Filed 9/15/15 P. v. Miller CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067451

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SWF1101646)

KYLE CHRISTOPHER MILLER et al.,

         Defendants and Appellants.


         APPEALS from a judgment of the Superior Court of Riverside County, Angel M.

Bermudez, Judge. Affirmed in part; reversed in part with directions.



         Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and

Appellant Kyle Christopher Miller.

         Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and

Appellant Patty Ann Lamoureux.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M.

Clark, Deputy Attorneys General, for Plaintiff and Respondent.
       In the early morning hours of July 6, 2011, Kyle Christopher Miller robbed and

killed his uncle, Bradley Capen. The crime occurred in the converted barn Bradley lived

in with Kyle's two younger brothers, Kevin and Kurt Miller.1 The barn was adjacent to

the house where Kyle's mother Connie Capen, sister Danielle Miller, and Danielle's

boyfriend and young daughter lived. Until just weeks before the murder, Kyle also lived

in the barn with Bradley, Kevin and Kurt. After Bradley accused Kyle of stealing,

however, Kyle left the family property and moved to the home his friend Patty Ann

Lamoureux shared with her boyfriend, Ian Inserra, and Inserra's young son Spencer.

       Kyle was arrested the day after the crime was committed. After the discovery of a

map of the barn suggesting a plan to rob Bradley and other incriminating evidence,

Lamoureux and Inserra were also taken into custody. Eventually the three defendants

were jointly charged with felony murder and conspiracy to commit robbery or burglary.

All three pleaded not guilty. Lamoureux moved for a separate trial or, alternatively, for a

separate jury. The prosecutor opposed the motion and the trial court denied Lamoureux's

request. The trial court instead ruled all three defendants would be tried together and that

Inserra would have a separate jury. This procedure allowed Inserra's statement to police,

which incriminated both Inserra and Kyle, to be introduced against Inserra without

compromising Kyle's right to confront witnesses against him under the Sixth Amendment

to the United States Constitution.




1      To avoid confusion, we will use first names for individuals who share the same
last name.
                                             2
       At the conclusion of the trial, Kyle and Lamoureux were convicted of felony

murder (Pen. Code, § 187, subd. (a))2 and conspiracy to commit robbery (§ 182). Kyle

was additionally found guilty of illegal possession of a firearm (former § 12021, subd.

(a)(1)). The jury also found true special circumstance allegations that the murder was

committed while Lamoureux and Kyle were engaged in the commission of the crimes of

robbery and burglary (§§ 190.2, subd. (a)(17), 211, 459) and that Kyle personally and

intentionally discharged a firearm causing death (former § 12022.53, subd. (d), § 1192.7,

subd. (c)(8)). Lamoureux was sentenced to life without the possibility of parole, and

Kyle was sentenced to a determinate term of three years in prison and an indeterminate

term of life without the possibility of parole. The court imposed restitution fines against

both defendants and a crime prevention fine against Lamoureux. Inserra's jury was not

able to reach a verdict and the court declared a mistrial. Inserra was acquitted in a

subsequent trial.

       On appeal, Lamoureux contends she should not have been tried with Kyle, or at

minimum she should have been provided a separate jury. She also argues there was

insufficient evidence to support her convictions, that the trial court improperly denied her

motion for a new trial, and that the sentence of life without the possibility of parole

constitutes cruel and unusual punishment. Additionally, Lamoureux challenges the

restitution and crime prevention fines imposed against her. We reject Lamoureux's

arguments concerning the sufficiency of the evidence to support the felony murder and

conspiracy convictions and her severance argument, but agree there was insufficient


2      All further statutory references are to the Penal Code unless otherwise noted.
                                               3
evidence to support the jury's finding that she was a major participant in the crime as

required for the special circumstance allegation under section 190.2, subdivisions (a)(17),

(c) and (d). Because we reverse the special circumstance finding, Lamoureux's

arguments concerning cruel and unusual punishment are moot. We agree with

Lamoureux, and the Attorney General concedes, that the court erred in the imposition of

the crime prevention fine. In addition, on remand we direct the trial court to reevaluate

the restitution fee assessed against Lamoureux.

       In his appeal, Miller contends he was deprived of a fair trial by the admission of

incriminating hearsay statements by his codefendants and challenges the exclusion of

certain evidence showing his love and affection towards Bradley. We reject these

contentions.

                  FACTUAL AND PROCEDURAL BACKGROUND

                                             I

                                    The People's Case

       At the time of his murder, Bradley was living in a converted barn adjacent to the

house occupied by his sister, Connie, Connie's daughter Danielle (Kyle's sister),

Danielle's boyfriend and Danielle's young daughter. The property was previously owned

by Bradley and Connie's father, and before their father's death Bradley lived in the house

with their father. After Bradley and Connie's father's death in 2006, Bradley moved into

the converted barn and Connie and her children moved into the house. By the time of the

murder, Kevin and Kurt were living in the barn with Bradley and their friend, Steven

Ackles, who frequently stayed the night and was present the night of the crime.

                                             4
       Until June 2011, Kyle also lived in the barn with his brothers and uncle. Kyle

regularly borrowed money from Connie and Bradley. He also abused prescription

medication, and Connie testified Kyle stole money from her and Bradley in the past.

Less than a month before the crime, Bradley suspected Kyle of stealing from him. As a

result, Kyle left the family property to stay with Lamoureux and Inserra at Inserra's

house.3

       Bradley worked as a custodian for a nearby school district. Kyle knew Bradley

did not have a bank account and that Bradley kept approximately $2,200 in pay he

received at the end of each month in cash in his room in the barn. Kyle was also aware

that Bradley stored antianxiety and pain prescription medications there. Bradley's room

did not lock from the inside, so when he left he would lock the room with a padlock from

the outside. Months before the crime, Kyle told Kurt he wanted to rob Bradley by

waiting for Bradley to arrive home from work on his scooter and attack him with a bat.

Ackles also heard Kyle say he was going to rob his uncle.

       The prosecution's evidence is sparse about Kyle's relationship with Lamoureux

and Inserra. At the time of trial, Lamoureux and Inserra had been dating approximately

five years and living together for a few years. Spencer, who was nine years old and lived

with Inserra part time in June 2011, knew Lamoureux as his father's girlfriend. Spencer




3     The record is not clear whether Kyle left the family home on his own accord after
Bradley accused Kyle of stealing from him, or whether Kyle was asked by Connie and
Bradley to leave.
                                           5
described Kyle as Lamoureux's friend and testified Kyle had been living on their couch in

the two-bedroom home for a month or so at the time of Bradley's death.4

         Around the first of July, Kyle and Lamoureux socialized at the house of a recent

acquaintance, Raymond Amick. Amick's roommate, Anthony Alferez, was there and

testified Kyle and Lamoureux were acting affectionately towards one another and that he

thought Kyle and Lamoureux were a couple.5 A day or two later, Kyle and Lamoureux

returned to Amick's house in the morning. Amick was not home, but Alferez was.

According to Alferez, Kyle asked him if he could stash something there and, in front of

Lamoureux, unwrapped a beach towel to reveal a gun. Lamoureux did not express any

surprise at seeing the gun. Alferez agreed to hide the gun and put it behind the clothes

dryer.

         On the evening of July 5, 2011, a day or two after Kyle and Lamoureux left the

gun at Amick and Alferez's house, Lamoureux called Amick and told him that Kyle and

Inserra were coming to retrieve the gun. Spencer overheard Lamoureux talking to Amick

and asked her if he could go along with his dad and Kyle. Lamoureux told Spencer to

ask his dad. Inserra agreed and sometime after dark Kyle, Inserra and Spencer drove in

Inserra's truck to Amick's house.

         Amick testified that once Kyle and Inserra arrived, he gave the gun to them and

that they stayed at his house only minutes. Spencer recalled being at Amick's property

4     Inserra and Lamoureux shared a bedroom and the other bedroom was occupied by
Spencer.

5      Amick and Alferez both testified under immunity agreements with the district
attorney.
                                           6
for over an hour. Spencer did not go inside Amick's house but remembered watching a

movie that was on inside from the front porch. Alferez testified he was home watching a

movie, but did not interact with Kyle, Inserra or Spencer. Spencer testified that Amick

gave the gun to Kyle and his dad, who let Spencer hold the sawed-off shotgun before

putting the gun in the bed of his truck. Spencer also told police that several nights before

the crime while he was in bed, he heard a noise he thought was someone sawing the

barrel off the gun.6

       After leaving Amick's house, Kyle, Inserra and Spencer returned home to

Lamoureux. Spencer did not see either man bring the gun into the house. Thereafter, and

within hours of Lamoureux's call to Amick to say Kyle and Inserra were coming for the

gun, Inserra drove Kyle to the Capen property in his truck and parked down the street.

