Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA324436, Lance Ito, Judge.
H. Clay Jacke II, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, Acting P. J.
Derrice Lee Porter appeals from the judgment entered following his convictions of first-degree murder, attempted murder, possession of a firearm by a felon and evading police. Before this court, appellant argues that insufficient evidence supported his convictions. In the alternative, he claims that even assuming he did fire the shots the jury was bound to find that he acted in self-defense. As we shall explain none of these claims has merit, and accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting
On May 27, 2007, Nicholas Wilson, an African American known by the street nickname of “Type” rode his bicycle in the neighborhood of 49th Street and Hooper to drop off “some games” at a friend’s house. En route, as Wilson rode on 48th Street, he noticed a couple of male Hispanics on the street. One of them, Omar Barrera, was a member of the graffiti tagging crew “EBK.” Barrera indicated that he and several others, including Aaron Romero known as “Glib” of the “DOH” tagging crew, saw Wilson as he rode on 48th Street. Barrera said that as Wilson rode past them, Wilson laughed and made a hand gesture at them. Barrera indicated that Wilson was from a rival tagging crew.
Wilson admitted that he “used to do [spray painting of] graffiti.”
Barrera said that Wilson rode past them again a few minutes later and Romero, Barrera and the others chased Wilson. According to Wilson after he dropped off the games, he “turned back [the] opposite way, went back down 48th, somewhat got ambushed by several different people....” They attempted to get Wilson “off the bike, but couldn’t” because he “was going too fast. I kind of swerved to avoid a crowbar coming towards my face.” One of the men struck Wilson with a crow bar, but he managed to stay on the bicycle. While a few of the men continued to chase Wilson on foot, Romero got on a bicycle and rode after Wilson. Near 51st Street, Romero rammed Wilson, and Wilson and Romero got off the bikes and began to fight. According to Wilson, Romero pulled out a knife and attempted to slash him with it. Wilson saw the other assailants were running toward him. Wilson abandoned his bicycle and ran away. As he was running away, Wilson heard them using profanity at him and saying “DOH” and “stop being afraid.” Barrera picked up Wilson’s bicycle and road it back towards 48th Street and Hooper.
After he escaped, Wilson walked on Hooper Avenue. At 53rd Street a large, blue Chevy truck approached him from Central going towards Hooper Avenue. Appellant, an African American, was driving the truck and three or four other men young African American males also rode in the truck. Wilson knew appellant by the name “Kojak” and had seen him around the neighborhood but never had “direct contact” with him. Wilson told appellant that he had just been “jumped” and had his bicycle taken. Appellant said, “Let’s go get the bike back, ” and Wilson got in the back of the truck with the other men.
Appellant drove the truck on Hooper and stopped at 48th Street. According to Wilson, when the truck stopped there, “everyone got out the truck and started fighting” with “all the guys from DOH, ” including Romero and Barerra.
Wilson saw Romero jump on appellant and stab appellant on the head with the knife; Romero used the same knife that he had earlier when he tried to stab Wilson. Wilson observed appellant bleeding and holding his head.
Barerra heard someone yell “Bust on him.” At that point, “all the guys from DOH” began running away. Wilson heard “four to five” shots toward “the individuals that was running away.” Wilson did not see who fired the shots.
After the shooting started, what Wilson noticed was that Romero, “got hit, he fell between the fence.” According to Wilson, Romero was “running away” when he was struck. Romero died as a result of the gunshot wounds. Barrera was also struck by a shot in the back and fell to the ground. Wilson then stood there for “about three seconds. Then I picked my bike up and I leave.” As he got on his bike, Wilson saw appellant’s truck being driven from the scene as well.
Los Angeles Police Detectives responded to the area of the intersection of 49th Street and Hooper Avenue on the day of the shooting. At the intersection, there was a business by the name of Memos Garage. Detectives spoke with the owner of the business and were given permission to view footage from the video surveillance system of the business from May 27th.
According to Detective Miguel Terrazas the footage showed an African American (Wilson) riding a bicycle. “And a short while later, I’d say somewhere in the range of five, ten minutes... he returned westbound on the street riding his bicycle on 49th. As he was riding the bicycle, you could see multiple people – at least one individual chasing him. And then later on, the male African American turned on to Hooper Street and then continued traveling southbound on Hooper. And then later, additional male Hispanics chased after him.”
