P. v. Smith

Filed 4/2/07 P. v. Smith CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Mark Mooney, Judge. Stayed in part with instructions and affirmed.

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General of the State of California, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Kenneth N. Sokoler, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Marvin L. Smith was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code[1]section 187, subdivision (a), one count of attempted premeditated murder in violation of sections 187 and 664, and one count of shooting at an occupied vehicle in violation of section 246. The jury found true the allegations that all three offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). The jury also found true the allegations that a principal personally used and personally and intentionally discharged a handgun in the commission of the murder and attempted murder within the meaning of section 12022.53, subdivisions (b), (c), and (e)(1) and that a principal personally and intentionally discharged a firearm proximately causing great bodily injury and death in the commission of the murder within the meaning of section 12022.53, subdivisions (d) and (e)(1). The trial court sentenced appellant to a total of 80 years to life in state prison for the murder conviction and associated enhancements. Sentences for the attempted murder and shooting convictions were imposed concurrently.

Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the verdict and also contending that the trial court erred in failing to stay sentence on the section 246 conviction pursuant to section 654. We agree that sentence on the section 246 conviction must be stayed. We affirm the judgment of conviction in all other respects.

Facts

On the night of January 9, 2002, sisters Darleen and Ebony Roach hosted a party at their home at the intersection of 18th Street and Wilton Place in Los Angeles. Darleen associated with both a Bloods gang, the Black P-Stone 40's ("BPS") and a Crips gang, the Rolling 30's. Darleen's father had been a member of the Rolling 30's.

Members of BPS and an associated gang, the Rolling 20's, came to the party. Among the BPS gang members in attendance were appellant and Roy McKinley. Appellant and McKinley were cousins and have lived with their grandmother, Carrie Brown, "all their lives off and on." Appellant was wearing a red hat and some other red clothing.

Ricky Paxton, a member of the Santana Block Crips, was also present at the party with a friend, Harvey Davis. There was no apparent tension between Paxton and any of the members of the Bloods gangs. McKinley left the party with Tashawna Vanhardenberg.

Four members of the Rolling 30's Crips arrived, including Darleen's cousins Michael Jones and Alex Green. They were all wearing all blue, the Crips's color. Darleen's mother, Annie Miller, opened the front door when they arrived. While the men were on the front porch, Miller heard Jones tell one of his friends to go back to the car and get the Uzi. As Jones came into the house, Miller told him that she did not want any trouble from him. He told her not to worry about it. Miller went upstairs.

One of the Crips, Myron, said: "Which one of you niggas is dancing with my baby momma?" Nadia, the mother of Myron's child, was upstairs at the time, and was not dancing with anyone. Shortly thereafter, appellant had a confrontation with the Crips, during which he told them: "This is my hood."

Some time after the confrontation, Jones held a gun to appellant's head for about 15 seconds. He said: "Cuz, I kill you." Darleen and her parents made Jones and his friends leave the party.

Davis decided it was time to leave. He went outside and saw Jones and his friends driving away in a truck.[2] He went back inside, got Paxton and left. Appellant was on his cell phone during the two or three minutes when Davis returned to the house. Davis heard him giving someone directions to the house.

Darleen also heard appellant talking on his cell phone. Appellant said: "Cappucino, Blood, you need to hurry up and get here."[3] He also said: "Blood, there is some Crabs here. . . . Blood, you need to get here because they just put a gun to my head." During the conversation, appellant was looking out the window toward the street. Appellant appeared to be using a Nextel-like cell phone with a walkie-talkie feature.

Meanwhile, McKinley received a call on his cell phone. When McKinley completed his call, he told his companion Vanhardenberg that they had to go. He seemed to be in a hurry. Once they were in the car, McKinley was "in a rush" and "driving crazy." McKinley was speeding and ran a red light.

