Opinion
F060386 Super. Ct. No. BF126716A
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. LAMONT DUSTIN BRADSHAW, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Lamont Dustin Bradshaw appeals from the judgment entered following his conviction by jury of conspiracy to commit murder (Pen. Code, §§ 182, subd (a)(1), 187, subd. (a); count 1), conspiracy to discharge a firearm at an occupied vehicle (§§ 182, subd (a)(1), 246; count 3), carrying a loaded firearm by an active participant in a criminal street gang (§ 12031, subd. (a)(2)(C); count 4), active participation in a criminal street gang (§ 186.22, subd. (a); count 5), and possession of a firearm in violation of probation (§ 12021, subd. (d); count 6). The jury acquitted appellant of attempted murder (count 7), and discharging a firearm at an occupied vehicle (count 8). He was sentenced to prison for a total of 50 years to life for count 1, plus a consecutive term of 15 years to life for count 3. The terms imposed on the remaining counts were stayed under section 654.
Further statutory references are to the Penal Code unless otherwise specified.
Before trial, the court dismissed count 2, which had charged appellant with a second count of conspiracy to commit murder.
For reasons discussed below, we reject appellant's claim that insufficient evidence supports his conspiracy convictions because there was no evidence he entered an agreement to commit the target offenses. We agree, however, that appellant's conviction in count 3 (conspiracy to discharge a firearm at an occupied vehicle) must be reversed because the jury found that count 1 (conspiracy to commit murder) and count 3 were not separate and distinct conspiracies but part of one overall conspiracy. In light of the reversal and remand for resentencing, we do not reach appellant's claims that the trial court erred in imposing a consecutive sentence for count 3, or that his aggregate prison term of 65 years to life constituted cruel and unusual punishment.
FACTS
On August 2, 2008, sometime after 2:00 a.m., Bradley Wafford, a member of the Eastside Crips, a criminal street gang, was sitting with his friend D'Ondria Jones in Wafford's Trailblazer. The vehicle was parked across the street from Jones's house, where, that night, there had been a party of between 22 and 30 people. Wafford sat in the driver's seat and Jones sat in the front passenger seat.
Before Jones crossed the street to get into Wafford's vehicle, she saw a silver Chrysler drive onto Ilene Court where her house was located. The car stopped to let her cross the street and then continued to the end of the cul-de-sac. After Jones got inside Wafford's vehicle, the Chrysler returned and pulled up next to them. Wafford recalled that a person in the Chrysler asked, "Is there a party right here?" When Wafford answered no, someone in the Chrysler fired multiple shots into his vehicle. The car then drove away.
The arrival of the Chrysler and the shooting were also witnessed by Damiris Woods. Woods, like Wafford, was a member of the Eastside Crips. When the incident occurred, Woods was getting ready to leave the party in his car, which was parked in Jones's driveway, across the street from Wafford's vehicle.
In the investigation of the shooting, police recovered seven spent .40-caliber shell casings. Forensic testing established that these casings came from a Glock .40-caliber semiautomatic pistol, which was recovered from the backyard of appellant's aunt's house a few hours after the shooting. Police also found three bullets lodged in various locations inside Wafford's vehicle.
Jones was uninjured in the shooting, but Wafford was struck in the chest and buttocks. He spent three days in the hospital. Doctors could not remove the bullet in his chest because it was too close to his heart; i.e., two inches.
At 2:35 a.m., emergency dispatch received the first call about the shooting. Around 3:00 a.m., Bakersfield Police Officer Jess Beagley stopped the silver Chrysler. The car's sole occupant was Deandre Wallace, an associate of the Westside Crips gang, a rival of the Eastside Crips.
Officer Beagley conducted a search of the Chrysler and found a digital camera in the center console. The camera contained a picture of appellant holding a Glock firearm. Based on the time stamp, the picture was estimated to have been taken between nine and 11 minutes prior to the time dispatch received the first call about the shooting.
Appellant's fingerprints were also found on the Chrysler's right rear fender and on the right front fender.
