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People v. Billingsley

California Court of Appeals, Second District, Seventh Division

May 2, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
JOSEPH L. BILLINGSLEY, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

          APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA091690 Hector M. Guzman, Judge. Affirmed and remanded with directions.

          Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Scott A. Taryle and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

          SEGAL, J.

         INTRODUCTION

         The People charged Joseph Billingsley with two counts of assault with a firearm and alleged in connection with both counts Billingsley personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a).[1] The People also charged Billingsley with shooting at an occupied motor vehicle, discharge of a firearm with gross negligence, and the attempted willful, deliberate, and premeditated murder of Devonte James. In connection with the count for attempted murder, the People alleged Billingsley personally and intentionally used and discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c). The People also alleged Billingsley had a prior conviction for a felony that was a serious felony within the meaning of section 667, subdivision (a)(1), and a prior violent or serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12).

         The jury convicted Billingsley on all counts and found all allegations true except the allegation Billingsley attempted to murder James willfully, deliberately, and with premeditation. The trial court declared a mistrial on that allegation.

         The trial court imposed the lower term of five years for the attempted murder conviction, doubled under the three strikes law, plus five years for the prior serious felony conviction under section 667, subdivision (a)(1), and 20 years for the firearm enhancement under section 12022.53, subdivision (c). The court imposed a consecutive term of two years for one of the convictions for assault with a firearm (one-third the middle term of three years, doubled), plus one year four months for the firearm enhancement under section 12022.5, subdivision (a), on that count. The court stayed imposition of the sentences on the remaining counts, including for the second firearm enhancement under section 12022.5, subdivision (a). Billingsley's aggregate sentence was 38 years four months.

         Billingsley contends the trial court erred by failing to instruct the jury on self-defense and imperfect self-defense and by denying his request for a trial continuance to locate a witness. In a supplemental brief, Billingsley argues we should remand for resentencing to allow the trial court to exercise discretion to strike the firearm enhancements under the recent amendments to sections 12022.5 and 12022.53.

         In the unpublished portion of this opinion, we affirm the conviction. In the published portion, we remand for the trial court to hold a new sentencing hearing under the amended statutes.

         FACTUAL BACKGROUND

         A. The Confrontation at Billingsley's House

         On the afternoon of December 7, 2014 Myesha Milton picked up her husband James from work in her SUV. Mariah Webster and her three-year-old son rode in the back seat. Milton had called James earlier that day to tell him a man known to them as Murdock called Milton a bitch while she and Webster shopped at a liquor store. Milton drove past Billingsley's house, which was near the liquor store, and James saw Murdock outside. Milton stopped the SUV and James got out.

         James told Murdock and a group of five to seven people on the porch of the house that he “wanted fades” with everyone, meaning he wanted to fight them. Murdock went to talk with James in the street, and they spoke standing next to the SUV for several minutes. James yelled at Murdock, but never raised his fists or threatened him with a weapon. Without warning, someone fired shots, and a bullet shattered one of the SUV's windows. James began to run. He initially thought a bullet had hit him, but the bullet only grazed his shoe. Murdock fell down but was not hit.

         B. The 911 Call

         An off-duty Los Angeles Police Department officer named Andres Sandoval and his cousin stood in a driveway that afternoon, several houses away from Billingsley's house. Officer Sandoval saw “a bunch of male blacks” get out of an SUV, and he observed at least one of them reach into his waistband as if reaching for a gun. Officer Sandoval called 911, told the operator a fight was about to occur, and asked the operator to send deputies. While still on the phone with the 911 operator, Officer Sandoval heard multiple gun shots. He initially reported a victim had been shot but later said the man got back up and ran away.

         C. The Investigation

         Los Angeles County Deputy Sheriff Shawn Priestley and his partner responded to the scene within one minute. They did not find a gunshot victim but saw two men sitting on the porch of Billingsley's house. As they approached the men, the deputies found nine-millimeter shell casings in the driveway. The men told the deputies they had just arrived at the house and did not know anything about a shooting. As the deputies continued questioning the two men, Billingsley came out of his house wearing a blue, white, and black plaid shirt. He too said he did not know anything about the shooting. The deputies detained all three men.

         Later that evening Deputy Priestley and two other deputies returned to Billingsley's house with a search warrant. The deputies retrieved eight nine-millimeter shell casings and found three firearms and ammunition inside an outdoor stove on the property. Ballistics tests later showed none of the guns found on Billingsley's property matched the shell casings. The deputies released the two men they initially found on Billingsley's porch and took Billingsley into custody.

         Billingsley consented to an interview with the deputies. He told them he was preparing for a barbeque the afternoon of the shooting and did not hear any gunshots because a football game was on television and he was playing loud music in the house. He only noticed the deputies talking to his friends when he went outside to smoke a cigarette. Billingsley denied owning any firearms and said his mother and four other people lived in the house with him.

         The next day, December 8, 2014, Milton and James reported the shooting. Milton described the shooter as a dark-skinned, bald man wearing a blue, white, black, and gray shirt. She and James identified Billingsley as the shooter from a photographic lineup.

         D. The Trial

         Milton and James testified at trial. Milton testified she picked up a friend of James named “Snap” before encountering Murdock. She stated James and Snap both got out of the SUV to talk to Murdock, but no one fought. She said James did not have a gun, and she did not know what Snap “had on him.” While the three men talked, Milton heard gunshots, looked in her rearview mirror, and saw Billingsley shooting from his yard while he was standing behind a car. She did not see anyone else with a gun. After a bullet hit the window of her SUV, Milton drove away. Milton admitted that when she and James reported the shooting the next day she did not tell the deputies about Snap because she did not think his presence was “important.” She first mentioned Snap at the preliminary hearing in January 2015, 18 months before trial, but did not know his full name.

         James testified Snap was not in the SUV or at the encounter with Murdock. James said he saw Billingsley in his yard while James was talking to Murdock. James told Billingsley he could “come from behind the fence [surrounding his yard] so we can talk, too.” James also accused Billingsley of “disrespecting” his wife. James admitted Billingsley might have interpreted his statements as an invitation to fight. While James was still talking to Murdock (and Milton was “cussing out” Murdock from the SUV), James heard gunshots and started running. He did not see Billingsley with a gun, but James said ...


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