P. v. Scott
Filed 1/6/14 P. v. Scott CA3
NOT TO BE PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(Sacramento)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
MARCUS
SCOTT, JR. et al.,
Defendant and
Appellant.
C068543
(Super. Ct. No. 10F00253)
THE PEOPLE,
Plaintiff and
Respondent,
v.
MARQUEL DIXON,
Defendant and
Appellant.
C068544
(Super. Ct. No. 10F00253)
________________________________________________________________________
THE PEOPLE,
Plaintiff and
Respondent,
v.
RONALD GRANT,
Defendant and
Appellant.
C068924
(Super. Ct. No. 10F00253)
MODIFICATION OF OPINION
THE COURT:
It
is ordered that the opinion filed in this case on December 10, 2013, be modified as follows:
On
page 34, footnote 12, strike the entire footnote as written, and replace it
with the following: At oral argument the
People repeatedly asserted that Dixon did not challenge his particular sentence or request remand; in
fact he did both. The People claim these
assertions related only to Dixon’s constitutional claim,
not his state law claim (regarding the
trial court’s exercise of its discretion).
Other than arguing forfeiture, however, the People did not address the
state law claim at argument, focusing instead on the constitutional claim which
we need not reach, as explained post.
This
modification does not change the judgment.
THE COURT:
NICHOLSON,
Acting P.J.
MAURO, J.
DUARTE, J.
>
Filed 12/10/13 P. v Scott CA3 (unmodified version)
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD
APPELLATE DISTRICT
(Sacramento)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
MARCUS
SCOTT, JR. et al.,
Defendant and
Appellant.
C068543
(Super. Ct. No. 10F00253)
THE PEOPLE,
Plaintiff and
Respondent,
v.
MARQUEL DIXON,
Defendant and
Appellant.
C068544
(Super. Ct. No. 10F00253)
________________________________________________________________________
THE PEOPLE,
Plaintiff and
Respondent,
v.
RONALD GRANT,
Defendant and
Appellant.
C068924
(Super. Ct. No. 10F00253)
On
the evening of December 15, 2009, defendants
Marcus Scott, Marquel Dixon, and Ronald Grant approached Perell Marquis Waters
as he sat in his car in the parking lot of the Woodbridge Apartments. Scott and Grant fired several times, killing
Waters. Three separate juries hearing a
single trial found Scott, Dixon, and Grant guilty of first degree murder with a robbery special
circumstance and attempted robbery, both counts with firearm and gang
enhancements. All three defendants were
sentenced to life in prison without the possibility of parole.
On
appeal, Scott and Grant challenge the sufficiency of the evidence of attempted
robbery, claiming the plan changed from robbery to murder, requiring reversal
of the special circumstance and the attempted robbery charge. Dixon concedes the evidence is sufficient as to him for attempted
robbery, but contends there is insufficient evidence
he aided or abetted Scott and Grant or conspired with them as to attempted robbery,
so his murder conviction must be reversed.
He also contends the special circumstance must be reversed because he
was not a major participant and did not act with reckless indifference.
Scott
and Grant contend there was instructional error on the causation portion of the
instruction for the enhancement discharging a firearm and causing death or great
bodily injury. Scott contends the trial
court failed to follow the proper procedure in denying his Batson-Wheeler
new trial. Grant contends his statements
during police interrogation were not voluntary and the trial court erred in
admitting them. Scott and Dixon contend, and
the People agree, their parole revocation fines must be stricken. Dixon contends his case must be remanded for resentencing as the trial
court was unaware of its discretion to sentence him to 25 years to life instead
of life without parole.
As
we will explain, we find error only as to Scott and Dixon’s parole
revocation fine and Dixon’s sentencing. We order the
parole revocation fines stricken as to Scott and Dixon, order
correction of a clerical error on Scott’s abstract of judgment, and remand Dixon’s case for
resentencing. In all other respects, we
affirm the judgments as to Scott and Dixon. We affirm the judgment as to Grant in its
entirety.
FACTS
Robert
Quinn, a detective in the gang suppression
unit, testified about African-American criminal street gangs in
Sacramento. Sacramento is a
“red†town; the Bloods outnumber the Crips by three-to-one. The three major groups of Bloods are the
Meadowview Bloods, the Oak Park Bloods, and the Del Paso Heights Bloods. Because there are so many Bloods, there is a
lot of Blood-on-Blood crime, feuds between subsets. The largest subset of the Oak Park Bloods is
FAB, Fourth Avenue Bloods, now known as “Fuck A Bitch.†The primary activities of FAB are robberies,
shootings, gun possession, and narcotic sales.
The Elm Street Bloods is a subset of the Del Paso Heights Bloods.
Grant
and Scott are active FAB members. Jumal
Gray is a Blood, although his set is unknown.
Quinn did not have enough evidence to say that Dixon was a gang
member. Perell Mark Waters, the victim,
was a member of the Elm Street Bloods.
A
series of violent crimes between FAB and the Elm Street Bloods began in 2009. It began with the robbery of Tommy Martinez,
known as Tommy Guns, a member of the Beast Mob or Elm Street Bloods. This crime was followed by a fistfight, a
running gun battle, and several unreported shootings. Arguments or problems between gangs are known
as funks; the individual gang members have beefs.
In
November, Scott, known as Nootie or Nutchy, suffered a gunshot wound to his
shoulder when his car was shot at during one of the shootings. Grant was shot at the
same day, although
he was not hit. They believed the Elm
Street Bloods were responsible, especially Waters and two others known as Baby
Joe and G-Parkway.
