People v. Way
| Decision Date | 08 March 2021 |
| Docket Number | C085784,C085813 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. LATRALE DUPREE WAY, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MAURICE COTTON, Defendant and Appellant. |
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Latrale Dupree Way and Anthony Maurice Cotton were tried together and convicted of numerous crimes committed during a four-month crime spree in the summer and fall of 2014 in and around the North Highlands and Antelope areas of Sacramento County. Both appealed, and we consolidated the appeals for the purpose of oral argument and decision.
On appeal, both defendants assert: (1) the evidence was legally insufficient to support the verdict on count one, kidnapping to commit robbery; (2) the conviction on count two should be reduced from first to second degree robbery because the evidence was insufficient to establish that the robbery occurred inside an inhabited dwelling house; and (3) the matter must be remanded following the enactment of Senate Bill No. 620 to afford the trial court the opportunity to exercise its discretion to strike firearm enhancements.
Way further asserts: (4) his conviction on count thirteen of aggravated kidnapping was not supported by substantial evidence; (5) because the convictions on counts one through five rested entirely on eyewitness identifications, and because the identifications were inherently unreliable, substantial evidence did not support these convictions; (6) the conviction on count eighteen was not supported by substantial evidence for the same reason; (7) his trial attorney was constitutionally ineffective for failing to call an expert witness to testify about the inherent unreliability of eyewitness identifications; and (8) his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. Cotton further asserts: (9) his transfer hearing pursuant to Proposition 57 was defective and the juvenile court's determination to transfer him to adult criminal court was not supported by substantial evidence; and (10) the natural and probable consequences doctrine impermissibly extends aider and abettor liability in violation of due process and the trial court's instruction on that doctrine requires reversal.
We find merit only in Way's Eighth Amendment claim. We will vacate his sentence and remand the matter to the trial court for resentencing consistent with this opinion. Otherwise, we affirm the judgments.
Defendants were charged in a 20-count second amended information. Both defendants were charged with: kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1) []; count one), robbery in the first degree (§ 211; counts two, three, seven), first degree residential burglary (§ 459; count four), assault with intent to commit rape (§ 220; count five), and robbery in the second degree (§ 211; counts fifteen, seventeen, eighteen). Way was additionally charged with: first degree residential burglary (§ 459; count six), robbery in the second degree (§ 211; counts nine, ten), sexual penetration (§ 289, subd. (a)(1); count eleven), rape (§ 261; count twelve), kidnapping to commit robbery (§ 209, subd. (b)(1); count thirteen), kidnapping to commit rape (§ 209, subd. (b)(1); count fourteen), and sexual battery (§ 243.4, subd. (a); count sixteen).
Cotton was also charged with: first degree residential burglary (§ 459; count eight) and discharging a firearm at a vehicle (§ 246; count nineteen). Count nineteen was later dismissed on the prosecutor's motion.
In connection with counts two, ten, twelve, thirteen, and fourteen it was further alleged that defendants were armed with a firearm within the meaning of section 12022.53, subdivision (b).
In connection with counts three, five, seven, and nine, it was alleged defendants were armed with a firearm within the meaning of section 12022, subdivision (a)(1).
In connection with count eleven, it was alleged that Way personally used a firearm within the meaning of section 12022.53, subdivision (b), and that he used a deadly weapon within the meaning of section 12022.3, subdivision (a).
In connection with count fifteen, it was alleged that Cotton was armed with a firearm within the meaning of section 12022, subdivision (a)(1), and that Way personally used a firearm within the meaning of section 12022.53, subdivision (b).
In connection with count seventeen, it was alleged that Way was armed with a firearm within the meaning of section 12022, subdivision (a)(1), and that Cotton personally used a firearm within the meaning of section 12022.53, subdivision (b).
In connection with count eighteen, it was alleged that Cotton personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c), and that Way personally used a firearm within the meaning of section 12022, subdivision (a)(1).