That evening, Kevin, Kurt and Ackles were home in the converted barn. Around 2:00

a.m. on July 6, 2011, Ackles went outside. By this time Kevin had gone to bed while

Kurt and Ackles stayed awake playing video games in Kurt's room. While outside,

Ackles heard a loud bang coming from inside the barn.

       Ackles went back inside and asked Kurt what caused the noise. Seconds later

Ackles and Kurt heard another loud noise inside the barn. Ackles also heard someone

yell "Get the hell out." Ackles and Kurt grabbed a hammer and shovel and walked

toward where the noise came from. They saw Kyle emerge from Bradley's room. Kyle

looked at Kurt and Ackles and said, "Shits going to hit the fan. Go back inside and go to



6      Inserra told police the gun belonged to his father, and the gun was registered to
Inserra's father.
                                             7
bed. You never saw me." Kyle was holding a purple bag in one hand and a sawed-off

shotgun in the other.

        After the confrontation with Kyle, Kurt and Ackles went back to Kurt's room.

They did not check on Bradley. Early the next morning, around 6:00 a.m., Danielle and

her boyfriend, Justin Trentacosta, started morning chores and tending to the horses on the

property. Ackles and Kurt eventually came to help. Trentacosta noticed Kurt looked ill

and asked him what was wrong. Kurt told Trentacosta about the events in the early

morning hours. The four then went to check on Bradley and found his door locked. Kurt

broke the padlock with a sledgehammer and opened the door. They found Bradley lying

on his back between his bed and dresser, with his head against the wall. Danielle called

911 and when the first police officer arrived, Bradley was pronounced dead. The coroner

determined the cause of death was a gunshot wound to the head at contact range.

Shotgun pellets were found in Bradley's head and mixed with brain matter around the

body.

        The same morning Bradley's body was discovered, Lamoureux took the murder

weapon back to Amick's house. She and Alferez hid the gun in a lawnmower bag. That

evening, Kyle, Lamoureux and others were hanging out at Inserra's house. Inserra was

not home at the time but Spencer was, and Spencer overheard Kyle on the phone say he

was going to prison. Later that night police arrested Kyle at the house. The following

morning on July 7, 2011, Lamoureux called Amick and asked if Amick could come to

them at Inserra's house and give Inserra a ride to work. Amick agreed. When he arrived,

Lamoureux and Inserra told him about the shooting and that the gun used in the shooting

                                            8
was at Amick's house. When making this disclosure, Lamoureux told Amick that Kyle

"had blown his uncle's head off." Amick also testified that during this exchange Inserra

said he "didn't know [Kyle] was going to do it" and that he was parked down the street.

       Inserra and Lamoureux revealed their actual purpose in asking Amick to come to

the house was to get Amick to drive them back to Amick's house to retrieve the gun.

Amick refused because he thought the police were probably watching them. The three

agreed instead to call Alferez and tell him to get rid of the gun. Alferez testified that he

received a frantic call from Amick, who told him to get the gun out of the house because

it was a murder weapon. Alferez buried the gun with a plastic bag containing shotgun

shells in a creek about a mile from his house. Alferez later led investigators to the creek

where the gun and the shells were retrieved.

       Inserra and Lamoureux were arrested shortly thereafter. When Inserra was

brought in for questioning, he had $1,200 in $100 bills in his possession and two of the

bills were bloodstained. After Inserra was taken into custody, his brother, his brother's

girlfriend and his stepfather went to Inserra's house to collect his possessions. In the

house, they found multiple boxes of ammunition out in the open and the barrel of the

shotgun that was used in the shooting. Inserra's brother testified at trial that they

discovered the ammunition in the bathroom and that he found the shotgun barrel hidden

in the eave of the patio covering.7




7     Spencer also told police he had seen ammunition for the shotgun on the dining
room table and in his dad's bedroom.
                                            9
       In a bowl on top of a kitchen cupboard, they found a hand-drawn map of Bradley's

living area in the modified barn. In addition to the map, written on the paper were the

statements: "hides his shit so you will have to threaten and force him to kick it down"

and "U can just walk right in." Also written on the paper were the quantities of

prescription medication and their dollar value and the amount of cash Bradley "has now

[$2,500]."8 Shortly thereafter, Inserra's brother and stepfather called the police and

turned this evidence over to authorities.

                                             II

                         Proceedings After the Prosecution's Case

       After the prosecution's case-in-chief, Lamoureux brought a motion for acquittal

under section 1118.1, contending insufficient evidence had been presented to support the

conspiracy and murder charges against her. The prosecutor opposed and the trial court

denied the motion. Neither Kyle nor Lamoureux offered any affirmative evidence in

support of their defense and none of the defendants took the stand. The case proceeded

to closing arguments and Lamoureux's attorney argued that the prosecution failed to meet

its burden of proof. He contended Lamoureux was guilty only of being an accessory after

the fact (which she was not charged with) and not a conspirator or accomplice to felony

murder.

       After Kyle and Lamoureux's jury rendered its guilty verdicts, Lamoureux moved

for a new trial under section 1181, subdivision (6). She asserted the jury's verdicts were


8      The writing on the map stated: "$720.00 ←180 Norc, " "[$]720.00 ← 120 perc,"
and "[$]360.00 ← 90 bars." No handwriting evidence was presented to show whose
writing was on the paper.
                                          10
contrary to the law because the evidence was insufficient to support a finding of guilt.

The court denied the motion. After judgment was entered against them, Kyle and

Lamoureux timely appealed.

                                       DISCUSSION

                                              I

        Denial of Lamoureux's Motion To Sever Trial or Provide a Separate Jury

       Lamoureux first argues her convictions must be reversed because the denial of her

pretrial motion to sever deprived her of her right to a fair trial and impartial jury. We

disagree.

                                             A

       Before the trial began Lamoureux brought a motion to be tried separately from

Kyle and Inserra or, alternatively, for a separate jury.9 Without identifying any specific

statement, she argued this relief was required because Kyle and Inserra made statements

to police that were incriminating to themselves and Lamoureux. Since neither

codefendant intended to testify at trial, Lamoureux asserted that the introduction of those

statements by the prosecution would constitute a violation of her constitutional right to

confront and cross-examine witnesses against her. Lamoureux also argued that several of

the prosecution's witnesses would make statements concerning the dangerousness of Kyle

and Inserra, and the introduction of this evidence would cause her irreparable prejudice.




9     Lamoureux also joined an earlier motion by Inserra to sever, which was denied
without prejudice.
                                         11
       In response to Lamoureux's motion, the prosecution set forth testimony it intended

to introduce, including Inserra's statement to Amick on July 7, 2011, that the shotgun at

Amick's house had been used to kill Bradley and other testimony from Amick, Alferez

and Spencer to support its claim that Lamoureux conspired with Kyle and Inserra to rob

Bradley. The district attorney argued none of the testimony it intended to introduce

posed a confrontation clause problem because the statements made were in furtherance of

conspiracy or were not testimonial. The district attorney also argued severance was not

warranted because Lamoureux's moving papers failed to identify any exculpatory

testimony that she could offer in a separate trial that could not be offered in a joint trial.

Finally, the district attorney argued granting Lamoureux's request would have "a

traumatic effect on judicial administration" given the expected length and scope of the

proceeding.

       At oral argument on Lamoureux's motion, her attorney stated only "I believe that

in a separate trial that both of these defendants [Kyle and Inserra] would testify on her

behalf" and submitted on his brief. The trial court denied Lamoureux's motion, finding a

single jury for Kyle and Lamoureux afforded Lamoureux fair process and the amount of

time required to empanel a third jury was not justified. The trial court noted its reliance

on People v. Arceo (2011) 195 Cal.App.4th 556 (Arceo) and concluded the hearsay

statements the prosecution intended to introduce were admissible as statements made in

furtherance of an ongoing conspiracy.




