P. v. Fletcher
Filed 7/8/13 P. v. Fletcher CA2/2
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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES FLETCHER et al.,
Defendants and Appellants.
B234595
(Los Angeles
County
Super. Ct.
No. BA331552)
APPEALS
from judgments of the Superior Court
of
County.
Sam Ohta, Judge.
Affirmed as modified.
David M.
Thompson, under appointment by the Court of Appeal, for Defendant and Appellant
James Fletcher.
Danalynn
Pritz, under appointment by the Court of Appeal, for Defendant and Appellant
Jerry Burke.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P.
Hill, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
A jury convicted defendant James Fletcher of one count of
attempted murder (Pen. Code, §§
664/187)
included offense of murder (§ 187) (count 6).
The jury found that Fletcher committed count 1 willfully, deliberately,
and with premeditation, and it found the firearm and gang enhancement
allegations true as to that count. (§§
12022.53, subds. (b), (c), (d) & (e)(1), 186.22, subd. (b).) The jury found that Fletcher personally used
a firearm during the commission of count 6.
(§ 12022.5, subd. (a)).
A jury
convicted defendant Jerry Burke of two counts of attempted murder
(§§ 664/187) (counts 2 & 3).
The jury found that counts 2 and 3 were committed willfully,
deliberately, and with premeditation, and it found the gang enhancement allegations
to be true (§ 186.22, subd. (b)). In
both counts 2 and 3, the jury found true the allegation that a principal
personally discharged a firearm within the meaning of section 12022.53,
subdivisions (b), (c), and (e)(1), but not true as to subdivision (d) of that
statute.
The trial
court sentenced Fletcher to life with the possibility of parole in count 1,
plus a consecutive term of 25 years to life pursuant to section 12022.53,
subdivisions (d) and (e)(1). In count 6,
the trial court imposed a consecutive upper term of 11 years plus a consecutive
10-year firearm enhancement pursuant to section 12022.5, subdivision (a).
The trial
court sentenced Burke to life with the possibility of parole in count 2. The court added a consecutive term of 20
years pursuant to section 12022.53, subdivisions (c) and (e)(1). The trial court imposed an identical
concurrent term in count 3.
Fletcher
appeals on the grounds that: (1) the
evidence was insufficient to support the finding that the attempted murder in
count 1 was willful, deliberate, and premeditated; and (2) he is entitled to two additional days of
presentence custody credit.
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Burke
appeals on the grounds that: (1) the
evidence was insufficient to support the findings that the attempted murders
charged in counts 2 and 3 were willful, deliberate, and premeditated; and
(2) he was denied his
counsel because his trial attorney should have requested an instruction on
provocation and advocated for second degree attempted murder.
Fletcher
and Burke join in any of each other’s arguments that may accrue to their
benefit.
FACTS
Prosecution Evidence
The
offenses with which defendants were charged are described in chronological
order. We include a brief summary of the
offenses that the jury found were not proven beyond a reasonable doubt, since
they played a role in the investigation.
Count 6: Shooting of Victim Rhaburn (Fletcher
Convicted of Voluntary Manslaughter)
Officer
Bryan Delavan of the Los Angeles Police Department (LAPD) responded to a radio
call regarding a shooting at the intersection of Coco Avenue and Pinafore
Street in Los Angeles at approximately 5:30 a.m. on August 26, 2007. Officer Delavan arrived at the scene and saw
a car with its lights on and the engine running. The car contained the body of an
individual. The victim, later identified
as Eligah Rhaburn, was sitting in the driver’s seat and had several gunshot
wounds, including one near the back of the head. The victim’s car had crashed into a parked
minivan at the curb. The driver’s side
window and left rear window of the vehicle had been shot out, and the right
front passenger window of the vehicle had shattered. An autopsy revealed that Rhaburn died of
multiple gunshot wounds and had suffered seven such wounds. The pathologist believed Rhaburn was shot
from the driver’s side of his vehicle.
LAPD
Detectives James Yoshida and Richard Gordon responded to the scene later that
morning. Detective Yoshida found 11
spent .45-caliber cartridge casings at the scene. Detective Yoshida also found three expended
bullets at the scene—two on Pinafore Street and one near Mr. Rhaburn’s vehicle.
LAPD
criminalist Vanessa Gould conducted a bullet path analysis on Rhaburn’s
vehicle. She noted approximately 14
impacts to the vehicle. The pathways of
all the bullets originated on the left side of Rhaburn’s car and moved from
front to back.
Rhaburn was shot in a residential
neighborhood of South Los Angeles that is often referred to as “the
jungle.†The neighborhood is claimed as
the territory of the Black P-Stone Bloods criminal street gang. Rhaburn was a member of the Black P-Stone
Bloods.
Counts 2 and 3,
Victims Erwin and Mario Alvarado (Burke Convicted of Attempted Murder; Fletcher
Acquitted)
On
September 20, 2007, at approximately 1:45 a.m., Erwin Alvarado was driving his
Ford Explorer on Westhaven Street in Los Angeles. Erwin’s cousin, Mario Alvarado, was in the
front passenger seat of the vehicle.
they were unarmed. As Erwin approached
Redondo Boulevard, he saw that two cars were blocking the street and not
letting cars pass through. There was a
white Toyota Camry with tinted windows double parked in the street directly
behind a white Chevrolet Impala. Erwin
moved closer so that people could see he was trying to get through.
