lucky's words, "somebody socked him two times." Stringer told McCloud to "get 'em." McCloud then shot five or six rounds into the party with "[t]he Glock." Stringer then drove McCloud and Lofton away from the lodge. McCloud told Lucky that he hoped Stringer would not "snitch on him."
Investigating police officers found 10 nine-millimeter shell casings outside the lodge in the northeast corner of the parking lot. They found no evidence that shots were fired from inside the lodge. After examining the casings, a police criminalist determined that the bullet casings were all from the same weapon.
The criminalist concluded that the bullets recovered from victims Moses, Taylor, and R.G. were all fired from a nine-millimeter semiautomatic firearm, and that the bullets recovered from Moses and Taylor were fired from the same firearm. The bullet recovered from R.G. was "more likely than not" fired from the same firearm as the bullets recovered from Moses and Taylor. The gun was never found.
The criminalist observed "pitting marks" and a "glistening powdery substance" on the surface of the bullets recovered from R.G.'s leg and the bodies of Moses and Taylor. According to the criminalist, these marks and substance indicated that the bullets had passed through glass before hitting the victims.
In addition to the three bullets that hit the victims, investigating officers identified five bullet strike marks on the exterior wall of the lodge near the shattered window and two bullet holes in a car in the parking lot near the entrance to the lodge. The 10 hits equal the maximum number of bullets that can be held in the kind of magazine that "the public is allowed to buy" for a nine-millimeter handgun.
Two days after the shooting, Peter Adams-a student at the same high school McCloud attended-talked to Marcus Egland, a gang intervention specialist at the school. Adams told Egland that he "was there when everything happened," that he saw "the actual shooting," and "knows who did the shooting." Egland testified that Adams told him that McCloud and Stringer became upset when they were not allowed into the party, and that Stringer told McCloud "to go to the car and get the gun out and end it," i.e., "[e]nd the party." Adams told Egland that Stringer "instructed" McCloud to "shoot it up in the air. Just scare 'em." McCloud, however, "went up to the window and started shooting" into the party.
Adams told Egland that his knowledge of what happened created a "dilemma" for him because, on the one hand, his mother and McCloud's mother are "real close friends"; and on the other hand he had been a good friend of Moses, one of the murder victims. When Adams told his mother what he had seen, his mother "told him to stay out of it." After Adams spoke with Egland a couple days later about "wanting to do something more," Egland introduced Adams to a detective.
In an audiotaped interview conducted on February 4, 2008, Adams told detectives a version of events that was generally consistent with Egland's testimony: There was some sort of fight at the party; McCloud went to a beige car and got a gun from inside the car; a companion of McCloud's told McCloud to "[e]nd the party" and" 'shoot it in the air' "; McCloud then "shot at the window," paused, and fired two shots in the air. McCloud and the companion then left in the beige car.
Adams's statements in police interviews and his testimony before a grand jury were not all consistent, and he admitted having given incorrect information to the police at various times. During trial, Adams answered, "I don't remember" to nearly every question asked, and he specifically denied having told the police the identity of the shooter. The recording of the February 4, 2008 interview was then played for the jury.
Detectives showed Adams a picture of a beige Buick Regal that was registered to Stringer's mother. Adams told the detectives that it looked like the car in which McCloud and the driver left the scene after the shooting.
About a week after the shooting, Stringer talked to his cousin Robert Swift about the incident. Stringer told Swift that he was at a party and "his homeboy got into it with somebody, and the homeboy shot him and they just left." Swift asked Stringer about the gun, and Stringer told him that "the guy got rid of that."
Other accounts of the incident varied widely. Although many witnesses testified that the shots were fired from outside the lodge, some said they saw or believed someone fired a gun from inside the lodge. Others heard shots from both inside and outside the lodge, and others described gunfire without saying from where it had come. One witness testified she saw McCloud pull a gun from his waistband during a confrontation with others inside the lodge near the door.
Testimony as to the number of shots witnesses heard ranged from three to twenty. Some witnesses described a single series of gunshots; and others described two or three series of gunshots separated by a pause or pauses.