The footage also depicted the male Hispanics “running on Hooper, southbound” out of the camera’s view. “Later, however, the footage revealed that when the male Hispanics returned as a group, theere were multiple male Hispanics. I don't know off the top of my head how many. I’d probably say about seven, six or seven. They were riding their bicycles northbound on the west sidewalk of Hooper, and as they were somewhere in this area (indicating), where the for sale sign is, a blue truck pulled up.... As the vehicle pulled up, the truck pulled up, multiple African Americans got out of the truck and as they got out of the truck, almost instantly, they began to fight against each other, that being the male Blacks against the male Hispanics.” The video also showed that during the fight, the male black, who had gotten out of the driver’s side of the truck pulled out a gun and start shooting. The blue truck shown in the video had a large dent on the chrome bumper.
B. Appellant’s Arrest
On June 17, 2007, Los Angeles Police Officer Deen Alcaraz and his partner Officer Marlin Gomez, noticed a Dodge truck parked in the alleyway near Stevely Avenue in Los Angeles. At that time, the officers had an ongoing problem with “vehicles parking in the alley obstructing driveways and carports.”
The officers intended to cite this truck for a parking violation. Prior to doing so, they “conducted a warrant check of the license plate, ” which revealed that the vehicle was wanted in connection with a murder warrant. The officers waited and watched the vehicle for several hours.
After about three hours, they saw a male, later identified as appellant, “open the door with a key, get in the truck and appear to start it and started driving away.” Officer Gomez requested backup and they followed the vehicle to Nicolet and Coliseum where it came to a stop and made a right turn on to Coliseum. After backup units were in place, Officers Alcaraz and Gomez “initiated our red lights.” The vehicle then accelerated, failed to stop at several stop signs and sideswiped a car. The truck traveled another 150 yards and “there was a Dash bus coming northbound, and there [were] a couple cars double-parked where he just got boxed in and he couldn’t go anywhere.” The officers then exited their vehicle and engaged appellant in a foot pursuit through two apartment complexes.
Appellant scaled two fences, and jumped into a carport, next to an apartment. Eventually, Officer Alcaraz observed appellant being detained by other police officers. The officers returned to the apartment to ascertain who owned the carport. When he searched the area, Officer Gomez “found a fully loaded revolver in the back area of the carport directly where [appellant] would have landed after he scaled the fence.” The gun was “behind some wooden planks or something that was there in the carport. It was – appeared to be – appeared to be shoved in or thrown in behind wooden planks.” Appellant was arrested. Officer Alcaraz asked appellant if he belonged to a gang and appellant said, “Yeah... Bloodstone Villains.” When asked what he was called, appellant said “Kojak.”
Edgardo Platero owned the carport near the apartment where appellant was arrested. Platero testified that approximately 11:30 a.m. on June 17, 2007, he heard noise from behind his apartment that was right by the alley. There was the sound of the “police and all the noise, we came out of the window to see. We were all watching.” Mr. Platero then saw a tall Black male, later identified as appellant jump from Mr. Platero’s parking area to outside and then run down an alley. The gun retrieved from Mr. Platero’s carport had not been seen by Mr. Platero before that incident.
When Detective Terrazas saw appellant, he saw a “gash” to the back of appellant’s head although he did not know how it happened.
After appellant was arrested, the truck was impounded and examined. The truck contained paperwork containing appellant’s and his mother’s names. The truck also had “a very large dent on the actual bumper, the chrome portion of the bumper.” Detective Terrazas found blood on the steering portion of the truck, on the rear door of the vehicle, and in the interior of the vehicle; he also found blood droppings on the street near the southwest corner of 49th Street and Hooper.
The truck impounded by police belonged to appellant’s mother. Appellant’s mother let appellant use her car for purposes of “work, school, and his family.”
DNA from the blood samples taken from the passenger door of the truck and the street where the shooting occurred matched appellant’s DNA profile. DNA collected from the gun that police found at the time of appellant’s arrest was found to be a mixture of DNA from at least two individuals from which appellant could not be excluded.
A criminalist with the Los Angeles Police Department, testified that she examined the gun found when appellant was arrested, test fired it and compared the test fired bullets with those found at the scene of the crime. The firearm was a.38 caliber Smith and Wesson revolver. The gun fired “without any problem.” But the bullets fired “were heavily damaged and there was not that much of the bullet left to look at and to compare against the test fires, ” so the expert “was not able to say that they were fired in that firearm or to say that they were not.”
