P. v. Smith























Filed 2/5/13 P. v. Smith CA2/6













NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION SIX




>

THE PEOPLE, Plaintiff and Respondent, v. VINCENT SMITH, Defendant and Appellant.

2d Crim. No. B233544 (Super. Ct. No. NA074807) (Los Angeles County)

Vincent Smith appeals a judgment following
conviction of first degree murder and
burglary, with findings of commission of murder during the burglary,
commission of the crimes to benefit a criminal
street gang, discharge of a firearm by a principal during commission of the
crimes causing death, one prior serious felony strike conviction, and service
of two prior prison terms. (Pen. Code,
§§ 187, subd. (a), 189, 459, 190.2, subd. (a)(17), 186.22, subd. (b)(4),
former 12022.53, subds. (b)-(e), 667, subd. (a)(1), 667, subds. (b)-(i),
1170.12, subds. (a)-(d), 667.5, subd. (b).)href="#_ftn1" name="_ftnref1" title="">[1] We modify the judgment to strike the stayed
parole revocation restitution fine, and to award Smith an additional 31 days of
presentence actual custody credit, but otherwise affirm. (§§ 1202.45, 2900.5, subd. (a).)

>FACTS AND PROCEDURAL HISTORY

In the late evening of October 26, 2006, John
Ibrahim was killed during "a running gun battle" inside his San Pedro
condominium. Smith, Derrick Taylor, and
Jarrett Myers, members of the "Santana Blocc Crips" criminal street
gang, went to Ibrahim's residence to obtain marijuana.href="#_ftn2" name="_ftnref2" title="">[2] Taylor carried a firearm in his back pocket
for "protection." During the
ensuing firefight, Smith received a gunshot wound to the neck and Ibrahim
received three gunshot wounds, two of which were immediately fatal.

Ibrahim owned a restaurant in Gardena and
sold large quantities of "high grade" marijuana from his restaurant
and from his condominium. His brother
Justin stayed at the condominium several nights a week and knew that Ibrahim
was dealing drugs. Justin owned a .45
caliber semiautomatic handgun that Ibrahim sometimes kept by his nightstand.

Ibrahim was friendly with Serena Bell and her
erstwhile roommate, Tamika Young. They
used marijuana together at Bell's residence or at Ibrahim's condominium. Ibrahim provided the marijuana and sometimes
bought gifts for Bell. Ibrahim and Bell
had planned to take a Hawaiian vacation on October 29, 2006, Ibrahim's 29th
birthday.

In October 2006, Young saw Taylor, a longtime
friend, and invited him to Bell's residence.
Ibrahim arrived later with a large amount of marijuana in his backpack,
and the group smoked marijuana together.
Ibrahim mentioned his Hawaiian vacation as they smoked. That evening, Taylor informed Young that he
needed money because he was "broke," and asked if she knew someone
with money or marijuana. He also asked
where Ibrahim lived and suggested that he could take Ibrahim's marijuana when
he was not at home. Young testified that
she attempted to discourage Taylor and stated that he "shouldn't do
that" because Ibrahim was "a nice person."

Several days before the shooting, Taylor
asked Young to drive him to Ibrahim's condominium. She agreed because she was "not thinking
clear at the time." Young then
drove Taylor and pointed out Ibrahim's condominium. Taylor asked Young when Ibrahim would be in
Hawaii and she replied "the weekend."
Later, Young attempted to discourage Taylor from taking Ibrahim's
marijuana, but Taylor responded that he "needed money." At trial, Young conceded that she knew Taylor
was a "gangbanger[]."

Taylor informed fellow Santana Blocc Crips
gang members Myers and Smith of Ibrahim's marijuana stash. On October 26, 2006, the three men drove to
and entered Ibrahim's condominium where a gun battle ensued. Ibrahim shot Smith in the neck, but Taylor
shot Ibrahim several times.

Following the sounds of gunshots, a neighbor
investigated and found Ibrahim wounded and propped up in the bushes near the
stairway. Other neighbors summoned
emergency medical assistance and the police.
Los Angeles Police Officer William Manlove arrived quickly and found
Ibrahim unresponsive and moribund, with a gunshot wound in his chest. Paramedics arrived but were unable to
resuscitate Ibrahim. A Los Angeles
County medical examiner later performed an autopsy on Ibrahim's body and
concluded that he died from three gunshot wounds, two of which entered the back
of his body, passing through to the front.

