Opinion
A144380
02-21-2018
THE PEOPLE, Plaintiff and Respondent, v. DONTE MARQUEE SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51313287)
A jury found defendant Donte Marquee Smith guilty of first-degree murder with the special circumstance of discharging a firearm from a motor vehicle, attempted murder, and shooting at an occupied motor vehicle.
Defendant contends the trial court erred in admitting evidence that gun paraphernalia unrelated to the murder was found in his room months before the shooting. He also claims certain sentencing errors and identifies errors in the abstract of judgment. The Attorney General concedes the prison term imposed for shooting at an occupied motor vehicle must be stayed under Penal Code section 654 and the abstract of judgment must be amended.
Further undesignated statutory references are to the Penal Code.
Accepting the Attorney General's concessions, we will modify the judgment, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the attempted murder victim, S.S., started dating in 2009. They had a daughter together, and S.S. and the child moved in with defendant at his parents' house in San Pablo.
S.S. and defendant had a volatile relationship. According to S.S., defendant sometimes threatened and used violence against her when she tried to break up with him. In December 2011, defendant kicked S.S. and their daughter out of his parents' house. At that time, defendant was dating another woman named A. Evidence was presented that defendant was abusive and threatened violence in that relationship as well.
On one occasion after she tried to leave him, defendant almost hit S.S. with his car and told her he hated her and wanted to kill her. In another incident, defendant grabbed S.S., banged her head against an exterior wall, and threw her down on the concrete. When she got up and started to walk away, defendant told her if she kept going he would shoot her.
A.'s mother testified that defendant and her daughter dated on and off for about four years. In December 2011, defendant pulled up to A.'s mother's house and started yelling at A. He said "he was gonna F her up." When A.'s mother tried to intervene, defendant told her "he was going to fuck her up," too. Defendant jumped in his car and drove directly into A.'s mother, hitting her such that she "bounced off the fender" of his car.
At some point in 2012, defendant moved out of his parents' house and moved to the Sacramento area. S.S. and defendant started seeing each other again romantically.
Around August 2012, S.S. was at defendant's house in the Sacramento area when a police officer knocked on the door. A. was also present outside. Defendant was very upset after the police visited. Defendant told S.S. he had a gun in his pocket, and he could have been caught by the police. He was angry with A. and said he was "goin' to get that bitch." A few weeks later, defendant told S.S. he had cut A.'s brakes.
S.S. testified she did not actually see a gun with defendant at the time. She did see defendant with a gun on another occasion. He had a paper target in his room, and he offered to take S.S. to the shooting range.
In September 2012, S.S. broke up with defendant for good and began dating Dejuan McDonald, the murder victim.
On October 11, 2012, S.S. took her daughter to school. McDonald was in S.S.'s car with them. When S.S. walked her daughter into the school, defendant was already there. He was angry and "really intimidating." He asked S.S. who was in her car. S.S. told a teacher to call the police, and defendant stormed out. As he left, defendant said to S.S., "Oh, you want to challenge me, okay."
The next day, S.S. discovered her brakes had been cut. She called the police, and an officer advised her to get a restraining order. A few days later, S.S. filed a request for a restraining order against defendant.
S.S. testified her brakes did not work, and she saw brake fluid coming from her car. She asked a neighbor to replace her brakes. The neighbor, who worked on cars for about 23 years, testified that he fixed her car after the brake lines had been cut on two occasions. He confirmed the lines were cut; the damage was not due to wear and tear.
On November 8, 2012, S.S. attended a hearing on her request for a restraining order. The family court ordered mediation and visitation. After the hearing, defendant was angry and told S.S. he was going to "whoop [her] ass." When S.S. went to her car, her brakes were not working again. For a second time, S.S. asked her neighbor to fix her brakes. The neighbor again found that her brake lines had been cut.
To counter S.S.'s testimony that defendant threatened her, the defense called the bailiff from the family court who testified that he did not hear defendant threaten S.S. The bailiff recalled that S.S. had a rude demeanor in the courtroom, and he was surprised she did not get contempt of court.
