Opinion
E053241
05-17-2012
THE PEOPLE, Plaintiff and Respondent, v. MORGAN JERREAL McCALEB, Defendant and Appellant.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FVA701681)
OPINION
APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Affirmed.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Morgan Jerreal McCaleb, a member of the Hustla Squad criminal street gang, shot two rival gang members, killing one, at a local shopping mall. A jury convicted defendant of one count of murder and one count of attempted murder, and found both crimes were committed for the benefit of a street gang. The court sentenced defendant to a collective prison sentence of 90 years to life.
On appeal, defendant argues there was instructional error on the issues of defense of others, imperfect self-defense, and antecedent threats by the victims, all resulting in ineffective assistance of counsel. We reject defendant's contentions and affirm the judgment.
II
FACTUAL BACKGROUND
A. Prosecution's Evidence
Defendant was a member of the Hustla Squad gang and used the names, "Peanut," "Peanutty," "P Dog," and "P." The Hustla Squad, descended from Los Angeles gangs which had relocated to Rialto, had 100 documented members. Its primary activities included robbery, burglary, and shootings.
The Hustla Squad is a rival gang to the Ramona Blocc criminal street gang, which is a smaller gang with about 20 members. In October 2007, there were nightly incidents of fighting and shooting between the two gangs.
On October 7, 2007, defendant with Jerome McWillams, another Hustla Squad gang member, visited the Rio Rancho Discount Mall to buy a SIM card for defendant's cell phone. Ramona Blocc claimed the mall as its territory. Defendant and McWillams were eventually joined by five other members of Hustla Squad.
The events at the mall were recorded from different angles by 16 security cameras. The recordings show defendant, McWilliams, and the others going in and out of the mall, and milling around, looking at merchandise and shopping for shoes. Defendant spotted some Ramona Blocc gang members in the parking lot. At one point, defendant and some of his fellow gang members congregated near a cellular phone kiosk.
This court has reviewed all the compact disc exhibits, including the recording by camera nine, which show an altercation lasting about 20 seconds, in which Terry Green and Terrell Wilds, two Ramona Blocc gang members, confronted the Hustla Squad members. After Wilds and McWilliams exchanged profanities, Wilds threw a punch at McWilliams and McWilliams punched back. Defendant pulled out a gun and shot Green once in the chest. Defendant then shot Wilds twice as he fled the scene. Defendant tucked the gun in his waistband and ran out of the mall through the east exit. Defendant and McWilliams drove away together. A few days later defendant was apprehended in Tehachapi.
Green died from the gunshot wound and was discovered at the mall's west entrance. The police found Wilds a short distance away, near the headquarters of the Ramona Blocc gang, where he had collapsed and was screaming in pain. The bullets had passed through Wilds's right thigh and left elbow.
A gang expert testified that shooting a rival gang member enhances a gang's stature.
B. Defendant's Testimony
Defendant offered a different version of events. Defendant claimed he did not understand the meaning of "Ramona Blocc" and he was not a member of Hustla Squad, although he associates with some its members.
While outside the mall with his cousin, James Garrett, defendant observed a hostile confrontation between two of his friends and three females. The females made a challenging comment to McWilliams or another person. Defendant responded, "What you all trippin' for? It's not even that serious." One girl gestured at six or seven Black males to join her. Defendant told the clerk at the cell phone kiosk that he had to leave because he was afraid of trouble.
Defendant had started to leave with his cousin when he saw Wilds, in a jacket, and Green, in a white tank top, approaching him. One of them said, "What that Ramona Blocc like?" Someone responded, "I don't know. You got to show me what it's like." Wilds took a swing at McWilliams. Green spit at and advanced on defendant, telling Wilds, "just shoot . . . ." Defendant did not see Wilds or Green pull out a gun. Defendant panicked, reached for his gun and fired because he was afraid he might be shot. He shot Wilds as he was running away. Defendant was not aware of shooting the two victims although he assumed a "Weaver" shooting stance. He admitted he shot two unarmed victims.
When defendant was apprehended, he ran from the police because he did not have a driver's license. In his police interview, he did not explain that he shot the victims because he was afraid. He claimed he carried a gun for protection because he had been shot at in 2004 and 2006 in Los Angeles. He had convictions for felony firearm possession in 2006 and misdemeanor petty theft in 2007.
Defendant denied having written a letter that was recovered from a book in his cell. The letter was addressed to "Kristal." Defendant was visited in custody by a person named Kristal and he had her name written in his phonebook in the same handwriting as the letter. The letter, written in non-standard English and using gang-style jargon, made reference to "my body count," "my gunnaz," and killing "in broad day."
Defendant's cellmate testified that another occupant of the cell had written letters and left them in defendant's books.
III
DISCUSSION
Defendant argues he received ineffective assistance of counsel based on instructional error related to his self-defense claims. The People argue the evidence did not support giving defendant's proposed instructions and any possible error was harmless. The relevant instructions given by the court included CALCRIM No. 505 [justifiable homicide in self-defense] and No. 571 [voluntary manslaughter based on imperfect self-defense].
