Filed 4/2/24 P. v. Hasley CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication 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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GERRELL HASLEY, JR.,

Defendant and Appellant.

F084914

(Super. Ct. No. BF173252A)

ORDER MODIFYING OPINION AND 

DENYING REHEARING

[No Change in Judgment]

THE COURT:

It is ordered that the opinion filed herein on March 13, 2024, be modified as 

follows:

1. On page 3, the last sentence of the first full paragraph, beginning “The total 

aggregate sentence” is modified to read as follows:

The total aggregate sentence imposed was an indeterminate term of 25 

years to life plus life with the possibility of parole after seven years and a 

determinate term of two years eight months.

2. In the paragraph commencing at the bottom of page 9 below the subheading 

Forensic Evidence and ending at the top of page 10, the fourth sentence, beginning 

“Specifically” is modified to read as follows:

Specifically, as to the exterior front passenger-side door handle, “for the 

African-American population ..., it would be 31 sextillion times more 
2.

likely that it’s [defendant] than a coincidental match to an unrelated 

person.”

3. On page 26, in the first full paragraph, delete the sentence following the 

citation to People v. Valerio (1970) 13 Cal.App.3d 912, 924 and add the following 

sentences:

Here, while defendant and Thomason had separate juries, it was still 

incumbent on defendant’s counsel to argue in favor of instructing his jury 

with CALCRIM No. 335 instead of CALCRIM No. 334, specifically as to 

Thomason. Counsel may have had a tactical reason for not making this 

request in this atypical situation. In any event, as we subsequently discuss, 

any error in failing to instruct the jury pursuant to CALCRIM No. 335 was 

harmless.

There is no change in the judgment. Except for the modifications set forth, the 

opinion previously filed remains unchanged.

Appellant’s petition for rehearing is denied.

PEÑA, J.

WE CONCUR:

DETJEN, Acting P. J.

SMITH, J.
Filed 3/13/24 P. v. Hasley CA5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GERRELL HASLEY, JR.,

Defendant and Appellant.

F084914

(Super. Ct. No. BF173252A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Charles R. 

Brehmer, Judge.

Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally 

Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooINTRODUCTION

On July 15, 2022, a jury convicted defendant Gerrell Hasley, Jr., of, among other 

offenses, the first degree murder (Pen. Code, §§ 187, subd. (a), 189; count 1) and 
2.

aggravated kidnapping (§ 209, subd. (b); count 3) of Moises Leon.1 (Undesignated 

statutory references are to the Penal Code.) Subsequently, as to count 1, defendant was 

sentenced to an indeterminate term of 25 years to life, and as to count 3, he was 

sentenced to a consecutive indeterminate term of life with the possibility of parole after 

seven years.

On appeal, defendant contends: (1) the trial court prejudicially erred when it 

denied his severance motion and allowed introduction of evidence that he “was in 

possession of another firearm, not the murder weapon, four days after the homicide”

(capitalization omitted); (2) that “[a]side from the accomplice statements and testimonies, 

there is a lack of evidence connecting [him] with the murder itself or with the predicate 

felonies of robbery, kidnapping, and torture”; (3) the trial court prejudicially erred when 

it “improperly failed to instruct that the suspect witnesses were accomplices as a matter 

of law” and when it “instructed that [he] had the burden of proof to show that the 

prosecution witnesses, prime suspects in the robbery murder, were accomplices”; and (4) 

“it was an abuse of discretion for the trial court to impose a consecutive term on Count 

Three” because “[t]here was a single intent and objective to the kidnapping for robbery 

and the murder.”

We conclude, that as to each individual claim, the trial court did not err, nor was 

there insufficient evidence apart from the accomplices’ statements and testimonies. 

Accordingly, we affirm the judgment.

PROCEDURAL HISTORY

On October 10, 2018, the Kern County District Attorney filed an information 

charging defendant with first degree murder (§ 187, subd. (a); count 1) with the allegation 

1Moises Leon also went by the name of Raul Soriano and is referred to as “Raul” 

throughout the record. However, all documents throughout the clerk’s transcript refer to the 

victim as “Moises Leon.” Therefore, we will refer to the victim as “Leon” throughout the 

entirety of this opinion.
3.

the murder was done by one of the following means: (1) destructive device or explosive; 

(2) weapon of mass destruction; (3) armor penetrating ammunition; (4) poison; (5) lying 

in wait; (6) torture; (7) willful, deliberate, and premeditated killing; (8) discharge of a 

firearm from a motor vehicle, intentionally at another person outside the vehicle, with the 

intent to inflict death; or (9) perpetration of, or attempt to perpetrate; arson, rape, 

carjacking, robbery, burglary, mayhem, or kidnapping; torture (§ 189, subd. (a)); torture 

(§ 206; count 2); aggravated kidnapping (§ 209, subd. (b); count 3); robbery (§ 212.5, 

subd. (c); count 4); arson (§ 451, subd. (d); count 5); and unlawful possession of a 

firearm by a felon (§ 29800, subd. (a)(1); count 6).

On July 15, 2022, a jury found defendant guilty on all counts. Subsequently, as to 

count 1, the trial court sentenced defendant to an indeterminate term of 25 years to life. 

As to count 3, the trial court sentenced defendant to an indeterminate term of life with the 

possibility of parole after seven years, to run consecutive to count 1. As to count 5, the 

trial court sentenced defendant to the middle term of two years, to be served consecutive 

to count 3. As to count 6, the trial court sentenced defendant to the term of eight months, 

which is one-third the middle term of three years, to be served consecutive to count 5. As 

to count 2, the trial court sentenced defendant to an indeterminate term of life with the 

possibility of parole after seven years, but stayed the sentence pursuant to section 654. 

As to count 4, the trial court sentenced defendant to the middle term of three years, but 

stayed the sentence pursuant to section 654.2 The total aggregate sentence imposed were 

two indeterminate terms of 25 years to life plus life with the possibility of parole after 

seven years and a determinate term of two years eight months.

2Both the minute order and abstract of judgment incorrectly state defendant was 

sentenced to the lower term of three years. Second degree robbery, of which defendant was 

found guilty, is punishable by “two, three, or five years” in prison (§ 213, subd. (a)(2)).
4.

FACTS

The Prosecution Case-in-Chief

Background

In July 2018, defendant, Seantazz Thomason, Derrick Sutton, and Jamie Reed all 

lived at the Q Street apartment complex in Bakersfield. Alyssa G., a minor, lived with 

Reed. (Derrick Sutton, Jamie Reed, and Alyssa G. testified pursuant to a testimonial 

immunity agreement.) Reed also associated with Leon, and they worked together to steal 

merchandise and resell it at Leon’s store. Reed referred to this practice as “boosting.” 

Leon would give Reed half the cash received from reselling the stolen merchandise.

The Plot to Rob Moises Leon

During the summer of 2018, Reed often observed Leon with large amounts of cash 

on his person. Leon “would always be showing it. He would always say that he had 

enough to buy a car with it if he wanted to buy one, if he saw one. [Reed] always told 

him he needed to keep it in his pocket.” On July 26, 2018, Reed called Sutton and 

suggested “we rob [Leon].” Reed and Sutton decided Reed was “going to call [Leon] 

back to [her] apartment [¶] ... [¶] [and] when he left, that’s—that’s when it would 

happen.” Alyssa G. overheard this conversation and heard Reed explain to Sutton how 

she wanted the robbery to “go down.” Reed was the “mastermind” behind the robbery.

