People v. Broyles

THE PEOPLE, Plaintiff and Respondent, v. JOHN COREY BROYLES, et al. Defendants and Appellants.

E071002

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

April 7, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. FWV17003995 & FWV17003997)

OPINION

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed.

Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant John Corey Broyles.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant Carmen Nicole Worthy.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

A jury convicted defendants and appellants, John Corey Broyles and Carmen Nicole Worthy, of first degree murder for killing Worthy's cousin, Timothy Morris, 17 years earlier. (Pen. Code, § 187, subd. (a).)¹ Worthy raises four claims of error on appeal: (1) the trial court prejudicially erred by incorrectly stating the law in response to the jury's question; (2) the trial court erroneously denied defendants' motion to dismiss due to the 17 year delay in the prosecution; (3) defense counsel ineffectively moved to dismiss; and (4) the trial court impermissibly imposed fines and court assessments without a determination of defendants' ability to pay in violation of her due process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Broyles joins in Worthy's second, third, and fourth contentions, and also asserts the trial court erroneously denied his request for a jury instruction that testimony by a percipient witness to the murder had to be corroborated because that witness was an accomplice.

We agree that the trial court incorrectly stated the law when responding to the jury's question but find that the error was harmless. We reject defendants' remaining contentions and affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2000, Worthy was living with her cousin, Timothy Morris. Worthy called Morris's mother (Worthy's aunt) and complained that Morris was "cutting the weed" and had not been "bringing what he's supposed to be bringing." Worthy sounded "[a]gitated" and "aggressive." Worthy's aunt thought the call was "very unusual" because she had not heard from Worthy "in a long time." Worthy's aunt "cut [the conversation] real short" because she did not like Worthy's "attitude and her way of talking" and told Worthy that she would talk to Morris.

Around the same time, C.D., who was 15 years old at the time, overheard Worthy say to Broyles something to the effect that she knew someone with "some money coming in" and that she "wanted him dead" and "wanted somebody to do it."

Sometime in the next few days, Broyles left Worthy's apartment with Morris. Later that evening, Broyles entered Worthy's apartment and said he "did it." Worthy responded, "'Are you for real?'" "'Oh, my God.'"

Worthy, C.D., and Broyles went outside to Morris's car. Broyles opened the trunk, and Morris was inside. Broyles said he shot Morris in the head using a shampoo bottle as a silencer. Broyles and Worthy's boyfriend also "had to beat [Morris] up to put him in the trunk" because "he didn't die right off the bat." Morris then made a "loud snoring noise," so Broyles told Worthy to go get knives. Worthy returned with two knives and handed one to Broyles. Broyles stabbed Morris several times, including oncein the neck like he was trying to "cut off [Morris's] air circulation." C.D. saw Worthy "thrusting" the knife at Morris, but he was not sure whether she stabbed Morris. Morris stopped making noises. Worthy and Broyles then discussed "what they were going to do with the body and how they were . . . going to do it."

Broyles, his brother, and C.D. drove to the mountains to dispose of Morris's body. Broyles parked the car on a dirt road. C.D. tried to help Broyles lift Morris's body from the trunk, but they could not lift it. Broyles and his brother successfully lifted Morris's body from the trunk and threw it down a hill. Broyles asked C.D. to hit Morris's teeth out with a hammer, but C.D. refused. Broyles poured gas on the body and set it on fire. They then left the scene.

Over 17 years later, in October 2017, the People charged Broyles and Worthy with Morris's murder. (§ 187, subd. (a).) The People alleged Broyles committed the offense with a firearm. (§ 12022.53, subd. (c).) A jury convicted Broyles and Worthy as charged and also found true the firearm allegation.

The trial court sentenced defendants to 25 years to life for Morris's murder. Broyles also was sentenced to a determinate term of 20 years for the firearm enhancement. Without objection, the trial court also imposed on both defendants a $40 court operations assessment (§ 1465.8), a $30 court facilities funding assessment (Gov. Code, § 70373), and a $1,000 restitution fine (§ 1202.4).

Defendants timely appealed.

III.

DISCUSSION

A. The Trial Court's Response to Jury Question No. 4

The jury began deliberating around 2:30 p.m. on May 24, 2018, and ended for the day at 4:00 p.m. The jury deliberated for two hours on May 25, 2018, and two more hours on May 29, 2018. On May 30, 2018, the jurors began their deliberations at 10:00 a.m. At some time between 2:26 p.m., and 3:35 p.m., the jury asked for Jury Question No. 4, which read: If the jury determined that defendant Broyles is found guilty of first degree murder and defendant Worthy is determined to have aided & abetted per CALCRIM No. 401, is defendant Worthy then guilty of first degree murder? At 3:35 p.m., the trial court responded: "If the [p]rosecution proves beyond a reasonable doubt the four elements defined in Calcrim 401 that [d]efendant Worthy aided and abetted the commission of the crime of first degree murder then according to Calcrim 400 she is guilty of the crime of first degree murder. Please review both Calcrim 400 and 401." Twelve minutes later, the jury informed the court that it had reached a verdict.

Worthy claims the trial court's answer to Jury Question No. 4 constitutes prejudicial error. She contends the trial court misstated the law and, in doing so, instructed the jury that it could convict her of first degree murder based on Broyles's mental state without finding that she acted with the requisite mental state. Reviewing Worthy's contention de novo, we agree the trial court's answerto Jury Question No. was erroneous. (People v. Posey (2004) 32 Cal.4th 193, 218.)²

"During jury deliberations 'when the jury "desire[s] to be informed on any point of law arising in the case . . . the information required must be given [by the trial court]."' [Citations.] 'However, "[w]here the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information."' [Citation.] Although the trial court need not always elaborate on the standard instructions, the trial court nevertheless has 'a "'mandatory duty' to clear up any instructional confusion expressed by the jury." [Citation.]' This means that a trial court's response to a jury question can be erroneous even if it does not technically misstate the law." (People v. Fleming (2018) 27 Cal.App.5th 754, 766.) As given to the jury, CALCRIM No. 401 stated in relevant part: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime;[¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. . . ."

CALCRIM No. 400, as given to the jury, read in full: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator."

CALCRIM Nos. 400 and 401 do not mention the differences between first and second degree murder, and neither explains the corresponding mental state required for each offense. Nor does either instruction explain that the jury had to evaluate an aider and abettor's mental state separately from that of a perpetrator. But when "a conviction is based on . . . 'direct' aiding and abetting, the degree of the murder will be dependent on the defendant's own personal mental state, and may be either greater or lesser than the degree of the murder committed by theperpetrator. [Citations.]" (Ortega v. Superior Court (2019) 40 Cal.App.5th 290, fn. 4 (Sept. 24, 2019). "[W]hen a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person's guilt is determined by the combined acts of all the participants as well as that person's own mens rea." (People v. McCoy (2001) 25 Cal.4th 1111, 1122, italics added.)

Because "an aider and abettor's mens rea is personal . . . it may be different than the direct perpetrator's: 'guilt is based on a combination...