People v. Speight

• Decision Date: 11 July 2014
• Docket Number: G049626
• Citation: 227 Cal.App.4th 1229,174 Cal.Rptr.3d 454
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eric Dayshawn SPEIGHT, Defendant and Appellant.

227 Cal.App.4th 1229

174 Cal.Rptr.3d 454

The PEOPLE, Plaintiff and Respondent,

v.Eric Dayshawn SPEIGHT, Defendant and Appellant.

G049626

Court of Appeal, Fourth District, Division 3, California.

Filed July 11, 2014

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 511.

Appeal from a judgment of the Superior Court of Riverside County, Albert J. Wojcik, Judge. Affirmed in part, reversed in part, and remanded for resentencing. (Super. Ct. No. SWF10001639)

Thomas Owen, under appointment by the Court of Appeal, Burlingame, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

O'LEARY, P.J.

Eric Dayshawn Speight appeals from a judgment after a jury convicted him of two counts of premeditated, willful, and deliberate attempted murder and found true various enhancements. Speight argues the following: (1) the prosecutor committed prejudicial misconduct when she misstated the law concerning homicide and the error was compounded by the trial court's statements and omission of an instruction on the interaction between attempted murder and attempted voluntary manslaughter; and (2) his sentence was cruel and unusual punishment and he received ineffective assistance of counsel when defense counsel failed to object to part of his sentence.

As we explain below, we agree the trial court erred in instructing the jury but conclude Speight was not prejudiced. With respect to his sentencing claim, we conclude defense counsel's performance was deficient regarding sentencing. We affirm the judgment, reverse Speight's sentence, and remand the matter for a new sentencing hearing.

FACTS

One evening in August 2010, Tonesha S. was at home in bed asleep with her boyfriend Richard S. when her brother Michael S. woke them and said 17–year–old Speight and a few other men had “jumped” him. Michael had visible injuries to his lip and forehead. Over the course of the following week, Tonesha called Speight approximately 60 times to learn why Speight hit Michael. Tonesha was very angry with Speight and she grew angrier when he avoided her calls. Cherlyn S., Tonesha's mother, tried to speak with Speight's mother concerning the incident without success.

On the afternoon of August 13, 2010, Tonesha, Richard, and their friends, Bryant/Brian W. and his girlfriend went to the mall where they saw Cherlyn, who had Tonesha and Richard's two children with her. Cherlyn told Tonesha that she was going to speak with Speight's mother. Tonesha was uncomfortable with Cherlyn taking Tonesha's children to speak with Speight's mother so Tonesha and the others followed in Tonesha's car.

Cherlyn stopped her car in front of Speight's residence, and Tonesha stopped her car about eight houses away. Bryant got out of Tonesha's car, walked to Cherlyn's car, and stood near the passenger door. Tonesha and Richard saw a woman, later identified as Kacharelle Butler, Speight's aunt, walk towards Cherlyn's car and speak with Cherlyn. When it appeared to Tonesha the conversation was becoming confrontational, Butler was making hand gestures, she drove her car and parked behind her mother's car. Tonesha got out of her car and joined the conversation, which evolved into an argument. Tonesha saw Speight and two men standing near the home's front door. Tonesha, who was very upset and frustrated, punched Butler on the face but did not make solid contact.

Tonesha saw Speight walking towards her with a gun, and Bryant lifted his shirt and turned around to show Speight he was not armed. Richard grabbed Tonesha and said they needed to leave quickly. Bryant said, “ ‘Hey, watch out, he [ sic ] got a gun,’ ” and he ran away. Richard grabbed Tonesha's hand and began to run away. Tonesha heard a woman say to Speight, “ ‘No, go back in the house, there's no need for that.’ ” Tonesha broke away from Richard and ran towards her car. Richard saw Speight shoot the gun in Bryant's direction but Bryant had turned the corner.

As Tonesha ran away, she heard the first shot. Speight chased her and when he got near her, he slowed down, aimed the gun at her, and fired. Tonesha heard a second shot “[a]nd it dropped [her] instantly.” Tonesha, who was shot in the back, was lying face down on the ground. As Richard ran to Tonesha, Speight pointed the gun at Tonesha, and Richard said, “ ‘She's already dead, why are you still shooting?’ ” Speight pointed the gun at Richard and shot him in the left shoulder. As Richard tried to pick up Tonesha, Speight shot Tonesha again, this time in the right shoulder.

