Filed 6/24/26 P. v. Jones CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B335833
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA159188)
v.
WILLIE JONES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Connie Quinones, Judge. Affirmed as
modified, remanded with directions.
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Willie Jones was found guilty by a
jury of one count of first degree murder for which he received a
sentence of 25 years to life. The court also imposed a 10-year
upper term firearm enhancement, although the jury was not
asked to consider, and did not render a finding, that defendant
personally used a firearm in the commission of the murder.
Defendant’s sole contention on appeal is that the trial court
failed to sua sponte instruct the jury with CALCRIM No. 334
regarding accomplice testimony. Defendant argues the jurors
should have been instructed to resolve whether two of the
prosecution’s primary witnesses, I.H. and S.T., were accomplices,
and if they so found, that they must view their testimony with
caution and must find corroborating evidence supported their
testimony.
We conclude any instructional error was harmless. We
further conclude, based on our review of the record, the 10-year
firearm enhancement is unauthorized. We therefore strike the
enhancement and affirm the judgment as modified. We also find
the abstract of judgment contains a clerical error. Therefore, on
remand, we direct the superior court to prepare a new abstract of
judgment that deletes the enhancement and corrects the clerical
error regarding the date of conviction.
FACTUAL AND PROCEDURAL SUMMARY
On October 30, 2022, Robert Walton was fatally shot in a
residential neighborhood on South Clymar Avenue in Compton.
Defendant and codefendant Emmanuel Mirrien Foster were
arrested and charged with the premeditated murder of Walton.
2
(Pen. Code, § 187, subd. (a).)1 The People alleged defendant had
served a prior prison term and also alleged four aggravating
factors. (Cal. Rules of Court, rule 4.421(a)(1) & (3), (b)(1) & (3).)
Codefendant Foster, who was alleged to be the shooter, is not a
party to this appeal. Evidence at the joint jury trial established
the following facts material to our discussion.
1. Testimony of I.H. and S.T.
I.H. testified that in October 2022, she had been dating
Walton for about three years. Walton’s nickname was Nuskii,
and he drove a white Mercedes-Benz. I.H. also knew defendant
and Foster. I.H. had known defendant and most of his family
since she was a child. Defendant was often called Nu-Nu or Tiny
Hands. Defendant’s brother Lorenzo had been killed sometime in
2020. I.H. knew defendant had a motorcycle and had seen him
riding it numerous times in the neighborhood, including on the
afternoon of October 30, 2022. As for Foster, who went by the
moniker Active, I.H. knew him because he had once lived in her
apartment complex.
I.H. knew the Fruit Town gang was active in her
neighborhood. She said some of her family members were
involved with the gang, but she denied any gang affiliation.
On October 30, 2022, Halloween festivities were held at
Gonzalez Park in Compton, not far from South Clymar Avenue.
Around 1:00 o’clock that afternoon, I.H. went to Gonzalez Park
with her friend S.T. (who was dating Foster), Yolanda K. (I.H.’s
half sister), and Nikendra C. (a friend of Yolanda’s). Nikendra
drove them. Over the course of the afternoon, they left briefly to
1 All undesignated statutory references are to the Penal
Code.
3
go to a nearby marijuana shop and to pick up some takeout food.
I.H. admitted to smoking weed that afternoon. She said
defendant and Foster were also at the park. I.H. recalled that
Foster was wearing a red jacket, and defendant a black hoodie.
I.H. had been texting with Walton throughout the day,
mostly arguing. Sometime around 6:00 p.m., the four women left
the park and returned to the marijuana shop in Nikendra’s car.
Walton drove up in his Mercedes. I.H. got out of the car to go see
Walton, but he yelled at her from his window and threw a drink
at her. I.H. threw her phone at his car as he drove off. The other
women urged I.H. to get back in the car with them. She did
briefly, but then asked to be let out of the car. She walked to
Walton’s house to see if he had gone home, but his car was not
there. As she was walking along South Clymar Avenue, she
called Walton, and he drove up. They continued to argue and
their argument escalated to a point where Walton drove towards
I.H. as if to hit her, and I.H. threw rocks at the car.
