Filed 6/2/15 P. v. Lewis CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B255077

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. BA406579)
         v.

KEITH DWAYNE LEWIS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert J. Perry, Judge. Reversed and Remanded.
         Barbara A. Smith, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer
and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.




         A jury convicted defendant Keith Dwayne Lewis of the attempted murders
of Daniel and Miguel Meza, finding true the allegation that the attempted murders
were deliberate and premeditated (Pen. Code, §§ 664/187, subd. (a)), and also
convicted him of assault with a firearm on Alejandro Arroyo (§ 245, subd. (a)(2)).1
As to all counts, the jury found that the crimes were committed to benefit a
criminal street gang (§ 186.22, subd. (b)(1)(C)), and as to the attempted murders,
the jury found true the allegation that a principal intentionally discharged a firearm
causing great bodily injury (§ 12022.53, subds. (c), (d), and (e)(1)). In a bifurcated
proceeding, the court found that defendant had previously been convicted of a
strike offense (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a serious felony
(§ 667, subd. (a)(1)), and that he had served four prior prison terms (§ 667.5, subd.
(b)). The court sentenced defendant to consecutive terms of life in prison on the
attempted murder convictions, plus 25 years to life for the firearm enhancements,
and a consecutive term of 18 years to life on the assault with a firearm conviction
and gang enhancement.
      Defendant appeals from the judgment of conviction, contending: (1) the
evidence is insufficient to support his convictions as an aider and abettor, and
(2) the trial court erred in denying his request for a Marsden hearing (People v.
Marsden (1970) 2 Cal.3d 118) as untimely.2 We find that sufficient evidence
supports defendant’s convictions, but conclude that the court erred in failing to
conduct a Marsden hearing. We therefore reverse the judgment and remand the
case for the limited purpose of conducting a Marsden hearing and, depending on
the court’s ruling, ordering a new trial or reinstating the judgment.




1
      Undesignated section references are to the Penal Code.
2
      In his opening brief, defendant also challenges the firearm enhancement in the
attempted murder count relating to Miguel Meza. In his reply brief, he withdraws the
contention and therefore we do not discuss it.
                                            2
                                 BACKGROUND
      Defendant belonged to the East Side Trece gang. Attempted murder victim
Daniel Meza belonged to the rival Loco Park gang. Around 8:30 p.m. on January
5, 2013, Daniel and his younger brother Miguel (who was not a gang member)
entered a family market near 25th and Hooper in Los Angeles, which was in Loco
Park territory. After buying beer, they were leaving when Daniel saw appellant
and two other men whom he recognized as East Side Trece gang members outside:
defendant, Robert Grandos (who Daniel knew as Little Rob) and an unidentified
third man. When they saw Daniel, defendant and Grandos called out
confrontationally “East Side Trece,” and said (among other things) “Fuck
lollypops,” an insult “dissing” Daniel’s gang, Loco Park. Daniel was standing next
to his brother, perhaps a foot away from defendant. He then saw defendant wave
with his hand as if to demand that Daniel come outside, and heard defendant say,
“Get him.” Daniel started to go outside, and at the doorway heard shooting. He
did not see anyone with a gun. He turned and ran into the store. He was shot
seven times (three in his chest, two in his back, and two in his arm), but survived.
Daniel’s brother, Miguel, was shot once in the shoulder. A third victim, Alejandro
Arroyo, who happened to be in the store, was shot in the wrist.
      The events were captured by video security cameras at the market and an
edited video compilation was played for the jury during testimony. The video
(Exh. 3A) showed the following. Defendant and two companions walked past the
front window of the market. Defendant (identified as the heavy set one of the
group) looked in through the window as they passed, and did a double take,
craning his neck as if to look again more closely through the window. All three
men stopped, and then walked back to the front door, stopped, and separated,
defendant standing in the doorway facing the market, Grandos a few feet to

