(Super. Ct. No. SCD184845) APPEAL from judgments of the Superior Court of San Diego County, Frank A. Brown, Judge.
The opinion of the court was delivered by: Nares, Acting P. J.
CERTIFIED FOR PUBLICATION
Reversed in part, affirmed in part, and remanded with directions.
In this gang-related murder case, an amended information charged Edward Eugene Thomas and Dejon Satterwhite (together defendants), who are half brothers, each with seven offenses: two counts of murder (counts 1 & 7: Pen. Code, § 187, subd. (a) (undesignated statutory references will be to the Penal Code unless otherwise specified)) for the murders of Lee Smith (count 1) and Richard Wilson (count 7); three counts of attempted premeditated and deliberate murder (counts 2, 4, & 6: §§ 664 & 187, subd. (a)) for the attempted murders of Charles Foster (count 2), Christopher Scott (count 4), and Michael Canty (count 6); and two counts of shooting at an occupied motor vehicle (counts 3 & 5: § 246).
As to the two murder counts, the amended information alleged two special circumstances: (1) the murders were intentional and perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)); and (2) defendants were each convicted in this proceeding of more than one murder (§ 190.2, subd. (a)(3)).
As to all seven counts, it was alleged that (1) defendants were principals and a principal personally used and discharged a firearm (§ 12022.53, subds. (b), (c), (e)(1)); (2) they were 14 years of age or older and committed offenses which, if committed by an adult, would be punishable by death or a life term in prison (Welf. & Inst. Code, § 707, subd. (d)(2)(A)); and (3) they committed the crimes for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)).
As to counts 1 through 5, it was alleged that defendants were principals and a principal personally used a firearm and proximately caused great bodily injury or death to a person other than an accomplice (§ 12022.53, subds. (d), (e)(1)).
As to counts 2, 4, and 6, it was also alleged that defendants personally inflicted great bodily injury (§ 12022.7, subd. (a)).
Following a joint trial with separate juries, Thomas's jury found him guilty of all seven counts, found the murders to be of the first degree and found the attempted murders to be premeditated and deliberate. The jury found true the enhancement allegations with the exception of (1) the allegations in the attempted murders of Charles Foster and Michael Canty that he was a principal and a principal personally used a firearm and proximately caused great bodily injury or death to a person other than an accomplice, and (2) the allegation in the shooting at an occupied motor vehicle charge that he was a principal and a principal personally used a firearm and proximately caused great bodily injury or death to a person other than an accomplice. Thomas's jury also found true as to both murder counts the special circumstance allegations that (1) the murders were intentional and perpetrated by means of discharging a firearm from a motor vehicle, and (2) he was convicted in this proceeding of more than one murder.
Satterwhite's jury similarly found him guilty of all seven counts, found the murders to be of the first degree, and found the attempted murders to be premeditated and deliberate. The jury found true all of the enhancement allegations and, as to both murder counts, the special circumstance allegations that the murders were intentional and perpetrated by means of discharging a firearm from a motor vehicle, and that he was convicted in this proceeding of more than one murder.
The court sentenced Thomas to a prison term consisting of two life terms without possibility of parole, plus 96 years to life, plus 40 years. The court sentenced Satterwhite to a total prison term of 196 years to life.
Thomas appealed, contending (1) the court prejudicially erred in admitting his post-arrest statements to the police because the statements were involuntary under the totality of the circumstances; (2) the sentences for three enhancements of which he was acquitted were erroneously imposed and stayed, as reflected in the sentencing minutes and abstract of judgment, and should be stricken; and (3) Thomas's abstract of judgment should be corrected to show Satterwhite is jointly and severally liable for victim restitution.
The Attorney General concedes the three enhancement sentences Thomas claims are erroneous should be stricken, and the claimed error in Thomas's abstract of judgment should be corrected.
