People v. Woosley, E039885 (Cal. App. 9/21/2007)
| Decision Date | 21 September 2007 |
| Docket Number | E039885 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. LANNY WOOSLEY, Defendant and Appellant. |
Appeal from the Superior Court of San Bernardino County, No. FWV030154, Gerard S. Brown and Ingrid Adamson Uhler,1 Judges. Affirmed in part and reversed in part.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Lanny Woosley was convicted of 11 crimes, including two unusually nasty murders. He had acquired an illegally modified handgun that could fire over 30 rounds per second; in an apparent "road rage" incident, he or an accomplice used it to mow down a couple of high school students — total strangers to them — who were on their way home from a party.
Defendant's appellate contentions, however, revolve around procedural issues, lesser counts, and sentencing. They are that:
1. The trial court erred by allowing the prosecution to introduce portions of defendant's statements to the police that were obtained in violation of Miranda.2
2. The trial court erred by failing to give a unanimity instruction.
3. The trial court essentially instructed the jury that it did not have to find two of the statutory elements of the crime of making a criminal threat.
4. When the jury sent out a note indicating that it was deadlocked, the trial court gave an erroneous response.
5. In imposing an upper term sentence, and in imposing consecutive sentences, the trial court violated Cunningham.3
6. The trial court erroneously imposed a 20-year personal and intentional firearm discharge enhancement, even though this enhancement had not been pleaded or found true.
7. The jury erroneously found more than one multiple-murder special circumstance true.
8. The trial court erroneously imposed a parole revocation restitution fine.
9. The abstract of judgment is erroneous.
We find no error affecting the conviction. However, aside from defendant's challenge to consecutive sentencing, we agree with his claims of sentencing error. Hence, we will reverse the judgment with respect to the sentence only and remand for resentencing.
Defendant sold Jane Doe some methamphetamine on credit. Doe gave the money to her friend, Melissa Hacker, and asked her to deliver it to defendant. Hacker kept it instead.
Defendant phoned Doe several times, demanding his money. One evening in September 2003, he went to her home and demanded the money. He displayed a handgun.
After Doe's two children had gone to bed, defendant pointed the gun at her head and ordered her to orally copulate him. She refused, but he said "if [she] didn't he would shoot [her] in the head." She then complied. Defendant was sitting on her couch. He put the gun down on the couch. Doe testified: "[W]hen I would see him not looking at it, . . . I would try to grab for it," but every time she tried, he spotted her doing so, and he grabbed the gun himself.
Thereafter, according to Doe, "[defendant] kept driving by my house, calling me, letting me know he was there, that he was watching me." In his phone calls, he said that he wanted his money. As a result, she gave him some collectible DVD's.
Defendant failed to pay his methamphetamine supplier. The supplier therefore kidnapped him, phoned his family, and demanded that they pay a ransom. After about 13 hours, defendant escaped or was released.
A week or so later, defendant's cousin saw defendant with an AP9-model handgun. Defendant told him that it fired very rapidly — "[W]hen you pulled the trigger it emptied the clip."
In October 2003, defendant told Hacker "[p]robably four" times "[t]hat he wanted his money or he was going to kill [her]." One of these threats was made face to face; the rest were left as phone messages.
On October 14, 2003, around midnight, Hacker was driving home from a friend's house in her van; her friend, Steven Dunning, was with her. They realized that they were being followed by what they identified as a Nissan Maxima.
Hacker turned onto Amethyst Avenue, but it was a cul de sac. As she was making a U-turn, the Maxima stopped, partially blocking her way. The passenger in the Maxima got out. He was holding a gun. As Hacker drove back around the Maxima, the passenger fired a rapid burst of shots. Bullets riddled the van; some passed within inches of Hacker and Dunning, but they were not hit. Neither Hacker nor Dunning saw the gunman clearly enough to be able to identify him.
Erik Rivas testified pursuant to a grant of immunity. Erik had been friends with defendant for four or five years. When defendant was kidnapped, Erik moved in with defendant and his family.
