People v. Robinson, 012221 CAAPP1, A157567

Docket NºA157567
Opinion JudgeNEEDHAM, J.
Party NameTHE PEOPLE, Plaintiff and Respondent, v. DAMIEN GIBRON ROBINSON, Defendant and Appellant.
Judge PanelWe concur. SIMONS, Acting P.J., REARDON, J.
Case DateJanuary 22, 2021
CourtCalifornia Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.

DAMIEN GIBRON ROBINSON, Defendant and Appellant.

A157567

California Court of Appeals, First District, Fifth Division

January 22, 2021

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. 606243

NEEDHAM, J.

Appellant Damien Gibron Robinson fatally shot his father and two other men inside a home where they were staying. His defense at trial was that he was fearful and shot them to protect himself. Appellant was convicted after a jury trial of two counts of second degree murder, one count of voluntary manslaughter, and one count of felon in possession of a firearm. Various firearm and prior conviction enhancements were also found true. (Pen. Code, §§ 187, 192, subd. (a), 29800, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (d), 667, subd. (a), 667, subd. (b)-(i), 1170.12.)1

In this appeal, appellant contends: (1) the court erred in striking testimony that he had told a woman who was like his mother that he was fearful about staying in the house where the shooting occurred; (2) the court should have given a requested pinpoint instruction regarding the absence of flight; (3) the court should have instructed the jury on involuntary manslaughter as a lesser included offense; (4) CALCRIM No. 571 was defective because it did not describe how, exactly, malice was negated by imperfect self-defense; (5) one paragraph of CALCRIM No. 571, regarding the effect of a defendant's “wrongful conduct” on an imperfect self-defense claim, was erroneous; (6) the jury should have been instructed sua sponte that a prior felony conviction admitted to impeach appellant could not be used to infer a predisposition to commit crimes; (7) the assessments and restitution fines should be stricken or the case remanded because the record does not show appellant's ability to pay; and (8) the judgment should be dismissed due to cumulative error. We affirm.

BACKGROUND

Darrell Robinson (Darrell)2 lived with his brother William Robinson (Billy) and his friend Benjamin Williams (Williams) in a home on 54th Street in Oakland. Appellant, who was Darrell's adult son, sometimes stayed at the house and a friend, Raymond Garza (Garza), sometimes visited. During the afternoon of May 23, 2015, appellant fatally shot Garza, Darrell and Williams inside the home.

Appellant was charged with three counts of murder with allegations that he had personally and intentionally used a firearm causing great bodily injury or death, had personally and intentionally discharged a firearm, and had personally used a firearm. He was also charged with one count of being a felon in possession of a firearm. (§§ 187, subd. (a), 12022.5, subd. (a), 12022.53, subds. (b)-(d), 29800, subd. (a)(1).) The information alleged a prior “strike, ” a prior serious felony enhancement, and two prison priors, along with a multiple-murder special circumstance, which would have made appellant eligible for a sentence of life without the possibility of parole if he were convicted of at least two counts of murder, one of which was murder in the first degree. (§§ 190.2, subd. (a)(3), 667, subd. (a), 667, subd. (b)-(i), former 667.5, subd. (b), added by Stats. 2014, ch. 442, § 10, 1170.12.) The case proceeded to a jury trial.

1. Prosecution Evidence

In the months leading up to the shooting that is the subject of this case, appellant was staying at the 54th Street house. Darrell and Williams were longtime drug users and appellant was dealing drugs. According to Billy, he had seen Darrell and appellant scuffle over a telephone on one occasion, but they generally got along.

Appellant sometimes spoke to his sister Danesia Robinson (Danesia), with whom he had a good relationship, on the telephone. Appellant told Danesia that he was scared and wanted to get out of the house. He asked her for a gun, which she did not give him, although she did begin investigating the possibility of finding him a new living situation.

Billy testified that there had been no arguments on the day of the shooting. He had gone out that morning to buy some vodka and as he was leaving, Garza arrived, and Billy let him in to make something to eat. Appellant was in the kitchen and Darrell was asleep in a chair in the living room, having returned from getting some methadone. When Billy came back from buying the vodka, Garza was asleep in the kitchen, appellant was watching television in the living room, Darrell was still asleep in a chair in the living room, and Williams was asleep in a recliner in the living room where he usually slept, clutching a pillow. Billy left the house again and when he returned at 1:00 or 2:00 p.m., everyone was in the same position.

