P. v. Macklin 6/25/07 CA2/7

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B190650

Case Date: 08/29/2007

Preview:Filed 6/25/07 P. v. Macklin and Sawyer CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. RICHARD VERNAL MACKLIN and BRIAN ALLEN SAWYER, Defendants and Appellants.

B190650 (Los Angeles County Super. Ct. No. KA071834)

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed in part, reversed in part and remanded with directions. Christopher Darden for Defendant and Appellant Richard Vernal Macklin. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant Brian Allen Sawyer. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

In this case two gang members lured a friend out of his house and tried to shoot him to death for allegedly being a "snitch." When the shooting began the friend's uncle ran to his aid and dragged him back inside the house as the gang members continued shooting. The gang members were charged with attempted murder, assault with a semiautomatic firearm, shooting at an inhabited dwelling and related criminal street gang and gun use allegations/enhancements. With certain exceptions, the jury convicted them of the charges and found true the gang and gun use allegations. The gang members appeal, alleging the trial court committed numerous instructional and sentencing errors. They also claim the evidence is insufficient to support their convictions for shooting at an inhabited dwelling. We find no prejudicial error warranting reversal and accordingly affirm the judgments of conviction. On the other hand, we find the trial court erred in imposing an upper term sentence based on facts not found by the jury beyond a reasonable doubt in violation of Cunningham v. California. Accordingly, we vacate the sentence imposed on one of the convictions and remand for resentencing.
1

FACTS AND PROCEEDINGS BELOW

Corey Scrivens lived with his parents in a single family residence at 2369 Academy in Pomona. Other persons living in this house included his brother Michael, his sister Michelle, his uncle Ricky Powell, and other friends and relatives. Scrivens was 23 years old at the time of the trial. He testified he had known appellants, Richard Vernal Macklin and Brian Allen Sawyer, nearly all his life. Sawyer lived a block and a half away from Corey Scrivens' house with his mother and other family members in a house on Belinda. Macklin lived somewhat farther away but was regularly in the neighborhood.

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Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856. 2

The Threats: Macklin and Sawyer were members of the Trey 57 gang. Scrivens was not. However, Scrivens' sister Michelle was then dating a Trey 57 gang member. On August 2, 2005 Scrivens came home to find 20 or more Trey 57 gang members in his backyard. They were "drinking and lifting weights and getting high." Scrivens joined the gang members in the backyard. Their leader appeared to be a gang member called "Bump." Macklin and Sawyer were also in the backyard standing near Bump. This was unusual because Macklin and Sawyer were younger and more junior than the other members. Bump told Scrivens he and his brother needed "to put in some work." Scrivens took this to mean Bump wanted them to kill someone. As he spoke, Bump paced back and forth and gestured at them. Bump made it clear to Scrivens there would be consequences, namely discipline, if they did not "put in some work." Scrivens refused. Scrivens told Bump his mother was getting very upset and wanted everyone to leave the yard. Eventually everyone left the Scrivens' backyard without incident. Later that evening around eight cars drove up to the Scrivens' home. Nearly 30 Trey 57 members got out of the cars and surrounded Scrivens' house. Sawyer and Macklin were among them. Scrivens was at the time sitting on the porch with his uncle Ricky Powell. Scrivens and Powell asked them, "Hey, what's up?" A member nicknamed Set Trip said, "Catch this fade," which meant he was challenging Scrivens to a fight. Scrivens' larger brother, Michael, came outside and announced if there was going to be a fist fight it would be with him. Scrivens' father then intervened, stating there would be no fighting at all. Bump reportedly told Scrivens "a homey done just died, and you guys didn't cooperate with us, you guys didn't come when we told you to come, something got to give." Bump told Scrivens' father to go back inside the house because the matter did not concern him. Scrivens' sister Michelle came outside and told Bump not to talk to her father that way. Bump replied Scrivens was not abiding by the rules and, if he did not do as he said, there was going to be a "blood bath." Several gang members made it clear 3

they were carrying guns. They tapped on their guns through their clothing, making a recognizably distinctive sound. Scrivens' father got a gun and handed it to Powell, but then took it back as he went to get a second gun from a briefcase in his van which was parked in the driveway. One of the gang members shouted out "Don't shoot his dad." Michelle yelled at Bump and told him she would call the police if they did not leave. A few minutes later the gang members got back into their cars and drove away. They fired several shots into the air as they drove away. Michelle Scrivens called the police to inform them of the incident.

