Opinion
D071689
09-26-2018
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD258141) APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed. Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Destin Lee Withers of first degree murder for the 2008 homicide of Randy V. and for being a felon in possession of a firearm. The court then sentenced Withers to life in prison without parole. (Pen. Code, §§ 187, subd. (a), former 12021, subd. (a)(1).) On appeal, Withers argues the court allowed improper lay opinion testimony from a jailhouse informant regarding whether Withers was joking or sincere when he wrote, "I just admitted to killing Randy??" Withers also challenges the sufficiency of the evidence of premeditation and deliberation to support his first degree murder conviction and argues the court was required to give a unanimity instruction on the firearm possession count as to which firearm he possessed. Rejecting each of these contentions, or finding any error harmless, we affirm the judgment.
Unless otherwise indicated, further statutory references are to the Penal Code.
The Legislature repealed former section 12021, subdivision (a)(1) in 2010 and reenacted it without substantive change as section 29800, subdivision (a)(1). (Stats. 2010, ch. 711, § 6, operative Jan. 1, 2012; see People v. Correa (2012) 54 Cal.4th 331, 334, fn. 1.) Because Withers was convicted under the repealed statute, which was simply renumbered, we refer to former section 12021 throughout this opinion for clarity.
FACTUAL AND PROCEDURAL BACKGROUND
Withers was addicted to methamphetamine. To support his habit, he made it a practice "of having people owe [him] money." That meant on a daily basis, he would rob drug dealers and take their money for "debts" they either owed him or owed other people.
Larry M. was like a little brother to Withers. Years before the murder, Larry had entrusted his friend Randy (the eventual murder victim) with $40 to buy marijuana, but Randy absconded with the money. Angry, Larry told Withers and others he wanted to confront Randy and invited them to throw a brick into Randy's car to get him to talk. Unbeknownst to Withers, Larry and Randy patched up their differences a day before the murder.
Withers found himself in and out of custody. After his release in January 2008, he resumed using methamphetamine. One night, he took a car that Larry recently inherited from his deceased mother without Larry's permission. This bothered Larry, who told Withers to "stay the hell away from me." Withers tried to make amends, popping by Larry's house at random times and threatening Larry's neighbors to try to make him talk. Larry continued to give Withers the cold shoulder.
On February 11, 2008, Withers was with Amanda S., who told him Mark S. owed her money. Withers asked, "what's he got?" and learned Mark was driving a Mustang. He took Amanda to collect on her debt. They met Mark at a library and drove off in the black Mustang, which belonged to Mark's girlfriend Michelle V. Withers, Amanda, and Mark eventually wound up in Lakeside at Eric Z.'s apartment, a drug hangout for Withers and his group. Mark wanted the car back, but Withers said he was keeping it as a "tax" on Mark's debt to Amanda.
Everyone in Eric's apartment got high. Withers and his friend Brian Baldino made several phone calls between 10 p.m. and midnight; based on what she heard, Shannon O. thought the two were planning to sell drugs. Withers left soon thereafter in the Mustang, saying he and Baldino "were going to handle something and they would be right back." At the time, Baldino and Withers had shaved heads and looked "close to bald."
We reject Withers's reliance on contrary testimony that his hair was longer. "We recite the evidence in the light most favorable to the jury's verdict." (People v. Banks (2015) 61 Cal.4th 788, 795.) The jury was given the standard instruction that "the testimony of only one witness"—and here we have two—"can prove any fact." (CALCRIM No. 301.)
Inside a fast food restaurant in Lakeside, employee Jesse M. saw a black Mustang or Camaro parked outside. There were two bald, white men in the car, and the passenger was armed. Believing they were getting robbed, Jesse started directing employees to the back when he heard shots fired and tires screech. He walked outside and saw a man lying in the parking lot of a nearby tattoo parlor. He went toward him and called 911.
That man was Randy, who was on his way to meet friends at a bar nearby. Inside, his friend heard the gunshots, looked outside, and saw Randy stumble toward the bar. Randy died at the hospital after life-saving efforts failed. An autopsy showed two gunshot wounds—one to his abdomen and another near the right side of his lower back. The murder weapon, a Ruger .9-millimeter semi-automatic pistol, was recovered near the restaurant weeks later by a teenage passerby. The gun had been stolen from its registered owner.
Two days before Randy's murder, Withers's friend Sam H. had seen Withers carrying a .9-millimeter handgun. Sam described it as a "standard issue, 9mm, Glock 9." During closing arguments, the prosecutor suggested Sam simply misspoke and that he had seen a Ruger, not a Glock. Defense counsel argued the murder weapon was different from the one Sam had seen. In rebuttal, the prosecutor suggested that if the weapons were different, Withers simply may have not wanted to use his "new toy" for a murder and risk "leaving evidence behind that tie[d] [him] specifically" to the scene.
