People v. Davis
| Decision Date | 11 June 2020 |
| Docket Number | F076884 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ASIA TASHAY DAVIS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
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Asia Tashay Davis, along with codefendants Rayon Norwood and Robert Hunt, was charged with multiple criminal offenses and a number of gang and gun enhancements. Davis was charged with seven counts related to a home invasion robbery that occurred on July 6 and 7, 2016: in count 1, attempted murder (Pen. Code, §§ 664/187, subd. (a))1; in count 2, robbery of an inhabited dwelling in concert with two or more people (§ 213, subd. (a)(1)(A)); in count 3, torture (§ 206); in count 4, aggravated mayhem (§ 205); in count 5, first degree burglary (§ 460, subd. (a)); in count 6, participation in a criminal street gang (§ 186.22, subd. (a)); and in count 8, elder abuse (§ 368, subd. (b)(1)).2 It was further alleged that the attempted murder in count 1 was committed with premeditation and deliberation (§ 189); that the offenses charged in counts 1 through 5 and count 8 were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)); and that Davis was a principal in counts 1 through 4 and, in the commission of those offenses, at least one principal used a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)).
Davis was also charged with three counts relating to a home invasion robbery that occurred on May 10, 2016: in count 10, robbery of an inhabited dwelling in concert with two or more people (§ 213, subd. (a)(1)(A)); in count 11, kidnapping for the purpose of robbery (§ 209, subd. (b)(1)); and in count 12, participation in a criminal street gang (§ 186.22, subd. (a)). It was further alleged that Davis committed the offenses charged in counts 10 and 11, for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and that she was the principal in the commission of the offense in which at least one principal used a firearm (§ 12022.53, subds. (b), (e)(1)).
On September 27, 2017, trial began with separate juries for Davis and Norwood.3 On October 30, 2017, the jury advised the trial court that it was unable to reach a verdict on count 1. Shortly thereafter, the jury found Davis guilty on all other charges relating to her, but for counts 4 and 11, wherein the jury found Davis guilty of the lesser included offenses of mayhem (§ 203) and false imprisonment with violence (§ 236). The jury found the gang and gun enhancements associated with the guilty verdicts true. The trial court declared a mistrial on count 1, and that charge was later dismissed.
The trial court sentenced Davis as follows: on count 3, torture (§ 206), life with minimum parole eligibility of seven years, plus 25 years for the gun enhancement (§ 12022.53, subds. (d), (e)(1)). On count 2, robbery of an inhabited dwelling in concert with two or more people (§ 213, subd. (a)(1)(A)), the low term of three years, plus 25 years to life for the gun enhancement (§ 12022.53, subds. (d), (e)(1)), to be served consecutive to the sentence imposed on count 3. On count 4, mayhem (§ 203), the low term of two years plus 10 years to life for the gang enhancement (§ 186.22., subd. (b)(1)), both stayed.4 On count 5, first degree burglary (§ 460, subd. (a)), the low term of two years plus five years for the gang enhancement (§ 186.22, subd. (b)(1)), both stayed. On count 6, the gang offense (§ 186.22, subd. (a)), the low term of 16 months, stayed. On count 8, elder abuse (§ 368, subd. (b)(1)), the low term of two years plus three years for the gang enhancement (§ 186.22, subd. (b)(1)), both stayed. On count 10, the May 2016 robbery of an inhabited dwelling in concert (§ 213, subd. (a)(1)(A)), life with a minimum parole eligibility date of 15 years, to be served consecutive to the sentence in count 2, plus 10 years, stayed, for the gun enhancement (§ 12022.53, subds. (b), (e)(1)). On count 11, kidnapping for purpose of robbery, the low term of 16 months plus three years for thegang enhancement, both stayed. And on count 12, the gang offense (§ 186.22, subd. (a)), the low term of 16 months, stayed.