Scrivens' Probation Search and Detention: The next day, on August 3, 2005 police conducted a probation search of Scrivens' home. Officers discovered what appeared to be narcotics in the garage. Scrivens was detained and taken to the police station. Police questioned him about the events the day before with the Trey 57 gang members at his home. Scrivens identified by name or moniker as many of the gang members he could recall seeing in his backyard and surrounding his house later in the evening. Scrivens gave the officers Sawyer's name as one of the members present at his house. Scrivens apparently did not mention Macklin by name, although he did say there were other younger members, or "rug rats," among those present. Police released Scrivens a few hours later.

The Shooting: A few days later on August 6, 2005 Scrivens had just finished eating dinner and was watching television when he heard two male voices asking if he was home. Angel, another resident in the Scrivens' household, told Scrivens there were people outside to see him. Scrivens went to the door and saw Macklin and Sawyer. They were both dressed in dark clothing and both wore hooded sweatshirts with the hoods pulled over their heads. He thought it odd they had come by themselves because they were usually in the company of older gang members. He also thought it unusual they would be coming to see him because they were not in the same age group. Scrivens was then 23 years old 4

and Macklin and Sawyer were only 15. However, they had known each other a long time and Scrivens considered them part of his extended family. Scrivens thought he should find out what they wanted. Scrivens' uncle, Ricky Powell, was across the street doing landscaping work on the neighbor's house. The neighbor's yard was illuminated by an exterior floodlight. Sometime after midnight Powell took his shovel and went home. Macklin and Sawyer were in front of the house talking to Scrivens. Powell exchanged greetings with Macklin and Sawyer and then went into the house and fixed himself something to eat. Sawyer told Scrivens "somebody over here snitching." Macklin grunted in agreement. Scrivens knew it was a bad thing to be called a "snitch" because "snitches" usually get beat up or shot. Macklin pulled a gun out, stuck it in Scrivens' stomach and asked him if he wanted to buy it. Scrivens declined. Macklin removed the clip and pulled back the slide on the gun and chambered a bullet. Scrivens became uncomfortable. He pushed Macklin's hand away and went back inside the house. Around 20 minutes later Scrivens heard Macklin and Sawyer calling him through the iron mesh of the security door. Scrivens asked Brandon, another resident of the house, to accompany him. Brandon walked with Scrivens to the door but immediately returned to the kitchen. Through the security door Scrivens saw Macklin and Sawyer begin to walk away. As he stepped outside Scrivens heard a gun click. Macklin turned around and began firing at Scrivens. Sawyer stood a few paces to the side and behind Macklin. Scrivens just stood in front of his house and took the shots. He did not want to run back into the house, afraid his family members would also get shot. With the first shot Powell ran to the front door and saw Macklin firing his weapon at Scrivens. Powell saw Scrivens' body jerking and moving backward with each shot. Powell ran to Scrivens and dragged him into the house. As he did so Powell heard several bullets whizzing past his ears. One of the bullets grazed his hip. Powell believed Macklin had fired at least eight shots.

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Inside the house Scrivens fell to the floor. There was blood everywhere. Scrivens told Powell to close and lock the door. As he did so Powell saw Macklin and Sawyer run in the direction of Sawyer's house, a block and a half away. Scrivens had been shot approximately eight times and sustained 17 bullet wounds in all, many likely through and through wounds. Family members called the police and the paramedics. One of the first officers on the scene was very familiar with the neighborhood, the Trey 57 gang, and the Scrivens family. He asked Scrivens who had shot him. Scrivens replied it was Macklin and Sawyer and Macklin was the actual shooter. Scrivens told the officer they were both dressed in black hooded sweatshirts. The officer relayed this information to other officers in the field. Police officers removed numerous bullets, shell casings and bullet fragments from the shooting scene. Some of the bullet fragments recovered had mushroomed out as they hit a hard surface. There was a bullet hole in the door jamb of the front door of the house. Earlier in the evening Sawyer's mother had been standing outside with a friend when they heard the sound of gunshots nearby. A few minutes later Macklin and Sawyer appeared. Sawyer asked his mother to drive Macklin home. She agreed. She got into the driver's seat of her van and Macklin and Sawyer sat on the bench seat behind her. Moments later officers pulled the van over and ordered everyone to get out and to sit on the curb. During a pat down search the officer noticed Macklin was sweating profusely, his heart was racing and he seemed very nervous. Sawyer also had a rapid heartbeat but he was sweating somewhat less than Macklin. Officers took photographs of Macklin and Sawyer which were later shown to Scrivens. Scrivens confirmed their identity as his assailants before he was airlifted to the hospital. In a search of the van officers recovered a nine millimeter semiautomatic handgun under the bench seat, wrapped in a black sweatshirt. The gun was unloaded and the gun's magazine was empty. Later ballistic tests confirmed it had been the gun used in the shooting.