At the 2010 trial, McCloud testified in his defense. He stated that he took a bus by himself from the Long Beach Towne Center to a location near the Masonic lodge and arrived at about 10:20 p.m. or 10:30 p.m. There were about 100 people in the parking lot and in line to get into the party. He did not bring a gun to the party. As he began to approach some women in the line, he "heard shots fired." Upon hearing the first shot, he "froze." When he heard a second shot, he started to "run for [his] life." He heard two more shots as he reached a brick wall. He jumped over the wall and ran through a park to a drugstore. He remained there for about 80 minutes, then went home. He denied that he had been in Lucky's residence before the party. He also said he does not know anyone by the name of Black-T, he did not possess or fire a gun on the night of the party, and he had never fired a gun in his life.
In rebuttal, the prosecution introduced evidence that on the night of the shooting, the last Long Beach Transit bus to run the route between Long Beach Town Center and a location near the Masonic lodge stopped running after 6:10 p.m.
PROCEDURAL HISTORY
In 2008, a grand jury charged Stringer and McCloud with the murders of Moses and Taylor (§ 187), the attempted murder of R.G. (§§ 187, 664), and the attempted murder of 59 others. The indictment further alleged certain firearm enhancements as to each crime (§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c) &(d)), and the multiple murder special circumstance (§ 190.2, subd. (a)(3)). At the request of the prosecution, the trial court dismissed 12 of the attempted murder counts prior to trial and, later, pursuant to section 1118.1, dismissed two attempted murder counts.
McCloud and Stringer were tried together before different juries. McCloud's jury was instructed, among other theories, on felony murder and aiding and abetting liability under the natural and probable consequences doctrine.
McCloud's jury convicted him of two counts of second degree murder and 46 counts of assault with a firearm, a lesser included offense of the charged crimes of attempted murder. It did not convict him of attempted murder. The jury also found the firearm enhancement allegations as to the murder counts true and, as to the assault counts, found true lesser included firearm enhancements under section 12022.5, subdivision (a). The court sentenced McCloud to prison for 202 years to life.
In 2012, we affirmed McCloud's murder convictions and reversed 38 of the assault with a firearm convictions in a partially published opinion. (People v. McCloud, supra, 211 Cal.App.4th 788.) After remand, the prosecution elected not to retry the attempted murder charges. The court resentenced McCloud to 113 years 4 months to life in prison. (People v. McCloud (Feb. 27, 2015, B251262) [nonpub. opn.].)
On appeal from the resentencing order, we modified the judgment to require a parole hearing after McCloud serves 25 years in prison and directed the court to correct a clerical error. We otherwise affirmed the judgment. (People v. McCloud, supra, B251262.)
McCloud petitioned the superior court to be resentenced under section 1172.6. In April 2023, the court held an evidentiary hearing pursuant to subdivision (d)(3) of section 1172.6. The prosecution relied on the reporter's transcript from Stringer and McCloud's 2010 trial and the clerk's transcript filed in McCloud's direct appeal. McCloud testified in his defense that he did not handle or shoot a gun on the night of the incident, and he did not know who shot into the party.
After argument from counsel, the court stated that McCloud is not eligible for resentencing under section 1172.6, stating that he "is the shooter" "beyond a reasonable doubt."
On April 13, 2023, the court issued its written ruling denying McCloud's petition. The court found "beyond a reasonable doubt that the defendant is guilty of the crimes charged and that he was a direct shooter in the case."
McCloud timely appealed.
DISCUSSION
A. Legal Background
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437)" 'to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' [Citation.]" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) As a result, except as permitted under the felony murder doctrine (see § 189), "in order to be convicted of murder, a principal in a crime shall act with malice aforethought," which "shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)
The legislation also substantially narrowed the felony murder doctrine. A participant in a specified felony in which a death occurs is liable for murder only if: (1) The person was the actual killer; (2) The person, with the intent to kill, "aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer"; or (3) "The person was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e)(1)-(3); see People v. Wilson (2023) 14 Cal.5th 839, 869.) These limits on the felony murder doctrine do not apply "when the victim is a peace officer who was killed while in the course of the peace officer's duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer's duties." (§ 189, subd. (f); see People v. Flint (2022) 75 Cal.App.5th 607, 610.)
