People v. Dunson CA2/3

Filed 10/26/26 P. v. Dunson CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE THE PEOPLE, B341477 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA027330) v. TERRENCE DUNSON, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Sam Ohta, Judge. Affirmed. Lori Nakaoka, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent. _________________________  In 2005, a jury convicted Terrence Dunson of four counts of attempted murder. Thereafter, Dunson petitioned for resentencing under Penal Code section 1172.6,1 which limited accomplice liability for some murder-related crimes. After an evidentiary hearing under that section, the trial court resentenced Dunson on one count of attempted murder. However, the trial court denied the petition as to the remaining three counts, finding sufficient evidence that Dunson directly aided and abetted the attempted murders and had the intent to kill. On appeal, Dunson contends there was insufficient evidence to support that finding. He specifically takes issue with the trial court’s attribution to him of a statement made during the incident to shoot or kill “these motherfuckers.” We conclude there was sufficient evidence that Dunson made the statement and that the statement evidenced his intent to kill. We therefore affirm the trial court’s order denying resentencing. BACKGROUND I. Evidence at Dunson’s trial Dunson, Marshawn Jackson, and Brian McDonald robbed a bar and Jackson shot at all four people in the bar, wounding three of them. Surveillance cameras captured the incident. All three defendants were tried together. Finding this division’s opinion affirming Dunson’s judgment of conviction on direct appeal, People v. Dunson et al. 1 All further undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) 2 (Oct. 13, 2006, B185018) [nonpub. opn.] to be an accurate summary of the evidence introduced at their trial, we take the background from it.2 We note additions in brackets and, in the Discussion part of this opinion, we discuss in greater detail the challenged statement attributed to Dunson. As stated in the opinion, the evidence was as follows: “On September 13, 2003, John Tarry was working at Snooky’s, a bar he owned in Antelope Valley. Also present at Snooky’s that day were Jeff Collier, a customer and Tarry’s friend; John Long, the doorman; and April Tapia, the bartender. At the time of the robbery, Snooky’s had a front public area with pool tables and a bar. It also had a private, windowless, back office where Tarry kept a safe. “Soon after Snooky’s opened after 12:00 p.m., Terrence Dunson, Marshawn Jackson, and Brian McDonald entered the bar. Dunson was taller than the other two men, and he was wearing a light-colored floppy hat. McDonald and Jackson were wearing black skull caps[, McDonald wore a white shirt, and Jackson wore a red shirt.] They bought beers and played pool. At some point, Tarry asked Dunson to give back his beer because he did not have identification. Dunson did so, and Tarry gave back Dunson’s money. Dunson, Jackson, and McDonald left Snooky’s. “Immediately after leaving, Dunson, Jackson, and McDonald reentered Snooky’s. Dunson hit Tarry in the head with a bar stool. Tapia began to run to the back door. As she 2 On our own motion, we take judicial notice of that opinion. (Evid. Code, § 452, subd. (a); see generally People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis) [appellate opinion generally part of record of conviction in § 1172.6 proceedings].) 3 ran, she heard a gunshot, which she later learned was Long being shot in his left hip. The shooter was left-handed, and he wore a red shirt. One of the men stopped Tapia as she was running and asked if she wanted to die right there. [Video surveillance shows it was McDonald who stopped Tapia.] She was made to lie on the floor near the back kitchen area, which is about halfway to the office. [Fn. omitted.] “Dunson made Tarry get up and go into the back office (about 10 to 12 feet), where a safe was located. En route to the office, one of the other men hit Tarry twice, knocking out some of his teeth. Dunson told Tarry to open the safe. When Tarry was unable to open the safe, Dunson called for his friend to come and ‘kill this motherfucker[,’ which Dunson repeated numerous times]. Jackson pointed the gun at Tarry’s head. Dunson kicked Tarry’s foot, fracturing it. Long, whose hands were bound, Collier, and Tapia were also moved into the office. Dunson told Tarry something to the effect of, ‘open the safe old man. If you don’t open the safe, we’re going to kill these people.’ Tarry opened the safe, and the men took about $4,000 from the safe and $400 from Tarry. They put the money in a blue plastic bag. “After defendants had emptied the safe and Dunson left the office, Tapia heard one of them say ‘ “just go back and kill them motherfuckers” or something like that.’[3] While in a fetal position on the floor, she was shot in her hip, and the bullet exited and grazed her breast. Collier was shot in his left arm. [Fn. omitted.] According to Tarry, a gunshot directed at him missed and hit the computer instead. [Surveillance footage [3] “Tapia said that those might ‘not be the exact words but something of that nature.’ ” 4 showed Dunson leaving the office and, as soon as he did, Jackson shot at the victims. McDonald was at the bar, collecting liquor bottles.] Long, who had been immediately shot upon defendants’ reentrance into Snooky’s, had to be airlifted to a hospital because of the seriousness of his condition. [¶] . . . [¶] [Tapia testified that throughout the incident, Dunson made all the calls and told everybody what to do. It seemed to her that ‘every voice came from his mouth.’ When Dunson said something, the others followed what he said.] “[The robbers left in a car driven by Dunson’s sister, Amber Dunson. A map of Snooky’s bar was found in the car the robbers escaped in.] Rakeina Rubin, the mother of Dunson’s child, drew the map. She had worked at Snooky’s, and within a week before the incident, she was in the back room with Tarry, who was getting money from the safe to pay her.… “A single particle of gunshot reside was found on Jackson’s left hand. Surveillance cameras captured the incident, and a videotape and a DVD were played for the jury. [Fn. omitted.] At trial, Tarry identified Dunson as the man who hit him with a bar stool and stayed in the back office with him.” (People v. Dunson et al., supra, B185018.) II. Verdict and sentence At defendants’ joint trial, the trial court instructed the jury on the natural and probable consequences doctrine. A jury found Dunson guilty of four counts of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)), three counts of kidnapping to commit robbery (§ 209, subd. (b)(1)), and four counts of robbery (§ 211). The jury found true principal gun use (§ 12022, subd. (b)(1)) and great bodily injury (§ 12022.7) allegations. 5  On July 25, 2005, a court sentenced Dunson to seven consecutive life terms, including on the attempted murder counts, with the minimum term of parole eligibility doubled under the “Three Strikes” law. The court sentenced Dunson to consecutive terms of six years for robbery, five years under section 667, subdivision (a), one year under section 12022, subdivision (b)(1), and three years under section 12022.7. III. Section 1172.6 petition and evidentiary hearing In 2022, Dunson petitioned for resentencing under section 1172.6. The People conceded that Dunson established a prima facie case for eligibility for relief but nonetheless contended he was convicted of attempted murder as a direct aider and abettor. The trial court conducted an evidentiary hearing at which the parties did not introduce new evidence. The trial court instead relied on the underlying trial transcripts and surveillance videos.4 In its lengthy order, the trial court summarized the events as reflected in two exhibits, surveillance footage from a VHS and on a CD. The VHS had sound but did not contain footage of the office. The CD surveillance footage included eight camera angles of, for example, the office, the bar area, and the pool table area, but it had no audio. In summarizing what happened in the office once all victims were gathered there and Tarry had opened the safe, the trial court noted that Tapia testified that a defendant said, “ ‘just go back and kill them motherfuckers.’ ” The trial court stated, “Surveillance video of the office shows, when Dunson … obtained 4 The reporter’s transcript of the evidentiary hearing could not be produced, and the trial court and parties produced a settled statement in its place. 