Scott discussed the shooting with
Lavola Fields. Fields is the mother of
Latorria Jones, who was Scott’s girlfriend at the time (they later married). Scott was angry about the shooting because
his daughter could have been in the car and killed. Fields told him to “let it go.†Scott said no; he was from FAB and “we don’t
play that way.†Fields told the police
she heard Scott threaten to kill Waters and Baby Joe. “I’m going to get them. Them niggas is dead. I’m not playing.†At trial, she claimed she had lied because
she was angry with Scott. She testified
Scott said he would retaliate and Grant said he had Scott’s back. She told the police that Grant had said, “FAB,
you know I got your back, whatever you need done, I got it--I got it, you know. We keep ‘em ready.â€
Two
weeks before the shooting, Fields heard clicking coming from one of her
bedrooms. She knew it was a gun. She told the police she walked in and saw
Scott with a nine-millimeter gun. He
said it was the type of gun used earlier to shoot him. At trial, Fields said she also lied about
seeing the gun because of her anger at Scott.
The
police went through thousands of text messages between the parties involved. There were several text messages relating to
robberies or “licks.†Some were about
retaliating. On November 27, 2009, Grant texted Scott, “This little bitch I know is having a
party. We can try catch one of the Elm Street
niggas slippin’.†On December 10, there
were several text messages about Waters winning $4,000 at dice. The day of the shooting, Grant texted Scott,
“So wassup, blood? We keep saying we
fittin’ to get blood, and we ain’t did shit, blood.†The next text message read, “Don’t
matter. We always going to be able to
get him. I got the address and shit, but
we hittin’ Mark tonight.â€
On December 15, Grant texted Gray,
who went to his apartment in his white Buick.
Gray gave his nine millimeter to Grant.
Later, they met up at May Street, “Cuz that’s where we kick it at.†They smoked weed and Dixon joined them. They left in Gray’s car to “hit a lick,â€
commit a robbery. It was planned right
there; Gray thought it was a spur of the moment decision. They discussed it in the car.
First,
they went to the AM/PM where each person gave Gray $5 for gas. Scott went inside to pay for it. He was wearing a multicolored jacket. Then they went to the Woodbridge Apartments
to do a robbery. Grant still had Gray’s
gun. Gray assumed it would be used in
the robbery. At the apartments, Grant
told Gray where to park. Gray understood
he would be the getaway driver and backed into someone’s parking space. The other three got out and walked behind the
apartments. Gray stayed in the car and
smoked marijuana.
The
next thing Gray heard was gunshots. Dixon came running
to the car before the shots stopped. He
said he ran over a girl. Dixon said “go,â€
and Gray drove away slowly; Scott and then Grant jumped in.
Miguel
McGrigg lived at the Woodbridge Apartments and Waters was his neighbor. He was in his car about to go to the store when
he saw Waters walk by with about four other men. A few seconds later he heard shots, about a
dozen. He saw two shooters; one on
either side of Waters’s car. The one on
the passenger side was tall and thin and wore a multicolored jacket; the one on
the driver’s side was shorter.
driver’s windshield, but none appeared to hit Waters. Waters got out of the car and looked at one
of the shooters. Waters was then shot. McGrigg saw one man run when the shooting
started.
After
the shooting, McGrigg went to his apartment and had his wife call the police. He then went to Waters, and saw bullet holes
in his stomach. A white car left quickly.
When
the police arrived, Waters was lying on his back next to his car. The engine was running and the car was pushed
up against another car. Waters was
breathing, but did not respond to questions.
He was bleeding from bullet holes on the left side of his body. There were nine bullet holes in the
windshield and four in the driver’s window.
The police found seven .22-caliber casings and four nine-millimeter
casings.
Waters
was pronounced dead soon after he arrived at the hospital. The cause of death was a gunshot wound to the
abdomen that hit his large and small intestines and his aorta (the largest
blood vessel), cut his ureter in half, hit his liver, and then exited his body. Waters had seven gunshot wounds.
After
the shooting, Gray drove to Dixon’s nearby apartment complex and dropped him off. Gray heard police sirens so he returned to the
apartment complex. Grant called Dixon to find out
which apartment was his and Dixon, who had changed clothes, came out to meet them. Everyone was panicking. Gray saw Grant wash his hands with bleach. At the preliminary hearing, Gray testified
both Grant and Scott washed their hands with bleach. They said, they “got him.†Grant said, “My cousin said rock, so I
rocked.†Dixon was “freaked
out.†No one talked about a robbery. Gray thought he and Dixon “got
played.†They were told it was going to
be a robbery when it was a murder.
Dixon’s girlfriend,
Ciara Gore, and his sister lived in the apartment. Gore told the police she was in bed when Dixon called and
asked her to open the door. Five men
rushed in, all scared and nervous. One
had a gun. They washed the gun with
bleach. Dixon maintained he
did nothing and Grant confirmed this. Gore
told the police that Grant said he caught Waters by his car and shot him. They shot him because he was from Elm Street. No one mentioned a robbery.
That
night, shots were fired into Scott’s car.
Grant
and his girlfriend went to a Days Inn after the shooting. They went to the motel because of what
happened to Waters. Grant was afraid due
to threats. The next night, Grant sent a
text message, “Got a nine for sale, asking 50.â€
The
police interrogated all three defendants and the videotape of each
interrogation was played to that defendant’s jury.
The
police questioned Dixon twice. In the first
interview he denied any involvement in the shooting; he claimed he was with his
“baby mama†that night, “whatever night y’all are talking about.†He eventually admitted he was present at the
shooting in the second interrogation. He
knew both Scott and Grant had guns. They
saw Waters and someone else walk to his car and followed them. Dixon was behind Scott and Grant.
Grant said something to Waters’s companion who replied he did not want
any problems. Scott and Grant pulled out
their guns and started firing. Both
fired. The man with Waters ran and Dixon ran. Dixon bumped into a girl as he ran.
