P. v.
Filed 7/2/12 P.
v. Kirkwood CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS DEWAYNE
KIRKWOOD,
Defendant and Appellant.
B230724
(Los Angeles County
Super. Ct. No.
YA075277)
APPEAL
from a judgment of the Superior Court of
County.
Victor L. Wright, Judge. Affirmed.
Dennis
L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael C. Keller and
David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
Thomas Dewayne Kirkwood challenges the
sentence he received following his conviction for
times, at close range. Despite the
deliberate nature of the killing, appellant is unhappy that he received the
upper term of 11 years, plus a 10-year firearm use enhancement. We affirm.
Appellant has not shown that the sentence is arbitrary or irrational.
FACTS
Appellant
Kirkwood is the stepfather of the victim in this case, Dwon Houston. On June 9, 2009, Houston responded
to his mother Frances’s request to visit her residence in Inglewood, where
she lived with appellant and their 11-year-old son. Houston was accompanied by his girlfriend Vonnika Pilcher. During the visit, Houston and Frances “got
into a big ol’ argument†about family matters.
Among other things, Frances
said “she should have aborted†Houston, who responded by calling his mother a “bitch.†The argument was heated, but not
physical. Pilcher had never seen Houston strike his
mother. Nevertheless, Frances
grabbed a 10-inch knife, came within four feet of Houston, and
threatened to kill him. Houston said, “Do
it. If you feel like you got to do that,
do it. I’m right here.†Pilcher jumped between them to break up the
argument. On his own volition, Houston turned and
walked outside.
Appellant
was not at home during the argument, but arrived shortly afterward. He encountered Houston and Pilcher outside
the apartment, as they were leaving.
Appellant asked Houston what was wrong. Houston replied,
“Your wife is trippin’ . . . . You know
how she is. She on one right now.†Pilcher got into Houston’s car, and
he was ready to drive away; however, Pilcher urged Houston to go back
and apologize to his mother. Pilcher
telephoned Frances from the car, and Frances
agreed to let them in. It was late at
night, so everyone went to sleep in Frances’s
apartment.
The following
morning, Houston asked Frances for forgiveness. She
rejected his apology. Appellant came out
of his bedroom and said to Houston, “What did I tell you about bucking up to my wife.†Pilcher took that to mean “getting in each
other’s face.†Houston replied,
“I’m a grown ass man,†meaning that he did not have to listen to anybody. Appellant shoved Houston; Houston shoved
back. They were yelling and
cussing. On the second round of mutual
shoving, appellant fell over the kitchen table and onto the floor. Appellant seemed dazed after hitting the
floor. Pilcher saw appellant stumble to
his bedroom and retrieve a long stick or pole.
Houston, Pilcher
and Frances left the apartment. Houston
was distraught, crying and pulling his hair, asking his mother why she chose
appellant over him. Appellant walked
outside and challenged Houston to a fight.
Houston replied that appellant was old, he was afraid of hurting
appellant, and he did not want to fight.
Houston walked away from appellant and reentered the apartment. Appellant went to his car in the parking lot.
Frances
instructed Pilcher to go inside, lock the doors, and not let Houston out. Pilcher complied. Houston inquired why Pilcher had locked the
doors, then said, “Oh, he’s going to get a gun.†A minute or two later, Pilcher heard keys
jingle in the lock to the apartment door.
She looked out a window, and said to Houston, “You’re right, baby. He do got a gun.†Houston was unarmed.
For
reasons she could not explain, Pilcher opened the door. She testified, “As soon as I opened the door,
it was just gunshots.†Appellant fired
through the screen, hitting Houston, who stood behind Pilcher. Houston said, “Baby, I’m hit.†Pilcher squeezed by appellant and ran
outside, screaming for help. As she
escaped, she heard a hail of gunshots behind her, “boom, boom, boom, boom,
boom.†Moments later, Houston came toward
her, limping and bleeding, and collapsed on the ground. Pilcher tore off Houston’s T-shirt and saw
several bullet holes, including one in Houston’s chest.
There was no
shortage of eyewitnesses to this crime.
Javon
Davis, a neighbor, confirmed that appellant lived in the apartment where the
shooting occurred. Davis had previously
seen Houston (whom he believed to be 20 or 21 years old) at the apartment. Davis heard Houston arguing with Frances on
the night of June 9, 2009: this was the
third occasion he had heard them in a dispute.
He did not hear appellant’s voice during the argument. The next morning, Davis heard Frances’s voice
echoing in the courtyard, instructing Houston to go inside and lock the
door. Davis looked out his window and
saw Houston enter the apartment. He then
saw appellant walk out of the carport and approach the apartment, carrying a
black handgun.