Withers and Baldino returned to Eric's apartment in the Mustang about an hour after they left. They seemed anxious and tense and did not speak much. Around midnight or 1:00 a.m., Withers visited Sam, who was staying at a different apartment in the same complex. Withers told him, "This is what I want you to do: I want to make sure that [if] anybody comes to this door, no matter what, I was here with you all day." He emphasized that if anyone came, Sam was "not to let anybody know that I wasn't here. Make sure that I was here all day." Withers would not tell him why, and his tone was more aggressive than usual. He "always had a strong demeanor about him," but his eyes suggested something was different and "completely wrong." Sam followed him outside for a second and saw a black Mustang parked outside.
Not long after, Withers left with Amanda in the Mustang. They returned to get Shannon, told her not to tell Baldino she was coming, and left again. Withers drove around for most of the night "kind of crazy" and "really paranoid," repeatedly checking his mirrors. Early in the morning, an emotional Withers met his father in a San Diego parking lot, crying and upset. After a night of erratic driving resulting in three accidents, the Mustang stopped working, and Withers had to push it back to Eric's complex. At some point, a neighbor pulled her car into a spot next to the Mustang and heard Withers say, "we need to get the blood out of the car."
The next day, the Mustang's owner (Michelle) found her vehicle and confronted Withers in the parking lot. He told her, "Sorry, lady, you're shit out of luck. Your old man owes me money and until he pays me, unless you want to pay me, you won't get it back." Michelle called law enforcement who searched but did not impound the car.
In the days that followed, news of the murder spread. Eric asked Withers about the shooting. He interpreted Withers's raised eyebrow and nonchalant body language as insinuating guilt. Around that time, Withers asked Eric to help him kill Baldino for "snitching" and "talking to the cops." Eric later overheard Withers give Baldino a bullet, tell him to bite it, and Withers say, "this was going to be the bullet I was going to kill you with and consider yourself lucky."
Shannon and Withers started dating around this time. Days after the murder, Withers implied having shot someone named "Mark" near the bar while "cleaning up the streets." Although he went by the name Randy, the victim's first name was Mark. Shannon overheard Withers tell Larry about a shooting and admit being the one who pulled the trigger.
In the weeks following the murder, Withers told Amanda he needed money to leave the state because he was wanted for "that shooting in Lakeside." Sheriff's deputies interviewed Withers twice in early 2008, while he was incarcerated on unrelated charges. In the first interview Withers asked unprompted, "Is this regarding the shooting in Lakeside?" and "Am I being charged with anything?" He denied involvement, claiming he was with his brother, but mused that the victim "must've had skeletons in his closet." At the next interview, Withers admitted being with a friend named Brian (Baldino) and again offered that the victim "probably just had some skeletons in his closet." In a recorded jail call, Withers said he had "homicide breathing down my neck" about "shit out of Lakeside," but "detectives don't have enough to charge me with anything, but maybe accessory after the fact on a murder case." He said they were "interviewing everybody that was around [him] at the time and everyone's keeping their mouth shut," meaning he was "good for right now."
Three years passed. In 2011 while in custody on unrelated charges, Withers asked to speak to detectives. Detectives asked what he wanted to discuss. Withers replied, "Do you wanna wrap this thing up with the murder case or what?" He offered them what he would later admit at trial was a lie—that Baldino and Sam killed Randy to retaliate for Randy raping Sam's girlfriend. He admitted driving Baldino and Sam to the scene in "the black Mustang that was at the apartment complex" and picking them up later, but he claimed he thought they were only planning to rob, not kill, the victim. He also offered to show detectives where the murder weapon was buried.
In 2014, Withers and Baldino were charged for Randy's murder. A February 2016 information alleged that Withers committed murder (§ 187, subd. (a); count 1) and unlawfully possessed a firearm as a felon (former § 12021, subd. (a)(1); count 2). With respect to count 1, the information further alleged Withers was armed with a firearm within the meaning of section 12022, subdivision (a)(1). A multiple murder special circumstance enhancement (§ 190.2, subd. (a)(2)) was attached to count 1, based on a prior murder conviction. Finally, the information alleged Withers had two prison priors. (§§ 667.5, subd. (b), 668.)
Although he was bound over with Withers at the preliminary hearing, Baldino was tried separately.
In 2015, before the preliminary hearing, Withers was incarcerated a few cells down from his friend, David D. Resentment lingered between them from when they were previously cellmates, and they had been arguing in recent weeks. In the spirit of making amends, Withers passed a "kite," or jail note, to David's jail cell, calling it "muy caliente"—i.e., not for others to see. The kite read:
The kite was admitted at trial as exhibits 3 and 4, the front and back sides of a single sheet of paper. Because these exhibits were not included in the clerk's transcript or reporter's transcript, we directed the superior court to transmit them. (Cal. Rules of Court, rule 8.224(d).) Italicized portions denote spelling and grammatical errors in the original.
