P. v. Lennan

Filed 1/27/10 P. v. Lennan CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

A jury found Bill Lennan guilty of first degree murder (Pen. Code,  187, subd. (a)), conspiracy to commit first degree murder and burglary ( 182, subd. (a)), and willful, deliberate and premeditated attempted murder ( 164/187, subd. (a)). The jury also found true that a principal used a firearm ( 12022.53, subds. (b) & (e)(1)), a principal discharged a firearm ( 12022.53, subds. (c) & (e)(1)), that the discharged firearm caused great bodily injury ( 12022.53, subds. (d) & (e)(1)), and that the crimes were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)).[1] We reverse count 1(first degree murder) and affirm and remand for resentencing on count 2 (conspiracy to commit first degree murder and burglary) and count 3 (attempted murder). The judgment is otherwise affirmed.

FACTS

A man named Malcom and his girlfriend Trina rented an apartment on LaSalle Street. The apartment manager said there was always a lot of traffic coming in and out of the apartment. He believed it was being used to sell drugs.

On June 28, 2005, Jiovanni Jones and James Lane were in the apartment. Through one of the apartment's security cameras, Jones saw three men walking around the outside of the apartment. Jones went outside to see what the men were doing. He saw the men get into a driver-occupied navy blue Suburban, and drive away. Jones returned to the apartment.

A short time later, Jones and Lane set out on foot to a nearby gas station to buy a cigar. As they walked, the Suburban slowly passed by. Shortly thereafter, Jones saw the three men he had seen on the surveillance camera walking toward him and Lane. The men looked like they were looking for trouble. Jones suggested to Lane that they turn around to return to the apartment. As they turned, one of the three men said, "Hey." Jones heard a shot and saw Lane fall. Jones ran back to the apartment as fast as he could. As he ran, he heard two more shots.

Jones's brother was in the apartment. Jones told him they had to leave because Lane had been shot. Jones got a ride to Lane's wife's work place. Jones left his car at the apartment.

Jorge Melendez was nearby in his car at the time of the shooting. He saw three males. One of the males crept up behind Lane and shot him. The shooter walked quickly toward the gas station. Lane lay motionless on the ground. Melendez thought the best thing he could do was see where the three men went. Melendez went to the gas station and saw a dark blue Suburban drive away at a high rate of speed. Melendez called the police and gave a description of the three men and the Suburban.

The Suburban was registered to Lennan's girlfriend, Margaret Cook. Lennan called Cook about an hour after the shooting and said he was going to be gone for a while. When Lennan called Cook a second time, she told him the police were about to search her apartment. Lennan lived at the apartment with Cook. He told her not to let the police in.

Lennan is a Rolling 20s gang member. Police found Lennan's fingerprints along with the fingerprints of another Rolling 20s gang member, Evan Thurton, on the outside of the Suburban. In Lennan's apartment, police found marijuana, a handgun and a sketch of Malcom's apartment.

Later in the day, after Lane had been killed, Malcom's apartment manager heard a sound like a door being kicked. The manager went to investigate. He saw 10 men outside the door to Malcom's apartment. They were kicking in the door. At least two of the men were armed. One of the men pointed a gun at the manager and asked what he was going to do about it. The manager replied, "I'm not going to do nothing."

The manager stayed where he was because he did not want the men to think he was leaving to call the police. He saw the men enter Malcom's apartment and carry things out. As the men were leaving, they threw bricks through the window of Jones's car. They were laughing. One of the men said, "If you come back you'll get some more of this . . . ."

Thurton, Tyrone Baldwin and Lydell Powell, all Rolling 20s gang members, were arrested in connection with the murder. While the men were in jail awaiting arraignment, the police recorded their conversations. Thornton named Lennan as the driver of the Suburban. He said he was sorry he had not taken Lennan's advice to hide. Thornton further stated he had gotten Baldwin to "handle" Lane, who had been dealing drugs in Rolling 20s territory.

Lennan was arrested a year later.

