People v. Walker
| Decision Date | 28 June 2019 |
| Docket Number | A137905 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY LEE WALKER et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City & County of San Francisco Super. Ct. No. 213310)
This is an appeal from judgment after a jury convicted codefendants Timothy Lee Walker and Sammy Frazier (jointly referred to as defendants) of first degree murder, carjacking, and conspiracy to commit carjacking. Defendants, who have with few exceptions joined each other's arguments, challenge the judgment on many grounds, including: violation of the constitutional prohibition against illegal detention, search, and seizure (U.S. Const., 4th Amend.); insufficiency of the evidence supporting their convictions of felony murder, carjacking, and conspiracy to commit carjacking; multiple instructional errors; juror misconduct; and sentencing error. Defendants also raise issues in supplemental briefing with respect to certain postconviction changes in the law, including changes with respect to a trial court's discretion to strike or dismiss certain sentencing enhancements (Pen. Code, § 1385, Stats. 2018, ch. 1013, § 2, No. 9 West's Cal. Legis. Service, p. 6676); the newly afforded right of youthful offenders to develop a factual record for any future youth offender parole hearing (People v. Franklin (2016) 63 Cal.4th 261); and changes in the law governing the application of the natural and probable consequences theory of criminal liability and the felony-murder rule (Pen. Code, § 1170.95, subd. (a)(3), Stats. 2018, ch. 1015, § 4, No. 9 West's Cal. Legis. Service, pp. 6679-6681).1
For reasons set forth below, we conclude substantial evidence does not support defendants' convictions on count II, carjacking, and count III, conspiracy to commit carjacking. At the same time, we conclude substantial evidence does support the jury's murder verdicts based on the prosecution's alternative theories of felony murder with robbery as the predicate crime and willful, deliberate and premeditated murder. We therefore vacate the judgment only as to counts II and III as to each defendant and remand to the trial court for a retrial limited to: (1) the allegations in the information relating to defendants' prior felony convictions; and (2) as to Walker, the development of a factual record for his potential future youth offender parole hearing. We affirm in all other respects.
On September 28, 2010, a criminal information was filed charging defendants with murder (§ 187, subd. (a)) (count I); carjacking (§ 215, subd. (a)) (count II); conspiracy to commit carjacking (§ 182, subd. (a)(1)) (count III); and possession of a firearm by a felon (§ 12021, subd. (a)(1)) (counts IV and V). The information further alleged as to Walker that he had personally discharged a firearm (§ 12022.53, subd. (d)); had sustained one prior conviction and juvenile adjudication (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)); and had sustained one prior serious felony conviction (§ 667, subd. (a)(1)). It was further alleged as to Frazier that he was armed with a firearm (§ 12022, subd. (a)(1)); had sustained three prior convictions and juvenile adjudications (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)); and had sustained one prior serious felony conviction (§ 667, subd. (a)(1)). Finally, it was alleged each defendant had served a prior prison term (§ 667.5, subd. (b)).
A jury trial began on April 12, 2012, at which the following evidence was presented.2
In the early morning hours of May 31, 2009, witness J.W. was leaving a San Francisco bar called Sam Jordan's on Third Street at Galvez Avenue when he heard "someone argue and then ended up seeing one guy shoot the other guy." Specifically, J.W. saw the victim (later identified as Winston Coleman) try to grab a gun from the shooter before being shot. J.W. then heard at least two more shots as the victim tried to run away. The shooter—dressed in jeans, a long-sleeve black shirt with a white shirt underneath, and a "[black] ski mask that was rolled up" like a beanie—escaped up Galvez.
