Opinion
B187715
12-1-2006
THE PEOPLE, Plaintiff and Respondent, v. DANNY WASHINGTON, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Danny Washington appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of the murder of Rosalio Camacho (Camacho) (Pen. Code, § 187, subd. (a)), during which he personally used a firearm (§ 12022.53, subd. (b)) and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) proximately causing great bodily injury to Camacho (§ 12022.53, subd. (d)). The jury further found true the special circumstance that defendant committed the murder while engaged in the commission of a robbery (§ 190.2 (a)(17)). The jury also convicted defendant on two counts of attempted robbery of Camacho and Roberto Campos (Campos) (§§ 211, 664) and found that the crimes were committed for the benefit of, at the discretion of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The street gang allegation was found not to be true as to the murder count. Defendant was sentenced to prison for life without the possibility of parole, plus an additional 63 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that there was insufficient evidence that the attempted robberies were gang motivated, there was insufficient evidence to support the special circumstance of the murder in furtherance of attempted robberies, the trial court committed error when it received evidence that defendant had served time in a juvenile detention facility, and the trial court committed sentencing error in failing to award full actual presentence credits. We agree that the trial court did not award the correct presentence credits. In all other respects, we find no grounds for reversal and affirm the judgment.
FACTS
On the evening of September 8, 2003, defendant and Rayshawn Richards (Richards), both members of the East Coast Crips gang, were in a barbershop near Broadway and 61st Street in Los Angeles with several members of the East Coast Crips and Gangster Crips. The barbershop was used as a hangout by Six Deuce East Coast Crips. A Gangster Crips member came into the barbershop and said that he had just seen two Hispanic men purchasing a six-pack of beer in a nearby liquor store, and they appeared to have a lot of money. The two men were Camacho and Campos.
Although defendant and Richards were jointly charged, Richards trial was severed from defendants, and Richards is not a party to this appeal.
Someone in the barbershop said, "Lets rob them." Elijah Casey (Casey) handed a semiautomatic handgun to defendant. Defendant and Richards then left the barbershop and headed toward the liquor store.
Camacho and Campos went to an adjacent parking lot and drank their beer. They then returned to the liquor store. Campos paid for another six-pack and the two men left the liquor store with Camacho carrying the beer in a bag. As the two men walked north on Broadway, defendant and Richards approached from behind.
Defendant and Richards caught up with the two men and confronted them. As defendant pointed the gun at both victims, both he and Richards repeatedly demanded the money. Campos told Camacho in Spanish that the gun "looked like a toy," and Camacho responded that he agreed. Camacho took a beer from the six-pack and threw it at defendant. Defendant shot Camacho once, and Camacho fell to the pavement. The bullet struck a major vein, causing Camacho to bleed to death. Richards continued demanding money from Campos, while defendant pointed the gun at Campos. Campos lied and said that the police were coming, and defendant and Richards left.
Defendant and Richards split up. Defendant hid the gun then went home. Casey telephoned him and asked where the gun was. Defendant told him, and Casey retrieved it.
Although Campos left the scene before the police arrived, he later spoke to Detective Richard Arciniega. He was shown two photo-lineups. In each lineup, Campos identified a photo of a person who looked like Richards. One photograph was of Richards, the other of a person named Cornell Kurtsey (a member of the 76 East Coast Crips gang). At the preliminary hearing, Campos identified defendant as the shooter. Campos also identified Richards at Richards trial, which preceded Washingtons trial.
Mary Woods (Woods) witnessed the events. She saw two African American men following two Hispanic men and heard shouting. One of the African American men was holding a gun; he appeared focused on the Hispanic man who was carrying a grocery bag. The other African American man, who did not have a gun, was blocking the second Hispanic man. The man carrying the grocery bag took a beer can out of the bag and raised it as if planning to throw it at the man with the gun. The man with the gun charged at him. He tossed the beer can at the gunman, but it did not appear to hit him. Woods thought she then heard three shots, but only one spent casing was found on the street, and only one shot struck Camacho. According to Woods, the two African American men immediately fled in different directions. According to Campos, after Washington fired at Camacho, he pointed the gun at Campos and again demanded money before fleeing.
Woods spoke with Detective Arciniega the same evening as the shooting. She identified a photograph of defendant as the shooter. At the preliminary hearing, Woods also identified defendant as the shooter and Richards as the man without a gun. At trial, Woods identified defendant as the man who was not holding the gun. At Richards trial, Woods identified him as the shooter.
Defendant and Richards were arrested on October 23, 2004. They were passengers in a car that was pulled over because it had no license plate. Defendant at first tried to hide by crouching in the back seat. When the officer discovered him, he gave a false name and date of birth.
Detective Arciniega tape-recorded an interview with defendant the next morning. Defendant admitted that Casey gave him a gun with a long clip to rob the two Hispanic men. Defendant indicated that he and Richards confronted the men to rob them, one of the men threw a beer can at him, and defendant then fired the gun at the man. Defendant told the detective he had not planned to shoot until the man threw a beer can at him.
