Lincoln Park shoots at car of Skyline Piru members 2001

[gautier]

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BRANDON LYNELL PRICE, DEFENDANT AND APPELLANT.

APPEAL from a judgment of the Superior Court of San Diego County, John L. Davidson, Judge. Affirmed in part, reversed in part, and remanded for resentencing. (Super. Ct. Nos. SCD160800 & SCD170638).

FACTUAL AND PROCEDURAL SUMMARY


On September 24, 2001, Price was arrested for questioning, and released shortly thereafter, about a freeway shooting at around 6:00 p.m. the day before, which occurred following a high speed chase involving alleged Lincoln Park (LP) gang members in one car, who fired shots at a car containing alleged rival Skyline Piru (Skyline) gang members, hitting 16-year old Anthony Newsome, who later died from a gunshot wound to his neck. The driver of the car from which the shots had been fired, Benjamin Oyeka, and two young men who were identified as being in the car, Ontarion Dodson and Jarius Bush, were also arrested and interviewed in connection with the freeway shooting.

To set the scene for testimony regarding the freeway shooting and for the alleged gang enhancements, San Diego Detective Bruce Pendleton, the prosecution's gang expert, testified about LP as a criminal street gang, identifying its primary crimes, which included murder, attempted murder, robbery, sales of narcotics, auto theft, witness intimidation, carjacking and vandalism. Pendleton noted that the LP gang had numerous subsets, including one called the "Murder Gang," and that members of such subset commonly committed drive-by shootings, several of which he had investigated and found to have been committed for the benefit of the gang. Pendleton stated that a gang member earned respect from fellow gang members by committing violent crimes.

Pendleton further testified about the rivalry between the LP gang and the Skyline gang, and described an incident he had investigated in which LP gang members went into Skyline gang territory and fired several shots at Skyline gang members. When the police responded to that incident, an LP gang member turned an AK47 on one of the officers. Several LP gang members were subsequently arrested for those crimes. Pendleton opined that he had investigated more LP shootings on Skyline gang members than the other way around.

Pendleton identified Price in court as a documented and tattooed LP gang member. He had contacted Price on May 19, 2001, in a car with Marcus House, another documented LP gang member, near the Bay Vista Apartments (Bay Vista). DAI Kenneth Freshwater also testified that he knew Price from previous investigations and knew him to be an LP gang member.

Newsome, a football player at Morse High School, and his 13-year-old brother, S.H., had left their home in the Skyline area of San Diego the afternoon of the shooting with Laneich Duncan, a family friend, in her brown colored Altima to go to another friend's house. At that time, Newsome was in the front passenger seat and his brother S.H. was in the backseat. On the way there, Duncan, who was associated with an affiliate gang of Skyline, decided to drive into LP gang territory, to look for a girl named Mercedes whom she had seen the night before when Duncan had crashed a party given by Jarius Bush, a known LP gang member, at the Knox Glen apartment complex (Knox Glen) in San Diego. Apparently Newsome had been with Duncan in her car that night when people in front of Bush's party had yelled "Lincoln" and had thrown rocks at the Altima and another car driven by Skyline gang member Kevin Word.

As they were driving the day of the shooting, Duncan saw Word in his car and followed him to a gas station still in Skyline territory where they parked and talked with Bernard Benford, another Skyline gang member. Benford got into Word's car and they arranged to meet Duncan and Newsome at a nearby park after Benford went home to get his gun. However, on the way to the park, a Chevrolet Malibu driven by Benjamin Oyeka passed Duncan going in the opposite direction. When the Malibu made a U-turn, Duncan pulled her car over to the side of the street and Oyeka pulled up next to her, with his passenger side next to her driver's side. According to Duncan, words were then exchanged between Newsome and the passenger whom she did not know, with Newsome being asked, "What's up blood. Where you from?" She took these words as a challenge to fight by the passenger whom she observed had a name or some writing cut into his hair on the back of his head. When she told him they were not from anywhere, he called them punks.

As the Malibu drove away, Newsome told Duncan that he knew the passenger Ontarion Dodson from playing football, that he went by the name "Lil Dad," and that Lil Dad would not do anything. Duncan waited on the side of the road until she saw Word and Benford drive by. Because Word was having some car problems, he and Benford got into the back seat of Duncan's car and Newsome told them about what had just happened with the occupants of the Malibu. Duncan then began driving around. Within minutes they saw the Malibu make a U-turn at a stoplight and begin to follow them. Duncan panicked when she noticed there were now more people in the Malibu and started turning into side streets to try to lose the Malibu. At some point, she quickly pulled into a cul-desac so Newsome and Benford could switch places to enable Benford to be in the front seat in case he needed to use his gun. Newsome was now sitting behind Benford with Word sitting behind Duncan and S.H. sitting between Word and Newsome.

Although the people in the cars lost sight of each other for a while, the Malibu eventually began following Duncan again and a high speed chase ensued with Duncan ending up on the northbound 805 freeway. She estimated she was going 90 to 100 miles per hour as she weaved in and out of traffic with the Malibu following her. As her Altima approached the exit for the 94 east freeway, the Malibu pulled behind it and both cars got onto the off ramp for that freeway, which split into two lanes. As Duncan pulled into the right lane, the Malibu got into the left lane and pulled up alongside of her car. Several shots were then fired from the Malibu at Duncan's Altima.

