Filed 10/7/20 P. v. Price CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
Plaintiff and Respondent, G057277
v. (Super. Ct. No. 17WF2059)
KENNETH WAYNE PRICE, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed as modified.
Sheila O’Connor, under appointment by the Court of Appeal, for Defendant
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M.
Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and
Defendant Kenneth Wayne Price was convicted of one count of attempted
murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)). 1 The court sentenced Price to the
aggravated term of nine years and enhanced his sentence by adding two one-year terms
based on his having served two prior prison terms pursuant to section 667.5, subdivision
(b). On appeal, Price contends the trial court prejudicially erred in instructing the jury
pursuant to CALCRIM No. 400 without adding the fact that an aider and abettor may be
found guilty of a lesser offense than the perpetrator he aided and abetted, if he had a
different state of mind than the perpetrator. Anticipating the Attorney General would
assert the issue was forfeited because Price did not object to the instructions given and
did not request modification, Price asserts the alleged instructional error violated his
substantial rights and no objection or request for modification was required to preserve
the issue. In the alternative, Price claims he was denied effective assistance of counsel
because his counsel did not object to the instructions or request modification.
Price also argues the imposition of two one-year prior state prison term
enhancements must be set aside because prior to his sentence being final, the Legislature
amended subdivision (b) of section 667.5, restricting its reach to prison terms served for
sexually violent felonies, and he is entitled to the retroactive application of the
ameliorative amendment as neither of his prior prison commitments were for sexually
violent offenses. The Attorney General properly concedes the issue.
We find the trial court did not commit prejudicial error on the instructional
issue. Consequently, there is no need to address the ineffective assistance of counsel
claim. We will order the terms imposed under former section 667.5, subdivision (b),
stricken and affirm the judgment as modified.
1 All undesignated statutory references are to the Penal Code.
Price was charged by way of information with one count of attempted
murder (§§ 664, subd. (a), 187, subd. (a); count 1), shooting at an occupied motor vehicle
(§ 246; count 2), possession of a firearm by a convicted felon (§ 29800, subd. (a)(1);
count 3), and possession of ammunition by a prohibited person (§ 30305, subd. (a)(1);
count 4). In connection with the attempted murder charge, the information alleged the
crime was deliberate and premeditated (§ 664, subd. (a)). The information further alleged
Price personally discharged a firearm during commission of the attempted murder
(§ 12022.53, subd. (c)), personally discharged a firearm causing great bodily injury in the
commission of the shooting at an occupied vehicle (§ 12022.53, subd. (d)), suffered a
prior strike conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), suffered a
prior serious felony conviction (§ 667, subd. (a)(1)), and served two prior separate terms
in prison (§ 667.5, subd. (b)).
The jury found Price guilty of attempted murder, but found the allegation
that the attempted murder was deliberate and premediated not true. The personal and
intentional discharge of a firearm enhancements were also found not true. The jury
returned a not guilty verdict on all the remaining charges. In a court trial held after the
jury returned its verdicts, the court found Price did not suffer a prior strike conviction or
serious felony conviction, but found the two state prison enhancement allegations true.
The court subsequently sentenced Price to the upper term of nine years on the attempted
murder conviction and imposed consecutive one-year terms on each of the two state
prison prior enhancements, for a total sentence of 11 years. Price was awarded
presentence credits of 184 actual days and 28 conduct credits for a total of 212 days.
Thereafter, Price filed a timely notice of appeal.
On July 22, 2016, at approximately 10:00 p.m., Christopher Williams
(Christopher), Zhang Molyneaux (the boyfriend of Christopher’s sister Tallisha), Brittany
Molyneaux and her two daughters (six months and four years old) went to a marijuana
dispensary on Katella Avenue in Garden Grove.2 Brittany is Zhang’s older sister.
Christopher drove them to the dispensary in Tallisha’s 2009 Toyota Camry.
Zhang was in the front passenger seat, Brittany sat behind Zhang with her daughters to
her left in the back seat, the youngest in a car seat.
Zhang said he was uncomfortable with his sister Brittany going alone with
Christopher because Christopher had told Zhang what he “used to do and what he was
about.” Zhang heard from Tallisha that Christopher was associated with criminal street
gangs and his moniker was Baby Devil.
The group went to the dispensary that night because Zhang purchased a
marijuana brownie at the dispensary the day before and left it there. Christopher
suggested to Zhang that they go back and see if they could get the brownie.
