People v. Xavier James Fort
| Decision Date | 14 November 2017 |
| Docket Number | E065567 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. XAVIER JAMES FORT, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Aaron Campbell, an associate of defendant's cousin, Thurston Stewart, wanted to get some marijuana from Sylvestre Leyva, the victim, a Hispanic man he met at a hookah bar the previous night. The plan involved picking up defendant, Xavier Fort, because he had a gun, and others, and going to the victim's house in a group to grab the marijuana. At Leyva's house, Samuel Delatorre (who actually owned the marijuana but allowed Leyva to broker the deal), and Leyva came out to meet them and handed Campbell the bag of marijuana. Campbell pulled out a gun and told Leyva and Delatorre to go back into the house. By this time, Leyva's friends came out of the house as Campbell and his group turned to leave in their cars with the marijuana. As Leyva and Delatorre turned to re-enter the house, defendant fired three gunshots into the group of Hispanics, one of which struck and killed Leyva.
Defendant was tried and convicted by a jury of murder (Pen. Code, § 187, subd. (a)),1 with a special circumstance allegation relating to felony murder (§ 190.2, subd. (a)(17)), and two counts of robbery (§ 211), each charge carrying an allegation that a gun was discharged causing death or great bodily injury. (§ 12022.53, subd. (d).) His first appeal resulted in a reversal for failing to instruct the jury as to lesser included offenses. On remand, the People amended the information to proceed solely on a felony-murder theory of liability. Following retrial, defendant was again convicted of all charges and enhancements, and sentenced to an aggregate term of life without possibility of parole forthe murder, plus a consecutive term of three years for the robbery of Delatorre and 50 years to life for two of the gun discharge enhancements. Defendant appealed.
On appeal, defendant argues that (1) the amendment of the information seeking retrial solely on felony-murder was barred by the law of the case doctrine and section 1009; (2) in the alternative, the amendment violated section 1009 by depriving defendant of the right to have the jury consider lesser included offenses; (3) the court erred by refusing to instruct on voluntary manslaughter based on imperfect self-defense and overruling defendant's objection to proceeding solely on a felony-murder theory; (4) the court erred by refusing to instruct on self-defense; (5) the court's response to a question from the jury regarding aiding and abetting instructions improperly directed the jury toward a conspiracy theory of liability; and (6) the court's imposition of the second gun discharge enhancement to the robbery count relating to Delatorre violated double jeopardy because the new sentence is harsher than the original sentence imposed. We affirm.
BACKGROUND
On August 19, 2010, Terrence Harris and Aaron Campbell went to a hookah bar, where Aaron interacted with a Hispanic male who was also present. The Hispanic male was Sylvestre Leyva, Jr. Leyva later sent a text message to Samuel Delatorre, telling him about a party he was having, and asked Delatorre to bring some marijuana. Leyva toldDelatorre he had contact with someone who wanted to buy marijuana, so Leyva asked Delatorre to get about two ounces.
On August 20, 2010, Aaron Campbell was at Jonathan Buckley's house, joined later by two other friends, Chris Baker and Kelton Pounds.2 Aaron mentioned doing a "lick," a robbery, to get marijuana that night. The target of the robbery was the guy they had met from the hookah lounge the night before.
That same evening, Delatorre brought about an ounce and a half of marijuana to Leyva's residence3 for the party. While there, someone approached him and said that someone outside was looking for weed, so Delatorre went outside. Out in the front yard, there were approximately three African-American males standing between the grass and the driveway.4 The African-American males asked about the price of the marijuana and wanted to see it. Leyva had met these individuals previously, so he acted as middleman and negotiated with them about price.
Delatorre went inside and got a small bud of marijuana and took it outside to show the prospective purchasers. The African-American males indicated it smelled good, but they had not brought any money with them, so they needed to go to an ATM. Delatorrewas concerned that they intended to steal his marijuana. His suspicion was well founded: the truth was that Campbell's group had intended to rob him of the marijuana but decided to leave because they were outnumbered, instead of snatching the marijuana and running as they had planned.
