People v. Blessett

• Decision Date: 30 April 2018
• Docket Number: C074267
• Citation: 232 Cal.Rptr.3d 164,22 Cal.App.5th 903
• Parties: The PEOPLE, Plaintiff and Respondent, v. Antoine Lamar BLESSETT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

22 Cal.App.5th 903
232 Cal.Rptr.3d 164

The PEOPLE, Plaintiff and Respondent,
v.
Antoine Lamar BLESSETT, Defendant and Appellant.

C074267

Court of Appeal, Third District, California.

Filed April 30, 2018
As Modified on Denial of Rehearing May 24, 2018

Certified for Partial Publication.^*

Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Chung Mi (Alexa) Choi, Catherine Tenant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.

22 Cal.App.5th 910

After an argument precipitated by references to their respective gangs, the victim Christopher Sisoukchaleun, took off his shirt to fight defendant Antoine Lamar Blessett. Instead, defendant followed Sisoukchaleun into the street and shot him between the eyes at nearly point-blank range with a firearm he had retrieved only moments earlier from his pickup truck, which was parked nearby. Defendant then fired a second close-range shot, striking Sisoukchaleun in the torso.

A jury found defendant guilty of the first degree murder ( Pen. Code, §§ 187, subd. (a), 189 )¹ and possession of a firearm by a felon (§ 29800, subd. (a)(1) ). The jury also found true enhancements that defendant personally used a firearm and proximately caused death or great bodily injury (§ 12022.53, subd. (d) ), that he personally used a firearm in the commission of a felony (§§ 12022.5, subd. (a), 12022.53, subd. (b) ), and that he committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1) ). Defendant now appeals claiming numerous trial errors and that the 10-year sentence imposed pursuant to section 186.22 must be struck. Additionally, we granted defendant’s request for supplemental briefing on

232 Cal.Rptr.3d 171

the impact of Senate Bill No. 620 and whether the matter must be remanded for the trial court to consider whether to exercise its discretion to strike the section 12022.5 and 12022.53 firearm enhancements.

In the published portion of this opinion we conclude that defendant’s confrontation clause violation contentions under Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, [158 L.Ed.2d 177] ( Crawford ) and People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ) are forfeited because trial counsel failed to make a specific objection in the trial court concerning the confrontation clause violation

22 Cal.App.5th 911

theories he now advances regarding the gang expert testimony. The boilerplate in limine motions filed prior to trial containing only a vague reference to the confrontation clause and the oral arguments made during the in limine motion hearing, in which no confrontation clause claim was made, were insufficient to preserve the contentions defendant now makes on appeal. Moreover, numerous decisional authorities published prior to defendant’s trial made the imminent change in law ultimately announced in Sanchez reasonably foreseeable, alerting competent and knowledgeable counsel to the need to register appropriate objections. We further conclude that defendant has failed to establish that he received constitutionally ineffective assistance of counsel based on the forfeiture. As we explain, it was not unreasonable of counsel to forego an objection to the background hearsay, and, as to the admission of both the background hearsay and the case-specific testimonial hearsay relayed to the jury by the prosecution’s expert, defendant has not shown prejudice.

In the unpublished portion of this opinion, we agree with defendant that the 10-year term for the gang enhancement must be struck. We further conclude that defendant’s other claims of trial error are forfeited, without merit, or pertain to errors that were harmless or did not prejudice defendant. However, we shall remand for the trial court to consider whether to exercise its discretion to strike the section 12022.5 and 12022.53 firearm enhancements, and, in the event that the court declines to exercise that discretion, for the court to impose sentences on the section 12022.5, subdivision (a), and 12022.53, subdivision (b), firearm enhancements and then stay execution of those sentences pursuant to section 12022.53, subdivision (f). We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Prosecution’s Case

The Shooting and Investigation

On the night of February 8, 2012, Weena Vue travelled to Sacramento from the Merced area with four girlfriends to hang out. They went to Casino Royale to eat. There they met the victim Christopher Sisoukchaleun (also known as Bud), Jack Thammavongsa, Sunny Manivong, Roger Bouriboune, Udom Ketphanh, and an individual named Lou. After leaving Casino Royale, the group drove in several cars to the Sunland Liquor store (Sunland), the location where the murder later occurred. Thammavongsa (Sisoukchaleun’s cousin) drove Sisoukchaleun’s car because Sisoukchaleun was drunk. The group arrived at Sunland at approximately 1:55 a.m.

