P. .v McDowell

Filed 12/18/09 P. .v McDowell CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Sam Ohta, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Dwight Marquis McDowell of attempted murder and attempted voluntary manslaughter, and found true gang and weapons allegations. On appeal, defendant argues the evidence was insufficient to support his conviction for attempted murder and the gang allegations. We are not persuaded by defendants arguments and affirm.

Background

Defendant was charged with two counts of attempted murder in violation of Penal Code sections 187, subdivision (a), and 664.[1] Count one charged defendant with the attempted willful, deliberate, and premeditated murder of Melvin Rivera. Count two charged defendant with the attempted willful, deliberate, and premeditated murder of Dani Alexander Espinoza. As to both counts, the information alleged a section 186.22, subdivision (b), gang enhancement and section 12022.53 firearm enhancements. Defendant was on probation at the time of the alleged offenses.

1. Events Preceding the Swap Meet Shooting

On the morning of December 31, 2007, defendants girlfriend drove him to a swap meet in Los Angeles so he could buy a shirt. Defendant has multiple tattoos on his bodyincluding his armsidentifying him as a member of the Rollin 20s gang (which is a Blood gang). His gang moniker is Pee Wee. Defendant wanted to buy a long-sleeved shirt because he planned to be in a rival gangs area later that day and wanted to cover the tattoos on his arms. Defendant testified he was trying to disassociate from the gang.

While defendant was inside the swap meet, his girlfriend was shopping in a nearby beauty supply store. Defendant wore a white tank top-style shirt and a black hat with red on the underside of the bill, which colors are associated with the Bloods. In his pocket, he carried a gun he had borrowed from a friend the day before because, one month earlier, his house had been shot up.[2] The gun carried 11 bullets.

Espinoza and his cousin Rivera also headed to the swap meet that day to buy some clothes. Espinoza is a former member of the 18th Street gang and has a 666 tattoo on the back of his head, which represents 18th Street (a rival of the Rollin 20s). Espinoza wore a long-sleeved shirt and a hat with the bill in the back. Rivera does not belong to a gang. He has a tattoo of his mothers name on the back of his neck.

2. The Swap Meet Shooting

a. The Victims Description

As Espinoza and Rivera walked across the street toward the entrance of the swap meet, Rivera was ending a call on his cell phone, which he held in his hands. According to Espinoza and Rivera, before they entered the swap meet, a man (later identified as defendant) started yelling at them. Rivera did not understand what was said, but, according to Espinoza, defendant shouted something like Hey, mother fucker. Espinoza did not hear anyone say Where you from? or 18th Street. Espinoza responded by saying What the fuck is your problem and moved toward defendant. Espinoza did not say anything about 18th Street. At that point, defendant pulled out a gun and shot at least twice at Espinoza, who ran inside the swap meet. Defendant then shot Rivera twice in the leg. Rivera managed to hide behind a concrete planter, but defendant continued to shoot at him. All together, defendant shot at Rivera nine or ten times.

b. Defendants Description

According to defendant, Espinoza and Rivera approached him first, saying Where are you from? and Fuck slobs [meaning Bloods]. 18th Street. Defendant saw Espinozas 666 tattoo and he saw Espinoza reach for his pocket. Defendant was aware of the rivalry between his gang and the 18th Street gang. He responded to Espinoza and Rivera by saying Fuck feighteenth [meaning 18th]. Defendant felt threatened and believed his life was in danger. He drew his gun and began shooting at Espinoza and Rivera, telling them to leave or get out. He shot the gun a total of eight times. Although defendant claimed that, as he walked to his girlfriends car, he had three bullets left in the gun, he did not continue to shoot at Rivera, who was only six feet away, injured and crouched behind the planter.

c. The Security Guards Description

That morning, a swap meet security guard was on a perimeter check, when he heard someone say Where you from? He then heard someone with a different voice say in Spanish something like 18th Street, the barrio. That was followed with Fuck 18th Street and then gun shots. The guard did not see who was talking. In his statement to the police the day of the shooting, the guard said he first heard someone yell What gang you from? in Spanish. But, at trial, the guard said the person who responded to Where you from spoke in Spanish when he said 18th Street.

d. The Girlfriends Description

Defendants girlfriend heard the commotion and looked out from the beauty supply store. She saw defendant shooting. She ran to her car, picked up defendant, and drove away. When defendant was in the car, his girlfriend noticed he had a gun. Defendant made phones calls in the car, during which he said he had got[ten] into it with some Mexicans who were 18th Street and discussed how to dispose of the gun, which he eventually did. Defendant never told his girlfriend that he had been threatened or that he felt his life was in danger. Defendant explained he did not tell her what had happened because he did not want to involve her.

