P. v.
Filed 12/5/13 P. v. Greenwood CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
SIDIKIBA GREENWOOD
JR.,
Defendant
and Appellant.
E055262
(Super.Ct.No.
FSB901921)
APPEAL
from the Superior Court
of
Bernardino County. Duke
D. Rouse, Judge. (Retired judge of the
San Bernardino Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Mark
A. Hart, 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, Senior Assistant Attorney General, Melissa Mandel and Scott C. Taylor,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
Sidikiba Greenwood Jr. shot Hubert
Williams three times in the chest during an altercation that involved defendant’s
mother and a woman that was with Williams.
Williams died as a result of the
Defendant was convicted
of willful, premeditated and deliberate first degree murder (Pen. Code, § 187,
subd. (a)).
name="_ftnref1" title="">[1] The jury also found true the allegations that
he discharged a firearm causing death during the commission of murder (§ 12022.53,
subd. (d)); he personally discharged a firearm (§ 12022.53, subd. (c)); and that
he personally used a firearm (§ 12022.53, subd. (b)). Defendant was sentenced to 25 years to life
for the first degree murder, plus 25 years to life for the section 12022.53,
subdivision (d) enhancement, for a total state
prison term of 50 years to life.
Defendant
now contends on appeal as follows:
1. The trial court erred by failing to
voluntary manslaughter based on a sudden quarrel or heat of passion, and he
received ineffective assistance of counsel as a result of his counsel’s failure
to request an instruction on provocation to reduce the degree of murder.
2. The prosecutor committed a
report prior to trial.
3. An additional term of 25 years to life
for the enhancement pursuant to section 12022.53, subdivision (d) violates the
federal constitutional principles of double jeopardy.
We
affirm the judgment in its entirety.
I
FACTUAL BACKGROUND
A. People’s
Case-in-Chief
On May 9, 2009, defendant’s mother, Latricia
“Trish†Woods, had a party at her apartment in the Terrace Village Apartments
located in San Bernardino. Defendant lived with Trish. Abram Garnica and his sister Lydia
also lived at the Terrace Village Apartments.
On that day, they had heard the party at Trish’s apartment, which lasted
most of the day.
At around 11:00 p.m., Shawaynea Smith, Myiecha Anderson,
Trish’s party. They planned to drop Smith
off at the party. Smith had dated
Trish’s husband in 2002, while Trish was in custody. Trish’s daughter claimed that during this
time Smith hit her.
Smith asked
Williams, who was driving, to wait for her to see if she could get a ride
home. Defendant, Danielle Benford and
some other women were sitting in a car nearby in the parking lot. Benford offered to give Smith a ride home.
Smith got in Benford’s
car. Trish approached the car where
Smith was sitting with Benford and defendant.
Smith and Trish began to argue.
Trish told Smith I’m “going to whip your ass, bitch.†Smith started to walk back to Williams’s car;
defendant and the others walked with Trish, who followed Smith. Trish tried to hit Smith and Smith tried to
hit her back. Trish eventually hit Smith
in the face.
Anderson got out
of the car and helped Smith get back in Williams’s car. They got back in the car but the windows were
down. Trish stood by the passenger’s
side door and threatened Smith.
Defendant and the other women were behind Trish yelling and
screaming. Defendant said something to
someone who was in the car.
At around 11:00 or
11:30 p.m., Abram and Lydia heard the commotion outside and saw two females
fighting. One of them threw a boot at
the other. The females were yelling profanity
at each other.
Williams said to
defendant, “Don’t disrespect my girlfriend.â€
Defendant told him it was a “family thing†and to stay out of it. Williams said “I got something for you.†Williams got out of the car and slapped
something that sounded like metal on top of the car.
Williams walked
toward Trish, defendant and the other women.
Williams had nothing in his hands.
Defendant pulled a gun from his waistband and shot Williams three times
in the chest. Lydia had gone inside to
call the police about the fight. While
inside, she heard three gunshots. Abram
observed that Williams’s hands were at his side and did not see a knife or anything
in his hands when he was shot. Abram
estimated they were about three feet apart when defendant shot Williams.
Abram went inside
and grabbed the phone from Lydia. He
told the 911 operator that the shooter was an African-American “kid†who was 18
or 19 years old. Abram said that the
shooter lived in the complex. Abram told
the operator he did not want to get involved.
Abram told Lydia to hang up. Everyone
ran from the scene. Anderson and Carroll
put Williams in the car and drove him to the hospital.
A pool of blood
was found in the carport area. Seven
feet from the pool of blood, a knife was found.
