People v. Duke

• Decision Date: 28 September 2020
• Docket Number: B300430
• Citation: 269 Cal.Rptr.3d 264,55 Cal.App.5th 113
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jonathan Daveilo DUKE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

55 Cal.App.5th 113

269 Cal.Rptr.3d 264

The PEOPLE, Plaintiff and Respondent,

v.Jonathan Daveilo DUKE, Defendant and Appellant.

B300430

Court of Appeal, Second District, Division 1, California.

Filed September 28, 2020

Spolin Law, Aaron Spolin, Los Angeles, and Caitlin Dukes for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, P. J.

Defendant and appellant Jonathan Daveilo Duke challenges the trial court's denial of his petition under Penal Code ¹ section 1170.95 for resentencing on his murder conviction. A jury convicted Duke of murder in 2013 for his involvement in an incident in which a cohort stabbed the victim, Victor Enriquez, to death. The trial court denied the petition after finding beyond a reasonable doubt that Duke could still be convicted of murder and was thus ineligible for resentencing under section 1170.95. Duke contends that the trial court erred by treating the case as if it involved felony murder, when it instead involves the application of the natural and probable consequences doctrine. We agree that the case does not involve felony murder, but we nevertheless affirm because the court correctly concluded that Duke could still be convicted of murder under the law as amended.

FACTS AND PROCEEDINGS BELOW

In a prior opinion in Duke's direct appeal ( People v. Duke (Jan. 17, 2017, B264579), 2017 WL 379231 [nonpub. opn.] ( Duke I )), we described the facts of the case as follows:

"Evidence indicated that virtually all those involved in the case—the victim, the perpetrators, and the most important witnesses—were members of, or associated with, various street gangs. According to a [Los Angeles County] [S]heriff's deputy who testified as an expert witness, members of many different gangs reside in close proximity to one another in Palmdale. Gang members typically arrive in Palmdale when their families relocate from other areas of Los Angeles County. Because most gang members are transplants from other areas, gangs in Palmdale generally have less clearly defined territories than elsewhere.

"Enriquez, the victim in this case, and Duke were both members of the Rollin’ 60's, a gang associated with the Crips. Crowder, Duke's codefendant who played the lead role in the stabbing, was a member of the Fruit Town Piru gang, which is associated with the Blood Nation. Terrence Dorsey, Enriquez's friend who testified against Duke, was affiliated with the Kitchen Crips gang but he testified that he had not been active in the gang for many years. Three other key witnesses, Anthony Palmer, Deon Tatum, and Kenneth Thomas, were all members of Dime Block, a small gang that started in the area near where the murder took place. In other areas of Los Angeles County, members of these different gangs might be enemies, but because of the lack of well-defined gang territories in Palmdale, members of the gangs in the Palmdale area often associate with and ally with one another.

"Palmer testified that, although they were both members of the same gang, Duke and Enriquez had disliked one another since at least June 2012, when they got into a fistfight after Enriquez told people that Duke was not a true member of the Rollin’ 60's because he had not been jumped into the gang.

"According to Palmer, in the months prior to the [stabbing], rumors spread among gang members in the area that Enriquez was a snitch, and that when police had discovered a gun that might have belonged to him, he blamed his own brother, another member of the Rollin’ 60's. Palmer heard that Enriquez might have provided the police with information that led to Palmer's conviction for felony theft. Detective Richard O'Neal, a sheriff's deputy assigned to the gang detail, confirmed these rumors, testifying that Enriquez had been a police informant for a couple of months, and that his information led to the arrest of a drug dealer named Kevin Hart on the same day that Enriquez was later murdered.

"The prosecution presented four accounts from witnesses who either testified or told police that they witnessed the stabbing or the events immediately before and afterward. Two of these witnesses, Palmer and Dorsey, testified at trial. The other two, Tatum and Thomas, testified that they did not know or could not remember anything about the murder, but the court admitted their prior statements made to the police in which they described what happened immediately before and after the stabbing.

"Palmer testified that, on the night of the stabbing, Duke, Crowder, and several other gang members congregated outside Duke's home, which was located across the street from the apartment complex where Enriquez was located. Upon seeing Enriquez inside the gate of the apartment complex, the group talked about retaliating against him for his snitching. Crowder and Duke said they ‘got to do something to’ Enriquez. Duke encouraged Palmer to shoot Enriquez in retaliation for Enriquez's role in securing Palmer's conviction for felony theft. According to Palmer, Duke offered to obtain a gun for Palmer to use, but Palmer said they should wait until later, when fewer people were around.

