Opinion
D069071
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN ANTONIO ANDERSON, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD256609) APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Justin Antonio Anderson of one count of conspiracy to commit murder in the first degree and assault with a deadly weapon, and found that he committed the conspiracy with the intent to promote, further, or assist a criminal street gang. (Pen. Code, §§ 182, subd. (a)(1), 186.22, subd. (b)(1), 245, subd. (a).) The trial court sentenced Anderson to 25 years to life in prison.
Further unspecified statutory references are to the Penal Code.
The jury acquitted Anderson of two counts of participating in a criminal street gang conspiracy (§182.5) and two counts of attempted murder. (§§ 182.5; 187, subd. (a); 664). In the interests of judicial economy, we do not describe the evidence underlying those counts, which allegedly occurred several months after the events underlying the conspiracy count.
Anderson contends his conviction for conspiracy to commit murder is not supported by substantial evidence. Anderson also argues the prosecution violated the corpus delicti rule by relying solely on his statements to prove the elements of conspiracy.
Anderson withdraws an argument the court incorrectly limited his conduct credits under section 2933.1.
FACTUAL AND PROCEDURAL BACKGROUND
A trial was held over 17 days in August and September 2015. We summarize the evidence in the light most favorable to the verdict. (People v. Hubbard (2016) 63 Cal.4th 378, 392.)
Starting in the early 1990's, there were years of shootings, homicides and other violent crimes in San Diego between the Crips and the Bloods. Each gang claimed its own area. The Lincoln Park gang, whose members were Bloods, operated in southeast San Diego. Their rivals, the West Coast Crips and the East Diego Mob Crips, operated in adjacent areas.
Shootings, particularly drive-by shootings, usually were committed by two or more gang members. There were a number of retaliatory incidents between rival gangs that occurred on a regular basis. In the 18 months before the defendant's trial, police officers investigated more than 25 drive-by shootings. In the majority of cases, the victims were West Coast Crips. Shootings could occur if a gang member believed he was being disrespected by rival gang members, or they could be in retaliation for past incidents or shootings, or a shooting could result from a happenstance meeting with no articulable reason.
The San Diego Police Department, with assistance from the FBI and local agencies, formed a violent crimes task force. The purpose of the task force was to try to disrupt or dismantle gang enterprises using long-term investigative techniques. In January 2013, the task force was investigating the activities of the Lincoln Park gang. In March 2013, the task force obtained a federal wiretap to monitor Anderson's telephone calls. Anderson was an active, documented member of the Lincoln Park gang.
On April 27, 2013, approximately 100 family members and friends of Marquis Anderson gathered at a home on Grape Street in southeast San Diego to celebrate his 17th birthday. Some of Marquis's brothers were Crips. Other Crip members attended Marquis's birthday party. The party was in full swing by 9:00 p.m. There were partygoers in the front and back yards. According to a neighbor, there were one or two large parties a month at the Grape Street home, and he could hear the partygoers using gang references such as "cuz." Crip gang members use the term "cuz" to refer to fellow gang members.
The record permits the reasonable inference Justin Anderson and Marquis Anderson are not related.
We refer to Marquis Anderson by his first name to avoid confusion with the defendant. We intend no disrespect.
Defendant Anderson was driving with his younger brother, who was also a member of the Lincoln Park gang, when they passed Marquis's birthday party. At 9:52 p.m., Anderson telephoned Glenn Gray, a member of the Lincoln Park gang, and asked him if he remembered "that lil spot I was talkin about with all them niggas outside." Gray asked, "The rippers?" Anderson replied, "Yep." He said, "Blood on. Blood, -- how you were feelin that night, you like used you ready to cry, blood. I'm ready to damn cry right now, blood . . . . [¶] Blood, I'm talking about blood. Blood, I mean like, Blood, blood tears just be coming down from my eye, blood. [LAUGHS]." As Anderson spoke, the people in the car with him were talking. One person said the number of people at the party was "way more than that." Anderson repeated the comment to Gray, saying "[p]robably way, way, probably way more."
Dropping the "C" as a sign of disrespect, the Bloods referred to the Crips as "rippers."
At 9:58 p.m., Anderson telephoned Aaron Harvey, a Lincoln Park gang member. Anderson asked Harvey to come in front of the house to "calm me down." Five minutes later, Anderson telephoned Gray and asked if he wanted some of Anderson's people to come get him. Gray demurred. At 10:40, Anderson telephoned Darryl Charles, a Lincoln Park gang member, and asked "can we borrow that?" Charles said, "the homie got it," and advised Anderson to call Deon Winters or Alonzo Harvey. Anderson replied, "you might not want it [back] if I get it." Charles replied, "Shhitt." Anderson said, "Say no more. Say no more. But uh, an, if I can get it, ah, just know it's gonna be briv."
