P. v. Morris

Filed 2/21/08 P. v. Morris CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEALS from judgments of the Superior Court of Los Angeles County,

Lisa M. Chung, Judge. Affirmed.

J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant James Kamply Morris.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant Jamel Laron Young.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

James Kamply Morris and Jamal Laron Young appeal from the judgments entered following their convictions by jury on count 1 - first degree murder (Pen. Code,  187) and three counts of willful, deliberate, and premeditated murder (Pen. Code,  664, 187) with, as to each offense, a principal armed with a firearm (Pen. Code,  12022, subd. (a)(1)). The court sentenced each appellant to prison for 25 years to life on count 1, plus 1 year for the armed enhancement, with a consecutive term of life with the possibility of parole on count 2, plus 1 year for the armed enhancement, and a concurrent term of life with the possibility of parole, plus 1 year for the armed enhancement, as to each of counts 3 and 4. Appellants claim trial error occurred. We affirm the judgments.

FACTUAL SUMMARY

1. Peoples Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that in November 2003, appellants and Cozy Cole attended a party held at a Palmdale home. Bloods On Point gang members attended. Appellants and Cole fought with a person(s) at the party.

On December 5, 2003, another party attended by Bloods On Point gang members was held at the Palmdale home. About 9:30 p.m., Jennifer Kemanjian and Diana Ubilluz arrived at the party. There were many people outside, and more inside. About 30 minutes after Kemanjian and Ubilluz arrived, they left. Young called Ubilluz and asked her to meet. Appellants and Cole later met with Ubilluz and Kemanjian in a store parking lot. Young drove a beige- or champagne-colored Saturn with chrome rims and tinted windows.

Ubilluz talked with appellants and Cole, and told the three about the party. Young asked if the party was a Bloods On Point party, and told her that his cousin had been jumped about a week before. Ubilluz testified that appellants said they were going to shoot up the party. Young said he belonged to Six-O, and they were not going to put up with what had happened. Six-O was a Crips gang. Morris too was a Six-O gang member. Kemanjian testified the three men were talking about doing it amongst themselves, like they were going to get them back and shoot up the party. Kemanjian also testified that Young said they were going to get anybody who was outside, one of the three men said they wanted to get them back, and one of the three mentioned Bloods on Point. Cole seemed to be afraid and said he wanted to go home. Ubilluz, Kemanjian, appellants, and Cole later went to the home of Delicia Murphy.

Ubilluz, Kemanjian, and Cole subsequently went to the Palmdale party. Persons attending the party asked where Cole was from, he said Six-O, Rolling 60s, and the persons indicated the party was a Bloods On Point party. Ubilluz, Kemanjian, and Cole later met appellants in a restaurants parking lot. Cole entered Youngs car, and appellants and Cole drove away.

As the men drove away, Morris retrieved a revolver from under the seat and loaded the gun. As Young drove toward the party, Cole asked Morris what he was going to do with the gun. Morris replied that he was going to take care of some business. Cole later exited the car, returned, and indicated he wanted no part of what was happening. Young exited and told Cole that Morris planned to shoot Cole in the back of the head and throw him in an aqueduct. Cole, afraid, got back in the car. The three continued toward the party. Young was driving. Morris was the front seat passenger. Cole was in the back seat.

In the meantime, Ubilluz and Kemanjian went to the party a third time and began warning people. Kemanjian warned that someone was coming to shoot up the house and she told people to go inside. Young called Ubilluz and told her to leave the party because something was going to happen. Ubilluz and Kemanjian drove to a nearby location. A few minutes later, they heard gunshots.

About 11:30 p.m., Morris put on a black ninja mask. Young drove the Saturn slowly with its headlights off and stopped in front of the Palmdale home. The drivers side of the Saturn was facing the home. Morris sat on the window sill of the cars passenger door and shot over the Saturn about four or five times. Cole was lying down in the backseat.

Jonte Stewart was on the porch of the Palmdale home when the shots were fired. He was fatally shot in the head (count 1). Ciji Alex had heard that someone was coming to shoot at the party and she decided to leave. She was standing in the homes doorway when the shooting started. A bullet went through her left arm and into her abdomen (count 2). Lorraine Gil and Dorean Burns were standing next to each other outside the home at the time of the shooting. They were facing each other and Gil was between Burns and the assailants vehicle. A bullet went through Gils left forearm (count 3) and a bullet went through Burnss right forearm (count 4). The Saturn drove away quickly, and there were no other cars driving by when the shots were fired.

