Opinion
E063205
12-21-2016
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM PAUL MCCRUMB, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor, and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1400894) OPINION APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed with directions. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor, and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code unless stated otherwise.
During a dispute, defendant William Paul McCrumb supplied the gun used by his stepson, Taireece Ross, to kill Damon Capacchione. A jury convicted defendant of one count each of first degree murder (count 1; § 187, subd. (a)); assault with a firearm (count 2; § 245, subd. (a)(2)); unlawful possession of a firearm by a felon (count 3; § 29800, subd. (a)(l)); and accessory after the fact (count 4; § 32). In addition, the court found defendant had two prior strike convictions. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)
Ross was also charged with murder, and defendant's wife, Tamara Lester, was charged with unlawful possession of a firearm by a felon and being an accessory after the fact. The prosecution of Ross was suspended based on his lack of competency. While Lester pleaded guilty to being an accessory after the fact, defendant's case went to trial in January 2015.
Before sentencing, the court granted defendant's motion to strike the prior 1983 and 1993 convictions in the interests of justice. The court denied defense counsel's oral motion to reduce the first degree murder conviction to second degree murder. The court imposed the following sentence: a term of 25 years to life for first degree murder; a concurrent term of three years for assault with a firearm; and concurrent terms of two years each for unlawful possession of a firearm and being an accessory after the fact. The court also ordered defendant to pay $8,557.42 in direct victim restitution for funeral expenses, as well as other fines and fees.
On appeal, defendant argues the court misinstructed the jury on aiding and abetting murder. Defendant also contends he was improperly convicted of being an accessory. Defendant challenges his concurrent sentences on counts 2, 3, and 4, and the direct restitution award.
The parties agree the abstract of judgment should be corrected to show defendant was convicted by a jury, not in a bench trial. Subject to that modification, we affirm the judgment.
II
STATEMENT OF FACTS
Tanisha Griffin and Tamara Lester were best friends. Griffin was the godmother to Lester's son, Ross. Lester was married to defendant but Griffin is the mother of defendant's youngest child. Griffin was also the victim's girlfriend.
On April 2, 2014, Griffin lived with four of her children and Anthony Murrell on Parma Street in Desert Hot Springs. Murrell and Ross were friends. Murrell and Ross each had a young child, about one or two years old.
Griffin testified that Capacchione had just been released from prison and, while he was visiting her on the afternoon of April 2, 2014, they were drinking, using drugs and having sex. Griffin testified that Ross became upset with Capacchione when he walked around naked in front of children. During a fight, Ross and Capacchione went outside on the street and Ross hit Capacchione with a chair.
Murrell testified that Ross had come over to the house that afternoon with his baby. Also in the house were Murrell's spouse, Keshone Sullivan, Griffin's son, Ykezio, the two babies, and Griffin's young daughter. Murrell saw Capacchione walk out into the living room naked and seemingly high from using drugs. Murrell and Ross confronted Capacchione and told him to put on some clothes, which he did, and then apologized. Murrell testified that Ross was still upset and called defendant to say Capacchione was walking around naked. Ross and Capacchione both left the house and, out on the street in front, took swings at each other.
Around 6:00 p.m. on April 2, 2014, police responded to a report of two men fighting on Parma Drive. The dashboard camera shows Ross throwing down a chair when the police arrived. Police separated Ross and Capacchione and spoke with each of them. Police determined Capacchione was on parole. Ross claimed they had been slap boxing. Capacchione said he got the mark on his face when he fell. Ross apologized and said he did not want Capacchione to go to jail. No one told the police about Capacchione being naked.
Lester and defendant arrived in separate vehicles while the police were still there. Defendant greeted Officer Michael Chilner, whom he knew, and shook his hand. Believing the situation was defused, police left the scene after about 10 minutes.
