People v. Dennis

• Decision Date: 14 April 2020
• Docket Number: G055930
• Citation: 261 Cal.Rptr.3d 250,47 Cal.App.5th 838
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Corbin Yoshio DENNIS, Defendant and Appellant.

47 Cal.App.5th 838

261 Cal.Rptr.3d 250

The PEOPLE, Plaintiff and Respondent,

v.Corbin Yoshio DENNIS, Defendant and Appellant.

G055930

Court of Appeal, Fourth District, Division 3, California.

Filed April 14, 2020

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

IKOLA, J.

After being convicted of three counts of willful, deliberate, and premeditated attempted murder, three counts of second degree robbery, three counts of assault with a semiautomatic firearm and a couple of gang-related offenses, with various enhancements attached to each, the trial court sentenced defendant Corbin Yoshio Dennis to a total of 23 years 8 months, plus 45 years to life in state prison.¹ The attempted premeditated murder convictions were grounded in a theory that defendant aided and abetted the actual shooter's attempted premeditated murders by committing the target crime of unlawfully challenging another person in a public place to fight, the natural and probable consequence of which was attempted murder (not attempted premeditated murder).

Defendant contends he is entitled to the ameliorative benefits of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437), which he claims requires reduction of the attempted murder convictions to misdemeanors for disturbing the peace and resentencing to give him credit for time served. He also argues there is insufficient evidence to support his attempted murder convictions.

Alternatively, he contends the special finding under Penal Code section 664, subdivision (a), that the attempted murders were willful, deliberate, and premeditated, must be stricken.² He reasons the court erred by failing to instruct the jury that in order to make the special finding of premeditation based on a natural and probable consequences theory, it was required to find attempted premeditated murder was a natural and probable consequence of the target crime.

Finally, defendant contends there was insufficient evidence of the alleged target crime, challenging another person in a public place to fight (§ 415, subd. (1)). He asserts the court committed instructional error by instructing the jury concerning this target offense and that his attempted murder convictions must be reversed due to insufficient evidence.

We conclude Senate Bill 1437 is not a bar to defendant's convictions for attempted murder under the natural and probable consequences theory. The legislation reaches the crime of murder but has no application to attempted murder. In that regard we adopt the reasoning of People v. Lopez (2019) 38 Cal.App.5th 1087, 252 Cal.Rptr.3d 33, review granted November 13, 2019, S258175 ( Lopez ), and reject the reasoning of People v. Medrano (2019) 42 Cal.App.5th 1001, 256 Cal.Rptr.3d 200, review granted March 11, 2020, S259948 ( Medrano ). We also conclude substantial evidence supports defendant's attempted murder convictions.

But we also conclude defendant's claim of instructional error regarding attempted premeditated murder on a natural and probable consequences theory has merit. The court's instruction constituted a Sixth Amendment violation because it allowed the jury to find the attempted murders were premeditated without requiring the jury to find that attempted premeditated murder was the natural and probable consequence of the target offense. Alleyne v. United States (2013) 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 ( Alleyne ) held any fact that increases the minimum penalty for a crime is an element of the offense, which must be submitted to the jury and found true beyond a reasonable doubt. ( Id. at p. 103, 133 S.Ct. 2151.) That was not done here. The ratio decidendi of the United States Supreme Court in Alleyne is contrary to the ratio decidendi of the California Supreme Court in People v. Favor (2012) 54 Cal.4th 868, 143 Cal.Rptr.3d 659, 279 P.3d 1131 ( Favor ), thereby requiring us to adhere to Alleyne and not Favor.

Finally, we conclude substantial evidence supported the giving of the challenged instruction concerning the target offense.

FACTS

As three teenagers socialized next to an abandoned railroad right-of-way, two males, later identified as defendant and Luis Mendoza, climbed over a nearby fence and approached them. Mendoza asked the group where they were from, to which one replied they were not from anywhere. He repeated his question as one of the three, M.G., took steps toward him. Mendoza pulled out a semiautomatic pistol from his waistband. M.G. again responded to the question, this time stating, "We don't claim anybody. If you're going to shoot us, shoot us."