Once they arrived in the very dark parking lot, Christopher and Zhang got
out of the car and went into the dispensary, but were unable to obtain a brownie or a
refund. After leaving the dispensary, they got some lemonade from a stand outside the
dispensary. Shortly thereafter, Zhang was smoking a cigarette while leaning against the
hood of the Camry, when he was approached by a “light-skinned guy” he had never seen
before. Zhang said the male could have been Puerto Rican, Cuban, or Mexican and had
short hair, a “low-cut” beard, and wore a black T-shirt. Zhang thought the male, who was
later identified as Darrell Edwards, looked like the rapper Sean Paul.3
Edwards asked, “What’s up?” Brittany told Zhang, “[L]et’s go. I have a
bad feeling.” Edwards walked away toward the street after stopping to look inside the
Camry. Zhang continued smoking his cigarette and Edwards returned with another male,
For ease of reading and to avoid confusion, the Williamses and the
Molyneauxes are referred to by their first names. No disrespect is intended.
3 Edwards was not charged in the information.
later identified as Price. Zhang said Price was bigger and darker than himself, and wore a
red hat, red shirt, and jeans. Zhang had never seen Price before.
Edwards and Price walked past the Camry and turned around. They
returned to the Camry and approached the driver’s door. Christopher was in the driver’s
seat. Price said, “Ha, ha, Baby Devil. Let me holla at you for a minute.” Christopher got
out of the car and Price told him, “Aww, shake my hand. Shake my hand.” Christopher
said he would not shake hands.
Zhang saw Edwards pull what he described as a black or black and silver
Glock 16 or nine-millimeter from his waistband and fire one time at Christopher who was
three or four feet away. Zhang said Price was next to Edwards when the shot was fired.
Christopher started running after the shot. According to Zhang, the pistol jammed and
Price took the pistol from Edwards, pulled back the slide, cleared the jammed casing,
cocked it, and fired two shots at Christopher while Christopher ran to the back of the
Camry. Zhang said he did not see Price with a firearm other than the one he took from
Edwards.4 Zhang stated Price was to the right of where he was seated in the Camry
passenger seat when Price fired the two shots at Christopher. A video of the incident
obtained by Sergeant Brian Dalton of the Garden Grove Police Department showed
Edwards fired one shot and Price fired two.
Edwards and Price ran to the northeast after the shooting. Zhang got into
the driver’s seat and Brittany told him to “[g]et me out of here.” Zhang saw his sister had
been shot in the chest. He panicked and started screaming. A woman at the scene
slapped him in the face and told him to “[g]et it together.” He called the police, his
mother, and his brother. When Brittany got out of the car, Zhang saw someone carrying
Christopher and he realized Christopher was hurt. He had been shot. The ulna bone in
4 Later that night, Zhang told police Edwards and Price each had a gun and
that Price’s was an all black Glock nine-millimeter. He also told police eight or nine
shots were fired.
his left wrist and his hip were fractured. A bullet fragment was later removed from his
Surveillance videos were obtained from the dispensary and another
business at that location. Zhang watched a video of the incident prior to testifying and
said it showed Edwards fire a shot. On cross-examination, Zhang stated his testimony of
the incident that occurred two years prior to trial, was based “50 percent” on having
watched a video of the incident.
Brittany’s version of the shooting differed from Zhang’s. Brittany testified
she asked where they were when the car pulled into the “very dark” parking lot of the
dispensary that night. Upon being told they were at a dispensary, she asked why they
were there, noting her children were in the car. She was very upset and did not want to
Brittany said she and her children waited in the car for about five minutes
while her brother and Christopher were inside the dispensary. When they got back to the
car, Zhang smoked a cigarette while sitting on the hood of the car. She said Christopher
got in the car and she wanted to leave. She felt uncomfortable being there. Her four year
old appeared anxious and told her, “I’m ready to go.”
At that point, Brittany saw a man approach the car and say hello to her
brother, who said “Hi.” Christopher got out of the car, shook the man’s hand, and got
back into the Camry. The man then went to the passenger side of the car, stooped down,
looked into the window of the car, and walked away. She described this individual as
light-complexioned, possibly Hispanic or “mixed,” with long hair and wearing a black
shirt. Brittany asked Christopher if he knew the man. He said he did not. A couple of
minutes later the light-complexioned man returned with another man. The second man
was “black,” 5 feet 8 to 10 inches tall, muscular, with short hair and wearing a red shirt.