The reporter's transcript incorrectly uses "diffused." --------
After the police left, Ross came inside the house to collect his child. As Ross was leaving, he revived the dispute by taunting Capacchione and calling him "a bitch boy." Capacchione followed Ross outside. According to Griffin, defendant and Ross were yelling by defendant's truck. Defendant opened the truck door and retrieved a shotgun.
There was conflicting evidence about how Ross got possession of the shotgun. Griffin, Ross's godmother testified that, when Capacchione approached Ross and defendant, defendant hit Capacchione with the gun—possibly after Capacchione had grabbed it. Ross took the gun from defendant but defendant said, "Give me that shotgun back." Griffin testified at trial that defendant then announced, "I'm not down with this shit," and drove away in his truck.
Murrell was unsure where the gun came from. Murrell testified he assumed defendant had given Ross the gun. However, he also testified he saw Ross take the gun from defendant and defendant had not given it to him.
When Ross threatened to shoot Capacchione, Lester, his mother, pleaded with Ross to put the gun down. The gun jammed but then Ross fired it, and the victim fell to the ground. Afterwards, Murrell rode away in Lester's car with Ross driving. Later they met up with defendant and Lester, and switched vehicles. Lester took the gun out to the desert.
Before Officer Chilner reached the police station, he heard another radio call about fighting in the street at Parma Drive and shots fired. When Officer Chilner returned, he found Capacchione had been shot and was bleeding. Griffin said Ross had shot the victim. Capacchione died from a gunshot wound to his chest.
The neighbors who observed the confrontation said Ross was aggressive, screaming and throwing rocks at the victim. Ross took a shotgun from defendant's truck and hit the victim with the butt of the weapon. Ross was wearing a white muscle shirt and defendant did not look like him. No latent fingerprints were discovered after the gun was recovered.
Defendant's police interview
In his police interview, defendant initially denied knowing anything about what had happened. He said he left the scene before the shooting. Defendant also denied owning a weapon or having a gun in his truck. He told police Ross had said the dispute began because the victim had shaken his penis in front of Griffin's 10-year-old daughter. Defendant claimed Ross may have gotten the gun from Griffin's house.
Eventually defendant admitted Ross kept the shotgun at defendant's house and defendant brought the weapon in his truck at Ross's request. Defendant told the police Ross had snatched the gun from the truck and, while defendant had wrestled Ross for control, defendant accidentally hit the victim in the face with the butt of the gun. Defendant knew that, as a felon, it was illegal for him to have a gun. Defendant thought a baby was being molested. Defendant thought Ross just wanted to scare the victim.
III
AIDING AND ABETTING
Defendant contends that, if the jury could have found him guilty as an aider and abettor of first degree premeditated murder based on the natural and probable consequences theory, his conviction should be reversed, citing People v. Chiu (2014) 59 Cal.4th 155, 164-165. However, the jury instructions clearly provided that the jury could only convict defendant of first degree murder under a direct aiding and abetting theory. Even if the trial court improperly instructed the jury on the natural and probable consequences doctrine, there is no reasonable doubt that the jury convicted defendant based on the valid theory of direct aiding and abetting.
Both the prosecutor and the jury instructions clearly explained that defendant was only guilty of first degree murder if "he acted willfully, deliberately, and with premeditation." Otherwise, if the jury decided that defendant committed murder—but without willfulness, deliberation, and premeditation, "it is murder of the second degree." The prosecutor further explained during closing argument that "under a natural and probable consequence theory, there would be second degree murder." The prosecutor then argued: "The evidence shows it's first degree murder. Maybe get to second degree murder if you didn't think it was willful, premeditated, and deliberate." Defendant would only be guilty of second degree murder "under a theory of natural and probable consequences."
Significantly, defendant did not object at trial to the wording of the pattern jury instructions on this issue. (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 [finding forfeiture of similar claim].) The trial court had no sua sponte duty to instruct the jury differently. Although we will briefly address the issue, defendant has forfeited this claim on appeal.
