People v. Lee
| Decision Date | 24 June 2022 |
| Docket Number | B300756,B305493 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DERION DAVON LEE et al., Defendants and Appellants. |
| Court | California Court of Appeals |
Modified and Certified for Partial Publication 7/15/2022
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA101244 Charlaine F. Olmedo, Judge. Affirmed and remanded with directions.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Derion Davon Lee.
Dwyer + Kim, John P. Dwyer; Spolin Law and Aaron Spolin, under appointment by the Court of Appeal, for Defendant and Appellant Pernell Barnes.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Charod Robinson.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants Derion Devon Lee, Charod Robinson, and Pernell Barnes members of the Duarte Duroc Crips gang (DDC), were convicted of various charges arising from two shootings that occurred as part of a war between DDC and a rival gang, the Pasadena Denver Lane Bloods (PDL). The first shooting (the Douglas shooting) occurred on December 22, 2016, at the Kings Villages apartment complex in Pasadena, a known PDL hangout, and resulted in the killing of Brandon Douglas, a PDL associate. The second shooting (the Vigil shooting) occurred on January 6, 2017, during a candlelight vigil held for Douglas at Kings Villages. Ormoni Duncan and Antoine Sutphen were killed, and Janell Lipkin and Shamark Wright were wounded. Just hours before the Vigil shooting, someone had opened fire on a residence in DDC's territory in Duarte (the Duarte shooting).
Appellants were tried along with two codefendants, Isaiah Daniels and Andrew Vasquez, also members of DDC. Appellant Lee was the only person charged in connection with both the Douglas and Vigil shootings. The others were charged only with crimes arising out of the Vigil shooting.
As to the Vigil shooting, the jury convicted appellants Lee, Robinson, and Barnes of one count of conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1); count 1);[1] two counts of first degree murder (§ 187, subd. (a); counts 2-3) for the killings of Sutphen and Duncan; two counts of attempted willful, deliberate, and premeditated murder (§§ 664/187, subd. (a); counts 4, 9) for the wounding of Lipkin and Wright; and shooting at an inhabited dwelling (§ 246; count 5). As to the Douglas shooting, the jury convicted appellant Lee of an additional count of first degree murder (§ 187, subd. (a); count 6) for the killing of Douglas. Further, on all counts as to all appellants, the jury found true special circumstance allegations (§ 190.2, subds. (a)(3) [multiple murder], (a)(21) [drive-by murder], (a)(22) [gang murder]) on counts 2, 3, and 6, as well as gang allegations (§ 186.22, subd. (b)(1)(C)) and gang-related firearm allegations (§ 12022.53, subds. (b)-(d)/(e)(1)).[2]
In bifurcated proceedings, appellants Lee, Robinson, and Barnes each admitted they had suffered prior serious or violent felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(j), 1170.12). Appellants Lee, Robinson, and Barnes were each sentenced to three consecutive terms of life imprisonment without the possibility of parole (LWOP) plus 25 years to life on counts 2 and 3, and life imprisonment plus 25 years to life on counts 4 and 9.[3] On count 5, appellants Robinson and Barnes were sentenced to consecutive terms of seven years imprisonment; appellant Lee was sentenced to a consecutive term of 25 years imprisonment. On count 1, the court imposed and stayed (§ 654) various terms of imprisonment based on the underlying offense and firearm allegations that were found to be true. Appellant Lee was also sentenced on count 6 to two consecutive LWOP terms plus 25 years to life. The court imposed victim restitution, and imposed and stayed various fines, fees, and assessments subject to an ability to pay hearing.
In his opening brief, appellant Lee contends: (1) the trial court erred by excluding evidence of third-party culpability with respect to both shootings; (2) insufficient evidence supported the kill zone instruction on both counts of attempted murder; (3) insufficient evidence supported a finding that appellant conspired with the codefendants to commit murder; (4) the court made various evidentiary errors, including admitting evidence of his gang membership, one text message he sent to appellant Robinson, appellant Lee's Google searches, statements the codefendants made following the shootings, and records obtained from the social media accounts of codefendant Daniels, and appellants Robinson and Barnes; (5) the court abused its discretion by denying appellant Lee's oral motion to continue the trial; and (6) the cumulative effect of the foregoing errors requires reversal. In their opening briefs and through notices of joinder, appellants Robinson and Barnes join in all but one of appellant Lee's contentions.
