Filed 4/6/17 P. v. Wormley CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

MARCAILL WORMLEY,

Defendant and Appellant.
C078389

(Super. Ct. No. 14F00809)




A jury found defendant Marcaill Wormley guilty of the first degree murder of Branden Anderson (Pen. Code, § 187, subd. (a)), hit and run (Veh. Code, § 20001, subd. (a)), evading a peace officer (id., § 2800.2, subd. (a)), and attempting to dissuade a witness, V.N. (§ 136.1, subd. (a)(2)). The jury found true allegations defendant personally and intentionally discharged a firearm resulting in death in the commission of the murder (§ 12022.53, subds. (b)-(d)), and attempted to dissuade a witness for the benefit of a criminal street gang, Ridezilla (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, the trial court found true allegations defendant previously suffered a serious felony conviction within the meaning of section 667, subdivision (a) and a prior strike conviction within the meaning of sections 667, subdivision (b) through (i) and 1170.12. The trial court sentenced defendant to an indeterminate term of 75 years to life for the murder and corresponding enhancements and a determinate term of 20 years 4 months for the remaining counts and enhancements.
Defendant appeals, contending the trial court prejudicially erred in refusing to instruct the jury on voluntary manslaughter based on heat of passion and allowing the prosecution’s gang expert to effectively opine that defendant attempted to dissuade a witness. He also claims that there is insufficient evidence to support his convictions for first degree murder and attempting to dissuade a witness. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution
On the night of December 22, 2013, defendant attended a gathering at the home of Andrea Edwards in the Del Paso Heights neighborhood of Sacramento. The other guests included Branden Anderson, Latina Wilson, and Damon Haywood. Defendant was also known as “Gutta” and Anderson was also known as “Gerber.” That evening defendant told Wilson that she should have sex with Haywood, not Anderson, because Haywood took care of Wilson’s children. Specifically, defendant stated, “Damon is taking care of the kids and feeding them. He’s the one should be getting the pussy.” Anderson was “very upset” by defendant’s comment. He told defendant, “I’m not afraid of you” and prepared to leave. As he was walking out the front door, defendant punched him from behind, and a fight ensued. Edwards intervened “to stop a fight among friends.” As Edwards tried to stop the fight, Haywood attempted to hand defendant a gun. Edwards told Haywood “to get that damn gun out of here” and ordered him to leave. The fight ended when Edwards intervened and pulled the men apart. By all accounts, Anderson won the fight, leaving defendant with a black eye.
After the fight, Anderson left. After that, Edwards told everyone to leave. Defendant left the house several minutes later. He had calmed down by that time, and Edwards figured “it was over with.”
After leaving Edwards’s home, Anderson borrowed a phone and called V.N. and asked her to meet him at Sunland Liquors. Anderson was not wearing a shirt, his nose was bleeding, and his pants kept falling down. Anderson told V.N. about the fight, and that defendant had hit him when he was not looking. V.N. asked Anderson “where was his stuff,” and he said it was at Edwards’s house. V.N. and Anderson walked back to Edwards’s home to get Anderson’s phone, shirt, and jacket. Anderson did not want to retaliate; he was not that type of person. He just wanted to get his stuff. It took them about 20 minutes to walk to Edwards’s home.
When they arrived at Edwards’s home, defendant and Haywood were standing in front of the front door. As Anderson walked up to the door, he pulled up his pants. When he was about eight feet from defendant, defendant pulled out a gun from his jacket pocket and began shooting Anderson. Anderson fell to the ground, and defendant stood over him and continued firing at Anderson. Defendant then ran past V.N., who said, “Gutta just shot Gerber,” and defendant responded, “Fuck that bitch ass nigga.” V.N. screamed and yelled and attempted to help Anderson continue breathing. Wilson showed up and called 911. Anderson was shot at least six times, primarily in the torso, and died as a result. He was pronounced dead at the scene.
In the early morning hours of December 23, 2013, Virgil Cameron rode his bike to Edwards’s house. As he rode onto Edwards’s driveway he heard shots, and when he looked over, he saw defendant shooting in a downward direction. He left immediately. Cameron knew defendant from the neighborhood and was aware that he was a respected member of the Ridezilla gang, which is associated with the Bloods.
