People v. Downs CA2/2 ( 2023 )

Filed 12/29/23 P. v. Downs CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B321112
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA103796)
v.
LADARIOUS DOWNS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura L. Laesecke, Judge. Affirmed as
modified.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In an amended information filed by the Los Angeles County
District Attorney’s Office, defendant and appellant Ladarious
Downs was charged with murder (Pen. Code, § 187, subd. (a);
count 1)1 and attempted murder (§§ 664, 187, subd. (a); count 2).
Firearm and gang enhancements were also alleged.
As to count 1, a jury found defendant guilty of second
degree murder and found true the allegation that he personally
and intentionally discharged a firearm, causing great bodily
injury or death, within the meaning of section 12022.53,
subdivision (d). The jury found the gang allegation under
section 186.22, subdivision (b)(1)(c), to be not true. The jury
found defendant not guilty of attempted murder as alleged in
count 2.
The trial court sentenced defendant to a total term of
40 years to life in state prison, consisting of 15 years to life for
the murder plus 25 years to life for the firearm enhancement.
This appeal followed. Subsequently, defendant filed a
petition for writ of habeas corpus in case No. B330535.2
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 In accordance with our August 11, 2023, order, we have
concurrently considered defendant’s petition for writ of habeas
corpus with this appeal. We find no merit in defendant’s
contention that the trial court “abused discretion, expressed bias,
commit[t]ed misconduct and otherwise erred in rulings that in
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BACKGROUND
I. The People’s Evidence
A. The March 2, 2016, fight
On March 2, 2016, defendant or his cousin was punched in
the chest during a fight with a group of people that included
Kevin Reed (Reed).
B. The March 3, 2016, shooting
The next day, defendant told Larry Williams (Williams)
that “he wanted to have another fight, because he felt like he lost
and he wanted to redeem himself[.]” Defendant said, “‘I’m not
gonna let this go, I’m gonna fight and redeem myself,’” and “‘I
ain’t no punk[.]’” Williams and defendant were both members of
the Insane Crip gang.
Later that day, defendant, Donald Lee (Donald), and
Donald’s brother3 walked to a corner liquor store and
encountered a group of men. The group of men asked defendant
and the Lees, “‘Oh, where are you guys from?’” Defendant and
the Lees responded, “‘We don’t bang, nothing like that[,]’” and
walked away. At the next corner, men yelled and pointed at the
Lees and defendant. Gunshots were heard, and the Lees and
defendant started running.
When later interviewed by the police, Donald reported that
he had seen defendant pull out a gun and shoot three times.
Because he heard different gunshots, Donald thought that
another man in the group had also fired a shot.
[accumulation] and individually denied [him] a fair trial in front
of an impartial judge.” A separate order will be filed in that
matter.
3 We refer Donald and his brother, collectively, as “the Lees.”
3
Just before the shooting, Reed ran into a few men,
including Tyrone Douglas4 (Douglas) at a fast food restaurant.
Thereafter, Reed went to the liquor store with a few of the men.
Reed and his companions were later waiting for Uber rides when
defendant, who Reed identified in court as the shooter, fired a
gun at the group multiple times. Douglas was shot in the back
and died as a result of his injuries.
C. Perkins5 operation
Defendant was the subject of a Perkins operation, which
entails placing a target of an investigation into a cell with
individuals posing as inmates but who are working undercover
for law enforcement. Defendant told the Perkins agents, “I ain’t
worried about this weird-ass n**** walking up. . . . And sh** just
got ugly . . . .”
II. Defendant’s Evidence
Defendant represented himself at trial and testified on his
own behalf.6
Defendant admitted to associating with the Insane Crip
gang. He was part of the “Long Beach Movement,” which set
aside gang rivalries “for the purpose of uplifting Long Beach as a
community . . . .” Defendant had known Douglas since 2010, but
they had not been close friends for a long time because Douglas
was “kind of upset” with defendant’s association with the Insane
Crip gang.
4 Douglas was a member of the Rolling 20s Crip gang. The
Insane Crip gang is the main rival of the Rolling 20s Crip gang.
5 Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).
6 We only summarize portions of defendant’s testimony
relevant to the issues on appeal.
4
On March 2, 2016, defendant and his younger brother were
“jumped” by a group of people.
On March 3, 2016, defendant was at Williams’s house,
accompanied by the Lees and another friend who associated with
the Bricc Boy Crips. On the way to the basketball courts,
defendant stopped at a liquor store. When he came out of the
store, defendant saw Douglas across the street. Defendant and
Donald crossed the street to go to Douglas’s group. Defendant
recognized two of the men in the group, who approached
defendant about the prior day’s fight. Defendant left to go to his
godmother’s home.
Defendant later went over to Donald’s home. Donald told
defendant that an incident had happened. Donald wanted to go
back, and defendant tried to talk him out of it, saying it was not
worth pursuing.