Wallace testified that, on the night of the shooting, he attended a house party, where he twice loaned out his Chrysler to people who wanted to go buy alcohol. The second time he loaned out the car, he loaned it to appellant and two others, who were gone for about an hour. When the car was returned to Wallace, appellant was not in it.
Officer Brent Stratton, who interviewed both appellant and Wallace, testified that he eventually determined that the people who reportedly borrowed Wallace's car were appellant, Billy Sanders ("Little Skeet"), and Benny West ("Little Teflon"), all three of whom were members of the Westside Crips.
Wallace told Officer Stratton that, after the Chrysler was returned to him, he overheard appellant laughing about doing a shooting.
After the shooting, police officers traced appellant to his aunt's house around 4:30 a.m. The house was located between six and eight miles from where the Chrysler was stopped, and between one and a half to two miles from where the shooting took place.
Prior to making contact with appellant, Officer Eric Lantz heard appellant talking on a cell phone behind his aunt's house, near the fence separating her property from the neighbor's property. Officer Lantz then observed appellant walk to the back door of his aunt's house. When Officer Lantz went around and knocked on the front door to the house, appellant opened it. Appellant appeared to be nervous. He was breathing heavily and repeatedly asked, "what did I do, sir?"
After detaining appellant, Officer Lantz instructed other officers to conduct a search of the residence, starting with the backyard. Officer Lantz asked appellant if he had a firearm or had discarded a firearm, explaining that he was concerned a child might find it and get injured. Appellant responded that the only gun he had was the one in the picture on the digital camera found in Wallace's Chrysler, and that the gun was currently at his friend's house.
Officer Stratton also interviewed appellant and questioned him about the gun in the picture. Appellant initially claimed that it was only an Airsoft gun and that it belonged to Wallace. But when Officer Stratton told appellant that Wallace denied owning an Airsoft gun, appellant admitted it was a real gun and claimed that it belonged to somebody known as Little Skeet (i.e., Sanders) or Little Teflon (i.e., West).
While appellant was being interviewed, officers found the Glock pistol involved in the shooting. The gun was lying about three feet from the fence in his aunt's backyard.
Appellant initially claimed that he had been at his aunt's house babysitting all night. Appellant told Officer Stratton that he arrived at her house around 8:00 p.m., and that he had been out with Wallace before that but did not see Wallace again that night. Appellant also claimed the picture of him with the gun was taken around 8:00 p.m.
After being informed that the Glock pistol had been found in his aunt's backyard, appellant changed his story and told Officer Stratton that the picture of him holding the gun was taken around 2:30 a.m., when Sanders, West, Wallace, and Sanders's girlfriend, Josonia Sterling stopped by his aunt's house. Shortly after they left his house, they called appellant and said they needed help hiding the gun. Appellant told them he could not possess it and he did not want any part of it.
In a later interview with Officer Stratton, appellant admitted that he was not at his aunt's house the entire night. According to appellant, he left his aunt's house around 1:30 a.m. and went to a party at a nearby motel. He was only there for a short time before he asked for a ride home. Appellant said he came home in Wallace's car, along with Sanders, West, and Sterling. After they left appellant at his aunt's house, he got a call from Sanders asking him to hide the gun.
Considering a hypothetical based on the facts of the case, the prosecution's gang expert opined that the shooting was committed for the benefit of appellant's gang.
The Defense
Appellant's cousin, Vatina Walker, testified that appellant arrived at his aunt's house sometime between 10:00 p.m. and midnight. She saw Wallace, who was driving his Chrysler, drop off appellant. To Walker's knowledge, appellant did not leave the house that night and come back. Once she saw him briefly step outside and then come back inside the house after receiving a telephone call.
Appellant's aunt, Killee Johnson, testified that appellant regularly came to her house on the weekend to help Walker babysit Johnson's and Walker's children, and that had been the plan that night. Around 11:00 p.m., when Johnson left to go to a nightclub, appellant had not yet arrived.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends insufficient evidence supports his conspiracy convictions because "there was no evidence appellant entered into an agreement with the intent to commit murder or with the intent to discharge a firearm at a motor vehicle." We disagree.