The shooting was still going on.
Dixon said the
robbery was Scott’s idea. Waters had marijuana
and money from a dice game. They told
him that if he came, he would get half. Dixon was
“definitely†not there to kill Waters. Afterwards,
he asked what happened and they told him to shut up. He asked to be taken to his sister’s. At his sister’s, Grant and Scott washed up and
asked for bleach. Dixon thought they
shot Waters for payback.
The
police also questioned Grant twice. The
first time, he denied any involvement and suggested that Scott did the shooting
by himself. The second interrogation was
lengthy and Grant eventually admitted his involvement. Grant said they went to the apartments to rob
Waters because he had money. When Waters
came out, however, Scott wanted to shoot him.
Grant gave the nine-millimeter gun to someone named Kev. When Scott shot, Grant ran.
Later,
Grant admitted there was no Kev. Only he,
Scott, and Dixon were present. Dixon ran. Grant stood at the window of Waters’s car and
told him he “needed everything.†Scott
said no and started shooting. Grant said
Scott took the gun from him. Grant
eventually admitted he shot into the car, but claimed he did not hit Waters. He said Scott took his gun and fired three
more times.
Scott
was questioned only once. He said he knew
nothing about Waters’s murder except that people said he was supposed to have
done it. Scott repeatedly denied he was
at the shooting, even though the police told him that witnesses had said he was
there. His denials continued when the
police confronted him with cell phone records showing that his phone was in the
area. He claimed he was in the south
area cheating with another girl. Later,
he said he did not know if he was in the south area.
Only
Scott presented a defense at trial.
Tiffany Miller, the mother of Scott’s child, testified Scott was at her
apartment that night from 8:30 until 11:00.
The
jury found Grant guilty of first degree murder (Pen. Code,
(a)(17)(A)), and attempted robbery
(§ 664/211). The jury found the firearm (§ 12022.53, subd.
(b), (c) & (d)) and gang
(§ 186.22, subd. (b)(1)) enhancements true
as to both counts. At sentencing, the
trial court found Grant in violation of probation, terminated probation, and
sentenced him to the midterm of four years in prison on a prior burglary
charge. On count one, the murder charge,
the court sentenced Grant to life without parole, plus 25 years to life in prison
on the greatest firearm enhancement, plus ten years for the gang enhancement. The court stayed sentence on count two, the
attempted robbery, pursuant to section 654.
The
jury found Scott guilty of first degree murder (§ 187), with a robbery special
circumstance (§ 190.2, subd. (a)(17)(A)), and attempted robbery (§
664/211). The jury found the firearm (§
12022.53, subd. (b), (c) & (d)) and gang (§ 186.22, subd. (b)(1))
enhancements true as to both counts. At
sentencing, Scott made an oral motion for a new trial, which the court denied. The court sentenced Scott to life without
parole on count one, the murder, plus 25 years to life in prison on the
greatest of the firearm enhancements, plus 10 years in prison for the gang
enhancement, and stayed sentence on count two, attempted robbery.
The
jury found Dixon guilty of first degree murder (§ 187), with a robbery special
circumstance (§ 190.2, subd. (a)(17)(A)), and attempted robbery (§
664/211). The jury found true firearm
enhancements that Dixon violated section 186.22, subdivision (b)(1) and a principal
personally used the firearm causing great bodily injury or death (§ 12022.53,
subd. (b), (c) & (d)), but found the allegation that Dixon was
personally armed with a firearm not true.
The jury also found the gang enhancement true. (§ 186.22 (b)(1).) The court sentenced Dixon to life
without parole on count one, the murder, plus 25 years to life in prison for
the most serious firearm enhancement.
The trial court did not impose the gang enhancement. The court stayed sentence on count two,
attempted robbery, pursuant to section 654.
DISCUSSION
I
Scott’s Contentions
A. Wheeler-Batson
Motion
Scott
contends the trial court erred and violated his constitutional rights by
failing to follow the proper procedure in responding to his claim that the People
had exercised peremptory challenges to two prospective African-American jurors
in a discriminatory manner.
1.
Background
Scott
is African-American. There were three African-Americans
on the jury panel.
name="_ftnref5" title="">[5] The first was a woman, P.M.,
who had been a school bus driver for 20 years.
Her brother had been arrested for “hot prowls†or breaking and entering
13 years earlier and had been sentenced to 113 years in prison. The trial court asked if he had a lot of
priors and P.M. responded, “Three strikes.â€
When the court asked how she felt about the sentence, she replied, “That’s
the life he chose.†P.M. thought her
brother had been treated fairly. When
the People questioned her about her brother’s long sentence, P.M. said, “I’ll
never see him again.†She said she had
only limited contact with him as he lived in Southern California. He called her parents when he was in
trouble. Her parents had accepted his
sentence. P.M. said she could be fair.
M.C.
was a male African-American prospective juror.
He was a security manager for Radio Shack, and had been a master-at-arms
in the military. His son had received a
citation for boarding light rail without a ticket. M.C. thought his son was treated fairly. He said he could be a fair juror.
The
defense excused M.C. and the People excused P.M.
S.R.
was another African-American female on the jury panel. She had a master’s degree in social work and
worked for the Department of Public Health.
This job was new; she had previously worked on a statewide domestic
violence program. She had worked in the
jail 30 years earlier, processing paperwork, and had worked for the Department
of Justice over 20 years earlier. Her
brother had been arrested the prior year for armed robbery, involving the use
of a knife against her mother. His case
was still pending; he was being prosecuted by the Sacramento County District
Attorney’s Office and S.R. thought he was treated fairly. When the trial court asked if anything about
his case would spill over to the current case, S.R. hesitated before answering
no. Under questioning by the People,
S.R. said she had not visited or talked to her brother in a year. She had intended to do so, but had not. She said she could be fair. She could put aside the circumstances of her
brother’s case because she knew that he did what he did under the influence of
drugs.