While they were still arguing, Yolanda, Nikendra and S.T.
returned. Yolanda told I.H. to get back in the car with them, but
I.H. told them to leave. I.H. tried to get into Walton’s car, but he
pulled away before she could close the door and she fell to the
ground. Shortly thereafter, I.H. heard six to seven gunshots,
“spaced out.” She ran to Nikendra’s car and got in. After they
drove a short distance, I.H. said she was worried about Walton
and wanted to go back. Nikendra refused and I.H. demanded to
be let out. S.T. got out with her. I.H. ran back to South Clymar
Avenue.
I.H. saw a black motorcycle with a big front headlight and
two people on it, driving down South Clymar Avenue. She
recognized the motorcycle as defendant’s bike. She could not see
4
the faces of the people on the motorcycle, but I.H. believed the
back passenger was Foster based on his size and the thick hair
sticking out of his hoodie. The driver was wearing a black jacket
and black beanie.
When I.H. finally got to the end of South Clymar Avenue,
she saw Walton’s car crashed into a light pole. Walton was not
inside the car. Shortly thereafter, S.T. arrived. She called 911
and stayed with I.H. until the police arrived.
I.H. spoke with the police several times about what
happened. She said she was scared and did not want someone to
“do something” to her for talking, so she initially did not say
much. But she later told the detectives what she saw that day,
including that defendant had been at the park on his motorcycle.
She said there were a lot of people on motorcycles at the park
that day.
I.H. also testified she was no longer friends with S.T.,
Nikendra, and Yolanda because she felt they had “betrayed” her.
S.T. testified she knew defendant rode a motorcycle. She
had a video on her cell phone of defendant on the bike, but could
not recall when the video was taken. She confirmed knowing
defendant, Foster, I.H., Yolanda, Nikendra, and Walton.
S.T. was asked several times about any conversations the
women may have had with defendant and Foster upon returning
to the park after going to the marijuana shop and picking up
food. When asked if they told defendant or Foster about
comments Walton made earlier in the day when he was arguing
with I.H., including “Fuck y’all dead homies,” S.T. said, “I don’t
believe so.” She said they just told defendant and Foster that
I.H. and Walton had been arguing. S.T. admitted she called
5
Foster on their way back to the park because she was looking for
him and wanted to know where he was.
S.T. eventually explained she never wanted to talk to the
police about any of the events that day, but that her parents
pressured her to do so. During her third interview, she told the
detectives they had driven back to the park after Walton had
yelled comments at them from his car, including something to the
effect of “Fuck y’all dead homies.” Defendant and Foster were at
the park when they returned. S.T. said they may have told them
something to the effect that Walton “was tripping” but that was
“normal behavior for them. Normal. It happens all the time,
every day.” When the women left the park again, she believed a
motorcycle followed them out, but then it passed them and “kept
going.” S.T. denied telling the detectives that she knew the
motorcycle was defendant’s bike. She expressed distress at
having to testify, saying she could be killed for being “a part of
any of this.”
S.T. admitted hearing gunshots ring out on South Clymar
Avenue when she and I.H. walked back looking for Walton, and
she also heard the sound of a motorcycle. However, S.T. said she
did not see any motorcycle and could not identify the shooter.
S.T. said she felt pressured by the detectives to “say something”
and that is why she told them that Foster had killed Walton,
even though that was wrong and she had not seen what
happened. She denied being in a serious relationship with
Foster.
2. Other evidence
Two residents on South Clymar Avenue also testified. D.B.
had lived on South Clymar Avenue for many years, and was at
home with her sister on October 30, 2022. She recalled hearing a
6
lot of screaming, a loud crash, and “some popping” noises which
she and her sister believed to be gunshots or firecrackers. They
got down and stayed away from the windows. Afterward, a bullet
hole was found in the wall of her front porch near the garage.
S.A. testified he was with his children in his car outside his
home, getting ready to leave when he saw a young woman on the
street yelling and arguing with a man in a white car. They got
fairly loud and animated, so S.A. was waiting for them to leave
before he drove off. He then heard gunshots and initially thought
the man in the white car had shot at the woman because she
started running. At that point, he saw the headlight of a
motorcycle heading in the same direction as the car. The car
eventually crashed, and S.A. heard some additional gunshots.
S.A. gave the video footage from the security cameras on his
house to the police.
