People v. Webb

1

THE PEOPLE, Plaintiff and Respondent, v. DANNY WEBB, JR., Defendant and Appellant.

A165262

California Court of Appeals, First District, Fifth Division

December 21, 2023

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. 20-CR-007928

SIMONS, ACTING P. J.

Danny Webb, Jr., (appellant) appeals from his convictions following a jury trial, for murder and related charges. He argues the trial court erred in instructing the jury and in an evidentiary ruling involving lyrics found on appellant's cellphone. We affirm.

BACKGROUND

The Oakland Shooting

On April 17, 2020, the victims, Justin Esco, Dontaye T., Deonte M., and Brandon L., drove from Bakersfield to Oakland, where Dontaye T. planned to buy marijuana. Upon arriving in Oakland, the group parked at a 76 gas station located near 98th Avenue and Edes Avenue. Dontaye T. learned that his marijuana contact was out of town and so he reached out to others including Demarya V., to arrange an alternative plan. Eventually, Demarya V. told Dontaye T. he had arranged a deal and led them several blocks away to a car wash located next to a Shell gas station at Golf Links Road and Mountain Boulevard.

Surveillance videos from the car wash and Shell station were played for the jury. Shortly before Demarya V. and the victims arrived a black sedan parked across the street from the car wash and turned off its lights. A white truck and a silver car that had arrived with the black sedan were parked nearby but out of sight. Around 10:30 p.m., Demarya V. parked on the street in front of the car wash, leaving space in front of him. Esco, who was driving the victims' car, parked directly in front of Demarya V.

Shortly after they arrived, Demarya V. pulled his car alongside the victims' car and said through the open window," 'The weed about to be here.'" The white truck pulled up directly behind Demarya V.'s car. As Demarya V. drove away, a man exited the truck's front passenger seat and opened fire on the victims' car. Another passenger started shooting from inside the white truck, and two people exited the black sedan parked across the street and also began shooting at the victims' car. Deonte M., seated behind the driver's seat of the victims' car, fired a gun over his shoulder through the back of the car.

Esco died from multiple gunshot wounds. Deonte M. was injured in the shooting. When the assailants stopped firing and the white truck and black sedan drove off, Deonte M., Brandon L., and Dontaye T. got out of their car and ran to the Shell station next door. Shortly after they reached the Shell station, shots were fired at them from a silver car driving by.

There was no evidence of appellant's blood, DNA, or fingerprints at either shooting scene.

Appellant is Left at Kaiser Richmond Hospital

At about 11:00 p.m. on April 17, 2020, a black sedan sped into the Kaiser Richmond parking lot. A man in his 20's got out, pulled appellant out of the car, and said he needed help. The man got back in the car and the black sedan drove off. Appellant had no identification or phone on him.

Surveillance video of the hospital parking lot and entrance was played for the jury. Shortly after the black sedan arrived, a white truck and a silver car also entered the hospital parking lot and waited near the black sedan. The black sedan then drove off, followed by the white truck and silver car.

Appellant had been shot in the chest and was unresponsive. He was hospitalized for over a week.

Cellphone Evidence

About five months before the shooting, appellant gave a phone number with a 707 area code as his personal number to a government agency. When appellant was arrested on May 28, 2020, he had the 707 cellphone and another phone on his person. The 707 cellphone had self-portraits of appellant and a photograph of appellant's debit card stored on it.

On the night of the shooting, at about 9:49 p.m., the 707 phone connected to a cell phone tower near the 76 gas station where the victims initially stopped. At about 10:35 p.m., the phone connected to a tower approximately three blocks from the car wash where the shooting occurred. Between 11:15 p.m. and 12:54 a.m., it connected to a tower near Kaiser Richmond.

Service for the 707 number was terminated on April 22, 2020, a few days after the shooting. On April 28, 11 days after the shooting, appellant informed a government agency that he had a new personal phone number.