22 Cal.App.5th 912

As they started walking from their parked car toward Sunland, Sisoukchaleun or Thammavongsa made a hand gesture. Manivong testified that Sisoukchaleun was "not throwing up no gang sign." Thammavongsa testified that Sisoukchaleun was "[t]hrowing up a peace sign" to the girls that pulled up in the other car. Manivong,

232 Cal.Rptr.3d 172

who also made hand gestures, testified that he did not throw up gang signs, but was simply pointing at Sisoukchaleun and Thammavongsa.²

As they walked up to Sunland, Thammavongsa and Sisoukchaleun both used the word "cuz" in their conversation, and Thammavongsa said something about wanting to race. According to Vue, an African-American male, 5'6? or 5'7? tall with closely cropped hair and wearing a black leather jacket and blue jeans with a design of wings or flames on them, who was standing near the door to Sunland, responded, " ‘Yeah, I know what you mean. [¶] I like that, too, Blood, but you know, this is Blood all the way.’ "³ Vue also testified that the man said, " ‘I am a Blood.’ " According to Thammavongsa, after he said, " ‘Cuz, get some drink,’ " the man standing near Sunland, whom he identified as defendant, said, " ‘Blood, Meadowview, Meadowview bloods’ " or " ‘Blood, Meadowviews, 69.’ " Vue testified that Sisoukchaleun responded, " ‘Yeah, this is LAC, Little Asian Crip.’ "⁴ Thammavongsa acknowledged that such an exchange would amount to "[f]ighting words" because Bloods and Crips do not get along. According to Vue, while the conversation had not been aggressive at its inception, at this time, the African-American man "got into [Sisoukchaleun]’s face." According to Thammavongsa, Sisoukchaleun "got tired of hearing" defendant say " ‘Blood, Meadowview.’ " Vue became scared and went to her girlfriend’s car.

According to Manivong, defendant walked to a white pickup truck parked nearby, opened a tool box, grabbed something, and put it in his back pocket. Sisoukchaleun removed his shirt and it appeared that he and defendant would fight. Sisoukchaleun and defendant walked into the street. Thammavongsa followed. The other guys in their group were "[r]ight there with us" according to Thammavongsa. Thammavongsa acknowledged that he would have intervened if Sisoukchaleun was getting beaten up.

22 Cal.App.5th 913

According to Thammavongsa, Sisoukchaleun was saying, " ‘Let’s fight,’ " but defendant "didn’t really say nothing" and was not squaring up to fight. Sisoukchaleun took a swing at defendant, but defendant dodged the blow. Defendant pulled out a gun. Manivong heard a woman say, " ‘He’s got a gun.’ " Defendant then shot Sisoukchaleun in the face. Manivong, Thammavongsa, and Sisoukchaleun started running. Defendant fired a second shot and Sisoukchaleun fell, gasping for air, and then Manivong heard two more shots. Someone called 911. Defendant got into the passenger side of the pickup and was driven away by a woman. Manivong provided the pickup’s license plate number to the police when they arrived approximately five minutes later.

Thammavongsa and Manivong both testified that no one in their group had any weapons that night. Vue never observed Sisoukchaleun or any of the other guys in their group with any weapons. Manivong

232 Cal.Rptr.3d 173

informed the police that the gun that was used was a .38-caliber revolver.

The parties stipulated that a video recording of the scene in the vicinity of the shooting recorded by a surveillance camera owned by the City of Sacramento accurately depicted that location on February 9, 2012, and the recording was introduced into evidence. We have reviewed the video. There is no sound, and the actual shooting takes place out of the camera view, but events before and after the shooting can be seen on the recording.

In the events as shown on the...