Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD209861, Jeffrey F. Fraser, Judge.
HALLER, J.
Jamal Davis appeals from a judgment convicting him of conspiracy to commit murder. He argues (1) there is insufficient evidence to support the jury's verdict, (2) the trial court erred in refusing to instruct on voluntary manslaughter, and (3) his sentence of 25 years to life constitutes cruel and unusual punishment. We reject his contentions and affirm the judgment.
Overview
This case arises from the gang-related shooting of two victims, Ricky Wyatt (who died) and Philemon Winston (who survived), and defendant's subsequent conduct of walking in a neighborhood "hunting" for other victims to shoot on behalf of his gang. Defendant is a member of the West Coast Crips gang. The prosecution's theory was that the shootings and subsequent hunting for other victims were committed by West Coast Crips gang members in retaliation for an earlier shooting of a West Coast Crips gang member by a rival Lincoln Park gang member.
The witnesses to the Wyatt/Winston shooting described three assailants, and the prosecution alleged that defendant was one of the three. Testifying on his own behalf, defendant did not dispute that he was present during the Wyatt/Winston shooting, but claimed that he did not know his two companions (West Coast Crips gang members Donald Bandy and Greg Wanton) were planning to shoot someone. The jury acquitted defendant of the allegations based on the Wyatt/Winston shooting.
With respect to a conspiracy to commit murder allegation based on the conduct after the Wyatt/Winston shooting, the prosecution's theory was that this offense was committed by defendant, defendant's twin brother (Jamel Davis), and another gang member (Rashad Ware). Defendant did not dispute that he was present, but claimed he had no intention of actually shooting someone but was merely pretending to engage in the "hunting" activity to avoid disciplinary action against him by his gang. The jury convicted defendant of this conspiracy count.
FACTUAL AND PROCEDURAL BACKGROUND
On October 12, 2007 (10 days before the shooting of Wyatt and Winston), West Coast Crips gang member Leroy Henderson was killed in a shooting believed to have been committed by a Lincoln Park gang member. Defendant and his brother were close to Henderson; he was like an uncle to them. A wake for Henderson was held on October 22, and the Wyatt/Winston shooting occurred that night.
Wyatt and Winston were shot at about 9:00 p.m. at a playground located by the John Adams apartment complex. The two victims were at the playground with Wyatt's fiancée (Donielle Holloway), Holloway's mother (Cherry Mason), and several other adults and children. Winston, Holloway, and Mason testified at trial about the shooting.
These witnesses saw three 17- to-19-year-old males approach the playground where the adults were watching the children play. Two of the males were wearing dark "hoodies" with the hoods up, and one of the males was wearing a white t-shirt. The males were whispering to each other and looking at Wyatt. Winston thought the three males did not "look right" and that they "were up to something." The male wearing the white t-shirt asked, " 'Where you all from?' " which meant what gang did they claim. Before they had time to answer, the males started shooting. The witnesses were not certain how many guns were involved in the shooting, but stated there were at least two.
At trial Winston testified that he thought the man in the white t-shirt pulled out a gun; however, his preliminary hearing testimony suggested that he thought the men with the hoodies were the ones shooting guns. Holloway testified that after the man with the white t-shirt spoke to them, the other two started shooting.
Wyatt was fatally shot in the head and neck, with one bullet imbedding in his spine. Winston was shot in the arm, with the bullet shattering a bone in his arm. None of the victims or their companions had any gang involvement. However, the John Adams apartment complex where the shooting occurred was an area where Lincoln Park gang members congregated.
The night of the Wyatt/Winston shooting, the police patrolled the area looking for suspects. At about 1:00 a.m. they saw three males walking on Willie James Jones Avenue and then in an alley by Imperial Avenue, an area claimed by the Lincoln Park gang. When the males saw the police following them, they began running away. The police caught two of the males, Ware and defendant's twin brother (Jamel). Jamel (like defendant) is a West Coast Crips gang member, and Ware is a member of an ally of the West Coast Crips (the Neighborhood Crips). The police found several items discarded in the areas where the three males had been running, including a dark-colored sweatshirt and two loaded handguns (a.45 caliber semiautomatic and a.22 caliber revolver) that were determined to be the guns used in the Wyatt/Winston shooting. The police also found a backpack containing an unloaded shortened shotgun, five shotgun rounds, and a.22 caliber bullet. The police found DNA matching the DNA of defendant or his brother on the.45 and.22 handguns.
