PEOPLE v. COMBS

B209260

THE PEOPLE, Plaintiff and Respondent, v. JERON MARKEISE COMBS, Defendant and Appellant.

Court of Appeals of California, Second Appellate District, Division Eight

Not to be Published in the Official Reports


Attorney(s) appearing for the Case

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Voet, for Plaintiff and Respondent.


RUBIN, ACTING P. J.

Jeron Markeise Combs appeals from his convictions for murder and attempted murder of members of a rival street gang. We modify the judgment to award Combs presentence custody credit and, as modified, affirm.

FACTS AND PROCEEDINGS

Rodney Lampkin hosted a pre-prom party for his teenage daughter, Keonee, in May 2007. Victims Jeremy Howard and Zachary Smith, who were members of the Rolling 20s street gang, attended the party as guests of Keonee's prom date. Appellant Jeron Combs, who was the boyfriend of Keonee's younger sister, was an invited guest at the party. Appellant and his co-defendant, Trevon Tresvant, both of whom belonged to the Exeter Block Crips street gang, left the party before it ended. Howard and Smith left shortly afterward. As Howard and Smith walked to their car, appellant and Tresvant drove up to them and stopped. The four young men argued for several minutes. Appellant then drove his car to the end of the block and again stopped. He and Tresvant got out of the car. Howard approached them and said, "get your bitch ass back in the car." Appellant and Tresvant returned to their car, reemerged armed with guns, and began firing. One bullet struck Howard, who bled to death from a gunshot wound to his lower back.

The People filed an information charging appellant with Howard's murder and the attempted murder of Smith. A jury convicted appellant, finding him guilty of the first degree murder of Howard and attempted murder of Smith. For Howard's murder, the jury found true that appellant personally fired a gun and that a principal fired a gun causing Howard's death, but found not true that appellant's gunfire caused great bodily injury or death to Howard. For the attempted murder of Smith, the jury found it was willful, deliberate and premeditated. The jury also found true that appellant and a principal personally fired guns in the attempted murder of Smith. Finally, the jury found true that appellant committed both crimes in association with and for the benefit of a criminal street gang. The court sentenced appellant to state prison for 70 years to life plus life with the possibility of parole. This appeal followed.

DISCUSSION

A. Evidence of Premeditation of Murder

The jury found appellant's murder of Howard was in the first degree. (Pen. Code, § 189.) Appellant contends the evidence he acted with deliberation and premeditation was insufficient to support the jury's finding. According to him, his deadly encounter with Howard was a rash, impulsive outburst between two groups of "macho" males determined not to back down from affronts to their pride. He asserts the evidence at most proved him guilty of second degree murder.

In support of his contention, appellant cites the purported absence of signs of premeditation identified in People v. Anderson (1968) 70 Cal.2d 15, including his alleged lack of planning and motive, and the manner in which he and his co-defendant killed Howard. (Id. at p. 26.) Reflecting his lack of planning, he notes that no violence broke out at the party itself, showing, he asserts, that he went to the pre-prom party not intending to kill anyone. Additionally, nothing about the way appellant and his co-defendant fired at Howard from the middle of the street immediately upon retrieving their guns from their car suggests that they executed their crime in a preconceived way.

At bottom, appellant asks us to draw from the evidence an inference about his state of mind different from the inference the jury drew. On this record we may not do so. We must instead presume in support of the jury's verdict all reasonable inferences that the evidence supports. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Here, ample evidence supported the jury's finding that appellant killed Howard with deliberation and premeditation. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; People v. Johnson (1980) 26 Cal.3d 557, 576-577 [evidence must be sufficient to support finding by reasonable jury of guilt beyond a reasonable doubt based on entire record].) The shooting capped several heated exchanges over the span of several minutes between appellant and his victims, who belonged to an enemy gang. (People v. Albarran (2007) 149 Cal.App.4th 214, 227 ["Evidence of [defendant's] gang involvement, standing alone, was sufficient proof of gang motive."].) Appellant and his co-defendant began by stopping in their car to argue with Howard and Smith. They continued the quarrel by driving to the end of the block and getting out of their car. They escalated the encounter by returning to the car to arm themselves. And they ended the dispute by repeatedly firing at Howard and Smith, resulting in Howard's death. Premeditation requires no set amount of time and can occur quickly. (People v. Mayfield (1997) 14 Cal.4th 668, 767; People v. Osband (1996) 13 Cal.4th 622, 697.) At each encounter with Howard and Smith, appellant had the opportunity to reflect and disengage from the confrontation. Instead, he persisted in his challenges to Smith and Howard, leading to Howard's death. A reasonable jury could conclude Howard's murder was deliberate and premeditated.

