People v. Arce

47 Cal.App.5th 700

261 Cal.Rptr.3d 180

The PEOPLE, Plaintiff and Respondent,

v.David ARCE, Defendant and Appellant.

A153460

Court of Appeal, First District, Division 1, California.

Filed April 9, 2020

Certified for Partial Publication.^*

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant

Xavier Becerra, Attorney General, Jeffrey M. Laurence, Assistant Attorney General, René A Chacón and David M. Baskind, Deputy Attorneys General, for Plaintiff and Respondent

Sanchez, J. David Arce appeals the judgment entered following his convictions by jury trial for first degree murder with the criminal street gang special circumstance and possession of a firearm by a convicted felon. He was sentenced to state prison for a term of life without the possibility of parole. In the published part of this opinion, we consider and reject appellant’s claim that Penal Code ¹ section 190.2, subdivision (a)(22), a criminal street gang special circumstance statute, is unconstitutionally vague.

In the nonpublished portion of this opinion, we address appellant’s remaining claims that the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter under a theory of imperfect self-defense, that the court improperly instructed the jury on the consideration of accomplice testimony, and that reversal is required based on cumulative error. He also challenges his sentencing on the firearm possession count. The People concede the abstract of judgment must be corrected to reflect the imposition of a concurrent term for the firearm conviction. We remand the matter to the trial court to make this correction. In all other respects, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In March 2015, the People filed an indictment against appellant and Thomas William Burk, charging them with first degree murder of Earl Hamilton (§ 187, subd. (a); count 1). The indictment included a special circumstance allegation that appellant committed the murder while actively participating in a criminal street gang ( § 190.2, subd. (a)(22) ). Appellant was also charged with being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 2). The indictment further alleged the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that appellant personally discharged a firearm causing great bodily injury (§ 12022.53). Appellant’s prior convictions were also alleged, including a 2011 conviction for carrying a concealed firearm (former § 12025, subd. (a)(1)) and a 2012 conviction for discharging a firearm with gross negligence (§ 246.3, subd. (a)). The indictment also included prior strike and prison term allegations. The People did not seek the death penalty.

Jury trial commenced in August 2017. Viewed in accordance with the usual rule of appellate review ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103 ), the evidence established the following.

A. The Prosecution’s Evidence

i. The Murder of Earl Hamilton at the Green Lantern

Appellant, Thomas Burk, and Eduardo Bonilla were members of the Varrio San Pablo (VSP) gang, a subset of the Norteño street gang. Bonilla met appellant in 2004, and through appellant, other VSP gang members. Over a three-year period, Bonilla "put in work" to become a VSP gang member himself by committing drug sales, assaults, and tagging.

Bonilla and appellant became estranged following a 2012 incident in San Francisco in which appellant was injured in a fight with Sureño gang members outside a bar. Following the altercation, appellant retrieved a gun from Bonilla’s car and fired several shots in the direction of the 16th Street BART station. They were arrested and Bonilla told police that he and appellant were Norteños. Because Bonilla was released from custody while appellant was convicted of discharging a firearm, appellant believed Bonilla had cooperated with police. After appellant was released from prison, he spoke to Bonilla about their rift. Appellant told Bonilla that since their families were close, he would not harm Bonilla but they were no longer friends. Their conversation occurred four months before the murder of Earl Hamilton.

On the evening of February 1, 2014, appellant and Burk were having drinks at the Green Lantern, a bar in Pinole that attracted a diverse mix of customers. Appellant’s sister had hosted a bachelorette party at appellant’s home and when the party ended, several of the guests went to the Green Lantern. Bonilla arrived later that night with a mutual friend, Monica Moreno. Members of various other gangs were at the bar as well, including North Richmond gang members. The VSP gang did not have any ongoing disputes with that gang.

Bonilla, Moreno, Burk, and appellant went outside to Bonilla’s car to drink some alcohol. They noticed two North Richmond gang members who had previously been in a conflict with Bonilla’s sister’s boyfriend. After these gang members entered the bar, appellant’s demeanor changed and he called someone on his cell phone. He then told Burk that he had to leave but would return. Appellant was gone for about two hours and then returned to the bar.

