Opinion
A145226
08-24-2017
THE PEOPLE, Plaintiff and Respondent, v. PATRICK SHIELDS et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. C173065A & C173065B)
I.
INTRODUCTION
Appellants Patrick Shields and Wynn Brewer appeal their convictions arising from a conspiracy to murder. They argue the trial court erred in failing to instruct the jury about the lesser included offenses of assault with a deadly weapon and voluntary manslaughter. We conclude that even if the offense of conspiracy to commit assault with a firearm is a lesser included offense under the accusatory pleading test, there was no substantial evidence of a conspiracy to commit assault presented at trial. Furthermore, any error in failing to instruct on this lesser crime was harmless as there was no prejudice to appellants. The trial court also properly refused appellants' requested instruction on conspiracy to commit voluntary manslaughter, a request unsupported by the law or the evidence presented at trial.
Brewer also appeals his three-year sentence for being a felon in possession of a firearm, arguing it should have been stayed under Penal Code section 654. The trial court did not err in imposing a consecutive sentence for Brewer's firearm possession.
All subsequent references are to the Penal Code unless otherwise identified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
The Alameda County District Attorney's Office charged Shields, Brewer, and a third defendant, Cyrico Robinson, in a four-count indictment. Count one alleged Brewer, Shields, and Robinson conspired with Davon Jackson, Willie Pope and others to commit murder. (§§ 182, subd. (a)(1), 187, subd. (a).) It also alleged an enhancement for personal use of a firearm against Brewer. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) Count two charged Brewer with attempted first degree murder of Rahim Muhammad, with an enhancement for personal use of a firearm. (§§ 187, subd. (a), §664, subd. (a), 12022.5, subd. (a), 12022.53, subd. (b).) Count three charged Brewer with being a convicted felon in possession of a firearm. (§ 12021, subd. (a).) Count four charged Shields with the attempted first degree murder of Rahim Muhammad. (§§ 187, subd. (a), 664, subd. (a).)
Section 12021 was repealed and replaced by section 29800 in January 2012. (Stats. 2010, ch. 711, § 6.)
Trial commenced on August 6, 2014. At the conclusion of the prosecution's case on October 1, the trial court granted Shields's motion to dismiss count four under section 1118.1. Prior to the jury rendering a verdict, the court granted the prosecution's motion to dismiss count two because the jury was deadlocked on that count.
Section 1118. 1 provides in pertinent part: "[A]t the close of the evidence on either side and before the case is submitted to the jury for decision, [the court] shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
The jury ultimately found Shields and Brewer guilty of conspiracy to commit murder (count one) and Brewer guilty of being a felon in possession (count three). The jury did not find Brewer guilty of the firearm enhancement in count one.
The trial court sentenced Shields to a term of 25 years to life for conspiracy. The court sentenced Brewer to a term of three years for possession of a firearm to run consecutively to 25 years to life for conspiracy, for a total term of 28 years to life.
B. Testimony at Trial
Beginning in 2010, federal law enforcement agencies and the Oakland Police Department began an investigation of 40 people suspected of trafficking narcotics and guns in Oakland. In March 2011, the investigators began to monitor Brewer's and Shields's phones. The wiretap revealed that Shields, Brewer, "Twan" Jackson, John Sloan, and Willie Pope were seeking to avenge the shootings of Dwight Hilton and Terry Austen. Austen and Hilton had been shot on 35th Avenue in Oakland on May 6, 2011.
Brewer's nicknames are Dubb C. or Little Dubb.
Shields's nicknames are Nickel, or P. Nickel.
Terry Austen's last name is spelled both "Austin" and "Austen" throughout the record. For consistency, we adopt the usage "Austen" in this opinion.
The conspirators shared close relationships with each other and the two men who were shot. Shields and Brewer were long-time friends. Jackson was Shields's cousin. Shields testified there were rumors that Muhammad shot Austen and Hilton. Shields had watched Austen grow up and Hilton was mentally challenged, so he was upset someone had targeted them.
Muhammad's nicknames are Heem or Li'l Heem.
According to Brewer, he was planning to confront Muhammad because he had heard Muhammad shot his younger brother, Hilton. Brewer described both Jackson and Sloan as being like brothers to him.
