California Court of Appeal, Second District, Fourth Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Los Angeles County, Allen J. Webster, Jr., Judge. Affirmed. (Los Angeles County Super. Ct. No. TA119971).
Edward H. Schulman, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Gary A. Liberman, Deputy Attorneys General, for Plaintiff and Respondent.
Travion Jones appeals from his judgment of conviction of first degree murder with personal firearm use and street gang allegations. We find no error and affirm.
In the published part of this opinion we conclude the trial court properly instructed the jury on the provocation doctrine as a basis for second degree murder. The balance of our discussion concerns claims of error based on a witness statement referencing appellant's prior prison incarceration, and the claim that application of the Penal Code section 12022.53, subdivision (d) firearm enhancement violates rules against double punishment and former jeopardy.
FACTUAL AND PROCEDURAL SUMMARY
This case arises out of two homicides among members of the same criminal street gang, the Grape Street Crips. No argument is raised concerning sufficiency of the evidence to support the jury verdicts, and in the following summary we follow the standard practice of reviewing the record in the light most favorable to the judgment, and " presume in support of the judgment the existence of every fact the trier [of fact] could reasonably deduce from the evidence. [Citation.]" ( People v. Lewis (1990) 50 Cal.3d 262, 277, 266 Cal.Rptr. 834, 786 P.2d 892.) We briefly summarize the evidence as necessary for discussion of the contested issues.
The Grape Street Crips is a large aggregation, numbering over 1,000 members. Many of its members live in the area of Jordan Downs, a public-assisted housing project in Los Angeles. The location is a high crime area and, as a result, is abundantly supplied with surveillance cameras. On an evening in August 2011, one of the gang members, Deshon Raspberry, was shot and killed by James Aubry, another member. Word had been out that Aubry thought Raspberry had stolen some of his narcotics and was selling it. According to another version, Antonio McNeil, another member of the gang, had stolen Raspberry's drugs, which somehow were acquired by Aubry. Raspberry and Aubry got into a physical fight during which Raspberry struck Aubry with a stick and, according to Aubry, said he was going to get a gun. Aubry then got his own gun and, when Raspberry returned, was afraid
Raspberry was going to shoot him. As a result, Aubry " went for his gun before [Raspberry] had time to get his," and shot and killed Raspberry. Aubry was arrested, but released based on his claim that he acted in self-defense. Appellant was a close friend of Raspberry. He was " disciplined" (beaten up) by his fellow gang members who learned that appellant was present when Raspberry was killed yet made no effort to come to his aid, and because appellant's explanation " wasn't adding up."
The day after Raspberry was killed, appellant appeared at the residence of his [167 Cal.Rptr.3d 661] girlfriend with a swollen lip. He was upset at the killing of Raspberry, who had been a close friend. He was " kind of sad" and " cried a little bit." He received a phone call, then hurriedly left the residence in his girlfriend's car and went to the area where Raspberry had been killed. He spotted McNeil in the area. He said to Robert Anderson, an acquaintance who was there, " I'm about to kill that n- - - - -." The acquaintance then left the area on a bicycle and did not witness the shooting. There had been talk that McNeil had given Aubry the gun used to kill Raspberry. When McNeil saw appellant he tried to run away. McNeil was chased by appellant. Shot by appellant, McNeil dropped to the ground. Appellant walked ...