On appeal, we reject Davis's assertions that the verdicts rendered do not reflect her convictions in several counts and enhancements; that the trial court failed to adequately address the jury's questions during deliberation; that there is insufficient evidence to prove the nontarget crimes were the natural and probable consequence of the target crimes; that there is insufficient evidence to prove the gang enhancements; that the prosecutor committed prejudicial error in argument; that trial counsel rendered ineffective assistance; and that her sentence was grossly disproportionate to her culpability or cruel and/or unusual. We agree with her argument that there is insufficient evidence of the gang offense; that section 654 precludes punishment for both robbery and torture; and that the case must be remanded for the trial court to use its discretion on the gun enhancements.
On May 10, 2016, at about 2:30 p.m., Maria Z. answered the doorbell of her home and found Davis standing there. Also home with Maria Z. were her four-year-old daughter and two-year-old son. Davis asked Maria Z. for jumper cables because her car had broken down. Maria Z. said she did not have any and Davis began walking away. Maria Z. followed Davis for a short distance and told her a neighbor who owned a tire shop might have some. Maria Z. went back into the house, sent the kids to play in the backyard, and began folding laundry.
The doorbell rang again, and this time Davis asked to use a telephone. After Maria Z. retrieved her telephone and handed it to Davis, a man who had been standing facing the street near the house came toward Maria Z. and was screaming at her. The man had his undershirt pulled up over his face and had a gun.
Maria Z. retreated into the house, screaming, and the man and Davis followed her. The man told Maria Z. to stop screaming or he would kill her and the children. Davis took Maria Z.'s car keys from her, but Maria Z. did not see Davis after that. The man then motioned Maria Z. toward the master bedroom while walking behind her with the gun.
Once inside the bedroom, the man told Maria Z. to open the safe, which she was able to do on the second try. The man emptied the contents of the safe, which included cash, paperwork, jewelry, gold and silver coins, guns and ammunition. The man asked where the second safe was. When Maria Z. said there was no second safe, the man again threatened to kill her and the children.
As the first man was loading the items into a suitcase, a second man wearing a ski mask entered the room. He also had a handgun. When the second man moved Maria Z. to another room, she saw a third man, wearing a bandana, who would occasionally walk over to the window facing the street and look out. He also had a gun.
When a car outside began honking, the first man told Maria Z. to lie on the floor and count to 100 and not look outside, or he would kill her. Maria Z. counted to 60 and then ran outside, grabbed her children, ran to the neighbor's house and called 911. Maria Z. estimated that the entire incident lasted 10 minutes.
When Maria Z. returned to her house, she realized that the entire house had been ransacked, the items of the safe were gone, as well as a cell phone, car keys and computer devices.
Maria Z. was shown a number of photographic lineups, but she was only able to identify Davis as the woman who knocked on her door and entered her home with the three masked men.
A beanie later found in Maria Z.'s older daughter's room was submitted for DNA analysis and codefendant Hunt was determined to be a major contributor of the DNA found on the beanie.The July 2016 Home Invasion Robbery (Counts 1-6, 8)
On the evening of July 6, 2016, 80-year-old Florence M. was home when someone rang the doorbell. When Florence M. answered the door, Davis asked to use the telephone because she was having car trouble. Florence M. opened the wrought iron security door a few inches and gave Davis the phone. As she did so, three men, who had been hiding in the bushes, slammed open the door and entered the home. According to Florence M., Davis followed the men inside, but she did not see her in the house thereafter. Florence M. could not identify the men in subsequent photographic lineups, but described them as being Black, in their 20s, and of average height and build.
Once inside the home, the men moved Florence M. down the hall to the room she used as an office and told her to open the safe. She thought one of the men had a gun. Florence M. told them she could not open the safe, and the men threatened to shoot her if she did not. Florence M. told the men she would try to call her son to help open the safe, but when she did so, he was not home. Florence M. told the men, "I, guess you are going to have to shoot me."5
Sometime later, one of the men struck Florence M. on her head. She did not see who struck her, but believed she was hit...
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