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Scrivens remained in the hospital for nearly a month. He returned several times thereafter for therapy and other treatment. Counsel stipulated Trey 57 satisfied the statutory elements for being a criminal street gang. Pomona Police Detective Michael Lange testified as an expert on criminal street gangs. Lange testified he was familiar with the Trey 57 gang, which was a subset of the Crips gang. He said the Trey 57 gang claimed a territory which included Scrivens' and Sawyer's residences. From prior contacts Detective Lange knew Macklin and Sawyer were members of the Trey 57 gang. Sawyer's moniker is "Busy B" and Macklin's moniker is "Little Rich Mack." Detective Lange explained when someone is labeled a "snitch" that person's life is in immediate jeopardy. A gang fears a "snitch" because the snitch may provide information concerning the gang's criminal activity. This information, in turn, could cause the arrest and imprisonment of gang members, and as a result, the possible demise of the gang itself. Detective Lange explained when a gang member tells someone to "put in work," it means to do something to benefit the gang. The expert opined a likely consequence for refusing to "put in work" when ordered to do so was physical violence, including death. Detective Lange was of the opinion the Trey 57 gang members labeled Scrivens a "snitch" because he was arrested but then released only a few hours later. In Detective Lange's opinion shooting Scrivens was an act which benefited the gang. In his words, "it shows if you go against the gang and you're perceived as a snitch or a threat to the criminal element of a gang, you'll be dealt with and you will be retaliated against. And that's exactly what happened." Detective Lange testified Macklin and Sawyer were at the lower end of the Trey 57 hierarchy and were thus expected to "put in work" to achieve status within the gang. Macklin and Sawyer presented no affirmative defense.

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An information charged both Macklin and Sawyer with two counts of attempted, willful, deliberate and premeditated murder; two counts of assault with a semiautomatic firearm; and of one count of shooting at an inhabited dwelling. The information alleged related gun use, criminal street gang, and infliction of great bodily injury allegations and enhancements. The jury acquitted Sawyer of count 2 (the attempted murder of Powell charge) and deadlocked on count 1 (the attempted murder of Scrivens charge). The jury found Sawyer guilty of the three remaining charges of two counts of assault with a semiautomatic firearm and of one count of shooting at an inhabited dwelling. The jury found true the related gang and gun allegations and enhancements on these counts. The jury also acquitted Macklin of Powell's attempted murder and could not reach a unanimous decision regarding the gang allegation on the charge of assault with a semiautomatic firearm on Powell. The jury convicted Macklin of the remaining charges and found true the related gang and gun enhancements/allegations. The trial court declared a mistrial on the deadlocked count and allegation which were ultimately dismissed. Macklin and Sawyer appeal from the ensuing judgments of conviction.
5 6 7 3 4 2

Penal Code sections 664/187, subdivision (a) (count 1, Corey Scrivens, count 2, Ricky Powell). All further statutory references are to the Penal Code unless otherwise noted. 3 Section 245, subdivision (b) (count 3, Corey Scrivens, count 4, Ricky Powell). 4 Section 246 (count 5). 5 Sections 12022.53, subdivisions (b) (c) and (d), section 12022.5, subdivision (a)(1). 6 Section 186.22, subdivisions (b)(1)(A), (b)(1)(C), (b)(4). 7 Section 12022.7, subdivision (a). 8

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DISCUSSION

I.

SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTIONS FOR SHOOTING AT AN INHABITED DWELLING.

Sawyer and Macklin contend the evidence is insufficient to sustain their convictions for shooting at an inhabited dwelling. They argue there was no evidence Macklin shot at the house and no evidence he intended to hit the house. They assert the evidence instead shows Macklin intended to only shoot Scrivens. They claim the jury's finding Macklin deliberately and willfully attempted to murder Scrivens establishes the absence of any evidence of intent to shoot at the house. Accordingly, they contend their convictions of section 246 must be reversed. "In assessing the sufficiency of the evidence to sustain a conviction, this court must view the entire record, including all reasonably deducible inferences, in the light most favorable to the judgment. The conviction will be upheld if it is supported by substantial evidence, i.e., evidence which is solid, credible and of reasonable value. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Johnson (1980) 26 Cal.3d 557, 578.) It is only when the evidence, so viewed, would not permit any reasonable trier of fact to have found the defendant guilty beyond a reasonable doubt that the judgment will be reversed. (See People v. Bloom (1989) 48 Cal.3d 1194, 1208.)"
8

