Filed 4/5/22 P. v. Darrington CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed as modified.

Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.

Brian Lincoln got into a confrontation with Corey Herring and James Tillman in the parking lot of a liquor store in Victorville. Herring had been trying to get Lincoln to help pay for damages caused in an earlier automobile accident. Lincoln left the parking lot, but returned with appellant, Kewetha Lavory Darrington, Jr., and William Blalock. The confrontation resumed and then escalated into violence. Blalock punched Herring, knocking him to the ground. Darrington then fired a gun at both Tillman and Herring before fleeing. A jury convicted Darrington of two counts of attempted murder over his claim to have acted in self-defense or defense of another.

Darrington argues the trial judge erred by instructing the jury on whether they could find he was engaged in self-defense if the men were engaged in mutual combat. He argues the instruction was inappropriate because the evidence of mutual combat was insubstantial. We conclude, substantial evidence did support finding the shooting was part of mutual combat, and therefore affirm the judgment of conviction.

Darrington also argues, and the People agree, the trial judge erred by imposing and executing a three-year enhancement under Penal Code section 12022.7, subdivision (a), when it also imposed a 25-year-to-life enhancement under Penal Code section 12022.53, subdivision (d). We will therefore modify the judgment to stay the three-year enhancement under Penal Code section 12022.7, subdivision (a).

I

FACTS

1. The Incident

On June 18, 2018, Brian Lincoln and Corey Herring had a car accident in Victorville. According to Herring, Lincoln ran a stop sign and crashed into the car Herring was driving. Lincoln said it was Herring who ran the stop sign. Lincoln was driving a car belonging to his son-in-law, William Blalock, and Herring was driving a 2016 Nissan Altima belonging to a woman he described as the mother of his child. Herring sustained injuries to his chest, ribs, and shoulder.

The car Herring drove was totaled, but because the insurance had lapsed, the car wasn’t covered. The car Lincoln drove was insured, and initially the insurer provided the owner of Herring’s car with a rental vehicle. Herring wanted either Lincoln or his insurance company to cover the loss because Lincoln was at fault.

After the accident, Lincoln kept assuring Herring that Blalock’s insurance would pay for repairs to Herring’s car. Between the accident and January 2019, Herring talked to Lincoln about 10 to 15 times trying to get help paying for repairs. Lincoln always told him something like “don’t worry, insurance going to take care of your car, you’ll be in a rental.” However, the insurer ultimately denied coverage and required the rental car to be returned. Lincoln said they denied coverage because Herring was driving under the influence of marijuana. According to Herring, the insurer denied coverage because Blalock told them he had rented the car to Lincoln. For his part, Lincoln was cited for driving under the influence because, as he characterized it, he had consumed “some beers” while at a liquor store near where the accident occurred.

In the late morning of January 12, 2019, Herring arrived at the same liquor store and found Lincoln sitting in his truck in the parking lot. Herring approached Lincoln, caught him off-guard, and again asked him to help pay for the car repairs. Herring became angry and frustrated because Lincoln continued brushing him off. He said, “[Y]ou keep giving me the runaround. I’m out. My girl got a $17,000 loan on her credit. We can’t do nothing. I need you to help me.”

Herring’s friend, James Tillman, was present and listening to the conversation. Lincoln described Tillman as a big, muscular guy, at least six feet tall, who looked like he lifted weights. He said he didn’t know who Tillman was at the time. According to Herring, Tillman wasn’t buying Lincoln’s story. Herring said Tillman was “just standing there. That’s bullshit. That’s bullshit.” The dispute escalated. Lincoln got on his phone and started talking to someone. Tillman asked who he was talking to and told him not to call anyone. He then reached into Lincoln’s truck and tried to take his phone and grabbed a bag of marijuana from Lincoln’s lap. Tillman was also taunting Lincoln, saying, “You damn near killed my boy,” and ordering him to “Get up out of here.”

Lincoln asked Herring why he was acting so aggressively. Herring explained, “You totaled my car. You damn near killed me.” Tillman paced back and forth. Though the dispute had escalated, Herring said neither man threatened to hit Lincoln and neither was armed. According to Lincoln, Herring did threaten to hurt him. He said both men repeatedly pounded their fists into their hands. He said Tillman told Herring, “All you got to do is give me the word.” Herring told Lincoln that he needed to get him the money. “You don’t want to have to let me release my goons on you.” Lincoln left after Tillman told him to get out of there and not come back. According to Herring, Lincoln was still talking to someone on his phone as he drove out the parking lot.

