The People v. Burks

1

THE PEOPLE, Plaintiff and Respondent, v. OHMAD RASHAD BURKS, Defendant and Appellant.

A163740

California Court of Appeals, First District, Third Division

August 24, 2023

NOT TO BE PUBLISHED

(Contra Costa County Super. Ct. No. 5-131405-3)

Fujisaki, J.

Ohmad Rashad Burks appeals from the denial of his petition for resentencing pursuant to Penal Code section 1170.95, now section 1172.6.^[1]Burks was convicted of first degree murder second degree robbery, and shooting at an occupied vehicle. On appeal, Burks argues his petition should have been granted because the court previously set aside gang-murder and felony-murder special circumstances allegations pursuant to section 995 after finding the prosecution presented insufficient evidence that Burks acted with intent to kill or reckless indifference to human life. He also argues that the People are collaterally estopped from contesting the court's section 995 determination and that substantial evidence did not support the conclusion that he was a major participant in the robbery at issue or that he acted with reckless indifference to human life.

Burks's contentions regarding the trial court's prior determination under section 995 and its purported collateral estoppel effect are without merit. But, as the People concede, the court should have considered Burks's youth as a factor when determining whether he acted with reckless indifference to human life. (In re Moore (2021) 68 Cal.App.5th 434, 454 (Moore).) For this reason, and without suggesting any opinion as to the ultimate outcome, we will remand for the court's consideration of all relevant factors consistent with prevailing law. (People v Jones (2022) 86 Cal.App.5th 1076, 1079 (Jones).)

Factual and Procedural Background

A. The Underlying Crimes and Procedural History

We begin with an overview of the crimes and the proceedings leading to Burks's sentence. Preliminarily, we grant Burks's unopposed request for judicial notice of our own records and files in the prior joint appeal of Burks and Clarence Cater (People v. Cater (May 29, 2019, A146678) [nonpub. opn.] (People v. Cater)), which we have reviewed.

Burks and co-defendant Cater were charged by information with murder (§ 187), second degree robbery (§§ 211, 212.5), and shooting at an occupied vehicle (§ 246). The People further alleged gang and weapon enhancements as to each count (§§ 186.22, subd. (b)(1), 12022.53, subds. (b)-(e)). In the midst of jury selection, the People filed an amended information adding felony-murder and gang-murder special circumstance allegations against both Burks and Cater (§ 190.2, subd. (a)(17) &(22)). Burks filed a section 995 motion to set aside the special circumstance allegations, which the court granted in the midst of trial.

In ruling on that section 995 motion, the trial court considered only the preliminary hearing transcript. The court set aside the felony-murder and gang-murder special circumstance allegations as to Burks after finding the transcript lacked substantial evidence showing that Burks-who was not the actual killer-specifically intended to kill the victim or acted with reckless indifference to human life. (§ 190.2, subds. (a)(17), (a)(22), (c), (d); People v. Estrada (1995) 11 Cal.4th 568, 572; People v. Mejia (2012) 211 Cal.App.4th 586, 611.)

The following is a summary of the trial evidence taken from our previous opinion, People v. Cater, supra (all footnotes omitted).^[2]

"Burks was a founding member with his brothers of a rap group called 'Knockin' Niggas Instantly,' or 'KNI.' Burks used the KNI moniker of 'Poo' or 'Pooh.' KNI soon morphed into a criminal street gang, with its members engaging in crimes including robbery and assault. Young gang members were known as 'baby KNI,' and members' girlfriends were known as 'Knockin' Bitches Instantly,' or 'KBI.' Cater and J.E. (a minor at the time of the charged crimes) were also KNI members, with Cater using the moniker 'Kayta.'

"On September 7, 2012, Dayvon George and his brother W.G. (collectively, the brothers) were at Buchanan Park in Pittsburg filming a music video for their rap group, MIA Boys (MIA). Music video producer T.L. had posted an open invitation to the video shoot on social media, and a group of people had gathered, including several children who planned to be in the video. Although MIA was not a gang, it had conflicts in the past with KNI. In particular, just a few weeks prior, the brothers and KNI had a confrontation at a Chuck E. Cheese's restaurant after Dayvon confronted Cater and accused Cater of jumping him on a prior occasion. At the time, W.G. heard Cater yelling something about KNI.

