Filed 9/30/14 P. v. Honest CA2/7

                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                       DIVISION SEVEN


THE PEOPLE,                                                                   B242979

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. MA051890)
          v.

CHARLES ERIC HONEST,

          Defendant and Appellant.




                     APPEAL from a judgment of the Superior Court of Los Angeles County,
Charles A. Chung, Judge. Reversed.


                     Thomas T. Ono, under appointment by the Court of Appeal, for Defendant
and Appellant.


                     Kamala D. Harris, State Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Eric E.
Reynolds and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
                                 ______________________________________
         Appellant Charles Eric Honest appeals from the judgment upon his conviction and
sentence of second degree murder in violation of Penal Code section 187, subdivision (a)
for aiding and abetting the murder of Maurillio Ponce. In this court, appellant asserts the
trial court committed various prejudicial errors that warrant reversal of his conviction and
sentence. Specifically, appellant complains: (1) the trial court improperly denied his
Wheeler/Batson motion during jury selection because the prosecution’s use of
preemptory challenges during voir dire was discriminatory; and (2) sufficient evidence
did not support the jury’s guilty verdict on the second degree murder charge. As we shall
explain, appellant’s claim of insufficiency of the evidence to support the jury’s guilty
verdict warrants reversal of the judgment.1 Accordingly, we reverse.
                    FACTUAL AND PROCEDURAL BACKGROUND
         Victim’s Murder
         Maurillio Ponce was murdered in the early morning hours of October 7, 2008.
Ponce’s body was found in a rural area at Avenue I and 110th Street West in Lancaster.
The autopsy report concluded that Ponce’s cause of death was multiple gunshot wounds.
Specifically, Ponce had six gunshot wounds: two to his head, one to the chest wall, two to
the back and one to the arm. The coroner could not pinpoint the exact time of death.
         Maurillio Ponce was married to Evangelina Flores. At the time of the murder,
Ponce and Flores resided on 70th Street in Lancaster with their three children. Ponce
was self-employed as a diesel truck mechanic and owned his own business called Pikis
24-Hour Truck Repair. He also owned a tire yard in Littlerock. Flores worked at
Ponce’s business as a secretary and managed the finances and books of his business.
         On October 6, 2008, between 10:00 p.m. and 10:30 p.m., Ponce received a call on
his cell phone and he answered, “Hey, Tony.” After taking the call, Ponce changed from
his work clothes into a brown sweater, jeans and brown shoes, and told Flores that he was
meeting Tony in Valencia or Santa Clarita and asked to borrow her Lincoln Navigator.


1        Given the conclusion, we will not decide the merits of the Wheeler/Batson motion
issue.


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Flores did not find Ponce’s meeting with Tony unusual because he regularly received
work-related phone calls and went out in the evenings for service calls. Flores did,
however, find it unusual that Ponce had asked to borrow her Lincoln Navigator because
he always drove one of his work trucks, a white Ford F-450 and a blue Ford F-150.
Ponce left the house at about 11:15 p.m. and asked Flores to wait up for him. This was
the last time Flores saw her husband.
       On October 7, 2008, at approximately 12:30 a.m., Flores called Ponce’s cell phone
number (661) 816-8212 but Ponce did not answer and the call went to his voice mail.
Flores tried calling Ponce again between 1:00 a.m. and 1:30 a.m. but got his voice mail
again. Flores tried calling Ponce a third time at about 2:00 a.m. and received a busy
signal. Flores began to worry because the busy signal meant that Ponce’s cell phone was
off. While driving, Ponce always placed his cell phone in the car’s cup holder.
       On October 7, 2008, at about 2:30 a.m., Los Angeles County Sheriff’s Department
(LASD) Deputy Daniel Ament arrived at Flores’s home to notify her that Ponce was
found dead. That same morning, Deputy Michael Grijalva also went to Flores’s
residence to complete a stolen car report for the Lincoln Navigator, which Flores signed.
The Navigator’s license plate number was 5UYC561.
       The Navigator was a leased vehicle and was approximately 24,000 miles over the
lease mileage limit. Flores owed approximately $4,800 in mileage fees in addition to the
car lease payments. She had been late with the lease payments about four to five times in
the past.
       The Murder Investigation
       On October 7, 2008, at approximately 2:09 a.m., California Highway Patrol (CHP)
Officer Jason Wilber arrived at the crime scene at Avenue I and 110th Street West in
Lancaster and saw a man lying on the ground on the right side of the road. He noticed
that there was a significant amount of blood and multiple expended shell casings around
the body. There were no cars or people around the victim and it was “pretty dark”
because it was a rural area. Officer Wilber called dispatch and requested an LASD
homicide investigation.


