THE PEOPLE, Plaintiff and Respondent, v. DARRELL WHITSON, Defendant and Appellant.
B305714
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Filed 5/24/22
Opinion following transfer from Supreme Court; CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. TA013892)
Boyce & Schaefer and Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael Katz, Idan Ivri and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
In the early 1990s, defendant and appellant Darrell Whitson was convicted of first degree murder, three counts of willful, premeditated, and deliberate attempted murder, and conspiracy to murder, in a drive-by shooting case. Whitson petitioned for resentencing as to all five counts pursuant to Senate Bill No. 1437 (Senate Bill 1437) and
On appeal, we affirmed with respect to the conspiracy to murder and attempted murder convictions, but reversed and remanded with respect to the murder conviction.
The Supreme Court granted Whitson‘s petition for review. (S268189, May 26, 2021.) On January 10, 2022, the Supreme Court transferred the matter back to this court with directions to vacate our decision and reconsider the case in light of Senate Bill No. 775. (Stats. 2021, ch. 551, § 2) (Senate Bill 775).
We vacated our March 4, 2021 opinion, and now issue this revised opinion addressing all of Whitson‘s arguments, including his new arguments that Senate Bill 775 extends
FACTS AND PROCEDURAL HISTORY2
The Crimes
On July 7, 1991, Whitson was driving a blue Jeep. Fifteen-year-old Vernon Cox, who testified for the prosecution at trial under a grant of immunity, was in the passenger seat. Whitson met codefendant Shon Ramone Yokely.3 The two were members of a Crips gang, a rival to the Bloods gang to which one of the victims, Albert Jones, belonged. (Yokely, supra, B074241 [nonpub. opn.].) Whitson told Yokely he was going to drive around looking for Bloods and invited him to come along. Yokely agreed, but first ran into a nearby residence. When he returned there was something in his waistband. (Ibid.) Whitson drove into Bloods territory, and slowed in front of a residence where Albert, his brother Paul, his sister Katie, and Katie‘s daughter Mitchshale were standing. (Ibid.) Yokely, who was sitting in the back seat on the driver‘s side, opened fire on the family. He shot Albert in the shoulder and ear, Katie in the leg, Paul in the leg, and 14-month-old Mitchshale in the head, killing her. The Jeep sped away. (Ibid.)
The Trial
As relevant here, the jury was instructed regarding direct liability as an aider and abettor (CALJIC No. 3.01), aider and abettor liability for murder as natural and probable consequence of assault with a firearm (CALJIC No. 3.02), attempted premeditated murder (CALJIC No. 8.67), conspiracy to murder and overt acts, as well as liability for the natural and probable consequences of acts in furtherance of conspiracy to murder (CALJIC Nos. 6.10 & 6.11), premeditation and deliberation (CALJIC No. 8.20), and transferred intent (CALJIC No. 8.65).
The jury found Whitson guilty of first degree murder (
Direct Appeal
On appeal before another panel of this court, Whitson argued that there was insufficient evidence to support the finding that he was either a co-conspirator or an aider and abettor of the shooting (Yokely, supra, B074241 [nonpub. opn.]), that certain weapon evidence was erroneously admitted, and that the trial court erred in imposing firearm enhancements under
Petition for Resentencing
On March 26, 2019, Whitson filed a petition for resentencing under
The People filed a response on September 20, 2019, contending that Senate Bill 1437 was unconstitutional, but that, even if the court were to find the legislation constitutional, Whitson was ineligible for relief because: (1) in finding Whitson guilty of conspiracy to commit murder the jury necessarily found
that he harbored an intent to kill; (2) in finding Whitson guilty of the three attempted murders the jury necessarily found that he harbored an intent to kill; and (3) the jury‘s findings that Whitson intended to kill the three attempted murder victims transferred to the murder victim.
Whitson‘s appointed counsel filed a reply pursuant to
On March 4, 2020, the trial court denied the petition after reviewing the pleadings, a “dummy file” created by the clerk‘s office in chambers, and “numerous writs and motions . . . unrelated to the issues” that codefendant Yokely had filed. The court did not issue an order to show cause or hold a hearing.
