Filed 10/28/26 P. v. Baker CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089257
Plaintiff and Respondent,
(Super. Ct. No. BF182586A)
v.
TYEQUEZ SHAMAR BAKER,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench and
Darren K. Indermill, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On September 14, 2020, just before 8:00 a.m., Glenn Earl Henderson, Jr., was shot
and killed while sleeping inside his white Mustang parked at Beale Park (the park) in
Bakersfield. A jury convicted defendant Tyequez Shamar Baker of premeditated murder
and other charges. The trial court sentenced defendant to a term of 80 years to life in
prison.
Defendant appeals, arguing that (1) the evidence was insufficient to prove he
committed the murder, (2) the evidence was insufficient to prove he personally
discharged a firearm, (3) the trial court erred in revoking his right to represent himself,
(4) the trial court erred in failing to instruct the jury on accomplice testimony, (5) the trial
court erred in instructing the jury as to consciousness of guilt, and (6) the trial court erred
in using the same prior conviction as a strike to double his sentence and to support a five-
year prior serious felony enhancement. We affirm.
PROCEDURAL BACKGROUND
The District Attorney of Kern County filed an information on April 1, 2021,
charging defendant with first degree murder (Pen. Code, 1 §§ 187, subd. (a), 189;
count 1), discharge of a firearm at a motor vehicle (§ 246; count 2), possession of a
firearm by a felon (§ 29800, subd. (a)(1); count 3), and possession of ammunition by a
felon (§ 30305, subd. (a)(1); count 4). The information also alleged as to all counts that
defendant had one prior “strike” conviction within the meaning of the “Three Strikes”
law (currently codified at §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and, as to
counts 1 and 2, that defendant personally discharged a firearm causing great bodily injury
(§ 12022.53, subd. (d)) and had a prior serious felony conviction (§ 667, subd. (a)).
Defendant pleaded not guilty and denied the allegations. A jury convicted
defendant of all charges and found true all enhancements in a bifurcated trial that
1 Undesignated statutory references are to the Penal Code.
2.
concluded on August 20, 2024. The trial court sentenced defendant to a term of 50 years
to life, plus 25 years to life (§ 12022.53, subd. (d)), plus five years (§ 667, subd. (a)) as to
count 1. The court imposed and stayed terms of 10 years, plus 25 years to life
(§ 12022.53, subd. (d)) as to count 2 and four years as to counts 3 and 4. In addition, the
trial court ordered defendant to pay $11,880.11 in victim restitution (§ 1202.4, subd. (f)),
$300 in restitution and suspended parole revocation restitution fines (§§ 1202.4,
subd. (b), 1202.45), $160 in court operations assessments (§ 1465.8), and $120 in
criminal conviction assessments (Gov. Code, § 70373).
Defendant filed a timely notice of appeal on January 28, 2025.
FACTS
Margaret R. walked around the park daily between 7:30 a.m. and 8:30 a.m. In the
prior six months, she saw a white Mustang parked there every morning. She described
the Mustang’s occupant as a young African-American, approximately 20 years old, who
slept in his car either stretched out in the front seat or with his head laying against the
driver’s window. The Mustang was clean and the man appeared well-groomed.
On September 14, 2020, between 7:45 a.m. and 8:00 a.m., Margaret was sitting
with her friend, Ariana L., at a picnic table in the park and saw the Mustang parked on
Dracena Street, approximately 120 feet away. She and Ariana heard three or four
gunshots. When they turned to run, Margaret saw a man standing at the driver’s side
window of the Mustang and realized that is where the shots had been fired. He was a
slim, medium-build African-American, wearing a dark color hoodie sweatshirt covering
his head, and was taller than the top of the Mustang, approximately five feet eight
inches.2 The man walked away to the left on Dracena Street toward a late model dark
2 The prosecutor showed Margaret a photograph of defendant taken by a Ring surveillance
camera. Margaret noted that while the shooter had the same build, she believed that the shooter
was shorter than the man in the photograph.
3.
green sedan (possibly a Chevrolet) parked at a stop sign at the intersection with Oleander
Avenue. The green sedan had arrived sometime after Margaret arrived at the park.
Albert S., a sewage maintenance worker, was walking from a bathroom in the park
when he heard approximately five shots and saw a man shooting into the driver’s side
window of a Mustang and then running down the street. Albert described the shooter as a
black male, approximately five feet seven or eight inches tall, with a thin build
(approximately 120 to 140 pounds). Pablo F., Albert’s coworker, heard approximately
four gunshots while sitting in a truck waiting for Albert. He looked into the side mirror
and saw a small black man, wearing a hoodie, pointing a gun into the car. When
interviewed, he told an officer that the shooter was a black male, approximately five feet
six inches tall and 120 pounds. The man fled northbound down Oleander Avenue.
Two calls to 911 occurred at 8:00 a.m. One caller, Ariana, said the shooter was
dressed in a black hoodie and that he drove away from the scene down Oleander Avenue
toward California Avenue in a green, older model Chevy. A second caller, Ignacio C.,
described the shooter as a black man with a black face covering. Demetrius A. told an
officer that he saw subjects running southbound on Oleander Avenue from the park.
Officers were dispatched to the park at approximately 8:00 a.m., and they arrived
at 8:05 a.m. They discovered that the occupant of the Mustang, later identified as Glenn
Earl Henderson, Jr., had sustained gunshot wounds to his head and neck. Henderson was
still in the driver’s seat and slumped over toward the passenger side. He did not have a
pulse and was nonresponsive, not breathing, and pronounced dead at the scene.
The driver’s side window had been shattered, and five spent .45-caliber
Winchester brass casings were recovered, four near the driver side of the Mustang and
one behind it on the sidewalk. Bullet holes had penetrated the body of the Mustang into
the passenger compartment and bullet strikes were visible on the interior doors. The
passenger door had a dent protruding from the interior to the exterior caused by a bullet.
4.
During a search of Henderson’s Mustang, officers recovered one spent projectile from the
front passenger door and another from underneath the front passenger seat.
Henderson was a security officer for a medical office building and worked from
5:00 p.m. until closing. He was a family man who slept in his car to save money for his
children and was described as quiet, calm, and soft-spoken.
A forensic pathologist testified that one bullet entered below Henderson’s left eye
and shattered his jaw as it traveled at a downward angle through his neck and lodged just
under the skin. This bullet traveled through an intermediate target first, that being the
closed vehicle window, and carried glass with it as indicated by superficial lacerations.
None of the other five wounds showed indications of glass. The pathologist testified that
this bullet wound was different from the other five wounds in that it was traveling
downward, rather than from left to right, as if he dropped his head and changed his
orientation with relation to the shooter. The pathologist theorized that Henderson was
asleep when the bullet hit him because a glass laceration on his eyelid indicated it had
been closed when hit and Henderson’s head could have been resting against the window
when he was shot.
The other five bullets travelled from left to right as if Henderson was lying across
the driver’s seat as someone shot him from outside the driver’s side window. A second
bullet entered to the rear of Henderson’s left check, traveling forward from back to front,
struck a couple of teeth and continued out through his open mouth. The third bullet
entered Henderson’s right chest, high through the muscle, and exited his right shoulder.
The fourth bullet caused a graze wound on Henderson’s left chest and continued through
his upper arm where it exited the other side. The fifth bullet entered his left chest through
the muscle edges, bruised his right lung and fractured a rib, before lodging in his upper
right arm. A sixth bullet grazed Henderson’s chin. The pathologist concluded that
Henderson was killed by multiple gunshot wounds. Bullets one and two caused large
areas of bleeding because of the lacerated carotid artery in Henderson’s neck, and the
5.
pathologist opined that Henderson would have bled out internally and externally within a
few minutes.
