People v. Molina

• Decision Date: 24 June 2022
• Docket Number: A147925,A147875
• Parties: THE PEOPLE, Plaintiff and Respondent, v. LANCE MOLINA, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JONES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. LANCE MOLINA, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JONES, Defendant and Appellant.

A147875, A147925

California Court of Appeals, First District, Second Division

June 24, 2022

NOT TO BE PUBLISHED

(San Francisco County Super. Ct. No. 217223)

STEWART, J.

In the early morning of Sunday, October 4, 2009, three men, Kedric Green, Michael Bailey and Kevin Harrell, all in their 20's, agreed to drive two women home from a San Francisco nightclub upon learning that one of them, Ariael Kittles, had lost her car keys. The driver, Green, was visiting the Bay Area from Baton Rouge, Louisiana with his friend, Bailey, and they were staying with Bailey's cousin, Harrell. At the end of the drive, the three would be assaulted and robbed by a group of strangers, and Bailey would be fatally shot.

Four defendants-appellants William Jones and Lance Molina (defendants), and two other defendants who are not parties to this appeal, Maurice Lige and Kittles-were arrested and charged in December 2009 with crimes related to this incident.^[1] After a 2014 trial, Jones and Molina were convicted of all the counts against them that were presented to the jury and some, but not all, of the accompanying enhancement allegations were found to be true. Kittles was acquitted, and Lige, besides receiving an acquittal on one count, was the beneficiary of a hung jury. In 2016, the trial court sentenced Jones to 57 years to life and Molina to 44 years and 4 months to life in state prison.

Jones and Molina each appealed on numerous grounds.^[2] During the pendency of this appeal, the parties, with our permission filed supplemental briefing on several subjects, most of which involve legislative changes enacted after trial that apply retroactively to defendants' cases. This has resulted in voluminous briefing and this unusually long opinion, in which we address the following:

First defendants claim we must reverse all their convictions because the trial court violated their confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) by admitting the perjured preliminary hearing testimony of Arnold Biggins, a purported eyewitness to the incident and to the perpetrators' actions immediately afterward. Relatedly, they contend the trial court erroneously instructed the jury about Biggins's perjury in the preliminary hearing and contend the prosecutor committed misconduct by withdrawing Biggins's immunity and charging him with unprovable crimes so he would decline to testify at trial. We conclude these arguments are without merit.

Second defendants contend we must reverse their first degree murder convictions (count I) based on the retroactive application of post-trial legislative amendments to Penal Code sections 188 and 189,^[3] which as of January 1, 2022, defendants could raise on direct appeal rather than by petition to the superior court as previously required. These legislative amendments eliminate the imposition of murder liability under the natural and probable causes doctrine and limit it under the felony-murder doctrine. We reject defendants' claims that their first degree murder convictions are improperly based on the natural and probable consequence doctrine because the trial court's instructions permitted them only to convict defendants of second degree murder under that theory. The jury instead convicted them of first degree murder, indicating it did not rely on a natural and probable consequences theory. However, we vacate defendants' first degree murder convictions and remand the case based on the retroactive application of the felony-murder doctrine as revised by Senate Bill No. 1437. (2017-2018 Reg. Sess.) (Senate Bill No. 1437). We also reject defendants' claim that the People are barred from retrying them for first degree murder under the felony-murder doctrine.

Third, Molina contends the trial court prejudicially erred by failing sua sponte to instruct the jury on two lesser included offenses to the conspiracy to commit robbery count (count II). We conclude this argument has no merit.

Fourth, defendants claim we must reverse the jury's findings that certain criminal street gang allegations made against them were true and that they committed certain criminal street gang crimes. Defendants base their claims on the retroactive application of post-trial legislative changes to section 186.22 and the erroneous admission of inadmissible hearsay and testimonial hearsay under Crawford and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We conclude that the retroactive application of section 186.22 and the admission of significant amounts of inadmissible hearsay and testimonial hearsay in violation of Crawford and Sanchez constitute error that prejudiced defendants. Therefore, we vacate the jury's gang-related findings and convictions as specified in part IV of the Discussion section, post. We conclude the People are not barred from retrying defendants on these gang-related charges.