Erwin
recalled that at least three Black males approached him and Mario, and one of
them pulled out a gun and shot at them from a distance of two car lengths. Then the other two men began shooting at
Erwin and Mario also. Erwin put his head
down and began reversing the Explorer.
At one point, he looked up and a bullet grazed his forehead. Erwin collided with a couple of cars as he
reversed. When he looked up, the
shooting had stopped and it looked like the shooters had gone. Erwin drove to his aunt’s house and she
called the police. He and Mario were
taken to a hospital.
Mario
recalled that a Black male approached the car and asked Mario what he was doing
there. When Mario said he was going home,
the man said, “Just leave.†Erwin began
to reverse the Explorer, and some other man got out of a vehicle and said,
“Yeah. It’s them,†and “They’re from
18th Street.†Mario recognized that man
because he used to be Mario’s next-door neighbor. Mario knew him as “Jerry.†At trial, Mario indicated that the man was
Burke. The man on the sidewalk was
dark-skinned and wore braids. There was
a third man as well. After Burke made
the remark about 18th Street, he and the man on the sidewalk, whom Mario identified
at trial as Fletcher, started shooting at Mario and Erwin with a .45-caliber
weapon. Burke shot into the front of the
Explorer, and the other man into the passenger side. The Explorer was hit by 12 bullets. Mario was struck by a bullet from the man on
the sidewalk. Mario suffered a
through-and-through wound in his forearm and one just above his stomach. A bullet is still inside his body.
LAPD
Officer Alfredo Ibanez responded to a radio call regarding the shooting and
arrived at the scene at approximately 1:50 a.m.
Officer Ibanez recovered 17 spent .45-caliber shell casings and four
expended .45-caliber bullets from the intersection.
Although
Mario was not a gang member, he knew that the 18th Street gang claimed the area
where he lived, and he knew some of the gang’s members. He knew that the Geer Street Crips inhabited
the same area. Mario had seen Burke
almost daily when they were neighbors.
He described their former relationship as a friendship. Mario was shown a six-pack and circled Burke’s
photograph. He wrote that “The person,
No. 4, was the one that said, yes, they’re from 18th Street and started
shooting at us.â€
At trial,
Mario at first denied that he had previously told police he could not identify
Burke. He later acknowledged that he
told police at first he did not remember anything and could not identify
anyone. He delayed because he was
scared. The first time he identified
Fletcher was at trial. He then said he
was “kind of†not really sure Fletcher was there. Mario testified that the Chevrolet Impala
depicted in the photograph that LAPD Detective Charles Geiger had shown him was
not the same vehicle that had been parked in front of the Camry on the night of
the shooting.
Detective
Geiger heard about the Alvarado shooting a couple of days after it
occurred. When he interviewed Mario at
his residence, Mario was cooperative but scared. He told Detective Geiger that he did not get
a very good look at anyone during the shooting.
In a second interview, when shown a picture of a Chevrolet Impala, Mario
said it looked like one of the cars used by the suspects. Mario changed his story that day and told
Detective Geiger that he had been afraid to say anything, but he recognized one
of the people involved in the shooting as a person he knew as Jerry, who had
lived next door to him. Mario knew Jerry
was a Geer Gangster Crip. Detective
Geiger showed Mario a six-pack containing a photo of Fletcher, but Mario was
unable to identify anyone.
Mario had
previously lived in the 2300 block of South Ridgeley Drive in
Los Angeles. In 2004, Burke told
police officers that he lived in the 2300 block of South Ridgeley Drive in Los
Angeles. Mario had moved away from
Burke’s neighborhood sometime prior to the shooting.
Count 1: The Shooting of Victim Campos (Fletcher
Convicted of Attempted Murder)
On the same
day as the Alvarado shootings, at approximately noon, Victor Campos was
standing and speaking with a neighbor outside his apartment building, which was
located near the intersection of Carlin Street and Hauser Boulevard in
Los Angeles. This area is 18th
Street gang territory, although the Geer Street Crips share some of the same
area. Campos is not a gang member. A silver or gray Impala with two Black
occupants approached. Campos stared at
the car. He clearly heard one of the
occupants say, “Fuck 18th Street.†The
passenger shot at Campos with either a .45-caliber or a .22-caliber handgun. Campos looked at the shooter’s face, but at
the preliminary hearing and at trial he was unable to identify anyone. He denied being afraid because it was a gang
case. Campos suffered a
through-and-through wound in the back in the area of his shoulder.
A few days
later, Campos looked at some photographs after being admonished by
detectives. Campos chose picture No. 3
in a photographic lineup (six-pack) (People’s Exh. No. 95), and wrote, “person
picture 3, the shooter.†Picture No. 3
was a picture of Fletcher. At trial,
Campos stated that “it looked like him at the moment.†At the preliminary hearing, Campos testified
that he identified the person in the picture from the braids the person wore
rather than the face. Campos was shown a
picture of a gray Impala (People’s Exh. No. 74). He testified that he told police “it looked
like the car of that day.â€
Detective
Geiger responded to a radio call regarding the Campos shooting. He found a blood trail and one expended
.45-caliber shell casing under a truck parked on the street. Detective Geiger met with Campos at the
hospital, and he later interviewed Campos and showed him a six-pack. Campos circled Fletcher’s picture and
indicated that Fletcher, in picture No. 3, was the person who shot him. Campos did not say “‘maybe.’†When Campos saw the picture of the gray
Impala, he said, “That’s the car.â€
The jury
heard a recording of a 911 call reporting the shooting, and jurors were given
transcripts of the call. The anonymous
caller told the 911 operator that someone had shot two to three times from a
silver Chevrolet with no license plate.
