P. v. Childress
Filed 9/4/13
P. v. Childress CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOEL
CHILDRESS et al.,
Defendants and Appellants.
B238241
(Los Angeles County
Super. Ct. No. BA356413)
APPEALS from judgments of
the Superior Court of
County. Ronald S. Coen,
Judge. Affirmed.
Joana McKim, under
appointment by the Court of Appeal, for Defendant and Appellant Joel Childress.
Waldemar D. Halka, under
appointment by the Court of Appeal, for Defendant and Appellant Kelsie J.
Palmer.
John A. Colucci, under
appointment by the Court of Appeal, for Defendant and Appellant Eric Allen.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Victoria B. Wilson and Erika D. Jackson, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendants and
appellants Joel Vincent Childress (Childress), Kelsie James Palmer (Palmer),
and Eric Gerare Allen (Allen) (collectively defendants) appeal their
convictions of murder, attempted murder, and making a criminal threat. Childress contends that substantial evidence
does not support his murder or attempted murder convictions, the finding of
premeditation and deliberation, or the gang and multiple-murder special
circumstances. Palmer and Allen contend
that the trial court erred in refusing to sever the murder charge against
Childress in count 1 from the remaining charges. Palmer asserts Aranda-Bruton and
interview with detectives; and all defendants assert several instructional
errors and join in the arguments of the other defendant to the extent such
arguments might apply to their benefit.
Allen contends that his 107 years to life sentence was cruel and unusual
under the federal constitution. We reject Allen’s constitutional claim but
modify his sentence to comply with statutory requirements, and reject
defendants’ other contentions and affirm the judgments.
BACKGROUND
Procedural history
An amended information charged defendants with the
following crimes:
count 1 charged Childress
with the murder of Jose Martinez (Martinez) in violation of Penal Code section
187, subdivision (a);
name="_ftnref2" title="">[2] count 2 charged the murder of Rosa Maria
Gallegos (Gallegos) in violation of section 187, subdivision (a); count 3
charged the attempted willful, deliberate, and premeditated murder of Kenneth
Thomas (Thomas) in violation of sections 187, subdivision (a), and 664; count 4
charged the attempted willful, deliberate, and premeditated murder of Luis
Miralda (Miralda); and count 5 charged defendants with making criminal threats
against Yvonne Love (Love) in violation of section 422.
The amended information specially alleged in count 1 that
the murder was one of multiple murders committed by Childress within the
meaning of section 190.2, subdivision (a)(3).
In count 2, the information alleged pursuant to section 190.2,
subdivision (a)(22), that defendants committed the murder as active
participants in a criminal street gang and in furtherance of the activities of
the gang. In counts 1, 2, 3, 4, and 5,
the amended information alleged pursuant to section 186.22, subdivision
(b)(1)(C), that the crimes were committed for the benefit of, at the direction
of, and in association with a criminal street gang, with the specific intent to
promote, further and assist in criminal conduct by gang members. As to counts 1, 2, 3, and 4, it was alleged
that a principal personally and intentionally used and discharged a firearm,
within the meaning of section 12022.53, subdivisions (c) and (e)(1). As to count 1, it was alleged that the
discharge of the firearm proximately caused great bodily injury and death to Martinez. As to count 2, it was alleged that the
discharge of the firearm proximately caused great bodily injury and death to
Gallegos.
Defendants were tried together before a single jury,
which convicted them of counts 2, 3, 4, and 5 as charged, found the murders to
be in the first degree, and found the attempted murders to have been committed
willfully, deliberately, and with premeditation. Childress was convicted of murder in the
second degree in count 1. The jury found
true all special allegations and the special circumstances.
On January 3,
2012, the trial court sentenced Childress and Palmer each to the
middle term of two years in prison as to count 5 as the base term, plus a
consecutive five-year enhancement due to the gang finding. The court sentenced Childress to a
consecutive term of 15 years to life as to count 1, plus a firearm enhancement
of 25 years to life. As to the remaining
counts, the trial court imposed upon both Childress and Palmer consecutive
prison terms and enhancements as follows:
life without the possibility of parole (LWOP) as to count 2, plus a
firearm enhancement of 25 years to life; a life term on each of counts 3 and 4,
plus a consecutive firearm enhancement of 25 years to life. Additional firearm enhancements and gang
enhancements were imposed and stayed.
Childress and Palmer were ordered to provide tissue samples and to pay
mandatory fines, fees, and victim restitution.
Childress was awarded 971 days of actual custody credit. Palmer was awarded 965 days of actual custody
credit.
On January 20,
2012, the trial court sentenced Allen (whose age was 15 years 11
months at the time of the crimes) to the middle term of two years in prison as
to count 5, plus a consecutive five-year enhancement due to the gang
finding. As to count 2, the court
sentenced Allen to 25 years to life instead of LWOP due to his youth, plus a
consecutive firearm enhancement of 25 years to life. The court imposed sentences on counts 3 and 4
identical to those imposed on Childress and Palmer: life in prison plus a consecutive a firearm
enhancement of 25 years to life as to each count. Additional firearm enhancements and gang
enhancements were imposed and stayed.
Allen was ordered to provide tissue samples and to pay mandatory fines,
fees, and victim restitution. He was
awarded 882 days of actual custody credit.
Defendants filed timely
Prosecution evidence
evidence
All
parties stipulated that the Black P-Stone Gang (P-Stone or P-Stones) was a
criminal street gang within the meaning of section 186.22 and to the admission
of certified court records of the 2009 conviction of P-Stones member Justin
Birdsong for felony possession of cocaine base for sale, and the 2011 robbery conviction
of P-Stones member Kevin Lamar Sanford.
Officer
Brian Thayer of the Los Angeles Police Department (LAPD) Southwest Gang Impact
Team, arrested Palmer in May 2009.
Officer Thayer testified he recognized Palmer from about 25 prior
contacts. Palmer had been served with a
P-Stones gang injunction and admitted to Officer Thayer he was a member of the
P-Stones. Since 2004, Officer Thayer
also had many contacts with Allen who had also been served with a gang injunction. Allen admitted being a member of the
P-Stones, and other gang members have identified Allen as an active member of
the gang. LAPD Officer Geraldine Vasquez
testified she had stopped Allen and Palmer together in August 2007 at which
time they both admitted they were members of the P-Stones.