According to Lincoln, as he was driving away, Darrington approached him to ask if he was okay. Lincoln said Darrington didn’t know what the confrontation was about. Darrington offered to ride home with Lincoln in case he was followed. Lincoln accepted, and Darrington got into his truck.

Herring said he was getting ready to leave but waited for Tillman because he was worried Lincoln and his friends would return. Tillman came out of the liquor store and went to his car, and Herring walked over. About a minute later, Blalock drove into the parking lot. Meanwhile, when Lincoln saw Blalock heading for the liquor store, he turned his car around and returned. Blalock and Lincoln parked in front of the store and saw Herring and Tillman standing by Tillman’s vehicle.

All three men got out of their vehicles, and Lincoln told Blalock that Herring was the person from the car accident and Tillman was the person who had robbed him. Blalock and Tillman got into a heated exchange. According to Darrington, Blalock was “whooping and hollering,” told him to “[l]eave my pops alone” and asked why they were “messing with [my Pops]?” Herring said he tried to defuse the situation, telling Blalock, “Calm down. That’s between me and [Lincoln]. He totaled my car. Chill out. This escalating too far.” According to Lincoln, Blalock responded, “I know the story. All that supposed to be handled in the court. It ain’t cool. Pops – you come up here, and you jacking him up and messing with him.” Lincoln said Tillman started “wolfin’ and talking mess too,” and that Darrington then got involved. “Why you guys messing with him? . . . You guys up here starting trouble. Leave him alone.” Tillman responded, “I’m here to squab. I’m ready to fight.”

According to Lincoln, Herring got agitated at that point. “He still yelling about $17,000 and his car. And he’s in my son’s face. And my son gets – first, I was trying to get my son out of there, my arm round his waist, Let’s go, or whatever. I believe Corey said the words of effect . . . It’s going to be some shooting, or Somebody going to die. He was talking some mess. . . . My son is getting in the car. He got back out of [the] car. Took his glasses off. Threw them in the car. [Herring] walks back up on him like all bad, like he going to beat somebody up. And , you know I’m here to squab. I’m ready to fight.” He said Herring got into Blalock’s face. Blalock told him to back off and then punched him, and Herring fell to the ground.

Herring gave a different version of these final moments. He said he heard someone challenging them to a fight in the park. He said he declined and tried to defuse the situation. He agreed Blalock started getting into his car, but said Tillman said something that angered him and he got back out. He said Tillman then gestured to Herring for them to leave. Herring started to walk away when Blalock sucker-punched him.

According to Lincoln, when Herring went down, Tillman started running toward him. At that point, Darrington fired a gun. Lincoln said he heard a boom, grabbed Blalock and pushed him into his car, and the two fled. According to Herring, Darrington fired the gun three times. Lincoln told law enforcement he heard three or four shots, then two additional shots fired at Herring. Tillman was shot in the chest, but survived. Darrington fled the scene. The manager of the liquor store heard the gunshots and called law enforcement.

A San Bernardino County sheriff’s deputy was dispatched to a nearby residential area after a report of a suspicious man in the neighborhood. The caller said the man had been hiding behind bushes on a walking trail along a residential cul-de-sac, had jumped a fence into the street, and began trying to flag down passing cars. When the deputy arrived, he saw Darrington run to a GMC Yukon on the side of the road and get into the rear passenger side. The Yukon drove away, and the deputy followed in his patrol car. Eventually the driver pulled to the side of the road and the deputy arrested Darrington. Deputies searched Darrington but didn’t find a firearm or the jacket he was reportedly wearing when he shot at Tillman and Herring. Law enforcement found no firearms at the scene.

2. Darrington’s Statements to Police

After being advised of his Miranda^[1] rights, Darrington agreed to talk to two San Bernardino County sheriff’s detectives. When the detectives asked what happened at the liquor store, he initially claimed he had just been roaming around all day, that he jumped into his child’s mother’s truck on the street, and then she was pulled over. He said he saw a crowd of people over at the liquor store and he tried to stay away from there. He said he had gotten some beer there earlier and drank it at a bus stop.

When the detectives told Darrington they thought he wasn’t being honest, he said he also went to see his children. The detectives continued to press him. He then said he had seen somebody “hoopin' and hollerin'” and he decided to leave because he knew something was probably going to happen because “the dude was running around talking high power stuff.” Darrington told the detectives he didn’t know any of the people at the liquor store. He said he didn’t know anybody had been shot but he heard gunshots as he left. He said he didn’t see the person who had the gun and also denied he himself had a gun. When a detective pressed him, Darrington said he had seen two different people with two different guns earlier that day. Darrington described the coat he had been wearing but said he had sold the coat to someone at the bus stop.