Senate Bill No. 1437 left intact liability for murder committed with implied malice and direct aiding and abetting another in committing murder with express or implied malice. (People v. Reyes (2023) 14 Cal.5th 981, 990-992 (Reyes); People v. Gentile (2020) 10 Cal.5th 830, 850 (Gentile); see People v. Carr (2023) 90 Cal.App.5th 136, 139 ["[i]mplied malice is not imputed malice"].) "Murder is committed with implied malice when 'the killing is proximately caused by" 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'" '" (Reyes, supra, at p. 988.)
The requirement of proximate cause may be satisfied by evidence that a defendant's acts are a "substantial concurrent cause" of the victim's death. (People v. Sanchez (2001) 26 Cal.4th 834, 845 (Sanchez); accord, People v. Carney (2023) 14 Cal.5th 1130, 1135 (Carney).) Under this theory, when multiple shooters concurrently engage in gunfire and a victim is killed by a single bullet, each shooter may be liable for murder even though the evidence does not establish which person fired the fatal shot (see Sanchez, supra, at pp. 844-845; accord, People v. Bland (2002) 28 Cal.4th 313, 337; People v. Lopez (2021) 73 Cal.App.5th 327, 333), or the evidence establishes that the defendant did not fire the fatal shot (see Carney, supra, at p. 1135). So long as both shooters, acting with the requisite mental state, set" 'in motion a chain of events that produces as a direct, natural and probable consequence of the act, the death of a human being'" (Sanchez, supra, at p. 845)," 'it is not unfair to hold them equally responsible for [the victim's] death, without regard to which of them actually fired the bullet that struck and killed [the victim].'" (Id. at p. 854; accord, Carney, supra, at p. 1142.) Senate Bill No. 1437 did not impact this theory of substantial concurrent causation. (Carney, supra, at pp. 1145-1147.)
Murder liability under the theory of direct aiding and abetting depends" 'on the combined actus reus of the participants and the aider and abettor's own mens rea. [Citation.] In the context of implied malice, the actus reus required of the perpetrator is the commission of a lifeendangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.'" (Reyes, supra, 14 Cal.5th at pp. 990-991, quoting People v. Powell (2021) 63 Cal.App.5th 689, 712-713.)
Senate Bill No. 1437 also added section 1172.6, which provides a procedure whereby "convicted murderers who could not be convicted under the law as amended" may petition to have their conviction vacated and be resentenced on any remaining counts. (Lewis, supra, 11 Cal.5th at p. 959.) When a court sets an order to show cause and holds an evidentiary hearing on the petition, the prosecution has the burden of proving, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by Senate Bill No. 1473. (§ 1172.6, subd. (d)(3).)
When the trial court holds an evidentiary hearing on a section 1172.6 petition, it acts as an independent factfinder to determine whether the defendant is guilty of murder beyond a reasonable doubt under law as amended by Senate Bill No. 1437. (People v. Guiffreda (2023) 87 Cal.App.5th 112, 123; People v. Garrison (2021) 73 Cal.App.5th 735, 745.) We review the court's factual findings for substantial evidence. (People v. Underwood (2024) 99 Cal.App.5th 303, 314.) "Under this standard, we review the record '" 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence- that is, evidence which is reasonable, credible, and of solid value- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"' [Citation.] But where there is an issue as to whether the trial court misunderstood the elements of the applicable offense, the case presents a question of law which we review independently." (Reyes, supra, 14 Cal.5th at p. 988.)