3. Events Following the Swap Meet Shooting

After defendant and his girlfriend drove away from the scene, Espinoza came to Rivera, who was still on the ground, bleeding from his leg. Espinoza wanted to take Rivera to the hospital and tried unsuccessfully to get Rivera in the car. Because Espinoza had recently been paroled and did not want to be associated with the shooting, he left when he heard sirens approaching. Paramedics took Rivera to the hospital, where he underwent leg surgery. At the time of trial, as a result of his gunshot injuries, Rivera was still in pain, walked with a limp and was unable to work.

The Los Angeles Police Department investigated the shooting. One officer recovered eight expended shell casings and one projectile from the scene. Both Espinoza and Rivera reviewed photographic lineups. Although Espinoza was not certain, he identified defendant from the line-up. Rivera was unable to identify the shooter from the lineup, but he did identify defendant in court. On the other hand, Espinoza refused to identify defendant at trial, even after having seen the surveillance video of the shooting. Espinoza was obviously reluctant to testify, saying he did not want to be involved in the matter.

When police questioned defendant, he did not say he heard anyone shout Where are you from? nor did he tell the police that he had seen Espinozas 666 tattoo. In addressing the discrepancies between his trial testimony and his comments to police, defendant explained he was talking fast and not giving all the details to the police because he wanted the police to let his girlfriend go.

4. Gang Evidence

Defendant testified that the swap meet is considered a neutral area for Blood gang members and others, but not for the 18th Street gang. The security guard said the swap meet had many gang-related problems.

The officer who arrested defendant testified at trial as a gang expert. Like defendant, the expert said the swap meet was a neutral area for the Bloods. He also testified that the Rollin 20s gang is a Blood gang, whose members total approximately 300 and are primarily African-American. The gangs main activities include murder, attempted murder, robbery, graffiti and narcotics sales. The expert opined that defendant was a Rollin 20s gang member. Although defendant tried to distance himself from the gang at trial, the expert said defendant admitted he was a Rollin 20s gang member not only to the expert on the day of the shooting, but also on prior occasions to other officers.

The expert also testified that the Hispanic gang 18th Street is an enemy of the Rollin 20s. He had heard 18th Street was intruding on the Rollin 20s territory, and graffiti on a trashcan near the crime scene reflected this rivalry. Intruding on a rival gangs territory is a sign of disrespect. The expert explained that gang members often respond to such acts of disrespect with violence, which demonstrates the gangs strength and determination to protect its territory.

Based on a hypothetical scenario derived from the facts of this case, the expert also opined that the shooting benefitted the Rollin 20s. He based his opinion on the following: (i) defendant was a Rollin 20s member, (ii) the shooting occurred in Rollin 20s territory, (iii) 18th Street was an enemy of Rollin 20s and was encroaching into their territory, including the swap meet area, and (iv) the words Fuck 18th was derogatory and directed toward the 18th Street gang. The expert also explained that, when crimessuch as those at issue hereare committed in a gangs home territory, victims and witnesses often are intimidated and less likely to report the crime, although some people might help the perpetrator escape. Additionally, the crime warns rival gangs not to enter that territory and that the home gang will use violence to protect its turf. A gang member who commits such a violent crime gains respect and elevates his status in the gang.

5. Other Evidence

A surveillance camera captured the shooting. The video was shown during trial, and the jury asked to view it again during deliberations. Defendant said the video appeared accurate. In the video, defendant is seen walking away from the swap meet, as the victims are walking in. Defendant and the victims are not walking directly toward each other. Rather, defendant appears to be walking at an angle away from them, when he stops and turns back toward the swap meet and walks in the victims direction. The video has no volume and does not reflect clear details of the shooting.

Melton Collins testified on defendants behalf. He is a minister and sign language specialist who has worked at various juvenile detention facilities. He is not a paid gang expert. Mr. Collins has worked with thousands of gang members, including defendant, encouraging them to leave the gang lifestyle. He explained that, when used by gang members, the statement Where are you from? is confrontational and may lead to violence. He also acknowledged a strong animosity between the Rollin 20s and 18th Street gangs. He agreed that a gangs reputation increases when a member kills someone in the gangs name.