"Briv" is slang to describe drama or that something bad was happening or was going to happen.
Anderson telephoned Deon Winters, an active Lincoln Park gang member. Anderson asked, "Where bro shit at?" Winters said it was in his pack in the big shed, which was behind the box to the right on the shelf rack. In a second call, Anderson told Winters, "Nevermind, bro, I found it" and asked him if he knew where Harvey had put the other other one. Winters did not know.
During Anderson's conversations with Winters, the detective monitoring Anderson's telephone calls notified his supervisor there were indications of a possible violent act. The supervisor decided to establish a significant police presence in the area. San Diego police officers saturated southeast San Diego, particularly areas in Lincoln Park where gang members might congregate. The police had a general idea of Anderson's location from cell tower data.
In a three-way call to Winters and Jawuan Jones, another Lincoln Park gang member, Anderson asked, "Hey, do you know the other hiding spot for uhh where [Harvey] be putting shit at?" Jones said to check the recycle. Winters asked if Anderson had looked in the big shed. Anderson said he had that one. Winters instructed him to look on the floor for a black grocery type bag. Anderson said, "All I see [is] this motha fucker." Winters said he would call someone else. He called Anderson back and said the person he called did not answer his telephone.
At 11:06, Anderson talked with Jones. Anderson asked him, "Blood, . . . can I borrow somethin?" Jones said he was broke. Anderson said he did not want that. Jones asked, "What you talking, that?" Anderson said "yes." Jones said, "That motherfucker ain't even over there. . . . [¶] Peanut got that motherfucker." Anderson instructed Jones, "Call blood and see if he around there. If he ain't around there then I, you know, nig can't do nothing about it. But if blood around here, blood a nigga, nigga is trying to go do something real quick." Five minutes later, Jones telephoned Anderson to say "the pad" was in Mira Mesa. Anderson replied, "that's too goddamn far."
At 11:38 p.m., Anderson finally reached Alonzo Harvey and asked, "Where you put that at?" Harvey directed Anderson to look in the second shed for a clear box on the top shelf. After receiving these instructions, Anderson did not make any more telephone calls looking for weapons.
At 12:26 a.m., Anderson received a telephone call from Gray, who advised him that there were a lot of police officers, including undercover agents, on the street. Anderson said he was "trying to bust a move away from here." Gray told him to "let it die down a second."
At 12:46 a.m., Stanley King, using Anderson's cell phone, telephoned Winters to tell him he was "stuck on the block" because police were everywhere. After this call, Anderson made four more calls to various persons to determine the strength of the police presence. At 1:15 a.m., in his final call of the evening, Anderson told Winters they were going to leave the first chance they had. The following morning, in a telephone call to Winters, Anderson acknowledged they fell asleep and did not leave their location.
DISCUSSION
I
CONSPIRACY
A
Argument
Anderson argues there is no evidence to show he entered into an agreement with another person to commit first degree murder. He states a reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work, but must be drawn from the evidence. Anderson contends the People's argument is based on pure speculation.
The People assert circumstantial evidence clearly shows Anderson agreed with fellow gang members to shoot Crip gang members. The People argue the fact Anderson was looking for two guns shows he had agreed with at least one other person to attack the Crip gang members.
B
Applicable Legal Principles and Standard of Review
"Pursuant to section 182, subdivision (a)(1), the crime of conspiracy, a crime distinct from its target offense, occurs when two or more persons have the specific intent to agree to commit 'any crime' (italics added), as well as the specific intent to commit the elements of the target crime and one or more of the parties commits an overt act in furtherance of the agreement. The act of one conspirator is the act of all. Each is responsible for everything done by his coconspirators, including those things that follow as the probable and natural consequence of the execution of the conspiracy." (People v. Zacarias (2007) 157 Cal.App.4th 652, 657 (Zacarias).)
"Conspiracy is an inchoate crime. It does not require the commission of the target offense. Because it is an inchoate crime, conspiracy fixes the point of legal intervention at the time of the agreement to commit a crime." (Zacarias, supra, 157 Cal.App.4th at p. 657.)
