5x and Delmann Heights

People v. Brooks

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

March 24, 2005

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KELLY HASSAN BROOKS, 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.) Affirmed as modified. (Super.Ct.No. FSB032199)

Defendant was convicted by a jury of first degree murder and residential robbery. The jury found true firearm and gang allegations. Defendant received life without parole for the murder; 25 years to life, consecutive, for one of the firearm enhancements; 10 years, consecutive, for one of the gang enhancements; and four years, consecutive, for the robbery. Terms for the remaining firearm and gang enhancements were either imposed concurrently or stayed. On appeal, defendant challenges various aspects of his sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

On the evening of September 28, 2001, defendant and Rodney Ross were at Kristie Adams's apartment in San Bernardino. About 10:30, defendant and Ross left, accompanied by two others. Defendant said he was going to a nearby apartment complex to get some money "Bad Luck" owed him. Defendant had a handgun on him that night.

That same evening, Ras Edge was at his apartment with his fiancée, Karmella Gratts. About midnight, Edge left the apartment.

At some point, Gratts heard people fighting on the stairs outside the apartment. She looked outside and saw defendant, Ross, and two others at the bottom of the stairs fighting with Edge. Defendant and Ross were hitting Edge.

Edge tried to come upstairs. Someone pulled a handgun on him. Ross was saying, "Shoot him." The gunman squeezed the trigger, but the gun did not go off.

Edge went inside his apartment and shut the door. Someone said from outside the apartment, "We know you ain't got no guns in there." A shot was fired at the apartment.

Defendant and Ross went back to Adams's apartment. Defendant said he had gone to the apartment complex to get his money, and Ross had gotten into a fight with Ras. Defendant said, "I'm going to go back down there and kill that nigga," and left the apartment.

Five or 10 minutes after the fight, Gratts heard people running up the stairs and beating on the door of Edge's apartment. They kicked the door in. Edge and Gratts went into a closet in the bedroom. Defendant and Ross entered the room and snatched Edge from the closet.

Ross started hitting Edge with a handgun and said, "You got five seconds to give me the money or the dope." Defendant was pointing a shotgun at Edge. Edge gave Ross some drugs, but they were expecting more.

Defendant suggested he and Ross leave, but Ross said, "We're fixin' to do this nigga." Ross and Edge started fighting, and defendant shot Edge. Defendant and Ross ran out of the apartment.

Defendant came back to Adams's apartment. He was hysterical and wanted his brother, John Brooks, who was at the apartment. Defendant had blood on his clothes. He ripped them off and said, "I shot him, I shot him." John Brooks asked who defendant had shot. Defendant said, "Ras."

Edge died of a shotgun wound to the abdomen.Ross was arrested on December 19, 2001. Defendant was arrested on January 9, 2002.

B. Judgment

Defendant and Ross were tried together before different juries. Ross's jury found him guilty of attempted murder based on the fight before the shooting and found true firearm and gang enhancement allegations. Ross is not a party to this appeal.

As defendant's points on appeal concern aspects of his sentence, we set forth the convictions, true findings, and sentence: Count 1 -- First degree murder Life without parole (1) Special circumstances (Pen. Code, § 190.2) *fn1

(a) Killing during robbery (Id., subd. (a)(17))

(b) Killing during burglary (Ibid.)

(c) Killing was gang-related (Id., subd. (a)(22)) (2) Enhancements

(a) Personal use of firearm (§ 12022.53, subd. (b))10 years (stayed)

(b) Personal discharge of firearm (Id., subd. (c))20 years (stayed)

(c) Personal discharge of firearm, causing death

(Id., subd. (d)) 25 years to life

(d) Personal use of firearm (§ 12022.5, subd. (a)(1))4 years (stayed)

(e) Gang-related (§ 186.22, subd. (b)(1)) 10 years Count 3 -- First degree robbery 4 years

Enhancements

(a) Personal use of firearm (§ 12022.53, subd. (b))10 years (stayed)

(b) Personal discharge of firearm (Id., subd. (c))20 years (stayed)

(c) Personal discharge of firearm, causing death

(Id., subd. (d)) 25 years to life (concurrent)

(d) Personal use of firearm (§ 12022.5, subd. (a)(1))4 years (stayed)

(e) Gang-related (§ 186.22, subd. (b)(1)) 10 years (concurrent)

Total consecutive sentence: Life without parole plus 25 years to life, plus 10 years, plus 4 years.

II. DISCUSSION


In support of the gang allegations, the prosecution presented testimony of Officer Fyvie, a gang expert. Kristie Adams, who testified on behalf of co-defendant Ross, also provided testimony relevant to the gang allegations.

a. Fyvie

Fyvie testified defendant and Ross were admitted members of the Five Time Crips (Five Time). Five Time was identified as a criminal street gang by San Bernardino police in 1981 or 1982.

In 2003, when this case was tried, Five Time had 57 to 60 active members. The gang claimed as its territory a part of the City of San Bernardino. Gang members sold narcotics and committed other crimes in that territory, including robberies, carjackings, and homicide. Five Time fervently defended it's territory and any other gang that came into that territory would become a rival to Five Time.

Edge was a member of the Delmann Heights Bloods gang. However, his apartment was not located in the Delmann Heights area, but in the Five Time territory.