LAPD
Officer Kenneth Sanchez testified as the prosecution’s expert on gangs. He testified that the primary activities of
the P-Stones were vandalism, robbery, carjacking, burglary, bank robbery,
murder, attempted murder, home invasion, and extortion and that he had arrested
or investigated P-Stones members for such crimes. The P-Stones was a Blood gang with mostly
African-American members and several subsets, including the Jungle clique and
the Bity Stones, also known as City Stones.
Its territory bordered or sometimes conflicted with that of rival gangs,
including several Crip gangs and the 18th Street
Gang (18th Street). 18th Street
was primarily a Hispanic gang, although it had some African-American
members. Alsace,
a clique within 18th Street,
the Schoolyard Crips, and the Rollin’ 60’s, were also rivals of P-Stones.
P-Stone members often wore red, preferring red St. Louis
Cardinals hats with the letters S, T, and L which signified “Stone Love†to
them. P-Stone members often wore tattoos
with a St. Louis Cardinals emblem, as well as BPS, CS (for subset City Stones),
BS (for either subset Bity Stones or for Black Stones), or a five-pointed star
(signifying love, peace, truth, justice, and freedom). The tattoos often included crossed-out
letters associated with rival gangs; thus a crossed-out E or 8 would signify
its rivalry with 18th Street.
Officer
Sanchez testified that respect was very important in gang culture, explaining
that each gang had a hierarchy, with levels of status comparable to ranks in a
command structure. Gang members earned
respect and thus elevated status by “putting in work†for the gang, which meant
committing crimes that brought in revenue or spread fear in the community. Because respect and fear were so important to
the gang’s ability to control its territory, the crime of murder garnered the
greatest respect. Other ways to earn
respect included intentionally disrespecting rivals by crossing out graffiti in
their territory, replacing it with P-Stones graffiti, or writing graffiti that
was otherwise disrespectful of rivals.
The
territory of the P-Stones Jungle set included lower Baldwin Village. The territory of the Bity Stones set was
primarily the West Adams corridor, including the area of Adams and Crenshaw
Boulevards, which was close to 18th Street territory. Members of 18th Street mostly congregated in
the West Adams corridor near 11th Avenue and Jefferson Boulevard. Both 18th Street and West Boulevard Crips
claimed the intersection of Adams and Rimpau Boulevards. Officer Sanchez testified that wearing a blue
bandanna in Crips territory might signify to a P-Stones member that the person
was a Crip gang member, while wearing a Los Angeles Dodgers hat in 18th Street
territory might signify to a P-Stones member that the person was an 18th Street
gang member. In such circumstances, or
where any young Latino man is simply talking to a young Latino woman in 18th
Street territory, younger P-Stones members would feel obligated to confront or
take some action that would make themselves known and show dominance. Officer Sanchez explained that gang members
usually did not enter rival gang territory without expecting a confrontation in
the form of a fight or a shoot-out.
murder (count 1)
Detective James Yoshida of the LAPD Criminal Gang
Homicide Division testified he was assigned to investigate the shooting death
of Martinez on February 5, 2008, near Adams and Rimpau Boulevards. Martinez had suffered two bullet wounds to
the head, one fatal. As part of his
investigation, Detective Yoshida interviewed Donoven Gray (Gray) in May 2008.
shooting when he attempted to dispose of the revolver which was later
determined to have been used in the shooting.
Detective
Yoshida also obtained surveillance videos of the crime scene from a liquor
store and motel. Portions of the video
recordings were played for the jury.
Since the picture quality was poor, Detective Yoshida described the
images for the jury. He explained the
white four-door sedan seen circling around and slowing to a stop at the curb in
front of the liquor store where the victim was standing, before making a
three-point turn and coming to a stop.
Two flashes were then seen in front of the liquor store, after which a
person ran toward the white car, which then travelled eastbound on Adams
Boulevard behind a bus and stopped at a stop sign on the southeast corner of
Adams and Rimpau Boulevards.
Detective
Yoshida also identified several still photographs taken from the video recordings,
showing a person in dark clothing getting out of the white car in front of the
liquor store and of the car making a turn at Adams and Rimpau Boulevards. With enhancement of the photographs,
Detective Yoshida determined that the white car was a Chevrolet Malibu sedan
from 1999 or 2000. He saw such a car a
few days later several blocks from the crime scene and noted the license plate
number: 4DRD657. Later, when he again searched for the car, he
found a similar Malibu, black in color, with no license plate, parked almost
directly in front of the address where he had seen the white Malibu.
In May 2009, Detective Yoshida and others interviewed
Childress who was in custody on other charges.
Childress said the black Malibu and the white Malibu were the same car,
and he identified photographs of Gray and Kinano Massengale (Massengale), whose
monikers were “Devil†and “G-9.†The
Malibu belonged to Childress’s mother, who had painted the car after an
accident. After Detective Yoshida
described the Martinez shooting and told Childress that his car had been seen
in video footage of the incident, Childress then related the events of the
evening: he met up with Gray,
Massengale, and another man, “Ace Caponeâ€; Massengale wanted to “put in workâ€
because he felt he did not do enough; when Gray saw the victim in front of the
liquor store, he told Childress to go back and said something about “my evil
faceâ€; Childress returned and parked; Massengale got out of the car, fired some
shots, and ran back to the car.
Childress
told the detectives he usually lived with his mother, but stayed occasionally
at the address where the Malibu was found.
He admitted being a member of the P-Stones since high school, and that
members of the gang understand that getting out of a car to “bang†on someone
meant that violence would result.
Initially Childress denied knowing that Massengale had a gun that
evening, but later admitted that after he picked up the others, he guessed they
stopped at Gray’s grandmother’s house to pick up a gun. Childress agreed that ordinarily when a gang
member got out of a car to bang on someone, he would not be armed with a knife
or pipe; but he added that Massengale did not get out of the car, as the “dude
was already in the street. He just
opened his door . . . and just started shooting at him†with a
revolver. Childress suggested he had no
choice but to do as he was told by the others because they would probably “hunt
[him] down†otherwise.