                                              12
                                              B

       A motion to sever is governed by section 1098, which states: "When two or more

defendants are jointly charged with any public offense, whether felony or misdemeanor,

they must be tried jointly, unless the court orders separate trials. In ordering separate

trials, the court in its discretion may order a separate trial as to one or more defendants,

and a joint trial as to the others, or may order any number of the defendants to be tried at

one trial, and any number of the others at different trials, or may order a separate trial for

each defendant; provided, that where two or more persons can be jointly tried, the fact

that separate accusatory pleadings were filed shall not prevent their joint trial."

       By enacting section 1098, the Legislature expressed its clear preference for joint

trials when available. (People v. Cleveland (2004) 32 Cal.4th 704, 725-726.) The trial

court, however, retains discretion to order separate trials. (People v. Morganti (1996) 43

Cal.App.4th 643, 671.) A ruling on a motion for separate trials is reviewed under the

abuse of discretion standard. (Ibid.) The trials of codefendants may be severed " 'in the

face of an incriminating confession, prejudicial association with codefendants, likely

confusion resulting from evidence on multiple counts, conflicting defenses, or the

possibility that at a separate trial a codefendant would give exonerating testimony.' "

(People v. Avila (2006) 38 Cal.4th 491, 574-575 (Avila), quoting People v. Massie (1967)

66 Cal.2d 899, 917.)

       When ruling on a motion to sever, the court should consider: "(1) the cross-

admissibility of the evidence in separate trials; (2) whether some of the charges are likely

to unusually inflame the jury against the defendant; (3) whether a weak case has been

                                              13
joined with a strong case or another weak case so that the total evidence may alter the

outcome of some or all of the charges; and (4) whether one of the charges is a capital

offense, or the joinder of the charges converts the matter into a capital case." (People v.

Mendoza (2000) 24 Cal.4th 130, 161.) We determine whether a court has abused its

discretion by looking at the facts at the time the motion was heard. (People v. Pinholster

(1992) 1 Cal.4th 865, 932.) "A ruling that was correct when made will stand unless

joinder cause[d] such ' " 'gross unfairness' " ' as to violate defendant's due process rights."

(People v. Carasi (2008) 44 Cal.4th 1263, 1296.)

                                              C

       Lamoureux argues a separate trial was necessary because the prosecution's case

against Kyle was much stronger than its case against her. We reject this contention. As

the Attorney General points out, Lamoureux's liability was premised on theories of

conspiracy and aiding and abetting. Thus, the defendants in this case were charged with

common crimes arising from common events presenting "a ' "classic case" ' for a joint

trial." (People v. Souza (2012) 54 Cal.4th 90, 110.) Lamoureux does not set forth what

evidence, if any, was presented to the jury that would have been excluded in a separate

trial or from a separate jury. Lamoureux's case was not in the same posture as Inserra's

case, which warranted separate juries so that inculpatory evidence admissible against

Inserra (but not Kyle) would not be heard by Kyle's jury. Lamoureux has not shown the

trial court abused its discretion by not allowing an exception in her case to the statutory

preference for joint trials.



                                              14
       Lamoureux relies on People v. Chambers (1964) 231 Cal.App.2d 23 to assert she

was unfairly prejudiced by a much stronger case against Kyle. We do not agree. Unlike

Kyle, the appellant's codefendant in Chambers was charged with "separate and unrelated

offenses" and the joint trial resulted in the "admission . . . of voluminous evidence of

unrelated acts of brutality by [the codefendant], admissible only because she was on trial

for offenses unrelated to that charged against [the appellant] . . . ." (Id. at pp. 27, 28,

italics added.) Further, the trial in Chambers did not include any "evidence of joint or

conspiratorial action" by the two defendants. (Id. at p. 26.) Lamoureux was not in an

analogous position. Unlike the unrelated charges against the appellant's codefendant in

Chambers, the charges against Lamoureux were the same as those charged against

Kyle.10

       We also reject Lamoureux's contention that the case against Inserra was stronger

than the case against her, proving Lamoureux suffered undue prejudice by sharing a jury

with Kyle. Whether there was more or less evidence against Inserra is not determinative

of whether the trial court abused its discretion by not providing Lamoureux with a

separate trial or jury. The evidence that was presented against Inserra, and not against

Lamoureux and Kyle, is not before the court. Moreover, the outcome of Inserra's case



10     Lamoureux also cites People v. Coffman and Marlow (2004) 34 Cal.4th 1 and
People v. Keenan (1988) 46 Cal.3d 478 in support of her argument that the prosecution's
case against her was so weak that trying the case with Kyle was unduly prejudicial. In
these cases, the reviewing courts affirmed the trial courts' denials of severance motions
under circumstances involving defendants who were substantially involved in the alleged
crimes with the codefendants. These cases do not show the trial court abused its
discretion here. The fact that Lamoureux's involvement was less than Kyle's did not
alone compel the trial to court grant her severance motion.
                                             15
does not show what would have occurred had Lamoureux's trial been severed from

Kyle's. Similarly, Inserra's acquittal in a subsequent trial was not before the trial court

and thus is not relevant to this appeal.11

       Finally, Lamoureux argues that Inserra's testimony would have exonerated her in a

separate trial. In support of this contention, she points to Inserra's recorded interview

with police on July 14, 2011, during which he stated "I don't think [Lamoureux]

[¶] . . . [¶] really knew anything about [the planned robbery]." Because the interview

transcript also contained admissions by Inserra implicating Kyle, it was excluded from

Lamoureux and Kyle's jury to avoid violating Kyle's constitutional right to confront the

witnesses against him. Lamoureux fails to address how the hearsay statement would

have been admitted in a separate trial or before a separate jury. Lamoureux's trial

attorney did not advance this testimony in either his severance motion or at the hearing

on the motion. Rather, he stated generally he "believe[d] that in a separate trial that both

[Kyle and Inserra] would testify on [Lamoureux's] behalf" and provided no explanation

as to how this would be accomplished. Nothing in the record suggests that a separate

trial or jury would have resulted in Inserra deciding to inculpate himself so as to testify in

a manner exculpatory to Lamoureux, and/or that the prosecution would have granted

immunity to Inserra for purposes of Lamoureux's separate trial or jury. Absent this, the

cited item of evidence does not show the court abused its discretion in denying severance


11      We grant Lamoureux's request for judicial notice of the facts that Inserra's jury
was unable to reach a verdict and the trial court's declaration of a mistrial, as well as her
request for judicial notice of the minute order in Inserra's subsequent trial acquitting him
of all charges. As discussed, this information does not alter the outcome of Lamoureux's
appeal.
                                             16
or that Lamoureux's fair trial rights were violated. (See People v. Cummings (1993) 4

Cal.4th 1233, 1286 & fn. 26.)

       Lamoureux has not shown the trial court abused its discretion by denying her

motion for a separate trial or a separate jury. For the same reasons, we also reject

Lamoureux's contention that the joint trial was grossly unfair, depriving her of a fair trial

or due process of law.

                                              II

  Sufficiency of the Evidence To Support Lamoureux's Felony Murder and Conspiracy
                                     Convictions

       Lamoureux contends the evidence was insufficient to support the jury's finding

that she was guilty of the charged offenses. Because of that insufficiency, she argues that

the trial court erred by denying her motion for judgment of acquittal at the close of the

prosecution's case and that her convictions should be reversed.

                                              A

       In reviewing the sufficiency of the evidence to support a jury's verdict finding a

defendant guilty of a criminal offense, we apply the substantial evidence standard of

review. (People v. Johnson (1980) 26 Cal.3d 557, 575-579.) "Under this standard, the

court 'must review the whole record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence—that is, evidence which is

reasonable, credible, and of solid value—such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial

evidence test is on the whole record of evidence presented to the trier of fact, rather than

on ' "isolated bits of evidence." ' " (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
                                              17
       "The testimony of one witness, if believed, may be sufficient to prove any fact.

(Evid. Code, § 411.)" (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508.)

