Metropolitan News-Enterprise


Friday, September 28, 2018


Page 3


Court of Appeal:

Technically Accurate Jury Advisement Was Misleading, Prejudicial


By a MetNews Staff Writer


The Court of Appeal for this district yesterday reversed a man’s conviction for second degree murder because the trial judge’s answer to the jury’s question on a point of law, while technically accurate, was nevertheless prejudicially misleading as it addressed a different question from the one posed.

Presiding Justice Elwood Lui of Div. Two wrote the opinion which stems from the second trial of Steven E. Fleming, conducted before Los Angeles Superior Court Judge Michael D. Carter. Fleming’s first trial resulted in his acquittal of first-degree murder and a hung jury for second-degree murder.

The prosecution argued that Fleming had aided and abetted the shooter, Scott King, an alleged co-member of the Blood-affiliated gang, Pasadena Denver Lanes. King was allegedly upset about the recent gang-related murder of his friend, and had a revolver as he and Fleming were walking on the night of the murder.

Prosecution evidence was presented that after the fatal shooting of Marvin Laguan, who was visiting friends in the neighborhood, Fleming fled with King to the house of one Brandi Rigdell, and helped him hide the gun and get a ride home.

Fleming maintained that while he knew King was upset that night, he had no knowledge of any intent on his part to commit murder.

Jury’s Question

In each trial, the jury asked the court when the crime in question had ended, seeking clarification on the instructions for aiding and abetting.

Paragraph 3 of the model jury instruction for aiding and abetting, CALCRIM No. 401, requires the prosecutor to prove that “[b]efore or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime….”

In the first trial, Carter accurately responded:

“The crime of Assault is completed when the shooting has completed.”

The second jury asked a similar question, and Carter requested clarification. In response, the jury told the court:

“The jury is asking to define the word ‘committing’. [¶] Which particular instruction or instructions is the jury referring to when asking about the word ‘committing’?”

Carter directed the jury to CALCRIM No. 401, paragraph 3. After further discussion with counsel, the court added:

“Factors relevant to the determination of whether defendant is guilty of aiding and abetting include but are not limited to presence at the scene of the crime, companionship, and conduct before and after the offense.”

Answer Not Responsive

Lui declared:

“The jury’s question in this case leaves no room for doubt as to the source of the jury’s confusion: if appellant could be guilty of the murder only if he formed the intent to commit or aid and abet the crime before or during its commission, the jury needed to know how long the commission of the crime continued—until the last shot was fired, or when the perpetrator had reached a place of safety? None of the instructions given addressed this point.”

He continued:

“But by purporting to answer this question by telling the jury to consider appellant’s conduct after the offense, the court essentially told the jury that the commission of the crime was still ongoing when appellant and King reached Brandi’s apartment, and thus included appellant’s acts of disposing of the gun and securing a ride home. As a response to the question the jury actually asked, this answer was wrong…The response here violated the trial court’s mandatory duty to help the jury understand the legal principles involved in the case.”

Error Prejudicial

The jurist added:

“We cannot ignore the fact that when the court correctly responded to the jury’s question in the first trial…the result was a hung jury and a mistrial. In the second trial, where the court purported to answer the same question…with reference to appellant’s conduct after the shooting, the result was a conviction for second degree murder based on aiding and abetting….This disparity of outcomes strongly suggests that the court’s instructional error in the second trial was prejudicial.”

Lui also dismissed the prosecution’s contention on appeal that Fleming’s counsel had forfeited any challenge to the instruction by eventually acquiescing to it. He stated:

“[T]he record reveals a spirited discussion between the court and parties during which defense counsel unsuccessfully argued that the thrust of the jury’s question required guidance on the distinction between the different mental states involved in aiding and abetting versus accessory-after-the-fact.”

That argument, he explained, preserved the issue for appeal.

The case is People v. Fleming, 2018 S.O.S. 4737.


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