"Brew . . . . Look, my boy! Besides the 2 cards, if you want, you can give me the 4 soups back. I'll quarter (¼) you out for a week (its not much, but its something!)[.] Brew, I dont want to be on bad terms ever again - Were working through it. Im feeling Better, but understand, Im sorry if I put you through it as cellies. Its how I was made in Corcoran (chu) so thats the only way I know how to be. A lot has changed for me & Im a different person today (if you will open your eyes & see)[.] So things would be cooler if we celled up (we cant ?) today. Im an angry man bro! I fucked up & got high (then shit went south) then this came back [Randy V.] & now its all bad. Larry is such a fucking asshole[;] this was his beef & now he's running like a chicken! I'm heartbroken! Holler back & please flush this. I just admitted to killing Randy?? I love you D. Send back to me."
David turned the kite over and later signed a cooperation agreement with the prosecution. He revealed that Withers had harassed another inmate by saying, "you want to be my next Randy?" which David took to mean, "do you want to be my next murder victim?" The kite was disclosed at the preliminary hearing. A week later, Withers was recorded in a phone call claiming he had made the written admission in jest.
At trial, the prosecution presented several witnesses from Withers's inner circle who recounted his whereabouts and statements around the time of the murder. When David came to court to testify, Withers was seen mouthing, "I am going to kill you." Withers testified in his own defense and denied involvement. He admitted cruising around in a Mustang the night of the murder collecting on various "debts." He also admitted writing and sending the kite to David, but he claimed he admitted to the killing as "morbid humor" to convey that others were getting deals by "telling on" him, so he might as well do the same "and see what I can get out of it." He explained during cross examination that "people don't get shot where I'm at, . . . for no reason, so somebody must have had beef against him. So that's usually what the skeleton in the closet is." (The kite, of course, suggested Randy was killed for Larry's "beef.")
In November 2016, the jury convicted Withers of first degree murder (count 1) and possession of a firearm by a felon (count 2). It made a true finding on the allegation attached to count 1 that he was armed with a firearm, a semi-automatic handgun. In a bifurcated proceeding, the court made a finding on the special circumstance allegation that Withers had previously been convicted of murder (§ 190.2, subd. (a)(2)); it also found he had served two prison terms within the meaning of sections 667.5, subdivision (b) and 668.
In January 2017, the court sentenced Withers to life in prison without the possibility of parole for count 1, plus a consecutive six-year determinate term consisting of the three-year upper term for count 2 and one year each for the firearm enhancement in count 1 and two prison priors.
DISCUSSION
Withers appeals the judgment on three grounds. He first argues the court erroneously allowed the jailhouse informant, David, to testify over defense counsel's objection as to his perception of Withers's statement in the kite that he "just admitted to killing Randy." Next, he claims there was insufficient evidence of premeditation and deliberation to support his conviction on count 1 for first degree murder. Finally, he argues the court was required to give a unanimity instruction on count 2 to ensure that jurors agreed which firearm he possessed. We address these contentions in turn.
1. Lay Opinion Testimony
After David read the kite to the jury, the prosecutor asked him, "When you read it, how did you take it? Was this -- Mr. Withers being serious writing this to you or was he joking around?" The court sustained defense counsel's objection, stating, "Well, it's kind of speculative in terms of what Mr. Withers was thinking." This exchange followed:
"[Prosecutor]: How did you -- based on your knowledge and your relationship up until that point, how did you interpret this? Based on your knowledge, how did you read it? Because the kite was sent to you; right?
"[Defense counsel]: Same objection.
"[The court]: Because what we have is an exchange of animosity and an attempt to get back together again. Are you trying to find out if this fit into that pattern and if he treated it as genuine?
"[Prosecutor]: Correct. What his interpretation of it was, based on their relationship.
"[The court]: Okay. Overruled. Go ahead.
"[David]: I knew he was being genuine, but I took it like he was kind of trying to show off."
Withers argues the court erred by permitting David to offer improper lay opinion about whether he was serious or joking when he admitted killing Randy in the kite. He characterizes that statement in the kite as the "key issue at trial" and suggests David's testimony "virtually allowed the case to be decided by the erroneous evidence," depriving him of due process and a fair trial.
We review a trial court's ruling on the admission or exclusion of lay opinion testimony for abuse of discretion. (People v. DeHoyos (2013) 57 Cal.4th 79, 131 (DeHoyos).) If there was error, reversal is required if, viewing the record as a whole, there is a reasonable probability the jury would have otherwise reached a more favorable verdict. (Ibid. [violations of state evidentiary rules do not rise to the level of federal constitutional error], citing People v. Watson (1956) 46 Cal.2d 818, 836.) As we explain, even if there was error, it was harmless.
a. Legal Principles
A lay witness may be permitted to offer opinion testimony where it is "[h]elpful to a clear understanding of his testimony." (Evid. Code, § 800, subd. (b); see People v. Melton (1988) 44 Cal.3d 713, 744 (Melton).) "Such a situation may arise when a witness's impression of what he or she observes regarding the appearance and demeanor of another rests on 'subtle or complex interactions' between them . . . or when it is impossible to otherwise adequately convey to the jury the witness's concrete observations." (DeHoyos, supra, 57 Cal.4th at p. 130.) "A lay witness generally may not give an opinion about another person's state of mind, but may testify about objective behavior and describe behavior as being consistent with a state of mind." (Ibid.)