In reviewing jury instructions for error, an appellate court must consider whether, based on the entire record, the trial court's instructions caused the jury to misapply the law because ambiguity, inconsistency, or deficiency so infected the entire trial that there is a reasonable likelihood that the state was relieved of its burden of proof beyond a reasonable doubt. (Waddington v. Sarausad (2009) 555 U.S. 179, 190-191; People v. Carrington (2009) 47 Cal.4th 145, 192; People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743.)
As a general rule, a person who aids another in committing a crime is considered a principal and is equally guilty of that crime. (People v. Lopez (2011) 198 Cal.App.4th 1106 1118.) "[W]hen a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person's guilt is determined by the combined acts of all the participants as well as that person's own mens rea." (People v. McCoy (2001) 25 Cal.4th 1111, 1122.) To be guilty as an aider and abettor, a person must act knowing the criminal purpose of the perpetrator and with an equivalent intent or purpose. (People v. Beeman (1984) 35 Cal.3d 547, 560.) After the California Supreme Court's decision in Chiu, "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine." (People v. Chiu, supra, 59 Cal.4th at pp. 158-159.)
In Chiu, the California Supreme Court noted that it had previously upheld the natural and probable consequences doctrine with regard to attempted murder. In People v. Favor (2012) 54 Cal.4th 868, 872, the court held it was proper to find an accomplice guilty of attempted murder with premeditation where the instructions only referred to "attempted murder," i.e., without reference to premeditation, as a natural and probable consequence. (People v. Chiu, supra, 59 Cal.4th at p. 162.) The court stated that premeditation for attempted murder, a feature of section 664, subdivision (a), was a penalty provision and not an element of the offense. The court concluded, based on this distinct feature created by the Legislature, that an accomplice could be liable for the perpetrator's premeditation, regardless of whether the premeditation was a natural and probable consequence. Instead, a jury should determine whether an accomplice was liable for "attempted murder" as a natural and probable consequence, and then determine if the attempted murder was premeditated, based on the perpetrator's mental state. (Ibid.)
The Chiu court held that Favor did not require the same result with regard to first degree murder because premeditation involved an element of the offense not just a penalty provision. (People v. Chiu, supra, 59 Cal.4th at p. 163.) Further, the court found there was no statutory provision like the one in Favor that involved the determination of legislative intent as to whom a statute applied. (Ibid..)
Instead, Chiu court looked to the statutory, doctrinal, and common law underpinnings of the natural and probable consequences doctrine: "In the context of murder, the natural and probable consequences doctrine serves the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing." (People v. Chiu, supra, 59 Cal.4th at p. 165.) The California Supreme Court, however, found that public policy lost its force when applied to premeditated murder, because the additional elements of willfulness, premeditation, and deliberation are connected to the perpetrator, not the accomplice. (Id. at p. 166.) Thus, the California Supreme Court held that punishment for second degree murder was commensurate punishment for one who aids and abets a target crime that naturally and foreseeably results in a first degree premeditated murder. However, accomplices could still be found guilty of first degree murder for directly aiding and abetting a premeditated murder. (Ibid.)
Here, the jury instructions made clear that defendant could not be guilty of first degree murder based on the natural and probable consequences doctrine. The jury was instructed on two theories under which defendant could be found guilty of murder: direct aiding and abetting, or aiding and abetting under the natural and probable consequences doctrine. The court used CALCRIM Nos. 400 and 401 to instruct on aiding and abetting and CALCRIM No. 402 to instruct on the natural and probable consequences doctrine. The court also instructed based on CALCRIM No. 521, which states that defendant is only "guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation." The prosecutor reiterated the instructions, telling the jury that it could only find defendant guilty of first degree murder if it found the murder was committed with premeditation, deliberation, and willfulness. Otherwise, under the natural and probable consequence theory, the crime would be second degree murder. Thus, the instructions were fully in accord with Chiu.
