People v. Daniel

1

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JAKWON DANIEL, Defendant and Appellant.

F084961

California Court of Appeals, Fifth District

January 22, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County. No BF184018A John R. Brownlee, Judge.

David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DE SANTOS, J.

Appellant Anthony Jakwon Daniel was convicted following a jury trial of first degree murder (Pen. Code,^[1] § 187, subd. (a); count 1) second degree robbery (§ 212.5 subd. (c); count 2); shooting at an occupied vehicle (§ 246; count 3); and assault with a semiautomatic firearm (§ 245, subd. (b); count 4). As to counts 1, 2, and 3 the jury found true that appellant personally discharged a firearm that proximately caused a death (§ 12022.53, subd. (d)), and, as to count 4, that appellant personally used a firearm (§ 12022.5). The jury also found true several aggravating circumstances as to each count: (1) the crime involved great violence (Cal. Rules of Court, rule 4.421(a)(1)^[2]); (2) the victim was particularly vulnerable (rule 4.421(a)(3)); and (3) the crime involved planning and sophistication (rule 4.421(a)(8)).

Appellant was sentenced to an indeterminate prison term of 25 years to life plus 25 years to life for the firearm enhancement as to count 1; the upper term of five years plus 25 years to life as to count 2; the upper term of seven years plus 25 years to life for the firearm enhancement as to count 3; and the upper term of nine years plus 10 years for the firearm enhancement as to count 4. Punishment was stayed pursuant to section 654 as to counts 2 and 3, for a total prison term of 50 years to life plus 19 years.

On appeal, appellant, who was 19 years old at the time he committed the offenses, contends the court erred by excluding expert testimony on adolescent brain development. Appellant further contends his Sixth Amendment right to a jury trial was violated by the court's consideration of two aggravating circumstances not presented to nor found true by the jury-that he was on juvenile probation at the time of the offenses and that his performance on juvenile probation was unsatisfactory-in imposing the upper terms of imprisonment. Finally, appellant contends the sentencing minute order and abstract of judgment contain an error that conflicts with the oral pronouncement of judgment regarding the amount of the restitution fine imposed pursuant to section 1202.4.

We remand the matter for resentencing with directions to the trial court to only consider proper factors in deciding whether to impose the upper term of imprisonment in compliance with section 1170, subdivision (b). We decline to reduce appellant's restitution fine because the record indicates the minute order and abstract of judgment reflect the correct amount. In all other respects, the judgment is affirmed.

FACTS

Prosecution Case

On the morning of December 31, 2020, Emmanuel Arechiga and his girlfriend, Alyssa Mazza, woke up, smoked some marijuana in Arechiga's car, and went to the bank to withdraw $500 from Arechiga's bank account. Arechiga had been planning to buy a gun, and that morning he told Mazza they were going to meet someone to buy the gun after withdrawing the money. Arechiga had received directions from someone via Snapchat as to where the transaction would take place.

When Arechiga and Mazza got near the area where they were supposed to meet the seller, someone standing in the street directed them to an alleyway. Mazza testified the person was white skinny, had a buzzcut, and was wearing a mask. Further evidence presented at trial supported that this person was 17-year-old Vincent Hines. After Arechiga pulled into the alleyway, Hines stood next to the driver's side window, and he and Arechiga started arguing in a slightly aggressive manner, with Hines saying, "show me the money," and Arechiga saying, "show me the gun." As soon as Hines started talking, another person appeared to Hines' left towards the front of the vehicle, who, according to Mazza, was Black and a little taller than Hines, and was wearing a black hoodie and dark blue jeans. Further evidence presented at trial supported this person was appellant.

Mazza said both Hines and appellant were holding small silver guns. At one point, Hines demanded Arechiga's phone, wallet, and keys. Arechiga put his hands up and dropped everything, at which time the car jolted forward about five feet. When the car moved forward, Arechiga was shot through the back driver side window, and one of the perpetrators grabbed Arechiga's wallet off his lap. After Arechiga was shot, Mazza managed to navigate the car away from the scene and called 911. Mazza eventually parked at a nearby park. Arechiga died at the scene from the bullet wound.

