Filed 8/20/14 P. v. Flenory-Davis CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C072000

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F04481)

         v.

JAIVONNE FLENORY-DAVIS,

                   Defendant and Appellant.




         A jury found defendant Jaivonne Flenory-Davis guilty of first-degree murder, with
the personal and intentional discharge of a firearm, and for the benefit of a street gang
(Guttah Boys/Stick-Up Starz/G-Mobb), and attempted murder with the personal and
intentional use of a firearm, causing great bodily injury, and for the benefit of a street
gang. (Pen. Code, §§ 186.22, subd. (b)(1), 187, subd. (a), 664/187, 12022.53, subds. (b)-




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(d).)1 A strike allegation (first degree burglary) had been bifurcated but was never
adjudicated, therefore we deem it to have been dismissed. The trial court sentenced
defendant to prison; the details of the sentence are discussed in part IV, post. Defendant
timely appealed.
        On appeal, defendant contends: (1) no substantial evidence corroborated the
testimony of an accomplice; (2) the trial court misinstructed on the “kill zone” theory in
two respects; (3) the prosecutor committed misconduct in argument; (4) the trial court
made two sentencing errors; and (5) the trial court erred in not awarding actual custody
credits. The People concede the sentencing claims and, after reviewing the record,
defendant now agrees the custody credits were properly calculated. Because we agree
that the trial court erred in sentencing defendant to the agreed-upon sentence, we accept
the concessions. We disagree with defendant’s other contentions of error. We shall
modify the judgment and remand for resentencing on one count.
                                          FACTS
        On July 11, 2010, a gang fight broke out at a party for teenagers at a rented venue
on Auburn Boulevard, and two wholly innocent bystanders were shot, 14-year-old
Lanajah Dupree, who died at the scene, and C.M., an older teenage girl who survived.
        The defense theory was to concede the shootings were heinous and unjustified, but
contend that defendant was innocent, and Nikko Alexander, the alleged accomplice,
blamed defendant to avoid Alexander’s own liability for shooting the girls.
        A number of teenagers went to a club party advertised online. There were security
guards present. At some point, people started running and yelling “fight” and “gun” and
then pepper-spray was deployed; when everyone rushed outside, gunshots were fired. A
friend saw Dupree die on the ground near the doorway.


_____________________________________________________________________
1   Further undesignated statutory references are to the Penal Code.

                                              2
       Alexander testified his girlfriend told him she was at the party, and he called
defendant (“Jay”) and they went together to the party, with Alexander driving.
Alexander’s car was white with a black fender and gray bumper. Alexander did not have
a gun in the car and did not know defendant had one. He parked at the far end of the
nearby Tradewinds Motel, and they walked to the club. Defendant was wearing a long
black T-shirt, extending below his pants pockets. After paying a fee, Alexander was
“patted down” by security before he could enter. At some point, Alexander saw some
men from Gunz-Up, a rival gang, in the club. Alexander was affiliated with the Guttah
Boyz gang in Sacramento. He disclaimed knowledge of any “beef” with the Gunz-Up
gang. The Gunz-Up members asked defendant where he was from, to which he
responded “G-Mobb.” This led to a fight, in which Alexander and defendant were
overmatched by 10 to 15 Gunz-Up members, and there were no “south area” affiliates
(from Guttah-Boyz, Stick-Up Starz, or G-Mobb gangs) to assist the duo. Eventually they
were pepper-sprayed, Alexander’s girlfriend pushed him through and out of the club, and
as he ran up the driveway of the hotel toward his car, he saw defendant coming back from
the same direction. Alexander followed defendant toward the club, thinking they were
going to fight, and then defendant started shooting. Defendant fired about six times, but
Alexander did not see where he was shooting. Alexander ran to the car and drove off
with defendant. He testified that he asked defendant no questions, was afraid, and just
wanted to get away. When Alexander learned two girls had been shot--one fatally--he
felt responsible, though he had been “surprised and shocked” defendant had a gun and
could not have stopped him.
       The jury was shown a video recording from the motel and Alexander testified the
car seen therein was his car. He identified himself and defendant as the two people seen
leaving the car and walking toward the club; he was wearing a white shirt and defendant
had on a black shirt. The recording later shows Alexander returning to the car; he
testified that he returned to leave his jacket in the car.