B. Intent to Kill Zachary Smith

The jury convicted appellant of premeditated attempted murder of Zachary Smith. Appellant contends he fired solely at Howard and harbored no intent to try to kill Smith. The thrust of appellant's argument is Smith was standing sufficiently far away from Howard to place him out of the line of fire aimed at Howard. Bolstering his contention, he notes no shots hit Smith.

Appellant again asks us to draw from the evidence an inference about his state of mind different from the inference jury drew. On this record, again we may not. We must instead presume in support of the jury's verdict all reasonable inferences that the evidence supports. (People v. Stanley, supra, 10 Cal.4th at p. 793; People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Here, evidence supported the jury's verdict that appellant tried to kill Smith. (People v. Ceja, supra, 4 Cal.4th at p. 1138; People v. Johnson, supra, 26 Cal.3d at pp. 576-577.) Smith drove to the pre-prom party in Howard's car. When he and Howard and their companions left the party, they walked as a group back to their cars with Howard leading the group and Smith walking nearest to him. Appellant approached Smith and Howard in his car, stopped to argue with them for several minutes, and then drove to the end of the street where he and his co-defendant got out of the car. Howard walked about ten feet in front of his parked car to tell appellant to get back in his car, while Smith stood next to the rear bumper on the driver's side of Howard's car. Smith's placement indicates he was not standing off to one side of Howard, but rather stood behind him slightly askew. Hence, a reasonable jury could conclude Smith was not out of the line of fire when appellant shot from the end of the block. Thus, substantial evidence supported the jury's verdict that appellant attempted to kill Smith. And for the same reasons we found substantial evidence that appellant's murder of Howard was deliberate and premeditated, the jury could also conclude that appellant's attempt to kill Smith was deliberate and premeditated.

C. Gang Enhancement

Section 186.22, subdivision (b)(1)(C) imposes a 10-year enhancement on a defendant's sentence for a violent felony committed in association with or for the benefit of a street gang. The jury found the gang enhancement applied to both of appellant's crimes. Appellant contends substantial evidence did not support the jury's finding. Asserting gang affiliations and rivalries did not trigger the shooting, appellant notes that not every crime committed by a gang member is a gang-related offense. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512 [gang member might possess illegal firearm for personal protection, not to further gang activity]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382 [crimes between gang members may sometimes be personal and not done for benefit of gang].) In support, he notes he and his co-defendant behaved themselves in the presence of Howard and Smith during the pre-prom party. Moreover, neither shooters nor victims shouted gang names or flashed gang signals or did anything else to mark the shootings as gang related. Appellant characterizes the shootings as "male macho responses to a dismissive and insulting challenge by another macho male" unrelated to gang membership.

Sufficient evidence supported the jury's true finding of the gang enhancement. "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Appellant and his co-defendant were members of the Exeter Bloc Crips street gang; Howard and Smith belonged to Rolling 20's, an enemy gang. Acting with other known gang members can be sufficient by itself to support the gang enhancement. (People v. Albarran, supra, 149 Cal.App.4th at p. 227 ["Evidence of [a defendant's] gang involvement, standing alone, was sufficient proof of gang motive."]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 ["very fact that defendant committed the charged crimes in association with fellow gang members" supports the enhancement].)

Appellant contends the gang-related evidence here was deficient in the same manner as the gang-related evidence in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1102-1103 (Garcia), which observed that not every crime a gang member commits is necessarily gang-related. In that case, the victim, not a member of any gang, walked into a liquor store and said hello to gang member Garcia. Garcia asked the victim if they knew each other. The victim said no. Garcia responded, "If you don't know me, don't be talking to me." Garcia then asked if the victim had any change. When the victim said he had none, Garcia answered "let's see when you come out the door." As the victim left the store, Garcia identified himself as "Little Risky from E.M.F.," a local gang which a gang expert testified was "turf oriented" and claimed the store was in its territory. (Garcia, at p. 1102.) Garcia and two other gang members then robbed the victim of his cash and bicycle.

In reviewing Garcia's petition for habeas relief, the 9th Circuit Court of Appeals agreed the robbery was gang-related because it was committed by gang members in gang territory. The court found, however, no evidence Garcia specifically intended to promote, further, or assist his gang's criminal conduct by robbing the victim. The court rejected as insufficient the inference that a turf-oriented gang promotes its overall criminal conduct merely by protecting its territory.1 The 9th Circuit thus found the street gang enhancement did not apply to Garcia. Garcia is not persuasive because our review of the record demonstrates a reasonable jury could conclude appellant and his co-defendant acted in association with and for the benefit of their street gang when they openly and violently retaliated for the perceived public disrespect of rival gang members Howard and Smith.