The court ruled that Whitson failed to establish a prima facie basis for relief, and denied the petition as a matter of law, stating:
“The case reflected a classic drive-by shooting that was a particularly vogue activity for gangs at that time. Petitioner was a very active gang member with the 118th Street East Coast Crips. The Crips were a bitter rival of the Blood Gangs. Petitioner was the driver of the vehicle and stopped his car to tell Yokely, the shooter, that they were on their way to roll around to
see some Bloods. Yokely said he wanted to come along. Yokely went to a house. Petitioner waited for Yokely. And when he returned to the car, he, Yokely, was holding something in his waistband. The clear and reasonable inference from these circumstances is that Yokely was carrying a gun, and they were going to drive around hunting for Blood gang members to shoot. This was more than mere involvement in the shooting.
“Petitioner was literally the driver of this expedition. Petitioner came up with the idea. His driving pattern was very deliberate. He went to the rival gang‘s territory and slowed down the vehicle so Yokely could shoot. Then he drove off to flee the scene of the shooting. “Furthermore respondent‘s point is well taken that we should respect the fact-finding of the jury. Petitioner was also convicted of three counts of attempted murder, again reflecting their finding that he had the specific intent to kill.
“In short, petitioner was clearly a major participant in the killing and acted with reckless indifference to human life.”
Appeal from the Trial Court‘s Order Denying Resentencing
On appeal from the trial court‘s order denying resentencing, Whitson contended that because the jury was instructed on a natural and probable consequences theory of liability in all five counts, and could have found him guilty on that theory, the trial court erred in finding Whitson was prima facie ineligible for relief as matter of law.
At the time of Whitson‘s appeal, the courts did not interpret
denying the petition with respect to the convictions for attempted murder (counts 2, 3, and 4), and for conspiracy to murder (count 5). We reversed and remanded with respect to the murder conviction in count 1, for the reasons we discuss post.
The Supreme Court granted Whitson‘s petition for review but deferred briefing pending consideration and disposition of People v. Lopez, S258175, Nov. 13, 2019, or further order of the court.
On January 10, 2022, the Supreme Court transferred the matter back to this court with directions to vacate our decision and reconsider the case in light of Senate Bill No. 775. We vacated our opinion as ordered.
DISCUSSION
In his supplemental briefing, Whitson contends that the trial court erred by summarily denying his petition because the record establishes that the jury was instructed on the natural and probable consequences theory of liability
The People oppose reversal of the trial court‘s order with respect to the murder and conspiracy to murder convictions, but concede that reversal is appropriate with respect to the attempted murder convictions.
We reverse and remand for the trial court to conduct further proceedings with respect to the murder and attempted murder convictions, but affirm the trial court‘s denial of Whitson‘s
Legal Principles
Through
As relevant here, Senate Bill 775 amended
People v. Lee (2018) 24 Cal.App.5th 50, 57).
Pursuant to
If the petition is facially sufficient and the petitioner has requested that counsel be appointed, the trial court appoints counsel. (
entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.” (
Murder Conviction
With respect to Whitson‘s murder conviction, the People argue that the petition fails as a matter of law because the jury found him guilty of conspiracy to murder, which required that it first find that Whitson intended to kill. Whitson could therefore still be convicted of murder after the amendments to sections 188 and 189, and is ineligible for relief.6
“[C]onspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the target crime, here murder, the
Had the jury been fully instructed with respect to conspiracy to murder, including the portion of the form instruction deleted, its guilty verdict would have encompassed the finding that Whitson intended to kill. (See People v. Medrano (2021) 68 Cal.App.5th 177, 182–184, 186 (Medrano).) That finding would have precluded relief for the murder conviction, as Whitson could still be convicted under section 188, following the amendments effected by Senate Bill 1437. (See
The trial court also instructed the jury under CALJIC No. 6.11:
“Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if such act or such declaration is in furtherance of the object of the conspiracy.