Satterwhite separately appealed, contending (1) his convictions must be reversed because the court erroneously permitted the prosecution to present evidence of statements he made during a custodial interrogation after he invoked his right to remain silent; (2) his convictions must be reversed because his admissions during interrogation were not freely and voluntarily made due to the conduct of the detectives and because he was "mentally retarded" and suffered from attention deficit disorder; (3) his sentence, which he asserts will "require [him] to serve at least 196 years in prison before he is eligible for parole," violates the federal and state constitutional proscriptions against cruel and unusual punishment; and (4) the sentencing minute order and the abstract of judgment must be corrected because (a) the minute order incorrectly indicates his sentence was a stipulated sentence, and (b) the abstract incorrectly shows he was ordered to pay a $154 fine "PER GC2955001," which we construe to be a reference to Government Code section 29550.1 (discussed, post).
The Attorney General conceded Satterwhite's abstract of judgment erroneously indicated his sentence was stipulated, and thus it should be corrected.
In an unpublished opinion filed on August 16, 2012, we reversed the three sentence enhancements that Thomas contests and affirmed his judgment as so modified. We affirmed Satterwhite's judgment. We also remanded the matters with directions.
Satterwhite's Petition for Rehearing
By order dated September 14, 2012, we granted Satterwhite's opposed petition for rehearing,*fn1 in which he argued his sentence of 196 years to life should be reversed and the matter should be remanded for further proceedings in light of the United States Supreme Court's recent decision in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller), which held that the imposition of a mandatory sentence of life without the possibility of parole on a juvenile offender convicted of a homicide offense violates the prohibition of cruel and unusual punishment set forth in the Eighth Amendment to the United States Constitution. (Miller, 132 S.Ct. at p. 2469.)
For reasons we shall discuss, we affirm Satterwhite's convictions but vacate his sentence and remand his case for resentencing in light of Miller. We again reverse the three sentence enhancements that Thomas contests and affirm his judgment as so modified.
1. August 13, 2004 (11:30 p.m.) Gribble Street drive-by shooting (victim: Charles Foster)
In the afternoon on Friday, August 13, 2004, Charles Foster, a member of a gang known as Skyline or Eastside Piru, approached a gas station in an area associated with the Skyline gang while walking to the home of Darrell Flynt, also a Skyline gang member, on Gribble Street. Foster noticed a white Expedition sport utility vehicle pull into a driveway behind him. The driver was a Black male teenager. A second Black male teenager in the driver's-side passenger seat spoke through the open window and asked Foster, who was six or seven feet away, where he was from, a question Foster recognized as a challenge in gang culture to claim his gang.
When Foster replied he was from Skyline Piru, the passenger started making gang signs for the rival Lincoln Park street gang.*fn2 Foster testified he considered that action to be an act of disrespect and demanded that the passenger get out of the Expedition and fight. The passenger said it was not time yet and they would be back. The Expedition then drove away.
Foster testified he walked to the gas station where he told some friends about the incident and told them to watch out for a white Expedition. Several hours later, Foster went to Flynt's house on Gribble Street.
At around 11:30 that night, Foster, Flynt, and several other people were out in front of Flynt's house. One of them yelled "white Expedition," and Foster and everyone started running. Foster recognized the Expedition from the confrontation earlier that day. Several witnesses testified that the occupants of the Expedition began shooting at the people in front of Flynt's house.
Arthur Zieglar testified the shooting started after a Lincoln Park gang sign was thrown out through the driver's-side passenger window of the Expedition.
Rosalie Wilkerson testified she saw two Black males firing through the open windows from the front and rear of the passenger's side of the Expedition and another fired over the top of the vehicle from the rear driver's side. The back passenger on the passenger side had half his body outside the window as he fired, and he was wearing a hat that fell off onto the street. The front passenger fired a handgun.
Foster testified that as he ran toward Flynt's open garage door, he heard "a few" gunshots, felt a sting in his left leg, and fell to the pavement. He had been shot near his ankle.