Nine-millimeter cartridge casings were also found. There was smeared blood on the knife which
was consistent with the knife having been flat on the ground and the blood rolled
under the knife. No one at the apartment
complex would talk to police. An officer
was finally able to contact Lydia. Abram
was initially uncooperative but then admitted he had seen the shooting. He told the police that the shooter lived in
apartment 137, Trish’s apartment.
No one was in
Trish’s apartment and it was searched. A
jar containing casings, a box of ammunition and a pile of clothing containing
two live nine-millimeter rounds was found.
Abram told Lydia
she should not testify and he did not want to testify. Abram purposefully chose someone else from
the six-pack photographic lineup prior to trial so he would not have to
testify. However, at trial, he was
one-hundred percent sure defendant was the shooter. Lydia had seen defendant at the apartment
complex but could not identify him as the male in the group just prior to the
shooting. Lydia never saw anyone holding
a knife.
One week after the
incident, someone drove through the Terrace Village complex and told everyone
that if they said anything about the shooting, there would be retaliation. Abram and Lydia were so scared they moved out
of the state.
Prior to trial,
Anderson identified defendant from a second six-pack photographic lineup that
she was shown; she had been uncertain of her identification in a first
lineup. She only testified defendant was
in the crowd; she claimed that she never saw the shooter. Anderson did not identify defendant in court.
Smith initially
told police she did not see the shooter’s face.
Later, in an interview, she described someone in the crowd as a “little
short boy;†who she thought was Trish’s son.
At trial, Smith identified the shooter as defendant and that he was
Trish’s son. She lied to the police
because she was scared. Defendant’s
family was a member of the Pimps, Players, Hustlers and Gangsters (“PPHGâ€)
gang. Smith had heard they were a
violent gang and that they committed murders.
Smith got rid of her cellular telephone because she had been receiving
threatening phone calls since the shooting.
Smith was being relocated after her testimony.
An autopsy on
Williams revealed gunshot entry wounds on his left chest, left pelvis and right
thigh. He had exit wounds on his right
and left buttocks. No bullets were in
his body. He died as a result of the
gunshot wounds. The shooter was at least
three feet away when he fired.
Defendant, who was
17 years old at the time of the shooting, surrendered to police on June 4,
2011.
San Bernardino
Police Sergeant Travis Walker was an expert on criminal street gangs. He explained that criminal street gangs use
intimidation to keep witnesses from reporting crimes. Witnesses who choose to testify could be
subject to retaliation, including being murdered. PPHG was a criminal street gang that uses
witness intimidation to keep witnesses from testifying in court against members
of the gang.
B. Defense
Trish’s daughter,
Kayshiauna, lived in the apartment with Trish, defendant, and their sisters and
brothers. Defendant only stayed in the
apartment three days a week. Defendant
was not at the party at the apartment on May 9.
Kayshiauna claimed
that Smith punched Trish in the face.
Trish punched Smith and pushed her back to her car. A man got out of the car and yelled, “I’m
fixing to slide [n-word]s and bitches.â€
Kayshiauna heard gunshots but did not see the shooter. It was not defendant. For the first time at trial, she said she saw
two men standing nearby that she did not know.
Defendant’s other sister, Shakiba, also testified defendant was not at
the apartment that night.
Smith had dated
Kayshiauna’s and Shakiba’s dad while Trish was in jail. She had “whooped†Kayshiauna on the butt one
time for spilling juice on Smith’s carpet.
Defendant had been
at the apartment the day before the shooting.
On May 8, a probation officer had come to the apartment to conduct a
probation search. Defendant jumped out a
window and fled. Kayshiauna had not seen
defendant since that day.
According to Benford, Smith
got into her car and asked for a ride home. Trish and Smith then started arguing and Smith
got out of the car. Smith punched Trish
in the face and Trish punched her back.
Smith yelled to the people she came with that she was being
“jumped.†One of the women came and got
Smith, and they got back in their car.
The driver got out of the car and said he was going to start “knocking
out†or “sliding†some “[n-word]s†and “bitches.†A man who was standing nearby, wearing a
black sweater, fired a gun at the driver.
Benford never saw defendant that night.
Defendant’s family moved in with Benford after the shooting.
II
VOLUNTARY MANSLAUGHTER AND PROVOCATION INSTRUCTIONS
Defendant actually
makes two claims of instructional error.
First, he contends that the jury should have been instructed on heat of
passion or sudden quarrel voluntary manslaughter. Second, he claims he received ineffective
assistance of trial counsel due to his counsel’s failure to request an
instruction on provocation (CALCRIM No. 522) to reduce the degree of murder.