Appellants and Cole returned to Murphys house, and later left with Murphy and her friend Savannah Johnson to go to Morriss home. Upon arrival, Morris retrieved a long black gun from under the car seat. Appellants and Cole were laughing and saying, We got them. We got them. Morris said, We got them niggers. Each of the appellants gestured as if he was holding a gun with two hands and pointing it. Young crawled on the floor, mimicking the people who had attempted to avoid the gunfire. Johnson testified that Young was going on the couch and crawl[ing] . . . on to the floor with his body . . . laid out. (Sic.) Morris said, they are going to remember Rolling 60s, and they will never forget about us. Cole was laughing and agreeing with them.

In November 2003, Morris told Murphy that they had been jumped at an FBI party by Bloods On Point gang members. Morris also said that he had wanted to cut their fingers off and leave them in the desert. He further said that they were not going anywhere without their heat.

Cole, who had been a codefendant, pled guilty to voluntary manslaughter and felonious assault in exchange for an eight-year prison sentence and his promise to testify truthfully in the present case.

2. Defense Evidence

In defense, Phyllis Migasi testified she lived across the street from the Palmdale home. On the night before December 5, 2003, Migasi had taken methamphetamine. She was using large amounts of the drug. On the night of the shooting, Migasi saw several cars drive past her home. She saw a champagne-colored Saturn with fancy rims, followed by a Camaro and then a Jetta. The cars later stopped in front of the Palmdale home. Migasi saw someone shooting a gun from the back seat of the Camaro. Appellants did not testify. We will present additional facts below where pertinent.

CONTENTIONS

Appellants claim there was insufficient evidence of intent to kill as to all counts and the trial court erred by failing to define the term accomplice. Morris claims (1) the trial court erroneously instructed on second degree murder based on express and implied malice; (2) the trial court erroneously failed to instruct on second degree felony murder; (3) he received ineffective assistance of counsel; and (4) cumulative error was prejudicial. Young claims there was insufficient evidence of lesser-included offenses as to counts 1 through 4; therefore, we may not reduce the present offenses, and the trial court violated Bruton/Aranda[1]principles by admitting into evidence certain statements made by Morris.[2]

DISCUSSION

1. There Was Sufficient Evidence of Intent to Kill as to Counts 1 through 4.

Appellants claim there was insufficient evidence of intent to kill supporting the convictions. We disagree.

Whether a person harbored intent to kill is a question for the trier of fact. (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) The present case essentially involves a typical murderous gang-related drive-by shooting by members of a Crips gang at persons attending a Bloods On Point party. Appellants had been in a previous fight with members of the Bloods On Point gang, which provided appellants with a motive to kill.

On December 5, 2003, appellants said they were going to shoot up the party, and Young said they were going to get anybody who was outside. Appellants and Cole said they wanted to get them back, and one of the three mentioned Bloods On Point.

Morris loaded his gun, maximizing the risk of harm. Cole was an acquaintance of Morris, yet Morris was willing to shoot him in the head if he refused to participate. Ubilluz and Kemanjian went to the party and began warning people, not that persons were coming to frighten the partygoers, but that persons were coming to shoot up the house. Young told Ubilluz to leave the party.

The Saturn pulled up in front of the Palmdale home and stopped, increasing the potential accuracy of the shooting. The distance between Morris and the persons attending the party was sufficiently close, and the firepower of his firearm was sufficiently high, that the shooting killed one person and caused each of the remaining victims to suffer a through-and-through gunshot wound. There were no more than four or five shots, yet four people were hit by bullets in areas above the waist, indicating Morris carefully aimed. There was no substantial evidence that Morris shot with an intent only to frighten.

After the shooting, appellants laughed, repeatedly saying We got them. Young mimicked the shooting and ridiculed people who had fled for their lives. Morris had said that he wanted to cut their fingers off and leave them in the desert. He also suggested that appellants were not going anywhere without their firearms. We conclude there was sufficient evidence of intent to kill as to each of counts 1 through 4. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)[3]

2. The Trial Court Did Not Err by Failing to Define the Term Accomplice.

a. Pertinent Facts.

The court instructed the jury that if murder and attempted murder were committed, Cole was an accomplice. The court, without objection, gave to the jury Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 335, which instructed the jury, inter alia, that the testimony of an accomplice must be supported by independent evidence that tends to connect the defendant to the commission of the crime, and an accomplices statement or testimony should be viewed with caution. Appellants did not request, and the court did not give, an instruction defining the term accomplice.

b. Analysis.

