P. v. Houston CA3

Filed 3/22/13 P. v. Houston CA3 NOT TO BE PUBLISHED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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C068103

Plaintiff and Respondent, (Super. Ct. No. 09F03413)

v.

ROY LEE HOUSTON,

Defendant and Appellant.

In three separate instances, defendant Roy Lee Houston committed gang related shootings. In one of those instances, he killed Donald McCall. Convicted by jury of murder with a special circumstance, as well as various assaultive crimes, with enhancements, defendant appeals. He contends: (1) the trial court erred by refusing to instruct the jury on accomplice testimony and (2) there was insufficient evidence to sustain the gang enhancement as to two of the crimes. We conclude: (1) any error in failing to instruct the jury on accomplice testimony was harmless because there was evidence corroborating that testimony and (2) the expert testimony was sufficient to sustain the gang enhancement.

1

FACTS We recount the facts in the light most favorable to the verdicts. (See People v. Snow (2003) 30 Cal.4th 43, 66.) Defendant committed his crimes on three separate dates in about a six-week period in 2005. February 17, 2005 There were gang tensions between gang members from the Manors in North Sacramento and the Del Paso Heights Bloods, defendant‟s gang. Three men from the Manors (Donald McCall, Joseph McCoy, and Randall Hudson) were “stunting,” which means they were showing off by driving slowly with the doors open and playing music. Defendant shot at the car, killing McCall. Later that day, defendant went to Manuel Lutin‟s house and gave Lutin the gun he used to shoot at the men from the Manors to put in Lutin‟s safe. A couple of weeks later, defendant retrieved the gun from Lutin. March 13, 2005 Defendant saw two men from the Manors (Donald Spivey and Clarence Daniels) in a car. Defendant fired five shots at the car, using the same gun he used to kill McCall. He returned the gun to Lutin. March 31, 2005 Kenneth Bell, who defendant believed was a Crips gang member from Texas, intervened in a fight between Bell‟s female cousin and another female. Defendant, who was wearing red, was offended by the intervention because he wanted to videotape the fight. Defendant said, “[H]ome boy, you not doing nothing.” But Bell persisted in taking his cousin away from the fight. Defendant pulled a gun from his pocket, pointing it at Bell. Seeing the gun, Bell told defendant that he had no problem with defendant. Bell went to his car, and, as Bell drove away, defendant fired two shots at the car.