"Further, 'the appellate court presumes in support of the judgment the existence of every

fact the trier could reasonably deduce from the evidence.' [Citation.] This standard

applies whether direct or circumstantial evidence is involved. 'Although it is the jury's

duty to acquit a defendant if it finds the circumstantial evidence susceptible of 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. [Citation.] " '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.' " '

[Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 139; see People v. Mobley (1999) 72

Cal.App.4th 761, 788-789.)

       "Whether a particular inference can be drawn from the evidence is question of

law." (People v. Austin (1994) 23 Cal.App.4th 1596, 1604.) " 'An inference is a

deduction of fact that may logically and reasonably be drawn from another fact or group

of facts found or otherwise established in the action.' (Evid. Code, § 600, subd. (b).)

However, '[a] reasonable inference . . . "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 evidence rather than . . . a mere

speculation as to probabilities without evidence." [Citation.]' " (People v. Davis (2013)

57 Cal.4th 353, 360.)

                                             18
       Section 1118.1 provides that "[i]n a case tried before a jury, the court on motion of

the defendant or on its own motion, at the close of the evidence on either side and before

the case is submitted to the jury for decision, shall order the entry of a judgment of

acquittal of one or more of the offenses charged in the accusatory pleading if the

evidence then before the court is insufficient to sustain a conviction of such offense or

offenses on appeal." " 'The test applied by the trial court in ruling on a motion for

acquittal is the same test applied by the appellate court in reviewing a conviction for

sufficiency of the evidence, namely, to determine whether from the evidence then in the

record, including reasonable inferences to be drawn therefrom, there is substantial

evidence of the existence of every element of the offense charged.' " (People v. Jones

(2013) 57 Cal.4th 899, 964.)

                                             B

       Lamoureux asserts there was insufficient evidence to support her convictions for

felony murder and conspiracy to commit robbery because the prosecutor did not present

any evidence of her knowledge of Kyle's plan to rob Bradley.

       Section 182 prohibits a conspiracy by two or more people to "commit any crime."

(Id., subd. (a)(1).) " 'A conviction of conspiracy requires proof that the defendant and

another person had the specific intent to agree or conspire to commit an offense, as well

as the specific intent to commit the elements of that offense, together with proof of the

commission of an overt act "by one or more of the parties to such agreement" in

furtherance of the conspiracy.' " (People v. Johnson (2013) 57 Cal.4th 250, 257.)

" ' "[A]n overt act is an outward act done in pursuance of the crime and in manifestation

                                             19
of an intent or design, looking toward the accomplishment of the crime." [Citations.]' "

(Id. at p. 259.) "Once one of the conspirators has performed an overt act in furtherance of

the agreement, 'the association becomes an active force, it is the agreement, not the overt

act, which is punishable. Hence the overt act need not amount to a criminal attempt and

it need not be criminal in itself.' " (Ibid.)

       A person aids and abets the commission of a crime when he or she acts with

knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of

encouraging or facilitating the commission of the crime, and his or her act or advice in

some manner aids, promotes, encourages or instigates the commission of the crime.

(People v. Beeman (1984) 35 Cal.3d 547, 560-561.) "Intent is rarely susceptible of direct

proof and usually must be inferred from the facts and circumstances surrounding the

offense." (People v. Pre (2004) 117 Cal.App.4th 413, 420.) Robbery is the "taking of

personal property in the possession of another, from his person or immediate presence,

and against his will, accomplished by means of force or fear." (§ 211.)

       Although there was no direct evidence concerning Lamoureux's knowledge of and

agreement with the plan to rob Bradley, there was sufficient circumstantial evidence to

support the jury's finding that she knowingly and willingly participated in the robbery

plan. The evidence showed that she appeared to be romantically linked with Kyle; a day

or two before the robbery she accompanied Kyle to Amick's house and (expressing no

surprise) witnessed Kyle's revelation of the gun and request that the gun be hidden; on the

night of the crime she called Amick to tell him that Kyle and Inserra were coming to get

the gun; upon their retrieval of the gun Kyle and Inserra rejoined her at their home; the

                                                20
two men then left the home and Kyle committed the crime; the morning after the crime

she brought the gun to Amick's residence and hid it; the following morning she

summoned Amick to her home on a pretext; and she then told Amick that Kyle had shot

the victim with the gun and discussed with Amick how to get rid of the gun. The

evidence showed that Lamoureux was a participant in conversations concerning Kyle's

and Inserra's activities. Before the crime she apprised Amick that the men were coming

to get the gun, and after the crime she apprised Amick that Kyle had used the gun to

commit the crime. Further, the evidence showed that there was physical evidence

associated with the crime at the residence that Lamoureux shared with the men, including

a map of the victim's residence and the sawed-off barrel of the gun used in the crime.

       Considering all this evidence together, the jury could reasonably conclude that

Lamoureux knew about and was willingly assisting Kyle in the plan to rob Bradley. The

jury could deduce that she had a close personal connection with Kyle; she knew Kyle had

a criminal intent when she witnessed his suspicious act of hiding a lethal weapon at

someone else's house; and she shared Kyle's criminal intent given the combined

circumstances of her lack of surprise at Kyle's suspect behavior of hiding the gun, her

facilitation of Kyle's use of the weapon by calling Amick to tell him Kyle was coming to

get the gun and her attempts to assist Kyle after the crime by taking steps to ensure the

disposal of the gun. The jury could further infer that she was engaging in ongoing

discussions with Kyle about his activities (including the robbery plan) because otherwise

she would not have known to call Amick about Kyle's impending gun retrieval and the

postcrime need to get rid of the weapon. Further, although there was no direct evidence

                                             21
that she knew about the map or gun barrel found at her residence, the jury could conclude

that she knowingly and willingly participated in the plan to rob the victim based on the

totality of the circumstances showing that she shared the small residence with the two

men, she had a close personal connection with them, her conduct and communications

evinced an awareness of their activities, and, most significantly, both before and after the

crime she engaged in significant, ongoing behavior tied to the robbery weapon. (See

People v. Campbell (1994) 25 Cal.App.4th 402, 409 [" '[A]mong the factors which may

be considered in making the determination of aiding and abetting are: presence at the

scene of the crime, companionship, and conduct before and after the offense.' "].)

       Citing People v. Em (2009) 171 Cal.App.4th 964, Lamoureux argues that because

she was not present at the scene of the crime and did not have a history of violence, the

jury's conclusion that she was a conspirator is not supported by evidence. To be

convicted of the conspiracy, however, it was not necessary that Lamoureux be present

during the commission of the crime. Rather, the prosecution was required to show she

agreed with her conspirators to rob Bradley, she intended Kyle or Inserra would "commit

the robbery, and that one member of the conspiracy committed an overt act to accomplish

the robbery." (Id. at p. 970, citing People v. Williams (2008) 161 Cal.App.4th 705, 710.)

The evidence was sufficient to support these findings.

       Lamoureux also contends there is a "gap in proof between [her] moving [Inserra]'s

shotgun to Amick's home and facilitating its retrieval the next day when Amick wanted

the gun removed because he declined to purchase it, and her participation in a robbery

and burglary." She argues that gap could only be filled by impermissible speculation and

                                             22
that her bringing the gun to Amick's house before the crime hindered, not helped, the plan

to rob Bradley. We disagree.

       The jury was not required to credit the alternative theory Lamoureux advanced for

the movement of the gun to and from Amick's house, which was that Amick was

considering purchasing the gun. There was conflicting testimony concerning Amick's

interest in purchasing the gun. Amick did testify he was potentially interested in

purchasing the weapon. However, Amick was not aware that Kyle and Lamoureux were

going to bring the gun to his house, and he was not home when they arrived with the gun.

Further, Amick testified he had not discussed buying a gun with any of the defendants

before the gun arrived at his house. Alferez, Amick's roommate, testified that when Kyle

and Lamoureux first brought the gun to the house, neither mentioned selling the gun to

Amick. Rather, Kyle asked Alferez if they could use the house as a hiding place for the

gun. Finally, Amick testified that when Lamoureux called him to say Kyle and Inserra

were coming for the gun, he had not told any of the defendants he did not want to

purchase it.12

       Given the inconsistencies in Amick's testimony concerning his interest in buying

the gun, it was reasonable for the jury to reject this alternative explanation for

Lamoureux's movement of the murder weapon and find Lamoureux facilitated the

retrieval of the gun on her own accord (or at the request of Kyle or Inserra). In sum, we

conclude there was sufficient evidence of Lamoureux's knowledge of and participation in



12     Amick is also a convicted felon and could not legally possess or purchase a
firearm at the time of these events.
                                           23
the crime to support her convictions for felony murder and conspiracy to commit robbery.