In reviewing the sufficiency of evidence to support a conviction, we review the entire record to determine whether there is reasonable and credible evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hovarter (2008) 44 Cal.4th 983, 1014-1015.) We view the evidence and draw all reasonable inferences in favor of the judgment. (Id. at p. 1015.) We will uphold the judgment unless there is no substantial evidence to support the conviction under any hypothesis whatsoever. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
A conspiracy conviction requires proof of the following four elements: "(1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. [Citations.]" (People v. Vu (2006) 143 Cal.App.4th 1009, 1024.)
"'In proving a conspiracy, ... it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.' [Citation.] 'The agreement in a conspiracy may be shown by ... conduct of the defendants in mutually carrying out an activity which constitutes a crime.' [Citations.]" (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417; overruled on other grounds in People v. Arias (2008) 45 Cal.4th 169, 182.)
Here, the evidence permits the following reasonable inferences. On the night of the shooting, appellant was one of three Westside Crips gang members to set out in a Chrysler borrowed from an associate of the gang. They drove into a residential cul-de-sac, where there had been a house party that night attended by at least two members of the rival Eastside Crips gang. After driving by the house, the Chrysler turned around and pulled up next to a vehicle occupied by an Eastside Crips gang member and his female companion. One of the Westside Crips briefly asked the Eastside Crip if there was a party there. When he answered no, one of the Westside Crips fired a semiautomatic Glock pistol multiple times into the Eastside Crip's vehicle and at a vulnerable part of the Eastside Crip's body. A bullet entered his chest and fortuitously missed his heart by two inches. After the shooting, police recovered a digital camera from the Chrysler. The camera contained a picture, taken near the time of the shooting, which showed appellant posing with a Glock firearm. The gang associate that loaned his Chrysler to appellant and the others reported that, when the car was returned to him, he overheard appellant laughing about doing a shooting. The actual Glock pistol used in the shooting was recovered from the backyard of appellant's aunt's house, where appellant was heard talking on the phone when the police arrived. Notwithstanding appellant's assertions to the contrary, there was ample circumstantial evidence to establish that he and his fellow gang members formed a tacit agreement to commit murder and to discharge a firearm at an occupied vehicle.
We also reject appellant's assertion that "the fact he was not present supports his claim that he had no knowledge and/or did not have the specific intent to commit the offenses which were the objects of the conspiracy." The circumstances outlined above permit a reasonable inference that appellant was, in fact, present in the Chrysler at the time of the shooting. The fact the jury acquitted him of attempted murder (count 7) and personally discharging a firearm at an occupied vehicle (count 8) does not necessarily reflect that he was not present at the time of the shooting, as he suggests on appeal. The jury might simply have found there was not enough evidence to determine whether appellant was the actual shooter as alleged by the prosecution. In other words, appellant's acquittal on counts 7 and 8 does not negate the evidence supporting the conspiracy convictions, which was sufficient to show he entered an agreement to commit the target offenses with the requisite intent.
II. Single Conspiracy
Appellant contends that we must reverse his separate conviction for conspiracy to discharge a firearm at an occupied vehicle because the jury found -- and the evidence shows, as a matter of law -- that the conspiracy to commit murder (count 1) and the conspiracy to discharge a firearm at an occupied vehicle (count 3) were not separate and distinct conspiracies but part of one overall conspiracy. We agree.
"[T]he essence of the crime of conspiracy is the agreement, and thus it is the number of the agreements (not the number of the victims or number of statutes violated) that determine the number of the conspiracies. As the United States Supreme Court stated long ago: 'The gist of the crime of conspiracy ... is the agreement or confederation of the conspirators to commit one or more unlawful acts ....' [Citation.] '"The conspiracy is the crime and that is one, however diverse its objects."' [Citation.]" (People v. Meneses (2008) 165 Cal.App.4th 1648, 1669-1670.) "Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts 'were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.'" (People v. Morocco (1987) 191 Cal.App.3d 1449, 1453.)
