People v. David, B207597 (Cal. App. 9/23/2009)

• Decision Date: 23 September 2009
• Docket Number: B208306,B207597
• Parties: THE PEOPLE, Plaintiff and Respondent, v. KYLE MACOY DAVID and, CHARLES BLOCK, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. KYLE MACOY DAVID and, CHARLES BLOCK, Defendants and Appellants.

B207597

consolidated with B208306

Court of Appeals of California, Second Appellate District, Division Five

September 23, 2009.

Not to be Published in the Official Reports

Appeal from a judgment of the Superior Court of Los Angeles County, No. BA315610, Robert J. Perry, Judge. Affirmed with modifications.

Coker and Associates and Robbin M. Coker for Defendant and Appellant Kyle Macoy David.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Charles Block.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P. J.

I. INTRODUCTION

Defendants, Kyle Macoy David and Charles Block, appeal from their convictions for the murder of Kalbert Kauo. Mr. David was convicted of second degree murder. (Pen.Code,¹ § 187, subd. (a).) The jurors further found Mr. David personally discharged a firearm causing death. Additionally as to Mr. David, the jury found a principal personally discharged a firearm causing death. (§ 12022.53, subds. (d) and (e)(1).) Mr. Block was convicted of first degree murder (§ 187, subd. (a)) and conspiracy to commit murder. (§ 182, subd. (a)(1).) As to both of Mr. Block's convictions, the jurors also found a principal personally discharged a firearm causing death and the murder was committed for the benefit of a criminal street gang. (§§ 186.22, subd. (b)(1), 12022.53, subds. (d) and (e)(1).) The trial court also found that Mr. Block was previously convicted of three serious felonies. (§§ 667, subd. (a)(1).)

Both defendants were originally tried together. As set forth above, the jury found Mr. David guilty of second degree murder and returned the firearm use findings. However, the jury was unable to reach a verdict as to Mr. Block and a mistrial was declared on January 29, 2008, as to him. Mr. Block was subsequently retried and convicted as noted above on March 27, 2008.

Mr. David argues the trial court improperly: denied his motion based on improper use of peremptory challenges; denied Mr. Block's severance motion; replaced a sitting juror with an alternate; failed to instruct the jury to begin deliberations anew when the alternate juror was seated; and sentenced him to 40 years to life. Mr. Block argues that the trial court improperly: refused to grant him a separate trial; allowed Mr. David to take the stand during the retrial; and failed to instruct the jury that Jennifer Fajota and Attawut Rhahamadprasert were accomplices as a matter of law. The Attorney General argues an additional court security fee should have been imposed and the section 186.22(b)(1)(c) enhancement should have been stricken as to Mr. Block. We affirm with modifications.

II. FACTUAL BACKGROUND

A. Evidence Presented at Joint Trial

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Mr. Rhahamadprasert was a member of a local Asian gang in December 2006. Both defendants were also members of that gang. Mr. Block was the leader of the gang. Mr. Block's half-brother, Mr. Kauo, Mr. David's twin brother, Casey,² Raymond Kim, Ray Macoy, Anthony Bishop, and Angelo Quintas were also members of the local gang. Mr. Kim was David's cousin. Mr. Block and Mr. Kauo had guns. Casey had a shotgun. After Mr. Block was released from prison, the members of the Asian gang joined forces with a regional Latino gang. Mr. Block told his fellow gang members, "Either you're riding with me or you're not." Mr. Rhahamadpasert understood that to mean Mr. Block wanted the local gang to associate with the Latino gang. Approximately four or five months prior to December 2006, Mr. Block spoke to Mr. Rhahamadpasert about the affiliation with the Latino gang. Mr. Rhahamadpasert testified, "He always said you not riding with me, then you and your family and your homies will be in danger too." Although the local gang had no specific enemies, they defended their territory against anyone who did something bad by fighting or exchanging gunfire. The local gang frequented a house at 112 South Mariposa Avenue where they used methamphetamine. The local gang "tagged" the house with their gang signs. The gang was also involved in stealing mail to obtain credit cards.

Ms. Fajota, Mr. Block's fiancé, testified under a grant of immunity. Prior to December 28, 2006, Ms. Fajota lived with her children, Mr. Block, and Mr. Kauo at 5744 North Laurel Canyon Boulevard in North Hollywood. Mr. Kauo left from time to time. On December 28, 2006, Mr. Kauo, Helen Chung and Raymond Kim visited Ms. Fajota's apartment. Ms. Fajota was about to leave with her children to meet Mr. Block in Thousand Oaks. Mr. Kauo told Ms. Fajota that he wanted to pick up some of his clothes. Ms. Fajota gave Mr. Kauo the keys to her apartment. Mr. Kim returned the keys to her. When Ms. Fajota left, Mr. Kauo, Ms. Chung and Mr. Kim were in the apartment.

