People v. Burton

RUBIN

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. PA060529)

APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia Ulfig, Judge. Affirmed.

Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, 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.

Defendant Demario Burton appeals from his conviction of attempted premeditated murder of Jose G. He contends: (1) the premeditation finding is not supported by substantial evidence and (2) it was prejudicial error for the trial court to refuse to give CALCRIM No. 224 (sufficiency of circumstantial evidence). We affirm.

Defendant was charged with attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a)); gang (§ 186.22, subd. (b)(1)(C)) and personal firearm use (§ 12022.53, subds. (b) & (c)) enhancements were also alleged. A jury convicted defendant as charged and found true the enhancements. Defendant was sentenced to 20 years to life in prison. He timely appealed.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Virgil (2011) 51 Cal.4th 1212, 1263), the evidence established that defendant was a member of the criminal street gang known as the Pacoima Piru Bloods, which claim as their territory the 12300 block of Osborne Place in Pacoima. The Pacoima Piru Bloods gang identifies with the color red and have various hand signs. In 2005, defendant lived on the 12300 block of Osborne Place. One day that year, at about 2:30 or 3:00 in the morning, defendant arrived home and parked his car on the street. A male Hispanic approached defendant and shot him nine times. No one was ever arrested for that crime.

Two years later, on December 7, 2007, Ricardo Nevarez, also a member of the Pacoima Piru Bloods gang, was driving his mother's car when he picked up defendant at defendant's home in Granada Hills with the intention of visiting Terrence Derby, another member of that gang, who was recuperating from a gunshot wound at his home in an apartment on the 12300 block of Osborne Place. Defendant was wearing a puffy red ski jacket. On the way to Derby's home, defendant and Nevarez stopped for something to eat. At the restaurant, they encountered Andre Southerland, Diamond Bryant, Michael Byrd, Thamar Yarbrough and James Jasper, all of whom were members of the Pacoima Piru Bloods gang. Those men got into Nevarez's car and accompanied Nevarez and defendant to Derby's home. On the way there, defendant put a handgun in his waistband. Thamar Yarbrough also had a handgun in his waistband. At about 4:30 p.m., they parked on Osborne Place near Derby's apartment building.

That day, attempted murder victim Jose G. lived in the apartment building across the street from Derby's building on Osborne Place. At about 4:30 p.m., Jose G. was on his way to a taco truck parked in front of Derby's building, when he noticed defendant and Nevarez standing on the concrete retaining wall in front of that building. The men were unfamiliar to Jose G. but his attention was drawn to them by the puffy red ski jacket defendant was wearing. Before Jose G. had crossed the street, defendant yelled out to him, "Where are you from?" which Jose G. understood to mean, "What gang are you from?" Jose G. responded that he was from "nowhere," which meant that he was not in any gang. Defendant yelled out "Pacoima Piru Bloods" and made a gang sign associated with the Pacoima Piru Bloods. Defendant then pulled a gun out of his waistband and started shooting at Jose G. After the first two shots, Jose G. ducked behind his aunt's SUV which was parked nearby. As Jose G. yelled to defendant to stop shooting, he could hear Nevarez urging defendant to continue shooting. While Jose G. was crouched next to the car, he heard five more shots. After the seventh shot, Jose G.'s aunt, Susana G., came out onto the street. As his aunt was helping him up from his hiding place, Jose G. saw that defendant, still holding the gun, had jumped off the retaining wall, crossed the street and was now standing about seven feet away at the hood of his aunt's car. When a woman got out of a parked car and screamed at defendant to stop shooting because she had a baby in the car, defendant turned around and walked through the main gate and into Derby's building. Jose G. and his family did not stay in their apartment that night or ever again. About a week after the shooting, they moved away from Pacoima.

A gang expert confirmed that this was the generally understood meaning of the inquiry and that if the answer was not what the questioner wanted to hear, "bad things might happen."

Later, Jose G. noticed two bullet holes in the back on the driver's side of the car which had not been there before.

Susana G. testified that Jose G. was on his way to the food truck because she asked him to get some sodas. Hearing gunshots, Susana G. ran outside because she was afraid for her nephew's safety. Susana G. saw Jose G. curled up in a ball next to her car and defendant holding a gun and walking around the car towards Jose G. Susana G. heard Nevarez yelling, "Smoke him. Smoke him." After Susana G. yelled at defendant, he put the gun into his waistband and ran into one of the apartment buildings on the street. Susana G. helped Jose G. up and together they ran back into their apartment building.