Applying these principles, cases have permitted lay witnesses to testify that someone looked " 'drunk,' " that participants in a discussion seemed " 'angry,' " that a person looked to be " 'trying to break up a fight,' " that a defendant looked like he wanted to reload his gun, or that during a holding cell conversation, a key defense witness looked like he intended to falsely take the blame. (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 113 [collecting cases]; People v. Sánchez (2016) 63 Cal.4th 411, 456; People v. Seumanu (2015) 61 Cal.4th 1293, 1310 (Seumanu).)
Withers relies on Melton, supra, 44 Cal.3d 713 and a case citing it, People v. Smith (1989) 214 Cal.App.3d 904 (Smith). In Melton, the prosecutor erroneously elicited testimony that a defense investigator did not believe a witness's claims. (Melton, at p. 744.) "Lay opinion about the veracity of particular statements by another is inadmissible on that issue" because "the fact finder, not the witnesses, must draw the ultimate inferences from the evidence." (Ibid.) The investigator was neither a credibility expert nor knew the witness's reputation for veracity, and the court "erred insofar as it admitted [his] testimony to indicate his assessment of [the witness's] credibility." (Id. at p. 745.) Similarly, in Smith, it was error to allow a sheriff's deputy to testify that he believed a dying declarant was being honest in naming the killer. (Smith, at p. 914.) The deputy's testimony "tended to invade the province of the jury" as to the credibility or weight to give the dying declaration. (Id. at p. 915.)
Withers's reliance on federal authorities is misplaced, as the Federal Rules of Evidence "do not establish constitutional principles binding on the states." (People v. Chatman (2006) 38 Cal.4th 344, 381, fn. 15 (Chatman).)
Both Melton and Smith found the error to be harmless. (Melton, supra, 44 Cal.3d at p. 745; Smith, supra, 214 Cal.App.3d at p. 914.)
In a more recent case, the Supreme Court clarified that " 'were they lying' " questions are not categorically improper and do not always " 'invade the province of the jury.' " (Chatman, supra, 38 Cal.4th at pp. 378, 380, 382.) A prosecutor could properly ask the defendant whether his two ex-girlfriends were lying when they claimed he bragged about the killing. Whereas Melton involved lay opinion from a person "who had no personal knowledge of the facts" (id. at p. 381), the defendant "[knew] the other witnesses well" and "might know of reasons those witnesses might lie." (Id. at p. 382.) As the court went on to explain,
"courts should carefully scrutinize 'were they lying' questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions." (Id. at p. 384.)
This case involves "was he joking" testimony, which we assume for our purposes follows the same rubric. The parties do not cite People v. Montes (2014) 58 Cal.4th 809 (Montes), which involves "was he joking" testimony about a defendant's incriminating statements. A codefendant (Varela) and his girlfriend (Speck) went out for donuts the morning after the murder and returned with a newspaper article. Spreck confronted the defendant with the article and testified how she perceived his response. (Id. at pp. 865-866.) The defendant objected that Speck's testimony vouched for statements Varela might have told her during the donut run, amounting to improper lay opinion. (Id. at p. 867.) The court disagreed and found no error under Melton:
"The prosecutor's question did not ask [her] to assess the truth of any previous statements [her boyfriend] made to her. Instead, it sought to determine how [she] perceived and reacted to defendant's comments about his lack of involvement in the shooting mentioned in the article. Her perception of his denial as a joking statement, rather than a credible and sincere denial, and her lack of a response were relevant to establishing that point." (Montes, at p. 867.)
Although Montes does not reference Chatman, Speck knew the defendant. The defendant claimed she falsely implicated him in the killing (Montes, supra, 58 Cal.4th at p. 826, fn. 14), and her testimony may have helped the jury decide whose version to believe.
Another helpful case, also not cited in the briefs, is Seumanu, supra, 61 Cal.4th 1293. An accomplice testified that during a holding cell conversation, the defendant's brother (a key defense witness) seemed open to the defendant's request that he take the blame for being the shooter. (Id. at pp. 1309-1310.) This was not improper lay opinion evidence from a lay witness. The accomplice "was a percipient witness to the encounter in the holding cell and he thus spoke from personal knowledge gleaned from his own participation in, and observation of, the event in question." (Id. at p. 1311.) He could therefore offer lay opinion testimony as to his perception of the brother's intent.