But shortly thereafter, Donald and defendant started
heading back to the park. While walking toward the park with
Donald, defendant saw Douglas’s group come out of the alley.
Knowing that Donald had a gun, defendant said, “‘Look, bro,
don’t do nothing stupid’” and “‘chill out.’” At some point, Donald
said he wanted a “fair fade,” meaning a fair fight, and that he
wanted defendant to hold onto his gun. Donald gave defendant
his gun outside “the sight of the guys.”
Donald and defendant returned to the corner. The two
groups got closer, and defendant saw someone pointing, followed
by a “dude” in white pants reaching in his belt. Someone in the
other group said “‘F Bugs’” as an insult to the Insane Crip gang.
Defendant told his friend, Jay, to get out of the way, and
reached for the gun in his basketball shorts. The man in the
white pants was trying to get around Jay. Defendant did not
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“think the dude [was] gonna shoot” but the man was hesitating,
so defendant decided to “go ahead.” Defendant fired two shots at
the man’s feet. The man fell and tried to run. The man “ha[dn’t]
shot a shot-off” and “seemed more scared than anything.”
Defendant saw the man’s gun on the ground. Another man
looked like he was reaching for the gun, so defendant fired a
gunshot on the ground. Defendant ran back to his house, not
knowing if anyone was dead.
Defendant also testified that killing Douglas was an
“accident” and that he did not intend to kill anyone. He aimed at
the ground and at the group’s legs. Defendant thought that if he
did not shoot the man in white pants then he would be shot. He
stated: “I thought that if I didn’t shoot the gun, the dude that
had the other gun would shoot me,” and “I was hoping it would
hit the person that I was shooting at, which was the person who
had the gun.” He testified that he felt threatened because one of
the people in the group had a gun.
Regarding the Perkins operation, defendant explained that
he used the term “weird-ass n****” to refer to the armed man in
the other group.
DISCUSSION
I. Refusal to Give Voluntary Manslaughter Instruction
Defendant argues that the trial court erred in refusing to
instruct the jury on the lesser included offense of manslaughter
based on imperfect self-defense (also known as unreasonable self-
defense)7 or defense of others.
7 We use the terms “imperfect self-defense” and
“unreasonable self-defense” interchangeably.
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A. Relevant proceedings
Following the close of evidence, the trial court discussed
jury instructions with the prosecutor and defendant. As to count
1, the court raised voluntary manslaughter as a potential lesser
included offense of murder. The court explained its “theory of
voluntary manslaughter [a]s the honest but unreasonable belief
and the need to defend.”
The trial court recalled defendant’s testimony that he saw a
gun but that he shot first, “initiat[ing] the shooting.” The court
acknowledged the testimony of both defendant and Donald that
another man had a gun at the scene of the shooting. The court
asked: “It appears to me [that] we have different arguments
about who drew first or what happened, but how do I deal with
that?”
Defendant argued that the other man “was actually
pointing the gun” even though “he may not have fired first[.]”
Defendant contended that he testified that he “was in fear for
[his] life that the person was trying to shoot [him].” The trial
court asked for several readbacks of testimony and heard
additional argument from the parties. The prosecutor disagreed
with defendant’s characterization of the evidence, contending
that “at no point” did defendant “say that somebody was pointing
a gun at him[.]” The court declined to make a final decision,
opting to take additional time to consider the issue.
The next day, relying on People v. Valenzuela
(2011) 199 Cal.App.4th 1214 (Valenzuela), the trial court noted
that in the gang context it would be reasonable to assume that
another armed person in a gang confrontation would shoot.
Thus, the court ruled that it would not instruct on voluntary
manslaughter because it did not “find that there is substantial
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evidence of an honest but unreasonable need to exercise self-
defense.” The court would, however, instruct on self-defense.
B. Relevant law and standard of review
“Voluntary manslaughter, a lesser included offense of
murder, is defined as the unlawful killing of a human being
without malice.” (People v. Vargas (2020) 9 Cal.5th 793, 827
(Vargas).)
“Self-defense, when based on a reasonable belief that killing
is necessary to avert an imminent threat of death or great bodily
injury, is a complete justification, and such a killing is not a
crime. [Citations.] A killing committed when that belief is
unreasonable is not justifiable. Nevertheless, ‘one who holds an
honest but unreasonable belief in the necessity to defend against
imminent peril to life or great bodily injury does not harbor
malice and commits no greater offense than manslaughter.’
[Citation.]” (People v. Elmore (2014) 59 Cal.4th 121, 133–134; see
also People v. Humphrey (1996) 13 Cal.4th 1073, 1082
[unreasonable or imperfect self-defense requires that the
defendant have an actual, but unreasonable, belief that he was in
imminent danger to life or great bodily injury].)
