People v. Sims, C074948

CourtCalifornia Court of Appeals
Writing for the CourtMAURO, J.
Decision Date16 March 2018
PartiesTHE PEOPLE, Plaintiff and Respondent, v. RICKY SIMS, Defendant and Appellant.
Docket NumberC074948

THE PEOPLE, Plaintiff and Respondent,
v.
RICKY SIMS, Defendant and Appellant.

C074948

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

March 16, 2018


NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 13F02391)

A jury convicted defendant Ricky Sims of the willful, deliberate, and premeditated attempted murder of Ronald Curtis and one count of making a criminal threat. The jury

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found that defendant committed attempted murder 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 trial court found that defendant was previously convicted of a serious felony. Defendant received an aggregate prison sentence of 46 years, plus a consecutive term of 14 years to life, with 160 days of credit.

Defendant now contends: (1) the prosecutor improperly (i) referred to defendant's failure to testify, (ii) misstated the beyond a reasonable doubt standard, (iii) argued facts not in evidence, (iv) misstated the evidence, (v) appealed to sympathy for a prosecution witness, and (vi) vilified defense counsel; (2) the People's gang expert improperly testified about defendant's motive for the attempted murder; (3) with regard to the Penal Code section 186.221 gang enhancement allegation (i) there is insufficient evidence supporting the jury's finding that a primary activity of the Oak Park Blood gang was the commission of one or more of the criminal acts enumerated in section 186.22, subdivision (e)(1) to (25) or (31) to (33), (ii) there is insufficient evidence supporting the jury's finding that defendant committed attempted murder with the specific intent to promote, further, or assist in criminal conduct by gang members, (iii) Detective Eugene Hardy related testimonial hearsay statements of nontestifying witnesses in violation of defendant's right to confront witnesses against him, and (iv) the trial court erred in imposing a 10-year prison term under section 186.22, subdivision (b)(1)(C) on count one; (4) the trial court erred in failing to give a unanimity instruction for the count three charge of making a criminal threat; (5) the trial court erred in not awarding any presentence conduct credit; (6) the trial court erred in imposing the section 667, subdivision (a)(1) (hereafter section 667(a)(1)) enhancement on counts one and three; and (7) the matter must be remanded to permit the trial court to exercise its discretion to strike

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the section 12022.53 firearm enhancement allegation or finding pursuant to the recent amendment to section 12022.53, subdivision (h).

We conclude (1) the claims of prosecutorial misconduct are forfeited; (2) the gang expert did not testify about defendant's subjective intent or motive; (3) the true finding on the section 186.22 gang enhancement allegation must be reversed and the sentence thereon stricken because insufficient evidence supports the jury's finding that a primary activity of the Oak Park Blood gang was the commission of illegal possession of a firearm, robbery, assault with a firearm, and/or attempted murder, and we need not address the other contentions with regard to the gang enhancement allegation; (4) a unanimity instruction was not required; (5) defendant should be awarded 24 days of presentence conduct credit; (6) the trial court did not err in imposing the section 667(a)(1) enhancement twice; and (7) remand is appropriate.

We will reverse the true finding on the section 186.22 gang enhancement allegation and strike the 10-year prison sentence imposed under section 186.22 in count one and further modify the judgment to award 24 days of presentence conduct credit. We will affirm the judgment as modified and remand the matter to permit the trial court to exercise its discretion regarding the section 12022.53 firearm enhancement.

BACKGROUND

Defendant and Kathleen were divorced. Vanessa is their daughter. Kathleen and Vanessa were at the house of defendant's parents Charlie and Mary (the Sims house) on April 12, 2013.2

Defendant's niece Iesha, her boyfriend Ronald Curtis, and other family members were also at the Sims house. Ronald, a Crip gang member, wore a blue shirt and blue rubber bands in the ponytails in his hair. The color blue is associated with the Crip gang.

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Ronald, Iesha, Kathleen and Vanessa were gathered outside the Sims house at around 5:00 p.m. when Kathleen saw defendant exit a silver-colored car. Defendant moved toward Ronald with a revolver in his right hand and yelled, "Wasn't you told not to be over here?" or "Didn't I tell you not to come back over here?" Vanessa heard Iesha say, "he got a gun." Defendant fired the gun at Ronald. He missed. Iesha screamed for defendant to stop. Other people also screamed. Vanessa was scared. She ran into the Sims house and did not come out until she heard everything calm down. Vanessa heard two more gunshots when she was inside the house.