C. The Charges, Trial and Verdicts
Appellant was charged in count 1 with murder and in count 2 with attempted murder in violation of Penal Code sections 187, subdivision (a) and 664/187, subdivision (a) respectively. Count 2 further alleged that the attempted murder was committed willfully, deliberately and with premeditation within the meaning of Penal Code section 664, subdivision (a) and that it was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c). Count 1 was alleged to be a serious felony within the meaning of Penal Code section 1192.7, subdivision (c), and a violent felony within the meaning of Penal Code section 667.5, subdivision (c). Counts 3 and 5 charged appellant with possession of a firearm by an ex-felon with two priors, in violation of Penal Code section 12021, subdivision (a)(l). Count 4 charged appellant with evading a police officer with willful disregard, in violation of Vehicle Code section 2800.2, subdivision (a).
The information further alleged as to counts 1, 2, and 3 that appellant personally and intentionally discharged a firearm proximately causing death and/or great bodily injury within the meaning of Penal Code section 12022.53, subdivisions (b), (c), and (d) and that the offenses were committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(l)C). The information alleged as to all five counts that, within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivision (b) through (i), the Three Strikes Law, appellant had suffered two prior convictions for serious or violent felonies.
Appellant was arraigned, pled not guilty, and denied all special allegations.
During trial a recording of a telephone call appellant made while he was in custody was played for the jury. The recording revealed appellant had directed that Wilson should be made to disappear so that Wilson could not implicate appellant.
The transcript of that recording revealed appellant saying, in relevant part, the following statements:
The jury found appellant guilty of murder as charged in count 1 and count 2 attempted murder, and found true all of the special allegations. Appellant was found guilty as charged in counts 3 and 5 of possession of a firearm by an ex-felon with two priors, a violation of Penal Code section 12021, subdivision (a)(l). The jury found appellant guilty as charged in count 4 of evading a police officer with willful disregard, a violation of Vehicle Code section 2800.2, subdivision (a). Probation was denied and appellant was ordered imprisoned in the state prison for a total of 122 years to life.
Appellant appeals the judgment entered.
DISCUSSION
Appellant claims that the evidence was insufficient to support his convictions and that the verdict could have only been based on “speculation and conjecture.” Appellant also contends that even assuming he did fire the shots that killed Romero and injured Barrera, the jury should have necessarily found that he acted in self-defense, and thus should have convicted him of no crime greater than voluntary manslaughter.
I. Sufficiency of the Evidence Supporting the Convictions
In an appeal raising a sufficiency of evidence challenge, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Nonetheless, on appeal, the test is whether there is substantial evidence to support the conclusion of the trier of fact, not whether guilt is established beyond a reasonable doubt. (People v. Liu (1996) 46 Cal.App.4th 1119, 1132.) We therefore review the record “in the light most favorable to the judgment below to determine whether it discloses substantial evidence” supporting each element of the crime, and we must presume in support of those findings the existence of every fact that one could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 562, 576.) “[S]ubstantial evidence” is “evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578; People v. Abilez (2007) 41 Cal.4th 472, 504.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Majors (2004) 33 Cal.4th 321, 331 [the reviewing court does not resolve evidentiary conflicts, but views the evidence in a light most favorable to the People, and presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence].) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) With these principles in mind, we consider the evidence of malice presented by the record on appeal.
Here, applying the mandated standard of review, the substantial evidence showed that appellant along with several others accompanied Wilson to the intersection of Hooper and 48th with the intent of retrieving Wilson’s bicycle from members of the DOH and EBK tagging crew who had earlier robbed Wilson of the bicycle. The evidence, including the testimony of Wilson, Barrera and the video surveillance tape from the nearby garage, also showed that appellant drove the blue truck to the area, that he, Wilson and the other men exited the truck and began fighting with members of EBK and DOH. At some point during the fight, Romero stabbed appellant in the head. Shortly thereafter shots were fired as Romero and Barrera started to retreat, and both were struck as they ran away. The evidence—appellant was present at the scene, that he was involved in the fight, and that Romero struck him with the knife—is overwhelming. Thus, on appeal the dispute centers on whether there was sufficient evidence that appellant was the shooter.
