People v. Pettie

16 Cal.App.5th 23

224 Cal.Rptr.3d 160

The PEOPLE, Plaintiff and Respondent,

v.Vincent PETTIE et al., Defendants and Appellants.

H041739

Court of Appeal, Sixth District, California.

Filed October 10, 2017

As Modified on Denial of Rehearing November 3, 2017

William L. Osterhoudt, San Francisco, under appointment by the Court of Appeal, for Appellant Vincent Pettie

Randy S. Kravis, Santa Monica, under appointment by the Court of Appeal, for Appellant Philip Garcia

Joseph Shipp under appointment by the Court of Appeal, for Appellant Andrew T. Lanford

Xavier Becerra, Attorney General, Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Alisha M. Carlile, Deputy Attorney General, for Plaintiff and Respondent

WALSH, J.^*

A jury found defendants Philip Garcia, Andrew Lanford, and Vincent Pettie guilty of attempted murder, assault, and witness dissuasion, with gang and firearm enhancements, as the result of an attack on Joseph Delgadillo. The trial court imposed aggregate terms of 42 years to life on Garcia, and 29 years to life on Lanford and Pettie.¹

At the time of the assault, defendant Garcia was dating victim Delgadillo's ex-wife. At some point, Delgadillo's daughter came to his home with bruises and complained that Garcia had hit her. Delgadillo called the police, but they did not arrest Garcia at that time. Three weeks later, as Delgadillo was watching football with defendant Lanford, Lanford questioned Delgadillo about calling the police and invited him out to smoke. Once outside, Delgadillo saw Garcia, defendant Pettie, and another man. Someone called Delgadillo a "cop caller" and some or all of the men attacked Delgadillo. Delgadillo saw Garcia point a pistol at him during the attack, but otherwise Delgadillo did not specifically identify which of the men personally participated in the attack. After suffering injuries, Delgadillo managed to run away. He heard four or five gunshots as he fled.

Defendants raise numerous claims on appeal. We find no merit in the claims of failure to bifurcate, Brady² violation, juror bias, prosecutorial misconduct, and insufficient evidence, including the claim of insufficient evidence that the Norteños were a unitary gang under People v. Prunty (2015) 62 Cal.4th 59, 192 Cal.Rptr.3d 309, 355 P.3d 480 ( Prunty ).

Defendants also claim the admission of testimonial hearsay through the prosecution's gang expert violated their confrontation rights under Crawford³ and People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ). We conclude this claim has merit and requires reversal of the true findings on the gang enhancements. As to Garcia and Lanford, we conclude the Crawford violation does not require reversal of the convictions for attempted murder and assault. As to Pettie, however, we conclude the violation requires reversal on all counts.

Finally, defendants raise several claims of instructional error and sentencing error. We conclude the trial court failed its sua sponte duty to give the "mere presence" portion of CALCRIM No. 401 as it related to Pettie's role in aiding and abetting the assault. The trial court also failed to instruct the jury on the requisite mens rea for witness dissuasion. These errors require reversal of the convictions on the relevant counts. We grant further relief on one claim of sentencing error. We will reverse the judgments and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts of the Offenses

1. Overview

In 2012, Joseph Delgadillo was engaged in a custody dispute with his ex-wife. Delgadillo's ex-wife was dating Philip Garcia at the time. In November 2012, Delgadillo's daughter came to his home with bruises and told Delgadillo that Garcia had hit her. Delgadillo reported the incident to the Hollister Police Department, but the police did not arrest Garcia at that time.

On the evening of December 6, 2012, Delgadillo went to his cousin's house in Hollister to watch a football game with Andrew Lanford and others. Delgadillo subsequently gave police the following account of the evening: At some point, Lanford began asking Delgadillo why he had called the police about the incident with his daughter and Garcia. Lanford then invited Delgadillo outside for a cigarette. As they were walking outside, Lanford questioned Delgadillo again about calling the police. Once outside, Delgadillo saw three other persons: Garcia, Pettie, and a man identified only as "Robert." Delgadillo was called a "cop caller," and a fight ensued. In the course of the fight, Delgadillo's sweatshirt was pulled up over his head and he was knocked to the ground. Someone struck him on the head with a hard object, which he believed to be a gun. As he was getting up, he saw Garcia pointing a gun in his face. Delgadillo then ran away. As he fled, he heard four or five gunshots. Delgadillo suffered a laceration on his head and several bruises and scratches, but he escaped without further injury.

