P. v.
Filed 4/11/13 P. v. Newton CA2/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
>
THE PEOPLE, Plaintiff and Respondent, v. ARNOLD NEWTON, Defendant and Appellant. | B239194 (Los Angeles County Super. Ct. No. TA113818) |
APPEAL from
a judgment of the Superior Court
of
County.
Eleanor J. Hunter, Judge.
Affirmed.
Maxine
Weksler, 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, Senior Assistant Attorney General, James William Bilderback
II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Appellant
Arnold Newton was convicted, following a jury trial, of one count of
Code sections 187 and 664.
name="_ftnref1" title="">[1] The jury found true the allegation that the
attempted murder was willful, deliberate and premeditated. The jury also found true the allegations that
appellant personally used a firearm within the meaning of section 12022.53,
subdivisions (b), (c) and (d) and committed the crime for the benefit of a
of section 186.22, subdivision (b)(4).
Appellant admitted that he had suffered a prior juvenile adjudication
for a felony within the meaning of sections 667, subdivisions (b) through (i)
and 1170.12 (the "Three Strikes" law). The trial court sentenced appellant to 15
years to life for the attempted murder conviction with the gang enhancement,
doubled to 30 years to life pursuant to the Three Strikes law, plus a term of
25 years to life for the firearm enhancement, for a total of 55 years to life
in state prison.
Appellant
appeals from the judgment of conviction, contending that there is insufficient
evidence to support the true findings on the gang allegation and the willful,
deliberate and premeditated attempted murder allegation. He further contends that the trial court
erred in denying his motion for disclosure of personal identifying information
for the jurors. We affirm the judgment
of conviction.
Facts
In the
summer of 2010, Erika Jones lived in the Watts Arms Housing Complex with her
young daughter. Erika's boyfriend,
Dennis Hobson, stayed with her from time to time. Dominica Ealy and her daughter were also
staying in the apartment. Appellant was
the father of Dominica's
child.
At the end
of June or the beginning of July, someone broke several windows in Erika's
residence. Erika believed that appellant
was involved. Dominica
gave Erika $250. They did not discuss
the purpose of this payment. Erika
believed that it was compensation for the broken windows. Dominica
believed it was rent.
As a result
of the broken windows, Erika's landlord told her that he needed to inspect her
residence. He reminded her that she was
not allowed to have other people living with her.
On July 15, 2010, Erika told Dominica
that Dominica
needed to leave for a few days, until the inspection was over. Dominica
said that she had just given Erika $250 and it would not be easy for her to
leave. Erika insisted. Dominica
walked out. Shortly thereafter, a friend
of Erika's came in and said, "Dominica
outside, talking mess."
Erika went
outside and asked Dominica
if there was a problem. Dominica
said there was not. Erika and her
daughter then walked toward the complex's playground. Appellant came up to Erika and told her that
if she did not give the $250 back to Dominica,
he would snatch the gold chain off her neck.
They argued for a few minutes, then appellant walked away.
Soon,
appellant returned and started arguing with Erika again. Hobson walked up to see what was
happening. Appellant said he was angry
because his "baby mama was getting put out." Hobson tried to calm appellant down and
explain the situation. He was not
successful. Four or five gunshots were
fired, hitting Hobson. Hobson ran toward
the apartments and appellant ran in the same direction.
Los Angeles
Police Officer Ivan McMillan investigated the scene and canvassed the area for
witnesses and evidence. He did not
obtain any information.
Los Angeles
Police Officer Tim Pearce interviewed Erika and Hobson after the shooting. Unbeknownst to Erika and Hobson, the
interviews were recorded. The recordings
were played at trial and transcripts were entered into evidence.
Erika told police that appellant
was the shooter. She also told police
that appellant said, "On Baby Loc Crip if you don't give my baby mama
$250, it's gonna be a problem, woo, woo."
She also said that appellant said, "I'm like on G-O and Grape
Street, if you don't give my baby mama $250
there's gonna be problems." Erika
understood these statements as "banging" on her and Hobson.
Hobson told police that appellant
was the shooter and identified appellant in a six-pack photographic
lineup. Hobson told police that he would
not testify that appellant shot him, however, as this "would make it all
bad for [him]." He said he would
rather run away than testify.
At trial,
Erika said that she did not see anyone with a gun before, during or after the
shooting. She denied telling police that
appellant shot Hobson. She did not
remember telling police that appellant made the above-quoted statements about
his gang. She said that she could not
hear most of what appellant and Hobson were arguing about. She said that she heard appellant say
"On Baby Loc" and Hobson say "On Adams" during the
argument.