She subsequently identified a photograph of Price as the “black” male.
The two men walked to the front of the Camry and told Zhang to get back
into the car. The lighter-skinned male stayed at the front of the car. Price went to the
driver’s side and addressed Christopher as “Baby Devil” and told him to get out of the
car. Price told Christopher to shake his hand. Christopher said, “No,” and “kind of like
pushed his hand away.” Price again told Christopher to shake his hand, and Christopher
refused again. Then Brittany saw two muzzle flashes and heard two gunshots, but she
did not see a gun. One of her daughters screamed. According to Brittany, the “black”
male shot Christopher. Christopher fell to the ground. He got up and ran to the back of
Brittany leaned over to cover her children and to check on them. The baby
was crying and her older daughter said she was okay. Then she checked on her brother in
the front seat and, as she leaned back she felt “popped in the chest.” Her older daughter
said, “Mommy, you’ve been shot.” Brittany did not see who fired the third shot. The
light-skinned male and Price ran away.
Brittany was hospitalized for a week following the shooting. Doctors had
to reinflate her left lung and she still has the bullet in her chest. It has left her with long-
term breathing problems. The parties stipulated Brittany still had a bullet fragment inside
her and suffered a collapsed lung and fractured sternum as a result of the incident.
On cross-examination, Brittany admitted she did not see Price fire a gun.
Neither did she ever see him with a gun. She did not see anyone pull out a gun that night,
but she said she is certain Price fired the first shots.
Garden Grove Police Detective George Kaiser responded to the scene that
night. He found four bullet casings on the ground by the Camry. Two were on the
driver’s side and two were on the passenger’s side. He located two apparent bullet
impacts or holes on the passenger’s side. One was in the rear passenger door beneath the
window. The other was on the C-pillar, the “rear-most roof support structure.”
A forensic scientist from the Orange County Crime Lab examined the
Camry with an eye to the trajectory of the bullets that hit the car. She found a bullet hole
that appeared as if the bullet could have gone into the trunk. Examining the trunk, she
found a badly damaged bullet having the approximate weight and diameter of a .380-
caliber bullet, as well as being a copper plated lead bullet.
Of the four bullet casings found at the scene, a F.C. nine-millimeter Luger
casing was located in a parking stall to the north of the Camry. Another casing of the
same make was also found. On the sidewalk area to the front of the Camry, were two
Federal brand .380-caliber automatic casings. A firearms expert testified the two nine-
millimeter casings were fired from the same nine-millimeter gun and the .380-caliber
casings were fired from a single .380-caliber firearm.5 The bullet fragment removed
from Christopher’s wrist was from a .380-caliber bullet.
Detective Kaiser interrogated Price at the Theo Lacy Facility approximately
10 months after the shooting on May 23, 2017. After being advised of his Miranda6
rights, Price admitted being at the scene of the shooting. He said he had no problem with
the driver of the Camry. The parties stipulated Price had a prior felony conviction.
Prior to testifying, Zhang was provided surveillance videos and a transcript
of his previous interview with police. When Zhang reviewed the transcript of his
interview, the district attorney investigator who provided Zhang with the videos and
transcript asked Zhang if the transcript was accurate. Zhang said the transcript states
there were two guns, but only one gun was involved.
5 It is possible to fire a .380-caliber bullet from a nine-millimeter firearm,
but the cartridge might bulge or crack because a nine-millimeter firearm has a wider
chamber. Using .380-caliber ammunition in a nine-millimeter firearm could cause the
gun to jam. A nine-millimeter bullet cannot be used in a .380-caliber firearm.