Counts 4 and 5,
Victims Rudy Chavez and Gustavo Guzman (Fletcher Acquitted of Attempted
Murders)
Five days
after the Alvarado and Campos shootings, at approximately 1:46 p.m., a 911
dispatcher received an anonymous call about shots fired on Westhaven Street
near Redondo Boulevard. The caller saw a
white Chevrolet Malibu fleeing the area.
The car appeared to have two male Black occupants. LAPD Officer William Corona responded to the
shooting scene. He saw debris from an
auto accident, including the grill assembly and rear bumper from a Chevrolet
sedan. The bumper had a black paper
plate on it. The license plate frame
read, “Torrance, Martin Chevrolet.â€
Officer Corona found eight shell casings in the intersection. Seven of the casings were from a nine-millimeter
handgun and one was from a .45-caliber handgun.
Officer Corona located 11 more shell casings farther down the street.
A witness
approached Officer Corona at the crime scene and said he heard five to six
rapid shots from his second-floor apartment.
He saw a silver sedan speeding eastbound on Westhaven Street. At the intersection with Redondo Boulevard,
the silver car collided with a green car.
The driver of the green car, a male Black, got out and shot at the
silver car. The driver of the silver car,
a male Hispanic, started shooting back.
At
approximately 2:00 p.m. on the day of this incident, LAPD Officer Sung Yoon
went to a hospital located one mile from the intersection of Redondo Boulevard
and Westhaven Street on an unrelated matter.
Upon leaving the emergency room, Officer Yoon saw Rudy Chavez and
Gustavo Guzman walking towards the hospital from a tan Lincoln LS. Chavez had his arm around Guzman and appeared
to be in pain. Guzman told Officer Yoon
that Chavez had been shot in his right leg.
Chavez and Guzman told Officer Yoon differing versions of what had
occurred.
Neither
Chavez nor Guzman, who were 18th Street gang members, testified at trial. Detective Geiger was unable to locate either
victim for trial or for Fletcher’s preliminary hearing.
The Investigation
Leading to Defendants
On
September 19, 2007, Detective Geiger interviewed Demario Green, a member of the
Geer Gang Crips who had been arrested for robbery. Detective Geiger asked Green for information
about members of the Geer Gang Crips who were committing shootings in the
community. Green told the detective that
one of them was known as “Smurf.â€
Detective Geiger determined that Fletcher was a Geer Gang Crip known as
“Smurf.â€
The day
before the Chavez shooting, Detective Geiger conducted surveillance outside of
3460 Hyde Park Boulevard in Los Angeles.
Chevrolet Impala outside of the residence.
He also saw a gray Chevrolet Monte Carlo parked outside. Detective Geiger saw Fletcher get into the
Impala later that day. A bumper found at
the intersection of Redondo Boulevard and Westhaven Street following the
shooting of Chavez appeared to be the same bumper the detective saw on the
Chevrolet Impala parked in front of Fletcher’s apartment building. It was the same color and had the same
license plate frame and paper plate.
Fletcher
was the registered owner of a Chevrolet Monte Carlo. The address listed on appellant Fletcher’s
vehicle registration was 3207 West Adams Boulevard in Los Angeles.
Schmidt executed a search warrant at an apartment located at 3207 West Adams
Boulevard. Sergeant Schmidt found a
semiautomatic .45-caliber firearm underneath a couch cushion. It was a Millennium .45-caliber Taurus. He also found a letter bearing the name of
James Fletcher. The firearm was fully
loaded, with 10 rounds in the magazine and one in the chamber.
LAPD
criminalist Stella Chu examined the weapon recovered from Fletcher’s residence
and test-fired the weapon. Chu compared
the expended bullets and casings to those recovered during the shootings
charged in the instant case. The testing
showed that the gun found in Fletcher’s residence had discharged all of the
ballistic evidence found after the shootings of Rhaburn and Campos. Seven of the 17 shell casings recovered in
the Alvarado shooting had been discharged from the weapon found in Fletcher’s
residence, and 10 of those shell casings were fired from a second weapon. Chu determined that the .45-caliber casing
found at the Chavez shooting scene had been fired from the weapon found in
Fletcher’s residence.
On November
16, 2007, LAPD Detectives Sean Hansen and Richard Gordon interviewed Green, who
was in custody. The jury saw still
photographs taken from the video of Green’s interview and heard a redacted
audio-recording of the interview. Green
said that on the morning of Rhaburn’s shooting, Fletcher, known as “Smurf†and
“Little Smiley,†asked Green if he could leave his gun at Green’s house because
the gun was “hot.†Fletcher did not
leave the gun at Green’s because Green told him the police had recently been
there. Fletcher said he would take the
gun to his mother’s house. The gun was a
.45-caliber Millennium. Fletcher told
Green he had shot someone. Fletcher said
he had been driving to his girlfriend’s residence when a Black man in a car
“rolled up on him.†Fletcher thought the
man was a Blood and was going to shoot him.
Fletcher shot at the man repeatedly and the man’s car crashed into another
car. Green identified Fletcher from a
six-pack. Green identified a photograph
of Burke in a different six-pack and said he knew him as Jay Loc.