Detective Chad Garrett was assigned as the lead investigator for the case and
arrived at the park at 8:37 a.m. As part of the investigation, Garrett obtained surveillance
video from a residence on Oleander Avenue and identified the green Nissan Altima that
was described by witnesses. The Altima’s distinguishing features included a white
sticker in the lower right portion of the windshield, two white stickers located on both the
left and right rear passenger windows, three stickers on the rear window, a missing rear
antenna, and a driver’s side tire rim that did not match the other three tire rims.
Detectives obtained surveillance footage of the Altima as it traveled from Oleander
Avenue at 7:59 a.m. to the intersection of Ming Avenue and Ashe Road at 8:10 a.m.
Officers canvassed nearby neighborhoods and eventually found the Altima parked
at an apartment complex in the 2200 block of Cedro Court three days after the shooting.
After obtaining the license plate No. of the Altima, detectives determined that it was
registered to Albert R., who lived in one of the apartments. They contacted him at his
apartment after conducting several hours of surveillance on the Altima and having seen
no activity.
Albert told the officers that he purchased the Altima approximately one month
prior. Although he lived with Jesus R., Jesus was not in the apartment at that time.
Albert said that he had not driven the Altima since Monday, the day of the shooting, when
he drove it to work at 10:00 a.m. Albert claimed that no one else had access to the Altima
or keys, and that he did not allow anyone to drive it. He agreed to accompany the
officers to the station for further questioning and told them that no one else was in the
apartment at that time.
The officers conducted a protective sweep of Albert’s apartment while awaiting a
search warrant and saw defendant at the end of the hallway dressed in black pants and a
black hooded sweatshirt. During the subsequent search, officers recovered a
6.
disassembled .45-caliber Springfield handgun in the bathroom. The lower receiver was
found on the floor wrapped in a pair of underwear, the slide and spring were wrapped in a
towel next to the underwear, and the barrel was on the floor behind the toilet. In a
bedroom closet, officers found a magazine loaded with 11 Winchester .45-caliber bullets
and one Federal .45-caliber bullet, and single rounds of .380-, .40-, and .45-caliber
bullets.
Three spent .45-caliber casings and two fired .45-caliber bullets recovered from
the shooting were examined and compared to the reassembled .45-caliber firearm seized
from Albert’s bathroom. The spent casings and fired bullets were fired by that firearm.
The bullets in the magazine found in the bedroom closet contained the same type of .45-
caliber brass Winchester ammunition as the casings located at the shooting scene.
Albert testified that he lived with Jesus, he met defendant through a foster youth
program a few months before, and defendant visited them. Albert owned a green Nissan
Altima and let defendant drive it when they were together. Albert had worked at
Goodwill for five years, and his hours were either 9:00 a.m. to 5:00 p.m. or 8:00 a.m. to
4:00 p.m. On September 14, 2020, Albert left the apartment at 7:15 a.m. because he was
scheduled to work from 8:00 a.m. to 4:00 p.m. and had arranged for an Uber to take him.
Although he had owned the Altima for two months, he was still learning how to drive and
did not drive it to work. Albert usually parked the Altima in the parking lot on the side of
his apartment where he could see it from the first floor of the complex and often left the
keys on the kitchen counter. However, he noticed that the Altima was not in the parking
lot when he left for work.
When Albert returned home at approximately 5:30 p.m., the Altima was in the
parking lot. Defendant and Jesus were both in the apartment, and defendant said that he
had borrowed the Altima that morning. Defendant also told Albert not to drive the Altima
for a while. Albert admitted that defendant was in the apartment when the officers
arrived to talk with him. He did not know if defendant owned a gun and had not touched
7.
a gun himself. Albert denied disassembling the gun, denied he owned the underwear
wrapped around the gun, and claimed that he did not leave his towel in the bathroom; he
hung it on the closet door in his bedroom because there was no towel rack in the
bathroom. Albert did not know who the gun belonged to and did not know Jesus to have
a gun or ammunition in the apartment.
Albert had previously told the detectives that he did not know defendant’s name
but then acknowledged that it was “Ty” and described defendant as his roommate’s friend
who often visited the apartment. Albert claimed that he drove the Altima to work on
Monday (the day of the shooting) but took the bus the remainder of the week because the
Altima needed a new alternator. Albert described the route that he drove on Monday and
claimed that any surveillance cameras would show him driving.
Later, during the interview, Albert admitted to detectives that he did not know how
to drive and had purchased the Altima for people to drive him while he was learning. He
said that he left for work at 7:00 a.m. on Monday but did not take the Altima and left the
keys at home. Albert told the detectives he called for Ubers to take him to work Monday
and Tuesday and showed them the Uber receipts. Detective Garrett testified that he
viewed the Uber application on Albert’s phone and verified that Albert paid for Ubers as
he described. Albert said that the Altima was not in the parking lot when he left, and
defendant later told Albert that defendant had driven it that morning. Albert told
detectives that defendant drove the Altima regularly only when Albert was present but
also admitted that defendant drove it regularly while Albert was at work. Albert also said
that he asked his roommate about the Altima and Jesus told him that defendant had taken
it that morning. Defendant was at the apartment when Albert arrived home from work,
and defendant said he had taken the Altima that morning to get breakfast. When Albert
suggested they take the Altima to get groceries later that day, defendant said, “We’re not
going to drive it for a couple of days.”
8.
When detectives confronted Albert with the ammunition and firearm magazine
found in his room, Albert claimed that he had never touched ammunition and had never
stored a firearm, ammunition, or magazines in his room. Albert had no explanation as to
why he concealed defendant’s presence in the apartment when detectives came to talk to
him.
The vice president of human resources for Goodwill testified that their
employment records show that Albert clocked in at 8:01 a.m. on September 14, 2020.
Although it was possible that another employee could have clocked in for Albert, it had
never happened before, and the managers kept track of the employees throughout the day.
Jesus testified that he lived with Albert and had known him for five years. They
usually left the apartment door unlocked. He also knew defendant and hung out with him
every day or every other day playing video games. Jesus sometimes borrowed Albert’s
Altima and permitted defendant to drive it. Defendant also borrowed the Altima from
Albert. Although he had previously seen defendant with a gun, it was not the gun found
in the apartment. Jesus never saw either the gun, gun parts, or ammunition found the
apartment, nor did he ever touch them. Although Jesus wore blue underwear, he did not
believe that the gun was wrapped in his underwear because he did not keep clothes in the
bathroom. When asked about the towel, he admitted that it looked like his, but he kept
his towels in his bedroom and did not leave them in the bathroom.
Jesus initially testified that he did not remember whether he borrowed Albert’s
Altima on September 14, 2020, but later claimed that he did not use it that day. He had
previously told detectives that he did not use the Altima that day. Jesus usually slept until
late afternoon and did not believe that defendant was at the apartment that morning, but
defendant came by when Jesus woke between 2:00 p.m. and 3:00 p.m. Jesus had
previously told detectives that he did not see defendant at the apartment on the day of the
shooting. Defendant did not usually come by in the morning to borrow Albert’s Altima
and asked for permission before using it.
9.