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defendant’s right on the sidewalk, and the unidentified man on the sidewalk a few
feet to defendant’s left. According to Daniel, who viewed the video while
testifying, it was at this point that defendant hurled insults against the Loco Park
gang. Shortly thereafter, the video showed defendant stepping away from the
doorway. Miguel Meza walked out the door onto the sidewalk. Daniel appeared
on the sidewalk at the doorway. At that point, defendant’s unidentified companion
approached from behind defendant and started shooting in the direction of the
store. Defendant, who was only a few feet away from the shooter, appeared to
flinch slightly and step aside toward the street. Miguel and Daniel fled inside the
store. The shooter approached nearer to the store and fired several more times.
Then he, defendant, and Grandos ran off.
      Defendant was wearing an ankle bracelet monitored by the Department of
Corrections and Rehabilitation. On the date of the shooting, GPS tracking data
showed that at 8:38 p.m. he was at 25th Street and Hooper (the approximate time
and site of the shooting), and that approximately five minutes later he was at 1225
and 1227 West 27th Street, the location of the home of Robert Grandos.
      The prosecution gang expert, Los Angeles Police Officer David Dixon, who
was familiar with the East Side Trece gang, was asked a hypothetical question
based on the evidence of the shooting. He testified that such a shooting would
have been committed to benefit the East Side Trece gang as a means of gaining
respect and instilling fear. He further testified that gang members entering a rival
gang’s territory would typically be armed in anticipation of violence. Similarly,
Daniel testified that a gang member would enter a rival gang’s territory “I guess to
go put in work . . . to go shoot somebody,” and “no one would ever walk into
another neighborhood without no gun . . . because you will get shot.”



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                                   DISCUSSION
      I.     Sufficiency of the Evidence
      Defendant contends that the evidence is insufficient to prove that he aided
and abetted the attempted, deliberate, premeditated murders of Daniel and Miguel
Meza, and the assault with a firearm on Alejandro Arroyo. Although he
acknowledges the deferential standard of review, the crux of his contention is a
reweighing and parsing of the evidence into unconnected pieces, an aversion to
drawing reasonable inferences, and a cataloguing of evidence that in his view
might have been sufficient but was absent. Applying the proper standard of
review, we conclude that the evidence is sufficient to support defendant’s
convictions. Of course, we view the entire record in the light most favorable to the
judgment, and presume in support all reasonable inferences that can be drawn from
the evidence. (People v. Albillar (2010) 51 Cal.4th 47, 50-60.)
      Defendant was convicted as an aider and abettor of the attempted murders of
Daniel and Miguel, and the jury found true as to each count that the attempted
murders were deliberate and premeditated. “Attempted murder requires the
specific intent to kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing. [Citations.] To be guilty of a crime as an aider
and abettor, a person must ‘aid[] the [direct] perpetrator by acts or encourage[] him
[or her] by words or gestures.’ [Citations.] In addition, except under the natural-
and-probable-consequences doctrine [citations], which is not implicated on the
facts presented here, the person must give such aid or encouragement ‘with
knowledge of the criminal purpose of the [direct] perpetrator and with an intent or
purpose either of committing, or of encouraging or facilitating commission of,’ the
crime in question. [Citations.] When the crime at issue requires a specific intent,
in order to be guilty as an aider and abettor the person ‘must share the specific

