Filed 10/31/23 P. v. Corder CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN BOSEMAN CORDER et al.,

Defendants and Appellants.

 B261370

 (Los Angeles County

 Super. Ct. No. PA073839)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Dalila Corral Lyons, Judge. Affirmed in part, 

reversed in part, and remanded with directions as to defendant 

Stephon Crutchfield. Affirmed and remanded with directions as 

to defendants Brian Boseman Corder and Fredericka Carmouche.

John A. Colucci, under appointment by the Court of Appeal, 

for Defendant and Appellant Brian Boseman Corder.

Lynda A. Romero, under appointment by the Court of

Appeal, for Defendant and Appellant Fredericka Carmouche.
2

Mark R. Yanis, under appointment by the Court of Appeal, 

for Defendant and Appellant Stephon Crutchfield.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Roberta L. Davis and David A. 

Wildman, Deputy Attorneys General, for Plaintiff and 

Respondent.

_______________________

This case involves charges against defendants and 

appellants Brian Boseman Corder, Fredericka Carmouche, and 

Stephon Crutchfield, based on an attack on Corder’s wife, GiGi. 

In count 1, Corder and Carmouche were found guilty of 

conspiracy to commit murder.1 (Pen. Code, § 182, subd. (a)(1).)2 

All three defendants were found guilty of willful, deliberate, and 

premeditated attempted murder in count 2 (§§ 187, subd. (a), 664, 

subd. (a)), torture in count 4 (§ 206), and mayhem in count 5 

(§ 205).3 Carmouche and Crutchfield were convicted of burglary 

in count 3.4 (§ 459.) The jury also found true the allegations that 

Carmouche and Crutchfield personally inflicted great bodily 

1 Crutchfield was found not guilty in count 1.

2 All statutory references are to the Penal Code unless 

otherwise specified.

3 Defendants were found not guilty of aggravated mayhem 

in count 5, but were convicted of the lesser offense of mayhem.

4 The burglary charge against Corder in count 3 was 

dismissed pursuant to a section 995 motion.
3

injury on the victim (§ 12022.7, subd. (a)), and that Carmouche 

personally used dangerous and deadly weapons within the

meaning of section 12022, subdivision (b)(1), in counts 2 and 3.5

The trial court sentenced Corder to 25 years to life in count 

1, and imposed and stayed sentences pursuant to section 654 in 

counts 2, 4, and 5. Carmouche was also sentenced to 25 years to 

life in count 1, with the sentences in counts 2–5 and the section 

12022, subdivision (b)(1), and section 12022.7, subdivision (a) 

enhancements imposed and stayed under section 654. 

Crutchfield was sentenced to life in prison in count 2, plus three 

years for personal infliction of great bodily injury, with sentences 

imposed and stayed under section 654 in counts 3–5.

On appeal, all three defendants contended that the trial 

court erred in allowing the jury to consider a natural and 

probable consequences theory of aiding and abetting the 

attempted premeditated murder in count 2, and in refusing to 

require the victim to review documents that she stated would not 

help refresh her memory. Corder and Carmouche further 

contended that: (1) the trial court erred in failing to sua sponte 

instruct on lesser included offenses of conspiracy to commit 

murder; (2) the trial court erred in allowing the jury to consider 

both an act subsequent to the target offense and the agreement 

itself as overt acts in furtherance of conspiracy to commit 

murder; (3) their convictions for torture were not supported by 

substantial evidence; and (4) they were prejudiced by cumulative 

errors at trial. Finally, Corder separately contended the trial 

court erred in prohibiting a defense witness from testifying in his 

Marine Corps uniform, and in excluding evidence that Corder 

5 The jury found not true allegations that Crutchfield 

personally used a dangerous and deadly weapon.
4

suffered from posttraumatic stress disorder (PTSD).6 We 

affirmed the convictions. (People v. Corder (Dec. 19, 2016, 

B261370) [nonpub. opn.].)

Defendants petitioned for review arguing that their 

convictions for attempted murder on a natural and probable 

consequences theory were prohibited by the United States 

Supreme Court’s opinion in Alleyne v. United States (2013) 570 

U.S. 99 (Alleyne) and our Supreme Court’s decision in People v. 

Chiu (2014) 59 Cal.4th 155 (Chiu). Our Supreme Court granted 

review but deferred briefing pending consideration and 

disposition of People v. Mateo, S232674 (Mateo) or further order 

of the court. (S239594, Mar. 22, 2017.) 

On April 10, 2019, after Senate Bill No. 1437 (Stats. 2018, 

ch. 1015, § 1(f), p. 6674) (Senate Bill 1437) went into effect, the 

Supreme Court transferred the matter back to this court with 

directions to vacate our decision and reconsider the case in light 

of Senate Bill 1437.

We vacated our December 19, 2016 opinion and issued a 

revised opinion addressing all of defendants’ arguments, 

including their new arguments relating to Senate Bill 1437. We 

again affirmed the trial court’s judgment.

Defendants again petitioned for review, this time arguing 

that Senate Bill 1437 applied to their convictions for attempted 

murder. Our Supreme Court granted review but deferred 

6 In his opening brief, Corder joined in any contentions of 

his codefendants that accrued to his benefit. (Cal. Rules of Court, 

rule 8.200(a)(5).) Subsequent to filing her opening brief, 

Carmouche joined in several of the contentions listed above, 

providing additional argument by letter, filed with the court on 

May 17, 2016.
5

briefing pending consideration and disposition of a related issue 

in People v. Lopez, S258175, or further order of the court. 

On December 22, 2021, the Supreme Court transferred the 

matter back to this court with directions to vacate our decision 

and reconsider the case in light of Senate Bill No. 775 (Stats. 

2021, ch. 551, § 2) (Senate Bill 775), which became effective on 

January 1, 2022.

We vacated our November 20, 2019 opinion, and issued a 

revised opinion addressing all of defendants’ arguments, 

including their new arguments relating to Senate Bill 775 and 

recently enacted Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1) 

(Assembly Bill 518), which defendants briefed as permitted under 

California Rules of Court, rule 8.200. We remanded the matter 

as to all defendants for the limited purpose of allowing the trial 

court to determine whether to exercise its discretion under 

Assembly Bill 518, but otherwise affirmed the trial court’s 

judgment.

Defendants petitioned for review a third time. Our 

Supreme Court denied review as to Corder and Carmouche, but

granted Crutchfield’s petition for review. The Supreme Court 

deferred further action in the matter pending consideration and 

disposition of a related issue in In re Lopez, S258912 or further 

order of the court.

On May 31, 2023, the Supreme Court transferred the 

matter back to this court with directions to vacate our decision 

and reconsider the cause in light of its decision in In re Lopez

(2023) 14 Cal.5th 562 (Lopez). We have vacated our April 14, 

2022 opinion, and now issue this revised opinion addressing all of 
6

defendants’ arguments, including their new arguments relating 

to Lopez.

7

Crutchfield’s conviction for willful, deliberate, and 

premeditated attempted murder in count 2 is reversed and the 

associated personal infliction of great bodily harm enhancement 

is vacated. The cause is remanded to the trial court to allow the 

prosecution to retry Crutchfield on a legally valid theory if it so 

elects. The trial court’s judgment is otherwise affirmed.

We affirm the judgment as to Corder and Carmouche, but 

remand for the limited purpose of allowing the trial court to 

determine whether to exercise its discretion under Assembly Bill 

518 as to each. 

FACTS

Prosecution

GiGi and Corder’s Relationship

GiGi, the victim, had been married to Corder for about six 

years at the time of the charged offenses. GiGi lived in an 

apartment in Canoga Park. Corder was an active duty member 

of the Marine Corps, stationed in San Pedro. Corder came home 

when he could.

7 It is unclear whether the Supreme Court intends for this 

court to consider the impact of Lopez with respect to Corder and 

Carmouche, whose petitions for review it denied. However, in 

light of the Supreme Court’s order to vacate the opinion and issue 

a new opinion, we have done so in an abundance of caution.
7

GiGi and Corder had a rocky, sometimes violent, marriage. 

Corder tackled and punched GiGi once when she confronted him 

about emails he had sent to other women. GiGi’s mother 

witnessed Corder straddling GiGi and punching her in the face. 

Corder tried to kill both himself and GiGi once by repeatedly 

turning off the car engine on a freeway, and then zigzagging 

between lanes. Corder threatened GiGi in their frequent 

arguments, saying things like: “Bitch, I’m done with you, I’m 

fucking going to kill you,” and “You’re fucking not going to wake 

up tomorrow morning. You’re dead tonight.” Corder told GiGi he 

would end up in jail for hurting her. GiGi admitted responsibility 

for some of the violence. She once hit Corder with a broom after 

he verbally abused her.

In March 2012, GiGi told Corder she was pregnant. Corder 

was irate. He told GiGi, “This is bad. This is all bad. This is 

going to kill us.” He also said, “Oh, my God, you need to have an 

abortion. We can’t have this baby. This will kill us.” He sent 

GiGi text messages threatening her and telling her to get an 

abortion. Corder threatened to stop paying the rent and the bills 

when GiGi told him that she would not get an abortion. They 

began receiving “three day” notices because Corder had not paid 

the rent. GiGi called Corder’s commanding officer and informed 

him that Corder had threatened her, pressured her to have an 

abortion, and stopped paying their bills. Corder’s attitude 

changed completely after the call. He apologized.

The Attack

On June 15, 2012, GiGi was four months pregnant and 

suffering from severe nausea. She contacted Corder that 
8

morning, asking him to come home and help her. He said that he 

would come as soon as he could, but he did not return. GiGi 

continued to text and call him throughout the day, becoming very 

angry. She texted Corder: “If you don’t come back and make this 

right, you will regret it, I promise you.”

Someone pounded on the front door of GiGi’s apartment 

around 10:00 o’clock that evening. GiGi went to see who it was 

and saw a finger covering the peephole, something Corder would 

often do, so she unlocked the door. She went back to bed, 

thinking that Corder heard her unlocking it and would come in. 

Instead, she heard the door close. She texted Corder, “Where are 

you? Did you just come and leave? What happened?” Corder 

eventually called GiGi and told her he had not been at the door. 

He said he was at school and would be back soon.8

Around midnight, GiGi heard someone throwing rocks at 

her patio doors, something Corder would do when he forgot his 

keys. She turned on the outside light and saw Corder, who 

waved at her. GiGi turned off the light and went to open the 

front door for Corder. She was naked because she had just 

thrown up on her clothing.

When GiGi opened the door, Crutchfield burst through and 

tackled her to the ground “like a linebacker.” He straddled GiGi 

and punched her in the face relentlessly. GiGi fought back. She 

screamed for help. She screamed that she was pregnant, and 

called Corder’s name. She thought Crutchfield was going to rape 

her.

Carmouche came into the apartment behind Crutchfield. 

She rummaged through the kitchen cabinets, pulling out various 

8 Corder attended the Los Angeles Film and Recording 

School.
9

objects, including candelabras, a Pyrex dish, and a frying pan, 

which she then used to hit GiGi on the head. GiGi was in terrible 

pain. She was afraid for her life and for her baby. Crutchfield 

continued to punch GiGi on her face and chest while Carmouche 

hit GiGi’s head. GiGi screamed, “My husband’s coming. I’m 

pregnant. Help me.” Someone responded, “Your husband’s not 

coming, bitch.” GiGi screamed and begged for help throughout 

the attack. One of her attackers said, “The bitch won’t die.” As 

this was happening, GiGi saw Corder sitting on the bed. She 

only saw his legs, but she was certain it was Corder. GiGi was 

hit in the face with a frying pan and lost two teeth. She believed 

that both Corder and Carmouche hit her with the frying pan at 

different times during the attack.