Davis and Paxton drove down 18th Street away from the party and began to turn onto Cimarron, the next cross street. Davis, who was driving, saw McKinley's silver Caprice coming fast in the opposite direction. Davis pulled over to let the Caprice go by. In the car with McKinley, Vanhardenberg saw a pickup truck belonging to "Alex" drive past. Vanhardenberg heard gunfire. Davis saw a gunshot come through his windshield. As the Caprice passed the car, another gunshot blew out his driver's side window. Davis heard two more gunshots as he accelerated away. Paxton collapsed. Police later found spent shelling casings about 50 to 75 feet from the intersection of Cimarron and 18th Streets,

Davis drove to a gas station and had an employee call 911. While waiting for held to arrive, Davis disposed of Paxton's gun. Paxton died from a gunshot wound to his head.

McKinley and Vanhardenberg drove down 18th Street toward the party. McKinley crashed the car into a parked car. Vanhardenberg got out. McKinley drove away.

At about 3:30 a.m., police saw McKinley driving his silver Caprice. They followed him and he sped up, then crashed into a parked car. They arrested him.

At the police station, while the arresting officers were trying to find a gunshot residue testing kit, McKinley urinated and rubbed his hands in the urine. McKinley resisted officers when they tried to get a sample from his hand. Eventually, they obtained a sample. The results of the ensuing test were inconclusive.

The morning after the shooting, appellant came to Darleen's and Ebony's house and talked to the two women and their father. He asked Darleen if she had spoken with police. She lied and told him that she had not. Appellant said that the police were trying to get him for something he did not do, and that he was not trying to get in trouble. He added that the police had found photos of him in his cousin's car. He left a card with his phone number, and asked Darleen to keep in touch and let him know what was going on.

At trial, Los Angeles Police Officer Manuel Botello testified as an expert about the BPS gang. Appellant and McKinley were members of BPS. Appellant was an "O.G.," an older gang member. The house where the party took place was in BPS territory.

BPS's primary activities were narcotics sales, street robberies and robberies of jewelry stores and banks. In 2002, three BPS gang members were convicted of murders. The Rolling 30's were an enemy of the BPS gang.

Officer Botello testified that a gang member who had a gun pointed at his head would not "let it ride." Holding a gun to a gang member's head in his own neighborhood, in front of females and other gang members would be "very disrespectful." Officer Botello would expect to see some form of retaliation for that act of disrespect. A failure to retaliate would make the gang and the involved members look weak. If the disrespected gang member or any of the other gang members present had a gun, Officer Botello would expect to see a shooting.

Officer Botello also testified that if a gang member called another gang member and told him that a rival gang member had put a gun to his head at a party, and if the other gang member then rushed to the area of the party and fired at a car leaving the party, that would be retaliation. This would be so even if the victim was not a member of the rival gang. Such a shooting would still build up the reputation of the shooter and his gang.

Appellant called Los Angeles Police Officer Jason Delacova to testify as an expert about the Rolling 30's Crips gang. Officer Delacova testified that the primary activities of the Rolling 30's were graffiti, robberies, narcotic sales, drive-by shootings, and murder. The Rolling 30's were rivals of BPS. Officer Delacova had investigated shootings of Rolling 30's gang members where he suspected that the perpetrators were BPS members. If a Crips member attended a party and saw the mother of his child dancing suggestively with a known Bloods gang member, he would consider it disrespectful. This could present a motive for the Crips member to retaliate.

On cross-examination, Officer Delacova testified that if a gang member had a gun pointed at his head in his own neighborhood and in front of females and fellow gang members, he would feel compelled to retaliate as soon as possible. Officer Delacova would expect the disrespected gang member to gather up some friends, get a gun, and retaliate. He also testified that if a gang member called another gang member and told him "Blood, these crabs just put a gun to my head," and if the other gang member then rushed to the area of the party and fired at a car leaving the party, it would enhance the gang's reputation. This would be so even if the victim was "loosely associated" with the Crips. Such a shooting would still build up the reputation of the shooter and his gang .

Appellant also offered the testimony of two witnesses who heard gunshots on the morning in question. Both women reported hearing gunshots, followed by arguing, then one or more cars speeding away. One of the women reported hearing a second set of gunshots about five minutes later.

Appellant offered the testimony of his grandmother, who stated that he and McKinley were cousins and had lived with her off and on for all of their lives. She also testified that she had given appellant money in the summer of 2002 to start a recording business.