A. Additional
Factual Background
The parties agreed
that self-defense instructions should
be given. The jury was instructed that
defendant was charged with murder and that manslaughter was a lesser offense of
murder. They were then instructed on
murder based on express and implied malice.
They were instructed that in order to find defendant guilty of first
degree murder, they had to find he committed the murder with premeditation and
deliberation. The jury was also
instructed that defendant was not guilty if he acted in reasonable
self-defense, and was guilty only of voluntary manslaughter if he acted in
unreasonable self-defense.
The People argued
in closing that defendant was the aggressor so he could not claim self-defense.
He was yelling into the car and telling
Williams it was a family matter. Further,
defendant shot Williams from at least four feet away. Defendant’s counsel argued exclusively that
defendant was not present during the shooting.
B. Analysis
“In criminal cases,
even absent a request, a trial court must instruct on the general principles of
law relevant to the issues the evidence raises.
[Citation.] ‘“That obligation has
been held to include giving instructions on lesser included offenses when the
evidence raises a question as to whether all of the elements of the charged
offense were present [citation], but not when there is no evidence that the
offense was less than that charged.
[Citations.]â€â€™ [Citation.] ‘[T]he existence of “any evidence, no matter how
weak†will not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant is guilty only
of the lesser offense is “substantial enough to merit consideration†by the
jury. [Citations.]’ [Citation.]â€
(People v. Taylor (2010) 48
Cal.4th 574, 623.)
“Voluntary
manslaughter is a lesser included offense of murder. [Citation.]†(People
v. Booker (2011) 51 Cal.4th 141, 181.) “Voluntary manslaughter is ‘the unlawful
killing of a human being without malice’ ‘upon a sudden quarrel or heat of
passion.’ [Citation.] An unlawful killing is voluntary manslaughter
only ‘if the killer's reason was actually obscured as the result of a strong
passion aroused by a “provocation†sufficient to cause an “‘ordinary [person]
of average disposition . . . to act rashly or without due deliberation and
reflection, and from this passion rather than from judgment.’†[Citations.]’ [Citation.] ‘The provocation must be such that an average,
sober person would be so inflamed that he or she would lose reason and
judgment. Adequate provocation . . .
must be affirmatively demonstrated.’ [Citation.]â€
(People
v. Thomas (2012) 53 Cal.4th 771, 813.)
“[T]o justify the giving of voluntary
manslaughter instructions it is not enough that there is some evidence of heat of passion.
[Citation.] There must be
‘evidence substantial enough to merit
consideration.’ [Citations.]†(People
v. Williams (1995) 40 Cal.App.4th 446, 454.)
Here, there was no
substantial evidence that Williams engaged in any provocation “sufficient to
cause an ordinary [person] of average disposition . . . [to] be so inflamed that
he or she would lose reason and judgment.â€
(People v. Thomas, supra, 53
Cal.4th at p. 813.) Williams exited the
car and was overheard saying not to disrespect his girlfriend. Defendant responded that this was a family
matter and that he should stay out of it.
Williams then placed something on top of his car and said he had
something for defendant. As Williams
walked toward defendant, defendant immediately shot him three times.
The evidence
establishes that defendant calmly shot at Williams. The brief exchange between defendant and
Williams was not described as explosive or angry. No ordinary person of average disposition would
shoot at another based on this brief exchange. This evidence supported the self defense
instructions but there was not substantial evidence of provocation to support
the instruction. The trial court did not
have a sua sponte duty to instruct the jury on heat of passion or sudden
quarrel voluntary manslaughter.
Defendant also
claims he received ineffective assistance of counsel due to his counsel’s
failure to request an instruction on provocation to reduce the degree of
murder.
CALCRIM No. 522,
as it relates to second degree murder, provides as follows: “Provocation may reduce a murder from first
degree to second degree. . . . 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.†CALCRIM
No. 522 is a “pinpoint†instruction and is only required to be given upon
request of the defendant. (
Cal.App.4th 1327, 1333.)
Recognizing that
his counsel did not request the instruction, defendant contends his counsel was
ineffective for failing to request the instruction. To establish a denial of the right to
effective assistance of counsel, a defendant must show (1) his counsel’s
performance was below an objective standard of reasonableness under prevailing
professional norms, and (2) the deficient performance prejudiced the defendant.
(Strickland
v. Washington (1984) 466 U.S. 668, 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 217.) We will reverse on the ground of ineffective
assistance of counsel “‘only if the record on appeal affirmatively discloses
that counsel had no rational tactical purpose for his act or omission.’†(People
v. Zapien (1993) 4 Cal.4th 929, 980.)
