People v. Douglas, No. A122832 (Cal. App. 4/15/2010), No. A122832.

CourtCalifornia Court of Appeals
Writing for the CourtDondero
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JUNOR DOUGLAS, Defendant and Appellant. TTHE PEOPLE, Plaintiff and Respondent, v. MARQUIS RASHAWN DOUGLAS, Defendant and Appellant.
Decision Date15 April 2010
Docket NumberNo. A122888.,No. A122832.

Page 1

THE PEOPLE, Plaintiff and Respondent,
v.
JUNOR DOUGLAS, Defendant and Appellant.
TTHE PEOPLE, Plaintiff and Respondent,
v.
MARQUIS RASHAWN DOUGLAS, Defendant and Appellant.
No. A122832.
No. A122888.
Court of Appeals of California, First District, Division One.
Filed April 15, 2010.

Appeal from Napa County, Super. Ct. Nos. CR-134003, CR-137630.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

DONDERO, J.


Defendants Junor and Marquis Douglas1 were jointly tried and convicted of second degree murder (Pen. Code, § 187), shooting at an inhabited dwelling (Pen. Code, § 246), discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3), and possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)(1)). Marquis alone was also convicted of possession of live ammunition by a minor (Pen. Code, § 12101, subd. (b)(1)), and entered a guilty plea to one of two charged counts of attempting to dissuade a witness from testifying (Pen. Code, § 136.1, subd. (a)(2)).2 The jury further found that Junor committed two charged enhancements for personal use of a firearm during commission of two of the offenses. Junor received an aggregate state prison term of 70 years to life; Marquis received an aggregate state prison term of 20 years to life.

Junor argues in his appeal that his counsel rendered ineffective representation by failing to request an additional or pinpoint instruction on unreasonable self-defense, and by allowing the trial court to give the jury access to the tape recorded preliminary hearing testimony of a witness during deliberations, and the trial court erred by imposing a consecutive sentence for shooting at an inhabited dwelling and two enhancements for personal use of a firearm. We find that an unreasonable self-defense instruction was not justified by the evidence, and giving the jury the videotape of the witness's testimony was not error. We further find that imposition of the consecutive sentence for shooting at an inhabited dwelling and the two firearm use enhancements was not error.

Marquis argues that the trial court's instructions on aiding and abetting and the natural and probable consequences doctrine were deficient, and his counsel should have objected to the prosecutor's misstatement of the law during closing argument. We conclude that the aiding and abetting and the natural and probable consequences instructions were adequate, and no prosecutorial misconduct was committed that would have justified an objection by defense counsel.

We therefore affirm both judgments.

STATEMENT OF FACTS

The offenses were committed on the night of January 27, 2007, at a "sweet 16th birthday" party held for Chanel C. at her family's home in American Canyon. The party was attended by Chanel's family and friends she invited. A dance floor was set up in the garage, and a DJ was hired to play music.

Chanel's father Robert C., an Oakland Police Officer, formulated security arrangements for the party to "make sure there was no alcohol, no fights, and basically no crashers." Chanel's brothers Robert, Randy and R., along with her cousins Brandon and Eddie Abasolo, were enlisted to screen the guests upon their arrival to verify that they were invited and to check for weapons or alcohol. Other than the "immediate family members," the guests were restricted to the garage, where the "majority of the dancing" took place.

Chanel was not acquainted with defendants and did not invite them to the party. She told her neighbor and classmate Alfonzo Reed that "he was invited," and he in turn asked defendants and another friend Davone Bracy to accompany him to the party. Marquis brought a .22-caliber revolver to the party with him. He typically carried the gun with him whenever he "went somewhere" in Vallejo "where it [sic] could be . . . some kind of altercation." He took the gun to the party and "loaded it that night" with six to eight bullets due to the "strong possibility" that someone might start a conflict that would result in shooting. When defendants, Alfonzo and Davone appeared at the party, Chanel told her brother she "thought it was okay" for all of them to "come in." The gun was left in Alfonzo's car.

Defendants stayed at the party for a while, then briefly left, but returned at around 10:30 or 10:45. The party was still "packed," with a "lot of people" dancing in the garage. An argument ensued between Alfonzo and a girl he was dancing with, who twice accused him of "grabbing her ass," an accusation Alfonzo denied.3 He became enraged and cursed at the girl. She "got on the phone" to call someone, whereupon Alfonzo threatened to "beat her up" or "have somebody beat her up." Alfonzo thought the girl was calling some friends who live near a bridge in Vallejo, known collectively as the "Bridge Boys." Alfonzo previously had a dispute with one of the Bridge Boys, so he became "real pumped up" and "ready to fight." Junor was with Alfonzo in the garage as the conflict developed, but was not upset and told Alfonzo "to be cool." At Alfonzo's request, Marquis retrieved the loaded gun from the car and placed it in his pants, under his pea coat with the barrel pointed down.