Fifth, regarding the firearm enhancement allegation the jury found true as part of Jones's conviction for participation in a conspiracy to commit robbery (count II), we reject Jones's claim that this allegation cannot as a matter of law be included in a conspiracy count. We agree with him that we should remand his case, based on the retroactive application of a post-trial amendment of section 12022.5, for the trial court to exercise its recently authorized discretion to strike or dismiss this firearm enhancement; we need not address his claims regarding other firearm enhancements that we have vacated as a result of our felony murder and gang-related rulings.

Sixth, we agree with Molina and the People that we must vacate the upper-term sentences Molina received for counts II (conspiracy to commit robbery), III (the robbery of Bailey) and IV (the robbery of Green) and remand these counts to the trial court for resentencing because of the retroactive application of the Legislature's post-trial amendment of section 1170, subdivision (b), which now requires the trial court to consider certain matters it did not consider at sentencing.

Seventh, Jones claims the trial court imposed certain enhancement sentences on him that were unauthorized by law. To provide guidance for the trial court on resentencing, we address Jones's claim regarding the section 186.22, subdivision (b)(1)(C) 10-year enhancements the court imposed as part of his robbery convictions (counts III, IV and V), even though we have ordered the enhancements vacated as gang-related in part IV of the Discussion section, post. We conclude the imposition of the enhancements violated section 12022.53, subdivision (e)(2). We further conclude that the stayed, one-year firearm enhancement the court imposed on Jones as part of his count III robbery conviction must be vacated, and the 10-year enhancement sentence the court imposed under section 186.22 as part of Jones's count VII assault with a pistol conviction must be stricken. We conclude Jones has forfeited his claim regarding section 1385.

We otherwise affirm the two judgments.

BACKGROUND

I. The Charges Against the Defendants

In a second amended information filed in May 2014, Jones, Molina Kittles and Lige were charged with willful, deliberate and premeditated murder of Bailey (count I; § 187, subd. (a)); conspiracy to rob Bailey, Green and Harrell (count II; § 182, subd. (a)(1), § 211); and the second degree robberies of Bailey, Green and Harrell (counts III, IV and V; § 211). It was alleged regarding counts I, III, IV and V that each defendant was a principal in the offense and that the defendant or another principal was personally armed with a firearm (§ 12022, subd. (a)(1)), that a principal personally used a firearm for the benefit of a criminal street gang (§ 12022.53, subds. (b), (e)(1)), and that each defendant acted for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). It was also alleged regarding count II that each defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). Molina, Jones and Lige were also charged with the offense of active participation in a criminal street gang (count X; § 186.22, subd. (a)).

There were additional special circumstance and sentence enhancement allegations against Jones alone: regarding count I, that he murdered Bailey while engaging in the commission of a robbery in violation of section 211 (§ 190.2, subd. (a)(17)) that he intentionally committed the murder as a member of a criminal street gang to further the activities of the gang (§ 190.2, subd. (a)(22)), that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and that he personally and intentionally discharged a firearm proximately causing great bodily injury and death (§ 12022.53, subd. (d)); regarding count II, that he personally used a firearm (§ 12022.5, subd. (a)); and regarding counts III through V, that he personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and that a principal personally and intentionally discharged a firearm for the benefit of a criminal street gang causing great bodily injury and death to a person other than an accomplice (§ 12022.53, subds. (d), (e)(1)). Jones was also charged with assaulting Bailey with an assault pistol (count VI; § 245, subd. (b)), assaulting Green with a firearm (count VII; § 245, subd. (a)(2)) and possession of a firearm by a felon (count VIII; § 12021, subd. (a)(1),), each accompanied by the allegation that he acted for the benefit of a criminal street gang (§ 186.22, subd. (b)).^[4] Regarding count VI, he was also alleged to have committed great bodily injury on Bailey (...