When officers arrived on the scene, they found a white
Mercedez-Benz crashed into a light pole near the intersection of
South Clymar Avenue and 145th Street. There was no one inside
the car. Walton’s body was eventually located near a residence
farther up the street. It was later determined that Walton died
from multiple gunshot wounds, including to the right neck, right
chest, and left arm.
Several expended shell casings and live rounds were
recovered at the scene and tested for DNA. Foster was
determined to be a contributor to the DNA found on one of the
casings, along with two other unknown contributors. All of the
fired shell casings and live rounds were the same caliber: 5.7 by
28 millimeters. The most common manufacturers of firearms
that used that size ammunition were FN and Ruger. All of the
live rounds recovered at the scene had blue tips.
7
The video footage from several security cameras recovered
during the investigation captured some of the events on South
Clymar Avenue that evening, including the argument between
I.H. and Walton. Another video showed the arrival of a dark
motorcycle with two riders. The footage recovered did not show
the shooting or the car crash, but some footage captured an
individual running across the front yard of a home and
eventually jumping onto the back of the motorcycle, which then
sped from the scene. Another video that also contained audio
captured Walton leaning out of the window of his car and yelling
toward I.H. and the other women, “Fuck y’all dead homies.”
Additional footage captured a motorcycle with two passengers
accelerating at a high rate of speed down South Clymar Avenue,
the sound of screeching tires, followed by gunshots and the sound
of a car crashing.
Mapping of cell phone data showed that both defendant’s
and Foster’s cell phones were using cell towers in the vicinity of
the murder scene during the timeframe when the shooting
occurred. The records also showed that a phone call was made
from Nikendra’s phone to Foster’s phone shortly before the
shooting. Additional records also demonstrated that defendant
cancelled the service for his cell phone three days after the
murder.
Detective Robert McGaughey of the Los Angeles County
Sheriff’s Department, one of the lead detectives in the case,
testified that during I.H.’s second interview, she identified
defendant as the driver of the motorcycle and Foster as the back
passenger. In addition, the detectives were able to recover
defendant’s motorcycle from the home of Candy F., the mother of
one of defendant’s children, in Las Vegas, Nevada. The
8
motorcycle was black. It matched the appearance of the
motorcycle in S.T.’s cellphone video of defendant, and the
motorcycle captured in the video footage from security cameras
on South Clymar Avenue. The motorcycle had the same large
front headlight with two small fog lights, the same tailpipes and
grips, and the same reflective stripping on the saddlebags near
the seat. Additional testimony confirmed that defendant’s
brother Lorenzo was fatally shot in December 2020.
3. Perkins statements by defendant and Foster
Detective McGaughey testified about the pretrial
statements made by defendant and Foster during two separate
undercover operations commonly referred to as Perkins
operations. (Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).)
Detective McGaughey explained the two Perkins operations
occurred about a month apart. During each operation, defendant
and Foster were separately placed into holding cells with an
informant “posing as an inmate.” We will refer to the informant
as the Perkins agent for clarity. After being given information
about the Walton shooting, the Perkins agent was told to attempt
to have a conversation about it with defendant and Foster,
respectively. Both the holding cell in which the operations
occurred and the Perkins agent were equipped with recording
devices to capture any conversations. The recordings were played
for the jury.
During the Perkins operation involving defendant, he
repeatedly denied any involvement in the shooting, and asserted
that others must be “snitching and shit. [¶] … [¶] … [including] a
homegirl, she was talking to a Bounty Hunter nigger and all
that.” Defendant said his brother had been killed by a Bounty
Hunter, that a lot of stuff had been going on for two years since
9
then, “[b]ut this one, I didn’t do it.” Portions of the conversation
are difficult to follow, but at one point, defendant mentioned he
was “driving” and the other guy “just jump [sic] off and started
doing it himself. … he chased the nigger all in the back yard,
gunned him down.”
Later in the conversation, defendant told the Perkins agent
the detectives were “just throwing some shit” and asking him
“ ‘What’s up with Active? … You all know what’s up … He in
jail.’ ” The Perkins agent responded by asking defendant whether
he thought Foster “might be saying something.” Defendant said
he did not know, but that Foster “can’t say nothing unless he just
rat his self out with this to try to get me to do time with him.”
