P. v. Brown

Filed 4/20/07 P. v. Brown CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant James Ray Brown was convicted after jury trial of discharging a firearm at an occupied motor vehicle (count 1) and of assault with a firearm (count 2). (Pen. Code, 246; 245, subd. (a)(2).)^[1] Street gang enhancements that were attached to both counts and a personal firearm use allegation that was attached to count 2 were found true. ( 186.22, subd. (b)(1); 12022.5, subd. (a)(1).) He was sentenced to 15 years to life imprisonment for count 1; the sentence imposed for count 2 was stayed pursuant to section 654.

Appellant challenges the sufficiency of the evidence proving that the offenses were committed with the specific intent to promote, further or assist in criminal conduct by gang members. He also contends that he was denied the right to a unanimous jury verdict on count 2. Neither argument is persuasive; we will affirm.

FACTS

On October 7, 2005, Brittney Fulmer was driving in her blue Ford Probe on Jensen Avenue near the on ramp to Highway 41. Terence Williams was sitting in the front passenger seat and Melvin Cooper was sitting in the back seat behind Fulmer. Fulmer was traveling in the far right lane. Shortly after she proceeded through the intersection and prepared to enter the freeway ramp, she heard the sound of two gunshots coming from her left. She looked over and saw a tan or brown Toyota Camry. This was the only vehicle near her in traffic. The front passenger window of the Camry was open. Fulmer recognized the driver of the Camry as Jamie Stanfield. A male was sitting in the front passenger seat. When Fulmer subsequently examined her car, she observed a bullet hole above the drivers side wheel well.

Later that day, Fulmer identified appellant as the shooter to Fresno Police Officer Douglas Wright and she selected appellant and Stanfield in photographic lineups. Fulmer told Wright that she saw appellants right arm outside the passenger window. He was pointing a gun at her. On January 2, 2006, Fulmer told Fresno Police Detective Ron Flowers that [s]he saw [appellant] extend his arm out of the window of the tan car and fire two shots into her car.

Stanfield was arrested and interviewed on October 17, 2005. Flowers testified that Stanfield said that she was driving appellant toward an area of Fresno known as the Dog Pound. Appellant received a cell phone call and became engaged in a heated conversation with another male. The caller said that he had been watching appellant and Stanfield while they were driving. The caller wanted to meet appellant or his group on Jensen Avenue. Appellant told the caller, Bitch ass nigga. Im going to get you. Then he said, When I catch you Im going to smoke your black ass. As Stanfield drove onto Jensen Avenue appellant suddenly rolled down his window, produced a handgun and fired at least one shot at a beige car in the lane to the right of them. Stanfield asked appellant why he shot at the car. Appellant replied that the cars occupants were from TWAMP (which is an alignment of Black street gangs) and they were about to be attacked. ^[2]

Detective Flowers also gave expert gang testimony. Williams is a member of a street gang known as the Young Black Soldiers (YBS). Appellant is an active member of a street gang known as the Dog Pound Gang (DPG). The primary activities of the DPG include the sale of narcotics, shootings, weapons offenses, assaults, pimping, rape and murder. Flowers testified about two predicate crimes involving DPG members.

Flowers also testified that the YBS is one of a group of gangs that have aligned together in an association known as TWAMP. The DPG is allied with a rival alignment of gangs known as MUG. DPG members consider members of TWAMP allied gangs to be enemies. If two rival gang members see each other on the street, one will usually attempt to act out before the other.

Flowers opined that appellants act of shooting into Fulmers car was committed for the benefit of the DPG. The shooting benefited the DPG in two ways. First, it potentially could have resulted in the death of a rival gang member who is a threat to the DPG. Second, it sent a strong signal to rival gangs that the DPG is a force to be reckoned with. The shooting indicated to other gangs that DPG members are capable of and willing to use violence. Also, if appellant had not shot at Williams and this fact became known, appellant could have been perceived as a coward.

Appellant presented an alibi defense. Briniece OGuinn testified that she and appellant took their two children to a doctors appointment scheduled around 1:45 p.m. Afterward, they took the bus to the police station and picked her car up from the impound lot. It was stipulated that OGuinns vehicle was released to her at approximately 4:51 p.m.^[3]

In rebuttal, Detective Flowers testified that he interviewed OGuinn by telephone on January 6, 2006. OGuinn said that she and appellant were together with their children at a Motel 6 on October 7, 2005, from 8:00 p.m. to 9:00 p.m.