At trial, Mazza testified she did not see who fired the shot. When the prosecutor asked Mazza if she remembered telling police that the shooter was the Black perpetrator, she responded, "Yes." When the prosecutor again asked her if she remembered at the time of trial who fired the shot, she replied, "Yes and no." She explained that she saw the Black perpetrator "turn as soon as the car had jolted, and I'm pretty sure I had seen him pull the trigger. But I'm not 100 percent sure exactly." After reviewing a transcript of her statement to police, she testified her memory was refreshed and that the "black male" was the shooter. The prosecution admitted Mazza's 911 call, where she identified the Black perpetrator as the shooter.

Police searched appellant's home and seized a phone and black sweatshirt from appellant's room, and a shotgun from the master bedroom.

Appellant was arrested and spoke to the police. He initially denied being involved with the shooting, but eventually explained he ran into Hines outside of his residence the morning of the shooting. Hines told appellant he was "tryin' to get some money early in the mornin' ... and that he needed [appellant] like by him or whatever-make sure nothin' happened." Appellant told Hines he needed to first meet with his friend Levi Lopez, but while they were waiting, Arechiga and Mazza pulled up, and Hines "walked up to the Honda and like he just-he robbed, you-you know had the guy at gun point." Appellant said that after Hines robbed Arechiga, Hines "backed up a little bit, like, kind of a far distance and he pulled the trigger." Appellant was shocked. He did not know what to do, so he just ran. He told Hines to get away from his house, and then saw Lopez coming to his house.

When police asked appellant if he had a gun during the incident, he said he had a fake gun that he threw away in the dumpster behind his house. Appellant did not get any of the money Hines took. Appellant said he stole the shotgun found in his house from a homeless person though earlier in his interview appellant had stated he had never touched a gun.

Appellant was shown surveillance footage from the area near the scene and identified Hines as a subject with shorter hair wearing a light colored jacket and dark colored pants, another subject in black pants as Levi Lopez, and a subject wearing all black who was taller than the others, as himself.

Instagram records revealed that on the morning of December 31, 2020, prior to the shooting, Hines's account sent a message to appellant's account that said, "Mexican. Me n you don't know" and "otw," which means "on the way." Appellant subsequently sent Hines a message that said, "where are you at" and made two short video calls to Hines. About 40 minutes after the shooting, Hines sent a message to appellant that read "run my money back or run me my fade, cuh." Appellant responded by saying, "cuh, don't talk to me ... rn [right now]." Later appellant told Hines to "go somewhere." Hines responded by saying, "don't spend none of my money." A little over an hour after the shooting, appellant's phone showed three different searches for how to delete messages on Instagram.

In January 2021, in an Instagram message conversation between appellant's account and an account with the username 1uptop.Levi, 1uptop.Levi said, "the N word was hot. You killed him." In response, appellant said, "I overkilled his shii" and "he watched too." 1uptop.Levi said, "some Vinnie shii?" To which appellant responded, "cuh was sliding through the block and bounced out on me; so I offed his shii." He said, "I was like, what this N word creeping through my alley, cuh?"

The trial court took judicial notice of that fact that Hines had a pending juvenile petition in which he was also charged with the murder and robbery of Arechiga.

Defense Case

Appellant's mother testified that on the morning of the shooting, she was woken up by knocking on appellant's window. She got up and saw Hines and Lopez. Appellant went outside, then back inside, then back outside. She later heard a "pop" and saw Hines and Lopez. She saw Hines give Lopez something that Lopez put into his satchel. She heard Hines say, "I almost domed that n[****]." She then saw appellant and told them she did not want anything to do with what was going on, and they left. She further testified appellant played a lot of video games, including Grand Theft Auto.

Hines's grandmother testified that she had seen a photograph of Hines standing next to a semiautomatic handgun on his bed.

Mitchell Eisen, Ph.D., testified that traumatic stress may overwhelm a person and affect their ability to pay attention to details of an event and...