A trial court must instruct on lesser included offenses when
there is substantial evidence the defendant is guilty only of the
lesser offense. (Vargas, supra, 9 Cal.5th at p. 827.) “The
‘substantial evidence requirement is not satisfied by “‘any
evidence . . . no matter how weak,’” but rather by evidence from
which a jury . . . could conclude “that the lesser offense, but not
the greater, was committed.”’ [Citation.]” (People v. Nelson
(2016) 1 Cal.5th 513, 538 (Nelson).) “Speculative, minimal, or
insubstantial evidence is insufficient to require an instruction on
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a lesser included offense. [Citations.]” (People v. Simon (2016)
1 Cal.5th 98, 132.)
“‘On appeal, we review independently the question whether
the trial court improperly failed to instruct on a lesser included
offense.’ [Citation.]” (Nelson, supra, 1 Cal.5th at p. 538.)
C. Analysis
The trial court did not err in refusing to instruct the jury on
the lesser included offense of voluntary manslaughter due to
imperfect self-defense/defense of others. As the trial court
expressly noted, defendant’s belief in the need to shoot at the
rival gang was reasonable. After all, both defendant and Donald
testified that a man in the other group, a rival gang, had a gun.
And defendant stated that he believed that if he did not shoot,
“the dude that had the other gun would shoot” him. Thus, the
trial court properly instructed the jury on self-defense, not
manslaughter. (People v. Humphrey, supra, 13 Cal.4th at
p. 1082.)
On appeal, defendant seemingly agrees. He argues that we
should find substantial evidence that he had an actual belief that
he needed to defend himself or defend those with him from
imminent great bodily injury or death. But he directs us to no
evidence that his need to shoot was unreasonable, which was the
only basis for a manslaughter instruction. (Valenzuela, supra,
199 Cal.App.4th at pp. 1228, 1230.)
In light of our conclusion that the trial court did not err, we
need not address whether any alleged instructional error was
harmless.
II. Imposition of Firearm Enhancement
As set forth above, the trial court sentenced defendant on
December 13, 2021, to an aggregate term of 40 years to life. The
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sentence consisted of 15 years to life for the murder, plus a
consecutive 25 years to life for the section 12022.53,
subdivision (d) firearm enhancement.
Defendant challenges the trial court’s imposition of the
sentencing enhancement. He contends that pursuant to section
1385, subdivision (c),8 the trial court abused its discretion in
refusing to dismiss the enhancement.9
The problem with defendant’s argument is that section
1385, subdivision (c), as it now reads, does not apply to
defendant’s sentence. It only applies to criminal sentencing after
January 1, 2022. (§ 1385, subd. (c)(7) [“This subdivision shall
apply to all sentencings occurring after January 1, 2022”]; People
v. Flowers (2022) 81 Cal.App.5th 680, 686, review granted
Oct. 12, 2022, S276237.) Because defendant was sentenced on
December 13, 2021, the statute does not apply.10
8 Section 1385, subdivision (c), provides, in relevant part: “In
exercising its discretion under this subdivision [to dismiss an
enhancement], the court shall consider and afford great weight to
evidence offered by the defendant to prove that any of the [nine
statutory] mitigating circumstances . . . are present. Proof of the
presence of one or more of these circumstances weighs greatly in
favor of dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.”
9 We review issues of statutory construction de novo (John v.
Superior Court (2016) 63 Cal.4th 91, 95) and the trial court’s
exercise of its discretion under section 1385 for an abuse of that
discretion (People v. Walker (2022) 86 Cal.App.5th 386, 395,
review granted Mar. 22, 2023, S278309).
10 Defendant offers no argument as to why the current statute
should apply retroactively to his sentence. But even if it did,
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III. Custody Credits
Presentence custody credits include the date of arrest and
the date of sentencing. (People v. Morgain (2009)
177 Cal.App.4th 454, 469.) “‘A sentence that fails to award
legally mandated custody credit is unauthorized and may be
corrected whenever discovered. [Citation.]’ [Citations.]” (People
v. Cardenas (2015) 239 Cal.App.4th 220, 235.)
Defendant was arrested on March 15, 2016, and sentenced
on December 13, 2021. The number of days between that period,
including the day of sentencing is 2,100. The abstract of
judgment, however, only reflects 2,097 days of actual custody
credits. As defendant argues and the People agree, the judgment
must be modified to reflect three additional days of custody
credit.
there still would be no basis to reverse. The trial court implicitly
found that “dismissal of the enhancement would endanger public
safety.” (§ 1385, subd. (c)(2).) It stated on the record: “I realize
that I have the discretion not to impose [sentence on the
enhancement], but I’m choosing, based on the facts in this case
and my review of the evidence, listening to the trial testimony, to
[defendant’s] testimony, that it is the proper decision to impose
the 25 years to life . . . .”
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DISPOSITION
The judgment is modified to add three days of actual
custody credits for a total of 2,100 days of actual credits. The
trial court is directed to prepare an amended abstract of
judgment reflecting the modification regarding custody credit,
and to forward a copy of the amended abstract to the California
Department of Corrections and Rehabilitation. As so modified,
the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.*
KWAN
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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