People v. Anderson
| Decision Date | 02 November 2022 |
| Docket Number | A162395 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JEFFREY ANDERSON, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 20-CR-007190A)
Jeffrey Anderson appeals after a jury convicted him of two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664),[1]two counts of assault with a semiautomatic firearm (§ 245, subd. (b)), one count of shooting from a motor vehicle (§ 26100, subd. (d)), one count of shooting at an occupied motor vehicle (§ 246), and two counts of possessing a firearm as a felon (§ 29800 subd. (a)(1)). The trial court sentenced him to an aggregate prison term of 14 years and 4 months.
Anderson raises numerous arguments-insufficiency of the evidence instructional error, prosecutorial misconduct, and evidentiary challenges. He also contends the trial court violated his Sixth Amendment confrontation rights by requiring testifying witnesses to wear masks covering their mouths and noses. We agree with Anderson that the trial court gave an erroneous kill zone instruction. Because we conclude the error was prejudicial, we vacate one of his attempted murder convictions (count two). We remand for further proceedings on that count, but otherwise affirm.
On May 8, 2020, officers from the Oakland Police Department were surveilling the Nissan Rogue that Anderson was driving, using a global position satellite (GPS) tracking device. Undercover officers also followed the Rogue to confirm its location. Ershell Love rode in the Rogue's front passenger seat.
The GPS device tracked the Rogue's location and speed and sent that data, once every five seconds, to a server that police officers could remotely access. The locations could be viewed as color-coded dots on maps showing date, time, speed, and location. The GPS tracking data was admitted at trial.
About 10 minutes before the shooting, one of the undercover officers following the Rogue, Officer Blake Stephens, observed Anderson decrease his driving speed to 10-15 miles per hour in an area with a posted speed limit of 25 miles per hour. GPS tracking data corroborated Stephens's testimony. Stephens testified that prolonged slow driving is frequently a precursor to the commission of crimes. Stephens relinquished surveillance of the Rogue to the GPS tracker, which was being monitored remotely by Officer Chris Marie.
A few minutes before 8:00 p.m., surveillance video showed (via a partially obstructed view) that Anderson abruptly stopped the Rogue in the middle of an uncontrolled intersection on Plymouth Street, where it intersects with 85th Avenue. GPS tracking evidence showed the Rogue at the same intersection but driving four miles per hour. No traffic light or stop sign prevented Anderson from continuing through the intersection.
Anderson's car essentially blocked an Infiniti driven by Floyd Ray, which had stopped-perpendicular to the Rogue-at the stop sign on 85th Avenue where it intersects Plymouth Street. Jane Doe was a passenger in the Infiniti.
Almost simultaneously with Anderson's abrupt stop, the occupants of the two cars exchanged gunfire. "ShotSpotter" technology detected the sound of gunfire and alerted the police that shots were fired in approximately the same location where the Rogue and Infiniti had stopped. Officer Stephens heard approximately 10 to 12 total gunshots: three shots fired, followed by a pause, and then a further exchange of gunfire. Stephens could not tell how many guns were fired but said that "[i]t sounded like more than one gun was firing" in the latter exchange.
Two neighborhood residents also heard multiple shots fired in quick succession a few minutes before 8:00 p.m. The witnesses observed that two cars were involved-one that was stopped along 85th Avenue (at the stop sign) and another that was in the middle of the intersection (driving on Plymouth). Neither witness saw who fired the shots (or from which car).
The surveillance video and witness reports were consistent that the Rogue drove away immediately-as soon as the gunfire ceased. However, the Infiniti remained stopped at the stop sign on 85th Avenue, with its engine running. Ray and Doe exited the Infiniti, which had bullet holes in its windshield. A witness heard Ray ask Doe if she was okay. Then they retreated on foot down 85th Avenue.
As officers responded and approached the intersection, they saw the Infiniti stopped at the stop sign, with its driver's door open, engine running, and multiple bullet holes in the windshield. There was also a bullet hole in the Infiniti's hood.
About a minute after the shooting, an officer saw Ray run back to the Infiniti and move it out of the lane of traffic. Ray grabbed a bag from the car that appeared to have a gun inside, and then he jumped on the hood of the Infiniti, using his foot to smash the windshield. A third car pulled up and drove Ray away.
