Opinion
B229786
02-02-2012
THE PEOPLE, Plaintiff and Respondent, v. KEVIN L. THOMPSON, Defendant and Appellant.
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA359587)
APPEAL from a judgment of the Superior Court of Los Angeles County. William R. Pounders, Judge. Affirmed.
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
Kevin L. Thompson appeals from a judgment sentencing him to 60 years to life for the murder of Robert Jones on November 18, 2007. We affirm the judgment.
FACTS
I. The Murder of Robert Jones
On November 18, 2007, Jones was cruising on a popular stretch of Crenshaw Boulevard in his white Chevrolet Tahoe with his friends, M.B. and L.M. Jones parked his Tahoe in a CVS parking lot on Crenshaw Boulevard and Coliseum Street at 2:15 a.m. to meet his cousin, R.B., who was in a black Chrysler, and his friends, J.S., Valerie Gomez, M.S., and S.A., who were in J.S.'s blue Toyota Camry. Gomez and M.S. stayed in the Camry while the others stood outside the cars listening to music and talking.
A second group of five cars arrived and parked in a different section of the CVS parking lot about five minutes after Jones arrived. Thompson was in this group and drove a black Hummer he borrowed from his godsister. Many of the people in Thompson's group wore red clothing and red and black beanies or hoodies. A few girls from this group, all wearing red clothes with black hoodies, approached J.S.'s car and asked, "Where you all from?" After Gomez responded with a reference to her Crip affiliations, she and M.S. were pulled out of the car and beaten by the girls from Thompson's group. S.A. rushed over to help and was also beaten. Jones tried to break up the fight and protect S.A., whom he considered to be a close friend. Jones pushed one of the girls from Thompson's group after she slapped him.
At trial, witnesses testified that Gomez either said, "Cuz," a commonly known term for Crips gang members, or "By yourself Hustler Crip."
When Jones leapt into the fray, a number of men from Thompson's group surrounded him and began to assault him, knocking him to the ground. Thompson did not participate, but remained on the curb, observing the fight. Thompson was dressed in black with a red and white symbol on his pants' back pockets and he wore black gloves. When Jones got back on his feet, however, the fighters split up and formed a path between Jones and Thompson. Thompson fired three shots at Jones using a black handgun. Jones collapsed after the first shot and Thompson aimed the next two shots at Jones's head. M.B. testified that Thompson had a smirk on his face immediately after shooting Jones.
Thompson and his group scattered and fled after the shooting. Jones received a fatal gunshot wound to his neck and a wound to his knee. When Los Angeles Police Department officers arrived at the CVS, Jones was lying on the parking lot and only his group remained. The officers recovered three 9-millimeter bullet casings and two bullet fragments from the area. The officers interviewed M.B. and broadcast a description of the suspects and the Hummer. Thompson was pulled over in the Hummer on 60th Street and Crenshaw Boulevard at 2:30 a.m. With him were Breenae Black and Gervan Jackson. That night, M.B. identified Thompson as the shooter, Jackson as one of the men who assaulted Jones, and Black as one of the women involved in the initial fight. J.S. identified Black as the woman who asked, "Where you from?"
II. The Trial and Verdict
In an information, Thompson was charged with one count of murder with malice aforethought. (Pen. Code, § 187, subd. (a).) The information also alleged firearm and gang enhancements. (§§ 12022.53, subds. (b), (c) & (d), 186.22, subd. (b)(1)(C).) A jury trial began on September 27, 2010. At trial, the prosecution presented evidence of the murder as described above. In addition, the jury was shown surveillance camera footage of the two groups arriving and people fleeing the scene of the murder. The shooting, however, occurred outside the camera's range. M.B. and L.M. identified Thompson as the shooter at trial while J.S. confirmed Thompson was at the scene of the crime but could not remember what he did.
All further section references are to the Penal Code.
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Officer Kerry Tripp, who is a member of Inglewood Police Department's gang intelligence unit and the International Latino Gang Investigators Association, testified for the prosecution as a gang expert. Officers Tripp and Brendan Wilkes knew Thompson and his passengers, Gervan Jackson and Breenae Black, to be members of the Inglewood Family Bloods. Tripp testified that gangs affiliated with the Bloods are associated with the color red and are enemies of Crips gangs. When they plan to commit crimes on behalf of a gang, gang members often "dress down" by wearing coordinating attire or colors. Tripp testified that murder is among the primary activities of the Inglewood Family Bloods, recounting three other murders and two attempted murders committed by members of that gang, some of which were committed on Crenshaw Boulevard during cruise night.