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      LASD Deputy Ament was assigned to canvass the crime scene area for possible
witnesses and to respond to the victim’s address. There were two houses located west of
the crime scene at 10821 West Avenue I and 10763 West Avenue I. The residents at both
addresses told Ament that they had been sleeping and heard nothing unusual. Ament
then drove approximately six to six and a half miles to the victim’s residence and
interviewed Flores regarding the whereabouts of her husband Ponce. Flores gave Deputy
Ament her husband’s (661) cell phone number. Ament contacted the cell phone service
provider and attempted to locate Ponce’s cell phone but was unsuccessful.
      LASD Sgt. Robert Gray and Sgt. Martin Rodriguez were assigned to investigate
the homicide. They arrived at the crime scene at around 6:00 a.m. on October 7, 2008.
The visible ballistics evidence included shell casings and an expended projectile. No
fingerprints were found on the nine-millimeter casings or the projectile. There were
various skid marks in the area, but none that could be tied to this incident. No weapons
or tools were found in the area and no witnesses were found. Rodriguez opined that the
victim was killed at the scene where he was found.
      On October 7, 2008, at approximately 10:30 a.m., Sgt. Rodriguez spoke to Flores.
Reviewing the victim’s cell phone records, Rodriguez discovered that, prior to leaving his
house, the victim last spoke to a phone number subscribed to Israel Fontana. Rodriguez
was unable to locate Israel Fontana and discovered that the phone was subscribed to a
fictitious address in South Gate. Rodriguez determined that the true subscriber for the
(424) phone resided at Marina City Drive, where Anthony Smith resided.
      On November 4, 2008, Detective Kimberly Ponce (not related to the victim or to
his wife) conducted a surveillance of Anthony Smith’s condominium located at 4316
Marina City Drive, Marina del Rey. In searching for a vehicle associated with Smith,
Detective Ponce focused on assigned parking space numbers 623, 624, and 625, which
were associated with Smith’s unit.
      On November 5, 2008, at 8:05 a.m., the victim’s missing Lincoln Navigator
received a citation for being illegally parked at 5431 6th Avenue in Los Angeles near
Slauson.


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       On November 6, 2008, Detective Ponce returned to Smith’s condominium to
conduct more surveillance. This time, Detective Ponce saw a white Lincoln Navigator
with rear license plate number 5YIP826 and front license plate number 5UYC561 parked
in one of Smith’s parking spots. After running a DMV check, Detective Ponce
determined that the rear license plate did not belong to the Navigator, but the front license
plate did. She also verified that the Navigator belonged to the victim. In addition to the
Navigator in spot 625, there was a green Ford F-250 pickup truck parked in spot 624.
       On the same date, Sgt. Gray and Sgt. Rodriguez asked Omar Pacheco, head of
security for Smith’s apartment complex in Marina del Rey, to check the surveillance
video tapes for a white Navigator. Pacheco found the video footage, which showed that
the Lincoln Navigator, followed by a green pickup truck, entered the Marina City Club
parking area on November 5, 2008, at 1:15 p.m. The video2 showed that a large African
American, who Sgt. Gray believed resembled Smith, was driving the Navigator. The
driver of the green pickup truck was not identified.
       Appellant’s and Co-Defendants’ Arrests and Charges
       On November 6, 2008, after conducting the additional surveillance at his
condominium, Detective Ponce arrested Smith. A search warrant was executed on
Smith’s condominium. An AR-15 was recovered underneath the bed. A box of nine-
millimeter bullets was found in the hallway closet. Shirts and hats displaying police-type
badges were located in the living area. A .38-caliber handgun, an empty handgun
magazine and brass knuckles were also found. No nine-millimeter weapons were found.
Detective Ponce also recovered a cell phone form the kitchen table and two other cell
phones from Smith. The numbers for the two cell phones recovered from Smith were
(424) 219-2502 and (310) 350-9557. Smith’s (310) phone memory contained the cell
phone numbers for the victim, co-defendant Dewann White, and appellant.


2     The surveillance video was not produced at trial; Pacheco testified that detectives
were not able to make a copy of the video in time because the computer system
automatically erases surveillance video after 30 days.


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        On November 7, 2008, Smith was released from custody and voluntarily gave Sgt.
Rodriguez the keys to the victim’s white Navigator.
        On multiple occasions in March 2009, Sgt. Rodriguez conducted surveillance of
appellant at or around 6th Street and Slauson near where the Navigator had been parked
and where it had received a parking citation on November 5, 2008.
        On October 21, 2009, Sgt. Gray executed a search warrant for appellant’s
residence located at 550 North Figueroa Street in Los Angeles. Among the items
recovered from appellant was a cell phone with the number (424) 219-3527. After the
search, appellant was arrested. Appellant was interviewed by Sgt. Gray and Sgt.
Rodriguez. Appellant was subsequently released from custody.
        On March 5, 2010, a search warrant was executed at the residence of co-defendant
Dewann White in Bloomington. At that time, a shotgun, a Stern Rueger .38-caliber
revolver, and White’s cell phone with the number (909) 419-9094 were recovered.
        On March 2, 2011, Los Angeles County District Attorney Investigator David
Ishibashi arrested appellant again at 1119 West Florence Avenue in Los Angeles. During
the search of appellant’s residence, Ishibashi recovered a Walther .40-caliber semi-
automatic handgun. On March 3, 2011, appellant was interviewed again.
        Appellant and co-defendants Smith and White were each charged in one-count
with murder (Pen. Code, § 187, subd. (a)). Appellant was further charged with a prior strike
and serious felony conviction (Pen. Code, § 667.5, subd. (b); § 667, subds. (a) & (b)-(i); §
1170.12, subds. (a)-(d)). Appellant pled not guilty.
        On March 2, 2012, jury selection commenced. On March 5, 2012, appellant’s
Wheeler/Batson motion was heard and denied. Appellant was tried together with co-
defendant Smith; appellant’s jury was designated the “red” jury; Smith’s jury was the “green”
jury.
        Trial Proceedings
        The prosecution’s case against appellant was premised solely on the theory he
aided and abetted the murder. During the trial the prosecution presented testimony from
numerous witnesses, including the investigating officers and an LASD expert in cellular


