People v. Namauu

THE PEOPLE, Plaintiff and Respondent, v. JONAH KALEIKAUMAKA NAMAUU et al., Defendants and Appellants.

H046070

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

April 19, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Cruz County Super. Ct. Nos. F28398, F28401)

Appellants Jonah Kaleikaumaka Namauu and Brandon Aaron Thomas appeal from judgments entered after a jury found them guilty of first degree murder with a special circumstance and other crimes related to a shooting in which Namauu fired a gun from Thomas's car into another car with two occupants, killing the driver.

Between their two appeals, Namauu and Thomas raise multiple claims of error. Stated broadly, they separately or jointly challenge the trial court's admission or exclusion of certain evidence, the trial court's denial of Thomas's suppression motion, the sufficiency of the evidence regarding their participation in a criminal street gang, and certain aspects of their sentences, including the fines and fees imposed on them.

For Namauu, we vacate his sentence and remand his case to allow the trial court to exercise its discretion whether to strike Namauu's prior serious felony enhancement. We also direct the trial court to strike Namauu's prior prison term enhancement and to state a disposition for certain firearm enhancements found true by the jury. We otherwise reject Namauu's claims of error and affirm his convictions and sentence.

For Thomas, we find no error and affirm the judgment.

I. FACTS AND PROCEDURAL BACKGROUND

A. Procedural Background

In May 2018, the Santa Cruz County District Attorney filed a first amended information (information) charging Namauu with seven counts; in June 2018, the district attorney filed a second amended information charging Thomas with six counts (collectively, informations). The charged crimes related to a deadly shooting that occurred on April 3, 2015.

Count 1 in both informations alleged murder (Pen. Code, § 187, subd. (a)¹) with two special circumstances (§ 190.2, subds. (a)(21) [intentional murder by discharging a firearm from a motor vehicle (drive-by special circumstance)], (a)(22) [intentional murder for a criminal street gang (gang special circumstance)]), gang enhancements (§ 186.22, subds. (b)(1), (b)(5)), and an enhancement for the personal use of a firearm (§ 12022.53, subds. (b)-(e)(1)). For Namauu, count 1 also alleged an enhancement for the personal use of a firearm (§ 12022.5, subd. (a)). For Thomas, count 1 also alleged an enhancement for being armed with a firearm (§ 12022, subd. (a)(1)).

Count 2 in both informations alleged shooting at an occupied motor vehicle (§ 246) with gang enhancements (§ 186.22, subds. (b)(1), (b)(4)) and an enhancement for the personal use of a firearm (§ 12022.53, subds. (b)-(e)(1)).

Count 3 in both informations alleged shooting from a motor vehicle (§ 26100, subd. (d)) with a gang enhancement (§ 186.22, subd. (b)(1)) and an enhancement for the personal use of a firearm (§ 12022.53, subds. (b)-(e)(1)).

Count 4 against Thomas alleged permitting another to shoot from a vehicle (§ 26100, subd. (b)) with a gang enhancement (§ 186.22, subds. (b)(1)).

Count 4 against Namauu and count 5 against Thomas alleged assault with a firearm (§ 245, subd. (a)(2)) with a gang enhancement (§ 186.22, subd. (b)(1)). For Namauu, count 4 also alleged an enhancement for the personal use of a firearm (§ 12022.5, subds. (a), (d)).

Count 5 against Namauu and count 6 against Thomas alleged participation in a criminal street gang (§ 186.22, subd. (a)).

Count 6 against Namauu alleged possession of a firearm by a felon (§ 29800, subd. (a)(1)) with a gang enhancement (§ 186.22, subds. (b)(1)).

Count 7 against Namauu alleged possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)) with a gang enhancement (§ 186.22, subd. (b)(1)).²

The information against Namauu further alleged he had a prior serious felony conviction (§ 667, subd. (a)(1)), a prior strike conviction (§ 667, subds. (b)-(i)³), and a prior prison term for a felony conviction under section 245, subdivision (a)(2) (§ 667.5, subd. (b)).