Carmouche grabbed GiGi’s neck and wrenched it so hard it 

went numb. Carmouche grabbed GiGi’s face, tilted GiGi’s head 

sideways, and sliced GiGi’s throat repeatedly with pieces of a 

broken Pyrex dish. She stabbed GiGi’s breasts. GiGi thought she 

was going to die, and that her attackers would not stop until they 

believed she was dead. She played dead to protect her baby. 

Carmouche covered GiGi’s nose and mouth with her hands until 

GiGi passed out.

When GiGi regained consciousness, she was lying on her 

bedroom floor surrounded by broken glass. She crawled to the 

phone on the nightstand and called her mother for help. The call 

ended when someone hit GiGi over the head and she blacked out 

a second time.

GiGi’s mother called 911 at 12:52 a.m. She told the 

dispatcher that her daughter had just called and was being 

attacked.
10

Kathy Aguirre was visiting her family in an apartment in 

the building where GiGi resided. She heard a very loud thump 

and a woman screaming for help. The woman also screamed that 

she was pregnant. Aguirre called the police at 12:41 a.m. They 

arrived soon afterward. 

Jane Hankins, who also lived in the building, heard loud 

yelling, thumping, and glass breaking. A woman yelled, “Get out, 

get out, get out,” at least 50 times. “It was very severe, emotional 

yelling.” Hankins called 911 at 12:37 a.m. She told the 

dispatcher that someone was “just screaming their head off.” 

After she hung up the phone, the door to GiGi’s apartment 

slammed shut and Hankins heard someone sobbing.

The police called Hankins to get the security code for the 

building at 12:51 a.m. She could not remember the code, so she 

went to open the door. As she was going to the door, a man 

yelled, “Help. Somebody call 911.” She thought the man was 

GiGi’s husband or boyfriend.

Los Angeles Police Officer Jeffrey Johnson and his partner 

arrived at the apartment at around 12:40 a.m. The front door 

was partially open. GiGi was lying on the floor, covered in blood, 

with injuries to her head. Corder was tending to her. GiGi 

repeatedly asked about her phone and her dog. She did not 

answer the officers’ questions. The officers observed red stains on 

the wall over GiGi’s bed; her pillow; the nightstand; a folding 

knife and pink bowl on the nightstand; the carpeting, bedding, 

sliding glass door, and blinds; broken chair legs, one of which was 

found on the bed; a phone on the kitchen counter; a frying pan; a 

broken candelabra; a shoeprint in the kitchen; a fan; the exterior 

door knob; and outside of the apartment. There were broken 

fixtures and furniture, including a fan and a chair. There was 
11

broken glass throughout the apartment. Broken teeth were 

discovered near the bed. It looked as if an “extreme struggle” had 

taken place.

Forensic Nurse Examiner Sandra Wilkinson examined 

GiGi at the Northridge Hospital emergency room on June 16, 

2012. She observed numerous cuts on GiGi’s body, linear 

abrasions on her back, blood smears on the soles of her feet, and 

two missing fingernails, which were likely defensive wounds. 

GiGi had multiple cuts on both hands, which also appeared to be 

defensive wounds. GiGi had subconjunctival hemorrhages 

consistent with strangulation, a deep incision beside her right 

eyebrow, bruising to the neck and jaw, and numerous shallow 

and deep incisions. She sustained a cut close to the right carotid 

artery, which could have been fatal had the carotid artery been 

severed. GiGi’s lips were swollen; she had missing teeth, as well 

as a cut that created a total separation from her lip to her nose. 

There was a deep cut on GiGi’s right upper chest. Her entire 

body was smeared with blood.

The Investigation

Interviews of GiGi

Detective Rene January and her partner interviewed GiGi 

at 8:25 p.m. on June 16, 2012. The interview took place in the 

hospital, about an hour after GiGi was awoken from an induced 

coma. A breathing tube had just been removed from GiGi’s 

throat, and she was having difficulty speaking. GiGi was still 

groggy and felt “drugged.” She said she “didn’t know right from 

left.”
12

GiGi told the detectives Corder had been outside throwing 

pebbles at the sliding glass door. She did not know there were 

people waiting to attack her. She was “99.999 percent” certain 

Corder had not done this to her. She said a man and a woman 

attacked her. Both of them had cut her with sharp objects. The 

man and the woman were hurting her simultaneously at one 

point in the attack.

Later, GiGi’s mother asked her what had happened. GiGi 

said three people came into her apartment. Two of the people 

were strangers, but she thought the third person was Corder. 

Her vision was blurred, so she could not be certain. The female 

attacker kept saying, “Just die. Just die.” GiGi thought the 

female attacker also said, “The bitch won’t die. The bitch won’t 

die.” GiGi said she was naked when she was attacked.

GiGi’s mother called the police to inform them that she was 

more alert and could remember additional details. Detective 

January conducted a second interview on June 18, 2012. Corder 

had been arrested by that time. GiGi told Detective January that 

Corder was sitting on the foot of the bed as her attackers were 

beating her. GiGi did not see Corder’s face, but she had been 

married to him for years and knew his legs and pants.9 She was 

certain Corder had been there.10

9 Other witnesses had seen Corder wearing shorts. 

Hankins said that Corder was wearing shorts when he called out 

for someone to help GiGi. GiGi’s mother said that Corder was 

wearing shorts with blood on them at the hospital.

10 GiGi testified that at the time of the first interview she 

was having trouble accepting the fact her husband had done this 

to her. She had also originally told the police she put a robe on 
13

GiGi described the man who attacked her as Black with a 

short afro and buggy eyes. She thought he might have had some 

hair on his chin. He was about five feet six inches, or five feet 

eight inches, and in his 20s or 30s. The female attacker was a 

thin Black woman with short straightened black or brown hair. 

She was about five feet six inches to five feet seven inches tall. 

The woman wore blue denim capri pants with a belt, gloves, a 

pink shirt with writing and glitter on it, and a denim jacket that 

was shorter than her pink shirt. GiGi said the woman was 

wearing latex gloves, which she felt on her face during the attack.

GiGi thought her husband was outside during the initial 

attack, because he had just thrown pebbles at the sliding glass 

door. She told her attackers that her husband was outside. They 

responded, “Your husband is not coming, bitch. Die, bitch, die.” 

Once she was on the ground, the first male attacker was 

“[p]unching her furiously, like a maniac.” GiGi remembered 

being hit with a skillet, a Pyrex dish, and five glass candelabras. 

The woman dropped the Pyrex dish on GiGi’s head, and then 

picked up pieces of the glass. She grabbed GiGi’s face, tilted her 

head sideways, and tried to slit her throat repeatedly. She looked 

GiGi in the eyes and stabbed her breasts.11

before answering the door because she was embarrassed about 

being naked.

11 GiGi inconsistently stated that the female attacker only 

beat her on her head and cut her throat. 
14

Interview of Corder

Los Angeles Police Detectives Maria Dingman and 

Macchiarella spoke to Corder at Northridge Hospital on June 16. 

Corder said he had last spoken to GiGi at about 11:00 p.m. 

Corder went from the Marine base to his father’s home, and then 

attended a class from 8:30 p.m. to 11:30 p.m. He arrived at the 

apartment at about 12:15 a.m. 

During the interview, Detective Macchiarella viewed text 

messages on Corder’s telephone. He asked Corder to show him a 

text message from “Fame.”12 Corder said he deleted it. 

Interview of Crutchfield

Detective Richard Moakley interviewed Crutchfield on 

June 16. Crutchfield said he had been at school for a morning 

class and spent the rest of the day with a friend. He did not 

mention going to GiGi’s apartment. 

Carmouche and Corder’s Medical Examinations

Dr. William Jou treated Carmouche at the emergency room 

at Kaiser Panorama City Medical Center around 1:00 p.m. on 

June 16. Carmouche said she had cut her knee and hands when 

she fell on broken glass approximately 11 hours earlier. 

12 “Fame” was a name used by Crutchfield.
15

Nurse Wilkinson examined Corder on June 16. She noted 

that there was blood on his hands, fingernails, and penis. He had 

superficial cuts. 

The Relationship of the Three Defendants

Corder met Carmouche and Crutchfield at the Los Angeles 

Film and Recording School in Hollywood, which they all 

attended. On April 17, 2012, Carmouche texted Corder, “Morn, 

Lovely. Yes, I have been drawn to you since day one. We should 

def get together soon and chill. I have a good feeling about you 

. . . .” On May 4, 2012, Carmouche texted, “What are your turnons?” Corder replied, “Sexy outfits and touching, i.e., massages, 

oral, et cetera. All relaxing things like that.” Carmouche sent 

texts to various people indicating that she and Corder were in a 

romantic relationship. On June 11, 2012, Carmouche texted 

Crutchfield that she loved Corder and would do “dumb shit” for 

him. On June 13, 2012, she texted Corder, “Believe no matter 

what I will take care and protect you” and “I wld do everything 

for you.” Carmouche texted a friend the same night, threatening 

to kill the friend if he interfered with her relationship with 

Corder. She texted, “Yes tht was a threat. I love Brian. Nothing 

will keep me from him. If u r willing to wrk around tht, then we 

are fine.” Carmouche texted Crutchfield around noon on June 16, 

2012, “We’re so close and I really do love Brian. I have never 

actually loved any man before and for me to do dumb shit.” 

On June 7, 2012, approximately a week before the 

attempted murder, Carmouche texted Corder complaining about 

a physical altercation she had with her mother’s boyfriend that 

left a blood stain on the carpet. Carmouche texted: “ ‘I don’t 
16

know what to do. I hurt him pretty bad. I’ve been trying to get 

the smell of blood off my hands for 2 hours. I am disturbed as 

fuck.’ ” Corder responded, “ ‘Just soak ur hands in warm water 

and peroxide for about 5 minutes . . . . wash ur hands w/soap, 

then lotion them up.’ ” Carmouche replied, “ ‘Aaaaah, peroxide! 

Thats it. Forgot I was talking to an expert here. . . .’ ” Corder 

then texted, “ ‘. . . and don’t text shit like that . . . . I just deleted 

it . . . .’ ” 

In texts on June 13, 2012, Carmouche told Corder that she 

planned to get a tattoo “ ‘for both of us to show U Im serious.’ ” 

She texted, “ ‘I want to commit myself to U regardless if U do or 

not Im just loyal like T-H.’ ” and “Seriously U need to wakeup 

and realize how I feel for you. And my willingness to devote 

myself to you.’ ”

There were other text messages between the three 

defendants in the days before GiGi was attacked.

Defendants’ Whereabouts Prior to the Attack

Records of the Los Angeles Film and Recording School 

indicated that all three defendants were enrolled, but that none 

had attended classes during the first week of June 2012. They 

were later dropped from their courses. On June 15, 2012, 

Corder’s identification badge was used to enter the school at 8:32 

p.m. Still photographs from the school’s surveillance cameras 

showed Corder entering the lobby at 10:03 p.m., and walking 

around inside the building at 10:36 p.m. Corder’s cell phone 
17

records indicated that his phone was near the school at 10:00 

p.m. and that his phone was used to call Crutchfield’s phone.

Carmouche’s cell phone records indicated that her phone 

was near GiGi’s apartment at 10:08 p.m., 10:40 p.m., and 10:41 

p.m. Crutchfield’s phone records placed his phone near the film 

school at 11:26 p.m. and 11:30 p.m. In a deleted text Crutchfield 

sent to Corder at 11:31 p.m. on June 15, he wrote, “Outside.” 