"Palmer left the group but returned approximately 30 minutes later. When he returned, he saw Duke and Crowder walking across the street toward the security gate of the apartment complex where Enriquez and Dorsey were located. He saw Crowder punch Enriquez, and Duke joined in, hitting Enriquez once or twice. Enriquez tried to run away, but Crowder pursued Enriquez and fell on top of him. At this point, Palmer saw that Crowder had a knife in his hand. Duke did not help Crowder chase down Enriquez, but stayed at the gate. Afterward, Duke and Crowder walked back across the street, and Palmer and the others ran away.

"Tatum, another member of the Dime Block gang and an associate of Palmer, testified that he did not see the stabbing and said he could remember nothing in relation to it. The prosecution played a recording of Tatum's police interview made shortly after Enriquez was killed in which Tatum described events shortly before and after the stabbing consistent in most respects with Palmer's testimony and adding details of events that occurred when Palmer was not present. Tatum told police that while the group was congregated outside Duke's house, he saw Duke and Crowder get ‘big ass knives’ and start jumping around and displaying them. According to Tatum, Crowder's knife looked like ‘brass knuckles,’ while Duke's was a large kitchen knife. Tatum saw the two holding the knives as they walked across the street toward the gate to the apartment complex where Enriquez was located. Tatum then left the scene, explaining that he did not believe anything would happen and that he did not want to witness a stabbing. Tatum identified Duke and Crowder from a photo array as the people he saw holding the knives.

"Dorsey was a member of the same gang as Duke and Enriquez, the Rollin’ 60's, a gang affiliated with the Crips. Dorsey testified that he and Enriquez spent the evening in an outdoor area of the apartment complex smoking marijuana. He saw Duke and Crowder approaching the security gate together. Enriquez asked Duke and Crowder if they wanted to enter, and held the door open for them. According to Dorsey, Crowder pulled Enriquez toward him and stabbed him. Dorsey then ran away.

"Kenneth Thomas, a member of a local unaffiliated gang, and one of the group that gathered near Enriquez's building, testified that he had never seen Duke before, and that the police were trying to get him to lie about witnessing the stabbing. Detective Brandt House, a deputy [sheriff], testified that he interviewed Thomas a few days after the stabbing, and that on that occasion, Thomas told him that he saw the stabbing. According to Detective House, Thomas told him that he saw Enriquez on the ground with two men standing over him. One of the men was bent over and appeared to be striking Enriquez with a knife. Thomas said that the other attacker was ‘posted up,’ standing at the ready to assist the primary attacker. Thomas told Detective House that he believed the second attacker also had a knife, and that he had struck Enriquez. Thomas also remembered Dorsey being present with Enriquez, but said that Dorsey was not one of the attackers. The primary attacker then got into a car. Thomas refused to identify the attackers from a photographic line-up.

"A prosecution medical expert who performed an autopsy on Enriquez testified that Enriquez had been stabbed 15 times, and that more than half of the stab wounds could have been fatal.

"Deputies arrested Crowder two days later, on October 19. They discovered Crowder had a cut and a scrape on his right knee, which was consistent with an injury he might have suffered when, according to Palmer's testimony, Crowder tripped and fell over Enriquez during the attack. Deputies searched Crowder's home and found a shoe with dried blood on it. Lab tests revealed the blood contained DNA from Enriquez, as well as from an unknown person, but not from Crowder or Duke. Acting on information from an anonymous caller, deputies discovered two knives in an abandoned mattress near the stabbing location. One of the knives had finger holes and appeared to have blood on it. Lab tests showed that the blood contained Enriquez's DNA and DNA from an unknown party. The other knife was a serrated kitchen knife that did not appear to have blood on it. According to the prosecution's medical expert, the knife with finger holes could have caused all of Enriquez's wounds, and the kitchen knife would not have caused wounds like those Enriquez suffered." ( Duke I , supra , B264579.)

A jury convicted Duke of first degree murder (§ 187) and found true an allegation that Duke committed the offense for the benefit of a criminal street gang (§...