At trial,
Hobson said that he did not see who shot him, and did not tell police that
appellant shot him. Hobson assumed he
was shot because he was a gang member.
He selected appellant from the lineup because appellant was present when
the shooting occurred.
Officer
McMillan testified at trial as a gang expert.
He stated that appellant was an active member of the Grape
Street gang.
That gang's main territory ran through the Jordan Downs Housing Project,
which included the Watts Arms complex where Erika lived. The primary activities of the gang were
murder, attempted murder, witness intimidation, robberies, burglaries, grand
theft and rape.
Officer
McMillan explained that reputation is everything to a gang. A gang's reputation is based on and increased
by violence. The resulting atmosphere of
intimidation in the community makes it easier for the gang to carry out its
criminal activities without fear of being caught or prosecuted.
Dominica
testified on appellant's behalf at trial.
She explained that she believed that the $250 she gave Erika was for
rent. Dominica
did not believe that she should have to move after making this payment. The two argued outside, in front of about 20
people. Appellant came up, joined the
discussion and insisted that Erika return the money. Erika said that the money was for the repair
of the broken windows. Appellant and
Erika began to argue. Hobson joined the
group, and began to argue with appellant.
Dominica
saw Hobson reach into his waistband for a gun handle. She ran away.
As she ran, she heard gunshots. Dominica
acknowledged that she did not mention Hobson's gun to police.
Discussion
1. Gang allegation
Appellant
contends that there is insufficient evidence to support the jury's true finding
on the gang allegation. He contends that
the evidence shows only that the shooting arose from a family dispute and that
he acted alone. Appellant concludes that
the finding violates his state and federal constitutional rights to due
process.
"'In reviewing a challenge to
the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in
the light most favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt." [Citations.] We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review
applies to cases in which the prosecution relies primarily on circumstantial
evidence and to special circumstance allegations. [Citation.]
"[I]f the circumstances reasonably justify the jury's findings, the
judgment may not be reversed simply because the circumstances might also
reasonably be reconciled with a contrary finding." [Citation.]
We do not reweigh evidence or reevaluate a witness's credibility. [Citations.]'" (People
v. Nelson (2011) 51 Cal.4th 198, 210.)
Section 186.22 requires that the
defendant commit the charged crime for the benefit of, at the direction of or
in association with, the gang and that he do so with the specific intent to
promote, further or assist any criminal conduct by the gang. (People
v. Albillar (2010) 51 Cal.4th 47, 51.)
"'Expert opinion that particular criminal conduct benefited a gang'
is not only permissible but can be sufficient to support the . . . gang
enhancement." (People v.
People v. Albillar,
crime was committed for the benefit of a gang.
For this reason, 'we routinely draw inferences about intent from the
predictable results of action. We cannot
look into people's minds directly to see their purposes. We can discover mental state only from how
people act and what they say.'" (
Cal.App.4th 398, 411-412.)
Appellant is correct that there is
evidence that he was hot-headed and had a personal interest in Dominica
getting her money back. That was not the
only evidence before the jury, however.
There was evidence showing that appellant interjected his gang
membership into a dispute which began as a family matter. Erica told police that appellant said,
"On Baby Loc Crip if you don't give my baby mama $250, it's gonna be a
problem, woo, woo." She also said
that appellant said, "I'm like on G-O and Grape
Street, if you don't give my baby mama $250
there's gonna be problems." These
statements can be reasonably understood as appellant using his gang membership
to intimidate Hobson into paying. When
the threats had no effect, appellant shot Hobson.
Officer
McMillan explained that the reputation of a gang was "everything" to
its members and mattered deeply to them.
Reputation is increased through violent crime. Gang members "thrive on
intimidation." Officer McMillan
also explained that a gang's territory is very important to a gang, because it
is an area that they control, where they commit most of their crimes.
It is reasonable to infer from this
testimony that appellant shot Hobson to maintain his gang's reputation, or
possibly to increase it, since Hobson was apparently not intimidated by
appellant's verbal threat. This inference
is reinforced by the fact that the incident took place outdoors in appellant's
gang's territory, and in front of a number of witnesses.
As Officer
McMillan explained, violent acts benefit a gang by increasing or maintaining
its reputation for violence. This is
sufficient to show a benefit to the gang.