On May 17, 2011, Shields spoke to Austen, who told him that Muhammad had posted a taunting message on Facebook stating: "I bet you and your partner won't bounce out on nobody no more nigga." Shields told Austen that they had been looking for him all day and night and said, "[m]essage the bitch ass nigga tell him to come outside." Shields told Austen to "watch TV" because they were "about to get on."
Later that night Shields received a call from Pope, who told him that he had located Muhammad and he was headed over there to shoot him. Pope called Shields and said he "got the little nigga" (meaning Muhammad) and he had a "line on him. It's official." He told Shields that he was at 35th and Brookdale and Shields responded that they were "sliding right now," meaning they were on their way to do violence. Approximately 25 minutes later, Pope called again and said "this nigga just run out the house and hit the gate" on 35th (meaning he jumped the fence). Pope told Shields that he (Muhammad) "bounced in a black Park Avenue," and Shields responded "he bounced with Mikey." Shields then relayed this information to an unidentified number, stating "nigga Mikey . . . just picked up the nigga Heem."
Shields described Pope as a "grimy, slimy type of person," who "would basically do or say whatever."
Shields then called Austen and told him "we got you nigga, you feel me?" He told Austen it is "all the way turned up," meaning they were at maximum conflict.
From the wiretapped calls, the surveillance team determined someone was going to be shot on May 17, 2011. By the time officers arrived to 35th Avenue, 25 to 30 rounds had been fired at Muhammad. Muhammad fled, unharmed, but the shots hit a 14-year-old girl, a 17-year-old girl, and a man.
The following day, Shields talked to Sloan about locating Muhammad. Shields testified he had an agreement with Sloan and Brewer to help them find "Rico the Rapper's" (Robinson's) house but not to kill Muhammad.
On May 18, 2011, in a recorded call, Brewer said "I'm fittin' to go grab this biscuit bro," and he admitted he was talking about getting a pistol. He claimed, however, he got the pistol to confront Muhammad and to protect himself. He testified his "intention was never to kill Rahim, never."
Shields testified that when Brewer said he was planning to grab a biscuit, he thought he was referring to drugs.
After the call, Brewer purchased two guns from someone named Omar in San Leandro. Brewer kept one gun and gave the other one to Sloan.
Brewer normally drove a Mercedes, but he did not want to draw attention to himself, so he borrowed his brother-in-law's Toyota Camry. Brewer was in a Camry with Jackson and Sloan.
Brewer identified his voice on a call to Shields saying that they were going to apartment G and he asked if anyone inside would be armed. Brewer knew they were going to Rico Robinson's house. Brewer was concerned that he might get shot. Shields told him that nobody had guns except maybe Muhammad. Brewer responded: "Little .380, that shit ain't nothin'." Brewer explained that he was not concerned about Muhammad's .380-caliber gun.
Shields talked to another person that evening and got information about Rico's apartment, which he relayed to Brewer and Sloan. Shields told Brewer that Rico's house was on Pleitner Avenue in Oakland. Shields's contact person told him that they should wait until Muhammad left the apartment because there was a baby inside. Shields told Brewer and Brewer responded, "Tell Rico we are on our way." Shields replied that "[h]e buzzing us in." He then told Brewer that Muhammad was coming out of the apartment in 20 minutes. At trial, he claimed that this statement was a lie and he did not know if or when Muhammad was coming out.
In a phone call at 10:16 p.m. Shields said: "Make sure you all get the nigga for sure. Get the nigga, man." Brewer responded, "Oh, I'm definitely gonna do it. That's why I'm gonna do this myself." At trial, Brewer contended that this meant he wanted to talk to Muhammad himself because he was concerned what someone else might do to him.
Shields testified that if Muhammad shot Hilton then he wanted them to shoot him in the legs. When he told Brewer to "Make sure you all get the nigga for sure," he meant he wanted them to put him in the hospital.
In a call to Brewer at 10:20 p.m., Shields stated, "[W]e probably just gonna follow you over there or something and just clean up or something." He testified that he was not sure what he meant when he said that, but "it means there's no agreement to murder anybody because everyone knows you can't clean up a murder scene." He likely meant he wanted to assist them. On the call, he next stated, "[c]ause everybody in the house knows us." But he claimed he never left his "trap" in Oakland and drove over there.