Drug trade is one of the primary reasons there are gangs. Gangs want to control turf so they can sell drugs in that area. The murder of Edge benefited Five Time due to the fact that a gang member from a different area came into Five Time territory and began to sell narcotics. The murder benefited Five Time by showing that Five Time would defend its turf and kill people if necessary to keep rival gang members from coming into its area and selling drugs or doing any other kind of criminal activity. In gang culture, it would be completely unacceptable and disrespectful to have a rival gang member or any member of another gang come into a gang's territory and sell narcotics.

b. Adams

As noted, ante, Adams testified defendant and Ross were at her apartment before and after the fight with Edge and before and after the shooting. According to Adams, the fight was "over a fade." She explained that "somebody was trying to buy something from Ras or something, and I guess Kelly was trying to sell it to them before Ras did." When asked what a fade was, Adams testified: "That could be a whole like [sic] of things. It could be weed. It could be drugs. I mean, it's just a word that is used, so I'm not -- "

Adams also testified:

"Q. . . . After the killing, the murder in First Meridian Apartments, there was quite a bit of retaliation and shooting going on at that time; is that correct?

"A. Yes. [¶] . . . [¶]

"Q. . . . Did you see the other gang around there, and did you see a lot of commotion and fighting and shooting going on?

"A. Yes.

"Q. And that was what? [B]etween Five Time and who?

"A. Delmann Heights."

3. Analysis

Defendant points out that while Fyvie testified the crimes in this case benefited Five Time, he also said this would be true regardless of the perpetrators' specific intent. "Even if they receive personal gain for like narcotic sales or personal status gain from committing any type of crime, that benefits the whole gang, because it instills fear into that community of that gang." Thus, defendant concludes, the evidence was insufficient because it did not show defendant or Ross acted with the specific intent to promote, further, or assist in any criminal conduct by a gang member, a necessary element of the gang finding. According to defendant, in order to support a finding that a crime is committed for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22(b)(1), the record must contain substantial evidence that the crime was motivated by a gang dispute or rivalry, rather than a personal dispute.

Defendant is incorrect. This court's decision in People v. Morales (2003) 112 Cal.App.4th 1176 is on point. In that case, the defendant Morales and two fellow gang members, Flores and Moreno, robbed two victims while visiting a house where the victims were also visiting. There was no evidence that the victims were associated with any rival gang, or any gang at all.

The prosecution's expert testified the robberies were committed for the benefit of, at the direction of, or in association with the gang. The gang provided a ready-made manpower pool, and one member could count on the loyalty of the others to "watch his back." Also, "the very presence of multiple gang members would be intimidating" and would benefit the gang "with notoriety among rival gang members and the general public." (People v. Morales, supra, 112 Cal.App.4th 1176, 1197.)

This court concluded "that defendant's intentional acts, when combined with his knowledge that those acts would assist crimes by fellow gang members, afforded sufficient evidence of the requisite specific intent." (People v. Morales, supra, 112 Cal.App.4th 1176, 1198-1199.) "[S]pecific intent to benefit the gang is not required. What is required is the `specific intent to promote, further, or assist in any criminal conduct by gang members . . . .' Here, there was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were members of his gang. Moreover, . . . there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members." (Id. at p. 1198.)

This case presented an even stronger basis for the gang findings than Morales. Here, defendant not only acted in concert with a fellow gang member in committing the charged offenses, but the victim was a rival gang member in Five Time's territory who was attempting to compete with Five Time's drug selling. In addition, the fighting and shooting between Five Time and Delmann Heights that followed defendant's murder of Edge demonstrated that the murder was perceived by both gangs as gang related. If the requisite specific intent for the gang finding was fairly inferable in Morales, it was even more so in this case.

At oral argument, defendant cited Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 in support of his challenge to the sufficiency of the evidence on the gang allegations. In Garcia the court held there was not sufficient evidence to support an inference that a gang member's robbery of a liquor store customer was committed with the specific intent to promote, further, or assist in criminal conduct by gang members within the meaning of section 186.22(b)(1). (Garcia, at pp. 1104-1105.)

In Garcia, however, the only evidence connecting the gang to the robbery was the defendant's membership in the gang and his commission of the crime within the gang's "turf." Although the prosecution's gang expert testified the gang was "turf oriented," there was no evidence the victim was a rival gang member and "no testimony that protection of turf enables any other kind of criminal activity of the gang." (Garcia v. Carey, supra, 395 F.3d at p. 1103.)

Here, in contrast, Fyvie specifically testified that the murder benefited Five Time because Edge was a gang member from a different area trying to sell drugs in Five Time territory. The murder showed Five Time was prepared to kill rival gang members who tried to sell drugs or engage in other criminal activity in Five Time's turf. Thus, killing people like Edge helped Five Time preserve its ability to keep selling drugs and committing other crimes in its territory without interference from rival gangs. The element the court in Garcia found lacking -- a connection between the particular crime committed and the furtherance of criminal activity by the gang in general -- was not lacking here.

Defendant also contended at oral argument that even if under Morales the evidence was sufficient to support a true finding on the gang allegation under section 186.22(b)(1), it was not sufficient to support a true finding under section 190.2, subdivision (a)(22). Defendant pointed out that where section 186.22(b)(1) requires "specific intent to promote, further, or assist in any criminal conduct by gang members," section 190.2, subdivision (a)(22) requires a murder that "was carried out to further the activities of the criminal street gang." Defendant argued this latter requirement is more rigorous, because it requires specific intent to "further the activities" of the gang; an intent to "assist in any criminal conduct by gang members," which this court in Morales found was sufficient to satisfy section 186.22(b)(1), does not satisfy section 190.2, subdivision (a)(22).

We see no difference between the statutory requirements that would affect the outcome of this case. In this case, one gang member, Ross, tried to murder a rival gang member. Shortly thereafter, another member of the first gang, defendant, accompanied by the attempted murderer, completed the task. Based on Fyvie's explanation of how the killing would help to preserve Five Time's control of its crime territory, the jury reasonably could infer that defendant's intent in killing Edge was, at least in part, to further the activities of Five Time. We therefore conclude the evidence was sufficient to support the gang findings.