                                               6
technology. The prosecution also played audio recordings from appellant’s interviews
with investigators.
       A.     Appellant’s Statements to Police
       During his first interview with detectives, recorded on October 21, 2009, appellant
stated that he had known Smith for years because they used to play sports and workout
together. Smith had played football for the Raiders but was now “repo’ing cars” and had
a shop.
       When asked if he ever spent time in the area near 6th and Slauson, appellant said
that he had his car worked on at a garage located on the northwest corner of 6th and
Slauson that his mechanic friend, Sherman Lee, owned.
       Appellant used to work as a bouncer at a bar called Bar Melody near the Los
Angeles Airport and as a longshoreman. One day, a detective who frequented the bar
offered to get appellant a Taser for unruly customers, but appellant declined stating he
did not need one because he was a former bodyguard and was “trained in the arts.”
       Appellant stated that his phone numbers were (310) 483-1688 and (213) 215-2119,
but the latter number was disconnected because he could not afford to pay the bill. He
had his (310) number for years and he also said that Smith gave him a prepaid cell phone
about a year and a half ago before the murder with the number (424) 219-3527.
Appellant stated that he never gave his (424) phone to anyone else and for at least a year
and a half, appellant had sole possession of the (424) phone.
       Appellant told police he was staying with his girlfriend Terry on West Florence
Avenue in Los Angeles in October 2008. Detectives also questioned appellant about an
incident in 2008. Appellant said that in late October 2008 Smith had been drinking and
was going to drive out of town with a shotgun and pistol in his car. Appellant told Smith
not to drive with the weapons in his car and told him that he could leave the weapons at
Terry’s house. Appellant said he put the guns inside Terry’s bedroom closet.
       Appellant was shown a picture of victim’s white Lincoln Navigator; he told
detectives that it looked like the car owned by Smith’s partner, a “Mexican dude” who
was a truck driver. Appellant said that in June 2008, he drove to the Valencia/Magic


                                             7
Mountain area with Smith and met the victim. The victim offered appellant a job to drive
a truck filled with some unknown cargo. Appellant refused to take the job without
knowing the contents of the cargo. Appellant said that although he needed the money, he
would not risk going to jail. Appellant also said he did not know how Smith met the
victim. Appellant denied working with Smith to remove stolen cargo off of trucks.
       Appellant told police that sometime after June 2008, Smith told appellant that the
victim wanted Smith to “chop up” the Lincoln Navigator and Smith asked appellant to
follow him to 6th and Slauson to pick up the vehicle. After picking up the vehicle,
appellant followed behind in Smith’s truck as Smith drove the Lincoln Navigator to
Smith’s residence in Marina del Rey. Appellant said he did not know why the Navigator
was parked at 6th and Slauson, Smith had only told him that the victim wanted them to
get rid of the Navigator for him. Appellant never drove or sat in the front seat of the
Navigator. He did not recall the name of the victim and denied knowing what happened
to him.
       The detectives told appellant that on the day he followed Smith to pick up the
Lincoln Navigator and move it to Marina del Rey, a search warrant was served on
Smith’s residence. The detectives told appellant that the Lincoln Navigator belonged to
the Mexican man depicted in the photograph and that the man had been killed. Appellant
said that the person depicted in the photograph was too fat; the “Mexican dude” he saw
was skinny.
       During this interview, appellant also stated that he had been in the
Lancaster/Palmdale area with Smith only once about four or five months earlier.
Appellant restated that he had had no further contact with Smith. Although appellant said
he had not been to the Palmdale/Lancaster area recently, the detectives told appellant
about communications from Smith in Lancaster to appellant’s (424) phone in Lancaster
on the night of the murder, about half an hour before the killing. Since Smith told