Officer Patrick Rudolph testified as a gang expert. According to Officer Rudolph, the primary activity of East Coast Crips was narcotics sales and robbery. At the time of trial, two members of the gang had recently been convicted of murder.
Using the facts of the instant case, Officer Rudolph was asked hypothetically whether the crimes committed were for the benefit of a criminal street gang. He responded that the crimes would have been for the benefit of a criminal street gang based upon the following facts: The gang members came up with the idea to rob the victims, a gang member supplied the gun, it could be inferred that the proceeds from the robbery were to benefit the gang and the murder would increase the gangs reputation and control in the gangs territory.
Defense
Defendant testified on his own behalf. He admitted being a member of the 76 East Coast Crips and being in the barbershop, but he denied having anything to do with the attempted robbery or murder. Defendant testified that he saw Michael Johnson (Johnson) and Casey leave the barbershop. Johnson was carrying a gun. A few minutes later, he heard a gunshot. At the time of the trial, Johnson was deceased and Casey was in prison.
Defendant explained that he lied in the interrogation because, prior to the taped portion of the interview, the detective had promised him he would go home if he would just admit to the shooting. The detective said that if defendant did not cooperate, he would face imprisonment for life without the possibility of parole. When he ultimately agreed to "confess," the detective turned on the tape recorder. The detective allowed him to read Caseys written statement. Casey had told police that he had given defendant a gun to rob some Hispanics.
Defendant explained that he tried to hide from the police when they stopped the car he was riding in because he had marijuana with him. He did not want to be caught.
At the time he was arrested, defendant was 18 years old. He had previously sustained petitions as a juvenile for burglary in 1998, burglary in 1999, taking a vehicle without the owners consent in 2001, and receiving stolen property in 2002. For two of the sustained petitions, he was sent to camp and the California Youth Authority.
DISCUSSION
Sufficiency of Evidence That the Attempted Robberies Were Gang Motivated
To subject a defendant to the consequences of section 186.22, "the prosecution must prove that the crime for which the defendant was convicted had been `committed for the benefit of, at the direction of, or in association with any criminal street gang, [and] with the specific intent to promote, further, or assist in any criminal conduct by gang members." (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Defendant contends that the section 186.22 gang enhancements must be reversed, because there is insufficient evidence that the attempted robberies were committed for the benefit of the gang. He also asserts that section 186.22 requires a showing that the crime was committed with the specific intent to promote other criminal gang activity and the evidence is insufficient in that regard. We disagree.
Defendant relies on the case of People v. Morales (2003) 112 Cal.App.4th 1176 to support his contention that the attempted robberies were committed in association with gang members, but not in association with a gang within the meaning of section 186.22. In Morales, the court stated that "it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang." (Id. at p. 1198.) Defendant claims that, since members of two separate gangs were involved, no gang planning was shown, it was simply an opportunistic, spur-of-the-moment crime that took place when it was discovered that Camacho and Campos appeared to have some money. We are unconvinced.
In Morales, the defendant and two fellow gang members, Flores and Moreno, robbed two victims while visiting a house where the victims were also visiting. The prosecutions expert testified that the robberies were committed for the benefit of, at the direction of, or in association with the gang. The court concluded "that defendants intentional acts, when combined with his knowledge that those acts would assist crimes by fellow gang members, afforded sufficient evidence of the requisite specific intent." (People v. Morales, supra, 112 Cal.App.4th at pp. 1198-1199.) The court reasoned: "[S]pecific intent to benefit the gang is not required. What is required is the `specific intent to promote, further, or assist in any criminal conduct by gang members . . . . Here, there was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were members of his gang. Moreover, . . . there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members." (Id. at p. 1198.)
In the present case, defendant was in the company of fellow gang members at a local gang stronghold when it was mentioned that Camacho and Campos appeared to have money. Defendant obtained a gun from a fellow gang member and attempted the robbery in the presence and with the aid of another gang member. Officer Rudolph concluded that where gang members collectively thought of committing the crime in gang territory and gang members agreed to commit the crime together, it could be inferred that the proceeds of the robbery were to benefit the gang and the crime would increase the gangs reputation and control of the neighborhood. The fact that the gun was provided by a member of a different gang does not negate this conclusion. There thus was substantial evidence to support the jurys conclusion that the crime was committed for the benefit of, or in association with, a criminal street gang.
Defendant further contends that pursuant to Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103 (Garcia), section 186.22 requires a showing that the robbery was intended to facilitate criminal conduct by gang members, that is other criminal conduct beyond the charged crime. Garcia is not binding on this Court. (See People v. Burnett (2003) 110 Cal.App.4th 868, 882 [decisions of the United States Court of Appeals are not precedent in California and are merely persuasive authority].) Moreover, a recently published decision from Division Four of our District disagrees with the holding of Garcia, and we find it to be a better reasoned decision.