The detectives told Darrington they knew he was still lying and showed him the liquor store’s security camera video footage, which captured him pulling out a gun and shooting a man. The detectives then asked Darrington to tell them what had happened. Darrington said he had noticed an older guy was “getting into it with some youngsters and they got to saying about a gun” and he reacted. He said he found the gun and that he got rid of it after the shooting by giving it to a man named “Tony” to settle a drug debt. When the detectives asked how he had arrived at the liquor store, he explained that “[t]he old man picked [him] up when [he] was walking.” He claimed he didn’t know “the old man’s name” and that “the old man” just asked him if he needed a ride.

Darrington told the detectives Blalock showed up and started having words with one of the guys and that Darrington talked to them to try to “cool it off.” He said “then they start saying words about a gun.” He said he heard “a tall guy” say, “I’m going to grab my bang bang.” He then acknowledged his role in the shooting. “But then I know the dude in the blue car was saying well come on then I want to holler, let’s go down here and holler. The other dude say I’m not doin' no talking. I’m not doin' no talking. And I’m looking at him like, you know, talkin' and I know [inaudible] the older dude, you know, he don’t bother nobody. He a cool cat and then next thing you know I seen him getting ready to fire on the old man and I guess that’s when the other dude hit him. But when I seen the other dude run towards the car that’s when I started shootin'.”

Darrington told the detectives the gun, which was originally stashed in the bushes by the liquor store, was in his coat pocket right before he fired it at Tillman and Herring. He claimed his thinking at the time of the shooting was, “Get him before he get me.” Darrington also told the detectives he had fired his gun only once.

C. Darrington’s Self-defense Testimony

Darrington testified in his own defense at trial. He said Tillman had reached into a car, grabbed a gun, and put it in the pocket of his hoodie. Tillman told Herring he was wasting his time talking to Lincoln and said he was “going to air this shit out,” which Darrington understood to mean Tillman was going to use his firearm to “shoot it up.”

He said Herring told Lincoln to leave because he was going to have Tillman “let loose” on Lincoln. Darrington walked over to some bushes nearby to retrieve a hidden gun and put it in his coat pocket. He said he wanted the weapon to protect himself and Lincoln. He then walked back into the liquor store.

He said when he came back out, he found Herring standing next to Lincoln’s truck and “talking mess” to Lincoln. Herring was saying he was tired of Lincoln dodging him and he was going to let his “boy start dumping.” Darrington said he understood that to mean Herring was going to have Tillman start shooting. As Lincoln started to leave, Darrington offered to go with him. However, Lincoln saw Blalock drive into the parking lot and followed him back in.

Darrington said he watched Tillman reach into his car, grab a gun from the passenger seat, and put the gun in his waistband. Lincoln parked and he and Darrington exited the car. Lincoln then told Blalock that Herring and Tillman were involved in the car accident and Tillman had robbed him.

Herring approached Darrington and Blalock and made comments about how he was going to “start air[ing] this shit out,” “start dumping” at Lincoln if he didn’t pay him, “shut this down,” and “start shooting this place up.” Tillman, who was standing by his car, told Herring he was wasting his time and said, “I’ll air this shit out right now.” Darrington said he understood him to mean he was ready to shoot.

Darrington said he saw Tillman walk closer and lift his pants up to keep his gun from falling. He said he heard Tillman say, “You got me fucked up. I stay here. I keep a strap on me.” He also heard Tillman say, “I’m going to dump on here, nobody going to be hanging up on this motherfucker. Stop.” He said Tillman was acting erratically, bouncing around, hitting his fist, and saying, “You don’t know what you’re playing with. I ain’t fixing to be doing anymore talking around here. I’m going to shut this place down.” Darrington said Tillman then turned to him and said, “Come on, man. Let’s go. Fuck this. I’m about to show you what I’m about to do.” He said he understood Tillman to be telling Herring to get out of the way so he could shoot Blalock and Darrington. Blalock started walking to his car, and Herring followed him. Blalock turned and punched Herring. When Tillman saw Herring hit the ground, Darrington said Tillman rushed at him like a charging bull.

Darrington said he thought Tillman was going to either shoot or hit him. In fear of being hurt or killed, he fired his gun at Tillman. He admitted he pointed his gun in the direction Herring ran but denied firing at Herring.

On cross-examination, Darrington admitted he had lied when he initially told law enforcement he didn’t have anything to do with the shooting. He explained he had lied to protect himself. However, he said he eventually told law enforcement he shot Tillman and claimed he didn’t hide anything from them. He conceded he didn’t tell the detectives he had tried to shoot Herring. When the prosecutor asked if he would lie on the witness stand, he said he would not say that he “won’t lie.”