Provocation
operates to make an intentional killing second degree murder by negating the
premeditation and deliberation necessary for first degree murder. (People
v. Hernandez, supra, 183 Cal.App.4th at p. 1332.) Provocation can be used to show the defendant
“formed the intent to kill as a direct response to the provocation and . . .
acted immediately.†(
307, 329.) In other words, “provocation
(the arousal of emotions) can give rise to a rash, impulsive decision, and this
in turn shows no premeditation and deliberation.†(People
v. Hernandez, supra, at p. 1334.)
The defense theory
here was that defendant was not present at the time of the shooting. Moreover, the jury was instructed on self-defense. Either theory was based on defendant not
having the intent to kill because either (1) he was not present; or (2) he
deliberately shot at Williams to protect himself and/or the other people with
him. Instructing the jury on provocation
would have allowed the jury to find that defendant formed the intent to kill
without premeditation and deliberation, which would have been inconsistent with
the defense theories and would have undermined the attempt to secure an
acquittal for defendant. The failure to
request a provocation instruction could have been a deliberate and reasonable
tactical choice by counsel. For this
reason, defendant has not shown that the failure to request the instruction
amounted to ineffective assistance of counsel.
Moreover, any “[e]rror
in failing to instruct the jury on a lesser included offense is harmless when
the jury necessarily decides the factual questions posed by the omitted
instructions adversely to defendant under other properly given instructions. [Citation.]†(People
v. Koontz (2002) 27 Cal.4th 1041, 1085-1086.) The jury specifically found that defendant
committed the murder of Williams with deliberation and premeditation. They were instructed that in order to find
premeditation and deliberation that “[a] decision to kill made rashly,
impulsively, or without careful consideration is not deliberate and
premeditated.†“This state of mind,
involving planning and deliberate action, is manifestly inconsistent with
having acted under the heat of passion . . . .†(People v. Wharton (1991) 53 Cal.3d 522, 572.) Therefore, although the jury was not
instructed on heat of passion necessary to reduce the murder to a voluntary
manslaughter, defendant suffered no resulting prejudice based on the given
instructions as a whole.
For the same
reason, defendant’s ineffective assistance of counsel claim fails. The evidence of deliberation and
premeditation was strong. After a brief
exchange of words, Williams walked toward defendant with nothing in his
hand. Defendant calmly pulled a gun from
his waistband and shot Williams three times.
The jury necessarily concluded that such killing was not done rashly or
impulsively. Substantial evidence
supported that defendant committed willful, premeditated and deliberate first
degree murder and any lesser instructions would not have changed the verdict.
III
BRADY VIOLATION
Defendant argues that the
prosecution committed misconduct by violating the duty articulated in
is favorable to the defense.
A. Additional Factual
Background
Defendant filed a new trial
motion on the grounds that the People had violated Brady by failing to disclose an interview of Sandra Pliner, who was
the manager of the Terrace Village Apartments in May 2009. According to a police report given to
defendant’s counsel at the time of sentencing, at the request of the deputy
district attorney who tried the case, Pliner was interviewed on February 17,
2009, which was two years prior to the trial.
She disclosed that the location of the knife was in a parking space that
was assigned to Tracie Sterling.
Sterling was not interviewed at that time.
Based on this
information, a defense investigator interviewed Sterling on October 12,
2011. She denied that the knife belonged
to her although she refused to sign a written declaration. Defendant’s counsel argued that this evidence
bolstered that the knife belonged to Williams and may have emphasized the
self-defense claim instead of an alibi defense.
The People filed a
response. The People argued this was not
exculpatory evidence because Sterling did not witness the shooting, and had no
knowledge of who possessed the knife during the shooting, or if at all. Moreover, the results of the trial would not
have been different had the evidence been disclosed. Finally, defendant’s counsel was given Pliner’s
name, the parking space number and a photograph of the crime scene prior to
trial. As such, defendant did not use
reasonable diligence to locate the evidence.
Defendant’s response reiterated that the self-defense claim would have
been pursued had the evidence been disclosed.
The hearing on the
new trial motion was conducted on December 16, 2011. The trial court noted that it had read the
written motion, the opposition to the motion, and the reply to the motion.