Later on, Thomason approached Sutton and told him “he wanted to get in on the 

robbery.” Sutton told Thomason he “was going to use a BB gun” and he was “just trying 

to make it smooth, just get the money and let [Leon] go.” However, Thomason disagreed 

and told Sutton “he wanted to use real guns,” but Sutton said he “didn’t want to do that.” 

Sutton and Reed had observed Thomason in the past with a firearm.

The Murder of Moises Leon

Later that same night, Reed called Leon and told him “[t]o come back over and to 

hang out with [her] and Alyssa.” (According to Reed, Leon “had a thing for Alyssa.”) 
5.

Leon came over to the apartment and they “discussed [Leon] ... buying some beer and 

coming back to hang out some more.” Leon then left the apartment and Alyssa G.

observed Reed text Sutton it was “go time.” Subsequently, Reed and Alyssa G. heard 

“commotion” outside the apartment door. Reed described hearing “[f]ighting, people 

fighting.” Specifically, she testified she heard “[p]eople, they were like arguing, and 

somebody getting hit. When it was close to [her] door, [she] overheard voices talking 

about taking him to his bank to get money from the bank. Then it faded.” Alyssa G.

testified, “It was just like a lot of movement, like something was hitting the floor or [she] 

heard commotion. That was just it, like banging but like falling to the floor, then [she] 

heard [Leon] at one point.” During this commotion, Leon was heard saying, “‘[Reed], 

help.’” Reed also heard defendant and Thomason say, “‘Let’s take him to the bank.’”

Reed then told Alyssa G. “to go take a shower, and [Reed] started vacuuming.” 

Reed looked out the window and saw Leon’s truck, later identified as a red 2011 

Chevrolet Silverado (Silverado), pull out of the parking lot and exit the apartment 

complex; defendant and Thomason were in the Silverado with the victim. Fifteen

minutes later, Sutton approached Reed and told her “it had gone too far and he didn’t 

want to be involved anymore,” and “that the two gentlemen [defendant and Thomason] 

had left in the [Silverado] with [Leon].”

Later on, Thomason returned to the apartment and told Reed “he jumped out of the 

car when [Leon] got shot.” At another point during the evening, Reed found Leon’s 

white shirt with blood on it outside her front door; she burned the shirt in a pot behind the 

apartment. Reed then returned to the apartment and gave Alyssa G. “a bottle of peroxide 

mixed with bleach” and told her “to go scrub the dried blood off the stairs.” Alyssa G.

saw “[m]aybe like four or five” drops of blood on the stairs.

The next day, Reed observed Thomason holding a pillowcase with something 

wrapped inside. Thomason told her there was a firearm inside the pillowcase, but she 

never personally observed the firearm.
6.

During a police interview, Reed told law enforcement she also observed a firearm 

“she referred to as the ... automatic in a backpack that was brightly colored.” Further,

she told officers “the gun that she saw [Thomason] with that night was a scary gun, 

which was bigger than [one of the interviewing officer]’s gun.” Reed also told officers 

she had observed Thomason “with a sawed-off shotgun before.” Additionally, after 

Reed’s initial contact with law enforcement a few days after the incident, she visited 

defendant at a hotel “[t]o warn him that he needed to—that he needed to go, that he 

needed to try to get away.”

The Subsequent Fire and Murder Investigation

On July 27, 2018, at approximately 3:30 a.m., the fire department responded to a 

vehicle fire on Pacheco Road in Bakersfield. Law enforcement and fire personnel located 

a Silverado parked in a parking stall in an alley with both its rear passenger side door and 

hood open. Fire personnel observed “smoke coming out the windows, [and] fire inside 

the cab.” The fire was located “on the dash[board] of the front passenger side.” Fire 

personnel “brought the hose line to the passenger side and extinguished the rest of the fire 

there.”

3

 Thereafter, they “opened up the back, just to open it up [and] [t]hat’s where 

[they] found the deceased individual,” later identified as Leon.

Leon was observed “laying on his stomach sprawled out” and “did not have a shirt 

on.” There was blood along the back of his head and chest, and “there was also blood on 

the floorboard of the vehicle in the rear.” Leon “had significant burning trauma to the 

front of his body and to his face,” and “[h]e had several injuries on his back that were 

3A fire investigation discovered “torn up pages of a phonebook and some other debris 

that appeared to be from the glove box of the vehicle that had burned and that had also burned 

the carpet below those items.” Arson investigator Victor Mabry testified there “were indeed two 

separate and independent areas of fire, [and] [t]hey were both intentionally set on fire with an 

open flame device, such as a cigarette lighter or a match, and the ordinary combustible items of 

paper, like a telephone book and items in the glove box that [he] found inside.”
7.

readily apparent from the exterior of the vehicle.” He also “had pretty significant 

swelling between his eye and nose,” and “his left shoulder was deformed, dislocated.”

Further, Leon had a bullet wound in his left shoulder, a bullet graze wound on his 

chest and right shoulder, and a bullet graze wound on his left ear near where a bullet 

entered through the base of the skull. A bullet was located inside Leon’s skull, and it was 

determined it was shot into his head behind his left ear and it was “traveling upward 

forward and to the right.” There was “no soot, stippling, nor [was] there any gunpowder 

residue deep within the wound tissue,” which meant the firearm must have been at least 

two to four feet away when fired. It was determined Leon’s body was burned after death. 

Further, it was determined Leon had “been deceased for 2 to 12 hours” before being 

discovered by fire personnel. Pathologist Eugene Carpenter testified the cause of death 

was “[m]ultiple gunshot wounds.”

Physical Evidence Found at the Crime Scene

Law enforcement also investigated the surrounding crime scene. Officers 

searched the Silverado and located “blood on the floorboard of the vehicle in the rear”

and a “transfer of smeared blood on the headrest of the front driver’s and passenger seat.” 

Further, there were “blood transfer patterns on the door handle as well as the door latch,” 

and blood staining on the front driver’s seat and gray center console. In the Silverado’s 

rear bed area “[t]here was a dent with a—what appeared to be the impression of 

[something] being pressed up against it,” and there was a “transfer of blood on the bed.” 

Thomason’s left palm print was located on the driver’s side of the truck.

Officers also located “a bullet projectile ... underneath the headliner or inside the 

headliner.” It was determined “the bullet was traveling from a direction just, in general, 

from the driver’s side toward the passenger side of the vehicle.” However, it was unclear 

whether the bullet was shot from the driver’s seat or the rear driver’s side.
8.

It was stipulated “[t]he spent bullet recovered during the autopsy of ... Leon and 

the two spent bullets located in the red [Silverado] where Mr. Leon’s body was found 

were fired by the same gun; however, none of these three spent bullets were fired by the 

Jimenez Arms .380 gun, which was located on August 1, 2018 in a bag carried by 

[defendant].”

Reed’s Interview with Law Enforcement

Sergeant Robert Pair interviewed Reed for over an hour on July 30, 2018. 

Sergeant Pair received information Reed knew “more than what she was providing during 

the initial interview and wanted the opportunity to speak to her again to see if she would 

be truthful.” Therefore, on July 31, 2018, he interviewed Reed a second time. She 

provided officers with defendant’s telephone number and told officers she observed both 

defendant and Thomason leave in the Silverado. During a photo lineup, Reed identified 

defendant as “Bless-Bless,” one of the individuals involved in the offenses. (Defendant 

went by the nicknames of “Mac,” “For-eva,” and “Bless-Bless.”)