In People v. Romero (2006) 140 Cal.App.4th 15, review denied September 20, 2006, the court noted that the plain language of section 186.22, subdivision (b)(1), requires a specific intent to promote "`any criminal conduct by gang members, rather than other criminal conduct." (Id. at p. 19.) Romero concluded that section 186.22, subdivision (b)(1), does not require proof of a specific intent to promote criminal conduct other than the charged offense. We agree and accordingly reject defendants contention.
Sufficiency of Evidence to Support the Special Circumstance of Murder in Furtherance of Attempted Robberies
Defendant contends the evidence is insufficient to establish that the murder was committed in furtherance of the attempted robberies to support the special circumstance robbery-murder finding. He suggests that the evidence shows he impulsively shot Camacho out of anger for throwing the beer can, making him guilty of first degree felony-murder only. We disagree.
The special circumstance of murder in the commission of an attempted robbery (§ 190.2, subd. (a)(17)) does not apply unless the murder was committed for the purpose of carrying out or advancing the commission of the underlying crime or to facilitate escape or avoid detection. (People v. Bolden (2002) 29 Cal.4th 515, 557.) "To prove the robbery-murder special circumstance, the prosecution was required to prove that defendant formed the intent to steal before or while killing the victim." (People v. Valdez (2004) 32 Cal.4th 73, 105.) Defendant does not dispute that if the gun is fired out of anger, as well as to facilitate the robbery, the special circumstance would apply. (People v. Carroll (1970) 1 Cal.3d 581, 584-585.) Defendant argues that there was no showing of a motive other than anger or reflex. The evidence does not support defendants contention. Defendant and Richards jointly planned the robberies of Camacho and Campos. Defendant obtained a handgun to aid him in the robbery. When Camacho resisted by throwing a beer can, defendant shot him. Richards continued to demand money from Campos after the shooting. Defendant and Richards did not leave until Campos informed them that the police were coming. At that point, the robbery was abandoned. The fact that no money was taken is not relevant. There was sufficient evidence to support the special circumstance finding that the murder was committed to advance the commission of a robbery.
The Admission of Evidence that Defendant Had Served Time in a Juvenile Detention Facility
Defendant contends that the trial court committed error when it allowed the admission of evidence that he had served time in a juvenile detention facility. Although evidence of a criminal conviction or conduct underlying a sustained juvenile petition is admissible for impeachment (see Evid. Code, § 788; People v. Lee (1994) 28 Cal.App.4th 1724, 1740), defendant claims that the trial court abused its discretion under Evidence Code section 352 and violated his due process rights when it permitted the prosecution to ask him whether he was allowed to go home after he had received sustained juvenile petitions. We disagree.
During direct examination, defendant had testified that he had falsely confessed to the murder because the detective had promised him he would be able to go home. The prosecutor was able to elicit, over defendants Evidence Code section 352 objection, the fact that he was sent to camp and the California Youth Authority for two prior sustained petitions. The prosecutor reasoned that if defendant had served time for a relatively minor crime of receiving stolen property, it would impeach the credibility of his testimony that he had confessed in order to be able to go home.
While the evidence of defendants having served time for the commission of a crime was not relevant as to his guilt or innocence of the crimes charged, it was relevant to the question of his credibility. The fact that defendant had been committed to camp and CYA for receiving stolen property and burglary, tends to disprove his testimony that he confessed to the more serious crime of murder in order to be allowed to go home. The previous commitments make it less likely he actually believed that he would be allowed to go home if he confessed to murder, making the evidence relevant. (Evid. Code, § 210.) The trial court properly allowed the prosecutor to briefly inquire into defendants incarceration to impeach his testimony. We find the trial court did not abuse its discretion in permitting this limited questioning of defendant on cross-examination.
Sentencing Error in Failing To Award Full Credits
Defendant asserts he is entitled to 61 additional days of custody credit toward his life sentence. We concur.
Defendant was arrested on October 23, 2003. He was sentenced on November 9, 2005. He was entitled to 749 days of credit. He is awarded 61 more days of actual credit.
There are no presentence conduct credits for murder. (See Pen. Code, § 2933.2, subd. (c).)
VOGEL, Acting P.J.
I concur with regard to everything except the majoritys modification of the judgment vis-à-vis custody credits, to which I dissent.
Danny Washington was sentenced to state prison for a term of life without the possibility of parole. We have affirmed that judgment, which means Washington will spend the rest of his life in prison without the possibility of parole, thus mooting the custody credit issue. While I do not fault appellate counsel for raising the issue based on the possibility that we might have reversed all or part of the judgment on one of the substantive grounds raised on this appeal, I do fault my colleagues for addressing this moot point.
If we want people (criminals and the public) to believe that a sentence of life without the possibility of parole means just that, we shouldnt be making orders that suggest otherwise.
DISPOSITION
The judgment is modified to give defendant 61 additional days of custody credit. As so modified, the judgment is affirmed. The clerk of the court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections.
I concur:
ROTHSCHILD, J.