People v. Myers

• Decision Date: 17 December 1997
• Docket Number: No. B106076,B106076
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 9460, 97 Daily Journal D.A.R. 15,185 The PEOPLE, Plaintiff and Respondent, v. Cartez Rodney MYERS, Defendant and Appellant.

Page 889

69 Cal.Rptr.2d 889

59 Cal.App.4th 1523, 97 Cal. Daily Op. Serv. 9460,

97 Daily Journal D.A.R. 15,185

The PEOPLE, Plaintiff and Respondent, v. Cartez Rodney MYERS, Defendant and Appellant.

No. B106076.

Court of Appeal, Second District, Division 3, California.

Dec. 17, 1997.

Certified for Partial Publication. ^*

Review Denied March 25, 1998. ^**

[59 Cal.App.4th 1525] Susan S. Bauguess, under appointment by the Court of Appeal, Running Springs, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Lance E. Winters, Deputy Attorney General, and Suzann E. Papagoda, Deputy Attorney General, for Plaintiff and Respondent.

ALDRICH, Associate Justice.

This case involves a drive-by shooting. Appellant and defendant Cartez Rodney Myers appeals from the judgment entered following a jury trial which resulted in his conviction of first degree murder and two counts of attempted murder. Appellant was sentenced to a prison term of 25 years to life, plus a consecutive life term, plus 12 years.

In the published portion of this opinion (Sections I., II.A., and III.) we address appellant's contention that Penal Code section 654 bars the imposition of the Penal Code section 12022.55 enhancement on the first degree murder conviction.

In the unpublished portion of this opinion (Section II.B. and II.C.) we address appellant's contentions that (1) there was insufficient evidence to support the two attempted murder convictions; and (2) there was insufficient evidence to support the jury's finding on the Penal Code section 12022.55 enhancement. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts.

On September 8, 1995, appellant and Maurice Williams were on Wilmington Avenue in a black Chevrolet Beretta when "Greg" shot at them. Williams and appellant were members of the Palmer Block Crips. They believed Greg was a member of a rival gang, the Cedar Block Piru gang.

At approximately 6:30 p.m. that evening, appellant and Williams returned to the same neighborhood where the shooting had occurred. Williams drove the Beretta. Appellant, who was in the passenger seat, carried a loaded AK-47-type assault weapon.

At that time, Bernard Thomas had gone to visit his girlfriend, Bonija Fair, who lived at 634 Poplar Street, Compton. Accompanying Thomas was his friend, Garlon Robinson. Thomas and Robinson had driven in an Oldsmobile Cutlass to visit Fair. They parked the Cutlass on the south side of Poplar Street. Robinson stayed in the car, sitting in the front passenger seat. Thomas got out of the Cutlass and sat on the passenger side of its front hood. Fair saw Thomas and Robinson arrive; she walked toward them and stood near the Cutlass, facing Thomas. Fair stood about a foot away from Thomas.

Williams drove the Beretta by Thomas, Robinson and Fair. Appellant fired out of the passenger window four or five times towards Thomas, Robinson and Fair. Thomas was hit on his right side. ¹ Fair was struck in the right side of her back; she subsequently died from the wounds she received. Robinson, who had been leaning down, turning dials on the radio, was unhurt.

Compton Police Officer Jose Velasco and his partner Officer Robert Labarge were in the area. They heard gunshots and saw the Beretta, speeding. The Beretta's driver's wing window was shattered. Appellant and another black male were inside. As the Beretta raced away, it ran a stop sign, spun around and changed directions. Appellant threw an AK-47 style assault weapon out the passenger's window. The officers stopped, retrieved the weapon, and then continued to follow the Beretta.

Appellant and Williams exited the Beretta and ran. Williams was not located. With the assistance of a police helicopter, appellant was found under a van. Appellant resisted arrest; a number of officers forced appellant to the ground. Appellant continued to resist, kicking his feet and moving his arms. An officer hit appellant with a baton. Eventually, appellant was subdued and arrested.

While being escorted to the police car, appellant made a statement to Officer Velasco. Appellant admitted throwing the weapon out of the car, but stated he had not done the shooting. Appellant said that earlier in the evening, he and Maurice Williams had been involved in a confrontation with some Cedar Block Piru gang members.