The situation escalated, with defendant and Mendoza both declaring they were from "Hard Times" or saying "this is Hard Times." Mendoza followed up by shooting M.G. in the shoulder and in each leg. M.G. fell to the ground and the two others in his group started to run away. Mendoza proceeded to fire three or four more shots in their direction as they ran, then he and defendant took off on foot in a different direction.

When police officers arrived at the scene of the shooting, M.G. was laying on the ground with apparent gunshot wounds

. He was transported to a hospital where he received treatment over the course of two or three days before being released. Officers recovered three nine-millimeter bullet casings from the crime scene.

That same evening, defendant and Mendoza approached another set of three teenagers walking through the abandoned railroad right-of-way. Holding a semiautomatic gun, Mendoza ordered them to "get on the ground or you're going to die, and drop your shit." He took the gun and hit one of the three, A.C., in the head, causing him to bleed and fall to the ground. A.C. put his cellular phone and skateboard on the ground next to him, and another of the three, R.C., got on the ground and did the same with his portable media player, skateboard and keys.

With all three laying on the ground, Mendoza struck two of them in the head with the gun. Defendant went through A.C.'s and R.C.'s pockets, took what all three individuals had placed on the ground, and Mendoza told the group to leave. Mendoza ended the interaction by stating, "Get up or you're going to die," and the three ran off.

Defendant and Mendoza subsequently fled toward an adjacent mobile home park. A witness observed two males running through the backyard of her mobile home property, one of whom she recognized as defendant. Police officers later located a portable media player in the same backyard, as well as a baseball hat and skateboard near a wall leading to the mobile home park. They returned the items to R.C.

A few days later, police officers arrested Mendoza. At the time of his arrest, Mendoza possessed a camera and a Samsung cellular phone. Police later determined those items belonged to the third individual involved in the second incident at the railroad tracks and they returned the items to him.

An information charged defendant with three counts of attempted murder ( Pen. Code, §§ 187, subd. (a), 664, subd. (a) ; counts 1-3), three counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 4-6), three counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 7-9), street terrorism (§ 186.22, subd. (a); count 10), and disobeying a gang injunction (§ 166, subd. (a)(10); count 11).³ As to the attempted murder counts, it further alleged the attempted murder was committed willfully, deliberately and with premeditation, within the meaning of section 664, subdivision (a). Additional allegations against defendant included the following: as to counts 1 through 6, that defendant was a gang member who vicariously discharged a firearm; as to count 1, that defendant was a gang member who vicariously discharged a firearm causing great bodily injury; and as to the first nine counts, that defendant committed the charged crimes for the benefit of a criminal street gang, Hard Times, within the meaning of section 186.22, subdivision (b)(1).

A gang expert testified at trial. He explained the origins of the Hard Times gang, its common signs and colors, and its territory. Among the primary activities of the gang, which had more than 40 members at the time of the charged incidents, are robberies, assaults, homicides, possessions of firearms by felons, and possession of loaded firearms in public. He further explained that one of the gang's chief rivals is Santa Nita, and the alleged attempted murders and robberies took place at a location on the border between Hard Times territory and Santa Nita territory.

After confirming his investigations showed defendant and Mendoza were both members of Hard Times, the expert opined the charged offenses were done in association with a gang, and furthered the criminal purpose of a gang, because two members were present. He further opined they were committed for the benefit of Hard Times. Brandishing a firearm and calling out the gang's name enhances its reputation for violence. It also demonstrates and furthers the gang's power and control over territory.

Additional evidence revealed that in the couple of years before the alleged incidents, police contacted defendant multiple times and observed him with Mendoza on at least three occasions. On one occasion, defendant denied being a member of the Hard Times gang, but on other separate occasions he was in possession of a notebook containing writings consistent with gang activity and he admitted he belonged to the gang.

The jury found defendant guilty of all counts charged, and it found true all the special allegations. Prior to sentencing and in response to an unopposed defense motion, the court held a fitness hearing pursuant to Welfare and Institutions Code section 707. Although defendant was...