Billy saw appellant walk into the kitchen from the living room. He did not see appellant carrying a gun, and to his knowledge no one in the house had a gun. After a few minutes, Billy heard something that sounded like a gunshot. Darrell got up and started to walk toward the kitchen and said he thought that the tire of a bicycle stored in the kitchen had popped. He walked toward the kitchen while Williams remained in the recliner in the living room.

Billy testified that before Darrell reached the kitchen, appellant came out of that room with his arm raised up. He was holding a gun, which he fired. Darrell fell near the corner of Billy's bed, which was located in the living room. Billy escaped out the front door, running so quickly that he fell down and skinned his knee. He heard another gunshot as he left and ran to the corner store to call the police.

When Billy returned home, officers had arrived, and he provided them the keys to the home. The officers attempted to enter, but appellant locked the door from the inside and said “no.” Officers set up a perimeter and fired nonlethal bullets into the home. Meanwhile, from inside the home, appellant sent a text message to his sister Danesia telling her how to contact his daughter and his daughter's mother. Puzzled, Danesia called appellant on the telephone. He told her he was in trouble and had shot three people.

Thirty-five or 40 minutes into the call, Danesia called their older sister Delvosha Robinson (Delvosha) and placed her on a three-way call. Appellant told them he had killed “daddy.” He said, “I am so sorry. It wasn't supposed to happen. They set me up. They tried to rob me. They saw me driving a Jaguar and thought I had more money than I did.” Appellant also said he let Billy go. He told them he wanted to harm himself. Danesia and Delvosha convinced appellant not to kill himself and to surrender.

After appellant surrendered, police entered the home and found Darrell in the living room, dead from a gunshot wound to his torso. Williams was found dead and slumped over in his reclining chair with several gunshot wounds. Garza was found dead in the kitchen with a gunshot wound to his mouth.

At the time of death, Darrell had alcohol, cocaine metabolite, methadone, methadone metabolite, morphine and codeine in his system. Morphine is a depressant that could diminish a person's alertness; the level of morphine detected in Darrell's blood was potentially fatal. Williams had cocaine, cocaine metabolite, methadone and methadone metabolite in his system; methadone can diminish physical capabilities and alertness. The level of methadone found in Williams's system was potentially fatal to a non-habitual user. Garza had a small amount of methamphetamine in his system; methamphetamine is a stimulant that can lead to violent behavior. Each man's wounds were consistent with a single gunshot.3

Appellant was interviewed by police on the evening of the shooting and denied that he had been inside the house when the shooting occurred. The next morning, he called his ex-girlfriend from jail and she said, “I seen this coming, ” after which appellant laughed and later said, “I seen it coming too. I knew it. I knew it.” A couple of hours later, appellant called Delvosha, who was extremely angry. When she asked him, “What the fuck did you do that for?” appellant said he couldn't “talk like that on the phone.” Referencing her discussions with the police, he said, “I wish you hadn't even said nothing to the motherfuckers.” He told her that his “next thing is trying to beat this case.”

2. Defense Evidence

Appellant testified at his trial that in early 2015, he was selling drugs, as Darrell had taught him to do. Darrell and Williams knew this and asked him for drugs and money. He provided them with drugs and money at first, but then stopped because he could not afford to do so. In response, Darrell and Williams became hostile. Williams knew where appellant kept his money hidden in a sock and would tell Darrell, “Get the money out of the sock.” Darrell would sometimes stare at appellant as he slept. Appellant was scared and contacted his sister Danesia for a gun, but she did not give one to him. He stayed in the home because he had nowhere else to live.

On the day of the shooting, appellant went to the kitchen, placed some cigarettes on the counter and started to heat some food. There had been no discussion with Darrell and Williams. Garza was in the kitchen leaning up against the deep freezer. He looked at appellant “like he was mad” at him. Garza pointed a gun at appellant, said “Shut the fuck up” and then snatched the cigarettes from the counter. Appellant grabbed the gun away from Garza and pushed him. Garza moved back but then lunged at appellant, who fired the gun and shot Garza.

Appellant left the kitchen to tell everyone what had happened and saw Darrell, two steps away. Darrell was angry and asked him, “[H]ow the hell you get the gun?” Appellant realized it was a “set-up” and thought that Darrell had sent Garza in to rob him. Darrell reached for the gun, so appellant pulled...

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