People v. Thomas

64 Cal.App.5th 924

279 Cal.Rptr.3d 335

The PEOPLE, Plaintiff and Respondent,

v.Davon Raydale THOMAS, Defendant and Appellant.

B298946

Court of Appeal, Second District, Division 8, California.

Filed May 28, 2021

C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithy, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

OHTA, J.^*

The defendant and appellant Davon Raydale Thomas, along with codefendants Aaron Cleveland, Orlando Dalman Ritchie, and Kenshan Aorian Lenoir, were tried for murder in violation of Penal Code section 187, subdivision (a),¹ shooting at an inhabited dwelling, in violation of section 246, and felony evading in violation of Vehicle Code section 2800.3, subdivision (a). The jury convicted Thomas on all counts and found the gang allegation under section 186.22, subdivision (b) true for the shooting at an inhabited dwelling charge. As for the codefendants, the jury was unable to reach a verdict on the murder charge but convicted each on the shooting at an inhabited dwelling count finding the gang allegation true. The jury also convicted Ritchie and Lenoir on the felony evading and Cleveland, on the lesser charge of misdemeanor evading. The trial court sentenced Thomas to 25 years to life for the murder, 15 years to life for the shooting at an inhabited dwelling, and seven years for the felony evading, to be served consecutively.

On appeal, Thomas raises seven contentions: (1) the trial court erroneously denied his new trial motion because prior to the sentencing, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) rendered his felony-murder conviction invalid, (2) the trial court committed instructional error on the accomplice/codefendant instruction improperly suggesting his testimony should be viewed with caution, (3) the prosecutor committed misconduct by lessening the reasonable doubt standard in closing argument, (4) counsel for codefendant Cleveland committed various misconduct which denied him due process of law, (5) the trial court violated his due process right by denying his motion to sever, (6) the trial court committed error by excluding his gang territory evidence, and, (7) the prejudice caused by the cumulative error denied him due process of law. We find merit in Thomas's SB 1437 contention and reverse the murder conviction. We affirm the judgments on the remaining counts.

FACTUAL AND PROCEDURAL BACKGROUND

The Prosecution's Case

The prosecution's case was based on three separate incidents all committed on May 23, 2015.

The Shooting at an Inhabited Dwelling Incident

The shooting occurred at the home of Qiana Beverly located on 70th Street near Budlong Avenue in the city of Los Angeles.

Beverly lived with a friend named Shannon Ruffinelli. That night Beverly hosted a party for her son with about 100 people in attendance. Just prior to midnight, Beverly heard several gunshots. Everyone ran. Beverly saw a black Honda drive away from the location.

Marlen and Jose Leiva are siblings who lived near the corner of 70th Street and Budlong Avenue. Marlen saw a person get out of a car and shoot approximately five times towards a house. She described the shooter as an African American male, between the age of 16 and 22, thin, and wearing loose dark clothing. Marlen thought the shooter yelled, "Eight Trey Gangster Crips."

Jose saw four people get out of a car and start shooting towards the party. He called 9-1-1. The shooters got back into the car and drove away. In the 9-1-1 call, Jose described the car as a black 2014 Chevy Impala.

The Murder Incident

Eric Cousin lived near 52nd Street and Western Avenue in the city of Los Angeles. Just after midnight, he walked to the side of his house to see why his dog was barking. He saw two men pressing the victim, Jonathan Ford, against a chain link fence. The two men held Ford and demanded he "hurry up" and told him to "give it up nigga." Another man wearing black clothing got out of a car, approached Ford, and shot him. The assailants got back in the car and drove away. Cousin called 9-1-1.

When Los Angeles Police Officer Christopher Tabela and his partner arrived around 12:10 a.m., he saw Ford lying on the ground already deceased. Ford had a gunshot wound to his head and right shoulder/chest area.

The Evading Incident

Around 12:12 a.m., Los Angeles Police Officer Julio Aguilar and his partner were driving in a marked police vehicle southbound on Western Avenue towards Martin Luther King Jr. Boulevard. He saw a black Chevy Cruze driving fast in the opposite direction. He made a u-turn to follow it. The Chevy Cruze drove into a residential area and reached speeds of 70 to 90 miles per hour running stop signs and red lights. As the Chevy Cruze turned onto 39th Place, Officer Aguilar observed a handgun being tossed from the passenger side.

Officer Aguilar activated his emergency lights and siren. As he pursued, the Chevy Cruze continued to run stop signs and red lights reaching speeds around 100 miles per hour. At the intersection of 2nd Avenue and 39th Street, the Chevy Cruze collided into a White Prius and came to a stop.

