Gilbert Street and Delmann Heights

TumbleWeed Sun May 31, 2009 7:24 pm

People v. Paulk

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

January 4, 2005; as modified January 12, 2005

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DENI LAMONT PAULK, DEFENDANT AND APPELLANT.

APPEAL from the Superior Court of San Bernardino County. Bob N. Krug, Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art VI, § 6 of the Cal. Const.) (Super.Ct.No. FSB040026) Affirmed in part and reversed in part.

The opinion of the court was delivered by: Hollenhorst, Acting P. J.

I. INTRODUCTION

Defendant Deni Lamont Paulk appeals from his conviction of first degree murder and related enhancements, claiming that the trial court erred in (1) refusing to instruct the jurors on the lesser included offense of second degree murder; (2) allowing admission into evidence of multiple hearsay; and (3) imposing a determinate term gang enhancement. We agree that the 10-year gang enhancement must be stricken. In all other respects, we affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

A jury found defendant guilty of first degree murder (Pen. Code, § 189) *fn1 and found true the special allegations that defendant committed the crime for the benefit of a criminal street gang and that he personally used a firearm (§§ 186.22, subd. (b) & 12022.53, subd. (d)). The court sentenced him to an indeterminate term of 25 years to life for the murder with a consecutive firearm use enhancement of 25 years to life, and a consecutive determinate term of 10 years for the gang enhancement.

Prosecution evidence. Andre Gist testified that at about 7:00 in the evening of June 19, 2003, he lent his red Chevrolet Sprint to defendant, who was supposed to return the car around 11:00 the same night. However, defendant did not return the car until the following morning; he told Gist he had had a problem with a tire that he could not get fixed until the morning, although Gist did not see any changes in the tires. Gist had suffered "many" felony convictions.

Around 7:30 p.m. on the evening of June 19, Dean Wellard was in the backyard of his home on Blake Street in Muscoy, a mile or so from where defendant had picked up Gist's car. Wellard heard about six rapid gunshots and saw a man running toward his gate with red spots on his shirt. The man collapsed by Wellard's side door. Wellard ran into the house, called 911, and then put a blanket over the man to keep him warm. Wellard saw a blue Neon car parked near his mailbox, but he did not see other cars in the area.

Tass Lisle, who had been staying at Wellard's home, had just returned from an errand in her blue Neon with her boyfriend, Ardy Thompson, who was driving, and his friend, Mario Didley, who was sitting in the back seat on the passenger side. She saw a small red car pull up behind her car on the driver's side, and she saw the driver of the red car pull out a gun with a red light on the front. Using his right hand, the man fired five to ten shots and drove away. Lisle ran to the side of the house when she heard the shots. When the shooting stopped, she turned and saw Didley behind her, bleeding and holding his body. She did not see Thompson right after the shooting -- he had taken off running -- but he returned "to see what was going on," and he then left to get his friend Lee Cooper.

Lisle described the shooter as a light-skinned Black or Hispanic or mixed-race person. She did not know the shooter, and she did not get a good look at his face. She did not hear Didley say who had shot him. She told Deputy Sheriff Paul Jacome that she had seen two Black men in a car that looked like a small Ford. She told a police detective that photographs of Gist's car looked similar to the car she had seen that night.

Deputy Jacome was the first officer to arrive on the scene. He asked Didley if he knew who had done this, but Didley did not respond directly. Didley was very pale, and he was gurgling. He said to another man, whom Jacome identified as Thompson, "This is it homey. This is it. I am going."

Ardy Thompson testified he was getting out of Lisle's car when a small two-door red car stopped on his right. He saw defendant in the driver's seat, and he told defendant, "You all better stop playing with me, man." Paulk said something back, smiled, and with his right hand fired a small black nine-millimeter or .44 Ruger semiautomatic handgun with a laser sight from the driver's seat across his passenger, Edward "Fish" Kilpatrick, whose seat was reclined. Thompson thought that defendant was aiming straight at him, and he backed up.