The same day, defendant called S.S. from a blocked number. He said, "I'm goin' to kill you. It's perfect weather." S.S. did not go to court-ordered mediation because she was scared, and she did not want to have her brakes cut again. She arranged defendant's visitation with their daughter by meeting defendant's parents in public to drop off or pick up the child.
The defense presented evidence that, the same day, defendant himself reported to a police officer that he received harassing phone calls. The officer contacted S.S., who told him she received threatening calls from defendant. The officer told them not to speak to each other.
On the evening of December 17, 2012, S.S. went to defendant's parents' house to pick up her daughter. McDonald accompanied S.S., driving her car. S.S. saw defendant outside his parents' house in the driveway. As S.S. put her daughter in her car, defendant was pacing back and forth in the middle of the street. As S.S. arrived at home, she realized defendant had followed her in his car. S.S. drove to a police officer and reported that her daughter's father was following her. S.S. was scared, and she and her daughter stayed with a friend that night.
Three days later, S.S. went to another family court hearing. The court did not grant her a permanent restraining order. As S.S. left the courtroom, defendant made gunshot noises at her. S.S. was scared. She did not stay at her home that night, and McDonald kept her car.
S.S. testified the judge was upset that she had not gone to court-ordered mediation. S.S. said she tried to call the number for mediation but she could not get through, and the judge did not accept her excuse.
The next morning, December 21, 2012, McDonald picked up S.S. and her daughter. After they dropped off her daughter at the school, McDonald and S.S. were traveling on Rumrill Boulevard when S.S. noticed defendant driving next to them in his car, a black Nissan. Defendant pulled up next to S.S., who was in the passenger's seat. He rolled down his window and glared at S.S. Defendant pulled out a gun and sat it on the windowsill of his driver's side door. S.S. said, " 'Duck,' " and she leaned over the middle console and put her hands over her head. Then she heard gunshots. Seven shots were fired. After the gunfire ended, S.S. saw that McDonald was bleeding. The car was still moving, and she stopped the car. S.S. called 911 and told the dispatcher, "Donte Smith did it!" He shot her boyfriend. Another witness at the scene described S.S. crying and yelling, and she kept saying her baby's father, Donte, did it.
An ambulance took McDonald to the hospital. McDonald had three gunshot wounds, and he died from a through-and-through wound that entered his right back and exited his left shoulder.
S.S. went to see McDonald's mother in person and told her someone shot McDonald on the day of the shooting but did not identify defendant. S.S. testified at trial that she "didn't know how to tell his mother that the father of [S.S.'s] daughter shot her son." Defense counsel relied on the fact that S.S. did not tell McDonald's mother that defendant shot her son as evidence that she was falsely accusing defendant at trial.
The defense called a witness who was walking on Rumrill Boulevard when the shooting occurred. He saw a white car (S.S.'s car) next to a white van. A black car was driving in front of the white car. The witness heard shots, and "the black car just continued along the way it had been," while the white van "took off real fast." The witness did not see the shooter or the gun. He assumed the shooter was in the white van because of what he saw after the shooting.
DISCUSSION
I. Evidence of Firearm Paraphernalia in Defendant's Room
Defendant contends the trial court committed prejudicial error when it permitted the prosecution to introduce evidence that firearm paraphernalia was found in his room in June 2012. We find no reversible error.
A. Background
Before trial, the prosecution filed a motion in limine to allow evidence that, in a probation search of defendant's room in June 2012, officers found a .40 caliber magazine, nine live .40 caliber rounds, a holster, ear plugs, and shooting glasses. The prosecution argued the evidence was relevant to show defendant's familiarity with guns and it was more probative than prejudicial. Defense counsel argued that the evidence should not be admitted because possession of these items was not a violation of the probation condition that defendant not possess a firearm. He also argued the fact that defendant was on probation would inflame the jury and should be sanitized. The prosecutor responded that defendant was actually in violation of probation because his probation conditions included a prohibition on possessing ammunition.
The evidence was offered to show familiarity with firearms in general. There was no argument that the ammunition or magazine found during the probation search was used in the shooting. The prosecution presented evidence that McDonald was killed by .9-milimeter Luger bullets.
The trial court ruled that evidence of the firearm paraphernalia could be admitted, but agreed with defense counsel that the fact defendant was on probation was not relevant. Therefore, the court ordered the evidence to be sanitized to exclude the fact the search was a probation search.
