P. v. Morrison
Filed 2/7/13 P. v. Morrison CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
AMON MORRISON,
Defendant and Appellant.
B235563
(Los Angeles
County
Super. Ct.
No. BA357645)
APPEAL from a judgment of the Superior Court of
County, Ronald S. Coen, Judge. Reversed in part and remanded for
resentencing, otherwise affirmed.
Roberta Simon, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Paul M. Roadarmel, Jr., and William N. Frank, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
A jury found defendant and appellant Amon Morrison guilty, under an
aiding and abetting theory of liability, of two counts of
shooting from a motor vehicle. On
appeal, Morrison contends there was insufficient evidence he aided and abetted
the crimes. He also contends that the
prosecutor failed to comply with disclosure requirements and that his sentence
constitutes cruel and unusual punishment.
Because Morrison was a juvenile when he committed the crimes, we agree,
under recent United States and California Supreme
Court authority, that his sentence, which makes him ineligible for probation
until he is in his 80’s, is cruel and unusual.
We reverse and remand for resentencing on that ground only and reject
Morrison’s remaining contentions.
I. Factual background.
On the morning of June 8, 2009, Robert Baker and Autumn Christian were walking to a
grocery store. On Rimpau, near 17th Street, a black Jeep or Toyota
RAV4 was going in the same direction as Baker and Christian. It turned around, stopping four to five feet
from them. There were three people in
the car: the driver, who Baker
identified at trial as Morrison, and a front and rear passenger.
you from?’ †Christian heard the front
passenger, later identified as Leonard Curtis, say “ ‘Where are you from?’
†Christian testified that Morrison also
said, “ ‘This is 20 Bloods, fuck crabs.’ â€
Baker, who wasn’t a gang member, said he didn’t bang, but Morrison and
Curtis yelled, “ ‘Rollin’ 20’s Blood, fuck crabs.’ †Curtis fired shots, and Christian was hit in
the leg. With Baker helping Christian,
they ran.
The same morning Christian was shot,
Jose Ramirez was picking up a delivery on or near Rimpau when he heard two to
three gunshots. After the shots were
fired, a black Toyota RAV4 with two people, a driver and front passenger, drove
past him.
On June
9, 2009, the day after Christian was shot, officers followed a Toyota RAV4,
which had been reported stolen and matched the description of the car involved
in the shooting. When officers turned on
their police lights and sirens, the car did not pull over, and instead tried to
evade them. The car crashed into a truck
and three people got out, including Morrison and Curtis. Curtis immediately surrendered, but Morrison
ran and was detained later.
To the police, Baker described his
assailants as a “light-skinned dude, curly, short hair†and a “dark-skinned
dude with a black hoodie on.†Morrison,
the “light-skinned†man, was the driver, and the passenger, who Baker
identified at trial as Curtis, was the shooter.
Baker also identified Morrison and Curtis from photographic
six-packs. Christian identified Curtis
as the shooter from photographic six-packs and at trial. She was not, however, able to identify
Morrison at trial.
Detective John Shafia testified that
he interviewed Morrison, who admitted crashing the car into the truck.
passenger in the car with him. As he
slowed to stop at a sign, he heard “ ‘bam’ †and a series of shots. Scared and unsure where the shots were coming
from and not wanting to get shot, he drove away. Although he would not name the shooter,
Morrison said the man he was with on the day he crashed the car was the same
man he was with during the shooting the day before.
Officer John Maloney, the People’s
gang expert witness, testified that Morrison and Curtis are Rollin 20’s gang
members. Rollin 20’s is a Bloods
gang. A rival Crips gang controls the
area in which the shooting occurred. In
the officer’s opinion, Morrison committed the crimes for the benefit of his
gang.