Video surveillance from the school showed Crutchfield entering 

the building at 11:32 p.m. The surveillance video showed Corder 

in the film school at 11:27 p.m., and leaving the building at 11:35 

p.m.

Defendants’ Whereabouts and Communications 

Following the Attack

Cell phone records showed calls of 30-second duration 

between Carmouche and Crutchfield at 12:53 a.m. and 12:55 a.m. 

on July 16. Ten telephone calls were placed from Carmouche’s 

phone between 12:53 a.m. and 1:51 a.m., including one to 

Crutchfield. Phone records showed that Crutchfield’s phone was 

still in Canoga Park at 12:54 a.m.

Corder’s phone received several text messages between 3:53 

a.m. and 4:33 a.m., including a message from Crutchfield at 4:33 

a.m. There was an 11-minute call between Corder and 

Crutchfield at 4:22 a.m.

Physical Evidence 

On June 20, 2012, four swabs that showed a positive 

reaction for possible blood were collected from a 2005 silver 
18

Jaguar. The Jaguar was owned by Corder’s father and Corder 

drove it regularly. Also collected were swabs of possible 

biological material from the mouth of a water bottle, the mouth of 

a plastic bottle in the rear left foot space, the textured grip of an 

airsoft pistol found in the car, and the rear-facing edge of the 

front right backrest. Corder’s clothing, including his boots, socks, 

green swimming trunks, and white plaid shorts, were collected 

for analysis.

Criminalist Monica Zielinski took swabs from the screen 

and keypad of the cell phone recovered from GiGi’s kitchen 

counter for DNA testing. She also took a reference sample of 

GiGi’s blood, and buccal swabs from Corder, Carmouche, and 

Crutchfield.

Criminalist King Chow sent samples from bloodstains from 

the rear center seat of Corder’s car, the right seat, the interior 

right door, and the rear bumper; white, green and yellow shorts; 

gray and black Air Jordan shoes; a steel folding knife; and a 

frying pan for DNA testing. All of the items had reddish stains 

and a preliminary test for blood yielded positive results.

DNA analyst Stephanie Sivak initially received six items of 

evidence, including two swabs from the cell phone and the 

reference samples from GiGi and defendants. She later received 

four samples from stains in the Jaguar, two samples from red 

stains on a knife, two samples from red stains on a frying pan, 

one sample from a red stain on a pair of shorts, and one sample 

from a red stain on a right shoe. The red stain from the rear 

center seat of the Jaguar matched Carmouche’s DNA profile. A 

stain from the front right seat contained a mixed profile, with 

Carmouche as the major contributor and GiGi as a minor 

contributor. The red stain on the rear bumper matched GiGi’s 
19

DNA profile. The red stain from the interior right door of the car 

and the stain on the shorts both matched Crutchfield’s DNA 

profile. The stain from the handle of the frying pan matched 

Carmouche as the major DNA contributor and GiGi as the minor 

contributor. The red stains on the bottom of the frying pan 

matched GiGi’s DNA profile. The red stain on the right shoe 

contained a mixture of DNA profiles, including GiGi’s DNA 

profile as the major contributor and Carmouche’s as the minor 

contributor.

On June 20, 2012, 29 fingerprints were lifted from the 

Jaguar. The prints from the outside of the trunk were 

Carmouche’s fingerprints, prints from the inside of the passenger 

door were Crutchfield’s, and prints from inside the driver’s side 

front door pocket were Corder’s. 

A search of Carmouche’s residence yielded a wig with 

reddish-brown hair, a pink tank top, and a pair of black jeans. 

Defense13

Crutchfield

A forensic print specialist testified that prints from the 

folding knife found in GiGi’s apartment did not match 

Crutchfield’s fingerprints.

Crutchfield’s mother, his aunt, and the assistant principal 

from his high school testified to his good character.

Crutchfield testified on his own behalf. He met Corder and 

Carmouche in a class at the Los Angeles Film and Recording 

13 Carmouche did not present testimony or evidence on her 

own behalf.
20

School. He believed Carmouche had a romantic interest in 

Corder, but the feeling was not mutual. Corder told Crutchfield 

that GiGi was mistreating him and hitting him. Corder and 

Crutchfield agreed that Crutchfield would scare GiGi so that 

Corder could “rescue” her. The plan was for Corder to throw 

stones at the patio doors so that GiGi would unlock the front door 

for Crutchfield to get inside the apartment. Corder said he 

thought he could make GiGi appreciate him more by playing the 

hero. Crutchfield knew GiGi was pregnant and believed that 

Corder wanted the baby.

Carmouche was not originally included in the plan to scare 

GiGi. Corder asked her if she wanted to participate on the night 

of the attack, and Carmouche agreed. Crutchfield and 

Carmouche did a “test run” that night to familiarize themselves 

with the building. Crutchfield covered the peephole on GiGi’s 

apartment door with his finger so she would not see him.

After the test run, Carmouche and Crutchfield returned to 

the film school, where they had been earlier that evening, to meet

Corder. Corder drove all three defendants to GiGi’s apartment 

building. As Crutchfield and Carmouche were waiting for GiGi to 

open the apartment door, Crutchfield saw that Carmouche was 

carrying a folding knife, but he did not say anything about it to 

her. He also noticed that Carmouche was wearing gloves.

When GiGi opened the door, Crutchfield punched her, and 

she stumbled backward. He punched GiGi again and straddled 

her near her chest to avoid harming the baby, and then punched

her several more times. In total, Crutchfield punched GiGi about 

six or seven times. He felt sick to his stomach because he did not 

like what he was doing.
21

Crutchfield heard Carmouche say, “Get her, get her.” She 

also said, “Your husband is not coming, bitch.” Crutchfield heard 

glass breaking several times. He fled when he was attacked by 

GiGi’s dog. As Crutchfield left he saw Carmouche crouching by 

GiGi, but he could not see what Carmouche was doing. 

Crutchfield and Carmouche left the apartment and ran to 

Corder’s car, which was parked a few blocks away. The original 

plan was for Crutchfield and Carmouche to leave. Corder “was 

supposed to go to the apartment and rescue and be the hero.” 

But Corder did not go to the apartment when Crutchfield was 

there. When they got back to the car, Corder was already there.

He asked what happened to GiGi. Crutchfield said he did not 

know. Carmouche did not say anything.

Crutchfield did not want to kill GiGi. He never agreed to 

cut her neck. He thought he would help Corder’s relationship 

with GiGi by roughing her up. The situation escalated when 

GiGi fought back.

Crutchfield denied saying “ ‘Die bitch.’ ” and “ ‘The bitch 

won’t die.’ ”, but he remembered Carmouche saying “ ‘Die bitch.’ ” 

Crutchfield wondered why Carmouche said this because they 

were not planning to kill anyone, but he did not say anything to 

Carmouche about it. Crutchfield saw Carmouche crouching near 

GiGi as he was leaving. He testified, “ ‘I had to leave. I was like, 

‘This is going way too far. I gotta get out of here.’ ” Crutchfield

never saw what Carmouche was doing. 

Corder

Monda Fakhroo testified that she was visiting friends at 

the apartment building where GiGi lived on June 15 or 16, 2012. 
22

Fakhroo saw a Black man jump over a fence. The man asked if 

anyone heard his wife screaming.

Marine Sergeant Lonel Springs testified that he met 

Corder when they were stationed together at Camp Pendleton in 

2005. They served in Fallujah together. On one occasion, 

Springs had seen GiGi hit Corder with a broom, which she held 

like a baseball bat. Corder had a reputation for being levelheaded, calm, cool, and collected.

DISCUSSION

Conspiracy to Commit Murder

“ ‘A conviction of conspiracy requires proof that the 

defendant and another person had the specific intent to agree or 

conspire to commit an offense, as well as the specific intent to 

commit the elements of that offense, together with proof of the 

commission of an overt act “by one or more of the parties to such 

agreement” in furtherance of the conspiracy.’ [Citations.]” 

(People v. Johnson (2013) 57 Cal.4th 250, 257 (Johnson).) 

“Conspiracy is a crime distinct from the substantive offense that 

is its object; it does not require commission of the substantive 

offense (target offense). [Citations.] The conspiratorial 

agreement is itself the essence of the crime, and is what it seeks 

to punish.” (People v. Cortez (2018) 24 Cal.App.5th 807, 818.)

Corder and Carmouche make two challenges to their 

convictions for conspiracy to murder in count 1, which we discuss 

in turn. 
23

Lesser Included Offenses

Corder and Carmouche first contend that their convictions 

for conspiracy to commit murder in count 1 must be reversed 

because the trial court failed to instruct on the lesser included 

offenses of conspiracy to commit assault, conspiracy to commit 

assault with a deadly weapon, and conspiracy to commit assault 

with force likely to produce great bodily injury. We reject the 

contention.

Law

“ ‘ “ ‘ “[I]t 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.] That obligation has been 

held to include giving instructions on lesser included offenses 

when the evidence raises a question as to whether all of the 

elements of the charged offense were present [citation], but not 

when there is no evidence that the offense was less than that 

charged. [Citations.]’ ” ’ (People v. Valdez (2004) 32 Cal.4th 73, 

115.)” (People v. Banks (2014) 59 Cal.4th 1113, 1159 (Banks), 

abrogated on another ground by People v. Scott (2015) 61 Cal.4th

363.)

“The rule that juries must be instructed on lesser included 

offenses ‘ “prevents either party, whether by design or 
24

inadvertence, from forcing an all-or-nothing choice between 

conviction of the stated offense on the one hand, or complete 

acquittal on the other. Hence, the rule encourages a verdict, 

within the charge chosen by the prosecution, that is neither 

‘harsher [n]or more lenient than the evidence merits.’ ” ’ (People 

v. Smith (2013) 57 Cal.4th 232, 239–240 (Smith ).)” (Banks, 

supra, 59 Cal.4th at pp. 1159–1160.)

“ ‘On appeal, we review independently the question 

whether the trial court improperly failed to instruct on a lesser 

included offense.’ (People v. Souza (2012) 54 Cal.4th 90, 113.) 

‘For purposes of determining a trial court’s instructional duties, 

we have said that “a lesser offense is necessarily included in a 

greater offense if either the statutory elements of the greater 

offense, or the facts actually alleged in the accusatory pleading, 

include all the elements of the lesser offense, such that the 

greater cannot be committed without also committing the 

lesser.” ’ (Smith, supra, 57 Cal.4th at p. 240, italics added.) 

When applying the accusatory pleading test, ‘[t]he trial court 

need only examine the accusatory pleading.’ (Id. at p. 244.) ‘[S]o 

long as the prosecution has chosen to allege a way of committing 

the greater offense that necessarily subsumes a lesser offense, 

and so long as there is substantial evidence that the defendant 

committed the lesser offense without also committing the greater, 

the trial court must instruct on the lesser included offense.’ 

(Ibid.)” (Banks, supra, 59 Cal.4th at p. 1160.)

Analysis

Neither Corder nor Carmouche argues that conspiracy to 

commit assault, conspiracy to commit assault with a deadly 
25

weapon, or conspiracy to commit assault with force likely to 

produce great bodily injury is a lesser included offense of 

conspiracy to murder under the elements test. The question 

then, is whether one of these crimes is a lesser included offense of 

conspiracy to murder under the accusatory pleading test. They 

argue that these offenses are lesser included offenses in light of 

Overt Act III, as alleged in the amended information, which 

states: “On June 16, 2012, Fredericka Carmouche and Stephon 

Crutchfield beat and stabbed GiGi C. using numerous weapons 

stating, ‘The bitch won’t die.’ ” 

Case authority is split on the question of whether overt acts 

contained in the accusatory pleading should be considered when 

evaluating whether an offense is a lesser included offense of a 

conspiracy. In People v. Cook (2001) 91 Cal.App.4th 910, 918, the 

Third Appellate District concluded that “the trial court may look 

to the overt acts pleaded in a charge of conspiracy to determine 

whether the charged offense includes the lesser included offense.” 