At trial, a San Pablo police officer testified that he conducted a search of defendant's parents' house in San Pablo, including defendant's bedroom. Under defendant's bed, he found a lockbox that contained the firearm paraphernalia.
B. Analysis
Evidence Code section 1101, subdivision (a), prohibits admission of "evidence of a person's character . . . to prove his or her conduct on a specified occasion," but "[n]othing in [section 1101] prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident . . . ) other than his or her disposition to commit such an act" (Evid. Code, § 1101, subd. (b)).
Defendant now argues evidence of the firearm paraphernalia found in his room should have been excluded as impermissible character evidence under Evidence Code section 1101. This argument lacks merit. The prosecution did not offer the evidence to show defendant's conduct on a specified occasion. Instead, as the prosecution argued in its motion in limine, the evidence that defendant possessed firearm paraphernalia in June 2012 was offered to show defendant was familiar with firearms in general. This, in turn, was relevant to show that defendant had the knowledge and ability to use a firearm to shoot S.S. and McDonald.
That would be the case if, for example, defendant had been charged with possession of firearm ammunition in violation of probation on December 21, 2012, and the prosecution argued the fact he possessed ammunition in June 2012 could be used to infer he also possessed ammunition on the later date. Such a use of the search evidence would be impermissible character evidence in violation of Evidence section 1101, subdivision (a). But that it not what happened here.
Defendant also argues the trial court should have excluded the probation search evidence as more prejudicial than probative under Evidence Code section 352. His argument is based on a faulty premise. He characterizes the evidence that he possessed firearm paraphernalia as "other crimes" evidence, but possession of firearm paraphernalia in one's own home is not generally a crime. And as a result of the court's order to sanitize the evidence, the jury did not learn that defendant was on probation with a condition prohibiting possession of ammunition. Thus, the evidence did not show defendant committed a crime.
Defendant asserts the evidence portrayed him "as an evil person who undoubtedly committed the charged offenses." We disagree. The evidence showed only that defendant possessed firearm paraphernalia. The jury also heard from S.S. (without objection) that she saw a gun and paper target in defendant's room, and he once offered to take her to the shooting range. In this context, evidence of the firearm paraphernalia found in defendant's room was less likely to cause prejudice, since it confirmed S.S.'s testimony that defendant had an interest in shooting targets at a shooting range. On this record, we conclude the trial court did not abuse its discretion in finding the probative value of the evidence was not substantially outweighed by its potential prejudicial effect. (See People v. Crew (2003) 31 Cal.4th 822, 841 [reviewing trial court's evidentiary ruling under Evidence Code section 352 for abuse of discretion].)
In his reply, defendant cites for the first time People v. Riser (1956) 47 Cal.2d 566 (Riser), disapproved on another ground in People v. Chapman (1959) 52 Cal.2d 95, 98, and disapproved on another ground by People v. Morse (1964) 60 Cal.2d 631, 652. In Riser, our Supreme Court held: "When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant's possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon. [Citation.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (47 Cal.2d at p. 577, italics added.) We find Riser distinguishable because the evidence in this case was not presented to show defendant was the sort of person who carries deadly weapons, but instead was relevant to bolster S.S.'s testimony indicating defendant had an interest in target practice and to establish defendant could have the knowledge of firearms and skill necessary to shoot seven rounds at a moving car from a moving car.
We note the prosecutor in closing argued: "He shot seven times at their vehicle. Seven times. At center mass, head shots. He didn't waste a single bullet. . . . [The shots] were practiced, controlled. You got [to] hear those shots. And while they are rapid, it was an even pull, . . . no hesitation, controlled, center mass." (Italics added.) In other words, the prosecutor argued the shooter was a skilled marksman. Evidence of firearm paraphernalia in defendant's room corroborated S.S.'s testimony suggesting defendant shot targets at a shooting range and would have the skill to commit the charged offenses.
