People v. Buchanan
| Decision Date | 16 March 2022 |
| Docket Number | B305671 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MIKELL BUCHANAN, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Order Filed Date: 4/11/22
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA464579 Laura R. Walton, Judge. Affirmed in part vacated in part, and remanded.
The Law Office of J. Blacknell and Kellen I. Davis for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Michael R Johnsen, Supervising Deputy Attorneys General, Michael Katz Deputy Attorney General, for Plaintiff and Respondent.
It is ordered that the opinion filed herein on March 16, 2022, is modified as follows: On page 63, in the first full paragraph, delete from the first sentence "the predicate offenses must have been committed by two or more gang members; (3)" and change "(4)" to "(3)".
The sentence, as modified by this order, shall read as follows: To prove a "pattern of criminal gang activity" as defined in subdivision (e)(1), under the amended law: (1) the last of the predicate offenses used to demonstrate a pattern of criminal activity must have occurred within three years of the date the current offense is alleged to have been committed; (2) the predicate offenses must have commonly benefitted a criminal street gang; and (3) the common benefit of the predicate offenses must be more than reputational.
There is no change in judgment.
A jury convicted defendant and appellant Mikell Buchanan of the first degree premeditated murder of Davion Gregory (Pen. Code, § 187, subd. (a)[1] [count 3]), five counts of premeditated attempted murder (§§ 187/664 [counts 5-9]), one count of shooting from a motor vehicle (§ 26100, subd. (c) [count 4]), and five counts of possession of a firearm by a felon (§ 29800, subd. (a)(1) [counts 28-32]). The jury found true the special circumstance allegations that the murder was accomplished by lying in wait (§ 190.2, subd. (a)(15)) and shooting from a motor vehicle (§ 190.2, subd. (a)(21)), and that Buchanan intentionally killed Gregory while Buchanan was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)).
As to counts 3 through 9, the jury found true the allegations that Buchanan personally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (b)-(d)), that a principal discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (b)-(e)), and that Buchanan committed the offenses at the direction of, in association with, or for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). It found true the allegations that Buchanan committed the five firearm possession offenses (counts 28-32) at the direction of, in association with, or for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)).[2] Prior to the jury's deliberations, the court dismissed the charge that Buchanan attempted to murder Chad Jones (§§ 187/664 [count 13]), and the associated charge of possession of a firearm by a felon (§ 29800, subd. (a)(1) [count 34]).
At the sentencing hearing, the trial court dismissed the five charges of felon in possession of a firearm in the interests of justice. (§ 29800, subd. (a)(1) [counts 28-32].) As relevant here, the trial court also struck the firearm allegations in counts 7, 8, and 9. (§12022.53, subds. (b)-(d), (e)(1).) The trial court imposed firearm use enhancements in counts 3, 5, and 6. As to count 4, the sentence and all allegations were imposed and stayed pursuant to section 654. Buchanan was sentenced to life without the possibility of parole plus a consecutive term of 135 years to life.
In his opening brief, Buchanan contends that (1) the trial court dismissed two jurors in violation of his due process rights, (2) the trial court improperly admitted the statement of a co-participant in the shooting crimes, (3) the trial court improperly excluded evidence of a prosecution witness's prior acts relating to dishonesty, thereby prohibiting cross-examination on that evidence, (4) the prosecution failed to disclose exculpatory evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady) and elicited evidence that it knew to be false, (5) the possession of a firearm by a felon charges in counts 28-31 were barred under Kellet v. Superior Court (1966) 63 Cal.2d 822 (Kellet), and (6) there was insufficient evidence to support Buchanan's convictions relating to the December 10, 2016 shootings.[3]
On January 1, 2022, while Buchanan's appeal was pending, Assembly Bill No. 333 (Stats. 2021, ch. 699, §§ 1-5) (Assembly Bill 333) became effective. The legislation imposes additional elements, beyond the elements that were required at the time of Buchanan's trial, to impose gang enhancements charged pursuant to section 186.22. The Legislation also adds section 1109, which, as relevant here, provides for the bifurcation at trial, upon a defendant's request, of the gang enhancement allegations charged under section 186.22, subdivisions (b) and the other charged offenses. We invited the parties to file supplemental briefing regarding the effect, if any, of Assembly Bill 333 on Buchanan's case.