B. The Court's References to "Actual Shooter"
McCloud contends that the court applied an incorrect legal standard to determine his eligibility for resentencing. In particular, he points out that the court described McCloud as the "actual shooter" and, in its written decision, as "a direct shooter," not as the "actual killer." McCloud argues that although a defendant "may be ineligible for relief if he is the 'actual killer,' there is no bar to relief for being an 'actual shooter.' "
McCloud has forfeited this argument by failing to assert it below. (See People v. Schell (2022) 84 Cal.App.5th 437, 444.) If he had raised this point in the trial court, the court could have promptly cleared up any confusion or ambiguity. Indeed, the court provided defense counsel with a clear opportunity to raise the issue before announcing its ruling. The court asked: "[I]f the evidence is that . . . McCloud was the actual shooter, then he is not eligible for the . . . section 1172.6 petition, and that is conceded by all parties, including defendant; correct?" Defense counsel answered: "Well, it's the law, Your Honor." Having failed to object or ask for clarification as to the court's use of the phrase, "actual shooter," defendant cannot complain about the phrase on appeal.
Even if McCloud had not forfeited the argument, it is without merit. Initially, we note that liability for murder does not require a finding that the defendant is an "actual killer." (See, e.g., Gentile, supra, 10 Cal.5th 850 [Senate Bill No. 1437 did not abrogate direct aiding and abetting liability for murder].) And, as discussed above, when a defendant fires a gun concurrently with another shooter and a death results, the defendant can be liable for murder even if there is no proof that any bullet the defendant fired actually killed the victim. (Sanchez, supra, 26 Cal.4th at pp. 844-845; Carney, supra, 14 Cal.5th at p. 1135.) In light of this law and the facts in the case, defense counsel explained to the court at the evidentiary hearing: "[T]he whole issue is whether or not . . . McCloud shot a gun." The court's statement that McCloud was an actual or direct shooter, therefore, is simply the court's finding on the issue that defense counsel considered dispositive: McCloud shot a gun. Nothing in the court's use of the challenged phrase suggests that the court failed to find all elements of murder implicit in its conclusion that McCloud was guilty of murder beyond a reasonable doubt. The references to McCloud as an actual or direct shooter, therefore, do not establish that the court applied an incorrect standard.
C. Sufficiency of the Evidence
Defendant asserts that there is substantial evidence that Stringer fired the gun at the party then gave the gun to McCloud, who fired additional shots. He proceeds to argue that it is "entirely arbitrary" "[t]o select one of the two shooters-neither of whose act of firing the weapon can be identified as more likely to have been fatal-and designate him the killer." Defendant acknowledges the holdings of Sanchez and Carney, but contends they are not controlling because the shooters in those cases fired their guns concurrently; Stringer and McCloud, by contrast, acted seriatim: Stringer fired first, then handed the gun to McCloud. If Stringer fired a bullet and killed a victim, McCloud argues, then it would be "metaphysically impossible" for McCloud's subsequent shots to have killed that victim.
There is, however, substantial evidence that Stringer did not fire a bullet that killed a victim and, therefore, that McCloud fired the fatal shots. The only evidence as to whether Stringer fired a shot that killed or did not kill a victim is Stringer's statements to Lucky after the shooting. Although he admitted firing two shots at the party, he repeatedly told Lucky that he "didn't do it." More specifically, Stringer (according to Lucky) said that he "wasn't the one who shot" the victims; McCloud shot them. Stringer later told his cousin that Stringer's "homeboy shot" someone at the party.
At first glance, Stringer's statements that he "didn't do it" and McCloud did do it could be dismissed as speculation; how would Stringer know that his shots did not hit a victim? There is, however, a basis for finding that his statements are" 'reasonable in nature, credible, and of solid value,'" and thus constitute substantial evidence. (See People v. Johnson (1980) 26 Cal.3d 557, 576; Reyes, supra, 14 Cal.5th at p. 988.) Initially, we note that Stringer's statements to Lucky that he fired shots at the party were against his penal interest, thus lending credibility to his related statements. His consistent and unequivocal statements that he did not fire the shots that killed the victims implies his personal knowledge of facts that would preclude the possibility that his shots hit a victim. Such facts could include that his shots did not shatter the window to the lodge or that his shots hit a car in the parking lot-facts he would have presumably discerned immediately. If his shots hit a car or if neither shot broke the window, Stringer could be confident, as he appeared to be, in telling Lucky that he "didn't do it," and, therefore, that McCloud did. Thus, Stringer's statements constitute substantial evidence that his shots did not kill anyone inside the lodge. (See People v. Barnwell (2007) 41 Cal.4th 1038, 1052 [the testimony of a single witness that satisfies the standard is sufficient to uphold the finding].) Because McCloud is the only other person to fire a gun at the party, the court could reasonably further infer that he was the direct perpetrator of the murders.
