P. v. Jones
Filed 3/29/13 P. v. Jones CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH
WAYNE JONES,
Defendant and Appellant.
B236850
(Los Angeles County
Super. Ct. No. BA292350)
APPEAL from a judgment of the Superior Court of
County, Robert J. Perry, Judge. Affirmed.
Peter Gold, 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, James William Bilderback II and Tita Nguyen, Deputy Attorneys
General, for Plaintiff and Respondent.
Joseph Wayne
Jones appeals from the judgment entered following his conviction on one count
of first degree murder (Pen. Code,
187, subd. (a)), four counts of attempted
murder (Pen. Code, §§ 664/187, subd. (a)), and one count of
Code, § 246).
title="">[1] Appellant raises three issues on appeal, none
of which we find meritorious. We
therefore affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
I. Prosecution
Evidence
A. October 20, 2005
Turner Residence
(Counts
3-6)
Lester Turner and Andre Turner lived
on 84th Street in Los Angeles with their grandfather, John Turner.
Trey Gangster Crips gang.
Around 5:15 p.m. on October 20,
2005, John
was sitting inside the house in a room facing the street. Lester, Andre, and a friend, Kevin Ingram,
were in the driveway outside the house working on Lester’s car.
Three African American men in their
early 20’s and wearing hoodies drove a grey pickup truck down the street, got
out of the truck, and started walking toward the Turner residence. Andre could not see their faces because of
the hoodies, so he thought they were friends of his and said, “What’s up?†They replied, “What’s up?†and then started
shooting at the house. One of the three
used a rifle, and the other two used handguns.
Andre ran into the house through the
front door, Lester ran to the back of the house and jumped inside through a
window, and Ingram ran away through the backyard. Numerous shots were fired, but no one was
hit. After shooting, the men ran back to
their truck and drove away.
On October 23,
2005, two
detectives went to the Turner residence to interview Andre, who was nervous
about being interviewed. As they passed
through the living room to interview Andre in an adjacent room, one detective
saw a young Black male in the living room motion to Andre not to say anything
to the police. Andre identified Damien
Watts in a six-pack photographic lineup as a Rollin’ 60’s gang member with the
moniker “Chopper†whom he knew from jail, but he did not identify a
shooter.
Later that evening, Officer Richard
Mendoza and his partner went to the Turner residence and asked Andre about the
shooting. Andre said that he knew “Chopper
from 60’s†shot at his house, but he told Officer Mendoza that he would not
testify because he was not a snitch. At
trial, Andre denied saying this.
Fred Johnson lived across the street
from the Turners and witnessed the shooting.
At a live lineup in December 2005 and subsequently at trial, Johnson
identified Watts as the shooter with the rifle.
B. October 20, 2005,
About five minutes after the shooting
at the Turner residence, a shooting occurred a little over a mile away at the
home of Robin Sanders (Robin) on Halldale Avenue in Los Angeles.
She was inside her home at the time, and her nephew Thomas Maleik
Sanders (Sanders) was there to visit and do his laundry.
Sanders’ friend, Paul Fry, had driven
Sanders to Robin’s house and was waiting in the car in the driveway. Fry was a member of the Bounty Hunter Bloods
gang, but Sanders was not a gang member.
After Sanders finished his laundry, he
and Fry got in the car with the windows rolled down. When Fry started the car, an African American
male ran up to Fry’s window and pointed a handgun at him. Fry heard two or three clicks, but the gun
did not fire. The man ran away toward
the street.
As Fry tried to back out of the
driveway, he looked through the passenger window and saw a different man two
houses down, wearing a hoodie and holding an AK-47 and shooting it numerous
times.
Fry tried to drive away, but he was
shot three times. His car spun out of
control and ended up in someone’s yard.
A grey pickup truck stopped near Fry’s car, and the occupants looked at
Fry and Sanders before driving away.
Sanders was shot numerous times on the right side of his body and died
as a result of his wounds.
C. Appellant’s
Statements to Police
Appellant was interviewed by the
police on October 23, 2005.