Although the jury could have reached a contrary conclusion concerning Lamoureux's

knowledge of and participation in the robbery plan, it is not our role to upset a jury

verdict that is supported by the evidence and reasonable inferences drawn therefrom.

(People v. Shamblin (2015) 236 Cal.App.4th 1, 9-10 [appellate court must accept logical

inferences that the jury might have drawn from the evidence even if evidence could

reasonably be reconciled with finding of innocence or lesser degree of crime].)

                                              III

        Sufficiency of the Evidence Supporting the Special Circumstance Finding

       Lamoureux next contends the special circumstance conviction must be reversed

because insufficient evidence supported the jury's findings that she had intent to kill or

acted with reckless indifference to human life while acting as a major participant in the

underlying felony. As with her claim of insufficient evidence with respect to the felony

murder and conspiracy charges, Lamoureux argues that because insufficient evidence

supported the jury's finding, the court erred by denying her motion for judgment of

acquittal at the close of the prosecution's case.

                                              A

       "We review a challenge to the sufficiency of the evidence to support a special

circumstance finding as we review the sufficiency of the evidence to support a

conviction." (People v. Cole (2004) 33 Cal.4th 1158, 1229.) "In reviewing a criminal

conviction challenged as lacking evidentiary support, 'the court must review the whole

record in the light most favorable to the judgment below to determine whether it discloses

                                              24
substantial evidence—that is, evidence which is reasonable, credible, and of solid

value—such that a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt.' " (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) In addition to

viewing the evidence in the light most favorable to the judgment, we also presume in

favor of the judgment the existence of every fact the trier of fact could reasonably deduce

from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

       " 'All murder . . . which is committed in the perpetration of, or attempt to

perpetrate [certain enumerated felonies including robbery and burglary] . . . is murder of

the first degree.' ( . . . § 189.) The mental state required is simply the specific intent to

commit the underlying felony [citation], since only those felonies that are inherently

dangerous to life or pose a significant prospect of violence are enumerated in the statute.

[Citations.] 'Once a person has embarked upon a course of conduct for one of the

enumerated felonious purposes, he comes directly within a clear legislative warning—if a

death results from his commission of that felony it will be first degree murder, regardless

of the circumstances.' " (People v. Cavitt (2004) 33 Cal.4th 187, 197 (Cavitt).)

       "The purpose of the felony-murder rule is to deter those who commit the

enumerated felonies from killing by holding them strictly responsible for any killing

committed by a cofelon, whether intentional, negligent, or accidental, during the

perpetration or attempted perpetration of the felony. [Citation.] 'The Legislature has said

in effect that this deterrent purpose outweighs the normal legislative policy of examining

the individual state of mind of each person causing an unlawful killing to determine

whether the killing was with or without malice, deliberate or accidental, and calibrating

                                              25
our treatment of the person accordingly. Once a person perpetrates or attempts to

perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is

no longer entitled to such fine judicial calibration, but will be deemed guilty of first

degree murder for any homicide committed in the course thereof.' " (Cavitt, supra, 33

Cal.4th at p. 197.)

       While the Eighth Amendment to the United States Constitution does not prohibit

the death penalty, "it does require that states offer guidance to sentencing bodies tasked

with differentiating those for whom death is appropriate from those for whom it is not."

(People v. Banks (2015) 61 Cal.4th 788, 797 (Banks), citing Gregg v. Georgia (1976) 428

U.S. 153, 187-189; People v. Crittenden (1994) 9 Cal.4th 83, 154.) In California this

guidance is provided through a two-step process codified by sections 190.2 and 190.3.

First, the defendant's conduct must be among the crimes included in "a list of special

circumstances . . . deemed sufficiently reprehensible to warrant possible punishment by

death. (§ 190.2; People v. Bacigalupo (1993) 6 Cal.4th 457, 467-468.) If a sentencer

finds one or more special circumstances true, the defendant becomes death eligible and

must be sentenced to either death or life without the possibility of parole. (§ 190.2, subd.

(a).) Second, the sentencer must consider potential statutory aggravating factors and

weigh them against any mitigating factors to determine whether death or life

imprisonment without parole is the appropriate punishment." (Banks, at p. 797, citing

§ 190.3.)

       Among the special circumstances enumerated in section 190.2 are murders

"committed while the defendant was engaged in, or was an accomplice in, the

                                              26
commission of" a robbery or burglary. (§ 190.2, subd. (a)(17)(A), (G).) Section 190.2,

however, limits the imposition of both the death penalty and, as relevant here, a sentence

of life without the possibility of parole, when the defendant is an accomplice to the felony

and not the actual killer. In this circumstance the prosecution is required to " 'show that

the [defendant] had intent to kill or acted with reckless indifference to human life while

acting as a major participant in the underlying felony. (§ 190.2, subds. (c), (d).)' "

(People v. Hodgson (2003) 111 Cal.App.4th 566, 578 (Hodgson).)

       Before the Supreme Court's recent decision in Banks, little guidance existed on the

contours of the limitation set forth in subdivisions (c) and (d) of section 190.2. Banks,

however, provides clear direction on this limitation and leads necessarily to the reversal

of the special circumstance finding against Lamoureux in this case.13

                                              B

       In Banks, the California Supreme Court reversed the application of the special

circumstance finding against Lovie Troy Matthews, who acted as a getaway driver for

three fellow gang members whose attempted robbery of a medical marijuana dispensary

in Los Angeles resulted in the shooting death of the dispensary's security guard. (Banks,

supra, 61 Cal.4th at p. 794.) The dispensary had significant security measures in place.

The building had a metal security door providing access from the sidewalk and behind

that door sat a security guard who verified patients' identification and physician's medical




13    Because Banks was decided during the pendency of this appeal, we requested
supplemental briefing from the parties concerning the impact of the decision.
                                           27
marijuana recommendation before escorting the patient through another locked door. (Id.

at p. 795.) Surveillance cameras monitored this activity. (Ibid.)

       Matthews waited in a car blocks away while his three armed confederates entered

the first door and were escorted by the security guard past the second door where they

"began tying up employees and searching the premises." (Banks, supra, 61 Cal.4th at

p. 795.) Shots were fired and the three men fled. A witness outside the dispensary saw

the security guard pushing the front door closed from the outside when one of the robbers

reached around from the inside and shot the guard, who fell to the ground. The shooter

exited the door and shot the guard again. (Ibid.) Global positioning system data on

Matthews showed the getaway car on the block where the dispensary was located just

before the crime, then at a location three blocks away for 45 minutes while the crime was

occurring, and finally moving toward the dispensary and making a series of stops that

aligned with the time Matthews picked up two of the three perpetrators in his car. (Id. at

p. 796.)

       In finding the special circumstance provision did not apply to the evidence

presented against Matthews, the court emphasized that "Matthews was absent from the

scene, sitting in a car and waiting" and that "[t]here was no evidence [Matthews] saw or

heard the shooting, that he could have seen or heard the shooting, or that he had any

immediate role in instigating it or could have prevented it." (Banks, supra, 61 Cal.4th at

p. 805.) In reaching its conclusion, the Banks court analyzed the two United States

Supreme Court cases, Tison v. Arizona (1987) 481 U.S. 137 (Tison) and Enmund v.

Florida (1982) 458 U.S. 782 (Enmund) that precipitated the adoption of section 190.2,

                                            28
subdivision (d) by voter initiative in 1990. Although these federal cases concern the

Eighth Amendment's limits on the imposition of the death penalty, the standards

articulated in Banks "apply equally to cases like this one involving statutory eligibility

under section 190.2[, subdivision ](d) for life imprisonment without parole."14 (Banks,

supra, 61 Cal.4th at p. 804.)

       In determining whether the death penalty (and by statutory extension in California,

a sentence of life without the possibility of parole) is properly imposed, Tison and

Enmund require a sentencing body to "examine the defendant's personal role in the

crimes leading to the victim's death and weigh the defendant's individual responsibility

for the loss of life, not just his or her vicarious responsibility for the underlying crime."

