People v. Michel

1

THE PEOPLE, Plaintiff and Respondent, v. DANIEL ANTHONY MICHEL, Defendant and Appellant.

D079571

California Court of Appeals, Fourth District, First Division

April 5, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Bernadino County, Super. Ct. No. 16CR031964 Ingrid Adamson Uhler Judge. Affirmed.

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Idan Ivri and Wyatt E Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.

O'ROURKE, Acting P. J.

Daniel Anthony Michel is currently incarcerated following his conviction for second degree murder. He appeals the trial court's order denying his petition for resentencing under Penal Code,^[1] section 1172.6. Michel contends: (1) the trial court erroneously concluded that he was guilty of directly aiding and abetting a gang murder; and (2) his case is not final; therefore, Assembly Bill No. 333 applies and his gang enhancement under section 186.22, subdivision (b) and the vicarious firearm enhancements under section 12022.53, subdivisions (d) and (e) must be vacated because the offenses admitted into evidence to prove a pattern of criminal gang activity do not meet the requirements of Assembly Bill No. 333. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We take the facts from this court's unpublished opinion People v. Michel, D075390 (Jun. 5, 2019), in which we affirmed the judgment but remanded for the court to exercise its discretion to resentence Michel in light of certain statutory changes.

In 2017, a jury convicted Michel of second degree murder of Albert Pena (§ 187, subd. (a); count 1), and participating in a criminal street gang (§ 186.22, subd (a); count 2). The jury also found true certain firearm enhancement allegations under section 12022.53, subdivisions (d) and (e), and an allegation that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The court sentenced Michel to prison for 40 years to life, which includes 25 years to life for a firearm enhancement under section 12022.53, subdivisions (d) and (e).

Michel is a member of the Another Latin Crew (ALC) criminal street gang, which is led by Adrianna C. A gang expert described Adrianna as "brazen" and violent, and testified that she is "an absolute terror on the city of Fontana and society due to her in-depth involvement in this gang." Adrianna's home serves as ALC headquarters.

Julio was the father of Adrianna's sister's child. Adrianna believed that Albert, a member of the rival Eastside Fontana gang, was the getaway car driver in Julio's killing and she ordered that he be killed. In June 2016, Adrianna herself unsuccessfully attempted to shoot Albert.

Ana M., who testified under a grant of immunity, is the mother of Michel's child. On July 5, 2016, Michel was a passenger in Ana's parked car on Reed Street when Albert drove by alone in his car. Michel told Ana to follow Albert. When alongside Albert's car, Michel challenged him to fight. Albert told Michel to follow him; however, when Albert drove into Eastside territory, Ana and Michel returned to Reed Street.

After Ana parked and exited her car, Albert also returned to Reed Street with a passenger, Robert C., an Eastside member. Robert reached into his waistband, indicating he had a gun. Michel told Ana that Robert was armed. Albert told Michel to follow him to a public park (the Park) to fight. Both ALC and Eastside claim the Park as their exclusive territory.

Ana and Michel drove to the northeast side of the Park, where they saw Albert and Robert standing outside Albert's car, apparently ready to fight. Believing that Robert was armed, Michel told Ana to drive to Adrianna's house to get some ALC members with guns. There, Adrianna directed three gang members-Brandon G., Miguel G. and Javier M.-to get in Ana's car.

Brandon had a .45-caliber semiautomatic handgun, along with gloves and a bandana to cover the gun. Brandon told Michel they would have to shoot before Robert and Albert could fire first. Ana drove Brandon, Miguel, and Javier to the Park's west side, about 500 yards from where Albert and Robert were located. Before exiting Ana's car, Brandon chambered a round in the gun.

Ana and Michel drove to the Park's east side, where Albert and Robert were standing. Meanwhile, Brandon, Miguel and Javier were walking "like they were on a mission" towards the east side of the Park. About a minute later, Brandon, Miguel and Javier ran after Albert and Robert, who tried to run away. They were all running at full speed. Albert and Robert had no weapon in their hands. Brandon shot Albert in the buttocks and in the arm. As Albert lay bleeding and begging for his life, Miguel kicked him in the face. One shot damaged Albert's femoral artery, killing him.