Alyssa G.’s Interview with Law Enforcement

Alyssa G. testified that when she spoke with officers she was using 

methamphetamine and her “state of mind was really messed up.” During the interview, 

Alyssa G. stated she had observed Thomason with a firearm on the night of the murder. 

Initially, Alyssa G. did not believe defendant was involved, however, she changed her 

story and said, “I didn’t know that [defendant] was involved at all. No, I take it back—

not until I heard his voice yelling at him then I knew he was involved.” Reed also told 

Alyssa G. defendant shot Leon and “threw him in the car in the passenger’s seat and set 

the car on fire.”

Defendant’s Arrest and Interview

On August 1, 2018, law enforcement located defendant at a motel on Easton Drive 

after his cell phone was “pinged.” (“An exigent ping is where you can acquire GPS data 
9.

location for the device where it’s being located off the closest tower hit [and] [¶] ... 

[¶] [i]t will give you like a pin of where they believe it’s at.”) Officers arrested defendant 

and he “advised he had a firearm in a bag he was carrying.” Officers seized a “black

trash bag” and inside were “miscellaneous clothing, cosmetic items, and then later a 

firearm.” Specifically, it was a .380 caliber Jimenez firearm – the firearm that was the 

subject of the stipulation. (It was further stipulated defendant had a felony conviction 

prior to July 2018.)

That same day, officers interviewed defendant. Defendant admitted he owned and 

possessed the Jimenez firearm, but denied being inside the Silverado the night of the 

murder.

Subsequent Law Enforcement Investigation

Cell Phone Data

Law enforcement also seized defendant’s cell phone. Kern County District 

Attorney Investigator Brian Canaday testified as an expert in analyzing cell phone data. 

Investigator Canaday analyzed defendant’s cell phone usage and concluded both his cell 

phone and Leon’s cell phone “used the Verizon tower that provides coverage to the Q 

Street area” at 8:21 p.m. and 8:54 p.m. Further, defendant’s cell phone was in the area of 

Pacheco Road in the time frame between 9:50 p.m. and 11:00 p.m. Subsequently, at 

12:54 a.m. and 12:55 a.m., defendant’s cell phone was still in the same area of Pacheco 

Road. Finally, on July 27, 2018, at 1:21 a.m. and 1:34 a.m., defendant’s cell phone 

received a call from Sutton.

Forensic Evidence

Criminalist Garett Sugimoto was assigned to the Kern Regional Crime Laboratory

and worked as a DNA analyst. Sugimoto analyzed DNA from swabs taken at the crime 

scene. Although defendant was excluded from the DNA profile found at the interior rear 

driver-side door and the interior rear passenger-side door, he could not be excluded from 
10.

DNA profiles found on the interior and exterior front passenger-side door handles on the 

Silverado. Specifically, as to the front passenger-side door handle, “for the AfricanAmerican population ..., it would be 31 sextillion times more likely that it’s [defendant] 

than a coincidental match to an unrelated person.”

Thomason’s Trial Testimony

Thomason and defendant were tried together; however, each had a separate jury. 

(Thomason filed a separate notice of appeal, which we address in case No. F084809.)

Thomason testified he was working on his car when he “heard a bunch of 

commotion over by ... Reed’s house, and then they were over there fighting and stuff.” 

He observed defendant, “[defendant’s] supposed[] street dad[,]” Sutton, and Leon 

fighting. Defendant then forced Leon into the Silverado. Subsequently, defendant got in 

the driver’s seat, defendant’s “street dad” in the front passenger seat, and Leon into the 

rear passenger seat of the Silverado. Thomason acknowledged previously telling officers 

Sutton was the front passenger, but testified he was mistaken.

After observing Leon being forced into the Silverado, Thomason entered the rear 

driver’s seat of the Silverado next to Leon “[t]o defuse the situation, to try to defuse the 

situation.” Leon had blood coming “[f]rom his head” and “[h]e was swollen in the face 

at the time.” Defendant and Leon started arguing about money and “[t]hat’s when [Leon] 

took out his wallet, and [Thomason] showed [defendant]. Look, [defendant] there’s no 

money in here.” Defendant and Leon started “grabbing hands” and fighting on the center 

console area. At this point, Thomason observed defendant shoot Leon three times from 

the driver’s seat. Subsequently, Thomason told defendant, “[D]rop me off. I don’t want 

to be in this vehicle, you know. I don’t know what the heck is going on, and that’s when 

[Thomason] had got dropped off” at Panama Lane where his wife eventually picked him 

up. Thomason then got rid of his clothes because they were covered in blood. Thomason 

further testified he never owned nor possessed any firearms.
11.

Defendant did not testify in his defense. However, in support of his defense 

argument he lacked the motive to steal Leon’s money, the parties stipulated, “[Defendant] 

received a tax refund in the amount of $7,500 in May of 2018 and disability backpay in 

the amount of $2,700 on June 30, 2018, and an additional amount of disability backpay in 

the amount of $700 on July 3, 2018.”

DISCUSSION

I. The Trial Court Properly Denied Defendant’s Severance Motion as to the 

Felon in Possession of a Firearm Charge (Count 6)

Defendant contends the trial court prejudicially erred when it denied his severance 

motion and allowed introduction of evidence that he “was in possession of another 

firearm, not the murder weapon, four days after the homicide.” (Capitalization omitted.)

A. Additional Factual Background

The information charged defendant with being a felon in possession of a firearm 

(§ 29800, subd. (a)(1); count 6) on July 27, 2018. Trial counsel filed a “Motion to Sever 

Count Six from Counts One Through Five” pursuant to section 954. Specifically, trial 

counsel argued “Count 6 is not connected together in its commission with Counts 1–5,” 

and “[e]vidence that [defendant] allegedly possessed a firearm on August 1, 2018, ... will 

cause jurors to be more inclined to improperly infer criminality on the part of defendant, 

and convict on the other very serious and distinctly different life-exposure counts alleged 

in Counts 1–5.”

At the motions in limine, the prosecutor argued that count 6 “should be allowed to 

remain within the charge [¶] ... [¶] [because] it’s extremely relevant as it relates 

specifically to the felony murder.” After further argument, the trial court stated its ruling 

as follows:

“Okay. First, under [section] 954, I think the elements can be met 

by the prosecution. [Evidence Code section] 352 always is the final 

analysis to do. It sounds like the firearm is relevant, not forensically, but 

based on the changes of the law in felony murder.
12.

“In regard to the concern of felon in possession, I believe that can be 

sanitized. I just did it in a trial right before this so that he was not allowed 

to legally possess the firearm, something like that. If there’s an agreement 

to that and a stipulation to that, which would then require [defendant] to 

make a determination whether he wanted to admit that prior for that 

purpose or not outside the presence of the jury. So that can be addressed.

“I believe that the prior conviction is—although it’s always in 

dispute, is not really in dispute so that a sanitized version could be provided 

to the jury that would be less prejudicial and indicates simply that he was 

not allowed to possess the firearm, which would then not address a prior 

felony unless, of course, he testifies, then that might be relevant for 

impeachment purposes. [¶] ... [¶]

“... Okay. I’m not going to sever Count 6. My tentative was to 

sever, but I’ve changed that thought for the reasons I stated. I am 

amendable [sic] and I think it would be helpful, if [defendant] is amendable

[sic] to it, to address how to—I mean, not sanitize but make a little less 

prejudicial the fact that he was not to possess a firearm before. Of course, 

if [defendant] testifies, that’s fair game to be used as a prior felony 

conviction because it would go to credibility.”