Green was
called to testify at trial but he at first refused and was found in contempt of
court. He later agreed to testify under
an immunity agreement. He denied he was
asked about the shooting on Coco Avenue and Pinafore Street. He denied knowing the defendants. He denied saying everything he told the
officers in his interview. On
cross-examination, Green said he made statements to get money and was promised
he would not be charged with a robbery.
Green claimed he made up the information he told the officers. He also claimed he was told what to say.
Gang Evidence
LAPD
Detective David Dilkes testified as a gang expert. He stated that the Black P-Stones are a Blood
gang. The Geer Gang Crips are rivals of
the P-Stones and of the 18th Streeters, a Hispanic gang. The primary activities of the Geer Gang Crips
are the sale of narcotics, drive-by shootings, and assaults with deadly
weapons. Detective Dilkes testified
about the 2005 felony convictions of two Geer Gang Crips members. Fletcher and Burke are members of the Geer Gang
Crips. Fletcher has the monikers of “Little Smiley†and “Smurf.†Burke is known as “J-Loc†or “Blue.â€
Detective
Dilkes explained that the intersection of Coco Avenue and Pinafore Street is in
Black P-Stone Bloods’ territory. Rhaburn
was a member of the Black P-Stones, but he was not an active member. The 18th Street gang is a Hispanic criminal
street gang that claims roughly the same territory as the Geer Gang Crips. The 18th Street gang is much larger than the
Geer Gang Crips. The two gangs were at
war in 2007. Detective Dikes believed
that the intersections where the Campos, Alvarado, and Chavez shootings
occurred are all “stronghold†areas of the 18th Street gang.
Deputy
Dilkes explained that, due to the danger involved, a gang member can greatly
raise his status within his gang by going into a rival gang’s territory and
shooting a rival gang member or someone who appears to be a rival gang
member. A gang member can also raise his
status by shooting a rival gang member or
someone he believes to be a rival gang member when that
person is present in the shooter’s territory.
When presented with a hypothetical based on the facts of the instant
case, Deputy Dilkes was of the opinion that each of the shootings was committed
for the benefit of, or in association with, a criminal street gang.
Defense Evidence
(Fletcher)
Dr.
Mitchell Eisen , a psychologist, testified as an expert on the subject of
memory. Dr. Eisen explained that we have
limits on our attentional capacity. A
person remembers the major features of important events and fills in the gaps
by using inference to complete the picture.
At times the inferences are mistaken.
Once an individual has reconstructed a memory, the most recently
reconstructed version is the one the person will access the next time he or she
accesses that memory. Traumatic stress
causes one to focus on the central elements of the experience, i.e., what is
necessary to surviving the event. The
focus will differ among individuals, but focus on a brandished weapon is very
common.
Dr. Eisen
explained that if someone does not recognize a photograph in a six-pack
immediately, they persevere and pick the closest one. If a witness indentifies someone, whether
correctly or incorrectly, the witness may continue to choose that person in the
future. The memory errors Dr. Eisen
described occur when people are doing their best to be accurate. Dr. Eisen stated that there is no relation
between witness confidence and witness accuracy, and people become more certain
about their identification over time.
Dr. Eisen offered no opinion on the accuracy of any identification of
Fletcher or Burke made by any witness in the case.
Ebony
Clarke is the mother of Fletcher’s son.
Clarke and Fletcher were not living together in 2007. Fletcher drove a gray Monte Carlo, and Clarke
had never seen him drive another type of car.
Fletcher lived at 3460 Hyde Park Boulevard but he was sometimes at his
mother’s house. Fletcher always picked
up their son at preschool Tuesdays through Thursdays between 2:30 or 3:00 p.m.
Kimi Lent
is a gang intervention specialist who testified as a gang expert. To her knowledge, Eligah Rhaburn was not a
Black P-Stone gang member. Lent had met
with Fletcher and knew he had a long history of being a Geer Gang Crip
member. Lent stated that the Black gangs
engage in less rivalry because their main rival is the 18th Street gang. It is a common practice for gang members to
pass around guns. They also pass around
cars, including rented or stolen cars.
She stated there are more personal shootings than gang-related shootings
in the gang neighborhoods, even though a gang member may be the shooter. Lent said that there is animosity between the
Geer Gang and the 18th Street gang. Lent
agreed that if a Geer Gang member saw someone who appeared to be from 18th
Street and then pulled out a gun and shot that person in the back while yelling
“Fuck 18th Street,†it would demonstrate that the Geer Gang member had
hostility towards 18th Street. The same
would be true if someone said “They’re from 18th Street†and began shooting
into a car.
David
Terrell was a member of the Black P-Stone Bloods. He knew Fletcher from a gang intervention
program, from gang banging when they were active, and from being with him in
prison and juvenile hall. Terrell knew
Fletcher to be a member of the Geer Gang Crips who used the moniker, “Little
Smiley.†Fletcher had always driven a
Monte Carlo. Terrell and Fletcher had
been enemies at one time, but Fletcher had a “pass†to go to the Black P-Stone’s
area. In other words, Fletcher could
enter rival gang territory without the threat of violence, and he did so on
many occasions.
Terrell
stated that gang members pass around guns and cars. To Terrell’s knowledge, Eligah Rhaburn was
not a Black P-Stone. Rhaburn’s tattoos
were not related to the Black P-Stone Bloods.
According to Terrell, the Geer Gang Crips are not rivals of the Black
P-Stones; rather, they have been allies for about 10 years. At the time of his testimony, Terrell was in
custody on a parole violation. He had
suffered a conviction for possession of a firearm and had violated his parole
condition that prohibited him from associating with other gang members. Terrell had seen appellant Fletcher in
custody every day prior to trial, and they had engaged in brief conversations.