Victims J.H., E.H., and I.H.
On June 30, 2014, at approximately 9:00 p.m., J.H. took his trash cans to the curb in front of his house. His adult daughter, E.H., was inside with her three children, and his son I.H. was also inside. J.H. started back towards his house when he saw four African-American males on the sidewalk walking towards him. At least two of them wore hoods and had their faces covered. One of them wore a plaid shirt to cover his face. One of the men pointed a gun at J.H.'s head. One of the men grabbed J.H. by his head and forced his head towards the ground. The person holding a gun put it to J.H.'s head. Others searched J.H.'s pockets. They took his cell phone, wallet, and the keys to his Honda.
The men took J.H. into his house through the garage. Once they were inside, J.H. could see the perpetrators better because "inside the house they were not covered anymore in the face." The one with the gun asked J.H. where he could find guns and jewelry but J.H. said he did not have either. The men lifted the mattress in the master bedroom looking for guns. Two of the assailants searched the bedrooms while the other two, including one with a gun, took J.H. to the living room.
E.H. was in the kitchen when she saw someone pointing a gun at her. The person was African-American and he had dreadlocks and a shirt covering the lower part of his face. He told her to go to the living room. There, E.H. saw someone holding J.H. at gunpoint. The intruders told everyone to get on the ground. E.H. grabbed her six-month-old baby and got on the floor.
Two men stayed in the living room with the family while the others searched throughout the house. J.H. only saw one of the men with a gun, but E.H. testified that both men in the living room had handguns. I.H., who was 14 at the time of trial and approximately 12 at the time of the home invasion, saw at least two guns during the incident. The men told the family to be quiet or they would shoot everyone.
The two intruders who had been searching the bedrooms returned to the living room. One of the men approached E.H. and put his hand down her shirt. One of the men said, "you look cute," or "she's cute." One of the men touched E.H. "[i]n [her] butt." Another said they should make E.H. take her clothes off. One of the men pointed a gun at E.H.'s head and told her to put the baby down, so she gave the baby to J.H. and stood up. The men surrounded E.H. They told her to take her clothes off. She refused. All four men then took off E.H.'s shorts and underwear. She fell back onto a sofa and the men grabbed her legs.
J.H. believed that the men were going to rape E.H. As the men focused on her, he ran to the front door and outside to get help. The man with the gun said, "stop or I'll shoot."
After J.H. ran out of the house, the men collected everything they could and ran outside. They took video cameras, a tablet, and a small chest containing antique coins from J.H.'s bedroom. The tablet had been on a nightstand. They also took J.H.'s and his wife's wedding bands. One of the men reached into I.H.'s pocket and took his inhaler. Outside, J.H. saw the men run out of the house. They ran to a corner where they jumped into a dark sedan and drove away.
E.H. also ran outside, hoping to use a neighbor's phone to call for help. She saw a woman on the street and the woman let E.H. use her phone. E.H.'s 911 call was played for the jury. She told the 911 dispatcher, "four guys just came into our house, young like teenager, black guys, they started taking everything from inside my dad's house and they had us all like at gunpoint, I don't think they were real, um, they had me on the floor and they tried to make me take off my c- my clothes." E.H. said they "each had a gun," although at trial she testified that she did not remember saying that, and remembered that two of the men had guns. She said that one of them said he was going to shoot her if she did not take off her clothes. She continued, "they all started surrounding me liked [sic] if they were gonna sexually assault me when I think n- they weren't paying attention and my dad ran out the door and hit the neighbor's house to get help, and they all saw and they just grabbed everything and ran . . . ."
I.H. had hidden his phone under the couch. After everyone ran out, he called 911. I.H.'s 911 call was also played for the jury. During the call, I.H. reported that four or five African-American men had entered the house from the garage. I.H. said he saw two handguns.
At trial, J.H. identified defendants as two of the intruders. He also acknowledged that, sometime after the...
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