The Alameda County District Attorney filed an amended information charging defendants with three counts of first degree murder with multiple murder special circumstances ( Pen. Code, 1 §§ 187, subd. (a), 190.2, subd. (a)(3) ; counts 1, 2, 3) and four counts of premediated attempted murder ( §§ 187, subd. (a), 664 ; counts 4-7). The amended information alleges that each defendant personally and intentionally discharged a firearm causing great bodily injury and death in the commission of counts 1 through 6 (§ 12022.53, subds. (b), (c), (d), (g); § 12022.5, subd. (a); § 12022.7, subd. (a) ) and that they personally discharged a firearm in connection with count 7 (§ 12022.53, subds. (c), (g); § 12022.5, subd. (a).) The amended information also alleges that defendants personally inflicted great bodily injury in connection with counts 4 through 6. (§ 12022.7, subd. (a) ). In addition, the amended information alleged that Stevenson was released on bail when he committed the offense (§ 12022.1) and that Perry had served a prior prison term (§ 667.5, subd. (b) ).
On October 1, 2011, Erica Brown, Shanice Keil, Laneasha Northington, Ikaneasha Johnson, Joshua Alford, Anthony Ewing, and Ryan Gibbs attended a party in San Leandro. Alford was a member of the F.E. ("Fuck Everybody") group, which was described by witnesses as a "social group" of individuals who make raps on YouTube.
Defendants also attended the party with a group of their friends. Defendants were members, or "fans," of the Mob Squad, which was described by a police witness as an "informal" street gang with members who compose rap music.
When the party ended around midnight, the seven victims got into a Ford Explorer and prepared to leave the parking lot. As they tried to back out of their parking spot, a white sedan pulled behind the Explorer and blocked its path. Within a minute, multiple gunshots were fired into the car.
Brown testified that gunshots were coming from the front and the back of the car, sounding "like they were coming from around the whole car." She
Six of the seven victims were shot during the attack. Keil, Northington and Alford died as a result of their injuries. Police investigators located 10 bullet holes in the exterior of the Explorer. Both of the driver's side windows and the rear passenger side window were shattered.
Brown and a second witness identified Stevenson as one of the shooters. Gibbs identified Stewart as another shooter. Another witness, who was at the party with defendants, told police that he saw Perry and Stewart shooting at the car.
After the shooting, defendants regrouped at a friend's house. At that time, all three defendants made statements acknowledging their participation in the shooting. In a statement to police after his arrest, Stewart admitted pulling the trigger three times, but he claimed the gun did not fire but only "click[ed]."
Stanley Turner testified that he had given Stewart his handgun prior to the shooting and that Stewart returned it to him after the shooting. Turner also testified to the source of the animosity between Alford and defendants. According to Turner, an incident occurred at a prior party in San Francisco when Stevenson bumped into an F.E. member or an F.E. member bumped into Stevenson. The dispute escalated with members of both groups pulling out their guns. Alford was with the F.E. group that night. No shots were fired and there were no more confrontations between defendants and the F.E. members after that evening, "[b]ut every time we seen them, [there] was animosity. It wasn't pleasant."
The jury convicted defendants on counts 1 through 3 as charged and found true the special circumstances allegations, and the firearm use and great bodily injury enhancements. The jury also convicted defendants on counts 4 through 7 as charged in the amended information and found the corresponding enhancements true.
The court sentenced each defendant to three consecutive terms of life in prison without the possibility of parole on counts 1 through 3, with consecutive enhancements of 25 years to life for the firearm use. The court imposed concurrent 15-year terms on counts 4 through 7, and concurrent firearm enhancements of 25 years to
1. The jury was properly instructed on first degree murder .
The jury was instructed on three theories of murder as to counts 1, 2, and 3: direct liability as a perpetrator under CALCRIM No. 520,
Defendants contend that these instructions improperly allowed the jury to find them guilty of first degree murder under the natural and probable consequence doctrine in violation of People v. Chiu (2014)
In Chiu, supra,
In this case, as in Chiu , the jury was instructed on the natural and probable consequence doctrine.
2. The court was not required to instruct on the lesser included offense of assault with a firearm.
"It is well established that even in the absence of a request, the trial court
In Cook the court confirmed that under the elements test "assault with a firearm is not a lesser included offense of murder." ( Cook, supra , 91 Cal.App.4th at pp. 918-919,
Moreover, as the Attorney General argues, even if assault with a firearm were a lesser included offense, the court would have been under no obligation to so instruct because there is no substantial evidence in the record to support a finding by the jury that defendants were guilty of assault with a firearm but not murder.
