Filed 9/9/26 P. v. Laster CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085438
Plaintiff and Respondent, (San Diego Super. Ct.
v. No. SCE414351)
RICKEY TYRONE LASTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Selena D. Epley, Judge. Affirmed.
Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene Sevidal, Assistant Attorney General, Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
Rickey Tyrone Laster was convicted by a jury of premeditated murder following a shootout at a gas station. The victim started a fistfight that ended when Laster was knocked to the ground. A few seconds later, the victim shot at Laster, who had retreated to his car where he had stashed his own gun. After an initial exchange of gunfire caused the victim to stumble backwards and fall down, Laster shot him multiple times at close range.
Laster, who does not dispute that he killed the victim, challenges his conviction on three grounds. First, he claims there was not enough time to premeditate the killing, nor was there sufficient evidence that he shot the victim in anything other than a spontaneous response. But premeditation can occur in mere seconds, and several aspects of the killing indicate that Laster exhibited this state of mind. Second, he asserts that the trial court erroneously admitted evidence of his affiliation with a motorcycle club at the time of the killing; however, this ruling was carefully circumscribed and not so irrational that it constitutes an abuse of discretion. Finally, Laster’s third allegation of error—that the prosecutor committed misconduct in misrepresenting the law during his closing argument—has been forfeited. Finding no reversible error, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND1 A jury convicted Laster of one count of first degree murder (Pen. Code, § 187, subd. (a)) and found true that he personally discharged a firearm to proximately cause Joseph Curtis’s death (id., § 12022.53, subd. (d)) during
1 In accordance with the standard of review that applies to a claim of insufficient evidence, we recite the facts of the offense in the light most favorable to the judgment. (People v. Morales (2020) 10 Cal.5th 76, 88 (Morales).)
3
a shootout at a San Diego area gas station in August 2022. He was sentenced
to a total term of 50 years to life plus two years.2 The killing occurred around 9:40 a.m. at a gas station. A few minutes earlier, Laster arrived at the gas station with Iliana F., a woman he was on a first date with. Laster was driving Iliana’s Mitsubishi SUV. Iliana had arranged to meet Curtis at the gas station so she could return his debit card that she had borrowed.
Shortly after Laster and Iliana arrived, the two men got into an argument that, as captured by a gas station security video, escalated when Curtis punched Laster twice in the face. The scuffle continued off camera and ended with Laster being knocked to the ground. Laster made his way back to the Mitsubishi where, unbeknownst to Iliana, he had stashed a handgun loaded with ten rounds. The video shows Curtis walking toward Laster as he sat in the SUV, pulling his gun, and shooting a round in the defendant’s direction.
Laster also fired at Curtis, which caused the victim to stumble
backwards out of the camera’s field of view.3 Approximately two seconds later, Laster disappeared off camera with his gun pointed in Curtis’s direction. Eleven seconds after he disappeared from the camera’s view— and less than a minute after he was punched—Laster was captured by the security camera walking back to the SUV and driving away. The physical
2 Laster was also convicted of one count of witness intimidation (Pen. Code, § 136.1, subd. (b)(1)), which is not at issue in this appeal. 3 The camera was pointed toward a bank of gas pumps. Curtis’s car was in front of gas pumps; the Mitsubishi was behind them. Because the view into the Mitsubishi was obscured, the camera footage does not reveal who fired first.
4
evidence established that Curtis fired only one round before his gun jammed, and that Laster fired all ten of his rounds in a downward direction toward the victim.
Several bystanders heard or saw at least some of the gunfight. Five witnesses said that Laster fired his rounds in two distinct bursts. Three witnesses recalled Laster shooting Curtis between four and seven times while approaching him after he stumbled. Two of these three witnesses stated that Curtis was shot multiple times from just a few feet away and that he did not appear to be holding a gun at that time. And one of these two witnesses told the jury that Curtis reached his arm up toward Laster before he was shot.