6 Miranda v. Arizona (1966)
Aiding and Abetting Instructional Issue
Price contends the trial court erred in instructing the jury pursuant to
CALCRIM No. 400 without informing the jury that an aider and abettor’s culpability can
differ from that of the actual perpetrator depending upon the state of mind of the aider
and abettor. According to Price, the failure to so instruct the jury forced the jury into an
all-or-nothing choice in its verdict on the attempted murder charge, causing the jury to
convict Price for failing to stop Edwards from shooting at Christopher. Anticipating the
Attorney General’s argument that the issue was forfeited because he did not object to the
instruction or request a modification, Price claims the instructional error violated his
substantial rights and no objection or request was required. He further argues that should
we find the instructional issue was forfeited, he is still entitled to reversal because the
forfeiture was the result of counsel’s ineffective assistance in failing to object or ask for
“‘It is settled that in criminal cases, even in the absence of a request, the
trial court must instruct on the general principles of law relevant to the issues raised by
the evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.’ [Citation.]” (People v. Sedeno
, 715.) This obligation includes instructing “on lesser included
offenses when the evidence raises a question as to whether all of the elements of the
charged offense were present [citation] . . . .” (People v. Breverman (1998)
, 154.) Indeed, when the trial court’s obligation to instruct on lesser included offenses
arises, the obligation is to “fully” instruct on lesser included offenses supported by the
evidence. (Id. at p. 178.) The jury was instructed on attempted voluntary manslaughter
as a lesser included offense of attempted murder, and a trial court has a sua sponte duty to
“fully” instruct on lesser included offenses supported by the evidence. (Ibid.) We
therefore consider Price’s argument. Our review of the instructional issue negates the
need to address Price’s alternative argument that if the issue was forfeited, then trial
counsel failed to provide effective assistance in violation of the Sixth Amendment.
In our review of an instructional issue, we must determine “whether ‘there
was a reasonable likelihood the jury applied the challenged instruction in an
impermissible manner.’ [Citation.]” (People v. Hajek and Vo (2014)
1220.) Our review of whether an instruction correctly states the law is de novo. (People
v. Cole (2004)
The jury was instructed pursuant to CALCRIM No. 400: “A person may be
guilty of a crime in two ways. One, he or she may have directly committed the crime. I
will call that person the perpetrator. Two, he or she may have aided and abetted a
perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether
he or she committed it personally or aided and abetted the perpetrator.”
Immediately following its reading of CALCRIM No. 400, the court read
CALCRIM No. 401 to the jury. “To prove that the defendant is guilty of a crime based
on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator
committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit
the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to
aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s
words or conduct did in fact aid and abet the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he knows of the perpetrator’s unlawful
purpose and he specifically intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that crime.
“If all of these requirements are proved, the defendant does not need to
actually have been present when the crime was committed to be guilty as an aider and
“If you conclude that defendant was present at the scene of the crime or
failed to prevent the crime, you may consider that fact in determining whether the
defendant was an aider and abettor. However, the fact that a person is present at the
scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider
“A person who aids and abets a crime is not guilty of that crime if he
withdraws before the crime is committed. To withdraw, a person must do two things: [¶]
1. He must notify everyone else he knows is involved in the commission of the crime
that he is no longer participating. The notification must be made early enough to prevent
the commission of the crime. [¶] AND [¶] 2. He must do everything reasonably within
his power to prevent the crime from being committed. He does not have to actually
prevent the crime.
“The People have the burden of proving beyond a reasonable doubt that the
defendant did not withdraw. If the People have not met this burden, you may not find the
defendant guilty under an aiding and abetting theory.” (CALCRIM No. 401.)
The court also instructed the jury on attempted voluntary manslaughter as a
lesser included offense of attempted murder. (See People v. Randle (2005)
, 993-994 [voluntary manslaughter is lesser included offense of first degree murder].)
An attempted murder is reduced to an attempted manslaughter when: “1. The defendant
took at least one direct but ineffective step toward killing a person; [¶] 2. The defendant
intended to kill that person; [¶] 3. The defendant attempted the killing because he was
provoked; [¶] 4. The provocation would have caused a person of average disposition to
act rashly and without due deliberation, that is, from passion rather than from judgment;
[¶] AND [¶] 5. The attempted killing was a rash act done under the influence of intense
emotion that obscured the defendant’s reasoning or judgment.” (CALCRIM No. 603.)
In People v. Samaniego (2009)
172Cal. App. 4th1148
, 1162 (Samaniego),
the issue before the court was whether an earlier version of CALCRIM No. 400
incorrectly stated the law. At the time, CALCRIM No. 400 contained the following
sentence: “‘A person is equally guilty of the crime whether he or she committed it
personally or aided and abetted the perpetrator who committed it.’” (Samaniego, at
p. 1163.) The appellate court concluded CALCRIM No. 400 is generally an accurate
statement of the law “in all but the most exceptional circumstances.” (Id. at p. 1165.) It
is not, however, always an accurate statement of the law. In a prosecution for murder, the
actual killer and the aider and abettor may have different liabilities even though the aider
and abettor intended to aid an intentional killing. (People v. McCoy (2001)
, our Supreme Court addressed
the issue of whether an actual killer and his aider and abettor will always be equally
guilty. (Id. at p. 1114 [“granted review to decide whether an aider and abettor may be
guilty of greater homicide-related offenses than those the actual perpetrator
committed”].) The McCoy court held “that when a person, with the mental state
necessary for an aider and abettor, helps or induces another to kill, that person’s guilt is
determined by the combined acts of all the participants as well as that person’s own mens
rea. If that person’s mens rea is more culpable than another’s, that person’s guilt may be
greater even if the other might be deemed the actual perpetrator.” (Id. at p. 1122.)