                                                3
       The video, which we have reviewed, is not of good quality. It shows a white car
with a dark fender and bumper park (backing in) on the side of the motel farthest from
the club. Two men, in white (Alexander) and black (defendant) T-shirts, respectively,
walk toward the club. Alexander returns to the car and runs back to the club, again
returns to the car, then again runs back toward the club. Several minutes after that,
defendant runs to the car, followed by Alexander, but before Alexander even reaches the
car, defendant runs back past him towards the club and Alexander turns and follows.
Soon after, both run back to the car and quickly leave the parking lot.
       Alexander admitted that when he first spoke to the police, he lied and said he left
the party before the shooting began, and he may have said he was by himself. The
second time he spoke to the police, with the assistance of counsel, he told the truth,
because he did not want to “do life” for something defendant did, and his parents had
urged him to be honest. He testified that the third time he spoke with the police, an
investigator, the prosecutor, and his father were present, and he told the truth that time,
too. He agreed to testify truthfully in exchange for an eight-year prison sentence, based
on his plea to being an accessory to murder, with a gang enhancement.
       The jury watched a DVD recording of the third interview between Alexander and
the police. In it, Alexander said defendant shot toward the club, where the people from
the club were standing, shooting into the crowd, but Alexander could not see any of the
people they had fought with. He heard “probably” eight shots. After the shooting made
the news, defendant told Alexander not to say anything.
       Bianca B. testified she heard Alexander being confronted by another person at the
party, which made Alexander look scared. After the shooting, she saw Alexander
running and jumping over a gate between the motel and a car dealership. M.M. testified
she felt tension when some men in the club pointed to another man and used profanity, so
she and her friends went to tell a guard, but then people started to run out of the club.
Later, while outside the club, she heard seven or eight gunshots, and one of her friends

                                              4
yelled “gun.” A Black man wearing a black shirt, bandana, and “dreads” ran past her.
She told the police the man had a black semi-automatic, but explained that is what she
learned from her friend Skye.
       Skye B. saw several males confront Alexander in the club, and they “swarmed”
him, so she and her friends got scared and went to tell a guard. They ran out towards a
car dealership and saw two “boys” running toward the motel. Then one ran back,
carrying a gun, then Skye B. heard multiple gunshots fired soon after. The man with the
gun was wearing a dark shirt, a bandana, and had short dreadlocks, and she described him
to an officer as Black, with a “big black shirt” and “blonde tips” on his dreadlocks. The
gun was a black handgun. She was not “a hundred percent sure,” but defendant had a
“familiar face” to that of the man with the gun. She had picked him out as the shooter in
a live line-up before trial, but she had not been positive then, either, writing that “I’m not
sure but I think No. 2 [defendant] was the person” with the gun. A detective testified that
defendant had the same general appearance as the description of the shooter that emerged
from Skye B. and the other witnesses--a Black male, about 5’10” and 150 pounds, with
dreadlocks that had colored tips.
       J.G. was Alexander’s girlfriend. She was at the club that night and saw him “in
the middle of a lot of boys,” grabbed him, and then the guards “pepper sprayed.” She
saw defendant, but could not remember whether he, too, was fighting in the club.
Alexander did not discuss the shooting with her.
       One of the guards testified that about eight to 10 guards were working that night.
He and another guard broke up the indoor fight, and after the other guard used pepper
spray, “everybody began to run outside.” While he was standing behind his patrol car, he
heard gunshots coming from the front of the car, and when he lay on the ground, he could
see the shooter’s legs, and then saw the shooter--a Black man with braided hair--run
towards an alleyway, with another Black male. Another guard testified he saw “about
five young men beating and kicking two other men”--all Black-- and tried to stop the