(People v. Albillar, supra, 51
Cal.4th at p. 63 ["Expert opinion that particular criminal conduct
benefited a gang by enhancing its reputation for viciousness can be sufficient
to raise the inference that the conduct was 'committed for the benefit of . . .
a[] criminal street gang' within the meaning of section 186.22(b)(1)."].)
As Officer
McMillan also explained, a gang's reputation for violence makes it easier for
the gang to get away with crimes with no "fear of ramifications" and
will "deter any kind of cooperation to law enforcement from witnesses or
victims." This is sufficient to
support an inference that appellant had the specific intent to promote or
further other criminal conduct by his gang.
To the
extent that appellant contends that the crime could not have been for the
benefit of the gang because there is no indication in the record that anyone
except Erika and Hobson were aware of appellant's gang affiliation, appellant
is mistaken. According to Dominica,
there were 20 or more people around when she and Erika were outside
arguing. Appellant came and joined in
this argument, and then Hobson did likewise.
Then the shooting occurred. Erika
told police that appellant stated his gang affiliation just before shooting
Hobson. Thus, it is reasonable to infer
that quite a few people heard appellant identify himself as a gang member. Further, as Officer McMillan's testimony
showed, word spread in the community when a gang was responsible for crimes,
even when the crimes were committed when no one was present, such as burglaries
committed when the residents were out.
To the
extent that appellant relies on People
v. Ramon (2009) 175 Cal.App.4th 843 and In re Daniel C. (2011) 195 Cal.App.4th 1350 to show insufficiency
of the evidence, that reliance is misplaced.
In those cases, the defendants did not identify themselves as gang
members during their crimes. Appellant
did identify himself as a member of Grape Street.
Since we have determined that
"a rational trier of fact could have found the essential elements of the
[enhancement] proven beyond a reasonable doubt, the due process clause of the
United States Constitution is satisfied [citation], as is the due process
clause of article I, section 15, of the California Constitution." (People
v. Osband (1996) 13 Cal.4th 622, 690.)
2. Attempted murder
Appellant
contends that there is insufficient evidence to support the jury's finding that
the attempted murder was willful, deliberate and premeditated. He claims that the evidence shows only an
impulsive shooting without any careful consideration or weighing of the
consequences.
We review
the sufficiency of the evidence in accordance with the standard set forth in
at page 210, quoted in section 1, ante.
Generally,
there are three categories of evidence to be considered in determining whether
a murder was premeditated and deliberated:
(1) planning activity; (2) motive and (3) manner of killing. (People
v. Anderson (1968) 70 Cal.2d 15, 26-27.) These factors need not be present in any
particular combination, and the categories are not exhaustive. (People
v. Pride (1992) 3 Cal.4th 195, 247.)
"'[W]hile premeditation and deliberation must result from
"'careful thought and weighing of considerations'" [citation], we
continue to apply the principle that "[t]he process of premeditation and
deliberation does not require any extended period of time. 'The true test is not the duration of time as
much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .'
[Citations.]"'" (
Cal.4th 287, 370-371.)
Here, the
evidence shows two interrelated motives for appellant to kill Hobson. Appellant wanted to get Dominica's
money back, and he needed to uphold the reputation of his gang. Planning activity can be inferred from the
systematic escalation of the confrontation between appellant and Hobson. Initially, there was a verbal argument. When no promise to return the money was
forthcoming, appellant mentioned his gang and threatened Hobson with
"problems" if the money was not returned. When this threat was not successful,
appellant resorted to violence. The
manner of the shooting supports an inference of premeditation and
deliberation. Appellant shot Hobson at
close range, in the chest. The chest,
containing the heart, is a vulnerable area of the body. Nonetheless, Hobson was able to run
away. Appellant then shot Hobson two
more times, in the back and elbow. This
continued shooting suggests a plan to kill Hobson, not simply scare him or
teach him a lesson or forcibly take the money from him. Viewed as a whole, the evidence is sufficient
to support the jury's finding that appellant acted with premeditation and
deliberation.
Even
assuming for the sake of argument that the circumstances of the encounter could
also be reconciled with a finding that appellant acted out of anger and without
careful consideration, this would not warrant reversal of the judgment. (People
v. Nelson, supra, 51 Cal.4th at p. 210 [if circumstances reasonably
justify jury's findings, judgment may not be reversed simply because
circumstances might also reasonably be reconciled with contrary finding].)