Detective Yoshida testified that although Martinez was
not a gang member, the area of the shooting was in 18th Street territory and
the black LA Dodgers cap worn by Martinez was ordinarily associated with the
Alsace faction of 18th Street. Detective
Yoshida explained it was common in gang related shootings for there to be
several occupants in the car, so that the shooter and others involved would
have an eyewitness to provide the proof necessary to gain the gang’s respect
for committing the crime. It was also
important to have a getaway driver to facilitate a fast escape from “behind
enemy lines†-- in this case, 18th Street gang territory.
May 8 shooting and threats (counts 2-5)
Sometime after 10:00 a.m. on May 8, 2009, Love was
walking along Exposition Boulevard wearing a blue bandanna on her head. A black Chevrolet Malibu stopped next to her
at a stop sign, and the front passenger, whom she later identified as Palmer
said, “You shouldn’t be wearing that rag, bitch,†and asked where she was
from. Love had heard of the Crip and
Blood gangs and knew that Crips wore blue while Bloods wore red. Palmer was wearing a red and gray sweatshirt;
and she understood him to be referring to her blue bandanna and asking her what
gang she belonged to. When Love replied
she was a grown woman and did not bang, Allen got out of the back seat of the
Malibu and held a revolver against her side.
Meanwhile, Palmer was “running his mouth†while holding a gun in his
lap, saying such things as, “Bitch, you don’t know who you fucking with.â€
Initially
Love was not afraid, but became frightened when Palmer continued “pumping
[Allen] up†while Allen’s hand was on the trigger. Then Allen said, “Bitch, you can get smoked,â€
which she interpreted as a threat to shoot and kill her. During the encounter, the driver who Love
later identified as Childress, got out of the car and said, “Bullets ain’t got
no name on it,†which Love understood to mean that anyone could be shot. Finally Love said, “If you going to do
something, you going to do something, I’m tired of standing here waiting. If you going to do it, you going to do
it.†Defendants then drove away. Love took down their license plate number and
called 911.
Meanwhile, 19-year-old Gallegos was sitting in the
driver’s seat of her parked car outside her boyfriend, 19-year-old Miralda’s home
on 11th Avenue near Jefferson Boulevard, a neighborhood where 18th Street gang
members lived or congregated. Thomas,
Miralda’s 32-year-old African-American neighbor was standing next to Miralda
while he spoke with Gallegos. A black
Malibu pulled up and stopped alongside Gallegos’s car.
Miralda
was frightened when he saw two African-American men in the front seat of the
Malibu because he had heard that P-Stone gang members targeted Latinos. A few seconds after the Malibu stopped,
Miralda saw the rear passenger emerge and fire a weapon. Thomas thought there had been two men in the
back seat and that both fired guns.
Thomas also saw the front passenger point a gun at him from the
car. Thomas was struck in the arm by a
bullet, shattering the bone and leaving him without gripping strength. Gallegos was struck four times and died from
her wounds. As soon as the shooting
stopped, the Malibu left in the direction of Jefferson Boulevard.
Later
the same day, detectives transported Miralda to a gas station where a black
Malibu and its driver had been detained.
Miralda identified the black Malibu as the one involved in the shooting
and Childress as the driver. Miralda
later identified the front passenger as Palmer and the shooter as Allen.
Interview
During
their investigation of the Gallegos murder, Detectives Brian Calicchia and
Richard Gordon interviewed Allen in December 2009. Portions of the recorded interview were
played for the jury after the trial court admonished: “[T]he contents of this are admissible and I
believe admitted against defendant Allen only and not to any other defendant.â€
At first
Allen denied he was a member of the P-Stones but later admitted that he had
been “running with†the gang for a year.
He also denied at first that he had ever been in a white or black
Chevrolet Malibu, and claimed that he was in school on May 8, 2009. Allen then admitted he was in the back seat
of the car, riding around and smoking, and that while they were on their way to
buy tobacco, they saw the woman in the blue bandanna. After “talking shit†to the woman, Allen and
his companion drove off laughing. Allen
claimed to not remember getting out of the car or what he said.
After
the incident with Love, they saw three people.
Allen told the detectives: “When
they drove by they like banged off -- I guess banged on somebody. And (inaudible) you know pointing something
at them. Then ask him and then they did
what they did. Like that.†Allen claimed that one of three, a man
wearing a T-shirt, extended his arm, pointed something, started shooting, and
then ran away. Allen denied he had been
armed and claimed that he did not know “that they was going to do nothing like
that†or that they had killed someone.
One of his companions tossed a gun to another companion, but Allen
claimed not to have seen whether it was a semiautomatic or a revolver -- “It
was like brown or something.â€
expert’s opinions
Officer
Sanchez was recalled to give his expert opinions based upon his gang expertise,
his review of LAPD resources, his personal contacts with gang members, and the
nature of the tattoos observed on defendants and their associates. In Officer Sanchez’s opinion, Gray,
Massengale, Childress, Palmer, and Allen were all members of the P-Stones. In May 2009, Childress, Palmer, and Allen
were active participants in the gang.
Officer
Sanchez explained the significance of defendants’ various tattoos which
demonstrated association with the P-Stone gang or its cliques and disrespect
for rival gangs. Allen’s tattoos included
“NRK†meaning the “No Respect Crew,†a clique of the P-Stone gang and a tattoo
of a crossed-out common Crip sign. The K
in lieu of a C and the crossing out were meant to demonstrate hatred for Crip
gangs. In a photograph of Childress
taken after his arrest, “Bitys†appears on his chest, with an X over the
Y. “City Stones†and “1â—¦5â—¦8â€
appear on his abdomen, with an X over the over the C, Y, O, E, and 8. Officer Sanchez explained that the X’s
represented disrespect for rival gangs.
In particular the E and 8 are crossed out to show disrespect for 18th
Street gang. Additionally, Officer
Sanchez explained the icons on the cell phone taken from Childress after his
arrest, “fugk tha fakez†over “FFK.JPG,†symbolized the P-Stone’s hatred for
18th Street.
In
response to three hypothetical questions that tracked the facts in evidence
regarding the Martinez shooting, the threats made to Love, and the Gallegos
shooting, Officer Sanchez opined the crimes were committed in association with
the P-Stone gang in order to benefit the gang.
