People v. Okuwoga
| Docket Number | F083126 |
| Decision Date | 03 August 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. TOKUNBO ARTHUR OKUWOGA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No BF133935A. John W. Lua, Judge.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Tokunbo Arthur Okuwoga appeals from his convictions arising out of two separate incidents: the 2009 burglary and assault of R.Z., and the 2010 murders of Felipe Bravo, Jr., Felipe Bravo, Sr., and Daina Caraveo, and attempted murder of A.B. In connection with the charged incidents, a jury convicted defendant of three counts of willful, deliberate and premeditated murder (Pen. Code § 187, subd. (a); counts 1-3), attempted murder (§§ 664, 187, subd. (a); count 4), two counts of possession of a firearm by a felon (former § 12021 subd. (a)(1); counts 5 &11), possession of ammunition by a felon (former § 12316, subd. (b)(1); count 6), residential burglary (§ 460, subd. (a); count 7), residential robbery (§ 212.5, subd. (a); count 8), assault with a firearm (§ 245, subd. (a)(2); count 9), conspiracy to commit residential robbery (§ 182, subd. (a)(1); count 10), and dissuading a witness from giving testimony (§ 136.1, subd. (a)(1); count 12). (Undesignated statutory references are to the Penal Code.) The jury found true multiple enhancement allegations including that the offenses in counts 5 (illegal possession of a firearm), 6 (illegal possession of ammunition) and 12 (dissuading a witness) were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
On appeal, defendant asserts insufficient evidence supports the gang enhancements. The People agree the gang enhancements lack sufficient evidentiary support and must be reversed. Defendant also contends his remaining convictions should be reversed based on the admission of prejudicial gang evidence that rendered his trial fundamentally unfair in violation of his due process rights. Relatedly, he argues the other convictions should be reversed based on the failure to bifurcate the gang allegations considering the enactment of section 1109. He also asserts the matter should be remanded for resentencing, in part, to permit him to seek the benefit of new legislation, namely, Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518), Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), and Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81).
We agree the gang enhancements must be reversed due to insufficiency of the evidence but reject defendant's challenges to his other convictions. Because a resentencing hearing will necessarily result based upon our reversal of the gang enhancements during which any new legislation will apply, we do not address defendant's remaining contentions further. Rather, on remand we direct the court to strike the gang enhancements and hold further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND 2009 Burglary and Assault of R.Z.
On September 23, 2009, police officers responded to a report of a residential robbery. At the scene, R.Z. was "covered in blood, head to toe," and had open lacerations and wounds to his head. R.Z. explained he had been robbed and assaulted by three people.
R.Z. owned a jewelry store at the time. On the night of the incident, he was alone at his house. He opened the window for some fresh air and fell asleep on the couch around 11:40 p.m. Someone came in and started hitting R.Z. in the head with a gun. R.Z. stood up and saw someone bigger than him trying to punch him; the person repeatedly hit R.Z. hard. R.Z. saw two more people in the house. They ran to R.Z.'s bedroom where they took $1,000 from R.Z.'s wallet. They ransacked the house trying to find something.
At trial, R.Z. identified defendant as the person who was hitting him with a gun. R.Z. explained defendant had a mask on, but it came off and R.Z. could see some of defendant's face.[1] Defendant was also punching R.Z.; R.Z. was struggling and punching back. Defendant said, "I'm gonna kill you, son of a bitch."
R.Z. managed to break away and get out of the house. He fainted in the front yard. R.Z.'s neighbor saw what was happening and called the ambulance or the police.
R.Z. regained consciousness and saw the ambulance coming. He was taken to the hospital where he got approximately 60 stitches, mostly in his head.
The police found pools of blood and blood spatter on the floor and walls in R.Z.'s house and they discovered a window screen outside the house in a flower bed. The blinds on the window to the right of the front door "were pushed ... into the interior of the residence, and some had . . . fallen off and were on the ground." Several feet inside from the window, there was a single, tan, left-handed work glove on the carpet of the living room that seemed "out of place"; the glove was seized and submitted for DNA testing. The testing ultimately resulted in a match to two persons associated with the glove-defendant and A.B.
