Opinion
D056956 D057264
12-02-2011
THE PEOPLE, Plaintiff and Respondent, v. GREGORY WANTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD209861)
CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed.
A jury convicted Gregory Wanton of first degree murder (Pen. Code, §187, subd. (a); count 1); attempted murder (§§ 664/187, subd. (a); count 2) and conspiracy to commit murder (§§ 187, subd. (a), 182, subd. (a)(1); count 3). The jury found true enhancement allegations that Wanton committed each count for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); as to counts one and two, he was a principal, and at least one principal personally used a gun, causing great bodily injury and death to a person other than an accomplice (§12022.53, subds. (d) and (e)(1)); and, he committed at least one overt act to further the conspiracy.
All statutory references are to the Penal Code unless otherwise stated.
The court sentenced Wanton to a total prison term of 75 years to life plus 9 years, and awarded him 831 actual credits and 831 custody credits. Jamel Davis (Jamel) and his twin brother Jamal Davis (Jamal) were prosecuted in separate proceedings.
Jamel pleaded guilty to aiding and abetting the murder of Ricky Wyatt, admitted a gang allegation, and agreed to testify in Wanton's trial; in exchange, the prosecutor stipulated Jamel could be sentenced to 16 to 21 years in state prison.
Wanton contends the trial court prejudicially erred by: (1) excluding defense evidence regarding Jamel's third-party culpability, thus violating his constitutional right to a fair trial; (2) admitting evidence that law enforcement warned Jamel's family it faced potential danger following Jamel's change of plea; (3) failing to instruct the jury on the lesser-included offenses of voluntary manslaughter and attempted voluntary manslaughter based on heat of passion, in violation of Wanton's due process rights; (4) failing to instruct the jury that provocation could negate premeditation and deliberation; and (5) miscalculating his presentence custody credits. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Wanton does not challenge the sufficiency of the evidence to support his convictions and we therefore summarily set forth the facts, for the purpose of evaluating his claims of evidentiary and instructional error. (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1090.)
Prosecution Case
Jamel testified that he, his brother and Wanton were members of the West Coast Crips gang (Crips) in San Diego, and they had carried out criminal activities on its behalf for several years. On October 12, 2007, the twins had physically attacked Antonio Davis, a member of a rival gang. That same day, and in apparent retaliation, Davis was believed to have shot and killed a Crips member, Leroy Henderson, who the twins regarded as their uncle. Jamel was upset by the death because the Crips believed his attack on Davis had led to his uncle's death. At a wake for their uncle held on October 22, 2007, Crips member Donald Bandy showed Jamel a newly acquired gun, and Jamel told him that the only thing they needed to retaliate against the rival gang was a car. Wanton told Jamel that he had another gun and a car to use for the retaliation, and they exchanged phone numbers.
At approximately 5:00 p.m., the wake ended after a commotion involving a passerby from a rival gang. Thereafter, Jamel refused to go to the Crips' usual meeting place without first carrying out a retaliatory shooting. He discussed the retaliation with Bandy. Around 8:30 p.m., Wanton joined Jamel and other Crips members to plan the retaliation. Bandy insisted on using his new gun. Wanton left for approximately 20 minutes to drop off a Crips member who did not want to participate in the shooting. In the interim, Jamel and the others drank alcohol and smoked marijuana. Wanton returned with his gun and mentioned he was driving an "under bucket" or "low key" car belonging to one of his girlfriends. Jamel took this to mean Wanton did not usually drive that car. Wanton drove the twins, Bandy and two other Crips members to territory that Davis's gang controlled. Wanton, Jamal and Bandy exited the car in front of the John Adams Apartment complex. Jamel did not have a gun; therefore, he stayed behind with two others and acted as a lookout.
Philemon Winston testified that around 9:00 p.m., he had just finished playing basketball with Wyatt and other friends, and was at a playground in front of the apartment complex with his young son. Winston observed three men from a distance and until they approached, when one asked, "Where you from?," referring to gang membership. Before Winston could respond, he heard gunshots, ducked and reached for his son. A bullet had perforated the lower half of his arm, shattering his radius, and he required surgery and a pin implant to keep his bone straight. Another bullet hit Wyatt in the neck and was lodged in his spinal canal, causing his death, which a deputy medical examiner deemed a homicide.