Curtis suffered nonfatal gunshot wounds to left knee and big toe and a fatal wound to his chest. The angle of the fatal shot was consistent with both (1) the position of Curtis’s torso when he fired at Laster as captured in the security video and (2) by being shot from above while sitting or kneeling on the ground. A forensic pathologist testified that the kill shot would have incapacitated Curtis within seconds, rendering him unable to walk or to reach up with his arm.
DISCUSSION
A. Sufficiency of the Evidence
1. Additional Background
Laster’s first date with Iliana came after he had tried for a month to meet her in person. In the early morning hours before the killing, the two spent time at the clubhouse of the 4 Horsemen motorcycle club, where Laster was a prospective member. Despite having only “low-level” responsibilities for the club, he told Iliana he would soon be its president. He frequently shared on social media images of himself in his black leather motorcycle vest
5
that had the club patch sewn on its back (his “cut”). He also sent Iliana one of these pictures before they met in person. The pair left the clubhouse around 7:00 a.m. because they had to drop Iliana’s daughter off at school and then return the debit card to Curtis.
For his part in the shootout, Laster claimed he acted in self-defense.
After being knocked down, Laster said he heard Curtis, whom he had never met, tell Iliana, “ ‘He looked at me crazy. I’ll fucking kill this guy. I’ll kill this [motherfucker].’ ” Laster told the jury that he wanted to drive away in the Mitsubishi, but Curtis was walking toward him with his gun drawn and was repeating his threats. According to Laster, Curtis fired first and he responded by shooting all his rounds blindly from behind the open driverside door of the SUV. He then ran over to where Curtis had fallen, saw the gun next to him, and drove off.
2. There was sufficient evidence of premeditation.
Laster does not dispute that he killed Curtis, but challenges the sufficiency of the evidence to establish premeditation. He claims there was not enough time for him to plan the killing, and that the eyewitnesses’ testimony was not reliable because portions of it contradicted facts otherwise conclusively established. Accordingly, he contends that the killing was necessarily a “rash, hasty response to being punched and chased with a gun” that lacks the characteristics of premeditation and deliberation. For these reasons, he requests that we either vacate his conviction or reduce it to voluntary manslaughter.
“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—
6
that Sis, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (Morales, supra, 10 Cal.5th at p. 88.) In applying this standard, we “ ‘ “ ‘presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” ’ ” (Ibid.)
First degree murder is an unlawful killing that is “willful, deliberate, and premeditated.” (Pen. Code, §§ 187, subd. (a), 189, subd. (a).) In this context, “ ‘[d]eliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance.” (People v. Koontz (2002) 27 Cal.4th 1041, 1080 (Koontz).) “The “ ‘true test’ ” of premeditation and deliberation “ ‘ “is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” (Ibid.)
Against this backdrop, we reject Laster’s contention that there was insufficient time for premeditation. The critical moment in the altercation occurred when Curtis stumbled backward out of the frame of the security camera. Just prior to that moment, Curtis pursued Laster, whom he said he wanted to kill, and then shot at him. If the jury believed Laster’s testimony that Curtis drew his gun and fired first, which is consistent with the security video footage, his theory of self-defense would have been reasonable if he had killed Curtis at that time. (See People v. Millbrook (2014) 222 Cal.App.4th 1122, 1138–1139 [“Millbrook’s testimony that Manoa pulled out a gun and that he thought Manoa was going to shoot him would have supported a finding of self-defense”].)
But that is not the only way—or even the most reasonable way—to view the evidence. For Laster, things changed once Curtis was repelled with a burst of gunfire that did not include the kill shot. It was reasonable to infer
7
that Laster knew Curtis had been rendered defenseless because he had been knocked from his feet and was no longer able to fire for any of several reasons supported by the evidence: because his gun was inoperable, because he had dropped it, or because he had suffered a nonfatal gunshot wound. A rational juror could find that it was in this moment when Laster, rather than trying to summon assistance or leave the scene, came up with a plan to kill Curtis while he had the upper hand. That this plan was hatched in the “matter of [a few] seconds” did not preclude a finding of premeditation. (People v. Brito (1991) 232 Cal.App.3d 316, 324; accord People v. Perez (1992) 2 Cal.4th 1117, 1127 [premeditation can occur in a “brief period of time”].)