On June 7, 2010, Captain Madden and Officer Martin Heredia interviewed defendant and collected a DNA sample from him. They told defendant they needed to speak to him about the glove found at the robbery scene. During the interview, Captain Madden showed defendant a photograph of A.B. Defendant stated he did not know A.B. and asked if A.B. had said defendant committed the crime. Defendant denied knowing anything about the glove found at the robbery scene.
The police contacted A.B. on August 16, 2010, and obtained a DNA reference sample from him. A.B. was arrested in connection with R.Z.'s robbery in September 2010. A.B. testified he entered a plea agreement, and a term of the agreement was that he provide truthful testimony in this case.
A.B. met Felipe Bravo, Jr. (Felipe Jr.), and Daina Caraveo in 2008 or 2009 and they became friends. He also knew Felipe Bravo, Sr. (Felipe Sr.), and Caraveo's mother, Shanette. He met defendant through Felipe Jr. A.B. testified Felipe Jr. called defendant "Poomba" (sometimes spelled as "Pumba" in the record).
According to A.B., the night of September 23, 2009, Felipe Jr. was driving, defendant was in the front passenger seat, and A.B. was in the backseat. Defendant gave A.B. a pair of gloves while they were in the car; A.B. put them on. They got out of the car and went into a home. A.B. held the "victim." A.B., Felipe Jr., and defendant were "hitting the guy." Defendant was striking the victim with a firearm, "pistol-whipping" him. A.B. explained Felipe Jr. told him the victim was a jeweler.[2] A.B. denied providing the police with any information when they interviewed him. He told Felipe Jr. police had come to speak with him about the incident. Felipe Jr. told A.B. defendant was trying to contact A.B. and "'Just don't say nothing and you'll be all right.'"
2010 Murders of Caraveo, Felipe Jr., and Felipe Sr. and Attempted Murder of A.B.
On September 22, 2010, at 2:30 a.m., police responded to a residence on Bradley Avenue regarding a report of a multiple-victim homicide. Three victims were located in the residence. Felipe Sr. was found nude in the bathroom with gunshot wounds to his head and his wrist. Felipe Jr. was located in a bedroom in a kneeling/seated position with two gunshot wounds to his left side and one to the head. Caraveo was also located in the bedroom, partially covered with a blanket, with a gunshot wound to her head near her ear. There were spent shell casings on the floor and blood and apparent bullet strikes on the wall of the hallway. The blood in the east hallway matched Felipe Jr.'s DNA profile. Police seized one of the nine-millimeter shell casings. When medical personnel arrived, they began treating the older male victim found in the bathroom. There was a marijuana grow area in the two-car garage.
A forensic science consultant testified he was trained in crime scene and firearm trajectory analysis. He opined Felix Jr. received the gunshot wound to his head while crouching or stooping at the door to the bedroom, where he eventually slumped down. The presence of stippling on Felipe Jr.'s head, which results from gunpowder particles striking skin and leaving small hematomas, indicates the muzzle of the firearm was inches to a foot from his skin or head. Caraveo's gunshot wound near her ear reflected it was a result of "a close range shot." There was a very small amount of stippling, suggesting the gun was farther from the side of Caraveo's head than it had been to Felipe Jr.'s.
A.B. testified regarding the September 22 multiple-victim homicide event. That day, he and his friend Andrew G. were at the house-Felipe Jr.'s residence. A.B. and Felipe Jr. were "really close friends." A little past midnight, defendant arrived at the house while A.B. and Andrew were watching television. Felipe Jr. and his wife Caraveo had put the children to sleep and were in their room, and Felipe Sr. was either in the kitchen or getting ready to shower. Defendant asked to speak with Felipe Jr.; he seemed "nervous," "shaky." Felipe Jr. and defendant were talking in the kitchen about R.Z.'s robbery. Defendant told Felipe Jr. law enforcement had spoken to him and A.B. about the robbery and told him a glove was left behind. Felipe Jr. told A.B. defendant thought A.B. or Felipe Jr. had snitched on him. Defendant asked A.B. for a cigarette and went outside to smoke.
A.B was by the front door, which...
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