Defense evidence
Allen
called Detective Calicchia to explain law enforcement’s documentation of
investigatory stops and arrests of gang members. Palmer called Detective Gordon, who had
interviewed Thomas on May 11, 2009, as well as Detective Calicchia, who had interviewed
Love on May 8, 2009, in order to show that some of the witnesses’ trial
testimony conflicted with some of the information provided in their
interviews. A recording of the Love
interview was played for the jury.
Palmer
presented the testimony of Dr. Robert Shomer, an experimental psychologist who
specialized in eyewitness identification, who explained unreliability of
eyewitness identification, including how such factors as stress and the use of
weapons negatively affect a witness’s recall and accuracy, and how earlier
identifications could affect later ones.
Childress
did not testify or present other evidence in his defense.
DISCUSSION
I. Childress: sufficient evidence
Childress contends that his convictions of murder and
attempted murder and the special circumstance findings must be reversed
because: (a) there was insufficient
evidence to support a finding that he or his companions harbored an intent to
kill the victims or that he facilitated the crimes; (b) the evidence was
insufficient to find that he premeditated and deliberated the murder of
Gallegos; and (c) the special circumstance findings were unsupported by
substantial evidence of intent to kill.
His contentions lack merit.
When a criminal conviction
is challenged as lacking evidentiary support, “the court must review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence -- that is, evidence which is reasonable,
credible, and of solid value -- such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.†(People
v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume in support of the judgment
the existence of every fact the jury could reasonably deduce from the
evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “The same standard applies when the
conviction rests primarily on circumstantial evidence. [Citation.]â€
(Ibid.) We do not reweigh the evidence or resolve conflicts
in the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Reversal on a substantial evidence ground “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’ [Citation.]â€
(People v. Bolin (1998) 18
Cal.4th 297, 331.)
Childress contends that the
evidence was insufficient to support his conviction of murder and attempted
murder as an aider and abettor because substantial evidence did not support a
finding that he shared the actual perpetrators’ intent to kill. We find substantial evidence established that
the shooters in both incidents harbored an intent to kill the victims and that
Childress shared that intent when he facilitated the crimes.
“All persons concerned in
the commission of a crime, . . . whether they directly commit the act
constituting the offense, or aid and abet in its commission . . . are
principals in any crime so committed.†(§
31.) “[A] person aids and abets the
commission of a crime when he or she, acting with (1) knowledge of the unlawful
purpose of the perpetrator; and [with] (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the
crime.†(People v. Beeman (1984) 35 Cal.3d 547, 561.)
“[W]hen the charged offense
and the intended offense . . . are the same, i.e., when guilt does not depend
on the natural and probable consequences doctrine, . . . the aider and abettor
must know and share the murderous intent of the actual perpetrator.†(People
v. McCoy (2001) 25 Cal.4th 1111, 1118; see also People v. Smith (2005) 37 Cal.4th 733, 739.)
Intent to kill may be
inferred from the defendant’s acts and the circumstances of the crime. (People
v. Smith, supra, 37 Cal.4th at p.
741.) Massengale’s act of firing toward
Martinez at a close enough range to inflict two bullet wounds, one of them
fatal, was sufficient to support an inference of intent to kill. (See ibid.) And when Allen, Childress’s fellow gang
member, fired multiple shots at close range at a group of three people in rival
gang territory, the jury could also reasonably infer a specific intent to kill. (See People
v. Rand (1995) 37 Cal.App.4th 999, 1001-1002 (Rand); People v. Francisco
(1994) 22 Cal.App.4th 1180, 1192.)
In addition, ample
evidence supports a finding that Childress knew of the shooters’ intent and
knowingly facilitated both murders and the attempted murders with the requisite
shared mental state. Facts relevant to determining whether
substantial evidence supports such a finding include companionship and conduct
before or after the offense. (
398, 407.) While mere presence at the
crime scene is insufficient, it is a factor to consider. (Ibid.)
the getaway car may give rise to a reasonable inference that the defendant
intended to facilitate the crime. (
733, 743.)
Childress,
an admitted gang member, drove two fellow gang members into rival gang
territory, knowing that they wanted to “put in work for the gang,†or create
fear in the community or show disrespect for rival gang members by committing
violent crimes. Martinez, who was
wearing a black Los Angeles Dodgers hat in 18th Street territory, gave the
appearance of a rival gang member. This
prompted P-Stone members to confront him, an act that by Childress’s own
admission would result in violence.
Childress “guess[ed]†that Gray had a gun. When Gray saw Martinez in front of the liquor
store, Gray pointed Martinez out to Massengale and told Childress to drive
back. The surveillance video shows that
Childress drove back around, stopped, waited for Massengale to fire several
times and then run back to the car, before Childress drove away. Officer Sanchez testified that in drive-by
shootings by gang members, drivers played an important role by getting in and
out of the location quickly in order to avoid police or witness identification.
We find
no merit to Childress’s argument that any intent to facilitate a murder was
negated by his statements to the police that he merely guessed there was a gun
in the car and that he feared the consequences of not doing as he was
told. “[C]onfessions stand upon the same
footing as other evidence and are to be weighed by the jury in the same
manner. All parts are not necessarily
entitled to the same credit, and the jury may believe a part and reject the
remainder of a confession. [Citations.]†(People
v. Garcia (1935) 2 Cal.2d 673, 679.)
Thus the jury was free to reject Childress’s self-serving statements and
credit those that inculpated him. We
decline to second-guess the jury, as the reviewing court neither reweighs the
evidence nor resolves conflicts. (See
The jury could also
reasonably find that Childress knew and shared Allen’s intent to kill Gallegos,
Miralda, and Thomas. Once again
Childress drove fellow P-Stone members to 18th Street territory. On the way, Childress stopped so that he and
his companions could threaten a woman wearing a blue bandanna. Childress certainly knew there were guns in
the car on that day, as Palmer held one in his lap; Allen pointed his gun at
Love while threatening her; and Childress added the threat, “Bullets ain’t got
no name on it.†Childress then drove to
an area where P-Stone members were known to target young Latino people, stopping
his car alongside a young Latino couple in conversation. As Officer Sanchez testified, gang members
usually expected a fight or a shoot-out when they entered rival gang territory,
and Childress’s expectation of a shooting was demonstrated by his role in the
Martinez murder. As in that previous
shooting, it was mere seconds after Childress stopped the car that the shooter
emerged firing his weapon at the victims while Childress waited in the car.
