People v. Wilson

1

THE PEOPLE, Plaintiff and Respondent, v. KENNETH MICHAEL WILSON et al., Defendants and Appellants

B322501

California Court of Appeals, Second District, First Division

March 1, 2023

NOT TO BE PUBLISHED

APPEAL from judgments of the Superior Court of Riverside County No INF1500163, Johnnetta E. Anderson, Judge. Affirmed as modified with directions (as to appellant Kenneth Michael Wilson); conditionally reversed with directions (as to appellant Jesse Keith Cottom).

Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth Michael Wilson.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Jesse Keith Cottom.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser and Alan Amann, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, P. J.

In January 2015, appellant Kenneth Michael Wilson, his older brother Wayne Wilson, and appellant Jesse Keith Cottom^[1]planned to sell fake cocaine to an acquaintance. This ultimately resulted in Jesse fatally shooting the acquaintance in the neck. At the time of the incident, Jesse was 17 years old and Kenneth was 20 years old. A jury convicted Kenneth and Jesse of felony murder and attempted robbery.

We conditionally reverse the judgment against Jesse pending the outcome of a new juvenile court transfer hearing pursuant to newly amended but retroactive Welfare and Institutions Code section 707, at which the juvenile court shall determine whether he should be tried in adult criminal court.

We modify the judgment against Kenneth to require a Penal Code section 3051^[2] youth offender parole hearing in Kenneth's 25th year of incarceration, and further instruct the court to gather evidence in anticipation of that hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261, 283 (Franklin). We do so because we agree with Kenneth that section 3051 subdivision (h) violates the equal protection clause to the extent it denies youth offender parole hearings to those who committed life-without-parole (LWOP) offenses while between the ages of 18 and 25 years but guarantees such hearings for 18- to 25-year-olds who commit offenses that result in the functional equivalent of LWOP. (See § 3051, subds (b)(4) &(h).)

We reject the other constitutional challenges and arguments of trial error raised by either Kenneth or Jesse.^[3]Specifically: (1) Jesse contends that the prosecutor engaged in misconduct during her closing argument by impugning the character and credibility of defense counsel; (2) Kenneth contends that substantial evidence does not support that he acted with the "reckless indifference to human life" necessary to support the felony murder conviction against him^[4]; (3) Kenneth contends that the trial court reversibly erred in admitting evidence of Kenneth's involvement in a later, unrelated robbery to prove intent to rob in the instant case; (4) Kenneth and Jesse both challenge the statute under which they were sentenced (§§ 190.2 & 190.5, respectively) as violating constitutional prohibitions on cruel and unusual punishment; (5) Kenneth challenges his LWOP sentence as cruel and unusual because it is disproportionate to his culpability for the murder; and (6) Kenneth contends that section 190.5 violates the equal protection clause. None of these arguments warrant relief on appeal.

Lastly, we agree with the parties that the restitution order must be modified, certain fees imposed on Jesse canceled, and that Kenneth should receive presentence custody credits.

FACTS AND PROCEEDINGS BELOW

A. Background: Individuals and Witnesses Involved

In 2019, the Riverside County District Attorney charged Kenneth and Jesse with first degree felony murder and attempted robbery. Both counts also alleged that Jesse personally discharged a weapon causing death (§ 12022.53, subd. (d)), and that Kenneth was a principal armed with a firearm (§ 12022, subd. (a)(1)).

The events relevant to these charges involved a group of adolescent males, comprised of then 20-year-old Kenneth, Kenneth's older brother Wayne, Kenneth's neighbors Miguel "Mike" Ramirez and his brother Lorenzo Ramirez, then 17-year-old Jesse, and Jesse's younger brother Justin Cottom. Around the time of the crimes at issue (January 2015), this group regularly gathered in the driveway of Mike and Lorenzo's home in La Quinta Cove, which was across the street from Kenneth and Wayne's home. There were surveillance cameras on Mike and Lorenzo's home.

Adrian Vivas and Bradley Olds also had been part of this group at one point, and occasionally joined the others in front of Mike's house.

Dylan Sniffin, a friend of Adrian's who lived outside La Quinta Cove, was acquainted with Jesse and Mike from juvenile hall. His cousin, Ryan Sniffin, is the victim of the crimes at issue.

B. January 30, 2015 Fake Drug Deal

Around the end of January 2015, Ryan asked his cousin Dylan if Dylan could connect Ryan with someone to buy an ounce of cocaine. Dylan thought of Jesse, and Jesse and Ryan arranged to meet on January 30.

