People v. Gantt

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THE PEOPLE, Plaintiff and Respondent, v. DEANDRE GANTT, Defendant and Appellant.

A164277

California Court of Appeals, First District, Fourth Division

October 29, 2024

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. 19-NF-009091-A.

GOLDMAN, J.

A jury convicted Deandre Gantt of, among other crimes, premeditated attempted murder and unlawful possession of a firearm. The jury also found true, among other allegations, that his crimes were committed for the benefit of a criminal street gang and that Gantt personally inflicted great bodily injury during the commission of the crimes. Gantt appeals the judgment sentencing him to 40 years to life in prison. He contends that (1) the trial court erred in denying his Batson/Wheeler^[1] motion challenging the prosecution's use of a peremptory strike to remove the only available African American juror in the venire; (2) the trial court erred in admitting hearsay text messages into evidence; (3) the trial court improperly admitted expert opinion testimony from a police officer; (4) there is no substantial evidence to support his convictions for premeditated attempted murder; (5) there is no substantial evidence to support the finding that he personally inflicted great bodily injury; (6) his convictions for unlawful possession of a firearm must be overturned because they violate his Second Amendment rights under the United States Supreme Court's decision in New York State Rifle &Pistol Assn., Inc. v. Bruen (2022) 597 U.S. 1 (Bruen); (7) as a result of changes made to Penal Code^[2] section 186.22 by the enactment of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021 ch. 699, § 3) (Assembly Bill 333), the gang participation enhancement allegations must be reversed; (8) reversal of the judgment is required pursuant to section 1109, which was also added by Assembly Bill 333 and which requires gang participation offenses to be tried separately from other counts not requiring gang evidence; and (9) his convictions must be reversed because the court admitted evidence of Gantt's rap music lyrics and videos in violation of newly enacted Evidence Code section 352.2, which requires courts to consider additional factors before admitting evidence of creative expression. We agree that the gang participation enhancement allegations and two of the true findings on the great bodily injury enhancement allegations must be reversed, but affirm the judgment in all other respects.

Background

Gantt was charged by amended information with two counts of attempted premeditated murder (§§ 187, subd. (a), 664; counts 1-2), four counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3-6), discharging a firearm in a grossly negligent manner (§ 246.3, subd (a); count 7), active participation in a criminal street gang (§ 186.22, subd. (a); count 8), possession of a loaded firearm in a public place (§ 25850, subd. (a); count 9) and possession of a concealed firearm (§ 25400, subd (a)(2); count 10). The information further alleged that counts 1 through 7 were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)); Gantt personally inflicted great bodily injury in the commission of counts 1-4 and 7-8 (§ 12022.7, subd. (a)); and Gantt personally discharged a firearm proximately causing great bodily injury in the commission of counts 1-2 (§ 12022.53, subd. (d)), personally used a firearm in the commission of counts 3-6 (§ 12022.5, subd. (a)), and was armed with a firearm in the commission of count 8 (§ 12022, subd. (a)(1)).^[3]

At trial, evidence was presented regarding a shooting that occurred at the Tanforan shopping mall on July 2, 2019. A witness testified that immediately before the shooting, he observed what he described as tensions flaring between one group of approximately four to five males and another group of about six to seven males on the second floor of the mall.

A gang expert with the San Francisco Police Department identified Gantt and the other members of his group as associated with the Tre-4 gang. The members of the other group involved in the shooting belonged to Double Rock, which he also identified as a gang. A third group of three males, referred to at trial as group M, were also at the mall and had contact with both the Tre-4 and Double Rock groups before and at the time of the shooting. Gantt's principal defense at trial was that he fired his gun in self-defense when the Double Rock group decided to attack him after being alerted to his presence by a member of group M, whereas the prosecution contended that Gantt went to the mall intending to kill members of Double Rock.