Taken together, the cases suggest that lay opinion testimony about the perceived sincerity of another individual's statements is not categorically inadmissible. Such testimony may be admissible where it is grounded in personal knowledge of the witness and may, in that context, help the jury decide who to believe. (Chatman, supra, 38 Cal.4th at p. 384; see Evid. Code, § 800.) Thus, testimony about whether the defendant was joking (Montes) or whether a defense witness looked like he planned to take the blame (Seumanu) may be admissible depending on the context. But it is improper "to elicit testimony that is irrelevant or speculative." (Chatman, at p. 384.)
b. Application
Applying those principles here, we conclude there was no abuse of discretion in permitting the prosecution to ask David a single question as to whether he perceived Withers's statements in the kite as joking or sincere. Withers and David had a 20-year friendship, a "brotherhood" cemented by matching tattoos. But like many relationships between brothers, the relationship was complex. Withers protected David in prison but had treated him poorly when they were cellmates. David acknowledged that "if you know Mr. Withers as long as I have, you would realize that he says a lot of things, some of them are true and some of them aren't." Withers seemed to agree, calling himself a "smart-ass with a very big mouth." David explained, without defense objection, that "the majority of the time he says things in a joking tone. But for those of us that know him, he could be joking, but we know he's dead serious." With this background, David interpreted Withers's joking remark to the "crazy guy" named Randy in prison, "Hey, Randy, you want to be my next Randy?" to mean, "You want to be my next murder victim?"
Withers argues this testimony was inadmissible because it suggested David had a "special skill in determining when [Withers] was in earnest or joking." Having failed to object, that claim is forfeited. (Evid. Code, § 353, subd. (a); People v. Demetrulias (2006) 39 Cal.4th 1, 19-20 [defendant's failure to object on the specific ground asserted on appeal forfeited the claim under Evid. Code, § 353, subd. (a)].)
David offered no opinion as to whether Withers killed Randy. He instead offered his perception of Withers's tone in admitting he did. This is not "simply a distinction without a difference," as Withers contends. Similar to Seumanu, David "was a percipient witness to the encounter in the [prison] and he thus spoke from personal knowledge gleaned from his own participation in, and observation of, the event in question." (Seumanu, supra, 61 Cal.4th at pp. 1310-1311; see also Montes, supra, 58 Cal.4th at p. 867.) David's perception that Withers was "being genuine" but also "trying to show off" could have reasonably "rest[ed] on 'subtle or complex interactions' between them," such that it would be "impossible to otherwise adequately convey" his observations to the jury. (DeHoyos, supra, 57 Cal.4th at p. 130.) Although David could not testify as to Withers's actual state of mind, the trial court could reasonably decide that his testimony could help the jury assess whether Withers seemed sincere (as David perceived) or was joking (as Withers claimed) in admitting to the killing. (Chatman, supra, 38 Cal.4th at p. 384.)
Moreover, even were we to conclude the court erred, any error was harmless. David offered other testimony without defense objection bearing on Withers's state of mind in sending the kite. The phrase Withers used as he passed the kite to David—"muy caliente" or "very hot"—does not suggest he was joking. Withers later pressed David to return the kite, subtly pleading, "Hey, Dave, where's the kite?" in a "worr[ied], anxious, and agitated" tone. The day David appeared for trial was the first time Withers had seen him since he turned over the kite; upon seeing him, Withers mouthed, "I am going to kill you." Based on this unchallenged testimony, a reasonable jury would likely infer that Withers was sincere in writing the kite. (See People v. Flint (2018) 22 Cal.App.5th 983, 1005 [no prejudice where challenged testimony offered facts "included in the unchallenged testimony it duplicated"].)
Further, David's perception of Withers's tone at best created a conflict. Jurors could reach their own conclusion as to whether to believe Withers's claim that it was "morbid humor," considering, among other things: (1) Shannon's testimony that Withers and Baldino left in a Mustang, acted paranoid and anxious on their return, and that Withers told Larry he was the one who pulled the trigger; (2) Sam's testimony that Withers had a .9-millimeter handgun two days before and insisted he provide an alibi immediately after; (3) Eric's testimony that with a raised eyebrow, Withers seemed to admit guilt for the killing, and that he later asked Eric to help kill Baldino for "snitching"; (4) a neighbor's testimony that Withers wanted to "get the blood out of the car"; (5) Amanda's testimony that Withers asked for money to leave the state because "he was wanted for a shooting in Lakeside"; (6) various witness accounts of Withers's bald head and whereabouts the night of the murder; and (7) Withers's shifting accounts to law enforcement, including his admission he drove the Mustang to the crime scene.
In short, as the People note, far from being the "key issue at trial" David's perception that Withers was "being genuine" in writing the kite merely complemented other compelling evidence of Withers's guilt. Even if the court erred in allowing this testimony, it is not reasonably probable the jury would have otherwise reached a more favorable result. (DeHoyos, supra, 57 Cal.4th at p. 131.)
2. Sufficiency of the Evidence
Withers argues that the evidence is insufficient to establish that Randy's killing was premeditated and deliberated to support his conviction of first degree murder. As we explain, "though the evidence is admittedly not overwhelming, it is sufficient to sustain the jury's finding." (People v. Perez (1992) 2 Cal.4th 1117, 1127 (Perez).)
"A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill." (People v. Koontz (2002) 27 Cal.4th 1041, 1080 (Koontz).) Otherwise, the classification of murder into two degrees would be meaningless. (People v. Anderson (1968) 70 Cal.2d 15, 26 (Anderson).) The jury must find sufficient evidence of deliberation, which "refers to careful weighing of considerations in forming a course of action" and premeditation, meaning the killing was "thought over in advance." (Koontz, at p. 1080.) " 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." ' " (Ibid.)