In sum,
substantial evidence established that Childress knowingly drove armed fellow
gang members to rival territory for the purpose of violently confronting
others; that he stopped his car close to the victims; that he waited while his
fellow gang members fired multiple shots at the victims; and that he then drove
his confederates away from the scene.
Thus substantial evidence supported a finding that Childress shared
Massengale’s and Allen’s intent to kill and acted with the purpose of facilitating the commission of the
crimes.
Childress contends that the
evidence of premeditation and deliberation was insufficient to support his
conviction of the first degree murder of Gallegos. This contention is also without merit.
Premeditation and
deliberation means “preexisting reflection and weighing of considerations rather
than mere unconsidered or rash impulse.
[Citation.]†(
1125.) “‘Premeditation and deliberation
can occur in a brief interval. “The test
is not time, but reflection. ‘Thoughts
may follow each other with great rapidity and cold, calculated judgment may be
arrived at quickly.’â€â€™ [Citation.]†(People
v. Sanchez (2001) 26 Cal.4th 834, 849.)
Childress cites
26-27 (Anderson), in which the
California Supreme Court suggested “three types of evidence -- evidence of
planning activity, preexisting motive, and manner of killing -- that assist in
reviewing the sufficiency of the evidence supporting findings of premeditation
and deliberation. [Citation.]†(People
v. Mendoza (2011) 52 Cal.4th 1056, 1069.)
Childress does not discuss motive or manner of killing, but merely
contends that without evidence of a discussion among the three gang members,
driving the car was not enough by itself to suggest planning. There is no requirement that all three
factors be established or that any factor must be shown by direct
evidence. (People v. Perez, supra, at pp. 1124-1125.) It follows that there is no requirement that
planning be established by evidence such as the aider and abettor’s discussion
of his state of mind.
Planning may be reasonably
inferred from evidence that the defendants armed themselves before the
shooting. (See, e.g., People v. Caro (1988)
46 Cal.3d 1035, 1050.) Motive in gang
shootings is reasonably inferred from the hatred felt for rival gang
members. (People v. Sanchez, supra, 26 Cal.4th at p. 849;
evidence of motive. (People v. Scheer (1998)
68 Cal.App.4th 1009, 1017-1018.) Premeditation
and deliberation may be reasonably inferred when a gang member fires multiple
shots at a group of people in rival territory.
(People v. Francisco,
All such evidence was
presented here. Like other
P-Stone members, Childress hated 18th Street members, as demonstrated by his
tattoos, telephone icons, and his participation in the murder in 18th Street
territory of Martinez wearing a hat associated with that gang. We have already found substantial evidence
demonstrating that Childress drove into rival gang territory knowing his fellow
gang members were armed, stopped near a group that included young Latinos, and
waited while Allen shot at them with the intent to kill them. Moreover, we have already found that substantial
evidence supported a finding that Childress shared Allen’s intent to kill. “It would be virtually impossible for a
person to know of another’s intent to murder and decide to aid in accomplishing
the crime without at least a brief period of deliberation and premeditation . .
. . [Citation.]†(People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1166.)
We conclude not only that
substantial evidence supports a finding that Childress aided and abetted the
murder of Gallegos, shared Allen’s intent to kill, and did so with
premeditation and deliberation, but also that such evidence was overwhelming.
Childress
contends that the special circumstances of gang participation and multiple
murder must be reversed because substantial evidence did not support a finding
that he harbored an intent to kill.
As
relevant here, a penalty of LWOP is imposed for murder in the first degree if
the jury finds that “the defendant, in this proceeding, has been convicted of
more than one offense of murder in the first or second degree.†(§ 190.2, subd. (a)(3).) LWOP is also imposed upon a “defendant [who]
intentionally killed the victim while the defendant was an active participant
in a criminal street gang . . . and the murder was carried out to further the
activities of the criminal street gang.â€
(§ 190.2, subd. (a)(22).) A
defendant who aided and abetted such murders is also subject to a penalty of
LWOP if he or she acted with the intent to kill. (§ 190.2, subd. (c).) To convict a defendant who was an aider and
abettor with the special circumstance of multiple murders or gang
participation, the jury was required to find that defendant acted with the
intent to kill. (People v. Jones (2003) 30 Cal.4th 1084, 1117-1118 (
We
have already found substantial evidence
that Childress intentionally facilitated the murders with full knowledge of his
cohorts’ intent to kill and that he premeditated and deliberated the killing of
Gallegos. In addition to the arguments
we rejected in coming to that conclusion, Childress suggests that the jury
should have construed his guess that his cohorts had a gun as a claim that he
was unaware they had a gun, and that the jury was required to believe his
statement to detectives that he thought Massengale merely intended to rob
Martinez.
It
is the province of the jury to believe or disbelieve testimony, resolve
conflicts in the testimony, and draw factual inferences. (People
v. Alexander (2010) 49 Cal.4th 846, 883.) Further, the
fact that the evidence can be reconciled with a contrary finding does not
require reversal. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
Moreover,
we do not agree that the inferences Childress would have this court draw are
reasonable. To guess that something is
true is not a denial; thus, Childress’s guess that his fellow gang member was
armed cannot be reasonably construed as a claim of ignorance. Further, although defense counsel
rob Martinez, that is not what Childress said.
Childress told Detective Yoshida the reason he felt he could not refuse
to do as the other gang members demanded.
Detective Yoshida suggested, “Yeah, otherwise, they’re going to say,
that guy --â€; Childress interrupted with:
“He just rob him or he’s --â€; Detective Yoshida then completed his
sentence with “That guy bailed on us.â€
The more reasonable interpretation of Childress’s statement was that he
drove the others, knowing they intended to shoot someone, because he did not
want the gang to think he merely meant to rob the victim.
In
any event, the jury was not required to believe Childress’s statement, or give
it any weight. (See People v. Garcia, supra,
2 Cal.2d at p. 679.) We again decline to reweigh the
evidence or resolve evidentiary conflicts.