Duncan exited the 94 freeway eastbound at College Avenue after discovering that Newsome had been hit. Before Duncan pulled into a parking lot and made calls to Newsome's mother and 911, Benford got out of the Altima and ran off. The others then took Newsome out of the car and laid him down, which was where he was found when responding police officers and paramedics arrived. Newsome died as a result of the bleeding from the gunshot wound to his neck.*fn3

An examination of the Altima revealed that the rear driver side window had a hole through it and was shattered and there was a dent in the door below the window. A projectile was found between the panels of the door. The bullet recovered from Newsome's neck was subsequently determined to have been fired from a revolver.

Later in the prosecution case, during Bush's redirect testimony, the jury was played a widely circulated rap CD made by LP gang members called "Fuck Skyline," which included lyrics about guns, shootings, body bags, toe tags and other murder related topics against Skyline gang members.

Detective Pendleton also testified again regarding whether the freeway shooting was gang related. He opined that if an LP member is in a car with at least one other LP member, and that car chases a car filled with perceived Skyline gang members, and someone shoots from the LP car and kills someone in the Skyline car, then the crime benefits the LP gang by building up its name and showing it was not to be messed with. Pendleton further testified about several letters Price had written to other LP gang members while he was in jail pending trial, telling them that "they trying to really fuck me off over these lying ass niggas" and to "put clamps on that nigga's lips." Price also told other LP gang members in the letters that he thought it was funny that "those guys are testifying against [him]" and that it was not "ha-ha [funny], but 'that's BS.' " On cross-examination, Pendleton conceded that there was no bragging in the letters about any of the crimes for which Price was on trial and that he basically said he "didn't have nothing to do with that shit."

The Defense Case
2. The Accomplice Testimony

Bush, who had been an adult and LP gang member with the moniker "Tiny Sharp" at the time he was arrested on October 30, 2002 in connection with Newsome's murder, also testified as part of an agreement to cooperate he had entered into with the the's office. Bush claimed the "Green Demons" clique of LP and stated that Price was in the "Murder Gang" clique. Bush explained that Bay Vista and Knox Glen were in LP territory and that Bay Vista was the social hub of LP where gang members usually met.

Before testifying about the specific events leading up to the freeway shooting, Bush provided general information about the rivalry between the LP and Skyline gang, discussed the CD called "Fuck Skyline" that had been put together by the murder gang clique, and talked about cruising Skyline territory trying to cause trouble between LP and Skyline. He agreed that some of the incidents involved guns and shootings, and that afterwards the gang members would brag about shooting people at Bay Vista to take credit and earn respect in the gang for "putting in work." Bush said that Price bragged to him sometime before he was locked up on this case about having participated in a shooting at a liquor store. Bush considered himself "a rider but not a shooter" in incidents involving Skyline.

Bush testified he was not aware of any altercation between LP and Skyline gang members at his September 22, 2001 party at Knox Glen or of any incident involving an Altima outside the party. The next afternoon, Bush went to the mall where he hung out with Oyeka, Dodson and others, but not Price. Bush later left the mall with several car loads of people to go to Kennedy Park, where LP gang members generally hung out, and where a big party was then taking place. Oyeka, Dodson and Price, among others, were with him at the party. Eventually, they decided to go to Bush's cousin's house in Oyeka's car to meet up with some other girls. When that fell through, Oyeka drove Price to a friend's house, but he returned to the car after talking with the friend and Oyeka drove Bush and Price to Knox Glen where they got out in front by the main gate. Although Bush and Price planned to just hang out and later go over to Bay Vista, Bush walked up to his house while Price stayed at the gate. After a short time, Bush walked back out to the main gate and saw Price talking with his sister Ashley, Mercedes, and two other girls. Just then, Oyeka and Dodson came speeding into the entrance in the Malibu. Bush estimated it was only about 15 minutes since Oyeka had dropped him and Price off at the main gate of Knox Glen.

Bush said he and Price hopped in the back seat "because [he] heard . . . Dodson telling . . . Price that he wanted us to come with him so that he could get his back while he catched a fade with some rival gang member from Skyline." Dodson explained that they had just seen the people who had challenged him to a fight and they had gotten into a shouting match and "banging on each other," throwing gang signs. Although he was "pumped up," Bush "was just keeping calm."

Bush then described the Malibu coming up behind the Altima at a stoplight and Oyeka following it through back streets in the area. At some point Bush saw the front passenger and the back right passenger switch seats. He also confirmed seeing Jones, and Jones starting to follow their car as they looked for the Altima. Bush said the people in the Malibu were "kind of anxious like [and a] few people might have said, 'let's get them.' " He denied having a gun with him, ever knowing that Dodson or Oyeka carried a gun, and did not know whether Price had a gun with him in the car.


Dodson, who was 15 years old at the time of the freeway shooting, testified, like Oyeka and Bush, pursuant to an agreement of cooperation entered into with the the's office. Before pleading guilty to voluntary manslaughter, Dodson had spent some time in custody in juvenile hall and from the time he was released until the time of trial had been living outside of San Diego County. Although Dodson had family members who were LP gang members, he denied he was one. Before turning to the events leading to the freeway shooting, Dodson explained the location of Bay Vista, Kennedy Park and Knox Glen, which were generally across the street and about a minute or two walk away from each other, and their relationship to LP.

Although the jurors returned verdicts finding Price guilty of Newsome's murder and shooting into a vehicle and that the crimes were committed for the benefit of a criminal street gang, they did not find that Price was the shooter.