II. Procedural background.
On August
2, 2011, a jury found Morrison guilty of counts 1 and 2, the willful, deliberate
and premeditated attempted murders of Christian and Baker (Pen. Code,
§§ 187, subd. (a), 664),
name="_ftnref3" title="">[3]
and of count 3, shooting from a motor vehicle (§ 12034,
subd. (c)). As to counts 1 and 2,
the jury found true principal gun-use allegations (§ 12022.53, subds. (b),
(c), (d), (e)(1)). As to count 3, the
jury found true a principal gun-use allegation (§ 12022.53, subds. (d),
(e)(1)). As to all counts, the jury
found true gang allegations (§ 186.22 subd. (b)(1)).
On August
25, 2011, the trial court sentenced Morrison, on count 1, to life plus 25 years
to life for the gun allegation (§ 12022.53, subds. (d), (e)(1)). On count 2, the court sentenced him to a
consecutive life term plus 25 years to life for the gun allegation
(§ 12022.53, subds. (d), (e)(1)).
The court imposed but stayed the sentence on count 3 and on the
remaining enhancements.
I. Substantial evidence supports the
attempted murder convictions.
Morrison contends there was
insufficient evidence to support his convictions for aiding and abetting the
attempted murders and shooting from a motor vehicle. We disagree.
In assessing the sufficiency of the
evidence to support a conviction, “we review the whole record to determine
whether any rational trier of fact
could have found the essential elements of the crime or special circumstances
beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the
verdict—i.e., evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] In applying this test, we review the evidence
in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced
from the evidence. [Citation.] . .
. ‘We resolve neither credibility issues
nor evidentiary conflicts; we look for substantial evidence. [Citation.]’
[Citation.] 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. [Citation.]â€
(People v. Zamudio (2008) 43
Cal.4th 327, 357.)
The prosecution’s theory of liability
as to Morrison was he aided and abetted the crimes. A person who aids and abets the commission of
a crime is a principal in the crime, and thus shares the guilt of the actual
perpetrator. (People v. Prettyman (1996) 14 Cal.4th 248, 259;
1116-1117; § 31.) A person aids and
abets the commission of a crime when he or she, (i) with knowledge of the
unlawful purpose of the perpetrator, (ii) and with the intent or purpose of
committing, facilitating or encouraging commission of the crime, (iii) by act
or advice, aids, promotes, encourages or instigates the commission of the
crime. (People v. Atkins (2001) 25 Cal.4th 76, 92; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1158;
402, 409.) “The ‘act’ required for
aiding and abetting liability need not be a substantial factor in the
offense. ‘ “Liability attaches to anyone
‘concerned,’ however slight such concern may be, for the law establishes no
degree of the concern required to fix liability as a principal.†[Citation.]’
[Citation.]†(
Cal.App.4th 733, 743; People v. Garcia
(2008) 168 Cal.App.4th 261, 273.)
Factors that may be taken into
account when determining whether a defendant aided and abetted a crime are
presence at the crime scene, companionship, and conduct before and after the
offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) Lookouts, getaway drivers, and persons
present to divert suspicion are principals in the crime. (People
v. Swanson-Birabent, supra, 114
Cal.App.4th at p. 743.) But mere
presence at the scene of a crime, knowledge of the perpetrator’s criminal
purpose, or the failure to prevent the crime do not amount to aiding and
abetting, although these factors may be taken into account in determining a
defendant’s criminal responsibility. (
at pp. 272-273; People v. Campbell, supra,
25 Cal.App.4th at p. 409.) “
‘Whether defendant aided and abetted the crime is a question of fact, and on
appeal all conflicts in the evidence and reasonable inferences must be resolved
in favor of the judgment.’
[Citation.]†(
There was substantial evidence that
Morrison aided and abetted the attempted murders of Baker and Christian and the
shooting from a car, and, specifically, that Morrison knew of Curtis’s criminal
purpose. Curtis and Morrison were in the
same Blood gang: the Rollin 20s. They were driving in a rival Crip territory,
which suggests they were looking for rival gang members. Equally suggestive of that intent is that
Morrison initially drove past Baker and Christian, who were walking. Instead of continuing on, Morrison did a
U-turn to go back to them. Morrison then
stopped the car a mere four to five feet from Baker and Christian. According to Baker, Morrison asked where
Baker was from, a common gang challenge.