A baseball cap was recovered in the middle of the street, as well as four .380-caliber shell casings and six .22-caliber shell casings. Analysis of the DNA recovered from the cap identified Robert Myers as the likely source.
Flynt testified that some time later he encountered Thomas when Flynt was in juvenile custody. Flynt confronted Thomas about "shooting up" his house. Thomas replied, "There ain't no hard feelings. That's part of the game."
2. August 14, 2004 (12:30 a.m.) car-to-cars shootings on southbound Highway 163 (victims: Richard Wilson, Christopher Scott, Michael Canty)
In the early morning hours shortly after midnight on Saturday, August 14, 2004, several friends were driving in a caravan looking for something to do. Richard Wilson was driving his silver BMW with Christopher Scott as his passenger. Marcus Whitfield was driving a black Lexus with Kenny McKnight as a passenger. Michael Canty, who was alone, was driving a black Mustang. Canty was a "shot caller" associated with the O'Farrell Park gang, an ally of the Skyline Pirus.
The caravan arrived at a club off Highway 163 in Linda Vista. They went there to attend a party. Wilson and Scott went inside to check out what was going on. Canty, who stayed outside, noticed a white Expedition parked in the back of the parking lot. Two Black males were standing next to the Expedition playing music associated with the Lincoln Park gang.
When Wilson and Scott returned, the group decided to drive downtown to find something to do. When they got back into the cars and left the club, they were in the same cars in which they had arrived. When the caravan drove onto southbound Highway 163, Whitfield's Lexus was first in line, Wilson's BMW was second, and Canty's Mustang was last. Canty noticed that the white Expedition followed them out of the parking lot and onto the freeway.
Canty testified that as he proceeded down the freeway into Mission Valley, shots were fired at him and he heard glass breaking. Canty suffered two gunshot wounds to his right forearm.
Scott, who was in Wilson's BMW ahead of Canty's Mustang, heard a loud noise and turned down the radio. The back window of the BMW then burst and Scott heard gunshots. When Scott got back up after ducking down, Wilson was slumped over toward the passenger seat and the car was accelerating. Scott steered the car into the guard rail on the left side of the freeway and the car eventually stopped. Wilson died from a gunshot to the head. Scott was shot twice, in the left shoulder and in the back.
3. August 14, 2004 (9:00 p.m.) drive-by shooting at Meadowbrook Drive and Skyline Drive (victim: Lee Smith)
Also on Saturday, August 14, Alfred Lacy, Lee Smith, and others walked to the bus stop near the intersection of Meadowbrook Drive and Skyline Drive after playing basketball. Shortly after 9:00 p.m., while waiting at the bus stop, Lacy saw a white Expedition on Meadowbrook Drive at the stop light on Skyline Drive. That area is a well-known Skyline Piru hangout. Lacy testified the Expedition caught his attention because "there [were] a lot of rumors about the white Expedition." When the light changed and the Expedition drove down Meadowbrook Drive past the bus stop, Lacy saw two Black males in the front seats. The Expedition was driving slowly─about 20 to 25 miles per hour─and the two Black males were "mad dogging" (or staring in a negative way at) Lacy and his friends.
The Expedition continued down Meadowbrook Drive and then returned a few minutes later on Lacy's side of the street. Lacy testified he saw one of the Black males sitting on the window frame of the driver's door, aiming something across the roof of the car at Lacy's group at the bus stop as the Expedition slowly drove by about 15 feet away. Although Lacy did not see a gun, the male's hands were clasped with fingers together and his elbows were on the roof.
Lacy testified he dove to the ground and heard a gunshot. Soon thereafter, Lacy found Smith lying on the ground and yelling that he was hit. Smith died later that night from a gunshot wound. At trial, Lacy identified Thomas as the person he saw shooting across the top of the Expedition.
Jimmine Johnson, who was then 15 years of age, dated Thomas for a few months in 2004, but they were just friends by August of that year. In her opinion, Thomas was associated with the 5/9 Brims gang, a Blood gang, because of the slang language he used, his references to the 5/9 Brims, the burgundy-colored clothes he wore, and his refusal to leave his car at a birthday party due to the presence of Skyline gang members. Johnson testified that Satterwhite used similar language.