Didley was sitting in the back seat of the Neon with his seatbelt fastened, and he could not get out quickly. He screamed, "Help me. Help me," and "Shoot him. Shoot him." Thompson heard seven or eight gunshots. He described the shooting as follows: "He [defendant] took his time, because he had a beam on him. He was aiming real good. He had the red - the light. Just pow, pow, pow. Took his time."

After the shooting stopped, Didley "was in the front yard asking, why? What did he do? Did you see who it was? And crazy shit like that." Thompson got in the Neon, drove around the corner, found his friend Lee Cooper, and led him back to the scene. Didley asked Thompson over and over, "Why did he shoot me? Why did they shoot me? What did they do it for?"

On the night of the shooting, Thompson did not name defendant as the shooter. Instead, he told the police that he could not tell who was in the red car, and he described the shooter as a Black/Puerto Rican/Samoan man. He later told the police that the shooter was named Zale. Several days after the shooting, he named defendant and he picked defendant's picture out of a photographic lineup as the shooter. He told Detective Acevedo that "Fish" was in the car with defendant, and he picked Kilpatrick's picture in a photographic lineup as the person he knew as Fish. At trial, Thompson said he had earlier lied to the police out of fear of retaliation. Thompson has suffered a conviction for rape.

Thompson testified that he had known defendant for a few years and knew that defendant was associated with or a member of the Delmann Heights Bloods gang. Thompson was an associate of the Delmann Heights Bloods gang. Didley was a member of the Gilbert Street Bloods, a rival gang. After the shooting, Thompson's life was in danger because people in the neighborhood thought he had set up Didley.

Cooper testified that he and defendant were members of the Delmann Heights Bloods. Cooper was also a friend of defendant, Thompson, Kilpatrick, and Didley. Didley was associated with the Gilbert Street Bloods. Cooper testified that Thompson drove up after the shooting, punched the front window of Cooper's van and said, "They got Mario." Cooper followed Thompson to the shooting scene. Cooper asked Didley, "What happened? Who did this to you?" Didley said, "Deni shot me." Cooper has suffered two convictions for residential burglary, and at the time of trial, had been sentenced to serve a term in state prison. He was concerned about testifying because he feared retaliation.

Kilpatrick testified that he was an associate of the Delmann Heights Bloods gang. He knew defendant, Thompson, Cooper, and Didley, and he knew that Didley associated with the Gilbert Street Bloods. Around 7:30 in the evening of June 19, defendant picked him up in a little red car and was driving him home. Kilpatrick denied that he knew in advance that anything was going to happen. He had his seat reclined because he liked to ride in a car that way. On Blake Street, they saw Thompson, who walked up to the car and said, "What's up?" Defendant reached across Kilpatrick and fired six or seven shots out the window with a Glock semiautomatic nine-millimeter handgun with a red laser sight. Didley, a passenger in a nearby blue Neon, was struck by the shots. After he stopped firing, defendant drove away. Kilpatrick testified that the word on the street was that Didley had been shot because Didley was involved in shooting and wounding defendant's cousin earlier that year. When first contacted by Detective Acevedo, Kirkpatrick denied that he had been in the car, and he falsely said that defendant had called him and admitted shooting Mario. Kilpatrick feared retaliation from gang members for his testimony.

Didley died within minutes of the shooting from injuries caused by multiple gunshots - the pathologist identified nine or ten separate entry wounds and a number of exit wounds. The shots entered his body both from the front and the back. Five bullets were recovered from his body. The wounds were consistent with several of the shots having been fired while Didley was sitting in the car and other shots being fired as he got out of the car and ran away. Didley had "quite a number of tattoos," including a tattoo "Gang" on his arm. A second tattoo said "D.H. Killa" or "D.H. Killa. with the DH slashed out.

Detective Marco Granado testified as an expert on gangs based on his training and past assignment as a gang officer. He testified that the Delmann Heights Bloods was part of the largest African-American gang in San Bernardino. Police officers classify a person as a gang member based on the following criteria: (1) the person's admission of gang membership, (2) having gang tattoos, (3) associating with known gang members in a known gang area, (4) wearing gang clothing, and (5) reports from informants or police officers that the person is a gang member. Gang members earn status for themselves and their gangs by committing crimes; the more serious the crime, the greater the status attained. Gang members refer to each other by nicknames to hinder police identification.

