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The People v. Justin Mathew Wittkop

September 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JUSTIN MATHEW WITTKOP, DEFENDANT AND APPELLANT.



(Super. Ct. No. 62-085352B)

The opinion of the court was delivered by: Nicholson , J.

P. v. Witkop

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a jury trial, defendant Justin Mathew Wittkop was convicted of several crimes, all arising from a single, after school event, including attempted first degree murder (Pen. Code, §§ 664/187),*fn1 two counts of assault with a firearm (§ 245, subd. (a)(2)), single counts of malicious discharge of a firearm from a vehicle (§ 12034, subd. (c)) and shooting at an inhabited dwelling (§ 246), with enhancements for personally inflicting great bodily injury (§ 12022.7, subd. (a)), inflicting great bodily injury as a result of discharging a firearm from a vehicle (§ 12022.55), personal use of firearms (§ 12022.5, subd. (a)), and personal discharge of a handgun (§ 12022.53, subds. (b)-(d)). The trial court sentenced defendant to 32 years to life in state prison.*fn2

On appeal, defendant contends there was insufficient evidence of premeditation and deliberation to support his attempted first degree murder conviction, and insufficient evidence to support his conviction for shooting at an inhabited dwelling because he was not shooting at anything but live victims on the street. As to the latter contention, he urges us to disagree with a line of cases stretching back 40 years. Finally, defendant claims he was entitled to an instruction on Roseville Municipal Code section 10.80.010 as a lesser included offense of shooting at an inhabited building. We affirm.

FACTS

The People's Case

On November 5, 2008, after school, Granite Bay High School students Abdulhamid Kanneh, Kasra Jebelli, and their friends Demonie and Diamond walked to McDonald's. The McDonald's is located in a shopping center at the corner of Sierra College Boulevard and Douglas Boulevard.

The boys stopped to talk to a group of friends in the parking lot between the McDonald's and a Starbucks. Seventeen-year-old Kelsey Brace drove up and honked her horn to get the group to move. Brace swore at the boys and told them to get out of the way; Demonie told her to calm down. They moved and Brace parked her car.

The boys walked to McDonald's, but were confronted by Brace, who demanded to know why Demonie did not get out of her way. According to Jebelli, Brace was swearing and wanted to beat them up; he told her to calm down and go home. Kanneh pointed out Brace had a black eye, and told her she had come from a fight.

Brace then dared them to say something else. Kanneh asked what she would do if he said something else, and Brace punched him in the face. Kanneh then put Brace in a headlock. After Jebelli and Demonie pulled them apart, Brace said she was going to get her boyfriend. Brace got into her car and drove off, while the boys went in the McDonald's.

Frank Pelfrey was getting off work at a nearby Taco Bell when he got a call from Brace at 3:42 p.m. Pelfrey knew defendant, who was Brace's boyfriend. Brace told Pelfrey she had been choked by two Black guys at the McDonald's. Pelfrey was on his way to the shopping center at the time; when he got there, Pelfrey located Brace, pulled up to the McDonald's, and entered. Brace then directed him to Kanneh and his friends.

Pelfrey confronted the boys, and asked why they hit a girl. Brace was behind Pelfrey, crying and saying, "[T]hey hurt me really bad." Brace identified Kanneh as the person who choked her. As the argument continued, the restaurant manager told them to take it outside. Pelfrey and Brace then left.

Kanneh and his friends eventually left the McDonald's for Demonie's house off Sierra College Boulevard. Kanneh and Jebelli walked side by side, about 10 to 15 feet behind Demonie and Diamond. Kanneh was on the street side of the sidewalk.

Jebelli noticed a car stop and heard a female yell out, "Hey bitch." He turned around and saw a man driving the car and Brace in the front passenger seat. The man reached in front of Brace, holding what appeared to be a gun. He started shooting, and Kanneh fell to the ground while Jebelli hid behind a tree. The car then sped off.

Kanneh saw a silver car. Brace was in the front seat; a Hispanic male drove while holding a silver revolver in his right hand. He heard three shots, but did not feel any pain. Kanneh knew he was shot because he saw blood on his clothes. He sustained gunshot wounds to the back and the left thigh.

Chris Wildrick lived in an apartment at 8800 Sierra College Boulevard. On November 5, 2008, at around 4:15 p.m., he heard what sounded like a brick hitting the side of his apartment. He went outside and saw a group of four teenagers nearby. Police found bullet holes in the composite wood siding of Wildrick's first floor apartment. There were additional bullet holes in the closet containing the water heater, where a bullet had gone through the sheetrock.

Kimberly Trotter happened upon this incident while driving on Sierra College Boulevard. She saw the car in front of her, a grey Cadillac, began to slow down. Defendant was driving the Cadillac and a woman was in the front passenger seat. There were two groups of teenagers on the street nearby, a group of six to eight, followed by a group of two Black male teenagers. As the Cadillac got near the group of two teenagers, it came to a "slow halt," the female's arm came out of the passenger window, and she pointed her hand at the two teens. The female leaned back in her seat, and the driver turned and leaned to the side toward the passenger. Trotter then heard three gunshots and saw one of the teens fall to the ground. The shots were fired about three seconds after the passenger pointed out the teens.

The Cadillac sped down Sierra College Boulevard and turned left onto Eureka Road. Trotter followed the car and reported the incident to 911 at 4:18 p.m. She followed the Cadillac until she spotted a motorcycle ...


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