Defendant continued, saying “And he’s the one that did it. I ain’t
did shit.”
A detective interrupted the conversation, telling defendant
he was going to be charged in the murder of Nuskii. Defendant
said he did not know Nuskii. The detective said Nuskii was I.H.’s
“man.” Defendant acknowledged knowing I.H., calling her his
“little homegirl” but maintained he did not know Nuskii. The
detective told him they had already spoken to I.H., Yolanda,
Nikendra, Foster, and Foster’s “girl” S.T. who had given them a
picture of defendant on his motorcycle. The detective then left
and said he would be back shortly to take defendant to an
interview.
Defendant resumed talking with the Perkins agent who
said that it sounded like someone put defendant’s name “in the
mix.” Defendant continued to deny any involvement. He said he
was not at the park for Halloween, he was at a nightclub in
downtown the night Nuskii was killed. Defendant insisted he did
not drive Foster anywhere and did not pull the trigger.
10
Defendant also claimed he sold his motorcycle. Defendant told
the Perkins agent he needed the “paperwork” showing everyone
who snitched on him.
Defendant was subsequently interviewed by detectives and
read his Miranda rights. Defendant talked with the detectives
without requesting counsel. Defendant acknowledged his brother
Lorenzo had been killed by members of the Bounty Hunter gang
a few years earlier, and he knew that I.H. was dating someone
from that gang. Defendant also said his family was from “Fruit
Town.” Defendant continued to deny any involvement in the
shooting, reiterating that he was in downtown and not at
Gonzalez Park that Halloween weekend. Defendant later
admitted he may have been at the park, but it was only during
the daytime and he denied seeing Foster. When the detectives
said they knew he was not the shooter, Defendant said he also
was not the driver. Defendant said his bike may have been used
in the crime, but he was not there and did not do anything.
Foster made various admissions during his Perkins
operation. After being placed in the holding cell, Foster casually
spoke with the Perkins agent for a period of time. Detective
McGaughey then stopped by the cell to tell Foster that his
partner was running late, but that once he arrived they would be
talking to him about the murder of Nuskii that had taken place
before Halloween. The detective told Foster he had already
spoken to I.H., S.T., Yolanda, Nikendra, and defendant.
Once Detective McGaughey left, Foster and the Perkins
agent resumed talking. There were periods of silence and lots of
unintelligible comments not clearly picked up by the recording
device. But at one point, the Perkins agent told Foster, “It sounds
like somebody telling.” Foster said, “He’s gonna ask where was I
11
at that night, all that type of shit.” The Perkins agent asked
Foster if he had any “shit at your house that puts you there” like
a “Strap and all that?” Foster responded, “Nothing. None of
that.” When asked if any license plates could place him at the
scene, Foster said, “I wasn’t driving.”
The Perkins agent repeated at several different points in
the conversation that it sounded like someone must be snitching
or talking. After some largely unintelligible conversation, Foster
said, “[T]hat’s what I’m telling you. I shut that nigga up.” Foster
was then removed from the cell for an interview with the
detectives.
After returning to the cell, the Perkins agent told Foster
again he hoped he got rid of the “whip.” Foster said the other guy
got rid of it, that it was not even “[his] shit,” and referenced being
on a motorcycle. When asked if the motorcycle had been dealt
with, defendant said the detectives told him the motorcycle was
at defendant’s “baby mama’s house.” At some point, Foster asked
the Perkins agent if he knew of a firearm called an “FN,” and
ammunition called “five sevens” with blue tips.
Foster said the detectives were talking like they had a
bunch of evidence, but they “didn’t show [him] nothing.” He said
he told the detectives he smoked a lot of weed that day and did
not remember anything.
There is another section of largely unintelligible comments,
followed by Foster telling the Perkins agent that “this nigga, he
said ‘[f]uck the dead homies.’ … [H]e go and say, ‘Fuck the dead
homies’ … because he got into it with his bitch … I’m tired of that
shit, bro.” The Perkins agent asked if the victim died at the scene
and Foster said “[h]ell yeah.” A detective returned to the cell and
showed Foster a photograph with defendant. After the detective
12
left, the Perkins agent asked Foster about the photograph and he
said “that’s the nigga that was driving when we hit Nuski[i].”