According to Erik, defendant regularly carried a gun. It was an AP9 that defendant had modified so as to make it fully automatic.
Erik testified that he drove defendant to collect a drug debt from a woman. They were in Erik's Toyota Camry. When they found her, she was in a van, on a cul de sac. She tried to drive past them; she almost hit Erik's car, but Erik "pulled away and she went through and [defendant] got out and . . . shot the gun at them . . . ." Eight or nine stray bullets even hit Erik's car; one passed through his jacket, but he was not hit.
On January 18, 2004, defendant visited the home of Alejandro and Mayra Rivas in Hesperia. Alejandro Rivas was Erik Rivas's brother. Mayra's cousin, Alexis Jimenez, was also there. Defendant and Jimenez had not met before; however, they were around the same age, and they seemed to get along well. Around 10:00 p.m., defendant and Jimenez said they wanted to go out. They borrowed the Rivases' maroon Honda Accord.
Sometime after 11:00 p.m., Michael Universal was taking his friends Chris Heyman and Blake Harris home from a party in Upland. They had all been drinking; Universal had had "a few" beers. Universal was driving his father's Ford Mustang. He got on the I-210 freeway at Campus Avenue, heading east. He denied having any "confrontation" with any other vehicle. He stayed in the slow lane the whole the way.
Harris, who had been talking to his girlfriend on his cell phone, asked Universal to go back to Upland to pick her up. Universal got off at the Haven Avenue offramp. He turned left (north) onto Haven, went over the freeway, then got into a left-turn lane, preparing to get back onto the freeway and go west. There were two left-turn lanes; the Mustang was in the one farthest to the left.
Suddenly, shots were fired into the Mustang. Universal was not hit, but Heyman and Harris were killed. The shots came from the rear and a little to the left of the Mustang — i.e., from southbound Haven. At the scene, the police later found 48 nine-millimeter shell casings.
A search of defendant's home revealed a collection of newspapers containing articles about the shooting.
At the time of trial, victim Carlos Marquez was unavailable to testify. Diana Boiteau, however, testified that, in January 2004, Marquez was driving a Chevrolet Malibu that she had rented for him.
On January 18, 2004, sometime between 10:00 p.m. and 1:00 a.m., Marquez arrived at Boiteau's hotel room. He was "extremely upset, like hysterical." He told her that, when he had been stopped at a stop sign, another car stopped nearby; a person got out and fired two shots into the engine of the Malibu. "They" then took the car. He said that there had been some stereo equipment in it.
When the police questioned Marquez, he admitted driving a Malibu that Boiteau had rented. However, he denied ever being carjacked. Likewise, at the preliminary hearing, Marquez denied ever being carjacked. This time, he also denied driving a rental car. He denied even knowing Boiteau. Nevertheless, at the preliminary hearing, Boiteau identified Marquez.
On the night of January 18-19, Erik went out to the garage of defendant's house in Rancho Cucamonga and found both defendant and Jimenez there. According to Erik, defendant told him that a Mustang had cut him and Jimenez off on the freeway. When they got off the freeway, at Haven, defendant got out of the car, pulled out a gun, and "sprayed" the Mustang. There were three people inside. Defendant saw them "slumped over." He "was pretty much bragging about it." He showed Erik the gun.
Defendant also told Erik that he had carjacked a Malibu. He showed him some stereo equipment that he had gotten from the car. Jimenez was present when defendant was telling Erik all this. Later, Erik saw a Malibu in front of defendant's house.
On January 19, 2004, around 3:00 or 4:00 a.m., defendant and Jimenez got back to the Rivases' home in Hesperia. They were in a Malibu; they said they had left the Accord behind. According to the Rivases, "They were talking about a Malibu and jacking this guy for speakers . . . ." The next day, the Rivases saw the speakers from the Malibu.
Erik moved out of defendant's home, because "[he] didn't want to know nobody that killed nobody." Their relationship had actually started to sour two or three weeks earlier, when defendant stole a speaker box that he had previously given Erik out of Erik's car. After Erik moved...
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