Filed 12/30/22 P. v. Solomon 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C094286
Plaintiff and Respondent, (Super. Ct. No. 19FE003568)
v.
LAKQUAN DAMARDEUWA SOLOMON,
Defendant and Appellant.
Defendant Lakquan Damardeuwa Solomon appeals from the judgment entered
after his conviction by jury of first degree murder, discharge of a firearm from a vehicle,
and possession of a firearm by a felon. As relevant to this appeal, the jury also found true
gang enhancement allegations associated with the murder and firearm counts. Defendant
contends statutory changes and case law developments require reversal of the gang
findings and related enhancements. He further argues the trial court’s refusal to bifurcate
the trial on the gang enhancements requires reversal of both those enhancements and the
1
substantive charges to which they attached. The People agree that the gang
enhancements imposed pursuant to Penal Code section 186.221 must be reversed, but
argue against reversal of the firearm enhancements and any of defendant’s substantive
offenses.
We agree with the parties that legislative changes retroactively applicable to
defendant’s case require that we vacate the section 186.22 enhancements, subject to
retrial on remand. The jury’s remaining verdicts and findings are unchanged. Further,
we find the failure to apply the newly enacted bifurcation procedure found in section
1009 was harmless. Accordingly, the matter will be remanded for possible retrial of the
gang enhancements. The judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The People’s amended information charged defendant with first degree murder
(§ 187, subd. (a)—count one); discharge of a firearm from a vehicle (§ 26100, subd.
(c)—count two); and being a felon in possession of a firearm. (§ 29800, subd. (a)(1)—
count three.) The information further alleged that counts one and two had been
committed for the benefit of, at the direction of, or in association with a criminal street
gang (§ 186.22, subd. (b)(1)) and that during the commission of these counts, a principal
had personally and intentionally discharged a firearm causing great bodily injury.
(§ 12022.53, subds. (d) & (e)(1).)2 Finally, the information alleged defendant had been
convicted of a serious felony (§ 667, subd. (a)) and had suffered a prior strike. (§ 667,
subds. (b)-(i).)
Before trial, the trial court denied defendant’s request to bifurcate the gang
enhancement allegations, finding that the People’s theory of the case included gang
1 Undesignated statutory references are to the Penal Code.
2 The information also alleged, as to count one only, violations of subdivisions (b)
and (c) of section 12022.53.
2
motivation and bifurcating the gang evidence would improperly restrict the People’s
presentation of their case. Thereafter, the matter, with the exception of the status
enhancements, was tried by a jury.
A. The murder and general investigation
At trial, the People presented evidence that the victim, Brandon Campbell, stored
some of his belongings at the home of J. Johnson in South Sacramento. In September
2017, South Sacramento was experiencing a lot of gang violence. On September 27,
2017, Johnson and Campbell planned to meet up. Campbell got off work around 8:47
p.m. Campbell was to get some marijuana and then go to Johnson’s house, since she had
a headache and did not want to pick him up, as had been originally planned. Johnson fell
asleep waiting for Campbell and awoke to a loud bang. She got out of bed and looked
out her window, which did not face the street, but did not see anything. Around this time,
approximately 3:00 a.m. on September 28, she received a phone call from Campbell.
There was no one on the line when she answered the phone, and Campbell did not
respond when she texted him. Unaware that anything was wrong, Johnson got back in
bed. Approximately four minutes later, she was told Campbell had been shot, and she
called 911.
On the night in question, D.B. lived with Johnson and had her upstairs bedroom
window open. Through that window she heard a car drive past, and Campbell speaking
with a male whose voice she did not recognize. That voice said, “Ayy,” or “[H]ey.”
D.B. then heard the car turn around, and the voice again said, “[H]ey.”3 D.B. could not
hear the specifics of the conversation. She then heard a loud bang and the car left. D.B.
thought it was a gunshot, so she dropped to the floor and made her way downstairs to the
3 D.B. had some familiarity with older vehicles because she had family members
who were auto mechanics, and opined the vehicle had been an older car of some kind,
and definitely was not a truck or SUV.
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living room. She looked outside and saw Campbell lying in the street and his bicycle on
the sidewalk in front of the house. She went outside and saw him take a few breaths
before he stopped breathing.
The ShotSpotter system detected a single gunshot in that area at 3:00 a.m. on
September 28, 2017, and officers were dispatched to the scene.4 Campbell was still lying
in the street when officers arrived at 3:09 a.m. and, following attempts to resuscitate him,
he was pronounced dead at the scene at 3:20 a.m. Campbell had suffered a gunshot
wound to his left shoulder, which appeared to be caused by a shotgun fired at close range.
Campbell’s cell phone, wallet, and a backpack containing, among other things, an airsoft
gun and marijuana, were found near his body. There was a skid mark behind the tire of
Campbell’s bicycle consistent with a sudden stop.
Campbell’s autopsy confirmed he died of a shotgun wound to the left shoulder and
that there was no soot or stippling as would be expected if the barrel had been close to the
skin when fired. Triple-aught shotgun pellets in a tight grouping were recovered from his
body. A shotgun “wad” recovered near the body was consistent with 12-gauge
ammunition. The wad’s placement was consistent with a close-range shooting.
