81 Cal.App.5th 232
Cal. Ct. App.2022Background
- Three members of the Duarte Duroc Crips (DDC) — Derion Lee, Charod Robinson, and Pernell Barnes — were tried (with two codefendants) for two related shootings: the December 22, 2016 killing of Brandon Douglas (Douglas shooting) and the January 6, 2017 candlelight vigil shooting that killed Antoine Sutphen and Ormoni Duncan and wounded others (Vigil shooting). Lee was charged in both incidents; Robinson and Barnes only in the Vigil shooting.
- Prosecution relied on cell‑tower records, social‑media records, Google search history, surveillance video, ballistics linking a .40 caliber firearm to both scenes, gang expert testimony, wiretapped calls, and post‑shooting conduct (e.g., repainting cars, discussions of the events) to tie defendants to the shootings and to establish gang enhancements and special circumstances.
- The jury convicted all three of conspiracy to commit murder, two counts of first‑degree murder (counts 2–3), two counts of attempted murder (counts 4, 9), and related counts; it found multiple special circumstances, gang enhancements (§ 186.22), and gang‑related firearm enhancements (§ 12022.53) true. Each admitted prior serious/violent felonies (Three Strikes). Sentences included multiple LWOP terms plus lengthy determinate terms.
- On appeal defendants raised many claims: exclusion of third‑party culpability evidence, sufficiency of the ‘‘kill‑zone’’ attempted murder instruction, sufficiency of conspiracy evidence, multiple evidentiary challenges (gang evidence, text/Google/social media authentication, coconspirator statements), denial of a continuance, cumulative error, and numerous sentencing challenges in light of newly enacted A.B. 333 and S.B. 567.
- The court rejected most guilt‑phase claims (found admission exclusions and evidentiary rulings within discretion), agreed the kill‑zone instruction was unsupported but harmless, and held substantial evidence supported conspiracy and other convictions.
- For sentencing, the court vacated and struck the gang enhancement and related firearm and gang‑murder special‑circumstance findings under A.B. 333 (applied retroactively), vacated certain sentences (including count 5) for resentencing under S.B. 567 where applicable, corrected multiple clerical/minute‑order errors, and remanded to allow the People to retry gang allegations under the new statutory framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of third‑party culpability (Derrell Davis) | Prosecution: Davis evidence speculative and lacked direct or circumstantial link to shootings; exclusion proper under Evid. Code §352. | Lee: Evidence raised reasonable doubt—Davis had motive/opportunity, social‑media posts and proximity. | Court: No abuse of discretion; evidence only showed motive/opportunity, not a nexus to the crimes; exclusion proper and not prejudicial. |
| Kill‑zone instruction for attempted murders | People: Instruction legally proper; could infer zone of fatal harm. | Defendants: Insufficient evidence to support kill‑zone theory under People v. Canizales. | Court: Instruction unsupported but legally sound; error harmless because evidence showed indiscriminate drive‑by firing (other theories supported convictions). |
| Sufficiency of conspiracy to commit murder | People: Circumstantial proof (cellphone movements, communications, motive/retaliation, timing) supports conspiracy. | Defendants: No direct proof of agreement; insufficient to infer a conspiracy. | Court: Substantial circumstantial evidence permitted inference of tacit mutual understanding; conspiracy verdict upheld. |
| Admission/authentication of digital evidence (Google searches, social‑media, texts) | People: Records properly authenticated via custodial certificates, warrants, line sheets and officer testimony; relevant to weapon access and gang membership. | Defendants: Evidence prejudicial, propensity inference, insufficient authentication. | Court: Authentication and admission within discretion; probative on identity/motive/weapons; any doubts go to weight not admissibility. |
Key Cases Cited
- People v. Hall, 41 Cal.3d 826 (linkage required for third‑party culpability) (third‑party evidence must link to actual perpetration)
- People v. Lewis, 26 Cal.4th 334 (admission of third‑party culpability evidence reviewed for relevance and §352 balancing)
- People v. Turner, 10 Cal.5th 786 (appellate review of exclusionary rulings and §352 considerations)
- People v. Canizales, 7 Cal.5th 591 (kill‑zone attempted murder theory narrowed; prongs for instruction)
- People v. Sanchez, 63 Cal.4th 411 (elements of attempted murder and specific intent)
- People v. Stone, 46 Cal.4th 131 (concurrent intent and indiscriminate firing theory)
- People v. Bland, 28 Cal.4th 313 (multiple‑victim intent concepts)
- People v. Guiton, 4 Cal.4th 1116 (prejudice standards for instructional error)
- People v. Lindberg, 45 Cal.4th 1 (sufficiency review — circumstantial evidence and conspiracy)
- People v. Homick, 55 Cal.4th 816 (use of circumstantial evidence to establish conspiracy and admission of gang‑linked evidence)
- People v. McCurdy, 59 Cal.4th 1063 (standards for evidentiary rulings review)
- People v. Goldsmith, 59 Cal.4th 258 (authentication of writings/electronic records)
- Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53 (incorporation‑by‑reference rule for statutes)
- In re Estrada, 63 Cal.2d 740 (retroactivity presumption when amendment reduces punishment)
- People v. Jefferson, 21 Cal.4th 86 (parole‑eligibility minima and life term calculations)