People v. Anthony

• Decision Date: 08 March 2019
• Docket Number: No. A139352,A139352
• Citation: 32 Cal.App.5th 1102,244 Cal.Rptr.3d 499
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stephon ANTHONY, et al. Defendants and Appellants.

32 Cal.App.5th 1102

244 Cal.Rptr.3d 499

The PEOPLE, Plaintiff and Respondent,

v.Stephon ANTHONY, et al. Defendants and Appellants.

No. A139352

Court of Appeal, First District, Division 2, California.

Filed March 8, 2019

Certified for Partial Publication.^*

Linda M. Leavitt, Bradley O’Connell, under appointment by the Court of Appeal, for Defendant and Appellant Stephon Anthony.

J. Courtney Shevelson, under appointment by the Court of Appeal, for Defendant and Appellant Rafael Campbell.

Dirck Newbury, under appointment by the Court of Appeal, for Defendant and Appellant Samuel Flowers.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Price.

Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Jeffrey M. Laurence, Assistant Attorneys General, Donna M. Provenzano, J. Michael Chamberlain, Deputy Attorneys General for Plaintiff and Respondent.

STEWART, J.

On May 16, 2009, at about 6:30 p.m. on a residential street in Berkeley, California, a masked man exited a gold Cadillac occupied by three other men and fired 17 shots from a semiautomatic assault rifle at 25-year-old Charles Davis as he walked down the street after a trip to a store. The shooter hit Davis multiple times, from head to foot, killing Davis as the shooter’s companions visibly celebrated, and then returned to the Cadillac. The four sped away but were quickly spotted by police, who pursued the Cadillac in a high-speed chase that ended in two collisions, killing a driver of another car, Todd Perea, and a pedestrian, Floyd Ross, Jr.

The four defendants in this appeal—Stephon Anthony, Samuel Flowers, Anthony Price and Rafael Campbell—were arrested and tried together in Alameda County Superior Court before a single jury that found them guilty of committing multiple murders and other crimes that day, including the first degree murder of Charles Davis and the second degree murders of Perea and Ross. The jury also found defendants intentionally killed Davis while they were active participants in a criminal street gang known as "North Side Oakland" (NSO), and committed that murder in order to further NSO’s activities. The court’s sentences included a sentence for each of them of life in prison without the possibility of parole for Charles Davis’s murder.

Defendants, separately and together, present many arguments for reversal of their convictions. They argue the prosecutor engaged in racially discriminatory peremptory challenges of prospective jurors. They argue the trial court erred in certain evidentiary rulings, including its admission of Anthony’s incriminating statements to Oakland police, which they contend violated Anthony’s rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ( Miranda ) and the other defendants’ rights under People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 ( Aranda ) and Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 ( Bruton ), and its admission of the People’s gang expert’s hearsay testimony, which defendants contend violated People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ) and Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford ). They further argue the prosecutor engaged in many acts of misconduct in closing argument and the trial court committed several prejudicial instructional errors, including because of the recent enactment of Senate Bill Number 1437 (Senate Bill 1437), which changes the application of the natural and probable consequences doctrine to murder convictions. Defendants also argue we must remand to the trial court to give it an opportunity to exercise its discretion to dismiss or strike certain firearm and prior serious felony conviction enhancements for sentencing purposes.

We conclude some error occurred here, although not nearly as much as defendants claim. In the published portion of this opinion, we explain why the court erred under Miranda in admitting Anthony’s statements to police on May 18, 2009, and erred under Sanchez and/or Crawford in admitting some of the gang expert’s testimony, why these errors were harmless, and why defendants cannot raise their Senate Bill 1437 claim in this appeal before they have petitioned for relief in superior court under Penal Code section 1170.95.¹ In the unpublished portion of the opinion, we discuss defendants’ other claims, most of which lack merit, and also conclude the other error that occurred was harmless beyond a reasonable doubt because of the overwhelming, admissible evidence that defendants were NSO gang members who traveled together, heavily armed and with masks, into the heart of their rival Berkeley gang’s territory, there in broad daylight executed Charles Davis, the brother of a suspected Berkeley gang member, and did so to retaliate for what they thought was that gang’s killing of one of their own NSO gang members a few weeks earlier. There was likewise overwhelming evidence that defendants then left together in the Cadillac with Anthony driving recklessly to try to evade police at high speeds and with disregard for traffic laws and the safety of others, resulting in the killing Perea and Ross as well. We affirm the judgments in their entirety, except that we remand to the trial court to allow it the opportunity to exercise its discretion to dismiss or strike the firearm and prior serious felony conviction enhancements.

