Opinion
B227910
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. THEODORE SNYDER, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA306858)
APPEAL from a judgment of the Superior Court of Los Angeles County, Sam Ohta, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant of two counts of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and found the crimes were committed for the benefit, or at the direction, of a criminal street gang (§ 186.22, subd. (b)). The jury found multiple firearm allegations to be true (§ 12022.53, subds. (b) - (e), count 1; 12022.53, subds. (b) & (c), counts 1 & 2). Appellant was sentenced to life plus 25 years to life on count 1. A concurrent term was imposed on count 2.
All further statutory references are to the Penal Code.
I. FACTS
A. The Testimony of the Victims
Kevon Flowers and Jeremy Deshone were shot when they were walking on Jefferson Boulevard at 6:00 p.m. on July 26, 2006. Flowers was struck by two bullets - one hit his side and the other his foot. Deshone was hit in the foot. Flowers was paralyzed from the waist down as a result of the shooting. Deshone was treated at a hospital and released after one day. Flowers did not see who shot him and Deshone did not know from where the shots were fired.
Based on casings and bullet fragments recovered from the scene as well as a bullet fragment recovered from Flowers's body, it was determined that at least three firearms were discharged.
Deshone did not appear in court for proceedings related to this case on over four occasions and, as a consequence, he had been incarcerated as a material witness. He did not want to be considered a "snitch."
Prior to coming to court on the day he was scheduled to testify, Flowers was located by police officers hiding in a bedroom closet in an effort to avoid testifying in the case. Flowers told the prosecutor and police officers "plenty of times" that he did not want to come to court. Flowers heard there was an "anti[-]snitching rule" on the street. B. The Victim's Prior Statements to the Police
Los Angeles Police Detective Corey Farell interviewed both victims after the shootings. He interviewed Flowers on July 31, 2006 and on August 2, 2006 - on both occasions Flowers was in the hospital. Deshone was interviewed in February 2007 while he was in custody on another offense. The detective attempted to interview Deshone before the February interview but Deshone was uncooperative. The victims' statements to Detective Farrell follow.
In the July 2006 interview, Flowers indicated the gunman was in a white Impala but he had never seen the occupants of the car before the shooting. Detective Farell sensed Flowers was not revealing known information. When the detective put his notes away, Flowers identified the shooter as "Teddy" - a person with whom he had an altercation at Dorsey High School during the previous school year. Later that evening, Detective Farell provided Flowers with a photographic lineup that included appellant's picture. Flowers "immediately" identified appellant as the shooter.
School records confirmed there was a period of time in which both Flowers and appellant attended Dorsey High School.
In the August 2006 interview, Flowers explained he and Deshone were walking to a liquor store when they observed a car. They continued to walk and the car pulled up to the curb. Flowers reiterated that the shooter in the car was Teddy from Dorsey High School. He was 100 percent certain that the person he identified in the lineup was the shooter. Flowers elaborated on the altercation with Teddy in that he said Teddy made reference to his status as a Bloods gang member while the two were fighting.
During this second interview, Flowers expressed his reluctance to appear in court on this case. He believed that if it became known that he testified, he could end up dead. Flowers, in fact, knew a person who went to court and was killed. From his perspective, Teddy was shooting to kill Flowers and Flowers believed Teddy's incarceration would not cause Flowers to be safe. Flowers indicated his mom took care of his younger sister by herself and he did not want to create any problems for them.
In the February 2007 interview, Deshone explained, when he and Flowers first noticed the white car, Flowers was concerned about the way the occupants of the car looked at them. As they continued to walk, the car returned and shots were fired from it. There were three or four people in the car - Deshone recognized one of the shooters as Teddy. He was aware Teddy lived in an area known as "the Jungles." Deshone acknowledged at trial that he told the detective he swore on the life of his daughter that he was telling the detective the truth. He testified such a statement constituted an important promise - a promise that would not be made unless he was telling the truth. C. The Jungles and the White Impala
Baldwin Hills was known by some people as "the Jungles" due to its trees and plant life. The area was "claimed" by the Black P Stone (BPS) gang and members of that gang regularly congregated on August Street. In 2006, Luerenzia Davenport lived in the area and had a brother who was a member of BPS. She also dated a BPS gang member - Brandon Mead. Davenport saw appellant and Mead "hang out" on August Street. On July 26, 2006, she permitted Mead to use the car she was renting. He had access to that car until 9:00 p.m. that night. The car looked "just like" the vehicle that was used in the shooting.
On July 26, 2006, before the shooting occurred, Los Angeles Police Sergeant Asatur Mkrtchyan observed a white Impala while in his unmarked police car. The Impala turned north on Arlington Avenue. The sergeant wrote down the license plate of the car because the three African-American males inside of it appeared to be "excited."
After the vehicle left the sight of Sergeant Mkrtchyan, he received a radio broadcast in which the suspects' vehicle was described as a white Impala. He provided detectives with the license plate number of the vehicle he observed. A few days later, the sergeant picked Mead out of a photographic lineup and identified him as the driver of the Impala. On July 31, 2006, police officers pulled over a white Impala being driven by Mead that had a license plate number matching the number written down by Sergeant Mkrtchyan. D. Gang Evidence
"August Street" is a "clique" or subset of the BPS gang in Baldwin Hills. The Rolling Harlem Crips gang is an enemy of the BPS gang. The location of the shooting was in territory claimed by the Rolling Harlem Crips.