A police search of Ibrahim's condominium
revealed a .45 caliber semiautomatic handgun lying on the floor, nine shell
casings and 10 spent bullets throughout the residence, blood stains, and 366
grams of marijuana. A window screen near
the front door was damaged, suggesting a forced entry. Another window screen in Ibrahim's bedroom
window was broken. The parties
stipulated at trial that Smith's blood was in bloodstains recovered in the
bedroom.

Officer Manlove testified that based upon the
number and location of bullet holes and shell casings in Ibrahim's condominium,
"[a] running gun battle" had occurred with people "running
through the [condominium] shooting at each other." A police firearms examiner compared the
expended bullets and casings recovered from the condominium with the .45
caliber handgun found lying on the floor.
He opined that seven bullets had been fired from the handgun and that
three bullets had been fired by a .38, .357, or nine-millimeter revolver.

Following Ibrahim's death, Young suddenly
moved from Bell's residence. A day or two
following Ibrahim's death, Young saw Taylor with a lacerated arm and noticed
that he had cut his shoulder-length braids.


Nearly eight months later, police officers
interviewed Smith. Following advisement
of his rights pursuant to Miranda v.
Arizona (1966) 384 U.S. 436, Smith waived his rights and spoke with police
officers. Initially, he denied knowledge
of or involvement with Ibrahim's death.
Later, Smith stated that he merely drove Myers and Taylor to purchase
marijuana from Ibrahim but that they were "short" on money. Taylor carried a silver revolver in his
pocket as "protection," and led the way to Ibrahim's
condominium. When Ibrahim opened the door,
he appeared "shocked," "high," and "jittery," as
he pulled a gun from his back pocket.
Ibrahim and Taylor shot "simultaneously" as the gun battle
ensued. Smith, Taylor, and Myers then
jumped from the bedroom window and fled.
Smith stated that he, Taylor, and Myers were members of the Santana
Blocc Crips criminal street gang.

The police interview with Smith was
recorded. At trial, the prosecutor
played the recording which was also received into evidence.

Los Angeles County Sheriff's Detective
Richard Sanchez testified regarding the criminal activities of the Santana
Blocc Crips criminal street gang, including home invasion robberies, murders,
and transportation of narcotics. Sanchez
had known Taylor and Myers for many years, and opined that they, as well as
Smith, are "high status" members of the Santana Blocc Crips gang who
are "really dug into the gang."
Sanchez opined that the three men committed the crimes against Ibrahim
to benefit their gang, with one man acting as the driver, one as the
"muscle" or trigger man, and one as backup.

The jury convicted Smith of first degree
murder and burglary, and found that he committed the murder during commission
of the burglary. (§§ 187, subd.
(a), 189, 459, 190.2, subd. (a)(17).) It
also found that Smith committed the crimes to benefit a criminal street gang,
and that a principal discharged a firearm during commission of the crimes
causing death. (§§ 186.22, subd.
(b)(4), former 12022.53, subds. (b)-(e).)
In a separate proceeding, the trial court found that Smith suffered a
prior serious felony conviction and served two prior prison terms. (§§ 667, subd. (a), 667, subds. (b)-(i),
1170.12, subds. (a)-(d), 667.5, subd. (b).)

The trial court sentenced Smith to life
without the possibility of parole, plus a consecutive life term for the gang
enhancement, plus a consecutive term of 30 years to life pursuant to former
section 12022.53, subdivisions (d)-(e) and section 667, subdivision
(a)(1). Pursuant to section 654, the
court imposed but stayed sentence regarding the burglary conviction and its
related firearm and gang enhancements.
It also imposed a $10,000 restitution fine, a $10,000 parole revocation
restitution fine (stayed), an $80 court security fee, and an $80 criminal
conviction assessment. (§§ 1202.4, subd.
(b), 1202.45, 1465.8, subd. (a)(1); Gov. Code, § 70373.) The court awarded Smith 1,396 days of actual
presentence custody credit.

Smith appeals and contends that: 1) the trial court erred by precluding
evidence of Ibrahim's possible marijuana intoxication; 2) the court erred by
not instructing sua sponte that Young was a accomplice; 3) there is
insufficient evidence that he aided and abetted a burglary; 4) there is
insufficient evidence that he aided and abetted a murder; 5) there is
insufficient evidence to support the finding of crimes committed to benefit a
criminal street gang; and 6) the court committed sentencing errors regarding
fines and the award of presentence custody
credit.

DISCUSSION

I.

Smith argues that the trial court erred by
precluding evidence of Ibrahim's possible marijuana intoxication as relevant to
Ibrahim's misperception that the three gang members posed a threat to him. He asserts that the court improperly refused
to allow him to question the medical examiner regarding Ibrahim's toxicology
report. Smith contends that this
prejudicial error denied him his federal and state constitutional rights to a
fair trial and to due process of law.