Following the shooting, law enforcement began conducting surveillance at defendant’s residence in the Del Paso Heights neighborhood of Sacramento. On the afternoon of December 31, 2013, defendant left the residence driving a Nissan Altima. Law enforcement officers followed, and a chase ensued. Defendant eventually lost control of the Altima, and crashed head on into another car. Defendant got out of the Altima and ran. He was eventually taken into custody. The Altima defendant was driving had been rented to defendant’s first cousin, James Peters.
After the shooting, Cameron was arrested for burglarizing a hotel and held at the Sacramento County jail. While he was there, he was placed in a holding cell along with defendant and several others. That particular holding cell was used to hold Bloods gang members, and Cameron was a member of the Del Paso Heights Bloods. When Cameron entered the holding cell, defendant was talking to some other inmates. Cameron heard defendant say something like, “[W]itnesses are going to get dealt with on Zilla,” and “Trust me on Zilla, they’re going [to] get handled.” “Zilla” is short for Ridezilla. Cameron understood defendant to mean that something was going to happen to the witnesses.
While in custody at the Sacramento County jail, defendant attempted to mail a copy of a police report containing, among other things, a witness statement by V.N. to his aunt, Zenus Dinkins. The envelope was marked “legal mail” but was intercepted because it was addressed to a residential address. Peters, Dinkins’s son, defendant’s cousin, and a Bloods associate, was living with Dinkins at the time.
V.N. heard that defendant had “$10,000 on [her] head,” sent her statement to law enforcement out to the community, and was going to have people looking for her after the trial was over. At the time of the trial, she was in witness protection.
Detective Jonathon Houston testified as an expert witness on African-American gangs in the east area of Sacramento, including Oak Park. Ridezilla is a criminal street gang predominantly comprised of Oak Park Bloods. The primary activities of Ridezilla are crack cocaine sales, murder, assault with dangerous and deadly weapons, witness intimidation, and home invasions. Respect is a very important part of gang culture, and a simple sign of disrespect could end in violence because gang members do not want to be seen as weak.
According to Houston, gang members regularly intimidate witnesses into not reporting crimes or testifying at trials by going to the witnesses and their families directly and threatening them, or if a gang member is incarcerated, sending other gang members to find witnesses or crime victims and tell them that “we’re not going to allow you to testify in court.” Houston agreed with the following hypothetical, “If a respected gang member is in custody for murder and asked by the fellow gang members what is he going to do about witnesses in the case, . . . he [i]s trying to intimate the witnesses for the benefit of the gang if he tells fellow gang members that his gang will handle the witnesses and take care of it.” Houston explained that he had “investigated several cases and crimes where victim intimidation and retaliation is conducted by members that are incarcerated. They get the word out to their friends, their co-gang members to go and take care of the witnesses, dissuade them from testifying in court so they can have a better chance of getting off the charges at trial.”
Houston opined that defendant was an active member of Ridezilla because he met the validation criteria beginning in 2005, consistently wore gang colors, displayed gang signs, and associated with other Bloods. Defendant also stated in phone calls at the jail that he was a Ridezilla gang member.
B. The Defense
Defendant testified that Anderson “ran up” on him while he was getting a drink in Edwards’s kitchen, and a fight ensued. They fought, and when it was over, defendant treated it as though they “just got it out of the way.” He did not think it was going to continue.
When Anderson left Edwards’s home, he told defendant that he was going to get a gun, come back, and shoot defendant. Defendant sat on the front porch for a while with Haywood before they began walking toward the driveway to leave. As they did so, Anderson returned, aggressively rushed toward defendant, and reached in his back pocket like he had a weapon. Believing Anderson had a gun, defendant pulled out his gun, which he carried for protection, and began shooting. Defendant just reacted; he was not thinking. He kept shooting after Anderson was on the ground because he was still scared.
Defendant denied seeing Cameron in jail or making any of the statements attributed to him by Cameron. He also denied threatening any witnesses regarding his case or offering $10,000 to have anyone killed. He explained that he attempted to mail a copy of the police report to his aunt, who had raised him, because he wanted her to know what was happening in his case.