4. Trial and Verdict

On October 28, 2019, a San Bernardino County jury found Darrington guilty of attempting to murder Tillman (Pen. Code, §§ 187, subd. (a) & 664, count 1, unlabeled statutory citations refer to this code), attempting to murder Herring (§§ 187, subd. (a) & 664, count 2), and unlawfully possessing a firearm as a felon (§ 29800, subd. (a)(1), count 3).

The jury found Darrington committed both attempted murders willfully, deliberately, and with premeditation (§ 664, subd. (a)), inflicted great bodily injury on Tillman (§ 12022.7, subd. (a)), and personally and intentionally discharged a firearm, causing great bodily injury to Tillman (§ 12022.53, subd. (d)).

The jury also found, as to both counts of attempted murder, that Darrington had personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm (§ 12022.53, subd. (b)). Related to the firearm-possession count, the jury found Darrington had been convicted of three prior felonies in three separate criminal cases.

The trial judge sentenced Darrington to state prison for a total determinate term of six years plus a total indeterminate term of 39 years to life. The sentence consisted of three years for the felon-in-possession count, a consecutive term of seven years to life for attempting to murder Tillman, a consecutive term of three years for the great bodily injury enhancement under section 12022.7, subdivision (a), a consecutive term of 25 years to life for the firearm discharge enhancement under section 12022.53, subdivision (d), and, a consecutive term of seven years to life for attempting to murder Herring (count 2).^[2]

Darrington filed a timely notice of appeal.

II

ANALYSIS

1. The Mutual Combat Instruction

Darrington argues the trial judge erred by instructing the jury on mutual combat (CALCRIM No. 3471) on the ground that substantial evidence didn’t support the instruction. He argues the evidence established he was neither looking for a fight nor part of an agreement to engage in or continue combat, and giving the instruction undermined the viability of his defense of self or other defense.

1. 1. Support for the instruction

A trial judge must give those instructions supported by substantial evidence and need not instruct on theories that have no evidentiary support. (People v. Larsen (2012) 205 Cal.App.4th 810, 823.) Substantial evidence in this setting “is evidence sufficient to deserve consideration by the jury, not whenever any evidence is presented, no matter how weak. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.” (Id. at pp. 823-824 [cleaned up].)

The trial judge instructed the jury on mutual combat, using the language of CALCRIM No. 3471. “A person who engages in mutual combat has a right to self-defense only if . . . [¶] He actually and in good faith tried to stop fighting; AND [¶] He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.”

Darrington argues the trial court, by instructing on mutual combat, effectively removed the principles of self-defense, defense of others, imperfect self- defense, and imperfect defense of others from the jury’s consideration. His argument works only if there wasn’t substantial evidence he was involved in mutual combat. This is so because, if the jury found he was engaged in mutual combat, that would properly negate his defense unless they also found he stopped fighting and gave his opponent a chance to stop fighting. Since none of the versions of the incident included testimony that Darrington stopped fighting or gave his opponent an opportunity to stop, the issue boils down to whether substantial evidence supported finding there was an express or implied agreement to engage in mutual combat.

We conclude there was substantial evidence of an agreement. Herring and Lincoln were already in an adversarial relationship because of their prior car accident and Lincoln’s refusal to help pay for the repairs. Their conflict escalated on the morning in question, when Herring confronted Lincoln in the liquor store parking lot and Lincoln again brushed him off. Herring’s friend, Tillman, confronted Lincoln in his car and grabbed a bag of marijuana from his lap. Lincoln responded by making a phone call, driving away, and then returning a few minutes later with Blalock and Darrington. Though Blalock drove in separately, there was evidence he already knew of the disagreement and Tillman’s theft of the marijuana. He got out of his car and quickly got into a heated exchanged with Tillman. Lincoln and Darrington both testified that Darrington approached Lincoln and offered help protecting him. Thus, there was evidence from which the jury could conclude Lincoln, Darrington, and Blalock returned to a confrontation with the purpose of continuing it. To be sure, Lincoln and Darrington gave a more innocent explanation of their actions, but the jury could reasonably conclude these justifications were false.