Appellant further offered the testimony of Ann Miller, Darleen and Ebony's mother. She testified that she did not hear any gunshots in the period between the departure of Jones and his friends and the time when McKinley crashed his car into a parked car near her house.

Discussion

1. Aiding and abetting

Appellant contends that there is insufficient evidence to support his convictions for murder, attempted murder and shooting at an occupied car because there is no evidence that he aided and abetted McKinley in the commission of those crimes.

In reviewing the sufficiency of the evidence, "courts apply the 'substantial evidence' test. Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Thomas (1992) 2 Cal.4th 489, 514, internal quotations omitted, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.)

"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)

Here, there can be no doubt that appellant's telephone call to McKinley instigated the commission of the crimes. In his call to McKinley, appellant said: "Blood, there is some Crabs here . . . Blood you need to get here because they just put a gun to my head." Appellant told McKinley to hurry.

When McKinley completed his call, he told his companion Vanhardenberg that they had to go. He seemed to be in a hurry. Once they were in the car, McKinley was "in a rush" and "driving crazy." McKinley was speeding and ran a red light. As they approached the party house, McKinley watched Alex's white pick-up truck drive by. He then fired several shots at a blue or black car which was behind the truck. The car contained Davis and Paxton. The only reasonable inference from McKinley's behavior is that he was spurred into action by the phone call from appellant.

We see substantial circumstantial evidence that appellant shared McKinley's unlawful purpose and encouraged him to commit the crimes.

Appellant called McKinley and told him that a person had threatened him with a gun, and to hurry. It is reasonable to infer that appellant intended for McKinley to come over with a gun. Appellant suggests that he may have been seeking protection. This is not a reasonable inference, since Jones and his companions had left the house and gone to their vehicle before appellant made his call. Thus, appellant was safe when he made his call to McKinley.

Further, McKinely did not act in a manner consistent with someone rushing to the aid of another. Before he got to the house where appellant was waiting, he leaned out the car window to watch a truck as it went by, then fired at the following car. This action creates an inference that he was expecting the threatening Crips to be driving away from the party. After the shooting, he allowed Vanhardenberg to get out of his car at the house, but made no effort to check on appellant's welfare.

Appellant had confronted Jones when he first arrived at the party, telling him, "This is my hood." According to one witness, appellant looked mad while he was on the phone with McKinley. Thus, it is reasonable to infer that appellant wanted an armed companion, or at least a gun, to take some action against Jones.

This inference is reinforced by the testimony of the two gang experts in this case. They testified that respect is very important to individual gang members and to gangs as a whole. Both agreed that in gang culture, Jones's act of holding a gun to appellant's head was an act of disrespect. Officer Botello described it as "very disrespectful" for such an act to occur in appellant's own gang neighborhood in front of females and fellow gang members.

The gang experts also testified that an act of disrespect would normally be met by retaliation. Both agreed that the act of retaliation would not have to be done directly against the disrespectful gang member or even his gang. Officer Botello expected to see a shooting as retaliation. Officer Delacova expected the disrespected gang member to gather up some friends and a gun and retaliate.

As appellant acknowledges, the gang experts' testimony showed a motive on appellant's part to kill Jones, or another Crips gang member, or even a third party. Motive is probative of whether an individual acted with intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 741.) Evidence of motive renders the inferences regarding a defendant's intent more reasonable. (People v. Roldan (2005) 35 Cal.4th 646, 705.)

We find it reasonable to infer that when appellant called fellow gang member McKinley and told him of Jones's act of disrespect, appellant knew that McKinely would take action and wanted him to do so. Further, the most likely retaliation under the facts of this case would involve a shooting.[4] Jones had a gun and referred to killing when he pointed it at appellant's head. It would be foolish in the extreme to retaliate against an armed person without using a gun. It would be equally foolish to retaliate against an armed person who has threatened to kill unless it were to kill him first.