Subsequently, the trial court instructed the jury that, even if another person 

committed the act resulting in death, defendant could still be found guilty of first degree 

of murder if:

“1. The defendant committed, or attempted to commit, or aided and 

abetted kidnapping, robbery, or attempted robbery;

“2. The defendant intended to commit, or intended to aid and abet 

the perpetrator in committing kidnapping, robbery, or attempted robbery;

“3. If the defendant did not personally commit kidnapping, robbery, 

or attempted robbery, then a perpetrator, whom the defendant was aiding 

and abetting committed or attempted to commit kidnapping, robbery, or 

attempted robbery;

“4. While committing kidnapping, robbery, or attempted robbery, 

the perpetrator caused the death of another person;

“5. The defendant was a major participant in the kidnapping, 

robbery, or attempted robbery; AND
13.

“6. When the defendant participated in the kidnapping, robbery, or 

attempted robbery he acted with reckless indifference to human life. [¶] ...

[¶]

“A person acts with reckless indifference to human life when he or 

she knowingly engages in criminal activity that he or she knows involves a 

grave risk of death.

“When you decide whether the defendant acted with reckless 

indifference to human life, consider all the evidence. No one of the 

following factors is necessary, nor is any one of them necessarily enough, 

to determine whether the defendant acted with reckless indifference to 

human life. Among the factors you may consider are:

“• Did the defendant know that a lethal weapon would be present 

during the kidnapping, robbery, or attempted robbery[?]

“• Did the defendant know that a lethal weapon was likely to be used?

“• Did the defendant know that a lethal weapon was used?

“• Did the defendant know the number of weapons involved?

“• Was the defendant near the person killed when the killing occurred?

“• Did the defendant have an opportunity to stop the killing or to help 

the victim?

“• How long did the crime last?

“• Was the defendant aware of anything that would make a 

coparticipant likely to kill?

“• Did the defendant try to minimize the possibility of violence?

“When you decide whether the defendant was a major participant, 

consider all the evidence. No one of the following factors is necessary, nor 

is any one of them necessarily enough, to determine whether the defendant 

was a major participant. Among the factors you may consider are:

“• What was the defendant’s role in planning the crime that led to the 

death?

“• What was the defendant’s role in supplying or using lethal weapons?
14.

“• What did the defendant know about dangers posed by the crime, any 

weapons used, or past experience or conduct of the other 

participants?

“• Was the defendant in a position to facilitate or to prevent the death?

“• Did the defendant’s action or inaction play a role in the death?

“• What did the defendant do after lethal force was used?” (Italics in 

original)

With regard to the firearm possession, the prosecutor argued the following:

“[Defendant] was found with a firearm. Felon in possession. He 

admitted to having it for over a month. It’s a .380. Based on his testimony, 

he possessed that firearm the day of the incident.

“Is there any evidence that he had it on his person? He said he had it 

for protection. Why wouldn’t he have it on his person? Did he use it to 

shoot? No, but he did possess a firearm that day, that being July 27, 2018. 

This is the instruction again. Possession for a prior conviction of a felony. 

Know that you have a gun and possessed the gun.”

The prosecutor continued:

“[Defendant] was involved in the beating outside of the truck, in the 

truck. You see the blood smeared on the front console area. The beating 

happened all over the place. He’s involved in it. He has to change his 

clothes. He has to cover up the scene and burn it.

“Intentional act, he was involved in the intentional act, intentional 

violence. Ultimately, did he fire the fatal shot? No, but what he did is 

dangerous to human life. He’s an aider and abett[o]r to second degree 

murder. He’s also guilty as it relates to felony murder. I won’t go through 

the other one. I’ll focus on felony murder.

“Major participant with a reckless indifference for human life. 

What’s the desire for everybody that day—Jamie Reed, Alyssa G[.], 

Derrick Sutton, [defendant], and Seantazz Thomason—was to rob Moises 

Leon. That was the intent. But all the evidence shows, back of the seat 

torn off, wallet thrown out, words of the witnesses, but that’s what the 

intent was.

“That’s why [defendant] was in the car. Reckless indifference to 

human life, great risk of death. Again the sheer magnitude of the violence 
15.

that was inflicted on Mr. Leon. Lethal weapons were present. These 

weapons were out and about. He possessed a firearm that day. 

Opportunity to stop the killing, did nothing.

“Tried to cover up the crime, length of the crime. Five minutes, ten 

minutes, it went on and on. Anything that would make a coparticipant 

likely to kill? Again, if someone is being pistol whipped, prodded with a 

gun, beaten, shoulder dislocated, your collarbone separated, any reasonable 

person would know.

“Tried to minimize the possibility of violence? No. [Defendant] 

acted with a reckless indifference for human life during the course of that 

incident. Role in the planning of the crime, they’re all involved. Again, 

think about the people in the boat with the fishing poles. What they do 

after can point back to what the agreement was. Going through the wallet, 

tearing seats apart. What does that point to the agreement being?

“The dangers posed by the crime. These are all seen in the blood 

and injuries. Position to facilitate or prevent death. He was and he did 

nothing, did nothing. Drove him around, drove the dead body all the way 

across town. I mean, think about how many hospitals they passed going 

south. Think about it. Guy shot three times in the car and is bleeding 

everywhere. How many hospitals did they go by?

“Action or inaction play a role in the death. Absolutely, his action 

did. What did the defendant do after lethal force was used? Tried to cover 

up the crime. He lied to police, went away from his residence where he 

was staying, started staying in a motel somewhere. Major participant in 

this crime and he acted with reckless indifference.”

B. Applicable Law

Section 954 provides in part, “An accusatory pleading may charge two or more 

different offenses connected together in their commission, or different statements of the 

same offense or two or more different offenses of the same class of crimes or offenses, 

under separate counts.” The trial court “in the interests of justice and for good cause 

shown, may in its discretion order that the different offenses or counts set forth in the 

accusatory pleading be tried separately or divided into two or more groups and each of 

said groups tried separately.” (Ibid.)
16.

We review the denial of a motion to sever for abuse of discretion. (Alcala v. 

Superior Court (2008) 43 Cal.4th 1205, 1220.) “‘The state’s interest in joinder gives the 

court broader discretion in ruling on a motion for severance than it has in ruling on 

admissibility of evidence.’” (Id. at p. 1221.)

“Because it ordinarily promotes efficiency, joinder is the preferred course of 

action. When the statutory requirements are met, joinder is error only if prejudice is 

clearly shown.” (People v. Scott (2011) 52 Cal.4th 452, 469.) “‘“[I]f the evidence 

underlying the offenses in question would be ‘cross-admissible’ in separate trials of other 

charges, that circumstance normally is sufficient, standing alone, to dispel any prejudice 

and justify a trial court’s refusal to sever the charged offenses.”’” (Id. at p. 470.)

If the evidence is not cross-admissible, “we next inquire ‘whether the benefits of 

joinder were sufficiently substantial to outweigh the possible “spill-over” effect of the 

“other-crimes” evidence on the jury in its consideration of the evidence of defendant’s 

guilt of each set of offenses.’ [Citations.] We consider ‘[1] whether some of the charges 

are likely to unusually inflame the jury against the defendant; [2] whether a weak case 

has been 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 [3] whether one of the charges is a 

capital offense, or the joinder of the charges converts the matter into a capital case.’ 

[Citation.] ‘We then balance the potential for prejudice to the defendant from a joint trial 

against the countervailing benefits to the state.’” (People v. Thomas (2012) 53 Cal.4th 

771, 798–799.)

