Opinion
D075352
04-20-2020
THE PEOPLE, Plaintiff and Respondent, v. AVIS DENISE BROWN, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for the Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD276481) APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for the Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Avis Denise Brown of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 1, 3), shooting at an occupied building (§ 246; counts 2, 4), discharging a firearm from a motor vehicle (§ 26100, subd. (c); count 5), discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a); count 6), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 7). As to counts 1, 2, and 6, it found true allegations that defendant personally used a firearm. (§§ 12022.5, subd. (a) [count 1], 1192.7, subd. (c)(8) [counts 2, 6].) The prosecution pursued an aider and abettor liability theory on counts 3, 4, and 5.
Undesignated statutory references are to the Penal Code.
In bifurcated proceedings, defendant admitted she suffered two prior prison convictions (§§ 667.5(b), 668). The court sentenced her to a total term of three years in prison. Defendant challenges the evidence supporting her convictions on counts 3, 4, and 5 on grounds it is insufficient to show she knew her codefendant would commit the shooting underlying those offenses. We disagree and affirm the judgment.
The trial court struck the two prison priors and imposed a three-year midterm on count 1. It imposed three-year sentences on counts 2, 3, 4, and 5 (low terms on counts 2, 4, and 5, and the midterm on count 3), and two-year midterms on counts 6 and 7, each to run concurrent to the sentence imposed on count 1, the principal term.
FACTUAL AND PROCEDURAL BACKGROUND
After arriving uninvited to a party for his ex-girlfriend, Brown's adult son Courtney Brown got into scuffles and altercations with partygoers and security guards. Courtney's longtime friend and business-partner, E.T., stepped in to prevent a fight. E.T. told Courtney not to return to their shop. At some point, defendant and her daughter Marissa Brown showed up uninvited outside. A partygoer punched Marissa. Defendant was at Marissa's side, screaming for Courtney's ex-girlfriend. After E.T.'s wife had a heated exchange with defendant, defendant waived a taser gun and fired it at her.
We addressed Courtney's petition for habeas corpus relief in a nonpublished opinion (In re Courtney Brown (June 11, 2018, D074058)). As the last name of each defendant is Brown, we will refer to the codefendants by their first names.
The next morning, defendant sent a message to E.T. that E.T.'s wife saw and took as a threat. After talking about the message, E.T., his wife, and a shop employee drove to the shop and began helping customers.
Defendant, Marissa, and Courtney also separately drove to the shop. Marissa was already there when defendant arrived. Courtney arrived afterwards. Defendant had a gun in her purse. Courtney went into the shop and acted like nothing was wrong, while defendant and Marissa stayed outside. E.T. demanded that Courtney leave, and the men swung at each other. Courtney then ran outside yelling for defendant, and several people, including E.T. and his wife, followed. Defendant and Marissa were outside walking toward the shop door. The shop employee punched Marissa and then defendant. At about the same time, defendant was pulling a holster out of her pocket, but E.T.'s wife knocked it to the ground. Courtney picked up the gun, huddled with defendant and Marissa, gave defendant the gun, and told her to "bust at them." Defendant pointed the gun at the crowd and fired three shots. E.T. ducked, ran into the shop, and immediately ran back outside, where he saw defendant walking with Courtney and Marissa toward their cars. He saw defendant toss the gun sideways to Marissa through Marissa's car window. E.T. began running after Courtney.
Defendant testified she knew Courtney had a gun, and guessed he put the gun in her purse while she walked her dog in the shop parking lot. The jury was entitled to reject the credibility of defendant's testimony as to how the gun got in her purse. (§ 1127 ["the jurors are the exclusive judges of all questions of . . . credibility of the witnesses"].)
E.T.'s wife had also ducked back into the shop when defendant fired shots. She could not find E.T., so she exited the building to see Marissa, now armed and driving her car, fire two shots at her then speed away. E.T. also heard Marissa exclaim, "Say something now, bitch," and heard two gunshots from Marissa's direction. Defendant backed up her car, drove past E.T., let Courtney into her car, and drove off.