                                             8
detectives that appellant was the one who murdered the victim,3 it explained to appellant
why he had not heard from Smith.
       Appellant’s second interview, which was recorded on March 2, 2011, was also
played for the jury. Appellant said he had not talked to Smith since the last interview.
The detectives referred to Smith’s previous interview about the events of October 7 and
8, 2008 and Smith’s claim that the victim was last seen alive with appellant. Appellant
denounced Smith’s statements as lies.
       When detectives asked appellant how his cell phone was in the Lancaster area,
appellant admitted to going to Lancaster with Smith a second time. Appellant was not
sure what date this trip occurred. Appellant stated that he went to the Lancaster area with
Smith because he and White, who worked with appellant in Long Beach, were “trying to
make some money” and were “supposed to drive some trucks.” Smith had told appellant
that he had “some things going” to “make some extra money.” Appellant told detectives
that White drove to Lancaster in a separate car while appellant drove to Lancaster in
Smith’s green truck. Appellant said it was supposed to be a “quick job” – appellant was
either going to drive some trailers or offload some tires into his truck. White was
supposed to drive an 18-wheeled truck. Appellant waited at an AM/PM parking lot for a
phone call from Smith, who was also in the area, to arrange the job. Appellant waited for
the call from Smith for an hour. When Smith finally called he said that he would meet
them later and that the deal was not going to happen. Appellant called White and told
him that the deal was not going to happen and they went home. Appellant said he did not
see the “Mexican dude” that night.
       When appellant met with Smith to move the Lincoln Navigator from 6th and
Slauson, as far as appellant knew, the owner of the vehicle was still alive. Appellant
believed that Smith was waiting for a call from the “Mexican dude”/owner of the vehicle




3      Smith’s interview transcripts do not disclose that Smith accused appellant of being
the one who murdered the victim.

                                             9
because he wanted Smith to do an insurance job on the truck. Since Smith owed
appellant money, appellant was waiting to get money from the deal.
       Appellant said he did not know that anyone had been murdered until after Smith
was put in jail. Appellant stated that he was overwhelmed that Smith was trying to set
him up.
       B.     Cellular Telephone Evidence
       The prosecution presented cellular technology evidence, as well as testimony from
a Sprint Nextel electronic surveillance technician and an LASD expert in cellular
technology.
       Fancisco Lamas, who had been selling Boost prepaid cellphones in the city of
Lynwood since 2003, also testified at trial.4 Lamas sold prepaid phones to customers
who could choose not to give their names or addresses. Instead, Lamas used random,
fictitious names and an address in Southgate. Lamas testified that a customer would be
able to purchase multiple phones with the same area code and the same first three digits if
acquired on the same day.
       Lamas identified appellant’s (424) 219-3527 cell phone and Smith’s (424) 219-
2502 cell phone as Motorola phones with Boost Mobile logos issued by Sprint Nextel.
       Joseph Trawicki, an electronic service technician for Sprint Nextel, testified at
trial. He responded to law enforcement’s request for cell phone records for the victim
and all three co-defendants, including appellant. Trawicki provided a detailed call record
for victim’s cell number (661) 816-8212. The information included: the personal phone
number, the date of the call, the call initiation time, duration of the handset connection,
the inbound phone dialing the call, the outbound phone that rang, the originating cell
tower used at the beginning of the call, the terminating cell tower used at the end of the
call, the location area code (LAC), and the cellular identifier (CID). Using spreadsheets,
the LAC and CID are used to find the latitude and longitude of the tower. The latitude




4      In 2008, Boost Mobile became Sprint Nextel.

                                             10
and longitude are then plotted with a commercial mapping program to find the specific
geographic location of the tower on a map.
       Trawicki also provided a detailed call record for (310) 350-9557 with a billing
address of Anthony Smith in Marina del Rey. Another detailed call record was prepared
for Smith’s (424) 219-2502 phone number with the account name of Israel Fontana at
8190 California Avenue in South Gate.
       Another detailed call record was prepared for appellant’s (424) 219-3527 phone
number, with the account name of Boost, and for appellant’s (310) 483-1688 number,
with the account name of Chucky Brown.
       Another detailed call record was prepared for Dewann White’s (909) 419-9094
phone number, with the account name of Ontario Motor Sports in Rancho Cucamonga.
       Detective Ty Labbe, an LASD expert in cellular telephone technology, testified at
trial about the forensic analysis he conducted on the cellular data gathered in this case.
From the call data records for a specific cell phone number, Labbe is able to plot on a
map the location from which the cellular device communicated with a cell phone tower
and determine the phone’s possible movement and the direction of travel.5



5       Phone companies set up towers in communities to be able to find its customers for
billing purposes. Cell phones work on two-way radio frequencies and communicate with
the closest tower bearing the strongest signal (this does not necessarily mean the closest
tower geographically). The tower then confirms that the cell phone is part of their
network, records the phone’s location, and sends information. The cell phone is a
homing device for the cellular network. This communication occurs whenever the cell
phone is on, regardless of whether calls are made or received.

        A high volume of data is exchanged between cell phones and towers. Towers are
numbered and the sectors within the towers are numbered in the cellular network. In this
case, the sectors of the Sprint Nextel tower configuration were divided into 120-degree
sectors. From its records, the phone company is able to determine the tower number,
what sector the cell phone registered on, and when the call was made or when a text
message was received.