DNA tests
performed on swabs taken from the firearm recovered from the residence of
Fletcher’s mother demonstrated that his DNA was inconsistent with the profiles
obtained from the weapon, which were of two different individuals. Burke could not be excluded as a contributor
to the DNA profile found on the weapon.
It was possible that the criminalist who test-fired the weapon
contributed to the DNA profile. DNA is
not always left on the surface of a handgun after it has been used, and DNA
evidence can be wiped away.
LAPD
Criminalist Margaret Kaleuati analyzed the gunshot residue evidence taken from
Rhaburn’s hands. The tests showed that
Rhaburn had particles on his right hand that were consistent with gunshot
residue. This residue could have been
the result of being within 14 feet of a gun being shot. Kaleuati explained that is common to find
gunshot residue on a shooting victim.
LAPD
Detective Brandy Arzate determined that the bumper found in the intersection of
Redondo Boulevard and Westhaven Street following the incident with Guzman and
Chavez bore a license plate frame that read, “Torrance, Martin Chevrolet.†The paper plate read, “Melika Auto
Sales.†The sales records of Melika Auto
Sales showed that a car that was a close match to the silver or gray Impala was
sold, but without the vehicle identification number, there was no ability to
compare it to the car Detective Geiger had seen Fletcher driving.
Mark Cova
managed the account services department at Westcom Credit Union. Fletcher obtained a loan on March 16, 2007,
to purchase a 2005 Chevrolet Monte Carlo from Melika Auto Sales. A Jason Johnson purchased a 2006 Chevrolet
Impala. Fletcher listed his home address
as 3207 West Adams Boulevard in Los Angeles on the financing contract.
Defense Evidence (Burke)
Burke did not testify on his own behalf and presented no
affirmative evidence.
DISCUSSION
I. Sufficiency of the Evidence of Willful,
Deliberate, and Premeditated Attempted Murder (Count 1)
A. Fletcher’s Argument
Fletcher
contends that, assuming he was the shooter, no rational trier of fact could
have found beyond a reasonable doubt that the attempted murder of Campos was
willful, deliberate, and premeditated.
There was no credible evidence of any planning activity or motive to support
the finding. Fletcher asserts that not
every drive-by shooting involving a gang member meets the requirements to
impose a life sentence.
Attempted
murder requires express malice, and, on appeal, we do not distinguish between
attempted murder and completed first degree murder to determine whether there
is sufficient evidence to support the finding of premeditation and
deliberation. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8,
disapproved on another point in People v.
Mesa (2012) 54 Cal.4th 191, 199.)
“Review on
appeal of the sufficiency of the evidence supporting the finding of
premeditated and deliberate murder involves consideration of the evidence
presented and all logical inferences from that evidence in light of the legal
definition of premeditation and deliberation . . . . Settled principles of appellate review
require us to review the entire 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—from which a
reasonable trier of fact could find that the defendant premeditated and
deliberated beyond a reasonable doubt.
[Citations.]†(
1124 (Perez).) The hurdle to secure a reversal is just as
high when the prosecution’s case depends on circumstantial evidence. (People
v. Stanley (1995) 10 Cal.4th 764, 792.)
As long as there is reasonable justification for the findings made by
the trier of fact, a reviewing court’s opinion that contrary findings might
also have been reasonable does not require a reversal. (Id.
at p. 793.)
There are
three basic, but not exhaustive, categories of evidence that will sustain a
finding of premeditation and deliberation:
(1) planning activity; (2) motive; and (3)
manner of the killing.
(People v. Anderson (1968) 70
Cal.2d 15, 26-27 (Anderson); see also
Perez, supra, 2 Cal.4th at p. 1125.)
These factors are not elements that need be present to sustain a finding
of premeditation and deliberation and are by no means the exclusive means of
showing premeditation. (
247.) The Anderson factors are merely, as stated, categories of evidence to
be used as a framework in the analysis of the sufficiency of the evidence of
premeditation and deliberation. (See
CALJIC No.
8.20 has been held to correctly define “deliberate and premeditated
murder.†(People v. Goldbach (1972) 27 Cal.App.3d 563, 569.) CALJIC No. 8.67, which addresses willful,
deliberate, and premeditated attempted murder is almost identical to CALJIC No.
8.20 and defines the terms in the same manner.
CALJIC No. 8.67 defines “willful†to mean “intentional,†and “deliberateâ€
to mean “formed or arrived at or determined upon as a result of careful thought
and weighing of considerations for and against the proposed course of
action.†The word “premeditated†means
“considered beforehand.†CALJIC No. 8.67
instructed the jury that “[t]o constitute willful, deliberate, and premeditated
attempted murder, the would-be slayer must weigh and consider the question of
killing and the reasons for and against such a choice and, having in mind the
consequences, decides to kill and makes a direct but ineffectual act to kill
another human being.†The instruction
also states: “The true test is not the
duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may
be arrived at in a short period of time, but a mere unconsidered and rash
impulse, even though it includes an intent to kill, is not deliberation and
premeditation.â€
Evidence Sufficient
Fletcher
particularly disputes the existence of the first and second
planning activity and motive on the part of the perpetrator. We disagree with Fletcher and believe there
is ample evidence from which a reasonable jury could conclude that Fletcher
acted willfully and with premeditation and deliberation.