The police conducted several lineups seeking to obtain identification evidence from the witnesses of the Wyatt/Winston shooting, with varying results. At trial, Winston and Holloway testified that defendant looked similar to one of the assailants.
At a curbside lineup with Ware, Jamel, and a third individual apprehended during the police pursuit in the alley, Holloway identified Ware and Jamel as perhaps being among the assailants, but she was not sure. In photographic lineups, she identified defendant, Jamel, and Wanton as possibly being the males wearing the hoodies. At the preliminary hearing, she selected Ware and Jamel (but not defendant) as among the assailants.
The police determined that defendant was the third person who had fled in the alley the night of the shooting, and they arrested him the next day at Henderson's funeral. Thereafter, defendant gave his version of the events in a recorded statement to the police and in his trial testimony. Defendant admitted that he was present during the Wyatt/Winston shooting. He stated that he was the individual wearing the white t-shirt, and that he walked up to the playground with West Coast Crips gang members Bandy and Wanton. Defendant's brother stayed in the car with two other individuals about one block away. Defendant knew that Bandy and Wanton had guns; however, defendant did not have a gun and did not know Bandy and Wanton were planning to shoot anyone.
Defendant told the police that he did not hear anyone ask the victims where they were from.
Defendant explained that the events unfolded as follows. On October 11 he, Jamel, Bandy, and several others beat up Lincoln Park gang member, Antonio Davis (Antonio). That same night Antonio shot and killed Henderson. At Henderson's wake on October 22, older West Coast Crips gang members reprimanded defendant and his brother for beating up Antonio and causing Henderson's death, and the older members told defendant and his brother they had to retaliate. Defendant knew that unless he retaliated or made his gang think he had retaliated, he could not go into certain areas of West Coast Crips territory without being disciplined (i.e., beaten or killed).
Antonio worked with the Crips gang in drug transactions and, unbeknownst to defendant, the Crips gang did not want him to be attacked.
After the wake, defendant and several others (including Jamel, Bandy, and Wanton) were at a park. Defendant provided somewhat different descriptions of the discussions at the park in his recorded statement to the police as compared to his trial testimony. In his recorded statement, he stated that people at the park started talking about having their guns and going to "do this" that night; Wanton said they should go to the John Adams apartments because he knew some people there who were "slipping"; and defendant and his brother were going to go home but Wanton said they should "roll" with them because they were all "homies." Defendant accompanied Wanton and the others because they expected him to, given that they were doing something for his uncle and because he was playing the "tough guy." When they arrived at the area, he thought they were going to go inside the apartment complex, but then he heard a gunshot in the playground area.
A prosecution expert testified that "slippin[g]" meant having your guard down.
At trial, defendant testified that while at the park they were drinking alcohol and talking about the older gang members' attitude towards them, but they did not formulate a plan to retaliate against Lincoln Park and there was no discussion about doing a shooting at the John Adams apartments. When they were at the park, Wanton offered to take defendant and others to Wanton's grandmother's house, but stated he first had to make a stop, which defendant assumed was for purposes of Wanton's drug dealing activities. When they arrived at the apartments, Bandy and Wanton did not have their guns out, and defendant thought they were going to the apartments for Wanton's drug dealing activity. As they were walking, Wanton complained about a person who was harassing him for selling drugs there. Wanton stated the person might be over by the playground, and defendant walked to the playground because he knew the person and thought he might be able to stop a confrontation. When defendant heard gunshots he dropped to the ground in surprise, thinking that maybe he was being shot at. He then joined the others and ran to the car.
In both his recorded statement and trial testimony, defendant acknowledged that he knew Wanton and Bandy had guns and that something could happen, but stated he did not know what was going to happen and he did not have any intention of doing anything. Defendant stated he did not want Bandy or Wanton to shoot anyone at the John Adams apartments.