TumbleWeed Sun May 31, 2009 7:24 pm

Granado testified that the Delmann Heights Bloods and the Gilbert Street Bloods became rivals in 2001. Between October 2001 and February 2003, there were 18 shootings between the two gangs, resulting in 4 deaths and 12 woundings. None of the surviving shooting victims would name a shooter.

Defendant was interviewed as a victim in a shooting that occurred on May 22, 2003, in which a 14-year-old girl was shot and killed while sitting in a car driven by defendant, and defendant was hit by shards of broken glass. Defendant told Granado that he was an associate of the Delmann Heights Bloods, not a member.

Other officers had made reports that defendant had told them on various occasions since September 2001 that he was a member of the Delmann Heights Bloods Gang. Defendant has a "GB" tattoo, which Granado construed as signifying "Gang Ghetto Boy." Granado believed that defendant was a member, not merely an associate, of the Delmann Heights Bloods.

Granado testified that the primary activities of the Delmann Heights Bloods included narcotics trafficking, assaults commonly involving weapons, robberies, car thefts, and burglaries. In Granado's opinion, the Delmann Heights Bloods had an established pattern of criminal activity, and the predicate acts for purposes of establishing a pattern of criminal activity included an assault with a firearm by gang member Angelo Morris on officers during a shoot-out on December 14, 2001, and an assault with a firearm by gang member Sertigo Murrell on officers on August 20, 2002.

In Granado's opinion, Kilpatrick, Cooper, and Thompson were members of the Delmann Heights Bloods, and Didley was a documented member of the rival Gilbert Street Bloods. Granado testified that Didley's "DH Killa" tattoo had an "X" placed through the "D.H.," and the tattoo was a threat to kill Delmann Heights Bloods members and signified disrespect for the Delmann Heights Bloods.

In Granado's opinion, the shooting was committed to benefit and promote the Delmann Heights Bloods gang. He believed that the Gilbert Street Bloods had shot Delmann Heights Bloods's member Floyd Walker on November 12, 2002, and gang members were expected to retaliate for the shooting or they would lose stature as a gang in relation to their rivals.

Defense Evidence. No shell casings or muzzle burns were found in Gist's car (although the car was not examined until two weeks after the shooting), and defendant's fingerprints were not found in the car.

Defendant's mother, Regina Thornton, testified that defendant had been in Arizona on the date of the shooting, and he had not returned until after June 20, his birthday. Floyd Walker had been a family friend, but he was not related to defendant. After Walker was shot, defendant did not indicate to his mother that he desired vengeance for Walker's shooting. Thornton testified that defendant is left-handed, and it is awkward for him to use his right hand.

Defendant's long time friend Romero Aquilar (hereafter, Romero) testified he traveled with defendant to Arizona in June 2003, and they returned to celebrate defendant's birthday. They were not in Arizona on the day of the shooting. That day, they had gone to the mall, and then, at about 7:30 p.m., had gone to the home of Romero's neighbor where they drank and socialized until around 11 p.m. Romero denied that he had told an investigator he had gone to the mall around 7:30 the evening of the shooting and had returned at around 8:30. He denied that he told an investigator that after going to the mall, he and defendant had drunk at someone's home until defendant's girlfriend picked up defendant. Romero denied that he was a gang member or associate, and he did not remember telling Officer Fyvie on February 4, 2003, that he associated with the Delmann Heights Bloods. He did not know if defendant or Kilpatrick were members of the Delmann Heights Bloods.

Romero's brother Geraldo Aquilar (hereafter, Geraldo) testified that defendant and Romero arrived in Romero's car at about 7:30 p.m. at a friend's house where Geraldo was socializing. Later, defendant's girlfriend picked defendant up. Romero and Geraldo walked home. Geraldo also testified that defendant and his girlfriend left in Romero's car. Geraldo testified that he is not a member of the Delmann Heights Bloods and did not know if defendant is a member.

