People v. Gross
| Decision Date | 31 August 2022 |
| Docket Number | D079878 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DWIGHT GROSS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No MCR056168, Mitchell C. Rigby, Judge. Affirmed in part and remanded with directions.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson Deputy Attorneys General, for Plaintiff and Respondent.
A fight broke out at a bar between members of the Crips gang and the Bloods gang on New Year's Eve 2012. The conflict continued into the next morning when Dwight Gross, a known member of the 1200-block Seaside Crips, shot and killed Gerald Warren, a former rival Bloods gang member. In 2019, a jury convicted Gross of first degree murder with the gang-murder special circumstance and the gang sentencing enhancement. (Pen. Code,[1]§§ 187 subd. (a), 189, 190.2, subd. (a)(22), 186.22, subd. (b)(5); count 1.) The jury also convicted Gross of the substantive crime of active participation in a criminal street gang. (§ 186.22, subd. (a); count 2.) On appeal, Gross asserts there was insufficient evidence to support the jury's verdict, the trial court erred by allowing the prosecutor to introduce evidence of uncharged crimes involving Gross to prove motive and intent, and the People violated Gross's due process rights by committing Brady[2] error. We find no error on these grounds.
While his appeal was pending, the Legislature enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) and Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81). Assembly Bill 333 made several changes to section 186.22, including amending the definition of what constitutes "a criminal street gang" and "a pattern of criminal gang activity," and added a new section 1109 requiring bifurcation of the gang enhancement upon the defendant's request. Senate Bill 81 amends section 1385 to now require the trial court to consider specific enumerated mitigating factors in exercising its discretion to strike or dismiss a sentencing enhancement. In supplemental briefing, Gross asserts these recent statutory amendments require that his convictions be reversed and the matter remanded.
As the Attorney General properly concedes, we conclude the new statutory amendments to section 186.22 apply retroactively to Gross under In re Estrada (1965) 63 Cal.2d 740 (Estrada). We disagree, however, with the Attorney General that incorporating those very same amendments into the gang-murder special circumstance under section 190.2 subdivision (a)(22), would constitute an unconstitutional amendment to Proposition 21. Consequently, we vacate the true findings on the gang-murder special circumstance (§ 190.2, subd. (a)(22)) and the gang sentencing enhancement (§ 186.22, subd. (b)(5)) on count 1, as well as the conviction on count 2 for active participation in a criminal street gang (§ 186.22, subd. (a)). We conclude new section 1109 is not retroactive under Estrada and does not entitle Gross to a new, bifurcated trial on his first degree murder conviction and the attached firearm enhancements. The matter is remanded to the trial court for further proceedings consistent with this opinion. The changes implemented by Senate Bill 81 shall apply to resentencing on remand.
Gross is a known member of the 1200-block Seaside Crips gang and goes by the moniker of "Dirt." On New Year's Eve 2012, Gross went to Frankie's Bar with fellow associates Preston P., Krystian P., Sharay P., and Deshawn L., to party with another Crips gang member, Donald "Boo Boo" D. About half an hour after the group arrived at Frankie's Bar, a group of the rival Bloods gang showed up, dressed in red and "acting like gang members."
Deshawn was on the dance floor with a girl. He and several other people were doing a dance called "Crip-walking" and "throwing up gang signs." Elvin L., who was the girl's boyfriend and Warren's cousin, entered the bar and a fight broke out. Someone hit Deshawn over the head with a bottle and "[a]ll hell broke loose." There was a scuffle, people started fighting, and it turned into "a brawl."
