People v. Smith

1

THE PEOPLE, Plaintiff and Respondent, v. LARRY SMITH, Defendant and Appellant.

C097327

California Court of Appeals, Third District, Sacramento

April 15, 2024

NOT TO BE PUBLISHED

(Super. Ct. No. 20FE001479).

MAURO Acting P. J.

A jury found defendant Larry Smith guilty of second degree murder arson of property, and being a felon in possession of a firearm. It found true firearm enhancement allegations. The trial court sentenced defendant to a determinate term of four years and an indeterminate term of 55 years to life in prison. It ordered defendant to pay a $10,000 restitution fine, a $120 court operations assessment, and a $90 criminal conviction assessment, but waived all other fines, fees and assessments.

Defendant now contends (1) the trial court's giving of a CALCRIM No. 359 jury instruction undercut the presumption of innocence by instructing the jurors they could rely on defendant's statements alone to establish his identity as the killer, and (2) under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas), the restitution fine must be stayed and the assessments stricken.

We conclude (1) there was no instructional error, and (2) the challenge to the restitution fine and assessments is forfeited. We will affirm the judgment.

BACKGROUND

Frederick Gill and defendant had been friends; they would hang out together, do drugs, sell drugs, and drink alcohol. But in the early morning on December 8, 2019, defendant shot Gill eight times, killing him. He drove away in Gill's Toyota Solara and parked the vehicle in a discount store parking lot.

The following morning, defendant asked his cousin to drive him with a gas can, to an area near where the Solara was parked. Shortly thereafter, an off-duty police officer reported a vehicle fire in the parking lot. Most of the Solara's passenger compartment was consumed by the fire. On the pavement near the Solara, there was a red and yellow lighter a gold necklace, and a baggie containing methamphetamine. There was evidence that the lighter and bag of methamphetamine were defendant's. The necklace belonged to Gill's father, and Gill had taken it the day before he was killed. A Sacramento Fire Department fire investigator concluded an accelerant consistent with gasoline was used to light the fire.

California Highway Patrol Officer Nicholas Walter pulled defendant's cousin and defendant over. Officer Walter discovered a large gas can in the cousin's vehicle. There was a small volume of a liquid in the container that smelled of gasoline. Walter arrested defendant on an unrelated matter.

Defendant called his girlfriend from jail. He asked her to relay messages to his cousin. The girlfriend texted the cousin, "[defendant] says, it's in the closet." In a phone call, defendant told his girlfriend, "it is probably in the closet and to find it before someone else finds it." At trial, the girlfriend denied they had been talking about a gun; she said they were talking about drugs.

Defendant testified that on the morning of the shooting, he and Gill hung out drinking and using drugs. After some time, they went to his cousin's house and picked up defendant's girlfriend. They drove around for a while and sold some methamphetamine. Then they bought some cocaine.

According to defendant, after they dropped his girlfriend off at his cousin's house, Gill said he had one more stop to make. When they arrived at Gill's destination, Gill got out of the car to meet with someone while defendant remained in the car getting high. Gill talked with a male wearing a red hoodie. Defendant then saw Gill handing over his phone and perhaps some cash. Defendant thought he saw a firearm in the other person's hand. Gill ran toward the car and defendant heard gunshots. Defendant "got low," dove into the driver's seat, and drove off. He drove to the discount store parking lot where he parked the car. He then got a ride to his cousin's house.

Defendant testified that the next night, his cousin woke him up. Defendant had told his cousin what had happened, and defendant assumed the cousin wanted defendant to show him where he left Gill's car. Defendant directed the cousin to the location of the car. Defendant said the cousin dropped defendant off at another location and told him he would be back. Eventually the cousin returned. They drove on, got pulled over, and defendant got arrested.

Defendant testified he had turned off his phone's GPS data so that his "[b]aby mama" would not be able to track his location. He acknowledged the lighter and methamphetamine in the parking lot were his. He testified that when he called his girlfriend from jail and told her to tell his cousin to retrieve an item from a closet, he was referring to drugs. Defendant testified he did not shoot Gill or burn Gill's car.

The jury found defendant guilty of second degree murder (Pen. Code, §§ 187, 189 -- count one),^[1] arson of property (§ 451, subd. (d) -- count two), and possession of a firearm by a felon (§ 29800, subd. (a)(1) -- count three). In connection with count one, the jury found firearm enhancement allegations to be true. (§ 12022.53, subds. (b)-(d).)

The trial court found that defendant had a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12). It sentenced him to a determinate middle term of two years for arson, doubled to four years for the prior strike. It also imposed a middle term of two years for the firearm possession offense, doubled to four years, which the trial court stayed under section 654. In addition, the trial court imposed an indeterminate term of 15 years to life for the murder conviction, doubled to 30 years to life, plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), a $120 court operations assessment (§ 1465.8), a $90 criminal conviction assessment (Gov. Code, § 70373), and waived all other fines, fees and assessments.

DISCUSSION

I

Defendant contends the trial court's giving of a CALCRIM No. 359 jury instruction undercut the presumption of innocence by instructing the jurors they could rely on defendant's statements alone to establish his identity as the killer.

The trial court instructed the jurors with CALCRIM No. 359 as follows: "The defendant may not be convicted of any crime based on his out-of-court statements alone. You may rely on the defendant's out-of-court statements to convict him only if you first conclude that other evidence shows that the charged crime was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] This requirement of other evidence does not apply to proving the identity of the person who committed the crime. If other evidence shows that the charged crime was committed the identity of the person who committed it may be proved by the defendant's statements alone. [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt." (Italics added.)

Defendant contends identity is an element the prosecution must prove beyond a reasonable doubt, and "telling jurors they could rely on [defendant's] 'statements alone' to infer identity was entirely improper" because, even if accepted in their entirety, his statements "say very little about the identity of the killer and certainly do not constitute proof beyond a reasonable doubt that he was the person who killed Frederick Gill." The People respond that defendant forfeited his contention, and, in any event the CALCRIM No. 359 instruction was proper. We exercise our discretion to address the merits of the contention, and conclude that CALCRIM No. 359 as given correctly stated the law and was not reasonably likely to confuse the jurors.

The prosecution bears the burden of proving all elements of the crimes charged beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) CALCRIM No. 359 is based on the corpus delicti rule." 'In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself -- i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause.'" (People v. Ramirez Ruiz (2020) 56 Cal.App.5th 809, 829.) The "corpus delicti rule requires some evidence that a crime occurred, independent of the defendant's own statements." (People v. Ledesma (2006) 39 Cal.4th 641, 721.) However, the "identity of the defendant as the perpetrator is not part of the corpus delicti; identity may be established by the defendant's words alone." (People v. Valencia (2008) 43 Cal.4th 268, 297.)

Generally," '[a] defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.]' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." '" (People v. Solomon (2010) 49 Cal.4th 792, 822.)

"[T]rial courts must avoid [instructing the jury in such a way] as to lead the jury to convict on a lesser showing than due process requires."

(Victor v. Nebraska (1994) 511 U.S. 1, 22.) "The constitutional question . . . is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." (Id. at p. 6.)

Defendant relies primarily on People v. Rivas (2013) 214 Cal.App.4th 1410 (Rivas), which, he asserts "properly recognized the danger of telling jurors they may rely on defendant's statements alone to infer identity." The court in Rivas addressed a...