230 Cal. App. 4th 305
Cal. Ct. App.2014Background
- On Dec. 8, 2011, two men (later identified as Marcus White and Dimitri Gales) approached Luis Diaz and Jason Ayala; shots were fired, Diaz was wounded, and bullets struck an occupied apartment wall. A security-camera video and recovered handgun tied the shootings to a gun later discarded by White. Both defendants had gang connections (Tree Top Piru).
- Gales was convicted of shooting at an inhabited dwelling (Pen. Code § 246) and attempted voluntary manslaughter (lesser of murder count); the jury found gang enhancements. White was convicted of shooting at an inhabited dwelling and being a felon in possession of a firearm (§ 12021(a)(1)); he admitted a prior serious felony.
- Police witnesses testified to Ayala’s excited statements at the scene and to Ayala’s field identifications; Ayala did not testify at trial. White testified he fired three shots at a house after Gales handed him a gun and urged him to “go get them.” Gales testified he did not fire and had fled.
- Trial court admitted the excited statements/field IDs over Confrontation Clause and hearsay objections, instructed juries on aiding-and-abetting liability (not on natural-and-probable-consequences), and convicted both defendants. Sentences were imposed but contained custody-credit and assessment calculation errors.
- On appeal the court upheld convictions and most rulings, corrected sentencing assessment and custody-credit errors, and remanded to amend abstracts of judgment.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Ayala’s out-of-court statements and field IDs (Confrontation/hearsay) | Statements were nontestimonial excited utterances made during an ongoing emergency and properly admissible; field IDs were to end the emergency | White: admission violated Sixth Amendment (testimonial) and hearsay rules | Court upheld admission: statements were nontestimonial/excited under Crawford/Davis/Bryant and Romero; no Confrontation Clause violation and admissible under Evid. Code §1240 |
| Sufficiency of evidence for Gales’s §246 conviction (aider & abettor mental state) | Evidence showed Gales aided and abetted (handed gun, urged shooting; building was within firing range); general-intent crime does not require sharing a perpetrator’s specific targeting intent | Gales: insufficient proof he knew or shared White’s specific intent to shoot at the building | Court held substantial evidence supported aider-and-abettor liability: §246 is a general-intent offense, so aider need only knowingly facilitate the act (not share a more specific intent) (Hernandez/Overman framework) |
| Failure to instruct sua sponte on lesser included offense §246.3 (grossly negligent discharge) | N/A (People opposed instruction) | Appellants: court should have instructed on grossly negligent discharge as a lesser included offense | Court held no duty to instruct: evidence supported only shooting at an inhabited dwelling (high probability of death/injury/firing range) and not the lesser §246.3 theory (Ramirez governs) |
| Double punishment under §654 for White (shooting at inhabited dwelling vs. felon-in-possession) | Separate punishments proper because possession was divisible (retained firearm after shooting; acted with separate objectives) | White: §654 bars multiple punishments because possession was incidental/simultaneous with the shooting | Court held §654 did not bar separate punishment: substantial evidence showed White possessed the gun before/after and retained it when he believed safe (Jones/Ratcliff distinguished Bradford/Venegas/Lopez) |
| Custody credits & mandatory assessments (sentencing math) | Respondent: trial court failed to impose required duplicate assessments per count and conceded custody-credit math error | Appellants: entitled to additional actual-custody day and additional assessments per conviction | Court modified judgments: custody credits increased by 1 day (to 642 days) and added additional $40 court operations and $30 court construction fees per defendant; directed amended abstracts |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (defines testimonial statements for Confrontation Clause analysis)
- Davis v. Washington, 547 U.S. 813 (U.S. 2006) (distinguishes testimonial vs. nontestimonial statements in emergency contexts)
- Michigan v. Bryant, 562 U.S. 344 (U.S. 2011) (further framing of emergency-purpose inquiry under the Confrontation Clause)
- People v. Romero, 44 Cal.4th 386 (Cal. 2008) (police encounter/excited identification shortly after attack deemed nontestimonial)
- People v. Mendoza, 18 Cal.4th 1114 (Cal. 1998) (aiding-and-abetting principles; aider must know perpetrator’s criminal purpose)
- People v. Overman, 126 Cal.App.4th 1344 (Cal. Ct. App. 2005) (§246 as a general-intent offense; firing in proximity shows conscious indifference)
- People v. McCoy, 25 Cal.4th 1111 (Cal. 2001) (two forms of aider-and-abettor liability and required mental states)
- People v. Ramirez, 45 Cal.4th 980 (Cal. 2009) (relationship between §246 and §246.3; §246.3 is a lesser included offense)
- People v. Jones, 103 Cal.App.4th 1139 (Cal. Ct. App. 2002) (possession by a felon punishable separately when defendant possessed firearm before/after the principal offense)