He identified Watts and Jason Weldon from six-pack photo lineups and said that Watts and Weldon had told him Watts fired an AK-47 at Eight Trey
Gangster Crips and at the Turner residence.
Appellant also said that Weldon had borrowed appellant’s pickup truck
and either drove the truck or rode as a passenger on October
20, 2005. He identified Anthony Padilla as either the
driver or a passenger in the truck that day.
In a subsequent interview, appellant
admitted being a passenger in the truck during both of the shootings. He said that on October 20, Weldon came to
his house and told him he needed to go with him because “one of the homies had
got shot.†While they were talking,
Derek Brown called appellant and said that someone had threatened his
father. Appellant and Weldon picked up
Brown and decided to pick up Watts and get an AK-47 rifle.
Brown, Weldon, and Watts told another
gang member they were going to “put in work†by robbing someone and “shoot[ing]
up something.†Appellant drove them to
pick up Padilla, and Padilla then drove them to the Turner residence, where
Watts, Weldon, and Brown shot at the house.
Padilla had difficulty driving appellant’s truck, so appellant told him
to pull over, and appellant started driving.
After this shooting, appellant thought they were going to go home, so he
told the others, “Go home. Let’s go,
man,†but “they don’t want to listen.â€
When they drove by the Sanders
residence, appellant and Brown told the others that Sanders and Fry were not
gang bangers, but Watts insisted on stopping and getting out of the truck. Appellant told the police, “I told them, I
actually told them, that dude [Sanders] is innocent. I knew them dudes were no gang bangers.†During his interview, appellant asked if the
police would have mercy on him and expressed fear that he would be killed
because he was snitching. Appellant
stated that he “never wanted to get part of none of this,†explaining that he
had “been trying to leave this stuff alone.â€
D. Gang
Evidence
Detective David Ross testified about
gang members’ use of monikers, how they join the gang, and the importance of
territory to a gang. He also explained
the concept of putting in work for the gang, stating that the best example of
putting in work would be to shoot at rival gang members.
Detective Ross also testified about
the Rollin’ 60’s Neighborhood Crips, a gang that he had monitored for four
years while working for the gang unit.
He knew that Watts was a member of the Rollin’ 60’s Neighborhood Crips
with the moniker Chopper and that appellant also was a member, with the moniker
Mr. Capo.
Officer Mendoza testified that
snitching was not tolerated in gang culture and could result in the snitch
being killed. He also explained the
significance of territory to gangs and the reason gang members go into a
rival’s territory on a mission. He knew
Watts and testified that Watts had told him he was a member of the Rollin’ 60’s
Neighborhood Crips.
One of the Rollin’ 60’s gang’s rivals
was the Eight Trey Gangster Crips, and both of the October 20, 2005 shootings
occurred in Eight Trey gang territory.
Given a hypothetical based on the facts of these shootings, Detective
Ross opined that the shootings were committed for the benefit of, at the
direction of, or in association with, the Rollin’ 60’s gang to promote or
further the gang’s criminal conduct.
II. Defense
Evidence
The defense presented no
evidence.
III.
Appellant was charged in a 12-count
amended information with three counts of murder (counts 1, 8, 11), six counts
of attempted premeditated murder (counts 2, 3, 4, 5, 9, 10), one count of
shooting at an inhabited dwelling (count 6), and one count of second degree
robbery (count 12).
title="">[3] The information included allegations that the
offenses were committed for the benefit of a criminal street gang, that
appellant intentionally killed the victim while appellant was an active
participant in a gang, and that a
principal intentionally discharged a firearm, causing great bodily injury and
death. (§§ 186.22, subd. (b)(1)(A),
190.2, subd. (a)(22), 12022.53, subds. (b)-(e).) The prosecution subsequently dismissed counts
8-10. During trial, the trial court
granted appellant’s motion to dismiss counts 11 and 12 for insufficient
evidence pursuant to section 1118.1.