It took
appellant about 10 seconds to walk from the parking lot to the door of the
apartment. He did not say anything. The door to the apartment opened, and Houston
was standing there. Houston did not say
anything. “As soon as the door opened,â€
appellant raised the gun and fired several shots. Appellant was only one foot away from the
victim. Houston said, “I’m shot,†and
ran from the apartment, but did not get far.
Appellant continued to fire the weapon two or three more times at
Houston’s back as Houston fled. Houston
fell to the ground. Davis was shocked
and crying. He did not go outside.
Another witness
was Richard Nieves, who was visiting relatives at the apartment complex. Nieves was acquainted with Frances and
appellant, and had spoken to Houston on numerous occasions as well. Although appellant and Houston had argued in
the past, it was mutual anger and Houston did not appear to be bullying
appellant. Usually, Houston argued with
Frances, not appellant, and the arguments were never physical in nature.
On the morning
of June 10, Nieves was carrying trash from his relative’s unit to a dumpster
next to the parking lot. He heard “some
arguing going on. It was normal. No big
deal.†The argument was between Frances
and a male, but Nieves could not hear appellant’s voice. While taking a second load of trash
downstairs, Nieves saw two people wrestling inside of Frances’s unit, and heard
furniture moving and a thud, but he could not see who was involved. As he returned from the dumpster, Nieves saw
appellant, Frances, and Houston outside:
“they were all huffing and puffing,†Frances was yelling, and appellant
“was walking around like in a daze,†holding his head, which appeared to be
bleeding. Appellant seemed to have
suffered a concussion, because his eyes were glazed, he did not appear to
recognize Nieves, and did not respond to Nieve’s expressions of concern for
appellant’s well-being.
Houston was
agitated, upset, and crying, and Frances was trying to calm him. Because Houston was crying, Nieves could tell
that “he didn’t want to fight no more.â€
Nieves saw appellant wobble toward the carport, still holding his head. When Frances began to say, repeatedly, “Oh
no. Oh, my God,†Nieves quickly grabbed
a group of children who were playing in the courtyard and hustled them indoors
“because what was about to happen wasn’t going to be good.†Houston went back into Frances’s apartment
with his girlfriend.
Appellant “came
through the carport door and he had a gun in his hand,†which was black in
color. Nieves froze, and appellant
looked at him with glazed eyes while lifting up the firearm and panning it
around. Appellant pointed the gun at
Nieves, then walked quickly to the apartment door and “just went, ‘boom, boom,
boom.’†There were at least two shots
within one second. Someone yelled, “Oh,
my god.†Nieves ran away. Moments later, he heard three or four more
gunshots. When the gunfire stopped,
Nieves peeked out and saw the victim stagger from appellant’s apartment,
bleeding from his chest. Houston said to
Nieves’ relative, “Papito, he shot me in the heart. I’m dying.
And he just like rolled back and fell backwards.â€
Nieves tried to
perform CPR, but there a red paste coming from the victim’s mouth. Nieves could see that Houston was shot in
multiple places. As Nieves and his
family assisted Houston, appellant walked out of the apartment carrying a
gun. This caused Nieves and his family
to run into their unit and close the door.
Only Houston’s girlfriend stayed next to the dying man.
A construction
worker at the complex, Russell Higgins, also testified about the shooting. On the morning of June 10, 2009, Higgins observed
a balding man around 40 years old with a man between 17 and 20. They were “posturing as though there was some
kind of confrontation going on,†but there was no physical contact between
them.
title="">[1] Higgins (who was 30 feet
away) was unable to identify appellant as one of the participants with 100
percent certainty. He could not hear
their conversation, but it appeared that a female was trying to keep the two
men apart. In less than a minute, the
woman escorted the younger man to a nearby doorway, and the older man went to
the carport.
Within 10 to 15
seconds, the older man reappeared and walked in a crouched and deliberate
manner directly to the doorway that the younger man and the woman had
entered. The man was walking without
difficulty. Higgins lost sight of the
man when he walked up to the doorway, but within seconds he heard a firearm
discharge five or six times. After the
gunshots, Higgins saw the older man, looking frantic or panicked, circle around
then jump over a cinder block or cement wall and disappear.
The autopsy of
Dwon Houston showed that he was shot three times: once in the upper chest, with the bullet
striking the lung and lodging in his back; once in the middle of his back, with
the bullet striking his kidney and lodging in his hip; and once in the back of
the left thigh, which exited through the front of the
destroyed the lung and kidney, causing massive bleeding. Houston died of these wounds.