When Baker said he didn’t bang, Morrison and Curtis yelled something to
the effect of, “ ‘This
is 20 Bloods, fuck crabs.’ †Curtis
shot at Baker and Christian. After
Christian was shot, Morrison fled with Curtis.
The next day, Morrison, instead of disassociating himself from Curtis,
was with him again in a Toyota RAV4 similar to the one involved in the shooting
the day before. When police tried to
pull Morrison over, he evaded them, ultimately crashing the car. On crashing the car, he tried to flee.
This evidence therefore showed that
Morrison and Curtis, fellow Blood gang members, went looking for rival gang
members in rival Crip territory.
Morrison knew of Curtis’s criminal purpose, because he drove the car
next to the victims and issued a gang challenge to them. (See, e.g., In re Jose D. (1990) 219 Cal.App.3d 582, 585 [sufficient evidence
defendant aided and abetted a shooting where he, among other things, drove the
car and deliberately maneuvered it so that the passenger could point a gun at
victims].) After his accomplice shot at
the victims, Morrison fled with Curtis, staying with him the next day. This was substantial evidence that Morrison
aided and abetted the crimes.
II. The prosecution did not violate the
disclosure requirements.
Morrison next contends that the
prosecution violated its discovery obligations by failing to disclose it would
introduce evidence of his custodial statements and of his prior juvenile
adjudication. We disagree.
A.
On the second day of trial, after
most of the People’s witnesses had testified, the prosecutor announced that
Detective Shafia would testify about Morrison’s custodial statement, given when
he was a juvenile. Defense counsel
objected that Morrison was not advised of his right to have a parent
present. Also, the recording device had
failed, and the only evidence Morrison was read his rights, was the detective’s
statement in his report. Out of the
jury’s presence, Detective Shafia testified that he read Morrison’s
had him sign the waiver form. The trial
court found that defendant’s waiver was knowing, intelligent, and voluntary.
Detective Shafia then testified,
before the jury, that Morrison admitted he was driving the car when Christian
was shot, but Morrison also said he didn’t know that Curtis was going to shoot
at Christian and Baker.
Morrison testified on his
behalf. On cross-examination, he said he
had never seen Curtis with a gun. When
asked if he was saying he never used or had a gun, Morrison answered he had
never used a gun, but he had “been to jail for a gun before.†The prosecutor then asked Morrison about his
2008 arrest for gun possession and about a Statement Form he signed in which he
said he found the gun.
At sidebar, defense counsel
objected that the information about the incident should have been provided,
because it was impeachment evidence. The
trial court disagreed, saying it was not being offered under Evidence Code
section 1101, subdivision (b). It was
offered to impeach Morrison as to why he ran on another occasion and to show
that he previously denied possessing a gun.
The court said, “[Y]ou are not entitled to advance notice. This doesn’t come under [section] 1054.1,
subdivision[s] (a) through (f) . . . .†Defense counsel said, “Well, I have a problem
with that, and that’s because I didn’t make that decision until after she changed
her mind and said she was going to put the evidence of the statements.†The court ruled, “That’s of no moment. There is no––the People had no idea what your
client was going to testify. There was
no advance notice of such rebuttal evidence that is required.â€
The People, in rebuttal, called
Officer Arnel Asuncion, who testified about the gun incident.
The defense raised this issue in
its new trial motion, which was denied.
B.
prosecution violated its discovery obligations.
A prosecutor must disclose to the
defense, at least 30 days before trial, the name and address of persons he or
she intends to call as witnesses at trial.
(§§ 1054.1, subd. (a), 1054.7; In
re Littlefield (1993) 5 Cal.4th 122.)