Even if the court could not credit Stringer's testimony that he did not fire the fatal shots, the court could still conclude that McCloud's actions were a substantial concurrent cause of the victim's deaths. As the Carney court explained, in determining whether a defendant's acts are a proximate cause of a homicide, a factfinder may consider events leading up to the firing of the first gunshots. (Carney, supra, 14 Cal.5th at pp. 1144-1145.) In Carney, a case in which the "evidence was inconclusive as to who fired the first shots" (id. at p. 1136), the court considered the defendants' actions preceding the gunfire, including the facts that they armed themselves and went to a barbershop that was a known hangout of a rival gang and that one of the defendants entered the barbershop and spoke to someone by telephone, saying that "he wanted to 'shoot the place up.'" (Id. at p. 1144.) When the defendants' rivals arrived, the shooters and the rivals began firing at each other, and a bystander was ultimately shot and killed by a bullet that neither of the defendants fired. (Ibid.)
Here, McCloud and Stringer went to the party at the Masonic lodge armed with a 9-millimeter semiautomatic firearm, which Stringer told McCloud they could use "for protection." After Stringer got "socked in the face" by someone at the party, he became upset and told McCloud," '[G]et 'em, get 'em, get 'em,'" and "get the gun out and end [the party]." McCloud then gave the gun to Stringer, who fired two shots at the party. The court could reasonably conclude that, if Stringer's shots killed a victim, McCloud's act of handing the gun to Stringer under these circumstances was an act that set"' "in motion a chain of events that produce[d] as a direct, natural and probable consequence of the act, the death of a human being." '" (Carney, supra, 14 Cal.5th at p. 1142.) McCloud's mental state of implied malice in this situation is also reasonably inferable from these facts: McCloud knew that handing the gun to Stringer in that situation endangered the lives of others, and he gave the gun to Stringer with conscious disregard for life. (See Reyes, supra, 14 Cal.5th at p. 988; People v. Knoller (2007) 41 Cal.4th 139, 143.)
The same facts support the alternative theory that McCloud is liable as a direct aider and abettor of Stringer's crime. McCloud's handing of the gun to Stringer under the circumstances in this case and Stringer's shooting of the gun- both life endangering acts-combine to satisfy the actus reus requirements. The required mens rea-that McCloud knew that Stringer intended to commit the act of shooting at the party, that McCloud intended to aid Stringer in perpetrating that act by handing him the gun, McCloud's knowledge that shooting at a crowded party is dangerous to human life, and McCloud's conscious disregard for human life-is also reasonably inferable from the circumstances in this case. (See Reyes, supra, 14 Cal.5th at pp. 990-991.)
For all the foregoing reasons, there is substantial evidence to support the court's determination that McCloud is guilty beyond a reasonable doubt of murder, either as a perpetrator or a direct aider and abettor, under the law in effect after Senate Bill No. 1437.
D. Consideration of McCloud's Youth
McCloud contends that he was 16 years old at the time of the shooting-without citation to the record-and the court erroneously failed to consider his youth in determining that he possessed the requisite mental state for implied malice murder. McCloud cites to People v. Pittman (2023) 96 Cal.App.5th 400 (Pittman), which held that a court should consider whether and how a defendant's "youth impacted his ability to form the requisite mental state for second degree murder." (Id. at p. 418.)