In our view, the jury was provided with sufficient evidence to support the reasonable inference that appellant shot Romero and Barrera. First, according to the description of the scenes on the video, it appears that the driver of the truck—who Wilson identified as appellant—was the person who retrieved the gun from the truck and fired the shots. Second, appellant had motive to use a gun in the fight. Indeed, what started out as a fistfight over a bicycle quickly escalated into a more violent confrontation when Romero slashed appellant in the head with the knife. Thus, appellant, among all those present, would have had the greatest motive to retaliate with a weapon and to target the person who had stabbed him. Third, appellant’s inexplicable flight from police and his disposal of the firearm as he fled show a consciousness of guilt. (See People v. Cooper (1991) 53 Cal.3d 771, 833 [destruction of evidence shows consciousness of guilt]; People v. Williams (1997) 55 Cal.App.4th 648, 652 [flight demonstrates a consciousness of guilt]; People v. Wallace (2008) 44 Cal.4th 1032, 1074; see In re Anthony M. (1981) 116 Cal.App.3d 491, 500-501 [unexplained flight from burglary scene implies entry with unlawful intent].) Furthermore, appellant’s statements during jail house a telephone call in which he stated that Wilson needed to disappear, also imply appellant’s guilt. This evidence provided solid and credible support for the reasonable inference that appellant committed the crimes charged.
We reach this conclusion notwithstanding other evidence presented at trial that was inconclusive on the issue of appellant’s guilt. The DNA evidence on the gun and the ballistic evidence from the gun found when appellant was arrested did not directly connect the gun to the shooting or appellant to the gun. Nonetheless, this evidence does not undermine the finding that he was the shooter. Where substantial evidence supports the jury’s finding, and other circumstances support a contrary finding, the jury’s finding will not be reversed. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
II. Imperfect Self Defense
Appellant argues that if the record contains sufficient evidence that he fired the weapon that killed Romero and injured Barrera then the jury should have also found that he acted in self-defense.
Under the doctrine of imperfect self-defense, if a defendant attempts to kill another because of his or her actual but unreasonable belief that he or she was in imminent danger of death or great bodily injury, then the defendant is deemed to have acted without malice. In such circumstances, the defendant cannot be convicted of any greater offense than attempted voluntary manslaughter. (People v. Rogers (2006) 39 Cal.4th 826, 883 [As the California Supreme Court has explained, “the doctrine of imperfect self-defense [requires] ‘[a]n honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter’”]; see In re Christian S. (1994) 7 Cal.4th 768, 771.)
Appellant contends that there was insufficient evidence of malice at trial – that, instead, the evidence shows that he had been attacked with a knife and that he was entitled to respond in kind to defend himself.
However, appellant’s claim of error ignores the other evidence in the case. The evidence presented in the case showed that appellant, Wilson and the others went to the corner of Hopper and 48th to retrieve the bicycle, but instead, immediately instigated a fight. Although, Romero stabbed appellant with the knife, by the time appellant went to the truck, took out the gun and fired it, Romero and Barrera were running away from appellant—Romero and Barrera were shot in the back as they fled the scene. This evidence allowed the jury to have reasonably concluded that appellant did not simply fire out of a belief that he was in imminent danger of but instead to obtain revenge—for taking the bicycle and for stabbing him. Thus, the jury rightfully rejected the notion that appellant could believe that he was in imminent danger based on these circumstances.
In view of all of the foregoing, we find no reversible error.
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J., JACKSON, J.
He told me that he got everybody this and that but he don’t have everyone's name... Yeah, the fool talked about there is only two people he he [sic] hollered at: me and tagger boy. And they know who the tagger boy is and all this and that and I'm like y'all know who everybody is... You feel me? So they just—they kept getting quiet on me every time I answered their questions the way they know it wasn’t supposed to be answered. I’m tired I’ve been up since 10:30 last night and I already had to deal with two homicides since last night.... I'm like well look man, until my lawyer gets here, I don’t have nothing to say... give me my phone call so I can call my parents and I can call some attorneys and I can make sure that my lawyer can get down here in an hour. Oh, they got real hot, oh Blood. The cops say really you have nothing to say.... This is the best case I’ve had in my 27-year career. Alright, we’ll see. Hey, I started laughing and said we’ll see. He said, for reals, I’m just telling you. I’m telling you if the case is so slam dunk, like you say, why are you cops up here trying to sway me to tell you my side of the story?