Appellant had placed a call with his friend Roland Vides around 9:30 or 10:00 p.m. He told Vides he was at the Green Lantern and asked to borrow a gun. According to Vides, "He just said he was going to be at that bar. So I gave it to him to have for defense." Vides placed the gun in an unlocked car for appellant. He had loaned the gun to appellant before. Appellant drove five miles and retrieved a loaded .40 caliber semiautomatic Glock 23 pistol from Vides’s vehicle. By the time appellant returned to the Green Lantern, more people had arrived from appellant’s house party as well as about 10 or 11 more people from North Richmond, including a white man named Scott (Scotty) Haskell, a member of the MTM Norteños gang whom Bonilla had known for several years.

Scotty was with a group of African-American men who were playing pool. Some of the men were from the North Richmond, Easter Hill, and Team Hello gangs. Among them was the victim, Earl (Juju) Hamilton, who walked with a limp and had a deformed arm on the same side as his bad leg. At about 11:30 p.m., there was a minor argument between the Hispanic and African-American groups. The bouncer warned them that he would close the bar and make everyone leave if there was any more trouble. Order was restored for the time being.

Monica Moreno complained to Bonilla that Scotty had, in a previous incident, kicked her sister in the face during a fight between Scotty’s sister and Moreno’s sister. Bonilla declined to confront Scotty and told Moreno to calm down. Instead, Moreno approached Burk and told him about the incident. Burk then confronted Scotty. Bonilla and appellant went to Burk’s side as they loudly exchanged fighting words with Scotty and the North Richmond gang members. Scotty shouted "fuck San Pablo" and "North Richmond" while Bonilla and Burk responded by shouting "fuck Richmond" and "San Pablo." One witness, Britney Perez, testified that she saw Bonilla and others arguing with a white man and a couple of black men. The white man seemed to be the instigator and was very hostile. The bar bouncer intervened and told everyone to leave. Bonilla, Burk, and appellant went out through the back door by the pool tables. Three men, including Hamilton, followed.

Hamilton verbally confronted Bonilla outside. Bonilla told him the fight had nothing to do with him. Hamilton approached Bonilla in an aggressive manner and Bonilla shoved him backwards. As Bonilla squared up to fight, he heard the cocking of a gun and saw appellant holding a black handgun pointed at Hamilton’s chest. Appellant said to Hamilton, "What’s that shit you were talking?" Hamilton fell backward into the rear bumper of a parked SUV and said, "Don’t shoot." As Bonilla ran to his car he heard three shots. He looked back and saw Hamilton lying down and not moving. Appellant and Burk began to walk away from Hamilton. Appellant then returned to where Hamilton was slumped, placed the gun to his head, and fired an additional round.²

Hamilton suffered two gunshot wounds, one to his head and one to his chest. The chest shot penetrated down the left side of his torso and into his abdomen. Both shots were fatal. No weapons were found on Hamilton’s body. At no point did Bonilla see Hamilton with a gun. A bar patron who was an EMT trainee called 911 and waited for an ambulance. Hamilton died before paramedics and police could arrive.

Appellant and Burk fled in appellant’s car. Bonilla left with Moreno. As Bonilla drove, he noticed appellant was following him. They both pulled into a parking lot. Appellant approached Bonilla and asked him if he could be trusted. Bonilla said yes, worried that if he said anything else he would have been shot. Several of the people at the bar, including appellant, met later at a park. One of appellant’s sisters asked him, "What the fuck did you do? Why did you shoot him?" Appellant replied, "He ran up on the wrong motherfucker."

Appellant returned the gun to Vides the next morning. He told Vides he had shot someone in the stomach and the head. He explained there had been a confrontation between Burk and a guy named Scotty over a girl named Monica. When Vides asked why he had to use the gun, appellant "just said he had to use it." Appellant referenced the 2012 San Francisco incident when Sureños cut his neck with a bottle, and said "he wasn’t going to let somebody hurt him again." Appellant did not say that the person he shot had a weapon.

Appellant asked Vides to get rid of the Glock 23. Vides agreed because he was afraid of appellant. Vides disassembled the gun and drove to Sacramento that morning to the home of a friend, Carlos Shaneyfelt. Vides later identified his gun at trial.³ Shaneyfelt testified that Vides came to see him in Sacramento in February of 2014. Vides was nervous and...