DNA swabs obtained from the firearm frame, trigger, and magazine were
compared with DNA samples obtained from defendant, Albert, Jesus, and Henderson. A
DNA expert attempts to determine whether an individual can be excluded, inconclusive,
or cannot be excluded, and the latter category provides strong support for a match. The
expert compares the likelihood that the DNA belongs to one person with the likelihood it
belongs to someone else. If the DNA sample contains DNA from more than one
individual, the expert can differentiate the percentage of DNA contributed by each
individual.
As to the firearm frame, defendant could not be excluded from contributing to
80 percent of the DNA mixture and Albert could not be excluded from contributing to
10 percent of the mixture. Defendant was 11 nonillion times more likely a match than
any African-American, 18 nonillion times more likely a match than any Caucasian, and
2.5 nonillion times more likely a match than any Hispanic. Regarding the DNA swab
from the firearm trigger, defendant could not be excluded from contributing to 42 percent
of the mixture, and Albert could not be excluded from contributing to 25 percent of the
mixture. Defendant was 740 quintillion more likely a match than any African-American,
470 quintillion more likely a match than any Caucasian, and 84 quintillion more likely a
match than any Hispanic. As to the DNA swab from the firearm magazine, defendant
could not be excluded from contributing to 53 percent of the mixture, and Albert could
not be excluded from contributing to 47 percent of the mixture. Defendant was
95 sextillion times more likely a match than any African-American, 6.2 sextillion times
more likely a match than any Caucasian, and 260 quintillion times more likely a match
than any Hispanic.
The expert acknowledged that DNA on the firearm trigger and frame could have
been transferred from the underwear and towel in which they were wrapped.
Detective Garrett testified to a timeline he created with the September 14, 2020
surveillance videos. Video from a Ring camera located below Albert’s apartment showed
10.
defendant going down the stairs from Albert’s apartment at 6:22 a.m. and walking toward
the parking lot where the Altima was located when discovered by police. He wore a
black hooded sweatshirt, black face mask, a hat, and jeans similar to the description
provided by the shooting witnesses. 3 The next video from the camera showed Albert
coming down the stairs from his apartment at 7:22 a.m., walking down the sidewalk
while looking toward the parking lot, looking a second time toward the parking lot, and
then continuing down the sidewalk out of view.
At 7:21 a.m., video from a surveillance camera on Oleander Avenue, near the park,
showed a green vehicle through a gap in the trees parking. An individual got out, then
reentered the vehicle before driving northbound on Oleander Avenue. The vehicle drove
past a second time at 7:26 a.m., approximately a half-hour before the shooting. At
7:59 a.m., the surveillance camera captured the green vehicle fleeing northbound on
Oleander Avenue, consistent with witness accounts. Subsequent surveillance video
captured the Altima two blocks north of Oleander Avenue on Chester Lane at 7:59 a.m.,
then passing the Chester Lane Market, passing an inn at 8:01 a.m., passing the
intersection of Oak Street and California Avenue at 8:02 a.m., traveling westbound on
California Avenue near a business college at 8:03 a.m., and then traveling on Lennox
Avenue. The Altima was last seen on video at 8:10 a.m., having turned onto Ming
Avenue from Ashe Road.
Albert’s apartment was located just south of Ming Avenue. The route taken by the
Altima from the park to Albert’s apartment was not the most direct route and appeared to
intentionally avoid the intersection of California Avenue and Stockdale Highway, which
was equipped with a red light camera. The ring camera at the neighbor’s apartment
showed defendant running from the parking lot and up the stairs to Albert’s apartment at
3 Jesus testified that his apartment was on the second floor and the stairs faced the parking
lot. He identified two photographs of defendant, one in which defendant was walking down the
stairs at 6:22 a.m. and one in which defendant was walking toward the stairs at 8:12 a.m.
11.
8:12 a.m., just two minutes after the Altima was seen turning onto to Ming Avenue and
13 minutes after the shooting.4 Defendant no longer wore a sweatshirt or mask and
knocked on Albert’s apartment door.
Two minutes after defendant knocked on the door to the apartment, Jesus walked
down the stairs to the parking lot and then returned at 8:16 a.m. Jesus came down the
apartment stairs at 8:22 a.m. wearing different clothes and walked toward the parking lot.
He returned to the apartment at 8:44 a.m. carrying a bag. Defendant walked down the
stairs from the apartment and along the sidewalk at 2:34 p.m., he returned to the stairs
from the same direction at 4:08 p.m. Albert returned to the apartment and climbed the
stairs carrying a plastic bag at 4:27 p.m. Nothing of evidentiary value is thereafter noted
on the video until 5:06 p.m. the following day, when defendant left the apartment.
The defense called Demetrius, who lived approximately 400 yards from the park
and heard shots fired. Two or three minutes later, he saw a person running across the
street from a distance that appeared to be light skinned or Hispanic, but he did not know
whether that person was the shooter. He drove up to Henderson’s vehicle, arriving
approximately three to five minutes later, and then called 911. Demetrius may have told
an officer who interviewed him that he saw two subjects of unknown race, but the officer
did not recall such a statement.
DISCUSSION
I. Defendant’s conviction for murder and finding that he personally discharged a
firearm are supported by sufficient evidence.
A. Standard of Review and Applicable Law
In reviewing the sufficiency of evidence to support a conviction and enhancement,
we examine the entire record and draw all reasonable inferences therefrom in favor of the
judgment to determine whether it discloses substantial credible evidence from which a
4 Detective Garret testified that defendant was carrying a cellphone and possibly keys in
the video footage.
12.
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Brooks (2017) 3 Cal.5th 1, 57.) “The focus of the substantial evidence test is
on the whole record of evidence presented to the trier of fact, rather than on ‘ “isolated
bits of evidence.” ’ ” (People v. Cuevas (1995) 12 Cal.4th 252, 261.) Resolving conflicts
and inconsistencies in the testimony is the jury’s “exclusive province.” (People v. Young
(2005) 34 Cal.4th 1149, 1181.) We do not redetermine the weight of the evidence or the
credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; Young, at p. 1181.)
“Moreover, unless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction.” (Young, at p. 1181.)
We must accept logical inferences that the trier of fact might have drawn from the
evidence even if we would have concluded otherwise. (People v. Streeter (2012)
54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013)
57 Cal.4th 804, 834.) “If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (People v. Albillar, supra, 51 Cal.4th
at p. 60.)
The reviewing court need not address “assertions of conflicts in the evidence” or
“alternative theories regarding the inferences that should have been drawn from the
evidence.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.) “A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support” ’ the jury’s verdict.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357; accord, People v. Manibusan (2013) 58 Cal.4th 40,
87.) This is true for both direct and circumstantial evidence. (People v. Thompson
(2010) 49 Cal.4th 79, 113.) “ ‘ “The standard of review is the same in cases in which the
prosecution relies mainly on circumstantial evidence.” ’ ” (People v. Hazlett (2026)
20 Cal.5th 904, 976.)
13.
B. Analysis
Defendant argues that the evidence was insufficient to establish he was the
individual who shot Henderson both for the purpose of murder and to support the firearm
enhancement. Viewing the evidence in the light most favorable to the jury’s verdict, the
prosecution established that witnesses identified a black male as shooting into
Henderson’s car and driving northbound toward Oleander Avenue in a green sedan.
