Opinion
A144549
01-26-2017
THE PEOPLE, Plaintiff and Respondent, v. DAMONTE DAVON STARKS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C173167)
Damonte Davon Starks was convicted, following a jury trial, of first degree murder and shooting from a motor vehicle. On appeal, he contends the trial court improperly refused to instruct on self-defense and voluntary manslaughter under a theory of imperfect self-defense. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On November 18, 2014, appellant was charged by amended information with murder (Pen. Code, § 667.5, subd. (c)—count one), and shooting from a motor vehicle (§ 26100, subd. (c)—count two). The information alleged as to both counts that appellant personally discharged a firearm and inflicted great bodily injury on another person, within the meaning of sections 12022.5, 12022.7, and 12022.53.
On January 7, 2015, a jury found appellant guilty as charged and found all of the enhancement allegations to be true.
On March 13, 2015, the trial court sentenced appellant to 50 years to life in prison.
Also on March 13, 2015, appellant filed a notice of appeal.
FACTUAL BACKGROUND
This case arises from the shooting death of William Ward at the corner of Hillside Street and 84th Avenue in Oakland.
Michelle Nelson testified that on June 27, 2013, at 3:20 in the afternoon, she was standing on the sidewalk on 84th while visiting with a friend when she saw a sky blue four-door car driving up 84th toward Hillside. The car caught her attention because she had seen it drive by 10 to 15 minutes earlier, and when it went by again, it was going "kind of slow like it was looking for someone." The people inside were turning their heads from side to side, looking around. When it went by earlier, the car was traveling at 15 to 20 miles per hour, and she saw two people inside, in the driver's and front passenger's seats. They were both African-American males; the driver was thin and 17 to 18 years old and the passenger was "kind of thick and chubby," and about 18 years old. They were moving their heads from left to right then too, and the passenger window was open half-way. The driver was wearing a hoodie with the hood up. Nelson got a good look at the passenger, who she had seen before and who had a very round face.
Nelson also saw Ward, the shooting victim, that day, walking up 84th toward Hillside with two other young men. They passed her after the blue car drove by the first time. They were on the opposite side of the street from Nelson, walking fast and looking back over their shoulders. She did not know Ward's name at that time, but had seen him coming in and out of the nearby house of her daughter's neighbor. Nelson had confronted Ward because of a comment he had made to her niece. She told him, "we don't need this kind of confusion over here." Both of the other young men, like Ward, were African-American. One was about 16 years old, and she recognized him as living in the neighborhood; his nickname was "Man man." The other young man was 16 to 18 years old and she recognized him as someone who visited the neighborhood.
Seeing the three young men walking fast and looking back over their shoulders made Nelson feel worried because there had been a lot of "confusion" in the neighborhood recently. The building where Man man lived and where she had seen Ward visiting had been shot up some weeks earlier and everyone in the neighborhood was "panicking."
As the three young men walked up 84th toward Hillside, the blue car drove by for the second time, toward where the young men were walking. The same two individuals were in the car, but this time Nelson also saw a third African-American man, around 18 to 20 years old with dreadlocks, "laying back" in the back seat of the car. Nelson saw Man man try to open a security gate about half-way up the block, but the gate was locked. He then tried to open another gate, but it was also locked. The three men began walking at a very fast pace at that point, and soon arrived at the corner of 84th and Hillside. Nelson could see that they had no guns in their hands, though she could not see if they had guns in their pockets.
The car, which was behind the three young men, began driving faster as the men walked toward the corner of 84th and Hillside. Because of the speed of the car, Nelson and some other people ran to the corner, where they moved some children who were playing in the street out of the way. While she was standing at the corner, Nelson lost sight of the three men who were walking, but saw the blue car driving down Hillside toward 83rd. She also saw the person with dreadlocks in the backseat "roll out" of the car. She briefly lost sight of the car, but then heard the sound of screeching tires like the car "was rushing trying to make a turn."
Nelson next saw the car driving back on Hillside toward 84th, where she was standing. At that point, she could see only Ward on the street; his two companions "disburse [sic] and went a different direction, and Will was still, I guess, trying to make his move. But all I seen was him standing there." She then saw an arm extended out of the front passenger window of the blue car, pointing a handgun. She heard three shots, saw a body on the ground, and then had an anxiety attack that caused her to black out for 30 to 45 seconds. As she went into the blackout, she could see the passenger's face, with his arm still extended out of the window. She then heard three more shots, which sounded like they came from a distance because she was starting to black out. Those shots came 10 to 20 seconds after the first set of shots. When she came out of the blackout, Nelson saw Ward lying on the ground, with blood coming out of his neck and mouth.