At trial, Delgadillo recanted the substance of these allegations. The prosecution introduced his hearsay statements to the police as prior inconsistent statements. The prosecution also introduced evidence that Lanford, Garcia, and Pettie were members of the Norteño criminal street gang.

2. Testimony of Joseph Delgadillo

Delgadillo reluctantly testified for the prosecution under subpoena. He testified that his cousin, Yanina Torres, was married to Andrew Lanford. He admitted that he called the police on November 12, 2012, to report his daughter's claims that Garcia had hit and bruised her. He explained that he was trying to get custody of his children because he believed his ex-wife was unfit to care for them.

When asked about the night of December 6, 2012, Delgadillo testified that he could not recall being assaulted at his cousin's house. He claimed he had blacked out after drinking, and said it was "[k]ind of like a bad dream." He could not recall talking to the police or anyone else about what happened that night. He testified that he "wasn't in the right state of mind" because he was "going through a lot in my life at the time." He claimed that anything he must have told the police was the product of anger and confusion. When asked about the allegations that police said he had made against Garcia, Lanford, and Pettie, Delgadillo responded that any such allegations would have been lies.

When asked why he was reluctant to testify, Delgadillo responded, "I've moved on with my life. None of this concerns me." When asked if he was concerned about testifying, he responded, "There's always concerns. I mean, I've been living watching over my shoulder since this all began." He denied that anyone had told him not to testify but added, "I have kids and I have family and it doesn't matter regardless of whatever; you know? Obviously, I'm going to take their best interest in mind; so, like I said, I've moved on."

3. Testimony of Deputy Sheriff Michael Mull

On the evening of December 6, 2012, San Benito County Deputy Sheriff Michael Mull received a dispatch call reporting gunshots fired and males fighting around the 1500 block of Nash Road. Upon arriving at the scene, Deputy Mull and his partner, Deputy Sheriff Marc Williams, found some blood-stained clothing in front of a fence outside. Deputy Mull saw blood drops leading up to the front of the house at 1440 Nash Road. He questioned Jynnita Torres (Yanina Torres' sister) at the house while Deputy Williams questioned another woman.⁴

Jynnita said she had heard some gunshots followed by a strange man in a black sweatshirt and jeans running into the house. She said the man cleaned up in the kitchen and ran away. Deputy Mull saw blood drops inside the house, so he followed them into the house and searched the living room, a bedroom, and the kitchen. He did not see any blood or bloody rags in the kitchen, and he did not believe Jynnita was telling him the entire truth.

Deputy Mull later found a single bullet casing on the ground outside. He also spoke with a neighbor who described seeing several subjects fighting in the street. The neighbor said they sped away in an SUV, and he reported hearing a gunshot.

Later that night, a dispatcher informed Deputy Mull that a victim of an assault at the Nash Road residence wished to file a report. When Deputy Mull arrived at the victim's residence, he saw Delgadillo, Degadillo's mother, and another relative. Delgadillo had a laceration above his left eye, and he appeared to have been involved in an assault. The laceration was one to two inches long. He had scratches and blood on his head, and bruising and abrasions on his arm and leg.

Delgadillo gave Deputy Mull the following account: Delgadillo had been watching a football game at his cousin's home at Nash Road. Lanford was there. As they were watching the game, Lanford started asking Delgadillo why he had call the police about the issues he was having with his ex-wife and Garcia. At some point, Lanford went outside briefly and came back inside. He asked Delgadillo to go outside to smoke a cigarette with him. As they went outside, Lanford continued to question Delgadillo about calling the police on Garcia. Once they got outside, Delgadillo saw three additional persons: Garcia, Pettie, and a man named "Robert" whose last name Delgadillo did not know.

Delgadillo heard someone call him a "cop caller" and a fight ensued. During the course of the fight, his sweatshirt was pulled up over his head. He was then hit on the head with a hard object which he believed to be a gun. At that point, he was trying to get up off the ground. As he looked up, he saw Garcia pointing a gun directly into his face at close proximity. Delgadillo then ran away. As he was running away, he heard four or five gunshots.

Deputy Mull asked Delgadillo how he knew the men. Delgadillo said he had known Lanford for at least 10 years, and...