D. Firearm Enhancement

The court imposed a sentence enhancement of 25 years to life under section 12022.53, subdivision (d) for appellant's use of a gun in Howard's murder. That enhancement applies to "any person who, in the commission of a felony . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice . . . ." (Pen. Code, § 12022.53, subd. (d).) Appellant correctly notes that, by its terms, the enhancement ordinarily applies only to a defendant who personally fired the gun that caused death or great bodily injury. The jury found here, however, not true that appellant's use of a gun caused great bodily injury or death to Howard. Thus, according to appellant, the enhancement ought not to apply.

Appellant's conclusion is incorrect. Subdivision (e) of the enhancement statute permits an exception in its application. That exception allows imposition of the enhancement against any defendant who uses a gun in a gang-related crime when the gang enhancement allegation is found true, even if the personal use does not result in great bodily injury or death. (People v. Salas (2001) 89 Cal.App.4th 1275, 1282.) Appellant tries to avoid the exception by contending the gang enhancement was not supported by substantial evidence and thus subdivision (e)'s exception did not properly apply. We have held, however, that substantial evidence supported the jury's true finding of the gang enhancement. Accordingly, appellant's assertion fails.

E. Gun Enhancement Did Not Violate Double Jeopardy or a Rule Against Multiple Convictions

The court's imposition of the 25-year personal gun use enhancement under section 12022.53, subdivision (d) rested on Howard's murder. Appellant notes that murder by definition necessarily involves the victim's death. Appellant further notes that subdivision (d)'s application requires that the gun use cause the victim's great bodily injury or death. As such, according to appellant, murder is tantamount to being a necessarily included offense of the gun enhancement under subdivision (d). Appellant asserts imposition of the enhancement violates California's prohibition of multiple convictions for necessarily included offenses. People v. Reed (2006) 38 Cal.4th 1224, 1226-1227 described that prohibition as follows: "In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. `In California, a single act or course of conduct by a defendant can lead to convictions ' of any number of the offenses charged.' [¶] [But a] judicially created exception to the general rule permitting multiple convictions `prohibits multiple convictions based on necessarily included offenses.'" (Id. at pp. 1226-1227.) Appellant further contends that principles of Double Jeopardy also prohibit separate punishment for murder and the gun use enhancement when one is a necessarily included offense of the other.

We need not belabor the logic or details of appellant's contentions. We observe it is sufficient to note that our Supreme Court has rejected arguments similar to appellant's, rejections appellant essentially concedes.2 In People v. Sloan (2007) 42 Cal.4th 110 (Sloan), our Supreme Court found that the rule barring multiple convictions involving necessarily included offenses did not apply to sentence enhancements. (Id. at pp. 115-124; People v. Izaguirre (2007) 42 Cal.4th 126, 130-134 (Izaguirre).) And in Izaguirre, our Supreme Court found Double Jeopardy did not apply to sentence enhancements and their underlying offenses. (Izaguirre at pp. 128-129; Sloan at p. 122.)

We are bound by our Supreme Court's decisions rejecting appellant's contentions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant contends our Supreme Court wrongly decided Sloan and Izaguirre in the wake of the United States Supreme Court's line of decisions starting in Apprendi v. New Jersey (2000) 530 U.S. 466 reaffirming a defendant's right to have a jury find all facts proving the elements of a crime and punishment. According to appellant, Apprendi and its progeny abolished the distinction between enhancements and elements of a crime that underlay our Supreme Court's decisions in Sloan and Izaguirre. But our Supreme Court decided Sloan and Izaguirre mindful of Apprendi and discussed that case in both decisions. Therefore, appellant's contentions fail.

F. Presentence Custody Credit

Appellant spent 395 days in presentence custody. Because appellant was convicted of murder, the court did not award him any presentence custody credits. However, Penal Code section 2933.2 precludes only the award of conduct credit, not credit for time a defendant actually serves. (Pen. Code, § 2933.2, subd. (a).) Appellant contends the court erred in denying him actually time credits. Respondent agrees that appellant's contention is well-taken. Accordingly, we direct that appellant shall receive presentence custody credit.

DISPOSITION

The clerk of the superior court is directed to amend the abstract of judgment to award appellant 395 days of presentence custody credit and to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation. As amended, the judgment is affirmed.

WE CONCUR:

FLIER, J.

BIGELOW, J.

FootNotes


1. Garcia was a 2-1 decision, with one judge dissenting from the majority's view that protecting turf does not promote a gang's criminal enterprises. (Garcia, supra, 395 F.3d at pp. 1106-1107.) The dissenter was not alone. In Garcia's direct appeal in California state courts, three justices of the California Court of Appeal also agreed that protecting territory promoted a gang's criminal conduct. (Id. at p. 1106.)
2. Appellant raises the multiple-conviction and double jeopardy claims apparently to preserve them for future review.

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