C. Analysis

“‘“[T]he first step in assessing whether a combined trial [would have been] 

prejudicial is to determine whether evidence on each of the joined charges would have 

been admissible, under Evidence Code section 1101, in separate trials on the others.”’” 

(People v. Jenkins (2000) 22 Cal.4th 900, 948, quoting People v. Bradford (1997) 15 
17.

Cal.4th 1229, 1315–1316.) In other words, the cross-admissibility of the evidence is 

sufficient to negate prejudice without any further showing. (People v. Jenkins, at p. 948.) 

However, the absence of cross-admissibility, by itself, is insufficient to demonstrate 

prejudice. (People v. Memro (1995) 11 Cal.4th 786, 850.)

Here, the People argue “the evidence at issue would have been cross-admissible in 

separate trials because [¶] ... [¶] [defendant’s] possession of a firearm four days after the 

murder was relevant to demonstrate his knowledge and use of weapons.” We disagree. 

Although a “‘defendant’s awareness that a gun ... will be used,’ whether the defendant 

personally used a lethal weapon, and the number of lethal weapons used” is relevant to 

proving an individual acted with reckless indifference to human life (In re Harper (2022) 

76 Cal.App.5th 450, 460, quoting People v. Clark (2016) 63 Cal.4th 522, 618–622), the 

mere possession of a firearm, not used by the defendant during the target offenses and 

possessed several days after the offenses had already concluded, is hardly relevant to 

prove reckless indifference to human life as to the felony murder. (See People v. Osuna

(2014) 225 Cal.App.4th 1020, 1038 [holding that being a felon in possession of a firearm 

is considered a nonviolent and nonserious offense], disapproved of on other grounds in 

People v. Frierson (2017) 4 Cal.5th 225, 240, fn. 8; see People v. White (2014) 223 

Cal.App.4th 512, 524 [“Thus, while the act of being armed with a firearm—that is, 

having ready access to a firearm [citation] —necessarily requires possession of the 

firearm, possession of a firearm does not necessarily require that the possessor be armed 

with it” (italics added)].) Accordingly, the evidence surrounding defendant’s possession 

of a firearm (count 6) was not cross-admissible.

However, the absence of the cross-admissibility factor is not dispositive. (People 

v. Memro, supra, 11 Cal.4th at p. 850.) “In the absence of cross-admissibility, we turn to 

the remaining factors to assess whether the trial court abused its discretion.” (People v. 

Simon (2016) 1 Cal.5th 98, 123–124.) First, joinder of the felon in possession of a 

firearm charge (count 6) with the remaining charges was not “‘likely to unusually inflame 
18.

the jury against the defendant.’” (People v. Thomas, supra, 53 Cal.4th at pp. 798–799.) 

As noted above, the facts surrounding the kidnapping, robbery, torture, and murder were 

heinous. Defendant aided and abetted Thomason in robbing and torturing Leon, and 

ended up burning the Silverado and Leon’s body after Thomason shot and killed him in 

cold blood. As it relates to the firearm charge, the People introduced evidence that: (1) 

defendant was found with a .380-caliber Jimenez firearm located in a trash bag he was 

carrying several days after the offenses concluded; (2) none of the bullets found at the 

crime scene “were fired by the Jimenez Arms .380 gun”; and (3) defendant had a felony 

conviction prior to 2018. Based on the severity of the kidnapping, robbery, torture, and 

murder offenses, the gun possession evidence was not likely to inflame the jury. Indeed, 

during his argument to the jury, the prosecutor never once mentioned the gun possession 

evidence in support of finding defendant guilty of first degree murder.

Second, although unclear, it appears defendant contends the possession charge was 

used to buttress a weak felony-murder case. To demonstrate the potential for a 

prejudicial spill-over effect, a defendant must show an “extreme disparity” in the strength 

or inflammatory character of the evidence. (Belton v. Superior Court (1993) 19 

Cal.App.4th 1279, 1284.) “The core prejudice concern arising in connection with this 

[factor] is that jurors may aggregate evidence and convict on weak charges that might not 

merit conviction in separate trials.” (People v. Simon, supra, 1 Cal.5th at p. 127.) 

However, the concerns outlined in Simon are not present in this case because the 

evidence against defendant demonstrating his guilt was overwhelming. Defendant was 

seen leaving with Thomason and Leon in the Silverado where Leon was then beaten, 

tortured, and murdered; there was evidence demonstrating defendant may have been both 

the shooter and the individual who burned the Silverado with Leon inside; defendant’s 

cell phone was used in the area of Pacheco Road—the same area where the burned 

Silverado was located; and defendant’s DNA was found inside the Silverado, 

demonstrating he was in the vehicle when Leon was tortured and murdered.
19.

Finally, none of the counts alleged against defendant was a capital charge. Here, 

other than the lack of cross-admissibility, the other three factors to be considered do not 

weigh in favor of a prejudice finding. Therefore, it was reasonable for the trial court to 

conclude that trying both the July 27, 2018, charges and the August 1, 2018, firearm 

possession charge (count 6) together would not be unduly prejudicial to defendant when 

balanced against the benefits to the state of joinder.

II. There Was Sufficient Evidence to Corroborate the Accomplices’ Testimony

Defendant further contends that “[a]side from the accomplice statements and 

testimonies, there is a lack of evidence connecting [him] with the murder itself or with 

the predicate felonies of robbery, kidnapping, and torture.”

A. Applicable Law

Section 1111 states: “A conviction can not 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.” This statute 

reflects the Legislature’s determination that “‘because of the reliability questions posed 

by’” accomplice testimony, such testimony “‘by itself is insufficient as a matter of law to 

support a conviction.’” (People v. Najera (2008) 43 Cal.4th 1132, 1137, quoting People 

v. Cuevas (1995) 12 Cal.4th 252, 261.) “Thus, for the jury to rely on an accomplice’s 

testimony about the circumstances of an offense, it must find evidence that, ‘“without aid 

from the accomplice’s testimony, tend[s] to connect the defendant with the crime.”’” 

(People v. Romero and Self (2015) 62 Cal.4th 1, 32.)

We review de novo whether an accomplice’s testimony was sufficiently 

corroborated. (People v. Pedroza (2014) 231 Cal.App.4th 635, 650.) Such evidence 

must tend to connect the defendant with the commission of the offense, but it does not 

need to corroborate every fact to which the accomplice testified. (§ 1111; People v. 
20.

Perez (2018) 4 Cal.5th 421, 452.) Corroborating evidence may be circumstantial or 

slight, and it is entitled to little consideration when standing alone. (Id. at p. 453.) “The 

evidence ‘is sufficient if it tends to connect the defendant with the crime in such a way as 

to satisfy the jury that the accomplice is telling the truth.’” (People v. Lewis (2001) 26 

Cal.4th 334, 370.) The evidence must be viewed in the light most favorable to the 

judgment, and witness credibility is not considered. (People v. Pedroza, at p. 650.)

B. Analysis

Here, defendant argues he “was convicted exclusively by means of accomplice 

testimony,” specifically, testimony by Alyssa G., Reed, Thomason, and Sutton. Although 

the accomplice testimony provided substantial evidence of defendant’s guilt, it was not 

the only evidence of guilt presented in this case. The prosecutor introduced evidence 

establishing that both defendant’s and Leon’s cell phones “used the Verizon tower that 

provides coverage to the Q Street area” at 8:21 p.m. and 8:54 p.m.—the area where Leon 

was first forced into the Silverado. Subsequently, between 9:50 and 11:00 p.m., 

defendant’s cell phone utilized a tower that provided coverage to Pacheco Road—the 

area where the Silverado was later found burned with Leon’s body inside. Defendant’s 

phone was still utilizing this tower at 12:54 and 12:55 a.m., which corroborated 

Thomason’s testimony he was involved throughout the entire series of events.