(See People v. Young,
II. Claimed instructional errors
aider and abettor instruction
Childress contends the trial court erred in failing to
instruct the jury that the intent of an aider and abettor must be formed before
or during the commission of the offense.
He further contends that the omission resulted in a denial of due
process. Both contentions lack merit.
The trial court instructed the jury regarding aiding and
abetting with CALJIC No. 3.01 as follows:
“A person aids
and abets the commission or attempted commission of a crime when he or she,
one, with knowledge of the unlawful purpose of the perpetrator; and two, with
the intent or purpose of committing or encouraging or facilitating the
commission of the crime; and three, by act or advice aids, promotes, encourages
or instigates the commission of the crime.
A person who aids and abets the commission or attempted commission of
the crime need not be present at the scene of the crime. Mere presence at the scene of a crime which
does not itself assist the commission of the crime, does not amount to aiding
and abetting. Mere knowledge that a
crime is being committed and the failure to prevent it does not amount to
aiding and abetting.â€
For aiding and abetting
liability to attach, the intent to aid and abet must be formed prior to or
during the commission of the offense. (See People
v. Cooper (1991) 53 Cal.3d 1158, 1164-1165 (Cooper).) Childress contends
that the trial court should have clarified this rule, such as by using CALCRIM
No. 401.
title="">[5]
As respondent points out,
Childress’s failure to object to CALJIC No. 3.01 resulted in a forfeiture of
this claim of error. (See
1011-1012.) Childress relies on
Supreme Court disapproved of CALJIC No. 3.01 due to the failure of the
instruction to clearly state that intent must be formed prior to or during
commission of the offense. To the extent
that Childress contends that CALJIC No. 3.01 is an incorrect statement of the
law, his failure to object did not result in forfeiture. (See People
v. Hudson, supra, at p. 1012.)
However, the California
Supreme Court did not disapprove of CALJIC No. 3.01. It held that in a robbery case, the jury must be informed that the intent to aid and
abet must exist before the robbers reached a place of safety with the stolen
property. (Cooper, supra, 53 Cal.3d
at pp. 1162-1163, 1167-1170.) As guilt
in this case was not premised on robbery, Cooper
has no application here. Childress’s
reliance on People v. Pulido (1997)
15 Cal.4th 713, is equally misplaced as he was not charged with felony
murder. In that case, the California
Supreme Court held that the Cooper
instruction should not be given in felony murder cases; rather, the jury should
be instructed that a nonkiller must have been an aider and abettor or a
coconspirator at the time of the killing.
(Id. at pp. 723, 726.)
Where,
as here, the defendant has been charged with aiding and abetting a crime
committed with malice aforethought, and the jury has been instructed regarding
premeditation and deliberation, CALJIC No. 3.01 need not be clarified with a
statement that the intent to aid and abet must be formed before or during the
actual offense rather than afterward. (
675.) Further, the instruction
adequately tracks the elements of aiding and abetting set forth in
that an aider and abettor has formed the requisite intent prior to or during
the commission of the crime, because “[i]t is legally and logically impossible
to both form the requisite intent and in fact aid, promote, encourage, or
facilitate commission of a crime after the commission of that crime has
ended.†(Cooper, supra, 53 Cal.3d at p.
1164.) As respondent notes, “Obviously,
a person cannot encourage, facilitate or commit a crime that has already been
committed.†CALJIC No. 3.01 thus
sufficiently instructs the jury that it must find that the defendant’s own
intent and the aiding and abetting coincided with his knowledge of the
perpetrator’s intent to commit or attempt to commit the crime.
Thus, to
the extent Childress assigns error to the trial court’s failure to provide a
clarification of CALJIC No. 3.01, we agree with respondent that he has
forfeited the issue. (See People v. Hudson, supra,
38 Cal.4th at pp. 1011-1012.) Childress
asks that we nevertheless reach the issue as permitted by section 1259 because the error affected
his substantial rights. (See
is determined under the prejudice test of People
v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People
v. Felix (2008) 160 Cal.App.4th
849, 857.) Thus, it must appear
reasonably probable the defendant would have obtained a more favorable result
in the absence of error. (
because there was no substantial evidence that he shared an intent to kill or
even knew that his companions intended to shoot someone. However, we have already rejected those
contentions, finding substantial evidence of Childress’s intent to kill the
victims as well as his premeditation and deliberation in the May 8 shooting.
Childress
also contends that the fact of the jury’s request for a readback of Miralda’s
identification testimony was sufficient, by itself, to suggest prejudice.
of the formation of his intent to aid and abet a murder could affect his
identification as the driver, and we discern no connection between the two
concepts. Nor do we discern any reasonable
probability that a clarification of the timing of his intent would have
affected the verdicts, as Childress did not request an instruction regarding
liability as an accessory and presented no substantial evidence that he formed
his intent to facilitate the murders only after the shooting stopped.
Thus
Childress’s substantial rights were not adversely affected by the trial court’s
reading of CALJIC No. 3.01, and Childress forfeited any claim of error based
upon the absence of language with more precise timing. The language was sufficiently clear to convey
to the jury the concept that intent to aid and abet must exist at the time of
the commission of the crime.
special circumstances instruction
Childress
next contends that the trial court erred in failing to instruct the jury that
in order to find the special circumstances of an aider and abettor true, it
must find that he intended to kill.
An
element of the multiple-murder special circumstance is an intent to kill in at
least one of the multiple murders. (
892.) The trial court was required to
instruct the jury that to find the special circumstances true as to Childress
as an aider and abettor, it must find that he intended to kill. (Jones,
supra, 30 Cal.4th at p. 1119; see
also People v. Williams (1997) 16
Cal.4th 635, 689.) The prejudicial
effect of a failure to so instruct the jury is measured under the test of
18, 24 (Chapman). (Jones,
supra, at p. 1119.) “Under that test, an error is harmless only
when, beyond a reasonable doubt, it did not contribute to the verdict.’ [Citation.]â€
(Ibid.; see also
1, 18.)