4. Verdict and sentencing
The jury found defendant guilty of first degree murder.
In a bifurcated proceeding, the jury also found true all four
aggravating factors.
The court sentenced defendant to 25 years to life for the
murder, and imposed a 10-year upper term enhancement for
personal firearm use under section 12022.5, subdivision (a). The
court awarded defendant 384 actual days of presentence custody
credits. No objection was raised in the trial court to the
imposition of the firearm enhancement.
This appeal followed.
DISCUSSION
1. CALCRIM No. 334
Defendant contends the trial court committed prejudicial
instructional error by failing to sua sponte instruct the jury with
CALCRIM No. 334. Defendant argues the jurors should have
been instructed to decide whether I.H. and S.T. were accomplices
to the murder, and that if they so found, they must then view
their testimony with caution and must find sufficient
corroborating evidence.
A trial court must sua sponte instruct on the principles of
law governing accomplices, including the need for corroboration,
whenever there is substantial evidence that a witness is an
accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 331; accord,
People v. Zapien (1993) 4 Cal.4th 929, 982.) The question of
whether a witness qualifies as an accomplice is ordinarily a fact
question for the jury to resolve. (People v. Fauber (1992)
2 Cal.4th 792, 834.) Only when the evidence is insufficient as a
13
matter of law may the trial court make the factual determination
and decline to instruct on accomplice liability. (Ibid.; People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 302 (Gonzales).)
Defendant contends there was substantial evidence that
both I.H. and S.T. were accomplices.
An accomplice is someone who is liable “for the identical
offense charged against the defendant on trial in the cause in
which the testimony of the accomplice is given.” (§ 1111; People
v. Johnsen (2021) 10 Cal.5th 1116, 1155.) To be chargeable with
an identical offense, a witness must be considered a principal
under section 31, and must act to assist or encourage the offense
with a mental state that is “at least that required of the direct
perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118
(McCoy).)
In other words, for an individual to be deemed an
accomplice, there must be substantial evidence the individual
acted “ ‘ “with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing,
or of encouraging or facilitating commission of, the offense.”
[Citation.] When the offense charged is a specific intent crime,
the accomplice must “share the specific intent of the perpetrator”;
this occurs when the accomplice “knows the full extent of the
perpetrator’s criminal purpose and gives aid or encouragement
with the intent or purpose of facilitating the perpetrator’s
commission of the crime.” ’ ” (McCoy, supra, 25 Cal.4th at
p. 1118; accord, In re Lopez (2023) 14 Cal.5th 562, 585.)
Here, in order for the trial court’s sua sponte duty to
instruct to arise, there must have been substantial evidence
supporting a finding that I.H. and/or S.T. engaged in acts to
assist or encourage defendant and Foster in the shooting of
14
Walton, and that they did so with the specific intent that Walton
be killed, or with a conscious disregard that the shooting could
result in Walton’s death. (See, e.g., People v. Reyes (2023)
14 Cal.5th 981, 991; CALCRIM No. 520.)
Defendant says there was such evidence, pointing chiefly to
the evidence relied upon by the prosecutor to argue motive for the
Walton murder. The prosecutor urged the jury to conclude that
Walton’s “dead homies” comment, yelled at I.H. and the other
women from his car, was relayed to defendant and Foster.
Defendant and Foster in turn retaliated against Walton for
disrespecting the Fruit Town gang, and belittling the death of
defendant’s brother who was a member of the gang. Defendant
says Walton’s words of disrespect carried special import to
individuals like I.H. and S.T., who associated with gang members
and knew that such disrespect among rival gang members would
be a catalyst for violence and retaliation.
There was no direct testimony that Walton’s exact words
were told to either defendant or Foster. But there was evidence
that after Walton made those remarks, Nikendra, Yolanda, and
S.T. returned to Gonzalez Park and spoke with defendant and
Foster. The cell phone records showed a call was made from
Nikendra’s phone to Foster during this time period. S.T.
admitted during her testimony that she also called Foster on the
way back to the park. S.T. said she did not recall exactly what
was talked about when they returned to the park, but she
admitted they did see defendant and Foster, that Nikendra and
Yolanda did most of the talking, and that they mainly reported
that Walton was “tripping.” S.T. also confirmed that a motorcycle
followed them out of the park, but she denied knowing whether it
was defendant’s motorcycle. Moreover, I.H.’s testimony about
15
feeling betrayed by the three women, while lacking any further
clarity, raised an inference she felt the other women may have
relayed information to defendant and Foster that resulted in
Walton getting killed.