Cleveland climbed out of the passenger side and ran. Thomas, along with Ritchie and Lenoir remained at the car and were arrested. With the assistance of a helicopter, Cleveland was apprehended after breaking into a stranger's home to hide. Thomas had been in the driver's seat.

A passenger of the Prius was ejected from the collision and suffered several injuries. He required two eye surgeries, had pain in his right knee and struggled to walk for a few months after the crash.

The Physical Evidence

Physical evidence collected from the Chevy Cruze consisted of the following: (1) a loaded (one live bullet and two expended casings) .38-caliber Rossi revolver found on the driver's side rear seat, (2) a number of .40-caliber live rounds (Smith & Wesson and TUI brands) from various parts of the car, (3) one expended .38-caliber casing, on the left rear seat, (4) a blue suitcase containing a box of 10 live Hornady brand .38-caliber bullets, (5) Ford's cell phone on the passenger seat, (6) cell phones belonging to Thomas, Ritchie and Lenoir, and (7) a possible bullet impact mark on the ceiling's upholstery.

From Lenoir's pants pocket, the police recovered a Glock model 22, .40-caliber pistol loaded with seven live rounds.

Near the location where Cleveland had run after the crash, the police recovered six .38-caliber expended casings of various brands (Hornady, GFL, and Winchester).

Near the location where Officer Aguilar had observed a gun being tossed from the Chevy Cruze, the police recovered a Taurus revolver loaded with six live .38-caliber Hornady brand bullets.

At or near Beverly's home, the police recovered: (1) one spent bullet on a bedroom floor of Beverly's home, (2) several bullet marks on the exterior of Beverly's home, (3) a spent bullet found in the front of the next door home, and (4) six .40-caliber expended casings on 70th Street.

From the autopsy, two spent bullets were recovered from Ford's body.

The Scientific Evidence

Criminalists conducted firearms tests with the recovered physical evidence. Criminalists opined as follows:

(1) The Rossi had fired the bullets that killed Ford.

(2) Neither the Glock nor the Taurus was the murder weapon.

(3) The Rossi had fired the six .38-caliber expended casings found near the location where Cleveland had run after the crash.

(4) The Glock had fired the six .40-caliber expended casings on 70th Street.

The Prosecution's Gang Evidence

The prosecution presented several gang experts including Detective Marlon Prodigalidad and Officer Michael Barragan of the Los Angeles Police Department. Prodigalidad opined that Thomas, Cleveland, and Lenoir are members of Eight Trey Gangster Crips and that Ritchie is a member of Hoovers. Both Prodigalidad and Barragan opined, Eight Trey Gangster Crips and Hoovers are allies and consider Neighborhood Crips a common enemy.

On gang territory, both Barragan and Prodigalidad opined Beverly's home near the corner of Budlong Avenue and 70th Street is located in Neighborhood Crips’ gang territory, although some law enforcement created gang maps say otherwise. They both opined the shooting at Beverly's home was for the benefit of, and, in association with, a criminal street gang.

The Defense Case

Thomas, Ritchie, and Lenoir took the stand to testify. Cleveland did not.

Thomas's Testimony

Thomas grew up in Eight Trey Gangster Crips’ territory and hung out with them since about 14 or 15 years old. He was never officially "jumped-in." Thomas and Ritchie are childhood friends. He met Lenoir through his younger brother. Thomas made money from high school to the present time by selling drugs. He moved to Las Vegas, Nevada in 2013.

The day before the incidents, on May 22, 2015, Thomas drove to Los Angeles with Ritchie and Lenoir to conduct a drug transaction as a middleman. Thomas went to an apartment building on 79th Street and Normandie to buy Xanax. While there, he saw Cleveland who asked for a ride. Thomas had met Cleveland once before years prior.

When Thomas drove the vehicle, Ritchie sat in the front passenger seat, Lenoir sat behind Thomas who drove, and Cleveland sat behind Ritchie. When Thomas got to 70th Street, he heard gunshots real close but did not know where the shots were coming from. Cleveland yelled, "Let me out, go back, or something." Cleveland got out of the car and started shooting. No one else fired a gun.

Cleveland got back into the car. Everyone was arguing. Thomas stopped the car to calm down and to confront Cleveland on what he had done. Cleveland got out of the car with a gun in hand. Thomas saw him grab Ford telling him to "give up something." He saw Cleveland shoot Ford two times, once to the head, the other to the chest. Thomas drove away with all four in the...