People v. Bell

• Citation: 241 Cal.App.4th 315,194 Cal.Rptr.3d 93
• Decision Date: 15 October 2015
• Docket Number: F064909
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jujuan Robert BELL et al., Defendants and Appellants.

241 Cal.App.4th 315

194 Cal.Rptr.3d 93

The PEOPLE, Plaintiff and Respondent, v. Jujuan Robert BELL et al., Defendants and Appellants.

F064909

Court of Appeal, Fifth District, California.

Filed 10/15/2015

As Modified on Denial of Rehearing 11/2/2015

Charles M. Bonneau, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant Jujuan Robert Bell.

Cara DeVito, Las Vegas, NV, under appointment by the Court of Appeal, for Defendant and Appellant Deon Lavell Joseph.

Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Lynell Travon Lewis.

Audrey R. Chavez, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant John Fitzgerald Williams.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

POOCHIGIAN, J.

When construing a statute, our job is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted....” (Code Civ. Proc., § 1858.) Adhering to these principles sometimes has us resolving issues contrary to our own views of policy and practicality. This case presents such an issue.

The Penal Code provides for the right to a jury trial on factual issues underlying a plea of once in jeopardy. (Pen.Code, §§ 1041(3)–.)¹ In this case, defendants entered pleas of once in jeopardy, based on their claim that the prosecutor at the first of their two trials intentionally goaded them into requesting a mistrial. (See generally, Oregon v. Kennedy (1982) 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (Kennedy).)

The Attorney General contends sections 1041(3) and apply to some, but not all, pleas of once in jeopardy. We conclude that interpretation is clearly foreclosed by the plain language of the statutes.

Several implications of this conclusion are regrettable. Double jeopardy claims predicated on prosecutorial goading claims do not seem particularly well-suited for resolution by juries in several respects. And the interplay between Kennedy and section 1042 will require already overburdened trial judges to manage a new type of trial that will likely raise unique evidentiary and instructional questions.

But “our hands are tied” (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 257, 73 Cal.Rptr. 127), and we must adhere to “ ‘the plain meaning of the actual words of the law, “ ‘ “whatever may be thought of [its] wisdom, expediency, or policy....” ’ ” ' [Citation.]” (People v. Loeun (1997) 17 Cal.4th 1, 8–9, 69 Cal.Rptr.2d 776, 947 P.2d 1313.)²

It is important to emphasize the nature of the issue we decide today. We would not, on a blank slate, create the right to a jury trial on pleas raising Kennedy-type³ claims. But that is not the question we face. Instead, the question we address is whether the Penal Code requires a jury trial on a once in jeopardy plea asserting a Kennedy-type claim. Both questions are important, but only one is ours to answer. (See Code Civ. Proc., § 1858.)

We conditionally reverse the judgment.⁴

STATEMENT OF THE CASE

1. Convictions

Defendants Lynell Travon Lewis (Lewis), Deon Lavell Joseph (Joseph), Jujuan Robert Bell (Bell), and John Fitzgerald Williams (Williams) were each convicted of four counts of second-degree robbery (counts 1–4; § 212.5, subd. (c)), six counts of assault with a semiautomatic firearm (counts 5–7, 9–11; § 245, subd. (b)), five counts of assault with an assault weapon (counts 12–14, 16–17; § 245, subd. (a)(3)),⁵ two counts of transporting an assault weapon (counts 19, 24; former § 12280, subd. (a)(1); see § 30600), two counts of participating in a criminal street gang (counts 21, 28; § 186.22, subd. (a)), one count of conspiracy to commit assault with a semiautomatic firearm (count 22; § 182, subd. (a)(1)), one count of conspiracy to commit robbery (count 23; § 182, subd. (a)(1)), and one count of carrying a loaded firearm in public by a member of a criminal street gang (count 26; § 12031, subd. (a)(2)(C)). Defendants Bell and Lewis were additionally convicted of two counts of possessing a firearm as a felon (counts 18 & 27; § 12021, subd. (a)(1)).⁶

2. Enhancements

The jury found that all of these crimes were committed for the benefit of, or in association with, a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)) as alleged in the indictment, except the active gang participation counts (counts 21 & 28) and the single count of possessing a loaded firearm by an active street gang member (count 26).

The jury also found that, as to the robbery counts, each defendant was a principal and at least one principal personally used a firearm as alleged in the indictment.⁷ (§ 12022.53, subd. (e)(1).) The jury further found that a principal was armed during the commission of the two conspiracy counts. (§ 12022, subd. (a).)