The trial court may only admit relevant
evidence – evidence having "any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the
action." (Evid. Code, § 210; >People v. Kelly (1992) 1 Cal.4th 495,
523.) The court's ruling regarding
relevancy falls within its broad discretion to decide whether the probative
value of particular evidence is outweighed by concerns of undue prejudice,
confusion or consumption of time. (Evid.
Code, § 352; People v. Hillhouse
(2002) 27 Cal.4th 469, 496.)
"Specifically, the court is not required to admit evidence, such as
cocaine or marijuana use, 'that merely makes the victim of a crime look
bad.'" (Hillhouse, at p. 496.)
Moreover, application of this basic rule of evidence does not impair a
defendant's right to present a defense.
(Ibid.)

The trial court properly exercised its
discretion by excluding evidence of Ibrahim's toxicology report because it was
irrelevant and unduly prejudicial. As
the trial judge explained, Smith did not have "an expert href="http://www.sandiegohealthdirectory.com/">psychopharmacologist . . .
to testify as to the victim's habit of drug usage, his tolerance, and what
level would affect him . . . and none of that is evidence in this
trial." "[S]ubstance abuse,
without more, would be meaningless to a jury's consideration of the victims'
conduct." (People v. Kelly, >supra, 1 Cal.4th 495, 523.) Consumption of marijuana did not contribute
to the cause of Ibrahim's death and his character was not at issue. (Ibid.) Absent expert testimony explaining the
effects of marijuana use generally and specifically to Ibrahim, evidence of the
toxicology report is irrelevant. (>People v. Rocha (1971) 3 Cal.3d 893, 901
[evidence of narcotics use admissible for impeachment purposes if expert
testimony substantiates the effects of such use].)

II.

Smith contends that the trial court erred by
not instructing the jury to view Young's testimony with caution because it
could have found that she was an accomplice.
(§ 1111 ["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"].) He points out that Young informed Taylor that
Ibrahim had marijuana and that she showed Taylor where Ibrahim lived. Smith asserts that the error is prejudicial
because there is insufficient evidence to corroborate Young's testimony.

An accomplice is "someone subject to
prosecution for the charged crimes by reason of aiding and abetting or being a
member of a conspiracy to commit the charged crimes." (People
v. Houston (2012) 54 Cal.4th 1186, 1224.)
An accomplice must have guilty knowledge and intent with regard to the
commission of the crime. (>Ibid.)
Mere knowledge of a defendant's criminal intent, presence at the scene,
or failure to prevent a crime is alone insufficient to establish guilt as an
aider and abettor. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.)

A trial court must instruct sua sponte with
accomplice instructions when there is substantial evidence that a witness who
has implicated the defendant was an accomplice.
(People v. >Houston, supra, 54 Cal.4th 1186, 1223.)
This includes instructing that an accomplice's testimony must be viewed
with caution and corroborated by other evidence. (Ibid.)


A trial court's error in not instructing
regarding accomplice liability is harmless if the record contains
"'sufficient corroborating evidence.'" (People
v. Valdez (2012) 55 Cal.4th 82, 147.)
"Corroborating evidence may be slight, entirely circumstantial, and
entitled to little consideration when standing alone." (Ibid.) Moreover, the corroborating evidence need not
be sufficient to establish every element of the charged offense or the precise
facts stated by the accomplice. (>Id. at p. 148.) The evidence 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 truthful. (>Ibid.)

The evidence here does not establish that
Young was an aider or abettor of the burglary of Ibrahim's residence. The evidence establishes that Young pointed
out where Ibrahim lived and attempted to discourage Taylor from stealing
Ibrahim's marijuana. Taylor already knew
that Ibrahim possessed large amounts of marijuana, having joined him in smoking
it at Bell's residence. Although Young
may have suspected or known of Taylor's criminal intent, the evidence does not
establish that she shared that intent.
She did not agree to take part in the crime, was not present during the
crime, and was not involved in assisting the men to escape or in dividing any
loot.

In any event, there is sufficient evidence
corroborating Young's testimony. Smith
and two Santana Blocc Crips members went to Ibrahim's residence in the late
evening, armed with a firearm. During
his police interview, Smith stated that the men were "going to try and see
what [they] could get," although they were "short" on
funds. Ibrahim shot Smith and Smith's
bloodstains were discovered within the condominium. This evidence satisfies the requisite showing
of connecting Smith with the crimes as to satisfy the jury that the asserted
accomplice was truthful. (>People v. Valdez, supra, 55 Cal.4th 82, 148 [statement of general rule].)

