People v. Laws

1

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JEROME LAWS, Defendant and Appellant.

F081267

California Court of Appeals, Fifth District

January 24, 2023

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Kern County Super Ct. No. BF165010A. Michael E. Dellostritto, Judge.

Sharon G. Wrubel, 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, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FRANSON, Acting P. J.

STATEMENT OF THE CASE

On July 25, 2019, an amended information charged Anthony Jerome Laws (appellant) with 14 counts, as follows: in count 10, murder (Pen. Code, § 187, subd. (a))^[1]; in counts 1, 3, and 11 attempted murder (§§ 664/187, subd. (a)); in count 12, conspiracy to commit murder (§ 182, subd. (a)(1)) in counts 2 and 7, shooting at a motor vehicle (§ 246); in counts 4, 5, and 6, assault with a semi-automatic firearm (§ 245, subd. (b)); in counts 8, 9, and 13, possession of a firearm by a felon (§ 29800, subd. (a)(1)); and in count 15, with participation in a criminal street gang (§ 186.22, subd. (a)).^[2] As to all counts, it was alleged appellant had a prior strike (§ 667, subds. (c)-(j)), a prior serious felony (§ 667, subd. (a)), and two prison priors (§ 667.5, subd. (b)). As to counts 1 through 13, it was alleged appellant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). As to counts 1, 3, 10, 11, and 12, it was alleged that the crimes were willful, deliberate, and premeditated (§ 189). As to count 10, it was alleged that the murder was committed while appellant was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)). As to counts 8, 9, 13, and 15, it was alleged appellant had inflicted great bodily injury (§ 12022.7, subd. (a)). And finally, counts 1 through 3, 7 through 13, and 15 all included various firearm enhancement allegations (§§ 12022.5, subd. (a) and 12022.53, subds. (c), (d) &(e)).

On August 22, 2019, a jury found appellant guilty on counts 10, 11, 12, 13, and 15, along with the special circumstance, enhancements, and special sentencing allegation as to those counts. The jury was unable to reach a verdict on counts 1 through 9 and a mistrial was declared as to those counts.

On August 27, 2019, the trial court found the strike, serious felony, and prison prior allegations true.

Counts 1 and 3 were subsequently amended on September 4, 2019, to charges of assault with a firearm (§ 245, subd. (b)), and appellant agreed to plead no contest to five counts of assault with a firearm (counts 1 and 3 through 6). Counts 2 and 7, 8, and 9 were dismissed in the interest of justice.

On May 22, 2020, the trial court granted appellant's motion to strike his prior strike, his prior serious felony, and his prison priors. It then denied appellant probation and sentenced him to state prison for life without the possibility of parole on count 10, plus 25 years to life for the firearm enhancement; to a term of 15 years to life on count 11, plus 20 years for the firearm enhancement. Appellant's sentences for counts 12, 13, and 15 were stayed pursuant to section 654. As to count 1, the trial court sentenced appellant to the upper term of nine years, for counts 3 through 6, the term of two years, one-third the middle term, for each count, for a total of 17 years consecutive, all to run concurrent with the sentence in count 10.

On appeal, appellant contends the trial court abused its discretion (1) when it refused to dismiss the jury; (2) when it dismissed a juror; (3) when it failed to make an adequate inquiry of a particular juror; (4) when it denied appellant's motion for confidential juror information; and (5) when it denied appellant's Marsden^[3] motion. Appellant further contends (6) that the great bodily injury enhancement and gang enhancement attached to count 13 must be stricken; (7) that appellant was incorrectly sentenced on count 11; and (8) and (9) that the abstract of judgment must be corrected. Finally, appellant argues (10) that if his murder conviction is reversed, his conduct credits must be re-evaluated; and, in supplemental briefing (11) that Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) requires reversal of the section 186.22, subdivision (a) substantive gang offense, the section 186.22, subdivision (b)(1) gang enhancements, and the section 190.2, subdivision (a)(22) gang special circumstance finding. We agree with appellant's assertions in issues (6), (7), (8), and (11), and remand for resentencing and correction of the abstract of judgment consistent with the views expressed in this opinion. In all other respects, we affirm.