Murder is the unlawful killing of a human being with malice aforethought. (§ 187.) "A killing with express malice formed willfully, deliberately, and with premeditation constitutes first degree murder." (People v. Beltran (2013) 56 Cal.4th 935, 942.) "Generally, the intent to unlawfully kill constitutes malice." (People v. Breverman (1998) 19 Cal.4th 142, 153.) "Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.) "[A]ny murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." (People v. Swain (1996) 12 Cal.4th 593, 601; § 189.)
Assault is " 'any wrongful act committed by means of physical force against the person of another.' " (People v. Golde (2008) 163 Cal.App.4th 101, 108.)
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft).) The conclusions of the trier of fact can be supported by circumstantial evidence as well as by direct evidence. (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)
C
Substantial Evidence Supports Anderson's Conviction for Conspiracy to Commit Murder
and Assault with a Deadly Weapon
Anderson acknowledges the record shows he was upset at having seen rival gang members at the Grape Street party. He also concedes he tried to locate two guns, which constitute overt acts. Anderson asserts there is no evidence that would allow the jury to reasonably infer he ever entered into an agreement with another person to kill rival gang members. He argues he may have been trying to locate two guns before approaching any fellow gang members to kill rival gang members. We are not persuaded by this argument.
Under the substantial evidence standard of review, we examine the entire record in the light most favorable to the judgment. (Kraft, supra, 23 Cal.4th at p. 1053.) We therefore must reject Anderson's hypothetical scenario. The record supports the reasonable inference Anderson entered into an agreement with other gang members to shoot rival gang members before attempting to locate two guns.
Police officers listening to Anderson's telephone calls testified there were voices in the background on Anderson's side discussing the large number of Crips at the party. This indicates the persons who were with Anderson also reacted to the presence of the Crips. In his first telephone call after seeing the Crips, Anderson reminded Gray how he had felt when he saw the Crips at the Grape Street house on another occasion.
Approximately 10 minutes later, Gray asked Anderson "what's brackin?" Anderson replied, "Tryna go do that," and offered to send "my folks" to "come get you." These remarks permits the reasonable inference Anderson had formed the intent to shoot Crips and his "folks" were willing to assist him by picking up Gray to help in the attack.
Bloods substitute the letter "b" for the letter "c." Gray was asking Anderson, "What's cracking?" --------
Anderson telephoned Lincoln Park gang members in an effort to locate guns. Anderson told a gang member he might not want the gun back because Anderson intended to use it for some drama. A homicide detective testified there was a history of retaliatory incidents between the Bloods and the Crips and a shooting could result from a happenstance meeting for no reason.
Anderson told a gang member he needed a gun because "blood a nigga, nigga is trying to go do something real quick." Anderson told another gang member some people were not answering their phones and he was trying to "bust a move somewhere, somewhere else right now." He told Gray he was "trying to bust a move away from here." Anderson continued to look for guns. After he located one gun, he continued to look for a second gun. The trier of fact could reasonably infer there was a second person involved in Anderson's plan to attack the Crips. The record shows that Anderson stopped looking for a second gun after a gang member told him where his gun was. Anderson then contacted unidentified persons several times to ascertain the location and strength of the police presence. Anderson told a gang member "as soon as we get the first chance to bop, we outa here." In view of the evidence showing he had obtained two guns, Anderson's use of the term "we" indicates he did not intend to act alone.
The substantial evidence standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Story (2009) 45 Cal.4th 1282, 1296.) We do not reweigh the evidence but review whether the reasonable inferences that could be derived from such evidence support the conclusions of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Here, the record shows that other people with Anderson saw the Crips at the Grape Street house, Anderson made concerted efforts to locate two guns, he used the plural pronoun "we" in describing the plan to leave at the first opportunity, Anderson was an active member in the Lincoln Park gang and had ongoing contact with other gang members. In addition, the record shows the Bloods and Crips in southeast San Diego had a history, and current practice, of gang retaliation and drive-by shootings. We conclude there is substantial evidence from which the jury could reasonably conclude that Anderson entered into an agreement with other persons to shoot the Crips who were at the birthday party at the Grape Street house.
II
CORPUS DELICTI
A
Argument
Anderson contends the People did not present any evidence of conspiracy other than his own statements. He argues this violates the corpus delicti rule, which requires the prosecutor to make a prima facie showing he entered into an agreement with another person to commit first degree murder by evidence other than defendant's own statements, and requires reversal.
The People contend the purpose of the corpus delicti rule is to assure that a defendant has not confessed to a crime that was not committed. The People argue the corpus delicti rule has little application to this case because Anderson's statements were not a confession but instead were part of the crime of conspiracy. Conspiracy requires both an agreement and overt acts in furtherance of the agreement. The People assert the record contains enough evidence, independent of Anderson's statements, to show the conspiracy.