At trial, Nelson identified appellant as the front seat passenger she saw leaning out of the car and pointing the gun. She had seen him once before, the day before the shooting, when he was a passenger in the same blue car, when it drove down 84th, "circling the block," with appellant and the driver looking around.
Nelson acknowledged that at appellant's preliminary hearing she had testified that she did not see a gun in appellant's hand and did not know who had fired the shots that killed Ward. She testified at trial that she had so-testified because she had been threatened and felt intimidated, and therefore did not want to be involved in the case. She had not realized that she would be expected to testify at the preliminary hearing, and was afraid for herself and her family. At trial she testified, "The truth is I seen the young man [appellant] hanging out the window with the gun."
Ward died of multiple gunshot wounds to the neck, shoulder, and buttock.
Oakland Police Officer Eric Barangan testified that he arrived at the scene shortly after the shooting, where he saw Ward lying on the ground with a gunshot wound to his neck. He did not see any weapons on or near Ward. When Barangan was dispatched to the scene, the dispatcher had reported that individuals were seen fleeing the scene and at least one of them was armed.
Christine Middleton, a crime scene technician with the Oakland Police Department, testified that bullets, bullet fragments, and spent casings were collected from the scene of the shooting. Some of the casings were .45-caliber and some were .357-caliber. The item of evidence found furthest away from the corner of Hillside and 84th was a .45-caliber casing found 138 feet away on Hillside. Officers searched the scene near Ward's body and found no guns.
K.R., a juvenile, testified that he had been friends with Ward since he was five years old. Ward's nickname was "Weez." In September 2013, K.R. was in custody when Officer Phong Tran and a sergeant came to interview him. Tran said they were investigating Ward's murder and thought K.R. knew something that might help them. At trial, K.R. denied giving any information to the officers who interviewed him. He claimed that an audio recording of his interview with Tran was not an accurate representation of what had been said. He also testified that he did not know appellant.
Officer Phong Tran, an Oakland Police Department homicide detective, testified that while he was investigating Ward's killing, he heard from a friend of Ward's that K.R. had said that, after the killing, he had a conversation with someone named Biggs, "and Biggs had bragged to him that he had shot and killed" Ward. Tran later learned that Biggs was appellant's nickname.
Tran interviewed K.R. in September 2013, in San Leandro Juvenile Hall. He surreptitiously recorded the interview using his cell phone. In the recording, which was played for the jury, K.R. admitted that Biggs (appellant) had called him after the shooting. K.R had been on a bus on his way to Ward's house when he got a call from a female who told him Biggs had shot Ward. K.R. went to the shooting scene, but it was blocked off. That was when he got a call from Biggs. Biggs said, "like, he's like trying to be funny, 'Oh you heard about Weez [Ward] dying?' " Biggs then said that he followed Ward "from the bus stop. He said he followed them from the bus stop. He saw Weez, nigger, KD, and Dree. Three people he was with. He saw them. He followed them from the bus stop then came the back way on 84. And then he started shooting." Biggs also told K.R. that he saw KD throw the gun over the gate and jump over the fence; he said, "Tell your nigger to stop hitting fences." Biggs did not say who he was with at the time of the shooting. K.R. said Biggs called to taunt him because "me and Weez hella cool."
Eddie Williams testified that he met appellant, who also went by the name of Biggs, when they were housed in the same jail pod at Santa Rita Jail in September 2013. Officer Tran contacted Williams at the jail to propose that he wear a recording device and talk to appellant, to try to get appellant to admit to his involvement in the shooting of Ward. In return, Tran said Williams' family would get some support and Ward's family would get closure. Williams, who had never before been an informant, felt "awful" and nervous about his physical safety at the prospect of wearing a wire, but ultimately agreed to do so because he wanted to help his family, which was "in distress." Williams had known Ward, who went by the nickname Weez, through mutual friends, but did not know he had been killed or that Tran's investigation involved him until Tran showed Williams a photograph of Ward during their meeting.
