Opinion
B252187
03-22-2022
THE PEOPLE, Plaintiff and Respondent, v. LEO LLOYD ADAMS, Defendant and Appellant.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Amanda V. Lopez and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. TA103351, BA372321 Larry P. Fidler, Judge. Affirmed.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Amanda V. Lopez and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION FOLLOWING TRANSFER FROM SUPREME COURT
WILLHITE, J.
A jury convicted appellant Leo Lloyd Adams of two counts of first degree murder and three counts of attempted murder as an aider and abettor, with gang and firearm enhancements. In an opinion filed in June 2015, we affirmed the judgment. Thereafter, the California Supreme Court decided People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu), which held that a defendant may not be convicted of first degree murder on a theory of natural and probable consequences. In July 2015, we modified our initial opinion in light of Chiu, finding that any error caused by instructing the jury on the natural and probable consequences doctrine was harmless beyond a reasonable doubt.
The California Supreme Court granted review, and later remanded the case to this court with directions to vacate our previous decision, and to reconsider the case in light of In re Martinez (2017) 3 Cal.5th 1216 (Martinez). That case held that, where the jury is given an instruction on the natural and probable consequences doctrine, a defendant's first degree murder conviction requires reversal unless the reviewing court concludes beyond a reasonable doubt that the jury actually relied on a legally valid theory. After consideration of Martinez, in April 2018 we issued an opinion again affirming the judgment, finding beyond a reasonable doubt that the jury actually relied on the theory that appellant aided and abetted the murders and attempted murders with intent to kill.
Appellant again petitioned for review in the California Supreme Court. The Supreme Court granted review and later remanded the case with directions to vacate our April 2018 decision and reconsider the cause in light of Senate Bill No. 1437 (S.B. 1437) (Stats. 2018, ch. 1015). In August 2019, we issued an opinion affirming the judgment for a third time. Relying on People v. Martinez (2019) 31 Cal.App.5th 719, and People v. Anthony (2019) 32 Cal.App.5th 1102, we concluded that S.B. 1437 should not be applied retroactively to nonfinal convictions on direct appeal. We affirmed appellant's murder and attempted murder convictions without prejudice to his filing a petition under Penal Code section 1170.95, as enacted by S.B. 1437.
Unspecified statutory references will be to the Penal Code.
For the third time, appellant petitioned for review in the California Supreme Court. In his petition, appellant requested that the Court review, inter alia: (1) whether the provisions of S.B. 1437 should retroactively apply to cases that are nonfinal on direct appeal; (2) whether the Legislature's modification of the elements of murder under sections 188 and 189 also applies to attempted murder; and (3) whether his convictions for murder and attempted murder should be reversed based on the likelihood the jury improperly based his convictions on the natural and probable consequences doctrine. The Court granted review and later remanded the case with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775 (S.B. 775) (Stats. 2021, ch. 551). We now vacate our August 2019 opinion, and issue this opinion considering appellant's original contentions, and the additional issue concerning the effect of S.B 775. Consistent with our prior opinions in this case, we again conclude under Chiu that the error caused by instructing the jury on the natural and probable consequences doctrine as to murder and attempted murder was harmless beyond a reasonable doubt. We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In 2008, the Grape Street Crips gang was at war with the East Coast Crips gang. On September 23, 2008, Debruce Smith, a member of the 89 East Coast Crips, was at the Compton train station with his girlfriend, Jacqueline Spinks, and his best friend, Terry Dozier. Two individuals drove up to Smith and told him that there was a "grapester" behind them and that one of them "got into it with him, but he ain't nothing."
Richard Roberson was a member of the Grape Street Crips. As he walked past Smith, Smith recognized him as the "grapester" in question. Smith caught up with Roberson and the two appeared to argue. Roberson then walked past Spinks, talking on his cell phone. She overheard him mention the name Beezy or Breezy and say, "I got into it with a coaster." When Spinks asked Smith what had happened, he, too, answered, "I got into it with him." Spinks asked Smith to leave, but he refused, stating, "He wanted to call his people, I'm going to call mine." He nevertheless agreed to "walk away," and they started walking back.
