People v. Cry
| Decision Date | 14 February 2020 |
| Docket Number | C083380,C082987 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. KAVON WILLIAM CRY et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. E.R., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this special circumstance murder case involving three defendants, Kavon William Cry, Omar Lee Talley, and E.R. (collectively, defendants), Cry shot and killed the victim, Marquail Hayes, during "a drug rip gone bad." Hayes arranged to buy two pounds of marijuana from E.R. through an intermediary, S.D. When Hayes, S.D., and Hayes's friend, M.B., arrived at the location set up for the purchase, E.R. handed Hayes a duffel bag. As Hayes unzipped the bag and learned it did not contain the marijuana he agreed to buy, Cry and Talley ran out from a concealed location. Hayes and M.B. ran. Cry and Talley gave chase. After a brief scuffle between Hayes and his pursuers, Cry shot and killed Hayes.
A jury convicted defendants of first degree murder (Pen. Code, §§ 187, 189)1, finding true a robbery-murder special circumstance allegation (§ 190.2, subd. (a)(17)), and attempted robbery (§ 664/211). With respect to Cry, the jury found he personally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) With respect to Talley and E.R., the jury found a principal in the commission of the offenses was armed with a firearm. (§ 12022, subd. (a).) Cry and Talley, young adults at the time of the murder, were sentenced to state prison for life without the possibility of parole (LWOP) for the murder. E.R., a minor at the time, was sentenced to serve an indeterminate term of 25 years to life for that crime. With respect to the firearm enhancements, Cry was sentenced to serve an additional indeterminate term of 25 years to life; Talley and E.R. were sentenced to serve an additional determinate term of one year.
Defendants raise a multitude of contentions on appeal, jointly with respect to some claims, individually with respect to others.2 We begin the discussion portion of this opinion by addressing (1) E.R.'s contention Proposition 57 ) applies retroactively to his case and requires aremand to the juvenile court for a juvenile transfer hearing. The Attorney General concedes the point. We concur and shall conditionally reverse E.R.'s judgment of conviction and remand the matter to the juvenile court for such a hearing. However, because that court may well determine it would have transferred E.R. to a court of criminal jurisdiction because he was not, at the time his case was originally filed in the trial court, "a fit and proper subject to be dealt with under the juvenile court law" (Welf. & Inst. Code, § 707.1, subd. (a)), in which case his convictions and sentence would be reinstated, we shall address all other contentions raised by E.R. in his appeal.
Next in the discussion, we address the following sufficiency of the evidence claims: (2) Talley and E.R. each challenge the sufficiency of the evidence supporting their respective robbery-murder special circumstance findings under our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark); (3) Cry asserts his murder conviction and robbery-murder special circumstance finding must be reversed because the evidence is insufficient to establish he intended to rob Hayes before or during the commission of the acts that caused his death; and (4) E.R. claims the evidence is insufficient to establish he aided and abetted a murder. We conclude the evidence was sufficient to support Talley and E.R.'s special circumstance findings.3 The evidence was also sufficient to support a reasonable inference Cry intended to rob Hayes before he shot him to death. Finally, we need not determine whether or not the evidence sufficiently supports a finding E.R. aided and abetted a murder because it overwhelmingly supports the conclusion he aided and abetted an attempted robbery and was therefore liable for first degree murder under the felony murder rule.
We then address several claims of instructional error. Each defendant claims the trial court prejudicially erred and violated their constitutional rights by (5) declining to instruct the jury on various defenses, and (6) failing to provide a unanimity instruction regarding the attempted robbery. Cry and E.R. also contend (7) the trial court prejudicially erred and further violated their constitutional rights by instructing the jury it need not unanimously agree on the theory of murder. Talley and E.R. further assert the trial court prejudicially erred and violated their constitutional rights by (8) misinstructing the jury regarding the robbery-murder special circumstance. Finally, (9) E.R. claims the trial court prejudicially erred and violated his constitutional rights by failing to instruct the jury sua sponte on attempted theft as a lesser-included offense of attempted robbery. We reject each claim of instructional error for reasons set forth in the discussion.
Next, we address three additional claims of trial error. In two related claims, (10) Cry and E.R. contend the trial court violated their constitutional rights by failing to inquire into whether or not jurors might have been influenced by a situation in which a spectator reportedly photographed the jury and another spectator spoke to one of the jurors, and by excluding those spectators from the trial following this reported conduct. Talley and E.R. further assert (11) the trial court prejudicially erred and violated their constitutional rights by excluding a visual aid Talley's counsel sought to use during closing argument. The first two claims are forfeited; the third lacks merit.
Finally, we address four claims of sentencing error. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), each defendant claims (12) the trial court violated his constitutional right to due process by imposing various fines, fees, and assessments without first determining his ability to pay. Cry also contends (13) his sentence of LWOP plus 25 years to life violated the state and federal constitutional proscriptions against cruel and/or unusual punishment, and (14) we must remand his matter for a new sentencing hearing because Senate Bill No. 620 (2017 - 2018 Reg. Sess.) (Stats. 2017,ch. 682, §§ 1 & 2 (SB 620)) that became effective January 1, 2018 and gives the trial court discretion to strike a firearm enhancement in the interest of justice, applies retroactively to cases not yet final on appeal. Finally, E.R. claims (15) the victim restitution award should be joint and several.
We conclude many of defendants' Dueñas claims are forfeited.4 Assuming, without deciding, defendants' remaining Dueñas claims are preserved for review, we conclude there was no due process violation. We also reject Cry's constitutional challenge to his sentence. There is nothing cruel or unusual about an LWOP sentence imposed upon an adult, admittedly a young adult, for special circumstance murder. However, we agree with Cry's second contention and shall remand his matter to the trial court for an exercise of SB 620 discretion. We also agree with E.R.'s contention the victim restitution award is a joint and several obligation.
In sum, we shall conditionally reverse E.R.'s judgment of conviction and remand his matter to the juvenile court for a juvenile transfer hearing. If that court determines it would have transferred E.R. to a court of criminal jurisdiction because he was not, at the time his case was originally filed in the trial court, "a fit and proper subject to be dealt with under the juvenile court law" (Welf. & Inst. Code, § 707.1, subd. (a)), his convictions and sentence are to be reinstated. If, however, the juvenile court finds it would not have so transferred E.R., then it shall treat E.R.'s convictions as juvenile adjudications and impose an appropriate disposition within its discretion. We shall affirm Cry's convictions and remand his matter to the trial court to consider whether or not to strike his firearm enhancement in the interest of justice. Finally, we shall affirm Talley's judgment in its entirety.
The facts are relatively straightforward. However, because each defendant challenges the sufficiency of the evidence supporting his murder conviction and/or robbery-murder special circumstance finding, we recite the evidence adduced against them in some detail.
In October 2014, about two days before the murder, Hayes's cousin, S., told her friend, S.D., Hayes was looking to buy five pounds of marijuana. On the day of the murder, S.D. sent a text message to Cry asking whether he knew anyone who sold the substance by the pound. Cry referred her to "his brother Derrick," saying he had two pounds available, and gave her "Derrick's number." That number actually belonged to Cry's friend, Talley. S.D. then sent a text message to "Derrick" saying Cry told her to message him and asking for the price of a pound of marijuana.5 The response from Talley's phone was the price: $1,200. S.D. indicated the buyer would be her "homegirl" and asked whether he could sell two pounds that night. The response from Talley's phone was that he could do so at 9:00 p.m.
About two hours later, Talley's phone sent S.D. a text message asking who would be with her during the sale, adding, "last time I got hit," meaning robbed. S.D. responded: S.D. added she...
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