We agree
with respondent that the error here was harmless beyond a reasonable
doubt. First, the trial court
sequentially explained the two special circumstances alleged against Childress;
immediately after instructing with regard to the multiple-murder special
circumstance, the court instructed the jury that in order to find the gang
special circumstance, it must find that the defendant intentionally killed the
victim while actively participating in a criminal street gang. Second, as we have previously concluded after a review of the whole
record, overwhelming evidence supported a finding that Childress aided and
abetted the murder of Gallegos, shared Allen’s intent to kill, and did so with
premeditation and deliberation. We
conclude beyond a reasonable doubt that the error did not contribute to the
verdict. (See Neder v. United States, supra, 527 U.S. at pp. 15-16;
Unanimity instruction
Defendants all contend that the evidence showed that more
than one of their statements to Love could have formed the basis of the charge
of criminal threats, and that the prosecution did not clearly elect to proceed
on one of them. Defendants thus conclude
the trial court erroneously failed to give a unanimity instruction in the form
of CALJIC No. 17.01 or its equivalent, which instructs the jury to agree
unanimously on the act or acts constituting the offense.
A
criminal threat is a statement, willfully made with the specific intent that it
be taken as a threat to commit a crime which “will result in death or great
bodily injury to another person . . . even if there is no intent of actually
carrying it out, which, on its face and under the circumstances in which it is
made, is so unequivocal, unconditional, immediate, and specific as to convey to
the person threatened, a gravity of purpose and an immediate prospect of execution
of the threat, and thereby causes that person reasonably to be in sustained
fear for his or her own safety . . . .â€
(§ 422.)
A
criminal defendant is entitled to a unanimous jury verdict as a matter of due
process under the state and federal Constitutions. (People
v. Russo (2001) 25 Cal.4th 1124, 1132.)
“Additionally, the jury must agree unanimously the defendant is guilty
of a specific crime. [Citation.]â€
(Ibid.) A unanimity instruction is typically given
where several acts could have been charged as separate offenses. (People
v. Maury (2003) 30 Cal.4th 342, 422.)
Ordinarily, when more than one act could qualify as a criminal threat,
the prosecution must elect one of them or the court must give the unanimity
instruction, and the court must do so sua sponte in the appropriate case. (People
v. Salvato (1991) 234 Cal.App.3d 872, 882.)
Here the
prosecutor did not elect just one threat, but two.
several threats, she expressly identified only one threat that placed her in
fear: she became frightened when Allen
displayed his gun and said, “Bitch, you can get smoked.†She understood him to mean that she could be
shot and killed. In closing argument,
the prosecutor identified that threat as well as Childress’s statement “Bullets
ain’t got no name on it,†which Love understood to mean that anyone could be
shot. The prosecutor argued that Love’s
sustained fear was demonstrated by making a 911 call afterward and by the sound
of her voice as she made the call.
Defendants
did not request a unanimity instruction and it is doubtful that such an
instruction was required here. No unanimity instruction is
necessary if the defendant offers the same defense or defenses to the various
acts constituting the charged crimes. (
616, 679.) Defendants did not offer a
separate defense with regard to each of the two threats identified by the
prosecutor. Childress argued that
neither statement could reasonably be understood as a threat and that Love was
not placed in sustained fear by anything he or his companions said to her
during the encounter. Palmer and Allen
both argued that Love was mistaken or lied in her identification of them as
occupants of the car.
name="_ftnref9" title="">[9]
To the extent that a unanimity
instruction may have been required, the same circumstances demonstrate
that its omission was harmless under either the standard of Chapman or Watson. (See People
v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [split of authority as to
which harmless error standard applies to unanimity instructional error].) The omission of a unanimity instruction is
harmless “if the record indicated the jury resolved the basic credibility
dispute against the defendant and would have convicted the defendant of
evidence to have been committed.
[Citations.]†(
307.) It is apparent here that the jury
believed Love and disbelieved defendants, as demonstrated by its rejection of
Palmer and Allen’s identification defense and Childress’s claim that Love
simply did not experience sustained fear.
Having
resolved such basic credibility issues against defendants, the jury would not
have found them guilty of making one criminal threat but not the other.
Moreover, a jury is not
required to decide unanimously which defendant is guilty as an aider and
abettor and which defendant is guilty as a direct perpetrator. (People
v. Majors (1998) 18 Cal.4th 385, 407.)
Thus, even if some jurors believed that only Allen’s threat satisfied
the elements of section 422 and others believed that only Childress’s threat
satisfied the elements, a unanimity instruction or lack of it could not have
affected the jury’s verdict, as all three defendants participated in the threats
as aiders and abettors. Palmer
encouraged Allen by “pumping him up†and displaying a gun. Childress facilitated the threats by driving
the car and stopping alongside Love while his fellow gang members displayed
their guns and threatened her. Both
Allen and Childress offered encouragement or assistance by making a threat
themselves. We conclude beyond a reasonable doubt that the
omission of a unanimity instruction did not contribute to the verdict. (See Chapman,
supra, 386 U.S. at p. 24.)
D. Attempted criminal threat
Palmer and Allen contend that substantial evidence that
Love did not experience sustained fear required the trial court to instruct,
sua sponte regarding the elements of attempted criminal threat.
“We
apply the independent or de novo standard of review to the failure by the trial
court to instruct on an assertedly lesser included offense. [Citation.]
A trial court must instruct the jury sua sponte on a lesser included
offense only if there is substantial evidence, ‘“that is, evidence that a
reasonable jury could find persuasiveâ€â€™ [citation], which, if accepted, ‘“would
absolve [the] defendant from guilt of the greater offense†[citation]
v. Cole (2004) 33 Cal.4th 1158, 1218.)
It does not mean “‘any
evidence, no matter how weak.’†(
142, 162.)
As
relevant here, a defendant is guilty of attempting to make a criminal threat
when, “acting with the requisite intent, makes a sufficient threat that is
received and understood by the threatened person, but, for whatever reason, the
threat does not actually cause the
threatened person to be in sustained fear for his or her safety even though,
under the circumstances, that person reasonably could have been placed in such
fear . . . .†(People v. Toledo (2001) 26 Cal.4th 221, 231.) The trial court was thus required to instruct
the jury regarding attempted criminal threat only if substantial evidence would
support a finding that Love did not experience sustained fear.