Surveying the case law, Anderson identified three categories of evidence relevant to premeditation and deliberation: (1) "facts about how and what defendant did prior to the actual killing," i.e., " 'planning' activity"; (2) facts "from which the jury could reasonably infer a 'motive' to kill the victim"; and (3) facts about the manner of the killing from which the jury could infer "that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason.' " (Anderson, supra, 70 Cal.2d at pp. 26-27.) Typically, a finding of premeditation and deliberation rests on "evidence of all three types." (Id. at p. 27.) But it could rest on a combination of types, such as "extremely strong evidence of [category] (1) or evidence of [category] (2) in conjunction with either [categories] (1) or (3)." (Ibid.; see generally, Perez, supra, 2 Cal.4th at p. 1125.)
Withers claims there was insufficient evidence for any of the Anderson categories. While we address his arguments based on the Anderson guidelines below, we note that " '[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate.' " (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294 (Gonzales and Soliz).) "The Anderson guidelines are 'descriptive, not normative,' and reflect the court's attempt 'to do no more than catalog common factors that had occurred in prior cases.' " (People v. Young (2005) 34 Cal.4th 1149, 1183 (Young).) "In developing these guidelines, the court did not redefine the requirements for proving premeditation and deliberation. [Citation.] The categories of evidence identified in Anderson, moreover, do not represent an exhaustive list of evidence that could sustain a finding of premeditation and deliberation, and the reviewing court need not accord them any particular weight." (Young, at p. 1183.)
In reviewing Withers's claim, "the relevant inquiry is whether, on review of the entire record in the light most favorable to the judgment, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt." (Young, supra, 34 Cal.4th at p. 1180.) We do not weigh credibility or resolve evidentiary conflicts. (Id. at p. 1181.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (Ibid.) Applying Anderson, sufficient evidence supports the finding that Randy's murder was premeditated and deliberated.
As to planning activity, about a week before the murder, Withers and Eric hatched a plan to rob someone at gunpoint near where Randy was shot. That plan fell through when the intended victim did not show up, and Withers said he would "just find somebody else to rob." Withers obtained a .9-millimeter handgun at least two days before the murder. In the hours before the murder, Withers and Baldino made "a lot of phone calls." They left in a "rushed" manner in the Mustang, with a firearm, saying "they were going to handle something and they would be right back." They sped away after the shooting, leaving Randy to stumble for help in the dark. From this evidence, the jury could reasonably infer that Withers " 'considered the possibility of murder in advance' and intended to kill." (Young, supra, 34 Cal.4th at p. 1183; see People v. Marks (2003) 31 Cal.4th 197, 230 (Marks) [fact that defendant entered the taxi armed "supports the inference that he planned a violent encounter"]; cf. People v. Boatman (2013) 221 Cal.App.4th 1253, 1267, 1269 (Boatman) [although defendant shot his girlfriend in the face after " 'jokingly' " pointing a loaded gun at her, he was "horrified and distraught about what he had done," directed his brother to " 'call the cops,' " and tried to resuscitate her].)
Withers's reliance on Boatman, supra, 221 Cal.App.4th 1253 is misplaced. Withers sped away after shots were fired. He threatened Sam to give him an alibi and tried telling sheriff's deputies it was Sam who pulled the trigger. Claiming he was wanted for a shooting in Lakeside, Withers asked Amanda for money to abscond. These are vastly different facts than Boatman and support a very different inference.
The kite explains the motive—this was Larry's "beef." Withers and Larry had a falling out, and Withers was trying to "get [Larry] to talk to him . . . by any means," including by threatening Larry's neighbors. Upset that Randy had stolen $40 from him, Larry told everyone he knew that he wanted to confront him and invited friends to throw a brick at Randy's car. Larry never told Withers he and Randy had reconciled. Withers regularly robbed drug dealers and people that purportedly owed him or others money. A case in point—he kept the stolen Mustang as a "tax" for a "debt" Mark allegedly owed Amanda. He told sheriff's deputies that Randy must have had "skeletons in his closet," which at trial he explained meant that "somebody must have had beef against him." The jury could infer from the kite that Larry was the one who had the "beef" against Randy and that Withers went out that night to collect on it. (Koontz, supra, 27 Cal.4th at p. 1082 [evidence showed defendant's motive was "to effectuate a robbery"].)
As to the manner of killing, Withers fired two shots at Randy's torso at close range, and one bullet struck Randy's back. These facts are "indicative of a deliberate intent to kill." (Koontz, supra, 27 Cal.4th at p. 1082.) Courts routinely find sufficient evidence of premeditation and deliberation where shots are fired at close range without provocation or evidence of struggle. (Ibid.; People v. Silva (2001) 25 Cal.4th 345, 369; Gonzales and Soliz, supra, 52 Cal.4th at p. 295; Marks, supra, 31 Cal.4th at p. 230.) And to the extent shooting Randy to one side of his back was an execution-style killing, that alone could show premeditation and deliberation. (People v. Hawkins (1995) 10 Cal.4th 920, 956-957; see People v. Romero (2008) 44 Cal.4th 386, 401 [killing was "execution-style" where defendant shot victim in the back of the head without warning].)