3. The jury was properly instructed on the "kill zone" theory of attempted murder .
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." ( People v. Lee (2003)
The jury was instructed pursuant to CALCRIM No. 600 in relevant part as follows: "The defendants are charged in counts 4, 5, 6 and 7 with attempted murder. [¶] To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill a person. [¶] ... [¶] A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the attempted murder of Ryan Gibbs, Ikaneasha Johnson, Erica Brown or Anthony Ewing, the People must prove that a defendant not only intended to kill Joshua Alford but also either intended to kill Ryan Gibbs, [Ikaneasha Johnson], Erica
Defendants contend the above instruction is ambiguous and was reasonably likely to be misapplied by the jury. ( People v. Friend (2009)
We do not agree that a reasonable juror could interpret the instruction in the tortured manner suggested by defendants. There is no likelihood that the jury would have, for example, convicted defendants of the attempted murder of Ryan Gibbs based on a finding that defendants intended to kill Alford and Anthony Ewing but not everyone in the kill zone. Moreover, by agreeing to the instruction and failing to request a clarifying instruction, defendants have forfeited this argument on appeal. ( People v. Hillhouse (2002)
4. The jury was properly instructed on motive .
The jury was instructed pursuant to CALCRIM No. 370 as follows: "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." Defendants do not dispute that this is a correct statement of the law. They contend, however, that when, as in this case, "a finding of guilty depends, or can be seen by the jury as depending, on a chain of circumstantial inferences, one link of which is motive," the standard motive instruction conflicts with CALCRIM No. 224. CALCRIM No. 224 advises the jury, "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." In other words, defendants suggest that when the prosecution in a murder case relies on motive as circumstantial evidence that the defendant acted with an intent to kill, the People are required to prove that motive beyond a reasonable doubt as a "fact essential to that conclusion."
The motive or "reason" a person chooses to commit a crime is not an element of the offenses of murder or attempted murder. ( People v. Hillhouse , supra ,
Disposition
The judgments are affirmed.
We concur:
Siggins, P.J.
Jenkins, J.
Notes
A fourth defendant, Stanley Turner, was charged with the same offenses and enhancements. Prior to trial, he plead guilty to being an accessory (§ 32) in return for his agreement to testify truthfully at trial.
The jury was instructed pursuant to CALCRIM No. 520 as follows: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought. [¶] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] [The] defendant acted with express malice if he unlawfully intended to kill. [¶] [The] defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life. [¶] ... [¶] An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. ..."
The jury was instructed pursuant to CALCRIM No. 401 that a defendant is guilty of murder based on aiding and abetting if "1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime: [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime."
The jury was instructed pursuant to CALCRIM No. 417 that "To prove that the defendant is guilty of the crimes charged in counts 1, 2, [and] 3 ..., the People must prove that: [¶] 1. The defendant conspired to commit one of the following crimes: the murder of Josh Alford; [¶] 2. A member of the conspiracy committed the murder of Shanice Keil and Laneasha Northington ... to further the conspiracy; [¶] AND [¶] 3. The murders of Shanice Keil and Laneasha Northington ... were a natural and probable consequence[ ] of the common plan or design of the crime that the defendant conspired to commit."
The jury was instructed pursuant to CALCRIM No. 402, as follows: "The defendants are charged in count 2 with the murder of Joshua Alford and in counts 1 and 3, respectively, with the murders of Shanice Kiel and Laneasha Northington .... [¶] You must first decide whether the defendant is guilty of the murder of Joshua Alford. If you find the defendant is guilty of this crime, you must then decide whether he is guilty of the crimes charged in counts 1 [and] 3 .... [¶] Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time. [¶] To prove that the defendant is guilty of the murders charged in counts 1 and 3 ..., the People must prove that: [¶] 1. The defendant is guilty of the murder of Joshua Alford as charged in count 2; [¶] 2. During the commission of the murder of Joshua Alford a coparticipant in that murder committed the crime of murder as charged in counts 1 and 3 ...; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the murders of Shanice Kiel and Laneasha Northington ... were a natural and probable consequence of the commission of the murder of Joshua Alford."
In Chiu , supra ,
Defendants argument that the court erred in failing to instruct on assault with a firearm as a lesser included offense to attempted murder, also based on a misreading of Cook, supra ,