Appellants claim the trial court erred by failing to define the term accomplice as it was used in CALCRIM No. 335. In essence, they argue as follows. The term accomplice is a technical term which means a person personally committed a crime, or aided another in its commission with knowledge of the other persons criminal purpose, and with intent to promote it. The common parlance meaning of the term can convey merely the idea of a person who helps a criminal but lacks intent to promote the crime or even knowledge of it. Absent an instruction on the definition of the technical term, the jury was free to apply the common parlance meaning of the term and therefore erroneously conclude that the term applied to a class of persons less morally and legally culpable, and less deserving of the jurys distrust, than is the case.

The claims are unavailing. CALCRIM No. 335 was a correct statement of the law as far as it went. Appellants waived the issue urged here by failing to request clarification or amplification of the instruction to define the term accomplice. (Cf. People v. Rodrigues (1994) 8 Cal.4th 1060, 1140; People v. Palmer (2005) 133 Cal.App.4th 1141, 1156.)

Even if the issue was not waived, there is no need to reverse the judgments. First, even if the absence of a definition of the term accomplice permitted the jury to include a class of less culpable persons within the scope of persons to whom the term accomplice applied, the instruction benefitted appellants by including that class within the scope of persons whose testimony had to be independently corroborated and viewed with caution.

Second, if the trial court had completely failed to instruct that accomplice testimony had to be corroborated and viewed with caution, no prejudice would have resulted if the testimony had been sufficiently corroborated. (People v. Lewis (2001) 26 Cal.4th 334, 370; see People v. Felton (2004) 122 Cal.App.4th 260, 271-272.) Such corroborating evidence may be slight, and need only tend to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. (People v. Lewis, supra, 26 Cal.4th at p. 370.) There is no reason why a different result should obtain where, as here, the trial court correctly instructed on the issue except for the courts failure to define the term accomplice.

In the present case, Kemanjian and Ubilluz testified that they heard appellants say they were going to shoot up the party. Murphy testified that, at Morriss residence, appellants were laughing, Young gestured with two hands as if he was pointing a gun, and Morris said, they are going to remember Rolling 60s. Johnson testified appellants were laughing and saying We got them. We got them, Morris gestured with two hands as if he were pointing a gun, and Young was going on the couch and crawl[ing] . . . on to the floor with his body . . . laid out. (Sic.) In sum, we conclude that any trial court error in failing to define the term accomplice was harmless because the testimony of Kemanjian, Ubilluz, Murphy, and Johnson adequately corroborated Coles testimony.

Third, the jury was presented with sufficient information from which they reasonably and independently could have concluded that they should view Coles testimony with caution. The jury already heard that Cole was a codefendant who pled guilty to voluntary manslaughter and felonious assault in exchange for his promise to testify truthfully. We conclude the trial courts failure to define the term accomplice was not prejudicial. (Cf. People v. Brown (2003) 31 Cal.4th 518, 554-556; People v. Miranda (1987) 44 Cal.3d 57, 101.)

3. No Prejudicial Bruton/Aranda Error Occurred.

a. Pertinent Facts.

Murphy testified at trial that, about four weeks before December 5, 2003, Morris told Murphy that they had got jumped at an FBI [sic] party by [Bloods On Point]. The prosecutor later asked Murphy if Morris had made any statement regarding heat. Murphy testified, [M]orris told me the same night that he told me that they had got jumped by [Bloods On Point], that they were not going anywhere without their heat.

b. Analysis.

Young claims Bruton/Aranda error occurred when the trial court permitted Murphy to testify that [M]orris told me the same night that he told me that they had got jumped by [Bloods On Point], that they were not going anywhere without their heat.

Under the Bruton/Aranda rule, the introduction into evidence of a codefendants extrajudicial confession which incriminates, and is inadmissible hearsay as to the defendant, violates the latters right to confrontation when the confession is introduced at their joint jury trial. (Aranda, supra, 63 Cal.2d at pp. 528-531; Bruton, supra, 391 U.S. at pp. 124-128, fn. 3, 129-136.) The rule applies to a codefendants extrajudicial confession, as well as to a codefendants extrajudicial statement which incriminates the codefendant while not amounting to a confession. (People v. Anderson (1987) 43 Cal.3d 1104, 1123.) Whether Bruton/Aranda error is prejudicial is evaluated under the standard enunciated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]. (People v. Song (2004) 124 Cal.App.4th 973, 981.)