Additionally, the prosecutor introduced DNA evidence, which established that 

defendant’s DNA could not be excluded from the profiles found on the interior and 

exterior front passenger-side door handles of the Silverado. This corroborated the 

accomplices’ testimonies defendant was inside the Silverado at the time of the 

kidnapping, robbery, torture, and murder. Nonetheless, defendant argues that 

“[r]egardless of when the DNA was deposited, [his] DNA did not prove [he] ever 

touched the door handle [because] [t]he DNA was just as likely to have come from a 

skin-to-skin transfer with [Leon], such as by shaking hands.” Although this may have 
21.

been a reasonable inference from the evidence, the jury could have also believed the 

presence of defendant’s DNA inside the Silverado made it likely defendant was inside the 

vehicle and was a major participant of the robbery and torture. (People v. Perez, supra, 4 

Cal.5th at p. 452 [holding that corroborating evidence may be circumstantial or slight].) 

Accordingly, both the cell phone and DNA evidence corroborated Thomason’s, Reed’s, 

Alyssa G.’s, and Sutton’s testimonies as to defendant’s involvement in the underlying 

offenses.

III. CALCRIM No. 334

Defendant further contends the trial court prejudicially erred when it: “improperly 

failed to instruct that the suspect witnesses were accomplices as a matter of law;” and (2) 

“improperly instructed that [he] had the burden of proof to show that the prosecution 

witnesses, prime suspects in the robbery murder, were accomplices.”

A. Additional Factual Background

During the jury instruction conference, the trial court stated that in regards to 

Thomason, Sutton, Reed, and Alyssa G., it would instruct the jury on CALCRIM 

No. 334. There was no objection. Subsequently, the jury was instructed with CALCRIM 

No. 334 as follows:

“Before you may consider the statement or testimony of Jamie Reed, 

Alyssa G[.], Dereck [sic] Sutton, and Seantazz Thomason as evidence 

against the defendant, you must decide whether Jamie Reed, Alyssa G[.], 

Dereck [sic] Sutton, and Seantazz Thomason were accomplices. A person 

is an accomplice if he or she is subject to prosecution for the identical crime 

charged against the defendant. Someone is subject to prosecution if:

“1. He or she personally committed the crime;

“OR

“2. He or she knew of the criminal purpose of the person who 

committed the crime;

“AND
22.

“3. He or she intended to, and did in fact, aid, facilitate, promote, 

encourage, or instigate the commission of the crime or participate in a 

criminal conspiracy to commit the crime.

“The burden is on the defendant to prove that it is more likely than 

not that Jamie Reed, Alyssa G[.], Derek [sic] Sutton, and Seantazz 

Thomason were accomplices.

“An accomplice does not need to be present when the crime is 

committed. On the other hand, a person is not an accomplice just because 

he or she is present at the scene of a crime, even if he or she knows that a 

crime will be committed or is being committed and does nothing to stop it.

“A person may be an accomplice even if he or she is not actually 

prosecuted for the crime.

“If you decide that a declarant or witness was not an accomplice, 

then supporting evidence is not required and you should evaluate his or her 

statement or testimony as you would that of any other witness.

“If you decide that a declarant or witness was an accomplice, then 

you may not convict a defendant of All Crimes Except Count 6 alleged 

ONLY against [defendant], based on his or her statement or testimony 

alone. You may use a statement or testimony of an accomplice that tends 

to incriminate the defendant to convict the defendant only if:

“1. The accomplice’s statement or testimony is supported by other 

evidence that you believe;

“2. That supporting evidence is independent of the accomplice’s 

statement or testimony;

“AND

“3. That supporting evidence tends to connect the defendant to the 

commission of the crime.

“Supporting evidence, however, may be slight. It does not need to 

be enough, by itself, to prove that the defendant is guilty of the charged 

crime, and it does not need to support every fact mentioned by the 

accomplice in the statement or about which the accomplice testified. On 

the other hand, it is not enough if the supporting evidence merely shows 

that a crime was committed or the circumstances of its commission. The 

supporting evidence must tend to connect the defendant to the commission 

of the crime.
23.

“The evidence needed to support the statement or testimony of one 

accomplice cannot be provided by the statement or testimony of another 

accomplice.

“Any statement or testimony of an accomplice that tends to 

incriminate the defendant should be viewed with caution. You may not, 

however, arbitrarily disregard it. You should give that statement or 

testimony the weight you think it deserves after examining it with care and 

caution and in the light of all the other evidence.”

Subsequently, after the trial court instructed the jury, the following exchange 

occurred between the trial court and the prosecutor:

“[PROSECUTOR]: Your Honor, just a brief issue if I could raise it. I 

don’t know if the Court wants me to do it off the record.

“THE COURT: No. Let’s do it on the record.

“[PROSECUTOR]: My only concern is [CALCRIM No.] 334, the 

accomplice instruction. I believe that there’s no dispute but the Court gave 

[CALCRIM No.] 334. The portion where it said the burden is on the 

defendant to prove it is more likely than not that Jamie Reed, Alyssa G[.], 

Derrick Sutton, and Seantazz Thomason were accomplices.

“I’m just concerned with the verbiage of that places a burden on the 

defendants. So when it was read, it kind of piqued my interest. They don’t 

have the burden in this case, but that sentence places an element of a 

burden, especially when it’s bringing up Mr. Thomason, who is a defendant 

in this case. I just had a concern about that particular line.

“THE COURT: It’s true. It’s the law.

“[PROSECUTOR]: I understand. I just have concerns with that. I 

wanted to raise that concern that may be something we can address 

tomorrow or I’ll research tonight to see. Like I said, I had requested the 

other instruction.

“THE COURT: Well, I know you did, but there wasn’t an agreement 

that Mr. Thomason was an accomplice, hence [CALCRIM No.] 334. So I 

can just reiterate to both juries that there’s no burden upon either defendant 

to prove they’re not guilty.

“[PROSECUTOR]: Okay.

“THE COURT: Does that address it?
24.

“[PROSECUTOR]: Yes.

“THE COURT: Okay.”

The following day and immediately before closing arguments, the trial court 

reminded the jury as follows:

“Just to remind you, [defendant] and [trial counsel] on his behalf, they 

don’t have to prove that [defendant] is not guilty. The burden, and the sole 

burden, rests with the prosecutor .... I think you know that, but just to 

remind you of that, and the burden is beyond a reasonable doubt.”

B. The Trial Court Properly Instructed the Jury with CALCRIM No. 334

First, defendant argues “it was error [by the trial court] to fail to read CALCRIM 

No. 335 on accomplices as a matter of law” because “[w]ithout CALCRIM No. 335 there 

can be no assurance that [he] was not convicted on the uncorroborated testimony of one 

or more accomplices.”