Richard and Tonesha fled to a nearby home where they tried to get help. After Richard had Tonesha sit on the porch and he rang the doorbell, Richard walked away. Speight followed Richard, and Richard asked him what he was doing. Speight pointed the gun at Richard and pulled the trigger, but there were no more bullets. It appeared to Richard that Speight smirked before he ran home. As Richard put Tonesha in Cherlyn's car, Richard saw Speight and the other man get into a car and drive away. Cherlyn drove away and flagged down an ambulance, which took Tonesha to the hospital; she suffered from critical injuries. Emergency personnel responded and transported Richard by helicopter to the hospital; his injury was superficial. Two years after the shooting Tonesha still suffered from a loss of mobility and sensation to her left arm. She had undergone one surgery and expected at least one more.

An amended information charged Speight with three counts of willful premeditated and deliberate attempted murder (Pen. Code, §§ 664, 187, subd. (a)) ¹ (count 1—Tonesha, count 2—Richard & count 3—Bryant). As to count 1, the information alleged Speight inflicted great bodily injury causing Tonesha to be comatose or suffer paralysis (§ 12022.7, subd. (b)). With respect to counts 1 and 2, the information alleged Speight personally discharged a firearm and caused great bodily injury (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)), and as to count 3, he personally discharged a firearm (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)). Finally, the information alleged Speight was 16 years of age or older at the time of the offenses ( Welf. & Inst. Code, § 707, subd. (d)(1)).

At trial, the prosecutor offered Tonesha's testimony as described above. Additionally, Tonesha denied threatening Speight during any of her numerous telephone calls. She claimed neither she nor anyone else in her car had any weapons. She denied ever trying to run into the house. On cross-examination, Tonesha denied she threatened Speight during any of her telephone calls. She also denied being at Speight's house before the day of the incident or throwing a rock through his window. And Tonesha denied she threatened Speight when she saw him standing on the front porch before she hit Butler. Tonesha claimed she saw that Speight was armed before she hit Butler. She claimed Bryant did not threaten anyone when he walked to the house. On redirect examination, Tonesha stated she saw Speight had a gun after she hit Butler. On recross-examination, Tonesha was unsure whether Speight came out of the house with the gun before or after she hit Butler.

Butler testified for the prosecution. She explained that when Cherlyn stopped her car, there was a man walking towards the house. Butler stated that as she spoke with Cherlyn, the man approached Speight and tried to instigate a fight. She said Speight went inside to get his “fighting gloves” and went back outside. She said Speight went back inside and returned with a gun. Butler testified she asked Speight what he was doing and told him to put the gun away. She said the man sat in the car and shielded himself with the door. She claimed Speight put the gun back in the house. Butler said another car pulled up and a woman, Tonesha, got out of the car and tried to run into the house but when Butler told her the person that she was looking for was not in the house, the girl who told Speight that Michael had called her a derogatory name, Tonesha walked towards Butler and hit her. She stated there were two men who put their hands up like they wanted to fight her. She said that when Speight came back outside, he had the gun and told them to get away from his aunt and Butler went inside.

Thomas Chapman–Wright, an investigator with the Riverside Public Defender, testified he interviewed Butler telephonically after the incident. Butler told him that not only did Tonesha hit her, two men approached her with raised fists as if they were going to attack her and she was scared. Butler told him that Speight appeared with a gun and she told him to put it away. She thought the man in the car had a weapon.

Cherlyn testified for the prosecution. She explained that after Tonesha tried to hit Butler, she got out of her car to restrain Tonesha. She denied that anyone else, Richard or Bryant, threatened Butler or that they raised their fists. And she stated no one had any weapons except Speight. On cross-examination, Cherlyn denied Tonesha tried to go into Speight's house or that Bryant challenged Speight to fight.

Richard testified concerning the incident as we describe above. He claimed no one in his party had any weapons. He stated neither he nor Bryant ever said anything to Butler or raised their fists to her.

Speight testified on his own behalf. He admitted that three or four days before the shooting he punched Michael in the face because he had disrespected a girl they both knew by calling her derogatory names. Speight claimed he then went home. At home, a mutual friend of Speight and Michael called and said Michael's sister and boyfriend were looking for Speight because they believed he was involved in Michael being “jumped.” A few minutes later, a woman called Speight and asked him to come outside and fight...