The jury found appellant guilty of all
six remaining counts and found that the murder was in the first degree and the
attempted murders were willful, deliberate and premeditated. The jury also found the firearm and gang
allegations to be true. Appellant filed
a motion for a new trial regarding the special circumstance allegation in count
1 that appellant intentionally killed Sanders while appellant was an active
participant in a gang, pursuant to section 190.2, subdivision (a)(22). The court denied the motion.
The court sentenced appellant to a
total term of life imprisonment without the possibility of parole plus four
life terms and a consecutive term of 110 years to life, calculated as
follows: count 1, life imprisonment
without the possibility of parole, plus 25 years to life under section
12022.53; count 2, a consecutive term of life imprisonment with the possibility
of parole, plus 25 years to life for the section 12022.53 allegation; count 3,
a consecutive term of life imprisonment with the possibility of parole, plus 20
years to life under section 12022.53; count 4, a consecutive term of life
imprisonment with the possibility of parole, plus 20 years to life for the section
12022.53 allegation; count 5, a consecutive term of life imprisonment with the
possibility of parole, plus 20 years to life for the section 12022.53
allegation; count 6, the upper term of 7 years plus 5 years pursuant to section
186.22, to run concurrent with the other sentences. Appellant filed a timely notice of
appeal.
DISCUSSION
Appellant raises three issues. First, he contends that the trial court
violated his right to an impartial jury when it limited the questioning of
prospective jurors during voir dire.
Second, he contends that the evidence is insufficient to support the
allegation that he intentionally killed Sanders while an active participant in
a gang. Third, appellant contends that
the trial court erred in imposing a concurrent term for count 6, rather than
staying the sentence pursuant to section 654.
I. Voir
Dire
Appellant contends that the trial
court’s limitation on voir dire violated his
jury. Prior to jury selection, the trial
court informed counsel that the court would question the prospective jurors
first and allow counsel 30 minutes each to question the first 35 prospective
jurors. Defense counsel objected,
arguing that this would not give enough time to discern who could be fair,
especially given the emotional and gang-related nature of the crime. The court admonished defense counsel to “do
your best,†stating that it had never had a problem with a restriction on voir
dire. The court also read aloud an
excerpt from a case: “It is not the
function of the examination of prospective jurors to educate the jury panel to
the particular facts of the case, to compel the jurors to commit themselves to
vote a particular way, to prejudice the jury for or against a particular party,
to argue the case, to indoctrinate the jury, or to instruct the jury on matters
of law,†and admonished counsel to “abide by those limitations.â€
The court questioned the first 3
prospective jurors regarding general issues and hardships and excused several
for hardship. Defense counsel then
questioned the prospective jurors as a group, following up with a few
individual questions. After the prosecutor’s
voir dire, both sides exercised peremptory challenges and selected the
jury.
“‘The right to voir dire, like the
right to peremptory challenge . . . , is not a constitutional right but a means
to achieve the end of an impartial jury.’
[Citation.] . . . It is conducted . . . under the supervision
of the trial court and its scope is necessarily left primarily to the sound
discretion of that court.
[Citation.]†(
1315, 1324.)
Code of Civil Procedure section 223
governs voir dire in criminal cases and provides as follows: “In a criminal case, the court shall conduct
an initial examination of prospective jurors.
The court may submit to the prospective jurors additional questions
requested by the parties as it deems proper.
Upon completion of the court’s initial examination, counsel for each
party shall have the right to examine, by oral and direct questioning, any or
all of the prospective jurors. The court
may, in the exercise of its discretion, limit the oral and direct questioning
of prospective jurors by counsel. The
court may specify the maximum amount of time that counsel for each party may
question an individual juror, or may specify an aggregate amount of time for
each party, which can then be allocated among the prospective jurors by
counsel. Voir dire of any prospective
jurors shall, where practicable, occur in the presence of the other jurors in
all criminal cases, including death
penalty cases.
“Examination of prospective jurors
shall be conducted only in aid of the exercise of challenges for cause.
“The trial court’s exercise of its
discretion in the manner in which voir dire is conducted, including any
limitation on the time which will be allowed for direct questioning of
prospective jurors by counsel and any determination that a question is not in
aid of the exercise of challenges for cause, shall not cause any conviction to
be reversed unless the exercise of that discretion has resulted in a
miscarriage of justice, as specified in Section 13 of Article VI of the California
Constitution.†(Code Civ. Proc.,
§ 223.)