"Also present at Buchanan Park on September 7 were defendants, J.E., and Burks's off and on girlfriend, K.L. Earlier, a friend had driven Burks and K.L. to Antioch, [and] Burks obtained a gun from his brother. At about 4:00 p.m., Burks spoke by phone with J.E.'s mother, T.R., and told her he would be meeting up with J.E. shortly. T.R. then called J.E., who told his mother he would be at the park for a rap shoot. Burks and K.L. picked up Cater and J.E. on their way back to the park. Once there, the group talked about MIA, with Burks telling K.L., 'We about to handle something, stay up here.' J.E. announced, 'I'm about to rob these niggas.' Shortly after, at about 6:00 p.m., Cater, Burks and J.E. walked down the hill where they had congregated toward the parking lot where MIA was filming the music video.

"After descending the hill, the three men confronted the brothers, with one of them asking, 'Do you remember me?' T.L., the music producer, asked whether the men would like to join the video. Burks responded, 'I ain't down here for none of that.' The brothers and their friend B.D., who was also present, were concerned and tried to leave, prompting Burks to reveal the gun in his waistband and warn, 'Don't do nothing stupid.' According to B.D., someone said, 'Don't get in the car or it's going to be bad.' Burks then told B.D. not to try anything 'funny' or he would 'knock you down.' At that point, W.G. or Dayvon had T.L. drive the children who were present away in his car.

"Turning to J.E. and Cater, Burks then asked, 'What y'all trying to do? Because I'm done talking.' J.E. demanded that W.G. turn over his chain necklace and watch, which he did. Cater pulled out his gun, telling W.G. that he would shoot him and kill his brother. Dayvon tried to swat the gun away. He then took off running as Cater began shooting.

"Cater chased Dayvon and continued to fire shots, while Burks chased W.G. According to D.P., who was seated in his car in the parking lot waiting on his elderly mother, Cater fired at least three shots. D.P. looked up after hearing a 'pop' and saw Dayvon run by followed by Cater, who was tracking Dayvon with his gun. D.P. then saw Cater point his gun in his direction and fire, at which point D.P.'s passenger window shattered. The window glass cut D.P.'s arm, causing a wound not requiring medical attention. Dayvon died in the parking lot shortly afterward from two gunshot wounds. A 'very upset' witness on the scene 'scream[ed] that his friend had been shot,' saying 'over and over again' that 'KNI killed him ....'

"After the shooting, Burks retreated from the parking lot back up the hill. Burks gave K.L. his gun, sweater and hat, which she took as she left the park. Burks then called A.F., mother to one of his children, who took him into her home. Burks and Cater 'probably' spoke by phone. Cater then later arrived at A.F.'s house, requesting two bottles of water.

"Six days later, Burks contacted the police and gave an interview. Initially, he denied having a gun at the park but later acknowledged having one. Burks also denied arriving at the park with J.E. and Cater.

"Burks later testified at trial and several times contradicted his earlier statements to police. Burks denied that KNI was a criminal street gang and that he had planned to rob or kill the brothers. He also denied being friends with J.E. and claimed not to get along with Cater. He insisted that he accompanied the men to the parking lot at the park to keep them out of trouble; he did not know Cater had a gun. Nor did he know either man had a plan to kill or rob the brothers.

"K.L. was also interviewed by the police and later testified at trial. Like Burks, K.L. first claimed Burks was unarmed and arrived separately at the park from Cater and J.E. She later acknowledged Burks had asked her to lie about the gun and told the police where she had hidden it. At trial, K.L. acknowledged Burks, Cater and J.E. were KNI gang members and that Burks was a KNI leader, Cater a junior member, and J.E. a 'baby KNI.' She described KNI as like a family, with its members looking out for each other."

The jury was instructed on murder and felony-murder principles. The jury was instructed that if it concluded the defendants committed murder, it was first degree murder under the following circumstances: if the defendants caused a person's death while committing and intending to commit a robbery, or if a defendant who did not personally commit robbery, aided and abetted and intended to aid and abet a robbery where a perpetrator caused another person's death.

The jury convicted Burks and Cater of first degree murder and the remaining counts, and found all enhancements true. As to Cater, the jury found true the felony-murder and gang-murder special circumstances (§ 190.2, subd. (a)(17) &(22)). The trial court sentenced Burks to prison for 50 years to life. This court affirmed Burks's convictions in 2019, though we remanded for resentencing due to legislative amendments giving the trial court authority to strike or dismiss the firearm enhancements imposed against defendant, and to...