At the end of the meeting, Tran gave Williams a shirt with a recording device in the pocket, which Williams wore when he was subsequently placed in a holding cell with appellant. Eventually, he and appellant began to talk about the shooting. A recording of their conversation was played for the jury at trial; however, much of the recording was unintelligible. Williams then testified about the conversation, in which appellant told him he was cruising in a car with someone else in the area of the "80s" and he had a "P224," which Williams understood to mean a gun. Appellant said the other person in the car had a .357-caliber revolver. Appellant said he was sitting in the front passenger seat and saw Ward getting off a bus "in the 80s." Appellant said he tried shooting Ward but his gun jammed; the other person fired 11 shots. Appellant told Williams that as he and the other person were leaving the scene of the shooting, he saw Ward fall.
The recording does indicate that appellant said that "Weez" and his companions were "just coming through on the bus" and got off at "84 and Dowling," and that the animosity between him and Ward had started after Ward pistol whipped appellant's cousin on the bus. Appellant can also be heard saying, "Pt2445 (Unintelligible) 15 stick. (Unintelligible) Motherfucker jammed." When Williams asked, "Hit him for sure?" appellant replied, " (Unintelligible) For sure. A nickel for sure. . . ." Appellant also said, "He put hella shit on Facebook . . . ."
Williams did acknowledge that he had told Tran in their debriefing that appellant had said he fired 11 rounds from the car. He also later testified that he was not sure if appellant said he successfully fired his gun during the shooting.
Appellant also told Williams that he did not like Ward because he was part of a group who had "jumped his cousin" and injured him, and Ward had called appellant and bragged about it. Williams testified that he knew of a "gang of young kids" called "Hitter Squad" and Ward was involved with the group. Appellant had said he disliked Hitter Squad due to his cousin being jumped.
Officer Tran later testified that "Hitta Squad" was a group, i.e., "a bunch of young boys that get together . . . and call themselves something," that was associated with the area of 83rd/84th and Hillside in June 2013.
On cross-examination, Williams affirmed that he knew Ward had been in a gang and, when asked if he knew that Ward carried a gun, Williams replied, "Everyone does." Although he had never seen Ward with a gun, he had seen pictures of him with a gun on Facebook. Williams also testified that when he later told Tran about the conversation with appellant, he used the same words appellant had used. He believed appellant could have been exaggerating when he talked to him since "young people tend to always say things, but it doesn't necessarily mean it's true."
Williams had a number of felony convictions and, at the time of trial, was on probation for burglary and possession of a controlled substance while armed with a firearm. He also had a pending charge for possession of stolen property. Williams had received relocation assistance from the District Attorney's Office.
Officer Phong Tran testified that Williams had contacted the police department from the jail on September 11, 2013, because "[h]e was looking at a little bit of time, and he wanted to know what he could do to help himself out." Tran therefore went to the jail and met with Williams, who told Tran that he had some information about a murder. He "said there was a guy in the same pod named Biggs who was bragging about having killed some people." About a week later, Tran set Williams up with a wire and put him in a room with appellant, where he remained for about an hour.
After Williams came out of the room, Tran debriefed with him. Williams "was very excited," saying, "I got him." He said that appellant had "bragged or told him that he had shot him, shot him about 11 times, the gun jammed, shot him—that he followed him from the bus stop, that he used a .45 caliber gun, that his cousin also shot using a .357 caliber gun." Tran then listened to the tape and discovered that the small concrete room had caused the voices to echo, making it hard to make out much of what was said.
About a week later, Tran again met with Williams, to go over the tape line by line, and have Williams "translate" what was said on it. He then had Williams summarize the conversation for him. Williams said "that he coaxed [appellant] by saying that he didn't like Hitta Squad guys either, and [appellant] had told him he didn't like Weez or William Ward because William Ward had pistol whipped a cousin of his. Um, he said that [appellant] had seen Weez . . . get off the bus, and they followed him, and on the area of 83rd and Hillside that's where they got him. He clutched or shot 11 times. He believed he shot him 5 times, that his cousin also shot. He said that they—that his cousin drove, and he shot from the [passenger seat of the] car." Appellant said he continued to shoot until the gun jammed.