Officers canvassed surveillance cameras of nearby residences and businesses and
identified a green sedan driving northbound on Oleander Avenue just after the shooting
as described by witnesses. Even though the witnesses described the vehicle as a
Chevrolet, the jury could reasonably infer that they were mistaken as to the model of the
car and that it was, in fact, a Nissan Altima. Officers continued searching for
surveillance video and tracked the Altima across multiple streets chronologically, losing
site of it at the intersection of Ming Avenue and Ashe Road. From there, officers
conducted a visual inspection of the nearby residential areas and found the Altima parked
at an apartment complex three days after the shooting.
Using the vehicle’s registration information, officers identified the apartment of
the registered owner, Albert, and contacted him. After verifying ownership of the
Altima, Albert accompanied officers to the station to provide a statement while lying to
them by stating the apartment was unoccupied. In the meantime, other officers sought a
search warrant for the apartment and made entry to secure it. Inside, they found
defendant in the hallway, a disassembled firearm in the process of being concealed in the
bathroom, and the firearm’s magazine and ammunition in a bedroom.
Defendant and Albert’s DNA were identified on two pieces of the firearm and the
magazine, with the greater portion of the DNA belonging to defendant. Defendant was a
frequent visitor to the apartment, which Albert shared with Jesus. The Ring camera at a
neighboring apartment captured individuals entering and leaving the apartment and
revealed that defendant had left the apartment at 6:22 a.m. that morning and returned at
14.
8:12 a.m., just two minutes after the Altima was seen at an intersection near the
apartment. Additionally, defendant was seen walking to the parking lot when he left and
from the parking lot when he returned. The Altima was found parked in the same lot
three days later, supporting the reasonable inference that defendant drove the Altima
between 6:22 a.m. and 8:12 a.m.
The evidence similarly showed that neither Albert nor Jesus could have been
responsible for the shooting. Jesus did not leave the apartment until 8:14 a.m., after
Henderson had been killed and defendant returned to the apartment. Albert left the
apartment at 7:22 a.m. and had a receipt indicating he paid for an Uber to drive him to
work. His employment records showed that he clocked in at 8:01 a.m., the approximate
time of the shooting.
Furthermore, defendant was in the apartment when officers came to inquire about
the Altima. Albert lied about defendant’s presence, but when officers entered the
apartment, the firearm was disassembled and hidden. The jury could reasonably infer
that Albert assisted defendant by providing him time to hide the firearm that was later
determined to have been used to kill Henderson. Defendant’s concealment of evidence
supported his consciousness of guilt regarding Henderson’s death.
Defendant argues that the evidence demonstrated that either Albert or Jesus must
have been a second assailant because Demetrius may have told an officer that he saw two
individuals running down the street and Albert and Jesus lied multiple times during their
statements to officers and, at times, during their testimony, which evidenced their
consciousness of guilt. However, Demetrius’s testimony established that he did not
necessarily see the shooter, only individuals running after he heard gunshots.
Additionally, four separate witnesses testified that they saw a single individual pointing a
firearm at Henderson’s vehicle. The jury could similarly infer that Albert and Jesus,
though not involved in the shooting, were motivated to lie for defendant.
15.
Because defendant’s arguments to the contrary rest upon inferences from the
evidence that are contrary to the jury’s findings, we summarily reject them. (See People
v. Hicks (1959) 175 Cal.App.2d 556, 557 [“The well-established rule requires an
appellate court to resolve all conflicts in the evidence, and to draw all reasonable
inferences, in favor of the judgment. It is only when the evidence, so viewed, is
insufficient to sustain the finding of the trier of the facts that reversal upon this ground is
warranted.”].) While the jury may have interpreted some of the evidence in accordance
with defendant’s arguments, it was not required to draw the inference of a second
assailant, and we find contrary inferences to be entirely reasonable.
The evidence need not be overwhelming for us to conclude it at least supports a
reasonable inference that defendant was the individual who shot and killed Henderson
and then escaped in the Altima. (See People v. Wharton (1991) 53 Cal.3d 522, 546, 548;
[the inferences need not be the only ones the evidence supports, and the evidence of the
ultimate fact in question need not be strong]; People v. Johnson (1980) 26 Cal.3d 557,
576.) The issue is whether the record, when viewed in this manner, discloses evidence
that is reasonable, credible, and of solid value such that a rational trier of fact could find
that defendant intentionally shot and killed Henderson, establishing both the elements of
the offense and the elements that support defendant personally discharged the firearm that
killed Henderson. It does. As a reviewing court, we cannot second-guess the inference
drawn by the trier of fact on this question.
II. The trial court did not abuse its discretion in revoking defendant’s self-
representation status.
A. Background
(1) Chronology of defendant’s representation by counsel
The trial court appointed the public defender to represent defendant on
September 29, 2020. When defendant refused to attend on October 22, 2020, the trial
court continued the matter for four days and authorized the use of reasonable force to
16.
ensure his appearance. Upset that he had been in jail for one month and the defense still
did not have discovery, defendant requested a Marsden 5 hearing at the next hearing, but
the trial court ultimately denied his request for a new attorney. The court denied
defendant’s second request for new counsel on December 10, 2020, but granted his third
request on December 28, 2020, after finding a breakdown in communication between
defendant and counsel. 6
Defendant requested new counsel a fourth time on July 19, 2021, but the court
instead granted defense counsel’s request to withdraw. New counsel was relieved on
July 22, 2021, due to his unavailability. The court denied defendant’s fifth request for
new counsel on January 12, 2022. 7 However, the court granted defense counsel’s motion
to be relieved on February 17, 2022.
On August 22, 2022, defendant requested that he be able to represent himself 8
because counsel was tied up in a lengthy trial and he did not wish to wait. Ultimately,
defendant withdrew his request, and the court appointed new counsel for defendant. On
February 2, 2023, and April 12, 2023, the court granted counsel’s requests to be relieved
5 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
6 The court had to admonish defendant repeatedly not to interrupt both the court and
counsel. The court initially advised defendant that it would not relieve counsel so that defendant
would not need to waive time for the preliminary hearing (to which he was opposed), and
defendant interrupted, “[A]re you telling me … the other stuff that I said didn’t make sense,”
“you’re telling me that I got to keep him?” and accused the court of acting as though it did not
hear him. The court accused defendant of “showing great disrespect to this Court today.” The
court predicted that defendant would ask for a new attorney after every new attorney was
appointed because defendant did not like their advice.
7 When the court denied the motion, defendant responded, “I’m not ever talking to
[counsel],” and claimed that “she done bullshit on [his] case.” The court concluded that
defendant was choosing to be uncooperative and making himself unavailable to counsel.
8 Faretta v. California (1975) 422 U.S. 806, 807, 819 (Faretta) (discussing defendant’s
right to represent himself in criminal proceedings).
17.
due to conflicts of interest. 9 Defendant objected to counsel appointed after the latter
request and requested his sixth Marsden hearing on April 25, 2023, which the court 10
denied.
When defendant returned to court 11 on June 6, 2023, he made his seventh request
for new counsel. Defendant argued his constitutional rights had been violated by the
three-year trial delay and demanded a habeas corpus petition to a higher court. 12 The
court denied the request for new counsel at a hearing the following day. 13
On July 13, 2023, the court granted defense counsel’s request to be removed from
the case due to a conflict of interest. Defendant filed paperwork and requested to
represent himself on September 13, 2023. During the Faretta hearing, defendant advised
the court, “I don’t completely understand the charges filed against me.” Defendant
claimed that he had a question about the nature of the cause action before he could
represent himself. The court then explained the charges in the information, and
defendant inquired whether his criminal action was under common law or international
9 During the February 2, 2023 hearing, defendant stated that he did not cooperate with a
mental examination because counsel “abused his power to attack me by saying I’m not
competent. He knows I’m competent.” Defendant claimed that his constitutional rights had
been violated, the judges were not protecting his rights, and everything was fraudulent.