San Diego Police Department Detective Daniel Hatfield had testified that the common expression, "Where you from" is a gang challenge. "There really isn't any response to it. It means they're asking what gang set that you're from. Generally they already know that you're not part of their gang, because they know that — they know their gang set. So it doesn't matter what you respond to."
The parties stipulated that the police received the first 911 call regarding the incident at 9:03 p.m.
Back in the parking lot, Jamel was worried the trio were taking too long; therefore, at around 9:00 p.m., he telephoned Jamal and Wanton in quick succession. Approximately five minutes later, the three men returned to the car. Bandy said he had shot one man in the head. Wanton said, "We handled it," adding that he too had shot one man in the head. Bandy and Wanton had worn batting gloves during the shootings. Wanton next drove them to a Crips gathering place.
They ate, and afterwards Wanton asked if they were done for the night or if they wanted to retaliate further. The twins, who had not participated in the earlier shooting, wanted to retaliate because Crips members still were upset with them for their uncle's death. Wanton loaned his gun to Jamel. Bandy loaned his gun to Jamal. Wanton drove them part of the way as they sought to carry out the next retaliation. They walked the remainder of the way, looking for a car to steal. Police arrived and arrested them. Jamel initially lied to police about his involvement in the crimes.
On October 25, 2007, Winston identified Wanton in a photo lineup as one of the three males he had seen that night. At trial, Winston identified Wanton, and was asked if he managed to see the three aggressors that night. He answered, "I'll never forget the images. When they walked past me that time, I seen them." Winston said Wanton wore a white shirt and had his hair in a ponytail.
Defense Case
San Diego Police Department Detective Robert Donaldson testified police arrested and interviewed Jamel, and afterwards took pictures of him wearing a plaid shirt and a white T-shirt underneath.
Detective Hatfield testified that the day after the shooting, he went to the hospital and showed Winston four different photographic lineups that each included a photo of one of the following: Jamel, Jamal, Bandy and another Crips member, but not Wanton. Winston said in reference to Jamel's photo, "This looks like the subject that was wearing the white shirt and did not have a hoody on."
Jamel testified that approximately one week after his arrest, Martha, the mother of his child, had a telephone conversation with Jamel on one line and Jamal — who was also in custody — on another line. In an audio recording of the phone call played for the jury, Jamel asked whether he should tell detectives that his brother was at the crime scene. His brother responded that he had already told detectives about the crime. Jamel told Martha after his brother hung up, "Man, I wanted to ask him do he want me to tell them I was the driver. Man, I need to know this shit . . . so our stories can be, like, straight. I don't need to just go in there and just freestyle it. Shit. I mean, I can't do that. If I say something . . . that don't match up what he's saying, then we get caught, then we be doing it."
Wanton's barber of approximately nine years testified that Wanton always had the same short hairstyle, known as a covatis. Shante Wanton testified Wanton did not have a pigtail in 2007 or for as long as she had known him.
Wanton moved for a new trial (§ 1181, subds. 6, 7) or alternatively that the trial court exercise its discretion to dismiss the convictions and true findings (§ 1385) on grounds, inter alia, insufficient evidence supported them. The trial court denied the new trial motion, ruling: "Well, there's no question that — at all [—] that Mr. Wanton was there, and [he] participated in a shooting of innocent people, where one adult was killed and one was wounded. In fact, there is no evidence at all that he is either innocent or any mitigating factors. There is zero evidence that he's innocent or that it's a mitigated crime." The court further ruled, "Again, all of the evidence indicates that this is a gang-related first-degree murder. It's not a manslaughter. And, quite frankly, [Wanton] acted without any regard for human life. I'm going to decline to exercise any [section] 1385 demand or relief."
DISCUSSION
I.
Wanton contends the trial court violated his constitutional right to a fair trial and to present a defense by excluding evidence relating to Jamel's third-party culpability under Evidence Code section 1101, subdivision (b).