Williams repeatedly told Tran he was uneasy about testifying. Tran provided information to the district attorney's office in order to help Williams with his pending case. In addition, after Williams testified at the preliminary hearing, he was being threatened and shot at on the streets. Tran therefore helped to provide him with a small amount of money so that he could relocate, as well as some food money.
Tran also testified that six .45-caliber casings found at the scene could have been fired from the same gun. One .357 casing was also found. He also confirmed that Ward was affiliated with the Hitta Squad gang. He found photographs of Ward holding a gun.
DISCUSSION
Appellant contends the trial court improperly refused to instruct on self-defense and voluntary manslaughter under a theory of imperfect self-defense.
I. Trial Court Background
Defense counsel requested that the court instruct the jury on self-defense (CALCRIM No. 505) and voluntary manslaughter under a theory of imperfect self-defense (CALCRIM No. 571).
Following argument by counsel, the trial court denied both instructional requests. The court stated that "both imperfect self-defense and self-defense, each of them requires that the defendant must possess actual fear of imminent harm and that the defendant actually possessed and acted upon that required state of mind. Thus the issue before the court turns on whether the evidence in this case is sufficient to establish that the defendant possessed actual fear of imminent harm and that he acted upon this state of mind." After discussing the evidence presented at trial, the court found that "all you have is a potential motive for revenge, based upon the defendant's cousin being pistol whipped by this victim. [¶] . . . [¶] I am concluding that there is no substantial evidence to provide any of these instructions based upon my own review of the entire record, and I find that the record does not support the premise that the defendant was in actual fear or acted upon that fear when he shot the [victim]."
II. Legal Analysis
"A killing committed in so-called perfect self-defense is neither murder nor manslaughter, but instead is justifiable homicide. [Citations.] 'For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.]' [Citation.] The danger must be imminent; mere fear that it will become imminent is not enough. [Citation.]
"Manslaughter is an unlawful killing without malice. [Citation.] The element of malice is negated, and a killing reduced from murder to voluntary manslaughter, when a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury. [Citations.]" (People v. Lopez (2011) 199 Cal.App.4th 1297, 1305, fn. omitted (Lopez); see CALCRIM Nos. 505 & 571.)
"The relevant law is settled. For either perfect or imperfect self-defense, the defendant's fear must be of imminent harm. [Citation.] 'Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury.' [Citation.]" (Lopez, supra, 199 Cal.App.4th at pp. 1305-1306.)
The trial court must instruct the jury on any affirmative defense, including self-defense, "for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant's theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.' [Citations.]" (People v. Salas (2006) 37 Cal.4th 967, 982-983.)
Similarly, a trial court must instruct on a lesser included offense such as imperfect self-defense " 'when the evidence raises a question as to whether all the elements of the charged offense are present. . . . [¶] Nevertheless, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." [Citations.] Such instructions are required only where there is "substantial evidence" from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense. [Citations.] 'Substantial evidence,' in this context, 'is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' [Citation.]" (People v. Williams (2015) 61 Cal.4th 1244, 1263.)
On appeal, we review de novo the trial court's decision not to give a requested instruction. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584.)
In the present case, appellant asserts there is substantial evidence in the record showing that he believed—whether reasonably or unreasonably—that he needed to defend himself from imminent death or great bodily injury when he shot Ward. The evidence he relies on to show he had an actual fear of imminent harm includes Williams' testimony that Ward was in a gang, that Ward carried a gun because "[e]veryone does," and that he had seen photos of Ward with a gun. According to appellant, it is therefore "reasonable to infer that Ward was armed at the time of the incident in this case" and that Ward and his companions "could be expected to behave aggressively and violently at the appearance of someone like [appellant], who was not a member of their gang."
Appellant also cites Nelson's testimony that people in the neighborhood were concerned about recent shootings, and seeing the blue car drive by twice made her nervous. Nelson also testified that she had confronted Ward because he had been causing "confusion" in the neighborhood. Appellant asserts that from this evidence "it is reasonable to infer that others who were familiar with the recent history of the neighborhood, like appellant, would also be nervous and on edge, and wary of indications that suggested shooting might happen."
Appellant further points to Nelson's testimony that she heard three shots before she saw appellant extending his arm out from the passenger window of the car with a gun in his hand, and that the second set of shots sounded different to her from the first. In addition, he notes that the casings found at the scene were of two different calibers and were distributed over a long distance. All of this evidence, according to appellant, "supported a reasonable inference that either William Ward or one of his companions had fired shots at the car in which [appellant] was riding."