The victim, Warren, arrived at Frankie's Bar sometime after midnight. He was with his brother Howard, his fiancee Kelly H., and Kelly's friend, Laura L. The bar was "packed" at capacity and they were not able to get in past the entrance. While waiting outside, Warren's group heard the commotion in the bar. The police arrived around 1:20 a.m. on January 1, 2013 and the bar's security started to clear everyone out. Warren's group began walking back to Warren's car when Warren saw his cousin Elvin, whom he referred to as "Little T," come out of the bar looking "worked up." Warren told Kelly," 'That is my cousin . . . I got to go check on him, make sure he is okay. He is in there fighting.' "
Warren was unable to find Elvin, so he drove his group to the home of Elvin's relative, thinking Elvin might be there. The house was on a cul-de-sac on Millview Drive, an area that several witnesses referred to as the "U." Warren and the others in his car did not see anyone when they first arrived at the cul-de-sac. But, just as they were about to leave, Elvin pulled up. Elvin told Warren, "We got into a fight," and ran into the house. Warren and the others stayed in the car.
Meanwhile, Donald "Boo Boo" D. had "made the call so [the group of Crips] could go fight, because Deshawn had just got hit with a bottle in the face." Following Donald's call, at least four cars of Seaside Crips pulled into the cul-de-sac on Millview Drive, including Gross, Donald, Preston, Krystian, and Sharay. Gross was riding in a Cadillac Escalade driven by Preston, along with Krystian, and Sharay. The caravan of cars pulled up near where Warren was parked. Gross and the other men got out of Preston's vehicle and approached Warren's car. Warren got out of his car. The Seaside Crips group walked towards Warren and started asking, "where is the big damu at?" or "who the big damu was." Damu means "Blood" or "blood-like" in Swahili; it is a term Blood gang members sometimes use to refer to themselves.
Warren and several Seaside Crips exchanged words. Things began to escalate. Warren, who was approximately 6 feet 6 inches tall and "very large . . . both muscular and obese," punched Sharay. Sharay fell to the ground, unconscious. Other Seaside Crips attacked Warren and a melee ensued. Howard tried to help Warren, but they were outnumbered. Kelly got out of Warren's car and went around the side of it to "shield" herself. After a while, the Seaside Crips group retreated towards their cars and started "regrouping themselves." Warren came around his car, close to Kelly, to try and catch his breath. But the Seaside Crips group started advancing again.
Gross ran back to Preston's Cadillac Escalade and retrieved a black and silver Smith &Wesson handgun. Preston saw "a few guns come out" and Gross had a gun. Preston pleaded with Gross, "Dirt don't do that." Gross responded, "Fuck that." Kelly saw someone, whom she later identified as Gross, with a gun. Gross came up to Warren and demanded to know, "Where is the nigga that hit my homie?" Gross raised his gun and shot Warren in the chest, from four to five feet away. Warren fell to the ground after the first shot, but Gross continued to shoot. Gross fired nine shots in all. Warren sustained six gunshot wounds to his chest and a seventh gunshot wound to his left forearm. Kelly and others attempted to perform life saving measures, but Warren died from his injuries.
After the shooting, the Seaside Crips group ran back to their cars and sped away. A sweatshirt with "Seaside," seven .40 caliber shell casings, and a broken watch were left at the crime scene.
Gross was charged with Warren's murder in 2017. In April 2019, a jury convicted Gross of first degree murder with the gang-murder special circumstance (§§ 187, subd. (a), 189, 190.2, subd. (a)(22); count 1), and the substantive crime of active participation in a criminal street gang (§ 186.22, subd. (a); count 2). As to the murder in count 1, the jury also found true Gross personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (c) and (d)) and he committed the murder for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(5)). As to both counts 1 and 2, the jury further found true that Gross personally used a firearm within the meaning of sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (b).
In July 2019, the trial court sentenced Gross on count 1 to a term of life without the possibility of parole for the first degree special circumstance murder conviction, plus a consecutive term of 25 years to life for the firearm enhancement. The court imposed and stayed sentences on count 2 and the remaining enhancements, pursuant to section 654. Gross timely appealed.
Gross asserts the evidence at trial was insufficient to support the jury's verdict. He does not dispute Warren was shot to death in the early morning hours of January 1, 2013, or that the shooting occurred during a conflict between rival gang members that carried over from Frankie's Bar. The identity of the shooter was the primary fact issue at trial and he contends only that there was insufficient evidence to prove he was the shooter. We disagree.
On appeal, we consider the whole record in the light...
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