After the shooting, Wanton drove defendant and the others to Wanton's grandmother's home. They talked about having to hide the guns, and defendant and his brother offered to take the guns. Defendant told the police he offered to take the gun because he did not feel safe, explaining it was "getting really hot around the streets" and he did not want to be shot. At trial, defendant testified that Wanton asked him if they wanted to do a shooting, and defendant decided to pretend that he was going to do this because of the pressure from his gang to retaliate. Accordingly, defendant took the.45 and his brother took the.22, and they stated they were going to go on a "mission" for the gang.
Wanton dropped off defendant and his brother near a friend's home, but the friend did not answer his phone, so they began to walk to the Harbor View Apartments where they knew a lot of people. They met up with Ware, and told him they were going to "do a mission." Defendant testified that he hoped Ware would tell the older Crips gang members that he and his brother were on their way to do a shooting. They went with Ware to the Harbor View apartments to get Ware's backpack containing his shotgun. The trio continued walking, looking for "any type of thuggish looking person" to shoot. Defendant told the police and testified at trial that they saw people on the street who looked like gang members who they could have shot, but they did not approach anyone. He claimed he had no intention of actually shooting anyone.
A prosecution expert testified that the Harbor View apartments is a headquarters for the West Coast Crips gang. The complex is located about seven blocks from Willie James Jones Avenue, which is in Lincoln Park gang territory. The expert explained that these areas claimed by the West Coast Crips and Lincoln Park gangs are adjacent to each other.
At trial, defendant testified that Ware did not agree to go on the mission with them. Defendant testified that Ware told them he had something to show them, and when they went to the Harbor View apartments, Ware showed them his shotgun and asked them to help him steal a car.
A prosecution gang expert testified that gang members are expected to " 'put in work, ' " including shootings and retaliation for killings of gang members by a rival gang. The expert opined that the Wyatt/Winston shooting was gang related, based on facts showing a gang challenge before the shooting (i.e., asking the victims where they were from), the shooting was in an area frequented by the Lincoln Park gang, and the shooting occurred after a wake for a West Coast Crips gang member. Further, prosecution gang experts opined that if West Coast Crips or allied gang members were in rival Lincoln Park territory at 1:00 a.m. with guns and after the recent commission of other murders between the gangs, this meant they were on a mission hunting for a Lincoln Park gang member to shoot and kill.
Jury Verdict and Sentence
The jury found defendant not guilty of the murder of Wyatt (count 1), the attempted murder of Winston (count 2), and conspiracy to commit murder based on his conduct at the John Adams apartments (count 3). The jury found him guilty of conspiracy to commit murder (count 4), with a gang enhancement, based on his conduct in the vicinity of Willie James Jones Avenue and Imperial Avenue. Defendant received a sentence of 25 years to life for the count 4 conspiracy conviction.
DISCUSSION
I. Substantial Evidence of Conspiracy to Commit Murder
Defendant argues there is insufficient evidence to support the jury's verdict that he committed conspiracy to commit murder based on his conduct in the area of Willie James Jones and Imperial Avenues.
In reviewing a challenge to the sufficiency of the evidence, we examine the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.) It is the exclusive province of the jury to determine credibility and to resolve evidentiary conflicts and inconsistencies in testimony. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
A criminal conspiracy exists when there is an unlawful agreement between two or more people to commit a crime, and an overt act in furtherance of the agreement. (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.) The prosecution must show the defendant intended to agree and intended to commit the elements of the offense. (Ibid.) However, "it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." (Ibid.)
Defendant argues there was no evidence that he had the specific intent to agree with a coconspirator to murder a rival gang member as he was walking in the area of Willie James Jones and Imperial Avenues. To the contrary, the jury could reasonably infer that he specifically intended to agree to shoot a Lincoln Park gang member in retaliation for the killing of Henderson. The evidence showed that a West Coast Crips gang member (Henderson) had been shot in what was believed to be a retaliatory shooting by a Lincoln Park gang member. Several days later West Coast Crips gang members (accompanied by defendant) shot persons in an area frequented by Lincoln Park gang members (the John Adams apartments). That same night defendant and two other West Coast Crips gang members or allies were found walking in an area claimed by Lincoln Park with the same guns used during the previous shooting committed by the Crips. Defendant admitted that he was expected to retaliate for the Henderson killing or face discipline from his gang, and admitted that he told his fellow gang members that he was going on a shooting mission for his gang. Although defendant claimed he was merely pretending to agree to this mission, the jury was not required to credit this claim. The jury could reasonably conclude that defendant intended to agree with others to go on the shooting mission in order to comply with his gang's retaliation order and protect himself from a gang-imposed disciplinary action.
