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The People v. Lester Charles Russell

December 1, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LESTER CHARLES RUSSELL, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F4525)

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

P. v. Russell

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After exchanging gang insults, defendant Lester Charles Russell repeatedly shot Jashon Warren. Following a trial where the issue was identity of the shooter, a jury found Russell guilty of attempted murder and assault with a firearm, both committed for the benefit of a criminal street gang.

Defendant appeals, contending: (1) there was insufficient evidence he was the shooter; (2) there was insufficient evidence he acted for the benefit of a gang; (3) his trial counsel was ineffective; and (4) the trial court erred in not instructing on attempted manslaughter. Finding no merit in these contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the afternoon of July 21, 2008, Warren was dressed in red, walking back to his apartment complex. A blue car pulled up to him. The driver said, "[W]hat's up, Slob?" Slob is a derogatory term for Bloods, the gang to which Warren belonged. Warren responded, "[F]uck you, Crab." Crab is a derogatory term for Crips, the gang to which defendant belonged. The neighborhood was Blood turf and that gang's color is red. The Crips color is blue.

For "protection," Warren threw a rock at the driver. The driver shot Warren in the stomach. Warren "took off running." The driver got out of the car and shot Warren nine more times. One of those shots hit Warren in the kneecap, causing him to fall down. Warren "played dead," and the driver said, "[T]hat's what you get, you Slob," and drove off.

Police responded to the shooting and interviewed a witness, Suzan Broda. Broda heard a series of gunshots and saw a man standing near a car with a gun as another man collapsed on her front lawn. At trial, Broda described the shooter as an African-American man between 21 and 25 years old who was a little bit taller than six feet, "relatively thin," with dreadlocks. She believed defendant resembled the shooter, but she "c[ould] not positively ID him."*fn1

When police interviewed Warren at the hospital, Warren said the shooter was a black man named Tre*fn2 who was approximately 18 years old, six feet one inch tall and weighed 225 pounds. In a later interview, Warren told police he knew who had shot him but did not want to be labeled a "snitch." Tre was a former school friend of Warren's, but the two now belonged to rival gangs. Police showed Warren a photographic lineup, and without hesitation, Warren identified defendant as the shooter. At trial, Warren initially claimed he did not know defendant and did not know anybody named Tre. Later, he admitted Tre matched defendant's description and that Tre was the one who shot him. Warren feared that if he implicated defendant at trial, he might be labeled a "snitch" and that would jeopardize his family's safety.

At trial, the People called Police Detective Nick Goncalves as their gang expert. Goncalves testified the shooting was gang related and that it benefited the Crips.

Defendant did not present any witnesses at trial. His counsel argued in closing defendant was not the shooter.

DISCUSSION

I

There Was Sufficient Evidence Defendant Was The Shooter

Defendant contends there was insufficient evidence he was the shooter because the eyewitness testimony implicating him was "unreliable" and "flimsy at best."

The problem with defendant's argument is it casts the evidence in the light most favorable to him and ignores critical evidence, which is not the proper way to show insufficient evidence on appeal. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) "[T]he defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jury's verdict. [Citation.] If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jury's verdict may lie in the evidence he ignores." (Ibid.)

Defendant has fallen into this trap. Defendant selectively notes that in court Broda could neither identify defendant as the shooter nor pick him out of a lineup, and Warren could not "conclusively and with certainty identif[y]" defendant as the shooter. In making this argument, defendant ignores that Warren told the police detective Tre had shot him and picked defendant out of a photographic lineup without hesitation when the detective asked him to identify the shooter. Defendant ignores that Warren feared that if he implicated defendant at trial, he might be labeled a "snitch," ...


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