93 Cal.App.5th 91
Cal. Ct. App.2023Background
- In Sept. 2020 Gaines (driver) and Ross (passenger) encountered R.D., T.J., and two children at a convenience store after an exchange of words; defendants left in a white Camry and later returned.
- Vehicle stopped in the wrong lane near the victims; Ross exited (door left open), fired ~10–20 rounds at the group, then re‑entered the passenger side and defendants fled.
- Police recovered 10 nine‑mm casings from the street, multiple bullet strikes on nearby buildings, and DNA linking Ross to a seized nine‑mm firearm; Gaines’s DNA was excluded.
- Gaines and Ross were convicted by jury of premeditated attempted murder, related assaults, and vehicle‑firearm offenses (Pen. Code § 26100 et seq.); Gaines also convicted as accessory after the fact (§ 32).
- On appeal defendants raised (a) statutory construction of “discharge… from a motor vehicle” (§ 26100), (b) whether Gaines could be convicted both as principal and as accessory after the fact, (c) sufficiency of evidence for Ross’s intent to kill and for criminal threats, and (d) entitlement to resentencing under recent amendments to § 1170 (SB 567).
Issues
| Issue | People’s Argument | Defendants’ Argument | Held |
|---|---|---|---|
| 1) Does § 26100 require the shooter to be inside the vehicle when firing? | “From” need not mean inside; statute targets use of a vehicle as the starting point or staging ground for shooting; legislative history aims to deter drive‑by/street shootings. | “From” means “from within” — convictions require the shooter to be inside the motor vehicle. | Court rejects narrow “within” reading; “from” includes firing while using the vehicle as the point of departure/cover (e.g., shooter stepped out at open door). Convictions affirmed. |
| 2) Can Gaines be convicted both as a principal (aiding/abetting) and as accessory after the fact (§ 32)? | Separate offenses: aiding/abetting concerns conduct before/during the crime; accessory after the fact concerns distinct post‑crime conduct to harbor/aid escape. | Dual convictions are barred when based on the same conduct (invokes common‑law mutual‑exclusivity reasoning). | Court holds dual convictions permissible where supported by distinct, independent acts and intents; Gaines’s pre‑shooting conduct supported principal liability and his post‑shooting driving Ross away supported accessory. |
| 3) Was evidence sufficient to prove Ross’s specific intent to kill for attempted murder? | Evidence of close range shooting (10+ shots), prior confrontation, searching for victims, and bullet strikes supports intent to kill or knowledge of substantial certainty. | Shots hit over buildings and not victims; argues lack of credible testimony placing victims “down range,” and some witnesses repudiated statements. | Court finds substantial evidence (shots fired at close range, victim testimony, physical evidence) to infer intent to kill and to support premeditation/deliberation. |
| 4) Was Ross’s conviction for criminal threats (§ 422) supported given (a) the victim’s repudiated out‑of‑court statement and (b) that the words alone (“Fuck you and your kids”) are ambiguous? | Prior inconsistent statement (video of R.D.) can be considered under the substantial‑evidence standard; words coupled with brandishing/shooting constitute a clear threat in context. | The repudiated out‑of‑court statement cannot alone sustain conviction without corroboration; verbal phrase alone is not an unequivocal threat. | Court applies Cuevas substantial‑evidence approach: R.D.’s contemporaneous statement plus the surrounding gun‑point conduct sufficed; conviction affirmed. |
| 5) Must the case be remanded for resentencing under amended § 1170 (SB 567)? | People concede retroactive application; trial court should reconsider term selection under new presumptions and limits on upper‑term imposition. | Defendants seek remand for full resentencing and ability‑to‑pay inquiry for fines/fees. | Court accepts concession: sentences vacated and case remanded for resentencing under amended § 1170; other challenges may be raised then. |
Key Cases Cited
- People v. Manzo, 53 Cal.4th 880 (Cal. 2012) (statutory construction principles; consider plain meaning then legislative history)
- People v. Bostick, 46 Cal.App.4th 287 (Cal. Ct. App. 1996) (drive‑by/vehicle‑based shooting statute covers stationary vehicles used as staging grounds)
- People v. Beeman, 35 Cal.3d 547 (Cal. 1984) (elements of aiding and abetting)
- People v. Cooper, 53 Cal.3d 1158 (Cal. 1991) (robbery/aider liability continues while acts constituting offense continue; getaway driver analysis)
- People v. Mouton, 15 Cal.App.4th 1313 (Cal. Ct. App. 1993) (convictions as principal and accessory permissible when supported by distinct acts)
- People v. Riley, 20 Cal.App.4th 1808 (Cal. Ct. App. 1993) (affirming both principal and accessory convictions where post‑crime acts were distinct)
- People v. Smith, 37 Cal.4th 733 (Cal. 2005) (attempted murder requires specific intent to kill; intent may be inferred from firing at close range)
- People v. Cuevas, 12 Cal.4th 252 (Cal. 1995) (treatment of repudiated out‑of‑court statements under substantial‑evidence review)
- People v. Gonzalez, 2 Cal.5th 1138 (Cal. 2017) (§ 422 excludes purely nonverbal threats; surrounding circumstances may clarify ambiguous verbal threats)
- People v. Jennings, 50 Cal.4th 616 (Cal. 2010) (a defendant may be convicted of murder and accessory to murder if defendant aided before/during and after the crime)
- People v. Gutierrez, 58 Cal.4th 1354 (Cal. 2014) (remand for resentencing required unless record clearly shows same result would obtain)