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intent of the [direct] perpetrator,’ that is to say, the person must ‘know[] the full
extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid or
encouragement with the intent or purpose of facilitating the [direct] perpetrator’s
commission of the crime.’ [Citation.] Thus, to be guilty of attempted murder as an
aider and abettor, a person must give aid or encouragement with knowledge of the
direct perpetrator’s intent to kill and with the purpose of facilitating the direct
perpetrator’s accomplishment of the intended killing—which means that the person
guilty of attempted murder as an aider and abettor must intend to kill.” (People v.
Lee (2003) 31 Cal.4th 613, 623-624 (Lee).)
      In addition, where, as in the instant case, it is alleged that the attempted
murder was deliberate and premeditated under section 664/187, subdivision (a), it
is necessary only that the actual perpetrator deliberated and premeditated. So long
as the aider and abettor shared the intent to kill, he is liable for the enhanced
punishment for deliberate and premeditated attempted murder, even though he
himself did not deliberate and premeditate. (Lee, supra, 31 Cal.3d at p. 624.)
      Here, the evidence showed that defendant and his two companions, Grandos
and the unidentified shooter, were East Side Trece gang members. They entered
the territory of a rival gang, Loco Park, and passed the market that was the scene of
the shooting. As Officer Dixon and Daniel testified, gang members entering a
rival’s territory typically arm themselves. Indeed, Daniel was more specific: a
gang member enters a rival gang’s territory “I guess to go put in work . . . to go
shoot somebody,” and “no one would ever walk into another neighborhood without
no gun . . . because you will get shot.”
      The evidence of the shooting – Daniel’s testimony and the surveillance
video – strongly support the inference that defendant entered Loco Park territory
with the expectation of “put[ting] in work,” knowing that one of his companions

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was armed. The video showed that as defendant and his two companions walked
past the front window of the market, defendant looked in and did a double take,
inferably recognizing Daniel as a member of Loco Park into whose territory they
had entered, and suspecting that Daniel’s companion, Miguel, was also a rival gang
member. Defendant and his two companions walked back to the front door,
stopped, and separated. According to Daniel, defendant, who was standing in the
doorway facing the market, and Grandos issued gang threats, calling out the name
of their gang (“East Side Trece”) and insulting Daniel’s gang (“Fuck lollypops.”)
Defendant waved his hand calling on Daniel to come outside, and then said “Get
him.” Almost immediately thereafter, Daniel started to go outside, and at the
doorway heard shooting.
      As the video tape showed, Miguel walked out the door onto the sidewalk.
Daniel appeared at the doorway just onto the sidewalk. Defendant’s unidentified
companion approached from behind defendant and started shooting in the direction
of the store. Defendant, who was only a few feet away from the shooter, appeared
to flinch slightly at the sound of the shots and stepped aside toward the street,
getting out of the way of the shooter. Miguel and Daniel fled inside the store. The
shooter approached nearer to the store and fired several more times. Daniel was
shot seven times and Miguel was shot once. Then the shooter, defendant, and
Grandos ran off. As Officer Dixon testified based on a hypothetical question
mirroring the evidence of the shooting, such a shooting would be committed to
benefit the East Side Trece gang, enhancing the reputation of the gang and
instilling fear. Within minutes after the shooting, GPS tracking of defendant’s
ankle bracelet showed that defendant went to Grandos’ home.
      From this evidence, it could reasonably be inferred that the shooter intended
to kill Daniel and Miguel, and that he deliberated and premeditated that intent. In

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rival gang territory, he was “put[ting] in work,” firing multiple shots at people he
perceived to be associated with a rival gang.
      It could also be inferred that defendant shared the shooter’s intent to kill.
That is, knowing that his companion was armed in rival gang territory, he observed
Daniel (a member of a rival gang) and Miguel together in the market. He hurled
gang insults, motioned for Daniel to come outside, and then called on his
companion to “get him,” meaning to shoot Daniel and (it may be inferred) Daniel’s
companion, Miguel. On this basis, the evidence was sufficient to support the
defendant’s conviction of the attempted murders, with the finding that the
attempted murders were deliberate and premeditated.
      Defendant’s arguments to the contrary simply ignore the standard of review
on appeal and fail to admit the reasonable inferences that can be drawn from the
evidence. Thus, he asserts “it is . . . speculative that [he] himself knew of the
shooter, who came from behind him.” He downplays the testimony of Officer
Dixon and Daniel that gang members typically arm themselves before going into a
rival gang’s territory, and argues that there is “no evidence of specific pre-offense
planning, or specific references to using a gun.” He notes the absence of evidence
of an ongoing gang war between East Side Trece and Loco Park, and speculates
that defendant’s reaction to the shooting shown on the video tape suggests surprise
not complicity. All such arguments are appropriate for, and were made at, trial.
But they do not undercut the sufficiency of the evidence to prove defendant’s guilt
of attempted murder on appeal.
      For much the same reason, defendant was liable as an aider and abettor for
the shooter’s assault with a firearm on Alejandro Arroyo. Using a firearm, the
shooter willfully committed an act that probably would result in the application of
physical force on Arroyo (§ 245, subd. (a)(2)), a bystander in the store into which