When Smith's cousin, Tinnar Wilson, joined them, Smith was pacing on the platform. Roberson was standing nearby with two other individuals and was talking on his cell phone. Smith identified Roberson as a member of an enemy gang and told Wilson, "This young cat right here is trippin." As Smith headed off the platform, Roberson ran after him and made derogatory statements about Smith and his gang. Wilson offered to "fade," or fistfight, Roberson. Roberson responded, "When my homies get here, there ain't going to be no fading." Smith was on parole and did not want to fight, but he again refused to leave the area.
At some point, a black Tahoe pulled up to the station, and three women and appellant's codefendant Ronald Brim got out. Minutes later, appellant, a member of the 118th Street Watts Crips Gang whose nickname was "Beezy," arrived in a champagne-colored car. Roberson was overheard saying, "It's going down," and telling Brim, "There goes those niggas there." Brim reached in through the front passenger window of appellant's car and pulled out an automatic rifle. He said, "You bitch ass ain't going to do nothing," cocked the rifle, and fired at least 12 shots. Smith and Dozier were shot as they were running away and died at the scene. Three bystanders at the crowded station were wounded.
The black Tahoe and a gold-colored car were captured by surveillance video at the train station. Brim was arrested for drunk driving, and an officer identified his Tahoe as the one involved in the shooting. Spinks and another bystander identified Roberson in a six-pack photographic lineup. Appellant was arrested in 2010. He owned a gold Pontiac similar to the champagne-colored car involved in the shooting. Cell phone records indicated that phones registered to Brim and appellant were used near the train station at the time of the shooting and travelled away from the area afterwards. A call from a phone registered to Brim was placed to appellant's phone immediately before the shooting.
Appellant's defense at trial was that on September 23, 2008, he had been at work between 7:00 a.m. and 7:00 p.m. and could not have been at the Compton train station at about 6:30 p.m. when the shooting occurred.
Appellant, Roberson, and Brim were charged in a consolidated information with two counts of first degree murder (§ 187, subd. (a)) and three counts of willful, deliberate and premeditated attempted murder (Id., §§ 664/187, subd. (a)), with gang, multiple murder, and firearm enhancement allegations (Id., §§ 186.22, subd. (b)(1)(C), 190.2, subd. (a)(3), 12022.53, subd. (d)).
In a separate count, Brim was charged with possession of a firearm by a felon. He and appellant were tried before the same jury. Brim received the death penalty. Roberson, who was a minor at the time of the shooting, was tried separately.
The jury convicted appellant as charged, found the murders to be in the first degree, the attempted murders to be willful, deliberate, and premeditated, and the special allegations to be true. The trial court denied appellant's motion for a new trial and sentenced him to two life sentences without the possibility of parole, three life sentences with the possibility of parole, and an additional 125 years. This appeal followed.
DISCUSSION
I. Instruction on Voluntary Manslaughter
Appellant argues that the court erred in not instructing the jury, sua sponte, on voluntary manslaughter based on imperfect defense of another. His theory is that he rushed to the scene to aid Roberson, who had called for help.
Even in the absence of a request, the trial court must instruct on lesser included offenses whenever there is substantial evidence that the lesser, but not the greater, offense was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Voluntary manslaughter based on imperfect self-defense or defense of another is a lesser offense included in the crime of murder. (People v. Randle (2005) 35 Cal.4th 987, 997, overruled on a different ground in People v. Chun (2009) 45 Cal.4th 1172, 1201; People v. Barton (1995) 12 Cal.4th 186, 201.) We independently review whether the trial court erroneously failed to instruct on a lesser included offense. (People v. Avila (2009) 46 Cal.4th 680, 705.)
Initially, we disagree with respondent's suggestion that an aider and abettor is not entitled to rely on imperfect self-defense or defense of another. As respondent recognizes, in the aider and abettor context, the mens rea of each participant in a crime "'"float[s] free"'" and is independent of that of any other participant. (People v. McCoy (2001) 25 Cal.4th 1111, 1119.) Thus, an aider and abettor may be guilty of a greater or lesser homicide-related offense than the perpetrator. (Id. at p. 1122; People v. Nero (2010) 181 Cal.App.4th 504, 507.) It follows that an aider and abettor may rely on the doctrine of imperfect self-defense or defense of another to mitigate the mens rea by negating the malice element of murder. (See People v. Randle, supra, 35 Cal.4th at pp. 994- 995.)