Ms. Fajota and her four children went to the home of Tina Molina and Bryan Johnston in Thousand Oaks. Ms. Fajota later telephoned her apartment. Mr. Block answered the phone. Mr. Block wondered where Ms. Fajota was and what happened to her apartment. Mr. Block angrily asked, "Who the F was here?" Mr. Block said the apartment was "tagged" with the gang monikers of Mr. Kauo and others. Ms. Fajota told Mr. Block that Mr. Kauo, Mr. Kim and Ms. Chung had been at the apartment. Thereafter, Mr. Block drove to Thousand Oaks. Mr. Block and Ms. Fajota drove back to her apartment to look for Mr. Kauo. After securing her apartment, Mr. Block and Ms. Fajota drove to the Burbank residence of Mr. David and Casey. Mr. Block was very angry. Mr. Block asked Ms. Fajota if she was sleeping with Mr. Kauo. Ms. Fajota responded, "No."

Before arriving in Burbank, Mr. Block telephoned Mr. David. Mr. David placed his cellular telephone on speaker mode. This allowed Mr. Rhahamadpasert and Casey to hear the conversation. Mr. Block said that Mr. Kauo "Got to go" and "Green light on [Mr. Kauo]." Casey heard Mr. Block say: "If [they] didn't take out [Mr. Kauo], out of the picture, he would [] kill [their] families, the rest of the party's families." Mr. Rhahamadpasert understood that to mean they should "take him out;" i.e. kill Mr. Kauo. Mr. Rhahamadpasert spoke to Mr. David. Mr. David was asked if he was sure of the directions they had heard over the telephone. Mr. David said, "We just got to do what we got to do." Casey contacted Mr. Macoy and Mr. Bishop. Casey told Mr. Bishop, "There's been a green light put out on [Mr. Kauo]." Casey told Mr. Bishop that Mr. Block's house was trashed by someone suspected to be Mr. Kauo. Mr. Bishop was directed to drive to Casey's house. Mr. Bishop said he was busy and did not want a part in their plan. Ten minutes later, Casey called Mr. Bishop again. Mr. Bishop was ordered to drive to Casey's house. Mr. Bishop again refused. Later Mr. Bishop received a call from Mr. Macoy. Mr. Bishop then went to Casey's home with Mr. Rhahamadpasert. Casey took out a shotgun.

Mr. Block and Ms. Fajota arrived at the David residence at approximately 1:30 or 2 p.m. Mr. David, Casey, Mr. Macoy, Mr. Bishop and Mr. Rhahamadpasert met Mr. Block in the driveway. Mr. Block said: "I can't believe I have to do this. I can't believe my own brother would do this to me in my own house." Mr. Rhahamadpasert explained he had to complete his community service. Also, Mr. Rhahamadpasert's father had to be picked up from work. Mr. Block told Mr. Rhahamadpasert to go ahead and leave. Mr. Rhahamadpasert then drove away. Thereafter, Mr. David, Casey, Mr. Macoy, Mr. Rhahamadpasert, Mr. Block and Ms. Fajota drove away in two cars. Mr. Block, Mr. David and Ms. Fajota drove in a van together. Mr. Rhahamadpasert understood that he was supposed to have participated in the killing. The other two cars were driven to the home of Mr. Kim in Torrance, where Mr. Kauo was believed to be staying. En route, Mr. Block told Ms. Fajota to get out a gun. When they arrived at Mr. Kim's home, no one was present. Casey locked his keys in his car. Mr. Block, Mr. David and Ms. Fajota drove to the "Mariposa" house in Ms. Fajota's van. Mr. Block ordered Mr. Bishop, Mr. Macoy and Casey to remain at the Torrance address to await assistance for unlocking the car and then drive to the Mariposa house.

When, Mr. David, Mr. Block and Ms. Fajota arrived at the Mariposa house, Mr. Kauo was playing cards there. Mr. Block asked Mr. Kauo to step outside. Mr. Block and Mr. Kauo talked and hugged one another. Mr. Block kissed Mr. Kauo. Mr. Kauo looked at Ms. Fajota and mouthed, "I'm sorry." Ms. Fajota and Mr. Block then left for her apartment, where they began to clean up the damage. Mr. David remained behind. When Casey, Mr. Macoy and Mr. Bishop finally arrived at the Mariposa house, Mr. David was in the driveway. Mr. David was dressed in black with a bandanna on his neck and a beanie over his head. Mr. David told Mr. Macoy and Mr. Bishop to go inside and speak to Mr. Kauo. Mr. Kauo was to be told that the twins wanted to talk to him outside. Casey remained in his car. Mr. Kauo, Ms. Chung and two older men were in a bedroom of the house playing cards. Mr. Macoy asked where Mr. Kim was. Mr. Kauo said Mr. Kim was sleeping in another room. Mr. Macoy spoke to Mr. Kauo. Mr. Kauo was told the twins wanted to speak with him. Mr. Kauo responded, "After this card game." Mr. Bishop asked Mr. Kauo for a cigarette. Mr. Bishop stepped out of the house, while Mr. Macoy remained inside.

Mr. Bishop walked outside of the house. There Mr. David placed a bandanna over his mouth and nose. Mr. David pulled a .9 millimeter gun...