People v. Bhushan

THE PEOPLE, Plaintiff and Respondent, v. VIJAY BHUSHAN et al. Defendant and Appellant.

A145855

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

November 30, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. C175094A, C175094B, C175094C)

On the afternoon of December 30, 2012, 15-year-old Jubrille Jordan was killed by a bullet to her head as she was standing on the sidewalk near 66th and Lion in the "69th Avenue Village" housing complex in Oakland, waiting with her sister, two friends, and a baby while another friend stopped to talk with two male friends. One of the young men, Wyone Bordley (known as "Mo-Mo"), was shot in the foot. Twenty spent casings were found at the scene of the shooting, fired from two different guns. Eight of the casings, found in a group on the sidewalk, were fired from a Smith and Wesson automatic weapon; the other 12, found in a separate group on the street, came from a Glock firearm.

Juvonna Jordan, Jubrille's sister, testified that when the shooting began, she glanced back and saw a young Black man aiming a gun in their direction. He had "big lips" and was wearing a black hoodie and red sweatpants. She was not able to identify the shooter in the photo lineup the police showed her, which included a photograph of Jones. At Thompson's trial, she testified that the shooter's lips did not look like Thompson's.¹

Bordley was the intended target of the shooting. In July 2012, 15-year-old Hadari Askari had been shot to death in the Village. Marquesha Ruth, Askari's cousin, explained that although no one had been charged with his murder, her family and friends had "information" that Bordley was the killer, and they wanted to see Bordley dead. There was an understanding that the young men would "take care of it." These young men included Thompson, whom Ruth had known for at least 10 years; Bhushan, who was a cousin of Ruth's son Terrence Thompkins; Jones, a close friend of Thompkins's; and Sammie Standberry, Ruth's brother.

On December 30, 2012, Ruth saw Bordley in the Village. She called Standberry and Bhushan and told them where she had seen Bordley, then drove to the apartment she shared with Standberry.² As they stood talking outside, Bhushan drove up with Thompson in the front passenger seat and Jones in the back. It was later determined that the car they were driving belonged to Bhushan's father. Ruth and Standberry went to the passenger side of the car and had a brief conversation with them. Appellants said they were "getting ready to go over to the 6-9 Village and take care of Bordley," which Ruth understood to mean they were going to kill Bordley. Specifically, Bhushan said, "Man, we about to go over there and get on this nigga . . ." and the others in the car nodded.

The group in the car drove away and about half an hour to an hour later, Ruth heard there had been a shooting in the Village in which an innocent girl was killed, and hoped they did not have anything to do with this. She was disappointed to hear that Bordley had been shot in the leg. The next morning, Ruth heard Thompson telling Standberry that he was mad because "when he got over there" Bhushan was scared and "froze up," so Thompson "took matters into his own hands." In a recorded phone call between Ruth, Bhushan and Thompkins, who was in jail at the time, Ruth told Thompkins, with reference to the shooting, that "[t]hey said he was looking at the nigga and froze up" and that "KiKi"³ and Jones "got back his out and shit got ugly man." Bhushan said he would write and tell Thompkins about it. A week or two later, Ruth heard Bhushan talking with Standberry, again saying that he did not "freeze up," he "just felt that it wasn't a good time."

On December 31, 2012, San Francisco police officers who detained Standberry and Thompson for having an open container of alcohol in public, found a loaded Smith and Wesson in Thompson's waistband. The bullet recovered from Jubrille Jordan's body was determined to have been fired from this weapon. The eight shell casings found on the sidewalk at the scene of the shooting came from this weapon. A box of ammunition matching that found at the scene of the shooting was found in a search of Thompson's home.

Bhushan was arrested on January 9, 2014. His bedroom was searched pursuant to a warrant and a loaded Glock nine-millimeter handgun was found in a backpack. The 12 casings found on the street at the scene of the shooting came from this weapon.