III.

Smith argues that there is insufficient
evidence that he aided and abetted the burglary of Ibrahim's condominium. He asserts that he merely drove Taylor to
Ibrahim's residence so that Taylor could purchase marijuana. (E.g., People
v. Rodriguez (1986) 42 Cal.3d 730, 760-761 [mere presence and inaction at
crime scene insufficient to establish liability as a principal].)

In reviewing the sufficiency of evidence to
support a conviction, we examine the entire record and draw all reasonable
inferences therefrom in favor of the judgment to determine whether there is
reasonable and credible evidence from which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. (People
v. Streeter (2012) 54 Cal.4th 205, 241.)
Our review is the same in prosecutions primarily resting upon
circumstantial evidence. (>Ibid.)
"'An appellate court must accept logical inferences that the jury
might have drawn from the evidence even if the court would have concluded
otherwise.'" (Ibid.) Our review does not
redetermine the weight of the evidence or the credibility of witnesses. (People
v. Albillar (2010) 51 Cal.4th 47, 60.)

An aider and abettor must act with knowledge
of the criminal purpose of the perpetrator and with an intent or purpose of
committing, or of encouraging or facilitating commission of the crime. (People
v. Houston, supra, 54 Cal.4th
1186, 1224.) "[A]n aider and
abettor of a specific intent crime shares the perpetrator's specific intent
when he or she knows of the perpetrator's criminal purpose and aids, promotes,
encourages, or instigates the perpetrator with the intent of encouraging or
facilitating the commission of the crime."
(Ibid.) The trier of fact may consider presence at
the crime scene, companionship, and conduct before and after the offense in
determining the issue of aiding and abetting.
(People v. >Rodriguez, supra, 42 Cal.3d 730, 760.)

Sufficient evidence and all reasonable
inferences therefrom support the finding that Smith aided and abetted the
burglary. Smith, Taylor, and Myers were
longtime Crips members who appeared in the late evening at Ibrahim's
condominium, short of funds, but armed "to try and see what [Taylor] could
get." Smith conceded during his
police interview that Taylor planned "to scam" Ibrahim. He also stated that Taylor reached for and
fired his weapon first, and Ibrahim reacted by firing his weapon. Smith stated that he was surprised by
Ibrahim's response because Taylor had assured him beforehand that "it was
all good." Thus Smith was more than
a mere bystander or a passive participant.
The evidence supports the reasonable inference that Smith drove and
accompanied Taylor to Ibrahim's condominium with the intent to steal drugs and
money. That their criminal mission
proved unsuccessful and that Ibrahim shot Smith does not negate Smith's intent
to aid and abet Taylor.

IV.

Smith argues that there is insufficient evidence
that he committed murder based on a felony-murder aiding and abetting theory of
murder committed during the course of a burglary.

Section 190.2, subdivision (d) provides: "[E]very person, not the actual killer,
who, with reckless indifference to human life and as a major participant, aids,
abets, counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of subdivision (a) which
results in the death of some person . . . , and who is
found guilty of murder in the first degree therefor, shall be punished by death
or imprisonment in the state prison for life without the possibility of parole
. . . ." In the absence of a
showing of intent to kill, an accomplice to the underlying felony who is not
the actual killer will be sentenced to death or life imprisonment without the
possibility of parole only where he or she is found to have acted with reckless
indifference to human life and as a major participant in the commission of the
underlying felony. (People v. Estrada (1995) 11 Cal.4th 568, 575.) A "'major participant'" is
"'one of the larger or more important members . . . of a
. . . group.'" (>People v. Proby (1998) 60 Cal.App.4th
922, 933-934.)

Here Smith acted as the driver and backup to
Taylor and Myers when they went to Ibrahim's condominium to "scam"
marijuana. Taylor was armed and drew his
weapon first. Following the gun battle,
Smith fled through the bedroom window and did not assist the victim. (People
v. Lopez (2011) 198 Cal.App.4th 1106, 1117 [defendant failed to assist the
gunshot victim or summon emergency assistance].) He knowingly participated in the crime even
knowing that Taylor was armed and did not have sufficient money to purchase marijuana. This evidence establishes that Smith was a
major participant in the burglary and that he acted with reckless indifference
to human life. (People v. Hodgson (2003) 111 Cal.App.4th 566, 579-580 [defendant a
major participant in robbery who acted with reckless indifference to human life
where he held open an electric gate to facilitate codefendant's escape
following murder of robbery victim].)

V.