Further, McKinley drove straight to the area of the party, watched Alex's truck drive by, then fired without any apparent warning or hesitation at the next vehicle with party-goers, hitting the passenger in the head. The most reasonable inference from this conduct is that the shooting was planned. Since the only person McKinley spoke with before he left his house was appellant, it was appellant with whom he planned the shooting.

Finally, appellant returned to Darleen's and Ebony's house the morning after the shooting in an attempt to learn whether the women had spoken with police. This is some indication of a consciousness of guilt.

Appellant's reliance on Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262 and Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337 to show insufficient evidence is misplaced. In Juan H., the defendant and his brother were both gang members. After shots were fired at the family's home, the defendant and his brother approached two members of a rival gang. The brother questioned the rival gang members, who denied the earlier shooting. The brother then pulled out a shotgun and shot and killed one of the rivals. (Id. at pp. 1266-1267.) The defendant stood behind his brother and did not say or do anything. There was no evidence to show that the defendant believed that the two rival gang members had shot at his house. (Id. at pp. 1277-1278.)

In Mitchell, 107 F.3d 1337, after the defendant and his fellow gang members had a series of confrontations with rival gang members, one of the rival gang members unexpectedly stopped in front of defendant's building and taunted the members of defendant's gang, who were standing on a second-floor balcony. One of the gang members shot the taunter. Defendant and his companions then fled in two cars. One of the cars ran over the shooting victim, inflicting a fatal injury. (Id. at pp. 1338-1339.) Defendant did not encourage the shooting by word or gesture and did not encourage the car's driver to run over the shooting victim. (Id. at pp. 1341-1342.)

Here, appellant did not merely stand by while other gang members killed someone. He was not simply with fellow gang members at the wrong time. Appellant was the activating force in events. Appellant called McKinley, who was not at the party and was completely unaware of events at the party, and told him of the act of disrespect, and including the fact that it involved a gun. He asked McKinley come to the party. And, unlike the defendant in Juan H., appellant had a strong motive to encourage McKinley to shoot rival gang members.

2. Section 654

Appellant contends, and respondent agrees, that appellant's sentence for shooting at an occupied vehicle must be stayed pursuant to section 654. We agree as well.

Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."

Section 654, subdivision (a) prohibits punishment for two offenses arising from the same act or where an indivisible course of conduct violates more than one statute. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)

Generally, "[w]here one person is the victim of both a shooting at an occupied motor vehicle and a simultaneous assault, the trial court can impose an unstayed sentence for one or the other, but not for both." (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784.) Here, Paxton was the victim of both the murder and the shooting at an occupied vehicle and Davis was the victim of the attempted murder and the shooting at an occupied vehicle. Accordingly, appellant's sentence for shooting at an occupied vehicle must be stayed pursuant to section 654. Since the trial court ordered this sentence to run concurrently to appellant's sentence for murder, the stay does not change appellant's term of confinement.

Disposition

Appellant's sentence for shooting at an occupied car in violation of section 246 is ordered stayed pursuant to section 654. The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting this stay and to deliver a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

I concur:

TURNER, P. J.

MOSK, J., Dissenting

I respectfully dissent.

Defendant Marvin L. Smiths conviction of first degree murder (Pen. Code,  187, subd. (a)) and shooting at an occupied vehicle (Pen. Code,  246) should be reversed because there is insufficient evidence to establish that he aided and abetted the commission of those crimes by the perpetrator, Roy McKinley.

Applicable Law

In reviewing a criminal conviction, an appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. [Citations.] The substantial evidence rule is our yardstick for determining whether a verdict meets this minimal standard of reasonableness: The test on appeal becomes whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] To be considered substantial, evidence must be of the type which reasonably inspires confidence and is of solid value. [Citation.] (People v. Reyes (1974) 12 Cal.3d 486, 496-497 [holding that the evidence presented against defendant . . . lacks substantial probative evidence].)

Aiding and abetting liability requires proof that the defendant act[ed] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.) When the offense charged is a specific intent crime, the accomplice must share the specific intent of the perpetrator; this occurs when the accomplice knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime. (Ibid.) [Citation.] What this means here, when the charged offense and the intended offensemurder or attempted murderare the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, is that the aider and abettor must know and share the murderous intent of the actual perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1118, fn. omitted.)