STATEMENT OF THE FACTS

Facts as to Counts 10, 11, 12, 13, and 15

On July 9, 2015, appellant, a member of the Country Boy Crips criminal street gang, attended a memorial barbeque with several of Country Boy Crips, including Mister Bailey Garrett Collins, and Robert Lee. While at the barbeque, the men learned that members of the East Side Crips, their main rival gang, were hanging out outside an apartment complex on Palmacia Drive in Bakersfield.

Bailey, driving his girlfriend's Honda, drove appellant and Collins to the area of Palmacia.^[4] Both appellant and Collins were armed. Upon arrival at the apartment complex, Bailey, Collins and appellant saw a group of approximately 10 men outside the complex, including Darnell Dickerson. Collins was uncomfortable with Bailey as the driver, so withdrew from the formed plan to shoot at the men. The three returned to the area of the barbeque and reunited with Lee.

Lee replaced Collins in the vehicle and the men returned to Palmacia. Collins left his .38-caliber revolver in the vehicle when he exited. Bailey parked his vehicle down the street from the apartments and Lee approached the area, armed with a revolver. Appellant was armed with an automatic handgun.

Dickerson, a member of the East Side Crips, was drinking with Brian Anderson outside the apartments. Neither Dickerson nor Anderson were armed, and Anderson was not affiliated with any gang. At about 8:30 p.m., Dickerson heard footsteps that made him uneasy and he began running.

After approaching the apartments, appellant "banged the east side" and shooting erupted. Both Lee and appellant were shooting; approximately 10 shots were fired from different guns. Dickerson was able to escape, but Anderson, who was running in front of Dickerson, tried to crawl under a gate and appellant followed him and continued to fire. Anderson was ultimately shot as he was running back toward the apartments.

When appellant returned to the vehicle, he had a gunshot wound to his hand, and explained to Bailey that Lee accidentally shot him. The men fled from the scene and eventually returned to the barbeque.

When officers arrived on the scene, they found Anderson unresponsive and taking short, shallow breaths. He had two bullet wounds to his arm and one fatal wound to his abdomen. The bullet recovered from Anderson's body was medium caliber, consistent with a .40-caliber or nine-millimeter bullet.

Six nine-millimeter different brand shell casings were recovered from the area around the apartment complex.

Blood was collected from three different sites at the crime scene. Dr. Ruth Dickover testified regarding DNA comparison and analysis of items collected from the scene of the shooting. As part of her analysis, Dr. Dickover relied on TrueAllele, a "computer program for the analysis of complex DNA mixtures, low level mixtures, [and] degraded mixtures." According to Dr. Dickover, the program "has been validated to be both accurate and reliable on numerous occasions."

Using the TrueAllele program, Dr. Dickover determined that one of the blood samples collected from the crime scene was 24 quintillion times more likely to be from appellant than from a random person in the African-American population, 3.9 sextillion times more likely than someone in the Caucasian population, and 940 sextillion times more likely than someone in the Hispanic population. Testing as to the shell casings was inconclusive when compared to appellant's DNA.

Officer Michael Malley testified as an expert in the area of criminal street gangs and opined, based on contacts appellant had with other officers, his tattoos, and social media, that appellant was an active member of the Country Boy Crips at the time of the shooting.

The parties stipulated that appellant had previously been convicted of a felony.

Defense

Appellant testified in his own behalf and admitted he was a member of the Country Boy Crips on July 9, 2015, but denied he was involved in Anderson's murder. Appellant denied knowing Bailey or Anderson and claimed he had not gone with Bailey to the Palmacia apartment complex on the night of the shooting. Appellant testified that he was shot in the hand while attending the July 9, 2015, barbeque. He was hurt that Collins had implicated him, as he thought of Collins as a brother.

Appellant disputed the DNA evidence, claiming the TrueAllele software was not accurate. Appellant presented the testimony of Thomas Fedor, who questioned the reliability and accuracy of the TrueAllele program, noting that, without knowing the source code that was being used, it was not possible to verify the results. Fedor further testified that TrueAllele cannot "give the same answer twice in a row because it doesn't calculate the right exact answer," and when it is "right, it's right by coincidence." Fedor did acknowledge that he had not reviewed any of...