San Francisco Police Officer Ryan Doherty was dispatched to the scene just before 2:00 a.m., after the city's gunshot detection system indicated gunfire at Third and Galvez at 1:55 a.m. He found a large crowd gathered around the victim, who was later determined to have died from a "penetrating gunshot wound." According to Officer Doherty, people in the crowd were screaming, "They took his Denali."3
Officers Dack Thompson and Marvin Cabuntala, driving in a marked police vehicle near Third and Galvez, heard dispatch advise that the suspect had left the murder scene in a white Dodge Charger. The officers decided to head toward a nearby freeway entrance in hopes of finding the vehicle before it left the city. In fact, when Officers Thompson and Cabuntala reached Industrial Street at Revere Avenue, about a mile from the murder scene and close to the freeway on-ramp, they saw a white Charger matching the suspect vehicle's description, with three occupants, come to a "hard stop." The officers, who saw no other vehicles in the area, activated the police vehicle's emergencylights to pull the Charger over. After waiting for backup, the officers extracted the three occupants—Frazier (from the driver's seat), Walker (from the rear passenger seat), and Frazier's fiancée, Deshawna Morris (from the front passenger seat). After handcuffing the three occupants, police initiated a search of their persons and vehicle. At the time, Frazier was wearing a black "hoodie" with a white shirt underneath it.
The officers' search of the Charger's backseat revealed a pair of gloves, a knitted black mask, and a black "beanie" cap. A search of the front seat, in turn, revealed a right glove "wedged" under the driver's seat in a position that would have been difficult for the backseat passenger to reach. In the trunk, the police found a blanket and plastic container of the type "that you would slip a blanket in to keep it from getting wet, dirty, or damaged."
Officer John Dizon first visually searched Morris and noticed that "she kept pulling her left shoulder away from [him]" and appeared to have a "bulge" in the area between her breasts. After conducting a "blade hand" search, Officer Dizon determined she had a firearm in this area, at which point Morris spontaneously stated, Further searching of Morris's person by a female officer revealed the firearm, a bag of bullets, and a bag appearing to contain marijuana.
Shortly after being searched, Morris asked to speak with Officer Thompson. Morris told him that she had been near Third and Galvez at the time of the murder. Specifically, Morris stated she and Frazier were in a bar and, after hearing gunshots, she fled up Third toward Palou Avenue. Moments later, Frazier arrived to pick her up in the white Charger, with Walker already in the backseat. Morris then entered the front passenger seat, and they drove off toward Industrial after Frazier stated, "We got a [sic] go see about a car first." Frazier then drove "to the area where the Denali was found . . . ." Once they arrived, Frazier left the Charger, walked to the Denali, and removed something from its trunk, which he carried back to the Charger.
Morris told Officer Thompson the Denali was parked under the freeway at Selby Street and Revere. A subsequent police search of this vehicle revealed the keys were stillin the ignition and shoe prints were left outside the open right passenger door. At trial, a criminalist with the San Francisco Police Department testified these prints were consistent with Frazier's right shoe.
At trial, Morris testified that she and Frazier (her "[fiancé]") had rented the white Dodge Charger on May 30, 2009, at the San Francisco airport.4 The couple spent the previous night at a Motel 6 in Vallejo and intended to stay there again that night. After changing clothes in their motel room in anticipation of a night out in San Francisco, they drove to Oakland to visit a friend. While there, Frazier received a call on his cell phone from "TW," whom Morris understood to be Walker. Frazier walked away to take this call before returning to tell Morris they needed to go to San Francisco. Once there, Frazier drove to a corner store in the Bayview area, where Morris saw Walker and a woman, Dee, approach and enter their car. They drove to Galvez and parked the car, where defendants exited to speak privately on the sidewalk. Afterward, Frazier reentered the car, while Walker walked up Galvez toward Third.
Morris, still seated in the car, told Frazier that she wanted to leave, to which Frazier responded, "Well I'm going to call Tim and see what's taking so long." Afterward he told Morris, "Not too much longer." Shortly thereafter, they saw Walker cross the street: "Once he passed the crowd and got in the middle of the street, he pulled the mask down over his face." Seconds later, Morris heard gunshots and heard people screaming. Morris told Frazier something had happened and she wanted to leave, to which he responded that he was "waiting on Tim." Eventually, he started driving slowly down Galvez toward Phelps Street while "trying to use his phone at the same time." Turning off Phelps and driving toward the freeway overpass, Frazier made a call. About this time, Morris saw Walker walk out from between two cars. Frazier slowed the Dodge Charger so Walker could enter. Out of breath, Walker told them "he just bust...
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