To support his challenge to the sufficiency of the evidence, defendant points out that he was acquitted of the offenses committed at the John Adams apartment complex; there was no evidence that anyone was approached by him or his companions; and no evidence of an intent to commit a crime against a specific individual. These factors do not defeat the jury's finding of guilt on count 4. The fact that the jury found reasonable doubt as to defendant's guilt of the Wyatt/Winston shooting does not mean that the jury was required to credit his claim of innocent intent concerning the shooting mission. A jury "may believe and accept as true only part of a witness's testimony and disregard the rest." (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) The jury could reasonably reject defendant's assertion that he was feigning the shooting mission. The fact that he did not actually approach or target a specific person did not require the jury to conclude that he did not plan to commit a shooting with the intent to kill. Defendant stated they were looking for a gang-type person to shoot, and the jury could infer that if the police had not interrupted them in the alley they would have carried out their mission to shoot and kill someone in Lincoln Park territory.
Defendant also asserts that the mere fact he was walking in rival gang territory does not support the conspiracy finding because the evidence showed that West Coast Crips gang members often frequented territory claimed by the Lincoln Park gang without any crimes being committed. The evidence supporting the jury's finding is not based merely on his conduct of walking in Lincoln Park territory. Rather, it is supported by the totality of the circumstances, including the ongoing feud and shootings occurring between the Lincoln Park and West Coast Crips gangs, defendant's admissions that there was a retaliation order from his gang and that he agreed to go on a shooting mission, the late night hour, and his possession of a gun while walking in Lincoln Park territory.
Finally, defendant argues that at most the evidence can support a finding that he was guilty of conspiracy to commit assault with a deadly weapon. The contention fails. The rivalry between the two gangs did not involve merely assaults, but involved murders, including the murders of Henderson and Wyatt. The jury could reasonably infer that defendant intended to retaliate with the same type of conduct as involved in these other incidents between the two gangs.
There was substantial evidence to support the jury's verdict of conspiracy to commit murder.
II. Refusal to Instruct on Lesser Included Offense of Voluntary Manslaughter
Defendant argues the trial court erred in rejecting his request to instruct on voluntary manslaughter based on heat of passion as a lesser included offense of count 1 murder (the shooting of Wyatt). Although defendant was acquitted of the murder of Wyatt, he asserts the instructional error caused prejudice to the jury's guilty verdict on count 4 conspiracy to commit murder based on his subsequent conduct of hunting for another victim. Defendant points to evidence showing that he was extremely emotional on the day of the shooting; he was in turmoil because his gang held him responsible for Henderson's death; and he described the shooting as spontaneous and unexpected. He argues that if the jury had been instructed on a heat of passion theory for the murder, it might have inferred that he did not have the intent to kill while subsequently walking in the vicinity of Willie James Jones Avenue.
A trial court must instruct on a lesser included offense when there is evidence from which the jury could conclude that the lesser, but not the greater, offense was committed. (People v. Manriquez (2005)37 Cal.4th 547, 584.) However, there is no duty to instruct " 'when there is no evidence the offense was less than that charged.' " (People v. Moye (2009)47 Cal.4th 537, 548.) When evaluating whether a lesser included offense instruction should have been given, we construe the evidence in the manner most favorable to the defendant and apply an independent standard of review. (People v. Manriquez, supra, 37 Cal.4th at p. 584; see People v. Stewart (2000) 77 Cal.App.4th 785, 796.)
