People v. McGilberry

THE PEOPLE, Plaintiff and Respondent, v. DONNELL MCGILBERRY, JR., Defendant and Appellant.

A147924

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

July 24, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. 174406)

After trial, a jury convicted appellant Donnell McGilberry, Jr. of the April 26, 2012 second degree murder of Coty Luster, the December 30, 2012 attempted robbery of Steven Thong, and a related gun charge. On appeal, McGilberry argues that: (1) the trial court improperly denied his motion to sever the murder and robbery charges; (2) the trial court's response to the jury's question regarding the instructions on voluntary manslaughter was prejudicial error; (3) defense counsel was ineffective in promising the jury evidence of self-defense in her opening statement that was ultimately not produced; and (4) recently enacted legislation granting trial courts discretion to strike the firearm enhancement under which he was sentenced entitles him to resentencing. We will remand for resentencing, but otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND¹

a. Murder of Coty Luster

On the evening of April 26, 2012, John Stevens looked over his shoulder before backing his car out of his driveway near the corner of 34th and Chestnut in Oakland. He saw two men fighting in the street. Stevens then heard a single gunshot and ducked down. When he looked up again, the two men were continuing to fight near a white car. Stevens then heard two more gunshots, and saw one of the men fall backwards while the other ran away. Shortly thereafter, Stevens found Coty Luster dead at the scene. An autopsy later revealed that Luster had been shot five times.

Police investigators found a black knit cap, a baseball hat, four casings, and two bullets at the scene. DNA collected from the cap was ultimately found to match Luster's DNA profile, and DNA taken from the hat matched McGilberry's DNA profile. Police investigators were also able to obtain a partial DNA profile of material under Luster's fingernails, which was consistent with McGilberry's profile, expected to occur in approximately 1 in 15,000 members of the Caucasian, African American, and Southwest Hispanic populations. Oakland Police Officer Jason Andersen obtained surveillance video from a nearby liquor store showing a man walking toward the scene of the shooting about a minute before it occurred, and running in the other direction about three minutes later. On the way to the scene, the man depicted in the video appeared to be wearing a baseball hat, but on his way away from the scene, he was not.

Paula Meredith testified that about a month before the incident, Luster told McGilberry, who was wearing his hair in a red mohawk at the time, that "he looked like a bitch." Meredith also testified that on other occasions she had heard Luster call McGilberry a "faggot" and a "bitch." Meredith's daughter had told her that McGilberry was going to "have somebody do something" to Luster. A recording of a tip that Meredith provided to the Crime Stoppers hotline was played at trial during whichMeredith told Officer Andersen: "He had told my daughter that he was going to get somebody to kill Coty. [¶] . . . [¶] But he did it hisself."²

b. Attempted Robbery of Steven Thong

On the evening of December 30, 2012, Steven Thong was picking up his friend Danny Yuen in Oakland. While he was waiting in his car for Yuen, McGilberry opened the driver side door holding a handgun, told Thong to " 'be quiet,' " and asked " 'where's the money?' " Thong replied " 'What money?' " and then heard a second person at the driver's side door say " 'Don't play dumb.' " As the two men began to search Thong's pockets, Thong attempted to grab the handgun. A struggle ensued and the two men pulled Thong from the car, threw him to the ground, and began punching and kicking him. From inside his house, Yuen saw the fight, grabbed his Beretta handgun, ran outside, told the men to " 'Get the fuck off him,' " and fired a warning shot into the air. Both men began to run away, but McGilberry tripped and fell. Thong picked up the handgun McGilberry had been carrying and both Yuen and Thong kept guns pointed at McGilberry until a car approached and McGilberry was able to start running away. Oakland Police Officer Abdullah Dadgar, who had heard the shots, arrived shortly thereafter and ordered all three men on the ground. The handgun that McGilberry had used had been reported stolen in early 2011. Forensic analysis later determined that the four casing and two bullets found at the scene of Luster's shooting had been fired from that same gun.

c. Trial and Verdict

On July 23, 2014, McGilberry was charged by information with: (1) the April 26, 2012 murder of Coty Luster (Pen. Code, § 187, subd. (a))³; (2) the December 30, 2012 attempted second degree robbery of Steven Thong (§ 211); and (3) carrying a loaded firearm on the person in an incorporated city in connection with the attempted robbery (§ 25850). The information also alleged that McGilberry personally and intentionallydischarged a firearm (§ 12022.53, subds. (b) & (c)) causing great bodily injury or death (§ 12022.53, subd. (d)) in connection with count one, that he personally used a firearm in connection with count two (§§ 12022.5, subd. (a) & 12022.53, subd. (b)), and that the firearm was stolen and not registered to McGilberry in connection with count three (§ 25850, subds. (c)(2) & (c)(6)). Before trial, McGilberry moved unsuccessfully to sever the murder and attempted robbery charges.

After a five day trial, the defense rested without presenting any evidence. The jury was instructed on the lesser included offense of heat of passion voluntary manslaughter, including with CALJIC No. 8.50 ("Murder and Manslaughter Distinguished"), which provides: "The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. [¶] When the act causing the death, though unlawful, is done . . . in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [¶] To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel."

On the third day of deliberations, the jury submitted the following question to the trial court: "Request clarification of CALJIC 8.50 Paragraph 3: [¶] If all elements of 2nd degree murder are met beyond a reasonable doubt, must the People also prove beyond a reasonable [sic] that the killing was not done in the heat of passion or upon sudden quarrel?" The trial court clerk evidently called defense counsel to inform her that the trial court intended to respond "no" to the jury's question. The trial court refused defense counsel's request to make a record before the response was sent, and answered the question by writing "NO!" on the request form and returning it to the jury.

Approximately half an hour later, the jury announced it had reached a verdict, and found McGilberry guilty of second degree murder, attempted robbery, and carrying a loaded firearm. The jury found all of the firearm allegations true, with the exception of the allegation that McGilberry knew or had reasonable cause to believe the firearm wasstolen in connection with count three. Defense counsel objected on the record to the trial court's response to the jury's question after the verdict.

McGilberry was sentenced to 15 years to life on the murder charge plus 25 years to life for the firearm enhancement, for a total term of 40 years to life on count one; 3 years for the attempted robbery plus 10 years for use of a firearm on count two to run consecutive to count one; and 4 consecutive months on count three, for a total sentence of an indeterminate term of 40 years to life plus a consecutive determinate term of 13 years, 4 months.⁴ This appeal followed.

DISCUSSION

On appeal, McGilberry argues that: (1) the trial court erred in denying his motion to sever the murder charge from the attempted robbery charges; (2) the trial court's response to the jury's question was error requiring reversal; (3) defense counsel was ineffective in giving an opening statement arguing that the evidence would show that McGilberry acted in self-defense; and (4) legislation enacted while this appeal was pending granting the trial court discretion to strike the firearm enhancement imposed on count one requires a remand for resentencing.⁵

I. The Trial Court Did Not Abuse Its Discretion in Denying the Motion to Sever the Murder and Robbery Charges

McGilberry's first argument is that the trial court erred in denying his motion to sever the murder and attempted robbery charges. We review that denial for abuse of discretion. (People v. Osband (1996) 13 Cal.4th 622, 666.)

McGilberry concedes that the statutory requirements for joinder were met, because the murder and the attempted robbery charges belong to the same class of offenses.⁶ However, he argues that denial of his severance motion was an abuse of discretion because the murder case was "weak" and the attempted robbery case was "strong." (See People v. Sandoval (1992) 4 Cal.4th 155, 172-173 ["Refusal to sever may be an abuse of discretion where . . . a 'weak' case has been joined with a 'strong' case . . . so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or...