The parties filed letter briefs. Buchanan argues, and the People concede, that the amendments Assembly Bill 333 made to section 186.22 apply to his case, as the new law became effective while the case was still pending on direct appeal. Based on the amendments, Buchanan asserts that the gang allegations, as well as the gang special circumstance (§190.2, subd. (a)(22)) and gang-related firearm enhancements (§ 12022.53, subd. (e)) that incorporate section 186.22, must be vacated and the case remanded. The People respond that remand is unnecessary, because there is no reasonable doubt that the jury would have found the gang allegations true under the new requirements. The parties also disagree regarding whether section 1109 has retroactive effect. While Buchanan asserts that section 1109 must be applied to his case, the People argue that the newly enacted legislation does not alter the substantive requirements for imposition of gang enhancement allegations, and therefore applies prospectively only, not retroactively to cases pending on direct appeal, such as Buchanan's case.
We affirm the convictions for murder, attempted murder, shooting from a motor vehicle, and possession of a firearm by a felon. We vacate the sentence enhancements imposed under sections 186.22 and section 12022.53, subdivision (e), and the section 190.2, subdivision (a)(22) special circumstance allegation, and remand for further proceedings consistent with this opinion. The firearm enhancements imposed for Buchanan's personal firearm use under section 12022.53, subdivision (d) in counts 3, 5, and 6, and imposed and stayed in count 4 are unaffected by Assembly Bill 333, and remain intact.
Prosecution Evidence
In 2015, Daveion Ervin became part of a group of rappers who called themselves Too Greedy Family/STINCC Team (Too Greedy). Ervin used the moniker Solo. He discovered the group after he became familiar with Darrell Caldwell, who was a popular underground rapper known as Drakeo the Ruler. Too Greedy had about 20 to 30 members when Ervin was part of the group. Too Greedy members belonged to several different Crips gangs. Buchanan, who was a member of the Rollin 100's Crips gang (Rollin 100's) and went by the moniker Kellz was also a member of Too Greedy and a close friend of Darrell Caldwell. Devante Caldwell, Darrell's brother, was a member of Too Greedy, and went by the moniker Ralfy the Plug.[4] Joshua Torres was also a member of Too Greedy, and was known as Too Shitty. Jaidan Boyd, who was younger than most of the Too Greedy members, started hanging out with Too Greedy members in the summer of 2016. Boyd wanted to be a rapper. He was a member of the Rollin 40's Crips gang (Rollin 40's) and used the moniker AB.
Too Greedy members were "flockers," which is a term for a burglary crew. They often stole from Asians. They were also known as the STINCC Team; STINCC is a derogatory term for Asians. Too Greedy members had a hand sign that they used and had Asian and money-themed tattoos.
Too Greedy had problems with people in several Bloods gangs. In December of 2016, Darrell Caldwell had a rivalry with "RJ", a member of the Athens Park Bloods, who was also a popular rapper. They disagreed about who was the better rapper and agreed to fight at one point, though the fight never occurred.
On December 10, 2016, Ervin went to a pajama party in Carson with Buchanan and approximately ten other Too Greedy members. They caravanned to the party in four or five cars. Darrell Caldwell drove Ervin and Buchanan to the party. Ervin sat in the front passenger seat and Buchanan sat in the back passenger seat. Boyd joined the group in a separate car as they were leaving. The group pulled into the parking lot at the party but did not go inside. They were sitting in their vehicles when a group of six males walked past quickly. Ervin recognized one of the males as Gregory (the murder victim) or "Red Bull" from Inglewood Family Gangsters, a Bloods gang.[5] Inglewood Family Gangsters were rivals of Boyd's gang, the Rollin 40's.
Just as the group reached the front of Darrell Caldwell's car Ervin heard gunfire and ducked down. When Ervin looked up again there was a lot of commotion-people were running and the gunfire was ongoing. Ervin thought they were under attack from a Bloods gang. He saw Buchanan holding a .40 caliber Glock pistol. Buchanan said, "I...
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