People v. Frank

1

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CONSTANTIN FRANK et al., Defendants and Appellants.

D076986, D076737

California Court of Appeals, Fourth District, First Division

August 5, 2022

NOT TO BE PUBLISHED

CONSOLIDATED APPEALS ^[1] from judgments of the Superior Court of San Diego County No. SCD267959, Louis R. Hanoian, Judge. Affirmed in part as modified, reversed in part and remanded.

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Constantin Frank.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Donte Jerome Haddock.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

O'ROURKE, J.

In two separate incidents, fellow gang members Anthony Constantin Frank and Donte Jerome Haddock (together appellants), were charged with shooting to death Darris W. in 2011 and Xusha B in 2013. A jury found appellants guilty of two counts of murder (Pen. Code, § 187, counts 1, 3),^[2] two counts of conspiracy to commit murder (§ 182, subd. (a)(1), count 2, 4), and attempting to murder Malcolm H. (§§ 664/187, subd (a), 189, count 5). The jury also found true gang enhancement allegations attached to each count (§ 186.22, subds. (b)(1) &(5)), gang-related firearm enhancements (§ 12022.53, subds. (d) &(e)(1)), and a lying in wait special circumstance enhancement for both murders (§ 190.2, subd. (a)(15)). As to count 3, the jury also found true allegations that multiple murders occurred (§ 190.2, subd. (a)(3)) and that a firearm was discharged from a vehicle (§ 190.2, subd. (a)(21)). The court sentenced appellants to a total prison sentence of two consecutive life terms without the possibility of parole plus 82 years to life for Haddock and 90 years to life for Frank.

On appeal, appellants contend the trial court erred when it: (1) denied their motion to sever the two murder counts; (2) admitted gang evidence, including a rap song; (3) admitted uncharged acts evidence; and (4) instructed the jury regarding the conspiracy to commit murder charge. Both contend that the evidentiary errors were prejudicial individually and cumulatively. Haddock also asserts the trial court erred when it denied his motion to sever his trial from Frank's trial.

Appellants challenge all fines, fees, and assessments imposed by the trial court under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas) and claim the trial court erred by failing to hold an ability to pay hearing before it imposed various assessments, fees, and fines. They assert a remand is necessary to allow the trial court to exercise its discretion regarding striking their firearm enhancements. Finally, appellants contend that recently enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assem. Bill 333) requires reversal of the true findings on the gang enhancement allegations (§ 186.22, subd. (b)(1) &(5)) and the gang-related firearm enhancements (§ 12022.53, subds. (d) &(e)(1)) attached to all counts because the new law increased the proof requirements under the gang statute (§ 186.22).^[3]

Haddock requests that we conduct an in camera review of material sealed by the trial court. He also asserts that the abstract of judgment must be corrected regarding his custody credits and that his parole revocation fine must be stricken. The People agree that we should review the sealed materials in camera and concede the errors regarding Haddock's custody credits and parole revocation fine.

We reject appellants' challenges to the trial court's rulings regarding severance, admissibility of evidence, and instructing the jury. We agree that the true findings on appellants' gang enhancement allegations (§ 186.22, subd. (b)(1) &(5)) must be reversed following the passage of Assem. Bill 333, which retroactively applies to their nonfinal judgments of conviction. All parties agree that reversal of the gang enhancement allegations requires reversal of the gang-related firearm enhancements. (§ 12022.53, subds. (d) &(e)(1).) The matter is remanded and the People shall have the opportunity to retry appellants on these enhancements. Should the firearm enhancements be found true after a retrial, the trial court shall consider all sentencing options under section 12022.53. On remand, the trial court shall also exercise its informed discretion to resentence the section 12022.23, subdivision (d) firearm enhancements.

We also modify the judgments to vacate one of the imposed fees based on a recent change in the law. On remand, the trial court is directed to redetermine its award of Haddock's custody credits in accordance with the views expressed herein and strike Haddock's parole revocation restitution fine imposed pursuant to section 1202.45. In all other respects, we affirm the judgments as modified.