6 the money, and left the office, Jackson shot Tapia, Collier, and shot at Tarry almost immediately after Dunson leaves the video frame from the office. At that same time, the surveillance video frame from the bar shows McDonald was in the bar area collecting bottles of liquor to steal. He is not near the office. Furthermore, since Jackson possessed the gun, it is illogical to conclude that he was verbally commanding himself to go back and kill. Therefore, the only logical person to have said those words was Dunson.” Turning to mens rea, the trial court observed that defendants were “lifelong friends who could be trusted to commit violent crimes together.” The robbery was planned and sophisticated, and it was reasonable to conclude the participants had discussed and “mentally adopted” the possibility of killing someone; indeed, both Dunson and McDonald “uttered the words ‘kill’ or ‘die’ at the victims.” Defendants “worked seamlessly together,” with Dunson going straight for Tarry to access the safe and Jackson immediately shooting the doorman Long, “the only possible threat.” The trial court described each participant’s role in the crimes: Jackson was the “enforcer, the person with the gun,” whose role was to inflict violence to gain compliance; McDonald subdued the victims and took them into the office; and Dunson “was the leader,” who threatened Tarry with death, threatened the other victims with death if Tarry didn’t open the safe, and told Jackson to kill the victims. The trial court found that Dunson’s command to Jackson to “ ‘just go back and kill them motherfuckers’ ” reflected a “complete and ripened intent to kill.” But the trial court found that other factors also evidenced Dunson’s intent to kill. The robbery was carefully planned and executed. The motive for 7 shooting the victims was to eliminate witnesses, as the money had been obtained and there was no need for further violence to gain compliance. Finally, the manner of attempted killing, “cannot be considered anything other than an execution—with all the victims cramped together in one room.” The trial court, however, excluded the attempted murder of Long from this analysis. It reasoned that when Jackson shot Long immediately on reentering the bar, “it is not clear Dunson had formed the clear intent to kill, despite Jackson shooting and intending to kill Long.” Accordingly, the trial court granted the petition as to the attempted murder of Long but denied it as to the other three victims. DISCUSSION I. Senate Bill No. 1437 and standard of review Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) and subsequent related legislation limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person’s participation in a crime. (See generally People v. Reyes (2023) 14 Cal.5th 981, 986 (Reyes); Lewis, supra, 11 Cal.5th at pp. 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).) Effective January 1, 2022, Senate Bill No. 775 made these ameliorative changes to the law applicable to attempted murder under the natural and probable consequences doctrine and to voluntary manslaughter. 8  Senate Bill 1437 added section 188, subdivision (a)(3), which provides that “to be convicted of murder, a principal in a crime shall act with malice aforethought” and malice “shall not be imputed to a person based solely on his or her participation in a crime.” Senate Bill 1437 also amended the felony-murder rule by adding section 189, subdivision (e), which provides that a participant in the perpetration of qualifying felonies is liable for felony murder only if the person (1) was the actual killer, (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor, or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (Gentile, supra, 10 Cal.5th at p. 842.) Senate Bill 1437 created a procedure, codified at section 1172.6, for a person convicted of, as relevant here, attempted murder under the former law to be resentenced if the person could no longer be convicted of that crime under current law. (Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences that procedure by filing a petition containing a declaration that, among other things, the defendant could not presently be convicted of attempted murder under current law. (People v. Strong (2022) 13 Cal.5th 698, 708.) If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing at which the parties may offer new or additional evidence and the trial court sits as an independent factfinder to determine beyond a reasonable doubt whether the defendant is guilty of attempted murder under a valid theory. (§ 1172.6, subds. (b)(3), (c), & (d); People v. Garrison (2021) 73 Cal.App.5th 735, 745.) 9  We review a trial court’s findings after a section 1172.6, subdivision (d)(3), evidentiary hearing for substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298; accord, People v. Mitchell (2022) 81 Cal.App.5th 575, 591.) Under that standard of review we “ ‘ “examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.” ’ ” (Clements, at p. 298.) We presume in support of the judgment the existence of every fact that can be reasonably deduced from the evidence. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.) We do not resolve credibility issues or evidentiary conflicts. (Ibid.) Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57.) Before we may set aside a trial court's order, it must be clear that “ ‘ “upon no hypothesis whatever is there sufficient substantial evidence to support [it].” ’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) II. Substantial evidence supports the trial court’s findings Dunson contends that the trial court’s order is based on the faulty factual finding that he told Jackson to shoot or kill “these motherfuckers.” As we now explain, sufficient evidence supports that finding and the ultimate finding that Dunson intended to kill the three victims. Attempted murder requires the specific intent to kill and a direct but ineffectual act toward accomplishing the intended killing. (People v. Perez (2010) 50 Cal.4th 222, 229.) Rarely is there direct evidence of intent to kill, so intent to kill (or express 10 malice) may be inferred from the defendant’s acts and circumstances of the crime. (People v. Smith (2005) 37 Cal.4th 733, 741.) A defendant aids and abets a crime, including attempted murder, when the defendant, acting with (1) knowledge of the perpetrator’s unlawful purpose and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 560–561.) In short, to be guilty of attempted murder as an aider and abettor, the defendant must intend to kill. (People v. Lee (2003) 31 Cal.4th 613, 624.) The trial court here found that Dunson said, “just go” and kill or shoot “these motherfuckers,” and this statement established that his intent had “ripened” into an intent to kill. Dunson, however, argues that the trial court’s finding that he made the statement was speculative and based on surmise and conjecture. Not so. The finding was based on Tapia’s testimony and the video surveillance, and reasonable inferences therefrom. Tapia testified that she could hear “bottles clinking, or something, and then I heard a front door, I thought maybe they were leaving, but one of them said to the other one, just go back and kill them motherfuckers, or something like that.” Tapia then heard footsteps, saw “behind me, someone’s feet, and then gunshots and then leaving.” Dunson questions this testimony because Tarry did not testify about any such statement. Even so, Tapia’s testimony was sufficient to establish that the statement was made. (See People v. Young (2005) 34 Cal.4th 1149, 1181 [unless testimony is physically impossible or inherently improbable, single witness’s testimony is sufficient to support 11 conviction].) And to the extent Tarry’s and Tapia’s testimony about the statement conflicted, the conflict does not justify reversal where, as here, the trial court clearly credited Tapia’s testimony. (See generally People v. Owens, supra, 78 Cal.App.5th at p. 1022.) Next, the video surveillance of the office does not contain audio. Nonetheless, it shows Dunson was in the office with Tarry and the other victims while Tarry struggled to open the safe. Once Tarry opened the safe and Dunson put the money in a bag, Dunson stepped over the victims (who were on the floor), past Jackson at the office door, and Jackson shot at the victims just seconds later. At this same time, McDonald was at the bar and, according to Dunson’s interpretation of the video, McDonald tilted and raised his head as if saying something. From this evidence, the trial court excluded Jackson as the person who made the statement, impeccably reasoning that it was not logical to find that Jackson would command himself aloud to shoot the victims. The trial court then excluded McDonald from making the statement because he was at the bar gathering liquor bottles when it was made. His further distance from Tapia made it less likely she would have heard him say anything, leaving Dunson as the person who made the statement. These were reasonable inferences the trial court could draw from the evidence. That Dunson draws other inferences—for example, the tilting of McDonald’s head suggests he made the comment—is an improper request that we reweigh the evidence. (See generally People v. Gomez (2018) 6 Cal.5th 243, 278 [our “task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might ‘ “ ‘be reasonably reconciled with the defendant’s innocence’ ” ’ ”]; People v. 12 Rodriguez (1999) 20 Cal.4th 1, 11–12 [reversing court of appeal that reweighed evidence].) But even if