About 30 minutes later six of the Bridge Boys arrived at the party. Alfonzo remained "wild" and ready to fight them. He intentionally bumped into one of the Bridge Boys, as a challenge to fight, and received a bump and "hand sign" in return. Junor joined Alfonzo and was also "about to fight" the Bridge Boys. They "squared up" to fight when Chanel and her brother Roland along with Eddie Abasolo "rushed into the garage," pinned Alfonzo and Junor against the garage door, and told them to "break it up."

Alfonzo complied with Roland's directive to "back off," but Junor became uncooperative and enraged when Eddie held him firmly by the shirt and "didn't let him go." Eddie ordered Junor and Alfonzo to leave the party. Junor responded, "I'm going to get you," and took a swing at Eddie that missed. Eddie then "head-butted" Junor in the face and pushed him out of the garage as the garage door was opened. As Junor was forced out of the garage and onto the driveway witnesses heard him repeatedly threaten to "kill" and "pop" Eddie, meaning shoot him. T.W., who arrived at the party to pick someone else up, testified at the preliminary hearing that when she asked Marquis if a fight was about to happen, he replied, "nah, I think somebody is going to get popped."

Junor skipped quickly backwards toward the bushes near the driveway to where Marquis was standing, as many of the other party guests left the garage. Junor stated to Marquis, "Hand me the piece. I'm about to pop him. I don't care. I'm about to do it right now." Marquis responded, "No, that's not smart." Junor placed his hands around the waistline of Marquis's pea coat and attempted to "grab something" as Marquis was "trying to walk off." Junor repeatedly demanded that Marquis give him "the strap" as the "tussle" to extract the gun continued momentarily. One witness, R., testified that Marquis assisted Junor in his effort to get the gun out of the coat, as they both "were yelling to get something out." Other witnesses thought Marquis attempted to prevent Junor from taking the gun. Junor made a "quick turn" of his body as though he jerked an object away from Marquis. After Junor took the gun, Marquis moved toward the street and a witness heard him warn Junor, " `That's hot,' meaning, not smart."

Witnesses then heard a gunshot, and observed a flash near Junor's head or his hand as he stood in the driveway. Two more gunshots were fired from the same location a few seconds later. Alfonzo testified that the first and second shots were fired into the air, but the third shot was fired by Junor directly toward the house. T. also testified that she observed at least one shot fired by Junor with his hand in the air, and another shot fired as he pointed his hand at the garage. After the shots were fired, Junor and Marquis were then seen running away with a third person. The victim, Anthony Gee, fell to the ground in the garage with a fatal gunshot wound to the head.

Defendants, Davone and Alfonzo ran to the car. As Junor arrived at the car he exclaimed, "I had to blap at the niggers," meaning shoot at them. Alfonzo mentioned that they had to "get rid of that gun," so they stopped at a corner and Junor threw it "at some bushes." They drove to Davone's house, where Junor removed his shirt and washed his hands and arms.

The next morning they learned that Gee had been shot and killed. Junor seemed "shocked." He expressed remorse and stated, "I wasn't even trying to shoot that boy. I was trying to shoot the nigga that head butted me." Junor retrieved the gun from the bushes where it had been "stashed," and said "he was going to have his uncle destroy it."

Junor acknowledged that he shot the victim, but claimed that the shooting occurred accidentally, in part due to a malfunction of the gun. He testified in his defense that after eight of the Bridge Boys arrived at the party Alfonzo became "worried" and requested that they "get the gun" from the car. Marquis "got the gun out of the car" and brought it back to the party. A disturbance then commenced between Alfonzo and Emil, one of the Bridge Boys. Junor thought the Bridge Boys were about to "jump" Alfonzo, so he "ran over there to go help." As Junor approached Alfonzo, he was grabbed by Eddie, slammed into the garage door, and "headbutted." Junor punched Eddie and said, "let me go or I'm going to pop you." When he said that, he did not intend to shoot Eddie, but rather merely wanted to be released.

According to Junor, Alfonzo then yelled that they should get the gun. Junor also asked Marquis for the gun to "be able to scare the Bridge" Boys, who outnumbered them. Marquis told Junor to "be cool" and backed away as Junor reached for the gun. Junor took the gun from Marquis's pants, and shot it into the air twice to scare the Bridge Boys. He tried to...

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