People v. Vinson, B238043
| Decision Date | 13 March 2013 |
| Docket Number | B238043 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. TOM LOVE VINSON, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Affirmed with directions.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Tom Love Vinson appeals from a judgment of conviction entered after a jury found him guilty of one count of first degree murder (Pen. Code, § 187, subd. (a); count 1), two counts of attempted willful, deliberate and premeditated murder (id., §§ 187, subd. (a), 664; counts 2 and 3), and one count of attempted voluntary manslaughter (id., §§ 192, subd. (a), 664; count 4). The jury found true the allegations defendant personally and intentionally discharged a firearm, causing great bodily injury on the victims (id., § 12022.53, subds. (b), (c) & (d)), and the crimes were committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)(C)). The jury also found true the allegation that in the commission of the voluntary manslaughter, defendant personally used a firearm (id., § 12022.5, subd. (a)). The trial court sentenced defendant to 130 years to life, plus a determinate term of 25 years and six months.
On appeal, defendant challenges his conviction of attempted voluntary manslaughter and his sentence. We affirm the convictions but remand for resentencing.
On the evening of October 30, 2009, a homecoming football game was held at Wilson High School in Long Beach. After the game, the crowd of spectators was leaving the school. Cheerleaders Melody Ross (Ross) and Tori R. were sitting on the curb. Marcus Moore (Moore) and Brad Van (Van), who were members of the Rolling Twenties Crips gang, were standing nearby.
Defendant, Nicholas Campbell (Campbell), and Davion Davis (Davis) approached the four. Defendant and Campbell were members of the Baby Insane clique of the Insane Crips gang, and Davis was an associate of the gang. The Insane Crips and Rolling Twenties Crips are rivals.
As defendant and his group passed the other group, they exchanged words. Defendant and Campbell both said "Babies." Moore and someone else responded, "Twenties." Defendant took out a .25 caliber handgun and fired it four times in Moore's direction, killing Ross and wounding Moore and Van.1
People near the groups heard some of the exchange, including the words "Rolling," "Twenties or Twenty Crips," and "Babies." Some heard derogatory terms for the two gangs used, and some witnesses described the exchange as "banging" on one another.
Brittney R. heard people "banging" on each other but did not remember specifically what they said. She saw defendant pointing his gun "like almost towards" her, and when he started shooting, she dropped to the ground.2
According to Moore, as defendant's group walked by, someone said "Babies," and someone responded "Twenties." Moore also said "Twenties." Then defendant shot him in the arm and the leg.
Moore knew defendant and admitted throwing Rolling Twenties hand signs at him in the past, but not on the night of the shooting. Moore also admitted that he was armed with a concealed, loaded handgun at the time, so he could shoot someone if he needed to. He denied drawing it out that night and said he gave it to Van after the shooting.
Long Beach Police Officer Chris Zamora testified as a gang expert. He explained that Wilson High separates Rolling Twenties Crips territory from Baby Insane Crips territory. He discussed the two gangs and the significance of the interchange prior to the shooting. In his opinion, the crime was committed for the benefit of the gang and the shooter.
Defendant testified that he was 16 years old at the time of the shooting. He had been a member of the Rolling Twenties before switching to the Insane Babies with a friend of his. A person can be killed for switching gangs, and his friend was killed at age 15.
Defendant carried a gun because he was always in fear for his life. The Rolling Twenties had shot at him about 20 times and had beaten him up for switching gangs. Defendant had never in the past shot back, because he always had been taken by surprise. He did not report the shootings to the police, because his gang would have killed him if he did.
While defendant was at the football game, some members of the Rolling Twenties saw him. They threw gang signs, shouted slogans, revealed guns and challenged him to go outside the school grounds. Defendant did not accept the challenge but showed the people he was with that he had a gun.
When the game was ending, defendant was outside the school with some friends. Campbell and Davis came over, and the three decided to walk to a restaurant. As they were walking, he saw Moore and Van with some other members of the Rolling Twenties. Defendant knew them from his days with the Rolling Twenties, and he and Van used to be good friends. He and Van still respected one another, but Moore was usually antagonistic towards him.
As defendant walked past Van, he did not acknowledge him, since defendant was with fellow gang members. Defendant heard someone say "Twenties" and someone else say "Babies." Defendant turned around. He heard someone make a derogatory comment about the Insane Babies, and then he saw Van reaching into his waistband for a gun. Campbell made a derogatory comment about the Rolling Twenties, and Van started to raise his gun in defendant's direction. Defendant drew his gun and started shooting at Van's arm; he thought Van was going to kill him.
Defendant did not aim at Ross or intend to kill her. He did not tell the police that Van drew a gun on him because he did not trust the police and he did not want to be a snitch.
According to defendant's friend, Matthew Vaughn, at a previous football game members of the Rolling Twenties threw gang signs, yelled gang slogans and brandished guns at defendant.
Long Beach Police Officer Malcolm Evans told Moore that he could be held liable for having a gun before Moore denied brandishing a gun. Officer Evans acknowledged that neither Moore nor Van was charged with possession of a concealed weapon, even though both admitted they had committed that crime. When Officer Evans interviewed defendant, defendant did not cooperate. Defendant did not claim self-defense.
Davis testified that he was walking with defendant and Campbell when he saw a member of the Rolling Twenties who looked to be under the influence of drugs. The man looked angry and had his jaw clenched. His hands were at his waistband under his shirt, and he was swaying.
Campbell told Davis that the man was a member of the Rolling Twenties who had "banged" on him a couple of days earlier. Campbell uttered a gang slogan for the Insane Babies. The man said "Twenty Crips" and made a derogatory comment about the Insane Babies.
Defendant then turned around and made a derogatory comment about the Rolling Twenties. The man returned the comment about the Insane Babies "and all your dead homies." This was disrespectful, especially since defendant's friend had been killed by the Rolling Twenties. Defendant repeated his comment and started shooting.
Davis did not see the drugged man's hands leave his waistband, and he did not see anyone in the crowd with a gun. Davis had a gun, but he did not draw it.
After the shooting, defendant told Davis that he would get killed if he snitched. Davis could have been sentenced to 100 years to life as a codefendant in this case, but hepled guilty in exchange for an eight-year sentence, with part of his sentence served in a juvenile facility.
Defendant contends the trial court's failure to resolve the jury's confusion regarding the interplay of transferred intent and the intent required for murder, attempted murder, and their lesser included offenses requires reversal of his conviction of attempted voluntary manslaughter. We disagree.
During deliberations, the jury sent in a request reading: The court asked counsel if they had any suggestions. Defense counsel said he did not. The prosecutor recommended that the court "point them to the eight series, which is all the crimes that you just read off." The court said it would read CALJIC No. 3.313 "and tell them that the eight series contains all the definitions of intent for murder, attempted murder, voluntary manslaughter, attempted voluntary manslaughter."
Defense counsel then responded, "Your Honor, if we are going to essentially say we are not going to give you anymore definitions or clarify anything other than what you have got in the jury instructions, and let's just bite the bullet and tell them that." The prosecutor said he did not understand how that was any different than what the court stated it would do. The court said that defense counsel The court added that it was thinking about reopening argument to allow the attorneys to argue...
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