As for whether premeditation actually occurred, we apply the approach our Supreme Court has “generally found sufficient to sustain” that finding. (Morales, supra, 10 Cal.5th at pp. 88–89, citing People v. Anderson (1968) 70 Cal.2d 15, 26–27.) We examine the record for three categories of evidence indicative of premeditation and deliberation: (1) planning activity, (2) motive to kill, and (3) a manner of killing consistent with this state of mind. (Anderson, at pp. 26–27.) Although this approach “does not ‘define the elements of first degree murder or alter the substantive law of murder in any way’ ” and is neither “normative nor exhaustive” (Morales, at p. 89), a finding of premeditation will generally be upheld “when there is evidence of all three types” or “at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)” (Anderson, at p. 27).
A review of the record reveals at least some evidence fitting into all three categories. Taking them in turn, we agree with Laster that there was no evidence of an overt plan to kill Curtis. But, as the People point out, the fact that Laster brought a gun to the gas station supports an inference that at some level, he “ha[d] considered the possibility” of a violent encounter.
8
(See People v. Lee (2011) 51 Cal.4th 620, 624, 636, italics added [planning established where defendant armed himself with a gun and killed a woman he unexpectedly met later]; accord People v. Cardenas (2020) 53 Cal.App.5th 102, 106, 122 [where defendant shot and killed a stranger, “the act of taking a loaded weapon [into] a restaurant is evidence of preparation and planning for involvement in a violent encounter”].)
There was also evidence fitting into the other two categories. Just before the critical moment, Laster was beaten up by Curtis in front of a woman he had just taken on a first date and whom he had tried to impress by inflating his stature in the motorcycle club. Thus, the evidence suggests Laster may have been motivated to kill Curtis not only because he had just been beaten up, but also because he wanted to protect his reputation in Iliana’s eyes. In addition, there were two aspects of the manner of killing that were consistent with premeditation: he fired multiple shots at Curtis while he was defenseless (People v. Silva (2001) 25 Cal.4th 345, 369), and shot at a vital part of his body from close range (Koontz, supra, 27 Cal.4th at p. 1082).
Finally, we are unpersuaded by Laster’s suggestion that sufficient evidence of premeditation was lacking because many of the eyewitnesses did not see the punches that Curtis threw or that he also possessed and first pulled out a gun. But some of the witnesses—including the ones who saw Laster shoot Curtis at close range—acknowledged they did not see the entire altercation, which would enhance their reliability and explain these perceived gaps in their testimony. More importantly, jurors could believe all, some, or none of a witness’s testimony and could choose what weight to give the testimony they believed. (CALCRIM Nos. 226, 301, 302.) That is to say, evaluating and weighing conflicting inferences to be derived from various
9
witnesses’ testimony are quintessential jury functions. Just because no one witness’s testimony paints an entirely comprehensive picture of the altercation does not mean that jurors could not conclude beyond a reasonable doubt that Laster premeditated the killing.
B. Evidence Code Section 352
1. Additional Background
Although no gang enhancement was alleged, the People sought to introduce evidence that Laster and Curtis were members of rival criminal street gangs to prove, among other things, motive and intent. This evidence included photographs of Laster in his motorcycle club cut while wearing red—which was believed to be the color that represented his gang—and while holding up four fingers. There were also pictures taken of inside the clubhouse, which was painted red. Laster opposed this motion on relevance and Evidence Code section 352 (section 352) grounds. In a ruling that spans nine pages of the reporter’s transcript, the trial court excluded this evidence.
Over Laster’s objections, however, the court found that evidence of his affiliation with the motorcycle club, including the pictures of him in his cut, had “some relevance” and thus could be admitted so long as it did not suggest the club was a criminal street gang. Accordingly, the court went through the proffered photographs of Laster one-by-one and excluded those it thought might be unduly prejudicial. The parties stipulated to the admission of six photos from a search of the clubhouse.