(Banks, supra, 61 Cal.4th at p. 801.) With respect to whether the defendant has the

requisite intent, section 190.2, subdivision (d) looks "to whether a defendant has

' "knowingly engage[ed] in criminal activities known to carry a grave risk of death." '

[Citation.] The defendant must be aware of and willingly involved in the violent manner

in which the particular offense is committed, demonstrating reckless indifference to the

significant risk of death his or her actions create." (Banks, at p. 801.) Further, the

defendant must " 'subjectively appreciate[] that [his] acts were likely to result in the

taking of innocent life.' " (Id. at p. 802, quoting Tison, supra, 481 U.S. at p. 152.)

       Banks holds that Tison and Enmund represent points on a continuum. Somewhere

between "conduct less egregious than the [defendants in Tison] but more culpable than



14    Like Lamoureux, Matthews was sentenced to life without the possibility of parole.
(Banks, supra, 61 Cal.4th at p. 794.)
                                       29
[the defendant in Enmund] lies the constitutional minimum for death eligibility." (Banks,

supra, 61 Cal.4th at p. 802.) In Tison, the defendants were two brothers who planned and

carried out the escape of two convicted murderers from prison, one of whom, their father,

was "serving a life sentence for killing a guard in the course of a previous escape."

(Banks, at p. 802.) A third brother was killed during the events of the escape. The three

brothers brought a "cache of weapons to prison, arming both murderers," and held guards

and visitors at gunpoint. (Ibid.) After the successful jailbreak, the five men flagged

down an innocent family on the highway to steal their car. The men "robbed the family

and held them at gunpoint while the two murderers deliberated whether the family should

live or die, then [the defendants] stood by while" the escaped convicts shot all four

members of the innocent family. (Ibid., citing Tison, supra, 481 U.S. at p. 151.)

       In contrast, the defendants in Enmund and Banks were getaway drivers in armed

robberies who waited for their accomplices in nearby cars and were not present during

the commission of the robberies that resulted in murder.15 In distinguishing the Tison

brothers from the defendant in Enmund, the United States "Supreme Court said: 'Far

from merely sitting in a car away from the actual scene of the murders acting as the

getaway driver to a robbery, [the Tison brothers were] actively involved in every element

of the kidnapping-robbery and [were] physically present during the entire sequence of




15     Like Matthews, Enmund waited in the car at the side of the road, about 200 yards
from the home of the elderly couple his two accomplices intended to rob. The robbery
resulted in a gunfight and the elderly victims were killed. (Enmund, supra, 458 U.S. at
p. 784.) Enmund was convicted as an accomplice to the felony murders and sentenced to
death. (Id. at p. 785.)
                                             30
criminal activity culminating in the murder of the . . . family and subsequent flight.' "

(Banks, supra, 61 Cal.4th at p. 802.)

       The Banks opinion articulates several factors that play a role in determining

whether section 190.2, subdivision (d) applies: "What role did the defendant have in

planning the criminal enterprise that led to one or more deaths? What role did the

defendant have in supplying or using lethal weapons? What awareness did the defendant

have of particular dangers posed by the nature of the crime, weapons used, or past

experience or conduct of the other participants? Was the defendant present at the scene

of the killing, in a position to facilitate or prevent the actual murder, and did his or her

own actions or inaction play a particular role in the death? What did the defendant do

after lethal force was used? No one of these considerations is necessary, nor is any one

of them necessarily sufficient. All may be weighed in determining the ultimate question,

whether the defendant's participation 'in criminal activities known to carry a grave risk of

death' [citation] was sufficiently significant to be considered 'major' [citations]." (Banks,

supra, 61 Cal.4th at p. 803.)

       The court also rejected the Attorney General's assertion that " 'participation in

planning with the intent of facilitating the commission of the crime, or participating in

conduct integral to or for the purpose of facilitating the commission of the crime,

constitutes major participation[,]' " noting such a rule would "sweep in essentially every

felony murderer" in violation of the requirement that "culpability be considered

individually." (Banks, supra, 61 Cal.4th at p. 803.) As discussed herein, there was

sufficient evidence of Lamoureux's knowledge and involvement in the plan to rob

                                              31
Bradley to support the jury's finding that Lamoureux conspired to rob and aided and

abetted the robbery of Bradley. As Banks makes clear, however, this does not lead

inevitably to the conclusion that the evidence was also sufficient to support the special

circumstance finding.

                                             C

       Application of the factors set forth in Banks shows that there was not sufficient

evidence to support the jury's findings that Lamoureux acted with reckless indifference to

human life or that she was a major participant in the crime. Most importantly, there was

no evidence that Lamoureux was involved in the actual execution of the robbery. Indeed,

it was not disputed that she remained at home during the commission of the crime.

Lamoureux, therefore, was not "in a position to facilitate or prevent the actual murder"

(Banks, supra, 61 Cal.4th at p. 803) and "had no opportunity to dissuade the actual killer,

nor [provide] aid to the victim[], and thus [had] no opportunity to prevent the loss of

life." (Id. at p. 803, fn. 5.) There was also no evidence that Kyle had committed violent

acts in the past to put Lamoureux on notice of a particular risk of death that the armed

robbery posed.

       On the continuum described in Banks, Lamoureux's conduct was not "more

culpable than Earl Enmund's" and, therefore, not above the "constitutional minimum"

required for application of the special circumstance provision. (Banks, supra, 61 Cal.4th

at p. 802.) The Supreme Court's reversal of the special circumstance finding in Banks

involved evidence of participation by Matthews in the crime that was at best similar, and

more likely greater, than Lamoureux's participation in the robbery here. For instance,

                                             32
Matthews was "the one that gets everyone to the [robbery's] location, waits around, and

his job was to get everyone to safety afterwards." (Id. at p. 806.) Lamoureux, in contrast,

waited at home while the crime was committed, and had no ability to influence the events

that transpired during the commission of the crime.16

       Appellate cases predating Banks that address the application of the special

circumstance provision to accomplices who did not pull the trigger also support our

conclusion that Lamoureux was not a "major participant" in the crime. In all of the cases

cited by the parties, there was evidence that the defendants were present at the scene of

the robbery and were in some way physical participants in the commission of the

robberies that ultimately resulted in the death of the victim. (See People v. Lopez (2011)

198 Cal.App.4th 1106, 1114, 1115-1118 [accomplice lured victim into alley to "jack"

him, knew the shooter had a gun and was with him when he picked it up, then waited

around the corner while the robbery took place]; Hodgson, supra, 111 Cal.App.4th at

pp. 576-577 [defendant was present while the direct killer shot the carjacking victim

twice through the window of her car immediately after she drove into her underground

parking garage; evidence showed defendant yelled to the killer that the electric gate to the



16      As in Banks, the Attorney General asserts that because Lamoureux knew Kyle and
Inserra were armed, she possessed a reckless indifference to human life. Banks, however,
rejects the notion that the defendant's knowledge that his accomplices are armed, in and
of itself, establishes a reckless indifference to human life. (Banks, supra, 61 Cal.4th at
p. 809.) Further, despite the Attorney General's assertion to the contrary, the evidence of
Lamoureux's knowledge that Kyle intended to use force to steal Bradley's money and
medication was no greater than that presented in Banks, which involved a plan to rob a
marijuana dispensary with significant security measures in place, including a metal
security door and an armed security guard. (Id. at p. 795.) Certainly these measures
showed that Matthews knew his confederates might use force to rob the dispensary.
                                               33
garage was closing and held the gate open so the killer could escape]; People v. Proby

(1998) 60 Cal.App.4th 922, 929 ["[D]efendant and [accomplice] were both armed

robbers actively participating in the execution of the . . . robbery" and defendant admitted

to police he saw the " 'pus' oozing out of [the victim's] head but made no attempt to assist

or determine if the victim was still alive. Instead, defendant and [accomplice] went to the

safe, took the money and left."]; People v. Mora (1995) 39 Cal.App.4th 607, 617

[defendant helped plan a nighttime armed invasion, gave his accomplice a rifle, and

personally carried the loot, leaving one victim to die and threatening another]; People v.

