People v. Kingsbury
| Decision Date | 14 February 2018 |
| Docket Number | B264578 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANDREW PHILLIP KINGSBURY, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA105923)
APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed.
Kelly C. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Andrew Phillip Kingsbury shot Juan Gonzalez in the neck. He was charged with attempted willful, deliberate and premeditated murder (Pen. Code, §§ 187, subd. (a), 664)1 and possession of a firearm by a felon (§ 29800, subd. (a)(1)). At trial, Kingsbury explained he fired his weapon in self-defense, but the jury found him guilty of attempted murder and possession of a firearm by a felon.
Kingsbury argues the trial court erred in its instructions to the jury on the law of self-defense, and his counsel provided ineffective assistance. Kingsbury also requests that his case be remanded for resentencing in light of recent legislation giving the trial court discretion to strike the firearm enhancement. We deny his request for resentencing and affirm.
On May 18, 2014, Gonzalez was standing on Olympus Avenue in Hacienda Heights, wearing headphones, getting ready to text his girlfriend, when he was shot in the neck. He did not see who shot him. Gonzalez had tattoos on his face, chest and legs, including an "H" tattooed on the front of each leg. He denied telling law enforcement he was Lencho from Happy Homes and denied being a member of Happy Homes, a gang inHacienda Heights. He said Lencho was the nickname his mother called him.
Los Angeles County Deputy Sheriff Jose Nanquil worked on a special gang team. He testified Happy Homes is a clique of the Puente 13 gang, which is a rival of the Varrio Trece gang. Happy Homes and Varrio Trece territories are adjacent to one another, separated by Hacienda Boulevard. Happy Homes is represented by the letters "HH."
By the time of the trial, Deputy Nanquil had known Gonzalez for five years. In their conversations, Gonzalez downplayed his association with Happy Homes, claiming he was only associated with the gang because he grew up and lived in the neighborhood.
Deputy Nanquil testified that several days prior to the shooting, someone had crossed out Happy Homes graffiti in Happy Homes territory on Olympus Avenue and written over it with Varrio Trece graffiti. Deputy Nanquil expected retaliation.
At about 3:40 p.m. on May 18, Deputy Nanquil responded to a call about a shooting in Hacienda Heights. When he arrived at the scene, a man pointed toward Galemont Avenue and said, "He ran over there." Deputy Nanquil turned onto Galemont Avenue and saw Kingsbury running down the sidewalk. When Kingsbury saw the deputy, he slowed to a normal pace. Deputy Nanquil got out of his patrol car, drew his gun and ordered Kingsbury to stop. Kingsbury stopped, turned and looked at the deputy, and then turned back and started running.
Deputy Nanquil returned to his car and drove after Kingsbury, eventually catching up with him on Walbrook Drive in Varrio Trece territory. Deputy Nanquil got out of his car, drew his gun, and ordered Kingsbury to stop. Kingsbury reached intohis pockets and began pulling things out; Deputy Nanquil heard the sound of a metal object hitting the ground. Shortly thereafter, Kingsbury dropped to the ground. Deputy Nanquil and other officers placed him under arrest.
Deputy Nanquil found two loaded magazine clips near where Kingsbury was arrested. Another deputy retraced Kingsbury's steps and found a gun.2 Kingsbury had gunshot residue on his hands at the time of his arrest. Four cartridge casings were found at the scene of the shooting. The casings were fired from the gun recovered by the deputies.
Detective Liliana Jara, who worked with the sheriff's department gang unit, testified that a gang war started in May 2014 between Happy Homes and Varrio Trece. Based upon Gonzalez's tattoos and his self-admitted membership in the gang, Deputy Jara testified Gonzalez was a Happy Homes member with the gang moniker Lencho.
Detective Jara testified Kingsbury was a Varrio Trece gang member. Kingsbury had a "VT" tattoo, representing Varrio Trece, and a tattoo of the State of California with the number 187 inscribed inside the outline of the state. Detective Jara testified the 187 tattoo, a reference to Penal Code section 187, indicated Kingsbury was an active gang member who committed murder.