Even if the jury instructions violated Chiu, defendant's first degree murder conviction should nevertheless be affirmed because there is no reasonable doubt that the jury determined defendant directly aided and abetted Capacchione's murder. (People v. Chiu, supra, 59 Cal.4th at p. 167.) Defendant and Ross coordinated the murder. Defendant provided the murder weapon at Ross's request and struck the victim on the head before Ross shot him. There is no reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder.
IV
ACCESSORY AFTER THE FACT
Defendant contends insufficient evidence supports his conviction for being a murder accessory after the fact because he left the scene before the shooting. We conclude defendant may be convicted for being an accessory, even when he is also an aider and abettor to the underlying felony, if distinct and independent actions support each crime. The record shows defendant's accessory conviction was supported by the fact that he helped Ross elude capture and punishment after the shooting.
An appellate court must view the entire record "in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27; People v. Johnson (1980) 26 Cal.3d 557, 576.)
An appellate court must also presume, in support of the judgment, every fact that the trier of fact could reasonably deduce from the evidence, including circumstantial evidence and reasonable inferences. (People v. Clark (2011) 52 Cal.4th 856, 943.) A reversal for insufficient evidence is unwarranted unless it appears "'"that upon no hypothesis whatever is there sufficient substantial evidence to support"'" the verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
The crime of being an accessory after the fact requires that: (1) the principal, someone other than the accused, must have committed a specific, completed felony; (2) the accused must have harbored, concealed, or aided the principal; (3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment. (§ 32; People v. Plengsangtip (2007) 148 Cal.App.4th 825, 836.) "[I]n determining whether a defendant had the requisite knowledge and intent to commit the crime of accessory, the jury may consider 'such factors as [the defendant's] possible presence at the crime or other means of knowledge of its commission, as well as his companionship and relationship with the principal before and after the offense.'" (Id. at p. 837.)
A defendant may be convicted for being both an accessory and an aider and abettor if "the evidence shows distinct and independent actions supporting each crime." (People v. Mouton (1993) 15 Cal.App.4th 1313, 1324, disapproved on other grounds in People v. Prettyman (1996) 14 Cal.4th 248, 278-280.) "When a felony has been completed and a person knowingly and intentionally harbors, conceals or aids the escape of one of the felons, that person is guilty as an accessory to a felony under section 32, whatever his or her prior participation in the predicate felony." (Mouton, at p. 1324.)
Viewing the record in the light most favorable to the judgment, the four elements of being an accessory after the fact were satisfied. First, Ross committed a specific, completed felony by killing Capacchione. Second and third, defendant harbored, concealed, or aided Ross, his stepson, knowing Ross had committed the felony. Fourth, defendant intended to help Ross elude punishment. (§ 32; People v. Plengsangtip, supra, 148 Cal.App.4th at p. 836.)
We reject defendant's argument that the two convictions rest on the same facts. The prosecutor argued to the jury: "[A]s an aider and abettor, he can be [guilty of] both. And that's what we have here. He's an aider and abettor to Ross being the killer. And we have two acts: The act of supplying the gun in which he knew [Taireece] Ross was going to shoot Capacchione, and the act of picking his son up after the crime is committed."
Defendant also argues that because he was still fleeing from the scene, he cannot be held liable as an accessory. However, Ross and defendant independently left the scene in two separate vehicles. Defendant then met up with Ross and drove him away and Ross was arrested when he was hiding in defendant's house. Defendant's initial flight and his subsequent actions to help Ross escape were distinct acts. Because the evidence shows distinct and independent actions supporting each crime, defendant's conviction for being an accessory after the fact is valid. (People v. Mouton, supra, 15 Cal.App.4th at p. 1324.)