McDonald was close enough to the office so that Tapia could have heard anything he said, other evidence showed that Dunson made the statement. As the trial court found, the evidence showed that Dunson masterminded the operation: his sister was the getaway driver; his girlfriend drew a layout of Snooky’s; and Dunson, on reentering the bar, immediately targeted Tarry, forced him to open the safe via threats and physical force, and put the money in a bag. Once Dunson had the money and was leaving the office, it is reasonable to infer he would be the one to command what would happen to the victims. Tapia’s testimony that Dunson told everybody what to do and that “every voice came from his mouth” also supported the trial court’s findings that Dunson was the leader, and as such, the one who told the others what to do. Moreover, Tapia said that the speaker referred to the victims as “motherfuckers.” Dunson had used this word earlier during the robbery, telling Jackson to come and “ ‘kill this motherfucker’ ” when Tarry was unable to open the safe. This uniformity in choice of words also supports the finding that Dunson made the challenged statement. Nor does any ambiguity about what words Dunson precisely used undercut the intent to kill finding. That is, Tapia said on direct examination that she heard a man say to go back and “kill them motherfuckers.” (Italics added.) On cross- examination, Tapia said she told the police she heard the man say to go back and “shoot the motherfuckers.” (Italics added.) “Shoot” in this context could also mean “kill.” Therefore, even if 13 Dunson used the word “shoot” instead of “kill,” his intent to kill was still evident. Aside from his challenged statement, Dunson made other statements evidencing his intent to kill the victims. When Tarry was unable to open the safe, Dunson told his accomplice to “ ‘kill this motherfucker’ ” and threatened to “ ‘kill these people’ ” if Tarry didn’t open the safe. Although the trial court might have considered these “unripe” expressions of an intent to kill, they nonetheless evidenced a willingness to kill and an intent to eventually kill the victims. (See, e.g., People v. Cartier (1960) 54 Cal.2d 300, 311 [prior quarrel between defendant and his wife properly admitted to show his motive and state of mind to later kill her]; see People v. Felix (2009) 172 Cal.App.4th 1618, 1625 [defendant twice threatened to kill victim within an hour period and then armed himself and shot at victim’s home].) Also, Dunson’s instruction to Jackson to shoot the victims as they were huddled close to Jackson on the floor of the small office supports an intent to kill. (See, e.g., People v. Covarrubias (2016) 1 Cal.5th 838, 892 [discharging handgun multiple times from close range in manner that could have inflicted mortal wound supported requisite intent to kill finding]; People v. Silva (2001) 25 Cal.4th 345, 369 [multiple shotgun wounds inflicted on unarmed, defenseless victim was consistent with premeditated and deliberate murder].) Finally, a defendant’s presence at the scene of the crime and failure to prevent it, companionship and conduct before and after the offense, including flight, are relevant to determine whether the defendant aided and abetted a crime. (See generally People v. Glukhoy (2022) 77 Cal.App.5th 576, 599.) These circumstances all show that Dunson aided and abetted the 14 attempted murders. Dunson was present during the entirety of the events and failed to prevent any of the violence. Not only did Dunson fail to prevent the violence, he orchestrated, encouraged, and participated in it: he did not protest when Jackson shot Long, he kicked Tarry with enough force to fracture Tarry’s foot, and he threatened to kill the victims. Also, Dunson and his accomplices were lifelong friends, making it more likely, as the trial court found, that they trusted each other to commit violent crimes. Finally, Dunson fled with McDonald and Jackson in a car driven by Dunson’s sister. Thus, Dunson’s companionship with McDonald and Jackson before, during, and after the crimes establish that he aided and abetted the attempted murders. We therefore conclude there was sufficient evidence Dunson intended to kill Tapia, Collier, and Tarry. 15  DISPOSITION The order denying Terrence Dunson’s Penal Code section 1172.6 petition as to Tapia, Collier, and Tarry is affirmed. NOT TO BE PUBLISHED IN THE OFFICAL REPORTS ASHWORTH, J.* We concur: ADAMS, P. J. HANASONO, J. * Retired Judge of the El Dorado Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 16