Withers complains that there are no cases finding premeditation and deliberation on similar facts. But it has arguably been found on less. (See People v. Halvorsen (2007) 42 Cal.4th 379, 421 [defendant killed two people he barely knew by single gunshot wounds; his " 'purposive actions in driving to seek out various persons and then killing them . . . indicate[d] defendant had some motive for his killings—a method to his madness,' " and there was no provocation or struggle]; Marks, supra, 31 Cal.4th at p. 206, 230-231 [defendant made his girlfriend leave the taxi before shooting the driver (a stranger); "even if defendant had been found without any money on his person, the jury could rationally have concluded he shot [him] in an attempt to obtain money"].)
Withers distinguishes the People's cases on the ground there were no eyewitnesses to Randy's murder who could give "a detailed account of the events leading up to the shooting and thereafter." But our review is no different "in cases in which the prosecution relies primarily on circumstantial evidence." (Young, supra, 34 Cal.4th at p. 1175.) As to his complaint that "[t]he 40-dollar drug debt was obviously such a mundane matter that it would not provide the impetus for a planned homicide," "the law does not require that a first degree murderer have a 'rational' motive for killing." (People v. Miranda (1987) 44 Cal.3d 57, 87; see People v. Pensinger (1991) 52 Cal.3d 1210, 1238 ["the incomprehensibility of the motive does not mean that the jury could not reasonably infer that the defendant entertained and acted on it"].)
Withers misinterprets the record in claiming, "[e]ven the prosecutor recognized this infirmity of the evidence" by stating during her closing argument, " 'Is that the reason why somebody's life could be lost? Over $40? I don't know.' " In any event, we are not concerned with how the parties perceived the relative strength of the evidence on substantial evidence review.
Finally, we reject Withers's attempts to reweigh the evidence in his favor. He argues his nervous behavior indicated that the shooting was "shocking and necessarily unplanned," suggests Baldino may have been the actual shooter and harbored a different intent, and identifies ways the murder could have been better planned. However, if the record reasonably justifies the jury's findings, we may not reverse simply because it might also be reconciled with a contrary finding. (Gonzales and Soliz, supra, 52 Cal.4th at p. 295.) Viewed in the light most favorable to the judgment, there is sufficient evidence to sustain a verdict of first degree murder on a theory of premeditation and deliberation.
Of course, "[t]hat the location of the killing was not ideal does not negate an inference that it was planned." (People v. Casares (2016) 62 Cal.4th 808, 826.)
3. Unanimity Instruction on Count 2
Withers's final contention is that the trial court erred by failing to administer, sua sponte, a unanimity instruction with respect to count 2. Withers was convicted in count 2 under former section 12021, subdivision (a)(1) (now § 29800, subd. (a)(1)), which makes it a felony for a person who has previously been convicted of a felony to "[have] in possession or under custody or control any firearm." Citing evidence that he possessed firearms on other occasions, Withers argues the jury might not have reached agreement as to which weapon he possessed. (People v. Hernandez (2013) 217 Cal.App.4th 559, 571 (Hernandez) [failure to give unanimity instruction sua sponte on which acts constituted unlawful firearm and ammunition possession required reversal]; People v. Crawford (1982) 131 Cal.App.3d 591, 595-596 [failure to give unanimity instruction sua sponte on which of four firearms defendant possessed required reversal].)
The parties stipulated that Withers had been previously convicted of a felony.
"In a criminal case, a jury verdict must be unanimous. . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.) " 'When the prosecutor does not make an election, the trial court has a sua sponte duty to instruct the jury on unanimity.' " (People v. Leonard (2014) 228 Cal.App.4th 465, 491.)
"This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all jurors agree the defendant committed.' " (Russo, supra, 25 Cal.4th at p. 1132.) A unanimity instruction " 'is designed in part to prevent the jury from amalgamating evidence on multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' " (Ibid.; see Hernandez, supra, 217 Cal.App.4th at p. 571 ["Without a unanimity instruction, the jury could have amalgamated these facts to come to the conclusion that defendant must have had possession of a firearm that night, but disagreed on which instance constituted the charged offense. This is exactly what a unanimity instruction is designed to prevent."].)
The People argue they made an election, eliminating the need for an instruction. The jury was told: "It is alleged that the crime occurred on or about February 11, 2008. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day." (CALCRIM No. 207.) In discussing count 2 during closing argument, the prosecutor relied solely on the possession of a firearm during the murder, explaining, "[b]oth individuals in that Mustang that night had possession of the gun that was used in this murder." There was scant evidence of Withers possessing other weapons at trial. Withers testified he "carried a lot of weapons," without specifying any time period. The parties disputed whether the .9-millimeter handgun Withers showed Sam two days before the murder was in fact the murder weapon. (See footnote 4, ante.) Finally, a neighbor saw Withers with a gun in his waistband a few weeks before the shooting.