Officer Tripp further testified that the CVS parking lot area was located at the border of several rival gang territories, including the Black P-Stones, Rolling 20's Bloods, Rolling 40's Crips and Rolling 60's Crips. Tripp believed an Inglewood Family Bloods gang member cruising in that area while dressed down in gang attire would be armed because he would likely encounter rival gang members and had to drive through rival gang territory to get there. Tripp also opined that if an Inglewood Family Bloods gang member had the opportunity to assault or kill a member of a rival gang, "more than likely, that's what they're going to do." This was because gang members often gained status for themselves and for their gang by committing crimes for the gang. Tripp opined that Jones's murder was committed for the benefit of the Inglewood Family Bloods.
The defense focused its strategy on a case of mistaken identity and presented testimony from R.B. and Thompson's friend that the shooter was heavy-set and short, a description that would not fit Thompson, who is six feet two inches tall and approximately 170 pounds. Thompson testified on his own behalf, denying any membership in the Inglewood Family Bloods. Thompson also denied he brought a gun with him that night nor was he aware a gun was in the Hummer when he borrowed it. Though he wore pants with red stitching and red shoes, he stated he was not wearing that color for any particular reason. He also denied owning the gloves found by police in the Hummer. Thompson testified that he was at the CVS parking lot socializing with friends when a fight broke out in another area. He did not know the women involved in the fight but had seen them before. Although he went over to watch the fight, he did not say anything to the fighters or participate. When the men joined the fight, Thompson continued to watch but he did not know who they were or where they came from. Thompson testified he saw a "[s]hort, dark skinned, chubby" man shoot Jones. Thompson ran to his Hummer and drove away after the shooting with Jackson and Breenae.
As they were driving, Thompson noticed Jackson was fiddling with something in the back seat. When Thompson asked Jackson what he was doing, Jackson admitted he had a gun. Thompson pulled over at Crenshaw Boulevard and 60th Street demanding that Jackson get rid of the gun or leave the Hummer. While Jackson and Breenae argued over who was going to dispose of the gun, a police car pulled up behind the Hummer with its lights on. Thompson swept the gun, which had been left on the center console, to the back of the car with his hand. He testified it was the only time he touched the gun. Thompson was arrested and at the police station, he described the shooter to the police as short, dark and chubby. Thompson denied shooting the gun that night.
Officers recovered a black nine-millimeter Beretta, a magazine with 10 live rounds of ammunition, a pair of black gloves, a red handkerchief and a red cap with the letter "I" on it from the Hummer. The bullet casings from the murder scene matched the gun found in the Hummer and samples of DNA taken from that gun matched Thompson's DNA profile. L.M. later identified Thompson as the shooter from a six-pack photographic lineup.
DISCUSSION
I. Evidence of Premeditation
Thompson challenges his conviction for first degree murder on the ground that the evidence did not show a premeditated killing as that word is used in section 189. As a result, he urges us to reduce his conviction to second degree murder. We disagree.
Section 189 defines first degree murder as "[a]ll murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206 [torture], 286 [sodomy], 288 [lewd or lascivious acts involving children], 288a [oral copulation], or 289 [penetration by foreign object], or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death . . . ."
Thompson invokes the doctrine of ejusdem generis to argue that there was insufficient evidence to show premeditation as contemplated under section 189. Under the doctrine, "the more general words 'or any other kind of willful, deliberate, and premeditated killing,' following the specifically enumerated instances of killing which are expressly declared to constitute murder of the first degree, must be construed in the light of such specifically listed types and be held to include only killings of the same general kind or character as those specifically mentioned. By conjoining the words 'willful, deliberate, and premeditated' in its definition and limitation of the character of killings falling within murder of the first degree the Legislature apparently emphasized its intention to require as an element of such crime substantially more reflection than may be involved in the mere formation of a specific intent to kill." (People v. Thomas (1945) 25 Cal.2d 880, 899-900 (Thomas); see also Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159-1160.)
According to Thompson, "[n]othing in this record is of a piece with poisoning and murder by explosives, so the present offense is not within the scope of section 189." The surveillance video showed that only two minutes elapsed between the time people began walking from one part of the parking lot—to initiate the fight—and the time they scattered after the shooting. M.B. confirmed that only six minutes elapsed between the time they arrived at the CVS parking lot and the time Jones was shot. In Thompson's view, this was insufficient time to plan or premeditate Jones's murder.
In applying the doctrine of ejusdem generis to section 189, however, the California Supreme Court in Thomas concluded that "[n]either the statute nor the court undertakes to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent which is truly deliberate and premeditated. The time would vary with different individuals and under differing circumstances. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes from murder of the first degree those homicides (not specifically enumerated in the statute) which are the result of mere unconsidered or rash impulse hastily executed." (Thomas, supra, 25 Cal.2d at pp. 900-901.) In People v. Anderson (1968) 70 Cal.2d 15, 26-27, the high court clarified the three categories of evidence, which it has found sufficient to sustain a finding of premeditation and deliberation— planning activity, motive and manner of killing.