The
People excused S.R.
The
defense made a Wheeler-Batson motion. Counsel stated his first concern was the propriety
of the People’s dismissal of P.M. because he believed her answers were
pro-prosecution. Then the People had
dismissed S.R. although “her background is basically total law enforcement.â€
sympathetic to her brother and there was nothing in her background to believe that
she favored Scott. The defense expressed
concern that the People challenged these two jurors due to their race.
The
trial court stated it was “aware of the defense burden in showing that the
jurors are being challenged for a racially discriminatory reason.†It found the People could consider the long
imprisonment of P.M.’s brother to be a concern; she had brought up three
strikes and said she would never see him again.
That provided a race-neutral reason to excuse P.M.
The
court also found a race-neutral reason to exclude S.R. Although her mother was the victim of her
brother’s armed robbery, she intended to see him in jail. He was housed in the same jail as Scott. S.R. excused her brother’s committing his
crime under the influence of drugs.
Also, S.R. was a social worker--an occupation that concerned
prosecutors.
The
court then permitted the People’s representative to augment the record or
comment. The prosecutor indicated she
had written down the same reasons as the court for challenging these
jurors. Further, she noted that M.C.,
the African-American male, was an acceptable juror but he was excused by the
defense.
2.
The Law
“Both
the state and federal Constitutions prohibit the use of peremptory challenges
to remove prospective jurors based solely on group bias. (Batson,
supra, 476 U.S. at p. 89, 106 S.Ct. 1712; Wheeler, supra, 22 Cal.3d at pp. 276–277, [ ].) Recently, ‘the United States Supreme Court
reaffirmed that Batson states the
procedure and standard to be employed by trial courts when challenges such as
defendants are made. “First, the
defendant must make out a prima facie case by ‘showing that the totality of the
relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a
prima facie case, the ‘burden shifts to the State to explain adequately the
racial exclusion’ by offering permissible race-neutral justifications for the
strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is
tendered, the trial court must then decide ... whether the opponent of the
strike has proved purposeful racial discrimination.’ [Citation.]†’ [Citation.] The high court clarified that ‘a defendant
satisfies the requirements of Batson’s
first step by producing evidence sufficient to permit the trial judge to draw
an inference that discrimination has occurred.’
[Citation.]†(
1100; accord People v. Williams
(2013) 56 Cal.4th 630, 649.)
We
consider the entire record before the trial court in deciding whether a prima
facie case was stated, but certain types of evidence may be especially
relevant, such as whether the opponent has struck most or all of the members of
the identified group from the venire, or has used a disproportionate number of
his peremptory challenges against the group; that the jurors in question share
only the characteristic of their membership in the group; and whether the
opponent failed to engage these same jurors in more than desultory voir dire. (People
v. Bonilla (2007) 41 Cal.4th 313, 342 (Bonilla).)
“Although
the prosecutor’s excusal of all members of a particular group may give rise to
an inference of impropriety, especially if the defendant belongs to the same
group, that inference, as we have observed, is not dispositive. [Citations.]â€
(People v. Crittenden (1994) 9
Cal.4th 83, 119.) “‘As a practical
matter, however, the challenge of one or two jurors can rarely suggest a
pattern of impermissible exclusion.’
[Citations.]†(
makes drawing an inference of discrimination from this fact alone impossible.†(Ibid.)
The
three-step Batson analysis “is not so
mechanical that the trial court must proceed through each discrete step in
ritual fashion.†(People v. Adanandus (2007) 157 Cal.App.4th 496, 500.) “Though not strictly required, it is the
better practice for the trial court to have the prosecution put on the record
its race-neutral explanation for any contested peremptory challenge, even when
the trial court may ultimately conclude no prima facie case has been made out.†(Bonilla,
supra, 41 Cal.4th at p. 343, fn. 13.)
“When
a trial court denies a Wheeler motion
without finding a prima facie case of group bias, the appellate court reviews
the record of voir dire for evidence to support the trial court’s ruling. [Citations.] We will affirm the ruling where the record
suggests grounds upon which the prosecutor might reasonably have challenged the
jurors in question. [Citation.]†(People
v. Farnam (2002) 28 Cal.4th 107, 135.)
“Because Wheeler motions call
upon trial judges’ personal observations, we view their rulings with ‘considerable
deference’ on appeal. [Citation.]†(People
v. Howard (1992) 1 Cal.4th 1132, 1155.)
3.
Analysis
Scott
contends he demonstrated a prima facie case of discrimination because the
People used peremptory challenges to remove two of the three African-American
prospective jurors. He argues these two
prospective jurors gave pro-prosecution answers, supporting the inference that
they were removed for discriminatory reasons.
Although
the trial court did not use the term “prima facie case,†we read the record to
show that the trial court found Scott failed to make a prima facie case. We agree with the trial court that the record
of voir dire provides race-neutral reasons for excusing P.M. and S.R. and Scott
failed to provide evidence sufficient to support an inference of
discrimination.
Relying
on Ninth Circuit cases (Johnson v. Finn (9th
Cir. 2011) 665 F.3d 1063, 1069; Williams
v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1107-1108), Scott contends the
trial court erred in considering what it perceived as race-neutral reasons for
removing these jurors. As he recognizes,
however, our Supreme Court has held that such consideration is appropriate and
we are bound to follow our Supreme Court.
(Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455-456.) Our Supreme Court has repeatedly considered
race-neutral reasons appearing on the record to find that no prima facie case
was established. (E.g.,
205, 225 [where record of voir dire showed race-neutral reasons for recusal of
three African-American prospective jurors, no inference of discriminatory
purpose]; People v. Davis (2009) 46
Cal.4th 539, 584 [no inference of discrimination where “obvious race-neutral
grounds†for challenges to five Hispanic-named prospective jurors];
554 [prospective juror’s answers “disclosed a number of ‘reasons other than
racial bias for any prosecutor to
challenge her’â€].)
Here,
the prosecutor raised her concerns about P.M. and S.R. in questioning them. This is not a case where the excused jurors
were asked no or only perfunctory questions, the type of evidence that supports
an inference of discrimination. (See
779.) The primary concern with P.M. was
her brother’s lengthy sentence for burglary.
As P.M. stated, she would not see him again. Although P.M. professed that neither she nor
her parents “had a problem†with the sentence, his fate was a legitimate,
race-neutral concern.
name="_ftnref7" title="">[7] The race-neutral reasons for
excusing S.R. were even stronger. As we
noted ante, Scott exaggerates S.R.’s
law enforcement background, which was decades in the past. She had a degree in social work and “[p]eremptory
challenges based on a juror’s experience in counseling or social services is a
proper race-neutral reason for excusal. [Citation.]â€
(People v.
Her brother was facing prosecution by the same district attorney and was
housed in the same jail as Scott, and she intended to see him--a fact
emphasized by the People and the trial court.
We also find highly significant the fact that she hesitated before
saying there would be no spillover effect from her brother’s case into the
current case. Further, she partially
excused her brother’s behavior as being due to drug addiction, suggesting she
might be sympathetic to a defendant where, as here, drugs were involved, and
that she did not have the strict personal responsibility mindset a prosecutor
would tend to prefer. “ ‘One of the most
regular uses of peremptory strikes is to eliminate from the final jury venire
persons whom either side believes will be too sympathetic to his
opponent.’ [Citation.]†(People
v. Dunn (1995) 40 Cal.App.4th 1039, 1054.)
The
dismissal of two prospective jurors is too small a sample alone to show a
pattern of discrimination. (
343.) Moreover, the People did not
excuse all African-American prospective jurors.
M.C. was an acceptable juror who was excused by the defense. That the People accepted him was an
indication that the exclusion of P.M. and S.R. was not due to their race. (See People
v. Lenix (2008) 44 Cal.4th 602, 629 [People’s acceptance of panel with
Black juror strongly suggests race not a motive].)
Our
consideration of the relevant factors and review of the record fail to support an
inference that the People excused either P.M. or S.R. on the basis of her race. The trial court did not err in denying
Scott’s Batson-Wheeler motion.
B. Sufficiency
of the Evidence of Attempted Robbery
Scott
contends there was insufficient evidence of attempted robbery to support the
conviction on count two or the robbery-murder special circumstance. He argues the evidence shows the intent was to
kill Waters based on a motive of gang retaliation with no concurrent intent to
rob. While there was evidence of a
previous intent to rob Waters, Scott contends that intent shifted to the intent
to kill before the robbery plan went beyond mere preparation.
1.
The Law
The
standard for judicial review of a criminal conviction challenged as lacking
evidentiary support is well established: “the court must review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence - that is, evidence which is reasonable,
credible, and of solid value - such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.†(People
v. Johnson (1980) 26 Cal.3d 557, 578.)
We accord due deference to the verdict and will not substitute our
conclusions for those of the trier of fact.
(People v. Koontz (2002) 27
Cal.4th 1041, 1078.) A conviction will
not be reversed for insufficient evidence unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].†(People v. Redmond (1969) 71 Cal.2d 745, 755.)
“Robbery
is the felonious taking of personal property in the possession of another, from
his person or immediate presence, and against his will, accomplished by means
of force or fear.†(§ 211.) The crime of attempt requires a specific
intent to commit a crime and a direct but ineffectual act done towards its
commission. (§ 21a.) “The act must go beyond mere preparation, and
it must show that the perpetrator is putting his or her plan into action, but
the act need not be the last proximate or ultimate step toward commission of
the substantive crime. [Citation.]†(People
v. Kipp (1998) 18 Cal.4th 349, 376.)
“Where the intent to commit the crime is clearly shown, an act done
toward the commission of the crime may be sufficient for an attempt even though
that same act would be insufficient if the intent is not as clearly shown. [Citation.]â€
(People v. Bonner (2000) 80
Cal.App.4th 759, 764.)
“There
is, of course, a difference between the preparation antecedent to the
commission of an offense and the actual attempt to commit it. The preparation consists in devising or
arranging the means or measures necessary for the commission of the
offense. The attempt is the direct
movement toward the commission after preparations are made and must be
manifested by acts which would end in the consummation of the particular
offense unless frustrated by extraneous circumstances. [Citations.]
Whenever the design of a person to commit crime is clearly shown, slight
acts in furtherance of the design will constitute an attempt. [Citation.]â€
(People v.
v. Watkins (2012) 55 Cal.4th 999, 1021-1022 (Watkins).)
In
Watkins, supra, 55 Cal.4th 999, our
Supreme Court affirmed a conviction of attempted robbery and a robbery-murder
special circumstance. Defendant and his
companion, after committing two robberies, drove to the covered vehicle
entrance of a Holiday Inn and opened the hood of their stolen truck. (Watkins,
supra, at pp. 1003-1004.) A man who
was there with his family waiting on an airport shuttle walked over and looked
into the engine area; his family’s view of him was obscured. After a minute, he walked hurriedly back to
his family and then defendant shot and killed him. (Id.
at p. 1004.) The high court found the
evidence sufficient to show that defendant and his companion unequivocally
engaged in a deliberate ruse to lure their victim outside the view of his
family so they could rob him. (
the truck raised the reasonable inference that some act in furtherance of
robbery--a demand for money or display of a gun--occurred behind the hood of
the truck. (Ibid.)