The transcript of E.T.'s police interview at the scene shows E.T. told the responding officer that after the initial gunfire, he saw defendant give Marissa the gun. The jury watched the video of E.T.'s interview. E.T. admitted at trial that while he did not like to cooperate with police, he was honest with the officer questioning him, and acknowledged he probably told her that defendant gave Marissa the gun before Marissa fired it.
Defendant left the scene and eventually picked up Marissa, who had abandoned her car and the gun. Three days later, defendant and Courtney drove to Las Vegas. Prior to these events, defendant knew the victims and had not had negative interactions with them.
DISCUSSION
Defendant contends this court should reverse her count 3, 4, and 5 convictions because insufficient evidence supports her culpability as an aider and abettor. Defendant concedes the evidence shows she, Courtney, and Marissa huddled together outside the shop before Marissa fired the gun. However, defendant asserts she and Marissa did not exchange words before Marissa shot the gun out of her car window, in contrast to when Courtney told defendant to "bust at them" before she shot the gun at E.T., and thus defendant argues there is "no evidence which could reasonably suggest [she] actually knew Marissa was going to shoot the gun at [E.T.'s wife] before giving Marissa the gun." Defendant points to E.T.'s testimony that she was "shaking and nervous" while removing the gun from its holster, arguing that indicates she did not want to be there and suggests she had no intent to shoot at anyone but rather did so only at Courtney's direction. Defendant also points out E.T.'s wife testified she did not see defendant when she exited the shop the second time, but only saw Marissa fire the gun. According to defendant, evidence that she walked to her car and left the scene after giving the gun to Marissa shows she was trying to get rid of the gun, not that she knew Marissa planned to shoot out of her car window or that defendant intended shots to be fired at E.T.'s wife.
I. Standard of Review
The principles governing sufficiency of the evidence claims are " 'clear and well settled.' " (People v. Jones (2013) 57 Cal.4th 899, 960.) The test does not require us to ask whether we believe the trial evidence established guilt beyond a reasonable doubt. (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) " 'The proper test . . . is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Perez (2010) 50 Cal.4th 222, 229; accord, People v. Nguyen, at pp. 1054-1055; People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213 [relevant question is " ' "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" ' "].) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Beck & Cruz (2019) 8 Cal.5th 548, 626.) " ' " 'Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his [or her] guilt beyond a reasonable doubt.' " ' " (People v. Jones, at p. 961.) " 'If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890.) We may reverse for lack of substantial evidence only if " ' " 'upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict.' " (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
II. Legal Principles of Aiding and Abetting Liability
A person may be found guilty of committing a crime either personally or by aiding and abetting the perpetrator. (§ 31.) Aiding and abetting occurs when a person acts with " '(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the crime, (3) by act or advice aids, promotes, encourages, or instigates, the commission of the crime.' " (People v. Johnson (2016) 62 Cal.4th 600, 630.) Such liability " 'is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.' " (People v. Daveggio & Michaud (2018) 4 Cal.5th 790, 845.) Presence at the scene or knowledge of, and failure to prevent, a crime are not themselves sufficient. (See People v. Nguyen, supra, 61 Cal.4th at p. 1056.) However, such presence at the scene of the crime, as well as companionship, conduct before and after the offense, and flight are among the factors that may be considered in making the determination of aiding and abetting. (Id. at p. 1054; People v. Johnson (2019) 32 Cal.App.5th 26, 60; In re Gary F. (2014) 226 Cal.App.4th 1076, 1079.) " 'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.' " (People v. Nguyen, at p. 1055.)
This court recently upheld a defendant's conviction for aiding and abetting the crime of assault with a deadly weapon, holding the jury could reasonably infer that the defendant knew of the principal's unlawful purpose when the evidence showed the defendant knew the principal had a weapon, and interactions with the victims before the crime suggested the principal would use the weapon. (See People v. Chavez (2018) 22 Cal.App.5th 663, 669.) In Chavez, during a fight between two groups, the defendant and the principal huddled together near a truck, stood back to back and face to face, and paced back and forth. (Id. at pp. 670, 685.) A victim under the truck saw the principal holding a pistol. (Id. at p. 670.) As the initial altercation ended, the defendant's comrades walked away from the scene followed by a victim. (Id. at p. 685.) The principal aimed a gun at the victim while the defendant, holding a knife, followed. (Ibid.) This court held that a jury could reasonably infer the defendant saw the principal holding a gun as they paced back and forth by the truck and in combination with the other evidence could conclude that the principal and defendant "were acting together, that [the principal] committed an assault with a deadly weapon [on the victim] or assault likely to cause great bodily injury . . . , and that [defendant] intended to, and did, aid and abet that assault. Alternatively stated, there is substantial evidence to support a finding that [defendant] knew of [the principal's] unlawful purpose . . . and specifically intended to, and did in fact, aid, facilitate, promote, encourage, or instigate [the principal's] commission of that assault." (Id. at pp. 685-686.)