With respect to I.H., there is no substantial evidence in the
record supporting a finding she was an accomplice. I.H. was
Walton’s girlfriend, and while the evidence showed they were
verbally arguing all day long, there is no evidence to reasonably
infer I.H. wanted Walton killed. Further, I.H. testified she
refused to get back into the car with the other women, despite
them “begging” her to get into the car. There is no evidence I.H.
returned to the park with the other women to relay any
comments made by Walton to defendant and Foster. The
evidence shows that after Walton made those comments and
drove off, I.H. was focused on tracking him down, including
walking back to his house and trying to call him.
The evidence regarding S.T. is somewhat stronger. As the
People aptly note, there is no evidence S.T. knew Foster or
defendant had a gun or that either ever verbalized an intent to
shoot Walton. But the evidence discussed above arguably raises
disputed factual inferences about S.T.’s involvement in the
shooting that should have been resolved by the jury. (Gonzales,
supra, 52 Cal.4th at p. 302.)
Nevertheless, even assuming the jury should have been
instructed to resolve whether S.T. was an accomplice, the
instructional error was harmless. It is well settled that a failure
to instruct on accomplice testimony is harmless if the record
contains “ ‘sufficient corroborating evidence.’ ” (People v.
Manibusan (2013) 58 Cal.4th 40, 95 (Manibusan); accord, People
16
v. Anderson (2018) 5 Cal.5th 372, 411; People v. Lewis (2001)
26 Cal.4th 334, 370 (Lewis).)
Defendant urges us to find this harmless error standard
does not apply on these facts. Defendant parses the language of
CALCRIM No. 334. He says the “view with caution” language of
CALCRIM No. 334 serves a purpose “distinct” from the
corroboration required by section 1111. Defendant does not
define what the appropriate standard should be, but he says that
in assessing prejudice, we should treat the so-called
“corroboration requirement” differently from the “ ‘view with
caution’ requirement,” and that the mere presence of
corroboration cannot dispense with the need to view an
accomplice’s testimony with caution.
We are not persuaded this alters the outcome of the
prejudice analysis. Corroboration of accomplice testimony is
required because accomplice testimony may be biased and
unreliable, hence the need to view it with caution. However, once
there is sufficient corroborating evidence from independent
sources that supports the reliability of the accomplice’s
testimony, then the jury may rely on it to support its verdict.
Section 1111 provides in relevant part that “[a] conviction
cannot be had upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense.” (Ibid.) CALCRIM
No. 334 embraces this principle, telling the jury that if it decides
“that a [witness] was an accomplice, then you may not convict the
defendant of [murder] based on his or her (statement/[or]
testimony) alone. You may use a (statement/[or] testimony) of an
accomplice that tends to incriminate the defendant to convict the
defendant only if: [¶] 1. The accomplice’s (statement/[or]
17
testimony) is supported by other evidence that you believe; [¶]
2. That supporting evidence is independent of the accomplice’s
(statement/[or] testimony); [¶] AND [¶] 3. That supporting
evidence tends to connect the defendant to the commission of the
crime[s].” (CALCRIM No. 334.)
CALCRIM No. 334 goes on to explain that supporting,
corroborative evidence “may be slight. It does not need to be
enough, by itself, to prove that the defendant is guilty of the
[murder], and it does not need to support every fact (mentioned
by the accomplice in the statement/[or] about which the
accomplice testified).” (Ibid.) Corroboration may be entirely
circumstantial and need not establish every element of the
charged offense. “ ‘It is “sufficient if it tends to connect the
defendant with the crime in such a way as to satisfy the jury that
the accomplice is telling the truth.” ’ ” (Manibusan, supra,
58 Cal.4th at p. 95, italics added.)
The instruction’s concluding paragraph contains the “view
with caution” language: “Any (statement/[or] testimony) of an
accomplice that tends to incriminate the defendant should be
viewed with caution. You may not, however, arbitrarily
disregard it. You should give that (statement/[or] testimony) the
weight you think it deserves after examining it with care and
caution and in the light of all the other evidence.” (CALCRIM
No. 334.)
