People v. Jacobs

Decision Date29 October 2020
Docket NumberF076948
CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. ANTHONY JACOBS et al., Defendants and Appellants.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Jacobs.

Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Darrien Washington.

Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Eric L. Christoffersen, and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- Anthony Jacobs and Darrien Washington (respectively, Jacobs and Washington; collectively, defendants) stand convicted, following a jury trial, as follows:

Counts 1 and 2: Premeditated attempted murder (Pen. Code,1 §§ 187, subd. (a), 664) committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)), and in the commission of which each defendant personally used and discharged, and a principal used and discharged, a firearm, proximately causing great bodily injury (§ 12022.53, subds. (b)-(e)(1));

Counts 3 and 4: Assault with a firearm (§ 245, subd. (a)(2)) committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)), and in the commission of which each defendant personally used a firearm (§ 12022.5, subd. (a))2;

Count 5: Shooting at an occupied vehicle (§ 246) for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)), and in the commission of which each defendant personally used and discharged, and a principal used and discharged, a firearm, proximately causing great bodily injury (§ 12022.53, subds. (b)-(e)(1)); and

Count 6: Active participation in a criminal street gang (§ 186.22, subd. (a)).

In addition, Washington was convicted, in count 7, of being an ex-felon in possession of a firearm (§ 29800, subd. (a)(1)), and he admitted having suffered a prior conviction for a serious felony that was also a strike (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d)).

Defendants were sentenced to lengthy prison terms, and ordered to pay various fees, fines, and assessments. On appeal, they raise numerous claims involving sufficiency of the evidence, admission of evidence, jury instructions, and sentencing. Wehold: (1) Substantial evidence supports all challenged convictions and enhancements; (2) Washington's challenge to admission of his prior conviction was forfeited by his failure to object at trial; (3) Defendants are not entitled to reversal for lack of instruction on lesser included offenses on counts 1, 2, and 5; or for lack of a unanimity instruction with respect to the identity of the shooter on counts 1 through 5; (4) Defendants are entitled to a remand to have the trial court exercise discretion with respect to the various firearm enhancements, and Washington is entitled to have the court exercise its new discretion to strike the section 667, subdivision (a) enhancement; (5) Defendants are not entitled to a remand to present evidence and make a record of information relevant to their youth offender parole hearings, because Jacobs had the opportunity to do so and Washington is ineligible for such a parole hearing; and Washington's related equal protection claim lacks merit, and his cruel and/or unusual punishment claim is premature; and (6) Defendants forfeited their challenge to the imposition of monetary obligations by failing to object in the trial court; however, we will modify Jacobs's judgment with respect to the amount of the court operations assessment (§ 1465.8) and the court facilities funding assessment (Gov. Code, § 70373), which were miscalculated. Accordingly, as to Jacobs, we affirm the judgment as so modified. As to Washington, we affirm the judgment. We remand the matter to the trial court with directions to exercise its discretion, as to both defendants, whether to strike any of the firearm enhancements and, as to Washington, whether to strike one or more of the section 667, subdivision (a) enhancements.

FACTS3
IPROSECUTION EVIDENCE
The Gang Expert's Background Testimony

Hanford Police Investigator Estrada, a member of the Gang Task Force, testified that status is important to gangs. In a traditional gang, higher status means receiving more money from the gang's business operations. In a loosely-knit gang, someone with status gets to "call the shots." African-American gangs in Kings County, which typically are Crip gangs, are not well organized or run the same way as traditional gangs.

Estrada explained that the Crip gang in Hanford has subsets, such as Hanford Gangster Crips (often called HGC), H-Mob, and Eight Trey Gangsters. The primary activities of the Hanford Gangster Crips include selling narcotics and illegally possessing firearms. The gang's primary rules are making money and no snitching, even on rival gang members, and even if someone has been badly hurt (a rule found in almost every gang). Testifying is considered "the ultimate snitching," and is not allowed.

Crips claim the color blue; often refer to each other as "Cuz" or "C"; have as common signs "C" or "GC"; use "moovin" as a motivational term; and identify with the numbers "3," "3rd," or "3X." Bloods are rivals of Crips, and "BK" means "Blood Killer." Derogatory terms for Crips include "Crab" and "Smurf." "CK," means "Crip Killer." According to Estrada, Kings County does not have many Bloods. Instead, it is a northern-gang-member-dominated county; hence, the Crips' main rivals are the Norteños.

Crips in Kings County associate with the 600 gang. This is a newer gang that is proud of the fact they "took the fight to the Northerners." They are militant (which tothem means "[a]ctively aggressive"), and are known for robbery and human trafficking. In addition, one of their primary activities is witness intimidation or dissuasion. They wear army green camouflage, and identify with the numbers "6" or "6-4." Their territory is in the 600 South Redington area, while Crips' territory is "the same width" with a "heavier selection" off Irwin, in apartments known as the Little Kings Terrace (Little KT's). The area is known for violence.

Estrada explained that a gang's "turf" or territory is where the gang lives and conducts its illegal activities, so it is the area the gang protects. When a rival gang member walks through the territory, it is a sign of disrespect. It may also be the beginning of the rival gang trying to "push in" on the territory in order to take over the illegal activities there. The Crips and 600's use violence to protect their turf, including the Little KT's. If gang members feel disrespected, they will physically assault a rival gang member. They are more likely to attack if there are more of them than the rival. Status is gained by attacking. Not retaliating for a sign of disrespect is a sign of weakness.

Estrada estimated that as of April, there were approximately 70 to 75 active Hanford Gangster Crips, and about 50 active 600's. In Kings County as a whole, there were approximately 2,000 to 2,500 active Northerners.

Testimony Concerning the Shootings

On April 21, Alejandro G. resided on the south side of Hanford, fairly close to Scott and Redington Streets.4 That day, he and a friend were walking from the other sideof town. They passed the Little KT's, where a group of African-Americans were "kickin' it." When Alejandro walked past, they all grew quiet and looked at him.

As Alejandro continued walking, he felt somebody behind him. He put his hands up and walked off the other way. People started running toward him. He did not know what they had in their hands, but he and his friend kept walking quickly.

When Alejandro and his friend turned a corner, "Stoney" — Jacobs — was waiting. A tall, skinny Black man who looked to be in his early 20's and who was wearing a black hoodie was with him.5 People were coming at Alejandro from two directions, and he felt they were trying to trap him and his companion. One of Alejandro's friends came out to help Alejandro.6 The friend took off his shirt. The African-Americans were saying "600 nigga this and that." Alejandro did not say anything gang related, but responded, "fuck you mother fuckers."7 He told them there were children there, so they should have respect and "take this shit somewhere else." He was expecting a fist fight. Some people who lived on the block came out to help him. He estimated there were four on his side and nine to 11 in the other group.

The groups were about to fight when Jacobs pulled a chrome .45-caliber pistol from his waistband in the back. First he shot someone whom Alejandro variously described as jumping out or reaching out in front of Alejandro or as running toward Alejandro. This person, who was shot in the side, took the bullet for Alejandro, although Alejandro did not know who he was.8 Jacobs fired again and shot Alejandro in the leg. Alejandro did not feel anything and started to run. He was losing a lot of blood, and one of his friends picked him up and put him to the side.9 Jacobs fired four to seven times. First he fired one shot, then the second shot, then "he let the whole clip go." The African-Americans took off running. Some of them were picked up by a blue truck with a lawn mower in the back, while others got into a gray or black car.10

R.B. and J.C. lived in an apartment complex south of Scott and...

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