Section 1054.1’s disclosure requirements extend to rebuttal
witnesses: “[T]he disclosure by the
defense of its witnesses under section 1054.3 signals to the prosecution that
the defense ‘intends’ to call those witnesses at trial. It follows that the prosecution must necessarily
‘intend’ to call any of its witnesses who will be used in refutation of the
defense witnesses if called.†(
Cal.3d 356, 375 (Izazaga); see also
932, 955-956; People v. Hammond (1994)
22 Cal.App.4th 1611, 1621-1622.) “[T]he
requirement that the prosecution disclose the witnesses it ‘intends to call at
trial’ [includes] ‘all witnesses it reasonably anticipates it is likely to
call. . . .’ [Citation.]†(Izazaga,
at p. 376, fn. 11.) The requirement to
disclose rebuttal witnesses extends to the “written or recorded statements of
[those] witnesses.†(
discovery are generally reviewed under an abuse of discretion standard. (People
v. Lamb (2006) 136 Cal.App.4th 575, 581.)
Morrison does not contend that the
prosecution failed to disclose either Detective Shafia as a witness or
Morrison’s custodial statement. He
instead contends that the prosecutor, after apparently assuring the defense it
would not introduce his custodial statement, changed her strategy and said she
would introduce it via the detective.
Morrison, however, fails to cite any part of the record showing that the
prosecutor agreed not to introduce the statement. In fact, when the prosecutor announced she
would introduce the statement, the defense did not object by referring to such
an agreement. The penal discovery
statutes, although requiring the prosecution to disclose witnesses and
statements it reasonably anticipates will be called (Izazaga, supra, 54 Cal.3d at p. 376,
fn. 11), do not require the prosecution to reveal its strategy.
Nor did the discovery statutes obligate the prosecutor to
disclose she would impeach Morrison with evidence of his prior juvenile arrest
for gun possession. Under section
1054.3, once the defense discloses the witnesses it intends to call, the
prosecution must disclose witnesses it reasonably anticipates calling. (Izazaga,
supra, 54 Cal.3d at p. 375; People
v. Tillis (1998) 18 Cal.4th 284, 290.)
It appears, however, that the defense first indicated during trial that
it would call Morrison. Where the
defense does not disclose it intends to call a witness until during trial, the
prosecution’s failure to identify rebuttal witnesses or evidence may not
violate the disclosure requirements.
(See People v. Hammond, supra, 22
Cal.App.4th at pp. 1623-1624 [when the defendant designated a witness six days
before trial, prosecutor did not violate disclosure requirements by failing to
identify a rebuttal witness].) As the
trial court here noted, because the defense did not disclose it intended to
call Morrison, the defense was not entitled to “advance notice†of rebuttal
evidence, namely, that the prosecutor would impeach Morrison with evidence of
his 2008 gun arrest.
Section 1054.1 also requires the
prosecution to disclose (a) the names and addresses of witnesses it
intends to call, (b) defendant’s statements, (c) real evidence,
(d) the existence of a felony conviction of any material witness whose
credibility is likely to be critical to the outcome of trial,
(e) exculpatory evidence, and (f) relevant written or recorded
statements of witnesses or reports of the statements of witnesses whom the
prosecutor intends to call at trial.
(See also People v. Tillis, supra,
18 Cal.4th at p. 294.) Unless the
challenged evidence falls under one of these categories, there is no duty to
disclose it. (Ibid.) Even if the Statement Form
that Morrison signed acknowledging he had found a gun and Officer Asuncion’s
testimony about that gun possession should have been excluded, admitting this
evidence was harmless. There was
overwhelming other evidence that Morrison previously possessed a gun, including
Morrison’s admission to that effect.
III. Cruel and unusual punishment.
Morrison, who was 17 at the time
the crimes were committed,
name="_ftnref4" title="">[4]
contends that his sentence constitutes cruel
and unusual punishment under the Eighth Amendment of the federal
Constitution. We agree.