1. Forfeiture

Generally, a “[f]ailure to object to instructional error forfeits the issue on appeal 

unless the error affects defendant’s substantial rights” (People v. Anderson (2007) 152 

Cal.App.4th 919, 927), or “if the instruction was an incorrect statement of the law”

(People v. Campbell (2020) 51 Cal.App.5th 463, 495). Although both parties concede 

trial counsel made no objection to CALCRIM No. 334, defendant argues no objection 

was required because his “substantial rights” were affected. As we discuss in detail 

below, CALCRIM No. 334 did not affect defendant’s substantial rights, nor was it an 

incorrect statement of the law. Therefore, defendant forfeited this instructional error 

claim on appeal. However, even if we assume the claim was properly preserved on 

appeal, the claim still fails on its merits.

2. Applicable Law

“Whether someone is an accomplice is ordinarily a question of fact for the jury; 

only if there is no reasonable dispute as to the facts or the inferences to be drawn from the 

facts may a trial court instruct a jury that a witness is an accomplice as a matter of law.” 
25.

(People v. Valdez (2012) 55 Cal.4th 82, 145–146; see People v. Fauber (1992) 2 Cal.4th 

792, 833–834; People v. Tewksbury (1976) 15 Cal.3d 953, 960.) “The Bench Notes to 

CALCRIM No. 335 are in accordance with this statement of the law and, in no uncertain 

terms, advise that a trial court should: ‘Give this instruction only if the court concludes 

that the witness is an accomplice as a matter of law or the parties agree about the 

witness’s status as an accomplice. [Citations.] If there is a dispute about whether the 

witness is an accomplice, give CALCRIM No. 334.’” (People v. Johnson (2016) 243 

Cal.App.4th 1247, 1269.)

We review a claim for instructional error de novo. (People v. Posey (2004) 32 

Cal.4th 193, 218.) “In reviewing a claim of instructional error, the court must consider 

whether there is a reasonable likelihood that the trial court’s instructions caused the jury 

to misapply the law in violation of the Constitution.” (People v. Mitchell (2019) 7 

Cal.5th 561, 579.) We consider the challenged instruction “in the context of the 

instructions as a whole and the trial record to determine whether there is a reasonable 

likelihood the jury applied the instruction in an impermissible manner.” (People v. 

Houston (2012) 54 Cal.4th 1186, 1229.)

3. Analysis

Here, the trial court correctly instructed the jury it had to determine whether 

Thomason, Reed, Alyssa G., and Sutton were accomplices pursuant to CALCRIM 

No. 334, rather than instructing they were accomplices as a matter of law pursuant to 

CALCRIM No. 335. “‘[P]roof of [direct] aider and abettor liability requires proof in 

three distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by the 

direct perpetrator, (b) the aider and abettor’s mens rea—knowledge of the direct 

perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and 

(c) the aider and abettor’s actus reus—conduct by the aider and abettor that in fact assists 

the achievement of the crime.’” (People v. Pacheco (2022) 76 Cal.App.5th 118, 127, 
26.

quoting People v. Perez (2005) 35 Cal.4th 1219, 1225.) “[W]here there is no direct 

evidence that a witness acted with the requisite knowledge and intent, the witness is not 

an accomplice as a matter of law.” (People v. Gonzalez (2016) 246 Cal.App.4th 1358, 

1375; see, e.g., People v. Carrasco (2014) 59 Cal.4th 924, 969 [witness not an 

accomplice as matter of law although he accompanied the defendant to the crime scene 

and helped the defendant escape after the murder, where the witness denied knowledge of 

and intent to assist the defendant in committing the robbery and claimed the defendant 

forced him to assist in the escape]; People v. Valdez, supra, 55 Cal.4th 82, 146–147 

[witness was not an accomplice as a matter of law despite evidence he drove the 

perpetrators to the crime location after being told by the perpetrators that they had to go 

there “‘to take care of something,’” which the witness understood to mean assault or kill 

someone]; People v. Williams (2008) 43 Cal.4th 584, 637 [witness was not an accomplice 

as a matter of law where he denied having the intent to further the defendant’s criminal 

purpose and claimed to be present with the defendant for another reason]; People v. 

Stankewitz (1990) 51 Cal.3d 72, 90 [presence at the scene of a crime or failure to prevent 

its commission insufficient to establishing aiding and abetting].)

First, as to Thomason, in the typical situation, it would have been reversible error 

for the trial court to instruct the jury he was an accomplice as a matter of law because the 

court “would, in effect, be instructing the jury that the codefendant was guilty of the 

offenses charged, thereby invading the province of the jury with respect to the 

determination of [his or] her guilt or innocence.” (People v. Valerio (1970) 13 

Cal.App.3d 912, 924.) Thus, it was incumbent on defendant’s counsel to argue why such 

an instruction would not constitute error in his case.

Second, as to Alyssa G. and Reed, there is no evidence they possessed any 

knowledge of Thomason’s and defendant’s unlawful purposes. Although the record 

shows Reed concocted the plan to rob Leon, and Alyssa G. aided Reed in this plan, there 

is no evidence they were aware of Thomason’s and defendant’s involvement in the 
27.

robbery until after the offenses were already in motion. Further, there is no evidence they 

were aware of the kidnapping, torture, or murder.

Finally, although Thomason approached Sutton to involve himself in the robbery 

and told Sutton he wanted to use real firearms, Thomason testified he was unaware of the 

plans to rob Leon, never spoke with Sutton, and instead involved himself in the 

altercation to try and “defuse” the situation. Because of this conflicting evidence, 

Sutton’s status as an accomplice was disputed. Accordingly, the trial court properly 

instructed the jury with CALCRIM No. 334 as to Thomason, Reed, Alyssa G., and 

Sutton.

C. No Prejudice

However, even if we assume the trial court erred by not instructing the jury with 

CALCRIM No. 335, any error was harmless. Our Supreme Court has held it is state-law 

error when a trial court fails to instruct a jury regarding consideration of accomplice 

testimony and, as a result, a reviewing court must evaluate whether it is reasonably 

probable that such error affected the verdict. (People v. Williams (2010) 49 Cal.4th 405, 

456; People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) First, the full context of the jury 

instructions minimized any potential prejudice from CALCRIM No. 334. (People v. 

Houston, supra, 54 Cal.4th at p. 1229.) At the outset, CALCRIM No. 334 instructed the 

jury that “[i]f you decide that a declarant or witness was an accomplice, then you may not 

convict a defendant ... based on his or her statement or testimony alone,” and that “[a]ny 

statement or testimony of an accomplice that tends to incriminate the defendant should be

viewed with caution ... [and] [y]ou should give that statement or testimony the weight 

you think it deserves after examining it with care and caution and in the light of all the 

other evidence” (CALCRIM No. 334). Further, the jury was properly instructed on how 

to evaluate Thomason’s, Reed’s, Alyssa G.’s, and Sutton’s testimony (CALCRIM 
28.

No. 226 [Witnesses]; CALCRIM No. 302 [Evaluating Conflicting Evidence]; CALCRIM 

No. 318 [Prior Statements as Evidence]).

Second, as we discussed in detail ante, the evidence sufficiently corroborated 

Thomason’s, Reed’s, Alyssa G.’s, and Sutton’s testimony. Lastly, any presumed error in 

providing the jury with CALCRIM No. 334 was further mitigated by the prosecutor when 

he consistently referred to the other participants to the robbery as accomplices throughout 

his closing arguments. The record discloses there was no real dispute between defendant 

and the prosecution regarding the status of the participants as accomplices. 

Consequently, assuming it was error to instruct the jury pursuant to CALCRIM No. 334 

instead of with CALCRIM No. 335, it was harmless because it is not reasonably probable 

defendant would have received a more favorable result absent the assumed error.

