Opinion
C087135
03-11-2020
THE PEOPLE, Plaintiff and Respondent, v. CALVIN ANTHONY BARRON, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE009607)
Defendant Calvin Anthony Barron, Jr., challenges his life sentences on three counts of attempted murder, arguing the prosecution failed to affirmatively plead the premeditation and deliberation allegation in the accusatory pleading, as required by law. Defendant further argues the trial court abused its discretion in denying his motion to strike the firearm and gang enhancements. We accept the People's concession of error on the life sentences and agree the matter must be remanded for a full resentencing hearing. We otherwise will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The shooting
At 11:00 a.m. on May 12, 2016, high school students Z.C., J.J., and M.H. (collectively, the victims) were walking to a park during a school break. Z.C. saw someone driving past in a tan Lexus. The driver turned the car around, drove toward the victims, and exhibited a hand sign for the Hell's Gang at them. The Hell's Gang is a subset of the Oak Park Bloods. Z.C. testified during the August and September 2017 trial that he lived in Meadowview; a gang detective testified that the Oak Park Bloods were rivals of gangs located near Meadowview. The victims continued to the park, smoked marijuana, and returned to school.
Between 12:00 and 1:00 p.m., the victims returned to the park and again saw the Lexus. Z.C. saw a rear passenger roll down a window and roll it back up. Afraid there would be a shooting or a fight, the victims hurried back toward the school. While fleeing, Z.C. was shot in the arm and the abdomen; he required surgery for his injuries. J.J. was standing next to Z.C. when the shooting started, but he was not shot. M.H. ran to a bus stop and later found a bullet hole within feet of where he was standing. A bullet also hit the radiator of a black car occupied by a women and her children that was driving in the area at the time of the shooting.
2. Police evidence
Investigating police recovered surveillance video showing the Lexus at the time of the shooting. There was only one other vehicle at the scene, a black car. The Lexus was registered to defendant, and police found three nine-millimeter shell casings at the scene and a similar shell casing inside the car. Police also found fingerprints from Ladarius Murphy, a validated member of the Oak Park Bloods, on the roof of the Lexus. Police arrested defendant the next morning while he was driving the Lexus.
The police also recovered text messages from defendant's phone. The morning of the shooting, a text was sent from defendant's phone to a friend saying he "need[ed] more bullets" for his nine-millimeter pistol. The friend responded she would get some more. At trial, defendant testified that his friend Murphy was using his phone and sent these texts.
Later the same morning, defendant exchanged text messages with his friend G.G., who attended the same school as the victims. She was at school and said via text message that there were "suckas up here." At trial, a police gang detective testified that "suckas" refers to disrespected rival gang members. Defendant texted back asking what time she got out of school and inquiring when they were "gonna get them." Defendant offered to pick up G.G., and video showed defendant's car pulling up to the school at 12:25 p.m. Within a few minutes, defendant's car headed toward the park where Z.C., J.J., and M.H. went during lunchtime. At 1:50 p.m., defendant texted he could not pick up a friend because his car was "hot" and "they" were "on [him]."
Police also found defendant's eight Facebook pages. One of those accounts was under the name Calvin "Treyz," a common moniker for Oak Park Bloods members. Defendant had at least 75 Facebook friends who showed allegiance to or were validated members of the Oak Park Bloods. Defendant posted photos of himself exhibiting Hell's Gang and Bloods hand signs. There were also photos on his phone of defendant displaying Oak Park Bloods hand signs, and of Mozzy, a rapper who is a "mascot" for the Oak Park Bloods.
3. Defendant's testimony at trial
Defendant testified that he had spent the night before the shooting with G.G. at her friend Raven's home. Murphy and defendant's cousin (also a member of the Oak Park Bloods) also were there. Defendant went to school that morning (a different school than the victims attended).
After defendant got out of school at 11:45 a.m., he drove toward the park where the victims had been and passed a group of people walking in the street. Defendant denied displaying gang signs at the group as he drove by, testifying he was "dancing" to music by rapper, Mozzy, and waving his hands back and forth like he had seen Mozzy do in music videos. Defendant then picked up G.G. at school and drove her to Raven's home. Murphy was there, and defendant agreed to give him and G.G. a ride. Murphy sat in the front passenger seat and G.G. sat in the rear, and both told defendant where to go.