During voir dire, which occurred before the court finalized its ruling on the admissibility of this evidence, the court asked the prospective jurors whether Laster’s affiliation with the club would impact their ability to be fair and impartial. One potential juror who later was excused for cause
10
responded, “Yeah, I was struck by the name of the club earlier in the proceedings, not just now. It strikes me as a club I certainly wouldn’t want to have anything to do with. And I have concerns about—about membership of
such a club of. I don’t know the club, but I do know what the name means.”4 The prosecution limited its examinations of witnesses about the club to Laster’s affiliation with it, authenticating the pictures of him in his cut and of the clubhouse, confirming that he and Iliana were there before the killing, and describing the search of the clubhouse. During his closing statement, the prosecutor argued that Laster was embarrassed at having been beaten up by Curtis in part because he had bragged to Iliana about being a part of the club, and “he’s a tough guy” who had to “atone” for the assault.
2. The limited admission of motorcycle club evidence was not an abuse of discretion.
Laster argues that this evidence should have been excluded because it was irrelevant or, in the alternative, was inadmissible under section 352. As to the latter theory, he maintains that evidence of this affiliation “so closely parallels that of gang membership [that] the prejudicial value was evident as it only painted [him] as a ‘tough guy’ who needed ‘atone’ because he was going to be president of this club.” He also claims that the unduly prejudicial nature of the evidence is demonstrated by the prospective juror’s reaction to the club’s name.
Laster’s allegations of error invoke the abuse of discretion standard of review. (People v. Kipp (2001) 26 Cal.4th 1100, 1123 [relevance objection]; People v. Powell (2018) 5 Cal.5th 921, 961 [section 352 objection].) A trial court abuses its discretion when it makes a decision “so irrational or
4 We infer that the juror was referring to the Four Horsemen of the Apocalypse (see Revelation 6:1–6:8).
11
arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) We evaluate the erroneous admission of evidence for prejudice under the “ ‘reasonable probability’ ” standard. (People v. Jandres (2014) 226 Cal.App.4th 340, 357, citing People v. Watson (1956) 46 Cal.2d 818, 836–837 (Watson).)
Relevance is a “low bar” for evidence to clear (People v. Villa (2020)
55 Cal.App.5th 1042, 1052), as it need only have “any tendency in reason to prove or disprove a disputed fact that is of consequence to the determination of the action” (Evid. Code, § 210, italics added). Generally, all relevant evidence is admissible (id., § 351), but a court “in its discretion may exclude [relevant] evidence if its probative value is substantially outweighed by the probability that its admission will ... (b) create a substantial danger of undue prejudice” (id., § 352). “Undue prejudice ... occurs when the jury is emotionally inflamed against a party without regard to the issues in the case.” (Smalley v. Baty (2005) 128 Cal.App.4th 977, 985.)
Although Laster’s affiliation with the club may not have had overwhelming probative value, it was properly admitted. Taken together with what he told Iliana about his stature in the club, this evidence was relevant because it bore on Laster’s only defense theory—that he killed Curtis in self-defense. As for whether it was unduly prejudicial, the court carefully went through the evidence and thoughtfully considered the parties’ arguments for and against admitting it. Nothing about this process or the result reached, which occurred after voir dire was completed, was patently irrational or arbitrary as required to find an abuse of discretion. And even if this evidence had been erroneously admitted, it would not be “reasonably probable that a result more favorable to [Laster] would have been reached”
12
absent the error (Watson, supra, 46 Cal.3d at p. 836) given the evidence of planning activity, other sources of motive, and the manner of killing.
This brings us to People v. Memory (2010) 182 Cal.App.4th 835 (Memory), on which Later relies heavily to argue that this evidence should have been excluded. The defendants there, who were accused of stabbing three people, belonged to a different motorcycle club. (Id. at pp. 848–849.) As relevant here, the prosecutor wanted to use expert testimony to establish that the club required its members to be violent when confronted and to carry knives. (Id. at pp. 848–849, 852.) The court excluded the expert’s testimony but, at the same time, “grant[ed] the prosecutor ‘a ton of latitude’ ” to elicit this same evidence from other witnesses. (Id. at p. 852.) Even though none of the witnesses provided the testimony the prosecutor sought, he was permitted to argue and insinuate as if had been given. (Id. at p. 858.) The court erred because it allowed the jury to consider what the Court of Appeal stated was akin to “gang evidence” that was irrelevant and unduly prejudicial. (Id. at pp. 858–864.)
