People v. Wiley

THE PEOPLE, Plaintiff and Respondent, v. TERRANCE WILEY, Defendant and Appellant.

F077587

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

December 1, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF170838A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

This case arises from what the prosecution theorized was a gang-related shooting death. The jury rejected the allegation that the murder was willful, deliberate and premeditated, but convicted defendant Terrance Wiley of second degree murder (Pen. Code, §§ 187, subd. (a), 189, subd. (b); count 1),¹ shooting at an occupied vehicle (§ 246; count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3), and reckless evasion of a peace officer (Veh. Code, § 2800.2; count 4).² The jury found true that as to counts 1 and 2, defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (d)); and as to counts 1, 2 and 3, defendant committed the crimes for the benefit of, at the direction of or in association with the Country Boys Crips (CBC) criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, the jury found true that defendant had a prior felony conviction for first degree burglary, within the meaning of the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)

On count 2, shooting at an occupied vehicle, the trial court sentenced defendant to an indeterminate term of 74 years to life in prison under section 186.22, subdivision (b)(4)(A).³ On count 1, the court imposed an indeterminate term of 15 years to life for murder, doubled to 30 years under the Three Strikes law, plus an additional 25 years to life for the firearm enhancement and five years for the serious felony conviction enhancement, stayed under section 654. On count 3, the court imposed the upper term of three years for being a felon in possession of a firearm, doubled to sixyears, plus an additional four years for the gang enhancement, stayed under section 654. Finally, on count 4, the court sentenced defendant to a consecutive upper term of three years for reckless evasion, doubled to six years.⁴

On appeal, defendant claims that the jury's gang enhancement findings are not supported by substantial evidence. He also claims that the trial court erred when it denied his motion to bifurcate the gang enhancements and erred under Evidence Code section 352 with respect to the admission of gang rap videos, the two predicate offenses committed by him and photographs of the victim's body; and that, cumulatively, these errors violated his right to due process and a fair trial. Finally, defendant seeks remand to allow the trial court to consider whether to strike the prior serious felony conviction enhancement imposed under section 667, subdivision (a)(1) under Senate Bill No. 1393. (Stats. 2018, ch. 1013, §§ 1-2, pp. 1-6 (Senate Bill No. 1393 or Sen. Bill No. 1393).)

The People offer no concessions and argue that remand under Senate Bill No. 1393 would be futile given the trial court's comments during the sentencing hearing.

As to counts 1 through 3, we agree with defendant that the evidence is insufficient to support the jury's findings that he committed the crimes for the benefit of or in association with the CBC. However, we reject his claims of error with respect to bifurcation of the gang enhancements and admission of the gang rap videos, the two predicate offenses he committed, and the photographs of the victim's body, which also forecloses his claim of cumulative error. Because this matter must be remanded for resentencing given reversal of the gang enhancements on counts 1 through 3, the parties'dispute over the propriety of remand under Senate Bill No. 1393 is moot and we do not reach the issue.⁵

FACTUAL SUMMARY

I. Shootings

Kenneth Cannon, Charles Richards, and Charles Tomlin, all of whom were in their 40's, grew up together in Bakersfield. Cannon and Richards also previously worked together in construction and they acknowledged some acquaintance with defendant: Cannon said he had seen defendant around the neighborhood before and Richards said he recognized defendant because their mothers were good friends. Earlier in the evening of January 5, 2018, a group, including Richards, gathered at a house for a party. Although Richards stated at trial that he was drinking that night and no longer remembered who was there, he previously told police that Tomlin, known to Cannon and Richards as "99," and defendant, known to Richards as "Tater," were among those who attended the party.

Later that night, Cannon and Richards both went to the Westfair Lounge (hereinafter the bar) in Bakersfield, each testifying he arrived alone. Richards drove his mother's gold Chevy Impala with tinted windows and parked across the street from the front of the bar.⁶ Tomlin and defendant also showed up at the bar.