Defendant questioned the qualifications of the court and accused the court of abusing its
authority.
10 The Honorable Eric Bradshaw presiding.
11 The Honorable John R. Brownlee presiding.
12 During the hearing, defendant objected to “everything [defense counsel] is doing.” When
the court asked defendant to calm down, defendant accused the court of failing to listen and
demanded habeas corpus. He also accused the court of violating his constitutional rights and
demanded the court’s “oath of office with the secretary, state of California.” The court ordered
defendant removed from the courtroom.
13 During the hearing, defense counsel advised the court he was the ninth attorney assigned
to defendant, that defendant had complained about each of his prior attorneys, refused to
communicate with him, and had written a letter to the bar accusing counsel of being racist.
Defendant acknowledged that he had nine attorneys but claimed that each attorney was
uncooperative and worked against his best interests.
18.
contracts. The court redirected defendant to discuss the document titled “FARETTA
WAIVER” (boldface omitted). The court reviewed with defendant the disadvantages of
self-representation, but defendant refused to fill out the Faretta waiver and again
requested the nature of the court’s jurisdiction “because you have took my liberty before
… I have even been in front of a grand jury.” The court denied defendant’s request to
represent himself because he was incapable of doing so.
On September 29, 2023, defendant again appeared in court and announced, “I’m
doing special appearance. Let the record show I’m the beneficiary and I reserve my
rights for, and I do not give consent.” The court suggested that defendant remain silent.
Defense counsel indicated that his earlier conversation with defendant caused him
concern as to defendant’s mental competency. The prosecutor pointed out that
defendant’s conduct and not his competency was at issue and described delay tactics that
included repeated requests for new counsel and creating conflicts with counsel by
threatening to sue them or file claims with the State Bar. The court continued the matter
and found good cause as defendant would not waive time and would only respond that he
was in court “on special appearance,” wished to reserve his common law and “U. C. C. 1
dash 308” rights, and would not consent.
The court denied defendant’s eighth request for new counsel during a trial status
hearing on April 3, 2024. After the court continued the trial on May 6, 2024, it ignored
defendant’s ninth request for new counsel and accusations that the court violated his
rights. On May 20, 2024, the court granted defendant’s tenth request for a Marsden
hearing but denied defendant new counsel. A second Marsden hearing was held on
19.
defendant’s tenth request on May 29, 2024, but the trial court denied the motion for new
counsel due to a lack of changed circumstances since the prior hearing. 14
During the second day of trial, on August 6, 2024, defendant criticized his
attorney’s performance, and the court conducted another Marsden hearing. 15 After a
Marsden hearing on August 19, 2024, the court denied defendant’s request for a new
attorney.
(2) Defendant’s self-representation
Defendant’s jury trial was set for March 4, 2024, but repeatedly trailed in April
and May 2024 based upon the court’s finding of good cause. During proceedings on
June 5, 2024, defendant requested that he be permitted to represent himself. The
Honorable Eric Bradshaw transferred the case to another department to conduct the
Faretta hearing. The court reviewed with defendant a Faretta waiver form, executed by
defendant on that same date, which included a series of advisements concerning the
disadvantages of self-representation. It included a warning that defendant may be
excluded from the courtroom if he misbehaved or seriously disrupted the trial. The court
also reviewed with defendant his understanding of the charges and penalties. Under the
court’s questioning, defense counsel described defendant’s conduct as “[g]enerally okay”
but added there were “some instances where he had outbursts in court” that resulted in
one or two removals from the courtroom, and he became disruptive to work with. The
court reviewed additional disadvantages of self-representation and defendant’s
14 During the hearing, the court had to admonish defendant not to interrupt or argue with the
court. Defendant then interrupted defense counsel and called him a “fucking liar” and a “fraud.”
The court noted that defendant’s behavior caused it to believe any problems were due to
defendant’s behavior and manipulation of the system.
15 The court denied defendant’s request for new counsel, noting that defendant’s own
conduct had created issues with counsel and defendant had his right to represent himself taken
away by his outbursts in court.
20.
constitutional rights. Defendant was advised that his privilege of self-representation
would be revoked if he were disruptive.
Defendant appeared on his own behalf during jury trial status hearings on June 12
and June 26, 2024. At both hearings, defendant represented that he needed additional
time to prepare after receiving discovery of search warrants from the prosecution and to
review specified videos. At hearings on June 26, July 1, and July 9, 2024, defendant
requested and received one-week continuances.
(3) Court’s revocation of defendant’s right to represent himself
During a trial status hearing on July 16, 2024, the court 16 inquired whether
defendant was ready for trial. Defendant responded, “I’m here on a special appearance. I
don’t understand the charges.” After the court inquired a second time, defendant
responded, “I’m here on special appearance. I don’t know the charges against me. I’m
presented under U. C. C., I wish to remain silent.” The court warned defendant that he
would not be permitted to represent himself if he could not respond to the court’s
question and again asked if defendant was ready for trial. Defendant replied, “I do not
understand the nature and cause.” When the court repeated the question again, defendant
replied, “I do not understand the nature of this action filed against me. How can I
represent myself when I’m not understanding the nature of the action filed against me?”
The court responded, “So you do not want to represent yourself; is that correct?”
Defendant claimed that he did not understand. When the court inquired whether
defendant understood the question, defendant replied, “I’m here on special appearance. I
am the beneficiary.”
The court then requested that defendant’s prior counsel be brought to the
courtroom and indicated that since defendant could not represent himself, it intended to
reappoint prior counsel. Defendant responded, “I do not understand. You’re denying me
16 The Honorable Eric Bradshaw presiding.
21.
the right to represent myself because I do not understand the nature of the charge filed
against me.” After a recess, defendant returned to the courtroom and immediately asked,
“Under what law do you deny me the right to represent myself?” The court attempted to
respond but defendant interrupted and asked, “What law was that?” The court asked
defendant to listen and warned him that he would be removed from the courtroom if he
continued to speak and talk over the court. The court indicated that it would answer
defendant’s questions, but he was “teetering on the brink of having [the right to self-
representation] taken away … because you won’t stop talking over me.” The court
advised defendant that disruption of court proceedings results in a revocation of the right
to self-representation and the court was considering doing just that. The court repeated
that it was attempting to ascertain whether defendant was ready for trial, but defendant
had responded with “a bunch of nonsense” that indicated he could not represent himself
anymore. When the court asked defendant again whether he was ready for trial,
defendant asked whether he could speak and that he could not answer the question
without explanation. The court asked for a yes or no response, and defendant ultimately
responded that he was not ready.
Defendant then explained his lack of preparedness: “Because I have United States
Constitutional right to have the court explain to me the nature and cause of any actions
filed against me, so I could represent myself. I don’t understand the nature of this
jurisdiction that I’m under. So I’m asking you to explain that to me.” The court replied
that the explanation had been handled during the Faretta hearing and would not be
repeated. Defendant claimed that his prior counsel did not explain those matters and that
was why he asked to represent himself. When the court opined that it sounded as if
defendant did not wish to represent himself, defendant replied, “I want to defend myself.