We assume without deciding that Young preserved for review the Bruton/Aranda issue as to Murphys testimony that [M]orris told me the same night that he told me that they had got jumped by [Bloods On Point], that they were not going anywhere without

their heat.[4] Even if the issue was preserved for review, reversal of the judgment is not warranted. Young claims the error was prejudicial because the evidence of intent to kill was conspicuously weak. We have discussed that evidence in part 1 of our Discussion. We reject Youngs characterization of that evidence and instead conclude that the strength of the evidence of intent to kill, and the collateral nature of the allegedly offending statements of Morris, rendered the alleged error harmless beyond a reasonable doubt. (Cf. Chapman v. California, supra, 386 U.S. at p. 24.)

4. The Trial Court Properly Instructed on Second Degree Murder.

a. Pertinent Facts.

The court, using CALCRIM No. 520, instructed on murder, express malice, and implied malice.[5] The court, using CALCRIM No. 521, also instructed on the degrees of murder.[6] In particular, CALCRIM No. 521 indicated that the People were prosecuting appellants under two theories of first degree murder: (1) willful, deliberate, and premeditated murder, and (2) shooting from a motor vehicle at another person outside the vehicle with intent to kill. After instructing on the elements of those theories, the instruction stated, All other murders are of the second degree.

The above manner of instructing on second degree murder differs from CALJICs instruction on second degree murder, which explicitly says second degree murder is a killing committed with express malice but without premeditation and deliberation, and explicitly and separately says second degree murder is a killing committed with implied malice.

b. Analysis.

Morris claims the trial courts instructions on second degree murder were inadequate because they were based on CALCRIM instructions which did not explain second degree murder in the manner of CALJIC instructions. Morris is also effectively arguing, however, that the trial court failed to instruct on second degree murder. We conclude otherwise.

When it comes to defining second degree murder, CALCRIM merely does by clear implication what CALJIC does explicitly.[7] CALCRIM No. 521 provides a detailed recitation of the elements of murder of the first degree. The instruction indicates that murder which is not of the first degree is of the second degree, but since (1) the term murder has been defined by CALCRIM No. 520, (2) that definition sets forth the two kinds of malice, and (3) the elements of each kind are set forth in detail, second degree murder necessarily implies a killing committed with express and/or implied malice (but without premeditation and deliberation, and without a person shooting from a motor vehicle at a person outside it).

In short, the CALCRIM instructions correctly stated the law, and if Morris felt CALJIC instructions better explained the principles, he waived the issue by failing to ask for CALJIC instructions. (Cf. People v. Palmer, supra, 133 Cal.App.4th at p. 1156.) As to the merits, the CALCRIM instructions adequately covered the issues; therefore, there was no need to give the CALJIC instructions. (Cf. People v.Turner (1994) 8 Cal.4th 137, 203.)

Finally, Morris claims he was prejudiced by the alleged instructional error because the jury was precluded from considering the issue of intent to kill. However, we conclude that the strength of the evidence of intent to kill set forth in part 1 of our Discussion renders the alleged instructional error harmless under any conceivable standard. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California, supra, 386 U.S. at p. 24.) Moreover, the jury found Morris guilty of first degree murder, and there is no dispute that each first degree theory required the jury to find intent to kill; therefore, again, the alleged instructional error was harmless under any conceivable standard.

5. The Trial Court Did Not Err by Failing to Instruct on Second Degree Felony Murder.

Morris claims second degree felony murder based on the felonies of discharging a firearm at an inhabited dwelling house in violation of Penal Code section 246, and discharging a firearm in a grossly negligent manner in violation of Penal Code section 246.3, is a lesser included offense of first degree murder in this case, and the trial court erred by failing to instruct on the lesser-included offense. We disagree.

California decisions have held for decades that even absent a request, and even over the parties objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.] (People v. Birks (1998) 19 Cal.4th 108, 118, italics added.)  We have set forth in our Factual Summary pertinent facts concerning the commission of the present offenses. The trial court did not err by failing to instruct on second degree felony murder, because there was no substantial evidence that Morris was guilty only of second degree felony murder. (Cf. People v. Carter (2005) 36 Cal.4th 1114, 1183-1184.)

Moreover, Morriss commission of the predicate felonies of discharging a firearm at an inhabited dwelling house and discharging a firearm in a grossly negligent manner resulted in Stewarts death only because Morris shot at him, killing him. That is, in light of all of the evidence presented at trial, there was substantial evidence that Morris committed the predicate felonies by assaulting Stewart with a firearm. Morris concedes there was substantial evidence that the Stewart killing resulted from a retaliatory assault intended as a tit-for-tat, an assault for an assault, and not an intentional homicide.[8] There was no substantial evidence that Morris committed the predicate felonies with a nonassaultive intent or an independent collateral purpose such as an intent only to frighten.