(Id. at p. 914.) There, defendants had been charged with 

conspiracy to commit murder, but the trial court also instructed

the jury on a lesser included offense of conspiracy to commit 

assault with a firearm. On appeal, defendants claimed 

instruction on the lesser included offense was error. The overt 

acts alleged included that the conspirators acquired a firearm 

and that, in pursuit of the conspiracy, they shot and killed one 

victim and shot and wounded another. (Id. at p. 919 & fn. 22.) 

The appellate court observed that when murder is alleged to have 

been committed by means of a firearm, “it cannot be so 

committed without also committing an assault with a firearm.” 

(Id. at p. 920.) The court concluded that “the jury must 

determine which felony the defendants conspired to commit, and 
26

it cannot make that determination unless it is instructed on the 

elements of the target offense charged as well as the elements of 

any lesser included target offense which the jury could 

reasonably find to be the object of the conspiracy. [Citations.] 

Thus, the trial court has a sua sponte duty to instruct the jury on 

a lesser included target offense if there is substantial evidence 

from which the jury could find a conspiracy to commit the 

offense.” (Id. at p. 918.) Because the overt acts alleged 

“necessarily include and gave notice of, the elements of assault 

with a firearm,” the Court of Appeal held the trial court properly 

instructed the jury on the lesser target offense. (Id. at p. 920.)

On the other side of the appellate conflict is People v. 

Fenenbock (1996) 46 Cal.App.4th 1688, 47 Cal.App.4th 1167C, in 

which Division One of the First Appellate District held “in the 

context of deciding whether the trial court was obligated to 

instruct sua sponte on lesser included offenses, we conclude that 

allegations of overt acts committed in furtherance of the alleged 

conspiracy do not provide notice of lesser included target 

offenses.” (Id. at p. 1708.) The reason for this is that, when the 

charged offense is conspiracy, “[i]t is the agreement, not the overt 

act in furtherance of the agreement, which constitutes the 

offense.” (Id. at p. 1709.) “In our view, it is the description of the 

agreement within the accusatory pleading, not the description of 

the overt acts, which must be examined to determine whether a 

lesser offense was necessarily the target of the conspiracy. Here, 

the information alleged only that defendants conspired to murder 

[the victim]. There is nothing in this terse description of the 

agreement to indicate an agreement with a lesser objective. We 

therefore hold that the trial court was not required to instruct the 

jury sua sponte on conspiracy to commit assault, battery, or 
27

mayhem as lesser offenses included within the charged offense of 

conspiracy to commit murder.” (Id. at p. 1709.)

In People v. Cortez, supra, 24 Cal.App.5th 807, Division 

Two of the Fourth Appellate District charted a middle course. 

The court agreed with People v. Cook, supra, 91 Cal.App.4th 910,

to the extent that the alleged overt acts could be considered in 

determining whether the accusatory pleading encompasses an 

allegedly lesser included offense. (Cortez, supra, at p. 820.) 

However, the focus must nonetheless be on the conspirators’ 

agreement, not the conspirators’ acts. That is, the court should 

consider whether the overt act allegations “establish[ ] that the 

defendant has agreed or conspired to commit lesser included 

target offenses.” (Ibid.) There is no duty to instruct on 

conspiracy to commit assault with a firearm as lesser to 

conspiracy to commit murder when “[t]he description of the 

conspiratorial agreement to commit murder cannot be fairly read 

to describe or encompass . . . conspiracy to commit assault with a 

firearm . . . .” (Id. at p. 821.) The court noted that even if the 

defendants actually committed an assault with a firearm, it did

not change the original nature of their conspiracy, which was to 

commit murder, and it did not render assault with a firearm a 

necessarily included target offense of the conspiracy to commit 

murder. (Ibid.)

We agree with Cortez and Fenenbock to the extent they 

reason that the crime of conspiracy turns on the agreement, not 

the overt acts. If the alleged agreement was only to commit 

murder, it cannot be said that an agreement to commit assault, 

assault with a deadly weapon, or assault with force likely to 

produce great bodily injury is a lesser included offense. This is 
28

true even when the overt acts may be consistent with a different, 

unalleged conspiracy. 

Here, the information alleged that defendants “unlawfully 

conspire[d] together and with another person and persons whose 

identity is unknown to commit the crime of MURDER.” Overt 

Act I—which defendants argue was not a valid overt act, as we 

will next discuss—stated: “On June 15, 2012, Brian Corder, 

Fredericka Carmouche and Stephon Crutchfield created a plan to 

kill Brian Corder’s estranged wife, Gigi C.” Conspiracy to commit 

assault, assault with a deadly weapon, and assault with force 

likely to produce great bodily injury are not necessarily included 

within these allegations.

We also reject Corder’s and Carmouche’s argument that the 

allegations of the attempted murder charge in count 2, which 

catalogued the deadly weapons allegedly used by Corder and 

Carmouche, inform the inquiry. Our Supreme Court has held 

that gun use enhancement allegations in an accusatory pleading 

could not be used to establish that assault with a deadly weapon 

was a lesser included offense of a charged robbery. (People v. 

Wolcott (1983) 34 Cal.3d 92, 100–102.) Following the Supreme 

Court’s decision, appellate “courts have concluded that under the 

accusatory pleading test, gun use and great bodily injury 

enhancement allegations accompanying an attempted murder 

charge do not render assault with a deadly weapon a lesser 

included offense of the charged attempted murder. (People v. 

Parks (2004) 118 Cal.App.4th 1, 6; People v. Richmond (1991) 2 

Cal.App.4th 610, 616.)” (People v. Alarcon (2012) 210 

Cal.App.4th 432, 436.) The allegations contained in the 

attempted murder charge here are even more removed from the 
29

conspiracy charge than an enhancement allegation, and we will 

not consider them.

Finally, we reject Corder’s and Carmouche’s argument that 

the trial court had a sua sponte duty to instruct on the alleged 

lesser included offenses solely because there was substantial

evidence at trial (particularly the testimony of Crutchfield) that 

there was an agreement to scare and rough up Gigi: they argue 

such evidence was sufficient to support instructions on the lesser 

included offense. A trial court’s sua sponte duty to instruct on 

lesser included offenses, however, is only triggered when the 

offense is a lesser included offense under the elements or 

accusatory pleading test and supported by sufficient evidence in 

the record. (See Banks, supra, 59 Cal.4th at p. 1160.)

For all of these reasons, we conclude that the trial court 

had no duty to instruct on conspiracy to commit assault, 

conspiracy to commit assault with a deadly weapon, or conspiracy 

to commit assault with force likely to produce great bodily injury 

as a lesser included offense of conspiracy to murder.

Overt Acts

Corder and Carmouche next contend that their convictions 

for conspiracy to commit murder must be reversed because two of 

the overt acts alleged to have been made in furtherance of the 

conspiracy to commit murder were invalid. They argue that it is 

impossible to know whether the jury’s verdicts were based on 

proper overt acts because the jury is not legally required to 

unanimously agree regarding which overt acts have been 
30

committed, and in this case the verdict forms did not indicate 

which acts formed the basis for the verdicts. 

Law

A defendant cannot be convicted of conspiracy unless at 

least one overt act is alleged and proved by the prosecution; the 

existence of an agreement in the absence of an act done in 

furtherance of that agreement is insufficient to impose liability. 

(§ 184; People v. Brown (1991) 226 Cal.App.3d 1361, 1367 

(Brown).) “ ‘ “[A]n overt act is an outward act done in pursuance 

of the crime and in manifestation of an intent or design, looking 

toward the accomplishment of the crime.” [Citations.]’ 

[Citation.]” (Johnson, supra, 57 Cal.4th at p. 259.) An overt act 

must be performed before the commission of the offense that was 

the object of the conspiracy. (Brown, supra, 226 Cal.App.3d at 

p. 1369.) An act committed after the commission of the offense 

provides insufficient evidence to support a conviction. (Id. at 

pp. 1367–1370.) It is not necessary that each of the conspirators 

committed the overt act, or that the act be an element of a crime 

or an attempt to commit a crime. (Id. at p. 1369.) Although the 

jury must be in agreement that an overt act occurred, it is not 

required to agree as to the particular act committed. (People v. 

Russo (2001) 25 Cal.4th 1124, 1131, 1133.)

Analysis

Corder and Carmouche argue that Overt Act I—“On 

June 15, 2012, Brian Corder, Fredericka Carmouche and Stephon 

Crutchfield created a plan to kill Brian Corder’s estranged wife, 
31

Gigi C.”—is not a valid overt act because it alleges only that 

defendants agreed to conspire, and that Overt Act V—“On June 

15, 2012, Brian Corder drove Fredericka Carmouche and Stephon 

Crutchfield from the residence of Gigi C. after they attempted to 

kill her.”—is not a valid overt act because the act took place after 

the attempted murder.

Even if we assume that the trial court erred by instructing 

the jury regarding these overt acts, any error is harmless beyond 

a reasonable doubt.

14 The jury convicted Corder and Carmouche 

of premeditated, willful, and deliberate attempted murder—i.e.,

the jury unanimously found that Corder and Carmouche

attempted to commit the crime that was the object of the 

conspiracy. It is clear that the jury’s guilty verdict with respect 

to attempted murder “effectively embraces” the issue of whether 

an act was completed in pursuance of the conspiracy (People v.

Chun (2009) 45 Cal.4th 1172, 1204; see also People v. Aledamat

(2019) 8 Cal.5th 1, 10 (Aledamat)), and demonstrates definitively 

that “ ‘ “an outward act [was] done in pursuance of the crime and 

in manifestation of an intent or design, looking toward the 

accomplishment of the crime.” [Citations.]’ [Citation.]” 

(Johnson, supra, 57 Cal.4th at p. 259). The overt act requirement 

is satisfied by Corder and Carmouche’s convictions of attempted 

14 No objection was raised in the trial court to these overt 

acts. The Attorney General did not argue Corder and Carmouche 

forfeited the issue, and we resolve it on grounds other than 

forfeiture.
32

murder. Any error in the instructions with respect to Overt Acts 

I and V was necessarily harmless.15

Corder and Carmouche argue that this court (which relied 

on the same reasoning in its previous, now-vacated opinions) 

improperly used their allegedly invalid convictions for conspiracy 

to commit murder and attempted murder to bolster one another

in a circular fashion. Corder and Carmouche miscomprehend our 

reasoning. The issues are certainly intertwined, but the logic is 

not circular. As we will explain below, each conviction is 

supported by a valid jury finding that was necessary to the other 

conviction. Taken together, the jury’s valid findings in 

connection with different elements of the two convictions satisfy 

the elements of both convictions beyond a reasonable doubt.

Attempted Premeditated Murder—Natural and Probable 

Consequences

The jury convicted defendants of attempted willful, 

deliberate, and premeditated murder. The court instructed the 

jury that it could find defendants guilty of attempted murder as 

direct perpetrators, direct aiders and abettors, or as aiders and 

abettors under the natural and probable consequences doctrine. 