The police found
two bullet casings near the doorway outside the apartment and three casings
inside the apartment. The casings
matched a .38-caliber semiautomatic handgun found under a mattress in
appellant’s bedroom. There was also a
wooden dowel that could be used to hang clothing in a closet. Bullet holes in the outer security door and
in the wooden door showed that at least one shot was fired from outside the
apartment. The gun used in the crime
does not fire bullets continuously when the trigger is pulled: the trigger must be pulled repeatedly to fire
multiple shots.
Appellant
testified in his defense. He described
an argumentative relationship between Frances and Houston. Houston was upset because Frances did not
raise him and did not spend much time with him.
(He was raised by his grandmother.)
Appellant and Frances married when Houston was three years old, and
although appellant gave Houston advice, he did not act as a father figure to
Houston. Houston began acting
disrespectfully when he became a teenager and started to associate with
gangsters. Appellant and Houston argued
every time they saw each other, about once a month, and got into a fistfight a
few months before the shooting. On one
occasion in 2008, Houston brandished a gun, but did not point it at
appellant. Appellant did not call the
police.
Appellant
arrived home in the wee hours of June 10, 2009, after his shift as a hotel
valet parking supervisor, and saw Houston and Pilcher outside his
apartment. Houston was very upset and
stated that he had argued with his mother.
Appellant told Houston to leave.
Inside the apartment, Frances was agitated and their 11-year-old son
looked scared. Appellant was unaware
when he fell asleep that Frances let Houston and Pilcher in and allowed them to
spend the night.
In the morning,
appellant was awakened by an argument between Frances and Houston. Hearing the argument intensify, appellant
arose and told Houston to leave.
Appellant asked Houston why he “beat[ ] up on women all the time,†which
caused Houston to become angry and start bumping appellant with his body. After more angry words, they began shoving
each other and finally “he clocked me,†according to appellant. Appellant was knocked over and his head hit
the floor. Afterward, he had difficulty
standing because he was dizzy, weak and his eyes were rolling back. When Houston came at him again, appellant
grabbed a stick to protect himself. He
was scared. Houston said, “Oh, you have
a stick. I’m going to get you now,â€
whereupon appellant dropped the stick and ran to his car, to escape
Houston. Appellant did not see any
weapons on Houston.
According to
appellant, Houston still wanted to fight, but either Frances or Pilcher
convinced him to walk away. Appellant
grabbed a gun from the trunk of his car, intending to go back to the house with
it. He had no difficulty loading and
cocking the weapon. Appellant walked up
to the door and started to open it with his key when Pilcher and Houston jumped
out from behind the door, startling appellant.
Appellant does not recall the gun going off and piercing the screen
door.
Appellant claims
Houston “came at me again and I fired at him.â€
He does not remember how many times he fired, and denies shooting the
fleeing victim in the back. Appellant
put the gun under his mattress, called 911 and announced that he had just shot
his stepson. Although appellant could
see that Houston was lying on the ground bleeding, he did not approach to check
on his condition. When the police
arrived, appellant became scared and left.
He wandered around, trying to figure out what had just happened, then
walked into a police station and turned himself in. He did not intend to kill Houston.
Appellant was
charged with murder and carrying a loaded handgun. He pleaded no contest to the charge of
carrying a loaded weapon. A jury found
appellant guilty of the lesser included offense of voluntary manslaughter, and
found true the allegation that a handgun was used to commit the offense. The court sentenced appellant to 21 years in
state prison. This represents the high
term of 11 years for manslaughter plus 10 years for the gun use
enhancement. The court selected the high
term “based upon the seriousness of the incident.†An eight-month sentence for carrying a loaded
firearm runs concurrently with the principal term.
DISCUSSION
Appellant
argues that “the trial court irrationally imposed the maximum sentence.†“‘The burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing objectives,
and its discretionary determination to impose a particular sentence will not be
set aside on review.’†(
14 Cal.4th 968, 977-978.) “[T]he
existence of a single aggravating circumstance is legally sufficient to make
the defendant eligible for the upper term.â€
(People v. Black (2007) 41
Cal.4th 799, 813; People v. Towne (2008)
44 Cal.4th 63, 75.) An appellate court
may not substitute its judgment for that of the trial court, even if reasonable
people might disagree with the sentence.
(People v. Carmony (2004) 33
Cal.4th 367, 377.)
Appellant
cited mitigating factors in his favor.