In a call at 10:24 p.m., the plan changed to confront Muhammad when he came out to get into a red coupe parked on Pleitner Avenue. Brewer instructed Jackson to make a U-turn so they would be in a position to see Muhammad coming out to the car. In the call, Brewer said, "Yeah, it's over. It's over for him, bro." Brewer admitted he was talking about Muhammad but claimed he was just trying to appear tough and that he had control of the situation.
Police intervened before Muhammad came out to the car. When Sloan, Brewer and Jackson were stopped by police, Brewer ran from the car with a pistol in his hand. He threw the gun away as he was running because he did not want to be caught with a gun. Both Sloan and Jackson ran and were shot by police, resulting in their deaths.
C. Jury Instructions
Shields's counsel requested an instruction on voluntary manslaughter. The court stated that it would be guided by People v. Swain (1996) 12 Cal.4th 593 (Swain), which held conspiracy to commit murder requires the intent to kill and thus cannot be based on a theory of implied malice. It also relied on People v. Cortez (1998) 18 Cal.4th 1223 (Cortez), which held the mental state required for conspiracy to commit murder is premeditation and deliberation. "Hence, all murder conspiracies are Conspiracy to Commit Murder of the First Degree."
Counsel asked that the court instruct that murder does not have to be willful, deliberate and premeditated. The court responded that counsel's request made "absolutely no sense." The court stated that the instruction requires a specific intent to enter into an agreement and the specific intent to commit murder with malice aforethought. There is no such thing as a conspiracy to commit manslaughter.
Defense counsel then argued that what actually happened in this case was conspiracy to commit assault, which had not been charged. The trial court responded, "Well, if that's your argument, then you have to argue they're entitled to a verdict of not guilty." The court reminded counsel that assault is not a lesser-included offense of murder or attempted murder. The court stated that it might be a lesser-related offense if the prosecution would agree to it. The prosecutor stated that he would not agree to such an instruction.
The court stated a defendant has no right to an instruction on a lesser-related offense even if he requests it, and it would have been supported by substantial evidence because California law does not permit a court to instruct concerning an uncharged lesser-related offense unless both parties agree to it.
III.
ARGUMENT
A. Overview of the Instructional Error Claims
On appeal both appellants argue the trial court erred in not instructing the jury on conspiracy to commit assault with a firearm as a lesser included offense of conspiracy to commit murder. Appellants further argue the trial court erred in refusing their request for an instruction on conspiracy to commit voluntary manslaughter as a lesser included offense of conspiracy to commit murder. Additionally, Shields argues the failure to instruct on the lesser offense violated his constitutional right to present a defense at trial.
"On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense. [Citation.]" (People v. Souza (2012) 54 Cal.4th 90, 113 (Souza).) "For purposes of determining a trial court's instructional duties, we have said that 'a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]' [Citations.]" (People v. Smith (2013) 57 Cal.4th 232, 240.) The court can apply one of two tests to determine if a lesser offense is necessarily included in a greater offense: the elements test and the accusatory pleading test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) The elements test is satisfied if the greater offense cannot be committed without also committing the lesser offense. (Ibid.) "Under the accusatory pleading test, a lesser offense is included within the greater charged offense ' "if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." [Citation.]' [Citations.]" (Id. at pp. 288-289.)
B. The Trial Court Did Not Err in Failing to Instruct on a Lesser Included Offense of Conspiracy to Commit an Assault, and Even Assuming Error, It Was Harmless
The elements for the crime of conspiracy are " 'proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy.' [Citation.]" (People v. Russo (2001) 25 Cal.4th 1124, 1131 (Russo).) The prosecution must prove the commission of an overt act, but "the jury need not agree on a specific overt act as long as it unanimously finds beyond a reasonable doubt that some conspirator committed an overt act in furtherance of the conspiracy." (Id. at pp. 1128, 1131.)