The California Supreme Court has stated, " 'We repeatedly have indicated that, to be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.' " (People v. McWhorter (2009) 47 Cal.4th 318, 367-368.)
At trial, Wanton's counsel had sought to introduce evidence regarding three incidents: "One, [Jamel] approaches a kid after school and says, 'Where are you from?' And then punches him. [¶] Number two, [Jamel's] got an incident where he punches a kid after school wearing gloves, and then raises his hood and walks away to conceal his identity. [¶] The third is [Jamel's] armed with a firearm. He threatens somebody out in front of that guy's house, and then fires the gun." Wanton's counsel explained that evidence showed "[Jamel] has signature behavior. He walks up to people and says, 'Where are you from?' And assaults them."
The court asked defense counsel, " 'Where are you from?' Are you saying that is distinctive to [Jamel]? Doesn't every gang case start with, 'Where are you from?' " Failing to get a satisfactory response, the court denied the motion, ruling: "In this matter just like in [People v. Davis (1995) 10 Cal.4th 463], just like in [People v. Farmer (1989) 47 Cal.3d 888], where the fact is that this is not being offered to show motive or intent but simply offered to show that . . . Jamel, has a history of violence; therefore, he was violent before; he must have been violent here. Under any level whether intent, whether plan, or identification, under any of those levels and the difference between the three, obviously intent needing the least, plan a higher degree of similarity, but less than identification and identification requiring the highest, under any of those levels, this is not admissible evidence. It will not be admitted under [Evidence Code, section 1101, subdivision (b)]." After further discussion with defense counsel, the court reiterated, "Let me be clear about this. All three instances are precluded under [Evidence Code, section 1101, subdivision (b)]. They do not meet the requirements of the [Evidence] code, and they are simply used for propensity. They are all out."
Wanton argues, "The excluded evidence was relevant. There were enough similarities between the crimes to support the inference of a similar plan and intent. In the prior crimes, Jamel confronted the victim and attacked, even asking in one encounter where the victim was from — the same gang query used in this case. Another similarity in the crimes was the use of the firearm on the victims."
We conclude the court did not err in exercising its discretion to exclude the proffered evidence under section 1101, subdivision (b). Despite Wanton's claim that such evidence was offered to show plan and intent, the trial court concluded it was aimed at showing only that Jamel was the more likely perpetrator because he had a history of violence. Upon analysis, we agree with the trial court. The proffered propensity evidence does not amount to direct or circumstantial evidence linking Jamel to the actual perpetration of the crime. (People v. McWhorter (2009) 47 Cal.4th 318, 373.)
Wanton further argues, "[B]ecause of Jamel's testimony implicating [Wanton], jurors could have assumed it improbable [Wanton] was not a shooter. Introduction of evidence suggesting Jamel could have been a shooter could have caused the jury to question this assumption and seriously consider the defense. Further, evidence supporting an alternative theory for the identity of the assailant could have encouraged jurors to question whether the police acted too quickly in designating [Wanton] as a shooter. With this line of thought, jurors could have turned a critical eye to the police officer's investigation and assumption that the police are usually reliable." We reject this argument as being speculative. A court has discretion to exclude evidence of speculative and marginal impeachment such as the propensity evidence proffered here. (People v. Hall (1986) 41 Cal.3d 826, 831-834; People v. Ramos (1997) 15 Cal.4th 1133, 1166.)
II.
Wanton contends the trial court violated his right to a fair trial by erroneously admitting evidence reflecting that law enforcement authorities had warned Jamel's family of potential danger to them following Jamel's change of plea. Specifically, Wanton contends such evidence, "lacked relevance to issues for the jury's determination. Jurors also did not need it to determine any witness's credibility. Additionally, the evidence was prejudicial, suggesting that [Wanton] had done something to put the family in danger to retaliate for Jamel cooperating with the prosecution. The inference was that [Wanton] was like the type of person who would have committed the current crimes."