Appellant is a BPS gang member. He has admitted to being a BPS gang member and has been seen dressed "entirely" in BPS gang attire. Deshone and Flowers are members of the Rolling 30's Crips.
The prosecutor's gang expert opined that if three BPS gang members drive into Rolling Harlem Crips territory and commit a drive-by shooting, the reputations of the BPS gang members who participate in the shooting would be improved. In addition, the reputation of the BPS gang as a whole would be enhanced because such a shooting is an example to the community of the crimes BPS gang members are willing to commit.
After being provided with a hypothetical that was consistent with the evidence presented, the prosecutor's gang expert opined the shooting was committed for the benefit of the BPS gang. Although the victims were not members of a rival gang, gang members often shoot people who are not rivals but are in the territory claimed by a rival gang.
II. DISCUSSION
A. Sufficient Evidence Supports the Convictions for Attempted Murder
Appellant contends the evidence of attempted murder was insufficient to support the judgment of conviction because of "lies" and "contradictions" in the testimonies of Flowers and Deshone. He maintains all evidence "stemming from Flowers and Deshone identifying appellant as the perpetrator" was untrustworthy. Appellant's argument is, in essence, an invitation to reweigh the evidence of identity and displace the jury's assessment of witness credibility. A reviewing court may not reverse a judgment of conviction for insufficient evidence based on such a review of the record.
"'"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt."' [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 104.) The same standard of review applies even if the prosecution relies on circumstantial evidence. (People v. Scott (2011) 52 Cal.4th 452, 487, citing People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on a different point in People v. Rundle (2008) 43 Cal.4th 76, 151.)
The reviewing court is prohibited from reweighing evidence or reassessing a witness's credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 37-38.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
A rational trier of fact could have concluded appellant was the shooter based on the following evidence: (1) the victims' independently identified appellant by an abbreviated version of his first name (i.e., Teddy) shortly after the shooting; (2) Flowers's photographic identification of appellant as the shooter was made "immediately" after the detective showed him the lineup and he was 100 percent certain of his identification; (3) Deshone swore on his daughter's life that he was being truthful when he told the detective that Teddy was a shooter; (4) appellant had a motive to shoot the victims because they were walking in an area claimed by a rival gang and appellant had a previous altercation with one of the victims; and (5) just before the shooting, appellant's gang associate and person with whom appellant spent time on August Street was seen driving the vehicle used in the shooting.
It is true the victims did not identify appellant at trial but both were clearly reluctant witnesses given appellant's status as a BPS gang member. Deshone did not want to be considered a "snitch" and, because he had missed numerous court dates, the court ordered him incarcerated as a material witness. Flowers was found hiding in a bedroom closet in an effort to avoid going to court and testifying. He expressed concern to a detective that he would be killed if he went to court, and told the detective he was worried about the well-being of his mother and sister. The prosecution's gang expert explained "snitches" who testify against gang members subject themselves and their families to being assaulted or murdered.
The jury could have reasonably concluded the absence of in-court identifications was attributable to fear. Moreover, once the jury found the victims made bona fide statements to the detective identifying appellant as the shooter, it could have reasonably concluded other inconsistencies or contradictions regarding the victims' testimonies (e.g., on the issues of whether a third person was walking with them when the shooting occurred, or their memberships in a gang) were immaterial.
This case turned on a determination of whether the victims' made truthful statements to the police identifying appellant as the shooter. A reasonable trier of fact could have concluded that one or more of the statements identifying appellant as the perpetrator were believable. The jury had the opportunity to listen to the testimony of the victims as well as the police officer who took the victims' statements. The jury could view the witnesses' demeanors, mannerisms, and tones. Given the evidence presented, it is inappropriate to second guess the jury's conclusion that the victims' statements to the police identifying appellant as a shooter were credible. (See People v. Boyer (2006) 38 Cal.4th 412, 480 ["a testifying witness's out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant's guilt even if the witness does not confirm it in court"]; People v. Cuevas (1995) 12 Cal.4th 252, 276 [despite eyewitness's testimony recanting identification, prior out-of-court identification was substantial evidence sufficient to support conviction].) Appellant's claim of insufficient evidence lacks merit. B. Appellant Misconstrues the Elements of the Gang Allegation
Relying on Ninth Circuit authority - Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 - appellant claims the prosecution must prove the defendant had the intent to promote, further or assist in criminal conduct of the gang "apart from the instant conviction" in order to establish the section 186.22, subdivision (b)(1) gang allegation.
The California Supreme Court has rejected the Ninth Circuit's interpretation of the elements necessary to establish the gang allegation. (People v. Albillar (2010) 51 Cal.4th 47, 66.) "[T]he scienter requirement in section 186.22, [subdivision] (b)(1) - i.e., 'the specific intent to promote, further, or assist in any criminal conduct by gang members' - is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Ibid.)
This court is obligated to follow the holding of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant's claim is rejected.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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TURNER, P. J.
KRIEGLER, J.