Moreover, the evidence also suggested all the men were involved in the escalation after Lincoln returned with Blalock and Darrington. Hemming testified that someone proposed they go to a park to fight. Blalock began getting in his car but stopped when Tillman said something that made him angry. According to Herring, Tillman gestured for them to leave, but as he started to walk away, Blalock sucker-punched him. Lincoln clamed Blalock hit Herring only after Herring aggressively confronted Blalock. In any event, as Herring hit the ground, Darrington fired his gun at both Tillman and Herring. The entire scene, as described by multiple witnesses, was characterized by swelling tension between Herring and Lincoln which escalated and drew in the associates of both men, until it exploded into open violence. From this evidence, the jury could reasonably conclude the men involved had decided to address their disagreement with violence. (See People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1233-1234.)

Darrington objects he had nothing to do with the conflict between Lincoln and Herring, didn’t join in the yelling and threats between Blalock and Tillman, and shot Tillman only after Tillman charged toward him. However, the evidence above is sufficient to show Darrington’s participation. Most damning, Lincoln left the parking lot after the initial confrontation and returned after Darrington approached him and offered his help. Further, Lincoln testified Darrington did in fact participate in the buildup of the conflict, warning Herring and Tillman they were “messing with the homies” and warning Herring to “[l]eave the homies alone. You guys up here starting problems.” More important, Darrington admitted that he brought a gun into the fight before he was even involved. He said he wanted the weapon to protect himself and Lincoln. All this evidence was sufficient to show an implied agreement to fight and therefore a proper basis for the trial judge to instruct on mutual combat.

To the extent Darrington argues the instruction misled the jury into assuming the parties had engaged in mutual combat, that’s not supported. The instruction plainly directs the jury to decide whether there was an agreement to fight, express or implied. We see no reasonable likelihood the jury would have misunderstood the instruction in the way Darrington suggests. (See, e.g., People v. Cross (2008) 45 Cal.4th 58, 67-68 [defendant must demonstrate reasonable likelihood that the jury instruction was understood as he interprets it].)

1. 2. Any error was harmless

In any event, any error in the trial judge’s instruction was harmless, because Darrington likely would not have achieved a more favorable result had the judge not given the instruction. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Our focus is on what a reasonable jury likely would have done absent the error, not what they could have done. (People v. Breverman (1998) 19 Cal.4th 142, 177.) Here, the evidence supporting the jury’s verdict is strong in comparison to the evidence supporting Darrington’s claim that he was defending himself or another, so there is no reasonable probability that giving the mutual combat instruction affected the result. (Ibid.)

The evidence Darrington acted in self-defense came primarily from his own testimony. However, his evolving statements to the authorities undermined his credibility. Meanwhile, Herring testified he was walking away when Blalock sucker-punched him and Darrington fired his gun at Tillman immediately afterward. When Herring got up from the ground, he fired at Herring too. Given the compelling evidence against Darrington, it’s not reasonably probable he would have obtained a more favorable outcome had the trial court not instructed the jury on mutual combat.

2. The Great Bodily Harm Enhancement

Darrington argues the trial judge erred by imposing a three-year enhancement under section 12022.7, subdivision (a) consecutive to his 25-years-to-life enhancement under section 12022.53, subdivision (d). The People agree the sentence is unauthorized. However the parties disagree about the remedy. Darrington asks us to strike the enhancement imposed under section 12022.7 subdivision (a), while the People ask us to stay it.

We agree the sentence is unauthorized. Section 12022.53 subdivision (f) directs “[a]n enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to [section 12022.53] subdivision (d).” (§ 12022.53, subd. (f), italics added.)

The enhancement for the discharging a firearm and causing great bodily injury was imposed under section 12022.53, subdivision (d), so imposing an additional great bodily injury enhancement under section 12022.7, subdivision (a) is barred by statute. (People v. Garcia (2017) 7 Cal.App.5th 941, 945.)

We may correct unauthorized sentences despite an appellant’s failure to object at sentencing. (In re Renfrow (2008) 164 Cal.App.4th 1251.) The California Supreme Court has directed that the correct remedy is to stay the unauthorized enhancement rather than strike it. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126-1128 [interpreting “the words ‘impose’ and ‘imposed,’ as used throughout subdivision (f), as shorthand to mean impose and then execute, as opposed to impose and then stay]; see also People v. Garcia, supra, 7 Cal.App.5th at p. 945.)

III

DISPOSITION

We modify the judgment to stay execution of the three- year enhancement imposed under section 12022.7, subdivision (a). As modified, we affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.

[1] Miranda v. Arizona (1966) 384 U.S. 436.

[2] The judge also imposed and stayed terms of 20 years to life for firearm discharge enhancements under section 12022.53, subdivision (c) and 10 years to life for firearm use enhancement under section 12022.53, subdivision (b) on each attempted murder count.