P.
v. Moore
Filed 2/25/13 P. v. Moore CA2/4
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
DAVID G. MOORE,
Defendant
and Appellant.
B234798
(Los
Angeles County
Super. Ct. No. BA307447)
APPEAL
from a judgment of the Superior Court of
County, Larry P. Fidler, Judge. Affirmed.
Law
Offices of Allen G. Weinberg and Derek K. Kowata, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant David G. Moore of two counts of
§ 187, subd. (a)).
name="_ftnref1" title="">[1] In both counts, it found true additional
allegations of firearm use (§ 12022.53, subds. (b), (c), and (d)) and two
special circumstance allegations:
multiple murder and gang murder (§§ 190.2, subds. (a)(3) and
(a)(22)). Also, the jury convicted him
of possession of a firearm by a felon (§ 12021, subd. (a)), and found the
counts (§ 186.22, subd. (b)(1)).
The trial court sentenced him to two consecutive terms of life in prison
without the possibility of parole, plus a consecutive determinate term of seven
years. He appeals from the judgment of
conviction, contending that the evidence is insufficient to support the gang
murder special circumstance allegation and the gang enhancement allegation, and
that the trial court erred in not staying the sentence for possession of a
firearm by a felon pursuant to section 654.
We disagree with both contentions and affirm the judgment.
BACKGROUND
contest the sufficiency of the evidence to support the convictions, we only
briefly summarize the evidence at trial, and in connection with our discussion
of the appellate contentions will review additional evidence as necessary.
On
the evening of July 9, 2001, defendant shot and killed Frederick
Pettaway (Frederick) and Willie Williams (Williams) in front of a house on South Gramercy Place in Los Angeles.
According to Rogers Pettaway (Rogers), who lived at the Gramercy house
and was the brother of victim Frederick Pettaway, defendant and Frederick ran a
bank robbing crew. Defendant was in
charge, but he and Frederick had many clashes over control. They used a “sucker crew†of younger
accomplices who would commit the robberies and deliver the proceeds to them, in
exchange for a fee of $1,500 or less.
Defendant and Frederick split partners’ shares of the proceeds. Victim Willie Williams, a childhood friend of
Frederick’s, began as a member of the sucker crew, but worked his way up to
become one of the leaders with defendant and Frederick. All told, the crew robbed six to eight banks
and made approximately $400,000.
In
addition to running the bank robbery crew, defendant was a member of the Van
Ness Gangsters (VNG), a Bloods affiliated gang of about 60 to 80 members, which
claimed the area in which the Gramercy house was located. Defendant was an “original gangsterâ€, or
“O.G.â€, and thus a shot caller who managed gang activities. Some members of the sucker crew were VNG
members. Neither Frederick nor Williams
were VNG members.
On
the day of the shooting, Rogers was in the yard at the Gramercy
house with, among others, defendant, Frederick, and Williams. They were discussing using some of the bank
robbery proceeds to pay for the funeral of Tamille Cooper (Rogers’ step
daughter) who had been killed by a Crips gang member in a drive-by shooting two
days earlier. Frederick wanted to use the proceeds, but
defendant did not. Frederick said that he would “just do it by
[himself]†and would “take some of the money out and do it like that.†After additional argument, Frederick and
defendant agreed to discuss the matter at a later time. They then began smoking “Sherm†and acting
“crazy, stupid.†At some point,
defendant removed his shirt and Rogers observed that he had a gun in his
waistband (he always carried two guns, a nine-millimeter semiautomatic pistol
and a .45 automatic).
Defendant,
Frederick, and Williams left to buy alcohol, and returned about an hour
later. Everything seemed calm. Later in the afternoon, a barbecue was held
across the street. Frederick and
Williams attended around 6:00 p.m.
Theadora Smith, a VNG member who had known defendant for 13 years, was
across the street from the barbecue smoking Sherm. She saw Frederick and Williams walk up to
defendant. Williams tried to talk to
defendant, but defendant said he did not want to hear it and repeatedly told
Frederick to get Williams away from him.
Then defendant started shooting.
Frederick and Williams fell to the ground.
Jonathan
Hunter, a VNG member, was present at the barbecue.
semiautomatic pistol and grab Williams by the neck. When defendant pointed the gun at Hunter,
Hunter backed away slowly, then ran to his Camaro. He drove to his grandmother’s house where he
retrieved an AK-47 and returned to the barbecue. He saw defendant holding Williams and begin
shooting. Frederick was trying to talk
to defendant, at which point defendant began shooting Frederick. Hoping to make defendant leave, Hunter fired
his AK-47 into the air.
John
Henry Mitchell was sitting in his truck outside the barbecue. He saw defendant shoot two men outside and
then walk down 52nd street.
After
the shooting, Rogers saw defendant, holding a black steel handgun, get into the
passenger side of a brown Dodge and drive down 52nd Street. Rogers ran across the street and found
Frederick lying on the grass. Williams
was lying on his back on the driveway.
Rogers asked who did it. Williams
said, “Man, you know who did it. The
same people we’ve been with all day. . . .
Why did they do it?â€
Frederick
died at the scene. Williams was
transported to the hospital, where he later died. The cause of death for both was multiple
gunshot wounds.
DISCUSSION
I.
Gang Allegations
As
to both murders, the jury found true the gang murder special circumstance
(§ 190.2, subd. (a)(22)), which requires that the defendant “intentionally
killed the victim while the defendant was an active participant in a criminal
street gang . . . and the murder was
carried out to further the activities of the criminal street gang.†(Italics added.) As to the murders and the possession of a
firearm by a felon, the jury also found true the gang enhancement allegation
(§ 186.22, subd. (b)(1)), which requires that the underlying felony was
“committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific
intent to promote, further, or assist in any criminal conduct by gang members.†(Italics added.)