I want my right to represent myself, but I need to understand the nature and cause of this
action filed against me.” The court advised that it would provide defendant one last
chance to represent himself and respond to the question as to why he was not ready for
22.
trial. Defendant replied, “Because I do not understand the nature or cause of this action
filed against me, and I want the court to explain that to me so I can represent myself and
have a defense. [¶] I don’t understand the jurisdiction that I’m under. Under the United
States Constitution, Sixth Amendment, give [sic] me the right to have the court explain
the nature and cause of my action filed against me.”
The court then revoked defendant’s right to represent himself and reappointed
prior counsel. Defendant objected, “I cannot proceed because you’re denying me the
right to represent myself with prejudice. You haven’t stated no law that is giving you the
right to take away my right to represent myself.” The court replied, “Your mouth.”
Defendant responded, “You’re ignoring the fact that I have the right to represent myself.”
The court ordered defendant to stop talking. Defendant indicated that he would leave the
courtroom. While the court addressed counsel, defendant told the court, “I’m writing you
up, Judge Bradshaw.” The court declared that defendant had voluntarily absented
himself from the courtroom and ordered the matter on calendar for July 29, 2024, to
permit counsel an opportunity to prepare.
(4) Defendant’s other conduct in court
During the court’s consideration and denial of defendant’s motion to dismiss the
information on October 24, 2022, defendant interjected questions and comments during
the court’s oral ruling. Eventually, the court stated, “Sir, I’m not going to argue with
you.” Defendant accused the court of not being a “real Judge” and failing to pass the
State Bar. He called the courtroom a “State of fraud” and stated, “Wack ass, fake ass
courtrooms,” while promising the court a lawsuit in the judge’s name.
On August 5, 2024, defense counsel brought a motion to shackle defendant during
trial because defendant had spit on counsel’s face during a court readiness conference and
was removed from court. The bailiff confirmed for the court the security issues created
by defendant’s conduct and confirmed numerous incidents where defendant had acted out
in court. The court granted the request based upon defendant’s prior court behavior and
23.
history of acting out as identified by counsel and confirmed by the bailiff. The court also
noted, as witnessed by other courtroom participants, that defendant had spit on counsel
and said that counsel would die and go to hell. During the hearing, the court asked
whether defendant wished to remain in court for the trial, but defendant refused to
indicate whether he wished to remain or waive his right to be present. When defendant
continued to interrupt the court when speaking with counsel, the court had him removed.
Defendant had to be removed from court again on August 6, 2024, during the
hearing on his motion to suppress, because he continuously interrupted the court.
Thereafter, defendant waived his right to be present during trial.
B. Standard of Review and Applicable Law
The Sixth Amendment to the federal Constitution gives a defendant the right of
self-representation. (Faretta, supra, 422 U.S. at pp. 807, 819.) “That right is not without
limits, however. [Citation.] ‘ “[The] government’s interest in ensuring the integrity and
efficiency of the trial at times outweighs the defendant’s interest in acting as his own
lawyer.” ’ ” (People v. Becerra (2016) 63 Cal.4th 511, 518, first bracketed insertion
added.) “Whenever ‘deliberate dilatory or obstructive behavior’ threatens to subvert ‘the
core concept of a trial’ [citation] or to compromise the court’s ability to conduct a fair
trial [citation], the defendant’s Faretta rights are subject to forfeiture.” (People v. Carson
(2005) 35 Cal.4th 1, 10 (Carson).)
Our Supreme Court has identified “several factors in addition to the nature of the
misconduct and its impact on the trial proceedings” that a trial court should consider
when deciding whether to terminate a defendant’s self-representation. (Carson, supra,
35 Cal.4th at p. 10.) “One consideration is the availability and suitability of alternative
sanctions. [Citation.] Misconduct that is more removed from the trial proceedings, more
subject to rectification or correction, or otherwise less likely to affect the fairness of the
trial may not justify complete withdrawal of the defendant’s right of self-representation.
[Citations.] The court should also consider whether the defendant has been warned that
24.
particular misconduct will result in termination of in propria persona status.” (Ibid.)
Finally, the court should “assess whether the defendant has ‘intentionally sought to
disrupt and delay his trial.’ ” (Ibid.) A dilatory purpose is sufficient to support
termination, but intent is not a necessary condition. (Ibid.)
On review, we accord “due deference to the trial court’s assessment of the
defendant’s motives and sincerity as well as the nature and context of his misconduct and
its impact on the integrity of the trial in determining whether termination of Faretta rights
is necessary to maintain the fairness of the proceedings.” (Carson, supra, 35 Cal.4th at
p. 12.) The court exercises considerable discretion in this regard, and “the exercise of
that discretion ‘will not be disturbed in the absence of a strong showing of clear abuse.’ ”
(People v. Welch (1999) 20 Cal.4th 701, 735.)
C. Analysis
We evaluate whether the trial court abused its discretion in revoking defendant’s
in propria persona status based on the Carson factors. Thus, we consider “the nature of
the misconduct and its impact on the trial proceedings.” (Carson, supra, 35 Cal.4th at
p. 10.) When defendant appeared at the July 16, 2024 trial status hearing, he refused to
respond to the court’s questions. The purpose of the hearing was for defendant to report
on his readiness to proceed to trial. Yet, defendant failed to address his trial preparedness
and insisted he was specially appearing, would remain silent, and did not know or
understand the charges against him, thus obstructing the proceedings.
As to the availability and suitability of alternative sanctions, we note that the court
granting defendant’s Faretta request had expressly warned defendant that misconduct or
disruption of the proceedings would result in the court terminating his in propria persona
status. During the July 16, 2024 trial status hearing, the court again explained that
defendant’s lack of responsiveness to the court’s questions could result in revocation of
defendant’s right to represent himself. Further, the nature of the misconduct—defendant
insisting that he did not understand the charges and indicating he would remain silent—
25.
limited the court’s ability to impose other sanctions. Defendant fails to suggest what
alternative sanctions would have been available in this case.
We are not persuaded that, having already explicitly warned defendant of the
consequence for obstructing the court proceedings, the trial court was required to
overlook defendant’s decision to ignore the warning or attempt to address his behavior in
some other fashion. Moreover, our Supreme Court has also stated that a trial court is not
required to consider alternative sanctions when a defendant has engaged in intentional
obstructionist conduct, as such conduct is an independently sufficient ground for the
termination of the right of self-representation. (People v. Ng (2022) 13 Cal.5th 448, 498;
Carson, supra, 35 Cal.4th at p. 10.)
As to whether defendant intentionally sought to disrupt and delay the trial
(see Carson, supra, 35 Cal.4th at p. 10), the trial court did not make any express findings
relevant to the factor. However, defendant advised the court that he did not “understand
the nature of this jurisdiction” he was under and wanted the court to explain it to him.
The court’s response indicates that it believed defendant was less than candid: “All this
was handled when you asked to represent yourself. Every bit, all of this was handled
back then. I’m not going to do it again.” The judge had previously experienced
defendant’s disrespect to the court during hearings in April and June 2023, when
defendant had to be removed from the courtroom.
Additionally, in Carson, the court explained it was not holding “that an intent to
disrupt is a necessary condition.” (Carson, supra, 35 Cal.4th at p. 10.) “Ultimately, the
relevance inheres in the effect of the misconduct on the trial proceedings, not the
defendant’s purpose.” (Id. at p. 11.) Here, irrespective of defendant’s intent, his refusal
26.
to address the purpose of the proceeding was disruptive. The trial court could reasonably
conclude his conduct would threaten the core integrity of the proceedings. 17
We conclude the court did not abuse its discretion by revoking defendant’s right to
self-representation. 18
III. The trial court did not err in failing to instruct the jury on accomplice liability
pursuant to CALCRIM No. 334.