At 5:22 p.m. that day, Jesse texted Ryan, "come around 6:30." At 5:52 p.m., Jesse called Ryan, and at 5:59 p.m., Jesse texted Ryan and arranged to meet at "51960 Ramirez" in La Quinta Cove.

Around 6:19 p.m., Ryan drove his car to the agreed-upon address, taking with him Dylan and Ryan's roommate Noel Reimers. Once there, Noel knocked on the door of the home, which appeared to be vacant, but no one answered. She then returned to the car and sat in the front passenger seat. Dylan sat in the back seat. At 6:19 p.m., Ryan texted Jesse, "What's up, man?" At 6:22 p.m., Ryan called Jesse.

Surveillance footage shows Jesse standing in Mike and Lorenzo's driveway at 6:26 p.m. and Kenneth riding up to him on a mountain bike, wearing a sweatshirt.^[5] At 6:27 p.m., both rode their bikes down the driveway and in the direction of the crime scene.

At 6:31 p.m., Ryan texted Jesse, "Hey, I got to get headed up the hill." Soon thereafter, Dylan saw three bike riders wearing hooded sweatshirts ride past the car in which Dylan, Ryan and Noel were sitting.

What happened over the course of the next few minutes- the specific circumstances under which Jesse shot Ryan, and what Kenneth was doing when this happened-was the subject of conflicting testimony at trial, which we outline in more detail in the following section.

By 6:38 p.m., Noel and Dylan called 911 on a cell phone, and Dylan told the 911 operator that Jesse had shot Ryan.

A few minutes later, at 6:40 p.m., surveillance footage shows someone running up Mike's driveway. Moments later, surveillance footage shows a person riding down the driveway on a bicycle and to the north and the person who ran up the driveway walking south. At 6:47 p.m., Mike appears in his driveway. At 6:53 p.m., a female walks up the driveway. At 6:58 p.m., Mike walks south. At 7:21 p.m., a person walks, then runs, south.

At the scene of the homicide, in the trunk of Ryan's car, the police found a jacket stained with what appeared to be blood. A pocket contained a gray case holding six little baggies of white powder. A test of the powder taken at the scene was negative for methamphetamine or cocaine. Police also found $555 in cash on the floorboards inside the car and a cigarette butt on the ground by the driver's door. The parties stipulated that forensic testing of the cigarette butt detected male DNA that was not Kenneth's.

Ryan died later that night from the gunshot wound.

C. Evidence at Trial Regarding Circumstances of Ryan's Death

The evidence presented at trial included testimony and other evidence establishing the general sequence of events, which we summarized above. It also included testimony presenting conflicting accounts of what happened between the time Dylan saw three individuals in hoodies approaching Ryan's car and the time Jesse shot Ryan.

1. Dylan's Eyewitness Testimony Suggesting Kenneth Was Not Near Jesse at the Time of the Shooting

The only witness to the shooting who testified at trial was Dylan, Ryan's cousin, called by the prosecution. Dylan testified that, after seeing the three individuals in hoodies drive past on bikes, "one stayed at the top of the street . . . [then] two of them rode down, and one rode back up, which was Jesse. And he rode up to . . . the car." The individual who rode back down did not come to the car with Jesse, but instead waited behind a car at a nearby intersection at the top of the street. Dylan described this rider as being more heavy set than the others, and subsequently identified him as Mike, whom Dylan knew from juvenile hall. Dylan was not sure whether the third rider waited at the top of the street or went elsewhere.

Dylan testified that Jesse, alone, rode his bike to the driver's side of the car. Ryan opened his door but stayed seated inside. Dylan got out of the car and shook hands with Jesse. Jesse "got to business" and handed Ryan two baggies of white powder. Ryan opened one of the baggies, examined it, then gave it back. He told Jesse," 'Let me know if . . . you get some better stuff.'" They said, "Later" and Ryan said, "Bye."

Dylan got back in the car and Ryan closed his door as Jesse rode his bike to the intersection. Jesse then got off his bike and walked back to Ryan's car with his hand in his sweatshirt pocket. The car windows were open. Pulling a gun from his pocket, Jesse told Ryan, "What's up. Give me all your money," and pointed the gun at him. Jesse's hand was shaking. When he touched Ryan's head and neck with the gun, Ryan pushed the gun away. Jesse fired a shot into Ryan's neck.

Jesse fled as Ryan screamed and...