People v. Booker
| Decision Date | 10 December 2020 |
| Docket Number | B295128 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Damon Lamar BOOKER et al., Defendants and Appellants. |
Certified for Partial Publication.*
Brad Kaiserman, Van Nuys, under appointment by the Court of Appeal, for Defendant and Appellant Damon Lamar Booker.
Mark D. Lenenberg, Simi Valley, under appointment by the Court of Appeal, for Defendant and Appellant George Lewis.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Codefendants Damon Lamar Booker and George Lewis appeal from judgments of conviction entered after a jury trial for first degree murder; attempted willful, deliberate, and premeditated murder; and shooting at an occupied vehicle. The jury found true the special allegations Booker personally used a firearm causing great bodily injury or death in the commission of the offenses and the offenses were committed for the benefit of a criminal street gang.
In the published part of the opinion we address Booker's and Lewis's contentions the trial court prejudicially erred in instructing the jury on the "kill zone" theory of concurrent specific intent to prove the attempted murder in light of the Supreme Court's holding in People v. Canizales (2019) 7 Cal.5th 591, 596-597, 248 Cal.Rptr.3d 370, 442 P.3d 686 ( Canizales ) that "a jury may convict a defendant under the kill zone theory only when the jury finds that: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm." We agree with Booker and Lewis this is not one of the "relatively few cases in which the [kill zone] theory will be applicable and an instruction appropriate." ( Id. at p. 608, 248 Cal.Rptr.3d 370, 442 P.3d 686.) It was prejudicial error for the trial court to instruct the jury on the kill zone theory.
In the unpublished portion of the opinion we address Booker's and Lewis's arguments the trial court erred in failing to instruct the jury certain trial witnesses were accomplices as a matter of law; there is insufficient evidence to corroborate the testimony of those witnesses; the court erred in failing to hold a hearing on juror misconduct; and remand is necessary for the trial court to exercise its discretion whether to strike the firearm enhancements. We also consider Booker's assertion his trial counsel provided ineffective assistance of counsel and Lewis's argument the trial court committed instructional error. These contentions lack merit.
We reverse Booker's and Lewis's convictions of attempted murder and remand for further proceedings consistent with this opinion. In all other respects we affirm.
An information charged Booker and Lewis, along with codefendants William Weaver, Marcus Posey, and Jeremiah Stone, with the first degree murder of Jose Raya ( Pen. Code,1 § 187, subd. (a) ; count 1); the attempted willful, deliberate, and premeditated murder of Reann Lott ( §§ 187, subd. (a), 664 ; count 2); and shooting at an occupied vehicle (§ 246; count 3). As to all counts, the information alleged the defendants committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)); Booker or a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)); Booker or a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); and Booker or a principal personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)).
Booker and Lewis pleaded not guilty and denied the special allegations. Before trial all defendants moved to dismiss the charges against them pursuant to section 995. The trial court granted the motions by Weaver, Stone, and Posey, but denied the motions by Booker and Lewis.
An amended information additionally alleged as to each count both Booker and Lewis suffered two prior convictions of serious or violent felonies, which constituted strikes within the meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12).
Lott testified she was with her boyfriend Raya on the evening of December 17, 2016. Lott and Raya drove in Lott's car, a white Pontiac Grand Prix, to a liquor store to buy beer. As Lott walked to the entrance of the liquor store, she noticed a white car with tinted windows parked in a lot on the side of the building. Lott thought the back end of the white car and its lights resembled her own car. As other cars drove by, their lights illuminated the inside of the white car, and Lott saw "there [were] a lot of people in the car."
Inside the liquor store, Raya saw a friend near the counter and started talking with him. Lott left Raya with his friend and walked into another aisle to get the beer.
Booker, Lewis, Weaver, Stone, and Posey entered the store together, then separated and moved throughout the store.2 As the men spoke to one another, Lott heard the men used the word "cuzz," which Lott recognized as slang commonly used by members of Crips street gangs. The men were staring at Raya and his friend. Lott felt tension in the air.
Raya's friend asked the men where they were from. One of the men answered "Fruit Town," to which Raya's friend responded he "was cool with them." Raya did not speak to the men, nor did they speak to Raya. Raya was not a member of any gang. Shortly thereafter, the five men left together without buying anything.
When Raya and Lott left the store, the white car with tinted windows was no longer parked in the lot. The two returned to Lott's car. Raya drove, and Lott was in the front passenger seat. They drove down 130th Street toward Lott's home. Raya told Lott the man he was speaking with in the store was a friend and a member of the Largo street gang. Lott then noticed a white car following closely behind their car on 130th Street. The white car was "riding" their bumper. Lott said to Raya, "[T]hey look like they're about to hit us." Raya stopped at a stop sign or stop light. The white car pulled up next to Lott's car on the driver's side "within seconds" of Raya stopping the car. Lott recognized the car was the same white car from outside the liquor store. Raya told Lott to duck down, which she did. As she ducked, Lott saw a hand emerge from the front passenger window of the white car, and she heard five shots fired at their car. Lott was not hit. The white car then drove in reverse. A black car in front of them also "drove off." Lott could not recall whether the black car drove forward or in reverse after the shooting. Lott did not remember whether there was a third car. After the shooting, Lott's car rolled forward then stopped when Raya "smashed on the brakes."
At around 6:43 that evening, Los Angeles County Sherriff's Department (LASD) Deputy David Navarrete heard the sound of gunshots while on patrol and responded to the scene of the shooting. While traveling northbound on Wilmington Avenue from 131st Street, Deputy Navarrete observed a white Grand Prix stopped in the middle of the road blocking traffic. Deputy Navarrete saw a man in the driver's seat of the car slumped over and bleeding from his head. Paramedics on the scene determined Raya was dead. The driver's side front window of the Grand Prix was shattered, but there was no damage to any other windows. No bullet holes were found on the car's body or doors. Deputy Navarrete estimated it would take one minute to drive from the liquor store to the scene of the shooting on 130th Street.
LASD Detective Kasey Woodruff also responded to the scene of the shooting on the evening of December 17. Detective Woodruff obtained surveillance footage from a video camera mounted inside the liquor store and two video cameras hung outside Greater Zion Church, located at the corner of 130th Street and Wilmington Avenue. Surveillance video of the interior of the liquor store taken the night of the shooting showed Booker, Lewis, Weaver, Stone, and Posey in the store.3
At approximately 6:40 p.m. on December 17, Frederick Gordon, an elder in the Greater Zion Church, was inside the church when he heard "pops" outside that sounded like gunfire. He went outside to check and saw "a car backing up from 130th." One of the church surveillance videos showed a white car driving down 130th Street, followed by two more white cars, and then a black car. The video then showed the black car driving in reverse, followed by a white car also driving in reverse, returning the way they came. Another church surveillance video from the same time period showed a white car driving down 130th Street toward Wilmington Avenue. When the white car stopped at the intersection of Wilmington Avenue, a second white car maneuvered around to the driver's side of the first car. A third white car approached the two cars from behind, and then drove in reverse back the way it came.
Forensic pathologist Scott Luzi testified Raya was shot once in his left arm above the elbow and twice in his head near his left ear. Dr. Luzi determined Raya died from multiple gunshot wounds to the head. Raya's injuries were consistent with Raya having raised his left arm to the same level as his head at the time he was shot.
Los Angeles Police Officer Oscar Morales...
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