People v. Blessett
| Decision Date | 26 January 2022 |
| Docket Number | C074267 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANTOINE LAMAR BLESSETT, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Review Denied 5/25/22; Reposted With Supreme Court Order and Statement
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 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 enhancement allegations 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 appealed 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 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.
We originally concluded that defendant's confrontation clause violation contentions under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) were forfeited because trial counsel failed to make a specific objection in the trial court concerning the confrontation clause violation theories he advanced on appeal regarding the gang expert testimony. The California Supreme Court granted review and deferred action pending its decision in People v. Perez (2020) 9 Cal.5th 1 (Perez) . Thereafter, our high court in Perez held that a defendant's failure to object, pre-Sanchez, to the admission of case-specific testimonial hearsay does not forfeit a claim based on Sanchez. (Id. at pp. 4, 9.) And our high court in Perez disapproved of our original opinion on this basis. (Id. at p. 14.)
Our high court further deferred action in this case pending disposition in People v. Valencia (2021) 11 Cal.5th 818 (Valencia). Valencia addressed the manner in which the prosecution must prove the existence of predicate offenses (§ 186.22, subd. (e)) for purposes of proving "a pattern of criminal gang activity" (§ 186.22, subd. (f)) in cases involving allegations of active gang participation (§ 186.22, subd. (a)) or gang enhancement allegations (§ 186.22, subd. (b)). In our original opinion, we concluded that predicate offenses not involving the defendant on trial were background facts, not case-specific facts as the court in Sanchez had defined such facts. Therefore a gang expert was permitted to testify about such matters, even if that testimony was based on hearsay sources. In Valencia, our high court, after clarifying what it meant by background facts and case-specific facts, held that the commission of predicate offenses must be proven by independently admissible evidence and that, under Sanchez, "such proof may not be established solely by the testimony of an expert who has no personal knowledge of facts otherwise necessary to satisfy the prosecution's burden." (Valencia, at p. 826.) Valencia disapproved of our original opinion on this issue. (Id. at p. 839, fn. 17.)
Our high court transferred the matter back to us and directed that we vacate our original decision and reconsider the cause in light of Perez and Valencia. Both parties have briefed both issues.
In light of Perez, we conclude defendant did not forfeit his contentions under Crawford and Sanchez. We conclude the admission of the inadmissible evidence was harmless beyond a reasonable doubt as to the charged offenses and firearm enhancement allegations. However, because the gang expert did not have personal knowledge of the facts underlying the predicate offenses about which he testified, this testimony was improperly admitted under Valencia. Further, while the charged offenses may supply one of the minimum of two predicate offenses, the remaining evidence was not sufficient to prove a second predicate offense, and therefore the admission of the expert's case-specific hearsay testimony on this subject was not harmless beyond a reasonable doubt as to the gang enhancement. Accordingly, we shall reverse the true finding on the gang enhancement allegation.
Defendant's other claims of trial error are forfeited, without merit, nonprejudicial, or have been rendered moot. On remand, the People may elect whether to retry defendant on the gang enhancement allegation.[2] In any event, the trial court shall consider whether to strike the firearm enhancements pursuant to the authorization to do so provided by Senate Bill No. 620 in furtherance of justice under section 1385, subdivision (a). In the event the trial court declines to exercise that discretion, the court shall impose sentences on the section 12022.5 and 12022.53, subdivision (b) enhancements and then stay execution of those sentences pursuant to section 12022.53, subdivision (f).
The Prosecution's Case
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.
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, who also made hand gestures, testified that he did not throw up gang signs, but was simply pointing at Sisoukchaleun and Thammavongsa.[3]
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.' "[4]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.' "[5] 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.
According to Thammavongsa, Sisoukchaleun was saying," 'Let's fight, ' '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 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...
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