      In conducting a forensic analysis of phone records and plotting the locations on a
map, Labbe looks at the date and time of the call, whether the call was incoming,

                                             11
       Labbe focused his analysis on records for the following numbers: victim’s (661)
816-8212, Smith’s (424) 219-2502, White’s (909) 419-9094, and appellant’s (310) 483-
1688 and (424) 219-3527 phone numbers. Labbe also had the residential addresses of:
Anthony Smith in Marina del Rey; Dewann White in Bloomington in San Bernadino
County; and appellant in South Los Angeles.
       According to phone records, on October 6, 2008, at 9:14 p.m., a call was made
from White’s (909) cell phone, which communicated with a cell phone tower near
appellant’s residence in South Los Angeles. At 9:16 p.m. another call was made from
White’s cell phone, communicating with the same cell phone tower near appellant’s
residence.
       At 9:19 p.m., Smith’s (424) cell phone communicated with the cell tower just
south of appellant’s residence. At 9:48 p.m., White’s cell phone communicated with a
tower located north of the Los Angeles Airport near Marina del Rey. Based on these
records, Labbe opined that White’s phone moved from near appellant’s residence at 9:15
p.m. towards Marina del Rey at 9:48 p.m. At 9:50 p.m., White’s cell phone
communicated with a tower located just south of Marina del Rey. At 10:04 p.m., Smith’s
(424) cell phone had an incoming call from the victim’s (661) cell phone. During that

outgoing, routed, or went to voice mail, and the duration of the call. With a call that lasts
at least five minutes, there is a good chance that potential movement can be shown.
Movement can be shown when the call ends at a different tower location. In general, cell
phones communicate with towers within a three-mile radius. Labbe is able to determine
the movement of a cell phone by considering the relative location of the towers and
possible interference due to terrain such as mountains, the time of the call impacting
tower activity, and the strengths of the radio frequencies. When a phone communicates
with different towers, one explanation for the different towers is that the phone is
moving. Another reasonable explanation Labbe gave is that the phone is stationary but is
interrupted by a tower with a better connection based on the terrain and the type of
equipment used on the towers and open areas as opposed to concentrated areas. Labbe
testified that certain movement of a cell phone, “literally within four or five feet in any
direction,” could cause a handoff from one tower to another. When asked whether it is
possible for a person to be on a cellphone while walking around the interior of a home,
from one room to another, for the phone to hand off from one tower to another, Labbe
opined that it is and that he has seen that happen before.


                                             12
call, Smith’s phone communicated with a tower near his residence in Marina del Rey.
Based on these all records, Labbe opined that White’s cell phone moved from near
appellant’s residence to the area near Marina del Rey. He also opined that Smith was at
or near his residence in Marina del Rey.
       At 10:20 p.m., Smith’s cell phone received a call from the victim’s (661) cell
phone and communicated with a tower located in the center of Marina del Rey. At 10:56
p.m., Smith’s cell phone received another call from the victim’s cell phone and
communicated with a tower located near the 118/134/405 freeway interchange in
Granada Hills. Based on these call records, Labbe opined that Smith’s cell phone moved
northbound from Marina del Rey to the interchange in Granada Hills.
       At 11:07 p.m., the victim’s cell phone received a call from Smith’s cell phone and
communicated with the tower located near the north basin of Antelope Valley. At the
time of this call, Smith’s cell phone communicated with a tower near the Sand Canyon
exit on the 14 Freeway in Santa Clarita. At 11:10 p.m., appellant’s cell phone also
communicated with the same tower near Sand Canyon.
       At 11:43 p.m., there was another call between the victim’s cell phone and Smith’s
cell phone, with the victim’s cell phone communicating with a tower near the 14 Freeway
in Acton and Smith’s phone still communicating with the Sand Canyon tower in Santa
Clarita. Based on the amount of time elapsed between the first and second call between
the victim and Smith, Labbe opined that the victim’s phone traveled from the area near
his residence heading south toward Acton, between Crown Valley Road and Red Rover
Mine Road on the 14 Freeway.
       Labbe reviewed records of Smith’s (424) and (310) cell phones from October 6,
2008, at 11:44 p.m. to October 7, 2008, at 3:18 a.m. Labbe found no record of any calls
made or received by either cell phone during this time. There would be no activity on the
phone if it was turned off. On October 6, 2008, at 11:34 p.m., the last outgoing call from
Smith’s (424) phone is to the victim’s phone (the call described above). There is no
further activity on Smith’s (424) phone until a routed call is made at 3:19 a.m.



