P. v. Killingsworth

Filed 9/28/07 P. v. Killingsworth CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed.

Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Keith H. Borjon, Deputy Attorney General, for Plaintiff and Respondent.

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Tyrone Killingsworth appeals from the judgment entered on resentencing, following remand ordered in People v. Killingsworth et al. (Oct. 31, 2005, B171869) [nonpub. opn.] at pages 2223 (Killingsworth I). He contends that the imposition of consecutive terms for second degree murder and grand theft violated Penal Code section 654 (section 654) and his constitutional right to a jury trial. We affirm.

BACKGROUND

As stated in Killingsworth I, Killingsworth was convicted of second degree murder and grand theft of a firearm, with further findings that the crimes were committed for the benefit of a criminal street gang and Killingsworth personally discharged a firearm that proximately caused death to another person. In bifurcated bench proceedings, [Killingsworth was] also found to have suffered prior felony convictions. [] . . . []

Killingsworth and [codefendant Damian] Williams[, who is not a party to this appeal,] were charged with the special circumstance murder of Grover Tinner at a crack house on Gage Street in Los Angeles. Killingsworth and Williams were further charged with burglarizing the house and robbing three people who were present. One of the robbery counts was amended during trial to allege grand theft of a firearm.

The evidence adduced at trial established that in 2000 Tinner operated two houses in which crack cocaine was sold, the one on Gage Street and the other on Brighton Street in Los Angeles. Tinner was known to have a nasty disposition, particularly involving money, and had said that he would kill anyone who disrespected him. The Brighton Street house was in territory controlled by the Eight Trey Gangster Crips street gang, to which Williams belonged. Killingsworth was a former member of the Shotgun Crips (Killingsworth claimed he had not been a member for the past 16 years), a gang which was friendly with the Eight Trey Gangsters. Tinner, who lived in Eight Trey Gangster territory, had previously been associated with the 74 Hoovers gang but was no longer gangbanging at the time he was murdered. The Gage Street house was on the border of territory claimed by the Eight Trey Gangsters and a rival gang. Williams and Killingsworth had been at the Brighton Street crack house at various times. Once while Killingsworth was there, he said that he was tired of the crack addicts at the house, that Tinner aint running nothing here, and Killingsworth would be glad when Williams come up.

Close to midnight on July 17, 2000, Williams and Killingsworth arrived at the Gage Street house. They were let in by Jeffrey Brooks, who was the doorman that night. Several people were inside, including Milton Lewis, who was sitting at a table in the dining room from which drugs were being dispensed. Cash and a .22‑caliber revolver were also on the table. Tinner was not there. While Killingsworth stayed by the front door, Williams approached Lewis and asked who was running the house. Lewis said that he was. Williams then picked up the revolver (the act that provided the basis of the grand theft conviction) and loudly identified himself by his gang moniker, Football. Williams repeatedly said that he was from Eight Trey, that he and Killingworth were not there to rob or hurt anyone, but that they were going to shut this motherfucker down, and that he do[es] it like Al Capone. Williams tossed the gun to Killingsworth, who remained near the front door. Someone from the house went to get Tinner, telling him that the Gage Street house was being robbed.

Williams next went to one of the bedrooms of the house and ordered the people inside to come out and get on the floor. Williams returned to the dining room, told Lewis he knew there was another gun in the house and said, Youre already dead, give me the gun. When Lewis did not comply, Williams touched his waist area and said, You might not see my gun but my gun is closer than what you think. Lewis then gave Williams a .44‑caliber revolver that was in a nearby shoe box. Williams handed the gun to Killingsworth and told him to return to the area of the front door, adding, You know what to do, T. Dont let me down. Williams also told Lewis that if Tinner did not arrive in 20 minutes, Lewis would be the first motherfucker to get it in the head.

While waiting for Tinner to arrive, Williams put a $20 bill on the table where Lewis was sitting and took some cocaine off the table. Williams asked if the people in the house wanted any and provided cocaine to those who asked for it. In addition, during that time, Williams threatened to shoot two of the women at the house, one because she was moving around too much and the other when she reacted to the threat. At some point Williams took out a big rock of cocaine from his sock and told the people at the house that he knew their faces and if I catch you all buying from over here you know whats going to happen. (The prosecution presented evidence that during this time defendants committed robberies of people at the house. Defendants were acquitted of these charges.)