The doctrine of imperfect defense of another requires that the defendant have "an actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury." (People v. Randle, supra, 35 Cal.4th at p. 997.) For an instruction based on this doctrine, there must be substantial evidence from which the jury could find the defendant actually had the requisite belief. (Cf. People v. Oropeza (2007) 151 Cal.App.4th 73, 82 [imperfect self-defense].) When a defendant does not testify or make out-of-court statements, substantial evidence of his or her state of mind may be found in the testimony of other witnesses. (Ibid.)
Here, no witness testified appellant rushed to help Roberson because he actually believed him to be in imminent danger of death or great bodily injury. There was no evidence that the confrontation between Roberson and Smith was escalating to a fight at the time Roberson made the phone call. Nor is there evidence Smith or anyone else was armed and threatening Roberson. To the contrary, Wilson testified that Smith did not want to fight. There is no evidence that when Roberson said he "got into it" with Smith, he meant that he and Smith had gotten into a physical altercation or that he needed help because he was in danger. Spinks repeatedly used the phrase "got into it" to mean "argue."
The evidence indicates Roberson sought to escalate what was essentially a verbal confrontation to gun warfare. That is how Wilson understood Roberson's statement that when his "homies" got to the station, there would be no fist fighting. Smith's statement that Roberson was "trippin," and the fact that Smith, too, considered calling his "homies" also indicate Roberson was overreacting and attempting to escalate the conflict rather than asking for help because he was in immediate danger. Notably, there is no evidence that Smith actually called for reinforcements or that Roberson sought help because he feared an escalation of the conflict by Smith.
Since there is no direct evidence of appellant's state of mind and the circumstantial evidence indicates Roberson did not seek help because he was in immediate danger of death or great bodily injury, it would be speculative to conclude that appellant was under an actual belief that he needed to bring an assault weapon to the train station in order to defend Roberson from such danger. The trial court was not required to present a speculative theory the jury could not reasonably have found to exist. (People v. Oropeza, supra, 151 Cal.App.4th at p. 78.) No instructional error occurred.
II. Ineffective Assistance
Appellant complains of ineffective assistance of counsel because trial counsel did not advise him of his right to testify and did not seek clarification whether appellant's prior conviction of possession of an assault weapon could be used for impeachment. The decision whether to testify "is made by the defendant after consultation with counsel. [Citations.]" (People v. Carter (2005) 36 Cal.4th 1114, 1198.) To establish a denial of the right to effective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that there was a reasonable probability of a more favorable result but for the deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-694; People v. Frye (1998) 18 Cal.4th 894, 979.)
Appellant raised the claim of ineffective assistance of counsel in his motion for a new trial. In a declaration supporting the motion, appellant stated he wanted to testify but his trial attorney advised him not to because he would be impeached with his prior conviction for possessing an assault weapon. According to appellant, counsel did not advise that the ultimate decision whether to testify was appellant's. During the hearing on the motion, counsel testified that, in his long career as a criminal defense attorney, his usual practice had been to advise his clients of their absolute right to testify; even though he did not specifically recall having done so in appellant's case, counsel saw no reason why he would have deviated from that practice. The trial court found counsel to be credible and the timing of appellant's claim to be suspect as it was "hard to believe" appellant would not have raised the issue earlier if he really had wanted to testify.
Defendant would have us redetermine issues of credibility, but we may not interfere with the trial court's reasonable factual determinations at the hearing on the motion for a new trial, as they are supported by substantial evidence. (People v. Delgado (1993) 5 Cal.4th 312, 329; People v. Rabanales (2008) 168 Cal.App.4th 494, 509.) It was reasonable for the trial court to infer that, in this case, trial counsel followed his usual practice of advising his clients of their right to testify. (See People v. Lewis (1999) 74 Cal.App.4th 662, 668 [usual practice testimony supports inference of act in conformity on particular occasion].) It also was reasonable for the trial court to discredit appellant's post-trial claim that his attorney prevented him from testifying. "When the record fails to disclose a timely and adequate demand to testify, 'a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to counsel his desire to testify, he was deprived of that opportunity.' [Citations.]" (People v. Alcala (1992) 4 Cal.4th 742, 805-806.)