As they neared the victims' school, Murphy announced he was "going to bust on these [guys]." Defendant watched Murphy pull a gun from his waist and realized Murphy intended to shoot them. Defendant was unaware of the gun until then. Defendant told him not to shoot anyone and reminded him that guns were not allowed in the car. Murphy previously had a gun in defendant's car, and defendant wanted to stay out of trouble.
Defendant stopped the car and saw three kids crossing the street. Murphy climbed out the car window. Defendant tried to tell Murphy to get back inside, but gunshots had already been fired. Defendant slowly drove off, and Murphy climbed back in the car. Defendant checked if anyone had been shot, but no one was around. G.G. and Murphy yelled at defendant to drive off, and he complied. Defendant eventually pulled over and asked Murphy why he had shot the victims. Defendant feared consequences from the shooting, especially since there were surveillance cameras in the area.
Defendant drove back to Raven's home and parked the car in the garage. Murphy threatened defendant against identifying him as someone involved in the shooting. Defendant felt betrayed because Murphy was "supposed to be [his] friend." Defendant left to visit his sister-in-law and mother, and sell marijuana, but eventually returned to Raven's to spend the night with G.G.
Defendant was arrested the next morning while driving to school. Defendant testified he lied to the police about the details of the shooting, including falsely identifying a man named D.C. as the shooter; D.C. was arrested and held in jail for almost 13 months. He wanted to "throw [the police] off" and he feared Murphy would hurt him or his family.
Defendant testified that Murphy and G.G. had "set [him] up." He never planned or wanted to be the driver in the car while Murphy shot someone, and he felt "really bad" that people were hurt.
Defendant denied being a gang member or trying to portray himself as one. Defendant had lived "a lot" of his life in Oak Park and other communities with "gang problems." He testified he knew some of his friends on social media were gang members. Although there were pictures of him on social media where he seemed to be displaying gang signs, he claimed he was just copying Mozzy. He also had tattoos, but stated they were not gang related.
4. Character witnesses
At trial, a former recreational aide at a local community center testified that he had known defendant for 15 years. He described defendant as a "quiet type of person" who never had an "attitude" or "behavior" against other children. A family friend who had known defendant for 10 years described defendant as a "nonviolent" "square," with an "even tempered" and "quiet character." A director of a local Boys and Girls Club testified he had known defendant for five years and had "never" witnessed defendant exhibit any violent behavior. Defendant's mother testified defendant was a nonviolent and nonaggressive person.
5. Verdict
In September 2017, the jury convicted defendant of three counts of attempted murder. (Pen. Code, §§ 667, 187, subd. (a).) The jury also found gang enhancements to be true with respect to the three counts. (§ 186.22, subd. (b)(1).) With respect to the attempted murder charge as to Z.C., the jury found true that defendant intentionally and personally discharged and used a firearm and proximately caused great bodily injury. (§ 12022.53, subds. (b)-(e).) With respect to the attempted murder charges as to J.J. and M.H., the jury also found the firearm use enhancements to be true. (§ 12022.53, subds. (b)-(c) & (e).)
Undesignated statutory references are to the Penal Code.
Prior to the May 2018 sentencing hearing, defendant filed a motion requesting the trial court strike the firearm and gang enhancements. (§§ 186.22, subd. (g), 12022.53, subd. (h), 1385, subd. (a).) Defendant argued he never personally hurt anyone, and there was only "associational" evidence that he was affiliated with a gang. Defendant noted he had no criminal history, came from a "strong background," and had a support network that would help him once he was released from prison. Defendant further argued he was "drawn into a terrible situation" because he was young, naive, and "useful" to others.
Defendant wrote a letter to the court stating that his grandfather, who was his father figure, had passed away while defendant was in middle school. After suffering injuries that prevented him from playing sports, defendant also started "hanging around the wrong people," and smoking and selling marijuana. He failed to understand the consequences of gang life or hanging around with gang members. Defendant apologized to the victims, said his "biggest mistake in life" was choosing the "wrong" friends, and asked for a second chance.