The lesser offense of voluntary manslaughter based on heat of passion requires a showing of provocation caused by the victim or by conduct reasonably believed to have been engaged in by the victim. (People v. Manriquez, supra, 37 Cal.4th at p. 583.) Here, there was no evidence that the victim, or those associated with the victim, had engaged in provocative conduct. The victims were at the playground with family and friends talking and watching the children play. Although the victims were in an area frequented by gang members, they were not gang members and there was no evidence that defendant could reasonably conclude they were gang members. Even assuming arguendo that a jury could find that defendant was operating under a heat of passion and that the instructions on count 1 might have affected the verdict on count 4, absent evidence of provocation associated with the victim, the trial court properly refused to instruct on voluntary manslaughter.
III. Cruel and/or Unusual Punishment
Defendant argues his sentence of 25 years to life is cruel and/or unusual punishment. A sentence violates the federal Constitution if it is grossly disproportionate to the severity of the crime, and it violates the California Constitution if it shocks the conscience and offends fundamental notions of human dignity. (People v. Alvarado (2001) 87 Cal.App.4th 178, 199.) Because it is the Legislature's role to determine the appropriate penalty for criminal offenses, a defendant must overcome a considerable burden to convince a court that the punishment is disproportionate to the defendant's culpability. (People v. Crooks (1997) 55 Cal.App.4th 797, 807.) When reviewing a challenge to the constitutionality of a punishment, we view the facts in the manner most favorable to the judgment and then resolve the issue as a matter of law. (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
To support his constitutional challenge, defendant argues there was no identified victim and no specific plan to kill anyone; no one was injured by his conduct; and he was merely a 19-year-old exercising "classic, youthful bad judgment." Contrary to defendant's description of the record, this case shows more than mere bad judgment and reflects defendant's awareness that his conduct created a high risk of death.
Although the jury acquitted defendant of the murder and attempted murder charges, the trial court could properly consider the circumstances of these allegations for sentencing purposes. (See People v. Towne (2008) 44 Cal.4th 63, 71, 85-89 ["because facts considered by the court in selecting the appropriate sentence within the available sentencing range need not be proved beyond a reasonable doubt, a trial court, in this setting, is not prohibited from considering evidence underlying charges of which defendant has been acquitted"].) Even relying solely on defendant's version of the facts, defendant admitted he knew Wanton and Bandy had guns when he accompanied them to the John Adams apartments and knew that there had been orders to retaliate for the Henderson killing. Further, defendant admitted that he and his brother agreed to take the guns used in the Wyatt/Winston shooting and go on a mission to commit another shooting. By finding defendant guilty of count 4 conspiracy to commit murder, the jury rejected his claim that he did not intend to actually shoot someone when he went on this mission. The fact that he did not target a particular victim does not diminish the threat to human life created by his conduct; indeed, Wyatt and Winston were not targeted beforehand and they are no less dead or injured. If the police had not thwarted defendant while he was walking in the alley with the gun, there could have been other shooting victims.
Thus, the record shows that defendant was aware of the risk to human life when he accompanied his fellow gang members to the apartment complex. After he witnessed the shootings at this location, defendant continued with his gang-related activity by arming himself and going on a search for additional victims. This shows defendant consciously engaged in conduct that posed a serious threat to human life, a circumstance supporting a lengthy punishment.
Defendant also cites the sentences received by his brother and Ware, which were apparently anticipated to be 16 or 21 years for Jamel based on a guilty plea to voluntary manslaughter with a gang enhancement, and eight years for Ware based on a guilty plea to conspiracy to commit assault with a deadly weapon with a gang enhancement. Defendant made the same argument to the trial court, and, in opposition, the prosecutor asserted that Jamel's and Ware's cases were different because they pleaded guilty, Jamel stayed in the car during the shooting, and Ware was not present during the shooting. Considering the evidence of the heightened level of defendant's involvement in the gang violence, as well as the absence of the mitigating circumstance of an early acknowledgement of wrongdoing (Cal. Rules of Court, rules 4.423(b)(3)), a comparison of the sentences received by defendant's accomplices does not establish a grossly disproportionate or shocking punishment.
Defendant has not shown his sentence was unconstitutionally cruel and/or unusual punishment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J.NARES, J.
Winston was unable to make an identification during one photographic lineup, explaining that he was not 100 percent sure. In another photographic lineup, he identified Wanton as the assailant in the white t-shirt, whereas in a third photographic lineup he identified Jamel as the assailant in the white t-shirt.