When reviewing a decision to admit evidence that is claimed to be prejudicial we apply the abuse of discretion standard of review, and will only set aside the conviction where the trial court's decision was arbitrary, capricious or patently absurd. (People v. Greenberger (1998) 58 Cal.App.4th 298, 352; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
During the prosecution's case-in-chief, Detective Cahill testified on direct examination regarding the protocol he used to warn a gang member who changes his plea, stating, "Pretty much I tell them don't trust anybody. Don't tell anybody about his case. Don't tell them he's . . . cooperating with the police or the District Attorney's office. Just always be aware of your surroundings, look over your shoulder at all times. If anything happens to first contact jail deputies who, in turn, will contact me right away."
Wanton's attorney objected outside of the presence of the jury, stating, "I understand so much of this testimony is being helpful; but now it seems like we're talking about protecting the whole family, and he's talking about what he's going to tell Jamel Davis about protecting the family. This is unnecessary. This is irrelevant to proving any of the charges. And there's been no specific evidence presented to the jury that anybody threatened Jamel."
The prosecutor responded, "I'm not going to get into any threats, just that he was warned and told not to tell anyone until his family was warned. And then the detective just went out and talked to the family and that's it. . . . I'm not going to get into any — there was no threats."
Wanton's counsel stated, "Well, I object to going any further than we've gone on this because it implies to the jury that [Wanton] was somehow doing something improper." In overruling objections challenging the testimony's relevance and foundation, the court noted that Detective Cahill's testimony related to the protocol used in change of pleas in gang cases.
Detective Cahill proceeded to testify that he spoke with Jamel's mother after Jamel's change of plea and told her to contact the authorities if something happened in the area where she lived. The detective also ensured Jamal, who was in protective custody, was warned to be careful.
We conclude the trial court did not err in exercising its discretion to permit testimony regarding the warning the detective gave Jamel's family. The testimony referred to Detective Cahill's common practice of warning families regarding possible consequences of plea bargains in gang-related cases. Further, Jamel had testified that his plea agreement presented a safety issue for him because, "In the gang culture when people make sworn testimony in courts, it is called snitching. Usually . . . other gang members either try to hurt them or kill them." Therefore, Jamel's testimony also was relevant to show that despite possible threats to himself, he elected to testify. "A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.)
III.
Wanton raises two claims of instructional error, which we review for prejudice — to determine whether it is reasonably probable the result would have been more favorable to defendant had the instruction not been given. (People v. Gamache (2010) 48 Cal.4th 347, 376; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101.)
A.
Wanton contends the trial court prejudicially erred by denying his requested instructions regarding voluntary manslaughter and attempted voluntary manslaughter.
CALCRIM No. 570 states: A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or in the heat of passion if: 1. The defendant was provoked; 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; AND 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.
[If enough time passed between the provocation and the killing for a person of average disposition to "cool off" and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.]
The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.
The court responded to Wanton's request by challenging defense counsel, "Well, you can agree it's not a sudden quarrel; right? While these guys are huddling, going to a park, huddling some more, driving to the John Adams Apartment, getting out of the car, going in and shooting at innocent people in a playground, that that's not a sudden quarrel; right?"
Defense counsel clarified, "The argument would not be sudden quarrel. The argument would be heat of passion." The trial court read this definition: "Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion to cause a person to act without due deliberation and reflection." Defense counsel added, "My argument would be that it denies the defendant his Sixth Amendment right to trial by jury on that fact issue if the court withdraws it from the jury's consideration." The court again rejected the argument, ruling, "Your request, basically, as far as I can see, is based solely on conjecture and speculation." It added, "That's what we saw here, was due deliberation and reflection, based on the evidence received at this trial. So, again, there is no basis for a manslaughter or an attempted . . . manslaughter, so that's denied."
The court was not required to instruct the jury regarding crime of passion because no evidence showed Wanton lacked an opportunity to deliberate. To the contrary, the evidence established he helped plan the retaliation, starting at the wake, when he mentioned he had a gun and he could use a girlfriend's car that he did not usually use. Wanton later met Jamel and other Crips members at the park and planned the shooting. Wanton left, dropped off someone and returned. He drove the others to the John Adams Apartments and walked from the parking lot to the playground. After participating in the crime, he later asked if the others wanted to participate in another retaliation, and drove them part of the way to a planned second shooting. Wanton had at least four hours to deliberate from the time the wake was interrupted, around 5:00 p.m., until the shooting at around 9:00 p.m. He did not act under the influence of emotions that bypassed his ability to reason and deliberate. Accordingly, the court did not err in finding no basis existed for an instruction regarding lesser included offenses.