With respect
to planning activity, Fletcher armed himself with a firearm and rode with a
companion into the territory of a gang with which his gang was at war. Fletcher is a Geer Gang Crip, and the
territory where Campos lived was claimed as the territory of the 18th Street
Blood gang. When they were within 15
feet of Campos, they shouted “Fuck the 18th Street†and began shooting at
Campos. A reasonable jury could infer
that this excursion into enemy territory by Fletcher and his companion was
planned. Although Fletcher presented
evidence that he had a “pass†to go into 18th Street territory, a reasonable
jury could conclude that Fletcher had no purpose for being in the area except
to search for a victim. In any event,
the fact that he shouted “Fuck the 18th Street†before shooting at Campos
demonstrates that he had a preconceived willingness to shoot at his victim,
regardless of how long he deliberated his action. As the jury was instructed, premeditation and
deliberation are not measured by the duration of time. (People
v. Bolin (1998) 18 Cal.4th 297, 332; CALJIC No. 8.20.) CALJIC No. 8.67 informed the jury that: “The law does not undertake to measure in
units of time the length of the period during which the thought must be
pondered before it can ripen into an intent to kill which is truly deliberate
and premeditated. The time will vary
with different individuals and under varying circumstances.†Fletcher may have arrived at his decision to
commit the act in a short period of time, but his act does not bear the
characteristics of a rash impulse. (See
849 [in context of shooting between two armed rival gang members, premeditation
can be established even though the time between sighting and shooting is very
brief].)
Moreover,
Fletcher took care not to use his own car in the shooting, and he fled after
the victim ran for cover. (See
[defendant’s possession of a weapon in advance of the shooting and his rapid
escape support inference of planning activity], disapproved on another point in
In re Sassounian (1995) 9 Cal.4th
535, 543-544, fn. 5.) Although there was
no evidence of a specific plot, the fact that elaborate planning activity is
not in evidence does not foreclose a finding of sufficient evidence of
premeditation. (People v. Millwee (1998) 18 Cal.4th 96, 134.)
Furthermore,
there was sufficient evidence of motive supplied by Fletcher’s shouted slogan,
which showed that the shooting was intended to enhance the power and status of
his gang over that of the 18th Street gang.
At the time of the shooting, his gang and the 18th Street gang were
enemies. When given a hypothetical that
mirrored the facts of the Campos shooting, the gang expert testified that a
shooting of this type “absolutely was for the benefit of the gang.†The shooter and the driver were “establishing
themselves†and yelling out the gang name for the victim and other members of
the community to hear. The fact that
African-American gang members from the Geer Gang were “rolling through†and
shooting at Hispanics raised the fear level of the community and raised the
status of the Geer Gang, showing other gangs and the neighborhood residents
that they are dominant. Although no
personal motive for shooting Campos in particular was shown, the absence of
such a motive is not dispositive. (See
killing supports a verdict of first degree murder].)
The nature
of the attempted killing also showed premeditation and deliberation. Fletcher fired at Campos and hit him in the
back from a distance of approximately 15 feet. This
demonstrates that, although Fletcher may not be a good marksman, “the
exacting that the defendant must have intentionally killed [or attempted to
kill] according to a ‘preconceived design.’â€
(Anderson,
1050.) It has been held that the method
of killing alone may be sufficient to find premeditation and deliberation. (People
v. Memro (1995) 11 Cal.4th 786, 863-864, disapproved on another point in
610, 639.)
Under these
criteria, the jury reasonably determined that the shooting of Campos was
premeditated and deliberate. Fletcher’s
argument that there was insufficient evidence of premeditation and deliberation
is without merit.
II. Sufficiency of the Evidence of Willful,
Deliberate, and Premeditated Attempted Murder (Counts 2 and 3)
A. Burke’s Argument
Burke contends
that there was no evidence of planning activity or motive in the shootings of
Mario and Erwin. According to Burke,
there was also no evidence that the nature of the shootings established
premeditation and deliberation.
Therefore, there was insufficient evidence of premeditation and
deliberation, and the true findings must be reversed.
Relevant Authority
In the first portion of this opinion, we recite authority
relevant to the issues of premeditation and deliberation with respect to
attempted murder.
According to
Burke, although the prosecutor suggested that Burke went into the 18th Street
gang’s territory looking to shoot a rival gang member, there is no evidence to
support that theory. There is no
evidence Burke drove to Westhaven Street looking to shoot anyone at all. In addition, the brief time it took for the
incident to unfold does not support a reasonable inference that Burke had
formed and was carrying out a plan. There
was no evidence that Burke brought the gun with him for the purpose of shooting
someone. With respect to motive, the
record is devoid of evidence establishing a motive to kill, and in fact
establishes the opposite, since Mario testified that he and Burke were former
friends. Burke did not know Erwin and
thus had no motive to kill him either.
Moreover, Erwin and Mario approached Burke, and his statement (“That’s
them . . .â€) showed he believed he was being ambushed by rival gang
members. He was hastily reacting to a
rapidly unfolding situation. Finally,
Burke asserts that he fired in a haphazard manner, and the manner in which the
shooting occurred fits the description of a rash and impulsive shooting without
deliberation or reflection.
We disagree
and conclude that the record provided substantial evidence of premeditation and
deliberation on the part of Burke and his co-perpetrators. Mario and Erwin were not gang members and
were unarmed. They were merely trying to
return home when they encountered what amounted to a roadblock. As Erwin stated, he moved the Explorer closer
to the obstructing vehicles so that whoever was blocking the street could see
that he was trying to get through. Three
African-American males approached Erwin’s car.