A conspiracy to commit murder does not require a firearm so under the elements test, conspiracy to commit assault with a firearm is not a lesser included offense of conspiracy to commit murder. (People v. Cook (2001) 91 Cal.App.4th 910, 918-919 (Cook).) There is, however, a split of authority on the application of the accusatory pleading test in conspiracy cases. Appellants ask us to disregard this district's decision in People v. Fenenbock (1996) 46 Cal.App.4th 1688 (Fenenbock) in favor of the Third District's reasoning in Cook, supra.
In Fenenbock, Division One held that in determining whether a lesser offense is necessarily included in the offense that is alleged to be the target of the conspiracy, courts should consider only "the description of the agreement within the accusatory pleading, not the description of the overt acts[.]" (Fenenbock, supra, 46 Cal.App.4th at p. 1709.) "The offense of conspiracy requires not only the intent to conspire, but also the specific intent to commit the planned offense. [Citation.]" (Id. at p. 1707.) If the court were to accept the defendants' theory that the jury should have been instructed on second degree murder, then the conspirators had no specific intent to kill and they could not be convicted of conspiracy to murder. (Ibid.; Swain, supra, 12 Cal.4th 593.)
In a conspiracy prosecution, "[i]t is the agreement, not the overt act in furtherance of the agreement, which constitutes the offense." (Fenenbock, supra, 46 Cal.App.4th at p. 1709.) An overt act need not be a criminal offense and need not be committed by the defendant, so "the description of the overt acts in the accusatory pleading does not provide notice of lesser offenses necessarily committed by the defendant." (Ibid., fn. omitted.) Where the information alleged only that the defendants conspired to murder the victim, there was nothing to indicate an agreement with a lesser objective, and the trial court was not required to instruct sua sponte on conspiracy to commit assault. (Ibid.)
By contrast, in Cook, the Third District held that the overt acts alleged in the accusatory pleading can provide notice of lesser included offenses. (Cook, supra, 91 Cal.App.4th at pp. 920-921.) In Cook, the information charged the defendants with conspiracy to commit murder and alleged several overt acts, including the defendants acquired a gun, and shot the two victims, killing one and wounding another. (Id. at pp. 914-915, 919, fn. 22.) The court held the overt acts gave notice that the defendants were charged with conspiracy to commit murder by means of a firearm. "[W]hen murder is alleged to have been committed by means of a firearm, it cannot be so committed without also committing an assault with a firearm." (Id. at p. 920.) The appellate court held that, under the accusatory pleading test, the trial court had properly instructed the jury that conspiracy to commit assault with a firearm was a lesser included offense of conspiracy to commit murder. (Ibid.)
Applying the reasoning of Fenenbock, the information here alleged six overt acts, only three of which involved use of a firearm. It alleged Brewer and Sloan armed themselves with firearms, and unknown conspirators fired shots the previous day on May 17, 2011. In order to convict appellants of conspiracy to commit murder, the jury was required to find a single overt act in furtherance of the conspiracy and "need not agree on a specific overt act." (Russo, supra, 25 Cal.4th at p. 1128.) The jury could have convicted appellants of conspiracy to commit murder on the basis of an overt act that did not involve a firearm, such as driving to Pleitner Avenue.
Yet assuming that Cook is applicable in this case, and the accusatory pleading test was met, we conclude nevertheless that the trial court did not err in refusing to instruct the jury on assault with a firearm as a lesser included offense to conspiracy to commit murder. There was no substantial evidence that Brewer and Shields could be guilty of conspiracy to commit assault with a firearm but not conspiracy to commit murder. (See People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
The only evidence of an intention to commit assault was Brewer's and Shields's testimony that sought to explain away the wiretapped calls. Brewer testified that he did not intend to kill or assault Muhammad; he only intended to confront him. Shields testified that if Brewer discovered Muhammad shot Hilton, then he wanted them to shoot Muhammad in the legs. But all of the wiretapped calls contradicted this testimony. In the calls, none of the conspirators make any mention of attempting to assault or injure Muhammad. All of their statements evidence their intent to murder him. Shields told Pope: "[H]e gonna . . . be through before the end of the night." Shields stated: "Make sure you all get the nigga for sure. Get the nigga man." And Brewer responded: "Oh, I'm definitely gonna do it. That's why I'm gonna do this myself." Shields instructed Brewer to "Fill that mother fucker up then, man." Brewer said: "Yeah, it's over. It's over for him, bro."