He listed his minimal criminal history; his lengthy employment record;
his mistaken belief that he was defending himself; his acknowledgement of
wrongdoing at an early stage of the criminal process; the victim’s aggressive
behavior; and the unlikelihood that appellant was apt to commit the same crime
again. (Cal. Rules of Court, rule
4.423.) Appellant asked for probation,
or the low term of three years.
The prosecutor
countered with aggravating factors. In
particular, the prosecutor noted that appellant’s conduct was “deliberate,
extreme, and egregious,†because appellant had to fetch the gun from his car,
load it, then return to the apartment to shoot the victim multiple times, at
close range. The court stated that it
reviewed the sentencing memoranda and chose to rely on the aggravating factors
listed in the prosecutor’s sentencing brief.
“Because the trial court expressly stated on the record that it received
and considered both of [the sentencing memoranda], we presume the court did, in
fact, consider those circumstances even though it did not expressly restate,
recite, or otherwise refer to each one. . . .
[U]nless the record affirmatively shows otherwise, a trial court is
deemed to have considered all relevant criteria in deciding whether to grant or
deny probation or in making any other discretionary sentencing choice.†(People
v. Weaver (2007) 149 Cal.App.4th 1301, 1318.)
It
is true that the victim in this case is not a candidate for sainthood. He was, by appellant’s own description, a
hurt, angry and confused young man, stung by his mother’s life-long rejection
of him. Houston may have joined gangs
for a sense of belonging, while continuing to seek his mother’s affection and
attention. Far from accepting her son,
Frances told him “she should have aborted†him.
Unsurprisingly, Houston did not react well to his mother’s cruel words. Frances then threatened her son with a
10-inch knife, and refused to accept his apologies for calling her bad
names. Appellant was well aware of this
long-standing tension in his household, having had numerous run-ins with
Houston over the years.
Whatever
the victim’s shortcomings were, he is not on trial in this case. Appellant is the one on trial, and his
conduct surely deserves the maximum penalty.
Instead of behaving in a reasoned manner befitting a senior family
member, appellant acted on years of frustration by getting rid of the source of
his annoyance, repeatedly shooting the unarmed victim at close range. Multiple eyewitnesses stated that the victim
was crying and distraught before the shooting, not menacing appellant. Houston had voluntarily de-escalated a tense
situation by walking away from appellant and into his mother’s apartment. Appellant admitted during his testimony that
he knew Houston was unarmed.
Though
he denied doing so, appellant fired at Houston through the metal security
screen, and there was an eyewitness and a bullet hole in the screen to prove
it. Houston could not have been
“lunging†at appellant (as appellant claims) if he was behind a metal
door. Appellant did not give the unarmed
Houston an opportunity to leave before opening fire, according to all of the
eyewitnesses.
Most
egregiously, appellant pursued and shot Houston as the young man fled, showing
a high degree of violence, cruelty, viciousness and callousness. (Cal. Rules of Court, rule 4.421(a)(1).) Appellant denied shooting Houston in the
back. The evidence shows that appellant
is lying. Neighbor Javon Davis saw
appellant walk straight up to the apartment door and begin shooting “as soon as
the door opened.†Houston said, “I’m
shot,†and ran from the apartment.
Appellant repeatedly shot the badly wounded victim as he tried to
escape, depressing the trigger five different times for each bullet. The coroner’s testimony establishes that
Houston was shot once in the chest, once in the back, and once in the back of
his thigh. This was a retribution
killing of an unarmed victim, not a killing in self-defense.
There
was mixed testimony about whether appellant was fully cognizant, having hit his
head while tussling with Houston inside the apartment. Javon Davis and construction worker Russell
Higgins did not perceive any difficulty in appellant’s movements, while
neighbor Richard Nieves thought that appellant seemed dazed. Regardless of the conflict, the evidence
shows (and appellant admitted at trial) that he had sufficient presence of mind
to walk to his car, retrieve his weapon from the trunk, load it, cock the
weapon to chamber a round, walk back to the apartment, and commence shooting
when the door opened. Appellant’s
deliberate acts show that the crime was carried out in a manner that indicated
planning. (Cal. Rules of Court, rule
4.421(a)(8).)
In
sum, the trial court’s sentencing decision is neither irrational nor arbitrary,
and is fully supported by the testimony at trial, considering the factors in
aggravation and mitigation. Appellant
did not carry his burden of establishing that the trial court violated his
constitutional rights. As a result, the
sentence will not be disturbed on appeal.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
DOI
TODD, J.
ASHMANN-GERST,
J.
name="_ftn1" title="">[1] Appellant was 40
years old at the time of the shooting.
He is six feet, one inch tall and weighs 160 pounds. Houston was six feet, two or three inches
tall and weighed close to 200 pounds.