Section 246 provides in pertinent part: "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, . . . , is guilty of a felony, . . ." Section 246 is a general intent crime. Thus, a conviction of section 246 does not require a specific intent to do a further act or to achieve a further consequence or result.
10 9

People v. Andersen (1994) 26 Cal.App.4th 1241, 1250-1251; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260. 9 People v. Watie (2002) 100 Cal.App.4th 866, 879. 10 People v. Overman (2005) 126 Cal.App.4th 1344, 1357. 9

8

Indeed, the statute does not even require the defendant to shoot directly at the inhabited dwelling, or intend to hit it. As explained by the Court of Appeal in People v. Overman, "the act of shooting `at' a proscribed target is also committed when the defendant shoots in such close proximity to the target that he shows a conscious indifference to the probable consequence that one or more bullets will strike the target or persons in or around it. The defendant's conscious indifference to the probability that a shooting will achieve a particular result is inferred from the nature and circumstances of his act."
12 11

In People v. Chavira, as in the present case, the defendant argued the evidence was insufficient to support his conviction of section 246. The defendant claimed he did not shoot "at" the inhabited dwelling, but at the persons standing in front of it, and any shots hitting the building was purely accidental. The Court of Appeal disagreed with the defendant's contention a conviction of section 246 required an intent to hit the building. "Defendant and his associates, engaged in a fusillade of shots directed primarily at persons standing close to a dwelling. The jury was entitled to conclude that they were aware of the probability that some shots would hit the building and that they were consciously indifferent to that result. That is a sufficient `intent' to satisfy the statutory requirement."
13

The evidence in this case established Macklin fired his semiautomatic firearm directly at Scrivens as Scrivens stood only a few feet away from his front door. Scrivens was hit approximately eight times. The shooting left a bullet hole in the inner door jamb of the front door. The shooting was in such close proximity to the inhabited residence there was a very real risk the house, or persons inside the house, might be hit. On these facts the jury was entitled to conclude Macklin and Sawyer were aware of the probability one or more People v. Overman, supra, 126 Cal.App.4th 1344, 1367-1357, footnote omitted. People v. Chavira (1970) 3 Cal.App.3d 988, 992. 13 People v. Chavira, supra, 3 Cal.App.3d 988, 993; see also, People v. Cruz (1995) 38 Cal.App.4th 427, 433 [the term "at" in the statute does not require an intent to hit the building].
12 11

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of the shots could hit the dwelling, or persons inside it, and were consciously indifferent to this result. The jury was capable of making this inference from the evidence even without the assistance of an instruction on "conscious disregard." If, as they now claim, such an instruction was necessary to an understanding of the evidence it was incumbent on Sawyer and Macklin to request it.
14

Contrary to Sawyer and Macklin's argument, it was not necessary for the prosecution to conclusively establish the bullet hole in the door jamb was from this shooting rather than from a drive-by shooting six months earlier. This is because it is not necessary for a conviction of section 246 to actually hit the dwelling. In any event, we are confident defense counsel would have brought it to the jury's attention if the bullet hole in the door jamb appeared to be anything less than a fresh bullet hole. In sum, the record contains substantial evidence Macklin shot at an inhabited dwelling to support the convictions of section 246 as consistently interpreted and applied by the courts of this state. Accordingly, the convictions in count 5 need not be
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See People v. Talamantes (1992) 11 Cal.App.4th 968, 974-975 [no error could be predicated on the trial court's failure to give clarifying or amplifying instructions on its own]. 15 People v. Overman, supra, 126 Cal.App.4th 1344, 1361 [there was no evidence of bullet holes or impacts anywhere on the buildings; a conviction of section 246 could nevertheless be proper because all that is required is "shooting at or in the general vicinity or range of the target. . . ."]. 16 People v. Overman, supra, 126 Cal.App.4th 1344; People v. Watie, supra, 100 Cal.App.4th 866, 879; People v. Cruz, supra, 38 Cal.App.4th 427, 433; People v. Chavira, supra, 3 Cal.App.3d 988, 993. Our decision in In re Daniel R. (1993) 20 Cal.App.4th 239 is not to the contrary. There we held the crime of assault with a deadly weapon is not a lesser and necessarily included offense of discharging a firearm at an occupied vehicle. In In re Daniel R. we explained assault with a deadly weapon was not a lesser included offense because it was not necessary for a human being to be the target of the shooting, or for the defendant's act to demonstrate a conscious disregard for the life and safety of others. (Id. at p. 246.) To sustain a conviction under section 246, under the particular pleading in that case, we noted it was "enough if the probable result of the defendant's willful act is some shots may make contact with any part of the car." (Ibid., italics added.) The decision in In re Daniel R. is of no assistance to Sawyer and Macklin. 11

reversed.