Defendant
contends that the evidence was insufficient to support the jury’s findings on
these allegations, because the evidence showed that the killings were based on
a personal motive (a dispute over leadership of the bank robbery crew) and not
to further the activities of the VNG gang (§ 190.2, subd. (a)(22)) or to
promote criminal conduct by the gang (§ 186.22, subd. (b)(1)). We disagree.
Of course, we view the evidence in the light most favorable to the
judgment. (People v. Earp (1999) 20 Cal.4th 826, 887-888.)
It
is true that the evidence suggested that defendant settled his rivalry with
Frederick Pettaway for control of the bank robbery crew by killing him and
Willie Williams. But as the prosecutor
argued, the evidence also supported a second motive: “the sheer intimidation, reputation-enhancing
factor of gang violence†aimed at elevating defendant’s status and that of his
gang so as to promote and further the gang’s criminal activities.
Los
Angeles Police Officer Angel Sambrano, whose assignment during his time as a
gang officer from 2002 to 2007 included gathering intelligence on the VNG gang,
testified as the prosecution gang expert.
As an “original gangster,†or “O.G.†in the VNG gang, which had about 60
to 80 members, defendant was “in the upper echelon [of the gang.] He [was] the shot caller.†As a Blood gang, the VNG gang was vastly
outnumbered in membership by the Crips gangs.
The primary activities of the VNG gang included murders of rival gang
members, assaults with deadly weapons, robberies, burglaries, and narcotic
sales, by which the gang established respect through fear and
intimidation.
Officer
Sambrano was asked a hypothetical question in which he was to assume, based on
the evidence in the present case, that:
(1) a leader in the VNG gang also led a bank robbery crew that had both
VNG and non-VNG members; (2) the leader was involved in a rivalry with a
non-member of VNG who belonged to the bank robbery crew; (3) at a memorial
barbecue for a friend where many other VNG members were present, the leader
dragged the nonmember of VNG by the neck across the street and fired multiple
shots, hitting the nonmember and another person; and (4) the leader made no
effort to conceal his identity.
Based
on these assumed facts, Officer Sambrano expressed the opinion that the
shooting and the possession of a firearm were committed in association with and
for the benefit of the VNG gang. The
killing of a robbery crew member by the leader of the crew, also a leader in
the VNG, created respect in the gang for the leader and generated fear of the
gang in the community, because the leader “had the guts to kill someone in
front of everyone [at a VNG gathering] and not really care.†Also, “rival gangs now know that someone in
[the VNG gang] means all business and is not afraid to kill another human
being.†Moreover, because the leader was
a shot caller in the VNG and thus directs gang activity, the shooting can be
considered to have been committed at the direction of the VNG, with the intent
of assisting the gang in criminal activity: it was aimed at laying down the
rules of the gang and enforcing discipline (some members of the crew were also
VNG members), and also protected VNG territory in that rival gangs would know
the VNG gang can commit shootings on their turf and get away with it. By the same rational, the shooting furthered
the activities of the VNG gang.
As
defendant concedes, the California Supreme Court has found expert testimony
sufficient to support the gang enhancement allegation: “Expert opinion that
particular criminal conduct benefited a gang by enhancing its reputation for
viciousness can be sufficient to raise the inference that the conduct was
‘committed for the benefit of . . . a[] criminal street gang’ within the
meaning of section 186.22(b)(1).†(
63.) Here, we find the testimony of
Officer Sambrano sufficient for the jury to infer that defendant sought not
simply to resolve his rivalry with Frederick Pettaway over control of the bank
robbery crew, but to do so in an openly violent way, in the presence of other
VNG members and non-members, with the intent to further the activities of the
VNG gang (§ 190.2, subd. (a)(22)) and promote
(§ 186.22, subd. (b)(1)).
Defendant
contends that other than his gang membership, there was no connection between
the gang and his crimes whatsoever, and that Officer Sambrano’s testimony is
rank speculation. However, it is not
unreasonable to infer that defendant, a shot caller in the VNG, intended to
enhance his reputation and that of his gang by brazenly killing two members of
his bank robbery crew in front of fellow VNG members and other persons, thereby
demonstrating his viciousness and that of the VNG gang. In doing so, he promoted and furthered the
criminal activity of his gang.
II. Section 654
Defendant
contends that his possession of a firearm was incidental to his commission of
the murders, and that therefore the trial court erred under section 654 in
sentencing him for the possession of the firearm. However, the evidence was sufficient for the
trial court to conclude that the possession of the firearm “was antecedent to
and separate from the primary offense†of murder, and committed with a separate
intent. (People v. Jones (2002) 103 Cal.App.4th 1139, 1147.) Rogers Pettaway testified that hours before
the killings he saw defendant remove his shirt, revealing a handgun in his
waistband. This occurred long before the
confrontation with Frederick and Williams at the barbecue that resulted in the
killings. Further, according to Rogers,
defendant always carried two guns, a nine-millimeter semiautomatic pistol and a
.45 automatic. Thus, the trial court
could reasonably conclude that defendant’s illegal possession of a firearm was
complete long before the shooting, and that defendant had a different intent
and objective in possessing the firearm than his intent in the murders. Hence, the trial court did not err under
section 654 in sentencing defendant for that possession. (Jones,
supra, 103 Cal.App.4th at pp. 1147-1148.)
DISPOSITION
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA,
J.
name="_ftn1" title="">[1] All
undesignated section references are to the Penal Code.
name="_ftn2" title="">2 Smith gave this version of events in
a written statement to Los Angeles Police Detective Grace Garcia in 2006 while
in prison. At trial she testified that she wrote what the police wanted her to
say.