Bustos (1994) 23 Cal.App.4th 1747, 1754 [defendant was involved in planning the

robbery, knew another codefendant had a knife, went into the restroom and struggled

with the victim who was stabbed, and "fled together with his accomplices and the robbery

loot, leaving the victim to die"].)

       Given this landscape, we conclude Lamoureux was not eligible for the imposition

of a life sentence without the possibility of parole under section 190.2. Retrial of this

allegation is barred and on remand the trial court is directed to resentence Lamoureux on

the remaining convictions.17

                                             IV

                               Denial of Motion for New Trial

       Lamoureux next contends the trial court erred by denying her motion for a new

trial under section 1181. She argues the court failed to independently weigh the evidence


17     In light of this decision, Lamoureux's claim that imposition of the sentence of life
without the possibility of parole constituted cruel and unusual punishment under the
federal Eighth Amendment is moot.
                                             34
to reach its own conclusion and, even if the court applied the correct standard, it abused

its discretion by denying her motion.

                                              A

       The court may grant a motion for new trial when the verdict or finding is contrary

to law or evidence. (§ 1181, subd. (6).) "The court extends no evidentiary deference in

ruling on a section 1181[, subdivision ](6) motion for new trial. Instead, it independently

examines all the evidence to determine whether it is sufficient to prove each required

element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' "

(Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) If the court is not convinced the

charges have been proven beyond a reasonable doubt, the court may rule the jury's

verdict is contrary to the evidence and grant the motion for a new trial. (Ibid.)

       The trial court has broad discretion when ruling on a motion for a new trial. The

reviewing court will not disturb the trial court's ruling " 'absent a manifest and

unmistakable abuse of that discretion.' " (People v. Lewis (2001) 26 Cal.4th 334, 364,

quoting People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.) We conclude the trial

court did not apply the wrong standard to Lamoureux's motion and its denial of the

motion, with respect to her convictions for felony murder and conspiracy to commit

robbery, did not constitute an abuse of discretion.

                                              B

       In her motion for a new trial, Lamoureux argued there was insufficient evidence as

a matter of law to sustain the jury's verdict. The prosecution opposed the motion and at

the hearing the parties submitted on their briefs. The court then ruled, stating: "The

                                             35
jury's verdict is rationally based on the evidence. There's no reason to usurp the decision

made by the jury. The evidence established that there was clear preparation in this

process; that Ms. Lamoureux knew of [Kyle]'s intent as to the decedent in this event.

There is contemporaneous conduct at the time of the event to show her responsibility, and

then there is sufficient conduct afterwards that would be . . . consistent with the

preplanning stages of the event. [¶] So, as far as I'm concerned, the judgment of the jury

is appropriate, and the motion for new trial is denied."

       Lamoureux now asserts the court's statements indicate it "believed it had to

determine whether sufficient evidence supported the verdicts." We disagree. The trial

court is presumed to know and apply the correct law in the exercise of its duties. (People

v. Nance (1991) 1 Cal.App.4th 1453, 1456.) In this case the correct standard was set

forth in Lamoureux's motion and the prosecution's opposition, which the court stated it

had reviewed and considered. The trial court's comments show only that the court agreed

with the jury's findings, not that it applied the incorrect standard in ruling on the motion.

(See People v. Davis (1995) 10 Cal.4th 463, 524 [Trial court's statement that it felt

" 'there was sufficient evidence to support the verdicts' " did not demonstrate the court

applied an incorrect standard to appellant's motion under § 1181, subd. (6).].)

       We also reject Lamoureux's alternative assertion that, even if the court applied the

correct standard, the trial court's denial of her motion constituted an abuse of discretion.

As discussed in section II with respect to Lamoureux's convictions for felony murder and

conspiracy to commit robbery, sufficient evidence supported the jury's guilty verdict.

The court's denial of the motion was not, therefore, an abuse of discretion.

                                              36
                                              V

                             Fees Imposed Against Lamoureux

       Lamoureux challenges the two fines assessed against her: A $560 restitution fine

under section 1202.4, subdivision (b) and a $52.60 crime prevention fine under section

1202.5. The Attorney General concedes the $52.60 crime prevention fee is inapplicable

and should be stricken. Section 1202.5 applies only if the defendant is convicted of one

or more of certain enumerated offenses, none of which were charged against Lamoureux.

On remand, the court is directed to modify the abstract of judgment to strike the $52.60

imposed under section 1202.5.

       Section 1202.4, subdivision (b) states "[i]n every case where a person is convicted

of a crime, the court shall impose a separate and additional restitution fine . . . . [¶] (1)

The restitution fine shall be set at the discretion of the court and commensurate with the

seriousness of the offense. If the person is convicted of a felony, the fine shall not be less

than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty

dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on

January 1, 2014, and not more than ten thousand dollars ($10,000) . . . . [¶] (2) In setting

a felony restitution fine, the court may determine the amount of the fine as the product of

the minimum fine pursuant to paragraph (1) multiplied by the number of years of

imprisonment the defendant is ordered to serve, multiplied by the number of felony

counts of which the defendant is convicted."

       Prior to an amendment that became effective on January 1, 2012, the minimum

restitution fine was $200. (§ 1202.4, as amended by Stats. 2011, ch. 358, § 1.)

                                              37
Lamoureux asserts the trial court erroneously imposed the minimum $280 fine that was

in effect at the time of sentencing (multiplied by two, the number of convicted offenses),

rather than the minimum fine applicable in this case. Based on this inference, Lamoureux

argues the court applied the statute in a constitutionally void ex post facto manner. The

Attorney General responds that the fine was permissible because $200 is only a

minimum, and there is no indication in the record that the trial court intended to impose

only the minimum fine.

       "A trial court is required to use 'a rational method' in computing restitution."

(People v. Harvest (2000) 84 Cal.App.4th 641, 653.) The record is silent as to the

rationale the trial court used to set the fine. The fine, however, is conspicuously equal to

the inapplicable minimum fine in effect at the time of sentencing multiplied by the

number of Lamoureux's convictions. On remand the trial court is directed to modify the

restitution fine in accordance with the applicable statutory minimum if appropriate, but

the court is not precluded from setting the fine at the greater amount previously imposed

so long as it does so using a rational method of computation.

                                             VI

     Admission of Extrajudicial Statements of Lamoureux and Inserra Against Kyle

       Kyle's first contention on appeal is that the trial court erred by allowing Amick to

testify (1) that Lamoureux told Amick "Kyle had blown his uncle's head off" and (2) that

Inserra told Amick "I didn't know [Kyle] was going to do it. I parked down the street."

Kyle contends the trial court admitted these statements in "flagrant violation of the rule



                                             38
promulgated in People v. Aranda (1965) 63 Cal.2d. 518" (Aranda) and that even if the

statements were not precluded by Aranda, they were inadmissible hearsay.

                                             A

       Kyle's arguments concern Amick's trial testimony about the conversation he had

with Lamoureux and Inserra when he arrived at their house the morning after Kyle's

arrest. The prosecutor asked Amick "What does [Lamoureux] tell you about the shotgun

that morning that you [came] to give Ian a ride to work?" Amick responded: "That Kyle

had blown his uncle's head off." Kyle's attorney objected on the grounds of lack of

foundation and speculation and the court overruled the objection. The prosecutor then

asked if Inserra said anything about the gun during this conversation. Amick responded

that Inserra said, "I didn't know he was going to do it. I parked down the street." No

objection was made.

       Under the Aranda-Bruton rule, the prosecution cannot introduce out-of-court

statements of a codefendant that inculpate a nondeclarant defendant if those statements

would not be admissible against the nondeclarant defendant in a severed trial. (People v.

Fletcher (1996) 13 Cal.4th 451, 455; People v. Morales (1968) 263 Cal.App.2d 368,

374.) This rule applies even if the statements are admissible against the declarant

codefendant. (Fletcher, at p. 455.) The rationale for the rule is that even with a

cautionary instruction the jury cannot reasonably be expected to disregard the declarant

defendant's statement in determining the guilt or innocence of the nondeclarant

defendant, resulting in a violation of the nondeclarant defendant's right to confront

witnesses against him. (Ibid.; People v. Brawley (1969) 1 Cal.3d 277, 286.) For

                                             39
example, in this case, the Aranda-Bruton rule resulted in separate juries for Kyle and

Inserra so that Inserra's statements to police that incriminated both Inserra and Kyle could

be excluded from Kyle's jury.