DISCUSSION
I
The Trial Court Properly Declined to Instruct the Jury on Voluntary Manslaughter Based on Heat of Passion, and Any Potential Error Was Harmless
Defendant first contends that the trial court prejudicially erred by refusing to instruct the jury on voluntary manslaughter based on heat of passion. We are not persuaded, and in any event, find that any potential error was harmless.
The jury in this case was instructed on first and second degree murder, self-defense, and voluntary manslaughter based upon unreasonable self-defense. At the close of evidence, the defense also requested an instruction on heat of passion as a basis for voluntary manslaughter. The trial court refused to give the instruction, explaining that “There was just no evidence to bear out this particular lesser, and I tried to find one.”
“Murder is the unlawful killing of a human being . . . with malice aforethought.” (§ 187, subd. (a).) “[T]he element of malice may be negated by evidence that (1) the defendant acted in a sudden quarrel or heat of passion, or (2) the defendant unreasonably but in good faith believed it was necessary to act in self-defense. If either of these circumstances is found, an unlawful killing will be voluntary manslaughter rather than murder.” (People v. Landry (2016) 2 Cal.5th 52, 97 (Landry).) “ ‘Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation].’ [Citation.]” (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).)
“[A] trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. [Citation.] It is error for a trial court not to instruct on a lesser included offense when the evidence raises a question whether all of the elements of the charged offense were present, and the question is substantial enough to merit consideration by the jury. [Citation.] When there is no evidence the offense committed was less than that charged, the trial court is not required to instruct on the lesser included offense. [Citation.]” (People v. Booker (2011) 51 Cal.4th 141, 181.) “On appeal, we review independently whether the trial court erred in failing to instruct on a lesser included offense.” (Ibid.) Substantial evidence in this context is evidence from which a jury composed of reasonable people could conclude that the lesser offense, but not the greater, was committed. (Landry, supra, 2 Cal.5th at p. 98.)
“The fundamental inquiry when examining heat of passion in the context of manslaughter ‘ “is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion . . . to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ [Citation.]” (People v. Nelson (2016) 1 Cal.5th 513, 538-539.) “[T]he passion aroused need not be anger or rage, but can be any ‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic emotion’ ” ’[citations] other than revenge.” (People v. Breverman (1998) 19 Cal.4th 142, 163.)
Heat of passion has both objective and subjective components. (Moye, supra, 47 Cal.4th at p. 549.) To satisfy the objective component, the claimed provocation must be sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, from passion rather than from judgment. (People v. Carasi (2008) 44 Cal.4th 1263, 1306 (Carasi).) “To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection. . . . [T]he anger or other passion must be so strong that the defendant’s reaction bypassed his thought process to such an extent that judgment could not and did not intervene.” (People v. Beltran (2013) 56 Cal.4th 935, 949 (Beltran).) “To satisfy the subjective element . . . the accused must be shown to have killed while under ‘the actual influence of a strong passion’ induced by such provocation.” (Moye, supra, 47 Cal.4th at p. 550.)
“ ‘[I]f sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter—“the assailant must act under the smart of that sudden quarrel or heat of passion.” ’ ” (Beltran, supra, 56 Cal.4th at p. 951.) Or if the evidence shows that defendant’s passion actually cooled after the provocation, as shown by his “ ‘transaction of other business in the meantime, rational conversations upon other subjects, evidence of preparation for the killing, etc.,’ ” heat of passion is inapplicable. (People v. Golsh (1923) 63 Cal.App. 609, 617.)
Defendant claims that the trial court was required to instruct on heat of passion “due to the victim’s provocation of beating up [defendant], blackening his eye, threatening to return with a gun and shoot him, and then rushing at [defendant] in an aggressive manner when he returned.” Even assuming for argument’s sake that such evidence is sufficient “ ‘to cause an “ ‘ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection’ ” ’ ” (Carasi, supra, 44 Cal.4th 1263, 1306), there is no evidence upon which to base a finding that defendant shot Anderson “while under ‘the actual influence of a strong passion’ induced by such provocation” (Moye, supra, 47 Cal.4th at p. 550).