In support of his motion, defendant submitted a report from an expert psychiatrist opining that multiple risk factors contributed to defendant's criminal behavior, including his "youthfulness and relative developmental immaturity." The expert stated that adolescence is a period of "heightened risk taking," and that adolescents generally "tend to have poorer judgment" than adults. Compared with adults, adolescents generally overvalue potential reward versus risk and are more susceptible to peer influence, less future oriented, and less self-regulating. In addition, individuals can change as they mature. The expert opined that many of these generalities about adolescents applied to defendant. The expert opined defendant posed a "moderate risk" for future violence, but noted he was "amenable to treatment" and had already demonstrated improvement.
Defendant also submitted statements from nine individuals who knew defendant, describing defendant's nonviolent character and asking for leniency. Six of defendant's family members also submitted statements, including his parents and grandmother. There also was a statement from one juror asking for leniency for defendant.
The prosecutor opposed defendant's motion to strike the enhancements, arguing defendant's crimes were "egregious." Defendant had aided and abetted the shooter, making him equally culpable under the law. Defendant's support system (i.e., his family) existed at the time of the shooting, but he still chose to "prioritize the gang relationships in his life." Defendant also had failed to take responsibility for his actions.
At the May 4, 2018 sentencing hearing, the trial court denied defendant's motion to strike the enhancements. The court began the hearing by noting that it had reviewed the probation report, the defendant's motion to strike and exhibits attached thereto, all the defense statements and character references, and the expert psychiatrist's report. The court noted that it also had read and considered the prosecution's submissions on sentencing. The court further noted it had read the materials twice. It then heard argument from defendant's trial counsel, the prosecutor, and, finally, defendant himself.
In reaching its decision, the court weighed a number of factors, including defendant's "background, character and prospects," and the interest of society in having crimes punished.
The court reasoned the nature and circumstances of defendant's crimes were "extremely violent" and "dangerous" because they occurred during the middle of the day, when people were "out and about." There also was evidence defendant had displayed gang signs during the crime and texted a friend for more bullets. In addition, the evidence of defendant's gang affiliation was "voluminous," including his social media accounts and targeting of Meadowview students.
The court described defendant as "two people": a "dutiful" son and brother, but also a "volatile" and "danger[ous]" person. Defendant had implicated an "innocent young man," who "spent time in jail for a crime he did not commit." The court noted defendant was 18 years old at the time of the crime and had no criminal record. Despite having a strong support system and positive role models, including his mother, defendant chose the "gang lifestyle." Defendant had done so due to his "immaturity" and the "fast money" from selling marijuana, and defendant's choice "speaks volumes as to [defendant's] character." Defendant had also failed to complete his education and had three "major" write-ups for disciplinary infractions in jail. The court also noted defendant "blame[d] others" and "t[ook] no responsibility for [his] crimes," despite being a "direct aider and abettor" in the shooting.
The court sentenced defendant to an aggregate state prison term of 46 years to life, consecutive to a determinate term of 40 years, as follows: three indeterminate terms of seven years to life in state prison for the three attempted murder convictions (totaling 21 years to life), 25 years to life for the firearm enhancement on the attempted murder conviction as to Z.C., and two 20-year consecutive terms for the two firearm enhancements as to the attempted murders of J.J. and M.H. (totaling 40 years).
DISCUSSION
I
Under section 664, attempted murder is punishable with a term of five, seven, or nine years, unless the accusatory pleading alleges that the attempted murder was willful, deliberate, and premeditated, and this fact is found true by the trier of fact. In such circumstances, the defendant is subject to life imprisonment. A defendant must be "accorded fair notice of the charges he face[s] and an adequate opportunity to object or to tailor his defense," including that he may be subject to a life term if a jury finds him guilty of deliberate and premeditated attempted murder. (People v. Perez (2017) 18 Cal.App.5th 598, 618.) Accordingly, a life sentence is unauthorized and must be struck if the prosecution fails to allege the fact that an attempted murder was willful, deliberate, and premeditated, and the defendant otherwise has no notice of this potential charge. (Ibid.; see also People v. Houston (2012) 54 Cal.4th 1186, 1226, 1228 [upholding life term where pleading failed to allege deliberate and premeditated attempted murder, but defendant was put on notice of the charge because the trial court announced it on the first day of trial, subsequently told defendant that the charge would be included as a special finding on the verdict form, and later instructed the jury on the charge].)
