People v. Smith
| Decision Date | 24 February 2021 |
| Docket Number | B305527 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DUSHAWNE EARL SMITH, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA145980)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
____________________ Appellant Dushawne Earl Smith was involved in a series of gang-related drive-by shootings. The jury convicted Smith of first degree premeditated murder with special circumstances (Pen. Code,1 §§ 187, subd. (a), 190.2, subds. (a)(21), (a)(22)), attempted premediated murder (§§ 664, 187, subd. (a)), shooting at an occupied vehicle (§ 246), and possession of a firearm by a felon (§ 29800, subd. (a)). The jury also made true findings on firearm enhancement (§ 12022.53, subds. (d), (e)(1)) and gang enhancement (§ 186.22, subd. (b)) allegations. Smith was sentenced to life without the possibility of parole (LWOP) plus 25 years to life on the murder count. On appeal, Smith argues: (1) the trial court erred in instructing the jury on the defense of duress; (2) his LWOP sentence constitutes cruel and unusual punishment; (3) his ineligibility for a youth offender parole hearing under section 3051 denies him equal protection of the law; and (4) the imposition of the firearm enhancement on the murder count violates California's multiple conviction rule and double jeopardy principles. We affirm.
This case arises out of a series of drive-by shootings committed by members of the Grape Street Crips. Smith and six codefendants were charged with murder, attempted murder, and other related crimes in connection with two of the shootings. Smith and codefendant Lykeem Marty were jointly tried on the charges before separate juries. Two other codefendants, KarnellLawson and Deanthony Bradford, testified against Smith and Marty as part of plea agreements for reduced sentences.
The Grape Street Crips are a large gang in South Los Angeles. One of the gang's main rivals are the Bounty Hunter Bloods. Nickerson Gardens is a housing project located in an area controlled by the Bounty Hunter Bloods. Jordan Downs is another housing project about a mile away, and is a stronghold of the Grape Street Crips. A few weeks before the shootings in this case, a high-ranking member of the Grape Street Crips was murdered by a member of the rival Bounty Hunter Bloods.
On the night of August 3, 2016, a group of Grape Street gang members, including Smith, Marty, Lawson, and Bradford, gathered near Jordan Downs. Vernon Williams, a leader and shot caller for the gang, came up with a plan to retaliate against the Bounty Hunters by shooting and killing one or more of their members. At Williams's direction, the group got into three cars and stayed in communication using their cell phones. Williams and Bradford were in a Mercedes, the lead car, and looked for potential targets. Three other men were in a Lexus, the decoy car, that would try to draw the attention of any police officers responding to the shooting. Smith, Marty, and Lawson were in a Nissan, the designated shooting car and the only one containing firearms. Marty drove the Nissan, and Smith and Lawson sat in the backseat. All three occupants of the Nissan were armed.
The group first drove in a caravan to the Howard Hughes Center in Culver City where Williams believed they would find Bounty Hunter Bloods. Williams directed the group to the driver of a Maserati whom he identified as a rival gang member. Smith, Lawson, and Marty all shot at the Maserati's occupants.The driver of the Maserati was treated for multiple gunshot wounds.
Following this shooting, the group retrieved an AK-47 assault rifle. Because Williams was not satisfied with the shooting, all three cars then headed to Nickerson Gardens searching for another target. After scouting the area a few times, Marty stopped the Nissan near a field where a group of people had congregated. Lawson fired a pistol at the group until the chamber was empty. Several bullets hit a nearby home. Smith, who had been given the AK-47, struggled to cock the rifle and was unable to fire any shots. No injuries were reported as a result of that shooting.
The caravan of cars next went to a nearby park. Williams told the group that they were not done because no one had been killed. After Williams helped Smith cock the AK-47, the group headed toward a gas station across the street from Nickerson Gardens. From the Mercedes, Williams or Bradford identified the driver of a white Chrysler at the gas station as another potential target.
Dougal Cordero was the driver of the Chrysler and his girlfriend, Ijeoma Chukwudi, was also in the car. A third person, Paul Richmond, was standing nearby. Smith said, "[W]hat's up cuz?" then immediately opened fire with the AK-47, killing Cordero and wounding Chukwudi and Richmond.
Soon after the shooting at the gas station, officers stopped the Lexus, and took its occupants into custody. The following night, other officers pulled over the Nissan and arrested its occupants, Marty and Smith.
After the arrest, Smith admitted to a detective that he was part of the group of Grape Street gang members that committed the shootings at Nickerson Gardens and the gas station as revenge for the murder of one of their members. According to Smith, Williams and another member of the gang forced him to participate in the shootings. They physically assaulted Smith and took his property. They then held him at gunpoint and told him to get into the Nissan with Marty and Lawson. They also made Smith put an AK-47 rifle in the backseat of the car. During the interview, Smith gave a number of inconsistent statements about where he was seated in the Nissan. He claimed, however, that Marty and Lawson shot at the crowd in Nickerson Gardens, and Lawson fired the AK-47 at the couple at the gas station. While Smith denied firing a gun, he admitted he cocked the AK-47 for Lawson prior to the shootings.
After being charged in this case, Lawson and Bradford entered into plea agreements under which they would receive reduced sentences in all cases pending against them in exchange for their truthful testimony. Lawson, who was 18 years old at the time of the shootings, would receive a total determinate term of 28 years, making him eligible for parole in 13 years. Bradford, who was 19 years old at the time of the shootings, would be sentenced to a nine-year term.
The jury found Smith guilty of the first degree murder of Cordero (§ 187, subd. (a)), the attempted willful, deliberate, and premeditated murders of Chukwudi and Richmond (§§ 664, 187, subd. (a)), shooting at an occupied vehicle (§ 246), and possessionof a firearm by a felon (§ 29800, subd. (a)). The jury found true the special circumstance allegations that Smith committed the murder by shooting the victim from a vehicle and to further the activities of a criminal street gang in which he was an active participant (§ 190.2, subds. (a)(21), (a)(22)). The jury also found true the allegations that a principal personally and intentionally discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (d), (e)(1)), and that Smith committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)).2
The trial court sentenced Smith to LWOP plus 25 years to life on the murder count, consecutive life terms plus 25 years to life on each attempted murder count, and a consecutive three-year term on the felon in possession of a firearm count. The court stayed the sentence on the shooting at an occupied vehicle count pursuant to section 654.
Smith contends the trial court violated his constitutional right to due process and a reliable verdict by refusing to instruct the jury that duress may negate premeditation and deliberation for the crimes of murder and attempted murder.
Based on the evidence that Smith had been threatened by his gang to participate in the shootings, the trial court instructed the jury on the defense of duress with a modified version of CALJIC No. 4.40:
The trial court denied Smith's request that the instruction be further modified to provide that "duress may not be a defense to murder[,] but it may be a defense to premeditation or implied malice." Citing People v. Landry (2016) 2 Cal.5th 52 (Landry) and People v. Hinton (2006) ...
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