The shooting generated multiple calls to 911, most describing a male in a red puffy jacket. Police arrived at the scene within minutes. A witness directed them to Derby's apartment. As officers approached the stairs leading to that apartment, they encountered defendant and Nevarez coming down those stairs; defendant was wearing a big red ski jacket. Defendant and Nevarez were taken into custody, as were several other people in apartment No. 208, including Derby. All of the people detained were members of the Pacoima Piru Bloods gang. Only defendant was wearing a red ski jacket.

Police gathered eight or nine men for a field show-up. Viewing the field show-up from the back seat of a patrol car, Jose G. identified defendant as the shooter and Nevarez as his companion. From the patrol car, Susana G. also identified defendant as the man she saw with a gun. A resident on the second floor of Jose G.'s apartment building who heard gunshots, then looked out the sliding glass to her balcony, saw Jose G. crouching down next to a parked car and a man in a red ski jacket running towards the back of the parking lot at Derby's building. Looking at the field show-up from her balcony, this person identified defendant as the male in the red ski jacket she saw running away.Defendant and Nevarez were arrested and gunshot residue tests were administered to both. Defendant's left hand tested positive for gunshot residue; Nevarez tested negative.

At trial, this witness testified that she could not recall whether she identified anyone and her memory was not refreshed by looking at the police report. But Los Angeles Police Officer Ruben Aguirre testified that he was with the witness in her apartment during the field show-up when she identified defendant.

Police recovered six spent bullet casings from the area in front of Derby's building. In the parking lot behind that building, they found what looked like an abandoned red Chrysler which was determined to belong to one of the residents of Derby's apartment. Inside the car, police found a black backpack which was notably cleaner than the car. Inside the backpack, they found four semiautomatic handguns including one semiautomatic Smith & Wesson with serial No. T.Z.R. 2522, live ammunition and some paperwork. A criminalist determined that the spent bullet casings found at the scene were fired from the Smith & Wesson, serial No. T.Z.R. 2522. Fingerprints found on that firearm were not of sufficient quality to be able to match them to anyone. A fingerprint found on the magazine of one of the other firearms did not match defendant's prints.

A detective testified that he interviewed defendant, Nevarez and Nevarez's mother about the shooting. Nevarez's mother told the detective that defendant and Nevarez were both members of the Pacoima Piru Bloods gang. Defendant and Nevarez gave multiple versions of the shooting. In a March 2008 interview, defendant identified Yarbrough as the shooter. Nevarez also identified Yarbrough as the shooter, but he also said defendant was the shooter.

Based on a hypothetical question mirroring the facts of this case, a gang expert testified that the shooting was committed in association with the Pacoima Piru Bloods and for the benefit of that gang. Regarding the benefit element, the expert testified that an attempted murder committed in daylight is such a brazen crime that it would intimidate the community and put them in fear of the gang.

Defendant and Nevarez both testified at trial. Nevarez had a sustained petition in juvenile court arising out of this incident as a result of his admission that he was involved in an attempted murder. But at defendant's trial, Nevarez testified that he heard four or five gunshots coming from behind him while defendant was standing in front of him. Nevarez maintained that defendant was not the shooter. Initially, Nevarez testified that he would not identify the shooter out of fear for his life but he later testified that he heard Yarbrough yell, "Where are you from?" and then saw Yarbrough pointing a gun.

Defendant testified that he was not a member of the Pacoima Piru Bloods gang. He was standing next to Nevarez when he heard four or five gunshots but he did not know who was shooting; he denied telling a detective that on the way to visit Derby defendant gave a gun to James Jasper, or that defendant placed another gun in his own waistband for protection.

DISCUSSION A. Substantial Evidence Supports the Premeditation Finding

Defendant contends there was insufficient evidence of premeditation to support the conviction of attempted premeditated murder. He argues that there was no evidence of what defendant did immediately before the shooting and evidence that he always carried a gun for his protection was not substantial evidence of planning. We find no error.

