People v. Landowski
| Decision Date | 23 April 2020 |
| Docket Number | C080210,C080308,C080682 |
| Citation | 261 Cal.Rptr.3d 541 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Liberty Danielle LANDOWSKI, Defendant and Appellant. The People, Plaintiff and Respondent, v. Michael Anthony Reyes, Jr., Defendant and Appellant. The People, Plaintiff and Respondent, v. Lisa Humble, Defendant and Appellant. |
Certified for Partial Publication.*
Stephen M. Hinkle, Oceanside, under appointment by the Court of Appeal, for Defendant and Appellant Liberty Danielle Landowski; Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Michael Anthony Reyes, Jr.; Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Lisa Humble.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman, Supervising Deputy Attorney General and R. Todd Marshall, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Michael Anthony Reyes, Jr., an active Norteño gang member (from the Broderick Boys subset), confronted a former Norteño gang member (from the Franklin Boys subset), S., about a physical altercation that occurred between S. and Reyes’s stepfather over a debt. That earlier altercation had taken place in front of Reyes’s autistic younger brother. Reyes pulled out a handgun and asked S. if he had a problem. S., who was riding his bicycle with his wife, R., when Reyes confronted him with the gun, stopped briefly, told Reyes to put the gun down if he wanted to fight, and then started to ride away. This angered Reyes, prompting him to fire six rounds at S. from behind. S. was hit three times but survived the encounter. R. was a short distance in front of S., and also in the line of fire, but was not hit by any of the bullets. Defendants Liberty Danielle Landowski and Lisa Humble were with Reyes at the time of the shooting and aided in his efforts to avoid being apprehended by law enforcement authorities.
Reyes, Landowski, and Humble were tried together before the same jury. Reyes was convicted of one count of attempted murder (Count 1), two counts of assault with a semiautomatic firearm (Counts 2 and 4), one count of possession of a firearm by a convicted felon (Count 5), and one count of possession of ammunition by a convicted felon (Count 6). In addition to various firearm and other enhancements, the jury found Reyes committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. The jury convicted Landowski and Humble of being accessories to Reyes’s criminal conduct (Count 9) and also found true gang enhancement allegations attached to that crime.1 After finding Reyes previously served a prison term for a felony conviction, the trial court sentenced him to serve an aggregate indeterminate prison term of 41 years to life plus a consecutive determinate term of 27 years. Humble was sentenced to serve a determinate prison term of three years four months. Landowski was granted three years formal probation.
On appeal, (1) Reyes challenges the sufficiency of the evidence to support his conviction for assaulting R. with a semiautomatic firearm; and (2) all defendants challenge the sufficiency of the evidence to support their gang enhancements. In the published portion of the opinion, we conclude the evidence was more than sufficient to support the jury’s conclusion Reyes assaulted R. with a semiautomatic firearm. With respect to the gang enhancements, we conclude the evidence is sufficient to establish both that Reyes shot S., and that Landowski and Humble aided his attempt to avoid apprehension, "for the benefit of, at the direction of, or in association with a criminal street gang" and "with the specific intent to ... assist in any criminal conduct by gang members" within the meaning of Penal Code 2 section 186.22, subdivision (b)(1).