Surveillance videos showed that all three groups traveled separately to the mall by BART train. During the police investigation, officers recovered Instagram records for accounts held by members of the Tre-4 group. Evidence was introduced showing that, shortly before arriving at the mall, a Tre-4 member who was on the BART train with Gantt sent messages to an unidentified account stating, "Lulwaka4 over there at tanfo" and "Come to tanfran [sic] the suckas over here." The BART surveillance footage showed Gantt sitting next to the sender for several minutes immediately before the message was sent. One of the members of the Double Rock group, later identified in surveillance video as the other shooter, used the Instagram moniker "Lulwaka4."

Based on surveillance videos, an officer testified to the following timeline of the movement of the three groups through the mall in the hour leading up the shooting. At 3:17 p.m., the Double Rock group exited the BART station. At 3:47 p.m., the Tre-4 group and group M exited the BART station separately. At 3:50 p.m., the Tre-4 group and group M met as they entered the mall. At 3:52 p.m., group M met the Double Rock group in a clothing store on the second floor of the mall. At 3:53 p.m., group M and the Double Rock group exited the clothing store. The shooting started at 3:54 p.m.

Based on the video and audio recordings and the numbers of casings found, officers concluded that a total of 11 shots were fired and that twice there were shots fired simultaneously from two different firearms. Of the 11 bullet casings recovered at the mall, nine of the casings were 9-millimeter and were found near the elevators where Gantt fired and two of the casings were .45-caliber and were located near where the other shooter was located. Several weeks after the shooting, a .45-caliber semiautomatic firearm was recovered from a car owned by the other shooter's family. Testing established that the .45-caliber gun fired the two .45-caliber casings recovered at the mall. Two members of the Double Rock group were shot: a fourteen-year-old was shot in his right thigh, which fractured his femur and required the placement of a metal rod in his leg, and a sixteen-year-old was shot twice in his abdomen, which damaged his intestines and required surgery.

The officer testified, based on surveillance video, that when the Tre-4 group first came in contact with the members of group M, Gantt casually greeted a member of group M before that group proceeded to the clothing store. On the surveillance video from the clothing store, which shows members of both group M and the Double Rock group, someone can be heard saying first "He's outside" and then "Let's go." The Double Rock and group M members exited the clothing store as Gantt and his group gathered at the top of the nearby escalator on the second floor of the mall. A witness standing near Gantt before the shooting occurred testified that after the groups exited the clothing store, someone from one of those two groups motioned toward Gantt's group in a manner that the witness interpreted as indicating "Let's take it outside."

Surveillance video of the second floor of the mall shows Gantt walking towards the clothing store and standing in the middle of the second-floor walkway as the Double Rock group and group M exit the store. The members of group M appear to be walking towards Gantt first, while the members of the Double Rock group gather briefly behind them. Then, the Double Rock group jogs past the group M members towards Gantt. Almost immediately, both the Double Rock group and group M turn and run in the other direction. The group M members appear to be the first to retreat, followed closely by some members of the Double Rock group, including the 16-year-old victim.

The 14-year-old victim lags considerably behind the other members of the Double Rock group as they retreat.

As Gantt runs towards the Double Rock group, he fires two shots from his gun before briefly ducking behind a column. At the same time, a member of the Double Rock group fires backward towards Gantt while still running forward. The 14-year-old victim, who is caught between the shooters, can be seen falling to the ground at this time.

After emerging from behind the column, Gantt assumes a forwardfacing stance and fires his gun seven more times. No surveillance video was offered showing the 16-year-old victim being shot. Witnesses identified his location as outside the Timeworks store, which places him behind the Double Rock shooter. The audio analysis of the incident indicated that the member of the Double Rock group fired simultaneously with Gantt's first and third shots.

The gang expert detailed the criminal history of the Tre-4 gang and testified to an ongoing dispute between it and the Double Rock gang, including an incident in October 2016 in which Gantt had been shot by a Double Rock member. The officer opined, based on a hypothetical that tracked the facts of this case, that the shooting was committed for the benefit of and in association with the Tre-4 gang.

To support the...