15 Carmouche’s counsel expressly conceded in argument to 

the jury that there was no question the overt acts were 

committed. He also stated, “[Did Carmouche] inflict great bodily 

injury? [¶] Come on. Look at the pictures. I will not sit here 

and insult your intelligence and say she didn’t. She did. No 

question about it.” “The blood? . . . They went in there to rough 

her up. That should be no surprise.” He also stated that 

Carmouche had “obviously” hit GiGi with a frying pan, as 

supported by the DNA evidence.
33

(CALCRIM Nos. 400 [Aiding and Abetting: General Principles]; 

401 [Aiding and Abetting: Intended Crimes]; 403 [Natural and 

Probable Consequences]; and 600 [Attempted Murder].) 

Following the Supreme Court’s second transfer back to this 

court, defendants contended that we should vacate their 

attempted premeditated murder convictions pursuant to Senate 

Bill 775, which permits a defendant whose attempted murder 

conviction is not yet final to challenge on direct appeal the 

validity of that conviction based on the changes made to sections 

188 and 189 by Senate Bill 1437. (§ 1172.6, subds. (a) & (g).) 

The parties agree that, in light of Senate Bills 1437 and 

775, the natural and probable consequences doctrine is no longer 

a valid theory of liability for attempted murder. Under current 

law, a jury must find the defendant acted with malice (for our 

purposes, intent to kill) before it may find a defendant guilty of 

attempted murder. The parties disagree only as to whether the 

error of instructing the jury on an invalid theory of liability, in 

addition to a valid theory, was harmless in this case. In our prior 

opinion, we concluded that any error was harmless with respect

to all three defendants. We now reconsider our decision in light 

of the standard for harmless error that the Supreme Court 

recently articulated in Lopez, supra, 14 Cal.5th 562. We conclude 

that the error was harmless as to Corder and Carmouche, but not

as to Crutchfield.

Law

Where, as the parties agree happened in this case, “a jury 

is instructed on alternate theories of liability, one legally valid 

and one legally invalid, a federal constitutional error has 
34

occurred. The defendant has been deprived of his or her right to 

‘a jury properly instructed in the relevant law.’ [Citation.] The 

error therefore requires reversal unless we determine the error 

was harmless beyond a reasonable doubt.” (Lopez, supra, 14 

Cal.5th at p. 580.)

In Lopez, supra, 14 Cal.5th 562, the defendant was

convicted of first-degree premeditated murder after the jury was 

instructed on aiding and abetting under a natural and probable 

consequences theory of liability that had been held invalid in 

Chiu, supra, 59 Cal.4th 155.

16 The Court of Appeal found the 

error harmless beyond a reasonable doubt in light of the Supreme 

Court’s recent opinion in Aledamat, supra, 8 Cal.5th 1. The 

appellate court based its decision on the jury’s true finding on a 

“gang-murder special circumstance, which required the jury to 

find that an aider and abettor acted with intent to kill, and the 

‘overwhelming’ evidence against [the defendant] more generally.” 

(Lopez, at p. 567.) The Supreme Court reversed, observing that 

“[t]he Court of Appeal discounted the prosecutor’s discussion of 

16 Chiu held that an aider and abettor may not be convicted 

of first degree premeditated murder under the natural and 

probable consequences doctrine. (Chiu, supra, 59 Cal.4th at 

p. 167.) Under Chiu, if the error could not be deemed harmless, 

the first degree murder conviction must be reversed and the 

prosecutor permitted to either retry the case and seek a first 

degree murder conviction under a direct aiding and abetting 

theory or accept a reduction of the conviction to second degree 

murder. (Id. at p. 168.) Chiu was superseded by amendments to 

section 188 made through Senate Bill 1437, which abrogated the 

natural and probable consequences doctrine in full with respect 

to murder, attempted murder, and manslaughter. (People v. 

Lamoureux (2019) 42 Cal.App.5th 241, 248–249 [murder]; 

§ 1172.6, subd. (a) [attempted murder, manslaughter].)
35

the natural and probable consequences theory of first degree 

murder in his closing argument, and it found a jury note 

referencing that theory inconsequential under the 

circumstances.” (Id. at pp. 567–568.)

In reversing the Court of Appeal, the Supreme Court 

elaborated: “In Aledamat, we explored the meaning of the 

harmless beyond a reasonable doubt standard in this 

circumstance involving alternative theories of liability. We noted 

that ‘[t]his harmless error rule applies in a variety of contexts, 

such as . . . error in omitting entirely one or more elements of a 

charged offense.’ (Aledamat, supra, 8 Cal.5th at p. 9.) We held 

that the application of this standard for alternative-theory error 

should be consistent with, and not different from, the application 

of the same standard for other misdescriptions of the charged 

offense. (Ibid.) Specifically, we rejected the argument that 

alternative-theory error could be found harmless only where 

‘there is a basis in the record to find that “the jury has ‘actually’ 

relied upon the valid theory.” ’ (Ibid.) Instead, a reviewing court 

may ‘examine[ ] what the jury necessarily did find and ask[ ] 

whether it would be impossible, on the evidence, for the jury to 

find that without also finding the missing fact as well.’ (Id. at p. 

15.) In other words, if ‘ “[n]o reasonable jury” ’ would have found 

in favor of the defendant on the missing fact, given the jury’s 

actual verdict and the state of the evidence, the error may be 

found harmless beyond a reasonable doubt. (Ibid.)” (Lopez, 

supra, 14 Cal.5th at p. 580.)

The Lopez court further expounded, “This test is exacting, 

and it requires much of a reviewing court. ‘[S]afeguarding the 

jury guarantee will often require that a reviewing court conduct a 

thorough examination of the record. If, at the end of that 
36

examination, the court cannot conclude beyond a reasonable 

doubt that the jury verdict would have been the same absent the 

error—for example, where the defendant contested the omitted 

element and raised evidence sufficient to support a contrary 

finding—it should not find the error harmless.’ [Citation.] ‘A 

reviewing court making this harmless-error inquiry does not . . . 

“become in effect a second jury to determine whether the 

defendant is guilty.” [Citation.] Rather a court, in typical 

appellate-court fashion, asks whether the record contains 

evidence that could rationally lead to a contrary finding with 

respect to the omitted element.’ (Ibid.)” (Lopez, supra, 14 

Cal.5th at p. 581.)

Corder and Carmouche

In our prior opinion, we held that any error in instructing 

on the natural and probable consequences doctrine with respect 

to the attempted murder charge was harmless as to Corder and 

Carmouche under Aledamat, supra, 8 Cal.5th 1. Our analysis 

and conclusion are unchanged.

“It has long been established that an alternative-theory 

error is harmless beyond a reasonable doubt where ‘ “it is 

possible to determine from other portions of the verdict that the 

jury necessarily found the defendant guilty on a proper theory.” ’

(Aledamat, supra, 8 Cal.5th at p. 8.)” (Lopez, supra, 14 Cal.5th at 

pp. 585–586.) Here, the jury convicted Corder and Carmouche of 

conspiracy to commit murder in count 1. Defendants have not 

challenged the jury’s intent to kill finding in connection with 

count 1, the conspiracy count, nor could they successfully do so. 

The instructions on the conspiracy to commit murder charge were 
37

separate from the instructions on the attempted murder charge

and materially different. Notably, they contained no reference to 

the natural and probable consequences theory of accomplice 

liability.17

As instructed, the jury could not have found Corder and 

Carmouche guilty of conspiracy to commit murder and not also 

found that defendants intended to kill with respect to the 

attempted murder charge. As our Supreme Court stated in 

Lopez, where the defendant has been convicted of conspiracy to 

commit murder there is “ ‘no possibility [defendants] were found 

guilty of [attempted] murder [of the same victim] on a natural 

and probable consequences theory.’ ” (Lopez, supra, 14 Cal.5th at 

p. 588.) Corder and Carmouche were necessarily found guilty as 

either perpetrators of attempted murder, or as a perpetrator and 

a direct aider and abettor of attempted murder, both of which are 

still valid theories of guilt. Any error in the trial court’s 

17 The jury was instructed under CALCRIM No. 563 that to 

find a defendant guilty of conspiracy to murder it must find that 

the defendants “intended to agree and did agree with each other 

to intentionally and unlawfully kill.” The jury was further 

instructed under CALCRIM No. 520: “Defendants are charged 

with conspiracy to commit murder in count one. This instruction 

defines the crime of murder for purposes of your verdict in count 

one. [¶] . . . [¶] 1. The defendant intended to commit an act that 

would cause the death of another person; [¶] AND [¶] 2. When 

the defendant acted, he or she had a state of mind called malice 

aforethought. [¶] The defendant acted with express malice if he 

/she unlawfully intended to kill. [¶] Malice aforethought does not 

require hatred or ill will toward the victim. It is a mental state 

that must be formed before the act that causes death is 

committed. It does not require deliberation of the passage of any 

particular period of time.” 
38

instruction of the jury on the additional, invalid natural and 

probable consequences theory was harmless beyond a reasonable 

doubt. Additionally, in light of our holding that Corder and 

Carmouche were properly convicted of attempted murder under a 

valid theory, it is not circular to hold harmless any instructional 

error with respect to the overt acts associated with the conspiracy 

to murder charge based on Corder and Carmouche’s commission 

of the attempted murder.

Crutchfield

Unlike Corder and Carmouche, the jury found Crutchfield 

not guilty of conspiracy to commit murder. As such, there is no 

express jury finding regarding Crutchfield’s mental state that 

resolves the harmless error inquiry on the attempted murder 

count. Under Lopez, we must look beyond what the jury actually 

found and examine the record to determine “ ‘if ‘ “[n]o reasonable 

jury” ’ would have found in favor of [Crutchfield] on the missing 

fact, given the jury’s actual verdict and the state of the evidence’ ”

before we may find the error harmless beyond a reasonable 

doubt. (Lopez, supra, 14 Cal.5th at p. 580.) 

Here, Crutchfield testified that he agreed to rough Gigi up 

so that Corder could play the hero and regain her affection. He 

denied any intent to kill GiGi, and testified that when he realized 

it had gone too far he fled the apartment. Crutchfield’s testimony 

that he sat on GiGi’s chest rather than her stomach to protect the 

baby was consistent with GiGi’s testimony regarding his 

positioning, and inconsistent with a finding that he intended to 

kill GiGi, as killing her would have endangered the baby’s life. 

Crutchfield’s testimony that he did not use any implements to hit 
39

GiGi or cut her throat was also consistent with GiGi’s account of 

events, and could support the inference that even if Carmouche 

intended to kill GiGi by attempting to cut her throat using 

broken glass, Crutchfield did not share that intent. Crutchfield 

testified that although he saw Carmouche crouching near GiGi as 

he left, he never saw her do anything to GiGi. Crutchfield has 

thus “ ‘contested the omitted element [of intent to kill] and raised 

evidence sufficient to support a contrary finding.’ ” (Lopez, supra, 

14 Cal.5th at p. 581.) However unlikely we may find it, it is 

possible that a jury could find that Crutchfield entered GiGi’s 

apartment with the intent to assault her with force likely to 

cause great bodily injury rather than with intent to kill. 

Such a finding would not be inconsistent with the jury’s 

findings that Corder and Carmouche conspired to murder GiGi. 

“A ‘conspiracy may be proved through circumstantial evidence 

inferred from the conduct, relationship, interests, and activities 

of the alleged conspirators before and during the alleged 

conspiracy.’ ” (People v. Kopp (2019) 38 Cal.App.5th 47, 84.) 

Texts between Corder and Carmouche demonstrated that Corder 

knew Carmouche was violent and obsessively devoted to him. 