These facts are readily distinguishable from Hernandez, where the prosecutor introduced evidence throughout trial supporting two instances of possession and argued both instances to the jury during closing arguments. (Hernandez, supra, 217 Cal.App.4th at p. 571 [instruction required].) They are far closer to People v. Orloff (2016) 2 Cal.App.5th 947 where a defendant was charged with a single criminal threat, there was no indication the prosecutor referenced other criminal threats, and trial evidence of his other "vague, ambiguous statement" could not constitute a separate threat. (Id. at p. 954 [instruction not required].) We question whether this record gave rise to a sua sponte duty to provide a unanimity instruction.
Between these two cases lies People v. Melhado (1998) 60 Cal.App.4th 1529, where there was no election although the prosecutor's closing argument could be parsed to suggest a focus on a particular criminal threat. Other threats were also mentioned, and "the prosecutor did not directly inform the jurors of his election." (Id. at p. 1536.) --------
Even if we assume no election was made, any failure to provide a unanimity instruction was harmless. As the parties note, there is a split of authority as to which standard of prejudice applies. Some courts apply the Chapman standard, reasoning that the lack of unanimity instruction violates a defendant's federal constitutional rights by lowering the prosecution's burden of proof. (Hernandez, supra, 217 Cal.App.4th at pp. 576-577; People v. Wolfe (2003) 114 Cal.App.4th 177, 186-188.) Others apply the Watson standard applicable to state law error, reasoning that there is no federal constitutional right to a unanimous jury verdict. (People v. Vargas (2001) 91 Cal.App.4th 506, 562.) Without deciding which standard applies, we conclude any error was harmless even under the more stringent Chapman standard.
In convicting Withers of first degree murder, the jury made a "true" finding on the allegation under section 12022, subdivision (a)(1), which mandates a one-year enhancement for "a person who is armed with a firearm in the commission of a felony or attempted felony." Thus, it determined that "at the time of the commission" of the murder, Withers "was armed with a firearm, to wit, a semi-automatic handgun." To make this finding, all 12 jurors had to agree that "one of the principals"—meaning either one who directly committed the crime or an aider and abettor—"was armed with a firearm." (CALCRIM No. 3115.) It was told that a principal is "armed with a firearm" if he or she carries a firearm or has a firearm available for use. (Ibid.)
Withers responds that the true finding on the firearm enhancement on count 1 may have rested on vicarious liability. Under People v. Overten (1994) 28 Cal.App.4th 1497, 1501, there is no requirement for an aider and abettor to know a coprincipal is armed to be found vicariously armed under section 12022, subdivision (a)(1). He suggests he could have driven the Mustang unaware that Baldino, the passenger, was armed. Although this would have supported a "true" finding on the enhancement, to be convicted on count 2, Withers would have needed to know that Baldino was armed and have control or the right to control the firearm. (People v. Snyder (1982) 32 Cal.3d 590, 592 ["knowledge is an element of the offense"]; People v. Blakely (2014) 225 Cal.App.4th 1042, 1052 [" 'A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others.' "]; CALCRIM No. 2511.)
This argument misses the mark. The firearm enhancement was attached to Withers's conviction on count 1 for first degree premeditated murder. Most likely, the jury believed Withers shot Randy himself and thereby found he possessed that same "semi-automatic handgun" to convict on count 2. Shannon heard Withers admit he was the shooter to Larry, and Sam saw him carrying a .9-millimeter handgun two days before the murder. The scant evidence Baldino was the shooter involved the fact that Withers seemed to be the one driving most of the night, and Jesse (the fast-food employee) saw the Mustang passenger with a gun.
But even if the jury believed Baldino was the shooter and Withers the aider and abettor, it necessarily believed Withers "knew that the perpetrator intended to commit the crime" and "intended to aid and abet" in its commission. (CALCRIM No. 401.) Where premeditated murder was the only theory of first degree murder, a conviction under an aiding and abetting theory on count 1 required Withers to know Baldino intended to shoot Randy. As the People argue, "it follows that all 12 jurors agreed that appellant either possessed the gun himself or had control over the gun through Baldino at the time [Randy] was killed." Either way, the jury concluded beyond a reasonable doubt that Withers possessed a firearm on February 11, 2008 within the meaning of former section 12021, subdivision (a)(1). (See CALCRIM No. 2511 ["Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person."]; People v. Cordova (1979) 97 Cal.App.3d 665, 669-670 [circumstantial evidence supported inference that defendant constructively possessed firearm found in locked trunk of defendant's father's car that defendant had driven].)
In short, because the jury unanimously agreed Withers possessed a firearm during Randy's murder, any error in not providing a unanimity instruction sua sponte on count 2 as to which firearm Withers possessed was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: HALLER, Acting P. J. GUERRERO, J.