                                              5
fight, and eventually used his pepper spray. Outside, he saw muzzle flashes, about two or
three into the air, and four of five directed lower, where the bullets ricocheted off the
ground toward the building. He saw three to four Black males running from where he
had seen the flashes. The one he thought was the shooter had a black T-shirt and
“dreadlocks about shoulder length.”
       Dupree was shot through her heart. A criminalist examined six cartridge casings
and a bullet. The casings were all fired from the same gun, a nine-millimeter gun,
consistent with the bullet. That bullet was found just inside the front door of the building,
and the six casings had been grouped together on the ground, showing the shooter was
stationary.
       Detectives were told by several witnesses that they had heard the name “Nikko
Alexander” spoken at the party, and they learned of a white car with black front fender
involved with the shooting. Alexander’s photograph was used to confirm his presence at
the club. They interviewed him and seized his car. During the first interview, Alexander
identified “Jay” as the shooter, and the description the detectives developed was that of a
Black male, about 5’10”, with dreadlocked hair, wearing a black T-shirt. Alexander’s
relatives identified a photograph of defendant as Alexander’s friend “Jay.” The
detectives arranged a live line-up which they showed to nine witnesses, but only one,
Skye B., picked defendant as the shooter. Alexander’s and defendant’s fingerprints were
found in Alexander’s car.
       A gang expert testified defendant was a member of the G-Mobb street gang, which
is affiliated with the Starz or Stick-Up Starz and Guttah or Guttah Boys subsets. In 2007
to 2008, some members of the Guttah Boys broke away and called themselves Gunz or
Gunz-Up and allied with the local Bloods, who dominate Sacramento gangs, and are G-
Mobb enemies. Defendant was a member of the Starz-Up subset of G-Mobb, but lived in
Blood territory, his house was shot up once, and he also had been shot in the leg while in
his neighborhood. Alexander is also a member of Starz-Up. The shooting at the club

                                              6
was gang-related. The failure to respond to a challenge or disrespect by a rival gang
member would cause a loss of face, hence, a challenged gang member “must retaliate” to
maintain his status.
                                       DISCUSSION
                                              I
                                 Accomplice Corroboration
       Defendant contends insufficient corroborating evidence supports Alexander’s
testimony, as an accomplice to the crimes. We do not agree.
       The testimony of an accomplice must be corroborated “by such other evidence as
shall tend to connect the defendant with the commission of the offense; and the
corroboration is not sufficient if it merely shows the commission of the offense or the
circumstances thereof.” (§ 1111.) Testimony of an accomplice adverse to the defendant
must be viewed with caution. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) The jury
was instructed to apply these rules to Alexander’s testimony.
       “Corroborating evidence may be slight, entirely circumstantial, and entitled to
little consideration when standing alone. [Citations.] It need not be sufficient to establish
every element of the charged offense or to establish the precise facts to which the
accomplice testified. [Citations.] It is ‘sufficient if it tends to connect the defendant with
the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’”
(People v. Valdez (2012) 55 Cal.4th 82, 147-148; see CALCRIM No. 335.)
        The gist of defendant’s contention is that Alexander was the only witness who
identified defendant as the shooter. This is not fully accurate.
       Although Alexander may have been the only witness who testified directly and
positively that defendant was the shooter, other evidence corroborated that testimony.
Skye B. saw defendant with a gun before the shooting, and she thought he was the
shooter. An identification need not be certain to be of probative value. (See People v.
Gonzales (1968) 68 Cal.2d 467, 472 [“Lack of positiveness as to the man’s identity went