                                           8
the shooter fired. Indeed, Arroyo was wounded in the wrist. Defendant aided and
abetted that crime by encouraging the shooter to fire. Thus, the evidence was
sufficient to sustain his conviction for assault with a firearm.


      II.    Marsden Motion
      Defendant contends that the trial court erred in not holding a Marsden
hearing, that is, a hearing outside the presence of the prosecution and jury that
would have allowed the defendant an opportunity to convey his dissatisfaction with
his court-appointed lawyer and the reasons he should be granted a new attorney.
(See People v. Lopez (2008) 168 Cal.App.4th 801, 814-815 (Lopez).) We agree.
      Outside the presence of the jury, after the first two witnesses had testified,
the court stated: “I got a note [from the bailiff] this morning as the jury was in the
box and were ready to start the case [stating] ‘Defendant says he wants to make a
Marsden motion right now.’ I did not recess the case for that purpose, and I just
want to explain why. I felt that it was untimely. We are in the middle of trial. I
don’t think that that’s an appropriate time to make a Marsden motion, so that’s
why the court did not interrupt proceedings.” Defense counsel stated that “[t]his is
the first I have heard about it, Judge. I would have brought it to the court’s
attention.” The issue did not arise again.
      In deeming the request for a Marsden hearing untimely because it was in the
middle of trial, the court erred. “A criminal defendant is entitled to raise his or her
dissatisfaction with counsel at any point in the trial when it becomes clear that the
defendant’s right to effective legal representation has been compromised by a
deteriorating attorney-client relationship.” (People v. Roldan (2005) 35 Cal.4th
646, 681; see Lopez, supra, 168 Cal.App.4th at p. 814 [trial court’s finding
Marsden motion to be untimely because made midtrial was “contrary to the law”];

                                             9
People v. Mack (1995) 38 Cal.App.4th 1484, 1487 [“It is well settled that a
criminal defendant, at any stage of the trial, must be given the opportunity to state
reasons for a request for new counsel”].) Respondent’s contention that without
holding a hearing the trial court acted within its discretion in deeming the Marsden
motion untimely is without support in the case law.
      We conclude that the proper remedy is a limited remand for the trial court to
conduct a Marsden hearing. During trial, defendant never voiced dissatisfaction
with his attorney and never again asked for a Marsden hearing. Further, the record
gives no indication of ineffective assistance of counsel. Under these
circumstances, it is appropriate to reverse the judgment and remand the case for the
trial court to conduct a Marsden hearing. (People v. Hill (2013) 219 Cal.App.4th
646, 653-654; Lopez, supra, 168 Cal.App.4th at p. 815; People v. Olivenica (1988)
204 Cal.App.3d 1391, 1400-1401.)




                                          10
                                      DISPOSITION
             The judgment is reversed and the case is remanded to the trial court to
conduct a Marsden hearing in which defendant shall be permitted to state the
reasons for his dissatisfaction with his trial attorney and his desire to have another
attorney appointed. The trial court shall have discretion to consider defendant’s
complaint in light of the manner in which his counsel actually performed at trial.
If the court determines that good cause for the appointment of new counsel has not
been shown, it shall reinstate the verdicts and judgment. If the court determines
that good cause for appointment of new counsel has been shown, the court shall
appoint new counsel and set the case for retrial.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, Acting P.J.




             We concur:




             MANELLA, J.




             COLLINS, J.



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