Crutchfield’s testimony that Corder decided to include 

Carmouche at the last minute in what Corder told Crutchfield 

was just a plan to rough GiGi up combined with Carmouche’s 

actions—bringing a knife and gloves to the apartment and 

gathering other deadly objects from the kitchen to use to hit and 

cut GiGi—support the reasonable inference that Corder and 

Carmouche conspired to commit murder and not assault, while 

leaving open the possibility that Crutchfield did not. 

It is well established that “[w]hen there has been a 

postconviction change in the statutory or decisional law that 
40

invalidates a theory upon which the conviction was based and 

reversal is warranted, appellate courts remand the case to the 

trial court to allow the prosecution to retry the defendant on a 

legally valid theory.” (People v. Hola (2022) 77 Cal.App.5th 362, 

371.) Where a defendant’s attempted murder conviction is 

reversed based on a direct appeal of the trial court’s judgment 

under section 1172.6, subdivision (g), “the prosecution is entitled 

to retry him [or her] on that charge if it can in good faith advance 

a valid legal theory to support the conviction. [Citation.]” (See

id. at p. 377 [reversing murder conviction and remanding to 

permit retrial].) Accordingly, we reverse Crutchfield’s conviction 

for willful, deliberate, and premeditated attempted murder in 

count 2, vacate the associated personal infliction of great bodily 

injury enhancement (§ 12022.7, subd. (a)), and remand the 

matter to permit the prosecution the opportunity to retry 

Crutchfield on a legally valid theory.

Scope of Cross-Examination

Crutchfield, joined with brief comment by Corder and 

Carmouche, argued that GiGi’s refusal on three occasions while 

testifying to review certain documents because she believed the 

documents would not refresh her memory was a deliberate 

attempt to evade cross-examination in violation of the Sixth 

Amendment right to confront witnesses and Fourteenth 

Amendment right to due process. Crutchfield specifically 

contends that “[i]t was error to allow [GiGi] to refuse to look at a 

document and see if it would trigger her memory, and . . . it was 

error not to allow the defense to introduce that prior statement so 

the jury could evaluate whether it was true and whether GiGi 
41

was being hostile to the defense, a fact which the jury could 

properly consider in evaluating her testimony.”

GiGi’s testimony covered approximately 327 pages of 

reporter’s transcript. She was subjected to extensive crossexamination. The three instances disputed by defendants do not 

arguably result in a violation of their rights to confront and crossexamine a witness. Defendants also cannot establish prejudice, 

as a detective testified to GiGi’s statements as to two of the 

disputed matters, and the detective was never questioned as to 

the third. The contention is entirely without merit.

Proceedings

During Crutchfield’s cross-examination of GiGi, she 

answered numerous questions and reviewed documents five 

times to refresh her memory at counsel’s request before she 

declined to review a document because it would not assist her 

recollection. Her memory was successfully refreshed twice. 

When questioned about her statements to police with respect to 

Crutchfield’s knowledge of Carmouche’s participation in the 

attack, GiGi stated that reviewing a transcript would not refresh 

her memory:

“[Crutchfield’s counsel]: Didn’t you previously tell the 

detectives that while Mr. Crutchfield was straddling you, beating 

you, he didn’t know that Ms. Carmouche was hitting you over the 

head with items?

“[GiGi]: How would he not know? He’s straddling me and 

she’s hitting me in the head. That doesn’t even make any sense.

“[Carmouche’s counsel]: Objection. Nonresponsive. 

Motion to strike.
42

“The Court: Sustained. Stricken.

“[Crutchfield’s counsel]: Did you tell the detectives that, 

though?

“[GiGi]: Not that I remember.

“[Crutchfield’s counsel]: Would it refresh your recollection 

to look at the --

“[GiGi]: No.

“[Crutchfield’s counsel]: Your Honor, may I read the 

transcript to her?

“The Court: No. She said it would not help her refresh her 

recollection. Go on to the next question.”

Following this, Crutchfield’s counsel asked GiGi whether 

reviewing documents would refresh her memory three more 

times, and she agreed that it might. In two instances, reviewing 

the documents was helpful. In another instance, counsel 

withdrew her question. Counsel then questioned GiGi regarding 

whether she made statements to the police with respect to 

Corder:

“[Crutchfield’s counsel]: Three different occasions in the 

first interview with the detectives, you told them you were afraid 

and they better get [Corder] before he gets to and kills or hurts 

whoever did this to you?

“[GiGi]: I don’t remember that.

“[Crutchfield’s counsel]: Would it refresh your recollection?

“[GiGi]: I don’t remember.

“[Crutchfield’s counsel]: Would it refresh your recollection 

to look at the transcript?

“[GiGi]: No. No.

“The Court: She said no. Next question.
43

“[Crutchfield’s counsel]: Is the Court going to allow me to 

impeach her with her statement?

“The Court: No, because she said she doesn’t remember.”

“[Crutchfield’s counsel]: Did you tell the detectives on the 

first interview that you were 99.999 percent sure that it wasn’t 

[Corder]?

“[GiGi]: I don’t remember that. . . . [¶] . . . [¶] . . . [¶]

“[Crutchfield’s counsel]: Would it refresh your recollection 

to review the transcript?

“[GiGi]: No, because I don’t remember it.”

Soon afterwards, the court recessed for the day. Out of the 

presence of the jury, the court reminded the defense that “I don’t 

remember” was not necessarily an inconsistent statement that 

would open the door to impeachment.

The next day Crutchfield’s cross-examination of GiGi 

continued. At sidebar, counsel expressed concern regarding 

whether she would be permitted to impeach GiGi with 

statements that GiGi could not remember making to police.

“[Crutchfield’s counsel]: In light of GiGi’s previous 

testimony, I don’t want to be in a position where we’re not 

allowed to impeach her with Detective January’s testimony, 

based on a lot of things she said that she could not remember. 

She also did not even care to or agree to look at some of the 

defense documents in trying to refresh her recollection. She just 

won’t look at it to see.

“The Court: Because she said if you presented such a 

document, that it would not refresh her recollection. [¶] She is 

not required to look at anything unless she says it would assist 

her in refreshing her recollection. If a witness says it will not 

help her refresh her recollection, that’s it. [¶] So it is not that 
44

she’s refusing to look at the document. She said two or three 

times that looking at a document would not refresh her 

recollection.

“[Crutchfield’s counsel]: And it is my perception, based on 

her previous testimony through the trial, that that’s her position, 

saved just for the defense. [¶] I understand emotionally why she 

would not want to assist us, but she is not being that 

uncooperative with the [Deputy] District Attorney. I don’t think 

there is a time where she will tell the [Deputy] D.A., ‘no, it won’t 

refresh my recollection.’

“The Court: You’re speculating. There hasn’t been a time 

where the [Deputy] District Attorney has asked her to refresh her 

recollection and she says whether it would help her or not. [¶] 

Did you ever ask her to refresh her recollection?

“[Prosecutor]: No. [¶] My understanding is she already 

stated she was super out of it and on drugs, and just came off a 

breathing tube during the first interview, and she doesn’t 

remember what she told detectives, and counsel keeps asking 

her, and she doesn’t remember.

“[Crutchfield’s counsel]: So is it the court’s position the 

court will allows us, for things she says she didn’t remember 

and/or didn’t remember and it wouldn’t refresh her recollection to 

look at a document, will we be allowed to introduce her 

statements through the detective?

“The Court: You cannot impeach her unless there is an 

inconsistent statement. Her saying ‘I don’t remember’ 

occasionally, based on what I have heard so far, it is not 

deliberately evasive. It is not intentionally trying to -- that is my 

opinion and my finding, that I do not find when she says ‘I don’t 

remember,’ given the circumstances in this case, it is very clear to 
45

me that she is not being deliberately evasive. [¶] So it is not -- ‘I 

do not remember that word’ does not necessarily equate to 

inconsistent. It does in certain cases. Not in this case.” 

After continuing discussion on the issue, the trial court 

reiterated: “I just want to make sure you’re clear, [counsel]. [¶] 

At this point I do not find the witness is being deliberately 

evasive when she answers ‘I don’t remember’ or ‘I don’t know.’ I 

have not seen that at all. I have been watching her very clearly. 

[¶] In this case, more than any other, I have not seen any hint of 

that. She’s very forthright. She does not appear to be 

intentionally falsifying the ‘I don’t knows,’ or trying to avoid the 

answer.” 

Law

“The Sixth Amendment of the United States Constitution 

grants a criminal defendant the right to confront adverse 

witnesses.” (People v. Lopez (2012) 55 Cal.4th 569, 573.) “ ‘Crossexamination may expose facts from which jurors can 

appropriately draw inferences about the reliability of a witness, 

including the possibility of bias. The trial court, however, has 

wide latitude to restrict such cross-examination, and such 

testimony is properly barred unless the defendant can show the 

prohibited cross-examination would have produced a significantly 

different impression of the witness’s credibility.’ (People v. Brady

(2010) 50 Cal.4th 547, 560; see People v. Smith (2007) 40 Cal.4th 

483, 513.)” (People v. Capistrano (2014) 59 Cal.4th 830, 866.)

“The trial court has broad discretion under Evidence Code 

section 765 to exercise control over interrogation of witnesses and 

protect them from undue harassment or embarrassment. (People 
46

v. Tafoya (2007) 42 Cal.4th 147, 175 [(Tafoya)]; [People v.] Spence

[(2012)] 212 Cal.App.4th [478,] 517 [(Spence)].) On appeal, we 

apply the abuse of discretion standard in reviewing a trial court’s 

exercise of its authority under Evidence Code section 765. 

(Tafoya, at p. 175; Spence, at p. 517.)” (People v. Chenault (2014) 

227 Cal.App.4th 1503, 1514.)

Feigned memory loss does not implicate the constitutional 

right to cross-examine witnesses. “The circumstance of feigned 

memory loss is not parallel to an entire refusal to testify. The 

witness feigning memory loss is in fact subject to crossexamination, providing a jury with the opportunity to see the 

demeanor and assess the credibility of the witness . . . . ‘[T]he 

traditional protections of the oath, cross-examination, and 

opportunity for the jury to observe the witness’s demeanor satisfy 

. . . constitutional requirements.’ (United States v. Owens

[(1988)] 484 U.S. [554,] 560.) In the face of an asserted loss of 

memory, these protections ‘will of course not always achieve 

success, but successful cross-examination is not the constitutional 

guarantee.’ (Ibid.)” (People v. Gunder (2007) 151 Cal.App.4th 

412, 420 (Gunder).)

Analysis

Based on the above authorities, we reach the following 

conclusions. First, GiGi was subject to constitutionally adequate 

cross-examination designed to demonstrate her bias and lack of 

recollection. After over 300 pages of examination in the 

reporter’s transcript, we have no difficulty in finding compliance 

with the Sixth Amendment.
47

Second, even if GiGi feigned a lack of memory by refusing 

to attempt to refresh her recollection, defendants’ constitutional 

rights were not violated. (Gunder, supra, 151 Cal.App.4th at 

p. 420.)

Third, defendants pointed to no precedent in support of 

their contention that the trial court must require a witness to 

review a document to refresh her memory after the witness has 

stated that such review will not be helpful. The trial court did 

not abuse its considerable discretion to control the mode of 

questioning when it ruled GiGi was not evasive in the few 

instances in which she declined to attempt to refresh her 

recollection.

Fourth, the jury was able to observe GiGi’s demeanor when 

she testified that she could not remember what she said to the 

police. The jurors were able to make their own determination as 

to whether her answers were credible. The trial court instructed 

the jury pursuant to CALCRIM No. 226 to consider how well a 

witness could perceive the subject matter of her testimony, the 

ability of a witness to remember and describe what happened, the 

behavior of a witness while testifying, the attitude of a witness 

about the case and about testifying, and whether a witness made 

prior consistent or inconsistent statements. This instruction 

provided the jury with the necessary tools to assess GiGi’s several 

refusals to consider refreshing her memory, and afford that 

conduct whatever weight it deserved.