The court gave an example of when an aider and abettor may be liable for a
greater crime than the actual killer. “As [an] example, assume someone, let us call him
Iago, falsely tells another person, whom we will call Othello, that Othello’s wife,
Desdemona, was having an affair, hoping that Othello would kill her in a fit of jealousy.
Othello does so without Iago's further involvement. In that case, depending on the exact
circumstances of the killing, Othello might be guilty of manslaughter, rather than murder,
on a heat of passion theory. Othello’s guilt of manslaughter, however, should not limit
Iago’s guilt if his own culpability were greater. Iago should be liable for his own acts as
well Othello’s, which he induced and encouraged. But Iago’s criminal liability, as
Othello’s, would be based on his own personal mens rea. If, as our hypothetical suggests,
Iago acted with malice, he would be guilty of murder even if Othello, who did the actual
killing, was not.” (People v.
, 25 Cal.4th at pp. 1121-1122.)
After reviewing the decision in McCoy, the Samaniego court concluded that
if an aider and abettor can be guilty of a greater crime than that committed by the
perpetrator he aided and abetted, based on his (the aider & abettor’s) state of mind, an
aider and abettor can be guilty of a lesser crime than the perpetrator he aided and abetted,
if he had a less culpable state of mind than the perpetrator. “Though McCoy concluded
that an aider and abettor could be guilty of a greater offense than the direct perpetrator, its
reasoning leads inexorably to the further conclusion that an aider and abettor’s guilt may
also be less than the perpetrator’s, if the aider and abettor has a less culpable mental state.
, 172 Cal.App.4th at p. 1164.)
The version of CALCRIM No. 400 provided to the jury in the present
matter did not include the phrase “equally guilty.” Rather, it stated, “A person is guilty
of a crime whether he or she committed it personally or aided and abetted the
perpetrator.” This instruction did not point out that an aider and abettor may be guilty of
a lesser offense than the offense committed by the perpetrator and aided by the aider and
The trial court below instructed the jury on attempted voluntary
manslaughter as a lesser included offense of attempted murder. In a situation like this,
CALCRIM No. 400 is misleading. It fails to make clear an aider and abettor may have
different culpability than the perpetrator aided and abetted. If Edwards deliberated and
premeditated his attempt to kill Christopher, but Price only formed the intent to kill as a
result of heat of passion or sudden quarrel sufficient to negate malice, it could be
concluded that while Edwards committed attempted murder, Price committed the lesser
crime of attempted manslaughter. In other words, one may aid and abet an act of
attempted murder without incurring liability for attempted murder. That being said, any
error was harmless.
The instructions given the jury informed that in order to convict Price of
attempted murder under an aiding and abetting theory, it must find Price knew of
Edwards’s unlawful purpose and specifically intended to, and did aid, facilitate, promote,
encourage or instigate that known purpose. Contrary to Price’s contention, the instruction
did not “force” the jury to into an all-or-nothing verdict. The jury was also instructed on
voluntary manslaughter as a lesser included offense, but that lesser charge was not part of
the defense strategy; a strategy that proved very successful with the jury acquitting Price
on three of the four charges, along with the special allegation that the attempted murder
was deliberate and premeditated, and the personal discharge of a firearm enhancements
charged in connection with the attempted murder and shooting at an occupied motor
vehicle counts. The defense was that Price did not aid and abet Edwards. More
precisely, it was that “even though he (Price) was there, he did not shoot a gun or know
that . . . Edwards was going to shoot a gun.”