Later investigation showed that at least some of the bullet holes in the Infiniti's windshield were from bullets fired from inside the Infiniti. Stephens testified that, during the seven years he worked for the Oakland Police Department, he had never investigated a shooting that was initiated by someone firing through their own windshield.
About 10 minutes after the shooting, another police officer saw the Rogue roughly a five-minute drive away from the crime scene. A woman-Ventoysha Golson-was now driving it. Golson pulled over, opened both passenger-side doors, and brushed glass off the seats and floorboards. The officer then observed a white Toyota Solara approach and park. Anderson, Love, and Caprice McKinnis exited the Solara. After Anderson and Love spoke with Golson, the two cars left together. Golson continued to drive the Rogue. Anderson was sitting in the rear passenger seat of the Solara.
Minutes later, officers detained Anderson, McKinnis, Love, and Golson. The officers seized two semi-automatic firearms-a .40-caliber Glock and a .45-caliber Ruger from the rear passenger area of the Solara. Officers also observed that the Rogue's front passenger window had been shot out, and fragments of glass were inside the vehicle-indicating that someone fired into the Rogue.
An officer responding to the shooting scene found three shell casings, a bullet, and broken window glass, in the intersection, on Plymouth Street. The bullet and shell casings were from a .45-caliber gun.
Eleven .40-caliber shell casings were found inside the Infiniti. Six were on the front passenger seat and five more were found on the passenger-side floor. This evidence indicated a .40-caliber gun had been fired outward from inside the Infiniti. Bullet fragments were also found inside the Infiniti.
The front passenger side of the Rogue also suffered bullet strike marks and one bullet hole. One bullet fragment was found inside the Rogue. There were a total of three shell casings inside the Rogue-two were .40-caliber and one was .45-caliber. One expended shell casing was found on the floor behind the driver's seat. There was also an expended shell casing behind the front passenger seat.
The parties stipulated that the eleven .40-caliber casings recovered from the Infiniti were all fired from a single firearm. The three .45-caliber casings recovered from the intersection were all fired from the Ruger found in the Solara. The single .45-caliber casing recovered from inside the Rogue was fired from that same Ruger. The two .40-caliber casings recovered from inside the Rogue were fired from the Glock recovered in the Solara.
The parties also stipulated that DNA collected from a blood stain on the Ruger matched Love's DNA. Anderson, Golson, and McKinnis were eliminated as contributors. DNA testing of swabs collected from the Glock was inconclusive.
Anderson argued the People had not met their burden to prove beyond a reasonable doubt that Anderson himself fired a gun or that the shooting was not in self-defense.
The jury convicted Anderson of attempted murder of Ray (count one), attempted murder of Doe (count two), two counts of assault with a semiautomatic firearm (counts three &four), shooting from a motor vehicle (count five), shooting at an occupied motor vehicle (count six), and two counts of possessing a firearm as a felon (counts seven and eight). However, the jury found "not true" all of the charged firearm enhancement allegations-that Anderson personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) or personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b)) in committing the first four counts. The trial court sentenced Anderson to an aggregate prison term of 14 years and 4 months.
Anderson argues the evidence is insufficient to support his convictions for two counts of attempted murder, two counts of assault with a semiautomatic firearm, shooting from a motor vehicle, and shooting at an occupied motor vehicle. We disagree.
To convict for attempted murder, the prosecution must prove the defendant had a specific intent to kill and committed a direct but ineffectual act toward accomplishing the intended killing. (People v. Canizales (2019) 7 Cal.5th 591 602 (Canizales).) Direct evidence of intent to kill is rare. Intent is ordinarily inferred from the defendant's actions and statements and the circumstances surrounding the crime. (Ibid.) Evidence of motive is probative of intent to kill, but not required. (People v. Houston (2012) 54 Cal.4th 1186, 1218.)
Under an aiding and abetting theory, the prosecution must prove that a defendant aided or encouraged the direct perpetrator with knowledge of the direct perpetrator's intent to kill and with the intent or purpose of...
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