While there was abundant evidence that the object of the conspiracy was murder, the only evidence that the object was assault was Shields's self-serving testimony at trial. A "trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed." (Birks, supra, 19 Cal.4th at p. 112.) There was no substantial evidence that only conspiracy to commit assault with a firearm was committed.
Even if there was sufficient evidence to require the giving of an instruction on a lesser included offense of conspiracy to commit an assault, we conclude that any such error was harmless. "Our precedent holds that an erroneous failure to instruct the jury on a lesser included offense is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 837 . . . , and that evidence sufficient to warrant an instruction on a lesser included offense does not necessarily amount to evidence sufficient to create a reasonable probability of a different outcome had the instruction been given. [Citations]." (People v. Banks (2014) 59 Cal.4th 1113, 1161 (Banks), abrogated on other grounds People v. Scott (2015) 61 Cal.4th 363, 391.)
Shields argues that error in failing to instruct on a lesser included offense is properly reviewed under the more stringent standard set forth in Chapman v. California (1967) 386 U.S. 18, which requires reversal unless the reviewing court determines that the error was harmless beyond a reasonable doubt. We conclude that the court's failure to instruct on assault with a deadly weapon was harmless under either standard.
In Banks, the defendant argued that the trial court erred in failing to instruct the jury sua sponte on second degree murder as a lesser included offense of felony murder. (Banks, supra, 59 Cal.4th at p. 1157.) Our Supreme Court found that under the accusatory pleading test, second degree murder was a lesser included offense of felony murder as charged. (Id. at p. 1160.) The court stated that although the evidence of second degree murder was not particularly strong, it was sufficient to warrant the instruction. (Ibid.) The court, nevertheless, found the error harmless. (Id. at p. 1161.) "Here, there is no reasonable probability that the evidence of an argument between defendant and Foster, minimal as it was, would have led the jury, had it been properly instructed, to conclude that defendant shot Foster at the ATM out of malice unrelated to any robbery. As the trial court observed, even though there was 'some evidence' otherwise, the far more plausible inference is that the 'fellow was killed at the A.T.M. to try to get money.' Thus, the trial court's failure to instruct on second degree murder was harmless." (Ibid.)
Like Banks, any error by the trial court in failing to instruct on a lesser included offense here was harmless given the evidence before the jury. Shields testified that he was assisting Brewer and Sloan in locating Muhammad. After talking to Shields, Brewer went to purchase two guns in order to confront Muhammad. Brewer kept one gun and gave the other one to Sloan. In the wiretapped calls, he stated that he was unconcerned that Robinson owned a .380-caliber handgun.
Brewer normally drove a Mercedes, but he did not want to draw attention to himself, so he borrowed his brother-in-law's nondescript Toyota Camry. Brewer had Jackson drive the car and Sloan was armed with a gun provided by Brewer. Brewer and Shields decided to ambush Muhammad as he was coming out to a car, rather than enter Robinson's apartment where a baby might be present.
Shields expressed his intent to murder Muhammad in his conversation with Austen where he stated: "[Y]ou watch TV, nigga we about to get on." After Shields obtained a lead on Muhammad's location he said, "it's all the way, all the way turned up," meaning "it's on. We're at maximum conflict."
Additionally, the jury heard evidence that the conspirators fired 25 to 30 rounds of ammunition at Muhammad the day before. An Oakland Police Department captain testified that in listening to the wiretapped calls, he knew the conspirators were planning to kill someone on May 18, 2011.
Finally, our Supreme Court has rejected Shields's argument that the failure to provide a lesser included offense instruction violated his constitutional rights. The proposition that the failure to instruct on a lesser included offense "violated the United States Constitution is unavailing under our precedents." (Banks, supra, 59 Cal.4th at p. 1161.) "We conclude that the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility." (People v. Breverman (1998) 19 Cal.4th 142, 165.)
C. It Was Not Error for the Trial Court to Refuse to Instruct On Conspiracy to Commit Voluntary Manslaughter Because that Crime Is Not a Lesser Included Crime to Conspiracy to Commit Murder
Appellants argue the trial court erred in denying the defense request for an instruction on conspiracy to commit voluntary manslaughter. Appellants contend that because voluntary manslaughter is a lesser included offense of murder, then conspiracy to commit voluntary manslaughter is a lesser included offense of conspiracy to commit murder.