To determine whether there was sufficient evidence to support the judgment, we must view the evidence found in the whole record in a light most favorable to respondent and presume the existence of any fact the trier could have reasonably deduced from the evidence in support of the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." (People v. Huston (1943) 21 Cal.2d 690, 693, disapproved on other grounds in People v. Burton (1961) 55 Cal.2d 328, 351-352.)
With these guidelines in mind, we find there is sufficient evidence of all three categories of evidence to support a first degree murder conviction. There was sufficient evidence from which a jury could have found Thompson guilty of first degree murder on a premeditation and deliberation theory where: (1) he was a known member of the Inglewood Family Bloods; (2) he had a gun and a magazine loaded with 10 live rounds of ammunition in the Hummer that night; (3) he knew he would be cruising through an area where he was likely to encounter a rival gang member; (4) he dressed down that night, wearing black with red; and (5) he brought a pair of gloves, which would prevent him from leaving fingerprints on the gun and prevent gunshot residue from settling on his hands. Also, the manner of killing was calm and exacting, supporting a conclusion that it was the result of preexisting thought and reflection rather than an unconsidered rash impulse. Thompson did not participate in the assault on Jones, but instead waited and watched for an opportunity at a clear shot. That moment came when, as described by M.B., the fighters parted to form a path between Thompson and Jones. He also fired two shots aimed Jones's head after Jones fell to the ground with a gunshot wound to his knee. M.B. also testified that Thompson had a smirk on his face after shooting Jones.
That there is no evidence Thompson planned to kill Jones in particular does not negate a finding that he planned to kill someone that night. (People v. Wells (1988) 199 Cal.App.3d 535, 540-541 ["Appellant's possession of the handgun is consistent with intent to kill a rival gang member even if it does not provide solid evidence of prior planning to kill this particular victim"].) Indeed, "[a] studied hatred and enmity, including a preplanned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation." (People v. Rand (1995) 37 Cal.App.4th 999, 1001.) Accordingly, we find Thompson's arguments unavailing.
II. Evidence of Primary Activities to Support the Gang Enhancement
Thompson next challenges the jury's true finding on the gang enhancement allegation, contending there was insufficient evidence to prove the primary activities requirement of a gang enhancement. To prove the gang enhancement allegation, the prosecution had to show beyond a reasonable doubt that, among other things, the gang has, as one or more of its primary activities, the commission of murder, attempted murder, assault with a deadly weapon, or burglary. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 (Sengpadychith).)
In Sengpadychith, the California Supreme Court explained, "The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. . . . 'Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. Section 186.22 . . . requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s]. . . . Similarly, environmental activists or any other group engaged in civil disobedience could not be considered a criminal street gang under the statutory definition unless one of the primary activities of the group was the commission of one of the . . . enumerated crimes found within the statute.' " (Sengpadychith, supra, 26 Cal.4th at pp. 323-324, citation omitted.)
In response to a request to "give the jurors a history about" the Inglewood Family Bloods and describe what type of gang it is, Officer Tripp testified that the Inglewood Family Bloods "commit crimes such as murder, robbery, rape, shooting at people, shooting at the police, carrying guns, other dangerous weapons and narcotics." Later, Tripp twice confirmed that he "stated that some of the primary activities that Inglewood Family [Bloods] gang members commit are murders, attempted murder, robberies." Tripp further discussed three other gang-related murders and two attempted murders committed by members of the Inglewood Family Bloods.
This testimony is much different from the expert testimony in In re Alexander L. (2007) 149 Cal.App.4th 605, upon which Thompson relies. In In re Alexander L., a sheriff's deputy opined that graffiti sprayed by the defendant benefitted his gang because it might intimidate rival gangs. "When asked about the primary activities of the gang, he replied: 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.' No further questions were asked about the gang's primary activities on direct or redirect examination. [¶] [The] entire testimony on this point is quoted above—he 'kn[e]w' that the gang had been involved in certain crimes." (Id. at p. 611.) Without any foundation for his knowledge, the appellate court held the testimony by the gang expert failed to provide substantial evidence that the gang engaged in one of the enumerated crimes as its primary activity. (Id. at p. 614.)
Here, on the other hand, there is ample foundation for Officer Tripp's testimony. Tripp established that he had been a peace officer for 24 years, 10 of them with the gang intelligence unit in Inglewood. In connection with the gang unit, he received special training and attended annual conferences to discuss gangs. Tripp further testified he was familiar with the Inglewood Family Bloods because he had previously investigated crimes committed by its members. We disagree with Thompson's argument that Tripp's experience with the Inglewood Family Bloods was insufficient because he only focused on their criminal activities and had no familiarity with their noncriminal activities. Tripp testified that the gang was a criminal organization; that implies the Inglewood Family Bloods are not a civic-minded organization intent on noncriminal activities. Tripp's testimony was sufficient to support a finding that the primary activities of the Inglewood Family Bloods were murder, attempted murder and robberies.
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J. We concur:
RUBIN, J.
FLIER, J.