Smith contends that there is insufficient
evidence that he committed the crimes to benefit a href="http://www.mcmillanlaw.com/">criminal street gang. (§ 186.22, subd. (b)(1).) Smith asserts that Taylor personally desired
the marijuana and cash, he (Smith) fled during the gun battle, and the three
men did not obtain any loot from their efforts.
(People v. >Albillar, supra, 51 Cal.4th 47, 60 ["Not every crime committed by gang
members is related to a gang"].)
Smith relies on In re
Daniel C. (2011) 195 Cal.App.4th 1350, 1358-1364; In re Frank S.
(2006) 141 Cal.App.4th 1192, 1199; and People
v. Ramon (2009) 175 Cal.App.4th 843, 851.


We apply the usual standard of review in
assessing whether the gang enhancement is supported by sufficient
evidence. (People v. Albillar, supra,
51 Cal.4th 47, 59-60.) We view the
evidence and draw all reasonable inferences therefrom in favor of the finding. (Ibid.) Although the evidence might support a
contrary finding, we do not substitute our views for those of the trier of
fact. (Id. at p. 60.)

Sufficient evidence supports the jury's
finding of crimes committed to benefit a criminal street gang. Smith, Taylor, and Myers were entrenched
members of the Crips; each sported many gang tattoos. Taylor carried a revolver in his pocket;
Smith stated during his police interview that he saw its brown handle. The three men went to Ibrahim's residence late
in the evening to obtain marijuana despite being "short" on
funds. Gang expert Sanchez opined that
the men had the purpose of obtaining drugs to sell to obtain money to purchase
more drugs and weapons: "Maybe, use
some of it and further their criminal activity buying guns
. . . . They get it
and distribute it among themselves and among the gang." Sanchez explained that the Crips gang members
belonged to "a very tight gang" and that they committed crimes as
"a pack." This expert opinion
evidence is sufficient to allow the reasonable inference that the crimes were
committed to benefit the Santana Blocc Crips.
(People v. Albillar, >supra, 51 Cal.4th 47, 62-63.) That the crimes were unsuccessful or that
Smith was wounded does not alter what the three men intended by their conduct.

The judicial decisions upon which Smith
relies are distinguishable. >In re Daniel C., >supra, 195 Cal.App.4th 1353-1354,
involved a gang member throwing a bottle at a store clerk after his fellow gang
members left the store. >In re Frank S., >supra, 141 Cal.App.4th 1192, 1199,
involved a minor who was alone and carrying a knife. People
v. Ramon, supra, 175 Cal.App.4th
843, 851, involved a defendant and another gang member in possession of a
stolen vehicle in gang territory. Here,
in contrast, three hardcore gang members, armed with a firearm, paid a
late-night visit to a marijuana dealer in his home. The front window screen was broken,
suggesting a forced entry. Ibrahim was
acquainted with Taylor but did not know Smith or Myers. The men were "short" on funds but
wanted marijuana. Gang expert Sanchez
testified that Myers was a leader within the Santana Blocc Crips and that each
man had high status within the gang.
Sufficient evidence supports the gang enhancement.

VI.

Smith argues that the sentencing minute order
and the abstract of judgment incorrectly reflect the imposition of a stayed
parole revocation restitution fine.
(§ 1202.45.) He adds that
the trial court erred by orally imposing an $80, rather than a $60, criminal
conviction assessment. (Gov. Code,
§ 70373, subd. (a)(1) ["The assessment shall be imposed in the amount
of thirty dollars ($30) for each misdemeanor or felony"].)

The Attorney General concedes that the parole
revocation restitution fine does not apply to Smith's sentence of life without
the possibility of parole or to a stayed determinate sentence. (People
v. McWhorter (2009) 47 Cal.4th 318, 380.)
Also, he points out that the sentencing minute order and the abstract of
judgment reflect only a $60 criminal conviction assessment, and suggests that
the transcript misreported the amount of the assessment.

Smith also correctly contends that he is
entitled to 1,427 days of actual custody credit. (§ 2900.5, subd. (a) ["when the
defendant has been in custody, . . . all days of custody of the
defendant . . . shall be credited upon his . . . term of
imprisonment"].) The Attorney
General agrees.

We order the trial court to amend the
abstract of judgment to strike the parole revocation restitution fine (§ 1202.45)
and to reflect 1,427 days of actual custody credit, and to forward the amended
abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

NOT
TO BE PUBLISHED.









GILBERT,
P. J.

We concur:







YEGAN,
J.







PERREN,
J.



Joan
Comparet-Cassani, Judge



Superior Court County
of Los Angeles



______________________________





Joanna
McKim, 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, Senior Assistant Attorney General, Stacy S.
Schwartz, David A. Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.