The jury found that Joseph, Lewis and Williams each personally used a firearm during the commission of the six counts of assault with a semiautomatic firearm and the two counts of active participation in a criminal street gang. (§ 12022.5, subd. (a).) The jury found it “not true” that Bell personally used a firearm during the commission of those crimes.

The trial court found that the prior convictions alleged against Bell and Lewis were true.

3. Sentences

The court sentenced Bell to prison for 79 years 4 months; Lewis for 71 years; Williams for 64 years; and Joseph for 55 years 4 months.⁸

FACTS

I. 2007 Crimes

In 2007 and 2008, defendants were each members of the Mona Park Compton Crips criminal street gang. Bell was an “O.G.” in the gang, which meant he was “higher-ranking” and “deserving of respect within the gang from his fellow gang members.”

Lewis and Joseph each had tattoos demonstrating respect for Bell. Joseph also had a tattoo demonstrating respect for Lewis.

A. Hours Preceding Robbery of Golden West Casino

Bell had two children with Tameka Turner (Turner), his girlfriend of eight years.⁹ Turner testified under a grant of immunity, and this fact was made known to the jury.

In September 2007, Turner lived in Palmdale, California, while Bell was living in Compton, California. On September 12, 2007, Bell told Turner over the phone that he had “something to do” and would be coming to Palmdale.

When Turner came home from work late that night, defendant Bell was at her home with three other men. In a pretrial interview admitted into evidence, Turner identified two of the men as Joseph and Lewis.¹⁰ She was not sure if defendant Williams (a.k.a. “Doonie”) was the third man. Outside her home was a red Pontiac Grand Am “or something like that.”

Turner went to sleep at around 2:00 or 2:30 a.m. the next morning.

B. The Robbery

At approximately 4:00 a.m. on September 13, 2007, David Ahrens was standing outside of the Golden West Casino in Bakersfield, California, when he noticed a nearby car traveling the wrong way. The red, four-door car pulled up near Ahrens, and several men exited carrying firearms. The men pointed their weapons at Ahrens and said, “Get up against the F'ing wall and shut up.” The men led Ahrens into the casino, pushing him in the back with the barrel of an assault rifle. The men told Ahrens to lay down.

Four assailants eventually entered the casino, each wearing a face covering.¹¹ One of the assailants wore dark clothing that covered his entire body and carried a type of firearm called an “SKS” rifle. The People contend this assailant was defendant Joseph.¹² Another assailant, alleged to be defendant Lewis, wore a white face covering, and carried an “AK–47–type” weapon with a missing butt stock. A third assailant, alleged to be defendant Williams, wore dark clothing and carried a silver handgun. The last assailant, alleged to be defendant Bell, carried a bag.

Security Guard Darren Forthman (Forthman) was standing near the door where the defendants entered. Immediately after the defendants entered the casino, Forthman dropped to his knees and put his hands behind his head. One of the card dealers at a nearby table, David Valle (Valle), also put his head down and hands up when the assailants entered.

Chris Akin was seated at the same table as Valle. Akin had a personal cell phone and a corporate cell phone placed on a nearby table. Akin was eventually ordered to get on the floor. When Akin eventually arose, he noticed both cell phones were gone.

Melissa Gomez, a Golden West Casino employee, was standing near Forthman when defendants entered. Gomez testified that the men had “big” guns and pointed them in her direction, though not directly at her. They told her to get on the floor, so she went behind a wall, got on the floor and covered her face. She was scared.

Lewis stayed near the door where he had entered the casino. Bell entered the casino shortly after the other three assailants and was escorting Ahrens and a man named Robert Goldfisher. On the surveillance video, Lewis appears to point his firearm towards Valle on several occasions, and at Goldfisher at least once.

While Lewis stayed in the first area of the casino, Joseph and Williams proceeded farther, into a second card room. As Joseph entered the second card room, a man who had been sitting at a table began to run away. Joseph chased him and led him back at gunpoint.

Shortly after Joseph entered the second card room, security officer Deion Chester (Chester) got under a nearby table. Chester saw the assailants come in with guns “like AK–47s like you see on TV.”

As Chester was ducking under the table, a woman named Becky Tam tried to leave the area. As she rounded a corner, she almost ran into Williams. Williams pointed his handgun towards Tam, and she got down onto the floor.¹³

A voice is heard on the surveillance video saying, “Gotti, come on Gotti.” “Gotti” is Bell's gang...