“Attempted manslaughter based on a sudden quarrel or heat of passion has
both a subjective and an objective component [citation] . . . .To satisfy the subjective
component, the defendant must have attempted to kill ‘while under “the actual influence
of a strong passion” induced by [adequate] provocation.’ [Citation.] . . . ‘No specific type
of provocation is required, and “the passion aroused need not be anger or rage, but can be
any ‘“‘[v]iolent, intense, high-wrought or enthusiastic emotion’”’ [citations] other than
revenge.”’ [Citation.]” (People v. Millbrook (2014)
222Cal. App. 4th1122
, 1139.) To
support the objective component of heat of passion, “‘“the accused’s heat of passion must
be due to ‘sufficient provocation.’” [Citation.]’ [Citation.]” (People v. Moye (2009)
, 549.) “The provocative conduct by the victim may be physical or verbal,
but the conduct must be sufficiently provocative that it would cause an ordinary person of
average disposition to act rashly or without due deliberation and reflection.” (Id. at p.
Viewing the evidence in the light most favorable to Price, there is no
evidence of a sudden quarrel or heat of passion. When Edwards first contacted
Christopher, he and Christopher shook hands. Edwards then left after looking inside the
Camry. He returned a few minutes later with Price. According to Brittany, the men told
her brother to get back into the car and then Price called Christopher “Baby Devil” and
told him to get out of the car. Thereafter, Christopher’s only action in this matter was his
refusal to shake Price’s hand. Immediately after saying he would not shake Price’s hand,
Edwards pulled out a pistol and started shooting. There was no sudden quarrel or action
on Christopher’s part that could give rise to heat of passion. Indeed, the fact that Zhang
was ordered to get back into the Camry and Christopher was told to get out of the same
car tends to show Edwards and Price were looking to confront Christopher. His refusal to
shake the hand of someone who ordered him out of a car would not provoke an ordinary
person to react rashly.
Neither did CALCRIM No. 400 “force” the jury to convict Price because
he failed to stop Edwards. CALCRIM No. 401 does not require an innocent person to
attempt to stop a crime. CALCRIM No. 401 only puts that obligation on one who is an
aider and abettor and who then attempts to withdraw from the criminal enterprise. To
withdraw, an aider and abettor “must do two things: [¶] 1. He or she must notify
everyone else he or she knows is involved in the commission of the crime that he or she
is no longer participating. The notification must be made early enough to prevent the
commission of the crime. [¶] AND [¶] 2. He or she must do everything reasonably
within his or her power to prevent the crime from being committed. He or she does not
have to actually prevent the crime.” (CALCRIM No. 401.)
During deliberations, the jury sent a note to the court inquiring whether all
four “points” [in CALCRIM No. 401] must be proven if it finds Price was at the scene
and did not withdraw or prevent the crime. In a second sentence it asked whether “the
two paragraphs about aiding and abetting “are both required” “or are they independent.”
The court, after consultation with counsel, sent back a note to the jury stating all four
elements set forth in CALCRIM No. 4017 must be proved beyond a reasonable doubt.
The court’s answer to the first question reinforced the requirement that the jury could not
return a guilty verdict on the charge of attempted murder unless it found beyond a
reasonable doubt that Edwards committed the crime, Price knew Edwards intended to do
so, Price intended to aid and abet the crime before or during its commission, and Price’s
words or conduct aided and abetted Edwards’s commission of the crime.
As to the second question, the court informed the jury it did not know
“which two paragraphs” the jury was referring to in its note, but that the entire instruction
applies. Price fails to establish how that answer could have prejudiced him.
Additionally, we reject Price’s contention that the prejudicial effect of
instructing the jury pursuant to CALCRIM No. 400 was exacerbated by the prosecutor
arguing an “old and wrong legal standard” during her argument to the jury.
In the present case, the prosecutor gave an example of aiding and abetting
to the jury. In her example, a getaway driver knows his “buddy” is going to rob a bank.
Knowing this, the getaway driver drives his buddy to the bank and waits in the vehicle
outside the bank. When his buddy emerges from the bank and gets into the vehicle, the
getaway driver drives them away from the scene, knowing the bank has just been robbed.
The prosecutor explained that even though the getaway driver did not go into the bank
and personally holdup the bank teller, the two are “equally guilty” of the crime. While
not all aiders and abettors are necessarily guilty of the same offense or degree of offense
7 “1. The perpetrator committed the crime; [¶] 2. The defendant knew that
the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of
the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
[¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime.” (CALCRIM No. 401.)
committed by the person they aided and abetted, depending upon the aider and abettor’s
state of mind (see People v.