Wanton points out the disparate treatment he and Jamel received from the prosecutor, explaining, "[I]nstead of Jamel going to trial, he agreed to plead guilty to voluntary manslaughter based on heat of passion. He stipulated with the prosecution for a factual basis for his plea, that he aided and abetted the murder. Although under the prosecution's theory [Wanton] was a direct perpetrator and not an aider and abettor, this difference is irrelevant for purposes of distinguishing between murder and voluntary manslaughter. . . . So, because [Wanton] and Jamel were similarly situated defendants, if a factual basis existed for Jamel's plea of guilty to voluntary manslaughter based on heat of passion, it existed for the jury in [Wanton's] trial to be instructed on this crime and attempted voluntary manslaughter based on heat of passion. The inconsistent application of the factual basis was arbitrary and denied [Wanton's] constitutional right to due process."
That argument is unavailing. " ' "The prosecutor ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek. . . . An individual exercise of prosecutorial discretion is presumed to be " ' legitimately founded on the complex considerations necessary for the effective and efficient administration of law enforcement.(Dix v. Superior Court (1991) 53 Cal.3d 442, 451.) "Even between codefendants the law has not contemplated equality in plea bargaining. A grant of immunity, or a less formal plea agreement, which is arranged to obtain the testimony of one defendant against the other, may greatly distort the end result so that one defendant may be jailed and the other imprisoned." (People v. Cobb (1983) 139 Cal.App.3d 578, 587.) As long as a factual basis exists for a plea agreement, "It is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime [citation], nor does the trial court have to be convinced of defendant's guilt." (People v. Holmes (2004) 32 Cal.4th 432, 442.) In light of the above principles, we reject any claim of instructional error based on the prosecutor's different treatment of Jamel and Wanton.
B.
Wanton contends the trial court prejudicially erred in failing to instruct the jury with CALCRIM No. 522 regarding provocation, which can negate premeditation and deliberation.
CALCRIM No. 522 provides: "Provocation may reduce a murder from first degree to second [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]"
CALCRIM No. 522 has been held to be a " 'pinpoint instruction' relating particular evidence to an element of the offense, and therefore need not be given on the court's own motion." (People v. Rogers (2006) 39 Ca1.4th 826, 878.) A trial court must give a pinpoint instruction, even when requested, only if it is supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39.)
Here, the court denied the requested instruction, reasoning, "I mean, there's nothing, because we have people that are just in a park, playing. . . . We have legitimately innocent people. There's nothing in the record that would indicate these people provoked the shooters at all." Wanton argued the provocation stemmed from the Crips' belief that Davis had killed Jamel's uncle. The court countered, "I don't think that has anything to do with whether or not it raises any reasonable doubt on premeditation and deliberation, which is . . . the purpose of [CALCRIM No. 522]."
In light of our conclusion that there is insufficient evidence in the record that Wanton acted under the influence of passions that bypassed his ability to deliberate, we also reject the claim the court should have instructed with CALCRIM No. 522, because the evidentiary basis for a provocation instruction is that the defendant have an emotional reaction to the conduct of another, which emotion may negate a requisite mental state. (People v. Ward (2005) 36 Cal.4th 186, 215.) Here, whatever emotional reaction Wanton had to the murder of the twins' uncle, or to the commotion caused at the wake, there is no evidence he acted out of that provocation, or that he lacked an opportunity to deliberate.
V.
Wanton contends the trial court miscalculated his credits by awarding him 831 instead of 833 actual credits he was due under section 2900.5. The People concede the point, but we disagree. It is undisputed that Wanton was in continuous custody in county jail from November 29, 2007, until he was sentenced on March 8, 2010. The trial court did not err in its computation, but rather it properly took into account the arrest date, release date, and that 2008 was a leap year.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
McINTYRE, J.