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II.

POTENTIAL ERROR IN INSTRUCTING THE JURY ON AN AIDER AND ABETTOR'S LIABILITY FOR THE NATURAL AND PROBABLE CONSEQUENCES OF THE CRIME OR CRIMES AIDED AND ABETTED WAS HARMLESS.

An accomplice is a person who acts with knowledge of the perpetrator's criminal purpose and with the intent or purpose either of committing, or of encouraging or of facilitating commission of the offense. An accomplice is liable not only for the crime encouraged or facilitated, "but for any other offense that was a `natural and probable consequence' of the crime aided and abetted." The "natural and probable consequences" doctrine "is based on the recognition that `aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.' [Citation.]"
20 19 18

In this case the prosecution's theory was Sawyer was liable as an aider and abettor. The trial court provided the full complement of instructions on aider and abettor liability. The court also instructed the jury with CALJIC No. 3.02 regarding an aider and abettor's liability for natural and probable consequences. This instruction directed the jury to decide whether attempted murder, assault with a semiautomatic firearm and shooting at an inhabited dwelling were natural and probable consequences of the target

In a single sentence assertion, Macklin claims there is insufficient evidence great bodily injury was caused during the commission of the offense of shooting at an inhabited dwelling to support the jury's true finding under section 12022.53, subdivision (d). His assertion, however, is unsupported by either argument or authority. Accordingly, this court need not consider the issue. (People v. Williams (1997) 16 Cal.4th 153, 206, quoting People v. Ashmus (1991) 54 Cal.3d 932, 985, fn. 15 ["Points `perfunctorily asserted without argument in support' are not properly raised."].) 18 People v. Beeman (1984) 35 Cal.3d 547, 560. 19 People v. Prettyman (1996) 14 Cal.4th 248, 260. 20 People v. Prettyman, supra, 14 Cal.4th 248, 260. 12

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crimes of attempted murder, assault with a semiautomatic firearm and shooting at an inhabited dwelling. However, according to the reporter's transcript, when the trial court orally instructed the jury it instead told them: "One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime, or those crimes, but is also guilty of any other crime committed by a principal which is not a natural and probable consequence of the crimes originally aided and abetted."
21

Sawyer contends if the jury followed this instruction as read, they could have found him guilty without determining he aided and abetted any target offense and without finding any charged offense was the natural and probable consequence of any target offense. Sawyer cites the familiar principle it is presumed jurors follow the instructions of the trial court. He thus argues this court has no choice but to reverse his convictions, claiming it is impossible to know whether they jury convicted him based on a correct or legally incorrect theory. In reviewing an ambiguous instruction an appellate court inquires "`"whether there is a reasonable likelihood the jury has applied the challenged instruction in a way" that violates the Constitution.' (Estelle v. McGuire (1991) 502 U.S. 62, 72, quoting Boyde v. California (1990) 494 U.S. 370, 380 . . . .)"
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In this case there is no reasonable likelihood the jury relied solely on the trial court's oral pronouncement of the instruction to convict Sawyer as an aider and abettor of offenses which were not the natural and probable consequences of the target crimes. Although CALJIC No. 3.02 as delivered orally by the court made the instruction ambiguous, the instructions when read as a whole were neither misleading nor erroneous. The balance of the challenged instruction correctly informed the jury--not once, but twice--they could only convict Sawyer of the crimes if they found the crimes were

21 22 23

Italics added. Citing People v. Ramirez (1997) 55 Cal.App.4th 47, 59. People v. Prettyman, supra, 14 Cal.4th 248, 272. 13

natural and probable consequences of the target crimes.

24

These other portions of the

same instruction had the effect of neutralizing the error by immediately supplying the correct standard to be applied. As our Supreme Court has recognized, "`The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.'"
25

In these circumstances it is possible members of the jury may have thought they simply misheard when the court orally delivered the instructions from the bench. This
26

CALJIC No. 3.02 appears as follows in the reporter's transcript: "One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime, or those crimes, but is also guilty of any other crime committed by a principal which is not a natural and probable consequence of the crimes originally aided and abetted. "In order to find the defendant guilty of the crimes of attempted murder, assault with a semiautomatic pistol, and shooting into a house as charged in Counts 1 through 5, you must be satisfied beyond a reasonable doubt that[:] [

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