Kingsbury testified he grew up in Hacienda Heights, where he lived with his grandparents. He left his grandparents' housewhen he was 18 years old. After leaving, he was homeless and "started kicking it with the wrong people." He ended up joining Varrio Trece when he was 19 years old.
Kingsbury met Gonzalez in 2011, when he was 18 and Gonzalez was 50 years old. Gonzalez was often at Kingsbury's ex-girlfriend's house, where Kingsbury had been staying. Gonzalez was looking for someone to sell drugs for him, and Kingsbury agreed to sell marijuana. Gonzalez drove Kingsbury to a medical marijuana dispensary and gave him money, which Kingsbury used to purchase marijuana. Instead of selling the marijuana, Kingsbury smoked some and gave some to his friends. Gonzalez was angry, and Kingsbury told Gonzalez's girlfriend to tell Gonzalez that he would try to pay Gonzalez back. When Gonzalez found Kingsbury, Kingsbury gave him some money, but it was not enough. Gonzalez warned Kingsbury that he needed to pay him all of the money. Gonzalez threatened Kingsbury that he better not have to come looking for Kingsbury to get his money.
About a week before the shooting, Kingsbury bought a gun from "Termite." Kingsbury needed the weapon for his protection. He was living on the street, and people had shot at him and chased him with knives. He carried the firearm with him at all times because he was homeless and had no place to leave the firearm.
On the day of the shooting, Kingsbury rode his bicycle to visit a friend who lived on Olympus Avenue in Hacienda Heights. When he got to her house, he saw what looked like a family gathering, and a man and woman in front of the house. He decided not to visit because he had the gun on him.
As Kingsbury turned to leave, the man who had been in front of his friend's house, Edward Perez, walked toward the street and was "mad-dogging"—staring at—him. Kingsbury waved at him, thinking he might be a member of his friend's family.3 The man yelled, Kingsbury thought Perez was trying to start a fight, so he rode away. Perez yelled, "Get that motherfucker, Lencho." Gonzalez walked into the street toward Kingsbury and told Kingsbury to get off the bicycle. Gonzalez had his hand in his pocket, as if he were reaching for something, and looked angry.
Kingsbury tried to ride away, but the chain came off his bicycle. He felt trapped between Perez and Gonzalez and was afraid of what Gonzalez might do to him. He turned and fired four shots over his shoulder in Gonzalez's direction, hoping to scare Gonzalez away. After firing the weapon, he tried to get away, pushing the bicycle with his feet instead of pedaling.
Kingsbury crossed Hacienda Boulevard into Varrio Trece territory towards a discount store. He heard Perez yelling at him. He dropped his bicycle and ran toward the store, believing no one would shoot at him in such a public place. As he ran, he saw Perez chasing after him with his hand in his pocket.
Kingsbury heard the patrol car behind him and turned to find Deputy Nanquil pointing a gun at him. Kingsbury ran because he was in possession of a firearm. As he ran, he threw away the gun and the magazine clips. Because he was out of breath, he stopped and fell to the ground. When the police caught up with him, he did not tell Deputy Nanquil someone was trying to kill him because he was afraid of the officer. He explained he was afraid of Deputy Nanquil because the deputy was pointing a gun at him, and Kingsbury looked like a gang member.
Kingsbury testified he obtained his 187 tattoo about six months after his arrest, and the tattoo was not related to this case.
The jury found Kingsbury guilty of attempted murder and possession of a firearm by a felon. The jury was unable to reach a verdict on the allegations that the attempted murder was willful, deliberate and premeditated, and was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). Consequently, those allegations were dismissed. The jury found true the allegations that Kingsbury personally used, and personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)).
The trial court sentenced Kingsbury to the upper term of nine years for the attempted murder plus a consecutive term of 25 years to life for personally and intentionally discharging a firearm causing great bodily injury, for a total term of 34 years to life. The court stayed the sentence for possession of a firearm by a felon.
Kingsbury argues that when the court responded to several of the jury's questions, the court instructed the jury erroneously on the law of self-defense. Be...
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