In any event even assuming it was error to admit the evidence under Riser, we discern no prejudice. Defendant suggests the case hinged solely on S.S.'s testimony, which defense counsel roundly impeached. He argues S.S. likely made up many of her earlier accusations against defendant. But S.S.'s testimony was corroborated by testimony from A.'s mother that defendant was violent with A. when they were in a relationship, by testimony from her neighbor confirming that S.S.'s brake lines were cut twice in the weeks preceding the shooting, and by defendant's cell phone data, which was consistent with someone traveling south toward Richmond from the area of the shooting immediately after the shooting. Moreover, there is no dispute that immediately after the shooting and while S.S. was visibly distraught and described by a police officer as "hysterically crying," she identified defendant as the shooter to 911, police officers at the scene, and bystanders.
In addition, the jury learned that after the shooting, police officers searched defendant's room at his parents' house in San Pablo and found a holster and gun lock. Police searched defendant's room on the day of the shooting. Defendant himself apparently went into hiding immediately after the shooting. Over a month after the shooting, defendant's car was discovered covered in dust with no license plates at an apartment in Richmond. Soon after, defendant was arrested as he emerged from the Richmond apartment. Evidence suggested he had recently cut off his dreadlocks.
On this record, and particularly in light of the evidence showing defendant had an interest in target practice and firearm paraphernalia was found in his room after the shooting, we conclude any error in admitting the probation search evidence was harmless. We cannot say it is reasonably probable the jury would have reached a result more favorable to defendant had the trial court excluded evidence of the firearm paraphernalia found in defendant's room in June 2012.
Finally, having found no reversible error under state law, we reject defendant's constitutional claims based on the same alleged error. (See People v. Abilez (2007) 41 Cal.4th 472, 503 [trial court's exclusion of evidence was "a garden-variety evidentiary issue under state law and did not implicate defendant's federal constitutional right to present a defense"].)
II. Sentencing Issues
The jury found defendant guilty of first-degree murder (count 1), attempted murder (count 2), and shooting at an occupied motor vehicle (count 3), and found true the allegations and special circumstances that defendant personally discharged a firearm causing great bodily injury and the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle. In a bifurcated court trial, the court found defendant guilty of possessing a firearm with a juvenile adjudication (§ 29820; count 5) and found true a prior strike allegation.
Count 4 was dismissed.
The trial court sentenced defendant as follows: for count 1, life in prison without the possibility of parole for first-degree, special circumstances murder, plus a consecutive 25 years to life for the firearm enhancement under section 12022.53, subdivision (d); for count 2, a concurrent 14-year term (midterm of seven years doubled because of the strike conviction) for attempted murder, plus a consecutive 25 years to life for the firearm enhancement; for count 3, a concurrent 10-year term (midterm of five years doubled) for shooting an occupied motor vehicle, plus a consecutive 25 years to life for the firearm enhancement; and for count 5, a concurrent four-year term (midterm of two years doubled) for possessing a firearm.
A. Section 654
Section 654, subdivision (a), provides in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
The Attorney General concedes the sentence for count 3, shooting at an occupied motor vehicle, must be stayed under section 654. We agree. (See People v. Sok (2010) 181 Cal.App.4th 88, 100 [where defendant shot into victims' car, defendant could not be sentenced for both attempted murder and shooting at an occupied vehicle under section 654].) Accordingly, we will modify the judgment to stay the sentence imposed for count 3. (People v. Medelez (2016) 2 Cal.App.5th 659, 664.)
Defendant claims the sentence for count 5, possession of a firearm with a juvenile adjudication, must be stayed under section 654 as well. He relies on a line of cases including People v. Kane (1985) 165 Cal.App.3d 480, 488, in which the Third District Court of Appeal held the term for possession of firearm by a convicted felon should have been stayed under section 654 where the defendant "possessed the firearm, fired it at [the victim] and hit the Ford Granada in an indivisible course of conduct." The Attorney General relies on a more recent line of cases including People v. Jones (2002) 103 Cal.App.4th 1139, 1145 (Jones), in which the Second District Court of Appeal, Division Three, concluded "that section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm."
Here, defendant drove up to S.S.'s car in his own car and pointed a gun at S.S. before firing. Under these facts, defendant must have possessed the firearm while he was driving his car and before he pulled up next to S.S.'s car. Thus, he must have arrived at the scene already in possession of the firearm. We follow Jones here and conclude section 654 does not require staying the term for count 5.