2. Analysis
Here,
there was substantial evidence from which the jury could find attempted robbery. The People presented overwhelming evidence of
Scott’s participation in robberies in general.
Detective Quinn testified one of the primary activities of the FAB gang,
of which Scott was an active member, was committing robberies. The “funk†between FAB and the Elm Street
Bloods began with the robbery of Tommy Martinez. Numerous text messages sent by Scott
discussed robberies or licks. He also
sent text messages about his need for money.
Rap lyrics found in Scott’s apartment referred to shooting someone and taking
his money.
Further,
there was evidence that Scott went with the others to Waters’s apartment to rob
him. A few days before the shooting, Grant
had texted Scott that Waters “hit the dice†game for $4,000, suggesting he had
money.
title="">[8] Further, Waters was a drug
dealer and thus likely to have drugs or money or both. Earlier that evening, Grant sent Scott a
message that they would “hit Mark tonight,†an ambiguous phrase that could
refer to either a robbery or a murder (or assault). Gray testified he left May Street with Grant,
Scott, and Dixon to “hit a lick.†Grant
brought up the robbery, but all four were present when it was discussed. They first went to an AM/PM minimarket for
gas; everyone chipped in money and Scott bought the gas. Then they drove to the Woodbridge Apartments,
where Gray parked, backing in for a quick getaway, and the others got out. Scott approached Waters’s car and fired multiple
times.
Scott
contends the evidence of a gang retaliation motive, to avenge the earlier
shooting of Scott and Grant, shows his intent was murder. McGrigg testified the shooting began
immediately. No property was taken from
Waters either before or after the shooting, and there was no discussion of
robbery afterwards. Scott also relies on
Gray’s testimony that he and Dixon “got played;†they were told it was a robbery when it was actually
murder. The jury, however, was not
required to accept entirely Gray’s version of events. (People
v. Allen (1985) 165 Cal.App.3d 616, 623 [jury entitled to reject some
portions of a witness’s testimony while accepting others].) “That the evidence might lead to a different
verdict does not warrant a conclusion that the evidence supporting the verdict
is insubstantial. [Citation.]†(People
v. Holt (1997) 15 Cal.4th 619, 669.)
Further, the jury could have found Scott had dual intents when he
approached Waters.
Scott
contends any intent to rob had been abandoned in the preparation stage. He argues there was no evidence of an
attempted robbery “thwarted by some extraneous circumstance.†Where the circumstance that prevents
completion of the robbery is a change of heart by the perpetrator there can
still be an attempt. (
455 [“when the acts are such that any rational person would believe a crime is
about to be consummated absent an intervening force, the attempt is underway,
and a last-minute change of heart by the perpetrator should not be permitted to
exonerate himâ€].)
Scott
distinguishes the cases on which the People rely to show attempted robbery and
argues any plan to rob Waters never went beyond mere preparation. We find
Anderson,
defendant, who had that same month engaged in a three robberies using a gun,
approached the ticket office of the Curran Theater with
the admitted intent to commit a robbery.
When he was within two feet of the office, he pulled out a gun. Defendant testified the gun “went off.†(Anderson,
supra, at p. 689.) Our Supreme Court
found defendant’s actions went beyond mere preparation. “[W]hen he ‘walked in there [Curran Theater
entrance] about two feet from the grill’ and ‘pulled out the gun’ and ‘was just
going to put it up in the cage when it went off,’ we are satisfied that his
conduct passed far beyond the preparatory stage and constituted direct and
positive overt acts that would have reasonably tended toward the perpetration
of the robbery had the gun not exploded, for one reason or another, and
frustrated the plan to consummate the offense.
We see no escape from the conclusion that defendant’s conduct
constituted an attempt to commit robbery.â€
(Id. at p. 690.)
While
Scott did not admit the intent to rob, as the defendant did in
had the intent to rob Waters when he approached him with his gun. As in
by the firing of the gun “for one reason or another,†and constituted attempted
robbery. Sufficient evidence supports Scott’s
conviction for attempted robbery and the robbery-murder special circumstance.
C. Motion
for a New Trial
Prior
to sentencing, Scott made an oral motion for a new trial on the basis that
attempted robbery had not been proven.
The People opposed the motion, arguing the evidence amply supported the
jury’s verdict. The trial court denied
the motion. “The court finds that there
was clearly evidence to support the jury verdict regarding the special
circumstance enhancement of murder in the course of an attempted robbery.â€
Scott
contends that even if this court finds substantial evidence of attempted
robbery, we should reverse the trial court because it applied the wrong standard
in denying his oral motion for a new trial.
He contends the trial court abused its discretion by employing the
substantial evidence standard, rather than properly weighing the evidence
independently. (See People v. Knoller (2007) 41 Cal.4th 139, 156 [abuse of discretion
to base decision on incorrect legal standard].)
A
court may grant a new trial when the verdict is contrary to the evidence.
(§ 1181, subd. (6).) “The court extends no evidentiary deference
in ruling on a section 1181(6) motion for new trial. Instead, it independently examines all the
evidence to determine whether it is sufficient to prove each required element
beyond a reasonable doubt to the judge,
who sits, in effect, as a ‘13th juror.’
[Citations.]†(
Cal.4th 125, 133, original italics.)
“In
reviewing a motion for a new trial, the trial court must weigh the evidence
independently. [Citation.] It is, however, guided by a presumption in
favor of the correctness of the verdict and proceedings supporting it. [Citation.]