In People v. Campbell (1994) 25 Cal.App.4th 402, a case involving an attempted robbery with a firearm, the court upheld a verdict over a sufficiency of the evidence challenge on an aiding and abetting theory, noting that because the principal and accomplice jointly approached the victims and engaged in separate criminal conduct, the accomplice "did not independently happen by the scene of the crime." (Id. at p. 409.) It held such conduct was a "textbook example of aiding and abetting" in that the accomplice "played an affirmative supportive role in the [principal's crime] and was not simply an innocent, passive, and unwitting bystander." (Id. at p. 410.)
Here, substantial evidence supports defendant's convictions on the gun offenses of counts 3, 4, and 5 on an aiding and abetting theory. Hours before the incident, defendant and her children were involved in altercations with E.T. and his wife; defendant fired a taser gun at E.T.'s wife and threatened E.T. In light of the events the night before between defendant, her children, E.T. and his wife, the jury reasonably could find it was no coincidence that defendant showed up at E.T.'s shop with a gun, accompanied by Marissa and Courtney. Defendant not only possessed the gun, but after it was knocked out of her hand she huddled with Marissa and Courtney before firing it three times and passing it to Marissa. It is logical to deduce that by handing the gun to Marissa after she herself had fired it at the victims, defendant intended to assist Marissa in continuing the assault. Accordingly, the jury reasonably found that defendant's conduct in bringing, firing, and handing over the gun was intended to aid and abet Marissa's conduct in shooting at E.T.'s wife. We see the facts here as stronger than those in People v. Chavez, supra, 22 Cal.App.5th 663, in which the jury could reasonably infer the defendant knew of the principal's unlawful purpose on evidence the defendant and the principal huddled and walked together between the initial fight and the principal's unlawful conduct. Here, all factors—presence at the scene, companionship, and conduct before and after the offense—permitted the jury to conclude defendant was not an innocent, passive and unwitting bystander, but that she played an affirmative supportive role in Marissa's crimes.
Additionally, immediately after the incident, defendant left the scene. Three days later, she and Courtney went to Las Vegas. Evidence of defendant's flight after the crime supports an inference that defendant was aware of and shared Marissa's purpose. "Although flight, in and of itself, may be explained by a desire merely to disassociate oneself from an unexpected criminal activity, the [jury] was not required to adopt that view; it could, reasonably, have concluded that had [defendant's] flight been from fear of an unjustified charge of involvement, [she] also would have immediately disassociated herself from [Courtney]." (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095 [upholding aiding and abetting liability of a minor for robbery]; compare People v. Lara (2017) 9 Cal.App.5th 296, 324-325 [insufficient evidence of aiding and abetting a codefendant's killing of a fellow gang member where the defendants had attempted to deescalate the situation and fled the scene without the codefendant].)
Defendant's arguments otherwise—based on E.T.'s testimony that she was shaking and nervous while removing the gun from the holster, or that Courtney told her to shoot the gun, or that she left immediately after giving the gun to Marissa—ask us to draw contrary inferences in her favor, i.e., that she was merely getting rid of the gun and had no idea Marissa would also shoot. But the evidence we have recounted above permits inferences in favor of the jury's verdicts, and we are without power to substitute other deductions for those of the jury. (Accord, People v. Ortiz (2012) 208 Cal.App.4th 1354, 1363.) " 'If such substantial evidence be found it is of no consequence that the [trier of fact] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.' " (Ibid., italics omitted.)
DISPOSITION
The judgment is affirmed.
O'ROURKE, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.