Here, each separately charged conspiracy alleged the same overt acts. Thus, the jury was instructed:
"In this case the defendant is charged with conspiracy to commit the following public crimes:The jury found each of the overt act allegations to be true, and found "[t]here was one overall conspiracy consisting of Counts One and [Three]." The record supports the jury's conclusion. It shows a single agreement to commit murder by discharging a firearm at an occupied vehicle. There is no evidence of separate agreements to commit the crimes, despite the potential for multiple victims. Therefore, only one count of conspiracy can be sustained.
"Conspiracy to Commit Murder; and
"Conspiracy to Discharge a Firearm into an Occupied Vehicle;
"It is alleged that the following acts were committed by one or more of the conspirators and were overt acts and committed for the purpose of furthering the object of the conspiracy:
"1) Co-conspirator Lamont Bradshaw and Co-Conspirator(s) entered vehicle,
"2) Co-conspirator Lamont Bradshaw and Co-Conspirator(s) drove to the 5400 Block of Ilene Ct.,
"3) A Co-Conspirator shot a firearm into a vehicle hitting an occupant named Bradley Wafford,
"4) Co-Conspirator Lamont Bradshaw discarded the firearm."
Respondent implicitly acknowledges that the evidence shows a single conspiracy. Nonetheless, respondent argues that appellant can properly be convicted of separate conspiracies to commit murder and to discharge a firearm at an occupied vehicle because there was substantial evidence that appellant and his co-conspirators intended "separate murders of different individuals [(i.e., Wafford and Jones)] incidental to one overall conspiracy." Respondent relies on People v. Liu (1996) 46 Cal.App.4th 1119 (Liu) to support this argument.
In Liu, the court held that a conspiracy to commit several murders could be charged in separate counts even if pursuant to a single objective. (Liu, supra, 46 Cal.App.4th at p. 1133.) The court noted that "a conspiracy to commit several murders is a more serious wrong than a conspiracy to commit a single murder," thus warranting treatment as multiple conspiracies. (Ibid.)The court acknowledged the rule that, "where the evidence shows that a group of conspirators agreed to commit a number of different crimes incidental to a single objective, there is only one conspiracy." (Ibid.)The court merely recognized an exception to this rule "where the several different criminal acts are separate murders of different individuals." (Ibid.)This exception has not been applied outside this context. (See People v. Davis (1989) 211 Cal.App.3d 317, 323 [solicitation to commit multiple murders]; cf. People v. Vargas (2001) 91 Cal.App.4th 506, 556.)
Without deciding whether Liu was correctly decided, we find that Liu is inapplicable here because appellant was not convicted of more than one count of conspiracy to commit murder. Respondent cites and we are aware of no authority that a defendant can properly be convicted of separate conspiracies to commit murder and to discharge a firearm at an occupied vehicle, where the evidence shows a single agreement, because more than one victim was contemplated. As stated above, the law is that the number of agreements, not the number of victims, determines the number of conspiracies. Because the conspiracies charged in counts 1 and 3 were not separate conspiracies but part of one overall conspiracy, appellant's conviction for count 3 is reversed and the matter remanded for resentencing.
III. Sentencing Issues
Because count 3 is reversed and the matter remanded for resentencing, we do not reach appellant's claim that the trial court erred in imposing a consecutive sentence for count 3. Nor do we reach his claim that his aggregate prison term of 65 years to life was a de facto sentence of life without parole and, because he was only 17 years old at the time of the offenses, constituted cruel and unusual punishment under Graham v. Florida (2010) 560 U.S.___ , in which a divided court held "[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide." (Graham, supra, 560 U.S. at p ___ [lead opn. of Kennedy, J.].)
DISPOSITION
Appellant's conviction for conspiracy to discharge a firearm at an occupied vehicle (count 3) is reversed with retrial prohibited, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
HILL, P.J.
WE CONCUR:
CORNELL, J.
FRANSON, J.