"An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citation.] However, the requisite reflection need not span a specific or extended period of time." (People v. Stitely (2005) 35 Cal.4th 514, 543.) Known as the "Anderson factors," three types of evidence are generally relied upon to support a finding of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. (People v. Welch (1999) 20 Cal.4th 701, 758 (Welch), citing People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) Typically, a finding of premeditation is supported by substantial evidence when there is evidence of all three types, extremely strong evidence of planning, or evidence of motive and manner of killing. (Welch, at p. 758.) But " ' "[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing [or attempted killing] resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way." [Citation.] In other words, the Anderson guidelines are descriptive, not normative. "The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." ' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1019.) "A studied hatred and enmity, including a preplanned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation." (People v. Rand (1995) 37 Cal.App.4th 999, 1001 [evidence that the defendant deliberately aimed at the victim believing he was a rival gang member was sufficient to support premeditation finding].)

Welch was overruled on another point in People v. Blakeley (2000) 23 Cal.4th 82, 91.

Here, the record contains substantial evidence from which a reasonable juror could find that the attempted murder of Jose G. was premeditated, in other words, that it was the product of thought and reflection rather than an unconsidered or rash impulse. This includes evidence of planning - defendant was armed with a semiautomatic firearm; a gang related motive - defendant was a member of a predominantly African-American gang that claimed as its territory the location of the shooting, two years before the shooting defendant had been shot nine times by a male Hispanic on that very block and that perpetrator was never brought to justice, the victim was a male Hispanic, defendant asked the victim, "Where are you from?" and upon hearing the victim's answer defendant yelled the name of his gang and fired at the victim; and manner of attempted killing -unsatisfied with firing multiple shots at the victim from across the street, defendant walked around the car behind which the victim was hiding with the apparent intention of firing additional rounds. This evidence of planning, motive and manner of attempted killing was sufficient to support the conviction of attempted premeditated murder.

B. Instruction on Circumstantial Evidence in General Was Not Required

Defendant contends the trial court prejudicially erred in refusing to give CALCRIM No. 224 regarding reliance on circumstantial evidence. He argues that giving CALCRIM No. 225, regarding circumstantial evidence of mental state, was not sufficient. This is because, he argues, there was circumstantial evidence of more than intent. Specifically, he maintains that the identification of appellant as the shooter was based on circumstantial evidence (the shooter was wearing a red coat, defendant's positive gunshot residue test, the discovery of the guns and the fact that defendant was the registered owner of a gun), as was the gang enhancement. We disagree.

CALCRIM No. 224 reads: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."

As given CALCRIM No. 225 reads: "The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent and/or mental state. The instruction for the crime and allegation explains the intent and/or mental state required. [¶] An intent and/or mental state may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent and/or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent and/or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and/or mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent and/or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
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The Bench Notes to CALCRIM No. 224 explain that the trial court has a sua sponte duty to give the instruction if the prosecution substantially relies on circumstantial evidence to establish any element of the case (People v. Yrigoyen (1955) 45 Cal.2d 46, 49) but not when the circumstantial evidence is incidental to and corroborative of direct evidence. (People v. Malbrough (1961) 55 Cal.2d 249, 250-251; People v. Watson (1956) 46 Cal.2d 818, 831; People v. Shea (1995) 39 Cal.App.4th 1257, 1270-1271.) If the circumstantial evidence is probative only of the element of intent, CALCRIM No. 224 should not be given. Instead, CALCRIM No. 225 should be given. (People v. Marshall (1996) 13 Cal.4th 799, 849.)

Here, defendant's identity as the shooter was established primarily by direct evidence, including identification by the attempted murder victim and other eyewitnesses. The evidence defendant describes as circumstantial was either, in fact, direct evidence or was incidental and corroborative of direct evidence of the murder charge. Accordingly, the trial court properly gave CALCRIM No. 225 and refused to give CALCRIM No. 224 vis-a-vis the attempted murder charge.

The analysis is the same with respect to the gang enhancement. Penal Code section 186.22, subdivision (b)(1) provides a sentence enhancement for "any person who is convicted of a felony 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 . . . ." That defendant committed the attempted murder in association with a criminal street gang was established by direct evidence that Nevarez and some of the other men he was with that day were self-admitted members of the Pacoima Piru Bloods gang. Whether defendant did so to promote, further or assist in any criminal conduct by gang members was an issue of intent. Accordingly, the trial court properly gave CALCRIM No. 225.

DISPOSITION

The judgment is affirmed.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

GRIMES, J.