Ronald ran to the backyard of the Sims house after the first gunshot but then ran back to the front of the house. Defendant fired two shots at Ronald as Ronald came out of the backyard. Ronald ran away in a zigzag fashion.

Defendant moved to the middle of the street, held the gun up, used his left hand to steady and support his right hand, and fired three more shots. Kathleen saw Ronald fall to the left. Ronald was shot in his left forearm. A bullet fragment was lodged in his arm, near his elbow.

Defendant got back in the silver car and left. Kathleen could not identify the driver of the silver car, but she said defendant's brother Tony was not the driver. Kathleen said Tony and his wife Misty arrived at the Sims house after the shooting.

Iesha took Ronald to the hospital. Deputy Rodolfo Roque interviewed Iesha at the hospital on April 12. Iesha reported that defendant shot Ronald at the Sims house. She said defendant and Ronald had an argument and defendant shot at Ronald about four times using a handgun, hit Ronald in the arm, and fled the scene. Iesha stated that defendant was a Blood and he did not like Ronald because Ronald was a Crip. Iesha also told Deputy Roque defendant shot Ronald because defendant and Ronald had a fight two weeks before the shooting. Iesha said Ronald did not want her to say anything because he did not want to "snitch."

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Defendant demanded that Vanessa return a pair of earrings he gave her. He sent threatening text messages to Vanessa and her boyfriend Larry on April 13. One of the text messages read, "tell his moma to takw that nice dress off the shelf." Another one read, "when i catch u witj my errings that ass is mine." Defendant told Larry, "Im on my way." Vanessa understood defendant's text messages as threats to kill or do something to Larry.

Defendant sent Larry's cell phone a text message on April 14 which read, "Kathy u did this u callsed me a bitch im gonna make u eat thois words the next u call aman a bitch your face will b srraight M.I.A." Vanessa considered the text a threat against Kathleen. She told Kathleen about the text. Kathleen testified that defendant's threat to "make [her] face straight" referred to the fact that she had Bell's palsy, a paralysis in her face.

Kathleen called defendant and asked him to stop the threats. Defendant then left a voicemail message, a recording of which was played for the jury at trial. Defendant said Kathleen had threatened to get a gun and shoot defendant, and defendant was coming over to shoot her. Defendant ended his message by saying, "Don't call a motherfucker and tell him what you're going to do, just show up at the door, like I am." Kathleen and Vanessa identified the voice in the audio recording played at trial as defendant's.

Kathleen read defendant's April 14 text message about making her face straight and listened to defendant's voicemail message about shooting her. The messages scared her. She called the police.

Vanessa described for the jury a confrontation between defendant and Ronald prior to the shooting. She said defendant told her Ronald used "gang language, saying Crip and cuz" when defendant and Ronald were at the Sims house. Defendant felt disrespected by Ronald's language, and he "checked" Ronald. Defendant and Ronald then "got into it." Defendant spit in Ronald's face and Ronald hit defendant.

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Iesha and Ronald also testified at the trial. Both denied that defendant shot at Ronald.

Iesha admitted she lied to a deputy sheriff about seeing defendant shoot Ronald. She said she made that statement because defendant was the only person she could think of who would shoot Ronald as the two had a "run-in" a few weeks before the shooting. Iesha also said she lied to the deputy because she was mad at defendant. But at trial, Iesha called defendant her "pride and joy." Iesha denied that defendant asked her not to "snitch" on him.

Ronald confirmed he had an argument with defendant at the Sims house at the end of March or the beginning of April. He said defendant spit at him, and he hit defendant. Ronald said he talked with defendant after that incident and there was no problem between them. Ronald denied telling Iesha not to say anything to the police.

Detective Hardy testified as the People's gang expert. He defined a criminal street gang as a group of three or more people, with common signs or symbols, with the members seeking to make identification with that group, and whose members are engaged in a pattern of criminal activity, either individually or collectively, and whose primary activity is the commission of one or more predicate crimes. Detective Hardy testified he personally knew three or more Oak Park Blood gang members...

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