The trial court rejected this argument, finding there is no crime of conspiracy to commit voluntary manslaughter. The trial court relied on Swain, supra, 12 Cal.4th 593, which held conspiracy to commit murder requires the intent to kill and thus cannot be based on a theory of implied malice, and Cortez, supra, 18 Cal.4th 1223, which held the mental state required for conspiracy to commit murder is premeditation and deliberation. "Hence, all murder conspiracies are Conspiracy to Commit Murder of the First Degree."
Appellants argue that Swain and Cortez do not resolve the issue of when an instruction on conspiracy to commit voluntary manslaughter is required "if such a crime exists." They argue that Cortez held that conspiracy to commit murder could not be predicated on second-degree implied malice murder, but did not decide whether any form of second degree murder was precluded, including voluntary manslaughter.
Our Supreme Court set forth the issue in Cortez: "In . . . Swain[, supra,] 12 Cal.4th 593 . . . , we held that the crime of conspiracy to commit murder requires a finding of unlawful intent to kill, i.e., express malice, and that such offense cannot be committed if the underlying criminal objective is second degree implied malice murder. (Id. at p. 603.) Left open in Swain was the question of whether the crime of conspiracy to commit murder is further divisible into degrees with differing punishments, or whether it is a unitary offense for which the punishment is that prescribed for murder in the first degree in every instance. (Id. at p. 608.) We granted review in this case to decide that question. We conclude all conspiracy to commit murder 'is necessarily "conspiracy to commit [premeditated] first degree murder" ' (id. at p. 609) and is therefore punishable in the same manner as first degree murder pursuant to the provisions of Penal Code section 182." (Cortez, supra, 18 Cal.4th at p. 1226, italics omitted.)
Appellants' argument that the holding in Cortez did not address whether there may be a crime of conspiracy to commit voluntary manslaughter is misplaced. The analysis and reasoning in Cortez is premised on the principle that conspiracy to commit murder is a specific intent crime requiring the intent to commit murder. It cannot be proven with implied malice or a mental state without malice. Manslaughter "is the unlawful killing of a human being without malice." (§ 192, subd. (a).) Therefore, voluntary manslaughter cannot satisfy the specific intent for conspiracy to commit murder.
Appellants cite People v. Berry (1976) 18 Cal.3d 509 (Berry), which is inapposite here. Berry is not a conspiracy case and involved the sufficiency of the evidence required for a jury instruction on voluntary manslaughter. (Id. at p. 518.) We reject appellants' contention that Cortez cannot be reconciled with Berry because the two decisions address different issues. Appellants here were charged with conspiracy to commit murder, and "all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder" (Cortez, supra, 18 Cal.4th at p. 1237), whereas the defendant in Berry was charged with the crime of murder, which has varying degrees and mental states.
Even if Berry were applicable here, the evidence before the trial court did not support an instruction based upon provocation or heat of passion. " '[T]he factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation.' [Citation.]" (People v. Rangel (2016) 62 Cal.4th 1192, 1225 (Rangel).) "To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection. . . . [T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene." (People v. Beltran (2013) 56 Cal.4th 935, 949, italics omitted.)
In Rangel, the court found no substantial evidence of provocation when two weeks had elapsed between an earlier murder and the retaliation. The defendant had armed himself, recruited others to help him and drove around looking for the victim's car. (Rangel, supra, 62 Cal.4th at p. 1225.) Like Rangel, the provocation here—the shootings of Austen and Hilton—occurred 12 days before the attack on May 18. During that time, Brewer had taken a trip to Las Vegas. On the day of the attack, Brewer had driven his children to school and gotten a haircut, manicure, and pedicure. After speaking to Shields, Brewer purchased two guns and enlisted Sloan and Jackson to participate. He switched from his car to a nondescript Camry.
Shields located Muhammad and decided when it was the right time to approach him. Shields tracked Muhammad's location and relayed information to Brewer about when Muhammad was leaving Robinson's apartment.