Contrary to appellant's representation on appeal, counsel recalled advising appellant before trial of his right to a hearing on whether his possession of assault weapon conviction could be used to impeach him. By the time the defense presented its case, there was clear authority that possession of an assault weapon was a crime of moral turpitude that could be used for impeachment. (People v. Gabriel (2012) 206 Cal.App.4th 450, 457-458.)
The trial court's conclusion that counsel's performance was not deficient is supported by substantial evidence, as is its conclusion that appellant's testimony would not have made a more favorable result reasonably probable. Appellant was able to present his alibi defense through his co-workers and employment records, and his testimony that he was at work at the time of the shooting would have been cumulative. Appellant's claim that he could have convinced the jury he loaned his phone out is suspect, since it would have been impeached with his prior inconsistent statement to the investigating officer. We find no ineffective assistance of counsel under the circumstances.
III. S.B. 775
Appellant contends that under S.B. 775, this court must reverse his convictions of first degree murder and attempted premeditated murder. We disagree.
As discussed in our prior opinion, S.B. 1437 enacted section 1170.95, which "amend[ed] 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." (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
To this end, S.B. 1437 amended the definition of malice in section 188 to provide: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) It also added former section 1170.95, which permitted only those "convicted of . . . murder under a natural and probable consequences theory" to "file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts" when certain conditions apply. (Former § 1170.95, subd. (a).)
Through S.B. 775, the Legislature extended section 1170.95 to afford relief to persons convicted of attempted murder. (§ 1170.95, subd. (a) [permitting the filing of a petition for persons "convicted of felony murder or murder under the natural and probable consequences doctrine or . . . attempted murder under the natural and probable consequences doctrine"]; see Stats. 2021, ch. 551, § 1, subd. (a).) S.B. 775 also amended section 1170.95 to provide that a person convicted of murder or attempted murder "whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and 189." (§ 1170.95, subd. (g).)
The legislative amendments in S.B. 775 have abrogated our Supreme Court's holding that "[t]he ameliorative provisions of Senate Bill 1437 do not apply on direct appeal to nonfinal convictions obtained before the law became effective. Such convictions may be challenged on Senate Bill 1437 grounds only through a petition filed in the sentencing court under section 1170.95." (Gentile, supra, 10 Cal.5th at pp. 851-852; see Assem. Com. on Public Safety, Rep. on Sen. Bill No. 775 (2020-2021 Reg. Sess.) as amended July 6, 2021, p. 11 [disagreeing with Gentile based on the "the [general] rule . . . that a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].)
Here, the parties agree that because appellant could not now be convicted of murder or attempted murder under the natural and probable consequences doctrine, "'we must determine whether giving the instructions here allowing the jury to so convict [appellant] was harmless error.'" (People v. Sanchez (2022) 75 Cal.App.5th 191, 196, quoting Chiu, supra, 59 Cal.4th at p. 167 (Chiu).) Under Chiu, we must reverse appellants' convictions "unless there is a basis in the record to find that the verdict was based on a valid ground. [Citations.] [Appellant's convictions] must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that [appellant] directly aided and abetted" the murders and attempted murders with the intent to kill. (Chiu, supra, at p. 167, citing People v. Chun (2009) 45 Cal.4th 1172, 1201, 1203-1205; accord, People v. Aledamat (2019) 8 Cal.5th 1, 10-13.)
The Attorney General has correctly noted that we have already reached this conclusion under Chiu in our prior decisions. Specifically, we concluded that the trial court erred by instructing the jury on an invalid theory of liability under the natural and probable consequences doctrine as to both theories of murder and attempted murder. However, we found those instructional errors to be harmless under Chiu, as the record evidence demonstrated "beyond a reasonable doubt that the jury actually relied on the theory that appellant aided and abetted the murders and attempted murders with intent to kill." (People v. Leo Lloyd Adams (Aug. 8, 2019, B252187) [nonpub. opn.] p. 2, judg. vacated and cause remanded for further consideration in light of S.B. 775; accord, People v. Leo Lloyd Adams (Apr. 5, 2018, B252187) [nonpub. opn.] pp. 11-12, judg. vacated and cause remanded for further consideration in light of S.B. 1437; People v. Leo Lloyd Adams (June 26, 2015, B252187) [nonpub. opn.] opn. mod. July 15, 2015, judg. vacated and cause remanded for further consideration in light of In re Martinez, supra, 3 Cal.5th 1216.)