A. Background
Defendant argues there was substantial evidence that Albert and Jesus were
accomplices to Henderson’s murder, and therefore, the trial court erred by failing to sua
sponte instruct the jury on accomplice testimony (see CALCRIM No. 334). We disagree
and conclude the trial court did not err because the evidence was insufficient as a matter
of law to support the finding that defendant had an accomplice when committing the
murder.
B. Standard of Review and Applicable Law
We review claims of instructional error de novo. (People v. Guiuan (1998)
18Cal.4th 558, 569.) In a criminal case, the trial court has a sua sponte duty to instruct on
the general principles of law relevant to the issues raised by the evidence and necessary
to the jury’s understanding of the case. (People v. Martinez (2010) 47 Cal.4th 911, 953.)
A criminal conviction cannot stand “upon the testimony of an accomplice unless it
be corroborated by such other evidence as shall tend to connect the defendant with the
17 Defendant also argues that the trial court erred in revoking his right to self-representation
based upon a developmental disability or mental illness. We do not address this argument
because we do not agree that the trial court was referring to defendant’s mental competence
when it found defendant was “incapable of representing himself.” Based upon all the court’s
remarks, the court was addressing defendant’s disruptive behavior in refusing to communicate
honestly with the court.
18 Defendant argues that the People cannot rely upon his comments or behavior during the
several Marsden hearings to justify the court’s revocation of his right to represent himself.
However, we do not address this argument because we affirm the court’s order based upon the
court’s experiences with defendant in April and July 2023, as well as the July 16, 2024 hearing.
27.
commission of the offense.” (§ 1111.) Section 1111 defines an accomplice as “one who
is liable to prosecution for the identical offense charged against the defendant on trial in
the cause in which the testimony of the accomplice is given.” “ ‘To be chargeable with
an identical offense, a witness must be considered a principal under section 31.’ ”
(People v. Johnsen (2021) 10 Cal.5th 1116, 1155.) “That statute defines principals to
include ‘[a]ll persons concerned in the commission of a crime … whether they directly
commit the act constituting the offense, or aid and abet in its commission, or, not being
present, have advised and encouraged its commission .…’ ” (People v. Horton (1995)
11 Cal.4th 1068, 1113–1114.) “An accomplice must have ‘ “guilty knowledge and intent
with regard to the commission of the crime.” ’ ” (People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 302.) “A mere accessory, however, is not liable to prosecution for the
identical offense, and therefore is not an accomplice.” (Horton, at p. 1114.) California
law places the burden on the defendant to prove a witness’s accomplice status, because
that issue is collateral to guilt and not an element of the charged offense. (People v.
Tewksbury (1976) 15 Cal.3d 953, 963–968.)
“Only when there is ‘substantial evidence that a witness who has implicated the
defendant was an accomplice’ must the trial court instruct on ‘the principles regarding
accomplice testimony.’ ” (People v. Johnsen, supra, 10 Cal.5th at p. 1155.) “Substantial
evidence is ‘evidence sufficient to “deserve consideration by the jury,” not “whenever
any evidence is presented, no matter how weak.” ’ ” (People v. Lewis (2001) 26 Cal.4th
334, 369.) “ ‘ “[I]f the evidence is insufficient as a matter of law to support a finding that
a witness is an accomplice, the trial court may make that determination and, in that
situation, need not instruct the jury on accomplice testimony.” ’ ” (Johnsen, at p. 1155.)
C. Analysis
Defendant argues that trial evidence implicated Albert as an accomplice because
he owned the vehicle used by the shooter, claimed to have accompanied defendant to a
park on the night of the shooting but then denied it, provided inconsistent statements as to
28.
whether he saw defendant that day, and admitted to being a liar. Such evidence suggests
Albert attempted to conceal his role in the shooting. Albert failed to answer detectives
when they suggested that he needed to answer questions at the station and lied about
handling the firearm, suggesting a consciousness of guilt. Similarly, Jesus lied about
seeing defendant on the day of the shooting and claimed not to have seen defendant for
one month, but surveillance cameras showed Jesus leaving the apartment just after
defendant arrived.
We disagree with defendant that the evidence was sufficient to require the trial
court to sua sponte instruct the jury on accomplice testimony. Even if Demetrius’s
statement to officers suggests more than one individual was involved in the shooting
(which we do not believe is supported by the evidence), the Ring camera shows that
neither Albert nor Jesus could have assisted defendant during the shooting. Albert left
the apartment at 7:22 a.m. and did not drive the Altima. This was corroborated by an
Uber receipt proving that he was driven to work that morning and employee records
showing that he clocked in at 8:01 a.m. The same surveillance evidence shows that Jesus
did not leave the apartment until after Henderson was killed. 19 Therefore, Albert’s and
Jesus’s inconsistent statements are not sufficient to establish that they participated in the
murder as principals or aiders and abettors.
Furthermore, their conduct after Henderson’s murder—lying to the police and
inferences of evidence destruction raised by DNA evidence on the firearm—might
implicate them as accessories, but it would not subject them to accomplice liability for
murder. A witness’s “assistance in disposing of evidence of the various crimes makes
[them], at most, an accessory after the fact; a mere accessory is not an accomplice.”
19 Defendant misconstrues the Ring camera evidence as showing that Jesus was at the foot
of the stairs two minutes after defendant went up the stairs. However, the video evidence clearly
showed that Jesus went down the stairs and left that the apartment at 8:14 a.m., not that he
returned to the apartment minutes after defendant.
29.
(People v. Balderas (1985) 41 Cal.3d 144, 193; accord, People v. Horton, supra,
11 Cal.4th at pp. 1114–1116 [evidence of witness’s conduct after commission of crimes,
including retrieving criminal proceeds and driving the defendant to bus stop, did not
subject him to accomplice liability].)
Because the evidence was insufficient as a matter of law to support a finding either
Albert or Jesus was an accomplice, the court’s failure to give CALCRIM No. 334 was
not instructional error.
IV. The trial court did not err in instructing the jury with CALCRIM No. 371.
A. Background
The trial court advised counsel that it intended to instruct the jury that
concealment of evidence could be considered as consciousness of guilt (see CALCRIM
No. 371). Defense counsel advised the court that it had no objection to the instruction.
The trial court instructed the jury: “If the defendant tried to hide evidence, that conduct
may show that he was aware of guilt. If you conclude that the defendant made such an
attempt, it is up to you to decide its meaning and importance. However, evidence of such
an attempt cannot prove guilt by itself.”
B. Standard of Review and Applicable Law
A defendant’s willful or attempted suppression of adverse evidence is admissible
to prove consciousness of guilt. (Evid. Code, § 413; People v. Edelbacher (1989)
47 Cal.3d 983.) CALCRIM No. 371 instructs a jury on this point. But before a trial
court may instruct a jury on inferring a consciousness of guilt from a defendant’s
suppression of evidence, “ ‘there must be some evidence in the record which, if believed
by the jury, will sufficiently support the suggested inference.’ ” (People v. Hart (1999)
20 Cal.4th 546, 620.) Whether any set of facts may constitute suppression of evidence
from which a jury can infer a defendant’s consciousness of guilt is a question of law we
review de novo. (Ibid.)
30.
C. Analysis
Defendant contends the trial court erred in instructing the jury with CALCRIM
No. 371 because no substantial evidence supported giving the instruction. We disagree.