Thus, if there is some credible evidence from
nonaccomplice sources that connects the defendant to the
commission of the crime, any error in failing to instruct on the
law of accomplice liability is harmless. (Manibusan, supra,
58 Cal.4th at p. 95.)
18
As for the corroboration here, defendant concedes the
record contains corroborative evidence of I.H.’s and S.T.’s
testimony “in the form of circumstantial evidence of [defendant’s]
involvement.” Indeed, there is ample corroborating evidence
connecting defendant to the Walton murder independent of S.T.’s
testimony.
Defendant himself admitted to a motive for retaliating
against Walton. He knew Walton was a member of the Bounty
Hunter gang, and defendant’s brother had been killed by a
member of that gang. During the Perkins operation, defendant
directly connected himself to the events, acknowledging that he
had been driving when Foster “just jump [sic] off and started
doing it himself. … he chased the nigger all in the back yard,
gunned him down.” In addition, defendant’s conduct in
cancelling his cell phone immediately after the shooting and
taking his motorcycle to be hidden at the Las Vegas home of his
girlfriend reflected a consciousness of guilt. There were cell
phone records showing defendant’s cell phone was in the vicinity
of the murder at the time it occurred. I.H. told the detectives
that defendant was the driver of the motorcycle that night, and
the surveillance video captured footage of a motorcycle matching
the description of defendant’s bike.
Finally, as defendant concedes, defense counsel argued to
the jury that neither I.H. nor S.T. was credible because of their
association with defendant and Foster. The jury was asked to
focus specifically on, and make an assessment of, I.H.’s and S.T.’s
credibility. The jury was also properly instructed with CALCRIM
No. 105 regarding its role as the sole judge of each witness’s
credibility, and that in doing so, they should consider whether the
witness’s testimony was “influenced by a factor such as bias or
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prejudice, a personal relationship with someone involved in the
case, or a personal interest in how the case [was] decided.” The
jury was aware of its obligation to assess the veracity of the
witnesses and any potential biases each witness might have—
that is, to view the testimony with the caution it was due.
(Lewis, supra, 26 Cal.4th at p. 371.)
2. The firearm enhancement
Our review of the record revealed the personal firearm use
allegation under section 12022.5, subdivision (a), was pled only as
to codefendant Foster. No firearm allegation was alleged as to
defendant under any statute. The prosecution’s theory of the
case was that Foster was the shooter, and defendant was a direct
aider and abettor. The jury was not asked to consider any
firearm use allegation as to defendant, and made no findings of
firearm use by defendant in rendering its verdict. Nevertheless,
at defendant’s sentencing hearing on February 7, 2024, the trial
court imposed a 10-year upper term enhancement for personal
firearm use under section 12022.5. No objection was raised in
the trial court to the imposition of this enhancement, and no
contention was raised on appeal regarding the sentencing error.
We issued a letter under Government Code section 68081,
allowing the parties the opportunity to brief the issue before
exercising our authority to strike the enhancement as
unauthorized. Both defendant and the People filed supplemental
briefs conceding the enhancement is unauthorized and should be
stricken.
We agree the 10-year firearm use enhancement is
unauthorized and must be stricken. (People v. Scott (1994)
9 Cal.4th 331, 354.) On remand, the trial court is directed to
prepare a modified abstract of judgment that deletes the
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enhancement. The trial court is also directed to include the
correct date of conviction in the modified abstract, as the current
abstract erroneously lists the date of the shooting (October 30,
2022) instead of the date of conviction.
DISPOSITION
We modify the judgment of conviction by striking the
10-year upper term firearm enhancement imposed under Penal
Code section 12022.5. We otherwise affirm the judgment of
conviction as modified.
On remand, the superior court is directed to prepare a new
abstract of judgment with the enhancement deleted and which
includes the correct date of conviction. After making those
corrections, the superior court is directed to forward the modified
abstract of judgment to the Department of Corrections and
Rehabilitation.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
SCHERB, J.
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