One pulled out a gun and shot at him and his cousin, Mario, and then the
others began shooting at them also. One
of the bullets scraped Erwin’s forehead.
Before the first man shot, he asked Mario what they were doing
there. Mario said they were going home,
and the man said, “Just leave.†When
Erwin began to reverse, another man, later identified as Burke, got out of a
car and said, “Yeah. It’s them,†and
“They’re from 18th Street.â€
The fact
that Burke stated, “It’s them,†indicates that the shooting that ensued was
enough of a considered decision to be classified as premeditated and deliberate
rather than a rash act. The fact that
the incident happened very quickly does not preclude premeditation and
deliberation on Burke’s part, especially when Burke identified the cousins as
rival gang members. (See
A cold, calculated judgment may be arrived at quickly. (People
v. Bolin, supra, 18 Cal.4th at p.
332.) Moreover, the jury could have
reasonably drawn the conclusion that the street was partially blocked as part
of a plan to slow down cars in order to identify rival gang members. Deputy Dilkes testified that the intersection
where the shooting occurred was a “stronghold†of the 18th Street gang. Burke’s statement that, “They’re from 18th
Street†is clearly indicative of a gang motive on his part. Finally, the manner of the shooting
decisively reflects premeditation and deliberation. A total of 17 bullets were fired at the two
unarmed men by three persons. According
to Mario, this occurred while Erwin was reversing his vehicle in order to get
away. Mario was hit in the torso and
Erwin came extremely close to getting a bullet in the head. The shooting was anything but haphazard. No reasonable jury could have believed that
the three men, including Burke, believed they were about to be ambushed. Erwin purposely made himself visible so that
he might be able to pass the stopped vehicles, and neither Mario nor Erwin
brandished a weapon or said anything to the waiting men except that they wanted
to go home.
Burke’s
argument is without merit, and there was sufficient evidence that the attempted
murders were willful, premeditated and deliberate.
III. Alleged Ineffective
Assistance of Burke’s Counsel
A. Burke’s Argument
Burke
asserts that, if this court does not reverse the true finding on the
premeditation and deliberation enhancement in counts 2 and 3 for insufficient
evidence, the finding must nevertheless be reversed because Burke was denied
his Sixth Amendment right to effective counsel.
Burke contends his trial counsel was prejudicially ineffective in not
requesting an instruction on provocation and subjective heat of passion in the
form of CALJIC No. 8.73
name="_ftnref6" title="">[6] and in failing to argue for a second degree attempted
murder conviction based on unreasonable heat of passion. Counsel’s ineffectiveness was prejudicial
because it resulted in the withdrawal of a potentially meritorious defense.
Provocation
that is insufficient to reduce murder to manslaughter may be sufficient to
reduce first degree murder to second degree murder. (See People
v. Thomas (1945) 25 Cal.2d 880, 903.)
Only the defendant’s subjective state of mind must be considered in
determining whether provocation resulting in heat of passion precluded
deliberation and premeditation. (
675, 678.) A defendant must show not
only that he was provoked but that he acted while his reason was obscured by
passion at the time of the act. (
719, disapproved on another point in People
v. Blakeley (2000) 23 Cal.4th 82, 89.)
“The
standards for ineffective assistance of counsel claims are well established.
‘We presume that counsel rendered adequate assistance and exercised reasonable
professional judgment in making significant trial decisions.’ [Citation.]
To establish a meritorious claim of ineffective assistance, defendant
‘must establish either: (1) As a result
of counsel’s performance, the prosecution’s case was not subjected to
meaningful adversarial testing, in which case there is a presumption that the
result is unreliable and prejudice need not be affirmatively shown [citations]
or (2) counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms, and there is a reasonable probability
that, but for counsel’s unprofessional errors and/or omissions, the trial would
have resulted in a more favorable outcome.
[Citations].’ [Citation.]†(People
v. Prieto (2003) 30 Cal.4th 226, 261.)
Also, “if the record does not preclude a satisfactory explanation for
counsel’s actions, we will not, on appeal, find that trial counsel acted
deficiently.†(People v. Stewart (2004) 33 Cal.4th 425, 459; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
C. No Ineffective Assistance
Burke
asserts that the evidence supports a verdict of second degree attempted murder
because Erwin and Mario “drove up on him and his friends in the middle of the
night.†According to Burke, his statement
(“That’s them. They’re 18th Street.â€)
demonstrates his belief that he and his friends were being ambushed. Because the vehicle was positioned with the
headlights pointed at Burke and his companions, Erwin and Mario had a visual
advantage. Under these circumstances,
and considering the gang rivalry, Burke could have interpreted this conduct as
a provocative act. Burke repeats that he
fired quickly and in a haphazard manner and asserts this is consistent with
someone acting in a heat of passion.
Burke
additionally argues that merely trying to impeach Mario’s identification of
Burke was not a reasonable defense, since Mario had no motive to implicate
Burke, with whom he was familiar, in the shooting. This defense left the jury with the unreasonable
choice between first degree attempted murder and an acquittal. Competent counsel would have disputed
premeditation and deliberation rather than gamble on an acquittal, and such an
unsound strategy is not entitled to deference.
Burke contends that the jury would have returned a verdict of second
degree attempted murder had counsel requested the provocation instruction and
argued that Burke was subjectively under the heat of passion when he fired.