The same result is not warranted here. In Laster’s case, the court did not admit any evidence about his motorcycle club other than he was affiliated with it and that he wore a club cut. As we read them, the prosecutor’s comments about Laster needing to be a “tough guy” who had to “atone” for being assaulted described how he sought to portray himself to Iliana, rather than being an argument that he was a tough guy just because he was affiliated with a motorcycle club.
C. Prosecutorial Misconduct
The jury was to consider whether Laster was provoked when deciding what, if any, culpability attached to his actions. They were instructed that
13
a murder could be reduced from first to second degree because “ ‘provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.’ ” (People v. Jones (2014) 223 Cal.App.4th 995, 1001; CALCRIM No. 522.) Laster could be convicted of voluntary manslaughter under a heat of passion theory in lieu of murder if jurors found a provocation that “would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” (CALCRIM No. 570.)
Neither theory permitted the jurors to consider whether the extent of Laster’s response to the provocation was appropriate. (See People v. Beltran (2013) 56 Cal.4th 935, 949.) Yet the prosecutor’s closing argument appeared
to invite the jury to take this additional step.5 Laster contends for the first time on appeal that these statements constitute prosecutorial misconduct.
Generally, such claims are forfeited unless there was a timely and specific objection and a corresponding request for an admonition. (People v. Hill (1998) 17 Cal.4th 800, 820.) Laster relies on an acknowledged exception to this rule, where an objection and request for an admonition would both be futile (ibid.), arguing merely that “the misconduct was serious and any admonition could not have cured the harm; the bell could not be unrung.”
5 As one example, the prosecutor argued that the jurors should consider provocation but that Laster’s actions went “far beyond what any average person would have done. It was not justified. It was not legal in any sense of the law that has been instructed to you.” He would repeat these arguments in the context of voluntary manslaughter by stating that jurors should determine “whether a person of average disposition would have acted the same way,” that they “couldn’t say that this is the way an average person responds,” and that they had to “decide whether a person of average disposition would have in the same situation reacted from that passion and executed someone in broad daylight.”
14
We “must presume jurors follow instructions and obey admonitions” (People v. Hem (2019) 31 Cal.App.5th 218, 230), and thus, “[a] prosecutor’s misstatements of law are generally curable by an admonition from the court” (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno)). Because Laster’s conclusory argument on futility fails to establish that this is the “exceptional case” where this remedy would have been ineffective (People v. Allen (1978) 77 Cal.App.3d 924, 935), the exception to the forfeiture rule does not apply.
Anticipating this result, Laster makes the alternative request that we reverse his conviction due to ineffective assistance of counsel. To prevail on this claim, Laster must show that counsel’s (1) “representation fell below an objective standard of reasonableness” under prevailing professional norms and (2) “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 688; see id. at p. 687.) There is no prejudice unless “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.) “On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Here, Laster adopted the all-or-nothing strategy of attempting to persuade the jury to acquit because he shot Curtis in self-defense. Defense counsel may have made a tactical decision to ignore the issue the potential misstatements of law because objecting to them or attempting to clarify them would not help his client’s cause.
More importantly, Laster fails to show prejudice. The jury was properly instructed that provocation is sufficient to reduce murder to
15
voluntary manslaughter if it “would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” “It has often been emphasized that arguments of counsel ‘generally carry less weight with a jury than do instructions from the court.’ ” (Centeno, supra, 60 Cal.4th at p. 676.) “When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former.” (People v. Osband (1996) 13 Cal.4th 622, 717.) Indeed, the jury in this case was instructed on this point just before closing arguments began. Therefore, on this record, we cannot conclude that counsel’s failure to object amounted to ineffective assistance and/or prejudicially affected the ultimate result. (See Mai, supra, 57 Cal.4th at p. 1009.)
DISPOSITION
The judgment is affirmed.
DATO, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.