In front of Thomas's jury only, Johnson testified that Thomas called her on Saturday morning, August 14, and asked her to look in the newspaper to see if there was anything about a shooting on a freeway. When she told Thomas she had found nothing, he asked her to get a different newspaper and check again. Johnson again found nothing.
Johnson testified before both juries that she was at Kendra Brown's house that night planning on attending a party. At 9:25 p.m., Thomas called Johnson and said he was in front of Brown's house. Thomas was driving his white Ford Expedition and Satterwhite was sitting in the back seat behind Thomas. Two other Black males dressed in red were inside the Expedition: Ivory Harris was in the front passenger's seat and Robert Myers was seated behind Harris. Johnson and Brown sat between Satterwhite and Myers in the rear passenger area.
Brown testified she saw a rifle on the floor and was frightened, but Satterwhite told her, "Don't worry about it." Brown also stated the front passenger (Harris) waved a handgun in Thomas's face, apparently joking around, and Thomas seemed mad about that behavior.
Soon thereafter, Harris frantically said there was a police car behind them. Johnson testified the police car's overhead light and siren were not on. Harris passed the handgun back to Myers, who was sitting to the right of Johnson and wearing a red-hooded sweatshirt.
Satterwhite was frantically telling Thomas to stop the car. Thomas kept driving and, a couple of minutes later, turned into an apartment complex parking lot. Johnson testified that before the Expedition came to a stop, Satterwhite opened his door and ran off. Johnson's testimony indicated that Myers, who was holding a bottle of alcohol, put the handgun under his right rear passenger seat before he got out.
At around 9:37 p.m. that night, San Diego Police Officer Paul Keffer received a radio call about a shooting on Meadowbrook Drive. He spotted a white Expedition that matched the description of the suspect vehicle he had been given. Officer Keffer recognized the description as that of a vehicle involved in the Gribble Street shooting the night before. He followed the Expedition into an apartment complex and saw a Black male in his teens or 20's (Satterwhite) get out of the driver's side and run before the Expedition came to a stop. Officer Keffer stopped the right front passenger (Harris) at gunpoint after the passenger got out and started to walk away. Additional police officers arrived and took Thomas, Myers, Johnson, and Brown into custody.
Under the right rear passenger seat where Myers had been sitting, the police recovered a nine-millimeter Ruger semiautomatic handgun, a .22-caliber semiautomatic rifle, a pair of gloves, and a box of nine-millimeter ammunition. A red baseball cap and a root beer can were recovered inside the Expedition. Several latent fingerprints from the root beer can matched those of Satterwhite. Satterwhite was also matched to three latent fingerprints from the window and frame of the rear driver's side. Satterwhite's DNA matched the major contributor of DNA from the red baseball cap with a statistical probability of one in hundreds of billions, while Thomas, Harris, and Myers were excluded.
Lacy was transported to the apartment complex, where he identified the Expedition and also identified Thomas as the shooter. Lacy also identified Myers as having been inside the Expedition at the time of the shooting.
A baseball cap was recovered from the middle of Gribble Street, along with four .380-caliber shell casings and six .22-caliber shell casings. DNA testing of the baseball cap sweat band yield a mixture of at least three donors, with Myers's DNA matching the predominant DNA. The others in the Expedition were excluded. The four .380-caliber shell casings were fired from the same gun. All of the .22-caliber shell casings were fired from the .22-caliber rifle recovered from Thomas's Expedition.
Three nine-millimeter shell casings were found on Highway 163 about 2,200 feet north of where the BMW stopped. All three were fired from the nine-millimeter Ruger handgun recovered from Thomas's Expedition.
Several bullets were recovered from the Mustang. All were nine-millimeter and four were identified as having been fired from the nine-millimeter Ruger ...