       A nontestifying defendant's statement that is not testimonial, however, does not

implicate the confrontation clause concerns embodied by the Aranda-Bruton rule.

(Arceo, supra, 195 Cal.App.4th at pp. 571-572.) If the statement is not testimonial, "the

issue is simply whether the statement is admissible under state law as an exception to the

hearsay rule." (People v. Garcia (2008) 168 Cal.App.4th 261, 291; see People v.

Gutierrez (2009) 45 Cal.4th 789, 812 (Gutierrez) ["Only the admission of testimonial

hearsay statements violates the confrontation clause—unless the declarant is unavailable

and the defendant had a prior opportunity to cross-examine the declarant."].)

       Although no precise definition of what "constitutes a 'testimonial' statement"

exists, the United States Supreme Court has stated that "at a minimum, testimonial

statements include 'prior testimony at a preliminary hearing, before a grand jury, or at a

former trial; and . . . police interrogations."18 (Gutierrez, supra, 45 Cal.4th at p. 812.)

Further, the court has "explained that the confrontation clause addressed the specific

concern of '[a]n accuser who makes a formal statement to government officers' because

that person 'bears testimony in a sense that a person who makes a casual remark to an

acquaintance does not.' " (Id. at pp. 812-813, quoting Crawford v. Washington (2004)

541 U.S. 36, 51.)




18     For example, Inserra's interview with police.
                                            40
       The two statements at issue here were made at the defendants' residence, privately,

by two coconspirators (Inserra and Lamoureux) to a third party (Amick). Kyle concedes

these statements are not testimonial. He argues, however, that California law as

announced in Aranda nevertheless precludes introduction of Inserra's and Lamoureux's

statements to Amick.19 We disagree. The rule announced by the California Supreme

Court in Aranda, which was decided before Bruton, stemmed directly from the

confrontation clause concerns that later resulted in the United States Supreme Court

mandating the same limitation in Bruton. (See Aranda, supra, 63 Cal.2d at pp. 529-530

["The grave constitutional doubts [referring to the defendant's constitutional right of

confrontation] engendered by our present practice of permitting joint trials when the

confession of one defendant implicates codefendants has prompted our reconsideration of

this practice."].)

       In support of his assertion that Aranda precludes introduction of the

nontestimonial statements here, Kyle relies on People v. Hajek and Vo (2014) 58 Cal.4th

1144. Hajek, however, did not address whether a nontestimonial statement by a

nontestifying defendant implicating the nondeclarant defendant must be excluded.



19       The Aranda court held that "[w]hen the prosecution proposes to introduce into
evidence an extrajudicial statement of one defendant that implicates a codefendant, the
trial court must adopt one of the following procedures: (1) It can permit a joint trial if all
parts of the extrajudicial statements implicating any codefendants can be and are
effectively deleted without prejudice to the declarant. . . . (2) It can grant a severance of
trials if the prosecution insists that it must use the extrajudicial statements and it appears
that effective deletions cannot be made. (3) If the prosecution has successfully resisted a
motion for severance and thereafter offers an extrajudicial statement implicating a
codefendant, the trial court must exclude it if effective deletions are not possible."
(Aranda, supra, 63 Cal.2d at pp. 530-531, fn. omitted.)
                                                41
Rather, in Hajek, the California Supreme Court concluded that the codefendant's

nontestimonial statements to a third party did not implicate a codefendant. (Id. at

pp. 1203-1204.) The court did not address whether the statement was testimonial and

within the purview of Aranda-Bruton and Kyle's reliance on Hajek is misplaced. The

nontestimonial statements at issue here do not implicate the confrontation clause

problems addressed by the Aranda-Bruton rule and the trial court's failure to exclude

them on this basis was not error.

                                              B

       Kyle next argues that even if the admission of the statements did not violate his

rights under Aranda, they were inadmissible hearsay and their admission unfairly

undermined his defense. An appellate court may reverse a judgment on the ground of

erroneous inclusion of evidence only if the error resulted in a "miscarriage of justice."

(Cal. Const., art. VI, § 13; Evid. Code, § 354.) In other words, reversal is warranted only

if "the court, 'after an examination of the entire cause, including the evidence,' is of the

'opinion' that it is reasonably probable that a result more favorable to the appealing party

would have been reached in the absence of the error." (People v. Watson (1956) 46

Cal.2d 818, 836.)

       Even assuming the statements at issue were admitted in error, there was no

reasonable probability Kyle would have escaped a conviction if the testimony was

excluded. The evidence of Kyle's guilt was overwhelming. Connie testified Kyle had

previously stolen from her and Bradley. His brother Kurt and Ackles both testified Kyle

told them in the months before the crime he wanted to rob Bradley. The night after the

                                              42
crime, Spencer overheard Kyle tell someone he was going to prison. Most damaging,

Kurt and Ackles both saw Kyle emerge from Bradley's room the night of the murder with

the shotgun in his hand, and Kyle told the two young men to go back to bed and that he

was never there. In light of this evidence there was no reasonable probability that the

exclusion of statements by Lamoureux ("Kyle had blown his uncle's head off") and

Inserra ("I didn't know he was going to do it . . . I parked down the street") would have

changed the outcome of the trial. Any error in the admission of these statements was

harmless.20

                                             VII

                             Exclusion of Character Evidence

       Kyle argues the trial court erred by sustaining the prosecutor's relevance objection

to his counsel's question to Connie "would it have surprised you to find out that Kyle

would take a weapon, put it to Bradley's head, and pull the trigger?" Kyle asserts the

testimony his counsel sought to elicit from Connie was relevant character evidence under

Evidence Code section 1102, which showed he was a loving and devoted nephew. He

further contends that exclusion of Connie's response to this question was a violation of


20      We also reject Kyle's assertion that the court erred by failing to sua sponte instruct
the jury on section 1111 with respect to Inserra's and Lamoureux's statements to Amick.
Section 1111 provides that a "conviction cannot be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof." Here, even if
the court erred by failing to give such an instruction substantial corroborating evidence
rendered any such error harmless. (Avila, supra, 38 Cal.4th at p. 562 ["A trial court's
failure to instruct on accomplice liability under [§] 1111 is harmless if there is 'sufficient
corroborating evidence in the record.' "].) Further, the court did give the instruction with
respect to Amick and Alferez.
                                              43
his constitutional right to present his defense that it was not within his character to

commit the crime.

       We review a trial court's evidentiary rulings for abuse of discretion. (People v.

Vieira (2005) 35 Cal.4th 264, 292.) If the court's ruling erroneously excluded some

evidence relevant to the defense but did not completely deprive the defendant of an

opportunity to present a defense, we apply the state law standard for error, inquiring

whether there is a reasonable probability the outcome would have been more favorable to

the defendant absent the error. (People v. Boyette (2002) 29 Cal.4th 381, 428; People v.

Espinoza (2002) 95 Cal.App.4th 1287, 1317.)

       Although the court sustained this one relevance objection, Kyle's counsel was

permitted to examine Connie at length about Kyle's relationship with Bradley. She

testified Kyle and Bradley "loved each other dearly," that she witnessed the affection

between them, and that "Kyle probably spent at least as much time" with Bradley as he

had with his father. Kyle's assertion he was prevented from presenting evidence of his

love for his uncle as part of his defense is meritless. In addition, whether Connie would

be surprised to learn Kyle shot his uncle at close range, in essence whether she believed

Kyle was guilty of the crime, was not relevant evidence to Kyle's character trait of loving

his uncle. We find no abuse of discretion in the trial court's exclusion of this testimony.

                                       DISPOSITION

       As to Lamoureux, we order the judgment and abstract of judgment modified to

strike Lamoureux's special circumstance conviction and to strike the $52.60 crime

prevention fee imposed under section 1202.5. On remand the trial court is directed to

                                              44
resentence Lamoureux on the remaining convictions and, if appropriate, to modify the

restitution fee imposed against Lamoureux under section 1202.4, subdivision (b)

consistent with this opinion. The judgment is affirmed in all other respects.



                                                                    HALLER, Acting P. J.

WE CONCUR:



MCINTYRE, J.



AARON, J.




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