P. v. Withers 4/29/05 CA2/4

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State: California

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

Docket No: B172130

Case Date: 07/13/2005

Preview:Filed 4/29/05 P. v. Withers CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. CLARENCE WITHERS, Defendant and Appellant. B172130 (Los Angeles County Super. Ct. No. BA218706)

APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed in part, reversed in part. Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Susan Lee Frierson, Deputy Attorneys General, for Plaintiff and Respondent.

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Clarence Withers argues that instructional error compels the reversal of his conviction of voluntary manslaughter. In a supplemental brief, he contends that the imposition of the upper term violated his rights to jury trial and due process. Following established precedent, we find no instructional error because other instructions ensured adequate jury consideration of witness credibility. We reverse the sentence because the trial court failed to give reasons for the imposition of the upper term for the gun use enhancement under Penal Code section 12022.5, and may have based that decision on factual findings in violation of the principles announced in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531].

FACTUAL AND PROCEDURAL SUMMARY This case arose from a dispute between members of an extended family and the victim. The victim was Demonte Walker, who lived on West 47th Street in Los Angeles with his girlfriend of five years, Ena Payton. They had a child together. A fence with two gates enclosed the property and driveway. During part of his relationship with Payton, Walker also had been involved with a woman named Toshika Carter. Carter lived on South Grand Avenue, around the corner from Walker's house. She is appellant's niece. About two months before Walker's death, Payton found out about his relationship with Carter. Payton talked to Carter about this two times, and left Walker for a time, but later reconciled with him. At the time of his death, Walker had broken off his relationship with Carter. An incident occurred at Carter's house on the day of the killing. Various witnesses gave different accounts. Payton testified that she and Walker drove past Carter's house at a "pretty good speed." She denied any confrontation at that house, but said that a car followed them home. When they were opening the gate to get into the yard at their home, Carter's cousin, Tamekia Houston, called profanely for them to move their car. Houston parked in front of a neighbor's house, approached Payton, and 2

demanded to know what was going on between Payton and Carter. During this discussion, Houston's uncle, Thornton Withers, got out of the car and stood at the gate. Walker had gone into the house. He came back to the yard and told Houston and Withers to leave because he was not "messing" with Houston's cousin any more. Cedric Wilson, a member of appellant's family who was 14 at the time of the incident, rode his scooter to the scene. According to Payton, Houston told Walker not to make her send Wilson to get someone. At that point, Wilson left. Withers said, "`This n----- need his butt kicked'" in an angry tone of voice. Walker and Withers began to fight. Walker fell against the fence and the fight continued while he was on the ground. Payton looked up and saw appellant, Why-Tinnie Gilbert (the boyfriend of appellant's sister), and Wilson approaching from the direction of Carter's house. Payton and Houston tried to break up the fight, but appellant pulled Payton away, pulled out a gun, and started shooting at Walker, who was still on the ground. According to Payton, appellant was the only shooter. She saw appellant leaving the scene in a car with Houston. Walker died from gunshot wounds. A gun was found near his body. Carter testified that on the day of the killing, when Walker and Payton drove by her house, Walker tried to hit her mother, Jennifer Carter. Later, her brother, Cedric Wilson, returned to her house and told her mother that Walker was trying to shoot "everybody." Carter admitted that she never told the police that Walker was shooting at anyone the day of the killing. Wilson apparently left, then returned to the house again and said that there was shooting going on. According to Carter, her uncle, appellant, never left her house at the time of the shooting. But in a statement to police, Carter told them that appellant and Why-Tinnie Gilbert had gone to Walker's house. Cedric Wilson testified that he saw Walker speeding by the Carter residence on the day of the shooting and that Walker tried to hit Wilson's mother, Jennifer Carter. Wilson then rode his scooter by Walker's house, and saw Walker and Payton. Walker opened the trunk of his car and got a gun. Tamekia Houston and Thornton Withers were already at Walker's house when this happened. Wilson went back to the Carter house to 3

tell them Walker was going to shoot somebody. He went back to Walker's because his relatives, Houston and Withers, were there. According to Wilson, Walker started shooting at Houston and said he was going to kill somebody. Wilson turned and ran. Wilson also denied that appellant (his uncle) was present at the shooting. This testimony was impeached by Wilson's statements to police saying that he had never seen Walker with a gun during the incident and that appellant was at the scene. Thornton Withers testified that he saw appellant drive by his mother's house at a high rate of speed on the day of the shooting. He said that he and Houston went to Walker's house, and that Walker came out of the house with his hand in his pocket. A car with three men in it drove up. Thornton felt something was not right about the situation and started running toward Houston, who was talking with Payton. As he ran, he heard gunshots, but did not see anyone shooting. Why-Tinnie Gilbert testified that he only got half way to Walker's house and did not see what had happened there. He was impeached with a statement he made to the police saying that he had seen appellant and Thornton Withers arguing with Walker, and heard shooting. Appellant was charged with murder. Firearm use and a prior conviction were alleged. The defense theory at trial was self-defense. Appellant was found guilty of the lesser offense of voluntary manslaughter and admitted the prior conviction allegation. Appellant was sentenced to state prison for an aggregate term of 22 years. He filed a timely appeal.

DISCUSSION I Appellant argues his conviction must be reversed because CALJIC No. 2.11.5 on unjoined perpetrators should not be given where the unjoined perpetrator testifies at trial. He also points out that the prosecutor argued that he could be convicted of murder either as the shooter or as an aider and abettor. Based on the prosecutor's approach to Thornton's role in the case, appellant argues Thornton was an unjoined perpetrator who testified at trial. He argues that Gilbert and Wilson also could be considered unjoined 4

perpetrators based on the evidence. Appellant therefore argues CALJIC No. 2.11.5 should not have been given because it prevented the jury from considering whether these witnesses may have attempted to deflect blame from themselves onto appellant. He concludes that CALJIC No. 2.11.5 kept the jury from fully considering the credibility of these witnesses. Respondent argues there was no error, but if there was, it was harmless. As given, the 1996 version of CALJIC No. 2.11.5 informed the jury: "There has been evidence in this case indicating that a person other than the defendant was or may have been involved in the crime for which the defendant is here on trial. [

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