We conclude that the trial court erred by instructing the jury on the kill zone theory of attempted murder, but find the error harmless. We reject the remaining contentions.
All three appellants also raise various sentencing issues. While this appeal was pending, Assembly Bill No. 333 (Stats. 2021, ch. 669, §§ 1-5) (A.B. 333) and Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3) (S.B. 567) became effective. A.B. 333 amended the gang enhancement statute (§ 186.22) to impose additional elements beyond those that were required at the time of trial. A.B. 333 also enacted section 1109, which provides in relevant part for the bifurcation of trial, upon the defendant's request, of the gang enhancement allegations charged under section 186.22, subdivision (b).
S.B. 567 amended section 1170, subdivision (b), to require imposition of the middle term of imprisonment for crimes with a sentencing triad unless circumstances in aggravation justify imposition of a greater sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial.[4]
We agree that the trial court committed several sentencing errors, but otherwise reject appellants' arguments. We vacate the true findings and strike the sentences imposed under sections 186.22, subdivision (b), 190.2, subdivision (a)(22), and 12022.53, subdivisions (b)-(d)/(e)(1), and remand the matter to afford the People the opportunity to retry these allegations in conformance with the current law. We also vacate the sentences imposed on counts 5 and remand for resentencing. We direct the trial court to correct the abstracts of judgment and sentencing minute orders. In all other respects, we affirm the judgments of conviction.
According to Los Angeles Sheriff's Detective Matthew Thomas, an expert on DDC, appellants and their codefendants were members of DDC, whose primary territory is in the City of Duarte. Among other names, appellant Lee was known by the moniker "TS." Appellant Barnes was known as "Killa P," and appellant Robinson as "Pac Man." Between 2016 and 2017, DDC was at war with PDL, whose primary territory is located west of Duarte in the City of Pasadena.
PDL gang members were known to congregate around two apartment complexes in Pasadena, one of which was the Kings Villages, the site of both the Douglas and Vigil shootings. Detective Thomas considered the shootings to be acts of retaliation by DDC against PDL.
As part of the investigation of the two shootings, officers extracted cellular phone data and obtained geographic locations (pursuant to search warrants) from cellular phones belonging to appellants and their codefendants;[5] records from Facebook and Instagram for the social media accounts of appellants Robinson and Barnes and defendant Daniels; and records pertaining to appellant Lee's Google subscriber account. We discuss this evidence as relevant in the chronology of events regarding the two shootings.
Around 9:47 p.m. on December 22, 2016, Pasadena Police Department Officers Lerry Esparza and Aaron Villicana responded to a report of a shooting at Kings Villages in the 1200 block of Fair Oaks Avenue. The officers found Brandon Douglas lying on the sidewalk in a pool of blood. He was wearing a red hat and red shoes, the signature color of Bloods gangs like PDL.[6] Douglas's friend, Leonard Howard, testified that Douglas associated with Bloods gang members, including Howard himself. Douglas died from multiple gunshot wounds.
Forensic specialist Katie Sullivan collected five .40 caliber cartridge cases from the scene. After analyzing the casings, senior criminalist Amanda Davis concluded they had been fired from the same firearm. Davis also analyzed six projectiles (five fired bullets and one bullet fragment) collected from Douglas's body, and concluded that two firearms had been used during the shooting. She identified the first firearm as a .38 special or .357 magnum revolver, and the second as a .40 caliber Smith & Wesson or .10 millimeter automatic handgun.
Appellant Lee's Google account showed that on December 6, 2016 (16 days before the Douglas shooting) appellant Lee searched the internet for "man shot in Duarte" (Duarte being DDC territory). Three days later, on December 9, 2016, appellant Lee twice searched for directions to the "King Manor Apartments" in Pasadena. "Kings Manor" was another name by which Kings Villages, the site of the...
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