Cannon, who frequented the bar most Saturday nights, saw Bruce Hollis there that night. Cannon knew Hollis because Hollis, then in his 50's, had served time in prison for killing Cannon's cousin in 1988. Cannon testified that he approached Hollis and said, "'I forgive you for what you did to my cousin 20 years ago.'" Hollis invited him to gooutside to the smoking area and talk, but he declined because it "[d]idn't feel right." Hollis kept following him around the bar trying to talk to him, however.

Tomlin also knew Cannon's late cousin. After Tomlin arrived at the bar, Cannon told Tomlin and several women that Hollis was the one who killed his cousin. Cannon testified that after he and Tomlin went outside to smoke in front of the bar, Hollis again approached and tried to talk to him. Cannon and Tomlin both told Hollis that Cannon did not want to talk to him, and Tomlin punched Hollis. Hollis then drew a handgun and shot Tomlin eight times, killing him.

After he shot Tomlin, Hollis calmly walked to his vehicle parked in the bar's parking lot. After Hollis backed out of the parking space to leave, someone stood up from a crouched position and shot Hollis six times through the driver's side of his vehicle. Although fatally wounded, Hollis was able to drive out of the parking lot, hitting another patron's vehicle in the process, and proceed about one-quarter of a mile before his vehicle veered off the road and down an embankment, coming to rest against a cement retaining wall. Hollis was found slumped over in the driver's seat, deceased. There was a .40-caliber pistol on the floorboard next to his left foot and a concealed carry holster with an extra ammunition magazine sitting on the transmission hump between the driver and passenger seats.

When officers with the Bakersfield Police Department (BPD) responded to the bar, Cannon and an unidentified man were performing CPR on Tomlin, who was lying on the ground in front of the bar surrounded by a crowd of people. Seven spent shell casings were recovered from the front of the bar where Tomlin was shot, and seven spent shell casings were recovered from the parking lot where Hollis was shot.⁷

II. Flight from Scene

Several people called 911 to report the shootings. An unidentified female caller reported Hollis's shooting in the parking lot and described the shooter as a Black male on foot dressed in black and wearing a black "hoodie." An unidentified male caller reported Tomlin's shooting in front of the bar. He did not mention a second shooting, but reported that a Black man "left from there right away[]" in a gold car, possibly a Grand Am, and headed eastbound. Officer Mueller was two miles from the bar when he saw a gold sedan on eastbound Wilson Road waiting at a red light to turn left onto Union Avenue.

Aware of the report that a gold sedan fled eastbound from the scene of the shootings, Mueller made a U-turn in his patrol vehicle to follow the sedan. The driver of the gold sedan then ran the red light and proceeded northbound with Mueller in pursuit. The driver ran several stop signs and reached speeds of more than 100 miles per hour in 30-mile-per-hour zones. The vehicle slowly came to a rest after becoming airborne and landing hard on all four wheels. As soon as the vehicle came to a rest, defendant got out and surrendered without incident. No one else was in the car.

The sedan, a gold Impala, was registered to either Richards or his mother.⁸ Inside the sedan, police found a black ZTE cell phone on the driver's seat, which was later linked to defendant's sister through phone records.⁹ An orange sweatshirt and a black beanie with a "Soul Fresh" logo were on the front passenger floorboard, and a black hooded sweatshirt was on the rear passenger floorboard. Richards, who worked in construction, said the sweatshirt was probably his for work, but he denied the beanie and black sweatshirt were his. There was no firearm on defendant or in the sedan, and policedid not find anything when they searched around the bar and along defendant's flight route.

III. Shooter's Identity

The main issue at trial was the identity of the man who killed Hollis. At the time of his arrest, defendant, who is Black, was wearing a black T-shirt with a large graphic on the front that included a lot of white in the design; shorts with what a detective described as a dark camouflage pattern; black socks; and athletic shoes that had a lot of...