Neither defendant’s testimony nor any other evidence tended to show that when defendant shot Anderson, defendant’s reason was overcome by any intense emotion caused by Anderson (other than fear, which was fully addressed in the self-defense and unreasonable self-defense instructions, which the jury apparently found inapplicable). Defendant testified that he did not harbor any hatred toward Anderson following the fight, and thought that the conflict was over once the fight was broken up. Edwards testified that defendant had calmed down within minutes of the fight, and she figured “it was over with.” Moreover, Anderson left after the fight and did not return for at least 20 minutes. Defendant testified that when Anderson returned, he rushed towards defendant in an aggressive manner and reached into his back pocket “like he had some sort of weapon.” Defendant said he believed Anderson might be armed, so he shot him in self-defense. Defendant never testified that he was overcome by emotion. When asked why he fired 16 shots when one would have done the job, he said he was scared and “just reacted instead of thinking.” While heat of passion may be produced by fear, there is no evidence to support a finding that defendant was acting under any such passion here.
In any event, even if we were to conclude that the trial court erred in refusing to instruct the jury on a heat of passion theory of voluntary manslaughter predicated on defendant’s fear, the omission of the instruction was harmless under any standard as demonstrated by the jury’s rejection of voluntary manslaughter based upon unreasonable self-defense.
II
Defendant’s First Degree Murder Conviction Is Supported by Substantial Evidence
Defendant contends that his conviction for first degree murder must be reversed because there is insufficient evidence to support either of the prosecution’s first degree murder theories: (1) lying in wait and (2) premeditation and deliberation. As we shall explain, there is substantial evidence that Anderson’s murder was premeditated and deliberate, and thus, we need not consider whether there was sufficient evidence to support the prosecution’s alternative theory of lying in wait.
“An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time.” (People v. Stitely (2005) 35 Cal.4th 514, 543.) “ ‘ “Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, ‘we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.’ [Citation.] But these categories of evidence, borrowed from People v. Anderson (1968) 70 Cal.2d 15, 26-27, ‘are descriptive, not normative.’ [Citation.] They are simply an ‘aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’ [Citation.]” ’ [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 1253.)
In considering a claim challenging the sufficiency of the evidence in a criminal case, “ ‘ “we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104 (McCurdy).)
Here, there was ample evidence to support a finding that Anderson’s murder was premeditated and deliberate. Prior to the shooting, Anderson got the better of defendant in fistfight. The fight took place in front of a group of people. Anderson left his shirt, jacket, and phone at the scene of the fight, and when he returned to retrieve them, defendant was standing in front of the house with a loaded handgun concealed in his jacket. When Anderson was approximately eight feet from defendant, defendant took out the gun and began shooting. He fired 16 shots and continued shooting at Anderson even after Anderson was on the ground. Applying the Anderson guidelines, we find evidence of planning (defendant’s arming himself, and positioning himself outside the house when he could reasonably expect Anderson to return to retrieve his belongings), motive (retaliation for the fistfight and disrespect shown by Anderson), and a manner of killing indicative of a deliberate intent to kill (firing 16 shots at a vital area of the body at close range). (People v. Anderson, supra, 70 Cal.2d at pp. 26-27.) These facts suffice to support a verdict of premeditated and deliberate first degree murder.
Having concluded there is sufficient evidence to support the jury’s finding that Anderson’s murder was premeditated and deliberate, we need not consider defendant’s claim that there was insufficient evidence to support the jury’s finding that the murder was committed while lying in wait. “A first degree murder verdict will be upheld if there is sufficient evidence as to at least one of the theories on which the jury is instructed, ‘absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.’ (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) There is no such affirmative indication here, and the first degree murder verdict must therefore be upheld.” (Nelson, supra, 1 Cal.5th at p. 552.)
III
The Trial Court Did Not Err in Allowing the Prosecution’s Gang Expert to Respond to a Hypothetical Question Concerning the Charge of Attempting to Dissuade a Witness
Defendant next contends that the trial court prejudicially erred when it permitted a gang expert to respond to a hypothetical because the expert’s testimony “amounted to an improper opinion about [defendant’s] guilt of the charged crime of attempt to dissuade a witness.” We are not persuaded.