A. Standard of Review
When supported by substantial evidence, a trial court must give instructions on defenses and lesser offenses: "'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' (People v. Blair (2005) 36 Cal.4th 686, 744; see People v. Breverman (1998) 19 Cal.4th 142, 154 [sua sponte duty]; People v. Flannel (1979) 25 Cal.3d 668, 684 [duty upon request].) 'That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.' (People v. Blair, supra, 36 Cal.4th at p. 745; People v. Memro (1995) 11 Cal.4th 786, 871.) Although defendant's jury was instructed on second degree murder with implied malice, the trial court had a duty to instruct on 'all theories of a lesser included offense which find substantial support in the evidence.' (People v. Breverman, supra, 19 Cal.4th at p. 162 [defendant was entitled to instruction on voluntary manslaughter committed as a result of heat of passion, in addition to instruction on voluntary manslaughter arising from an honest but unreasonable belief in the need for self-defense].)" (People v. Rogers (2006) 39 Cal.4th 826, 866-867; People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) We independently review a trial court's alleged failure to give proper instructions. (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806; Rogers, at pp. 866-867; Breverman, at pp. 162-163.)
B. Defense of Another
The court gave the jury an instruction based on CALCRIM No. 505 [Justifiable Homicide: Self-Defense or Defense of Another]. Defendant argues the instruction was incomplete because it did not include an explanation that the jury could find defendant acted in defense of McWilliams or his other companions. In a similar vein, defendant argues the jury should have been instructed based on CALJIC No. 5.10 that homicide is justifiable when resisting a horrible and atrocious crime against a third person. (People v. Bush (1978) 84 Cal.App.3d 294, 304-305.)
Defendant's argument is predicated entirely on elaborate speculations about why defendant could or should have been concerned about the safety of McWilliams and his other associates because the Ramona Blocc gang was known for violence and had a reputation for committing shootings and murders. But the proposed instructions were unnecessary because there was simply no evidence defendant believed he acted to defend McWilliams or another person from imminent harm. Instead, defendant testified only that he was afraid for his own safety and panicked. He said nothing at all about defending anyone else. No evidence in the record supplied substantial evidence that defendant acted in defense of others, contradicting defendant's express testimony that he acted solely out of fear for his own safety.
Furthermore, the jury was instructed that defendant had committed murder, acting with malice aforethought. (CALCRIM No. 520.) The jury must necessarily have rejected the theory that defendant acted lawfully in defense of others when he fired on the victims. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1363; People v. Jones (1991) 234 Cal.App.3d 1303, 1314-1315, disapproved on other grounds in People v. Anderson (2011) 51 Cal.4th 989, 998, fn. 3; People v. Wells (2012) 204 Cal.App.4th 743, 751..)
C. Antecedent Threats
Defendant advances a similar argument that the court should have included language from CALCRIM Nos. 505 or 571 about defendant's knowledge of past threats made by the victims. Even if this claim was not forfeited by defense counsel's failure to request it, a pinpoint instruction was not supported by substantial evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558-559; People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.) There was no evidence that defendant's attacks on the victims were prompted by his knowledge of any past threats made by the victims. Defendant did not offer any testimony that he knew about past threats made by Wilds and Green or generally by the Ramona Blocc gang. To the contrary, defendant protested he knew nothing about the gang or its members. Any error in not giving a pinpoint instruction was harmless because it was not "'reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.'" (People v. Wharton (1991) 53 Cal.3d 522, 571.)
D. Duty to Retreat
Based on CALCRIM No. 505, the trial court instructed the jury that defendant was not required to retreat if he acted in self-defense. Defendant argues the trial court should have also instructed that defendant was not required to retreat if he acted in imperfect self-defense or in the defense of others.
We have already concluded an instruction about the defense of others was not warranted based on substantial evidence. For that reason, no additional instruction was needed regarding retreat in the defense of others.
Neither party is able to cite conclusive authority on the issue of whether a defendant is not required to retreat if he acts in imperfect self-defense. Nevertheless, there was no evidence whatsoever about defendant retreating or not retreating before he fired on the victims. In the few seconds it took for the events to unfold, defendant reacted instantly to the threat he perceived from the victims. The question was whether defendant acted reasonably under the circumstances, not whether he could have retreated.
Even if there was error, it was harmless under either the Watson or Chapman tests. Defendant's claims of acting in self-defense are completely implausible. The jury convicted defendant of first degree murder, an outcome inconsistent with any such defense. Instead, the evidence supported the reasonable inference that defendant and six other Hustla Squad gang members visited the mall, intending to provoke a confrontation. Defendant was on the lookout for the Ramona Blocc members. Defendant shot Green moments after Wilds engaged McWilliams and defendant fired on Wilds as he tried to escape. No evidence supported defendant's belated claims that he fired because he was afraid for himself or others. No other verdict was reasonable or likely. For that reason, any claims of ineffective assistance of counsel also fail.
IV
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P.J.
RICHLI
J.
People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.