At the
outset, in presenting a defense of mistaken identity to the jury, defense
counsel argued vehemently that Mario had lied about his identification of
Burke. Counsel pointed out that nothing
corroborated Mario’s identification and that Mario had denied three times that
he recognized any of the shooters. He
argued that Burke knew Mario was not a member of the 18th Street gang and had
no reason to harm him. Counsel argued
that there was possibly someone else with light skin who might be a gang member
and who would say something about 18th Street and start shooting. All of these arguments would have rung hollow
had defense counsel then argued that Burke was provoked and shot at the cousins
in a heat of passion. It is not an unreasonable
tactic for counsel to forgo presenting an inconsistent defense theory to the
jury. (See People v. Weaver (2001) 26 Cal.4th 876, 927; People v. Wader (1993) 5 Cal.4th 610, 643.) There was stronger evidence in support of
defense counsel’s chosen theory than of any provocation by Erwin or Mario.
In any
event, to warrant the reading of CALJIC No. 8.73, there must be substantial
evidence from which the jury could find the decision to kill was a direct and
immediate response to provocation such that the defendant acted without
premeditation and deliberation. (See
Cal.App.4th 1688, 1705; People v.
Wickersham (1982) 32 Cal.3d 307, 329, disapproved on another point in
200.) In the instant case there was no
evidence of any conduct by Erwin or Mario that could be classified as
provocative or that would evoke an emotional reaction from Burke. As discussed ante, Erwin merely slowed his vehicle to see if one of the
obstructing vehicles would move and let him pass. It was someone in Burke’s group who initiated
contact by approaching Erwin’s car and asking Erwin and Mario what they were
doing there. Mario explained that they
were going home, and the man on the sidewalk told Mario and Erwin to leave. As Erwin began to retreat, Burke got out of a
car, said “That’s them†and began firing along with the co-perpetrators. No reasonable juror would find that the act
of retreating could be interpreted as a provocative act.
Additionally,
Burke suffered no prejudice from the lack of an instruction on
provocation. With CALJIC No. 8.66, the
trial court instructed the jury on attempted murder and, using CALJIC No. 8.67,
on attempted willful, deliberate, and premeditated murder. The premeditation allegation was separate
from the attempted murder charge, and the jury was not obliged to find that it
was true. Pursuant to CALJIC No. 8.67,
the jury was instructed that the prosecution had to prove beyond a reasonable
doubt that Burke acted willfully and with deliberation and premeditation. CALJIC No. 8.67 defined “deliberate†as “formed
or arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action,†and defined
“premeditated†as “considered beforehand.â€
Further, the instruction required the jury to find a deliberate intent
to kill that was “not under a sudden heat of passion,†and it explained that “a mere unconsidered and rash
impulse, even though it includes an intent to kill, is not deliberation and
premeditation.†A jury is presumed to
contain intelligent persons capable of understanding and correlating all
instructions. (People v. Matshon (2012) 210 Cal.App.4th 1297, 1311-1312.) Under the instructions given, the jury, by
finding premeditation, rejected the notion that the conditions of the encounter
between the Alvarado cousins and Burke prevented Burke from acting with
premeditation and deliberation. An
instruction specifically directing the jury it could consider provocation in
determining whether Burke deliberated and premeditated would not have altered
the result.
Finally,
the jury found true the allegation that Burke committed the offense for the
benefit of, at the direction of, or in association with a criminal street gang
and with the specific intent to promote, further, or assist in any criminal
conduct by gang members. (CALJIC No. 17.24.2.)
This clearly indicated that the jury would have rejected any claim by
Burke that he shot at Mario and Erwin because of an unconsidered impulse when
he thought he was about to be attacked.
In sum, the
record in the instant case does not preclude a satisfactory explanation for
counsel’s reliance on the mistaken identity defense and for failure to request
an instruction on provocation. (
counsel’s tactics. Therefore, we
conclude counsel was not ineffective.
IV. Fletcher’s Credit Days
A. Fletcher’s Argument
Fletcher
points out that he was arrested on December 14, 2007, and he remained in
custody until sentenced on July 11, 2011.
He argues that he should have received 1,306 actual custody days instead
of 1,304.
Fletcher is
correct that the actual number of days he spent in custody was 1,306. This includes the day of his arrest and the
day of his sentencing. (See
523, 526.) Having been convicted of a
violent felony, Fletcher is entitled to conduct credits at 15 percent of his
actual days in custody. (§§ 667.5, subds.
(c)(1), (12), 2933.1.) Accordingly, he
is to be granted local conduct credit of 195 days, for a total of 1,501 days of
presentence custody credit.
The judgment is modified in Fletcher’s case to award him
two additional days of actual custody credit for a total of 1,306 actual
days. In addition, Fletcher is entitled
to 195 days of conduct credit for a total of 1,501 days of presentence custody
credit. In all other respects, the
judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J.
FERNS, J.*
_______________________________________________________________
* Judge of the Los Angeles Superior
Court, assigned by the Chief Justice
pursuant
to article VI, section 6 of the California Constitution.
name="_ftn1" title="">[1] All
further references to statutes are to the Penal Code unless stated otherwise.
name="_ftn2" title="">[2] Fletcher
has also filed a petition for writ of habeas corpus in case No. B241174 in
which he alleges ineffective assistance of trial counsel. The petition will be considered concurrently
with, but separately from, the instant appeal.