Since we have determined that
"a rational trier of fact could have found the essential elements of the
[allegation] proven beyond a reasonable doubt, the due process clause of the
United States Constitution is satisfied [citation], as is the due process
clause of article I, section 15, of the California Constitution." (People
v. Osband, supra, 13 Cal.4th at p. 690.)
3.
Juror information
Appellant made two attempts to
raise his claim of juror misconduct. He
filed a motion to release personal juror information, which was denied. He then filed a motion for a new trial based
on juror misconduct, which included a renewed request for personal juror
information. This motion was also
denied. He claims that the trial court
erred in denying both requests. We do
not agree.
Generally, all juror identification
information in a criminal trial is sealed after the verdict is recorded. (Code Civ. Proc., § 237, subd. (a)(2).) A petition for access to this information
must be supported by "a declaration that includes facts sufficient to
establish good cause for the release" of the information. (Code Civ. Proc., § 237, subd. (b).) If the petition and declaration
"establish a prima facie showing of good cause," the trial court will
set the matter for a hearing. (
A trial court's refusal to hold a hearing on a request for disclosure of
juror identifying information is reviewed for an abuse of discretion. (People
v. Jones (1998) 17 Cal.4th 279, 317.)
Here, appellant claimed that he recognized
Juror No. 4 during voir dire and told his counsel, but that his counsel did not
act on the information. He made this
claim in a post-verdict motion to relieve his counsel for ineffective
assistance. A new counsel was appointed,
and filed the motions requesting disclosure of Juror No. 4's personal
information.
The first motion was a petition for
disclosure of juror information to investigate potential juror misconduct. The accompanying declaration was signed by
appellant's counsel and stated: "A)
Defendant recognized Juror #4 from Youth
Build Charter School
where he attended and she worked. B)
Juror #4 knew defendant and did not inform the Court. C) Juror #4 does not like the defendant and
therefore was biased against him. D)
Juror #4 became the Foreperson and was in a position to prejudice other jurors
against the defendant."
The trial
court ruled: "In this case, I'm
going to find that the defense has not set forth a sufficient basis to disclose
the juror identifying information. I
think it is based on speculation and conjecture with regard to the proposed
reasons, and I'm going to deny that."
We see no
abuse of discretion in the trial court's ruling. Absent further details from appellant, it is
not clear that appellant did actually know Juror No. 4. When questioned about her employment during
voir dire, Juror No. 4 stated that she was a case manager for a non-profit in Watts.
No. 4 ever worked at the Youth Build
Charter School. Juror No. 4 may simply have looked like
someone appellant knew when he attended the charter school.
Even assuming that the declaration
was sufficient to establish that Juror No. 4 had worked at the charter school
in the past at a time when appellant attended the school, Juror No. 4 did not
give an affirmative response when the court asked if any prospective juror knew
appellant. Thus, there is no direct
evidence that she recognized appellant.
Appellant did not provide any details which would create an inference
that she recognized him. Appellant gave
no date for his attendance or Juror No. 4's employment. The more recent the dates, the more
reasonable it would be to infer that Juror No. 4 must have recognized
appellant. Appellant also gave no
details of Juror No. 4's position at the school. If Juror No. 4 had been appellant's teacher
for a school year, it could be reasonable to infer that she recognized
appellant in court. If Juror No. 4 had
been a security guard at the school who briefly saw a large number of students
in passing, it would not be reasonable to infer that she recognized
appellant. Appellant gave no hint at the
basis for Juror No. 4's supposed dislike of him.
Appellant did not make a prima
facie showing that would entitle him to Juror No. 4's personal
information. He provided no facts to
support his claim that Juror No. 4 recognized and disliked him. If his claim were well-founded, such facts
would be known to him. Absent such
factual support, the trial court did not abuse its discretion in treating
appellant's claim as a speculative fishing expedition and denying his
petition.
Appellant's counsel also filed a
motion for new trial based on juror misconduct, which contained a renewed
request for disclosure of Juror No. 4's personal information. No new information was contained in the
motion. We see no error in the trial
court's decision to deny that motion.
The trial court was correct in ruling that "there's been no showing
at all that the juror acted inappropriately.
There's been no showing that the juror in fact did know who the
defendant was."
Disposition
The judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
Acting P. J.
We concur:
MOSK,
J. KRIEGLER,
J.
to the Penal Code unless otherwise indicated.
trial there was a burglary problem in the housing projects, which involved Grape Street gang members breaking into residences when no one was
home and taking televisions. Victims of
these crimes and community members were intimidated and reluctant to speak with
law enforcement.