The trial court ‘should [not] disregard the verdict ... but instead ...
should consider the proper weight to be accorded to the evidence and then
decide whether or not, in its opinion, there is sufficient credible evidence to
support the verdict.’ [Citation.] [¶] A
trial court has broad discretion in ruling on a motion for a new trial, and
there is a strong presumption that it properly exercised that discretion. ‘“The determination of a motion for a new
trial rests so completely within the court’s discretion that its action will
not be disturbed unless a manifest and unmistakable abuse of discretion clearly
appears.â€â€™ [Citation.]†(People
v. Davis (1995) 10 Cal.4th 463, 523–524.)
We
find no abuse of discretion in the trial court’s denial of Scott’s motion for a
new trial because we reject Scott’s contention that the trial court applied the
wrong standard. Although the trial court
did not expressly state it had independently
examined the evidence and found it sufficiently credible to prove each element
of attempted robbery beyond a reasonable doubt, given the presumption in favor
of the trial court’s ruling and the deferential abuse of discretion standard,
we read the trial court’s statement to mean exactly that. In this context, a reasonable interpretation
of “the court finds†is that the trial court was expressing its own independent
view that the evidence established each element of attempted robbery. Scott offers no reason why the trial court
would have viewed the evidence, which we have found to be sufficient, any
differently than the jury.
D. Instructional
Error: Discharge of Firearm Enhancement
Section 12022.53(d) enhances the sentence, by
an additional term of 25 years to life, of anyone who, in the commission of
specified felonies, including murder and attempted robbery (§ 12022.53, subd.
(a)(1), (4), (18)), “intentionally and personally discharged a firearm and
proximately caused great bodily injury, as defined in Section 12022.7, or
death, to any person other than an accomplice ....†The jury found this enhancement true as to
both the murder and attempted robbery charges.
Scott
contends the enhancements must be reversed due to instructional error.
He contends the trial court erred by
including irrelevant and misleading instructions on accomplices and group
liability and by failing to define proximate causation. He contends these errors permitted the jury
to find the enhancement true based solely on acts of an accomplice (Grant). He asserts the instructional error affected
his substantial rights because it lowered the prosecution’s burden of
proof. (See § 1259 [instruction
reviewable without objection where defendant’s substantial rights affected].) Scott’s argument is premised on his view that
the jury could have concluded from the evidence that Grant fired the .22, which
contained the only bullets that struck Waters.
1.
The Instructions
The
trial court instructed the jury with the language of CALCRIM No. 3149 as
follows:
“If
you find the defendant guilty of the crimes charged in Counts One or Two, you
must then decide whether, for each crime, the People have proved the additional
allegation that the defendant personally and intentionally discharged a firearm
during that crime causing great bodily injury or death. You must decide whether the People have
proved this allegation for each crime and return a separate finding for each
crime.
“To
prove this allegation, the People must prove that:
“1.
The defendant personally discharged a
firearm during the commission of that crime;
“2.
The defendant intended to discharge the
firearm; and
“3.
The defendant's act caused great bodily
injury to or the death of a person.
“The
term firearm is defined in another instruction.
“
substantial physical injury. It is an
injury that is greater than minor or moderate harm.
“An
act causes death if the death is the direct, natural, and probable consequence
of the act and the death would not have happened without the act.
“A
natural and probable consequence is
one that a reasonable person would know is likely to happen if nothing unusual
intervenes. In deciding whether a
consequence is natural and probable, consider all the circumstances established
by the evidence.
“There
may be more than one cause of death. An
act causes death only if it is a substantial factor in causing the death.
“A
substantial factor is more than a
trivial or remote factor. However, it
does not need to be the only factor that causes the death.
“A
person is an accomplice if he or she
is subject to prosecution for the identical crime charged against the
defendant. A person is subject to
prosecution if he or she committed the crime or if:
“1.
He knew of the criminal purpose of the
person who committed the crime; and
“2.
He intended to, and did in fact, aid,
facilitate, promote, encourage, or instigate the commission of the crime or participate
in a criminal conspiracy to commit the crime.
“The
People have the burden of proving each allegation beyond a reasonable
doubt. If the People have not met this
burden, you must find that the allegation has not been proved.â€
The
court also instructed with the language of CALCRIM No. 3160 as follows:
“
substantial physical injury. It is an
injury that is greater than minor or moderate harm.
“If
you conclude that more than one person shot Perell Waters and you cannot decide
which person caused which injury, you may conclude that the defendant
personally inflicted great bodily injury on Perell Waters if the People have
proved that:
“1. Two or more people, acting at the same time,
shot Perell Waters and inflicted great bodily injury on him;
“2.
The defendant personally used physical
force on Perell Waters during the group assault; and
“3. The amount or type of physical force the
defendant used on Perell Waters was enough that it alone could have caused Perell
Waters to suffer great bodily injury. The
defendant must have applied substantial force to Perell Waters. If that force could not have caused or
contributed to the great bodily injury, then it was not substantial.â€
2.
Causation
This
enhancement requires that a defendant personally
discharge a firearm, but only that he proximately
cause great bodily injury or death. (
336 (Bland).) “A person can proximately cause a gunshot
injury without personally firing the weapon that discharged the harm-inflicting
bullet.†(Id. at p. 337.) The
that defined proximate cause as “an act or omission that sets in motion a chain
of events that produces as a direct, natural and probable consequence of the
act or omission the great bodily injury or death and without which the great
bodily injury or death would not have occurred.†(Id.
at pp. 335, 338.)