At trial, the prosecutor posed the following hypothetical to Houston: “If a respected gang member is in custody for murder and asked by the fellow gang members what is he going to do about witnesses in the case, would you think he was trying to intimidate witnesses for the benefit of the gang if he tells fellow gang members that his gang will handle the witnesses and take care of it?” Over the defense’s objection, Houston responded in the affirmative, explaining that “it’s known in the gang culture, especially with Ridezilla, that – I’ve investigated several cases and crimes where victim intimidation and retaliation is conducted by members that are incarcerated. They get the word out to their friends, their co-gang members to go and take care of the witnesses, dissuade them from testifying in court so they have a better chance of getting off the charges at trial.”
Defendant claims that the admission of this testimony deprived him of his federal right to a fair trial by encouraging jurors to shift their decision to the expert witness. He is mistaken.
Defendant “does not dispute that the expert was entitled to offer an opinion about whether a crime that was committed would have been committed for the benefit of a criminal street gang,” rather, he contends that “the question posed by the prosecutor also called upon the expert to opine as to whether the hypothetical defendant ‘was trying to intimidate the witnesses.’ In other words, whether the defendant committed a crime.” According to defendant, “This part of the question was tantamount to asking the expert whether the hypothetical defendant had committed the charged crime of attempt to dissuade a witness [citation], thereby violating the ‘settled and long-established rule . . . that a witness cannot express an opinion concerning the guilt or innocence of the defendant.’ (See People v. Clay (1964) 227 Cal.App.2d 87, 98-99).”
The prosecutor may ask an expert witness hypothetical questions based on the facts of a case, including questions that embrace the ultimate question of the defendant’s guilt or innocence. (People v. Vang (2011) 52 Cal.4th 1038, 1048.) “[E]xpert testimony is permitted even if it embraces the ultimate issue to be decided. (Evid. Code, § 805.) The jury still plays a critical role in two respects. First, it must decide whether to credit the expert’s opinion at all. Second, it must determine whether the facts stated in the hypothetical questions are the actual facts, and the significance of any difference between the actual facts and the facts stated in the questions.” (Id. at p. 1049-1050.) Accordingly, even assuming the hypothetical posed by the prosecutor called upon the expert to opine as to whether the hypothetical defendant was trying to intimidate the witnesses, as defendant contends, such opinion testimony was permissible. (Id. at p. 1048-1050.)
IV
Defendant’s Conviction for Attempting to Dissuade a Witness Is Supported by Substantial Evidence
Lastly, defendant claims that his conviction for attempting to dissuade a witness must be reversed because “[t]he prosecution presented insufficient evidence of any actual steps taken by [defendant] to dissuade the eyewitness from testifying . . . .” Again, he is mistaken.
Section 136.1, subdivision (a)(2), states that any person who does the following is guilty of a public offense: “Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.” The prosecution must prove that “the defendant’s acts or statements are intended to affect or influence a potential witness’s or victim’s testimony or acts . . . .” (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.) Where a defendant has this intent and “performs an act that ‘go[es] beyond mere preparation . . . and . . . show[s] that the perpetrator is putting his or her plan into action’ [citation], the defendant may be convicted of criminal attempt.” (People v. Toledo (2001) 26 Cal.4th 221, 230, fn. omitted.)
Considering the evidence in the light most favorable to the judgment as we must (McCurdy, supra, 59 Cal.4th at p. 1104), the evidence shows that defendant intended to dissuade V.N. from testifying against him under section 136.1, subdivision (a)(2). Defendant is a member of Ridezilla. Ridezilla gang members regularly intimidate witnesses into not reporting crimes or testifying at trials by going to the witnesses and their families directly, or if the gang member is incarcerated, sending other gang members to find witnesses or crime victims. While in custody at the jail, defendant told fellow gang members something like, “[W]itnesses are going to get dealt with on Zilla,” and “Trust me on Zilla. They’re going [to] get handled.” Defendant also attempted to mail a copy of a police report containing a witness statement by V.N. to his cousin, who is a Bloods associate.
On this record, a juror could reasonably conclude that defendant’s act of attempting to mail a copy of a police report containing a witness statement by V.N. to a person associated with the Bloods constituted an attempt to dissuade a witness under section 136.1, subdivision (a)(2). Defendant’s claim to the contrary is meritless.
DISPOSITION
The judgment is affirmed.



/s/
Blease, Acting P. J.


We concur:



/s/
Hull, J.



/s/
Robie, J.