Video clips from cameras in the Village showed two men walking into the garage area of the complex at 3:27 p.m.: One, slightly taller, was wearing red pants, a black hoodie with a white shirt underneath and white shoes, and the other was wearing a gray hoodie, blue jeans and blue and white shoes. The two then approached a silver vehicle parked on 66th Avenue; a person in a white shirt got out of the driver seat and moved intothe back seat, the person in the gray hoodie got into the driver's seat and the person in red pants got into the front passenger seat; and the car pulled out and drove toward Lion. In another clip, a person wearing red pants and a black hoodie walked along the sidewalk with a person wearing a gray hoodie with a white shirt underneath and dark shoes; the two split up, the one in the gray hoodie moving into the street and the one in red pants remaining on the sidewalk, then each fired several rounds, and they ran away together. Another clip showed Bordley running at 3:31 p.m.

Shown the video footage of the men walking in the Village, but not of the actual shooting, Ruth thought the man in the black hoodie and red pants was Thompson, because he always wears a black hoodie, and thought the one in the gray hoodie was Bhushan, based on his walk and stature.

Bhushan was "about 5'11" and weighed 180 pounds"; Jones was "about 6'1" and close to 200 pounds" and Thompson was "about 5'7" and 150 to 160 pounds."

Oakland Police Sergeant Bradley Baker, the lead investigator on the case, testified that on one of the later clips, the person in the gray hoodie appeared to be smaller in stature than when seen on earlier clips, and was wearing a white shirt that did not appear earlier, as well as different colored shoes. Baker believed that the shooter in the gray hoodie was not the same person as the one in a gray hoodie seen walking through the Village; instead, based on the white shirt under the hoodie, shoe color and shorter height, he thought the shooter was more consistent with the person seen in the video getting out of the driver's seat and moving to the back seat. At Thompson's trial, Baker testified that he did not believe Thompson was the person in red pants; he believed Thompson was the shooter in the gray hoodie, which Baker believed had been given to Thompson by the person initially seen in it.

Cell phone records indicated that all three appellants' phones had been in the area of Thompson's and Standberry's homes earlier in the day, then went to an area near the Village, then back to the area of the mens' homes.

On the evening of December 30, 2012, Thompson texted Bhushan, "Y'all seen the news? One nigga got hit and a bitch died. Born to be a real nigga." Bhushan textedJones, "You my son now nigga. Welcome to redrum." Jones replied, "It's official . . . which one." Bhushan texted, "a bitch dude just got hit up watch the 10 news" and then "delete these messages too." Baker explained that "redrum" was a reference to homicide—murder spelled backwards.

Jail phone calls recorded after Bhushan's arrest in January 2014, appeared to refer to the gun found in his bedroom being tied to the shooting.⁴ A letter from Jones found in a search of Thompkins's jail cell, postmarked December 27, 2012, was signed with what Baker testified were references to gang shootings and homicide victims Terrence Thompkins and Hadari Askari.⁵ Baker testified that a letter from Thompkins to Bhushan postmarked January 18, 2013, saying "you never told me what happened in the 9 with the little nigga," was referring to the shooting of Jordan and Bordley, "the 9" a reference to the location.

A letter from Bhushan to Thompkins, sent in March 2013, explained Bhushan's perspective on the shooting. Bhushan denied he ever "froze, went out or stood down" and said that when they "seen them with some bitches and little kids and babies" he "was like, we catch him another time," but Thompson "was like fuck that. Give me that thang and your hoodie. So I did." Bhushan continued that they "didn't get the job done" and"[t]hat shit didn't post to or even shouldn't took place. It was already bad, but he forced and pushed the issue and look how shit turned out. But that's what happened. I didn't freeze up. Shit just wasn't right."

In a police interview in January 2014, Thompson said he was in the car with Bhushan and Jones but did not know what their intentions were in going to the Village. He said he did not get out of the car at the Village; he sat in the car "going through" his phone. He had no explanation for why he moved into the driver seat when the others were out of the car. When the others returned, Thompson drove, but he did not remember pulling over again.

Appellants were each charged with one count of murder (Pen. Code, § 187, subd. (a))⁶ and one count of premeditated attempted murder (§§ 187, subd. (a), 664, subd. (a)). The amended information alleged that Bhushan was armed with a firearm (§ 12022, subd. (a)(1)) and that Jones and Thompson each personally and intentionally discharged a firearm, causing great bodily injury and death (§§ 12022.7, subd. (a), 12022.53, subd. (b)-(d), (g), 12022.5, subd. (a)).⁷ Jones was...