Here
the trial court instructed with the updated CALCRIM No. 3149 instruction that
does not use the term “proximate cause.â€
The instruction did, however, inform the jury that defendant’s act had to cause great bodily injury or death, and that
for an act to cause death, death must be “the direct, natural, and probable
consequence of the act and the death would not have happened without the
act.†This instruction was sufficient to
adequately convey the concept of proximate causation as set forth in
The
Bland court also held that where
there may be more than one cause of death, the jury should be instructed on
concurrent causes. (Bland, supra, 28 Cal.4th at p. 335.) At that time, the standard instruction was
CALJIC No. 3.41. (Ibid.) Here, the court read
the jury CALCRIM No. 3160, set forth ante,
which instructed it how to determine whether Scott was responsible for the
infliction of great bodily injury if there was more than one shooter.
Scott
contends CALCRIM No. 3160 is flawed because it permitted the jury to find the
necessary causation if he “personally used physical force†during a group
assault. He argues this instruction
permitted the jury to find the enhancement true without finding that he
proximately caused great bodily injury or death. But the instruction required that Scott’s physical force on Waters
be “enough that it alone could have caused Perell Waters to suffer great bodily
injury.†The force must have been
substantial, causing or contributing to the great bodily injury. ‘[T]he correctness of jury instructions is to
be determined from the entire charge of the court, not from a consideration of
parts of an instruction or from a particular instruction.’†(People
v. Castillo (1997) 16 Cal.4th 1009, 1016 (Castillo).) Further: “In reviewing a claim of error in jury
instructions in a criminal case, this court must first consider the jury
instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in
artificial isolation, but must view it in the context of the charge and the
entire trial record.†(
1323, 1330-1331 (Moore).)
3.
Accomplice
This
enhancement does not apply if the death or great bodily injury is to an
accomplice. (§ 12022.53, subd.
(d).) The trial court deleted the
reference to an accomplice in setting forth the elements to be proved, but
included the definition of an accomplice.
Scott contends that merely including the definition of an accomplice permitted the jury to find the
enhancement true based solely on Scott’s accomplice status. We disagree.
Although
the definitional instruction was out of place as positioned, the trial court
advised the jurors that not all of the instructions were necessarily applicable. Further, it advised the jurors not to assume
that an instruction applied merely because it was provided to them. (See CALCRIM No. 200.) In the absence of evidence to the contrary, we
presume the jurors found the accomplice instruction inapplicable and simply
disregarded it. (Cf.
249 [inapplicable instruction on consciousness of guilt from effort to suppress
evidence was “at worst†superfluous and harmless].)
Giving
a superfluous instruction raises a concern only where there is a serious
concern that the instruction misled the jury.
“When reviewing a purportedly ambiguous jury instruction, we ask whether
there is a reasonable likelihood the jury misconstrued or misapplied the
challenged instruction.
[Citations.]†(
1141, 1156.) In making this
determination, we consider the entire charge to the jury. (People
v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Here we find no reasonable likelihood the
jury was misled. The jury could not have
reasonably determined the enhancement was true based solely on Scott’s
accomplice status because the instruction clearly stated that the People had to
prove that Scott personally and intentionally discharged a firearm, and “[t]he
defendant’s act caused great bodily injury to or the death of a person.†This language, directing the jury to consider
Scott’s act, distinguishes this case
from People v. Carrillo (2008) 163
Cal.App.4th 1028 (Carrillo), on which
Scott relies.
In
Carrillo, several persons fired at
the victim, who was hit by rounds from two or three different guns, but there
was no evidence Carrillo fired one of those guns. (Carrillo,
supra, 163 Cal.App.4th at p. 1037.)
The trial court instructed on causation using the same language as here,
but instructed that the “defendant’s or
a perpetrator’s act caused great bodily injury to or the death of a person.†(Id.
at p. 1036, original italics.) Thus, in
permitted the jury to find the enhancement true without finding that the
defendant proximately caused death or great bodily injury.
where the instruction required that the jury find that Scott caused great bodily
injury or death to find the enhancement true.
There was no prejudicial error.
E. Parole
Revocation Fine
Scott
contends the trial court erred, and imposed an unauthorized fine, by imposing a
parole revocation fine in a case where there is no parole eligibility. The People properly concede the error. The parole revocation fine must be stricken.
Section
12045.5 provides for a fine equal to the restitution fine under section 1202.4
“[i]n every case where a person is convicted of a crime and whose sentence
includes a period of parole.†The parole
revocation fine may not be imposed where defendant is sentenced to life in
prison without parole. (
50, 63; People v. Ybarra (2008) 166
Cal.App.4th 1069, 1097 (Ybarra);
Cal.App.4th 1178, 1183.)
F. Correction
of Abstract
Finally,
Scott contends the indeterminate abstract must be corrected to reflect the
actual date of his sentencing. Scott was
sentenced on June
10, 2011.
The determinate abstract properly reflects this date, but the
indeterminate abstract shows a sentencing date of September 10, 2011. The People agree the
abstract should be corrected to show the accurate sentencing date. (People
v. Mitchell (2001) 26 Cal.4th 181, 185 [court has inherent power to correct
clerical errors in its records].) We
order the indeterminate abstract of judgment corrected to show the correct
sentencing date.
II
Dixon’s Contentions
A. Sufficiency
of the Evidence of First Degree Murder
Dixon contends his
conviction for felony murder must be reversed for insufficient evidence. He asserts that due to the manner in which
the trial court instructed the jury, coupled with the People’s argument on this
issue, the jury was required to find that he aided and abetted or conspired
with Scott and Grant to rob Waters. Dixon then argues
there is insufficient evidence of felony murder under either theory--aiding and
abetting or conspiracy--because Scott and Grant intended to
1. Background
| Description | A modification decision. |
| Rating |