D. CALCRIM No. 334 Did Not Improperly Shift the Burden of Proof to 

Defendant

Finally, defendant argues “it was error to instruct that [he] had the burden of proof 

to show accomplice status [because] [¶] ... [¶] [s]hifting the burden to [him] in these 

circumstances was a violation of Due Process.”

“California law permits placing the burden to prove the accomplice status of a 

witness on a defendant. ([People v. ]Tewksbury, supra, 15 Cal.3d at pp. 963–968.) This 

is because whether a witness is an accomplice is collateral to the defendant’s guilt or 

innocence. (Id. at pp. 964–968.) It is an issue that need not be established to prove an 

element of the defendant’s crime. (Id. at p. 965.) CALCRIM No. 334’s instruction that a 

defendant must prove, by a preponderance of the evidence, a witness’s status as an 

accomplice thus, in general, correctly states the law. (People v. Frye (1998) 18 Cal.4th 

894, 967–969 ... [upholding predecessor to CALCRIM No. 334], disapproved on another 

ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)” (People v. Martinez

(2019) 34 Cal.App.5th 721, 729.) Because the issue of “whether a witness is an 

accomplice is collateral to the defendant’s guilt or innocence” (ibid.), it was not error for 
29.

the trial court to instruct the jury with CALCRIM No. 334, nor did it deprive defendant of 

due process.

We also reject defendant’s alternative contention his trial counsel was ineffective 

for failing to object to CALCRIM No. 334. “Because we have addressed the merits of 

the underlying contentions and have concluded, above, that the actions at issue were not 

erroneous or improper, that the instruction[] [was] not warranted, or that any alleged error 

was not prejudicial, defendant’s related claim[] of ineffective assistance of counsel fail[s] 

and do[es] not require further discussion.” (People v. Ledesma (2006) 39 Cal.4th 641, 

748.)

IV. The Trial Court Properly Sentenced Defendant to a Consecutive Life Term 

for Kidnapping for Robbery.

Lastly, defendant contends “it was an abuse of discretion for the trial court to 

impose a consecutive term on Count Three” because “[t]here was a single intent and 

objective to the kidnapping for robbery and the murder.”

A. Additional Factual Background

At the sentencing hearing, the following brief exchange occurred between trial 

counsel and the trial court:

“[DEFENSE COUNSEL:] Also, as far as Count 3, the kidnap to 

commit robbery, I would ask for the Court to consider running that 

concurrent to Count 1 rather than consecutive. It was during the course of 

the kidnapping to commit robbery that Count 1 occurred. So the acts were 

not independent of each other. It’s the same time, same place, and I would 

submit with that.

“THE COURT: Okay. Thank you. [¶] I suppose none of us really 

know, maybe [defendant] knows. None of us know the exact sequence of 

events as far as kidnapping to commit robbery then the killing of the victim. 

The kidnapping to commit robbery obviously started first; otherwise, there 

would not have been a victim alive in the car, and we had testimony that he 

was.

“So I think it is okay and proper to run that kidnapping, Count 3, 

consecutive.”
30.

Thereafter, as to count 3, the trial court sentenced defendant to a term of seven years to 

life to run consecutive to count 1.

B. Applicable Law

Section 654 precludes punishing a defendant twice for “[a]n act or omission that is 

punishable in different ways by different provisions of law.” (§ 654, subd. (a).) “The 

purpose of section 654 is to prevent multiple punishments for a single act or omission, 

even though that act or omission violates more than one statute and thus constitutes more 

than one crime. Although the distinct crimes may be charged in separate counts and may 

result in multiple verdicts of guilt, the trial court may impose sentence for only one 

offense.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)

Section 654 also precludes multiple punishments for two offenses that arise from 

an indivisible course of conduct; if two crimes arose from the same act or series of acts 

constituting an indivisible course of conduct, multiple punishment is prohibited. (People 

v. Wynn (2010) 184 Cal.App.4th 1210, 1214–1215.) “The divisibility of a course of 

conduct depends upon the intent and objective of the defendant.” (People v. Liu, supra, 

46 Cal.App.4th at p. 1135.) If two offenses are incidental to one objective, the defendant 

may be punished for just one. But, if the “defendant entertained multiple criminal 

objectives which were independent of and not merely incidental to each other, the trial 

court may impose punishment for independent violations committed in pursuit of each 

objective even though the violations shared common acts or were parts of an otherwise 

indivisible course of conduct.” (Ibid.) A ruling under section 654 is reviewed for 

substantial evidence. (Liu, at pp. 1135–1135.) “‘To satisfy the substantial evidence 

standard, the evidence supporting the trial court’s findings must be “‘reasonable, credible, 

and of solid value.’” [Citation.]’” (People v. Gyorgy (2023) 93 Cal.App.5th 659, 669.)
31.

C. Analysis

“Where a defendant is prosecuted solely on a theory of first degree felony murder, 

section 654 precludes punishment for both murder and the underlying felony. (See, e.g.,

People v. Hensley (2014) 59 Cal.4th 788, 828 [sentence for felony underlying first degree 

felony-murder conviction must be stayed under § 654].) However, if the prosecution 

presents alternative theories—such as premeditation and felony murder—and there is 

evidence supporting a finding that the murder was premeditated, then the trial court may 

properly impose a sentence for both the murder and the felony. (People v. Osband

(1996) 13 Cal.4th 622, 730–731 [affirming decision not to stay sentence for rape and 

robbery under § 654, where the trial court made implicit finding that crimes involved 

more than one objective, even though it was unclear whether murder conviction was 

based on felony-murder or premeditation theory].)” (People v. Carter (2019) 34 

Cal.App.5th 831, 841.)

Here, defendant’s conviction for first degree murder was not based solely on the 

theory of felony murder. The jury was instructed on multiple theories of first degree 

murder, including premeditated and deliberated murder, malice murder, and felony 

murder. Although the prosecutor’s primary argument was defendant was guilty of felony 

murder as a major participant to kidnapping, robbery, or attempted robbery and who 

acted with reckless indifference to human life, he alternatively argued that either 

defendant or Thomason intentionally “pistol whipped” and “shot [Leon] multiple times,” 

and that defendant is “an aider and abett[o]r to second degree murder.” There was 

substantial evidence supporting the trial court’s finding the kidnapping to commit 

robbery was independent from the murder because “otherwise, there would not have been 

a victim alive in the car.” The trial court reasonably could have concluded defendant’s 

objective in kidnapping Leon was independent of his objective in aiding and abetting 

Thomason, thereby justifying multiple punishments under section 654.
32.

Further, the jury did not have to make an affirmative finding that defendant shot 

Leon or aided and abetted in Leon’s murder before returning its guilty verdict on first 

degree murder, and the trial court did not need such an affirmative finding by the jury to 

exercise its sentencing discretion under section 654. Generally, “in the absence of some 

circumstance ‘foreclosing’ its sentencing discretion ..., a trial court may base its decision 

under section 654 on any of the facts that are in evidence at trial, without regard to the 

verdicts.” (People v. McCoy (2012) 208 Cal.App.4th 1333, 1340.) Therefore, the trial 

court could properly find defendant harbored multiple criminal intents and objectives in 

attempting to kidnap and the murder of Leon. Accordingly, the trial court did not err 

when it imposed a consecutive term of seven years to life for defendant’s kidnapping to 

commit robbery conviction (count 3).

DISPOSITION

The judgment is affirmed.

PEÑA, J.

WE CONCUR:

DETJEN, Acting P. J.

SMITH, J.