Fear is
“sustained†when it
lasts “a period of time that extends beyond what is momentary, fleeting, or
transitory.†(People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Allen points to Love’s testimony that she was
not initially afraid but became afraid when Allen pointed the gun at her and
said, “Bitch, you can get smokedâ€; and her statement when identifying Allen,
“Yeah, he had me out there for a long time in the sun. I was hungry.†Allen concludes from these statements, when
considered with Love’s immediate notification to the police, her strange
behavior, and lack of credibility, that substantial evidence supported a
finding that she felt more inconvenienced than afraid, and that any fear was
momentary. We agree with respondent that
such evidence of Love’s lack of fear was not substantial and did not require
sua sponte instruction on attempted criminal threat.
We also agree that if
substantial evidence had supported an instruction on attempted criminal threat,
any error in omitting it would have been harmless. Error in failing to instruct on a lesser
included offense is reviewed under the Watson
test, which does not warrant reversal unless it appears reasonably probable
after a review of the entire record, that defendants would have obtained a more
favorable result had the asserted error not occurred. (People
v. Breverman, supra, 19 Cal.4th
at p. 149, citing Watson,
art. VI, § 13.)
Fear is a state of mind that
should be inferred from all the circumstances, even when the victim denies
having been afraid. (See People v. Renteria
(1964) 61 Cal.2d 497, 498-499.) A
review of all the testimony reveals compelling evidence that Love was
frightened by defendants’ threats and that she experienced sustained fear. Although Love was not afraid at first because
she thought defendants were flirting, she correctly concluded defendants were
Blood gang members who were threatening her because of the color of her blue
bandanna; and she
soon became frightened when Palmer kept “pumping [Allen] up†while Allen
pointed the gun at her and said, “Bitch, you can get smoked.â€
Love’s
impression that defendants held her for “a long time†was not simply a
complaint about being in the sun as Allen argues. Love also testified, “He had the gun on me a
very long time.†Love’s fear was
sustained not only during the very long time that she was detained at gunpoint;
her call to 911 indicated that she was still frightened at that time. (See People
v. Melhado (1998) 60 Cal.App.4th 1529, 1538 [threat sufficiently
frightening that victim called police].)
Finally,
Love testified she was still in fear of defendants at the time of her
testimony. Although Love also claimed
that defendants “intimidated†her rather than scared her, she agreed with the
prosecutor that she was “afraid to be in court with some people.†Soon after she began her testimony, Love
requested a break, and when she resumed, she complained that Childress kept
staring at her, making her feel uncomfortable.
Given such testimony, it is not reasonably probable that defendants would have obtained a
more favorable result had the instruction been given. (See Watson,
supra, 46 Cal.2d at p. 836.)
The
trial court read CALJIC No. 2.92 to the jury, listing a dozen factors to
consider in determining the weight to be given eyewitness identification
testimony. Palmer contends that the
court should have modified the instruction to delete reference to the extent to
which the witness is either certain or uncertain of the identification. He argues that this factor was irrelevant, as
no expert opinion was presented to support a positive correlation between
witness confidence and accuracy of an identification. Palmer further argues that the
certain/uncertain factor was erroneous, as demonstrated by Dr. Shomer’s opinion
and current scientific evidence showing no such positive correlation.
CALJIC
No. 2.92 is a model instruction listing in a neutral manner, appropriate
factors relevant to a jury’s determination of the existence of reasonable doubt
regarding identification. (See
1141-1142 (Wright).) “[A]n explanation of the effects of those factors is best left to argument by counsel,
cross-examination of the eyewitnesses, and expert testimony where
appropriate.†(Id. at p. 1143, fn. omitted.)
Palmer
did not object to the instruction and does not claim to have suggested a
modification. The trial court had no
instruction to delete the certain/uncertain language. (People
v. Ward (2005) 36 Cal.4th 186, 213 (Ward).) Moreover, a substantially identical argument
was rejected by our Supreme Court in People
v. Johnson (1992) 3 Cal.4th 1183, 1231 (Johnson);
as well as by an appellate court in People
v. Sullivan (2007) 151 Cal.App.4th 524, 561-562, and People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303,
disapproved on another ground in People
v. Martinez (1995) 11 Cal.4th 434, 452.
We are bound by the California Supreme Court decisions. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Palmer
nevertheless contends that we may reconsider those precedents. He claims that “the issue is not necessarily
settled†because in Ward, the Supreme
Court suggested that the wording of CALJIC No. 2.92 may be erroneous. We found only one statement in
containing the word “erroneous.†After
finding no error in the trial court’s failure to modify CALJIC No. 2.92 sua
sponte, the court concluded: “And even
assuming the wording of the standard instruction regarding an eyewitness’s
level of certainty was erroneous, the error was harmless.†(Ward,
supra, 36 Cal.4th at p. 214.) Such a rhetorical device hardly signals that
the issue is not settled; indeed, Ward’s
approval of the instruction indicates the contrary.
In an
attempt to distinguish Johnson,
Palmer points to the Supreme Court’s rejection of the defendant’s claim that
the certain/uncertain language was improper because it contradicted her
expert’s otherwise uncontradicted testimony, “thereby implying the jury could
not rely on her evidence.†(
The court found no error in part because “the jury was instructed that
it should consider ‘[t]estimony of any expert regarding acquisition, retention,
or retrieval of information presented to the senses of an eyewitness,’†thus
leaving the jury free to be persuaded by the expert’s opinion. (Id.
at p. 1232.) Palmer suggests that
| Description | Defendants and appellants Joel Vincent Childress (Childress), Kelsie James Palmer (Palmer), and Eric Gerare Allen (Allen) (collectively defendants) appeal their convictions of murder, attempted murder, and making a criminal threat. Childress contends that substantial evidence does not support his murder or attempted murder convictions, the finding of premeditation and deliberation, or the gang and multiple-murder special circumstances. Palmer and Allen contend that the trial court erred in refusing to sever the murder charge against Childress in count 1 from the remaining charges. Palmer asserts Aranda-Bruton and Crawford error[1] in the admission of a recording of Allen’s interview with detectives; and all defendants assert several instructional errors and join in the arguments of the other defendant to the extent such arguments might apply to their benefit. Allen contends that his 107 years to life sentence was cruel and unusual under the federal constitution. We reject Allen’s constitutional claim but modify his sentence to comply with statutory requirements, and reject defendants’ other contentions and affirm the judgments. |
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