Mindful that appellant disagrees with this conclusion, we reach that same conclusion again. Regarding appellant's murder convictions, the jury's special circumstance finding means that it found appellant harbored an intent to kill as a matter of law. The jury was instructed with CALCRIM No. 702 that the special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)), required a finding beyond a reasonable doubt that appellant acted with "the intent to kill" for his conduct in each murder. By finding that special circumstance allegation true, the jury necessarily found appellant harbored an intent to kill as a direct aider and abettor. (See § 190.2, subd. (c); People v. Covarrubias (2016) 1 Cal.5th 838, 928.)
CALCRIM No. 702 provides inter alia that if the defendant "was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that (he/she) acted with the intent to kill for the special circumstance" under section 190.2, subdivision (a)(3), "to be true."
The record evidence also establishes beyond a reasonable doubt that the jury found appellant guilty of the attempted murders under the same theory of direct aiding and abetting. (See § 189, subd. (e)(2).) The record demonstrates that Brim and appellant showed up at the scene of the shooting within minutes of each other, and after Roberson had called for reinforcement. Appellant brought a loaded automatic rifle cocked and ready to fire. Upon retrieving the automatic rifle from appellant's car, Brim immediately fired at least 12 shots toward a group in which an unarmed rival gang member was standing. After the shooting, Brim and appellant fled the scene.
In closing argument, the prosecutor focused on the fact that appellant brought a "loaded and already cocked" assault rifle "ready to be fired" in what appellant knew was "a gang fight." The prosecutor argued these facts showed appellant had the specific intent to kill. And while the prosecutor addressed the natural and probable consequences doctrine, she strongly suggested that bringing a loaded gun was inconsistent with a lack of knowledge that the gun would be used to kill.
These facts strongly demonstrate that appellant had considered the possibility that the rifle would be used to kill persons at the train station, and had planned accordingly with a gang-related motive in mind. (See People v. Vang (2001) 87 Cal.App.4th 554, 564 [number and placement of shots by use of a high-powered weapon creates reasonable inference of an intent to kill]; People v. Lee (2011) 51 Cal.4th 620, 636 [bringing loaded gun shows consideration of possibility of violence]; People v. Campbell (1994) 25 Cal.App.4th 402, 409 [presence at scene, companionship, and conduct before and after crime are factors to consider for aiding abetting a crime]; People v. Miranda (1987) 44 Cal.3d 57, 87, disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4 [bringing loaded gun to kill unarmed victim reasonably suggests advance consideration of murder].)
Thus, on the facts of his case, we conclude beyond a reasonable doubt that the jury based its verdicts on the grounds that appellant aided and abetted first degree murder and attempted premeditated murder with the intent to kill. (See Chiu, supra, 59 Cal.4th at p. 167.) Because those theories of liability remain valid despite the changes made by S.B 1437 and S.B. 775, we again affirm appellant's convictions. (See Gentile, supra, 10 Cal.5th at p. 847 ["the Legislature intended to restrict culpability for murder outside the felony-murder rule to persons who personally possess malice aforethought"]; accord, Stats. 2018, ch. 1015, §§ 1(b), 1(d), 1(g).)
In addition to seeking a reversal of his convictions, appellant has requested that we remand this case "to the trial court with directions that he be appointed counsel in accordance with section 1170.95 and further, that he be afforded the opportunity to marshall and present evidence to support a challenge to his convictions." Appellant has cited no authority in support of this request, and we discern nothing in the legislative history of S.B. 775 that would permit this type of remedy. In the event appellant wishes to produce new or additional evidence, he must proceed under section 1170.95 by first filing a petition for resentencing in the trial court.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, P. J., CURREY, J.