Cal.App.4th at p. 1164), in the prosecutor’s example, however, the aider and abettor and
the actual perpetrator would be equally guilty of robbery. While her example could be
argued to have been inapt, it did not state “the old and wrong legal standard for aiding
and abetting” as Price contends.
When the issue is whether a jury was properly instructed in connection with
a lesser included offense, the Watson8 standard applies. (People v.
Cal.4th at p. 149.) “Under Watson, instructional error requires reversal if the reviewing
court, after considering the entire cause, including the facts, instructions, the arguments
of counsel, any communications from the jury during deliberations, and the entire verdict,
determines that ‘“it is reasonably probable that a result more favorable to the [defendant]
would have been reached in the absence of the error.”’ [Citation.]” (People v. Andrade
85Cal. App. 4th579
, 588.) When an instructional error violates the federal
Constitution, reversal is mandated unless the court finds the error was harmless beyond a
reasonable doubt. (Chapman v. California (1967)
To the extent an asserted instructional error consists of a failure to instruct
on a lesser included offense, “there must have been substantial evidence from which a
jury reasonably could conclude that the defendant was guilty of the lesser offense, but not
the greater offense. [Citation.]” (People v. Flood (1998)
, 481-482.) As
we stated above (at p. 16, post), viewing the evidence in the light most favorable to Price,
there is no evidence of sudden quarrel or heat of passion. Accordingly, any asserted error
was harmless under both the Watson and Chapman standards.9
8 People v. Watson (1956)
9This conclusion renders moot Price’s alternative contention that his trial
counsel was ineffective for failing to request modification of CALCRIM No. 400.
State Prison Prior Enhancements
As stated above, the trial court enhanced Price’s sentence by imposing two
consecutive one-year terms based on its finding Price previously served two separate
state prison terms. At the time of Price’s offense and sentencing, former section 667.5,
subdivision (b), authorized a trial court to impose a one-year enhancement for each full,
separate prison sentence previously served by the defendant, if the defendant had not
thereafter remained free of prison custody and the commission of a new felony for a
period of five years. (Stats. 2014, ch. 442, § 10.) While Price’s appeal was pending, the
Legislature amended subdivision (b) of section 667.5 to apply only to a prior prison
sentence served on a conviction “for a sexually violent offense as defined in subdivision
(b) of Section 6600 of the Welfare and Institutions Code . . . .” (§ 667.5, subd. (b); Stats.
2019, ch. 590, § 1, eff. Jan. 1, 2020.) Section 667.5, subdivision (b), presently provides:
“Except where subdivision (a) applies, where the new offense is any felony for which a
prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of
Section 1170 is imposed or is not suspended, in addition and consecutive to any other
sentence therefor, the court shall impose a one-year term for each prior separate prison
term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code, provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five years in which the
defendant remained free of both the commission of an offense which results in a felony
conviction, and prison custody or the imposition of a term of jail custody imposed under
subdivision (h) of Section 1170 or any felony sentence that is not suspended.” Price’s
prior prison terms were served on convictions for possession of a firearm by a felon
(§ 29800, subd. (a)(1)) & attempted grand theft (§§ 664, subd. (a), 487, subd. (a)).
Neither offense is listed in Welfare and Institutions Code section 6600.
Price argues in his supplemental opening brief that he is entitled to the
retroactive benefit of the amendment. We accept the Attorney General’s concession of
In People v. Lopez (2019)
42Cal. App. 5th337
, 341, the Fifth District held
the recent amendment to section 667.5, subdivision (b) applies retroactively to judgments
not yet final on its date of enactment. It based its decision on California Supreme Court
decisions involving the retroactive application of ameliorative penal statutes. (Ibid.; see
People v. Brown (2012)
748.) We agree with the appellate court’s analysis.
Accordingly, the enhancements imposed pursuant to former section 667.5,
subdivision (b) are ordered stricken. As the trial court imposed the maximum possible
sentence on the only offense for which Price was convicted, there is no reason to remand
this matter for resentencing in light of our decision.
The two enhancements imposed pursuant to former section 667.5,
subdivision (b) are stricken. The clerk of the superior court is directed to prepare an
amended abstract of judgment showing the superior court imposed a nine-year prison
commitment, and to mail a certified copy to the Department of Corrections and
Rehabilitation. The judgment is affirmed as modified.
BEDSWORTH, ACTING P. J.
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