V
CONCURRENT SENTENCES
Defendant next argues that his concurrent sentences for counts 2, 3, and 4 should have been stayed pursuant to section 654. Respondent disagrees because defendant was not punished for the same conduct. Section 654 "prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective." (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) Concurrent sentences do not violate section 654 if a defendant is not being punished twice for the same conduct. (People v. Cardenas (1982) 31 Cal.3d 897, 913-914.) If defendant harbored multiple independent criminal objectives, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Here defendant committed four separate acts resulting in four independent offenses. The conviction for first degree murder was supported by defendant's act of providing Ross with a weapon. The conviction on count 2 for assault with a deadly weapon was supported by evidence that defendant either hit Capacchione with the butt of the shotgun or pointed the gun at him before handing it to Ross. The count 3 conviction for being a felon in possession of the gun was supported by defendant transporting the gun to the scene. Finally, the conviction on count 4 for being an accessory after the fact rested on independent facts that took place after defendant had fled the crime scene. Thus, defendant's concurrent sentences for counts 2, 3, and 4 did not violate section 654.
VI
RESTITUTION
Defendant contends that his trial counsel was ineffective for failing to object to the lack of notice or documentation to support the victim restitution amount to Mario Cruz. At the sentencing hearing, the prosecution requested that defendant be ordered to pay restitution of $8,557.42 to Mario Cruz, Capacchione's brother, for the cost of the victim's funeral. Cruz had submitted that amount to the Victim's Crimes Government Compensation Board. However, Cruz was not present at the sentencing and there was no supporting documentation. Nevertheless, defense counsel agreed to submit on the issue. The trial court then ordered defendant to pay Cruz $8,557.42 for the funeral expenses subject to a hearing if requested.
By law, defendant was entitled to request a hearing on the amount of the restitution. (People v. Scroggins (1987) 191 Cal.App.3d 502, 508.) However, because defendant did not object to the restitution amount in the trial court, any error is deemed waived on appeal. (People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Rivera (1989) 212 Cal.App.3d 1153, 1160.)
To prevail on an ineffective assistance of counsel claim, defendant must prove that (1) counsel's performance was deficient; and that (2) the deficiency resulted in prejudice to defendant's case. (Strickland v. Washington (1984) 466 U.S. 668, 687; In re Neely (1993) 6 Cal.4th 901, 908.) Defendant bears the burden of proving that his trial counsel's performance fell below an objective standard of reasonably effective assistance. (Strickland, at pp. 686-688.) Reviewing courts must be "highly deferential" to the tactical decisions made by counsel. (Id. at p. 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.) A reviewing court may reverse on grounds of ineffective assistance of counsel only where the record affirmatively discloses no rational purpose for a lawyer's act or omission. (Lucas, at p. 437.)
Defendant must also prove that his trial counsel's deficient performance resulted in prejudice and but for the alleged mistakes defendant would have received a more favorable result. (Strickland v. Washington, supra, 466 U.S. at p. 687; Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re Clark (1993) 5 Cal.4th 750, 766.) Where the alleged errors clearly did not sufficiently prejudice an appellant, courts may reject the ineffective assistance claim without addressing any of the errors that counsel is alleged to have committed. (People v. Price (1991) 1 Cal.4th 324, 440; Strickland, at p. 697.)
Defendant's ineffective assistance of counsel claim fails on both Strickland prongs. Defendant has not proved his counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. The amount of $8,557.42 in funeral expenses was hardly excessive. Furthermore, although defendant could have requested a hearing to rebut the amount of the restitution, his attorney's failure to do so was not necessarily an error. A sentencing judge may exercise broad discretion. (People v. Baumann (1985) 176 Cal.App.3d 67, 81.) It was entirely reasonable to accept the modest amount given for funeral expenses. Had defendant demanded a hearing, the amount may have been even greater.
Defendant has also failed to show a reasonable probability that the attorney's omission affected the outcome of the case. (People v. Lewis (1990) 50 Cal.3d 262, 288.) Defendant has not met his burden of demonstrating that the restitution award was excessive. (See People v. Cotton (1991) 230 Cal.App.3d 1072, 1086.)
VII
DISPOSITION
We agree with the parties that the abstract of judgment should be corrected to reflect that defendant's guilt was determined by a jury trial, not a bench trial. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. McKINSTER
J.