Additional Evidence

Deonte M.'s sister had a child with appellant and Deonte M. testified he and appellant had a good relationship. Dontaye T. and Brandon L. testified they did not know appellant. Photographs of Esco's older brother and two other people known to associate with Esco were on the 707 phone associated with appellant. Appellant was living in Vallejo at the time of the shooting, and Esco, Deonte M., and Dontaye T. all had ties to Vallejo.

On the night of the shooting, Aaron C. was sleeping in his vehicle outside the Shell station when he was awakened by the gunfire. He looked past the Shell station and saw a person near the driver's side of a white pickup truck with tattoos on his hand firing a gun, then getting back into the truck. Aaron C. thought this man had been shot. When Aaron C. contacted the police after the shooting, he selected appellant's photograph as looking similar to the man he saw, but at trial he testified that the person in the photograph had a darker complexion than appellant.

Vandy Webb, appellant's wife, testified that in April 2020 they had been dating for years but were not yet married.^[1] Around 11:00 p.m. on April 17, 2020, Vandy received a call from appellant and, based on that conversation, she immediately drove from her home in Sacramento to Kaiser Richmond. Phone records showed that at 11:34 p.m. (when appellant was being treated at the hospital and did not have his phone), the 707 cell number was used to make a call to Vandy lasting several minutes. Records also showed numerous text messages exchanged between the 707 phone and Vandy's phone on April 18. At trial, Vandy testified she did not remember who the call or texts were with or what the communications had been about.

Verdict and Sentence

The jury found appellant guilty of the first degree murder of Esco (Pen. Code,^[2] § 187, subd. (a)); three counts of attempted murder of Deonte M., Dontaye T., and Brandon L., respectively (§§ 664, 187, subd. (a)); shooting at an occupied motor vehicle (§ 246); carrying a loaded firearm (§ 25850, subd. (a)); and possession of a firearm by a prohibited person (§ 29800, subd. (a)(1)).

As to the murder count, the jury found true allegations that appellant caused great bodily injury or death (§ 12022.7, subd. (a)), personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and personally used a firearm (§ 12022.5 subd. (a)). As to the counts of attempted murder of Deonte M. and shooting at an occupied motor vehicle, the jury found true allegations that appellant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and personally used a firearm (§ 12022.5, subd. (a)).

As to the attempted murders of Dontaye T. and Brandon L., the jury found true that appellant personally used a firearm (§ 12022.5, subd. (a)), but found not true that appellant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)).

The trial court sentenced appellant to an aggregate term of 71 years to life in state prison.

DISCUSSION

I. Trial Court's Response to Jury Question

Appellant argues the trial court's response to a jury question during deliberations was both an improper ex parte communication and instructional error. We conclude the instruction was erroneous but find the error harmless.

A. Additional Background

During deliberations, the jury sent the following question: "Does aiding and abetting apply to the portion of 'count 1' stating: [¶] '. . . the defendant personally discharged a firearm and caused great bodily injury or death to Justin Isaiah Esco within the meaning of Penal Code [s]ection 12022.53(d).' "^[3]The court responded, "Yes."

Defense counsel moved for a mistrial, arguing the response constituted an improper ex parte communication between the trial court and the jury because counsel did not have the opportunity to respond to the court's proposed response before it was submitted to the jury. Defense counsel further argued the response provided was erroneous.

The court stated counsel for both parties and the court had previously agreed that the court would notify counsel of any jury questions and, "if [counsel] wanted to respond in a timely fashion, the Court would consider that." After the court provided e-mail notification to counsel of the question at issue and "[h]eard no response for over 10 minutes," the court provided the response to the jury.^[4] The court further found the instruction provided was correct, and denied the motion for mistrial.

B. Instructional Error

On appeal, appellant renews both challenges to the instruction. We need not decide whether the response was an improper ex parte communication because we find the instruction provided was erroneous.

Section 12022.53, subdivision (d) (hereafter section 12022.53(d)) provides, in relevant part, "a person who, in the commission of [specified felonies, including murder], personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to a person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."

Appellant argues there is no aiding and abetting liability for section 12022.53(d). We agree. As appellant notes, section 12022.53,...