The defendants’ remaining contentions will be addressed in the unpublished portion of the opinion. Humble and Landowski bring additional claims related to their gang enhancements: (3) Humble contends the trial court prejudicially erred and violated her constitutional rights by allowing the prosecution’s gang expert to relate inadmissible case-specific hearsay to the jury; and (4) Landowski asserts the trial court prejudicially erred and violated her federal constitutional rights by declining to provide the jury with two requested special instructions elaborating on the elements of the gang enhancement. Assuming the trial court erred by allowing the gang expert to relate case-specific hearsay to the jury, we conclude the error was harmless. We reject Landowski’s claim of instructional error.3
Returning to Reyes, he contends: (5) the prosecutor engaged in prejudicial misconduct; (6) we must remand the matter for a new sentencing hearing because Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1 & 2 (SB 620)) that became effective January 1, 2018 and amends sections 12022.5 and 12022.53 to give the trial court discretion to strike firearm enhancements in the interest of justice, applies retroactively to cases not yet final on appeal; and (7) we must also remand the matter to the trial court with directions to strike two one-year prior-prison-term enhancements because Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1 (SB 136)) that became effective January 1, 2020 and eliminates such enhancements for Reyes’s crimes, also applies retroactively to cases not yet final on appeal. We conclude two asserted bases for Reyes’s prosecutorial misconduct claim are forfeited; the sole remaining basis, arguably misconduct, was harmless. Reyes’s claims regarding the retroactive application of SB 620 and SB 136, however, have merit and require remand for a new sentencing hearing during which the trial court shall exercise its discretion regarding the firearm enhancements and strike the prior-prison-term enhancements.4
S. was a member of the Franklin Boys subset of the Norteño street gang for about 20 years, roughly from the ages of 16 to 36 years old. The Franklin Boys claimed the Oak Park area of Sacramento as their territory. S. "dropped out" of the gang in 2003 when he was serving time at High Desert State Prison. S. received word he would be required to "do a removal" on another Norteño gang member, i.e., beat up or stab this person to "get him off the yard." He refused and informed prison staff he was dropping out of the gang. Following a debriefing, S. was separated from his former Norteño associates and served the remainder of his sentence. He was released sometime around 2005 and continued committing crimes in the Sacramento area, although no longer in association with any criminal street gang. The Franklin Boys did not accept S. back into the gang following his release, nor did he face any repercussions from having dropped out because he did not inform on anyone during his prison debriefing and, as S. put it, "Sacramento is kind of full of dropouts."
S. met Reyes’s stepfather, D., in 2013. D. lived in West Sacramento with Reyes’s mother and their son, Reyes’s younger half-brother. Toward the end of that year, S. and D. got into two fist fights. As S. explained, "he owed me some money, didn’t want to pay it back, got disrespectful, spit at my face, so ... we got into a fight." After that initial altercation, they got into another fist fight when S. again confronted D. about the debt as the latter was walking down the street with his son. S. admitted selling methamphetamine at the time he and D. got into these two fights, but denied selling drugs in the West Sacramento area, claiming that was just a "kickback area." As we explain more fully later in the opinion, West Sacramento was claimed by the Broderick Boys subset of the Norteño street gang.
S. spent most of 2014 incarcerated following a drug conviction. When he got out of custody, he met Reyes for the first time. Reyes was an active member of the Broderick Boys who had spent all of 2013 and half of 2014 incarcerated following convictions for various felonies. Reyes ran into S. "on the street" in West Sacramento sometime in October 2014. S. had just been released from custody at the time. He was looking for his wife, R. Reyes knew R. and offered to help him find her. After realizing Reyes was D.’s stepson, S. explained his side of the aforedescribed altercations and said D. was "going to get it" whenever he saw him again. Reyes responded: Both S. and Reyes described the conversation as amicable. As Reyes explained, "as far as I was concerned, we came to an agreement."
Reyes shot S. in the back on the morning of November 18, 2014. The night before, Reyes stayed at a motel in West Sacramento with Landowski, who rented the room and with whom he recently began a sexual relationship. Also staying in the room were Eric Lovett, who like Reyes was an active gang member in the Broderick Boys subset, and Lovett’s girlfriend, Humble. Landowski and Humble were also close friends. Reyes used methamphetamine that night and left early the next morning to get more of the substance. Landowski gave him a ride in her white Ford Mustang. While Reyes testified that only he and Landowski were in the car, substantial evidence supports the conclusion Humble was also present.5 Lovett may also have been in the car, although the record is less than clear on that point.
What is clear is Landowski drove down Sycamore Avenue and when she got to the intersection with Evergreen Avenue, Reyes spotted S. and R. riding their bicycles down Evergreen towards Sycamore. Landowski stopped the car and Reyes got out of the front passenger side to confront ...
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