Ana and Michel drove Brandon to Adrianna's house. Michel went to Miguel's house. There, Michel texted Ana, "The best knowing you got me like I got you" and "I swear you're the best."

Ana went to her best friend's (J.M.'s) house and told her what had happened. J.M. texted her boyfriend, "Crazy shit happened last night and her baby daddy and his crew killed someone and Ana was the getaway car."

A gang expert testified that because ALC and Eastside were in a heated rivalry, by fighting in the Park, a location both gangs claimed as their territory, it was reasonably foreseeable that a challenge to a fist fight could escalate to a shooting. He also testified that knowing one gang might have a gun, it would be "absolutely insane" for a rival gang member to show up without a firearm.

In Michel's first trial, the jury convicted him on count 2 (participating in a criminal street gang). But the jury hung on count 1 (murder), and therefore the court declared a mistrial on that count.

In the second trial, the court instructed the jury with CALCRIM No. 520 defining malice aforethought murder and with CALCRIM No. 521 regarding first degree murder. This latter instruction also stated that "second degree murder based on express or implied malice and/or the natural and probable consequence theories under both aiding and abetting and conspiracy are explained in CALCRIM No. 520 . . . and CALCRIM [Nos.] 403 and 417."

The court also instructed the jury with CALCRIM No. 400, explaining that a person may be guilty of a crime as a perpetrator or instead as an aider and abettor. This was followed by CALCRIM No. 401 on direct aiding and abetting.

Next, the court instructed the jury with CALCRIM No. 403 on second degree murder under the natural and probable consequences theory.

The court instructed the jury with CALCRIM No. 417 on conspiracy and the natural and probable consequences doctrine, which was consistent with CALCRIM No. 403 by stating that the jury could convict Michel of second degree murder if, among other required elements, second degree murder was a natural and probable consequence of the crime that he conspired to commit.

The court instructed the jury with CALCRIM No. 570 on voluntary manslaughter under a heat-of-passion theory.

In the second trial, the jury was unable to reach a verdict on first degree murder and asked for additional closing arguments. The court asked the jury to specify what it wanted each attorney to address. The jury stated that the prosecutor should address "[w]hat specific evidence shows [Michel's] decision to participate in the premeditation to commit murder" because "[a]ll of the testimony we have heard indicates [Michel] only wanted to fight. What actions indicate he was making a decision to kill?"

After additional closing arguments, the jury remained deadlocked on first degree murder. The People requested the court dismiss the first degree murder charge under section 1385, and have the jury continue deliberating on the remaining counts (second degree murder and voluntary manslaughter as lesser included offenses). The court granted that motion: "I think, potentially, [the jury is] having an issue emotionally, which I have obviously indicated they have to set that aside. But I think, emotionally, there's an issue because [Michel] is not the actual shooter ....He is young. There is an indication he never . . . 'got out of the car.' There's also an indication that the jurors are considering the fact that the getaway driver, his girlfriend, was not prosecuted and [instead] granted immunity."

The court informed the jury that "[f]irst degree murder no longer needs to be decided in this case" and "to continue your deliberations to determine whether or not the defendant is guilty of second degree murder, voluntary manslaughter, or not guilty." Thereafter, the jury found Michel guilty of second degree murder and found true the firearm and gang allegations.

Resentencing Petition

In 2019, Michel petitioned for resentencing under section 1172.6. The court set the matter for an evidentiary hearing at which the parties presented no new evidence. Thereafter it denied Michel's petition, finding the evidence proved beyond a reasonable doubt he was guilty of murder as a direct aider and abettor under current law: "For the record, the court has read and considered the defendant's petition for re-sentencing . . ., the response to the defendant's petition . . ., and I'm also taking judicial notice of the Court of Appeal's opinion, the Information, the jury instructions, partial transcript of the first and second trial, the preliminary hearing transcript, and the minute orders, and abstract of judgment . . . "Finally, I am relying on my independent recollection of the testimony after being the trial court for two separate trials in this...