People v. Brown

1

THE PEOPLE, Plaintiff and Respondent, v. TERRANCE LAVAR BROWN, Defendant and Appellant.

E080930

California Court of Appeals, Fourth District, Second Division

July 1, 2024

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FVI22003132, Shannon Faherty, Judge.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman, and Randall D Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CODRINGTON, J.

I. INTRODUCTION

A jury convicted defendant and appellant Terrance Lavar Brown of two counts of attempted murder (Pen. Code, §§ 664, 187 subd. (a); counts 1 &2),^[1] one count of shooting at an occupied motor vehicle (§ 246; count 3), and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4). The jury also found, among other things, that the attempted murders were willful, deliberate, and premeditated (the WDP findings) (§ 664, subd. (a)). The trial court sentenced defendant to 78 years to life, which included an indeterminate sentence of 14 years to life for each of the attempted murder counts under section 664, subdivision (a).

Defendant first argues there was insufficient evidence to support count 3 (shooting at an occupied vehicle) because there was insufficient evidence that the victims were in the vehicle when he shot at them. He next argues that the jury's WDP findings must be reversed, and he must be resentenced accordingly because the prosecution did not allege that the offenses were willful, deliberate, and premeditated in the information. Defendant also contends those findings must be reversed due to prosecutorial misconduct and cumulative error. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Thomaso S. was picked up in a black Dodge Charger by Jerry O. and his brother, Traveon V., and they drove to visit Traveon's girlfriend at her apartment. When they parked, Traveon got out and walked away while Thomaso and Jerry waited in the car. A few minutes later, defendant walked in front of the car, said something like, "F-k that Crip ass N-ga," pulled out a gun, and started shooting, either at the ground, the car, or both.^[2] Thomaso and Jerry got out of the car and started running to a nearby store and, as they fled, defendant shot Thomaso in the foot. When they got inside the store, they told the clerk to call the police.

A nearby officer heard the shots and responded to the scene. The officer saw Jerry running away from the store and told him to stop. Jerry ran to the officer's car while repeating, "He's going to shoot me" or "He's trying to shoot me." Jerry described defendant as wearing a black hat with a "P" on it. Not long after, the officer encountered defendant nearby wearing a black hat with a "P" on it and arrested him.

Defendant was charged by felony complaint with four offenses. Counts 1 and 2 charged defendant with attempted murder, count 3 charged him with shooting at an occupied motor vehicle, and count 4 charged him with being a felon in possession of a handgun. The complaint alleged under section 186.22 that defendant committed all four offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. As to counts 1, 2, and 3, the complaint alleged under section 12022.53, subdivision (d) that defendant personally and intentionally discharged a firearm, causing great bodily injury. Counts 1 and 2 also alleged that the offenses were "punishable in the state prison for life and cause the sentencing to be pursuant to section 186.22(b)(5)."

The People then filed an information. In the summary on the first page, the information identified the offenses, any corresponding allegations, and potential sentences. The attempted murder counts (counts 1 &2) stated that the charges, brought under "PC664/187(a)," also had allegations of "186.22(b)(5)," "12022.53(d)," and 1170.12(a)-(d)." It then lists the corresponding sentences, including "+25Y-Life," for the section 12022.53, subdivision (d) allegation." The rest of the information then repeats the complaint's allegations. Like the complaint, the information did not allege that the attempted murders were willful, deliberate, and premeditated, although it alleged counts 1 and 2 "are punishable in the state prison for life and cause the sentencing to be pursuant to section 186.22(b)(5)."

A jury convicted defendant of two counts of willful, deliberate, and premeditated attempted murder (§§ 664, subd. (a), 187; counts 1 &2), one count of shooting at an occupied motor vehicle (§ 246; count 3), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4). } In doing so, the jury found true a special allegation finding on a separate verdict form that the attempted murder was willful, deliberate, and premeditated.

The jury also found true with respect to the attempted murders that defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (a), (b) &(d)). In a bifurcated trial, the court found true that defendant had a prior "strike" conviction.

The trial court sentenced defendant to an aggregate term of 78 years to life, consisting of a term of 14 years to life (seven years to life, doubled for the strike prior) for count one, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d), enhancement on that count, plus a consecutive same term for count 2. The court stayed the terms for counts 3 and 4 under section 654.

III. DISCUSSION

A. Count 3

Defendant argues substantial evidence does not support his conviction for shooting at an occupied vehicle (count 3) because there was insufficient evidence that he shot at the vehicle Thomaso and Jerry were in. We disagree.

"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

"'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" (People v. Thomas (1992) 2 Cal.4th 489, 514.) We may reverse a conviction for a lack of substantial evidence only if it appears "'"that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."'" (People v. Cravens (2012) 53 Cal.4th 500, 508.)

Defendant emphasizes that the evidence at trial of where defendant shot before Thomaso and Jerry got out of the car is conflicting. When interviewed by police shortly after the shooting, Thomaso said defendant "said like f-k - f-k that Crip-ass n-ga. And that's when he pulled the gun out and - and looked at the car and then started shooting at it." Later during the interview, Thomaso said he and Jerry were sitting in the car when defendant walked up to the car, looked at it, said something like "F that Crip," and "start[ed] shooting at the f-kin'-boom, boom, boom, boom. And then he started looking up. And then we got out of the car and started running."

At trial, however, Thomaso-who reluctantly testified only because of a court order-first testified that defendant "shot at the floor before he started shooting at the car," but then later denied that defendant shot at the car and instead said that defendant "shot at the floor . . . [n]ot at the car." Then, when Thomaso was asked, "And then he fires at the car while you and Jerry are in the car?" Thomaso answered, "Fires at the floor."

The trial court correctly instructed the jury that it could believe some or all of a witness's testimony. (See CALCRIM No. 226.) The jury was entitled to find, and could reasonably find, that Thomaso's interview statements that defendant shot at the car were accurate and truthful while finding that his contrary testimony was not credible, particularly given that he did not want to testify and only did so under court order. And given that Thomaso unambiguously told investigating officers that defendant shot at the car and the car's windshield was twice struck by a bullet, the jury could reasonably find that defendant did, in fact, shoot at the car. As a result, we reject defendant's argument that his conviction on count 3 lacks evidentiary support.

B. The WDP Findings

Defendant argues the WDP findings and his sentence on counts 1 and 2 (attempted murder) must be reversed because the information did not allege...