Although he had not seen defendants tattoos, Mr. Collins knew defendant was a Rollin 20s member who had moved out of the gangs territory. He did not think someone who was trying to distance himself from the gang life would display his gang tattoos in public. Someone would do that if they were still connected. But, he explained it is a difficult process to get out of a gang.

6. Verdict and Sentencing

As to count one, the jury found defendant guilty of the attempted murder of Rivera. As to that count, the jury also found true the section 186.22, subdivision (b)(1) gang allegation and the section 12022.53, subdivisions (b), (c) and (d) weapons allegations. The jury found not true, however, the allegation that defendant committed the attempted murder willfully, deliberately and with premeditation.

As to count two, the jury acquitted defendant of attempted murder, but found him guilty of the lesser included offense of attempted voluntary manslaughter of Espinoza in violation of section 192. As to that count, the jury found true the section 186.22, subdivision (b)(1) gang allegation and the section 12022.5, subdivision (a) weapons allegation.

The court sentenced defendant to serve a total of 22 years and eight months, plus 25 years to life, in state prison. On count one, the trial court sentenced defendant to seven years, plus 10 years for the section 186.22, subdivision (b) gang enhancement, and a consecutive term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The court imposed and stayed additional 10-year and 20-year prison terms for the two remaining firearm enhancements. On count two, the court sentenced defendant to a consecutive term of one year, plus three years and four months for the section 186.22 (b) gang enhancement and one year and four months for the section 12022.5, subdivision (a) firearm enhancement.

Discussion

Defendant claims the evidence was insufficient to support either the guilty verdict on count one (attempted murder of Rivera) or the gang enhancements on both counts.

1. Standard of Review

We review a claim of insufficient evidence by examining the entire record in the light most favorable to the judgment below. [Citation.] We review to determine if substantial evidence exists for a reasonable trier of fact to find the counts against the [defendant] true beyond a reasonable doubt. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) Substantial evidence must be reasonable, credible, and of solid value. [Citation.] We also presume the existence of every fact the [jury] could reasonably deduce from the evidence . . . . (Ibid.) Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.] (People v. Maury (2003) 30 Cal.4th 342, 403.)

2. Specific Intent to Kill Rivera

Defendant argues the evidence does not support a finding that he specifically intended to kill Rivera. We disagree.

In order for a jury to find a defendant guilty of attempted murder, the prosecution must prove the defendant specifically intended to kill the victim and took a direct, but ineffectual, act toward killing that victim. (People v. Smith (2005) 37 Cal.4th 733, 739.) The jury can infer the requisite specific intent from the defendants acts and the circumstances of the crime. (Id. at p. 741.) For example, the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositivethe very act of firing a weapon in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. [Citation.] . . . Finally, even if the shooting was not premeditated, with the shooter merely perceiving the victim as a momentary obstacle or annoyance, the shooter's purposeful use of a lethal weapon with lethal force against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill. [Citation.] (Id. at p. 742.)

Applying these principles to the facts at hand, and viewing the evidence in the light most favorable to respondent, presuming the existence of every fact the jury could reasonably deduce from the evidence in support of the judgment, we conclude the evidence is sufficient to support defendant's conviction of the attempted murder of Rivera.

The jury was presented with competing descriptions of the shooting. Defendant said his life was in danger and he just reacted when he shot at the victims in an attempt to protect himself, not to kill them. Apparently, he believed Espinoza and Rivera were hostile 18th Street gang members. Defendant argues it is clear he did not intend to kill Rivera because defendant did not fire all the bullets in his gun, even though he could have done so when he was only six feet from Rivera, who was unarmed, injured and crouching behind a planter. The victims testified, on the other hand, that, unprovoked, defendant approached them and started shooting directly at them. After Espinoza ran inside the swap meet, defendant shot at Rivera multiple times, even after Rivera had been hit, was on the ground bleeding and trying to take cover behind a planter. Further, the gang expert testified that the swap meet was off limits to 18th Street gang members, 18th Street was encroaching into the swap meet area, and, among other crimes, the Rollin 20s tried to kill people. The jury also viewed the video of the shooting. We conclude the jury reasonably could infer from the evidence that defendant intended to kill Rivera (as opposed to believing defendant was acting in self-defense).