DISCUSSION

I. There is substantial evidence from which the jury could conclude beyond a reasonable doubt that the offenseswere committed with the specific intent to promote, further or assist in criminal conduct by gang members.

Appellant challenges the sufficiency of the evidence proving that the shooting was committed to benefit the DPG, a required element necessary to support the gang enhancements. We agree with respondent that the record contains the requisite substantial evidence.

In evaluating the sufficiency of the evidence, a reviewing court considers the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Similarly, a conviction violates the due process clause of the Fourteenth Amendment of the United States Constitution if it is not supported by substantial evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) A finder of fact reasonably may rely on the testimony of a single witness to prove a disputed factual issue unless the witnesss testimony is physically impossible or patently false. (People v. Cudjo (1993) 6 Cal.4th 585, 608.) We presume in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, including reasonable inferences based on the evidence. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.) Credibility determinations are made by the trier of fact; we do not reweigh evidence or determine if other inferences could have been drawn from it. (People v. Stanley (1995) 10 Cal.4th 764, 793.)

Flowers testified that Stanfield told her that appellant was involved in a heated conversation on his cell phone with another male immediately prior to the shooting. Appellant repeated the callers statements to the effect that the caller wanted to meet appellant or his group on Jensen Avenue. The caller also said that he had been watching appellant and Stanfield while they were driving. Appellant told the caller, Bitch ass nigga. Im going to get you. Then he said, When I catch you Im going to smoke your black ass. After appellant fired the shot or shots at the Camry, he told Stanfield that he did so because the Camry contained TWAMP enemies who were going to attack him.

Detective Flowers opined that the shooting benefited the DPG in two ways. First, this shooting had the potential of taking out a rival gang member. Williams was a passenger in the Camry. He was a well-known YBS member who appeared in a locally produced gang video entitled Fresno Uncensored. If two rival gang members see each other on the street, one will usually attempt to act out before the other one can act. Second, this shooting sent a signal to rival gangs that the DPG gang is a force to be reckoned with. The shooting demonstrated to rival gangs that DPG members are willing to use violence, even when there is a risk that an innocent bystander could be injured.

Appellant asserts that Detective Flowerss testimony should be disregarded because it is not supported by direct or circumstantial evidence, even hearsay, from another source. We disagree. This argument ignores statements Stanfield made to Flowers. Stanfield recounted the cell phone conversation between appellant and another male immediately prior to the shooting and she relayed appellants explanation why he fired at the Camry. Stanfields statements to Flowers provide a factual basis supporting Flowers opinion that appellant shot at the car because it contained rival TWAMP gang members and appellant believed that he was going to be attacked by them. Detective Flowers expertise was necessary only to give meaning to appellants words and actions. (People v. Gamez (1991) 235 Cal.App.3d 957, 967, 978; People v. Ward (2005) 36 Cal.4th 186, 210.)^[4]

Appellants assertion that a retaliatory strike out of fear of an imminent attack is not conduct promoting or furthering gang activity is mere opinion. Flowers proffered expert testimony that appellants act of shooting at the Camry benefited the DPG gang because it could have eliminated a rival and it demonstrated a willingness to use deadly force. Flowerss credibility was a matter for the jury to assess; such credibility determinations are not reweighed on appeal. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)

Accordingly, we find that the record contains substantial evidence from which a jury could conclude beyond a reasonable doubt that the shooting was committed for the benefit of the DPG gang and that appellant had the specific intent to promote, assist or further criminal conduct by DPG gang members when he fired the handgun.

II. The fact that the information alleged that the assault was committed against two victims did not deny appellant his right to a unanimous jury verdict.

A. Facts

Count 2 of theamended information alleged that appellant assaulted Brittany Fulmer and Terrance Williams with a firearm.

The jury was instructed on the elements of this crime, as follows:

The defendant is charged in Count Two with assault with a firearm.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person;

2. The defendant did that act willfully;

3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;

AND

4. When the defendant acted, he had the present ability to apply force with a firearm to another person.

Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage.

The People are not required to prove that the defendant actually intended to use force against someone when he acted.

No one needs to actually have been injured by defendants act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault.

In relevant part, the verdict form stated, WE, the jury find the defendant guilty of VIOLATION OF SECTION 245(a)(2), of THE PENAL CODE, a felony, ASSAULT WITH A FIREARM, as charged in Count Two of the First Amended Information.

