The People v. Tucker
| Docket Number | B317092 |
| Decision Date | 22 August 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ISAIAH JAMES TUCKER et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, No. NA111269 Laura Laesecke, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Isaiah James Tucker.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Phillip Bullard, Jr.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithy, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted Isaiah James Tucker and Phillip Bullard, Jr. of first degree premeditated murder and found true specially alleged firearm and criminal street gang enhancements. The court struck the enhancements and sentenced both Tucker and Bullard to indeterminate state prison terms of 50 years to life.
On appeal Tucker and Bullard[1] contend the court's aiding and abetting instruction (CALJIC No. 3.01) improperly allowed the jury to convict them of murder based on imputed malice; the jury's findings of premeditation were not supported by substantial evidence; and the trial court effectively vouched for the accuracy of the People's evidence when overruling a defense objection during closing argument. They also contend the court erred in denying Bullard's motion to bifurcate the gang enhancements and, even if the ruling denying bifurcation was proper when made, section 1109, part of Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3) (Assembly Bill 333), effective January 1, 2022, mandating bifurcation of gang enhancements when requested, is retroactive to cases not yet final and requires reversal of their convictions. We affirm.
An information filed May 21, 2020 charged Tucker and Bullard with murder (Pen. Code, § 187, subd. (a))[2] (count 1) and Bullard with possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3).[3]
The information specially alleged the murder had been committed to benefit a criminal street gang (§ 186.22, subd (b)(1)(C)),[4] Bullard personally used and intentionally discharged a firearm causing death (§ 12022.53, subds. (b), (c), (d)) and a principal intentionally discharged a firearm causing death (§ 12022.53, subds. (c), (d), (e)(1)). It also alleged Bullard's firearm offense was committed to benefit a criminal street gang. (§ 186.22, subd. (b)(1)(A).)
Finally, the information specially alleged Tucker and Bullard had each suffered a prior conviction for a serious felony within the meaning of section 667, subdivision (a), and a prior conviction for a serious or violent felony within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12).
Tucker and Bullard pleaded not guilty and denied the special allegations.
In January 2019 Johnisha Brown asked her boyfriend, Maurice Ross, to meet her at a Long Beach bar known to be a hangout for the Insane Crips criminal street gang. Brown had been invited to the bar by her friend, Sharell Johnson, who was bartending there. Before Ross arrived, Brown had asked Johnson if there were "any gangbangers" in the bar, telling her Ross was a member of the Bloods, a rival of the Insane Crips. Johnson assured her there were not.
Brown left the bar briefly to meet Ross at the nearby train station. Rodney Willis, an associate of the Insane Crips, was at the bar speaking with Johnson when Brown returned with Ross. Brown and Ross sat down at the bar; Willis sat at a table behind them. Shortly thereafter Tucker and Bullard arrived at the bar in Tucker's SUV. Willis stepped outside to meet them. Willis spoke to Tucker and Bullard for a few minutes before all three men entered the bar together.
Inside the bar Ross used Brown's cell phone to record himself making gang signs indicating his membership in the Bloods. Brown told him to stop. Ross left the table to use the restroom. When Ross returned, he saw Bullard speaking with Brown and confronted him about flirting with his girlfriend. Bullard apologized. Ross and Brown went outside to smoke. Tucker, Bullard, Willis and several other individuals followed them. Outside the bar Bullard and Ross shook hands, seemingly diffusing any animosity between them. Willis, however, remained very angry that Ross was in Insane Crips territory and began "gangbanging Ross." Ross said to someone else in the group, "What's up with you weird ass Long Beach Niggas?" Willis took that comment as a sign of disrespect. Willis identified himself as "Eastside Insane," and he or Tucker told Ross he was in the wrong city. Ross responded he "fucks with Eastside." The confrontation escalated. Bullard and Willis backed Ross up against the building. Willis swung at Ross with a closed fist as if to punch him in the face, but Willis missed and fell to the ground. Ross ran away. Brown followed Ross at a slower pace.
Willis ran back to the bar to go inside; but, when Johnson stopped him from entering, he immediately ran after Ross while Bullard walked slowly behind them. Tucker, too, followed. Tucker and Willis suddenly changed direction and ran back toward the bar and Tucker's SUV. As Tucker ran past Brown, she heard him shout, "I'm going to get the blower," which Brown interpreted to mean a gun. Brown yelled at Ross to run. Tucker got into the driver's seat of his SUV; Bullard entered the SUV on the front passenger's side; and Willis, who had retrieved his backpack from the bar, joined them in the vehicle. The group drove toward the train station. When they saw Ross on the train platform, Tucker stopped the SUV; and all three men ran out. Willis and Tucker chased Ross; Bullard got into the driver's seat.
Willis caught up to Ross; and Ross hit him in the face, causing Willis to fall to the ground and chip a tooth. Ross fled. When Ross ran behind the SUV, Bullard drove the car in reverse as if trying to strike Ross. Ross managed to escape being hit, but seconds later two residents (a husband and wife) of a nearby apartment building saw the driver of the SUV extend his arm out the window with what appeared to be a gun and heard several gunshots.
Brown, who had followed Ross and was near the passenger's side of the SUV when the gunfire occurred, also heard the shots and saw muzzle flashes coming from the SUV's driver's side. Brown was certain the driver, whom she did not see, was the shooter. Because she had seen Tucker drive away from the bar to follow Ross, Brown believed Tucker was the driver. Surveillance footage indicated Bullard was driving by the time the shooting occurred.
Ross was shot in the back and killed. Brown saw the SUV speed away from the scene. Tucker hid the SUV with friends and relatives.
After the shooting Willis ran back to the bar. He was later picked up at the bar in a car belonging to Bullard.
Most of the confrontation inside and outside the bar and the ensuing chase was captured on surveillance cameras. The footage was played for the jury. The shooting itself was not recorded by surveillance cameras.
Bullard and Tucker were arrested a few weeks after the shooting. Willis remained at large for several months until he turned himself in. During his custodial interview Willis said he heard Brown and Johnson talking and had known Ross was a member of the Bloods before Ross arrived at the bar. When Ross disrespected the Insane Crips, Willis chased Ross intending to beat him up, not shoot him. Willis said he had been drinking alcohol all day and was very drunk. He withdrew his semiautomatic nine-millimeter gun from his pocket and fired his weapon only after hearing a gunshot and a window shatter above him; he believed someone was shooting at him. Willis said he did not intend to kill anyone. He did not show his gun to Tucker or Bullard and did not know about any gun in the SUV other than the one he carried with him. He claimed the fight happened because everyone was drunk. It had nothing to do with "gangster shit."
No firearm was ever recovered. Police found seven cartridge casings from a nine-millimeter semiautomatic gun on the corner of Anaheim Street and Locust Avenue; four bullet fragments found nearby were also from a nine-millimeter weapon. While all the fragments came from a single weapon, and all the casings came from a single weapon, it could not be determined if the casings and fragments came from the same weapon. Another bullet fragment found inside a building was too small to determine whether it came from the same gun as the casings or other fragments. Police discovered an oval-shaped bullet hole in a window of a business at 205 E. Anaheim Street where Willis had said he had heard a window shatter. The People's firearms expert acknowledged that she did not conduct a bullet trajectory analysis.
Long Beach Police Officer Fernando Archuleta testified as an expert on the Insane Crips. Archuleta stated the bar was located in Crips territory and frequented by Insane Crips. Based on Tucker's tattoos and Willis's...
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