Where there is circumstantial evidence that the defendant attempted to rid himself of a
weapon, instructing the jury with CALCRIM No. 371 is proper. (See People v.
Rodrigues (1994) 8 Cal.4th 1060, 1100, 1139–1140, overruled on another ground as
recognized in People v. Leon (2020) 8 Cal5th 831, 848 [CALJIC No. 2.06—predecessor
to CALCRIM No. 371—properly given based on circumstantial evidence defendant
threw murder weapon out window of moving car]; People v. Fitzpatrick (1992)
2 Cal.App.4th 1285, 1290, 1296–1297 [CALJIC No. 2.06 properly given based on
circumstantial evidence defendant threw murder weapon in gutter].) And here, there was
sufficient evidence from which the jury could reasonably conclude defendant attempted
to hide the murder weapon and that such conduct evidenced a consciousness of guilt.
Defendant was encountered by officers in the hallway of Albert’s apartment, near
the bathroom that contained a disassembled firearm with one part wrapped in towel,
another wrapped in underwear, and a third hidden behind the toilet. Although Albert may
have disassembled the firearm before he was taken to the police station, it seems unlikely
given that the shooting occurred three days earlier. It is much more likely that when
Albert answered the door to the officers, defendant used the time he was alone in the
apartment to hide the firearm because he feared detection.
Concluding that the trial court did not err by instructing the jury with CALCRIM
No. 371, we reject defendant’s contention that the evidence did not support a rational
inference his conduct reflected a consciousness of guilt. Additionally, even if, as
defendant argues, the evidence could have supported an alternate inference, there is
sufficient evidence to support an inference of consciousness of guilt. (See People v.
Lucas (1995) 12 Cal.4th 415, 471 [despite alternative interpretation of evidence of flight,
sufficient evidence existed from which jury could infer defendant fled out of guilty
31.
knowledge; “The instruction properly left it to the jury to determine which inference was
more reasonable.”]; People v. Pensinger (1991) 52 Cal.3d 1210, 1243–1244 [instruction
on flight as showing consciousness of guilt was permissible even though there was
possible innocent explanation for defendant’s actions]; see also People v. Alexander
(2010) 49 Cal.4th 846, 922 [despite conflicting evidence, prosecution presented sufficient
evidence to raise an inference the defendant tried to persuade a witness to testify falsely,
which supported consciousness of guilt instruction].) Indeed, the instruction simply
allowed the jury to infer consciousness of guilt if it found defendant attempted to hide
evidence.
The court’s provision of CALCRIM No. 371 to the jury was not instructional
error.
V. The trial court did not err in imposing a five-year prior serious felony
enhancement.
Defendant argues that the trial court erred by enhancing his sentence five years for
the same prior serious felony conviction (§ 667, subd. (a)) used to double his sentence
under the Three Strikes Reform Act of 2012 (Reform Act). We agree with the People
that the Reform Act has not affected the application of section 667, subdivision (a).
Section 667, subdivision (a)(1) provides: “A person convicted of a serious felony
who previously has been convicted of a serious felony …, shall receive, in addition to the
sentence imposed by the court for the present offense, a five-year enhancement for each
such prior conviction on charges brought and tried separately. The terms of the present
offense and each enhancement shall run consecutively.” As the parties note, courts have
historically rejected the argument that a court may not use the same prior conviction to
both double the base term of imprisonment and to impose a five-year enhancement.
(People v. Murillo (1995) 39 Cal.App.4th 1298, 1306–1307; People v. Cartwright (1995)
39 Cal.App.4th 1123, 1137–1139; People v. Anderson (1995) 35 Cal.App.4th 587, 592–
32.
600, disagreed with on another ground in People v. Fletcher (2025) 18 Cal.5th 576, 593;
People v. Ramirez (1995) 33 Cal.App.4th 559, 562–569.)
Defendant argues that the Reform Act “signal[ed] a change in intent with respect
to the interpretation and application of the Three Strikes Law” “ ‘to mitigate some of the
more stringent applications … while retaining the rigorous penalties for those offenders
whose criminal history reveals they remain a significant threat to public safety.’ ” While
it is true that the Reform Act directly affected punishment if the instant offense was not a
serious or violent felony, defendant cites no authority or legal principle that would
override the explicit language of the statute regarding application of section 667,
subdivision (a), especially where defendant’s offense of conviction is murder, which is
both a serious and violent felony (§§ 667.5, subd. (c)(1); 1192.7, subd. (c)(1)). Further,
had the Legislature meant to affect application of section 667, subdivision (a) in this
context, it could have done so explicitly given its awareness of case authority to the
contrary.
Defendant also argues that section 654 prevents use of the same prior serious
felony conviction for doubling the base penalty and the enhancement. Section 654,
subdivision (a) provides: “An act or omission that is punishable in different ways by
different provisions of law may be punished under either of such provisions, but in no
case shall the act or omission be punished under more than one provision.” However, our
Supreme Court has held that section 654, by its own terms, applies only to an “act or
omission,” and the fact of a prior conviction applies to the nature of the offender rather
than the facts of the offense, so there are no acts or omissions to which section 654 may
apply. (People v. Coronado (1995) 12 Cal.4th 145, 156, 157–158.). Because the repeat
offender (recidivist) enhancement imposed here does not implicate multiple punishment
of an act or omission related to the underlying criminal conduct, section 654 is
inapplicable. (Coronado, at p. 158; see People v. Murphy (2001) 25 Cal.4th 136, 155
[analyzing §§ 667, subd. (e), 667.71].) Therefore, “section 654 does not bar dual use of a
33.
prior conviction both as the basis for three strikes sentencing and as an enhancement.”
(People v. Danowski (1999) 74 Cal.App.4th 815, 823; see also People v. Green (1996)
50 Cal.App.4th 1076, 1087–1088; People v. Wilson (2016) 5 Cal.App.5th 561, 566
[statutory prohibition against multiple punishment for crimes arising from an indivisible
course of conduct applies to sentence enhancements which arise from circumstances of
the crime, but not to sentence enhancements which arise from nature of the offender].)
For the same reason, dual use of the prior serious felony conviction is not
prohibited by the double jeopardy clauses of the United States or California
Constitutions: “Three Strikes sentencing is not (and, for double jeopardy reasons, cannot
be) to impose additional punishment for prior criminal acts that have already been
punished. The purpose is instead to fix the appropriate punishment for the defendant’s
current offense—an offense the law considers ‘ “ ‘to be an aggravated offense because a
repetitive one.’ ” ’ ” (People v. Shaw (2025) 18 Cal.5th 1089, 1101.)
As our Supreme Court has recently recognized, “The ‘Three Strikes’ law is a
sentencing scheme that requires a court to double or sometimes triple the punishment for
a felony offense if the defendant was previously convicted of a crime that qualifies as a
‘serious’ or ‘violent’ felony (Pen. Code, §§ 667, subd. (e), 1170.12, subd. (c)) .…”
(People v. Fletcher, supra, 18 Cal.5th at p. 582.) “If a defendant’s current offense is a
serious felony, the defendant is also subject to a five-year prior serious felony
enhancement—a so-called ‘nickel prior’—in addition to any strike. (§ 667,
subd. (a)(1).)” (Ibid.)
Defendant has failed to make any compelling argument that case law or legislative
changes affect our Supreme Court’s precedent on these issues, which is binding on this
court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
34.
DISPOSITION
The judgment is affirmed.
HILL, P. J.
WE CONCUR:
MEEHAN, J.
HARRELL, J.
35.