In Pittman, the Court of Appeal discussed the defendant's age and the particular "circumstances of the offense" that "suggest that some of [the]' "hallmark features of youth"' may have been at play." (Pittman, supra, 96 Cal.App.5th at p. 418.) The court concluded that "remand is appropriate for the court to consider how, if at all, [the defendant's] youth impacted his ability to form the requisite mental state for second degree murder." (Ibid.)
McCloud asserts that if the trial court had properly considered his "youth and analyzed his mens rea accordingly," there is a reasonable probability that he would have obtained a more favorable result. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Jimenez (2024) 103 Cal.App.5th 994, 1007.)
McCloud did not raise this issue below or assert that the court should consider his youth at the time of the shootings. Indeed, it does not appear from our record that anyone brought the defendant's age to the court's attention. He has therefore forfeited the argument on appeal. (See In re Sheena K. (2007) 40 Cal.4th 875, 880-881; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.)
In Pittman, the defendant had also not raised the issue of his youth in the trial court. The appellate court concluded, however, that he had not forfeited the issue on appeal because the defendant's petition was denied in 2020, and "[t]he relevant appellate cases [deciding that youth is a relevant factor bearing on mental state in section 1172.6 petitions] were not decided until 2021 or later." (Pittman, supra, 96 Cal.App.5th at p. 416.) The court listed eight relevant cases decided in 2021 and 2022. (Ibid.)
We need not decide whether Pittman is correct. Even if we assume that it is, the case is distinguishable because all eight relevant cases cited in Pittman were decided before McCloud's April 21, 2023 evidentiary hearing. (See People v. Oliver (2023) 90 Cal.App.5th 466; People v. Jones (2022) 86 Cal.App.5th 1076, 1091-1093; People v. Keel (2022) 84 Cal.App.5th 546, 562-563; People v. Mitchell (2022) 81 Cal.App.5th 575, 595; In re Harper (2022) 76 Cal.App.5th 450, 470; People v. Ramirez (2021) 71 Cal.App.5th 970, 987; In re Moore (2021) 68 Cal.App.5th 434, 452-455; People v. Harris (2021) 60 Cal.App.5th 939, 960, review granted Apr. 28, 2021, S267802, review dism. Sept. 28, 2022.) Thus, unlike the defendant in Pittman, McCloud had ample notice of the issue prior to his hearing and the reasons the Pittman court gave for finding that the petitioner had not forfeited the issue are absent here.
In any event, McCloud has failed to establish prejudicial error. The"' "hallmark features of youth" '" identified in Pittman are" 'relative impulsivity' and '. . . vulnerability to peer pressure.'" (Pittman, supra, 96 Cal.App.5th at p. 418.) The record in this case does not reveal that either of these features were at play in McCloud's actions. In the afternoon before the party, McCloud and Stringer talked about bringing a gun to the party. McCloud said they "should . . . bring a 22 or a bigger gun," and obtained a 9-millieter semiautomatic firearm provided by Black-T. Such planning belies impulsivity. (See People v. Wright (1985) 39 Cal.3d 576, 593, fn. 5 [obtaining a weapon in advance of a killing supports an inference of planning activity].) And although Stringer arguably acted impulsively out of anger after being hit in the face, there is no evidence that McCloud was similarly motivated when he fired the second round of shots at the party.
As for peer pressure, when Stringer and McCloud were discussing the party at Lucky's residence that afternoon, McCloud asked Lucky whether he should go to the party. Lucky told him not to go, and to stay at Lucky's with him. McCloud, however, rejected the counsel of his peer, and there is nothing to suggest that Stringer put any pressure on McCloud to go to the party. To the extent that Stringer's actions of firing at the party and handing the gun to McCloud could imply peer pressure from Stringer, we note Adams's testimony that Stringer told McCloud to "shoot it up in the air" to "scare 'em." McCloud, however, disregarded this limit by going "up to the window and . . . shooting" into the party.
Therefore, even if the argument had been preserved for appeal, McCloud has failed to show that there is a reasonable probability that, if he had raised the point below, he would have obtained a more favorable result. (See Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The order denying appellant's petition to recall his sentence and for resentencing is affirmed.
We concur: BENDIX, J., WEINGART, J.