                                            13
       On October 7, 2008, at 12:53 a.m., the victim’s cell phone communicated with a
tower on Avenue I and Division Street, near the 14 Freeway in Palmdale. Based on this
call record, Labbe opined that the victim’s cell phone had moved northbound. At 1:04
a.m., during another call between White’s cell phone and appellant’s cell phone, White’s
cell phone communicated with the same Avenue I tower but appellant’s cell phone
moved south to another tower. When the call terminated at 1:05 a.m., appellant’s cell
phone was communicating with a tower located near 50th Street West and Avenue M in
Quartz Hill. Based on these call records, Labbe opined that appellant’s cell phone moved
south and to the west.
       At 2:02 a.m., the victim’s cell phone communicated with a tower off the 14
Freeway in Acton between Red Rover Mine and Crown Valley Road. Labbe opined that
the victim’s phone had moved south from its previous location in Palmdale at 12:53 a.m.
At about 2:05 a.m., appellant’s (424) cell phone received a call from his (310) cell phone
and was communicating with the same tower that the victim’s cell phone had
communicated with a few minutes earlier. At about 2:16 a.m., there was another call
between appellant’s (424) and (310) cell phones in which both phones communicated
with the Sand Canyon tower off the 14 Freeway. At 2:27 a.m., White’s phone
communicated with a tower located in Canyon Country, which is further north on the 14
Freeway, and east of the earlier call between appellant’s two cell phones.
       At 2:38 a.m., appellant’s (424) cell phone called his (310) cell phone. The (424)
phone communicated with a tower near the 405 Freeway south of the 101 Freeway in
Sherman Oaks. Appellant’s (310) cell phone communicated with a tower at the
interchange between the 5 Freeway and the 14 Freeway in Sylmar. Labbe opined that
appellant’s two phones were not traveling together because of the great distance between
their respective towers. There was another call between appellant’s two phones at about
2:47 a.m., with the (424) phone communicating with a tower on Ventura boulevard near
Encino, while the (310) phone was communicating with a tower slightly north of that
location near the Vanowen exit on the 405 Freeway. Labbe opined that appellant’s two
cell phones were not traveling together. At 2:49 am, there is another call between


                                            14
appellant’s phones, with the (424) phone communicating with a tower near the 405
Freeway and the Oxnard/Sepulveda exit and the (310) phone communicating with a
tower further northeast near the 405/101 interchange.
       On October 7, 2008, between 3:10 a.m. and 3:19 a.m., there were three calls made
or received by appellant’s (424) number while communicating with a tower near
Washington Boulevard and Overland in Culver City. At 3:19 a.m., Smith’s (424) number
received a call from appellant’s (424) number while communicating with the same
Culver City tower.
       That same day, October 7, 2008, at 3:13 p.m., Smith’s (424) number called
appellant’s (424) number. At that time, Smith’s cell phone communicated with a tower
in Marina del Rey while appellant’s cell phone communicated with a tower in south Los
Angeles. At 3:35 p.m., there is another call from Smith’s (424) phone to appellant’s
(424) phone. At that time, Smith’s phone communicated with the same Los Angeles
tower as appellant’s phone.
       On October 8, 2008, at 12:34 a.m., Smith’s (424) phone was communicating with
a tower in Culver City and made a call to appellant’s (424) phone, which communicated
with a tower in Inglewood. At 2:27 a.m., there is another call between appellant’s (424)
phone and Smith’s (424) phone. Smith’s phone hits a tower near Balboa Park, while
appellant’s phone communicated with a different tower in the same Balboa Park area. At
2:28 a.m., there is a call where both phones hit off the same tower in Sherman Oaks. At
2:48 a.m., both phones were in the same area in Los Angeles communicating with the
same towers.
       C.      Other Evidence
       In order to prove that the shooting occurred at 1:30 a.m. on October 7, 2008, the
prosecution offered testimony from two private security guards, Brandon McClure and
Daniel Mergili, who were working at the Edison power plant at 9634 West Avenue J. At
1:30 a.m., McClure and Mergili were entering their GPS location at a check point during
their hourly patrol route when they heard gunshots coming from the northwest direction
of the compound. Mergili testified that after the first shot, there was approximately 15


                                            15
seconds of pause, then another gunshot followed by a second 15-second pause, and then
finishing with four to five gunshots in a row. Neither McClure nor Mergili saw any
muzzle flash or cars speeding away from the direction of the gunshots.
       Dr. Yulai Wang, a deputy medical examiner with the Los Angeles County
Coroner’s Department, conducted the victim’s autopsy and determined the cause of death
to be multiple gunshot wounds. The victim had six gunshot wounds: two in the head, one
in the chest wall, two in the back, and one in the arm. Wang was able to recover one
bullet from the right side of the trunk, another bullet from the victim’s clothes, and one
bullet fragment from the victim’s neck. Wang testified that the bullets were “medium
size,” consistent with a nine-millimeter caliber.
       LASD Deputy Edmund Anderson, a firearms identification expert, also testified
during the trial. Anderson analyzed the bullet casings and projectiles recovered at the
scene. He opined that the five nine-millimeter bullet casings were all expended out of the
same handgun. He found the comparison results as to the projectiles to be inconclusive
and could not determine whether they have been fired from the same handgun. Anderson
was, however, able to determine that the three fired bullets from the Coroner’s office
were nine-millimeter bullets, which could have been fired from a Smith & Wesson
Sigma-type pistol. The fourth bullet had similar rifling characteristics.
       Redolfo Escobar, who worked as a mechanic for the victim in 2008, also testified
in court. Escobar testified that the victim worked all hours of the night and day and had a
lot of clients. Several months before the victim’s murder in October 2008, Escobar saw a
green pickup truck with collision damage on both sides at the victim’s tire yard in
Littlerock. Escobar testified that the green pickup truck found at Smith’s residence
looked the same as the green pickup truck he saw at the tire yard. He described the driver
of the green pickup truck as a tall and heavy African-American man. Escobar did not see
anyone in the courtroom who looked like the man he saw get out of the green truck.
       Sometime later, Escobar saw the green truck again at a Taco Bell located by
Palmdale Boulevard and the 14 Freeway. Escobar saw two tall, heavy African-American
men exiting the green truck. Escobar stayed in the truck while the victim got out and


