People v. Sedillo
No B248671 (opn. 4/8/2015, petn for rev pending, S226342)
Selective vs. Whole-Record Review
Court: 2d District, Div 1
Errors Found/Argued: Errors not found by another court
1. Error in admitting evidence that defendant’s phone was the subject of a court-ordered wiretap: The court agreed this was error and, without saying whether it was of constitutional dimension, found it was harmless because “defendant made sufficient statements regarding her culpability for the shootings with which she was charged to support the jury’s verdicts. The wiretaps show that defendant consistently bragged about her participation in the shooting that had taken place at Presidio’s wake.” (pp. 23-24.) In addition to stating the wrong legal standard – whether there was “sufficient evidence” to support the verdict – the court ignored: (a) that the defense’s argument at trial was that defendant was lying about having been involved in the shooting 18 years earlier; (b) that a gang expert provided testimony about why someone would lie about that; (c) the eyewitness descriptions of the getaway driver, alleged to have been defendant, were inconsistent with Sedillo; one witness, Foch, testified he saw the getaway driver and it was a male; and (d) that the jury asked for readback of Foch’s testimony on this point, showing jurors did not find defendant’s boasts to be overwhelming proof of her guilt.
2. Failure to instruct that to be liable as an aider and abettor, defendant had to form the intent to render aid before the shooting occurred: The court acknowledged this was constitutional error subject to Chapman analysis. But it found the error harmless because it was not “reasonably likely” the jury found defendant formed the intent after the shooting. (pp. 31-32.) In so doing, the court looked at only one part of the record – the fact CALJIC No. 3.01 is phrased in the “present tense,” which the court believed would have led the jury to convict defendant only if she formed the intent to render aid before the shooting. The analysis ignored: (a) that there was, in the court’s words, “skimpy evidence” of what occurred before the shooting; (b) that the jury rejected allegations defendant premeditated and deliberated, which is inconsistent with a finding she knew ahead of time that the direct perpetrator intended to commit murder (People v. Samaniego; People v. Lee); and (c) that nothing in the instructions told the jury the crimes were finished once the shooting stopped, so there is no basis to find jurors would have assumed that was the point before which Sedillo had to form the requisite intent.
The court also found numerous asserted errors would have been harmless, based on the similarly-mistaken reasoning it used for the evidentiary error described above.