BACKGROUND²

In a November 2010 information, the Alameda County District Attorney charged each defendant with five counts regarding the deaths of three people on May 16, 2009. Count one alleged that each defendant murdered Charles Davis (§ 187, subd. (a) ) in a gang-related crime (§ 186.22, subd. (b)(4) ), making each defendant eligible for a sentence of life without the possibility of parole (§ 190.2, subd. (a)(22) ). A gang-related firearm use allegation was also attached to count one. (§§ 186.22, subd. (b), 12022.5, subd. (a), 12022.53, subds. (b), (c), (d), (e)(1), (g) ). The district attorney alleged in count two that each defendant murdered Todd Perea (§ 187, subd. (a) ) and in count three that each defendant murdered Floyd Ross, Jr. (§ 187, subd. (a) ). The district attorney further alleged in each of these two counts that Anthony personally and intentionally inflicted great bodily injury on the victim (§ 1203.075), and alleged in count three each defendant committed multiple murders, which also made him eligible for a sentence of life without the possibility of parole (§ 190.2, subd. (a)(3) ). The district attorney alleged in count four that each defendant caused the death of Ross while evading a peace officer ( Veh. Code, § 2800.3 ), and alleged the same in count five regarding Perea. The information also alleged that each defendant committed these crimes while on either felony probation or parole from state prison and had suffered prior convictions.

Defendants were tried together before a single jury in March and April 2013. The prosecution contended defendants were members of the NSO criminal street gang and acted together to murder Charles Davis on May 16, 2009, in order to avenge the April 23, 2009 shooting of a fellow NSO gang member, Nguyen Ngo, whom defendants believed was killed by a rival Berkeley street gang, and the possible attempted murders of Nguyen Ngo’s brother, Bao Nguyen, who was also shot, but not fatally, and Anthony. Specifically, the prosecution contended that on May 16, the four defendants drove together, with two assault rifles, a semiautomatic pistol and homemade masks, in Anthony’s gold Cadillac to West Berkeley. Sometime after 6:00 p.m., they came upon Charles Davis, who was walking on Allston Way near 10th Street. Charles had left his family’s home on 7th Street in West Berkeley to buy a cigar at a local store. Charles was not a gang member, but he was the brother of Jermaine Davis,³ suspected to be a member of the rival Berkeley gang and the shooter of Ngo. Flowers exited the Cadillac and, using an assault rifle, shot Charles from head to foot as another defendant drove the car around in a circle, another made celebratory exclamations and yet another held another rifle aloft. Flowers then returned to the car, which sped away. Moments later, police found Charles’s dead body lying in the street on Allston Way, between 9th Street and 10th Street, which, according to the People’s gang expert, was in "the heart" of the Berkeley Waterfront gang’s territory.

At trial, the prosecution presented an eyewitness to the shooting, Timothy McCluskey. McCluskey testified that he was a retiree who lived with his wife in an upstairs flat of a house located near the intersection of 10th Street and Allston Way. Sometime after 6 p.m. on May 16, 2009, he sat down to watch television and opened a can of beer when he heard gunshots outside. He went out his front door and about halfway down the stairs. He heard more gunshots and saw the back of someone at the west end of Allston Way, on the south side of the yellow line on the street, firing at what McCluskey thought was a parked car. The shooter started to back up "right towards" McCluskey while firing; McCluskey could see recoil as the shooter fired. McCluskey "kept popping in and out ... looking" from behind his door jamb. The shooter was wearing a hat that was "kind of Rastafarian with green, yellow and black" and very distinctive. At trial, the parties stipulated that the distance from McCluskey’s porch to the area where, according to McCluskey, the shooter was standing was about 120 feet.

McCluskey saw a car come into the intersection of 10th and Allston, do "donuts," loop around the intersection and stop on 10th Street. At trial he remembered the car do at least one circle, although at the preliminary hearing he said it had done about three. Around the time the car drove around in a circle, the man in the front passenger-side of the car lunged out of the car window and ...