“‘The trial court . . . has a duty to
restrict voir dire within reasonable bounds to expedite the trial. [Citation.]’
[Citation.] We review a trial
court’s limitations on voir dire for abuse of discretion. [Citations.]â€
(People v. Virgil (2011) 51
Cal.4th 1210, 1246.)
The trial court abided by the
requirements of Code of Civil Procedure section 223 by conducting an initial
examination of the prospective jurors, which included questions regarding
potential bias from past experiences with relevant issues such as crime, law
enforcement, or gangs. Counsel for both
sides then had the right to examine the prospective jurors, subject to the
court’s 30-minute time limitation.
Defense counsel asked questions of the prospective jurors, including
specific questions of the only individual prospective juror who indicated an
inclination to believe that gang members are not good people.
Appellant cites the “highly emotional
and gang-related†nature of the charges to argue that more time was needed to
discern which jurors could be fair.
However, defense counsel did explore the bias that could arise from the
gang-related nature of the offenses with the one prospective juror who expressed
a concern about gangs, and the trial court followed up that discussion by
emphasizing that the burden was on the prosecution to prove the case and that
the jurors needed to convict only if they were convinced by the evidence. The record indicates that the trial court did
not abuse its discretion in imposing limitations on voir dire.
II.
Appellant contends that the evidence
is insufficient to support the finding that appellant intended to kill Sanders
for purposes of the section 190.2, subdivision (a)(22) special circumstances
allegation. Section 190.2, subdivision
(a)(22) provides for a penalty of death or life without the possibility of
parole for a defendant found guilty of first degree murder if “[t]he defendant
intentionally killed the victim while the defendant was an active participant
in a criminal street gang, as defined in subdivision (f) of Section 186.22, and
the murder was carried out to further the activities of the
“On appeal, an appellate court
deciding whether sufficient evidence supports a verdict must determine whether
the record contains substantial evidence – which we repeatedly have described
as evidence that is reasonable, credible, and of solid value – from which a reasonable
jury could find the accused guilty beyond a reasonable doubt. [Citation.]â€
(People v. Hovarter (2008) 44
Cal.4th 983, 996-997, italics deleted.)
“‘In assessing the sufficiency of the
evidence, we review the entire record in the light most favorable to the
judgment to determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
[Citations.]’ [Citation.] We resolve all conflicts in the evidence and
questions of credibility in favor of the verdict, and indulge every reasonable
inference the jury could draw from the evidence. [Citation.]
This standard applies whether direct or circumstantial evidence is
involved. [Citation.] It also applies when determining whether the
evidence is sufficient to sustain a jury finding on a gang enhancement. [Citations.]
Reversal is unwarranted unless “‘upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].â€â€™ [Citation.]â€
(People v. Mendez (2010) 188
Cal.App.4th 47, 56.)
Appellant contends that the jury’s
special circumstance finding should be reversed because there was insufficient
evidence that he acted with an intent to kill Sanders.
interviews that he tried to convince Watts and the others not to shoot Sanders
and Fry because they were innocent and were not gang bangers.
The evidence is sufficient to support
the jury’s finding on the special circumstance allegation. Appellant’s statements during his police
interviews indicate that he helped prepare for the shootings by picking people
up and helping to get the AK-47. He knew
what was going to take place, and he drove his truck to the Sanders
residence. Although he stated that he
wanted to go home and did not want the others to shoot Sanders because he was
“innocent,†appellant stopped the truck to let Watts out, waited while he
fired, and then drove them away afterward.
The jury was free to disbelieve his protestations of innocence. Viewing, as we must, the evidence in the
light most favorable to the judgment, we conclude that there is sufficient
evidence to support the jury’s special circumstance finding.