In fact, Nelson's testimony as a whole suggests that she saw an arm extended out of the front passenger window of the car, holding a gun, before she heard the first set of shots. She then saw the passenger's face, as well as his extended arm, before hearing the second set of shots.
We disagree, and conclude there simply was not substantial evidence, direct or circumstantial, from which the jury could infer that appellant was in fear of imminent harm when he shot Ward. (See Lopez, supra, 199 Cal.App.4th at pp. 1305-1306.)
The evidence presented at trial did not suggest that appellant killed Ward because he was afraid that Ward was about to shoot him. Instead, the evidence overwhelmingly showed that appellant was angry at Ward for pistol whipping his cousin; that he had been in the blue car the day before in the same location, looking around while the car slowly circled the block; and that, before the shooting, he had again been in the car as it slowly circled the block. That block was known to be the area associated with the Hitta Squad gang, of which Ward was a member and which appellant told Williams he did not like. Appellant also admitted to following Ward from the bus stop that afternoon just before the shooting. This evidence thus showed that appellant pursued and targeted Ward—as appellant told both Williams and K.R.—shooting at him repeatedly from the car in revenge for his beating of appellant's cousin, before driving away. He then called Ward's friend, K.R., to taunt him about the killing.
In addition, Nelson did not see a gun in Ward's hand and he and the other young men had been walking fast, nervously looking over their shoulders, before the shooting. Although one of Ward's companions may have had a gun, the evidence showed—indeed, appellant told K.R.—that the young man tossed it over a gate before the shooting occurred. Moreover, Ward was alone when the shots were fired, there was no evidence that he behaved aggressively toward appellant, and no gun was found on or near his body after the shooting.
Although appellant cites defense counsel's closing argument in which he argued that the three young men on foot started running in the direction of the car, following it onto Hillside, Nelson actually testified that the car was following the three men as they rapidly walked away and turned the corner from 84th onto Hillside. The car then passed the young men and made a quick U-turn before driving back down Hillside toward 84th, where the shooting took place.
There was also evidence that the neighborhood had been the site of prior shootings and that appellant said he knew Ward was part of a gang and apparently had seen photos of him holding a gun on Facebook. This evidence, however, does not support a reasonable inference that appellant, who had sought out Ward and pursued him in a car, shot him as he stood alone on the street with no visible weapon because appellant felt he was in imminent danger of death or great bodily injury. (Lopez, supra, 199 Cal.App.4th at p. 1305 [mere fear that danger will become imminent is not enough].)
Moreover, Nelson testified at trial that she had lied at the preliminary hearing when she testified that she did not see a gun in appellant's hand and did not know who had fired the shots that killed Ward. She lied because she had been threatened and was afraid for her safety. At trial, she testified that she had in fact seen an arm extended out of the front passenger window at the time she heard the first set of gunshots. She then saw appellant's face, with his arm still extended out of the car window, during the second sets of gunshots. She testified that the second set of shots sounded like they came from a distance not because they were from a different location, but because she was starting to black out, which she explained caused sound to distort.
Finally, regarding the evidence that both .357-caliber and .45-caliber casings were found at the scene, Williams told Officer Tran that appellant said "he used a .45 caliber gun [and] that his cousin also shot using a .357 caliber gun." Moreover, as to the casings found 138 feet away from the corner of 84th and Hillside, no evidence was presented that bullets could not travel that distance, and absolutely no evidence was presented suggesting that Ward or anyone else shot at appellant from elsewhere on Hillside.
In conclusion, all of the evidence cited by appellant was either contrary to fact, speculative, or so slight that it was insufficient to support a reasonable inference that appellant shot at Ward because he was in fear of imminent harm. (Lopez, supra, 199 Cal.App.4th at pp. 1305-1306; see also People v. Williams, supra, 61 Cal.4th at p. 1263 [" ' "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense" ' "]; People v. Salas, supra, 37 Cal.4th at pp. 982-983 [substantial evidence warranting a self-defense instruction is "evidence sufficient for a reasonable jury to find in favor of the defendant"].) Accordingly, the court did not err when it refused to instruct the jury on either self-defense or imperfect self-defense. (See People v. Manriquez, supra, 37 Cal.4th at p. 584.)
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.