In People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412, the Fourth District Court of Appeal, Division Two, "distill[ed] the principle that if the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense, section 654 will bar a separate punishment for the possession of the weapon by an ex-felon." Here, it cannot be said that defendant's possession of a firearm as he drove his own car was merely fortuitous. We contrast the circumstances of the present case with People v. Bradford (1976) 17 Cal.3d 8, in which the defendant wrested a revolver from a police officer during a traffic stop and then shot the officer, and our high court held section 654 applied because the defendant's possession of the revolver "was not 'antecedent and separate' from his use of the revolver in assaulting the officer." (Id. at pp. 13, 22.) --------
B. Consecutive Terms
Section 12022.53, subdivision (d), provides that "any person who, in the commission of a [specified] felony . . ., personally and intentionally discharges a firearm and proximately causes great bodily injury, . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
This firearm-use enhancement specifically attaches to the term of imprisonment imposed for the underlying offense. (See People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310 [enhancements either attach to term imposed for underlying offense or add to aggregate term; personal use of firearm in commission of offense is former type]; People v. Phong Bui (2011) 192 Cal.App.4th 1002, 1016 [enhancement under section 12022.53 runs with term for underlying offense].)
Defendant argues the trial court mistakenly imposed enhancements under section 12022.53, subdivision (d), for counts 2 and 3 consecutive to the sentence for count 1, even though the base terms for counts 2 and 3 ran concurrently. The Attorney General responds that the trial court did not commit that error. Rather, the trial court imposed the enhancement consecutively to the base term of each of the sentences for counts 2 and 3, and ordered the complete sentences (including the enhancements) on those counts to run concurrently with sentence imposed for count 1.
The court stated, "Count 2 is 187/664. The Court would run concurrent at the midterm . . . plus the separate 12022.53 enhancement, a separate 25 consecutive years to life. [¶] And Count 3, the 246 would also be run concurrent . . . the midterm. The enhancement, 12022.53, a separate 25 years consecutive to life."
We agree with the Attorney General. A fair reading of the court's pronouncement is that the court knew the enhancements attached to the individual counts, properly imposed the enhancements consecutive to the base terms, and ordered the entire sentences to run concurrently. There was no error.
III. Abstract of Judgment
The parties agree the abstract of judgment does not accurately reflect the sentence imposed by the trial court. We will order correction of the abstract of judgment. (People v. Medelez, supra, 2 Cal.App.5th at p. 664.)
First, the abstract of judgment lists enhancements to count 1 of "PC 190.2(a)(21)" of 25 years to life and "PC 190(d)" of 25 years to life. The trial court did not impose these enhancements, however. Nor were these statutory provisions charged as separate enhancements. (They were alleged as special circumstances.)
Accordingly, we order the abstract of judgment modified to delete reference to sections 190.2, subdivision (a)(21), and 190, subdivision (d), and the respective 25-year-to-life terms.
Second, the abstract of judgment shows consecutive terms for counts 2 and 3, but the trial court ordered concurrent terms for these counts. In addition, we have concluded that sentence for count 3 must be stayed under section 654. (See part II.A., ante.)
We order the abstract of judgment modified to reflect (1) the term imposed for count 2 is to run concurrent, and (2) the term imposed for count 3 is to be stayed.
Third, the abstract of judgment provides that the firearm-use enhancements for counts 1, 2, and 3 were imposed pursuant to "PC 12022.53(b)(c)(d)." The enhancement of 25 years to life, however, is only provided for in subdivision (d) of section 12022.53.
We order the abstract of judgment amended to reflect the enhancements of 25 years to life for counts 1, 2, and 3 were imposed pursuant to section 12022.53, subd. (d).
DISPOSITION
The judgment is modified to stay the sentence for count 3. The superior court is directed to modify the abstract of judgment as follows: delete enhancements of "PC 190.2(a)(21)" of 25 years to life and "PC 190(d)" of 25 years to life for count 1; provide that the term for count 2 is to run concurrent; provide that the term for count 3 is stayed; delete reference to "PC 12022.53(b)(c)(d)" and replace with "PC 12022.53(d)." A certified copy of the modified abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.