Appellant argues in the alternative
that the trial court abused its discretion in denying his motion for a new
trial. “‘We review a trial court’s
ruling on a motion for a new trial under a deferential abuse-of-discretion
standard.’ [Citations.] ‘“A trial court’s ruling on a motion for new
trial is so completely within that court’s discretion that a reviewing court
will not disturb the ruling absent a manifest and unmistakable abuse of that
discretion.â€â€™ [Citations.]†(People
v. Thompson (2010) 49 Cal.4th 79, 140.)
The trial court denied appellant’s new
trial motion, finding that there was an intent to kill and that the evidence
supported the jury’s finding. Again,
there was sufficient evidence to support the jury’s finding. The trial court’s ruling was not an abuse of
discretion.
III. Section
654
Appellant contends that the trial
court erred in imposing a concurrent term on count 6, shooting at an inhabited
dwelling, rather than staying the sentence pursuant to section 654, because it
was based on the same conduct as that charged in the attempted murder
counts. Section 654 provides in relevant
part that “[a]n act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.†(§ 654, subd. (a).)
“‘[S]ection 654 applies not only where
there was but one act in the ordinary sense, but also where there was a course
of conduct which violated more than one statute but nevertheless constituted an
indivisible transaction. . . . If all
the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]â€
(People v. Wynn (2010) 184
Cal.App.4th 1210, 1214-1215.)
“On the other hand, section 654 does
not apply when the evidence discloses that a defendant entertained multiple
criminal objectives independent of each other.
In that case, ‘the trial court may impose punishment for independent
violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of
conduct. [Citations.] The principal inquiry in each case is whether
the defendant’s criminal intent and objective were single or multiple.’ [Citation.]
‘A defendant’s criminal objective is “determined from all the
circumstances and is primarily a question of fact for the trial court, whose
findings will be upheld on appeal if there is any substantial evidence to
support it.†[Citation.]’ [Citation.]â€
(In re Jose P. (2003) 106
Cal.App.4th 458, 469.)
“There is a multiple victim exception
to Penal Code section 654 which allows separate punishment for each crime of
violence against a different victim, even though all crimes are part of an
indivisible course of conduct with a single principal objective. [Citation.]
An assailant’s greater culpability for intending or risking harm to more
than one person precludes application of section 654. [Citation.]â€
(People v. Felix (2009) 172
Cal.App.4th 1618, 1630-1631 (Felix).)
Counts 3, 4, and 5 charged appellant
with the attempted murders of Lester, Andre, and John Doe (presumably Ingram,
whose identity was not determined at first) at the Turner residence, while
count 6 charged him with shooting at the Turner residence. At the sentencing hearing, when the trial
court imposed sentence on count 6, it expressed concern that “there are aspects
of it that make the court think that possibly this is a 654 situation.†The court thus decided “to impose the high
term of 7 years plus 5 years for the 186.22(b)(1) allegation,†and initially
stated that it would stay imposition of that sentence, but then decided to make
the sentence run concurrent to the other sentences.
Appellant contends that the attempted
murders and the shooting at an inhabited dwelling were part of an indivisible
course of conduct with a single objective for purposes of section 654. We need not determine whether these offenses
were part of an indivisible course of conduct because the multiple victim
exception to section 654 discussed in Felix
is directly applicable.
“[W]here the crime of shooting at an
inhabited residence is involved, a defendant need not be aware of the identity
or number of people in the house to be punished separately for each
victim.†(Felix, supra, 172
Cal.App.4th at p. 1631.) Here, Lester,
Andre, and Ingram were outside the house at the time of the shooting, while the
grandfather, John, was inside the house.
John was not accounted for in the attempted murder charges and therefore
was “victimized by the shooting into the dwelling but [was] not [a] named
victim[] in any other count.†(
The multiple victim exception
precludes application of section 654.
The trial court accordingly did not err in declining to stay the
sentence under section 654.
The
judgment is affirmed.
WILLHITE,
J.
We
concur:
EPSTEIN, P. J.
MANELLA, J.
name="_ftn1" title="">[1] All further statutory references are
to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] For ease of reference, the family
members will be referred to by their first names. John was deceased by the time of trial, but
he testified at the preliminary hearing.