The Events

Defendant and McKinley, who were cousins and in the same ganga Blood gangattended a party. Also at the party were several members of a rival ganga Crips gangincluding the eventual murder victims, Ricky Paxton and Harvey Davis. McKinley eventually left the party. Additional Crips members came to the party. Defendant told them, this is my hood. One of the Crips membersMichael Jonesheld a gun to defendants head for about 15 seconds and said, Cuz, I kill you. Jones left the party. Defendant was then overheard saying on his cell phone, Blood, there is some Crabs [Crips] here . . . Blood, you need to get here because they just put a gun to my head. Defendant was also heard on the phone giving directions to the house. During the conversation defendant was looking out the window towards the street.

McKinley received a call on his cell phone. He then drove hurriedly and recklessly. As Davis and Paxton left the party and began driving away, Davis saw McKinleys car coming from the opposite direction. Shots were fired into Daviss car. Additional shots were fired at his car as McKinleys car passed by and left. Paxton was fatally struck by the bullets. McKinley was apprehended. The next day defendant came by the house where the party occurred and asserted that the police were trying to get him for something he had not done and that he was trying not to get in trouble.

Gang Evidence and Instruction

Gang experts testified that defendant and McKinley had been in a Blood gang. The experts also testified about the gangs and how in the gang culture, retaliation would be expected for threatening someone in a rival gang with a gun in front of others. The trial court instructed the jury as follows: Evidence has been introduced for the purpose of showing that the defendant was a member of a street gang. Such evidence, if believed, was not received and may not be considered by you to prove that he is a person of bad character or that he has a disposition to commit crimes. Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show a motive for the commission of the crimes charged and determining whether the crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang.

Insufficient Evidence of Intent

By virtue of the instruction, the gang evidence could only be considered to show motive and for a gang enhancement. It could not be considered to show that defendant had the intent to commit murder. Aside from the gang evidence, there is the evidence that defendant was threatened by a member of a rival gang and that he called his cousin to return to the party because of that threat. There is no evidence that defendant incited McKinley to kill anyone or knew that he would. The gang evidence was not admitted and could not be relied upon, to show defendants intent. That defendant may have had a motive to retaliate does not supply the evidence of intent. There is no evidence from which a reasonable fact-finder could infer an intent or purpose to aid or abet the murder. Speculation and conjecture cannot substitute for reasonable inferences.

As noted, the aider and abettor must have the principals criminal purpose or intent (People v. Beeman, supra, 35 Cal.3d 547.) The prosecution must establish intent with respect to the specific offense the defendant is alleged to have aided and abetted; intent may not be established based upon the generalized belief that the defendant intended to assist and/or encourage unspecified nefarious conduct. (People v. Prettyman (1996) 14 Cal.4th 248, 268; Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262, 1276.) In connection with these principles and viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; see People v. Reyes, supra, 12 Cal.3d 486, 496-497; Juan H. v. Allen, supra, 408 F.3d at p. 1276; Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337, 1139, fn. 3, overruled in part on other grounds in Santamaria v. Horsley (9th Cir. 1998) 133 F.3d 1242, 1248.)

Conclusion

Although a criminal defendant has a substantial burden to prevail on appeal based on a claim of insufficient evidence and an appellate court must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence (People v. Jones (1990) 51 Cal.3d 294, 314), suspicions, expectations, revulsion against gangs, and the customs of gang members do not supply evidence of the necessary element of intent in this case for purposes of a conviction.

Accordingly, I would reverse the conviction.

MOSK, J.

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[1] All further statutory references are to that code unless otherwise indicated.

[2] Other observers said that the group drove away in a van.

[3] Darleen, who testified that appellant used the name "Cappucino" while speaking on the phone, told a police interviewer that McKinley was introduced to her at the party as "Cappucino." At trial, she denied that he had been so introduced to her, and claimed that he had been introduced as "Corona."

[4] This is so even if we disregard the experts' testimony that they would expect a gang member to retaliate with gunfire.