B
Additional Factual Background
At the People's request, without objection, the trial court instructed the jury:
"The defendant may not be convicted of any crime based on his out-of-court statements alone. You may rely on the defendant's out-of-court statements to convict him only if you first conclude that other evidence shows that the charged crime was committed.
"That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.
"The requirement of other evidence cannot be proved by statements made before or after a crime, but can be proved by statements made during the crime.
"This requirement of other evidence does not apply to proving the identity of the person who committed the crime. If other evidence shows that the charged crime was committed, the identity of the person who committed it may be proved by the defendant's statements alone.
"You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt." (CALCRIM No. 359.)
C
Applicable Law and Standard of Review
"To convict an accused of a criminal offense, the prosecution must prove that (1) a crime actually occurred, and (2) the accused was the perpetrator. Though no statute or constitutional principle requires it, California, like most American jurisdictions, has historically adhered to the rule that the first of these components—the corpus delicti or body of the crime—cannot be proved by exclusive reliance on the defendant's extrajudicial statements." (People v. Alvarez (2002) 27 Cal.4th 1161, 1164-1165 (Alvarez).) "On appeal, a defendant may make a direct claim that there was insufficient evidence, aside from his statements, of the corpus delicti." (Id. at p. 1165.)
"In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.] . . . [¶] This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened." (Alvarez, supra, 27 Cal.4th at pp. 1168-1169.) "[A]s historically applied, the rule requires corroboration of the defendant's extrajudicial utterances insofar as they indicate a crime was committed, and forces the People to supply, as part of their burden of proof in every criminal prosecution, some evidence of the corpus delicti aside from, or in addition to, such statements. (Id. at p. 1178.)
"Expert opinion testimony may support the corpus delicti when two conditions are met. First, the opinion must be '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Evid. Code, § 801, subd. (a).) Second, the opinion must be based on 'matter . . . perceived by or personally known to the witness . . . that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert's] testimony relates. . . .' (Evid. Code, § 801, subd. (b).) Although the expert cannot directly opine that the defendant is 'guilty' to support the corpus delicti [citation], the expert may testify as to various ' "ultimate issues" ' including facts necessary to establish the corpus delicti of a charge." (People v. Powers-Monachello (2010) 189 Cal.App.4th 400, 412.)
"The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence 'of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues." (Alvarez, supra, 27 Cal.4th at p. 1171.)
Our review is de novo. (See Alvarez, supra, 27 Cal.4th at pp. 1181-1182.)
D
There is Independent Evidence to Establish the Corpus Delicti of Conspiracy
The People rely on cases holding that extrajudicial statements that are themselves a part of the conduct of the crime, are not subject to the corpus delicti rule. (People v. Carpenter (1997) 15 Cal.4th 312, 394 abrogated on another point by People v. Diaz (2015) 60 Cal.4th 1176, 1185-1187.) While statements made during a crime may be considered, the corpus deliciti rule nevertheless requires corroboration of the defendant's extrajudicial utterances insofar as those statements indicate a crime was committed. (Alvarez, supra, 27 Cal.4th at p. 1178.) Therefore, the People must show some evidence of the corpus delicti aside from, or in addition to, such statements. (Ibid.)
There is sufficient corroboration in the record to ensure that Anderson was not falsely convicted, by his words alone, of a crime that never happened. (Alvarez, supra, 27 Cal.4th at pp. 1168-1169.) The evidence shows there were a large number of Crip gang members gathered at a party in southeast San Diego. Cell phone tower data indicates that Anderson passed through that area of town. His companions commented on the large number of gang members at the party, indicating they and Anderson noted the Crips' presence. Other gang members described the locations where Anderson might find guns. Cell phone data showed that Anderson moved from one location to another when informed where the guns were hidden. A gang member reported to Anderson that one of the guns he was looking for was in Mira Mesa. Another person used Anderson's cell phone to describe his inability to leave their location because of the heavy police presence. In addition, expert witnesses testified about gang practices, including the many retaliatory drive-by shootings that recently had occurred in the area between rival gangs. Therefore, as a matter of law, the record contains the requisite prima facie showing, independent of defendant's extrajudicial statements, to satisfy the corpus delicti rule. (Alvarez, at p. 1182.)
DISPOSITION
We affirm the judgment.
/s/_________
BENKE, Acting P. J. WE CONCUR: /s/_________
HUFFMAN, J. /s/_________
HALLER, J.