B. Appellant was not denied the right to a unanimous verdict.

Because two victims were charged in connection with count 2 and the court did not give a unanimity instruction, appellant asserts that his constitutional right to a unanimous jury verdict was infringed. We disagree.

Appellant expressly rejected a unanimity expression. Before the court instructed the jury, it made the following comment setting forth agreements that were reached during the instructional conference with counsel:

We also discussed the fact that sometimes there is a need for instructions concerning unanimity. In this particular case [, because] these shots, if there were two shots fired, essentially [occurred] in a continuous course of conduct, both of you are in agreement and [defense counsel] in particular there is no need to give a unanimity instruction, correct?

Defense counsel replied, Correct.

This exchange demonstrates that defense counsel consciously chose not to have the jury instructed on the concept of unanimity. Defense counsel had a reasonable basis for rejecting a unanimity instruction -- the shot or shots were fired in a continuous course of conduct. Therefore, the error asserted on appeal was invited and appellant is estopped from raising the issue on appeal. (People v. Lara (1994) 30 Cal.App.4th 658, 673-674.)

We are unconvinced by appellants responsive argument that if the alleged error is deemed invited, then defense counsels agreement to the omission of a unanimity instruction constitutes ineffective assistance of counsel. Both of the victims named in the amended information were present in the car when appellant fired the shot or shots in quick succession. Appellant did not raise a separate defense with respect to each of the victims named in count 2, as he claims in his reply brief. He presented an alibi defense which, if believed by the jury, would have resulted in his acquittal on both counts. Appellant denied firing any shots at the Camry and claimed that he was elsewhere when the crimes occurred. Therefore, it is not reasonably likely that the jury would have returned a more favorable verdict if it had been given a unanimity instruction. (In re Jackson (1992) 3 Cal.4th 578, 604 [ineffective assistance claims may be resolved based on lack of prejudice].)

In any event, the foundational premise of appellants argument is unsound. Appellant was not charged with attempted murder, which is a specific intent crime. The crime of assault with a deadly weapon does not require an identifiable victim, and the naming of a victim is not an element of the crime. This is a general intent crime that does not require a specific intent to injure a specified person. (People v. Lee (1994) 28 Cal.App.4th 1724, 1737 (Lee).^[5] In Lee, the court held that firing at a crowd is enough to establish the general intent crime of assault. The jurys focus should be on whether the defendant had the general criminal intent to commit an assaultive act that had the direct, natural and probable consequences of applying physical force upon or injury to another, and not on considering whom the defendant intended to injure. (Id. at p. 1738.)

In this instance, due process was satisfied because there was no question which of defendants acts was the basis for the assault with a firearm count. The prosecutor unequivocally argued that appellant committed an assault with a firearm when he fired one or more shots at the Camry. The evidence supports the conclusion that appellant knew that the car was occupied by two or more people when he fired at it. Thus, the failure to specify a single victim and the absence of a unanimity instruction did not result in a conviction that violated the constitutional unanimity guarantee. Any possible defect in the verdict form for count 2 is harmless beyond a reasonable doubt; appellants substantial rights did not suffer any prejudice. (People v. Jones (1997) 58 Cal.App.4th 693, 710-711.)

DISPOSITION

The judgment is affirmed.

_________________________

Levy, Acting P.J.

WE CONCUR:

_______________________________

Cornell, J.

_______________________________

Gomes, J.

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^[1] Unless otherwise specified, all statutory references are to the Penal Code.

^[2] At trial, Fulmer recanted her statements to the police and testified that she no longer thought that appellant was the shooter. Stanfield denied knowing appellant and recanted her statements to Flowers.

^[3] OGuinn testified that she did not provide this information to Flowers because she had [her] dates mixed up.

^[4] Appellants reliance on People v. Killebrew (2002) 103 Cal.App.4th 644 is misplaced. Killebrew involved a conspiracy to possess a handgun. There was conflicting testimony whether the defendant was in one of the three vehicles at issue. The appellate court reversed and held that the gang expert should not have been permitted to testify about the subjective intent and knowledge of each occupant of the vehicles. Here, appellant personally fired the shots at the Camry and he told Stanfield that he did so because the car contained TWAMP enemies who were going to attack him.

^[5] Contrary to appellants assertion in his reply brief, the portion of the holding in Lee that is applicable in this instance was not called into dispute by People v. Raviart (2001) 93 Cal.App.4th 258 or People v. Bland (2002) 28 Cal.4th 313.