As defendant and the People each note, the prosecutor here failed to allege the attempted murder counts were committed willfully, deliberately, and with premeditation. In addition, the jury was not provided with either (1) the instruction on deliberate and premeditated attempted murder (CALCRIM No. 601) or (2) the special verdict forms with those potential findings. The jury also did not make findings about such allegations. Under these circumstances, we agree with defendant and the People that the imposition of life sentences was unauthorized and that the sentences must be stricken and the matter remanded for resentencing.
We note that "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) The trial court has jurisdiction to modify every aspect of the sentence on the counts that were affirmed. (Ibid.) " ' "This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." ' [Citations.]" (People v. Hubbard (2018) 27 Cal.App.5th 9, 13.)
II
Defendant contends the trial court abused its discretion in failing to strike the firearm and gang enhancements. Although defendant was 18 years old at the time of the shooting, he relies on Miller v. Alabama (2012) 567 U.S. 460 and argues the trial court erroneously failed to consider defendant's youth and its accompanying "distinctive attributes," including his lack of maturity, underdeveloped sense of responsibility, greater vulnerability to negative influences, and greater prospects for reform. (Id. at pp. 471-472 & fn. 5.) Defendant also notes that his liability under the firearm enhancement was "only" due to his aiding and abetting the actual shooter, even though punishment for such behavior is expressly permitted when the defendant commits the crime for the benefit of a gang. (§ 12022.53, subd. (e).) Defendant also points to his lack of criminal history or violence. Defendant further points to the uncontroverted evidence from the psychiatric expert that defendant was "not an incorrigible youth hellbent on violence," but rather someone amenable to rehabilitation.
The defendants in Miller were 14 years old when they committed murder and were subsequently sentenced to life without the possibility of parole. (Miller v. Alabama, supra, 567 U.S. at p. 465.) The issue before the Supreme Court was whether mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on "cruel and unusual punishments." (Ibid.) Here, defendant is not raising an Eighth Amendment claim.
A trial court has discretion to strike a firearm enhancement and a gang enhancement. (§§ 12022.53, subd. (h), 186.22, subd. (g) & 1385.) We review a trial court's refusal to do so for abuse of discretion. (People v. Pearson (2019) 38 Cal.App.5th 112, 116; see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 [standard of review is abuse of discretion when court declines to exercise its § 1385 discretion to dismiss].) A trial court's discretionary sentencing choice must be affirmed unless the defendant has shown it is "so irrational or arbitrary that no reasonable person could agree with it." (See People v. Carmony (2004) 33 Cal.4th 367, 376-377.) On review, we may not reweigh sentencing factors or substitute our judgment for that of the sentencing court. (Id. at p. 377.)
Contrary to defendant's arguments, the record reflects that the trial court was fully aware of its discretion to strike the firearm and gang enhancements under section 1385 in furtherance of justice and carefully weighed society's interest in having crimes punished against defendant's background, character, and prospects. The trial court noted during the hearing that it had read (and reread) the materials provided by defense counsel, including the expert psychiatrist report that explained the characteristics of adolescence and opined that defendant's youthfulness was a contributing risk factor in his criminal behavior and that he was amenable to reform. In explaining its decision, the court expressed empathy and referred to defendant's immaturity and youth as a factor in his criminality. The court also stated it had reviewed the statements in support of defendant, and the court noted defendant's strong support system. The court also considered defendant's role as an aider and abettor in the shooting, and his lack of a criminal history.
However, the court felt these factors were outweighed by the extreme violence and danger of the crime, the planning and sophistication underlying it, defendant's choice to sell marijuana and associate with gang members rather than pursue education or employment, and his failure to accept responsibility for his actions. Defendant also implicated D.C. in the shooting, causing an innocent person to be incarcerated. Defendant also had demonstrated poor behavior in jail, with three significant disciplinary infractions. The trial court concluded the hearing by reiterating how much it had struggled over defendant's section 1385 motion and indicating that it "would like to see a lesser sentence" for defendant, but on balance it could not grant the motion to strike given the factors it had outlined. This record does not show anything close to "irrational or arbitrary" decisionmaking by the trial court. We therefore conclude the trial court did not abuse its discretion and decline defendant's invitation to reweigh the sentencing factors.
DISPOSITION
The sentences on the attempted murder convictions are stricken. The matter is remanded to the trial court with directions to hold a full resentencing hearing. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
KRAUSE, J. We concur: MURRAY, Acting P. J. DUARTE, J.