Fifth, defendants cannot establish prejudice. (People v. 

Byron (2009) 170 Cal.App.4th 657, 676 [Confrontation Clause 

violations are subject to federal harmless-error analysis under 

Chapman v. California (1967) 386 U.S. 18, 24]; see People v. 

Ledesma (2006) 39 Cal.4th 641, 709.) Detective January 
48

specifically testified to the statements that were the subject of 

the last two unsuccessful requests to refresh GiGi’s recollection, 

and the detective was not even asked about the first statement in 

dispute. The jury therefore heard testimony regarding two of the 

prior statements, and defendants made no attempt to bring out 

the third statement.

Evidence Supporting Torture Convictions

Carmouche contended that there was insufficient evidence 

to support her conviction for torture because the evidence did not 

demonstrate that she intended to cause cruel or extreme pain or 

suffering for the purpose of revenge, extortion, persuasion, or any 

sadistic purpose. Corder joined in her contention, arguing that if

the evidence was insufficient to support Carmouche’s torture 

conviction, his conviction as an aider and abettor must also be 

reversed. Substantial evidence supports both convictions.

Law

In assessing a claim of insufficiency of evidence, the 

appellate court’s task is to review “the whole record in the light 

most favorable to the judgment . . . to determine whether it 

discloses substantial evidence—that is, evidence which is 

reasonable, credible, and of solid value—such that a reasonable 

trier of fact could find the defendant guilty beyond a reasonable 

doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) The 

federal standard of review is to the same effect: under principles 

of federal due process, review for sufficiency of evidence entails 

not the determination whether the reviewing court itself believes 
49

the evidence at trial establishes guilt beyond a reasonable doubt, 

but, instead, “whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a 

reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 

319–320.) Where substantial evidence supports the jury’s 

finding, and other circumstances support a contrary finding, the 

jury’s finding will not be reversed. (People v. Stanley (1995) 10 

Cal.4th 764, 793.)

Section 206 provides: “Every person who, with the intent 

to cause cruel or extreme pain and suffering for the purpose of 

revenge, extortion, persuasion, or for any sadistic purpose, 

inflicts great bodily injury as defined in Section 12022.7 upon the 

person of another, is guilty of torture. [¶] The crime of torture 

does not require any proof that the victim suffered pain.”

“ ‘Courts have interpreted intent to inflict “cruel” pain and 

suffering as intent to inflict extreme or severe pain.’ (People v. 

Burton (2006) 143 Cal.App.4th 447, 452 [(Burton)].)” (People v. 

Hamlin (2009) 170 Cal.App.4th 1412, 1426 (Hamlin).) “ ‘Absent 

direct evidence of such intent, the circumstances of the offense 

can establish the intent to inflict extreme or severe pain.’ 

(Burton, supra, 143 Cal.App.4th at p. 452.)” (Hamlin, supra, at 

p. 1426.) It is not necessary that the defendant cause prolonged 

pain, or intend to do so. (Id. at p. 1427.) “A jury may consider 

the severity of the wounds in determining whether defendant 

intended to torture. (People v. Mincey (1992) 2 Cal.4th 408, 432–

433.)” (Burton, supra, at p. 452.) “ ‘[A] jury may [also] infer 

intent to cause extreme pain from a defendant who focuses [her] 

attack on a particularly vulnerable area, such as the face, rather 

than indiscriminately attacking the victim.’ [Citation.]” 
50

(Hamlin, supra, at pp. 1426–1427.) Intent can be reasonably 

inferred when the defendant “deliberately strikes [her] victim on 

an area of the body that is already injured.” (Id. at p. 1430.) 

“ ‘[S]carring and disfigurement constitute strong circumstantial 

evidence of intent to inflict severe pain and suffering.’ (People v. 

Baker (2002) 98 Cal.App.4th 1217, 1224.)” (Burton, supra, at 

p. 452.)

Analysis

Crutchfield rushed GiGi, punching her multiple times and 

knocking her to the floor. Carmouche knew that Crutchfield had 

hit GiGi in the head and continued to do so, yet she attacked 

GiGi mercilessly, using various weapons to batter, bruise, stab, 

and slash GiGi’s injured face and her breasts. She focused her 

attack on these specific, vulnerable areas of the body, attacking 

repeatedly. GiGi’s wounds were severe. She lost fingernails 

while trying to ward off her attackers. Carmouche hit GiGi in 

the head with a frying pan, knocking out two of her teeth. She 

sliced GiGi’s neck numerous times and then covered her mouth 

and nose until she lost consciousness. Following the attack, GiGi 

was placed in a medically induced coma, requiring a breathing 

tube. Her face and neck were permanently scarred, as the jury 

recognized when it convicted defendants of mayhem. (See People 

v. Newby (2008) 167 Cal.App.4th 1341, 1347 [mayhem requires a 

finding that the victim sustained “a permanent disfiguring 

injury”].) These facts strongly support the jury’s finding that 

Carmouche intended to torture GiGi.

We are not persuaded by the cases Carmouche relies upon 

to argue that torture requires more than the facts of this case 
51

demonstrate. That there are other cases in which the injuries 

suffered were more severe and the acts committed even more 

horrifying is of no moment. “There is no question there are cases 

in which the acts of torture were more gruesome. However, 

‘[w]hen we decide issues of sufficiency of evidence, comparison 

with other cases is of limited utility, since each case necessarily 

depends on its own facts.’ (People v. Thomas (1992) 2 Cal.4th 

489, 516.)” (People v. Odom (2016) 244 Cal.App.4th 237, 248.) 

The facts of this case amply support a finding of intent to torture.

Finally, there was substantial evidence that Carmouche 

tortured GiGi “for the purpose of revenge, extortion, persuasion, 

or [another] sadistic purpose.” (§ 206.) Evidence was presented 

that Carmouche was infatuated with Corder. She told him she 

would do anything to protect him. She told Crutchfield she would 

do “dumb shit” on Corder’s behalf. GiGi was Corder’s wife and 

was carrying his child. It would be reasonable for the jury to 

infer that Carmouche took sadistic pleasure in torturing and 

permanently disfiguring a perceived rival. Her concentration on 

GiGi’s face and breasts in a way that permanently disfigured and 

scarred GiGi further corroborates this inference. In light of the 

facts, we conclude that Carmouche and Corder’s torture 

convictions were supported by substantial evidence.

Witness Attire

Corder next argued that the trial court abused its 

discretion by requiring a fellow Marine who testified on his 

behalf to appear in civilian clothing. Corder argued that his 

witness, Lonel Springs, was prevented from presenting himself in 

the best possible light, which would have increased his credibility 
52

with the jury. He asserted that as an on-duty Marine, Springs 

should have been permitted to wear his uniform. We conclude 

that, even if the trial court abused its discretion, Corder’s 

contention fails because he has not established prejudice.

Proceedings

At trial, the prosecution objected when Springs presented 

himself for testimony dressed in his Marine Corps uniform. The 

prosecutor argued that, under Evidence Code section 352, it 

would be prejudicial to allow the witness to wear his uniform. 

She asserted that Corder was attempting to use Springs’s 

military service to bolster his credibility and sway the jury.

Corder’s counsel responded that wearing the uniform would 

not be prejudicial: “That’s what he is. So he is wearing his 

uniform. Whatever the Marines’ issue is, it is a Marines’ issue. 

It is not for this court to decide.”

The court questioned Corder’s counsel regarding the 

decision to have Springs wear his uniform:

“The Court: Why is he wearing a uniform to testify in a 

civilian case?

“[Corder’s counsel]: I gave him the option of what he 

wanted.

“The Court: Did you give him the option, or did you tell 

him to wear it?

“[Corder’s counsel]: I gave him the option.

“The Court: Did he ask you whether he should wear it or 

not?

“[Corder’s counsel]: Yes.

“The Court: And you said yes?
53

“[Corder’s counsel]: Yes.”

The court ruled: “Under [Evidence Code section] 352, I 

think that his wearing a uniform is, first of all, inappropriate in a 

civilian trial. [¶] Secondly, I agree with the People. I think that 

it will -- it was worn, in my opinion, given especially what you 

just told me, to allegedly add credibility to his testimony, and the 

wearing of the uniform, I think, adds nothing to the nature of his 

testimony. He allegedly witnessed an incident of domestic 

violence . . . in a private setting, not in an official capacity as a 

Marine. Even if he did, this trial has nothing to do with his being 

a Marine. [¶] So I think it is more prejudicial than probative. It 

would mislead the jury and it is not appropriate.”

Corder’s counsel stated that he would ask Springs whether 

it was a violation of Marine Corps policies or procedures to wear 

his uniform. The court said that it did not know whether it was a 

violation or not, but noted that it was a violation for police to 

testify in their uniforms regarding a private matter. Regardless, 

the court was not going to adjudicate matters of Marine Corps 

rules and procedures. The court was concerned solely with the 

impact on testimony.

Corder’s counsel responded: “His whole testimony will take 

about five minutes, Your Honor. If the uniform changes -- I will 

be surprised if that changes anybody’s mind on the facts of the 

case.”

Later, Corder’s counsel reported that he had spoken with 

Springs, who said the Marines permitted Springs to testify in a

uniform. The trial court did not change its ruling.18

18 Corder was allowed to address the court and stated, 

without any support, that Springs was on-duty and required to 
54

Springs testified that he and Corder met in the Marines in 

2005, when they were stationed at Camp Pendleton. They served 

in Fallujah together. Springs and his wife became friends with 

Corder and GiGi when they returned to the United States, and 

saw them daily from 2006 until 2010. Springs recounted an 

incident in which he witnessed GiGi hit Corder with a broom, 

swinging it as if it was a baseball bat. Corder did not retaliate. 

Springs had never seen Corder act violently toward GiGi. He had 

last seen Corder in 2010. Corder had a reputation in the Marines 

for being “calm, cool, and collective [sic].” He had “helped 

[Springs] with [his] temper.”

Springs’s testimony spanned four pages of transcript. None 

of the parties elected to cross-examine him.

Analysis

We see no reason to delve into the merits of the issue. 

Given the weight of the evidence in this case, the argument that 

it was prejudicial error to refuse to allow Springs to testify in 

uniform borders on the absurd.

Springs’s testimony was very brief. The jury knew that 

Springs and Corder were Marines, and that Springs vouched for 

Corder’s character. It was undisputed Corder and GiGi had a 

volatile relationship, and GiGi had testified to hitting Corder 

with the broom. Springs was not a percipient witness to the 

charged crimes. His testimony had nothing to do with the attack 

on GiGi or Corder’s role in it. We see absolutely no possibility 

wear a uniform. Although Corder mentions his statement, on 

appeal he does not argue that Springs was required to wear his

uniform at the hearing.
55

Corder would have obtained a more favorable result had Springs 

testified in uniform.

Posttraumatic Stress Disorder Evidence

Corder also contended that the trial court erred in ruling 

“that no mention could be made of PTSD, [and] opining that it 

was not a defense to any of the charges.” He argued that trial 

counsel’s failure to seek to have the PTSD evidence admitted on 

the ground that it supported a “diminished actuality” theory of 

defense—i.e., that Corder lacked the specific intent required to 

commit the charged crimes—was not forfeited because counsel 

was reacting defensively to “the pressure to state the relevance 

pre-trial [sic] and the court’s assertion that there was no PTSD 

defense to any of the charges,” and also because the argument 

was futile in light of the trial court’s ruling.19 Alternately, 

Corder argued he was prejudiced by counsel’s ineffective 

assistance in failing to seek admission of PTSD evidence on this 

basis.