                                             16
entered the back of the green pickup truck. They all left in the green truck and returned
two to four hours later. Escobar waited inside the victim’s white pickup truck at the Taco
Bell.
        Krystal Crail, the mother of appellant’s four-year-old daughter also testified.
Although their romantic relationship ended in October 2007, Crail still spoke to appellant
in 2008. She stated that appellant’s nicknames were “Chucky” and “Cheese.” On
October 7, 2008, Crail resided on Mentone Avenue in Los Angeles. She did not recall
whether appellant stayed overnight during that time, but she doubted it. Crail testified
that she would not be surprised if the records showed she called appellant’s (424) phone
on October 7, 2008, at 3:10 a.m. and again at 3:15 a.m.
        Neither appellant nor Smith testified at trial. A jury acquitted appellant of first-
degree murder and convicted him of the lesser second degree murder charge.
        Post Verdict and Sentencing
        Appellant’s motions for new trial and to dismiss the prior conviction were heard
and denied. The court imposed a sentence of 35 years to life in prison.
        Appellant filed this appeal.
                                        DISCUSSION
I.   Substantial Evidence Does Not Support Appellant’s Second Degree Murder
     Conviction
        Appellant contends sufficient evidence did not support his second degree murder
conviction under the prosecution’s theory that appellant aided and abetted the charged
murder.
        A.     Relevant Legal Principles
               1.     Sufficiency of the Evidence
        A criminal conviction not supported by sufficient evidence violates both state and
federal due process and is thus invalid. (U.S. Const., amend. XIV, § 1; Cal. Const, art. I,
§ 15; People v. Rowland (1992) 4 Cal.4th 238, 269.) “In assessing the sufficiency of the
evidence, we review the entire record in the light most favorable to the judgment to
determine whether it discloses evidence that is reasonable, credible, and of solid value


                                              17
such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We must presume the existence
of every fact that the trier of fact could reasonably deduce from the evidence. (People v.
Upsher (2007) 155 Cal.App.4th 1311, 1322.) Nonetheless, evidence that merely raises a
strong suspicion of the defendant’s guilt is not sufficient to support a conviction.
Suspicion is not evidence, it merely raises a possibility, and this is not a sufficient basis
for an inference of fact. (People v. Redmond (1969) 71 Cal.2d 745, 755.) Moreover, we
must determine whether the evidence of each of the essential elements of the crime is
substantial; it is not enough for the respondent to simply point to “some” evidence
supporting the finding. (People v. Bassett (1968) 69 Cal.2d 122, 138.)
       The sufficient evidence standard is the same whether the evidence is direct or
circumstantial. (People v. Whisenhunt (2008) 44 Cal.4th 174, 200; People v. Pierce
(1979) 24 Cal.3d 199, 210 [“Circumstantial evidence may be sufficient to connect a
defendant with the crime and to prove his guilt beyond a reasonable doubt”].) Whether a
particular inference can be drawn from the evidence is a question of law. (People v.
Austin (1994) 23 Cal.App.4th 1596, 1604, disapproved on other grounds, People v.
Palmer (2001) 24 Cal.4th 856, 864.) “A reasonable inference, however, may not be
based on suspicion alone, or on imagination, speculation, supposition, surmise,
conjecture, or guess work. A finding of fact must be an inference drawn from the
evidence rather than . . . a mere speculation as to the probabilities without evidence.”
(People v. Morris (1988) 46 Cal.3d 1, 21.) Although all reasonable inferences must be
drawn in support of the judgment, we “may not go beyond inference and into the realm of
speculation in order to find support for a judgment. A finding . . . which is merely the
product of conjecture and surmise may not be affirmed.” (People v. Memro (1985) 38
Cal.3d 658, 695 disapproved on other grounds, People v. Gaines (2009) 46 Cal.4th 172,
181.) When the facts give equal support to two competing inferences, neither is
established. (People v. Acevedo (2003) 105 Cal.App.4th 195, 198.)