Tinner eventually arrived at the house. As he approached, Killingsworth, from his vantage point by the front door, said to Williams, Get ready, man. Here come the boy. Williams again told Killingsworth, Dont let me down, and, You know what to do. Tinner knocked on the front door, which Killingsworth opened. Tinner walked in holding a .45‑caliber handgun and angrily asked what was going on. Killingsworth remained standing behind the open door. Williams identified himself as Football and said he was not there to rob Tinner but wanted to talk to him.

Meanwhile, Tinners nephew, Don Toombs, had entered the house through another door. Toombs grabbed Williams around the neck and put a gun to Williamss head. Williams yelled, T, and Killingsworth stepped out from behind the door. Tinner pointed his gun at Killingsworth and the two struggled for each others gun. During the struggle, Killingworths gun discharged, hitting Tinner in the leg. Tinner ran out the front door and away from the house. Muriel Coleman, who was approaching the house to buy cocaine, saw a man running from the house and saw three shots being fired. One of the shots hit Tinner in the back. After running a short distance to an alleyway, Tinner collapsed and died. Williams managed to get away from Toombs and fled.

Tinner sustained two gunshot wounds, [a non-fatal wound] to his right thigh and a fatal through-and-through wound that entered his upper back, passed through his heart and other vital organs, and exited his body through the abdomen on a downward trajectory. Police found a .22‑caliber revolver and a .44‑caliber revolver near the scene of the murder. The .22‑caliber revolver was loaded and had no expended casings. The .44‑caliber revolver had four expended casings and two live rounds. The wound to Tinners thigh had been from a .44‑caliber weapon. (Killingsworth I, supra, B171869, at pp. 25.)

Killingsworth was sentenced to consecutive terms for murder and grand theft. He raised a single sentencing argument in his prior appeal, involving a gang enhancement that had been found. We found merit in the contention based on a then-recent Supreme Court opinion and remanded for resentencing. (Killingsworth I, supra, B171869, at pp. 2223.)

On remand, Williams filed a sentencing memorandum in which he argued that consecutive sentences violated section 654. Killingsworth joined in the argument. The prosecutors sentencing memorandum argued that section 654 was inapplicable because defendants had been charged with premeditated murder and murder by lying in wait (among other theories), and the jurys rejection of those theories implied a finding that Williams and Killingsworth entered the residence with separate intents to rob and to kill. In addition, the crimes were perpetrated at separate times on separate victims and there was no evidence that the gun taken in the theft was used in the murder.

At the resentencing hearing, the court rejected the argument that section 654 precluded separate punishment and re-imposed consecutive sentences on Killingsworth for murder and grand theft.

DISCUSSION

1. Section 654

Section 654 precludes separate punishment for crimes that are incident to the same intent and objective. (Peoplev.Latimer (1993) 5 Cal.4th 1203, 1208.) Conversely, if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (Peoplev.Beamon (1973) 8 Cal.3d 625, 639.) The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendants intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657; accord, People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)

Here, although the record is consistent with an interpretation that Killingsworth and Williams went to the Gage Street house with an overarching plan to take over the drug operation being conducted from that location, the jury rejected the prosecutions theory that Tinners murder was premeditated or committed by means of lying in wait, thereby undermining Killingsworths argument that the grand theft and the murder were part of an indivisible course of conduct. Accordingly, separate sentences for grand theft and murder were proper in this case.

2. Right to Jury Trial

We also reject Killingsworths contention that in the absence of jury findings imposition of a consecutive sentence violated his constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and its predecessor cases.

In People v. Black (2005) 35 Cal.4th 1238, 1264 (Black I), our Supreme Court held that [f]or purposes of the right to a jury trial, the decision whether section 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently. Both are sentencing decisions made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense, and neither implicates the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. In People v. Black (2007) 41 Cal.4th 799, 806, our Supreme Court stated that, consistent with this courts determination in Black I, we hold that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms. As such, there is no merit in Killingsworths contention of violation of the right to a jury trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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