P. v. Ridge

 

 

 

 

 

 

Filed 1/30/07  P. v. Ridge CA1/4

 

 

 

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FOUR

 

 

THE PEOPLE,             Plaintiff and Respondent, v. LARRY DEAN RIDGE, JR. et al.,             Defendants and Appellants.

A110058         (Alameda County       Super. Ct. No. C148220)

 

            Defendant Donald Jones
fired a rifle from a van at a group of four teenagers.  Jones's brother, codefendant
Larry Dean Ridge, Jr., owned the van and was a passenger in the van along
with two other men.  A rifle shot killed one of the teenagers, and return fire
from the street killed a van passenger.

            A jury convicted Jones
of two counts of first degree murder
for the deaths of the teenager and van passenger, and three counts of attempted murder of the surviving teenagers.  (Pen.
Code, §§ 187, subd. (a), 189, 664 [all further section reference are to
this code].)  For both murder convictions, the jury found that Jones personally
discharged a firearm and caused the death of a person other than an
accomplice.  (§ 12022.53, subd. (d).)  The court sentenced Jones to three
consecutive life sentences in prison, two without possibility of parole, and
multiple firearm use enhancements that include life terms.  The jury convicted
codefendant Ridge of two counts of second
degree murder and three counts of attempted murder.  (§§ 187, subd.
(a), 189, 664.)  Ridge is serving two consecutive terms of 20 years to life,
with a one-year firearm enhancement
for the murders, plus an aggregate determinate term of 11 years, 8 months for
the attempted murders.  Both defendants appeal.

            Jones presented an
alibi defense at trial and, on appeal, challenges admission of an eyewitness identification and exclusion
of expert testimony about that identification.  Jones also maintains that his
murder conviction for the death of his van companion was improperly fixed in
the first degree, and that the firearm enhancement as to the van passenger
should be stricken because the passenger was an accomplice.  Jones claims that
the enhancement finding is otherwise flawed as the product of instructional
error.  Jones, along with Ridge, argue that the jury, not the trial court,
should have made any findings used to impose consecutive sentences.

            Ridge separately argues
that his convictions for murder and attempted murder must be reversed because
there is insufficient evidence that he
aided and abetted the crimes.  Ridge denies knowledge that Jones would shoot
people and denies an intention to aid the shooting.  Ridge also argues that the
case was tried on the theory that he was either guilty of first degree murder
or no murder, and the court erred in instructing the jury on second degree murder. 
Ridge maintains that he would have been acquitted of murder in the absence of
the instructional error, and thus reversal is required.

            We affirm the judgments
with a single modification.  The 25 years to life firearm use enhancement for
Jones's murder of his van companion (§ 12022.53, subd. (d)) must be
modified to a 20-year enhancement (§ 12022.53, subd. (c)), due to instructional error.

facts

            On April 8, 2004, around 8:30 p.m., a barrage of assault rifle fire ripped through a group of four
teenage boys as they stood talking at Martin Luther King Jr. Drive and 29th
Avenue in Oakland.  One boy died, and another was injured.  The rifle shots
came from a van, and someone on the street returned gunfire that penetrated the
van.  Shortly after the shooting, defendant Ridge and two other men were
dropped off by a van driver at a nearby hospital where Ridge and one of the
men, Ray Gilbert, were treated for gunshot wounds.  Gilbert died.  Ridge's van
was soon found by the police with a bullet hole through the driver's side and a
bloodied passenger seat.

            There was no dispute at
trial that defendant Ridge's van was used in the fatal drive-by shooting, and
that Ridge and Gilbert were present at the shooting and hit by return fire from
the street.  The only issues were the identity of the van driver who fired the
rifle, and the complicity of the van passengers.[1]

I.

Prosecution witness

Ronnie Wilhite

            The most complete
description of the events came from a friend of defendants who placed himself
and defendants at the shooting, and identified defendant Jones as the shooter. 
The friend, Ronnie Wilhite, testified that he had been â€