                                              18
       Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible to two reasonable interpretations, one of which
suggests guilt and the other innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Milwee (1998)
18 Cal.4th 96, 132.) “If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.” (People
v. Bean (1988) 46 Cal.3d 933.)
       We may reverse for lack of substantial evidence only if “upon no hypothesis
whatever is there sufficient substantial evidence to support” the conviction. (People v.
Bolin (1998) 18 Cal.4th 297, 331; People v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)
Finally, if the verdict is supported by substantial evidence, we accord due deference to
the verdict and will not substitute our evaluations of the witnesses’ credibility for that of
the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078; In re Frank S. (2006)
141 Cal.App.4th 1192, 1196.)
       Finally, the sufficiency of the evidence must be assessed in light of the
prosecution’s theory of conviction in the trial court. (Cole v. Arkansas (1948) 333 U.S.
196.) In order to conform to due process of law, “[defendants are] entitled to have the
validity of their convictions appraised on consideration of the case as it was tried and as
the issues were presented in the trial court.” (Id. at pp. 201-202; see also People v. Smith
(2005) 37 Cal.4th 733, 740.)
              2.     Second Degree Murder Under the Theory of Aiding and Abetting

       To prove a defendant is an aider and abettor, the prosecution must demonstrate
that the person acted with knowledge of the criminal purpose of the perpetrator; with an
intent or purpose either of committing or encouraging or facilitating the commission of
the crime; and by act or advice, aided, promoted, encouraged, or instigated the
commission of the crime. (People v. McCoy (2001) 25 Cal.4th 1111, 1118; see also
CALCRIM No. 3.01.) When the offense charged is a specific intent crime, like second



                                              19
degree murder, the accomplice must share the specific intent of the perpetrator; this
occurs when the aider and abettor knows “the full extent of the perpetrator’s criminal
purpose and give[s] aid or encouragement with the intent or purpose of facilitating the
perpetrator’s commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)
Where the jury is not instructed on the natural and probable consequences doctrine, as in
the present case, an aider and abettor of the intended murder “must know and share the
murderous intent of the actual perpetrator.” (People v. McCoy, supra, 25 Cal.4th at p.
1118.)
         In addition, although a person who aids and abets in the commission of a crime
need not be personally present at the scene of the crime, presence at the scene of the
crime, which does not itself assist the commission of the crime, does not amount to
aiding and abetting. (People v. Stankewitz (1990) 51 Cal.3d 72, 91.) Moreover,
knowledge that a crime is being committed and the failure to prevent it, does not amount
to aiding and abetting. (In re Michael T. (1978) 84 Cal.App.3d 907, 911.)
         B.     Analysis
         At trial, citing Smith’s possession of the victim’s car keys, car, and cell phone, the
prosecution argued that Smith was the actual killer. Accordingly, the prosecution
pursued the murder charge against appellant based solely on an aiding and abetting
theory. The prosecution relied on the “shared intent” theory for second degree murder,
rather than the natural and probable consequences doctrine. Before this court, appellant
claims that the evidence presented at trial did not support the prosecution’s theory. As
we shall explain, reviewing the evidence and the entire record in the light most favorable
to the prosecution, there is insufficient evidence to convict appellant of aiding and
abetting the murder of the victim based on the intent theory urged by the prosecution at
trial.
         Other than appellant’s statements saying he was waiting at an AM/PM for Smith’s
call, there is no other evidence to show what exactly appellant was doing or his exact
whereabouts between 1:05 a.m. and 1:30 a.m. on October 7, 2008. Nonetheless, based on
the cell phone evidence, a jury could have reasonably inferred that appellant was present


                                               20
at the scene of the murder. Even assuming appellant was actually present at Avenue I
and 110th Street West at the time the victim was killed, however, there is insufficient
evidence to prove that appellant had knowledge of Smith’s criminal purpose, much less
shared Smith’s murderous intent.
       In addition to the cell phone records, the prosecution also relied on evidence
regarding appellant’s background to assert that he aided and abetted in the murder. The
victim had multiple bruises all over his body indicating that he had been beaten prior to
being killed. The prosecution argued that appellant, who was “trained in the arts” must
have assisted in the victim’s murder by beating and kicking the victim before Smith shot
him multiple times. Even assuming that the jury reasonably inferred that appellant
assisted in the aggravated assault, the fact that he assisted in the assault does not
demonstrate appellant had the requisite, specific shared intent to support his second-
degree murder conviction.
       The prosecution also drew attention to appellant’s involvement after the murder.
The prosecution argued the evidence showed that appellant drove Smith from the place
where the victim was murdered and thereafter facilitated the shooter’s escape, therefore
proving that appellant aided and abetted the murder. The cell phone evidence and
appellant’s conduct after the murder including his admissions that he followed Smith to
6th Street and Slauson to pick up the Lincoln Navigator and that he followed Smith back
to his residence in his truck show that appellant was an accessory after the fact to the
crime. This evidence, however, in our view is insufficient to show that appellant acted
with personal knowledge of Smith’s murderous purpose, shared that purpose or that he
formed the specific intent to commit or encourage the murder of the victim.
       In view of the foregoing we conclude, there was insufficient evidence to support
the appellant’s conviction of second-degree murder based on the prosecution’s “shared
intent” theory of aiding and abetting urged at trial.




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                                    DISPOSITION
      The judgment is reversed.




                                                                    WOODS, J.


We concur:




             PERLUSS, P. J.




             SEGAL, J.*




*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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