                                              7
to the weight and not to the competency of the evidence”]; People v. Young (1894) 102
Cal. 411, 413.) The motel video recording shows a Black man running in a black T-shirt
after the shooting, and one guard testified the shooter was Black, wearing a black T-shirt
and had dreadlocks, which matches defendant’s description, and that the shooter ran off
with another Black man, presumably Alexander. Another guard also testified he thought
the shooter was a Black man wearing a black T-shirt and long dreadlocks. Defendant’s
fingerprints were found in Alexander’s car, corroborating Alexander’s testimony that
defendant went to the club with Alexander. Several witnesses testified about the gang
challenge and fight that provided defendant a motive, in that both he and Alexander are in
the same gang, and had been attacked by rival gang members, calling for retaliation, in
the culture of criminal street gangs as described by the gang expert.
       In short, there is sufficient evidence in the record to corroborate Alexander’s
testimony identifying defendant as the shooter.2
                                             II
                                   Kill Zone Instruction
       Defendant raises two challenges to the “kill zone” instruction; first that the term is
inflammatory, and second that the term was not adequately defined. We reject both
contentions.
       A. Use of Term “Kill Zone”
       Defendant first contends the very term “kill zone” as used in the pattern
instruction (CALCRIM No. 600) is so inflammatory that its use was prejudicial. He




_____________________________________________________________________
2 To the extent defendant recasts his claim as a denial of federal due process, “the
corroboration requirement itself is a matter of state law, not due process.” (People v.
Felton (2004) 122 Cal.App.4th 260, 273.) In any event, we find adequate corroborating
evidence, described above. Therefore we reject defendant’s alternative federal claim.

                                              8
acknowledges precedent to the contrary, but contends it is not binding on this court and in
any event he wishes to preserve the issue for federal review.
         The modified pattern instruction as given in this case was as follows:

                 “A person may intend to kill a specific victim or victims and at the same
         time intend to kill everyone in a particular zone of harm or ‘kill zone.’ In order to
         convict the defendant of the attempted murder of [C.M.], the People must prove
         that the defendant not only intended to kill a specific victim or victims, but also
         either intended to kill [C.M.], or intended to kill everyone within the kill zone. If
         you have a reasonable doubt whether the defendant intended to kill [C.M.] or
         intended to kill [C.M.] by killing everyone in the kill zone, then you must find the
         defendant not guilty of the attempted murder of [C.M.].”
         Defendant acknowledges his claim is contrary to the holding in People v. Campos
(2007) 156 Cal.App.4th 1228. Campos held: “CALCRIM No. 600 merely employs a
term, ‘kill zone,’ which was coined by our Supreme Court . . . and referred to in later
California Supreme Court cases. [Citation.] It does not invite inferences favorable to
either party and does not integrate facts of this case as an argument to the jury.” (Id. at p.
1244.)
         We agree with Campos. The pattern instruction would not tend to inflame the
jury, invite it to draw inferences favorable to either party, characterize the evidence
adversely to defendant, or tell the jury that a kill zone had been created. Indeed, our
Supreme Court has approved the trial court’s discretion to use the term “kill zone” where
factually appropriate. (See People v. Stone (2009) 46 Cal.4th 131, 137-138 (Stone).)
Therefore, we reject defendant’s contention that “kill zone” was improperly used at his
trial.
         B. Definition of “Kill Zone”
         Defendant next contends that the term “kill zone” was not adequately defined by
the instructions given to the jury. We disagree.
         First, our Supreme Court in Stone, supra, 46 Cal.4th at pages 137-138 and
People v. Smith (2005) 37 Cal.4th 733 at page 746, has held “kill zone” liability reflects a


                                               9
reasonable factual inference, not a technical legal doctrine, and does not require any
special jury instruction. (See also People v. Bland (2002) 28 Cal.4th 313, 331, fn. 6.)
       Second, the pattern instruction (CALCRIM No. 600) told the jury the kill zone is
the area in which defendant intended to kill everyone: “A person may intend to kill a
specific victim or victims and at the same time intend to kill everyone in a particular zone
of harm or ‘kill zone.’ ” This defined “kill zone” as the “zone of harm” in which
everyone is targeted. No further definition was necessary.
                                              III
                                 Prosecutorial Misconduct
       Defendant contends the prosecutor committed misconduct during argument, by (1)
vouching for a witness, (2) misstating a material fact, and (3) appealing to the jury’s
sympathy; he further contends the lack of trial objection should not result in forfeiture
because there was no rational tactical reason for trial counsel not to object, and for other
jurisprudential reasons we need not detail.
       We conclude each of these claims is forfeited for lack of objection. (See People v.
Samayoa (1997) 15 Cal.4th 795, 841; People v. Kipp (2001) 26 Cal.4th 1100, 1130.) We
discuss the claims nonetheless, as defendant argues ineffective assistance of trial counsel.
       A. Vouching
       In closing argument, defense counsel referred to a Sherlock Holmes story about a
dog that did not bark in the night, pointing out Alexander did not tell his girlfriend that
defendant was the shooter.3 In rebuttal, the prosecutor replied as follows:



_____________________________________________________________________
3 Defense counsel referred to this passage of “Silver Blaze”: “[Inspector Gregory]: ‘Is
there any other point to which would you would wish to draw my attention?’ [¶]
“[Holmes]: ‘To the curious incident of the dog in the night-time.’ [¶] ‘The dog did
nothing in the night-time.’ [¶] “ ‘That was the curious incident,’ remarked Sherlock
Holmes.” (2 Baring-Gould (2d ed. 1976) The Annotated Sherlock Holmes, p. 277.)

                                              10
               “Also, the idea that Nikko Alexander would tell his girlfriend that he saw
       [defendant] do that shooting. It’s my opinion that that’s not particularly something
       that you would expect to see these guys do, that these gang members would get to
       the point there they come home and say, Oh, I just saw Jay and he shot somebody
       up at the club. You are not going to just come right out and tell on your buddy
       like that.” (Emphasis added.)
       Defendant claims the phrase “It’s my opinion,” emphasized in the above quote,
was impermissible vouching. Vouching occurs when a prosecutor expresses personal
belief about evidence, such as whether or not a witness is telling the truth, because that
suggests the prosecutor is basing the opinion on facts outside the record. (See, e.g.,
People v. Huggins (2006) 38 Cal.4th 175, 206-207; United States v. Kerr (9th Cir. 1992)
981 F.2d 1050, 1053.) In the above passage, the prosecutor made an argument based on
the trial evidence; the argument was that Alexander would not be inclined to tell his
girlfriend that defendant was the shooter, given his and defendant’s gang affiliations and
the circumstances surrounding the shooting. Although the prosecutor’s opinion of the
inference to be drawn from the evidence was not relevant, and the prosecutor should not
have expressed his personal opinion in the manner that he did, he did not suggest any
evidence outside the record and he did not vouch. Counsel was not ineffective for failing
to object.
       B. Misstating Facts
       The prosecutor argued Skye B. identified defendant as the shooter and picked him
out of the lineup. The defense argued Skye B. was mistaken, and wrongly identified
others in the lineup as being present at the club. In rebuttal, the prosecutor conceded
Skye B. was not sure, but thought defendant was the shooter, “And that ID comes from
someone who has got nothing to gain, and she is right on point. She is right on point.
That’s somebody, not Nikko Alexander, that IDs him.”
       On appeal, defendant contends the prosecutor misstated the facts, because of
Skye B.’s uncertainty about her identification.




                                             11
       The jury was instructed that the arguments of counsel were not evidence, and to
consider various factors in evaluating identification testimony, including the degree of
certainty of the identification. We presume the jury followed these instructions. (See
People v. Sanchez (2001) 26 Cal.4th 834, 852.) Further, it was within the jury’s
bailiwick to determine whether Skye B.’s identification of defendant was sufficiently
certain to be probative. (See People v. Gonzales, supra, 68 Cal.2d at p. 472.) The
prosecutor merely presented one plausible interpretation of Skye B.’s testimony.
       C. Appeal to Sympathy
       On appeal, defendant faults the prosecutor for appealing to the sympathy of the
jury, by referring to the tragic death of Dupree.
       Assuming for the sake of argument any improper appeal to sympathy was made,
the defense tactic, expressed both in opening statement and in closing argument, was to
concede that the crimes were heinous and unjustified, but to argue that Alexander, not
defendant, committed them.
       Therefore, it was rational for the defense to refrain from objecting to argument
emphasizing the nature of the crimes. In fact, it may have bolstered the defense, by
strengthening Alexander’s motive to lie to and blame defendant. Because the record
shows a rational tactical reason for not objecting, the claim of misconduct must be
rejected on this record. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
                                             IV
                                     Sentencing Claims
       Defendant raises two sentencing claims, which the People concede. We agree
with the parties.
       The trial court sentenced defendant as follows: count one, murder of Dupree, 25
years to life, plus 25 years to life for the firearm enhancement, plus 10 years for the gang
enhancement; count two, attempted murder of C.M., life--with a minimum parole period
of seven years--plus 25 years to life for the firearm enhancement, plus 10 years for the