“The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators.
“A member of a conspiracy is not only guilty of the particular crime that to [his] knowledge [his] confederates agreed to and did commit, but is also liable for the natural and probable consequences of any [crime] [act] of a co-conspirator to further the object of the conspiracy, even though such [crime] [act] was not intended as a part of the agreed upon objective and even though [he] was not present at the time of the commission of such [crime] [act].
“You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and, if so, whether the crime alleged [in Count[s] one, two, three & four] was perpetuated by [a] coconspirator[s] in furtherance of such conspiracy and was a natural and probable consequence of the agreed upon criminal objective of such conspiracy.”
deliberate intention to
We are not otherwise persuaded by the People‘s argument that the jury‘s true finding against Whitson on overt act 5—charging that “[o]n or about July 7, 1991, the defendants and others shot and killed 14 month old Mitchshalae [sic] Davis“—constitutes a jury finding that Whitson intended to kill the victim. The jury was instructed that an overt act is any step taken beyond mere agreement and planning toward committing murder. Significantly, it was further instructed that, “[t]o be an ‘overt act‘, the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy.” Nothing in these instructions suggests the jury‘s true finding equates to a finding that Whitson possessed the intent to murder. Absent an express finding by the jury of intent to commit murder, Whitson is not barred from relief on that basis as a matter of law.9
Attempted Murder Convictions
We agree with the parties that the matter must be reversed and remanded with respect to the attempted murder convictions as well.
As we have discussed, the trial court‘s deletion of the phrase “and with the further specific intent to commit [murder]” from the jury instruction on conspiracy to murder precludes a finding that Whitson is ineligible for
intent informs our decision regarding whether Whitson can be found prima facie ineligible for relief for those convictions because it demonstrates an important limitation on what we know about the jury‘s findings in reaching its verdicts. The court‘s modification of the standard instruction, however, does not bring Whitson‘s conspiracy to murder conviction within the rubric of
We reject Whitson‘s assertion that
“We conduct a de novo review of questions of statutory interpretation. [Citation.] The fundamental task of statutory interpretation is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. [Citation.] We begin with the statute‘s text, assigning the relevant terms their ordinary meaning, while also taking account of any related provisions and the overall structure of the statutory scheme. [Citation.] Essential is whether our interpretation, as well as the consequences flowing therefrom, advances the Legislature‘s
intended purpose. [Citation.]” (People v. Santos (2020) 53 Cal.App.5th 467, 473.)
The plain language of
While we need not go beyond the express, unambiguous language of the statute, the omission of convictions for conspiracy to murder is consistent with the Legislature‘s purpose in enacting Senate Bills 1437 and 775—to ensure, with certain exceptions related to felony murder that “a conviction for murder requires that a person act with malice aforethought[,]” and that “culpability for murder [is] premised upon that person‘s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).) Senate Bill 1437 added
Code to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (c).) Senate Bill 1437 also amended sections 188 and 189—which relate to natural and probable consequences murder and felony murder, respectively—to accomplish this goal. Subsequently, Senate Bill 775 was promulgated, in part, to amend
Nothing in the legislative history of either Senate Bill 1437 or Senate Bill 775 evinces a legislative intent to lessen the penalty for conspiracy to murder under any circumstance. This is presumably because the crime as defined in the Penal Code is based on the conspirator defendant‘s own subjective mens rea: conspiracy to murder requires that a defendant either act with malice or intend to kill.10 (Medrano, supra, 68 Cal.App.5th at pp.
182-183 [“[A] conviction of conspiracy to commit murder requires a
Finally, Whitson argues that his conspiracy to murder conviction fits within the meaning of the following phrase in
[“voluntary manslaughter may . . . occur when one kills with a conscious disregard for life but no intent to kill“].)
DISPOSITION
The trial court‘s order denying Whitson‘s resentencing petition is affirmed as to his conviction for conspiracy to murder in count 5. As to the murder conviction in count 1 and the attempted murder convictions in counts 2 through 4, we reverse and remand to the trial court for further proceedings.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.