Background
Taeviyon Wandick and Denell James Martray King were convicted by a jury of multiple offenses arising from the May 5, 2022 shooting death of Daniell Williams on a Bakersfield highway. The convictions included first degree premeditated murder, shooting at an occupied motor vehicle, active participation in a criminal street gang, conspiracy to commit murder, and gang conspiracy. The jury found true various gang and firearm enhancements, and the trial court found each defendant had suffered a prior serious felony conviction constituting a strike. Each defendant was sentenced on count 1 to life without the possibility of parole plus additional terms, with sentences on remaining counts imposed and stayed pursuant to section 654.
On appeal, defendants raised numerous challenges including the denial of bifurcation motions, admission of gang evidence, sufficiency of the evidence on intent to kill and gang-related findings, instructional errors, and sentencing errors. The People conceded that the target offense alleged for the gang conspiracy conviction was unsupported by the evidence and that the sentences on count 2 violated due process because they were calculated based on an alternate penalty provision that was neither pled nor proved.
The Court’s Holding
The Court of Appeal agreed with the People that the gang conspiracy convictions on count 5 were unsupported by substantial evidence that defendants committed the charged target offense, a violation of section 26100, subdivision (c). The court modified the verdicts to reflect convictions for gang conspiracy based on the lesser included target felony violation of section 26100, subdivision (d), and vacated the sentences on count 5. The court rejected Wandick's argument that modification was improper because section 26100, subdivision (d) is a misdemeanor, explaining that the offense is a wobbler that may serve as a target felony for gang conspiracy.
The court also agreed that the sentences on count 2 must be vacated because the alternate penalty provision set forth in section 186.22, subdivision (b)(4) was neither pled nor proved, violating due process. Additionally, the court held that imposition of both the gang enhancement and firearm enhancement on count 2 violated the dual use prohibition in section 12022.53, subdivision (e)(2). The court remanded for resentencing on counts 2 and 5, providing guidance that only one enhancement may be imposed on count 2 as to each defendant.
The court rejected defendants' remaining contentions, including challenges to the sufficiency of evidence on intent to kill, the drive-by murder special circumstance, admission of gang evidence, denial of bifurcation, and instructional errors. The court held that substantial evidence supported the jury's findings that Wandick was the shooter and that both defendants acted with intent to kill. The court also held that active participation in a criminal street gang is not a lesser included offense of gang conspiracy because gang conspiracy may be committed by merely benefitting from felonious conduct without promoting, furthering, or assisting it.
Key Takeaways
- An appellate court may modify a gang conspiracy verdict to reflect a lesser included target offense when the charged target offense is unsupported by the evidence, even if the lesser offense is a wobbler that may be punished as either a felony or misdemeanor.
- A defendant has a due process right to fair notice of any sentencing allegation that will increase punishment, and an alternate penalty provision must be pleaded and proved before it may be used to calculate a sentence.
- Section 12022.53, subdivision (e)(2) prohibits imposition of both a gang enhancement and a gang-related firearm enhancement unless the defendant personally used or discharged a firearm in the commission of the offense, and this prohibition applies even when the jury's findings on other counts might suggest personal use.
- Substantial evidence supported the jury's finding that defendants acted with intent to kill based on their coordinated pursuit of the victim, the close-range shooting, and the location of bullet holes and injuries, even without direct evidence of intent.
- Active participation in a criminal street gang is not a lesser included offense of gang conspiracy because gang conspiracy may be committed by benefitting from felonious conduct, which is not an element of active participation.
Why It Matters
This opinion clarifies the scope of appellate modification authority under sections 1181 and 1260 in the context of gang conspiracy convictions, confirming that a wobbler offense may serve as a target felony for gang conspiracy even when the charged target offense is unsupported. The decision also reinforces due process requirements for pleading and proving alternate penalty provisions, and provides guidance on the dual use prohibition for gang and firearm enhancements.
The court's analysis of substantial evidence for intent to kill and gang-related findings illustrates the deferential standard of review and the types of circumstantial evidence that may support such findings, including coordinated conduct, social media evidence of gang associations, and expert testimony regarding gang rivalries. The opinion also distinguishes between active participation and gang conspiracy for purposes of lesser included offense analysis.
Read the full opinion (PDF) · Court docket