Rebuttal. A police officer testified that Romero had admitted being an associate of Delmann Heights Bloods. Another officer had determined that Geraldo was also an associate of the gang based on his having grown up in the neighborhood and being seen with known gang members. Romero had previously told Detective Acevedo that he and defendant had been at the mall from 7:45 to 8:30 on June 19, and after that had gone to a neighbor's house to drink alcohol. Romero told the investigator that defendant's girlfriend had picked him up, and they had left in her car.

Over an objection that the testimony went beyond the scope of rebuttal, Detective Acevedo testified that he had interviewed Cooper on June 20, and Cooper told the detective that Didley had said that "it was Deni from Delmann Heights that shot him."

III. DISCUSSION

A. The Trial Court Did Not Err in Refusing to Instruct the Jury on Second Degree Murder

Defendant contends that the trial court erred in refusing to instruct the jury on second degree murder because second degree murder is a necessarily included offense of first degree murder, (see, e.g., People v. Seaton (2001) 26 Cal.4th 598, 672), and a trial court has a sua sponte duty to instruct the jury on all lesser necessarily included offenses supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) Substantial evidence exists if there is evidence from which a reasonable jury could conclude that the lesser offense, but not the greater offense, was committed. (Id. at p. 162.)

Defendant was convicted of first degree murder under section 189, which provides in pertinent part: "[A]ny murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." In People v. Rodriguez (1998) 66 Cal.App.4th 157, the court explained that section 189 establishes three categories of first degree murder: "Section 189 . . . first establishes a category of first degree murder consisting of various types of premeditated killings, and specifies certain circumstances (use of explosives or armor-piercing ammunition, torture, etc.) which are deemed the equivalent of premeditation. Section 189 secondly establishes a category of first degree felony murders (murders perpetrated during felonies or attempted felonies such as arson, rape, carjacking, etc.). Finally, section 189 establishes a third category consisting of only one item, intentional murder by shooting out of a vehicle with intent to kill." (Rodriguez, at pp. 163-164.) The murder of which defendant was convicted falls within this third category. Thus, premeditation was not an element of the specific crime of which defendant was convicted.

In Rodriguez, the defendant had killed his victim by shooting him four times out by firing out of defendant's van; he was convicted of first degree murder, and he appealed from his sentence of life without the possibility of parole. (People v. Rodriguez, supra, 66 Cal.App.4th 157, 162-163.) The jury had been instructed on, among other things, second degree murder. The court noted, in dicta, "A second degree murder finding, while perhaps unlikely, was theoretically possible if, for example, the jury found that defendant did an act dangerous to human life (shooting), but did not find the elements of intentionally shooting at the victim and intending to kill." (Id. at p. 163, fn. 2.) In that case, the defendant had admitted the shooting, but he claimed he had shot the victim out of fear that the victim was reaching for a gun and was about to shoot him. (Id. at p. 162.)

Here, there was no evidence that defendant did not shoot at the victim or that he did not intend to kill. Using a semiautomatic weapon with a laser scope, he fired multiple shots, of which at least nine struck Didley, from a distance of only a few feet. Thompson testified that defendant took his time and aimed deliberately (although other witnesses testified that the shots were fired rapidly). The pathologist who conducted the autopsy testified that the pattern of bullet wounds was consistent with Didley's having been struck by several bullets while seated in the back of the car and then having been struck by additional bullets in the back when turning away and trying to get out of the car. Given this evidence, no reasonable jury could have concluded that defendant did not intentionally shoot at Didley or that he did not intend to kill Didley. Rather, in finding the firearm use enhancement true, the jury expressly found that defendant "personally and intentionally discharged a firearm . . . ."

Moreover, any error in failing to instruct on a lesser included offense is state error, subject to review under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman, supra, 19 Cal.4th at pp. 165, 176-177.) Under that standard, reversal of the conviction is required only if "an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Id. at p. 165.) As discussed above, given the overwhelming evidence of guilt of first degree murder as charged, any error in failing to instruct the jury on second degree murder was harmless beyond a reasonable doubt.