All of these actions demonstrated planning and premeditation. "These circumstances reveal a concerted effort to plan and execute a surprise attack," not rash action. (Souza, supra, 54 Cal.4th at p. 115 [no substantial evidence of provocation where the defendants armed themselves, recruited others, and were lying in wait to retaliate for an attack on their mother].)
D. Brewer's Sentence for Being a Felon in Possession
At Brewer's sentencing hearing, the court stated that for count three, he was sentenced to a consecutive state prison term of three years. "That term is selected because the course of conduct taken by this defendant in this case and being in possession of that firearm put many lives in jeopardy and created an extremely violent situation in which two people were killed." The court imposed the three-year term to run consecutive to the 25-to-life term for count one, for a total term of 28 years to life. The court ordered the determinant three-year term to be served first.
Brewer argues the trial court erred in imposing a consecutive three-year sentence for being a felon in possession of a firearm because that sentence should have been stayed under section 654.
Brewer did not raise this argument at sentencing, but we may review it on appeal. "It is well settled . . . that the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) An "unauthorized sentence" can be corrected whenever it is brought to the reviewing court's attention, even if no objection was made below. (Ibid.)
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)
Brewer contends under People v. Bradford (1976) 17 Cal.3d 8 (Bradford), and section 654, the court cannot impose two punishments for his possession of a firearm. In Bradford, the defendant was sentenced for both assault with a deadly weapon on Officer Patrick, and being a felon in possession of a firearm for wrestling a gun away from Officer Patrick during a traffic stop. (Id. at pp. 13, 22.) The court stated that whether being a felon in possession " 'constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.' [Citation.]" (Id. at p. 22, quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821.) Bradford's possession of the officer's revolver was not "antecedent and separate" from his use of the revolver to assault the officer. (Bradford, at p. 22.) Thus, the punishment for the lesser crime, being a felon in possession, was stayed. (Id. at p. 23.)
In People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413 (Ratcliff), "the evidence showed that defendant used a handgun to perpetrate two robberies separated in time by about an hour and a half. He still had the gun in his possession when he was arrested half an hour later. Unlike in Bradford and Venegas, the defendant already had the handgun in his possession when he arrived at the scene of the first robbery. A justifiable inference from this evidence is that defendant's possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes. Section 654 therefore does not prohibit separate punishments. [Citation.]"
Unlike Ratcliff, there is no evidence that Brewer had a gun in his possession for an extended period of time before the offense. The wiretapped calls demonstrated that he went to purchase the gun before driving to Pleitner Avenue to seek out Muhammad. However, that Brewer "did not possess the weapon for a lengthy period before commission of the primary crime is not determinative. [Citations.]" (Jones, supra, 103 Cal.App.4th at pp. 1147-1148.) More importantly, and consistent with the principle discussed in Ratcliff, Brewer continued to possess the gun after all of the acts relating to the conspiracy had been stopped by the police. Brewer had the gun in his hand as he fled from the car—arguably leading to the police firing their weapons, which killed Sloan and Jackson. Therefore, his possession of the gun was not "simultaneous" with the conspiracy. (Ratcliff, supra, 223 Cal.App.3d at p. 1413.)
We note also that Brewer's status as a felon-in-possession was a distinct offense from the conspiracy to murder Muhammad. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1556 [holding the defendant's intent in possessing a firearm during a series of robberies was different from his intent when stopped by police officers where he contemplated a shootout with police].) "We see no reason why a felon who chooses to arm himself or herself in violation of section 12021 should escape punishment for that offense because he or she uses the firearm to commit a second offense. A felon who, for example, uses a gun to commit a burglary is more culpable than a felon who commits the same burglary without a gun, or than a felon who arms himself but does not commit any additional crimes. Therefore, punishment for both the possession of a firearm by a felon and for the crime committed using that firearm . . . is commensurate with [defendant's] culpability and furthers the legislative goal of discouraging firearm possession by felons." (Jones, supra, 103 Cal.App.4th at p. 1148.)
Accordingly, the trial court did not err in imposing the three-year sentence on count three consecutive to the sentence for conspiracy. The court found the consecutive sentence warranted because Brewer's continued possession of the gun once the conspiracy had ended contributed to the shootout with police, resulting in the deaths of Brewer's co-conspirators.
IV.
DISPOSTION
The judgement is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.