Accordingly, the trial court did not err by failing to instruct on second degree felony murder based on the felonies of discharging a firearm at an inhabited dwelling house or discharging a firearm in a grossly negligent manner. This is so because Morris committed those predicate felonies solely by committing an assault with a firearm; therefore, the predicate felonies merged with the homicide, precluding a prosecution for second degree felony murder. (Cf. People v. Randle (2005) 35 Cal.4th 987, 1004-1005; People v. Bejarano (2007) 149 Cal.App.4th 975, 982-990.) Finally, the jury found Morris committed first degree murder; therefore, any trial court error in failing to instruct on second degree felony murder was not prejudicial. (Cf. People v. Beames (2007) 40 Cal.4th 907, 928.)[9]

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1]Bruton v. United States (1968) 391 U.S. 123 [Bruton]; People v. Aranda (1965) 63 Cal.2d 518 [Aranda].

[2] The parties join each others arguments.

[3] In light of our conclusion, there is no need to decide Youngs contentions that there was insufficient evidence of lesser-included offenses with the result that we may not reduce the present offenses, or that prosecution for lesser-related offenses is barred.

[4] We note that, prior to Murphys testimony at trial, Young raised Bruton/Aranda issues, but did not expressly object below on Bruton/Aranda grounds to anticipated testimony from Murphy that Morris said they were not going anywhere without their heat. It was the trial court that first referred to that statement and raised the issue of whether Young was contesting it and others, and the court indicated it was uncertain as to whether Young was contesting it. Even after the court gave Young a chance to do so, it does not appear that he objected to that particular statement on Bruton/Aranda grounds. We need not reach the issue of whether Young failed to object to this particular statement on Bruton/Aranda grounds with the result that he waived the admissibility issue as to that statement.

[5] The instruction stated, The defendants are charged in Count One with murder. [] To prove that a defendant is guilty of this crime, the People must prove that: [] 1. A defendant committed an act that caused the death of another person; [] AND [] 2. When the defendants acted, they had a state of mind called malice aforethought; [] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [] A defendant acted with express malice if he unlawfully intended to kill. [] A defendant acted with implied malice if: [] 1. He intentionally committed an act; [] 2. The natural consequences of the act were dangerous to human life; [] 3. At the time he acted, he knew his act was dangerous to human life; [] AND [] 4. He deliberately acted with conscious disregard for human life. [] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

[6] That instruction stated, If you decide that a defendant has committed murder, you must decide whether it is murder of the first or second degree. [] The defendant has been prosecuted for first degree murder under two theories: (1) The murder was willful, deliberate, and premeditated[] and (2) []the murder was committed by shooting from a motor vehicle at another person outside the vehicle with the intent to kill. [] Each theory of first degree murder has different requirements, and I will instruct you on both. [] You may not find a defendant guilty of first degree murder unless all of you agree that the People have proved that a defendant committed murder. But all of you do not need to agree on the same theory. [] A defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [] A defendant is guilty of first degree murder if the People have proved that a defendant murdered by shooting a firearm from a motor vehicle. The defendant committed this kind of murder if: [] 1. He shot a firearm from a motor vehicle; [] 2. He intentionally shot at a person who was outside the vehicle; [] AND [] 3. He intended to kill that person. [] A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. [] A motor vehicle includes a passenger vehicle. [] All other murders are of the second degree. [] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.

[7] There is no need to discuss second degree felony murder here, since the trial court did not give a CALCRIM instruction on that issue. We discuss in part 5 Morriss claim of instructional error with respect to second degree felony murder.

[8] We note Young concedes, in his argument concerning his first contention, that The evidence showed that Morris, Young, and Cole went to the . . . party to commit a retaliatory assault on [Bloods On Point] members, . . .

[9] Morris, in his second, third, and fourth contentions, discussed alleged instructional error concerning (1) the definition of an accomplice, (2) second degree murder based on express and implied malice, and (3) second degree felony murder. His fifth contention is that he received ineffective assistance of counsel to the extent the above issues were waived as a result of his trial counsels failure to object to the alleged error. In light of our analysis pertaining to the above three enumerated contentions, we conclude no ineffective assistance occurred. We also reject Morriss claim that cumulative prejudicial error occurred.