                                             12
gang enhancement. The trial court then characterized the total as a 20-year determinate
term, “plus a consecutive indeterminate term of 82 years to life.”
       Defendant first contends the life sentence, with a seven-year minimum parole
eligibility date, is unauthorized for count two, because the information did not charge,
and the jury did not find, that the attempted murder was willful, premeditated and
deliberate, therefore the only lawful sentence would be to select from the triad of five,
seven, or nine years, as provided by section 664, subdivision (a). The People agree,
implicitly ascribing the problem to an apparent pleading oversight by the prosecutor. We
accept the concession of error. (See People v. Lee (2003) 31 Cal.4th 613, 616 [pleading
and proof required in order to impose life term for attempted murder].)
       The People contend the matter must be remanded for the trial court to exercise its
discretion to choose a lawful sentence on count two, but in his briefs, defendant asks this
court to “correct” the unauthorized sentence.
       While we have the authority to modify a sentence under appropriate circumstances
(§ 1260), we agree that in this case remand is necessary because we cannot simply
“correct” this particular sentence as suggested by the Attorney General. Here, the trial
court did not exercise its discretion to select from among the available lawful sentences,
and the failure to exercise sentencing discretion necessarily is an abuse of such discretion.
(See People v. Carmony (2004) 33 Cal.4th 367, 374.)
       Defendant also contends it was improper to impose the 10-year gang
enhancements, instead of 15-year minimum parole eligibility terms, based on the
imposition of life sentences. The People agree as to count one, but point out that because
of the concession that no indeterminate term is authorized for count two, the 10-year
enhancement need be stricken only as to count one, in lieu of which a 15-year minimum
parole eligibility date should be imposed (see § 186.22, subd. (b)(5)). We agree. (See
People v. Lopez (2005) 34 Cal.4th 1002, 1004; People v. Louie (2012) 203 Cal.App.4th
388, 396.)

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       We modify the sentence to strike the 10-year gang enhancement on Count 1, and
impose a 15-year minimum parole eligibility period for count one. The 10-year gang
enhancement remains intact as to count two, to be appended to the determinate term later
selected by the trial court after resentencing on that count.
                                              V
                                      Custody Credits
       Defendant contends the trial court improperly denied him actual custody credits
towards his sentence, and variously asserts those credits amount to either 544 or 546
days. The People agree with the lower figure. On further review of the record, defendant
also agrees with the lower figure.
       The parties agree, consistent with the calculations in the probation report, that
defendant was entitled to 544 days of actual credit, but no conduct credit because
defendant was convicted of murder (see § 2933.2), and because that is the figure that
appears on the determinate sentencing abstract, it appears the trial court made the correct
credit award, albeit not on the record at sentencing as required. At the resentencing
hearing, the trial court should state the credit award on the record.




                                             14
                                     DISPOSITION
       The judgment as modified as described in this opinion and the cause is remanded
to the trial court for resentencing on count two consistent with this opinion. Following
resentencing, the trial court shall prepare and forward to the Department of Corrections
and Rehabilitation certified copies of amended determinate and indeterminate abstracts of
judgment reflecting our modifications and the new sentence on count two.



                                                       DUARTE                , J.



We concur:



      BLEASE                , Acting P. J.



      MURRAY                , J.




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