The trial court sentenced Morrison,
on the two counts of premeditated attempted murder, to two consecutive life
terms plus two 25 years to life terms for the gun enhancement (§ 12022.53,
subds. (d), (e)(1)). Premeditated
attempted murder carries a life sentence, with a minimum parole-eligibility
period of seven years. (§ 3046; see
People v. Jefferson (1999) 21 Cal.4th
86, 97.) But where, as here,
gang-enhancement allegations are found true, the minimum parole-eligibility
period is extended to 15 years. (§
186.22, subd. (b)(5).) The parties
therefore agree that Morrison will not be eligible for parole until he is about
84 years old.
title="">[5]
The United States Supreme Court has
expressed concern about sentencing juvenile offenders to prison terms that
prevent any possibility of rehabilitation and release. This concern is based on, among other things,
the “ ‘lack of maturity’ †and “ ‘underdeveloped sense of
responsibility’ †more common to youth than to adults; their vulnerability
or susceptibility to negative influences and outside pressures; and that the
character of a juvenile is not as well formed as an adult’s. (Roper
v. Simmons (2005) 543 U.S. 551, 569-570.)
“These salient characteristics mean that ‘[i]t is difficult even for
expert psychologists to differentiate between the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.’
[Citation.] Accordingly,
‘juvenile offenders cannot with reliability be classified among the worst
offenders.’ . . . [¶] . . . Juveniles are more capable of change than are
adults, and their actions are less likely to be evidence of ‘irretrievably depraved
character’ than are the actions of adults.â€
(Graham v. Florida (2010) __U.S.
__ [130 S.Ct. 2011, 2026, 176 L.Ed.2d 825] (Graham).)
Roper
concluded that imposing capital punishment on juvenile offenders violates the
Eighth Amendment. Thereafter,
life-without-possibility-of-parole sentence on a juvenile offender for a
nonhomicide offense also violates the Eighth Amendment: “A State need not guarantee the offender
eventual release, but if it imposes a sentence of life it must provide him or
her with some realistic opportunity to obtain release before the end of that
term.†(Graham, supra, 130 S.Ct. at p. 2034.) Most recently, the United States Supreme
Court held that “the Eighth Amendment forbids a sentencing scheme that
possibility of parole for juvenile offenders,†even for juvenile offenders
found guilty of homicide, although a court might, in its discretion, impose
such a punishment. (Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455, 2469, 183
L.Ed.2d 407], italics added.)
Based on these cases, our
California Supreme Court has concluded that “sentencing a juvenile offender for
a nonhomicide offense to a term of years with a parole eligibility date that
falls outside the juvenile offender’s natural life expectancy constitutes cruel
and unusual punishment in violation of the Eighth Amendment.†(People
v. Caballero (2012) 55 Cal.4th 262, 268.)
Caballero therefore found that
a sentence rendering the juvenile defendant, who had committed attempted
murder, ineligible for parole for over 100 years was unconstitutional. (See also People
v. Mendez (2010) 188 Cal.App.4th 47, 50-51 [84-years-to-life sentence was
the equivalent of life without parole and therefore cruel and unusual
punishment].) A state must provide a
juvenile offender “ ‘with some realistic opportunity to obtain release’ from
prison during his or her expected lifetime.
[Citation.]†(
Morrison’s sentence of 80 years to
life is unconstitutional under Caballero
because it is the functional equivalent of a life-without-possibility-of-parole
sentence for a juvenile in a nonhomicide case.
We therefore remand this case to the trial court for reconsideration of
his sentence.
DISPOSITION
We reverse in part and remand for the trial court to
reconsider Morrison’s sentence. The
judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
Christian nor Baker could describe the rear passenger, except to say that he
had a hood on.
also testified at trial that he was not the driver of the car involved in the
June 8 shooting. He denied he was a
member of the Rollin 20’s gang.