DISCUSSION

I

Lennan contends the trial court erred in instructing the jury on the felony-murder rule based on a burglary committed with the intent to murder in count 1. We agree. On count 1, the jury was instructed that appellant was being prosecuted under two separate theories: "(1) malice aforethought, and (2) felony murder" (CALCRIM No. 548). The trial court instructed that "[a] person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent" (CALCRIM No. 540B) and that to convict on count 1, "[y]ou do not all need to agree on the same theory" (CALCRIM No. 548).

In People v. Ireland (1969) 70 Cal.2d 522, a defendant who shot his wife was charged with second degree murder. The trial court instructed on felony-murder based on assault with a deadly weapon. Our Supreme Court concluded that the use of the felony-murder rule under such circumstances extends the rule beyond any function it was designed to serve. (Id. at p. 539.) It would effectively preclude the jury from considering malice aforethought in the vast majority of cases where homicide is the result of a felonious assault. (Ibid. ) The Court held that a felony-murder instruction is improper, "when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged. [Fn. omitted.]" (Ibid.)

Because the jury was instructed that it could convict based on the felony-murder doctrine, a legal theory which the Attorney General concedes is invalid, the conviction on count 1 should be reversed. (See People v. Perez (2005) 35 Cal.4th 1219, 1233-1234; People v. Garcia (1984) 36 Cal.3d 539, 553-554 [failure to properly instruct on intent to kill in felony-murder special circumstances case].) The general rule is to reverse where "the appellate court is '"unable to determine which of the prosecution's theories served as the basis for the jury's verdict."' [Citation.]" (People v. Guiton (1993) 4 Cal.4th 1116, 1130.)

II

Lennan contends there is no substantial evidence to support an instruction on conspiracy to commit an attempted burglary.

In reviewing the sufficiency of the evidence we view the evidence in a light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Johnson, supra, at p. 578.)

A burglary is committed when the defendant enters one of the premises specified in section 459 with intent to steal or commit any felony. (Peoplev. Magallanes (2009) 173 Cal.App.4th 529, 535-536.) An attempted burglary consists of the intent to commit burglary and a direct but ineffectual act done toward its commission. ( 21a, 664/459.) The act must go beyond mere preparation. (People v. Kipp (1998) 18 Cal.4th 349, 376.) It must show the perpetrator is putting his plan into action. (Ibid.) It need not, however, be the last proximate step toward its commission. (Ibid.) Where the design of the plan is clearly shown, only slight acts in furtherance of the design will constitute an attempt. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.)

Here the jury could reasonably conclude the victims were members of a rival gang involved in selling drugs in Rolling 20s territory. Lennan, Thurton, Baldwin and Powell were all members of the Rolling 20s gang. The map of Malcom's apartment found in Lennan's bedroom shows the Rolling 20s had a plan to burglarize the apartment. Shortly before the murder, Thurton, Baldwin and Powell were outside the apartment. They retreated when Jones came out of the apartment to see what the men were doing. But they did not go far. The jury could reasonably conclude the three men were actively engaged in a burglary when they happened upon two of the apartment's occupants. Killing one of the occupants and shooting at another assisted the burglary by driving all the occupants out of the apartment. Substantial evidence supports the attempted burglary instruction.

Even if the instruction was not supported by substantial evidence, the error was harmless with respect to the conviction on count 2, conspiracy to commit murder. The conspiracy to commit murder instruction required the jury to find the conspirators agreed that one or more of them would intentionally and unlawfully kill. It is extremely unlikely the jury that found the attempted murder of Jones was willful, deliberate and premeditated (count 3) would find any other state of mind in the murder of Lane (count 2). (See People v. Collie (1981) 30 Cal.3d 43, 61-62 [attempted first degree murder requires express malice].)

The judgment is reversed as to count 1 and we affirm count 2. The matter is remanded to allow the court to resentence Lennan on counts 2 and 3. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Curtis B. Rappe, Judge

Superior Court County of Los Angeles

______________________________

Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless stated otherwise.