I. FACTUAL BACKGROUND^[4]

A. Background to the Crimes

The San Diego Lincoln Park Bloods (LPB) and the Skyline Piru Bloods (Skyline) are rival criminal street gangs with a history of back-and-forth shootings. Appellants were LPB gang members, although Frank had initially been a part of another gang called the 5-9 Brims, a gang aligned with LPB. Glenn G. and Donny L. were LPB gang members. Gang monikers follow a generational hierarchy such as the original name "Fatal" is followed in order with Lit Fatal, Baby Fatal, and Tiny Fatal. Glenn's gang moniker was Lil Fatal, Donny's was Baby Fatal, and Frank's was Tiny Fatal. Lower named individuals, such as Frank, commit crimes for the gang to receive status within the gang and the respect of older gang members, such as Glenn and Donny.

Brothers Andre P., Keshawn P. and Marcel P. were members of Skyline and its closely-affiliated O'Farrell Park Banksters gang (O'Farrell). Malcolm H. was a good friend and cousin of Andre and Keshawn, and an associate of the O'Farrell criminal street gang. Appellants had been involved in an ongoing feud with Keshawn, Andre, and Malcolm for several years. In 2010 and 2011, a series of uncharged shooting took place between rival gang members.

In early February 2010, Andre was shot, but he refused to speak to the police. In mid-February 2010, during a celebration at the P. family home, the partygoers heard gunshots outside. Andre and Keshawn's friend reported that Haddock, Gerald H., Roshawn B., and someone else had driven up and shot him in the arm. When police searched the area, they found a .45 caliber shell casing.

That same night, based on a call about a possible drunk driver, the police stopped a vehicle driven by Devin G., with passengers Haddock, Gerald, and Roshawn. An inventory search of the vehicle revealed two firearms, a .45 caliber JHP Hi-Point with six rounds in the magazine and a .40 caliber Beretta with 10 rounds in the magazine. Police arrested the four occupants. A few days later, based on information provided by Andre and Keshawn's mother, police connected the alleged shooters with the individuals who had been arrested in the vehicle.

In February 2011, Haddock began dating Andre's former girlfriend, Lashayla. Andre became jealous. In mid-February 2011, Lashayla and her sister were in a car with Haddock when Andre pulled up beside them and pointed a gun at them. Lashayla's sister immediately called the police. They dropped off Haddock at Gerald's house. Andre pulled up and argued with Haddock. Someone then threw a brick through the window of Gerald's house. Police later arrested Andre for this incident.

On March 15, 2011, another shooting occurred at the P. family home. Malcolm was present at the time. A P. family member had seen a blue car driving by the house on numerous occasions the week before the shooting. Malcolm told this person that Frank from LPB was in the car, and the family member told police that he saw the same blue car during the shooting. The family member claimed that he did not know Frank personally and could not identify him. In early April 2011, Andre and Keshawn's mother rammed into the back of a car driven by Lashayla with Haddock as her passenger.

B. Darris's Murder

On the night of April 29, 2011, a high school girl rented a party bus that picked up her friends from a College Grove parking lot. The group on the bus included Skyline gang members. When the bus returned to drop everyone off at around 12:30 a.m., appellants showed up and started a fight with the Skyline gang members. Witnesses understood the fight to be gang-related. During the fight, someone screamed that Haddock had a gun.

That same night, other high school girls rented another party bus that picked people up near a restaurant. Some of the girls had invited Frank and Haddock. Some uninvited Skyline or O'Farrell gang members appeared, including Andre, Keshawn, Malcolm, Marcel, Sai T., Tevin E., and Darris W. When the girls asked Keshawn and his friends whether Frank and Haddock could join them, they assured the girls this would be fine. When the bus made a stop at Mission Beach, one of the girls was on the phone with Frank and asked the bus driver to wait for him and his friends to join the bus, but the bus eventually left.

The police later stopped the bus and several people got off and arranged alternative transportation back to the restaurant where the bus had picked them up. One person picked up Marcel and Darris and brought them to the restaurant where they had initially boarded the party bus. One of the girls who stayed on the bus was in contact with Frank, who told her that he would meet them back at the restaurant.

At the restaurant, Darris and Marcel went to Marcel's car. Gunfire erupted. Darris, who had been sitting in the backseat of Marcel's car, had been shot....