At the police station, appellant spoke with Detective David Smith and other officers. After being read his rights, appellant gave a videotaped interview, which was played to the jury. ² During this videotaped interview, appellant said the officers had not promised him anything for making the statement, nor had they threatened him. He also stated the following. The shooting was a pay back. He was sitting in the passenger seat of the Beretta, which was being driven by Williams, when Greg shot at them, blowing out some windows. Williams left and then brought back to the Beretta an AK-47. He and Williams then went looking for Greg. He was in the passenger seat. They saw Greg, two other men and a girl and "we shot them." "[Greg] tried to take my life shooting at me." "They shot at us so we were going to shoot at them [.]" ³ As they raced away in the Beretta, appellant tossed the weapon out of the car. Appellant answered "Yep" in response to the question, "Who shot, you?" With his hand, appellant demonstrated how he pulled the trigger a number of times. Appellant identified Williams in a photographic lineup. Appellant also admitted he was a member of the Palmer Block Crips.

Gunshot residue tests were consistent with appellant having handled or discharged a firearm, or being in the environment of gunshot residue.

Robinson and Thomas were inactive members of the Piru gang.

B. Defense.

Appellant took the stand in his own defense. He denied shooting anyone and denied firing the gun.

Appellant testified to the following. He was with Williams in a car on September 8, 1995. Appellant was in the front passenger seat. He had known Williams since junior high school. At about 6:15 p.m. that evening, Greg approached on a bicycle; Greg fired three shots at the car. Later that same evening, he went with Williams for a ride. He thought they were going to get the window repaired. Both were smoking marijuana. Williams drove to Poplar Street. Appellant's seat was tilted back. Appellant saw Williams with a gun. Appellant was shocked, as he had not seen the gun before. Williams fired out the window, holding the weapon with both hands. They drove away. At Williams's direction, appellant threw the gun out the window. He ran from the car because he was afraid. He hid underneath the truck. Officers hit him, even though he had not resisted. He told the police he had thrown the gun out the window. At the police station, appellant felt threatened. He had given the videotape statement because officers had threatened to beat him again, if he did not say what they wanted. He was told to say he and Williams were shooting at a person named Greg. Everything he said on the videotape was a lie.

C. Procedure.

Appellant was convicted of first degree murder. (Pen.Code, § 187, subd. (a).) It was also found to be true with regard to that conviction, that appellant intended to and did inflict great bodily injury and death as a result of discharging a firearm from a motor vehicle, pursuant to Penal Code section 12022.55. Appellant was also convicted on two counts of attempted murder (of Bernard Thomas and of Garlon Robinson, Pen.Code, §§ 664, 187, subd. (a)) and with regard to these convictions, it was found true that the crimes were willful, deliberate and premeditated. (Pen.Code, § 664, subd. (a).) Additionally, with regard to one of the attempted murder convictions (the attempted murder of Bernard Thomas) it was found true that appellant intended to inflict great bodily injury and death as a result of discharging a firearm from a motor vehicle, in violation of Penal Code section 12022.55 and he personally inflicted great bodily injury, in violation of Penal Code section 12022.7, subd. (a).

On the conviction of first degree murder (count I), appellant was sentenced to prison for 25 years to life, plus six years for the Penal Code section 12022.55 enhancement. On count II, the attempted murder of Bernard Thomas, appellant was sentenced to life with the possibility of parole, plus six years on the Penal Code section 12022.55 enhancement, to run consecutively to the sentence on the first degree murder conviction. The three year great bodily injury enhancement (Pen.Code, § 12022.7) was stayed pursuant to Penal Code section 654. On count III, the attempted murder of Garlon Robinson, appellant was sentenced to life with the possibility of parole, to run concurrently with the sentence on count I.

Appellant appeals from the judgment of conviction.

II. DISCUSSION

A. Penal Code section 654 does not bar the imposition of the Penal Code section 12022.55 enhancement on the murder conviction.

Appellant contends the trial court was precluded from imposing the six-year term for the enhancement on the first degree murder conviction. He argues, "[b]ecause discharging a firearm from a motor vehicle with the specific intent to cause death was the crux of the murder of Bonija Fair and the enhancement imposed thereunder, the enhancement constituted an element of the underlying felony and, thus, its imposition was improper." We find this contention not persuasive.

Penal Code section 654 reads: "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other."

"The purpose of section 654 is to prevent multiple punishment for a single act or omission, even...