Although, if believed, defendants testimony might support his theory of the case, there was substantial evidence supporting the prosecutions theory of the case. Because it is unquestionably the role of the jury (and not the court of appeal) to decide who is telling the truth and which version of events to believe (see People v. Casey (1926) 79 Cal.App. 295, 298-299), we will not disturb the jurys findings here.

Defendant relies on People v. Ratliff (1986) 41 Cal.3d 675 for the proposition that an intent to kill cannot be presumed from the aiming and firing of a gun, even if it is done at close range. Ratliff does not apply here, however, because, unlike the jury in Ratliff, the jury here was instructed on the specific intent required for attempted murder. In People v. Avila (2009) 46 Cal.4th 680, our Supreme Court distinguished Ratliff on this very ground, saying that in Ratliff, we simply held that the evidence of intent to kill was not so conclusive as to render harmless an erroneous failure to instruct on that issue. [Citation.] Here, the jury was instructed that to convict defendant of [Riveras] attempted murder, it had to find defendant acted with the intent to kill. Substantial evidence supports that determination. (Id. at p. 702, fn. 7.)

3. Gang Enhancement

Defendant argues the evidence does not support a finding that he committed the crimes for the benefit of a gang. Rather than gang-related, defendant claims the shooting was personal. Again, we disagree.

For the section 186.22 gang enhancement to apply, the prosecution was required to prove that defendant committed the charged crimes [1] for the benefit of, at the direction of, or in association with any criminal street gang, [2] with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . ( 186.22, subd. (b)(1).) The gang enhancement does not apply if the evidence reveals simply that the defendant was an active gang member. The crime must have been gang related and the specific intent must have been to promote, further, or assist in any criminal conduct by gang members. (See People v. Gardeley (1996) 14 Cal.4th 605, 623; People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)

As to the first prong, we conclude the evidence supports a finding that defendant committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang. As defendant himself concedes, gang words were used, defendants gang tattoos were visible, defendant saw the 666 tattoo on Espinozas head, and defendant understood 18th Street gang members were not welcome in the swap meet area. Defendant attempts to downplay the significance of these facts by claiming the shooting was more personal than for the benefit of a gang. Such an argument invites us, however, to reweigh the evidence and conclude defendant was more truthful than other witnesses, which invitation we decline. Moreover, defendants position ignores other evidence, such as the testimony of the gang expert (explaining that Rollin 20s gang members commit violent crimes, including attempted murder, which strengthen their position in the neighborhood) and the testimony of defendants girlfriend and the security guard (noting defendants derogatory references to the 18th Street gang and the use of gang words immediately preceding the shooting).

Similarly, as to the second prong, we conclude the evidence supports a finding that defendant committed the crimes with the specific intent to promote, further, or assist in criminal conduct by gang members. This prong has been satisfied in cases such as this where the perpetrators perceived the victim as a threat and sought to protect their gang territory. (People v. Gardeley, supra, 14 Cal.4th at pp. 613, 619). Here, defendant is a gang member who (i) believed the victims were rival 18th Street members, (ii) knew that 18th Street was not welcome at the location of the shooting, and (iii) while shooting, told the victims to leave or get out. In addition, the expert stated that, by committing acts of violence, gang members establish the superiority of their gang and intimidate others. Accordingly, we conclude substantial evidence supports the gang enhancements.

Defendant relies heavily on In re Frank S., supra, 141 Cal.App.4th at p. 1192. But that case is easily distinguished on its facts. There, police apprehended the minor defendant and found he was carrying a concealed weapon, drugs and a red bandana. (Id. at p. 1195.) The minor said he carried the weapon for protection. (Ibid.) At the jurisdictional hearing, a gang expert opined that the minor was a gang member and carried the weapon for protection. (Ibid.) The expert also stated a gang member would use the weapon to protect against, and to attack, rival gang members. (Ibid.) There was no other evidence of the minors intent. The court of appeal reversed the gang enhancement, holding the experts testimony alone was insufficient to support the enhancement. (Id. at p. 1199.) The court emphasized that crimes may not be found to be gang-related based solely upon a perpetrators criminal history and gang affiliations. (Id. at p. 1195.) In contrast, here, as explained above, substantial evidence (including but not limited to the experts testimony) supports the gang enhancement.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

MALLANO, P. J.

JOHNSON, J.

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[1] All section references are to the Penal Code.

[2] On cross-examination, defendant said he borrowed the gun because he was going to be in rival gang territory.