Somebody fit your description driving your truck. I say first off it’s not my truck, it’s not in my name. And second off[, ] who says I was in this truck you got me, a tagger dude, cause they keep saying tagger dude, so I’m like me, a tagger dude, now who is the three four people you all keep saying, matter of fact what’s his name, I’m asking what’s his name – y’all put me with... what’s his name... I’m asking what’s his name, y’all put me with him – What’s his name? Oh, uh, uh we’re not at liberty to... Tell Jamal I said that uh... Who? Tell him I said skateboarder. He [sic] right there? He’s right where, on 43rd? Alright, well tell him I said... Him? Uh uh Houdini. The skateboarder. Houdini. Did William come get that gun down there? I said alright but[, ] ah man[, ] I don’t know[, ] I don’t know what to tell you[, ] you know what I’m saying] You already know what they so called say that [sic] got me for they didn’t I said [sic]. They don’t have nothing on nobody only thing they [got] on me is because the truck - a truck - a truck, you feel me?
But the light skinned dude, the skateboarder dude, the tagger dude - tell them I said he needs to go. Because for some apparent reason they only know him, and then they try to act like they try to put him and me together, but with everybody else they don’t know everybody else name. They know him - they know skateboarder dude - they know tagger dude. Just tell him the one that the detectives already went to their house. These two fools tried to explain to me what the case is and and and what they say? Oh, Blood, you know what they tried to tell me? They tried to say that they had videotape. No this is what they actually said. They said. First they said they had pictures. First they said they had pictures they said they had pictures. Then they said the pictures they had showed everybody so they know who everybody is.
So I’m like [“]Okay[so if you know who everybody is why am I the only motherfucker sitting here?[”] And then they tried to say they talk to Mexican fools and this and that and Mexican fools told them who it was and I’m like what Mexican fools and I'm like... they were talking about the skateboarder dude. The tagger dude you know what I’m saying? They said we know him we know where he at we know all this started over him. That’s why what’s wrong with your house phone blood? I’ve been trying to call you since yesterday... It was 5, 5:30 in the morning when they came and got me [phone number deleted] fuck, man. Wasn’t I – I mean I look at it like this, I mean what was I supposed to do, y’all [unintelligible] too much -- every time I sat down and tried to stay sitting down, it was a problem going on - there was always some bullshit going on - so I’m like, well fuck it and then I can’t, man, it, it ain’t no excuse to even argue over nothing [, ] really what was going on it was no excuse period cause I’m [unintelligible] it’s just fucked, real flicked up cause shit wasn't supposed to go that way and then here it is. I ain’t tripping. It ain’t nothing. But the point I’m [unintelligible] now what? See now what? Now what? I mean cause you know everybody know who everybody know who motherfuckers is motherfuckers [unintelligible] wasn’t there --all kinds of other shit - all kinds of crazy shit- motherfuckers know what you know what I'm saying? Now what is motherfuckers gonna do? Is motherfuckers going to clean it up to make sure shit stay right so that... you feel me?
Hmm. Believe me, I know that but you know leave it up to them they was already trying to say motherfuckers was but they don’t have no names that’s what I’m trying to tell you. Remember this right, Baby Nut there right now? Julie? Baby Nut? He up? He up? Tell him to come to you. Tell him to come to you. Hello? Oh well when he wake up tell him that I said that skateboarder dude -- that [unintelligible] dude somebody needs to make sure he disappears — because they went to his house and already talked to him. You feel me? And he was the first motherfucker they talked to. He said he didn’t say nothing he tried to say that they he told he tried to say the same thing that they told me [unintelligible] what that the number is [phone number deleted].
They do not know nobody. I know that for a fact[.] I heard everything those two stupid motherfuckers said while I sat there playing like I was so scared and I ain’t knowing] what was going on and they told me what was going on[, ] them fools said [“]man, we know you and the skateboarder dude, [“] that’s what they said - you, the tagger dude, and there was a few more of like, uh yeah, he jumped out and started fighting and you jumped out and started fighting, and in the process of this something got out of hand and you started shooting. That’s what he told me. I laughed. I said, “Is that right?” I said, “Where'd you get that from?” Well, maybe because you got this cut on the back of your head, that that’s why you started shooting. You started shooting for [sic] self-defense. I’m like, man, check this out, miss me with that shit. I don’t know nothing about nothing and you know damned well coming around with that self-defense law unless you’re a police officer or a federal agent. And he started, like, [“] well, why do you say that?[“]