We disagree with Corder’s characterization of the trial 

court’s ruling, and conclude there is no merit to his claim that 

trial counsel was pressured into abstaining from making a futile 

argument. Nor can we agree that defendant has established 

ineffective assistance of counsel, as trial counsel was not given an 

19 “[PTSD] evidence is admissible for the sole purpose of 

showing . . . ‘whether or not the accused actually formed a 

required specific intent, premeditated, deliberated or harbored 

malice aforethought, when a specific intent crime is charged’ 

(§ 28, subd. (a)) . . . .” (People v. Cortes (2011) 192 Cal.App.4th 

873, 908, italics omitted.)
56

opportunity to explain his strategic decisions on the record, and 

Corder fails to establish that it is reasonably probable that the 

outcome of the trial was negatively affected by counsel’s tactical 

choice.

Proceedings

With respect to the trial court’s ruling, the following 

colloquy took place at a pretrial hearing on the prosecution’s 

motion to exclude mention of PTSD:

“The Court: The People are seeking to exclude any 

reference to defendant Corder has [sic] PTSD, or -- [Corder’s 

counsel], are you going to introduce evidence of defendant having 

post-traumatic stress disorder?

“[Corder’s counsel]: I may. I may, based on crossexamination of GiGi and what is developed at the trial. It may 

come in. I don’t think the court can rule on that issue pretrial. I 

think it will have to rule as it is confronted during the trial.

“The Court: No. I need to know about it now. [¶] First of 

all, what is the relevance of his PTSD?

“[Corder’s counsel]: Well, there’s text messages that refer 

to GiGi saying ‘My husband died in Fallouja [sic].’ She texted 

that. [¶] I think that would be relevant based on those text 

messages that are going to come out. [¶] One of the prosecution’s 

theories, as the court is well aware, is that Mr. Corder did not 

want the child, and therefore he decided that he was going to kill 

GiGi because of that. [¶] They had a series of text messages. . . . 

It lasted most of a particular day and maybe into a second day 

about two months before this incident in which GiGi expresses 

how upset she is with Mr. Corder, and Mr. Corder is explaining 
57

his side of it, and in that, one of those text messages, she said ‘My 

husband died in Fallouja [sic].’ [¶] Well, what does that mean? I 

want to find out what that means.

“The Court: How is that relevant?

“[Corder’s counsel]: It is relevant to explain what she’s 

talking about there, that he has -- it is all part of the case, 

whether he has PTSD or not. We’re not offering it as a defense or 

anything like that, but we’re offering it as part of the facts of the 

case.

“The Court: [Prosecutor]? How is it relevant that the 

defendant had PTSD?

“[Prosecutor]: I just didn’t want it coming out as some sort 

of a defense. If [Corder’s counsel] is saying he just wants to 

question GiGi about the messages and what she meant . . . and 

basically referring to the fact that he came back a different 

person, I don’t have an issue with that.

“The Court: Is that your intent?

“[Corder’s counsel]: Yes. That’s it.

“The Court: So you are going to introduce evidence asking 

GiGi to clarify the text message?

“[Corder’s counsel]: Yes. That’s all.

“The Court: You have no objection to that?

“[Prosecutor]: I don’t have an issue with that. I just didn’t 

want an expert at the last second talking about some type of 

psychological defense that I had never heard of.

“The Court: There is no such defense.

“[Corder’s counsel]: There will be no expert coming in. I 

can represent that.”

The trial court asked if either Carmouche or Crutchfield 

objected to admission of PTSD evidence on this limited basis. 
58

Carmouche’s counsel noted that there were many text messages 

and he would not know whether he would object until a specific 

issue arose. The trial court reiterated that the evidence would 

only be admitted in the limited context of the single text they had

discussed. Corder’s counsel stated, “Among other things, it may 

relate to the other issues that come up. But there is no expert 

evidence.”

The court responded: “In addition to the expert evidence, 

I’m not allowing you to go into a detailed explanation of his PTSD 

condition. . . . I know the People are not objecting for you to 

probe into the clarification of the text messages that are going to 

be introduced, but we’re not going to be sidetracked with regards 

to that medical condition.” The court allowed the introduction of 

PTSD evidence for the limited purpose discussed.

Analysis

The record demonstrates that the court did not rule that all 

PTSD evidence was inadmissible, as Corder represents. The 

court allowed Corder to present evidence of his text message for 

the specific purpose mentioned by defense counsel. It is clear 

that Corder’s counsel had no intention of presenting a diminished 

actuality defense on the basis of PTSD evidence, and was not 

pressured by the trial court in this regard. We view the trial 

court’s statement that “[t]here is no such defense,” and its 

prohibition on broader admission of the evidence as reassurance 

to the prosecution that Corder’s counsel was not seeking to admit 

the PTSD evidence as a defense before trial, and would not be 

allowed to ambush the prosecution with the defense midtrial. 

Corder’s counsel similarly reassured the prosecutor that he would 
59

not be calling an expert witness to testify regarding PTSD. The 

trial court did not err in its statements, nor did it force counsel 

into a position where he could not comfortably press for 

admission on a diminished actuality theory prior to trial. We 

cannot conclude the court abused its discretion in ruling that the 

defense would not be allowed to present evidence of a defense 

that it expressly eschewed. (See People v. Vieira (2005) 35 

Cal.4th 264, 292 [“A trial court’s decision to admit or exclude 

evidence is reviewable for abuse of discretion”].)

We reject Corder’s contention that counsel was 

constitutionally ineffective. (People v. Williams (1998) 61 

Cal.App.4th 649, 657.) To establish a claim of ineffective 

assistance of counsel, a defendant must show that counsel’s 

performance was both deficient and prejudicial, i.e., that it is 

reasonably probable that counsel’s unprofessional errors affected 

the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687, 

693–694; People v. Ledesma (1987) 43 Cal.3d 171, 216–217.) “The 

Sixth Amendment guarantees competent representation by 

counsel for criminal defendants[, and reviewing courts] presume 

that counsel rendered adequate assistance and exercised 

reasonable professional judgment in making significant trial 

decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703, citing 

Strickland v. Washington, supra, 466 U.S. at p. 690; People v. 

Freeman (1994) 8 Cal.4th 450, 513.) If the record sheds no light 

on why counsel acted or failed to act in the challenged manner, 

we must reject the claim on appeal unless counsel was asked for 

an explanation and failed to provide one, or there could be no 

satisfactory explanation for counsel’s performance. (People v. 

Mendoza Tello (1997) 15 Cal.4th 264, 266.)
60

On this record, we cannot conclude that counsel was 

ineffective for failing to seek admission of PTSD evidence to show 

that Corder lacked specific intent to commit the crimes. The 

record is silent as to the reason for counsel’s tactical choice. We 

have no way of knowing whether counsel had Corder examined 

for PTSD and if an expert would have been willing to testify to 

his condition. There is simply no ground for concluding counsel’s 

performance was deficient. 

Cumulative Error

Corder and Carmouche argue the errors alleged, even if not 

individually prejudicial, are prejudicial when taken together. 

There was no cumulative error, as any error was inconsequential. 

(See People v. Hines (1997) 15 Cal.4th 997, 1075.)

Assembly Bill No. 518

Finally, in their supplemental briefing following transfer 

back from the Supreme Court, all three defendants argue that 

the cause must be remanded for the trial court to determine 

whether to exercise its discretion under Assembly Bill 518, which 

became effective on January 1, 2022, after defendants’ last 

appeal. The People concede that Assembly Bill 518 applies to 

defendants’ case retroactively, and we accept that concession.

Prior to Assembly Bill 518, section 654 provided that an act 

or omission punishable in different ways by different provisions 

of law could only be punished under the provision with the 

longest potential term of imprisonment. Assembly Bill 518 

amended section 654 to give trial courts the authority to impose 
61

punishment under any one of two or more provisions that permit 

punishment of the same act, but not more than one provision. 

(§ 654, subd. (a).) 

In this case, all three defendants were convicted of multiple 

crimes arising out of the same acts. In accordance with the 

requirements of section 654 as it existed at the time of their 

sentencing hearings, the trial court imposed the longest possible 

sentence as to each defendant. We agree with the parties that 

Assembly Bill 518 applies retroactively to defendants’ case, which 

is not yet final on appeal. (See e.g., People v. Superior Court

(Lara) (2018) 4 Cal.5th 299, 309 [holding new laws granting 

courts discretion to ameliorate punishment, even if that 

discretion is ultimately exercised only in “some cases,” should be 

applied retroactively to “ ‘ “every case to which it constitutionally 

could apply” ’ ”].) 

With respect to Crutchfield, the matter will be remanded to 

permit the prosecution to retry the attempted murder charge and 

associated enhancement. The trial court may decide whether to 

exercise its discretion under Assembly Bill 518 at Crutchfield’s 

resentencing hearing. 

Corder and Carmouche are entitled to a limited remand to 

permit the trial court to determine whether to exercise its 

discretion under Assembly Bill 518 and section 654. On remand 

the trial court should conduct a hearing for each defendant, in 

the presence of the defendant, defendant’s counsel, and the 

People to determine whether to exercise its discretion to modify 

the original sentence as to that defendant. If the court decides to 

exercise its newly authorized discretion to impose a term other 

than the term with the longest potential term of imprisonment, 

the court should proceed to resentence that defendant. If the 
62

court decides not to exercise its discretion to impose a lesser

sentence than that previously mandated, the prior sentence is to 

remain in effect, and the defendant need not be resentenced but 

should be remanded to continue serving the term previously 

imposed. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 

1255; People v. Buchalter (2001) 26 Cal.4th 20, 35.)

DISPOSITION

Crutchfield’s conviction for willful, deliberate, and 

premeditated attempted murder in count 2 is reversed and the 

associated personal infliction of great bodily harm enhancement 

is vacated. The cause is remanded to the trial court to permit the 

prosecution to retry Crutchfield under a valid theory of liability if 

it so elects. The judgment is otherwise affirmed.

As to Corder and Carmouche, the judgment is affirmed. 

We remand for the limited purpose of allowing the trial court to 

determine whether to exercise its discretion under Assembly Bill 

518 and section 654, and to proceed to resentence one or both of 

the defendants if it determines to exercise that discretion. If the 

trial court decides not to exercise its discretion to modify the 

original sentence as to an individual defendant, that sentence
63

will remain in effect, and the defendant need not be resentenced 

but should be remanded to continue serving the term previously 

imposed. 

NOT TO BE PUBLISHED.

MOOR, J.

I concur:

RUBIN, P. J.
The People v. Brian Boseman Corder et al.

B261370

BAKER, J., Concurring in Part and Dissenting in Part

I join the majority’s analysis and disposition in full with 

respect to defendant and appellant Stephon Crutchfield. I also 

agree with nearly all of the majority’s rationale with respect to 

the other two defendants, Brian Corder and Fredericka 

Carmouche.

I respectfully dissent, however, from the majority’s decision 

to resolve on the merits those two defendants’ post-Lopez

arguments.1 Our Supreme Court did not grant those two 

defendants’ petitions for review—it denied them. Thus, absent 

some clear, express direction from our Supreme Court regarding 

how we should proceed as to them (regrettably, there is none), I 

see no basis to reach their newly raised contentions.

BAKER, J.

1

In re Lopez (2023) 14 Cal.5th 562.