Instead of going to an ATM, Aaron Campbell and his associates returned to Jonathan Buckley's house to get more people. At Jonathan Buckley's house, they found Genevieve, Marcel Oliver, and Thurston Stewart, defendant's cousin. They discussed getting another gun, and Thurston volunteered that he could get another "burner" from his cousin, the defendant. Thurston called defendant and told defendant he was coming to get him and that they were going to get some weed. Thurston did not mention a robbery, but told defendant that Aaron Campbell wanted to get some weed and wanted to borrow defendant's gun. They rode in two vehicles—Aaron's maroon Honda and Genevieve's grey Malibu—to pick up defendant. Then the group headed in two cars back to Leyva's residence and parked in front of the house on the street.
Delatorre saw a maroon Honda, followed by a greyish Chevy Malibu, stop in front of the house. At least seven or eight people exited the cars and stood in a sort of formation in front of the house. Everyone got out of the cars except two drivers: Genevieve and Kelton Pounds. Defendant stood near a fire hydrant across the street from the house. Campbell, Thurston Stewart and Chris Baker were in front of the house. Delatorre was afraid they intended to take the marijuana. Nevertheless, Delatorre,followed by Leyva and one other person from the party, went outside, with the marijuana in his hand.
One of the African-American males, Aaron Campbell, approached and said he had the money, asking where was the marijuana. Delatorre took out the marijuana and held it out to Campbell, who took it and asked if it was all there. Then Campbell took two steps back and pulled out a semiautomatic handgun. Campbell then directed Delatorre and Leyva to go back into the house.
Delatorre and Leyva started backing up to the house, and Leyva told Campbell's group that they had messed up, because he knew their homies. As Delatorre began to re-enter the house, Leyva headed back out. Three gunshots rang out from the street area. Delatorre ducked and ran, but Leyva sustained a gunshot to the head and collapsed on the ground in front of the house. He died as a result of the gunshot wound to the head.
Defendant, along with Aaron Campbell and the African-American males, got into the cars and went back to Jonathan Buckley's house where they split up the marijuana. On the drive back to Buckley's house, defendant seemed surprised that he was the one who fired the shot. Defendant left his gun with Thurston at Jonathan Buckley's house. Thurston kept it till the next day, when he gave the gun back to defendant. The following day, defendant gave a backpack containing the gun to his other cousin, Thurston's brother, Keontae Stewart, to hold for him. Keontae gave the gun to his parents, and defendant's mother later turned it over to police. Ballistics testing showed that the bullet that killed Leyva was fired from defendant's gun.
Defendant was interviewed by a detective and arrested after admitting that he had fired the weapon because he panicked when the people in Leyva's house came out screaming.
On August 20, 2010, defendant lived in Eastvale. Thurston Stewart and Thurston's brother Keontae Stewart, are his cousins. He knew Chris Baker from high school, but he did not know Terrence Harris, Kelton Pounds, Marcel Oliver, or Genevieve until the night of the robbery, although he knew Genevieve hung out with Thurston. Defendant had heard of Aaron Campbell before August 20, 2010, but had only met him a couple of times. He was aware that Campbell was his cousin's friend, and had overheard discussions about Campbell "doing licks," that is, committing robberies.
On August 20, 2010, defendant received a telephone call from Thurston, who invited defendant to hang out, telling defendant there would be "loads of grams," of marijuana. Defendant looked out his window and saw a car that looked like Genevieve's, and figured there was a party; he had no idea they were going to commit a robbery. Thurston came in and said, "Let's go," after greeting defendant's mother. Defendant denied being told by Thurston that Campbell needed a "burner" to go get some marijuana, but when he left with Thurston he took his .357 magnum revolver with him in his waist band, because he always took it with him for protection.
Defendant and Thurston got into Campbell's red car, where defendant saw Campbell, Baker, and Kelton Pounds. Defen...
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