Namauu and Thomas were tried jointly between late April 2018 and early July 2018. On July 3, 2018, the jury found Namauu and Thomas guilty on all counts.⁴ ForNamauu, the jury found the murder in count 1 to be in the first degree and found true the drive-by special circumstance. However, the jury found not true the gang special circumstance and all the gang enhancements submitted for a verdict under section 186.22, subdivision (b). Further, the jury found true all the firearm enhancements under sections 12022.5 and 12022.53, attendant to counts 1, 2, 3, and 4 against Namauu.⁵

For Thomas, the jury similarly found the murder in count 1 to be in the first degree and found true the drive-by special circumstance. The jury found not true the gang special circumstance in count 1. The jury also found not true all of the gang and firearm enhancements in counts 1-5, except for the firearm enhancement in count 1 under section 12022, subdivision (a)(1), which the jury left "Blank" on its verdict.⁶

Namauu waived his right to a jury trial on the allegations related to his prior convictions. Thereafter, the trial court found true the allegations regarding Namauu's prior conviction for a serious felony (§ 667, subd. (a)(1)), prior strike conviction (§ 667, subds. (b)-(i)), and prior prison term (§ 667.5, subd. (b)).

On August 7, 2018, the trial court sentenced Namauu to an aggregate term of 23 years plus life without the possibility of parole. The trial court imposed and struck the punishments for the firearm enhancements alleged against Namauu in counts 1, 2, and 3under section 12022.53.⁷ Further, the trial court imposed and stayed a one-year prior prison term enhancement under section 667.5, subdivision (b). Regarding Thomas, the trial court sentenced him to an aggregate term of four years plus life without the possibility of parole. The trial court also imposed restitution fines, fees, and assessments on Namauu and Thomas.

B. Evidence Presented at Trial⁸

1. Overview

On the evening of April 3, 2015, Namauu shot and killed 18-year-old Sam Weinberg. Namauu fired the fatal shot from the front passenger's seat of a car being driven by his codefendant Thomas. Their car had stopped next to Weinberg's SUV at a traffic light in Santa Cruz. Weinberg was driving the SUV, and his 26-year-old roommate, Michael Cook, was in the front passenger's seat.

The prosecution contended the killing was gang related, stemming from an earlier interaction between Weinberg and Thomas at a liquor store. The prosecution claimed Thomas and Namauu were Norteño gang members who took Weinberg to be a rival Sureño because he was wearing blue clothing, and the shooting resulted from the earlier interaction.

Namauu asserted he was not a gang member, had no knowledge of any interaction between Thomas and Weinberg at the liquor store, and was not aware of Weinberg until Weinberg's SUV was alongside Thomas's car at the traffic light. Namauu stated he saw what he believed was a gun in Weinberg's hand and fired at Weinberg in self-defense.Thomas asserted he did not know Namauu had a gun or intended to use it to shoot Weinberg.

2. Prosecution Evidence

Namauu grew up in Hawaii and moved to Santa Cruz around 2010 or 2011, when he was about 18 or 19 years old. Namauu and Thomas became friends and were members of a Norteño gang called West Side Santa Cruz or West Side Chicos. The gang's members identified themselves with, among other symbols, red clothing and hand signs depicting the numbers 1 and/or 4 (representing the number 14) and the letter "W." Sureño gangs also existed in Santa Cruz and were rivals of West Side Santa Cruz. Sureño gang members associated with the color blue and the numbers 13 and 3.

In April 2015, Thomas lived in an apartment complex across the street from Lloyd's Liquors. Weinberg and Cook also lived nearby. Weinberg was a Sureño "wannabe," who associated with Sureño gang members and always wore blue clothing. In addition, Cook had a tattoo of three dots on his wrist. Cook testified that he received this tattoo when he was 16 or 17 and did not realize its significance until after he had gotten it.

On April 3, 2015, Weinberg was wearing a blue and white baseball cap and a dark blue shirt. After smoking a bowl of marijuana, Weinberg and Cook left their house about 6:45 p.m. to get dinner and alcohol. They drove in Weinberg's SUV to a nearby taqueria and picked up some food. Then they went to Lloyd's Liquors and browsed the liquor selection. As Thomas entered the store, Cook glanced at him. Cook bought a bottle of alcohol and stood a few feet away from the counter as Weinberg made a purchase. Thomas, who was wearing a gray T-shirt, stood in line behind Weinberg. Cook made eye contact with Thomas and gave him a nod. About 15 or 20 seconds later, Weinberg turned his head and looked at Thomas. According to Cook, Thomas "looked intimidating, almost intimidating." The look on Weinberg's face was "[t]he same. It wasintimidation." Weinberg and Thomas looked at each other for five or six seconds. Cook told Weinberg to keep his eyes to himself, and Weinberg turned back toward the counter.

About 7:20 p.m., Weinberg completed his purchase. As Weinberg walked out of the store, he said "what the hell is their frickin problem." Cook did not hear Thomas say anything in response.⁹

Weinberg and Cook got into Weinberg's SUV and started to drive out of the parking lot. There was a backup of cars leaving the parking lot; Weinberg and Cook waited in the line. Thomas exited the store and walked over to his car. Cook and Thomas made eye...