The trial court
ruled: “First, my first finding is I
don’t find any Brady violations. And in commenting on the strategy of defense
counsel, in terms of arguments, there isn’t a case that comes to trial where
defense counsel doesn’t - - has to make decisions on strategy. And it appears to me that evidence was
available to both sides that would have led to this very limited area with
respect to the knife and as it went, potentially, to self-defense. The evidence was all presented to the
jury. The complaint basically is I
didn’t get to argue it. [¶] Argument isn’t evidence and the evidence of
the knife, the evidence of the actions of the decedent, and his attitude and
his statements and the distance and the size, all of that was presented to the
jury. They had it. The evidence was there. Whether counsel argued it or not, that’s not
evidence. And the standard seems to be a
reasonable probability of a different result.
I can’t find there’s a reasonable probability of a different result. [¶]
And based on upon that, and looking at all the evidence, and having
found that there’s no Brady
violation, the motion for new trial is denied.â€
B. Analysis
“In Brady, the United States Supreme Court held ‘that the suppression
by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.’ [Citation.]
The high court has extended the prosecutor’s duty to encompass the
disclosure of material evidence. . . .â€
(People v. Hoyos (2007) 41
Cal.4th 872, 917-918, overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610.) “Such evidence is material ‘only if there is
a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’ ‘A “reasonable probability†is a probability
sufficient to undermine confidence in the outcome.’ [Citation.] ‘“[T]he reviewing court may consider directly
any adverse effect that the prosecutor's failure to respond may have had on the
preparation or presentation of the defendant’s case.â€â€™ [Citations.]â€
(Hoyos, at p. 918.) A defendant has the burden of showing
materiality. (Ibid.)
“There are three
components of a true Brady violation:
The evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.†(Strickler
v. Greene (1999) 527 U.S. 263, 281-282.)
“On appeal, a
trial court’s ruling on a motion for new trial is reviewed under a deferential
abuse of discretion standard.
[Citation.] Its ruling will not
be disturbed unless defendant establishes “a ‘manifest and unmistakable abuse
of discretion.â€â€™ [Citation.] Here, the asserted abuse of discretion is the
asserted failure of the trial court to recognize violations of defendant’s
constitutional rights. Our constitutional
analysis below therefore also addresses the abuse of discretion issue.†(People
v. Hoyos, supra, 41 Cal.4th at p. 917, fn. 27.)
We need only
address whether the evidence was favorable to defendant in resolving
defendant’s Brady claim (and need not
determine if defendant exercised due diligence in obtaining the evidence or the
People willfully withheld the evidence).
Here, the evidence at trial established that Williams slapped something
sounding like metal on the hood of his car.
There was no dispute that Williams had nothing in his hand when he
walked toward defendant.
The fact that a
knife was found in a nearby parking space did nothing to bolster defendant’s
self-defense claim. No one saw a knife in
anyone’s hands that night. It was
reasonable to presume it was on the ground prior to the fight. Even if it belonged to Williams, he did not
have it in his hands when he approached defendant. The fact that the knife did not belong to
Sterling would not have established that Williams possessed the knife, and
threatened defendant to the point it justified him shooting Williams three
times in the chest. The fact that the
person who used the parking space where the knife was found did not own the
knife had absolutely no impact on the evidence of self-defense. Since defendant cannot establish the evidence
was material, he cannot prove a Brady violation. The trial court properly denied his
IV
CONSECUTIVE
SENTENCE FOR SECTION 12022.53, SUBDIVSION (D) ENHANCEMENT
Defendant
contends that the imposition of a section 12022.53, subdivision (d) firearms
enhancement along with a sentence for first degree murder violates the federal
constitutional principles of double
jeopardy. Defendant was sentenced to
25 years to life for the first degree murder of Williams. In addition, the trial court imposed a
consecutive, 25-years-to-life sentence on the section 12022.53, subdivision (d)
conviction.
Section 12022.53,
subdivision (d) provides a sentence enhancement when a person uses a firearm in
the commission of a specified felony and proximately causes death. Murder is one of the listed felonies. Defendant argues that the double jeopardy
protection against multiple punishments for the same act is violated when the
enhancement is applied to murder cases because the act which causes death is
used both as an element of the offense and an enhancement.
Defendant
concedes, however, that our Supreme Court has recently rejected this argument
and held that double-jeopardy principles are not applicable under the
circumstances here, but defendant believes these cases were wrongly decided. (People
v. Izaguirre (2007) 42 Cal.4th 126, 130-134; People v. Sloan (2007) 42 Cal.4th 110, 115-124.) We are, of course, bound by the decisions of
our Supreme Court and we therefore must reject defendant’s argument. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
V
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.
J.
CODRINGTON
J.
further statutory references are to the Penal Code unless otherwise indicated.