Surveillance camera footage from near the scene showed the victim riding his
bicycle at 2:57 a.m. Around this time, that footage also showed a maroon Buick LeSabre
that made a U-turn and then sped away 12 seconds after the ShotSpotter identified a
gunshot. The driver was wearing a black shirt with a white circle and the letter “C” in the
middle. On the back passenger side of the Buick was a spare tire. Less than a minute
after the shooting, the Buick turned from the street where the shooting occurred onto
Franklin Boulevard. Authorities tracked the Buick’s route with traffic cameras, which
4 The ShotSpotter system detects the location of a gunshot to within the width of a
football field.
4
showed it heading in the direction of defendant’s home. The license plate was collected
from a plate reader on Florin Road.
In order to link the Buick to defendant, the People presented evidence that the
Buick was registered to defendant’s mother and, nine days before the murder, defendant
had been in an accident while driving that car. Further, defendant was recorded on
September 27, the day before the murder, arriving at a tire store in Vacaville in the Buick
and then at a gas station in Hercules with D. Carter. Defendant was wearing a black
hooded sweatshirt with the word “Cookie” in white letters and a white circle with the
letter “C” in black. Defendant changed the rear passenger tire after his significant other,
K. Williams,5 brought him a spare and defendant left the gas station in the Buick at
approximately 10:39 p.m. The parties stipulated Williams told authorities that defendant
was the individual in the Cookie sweatshirt in Hercules and admitted this shirt looked
similar to the shirt from surveillance footage near the murder. She also identified the car
in the surveillance footage as belonging to defendant.
The People further presented evidence that after September 28, the Buick’s license
plate was not read again by a plate reader until November 20, 2017. On that day,
authorities located the Buick and surveilled it. Around noon that day, defendant and
Williams arrived where the Buick had been left in North Sacramento and attempted
unsuccessfully to start it with a new battery. They left in the vehicle in which they had
arrived and were pulled over by an officer, who collected their phones. A search of the
Buick revealed (1) a receipt from a tire company with defendant’s name, address, and
phone number; (2) a red light camera ticket with defendant listed as the driver, including
a photo of defendant driving; and (3) a San Francisco parking ticket dated the day of the
homicide. The spare tire was still on the car.
5 Williams and defendant were in a dating relationship, had a child together, and
referred to each other as husband and wife even though they were not married.
5
Forensic testing on the Buick showed the highest concentration of gunshot residue
on the driver’s side headliner, although testing could not determine when it was deposited
there. Residue in that location suggested a gun was fired from the car. The Cookie
sweatshirt was not recovered in police searches, nor did a search of defendant’s home
produce a shotgun or shotgun shells. However, police did find a bag in defendant’s
bedroom with the same Cookie emblem as the sweatshirt.
B. The gang evidence
In accordance with the People’s theory that the crime was a retaliatory gang
killing, the People called Detective Justin Saario with the Sacramento Police Department
to testify as an expert concerning “African[-]American gangs, specifically the Oak Park
Bloods.” Detective Saario recounted the history of the three main “Bloods” gangs in the
Sacramento area and their related subsets. This included the ongoing rivalry between
neighborhoods claimed by the different gangs. Defendant was a member of the area’s
largest gang, the Oak Park Bloods.6 The primary enemy of the Oak Park Bloods was the
G-Mobb, which claimed the area of G-Parkway. Campbell grew up in G-Parkway and
Detective Saario considered him an associate of that gang.
The Oak Park Bloods and the G-Mobb had been feuding for at least 20 years.
However, gang violence had increased in the years leading up to the homicide at issue in
the case, and there was an active gang war in the summer of 2017 requiring Oak Park
Bloods members to be armed. If such members were in rival gang territory, they were
likely to conduct drive-by shootings. Gang-related violence was prevalent in South
6 While defendant denied his continued membership, Detective Saario based his
opinion that defendant was a current member on his review of reports, as well as
defendant’s tattoos, associations, social media, jail calls, and information retrieved from
defendant’s cell phone.
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Sacramento in September 2017. The location of the murder established that it occurred
in G-Mobb territory in South Sacramento.
To demonstrate these hostilities, Detective Saario described a series of gang-
related shootings occurring in 2016 and 2017 suspected to have been committed by
warring gangs. Included with these was a murder on July 12, 2017, wherein Keyshawn
Deams (a validated member of the Oak Park Bloods) was shot in a house by someone in
a black vehicle. Deams exited the house, shooting back. Defendant heard this shooting
from a few houses away and took Deams to the hospital in the Buick. Further, on
September 26, 2017, a home invasion robbery by T.W., D. Walker (a validated Oak Park
Bloods member), and B. Stewart went awry when the homeowner shot T.W. and Stewart,
resulting in T.W.’s death.
Detective Saario opined the primary activities of the Oak Park Bloods included
robbery, weapon possession, burglary, and various shooting offenses, including assault
with a deadly weapon, attempted murder, murder, and shooting into an inhabited
dwelling or vehicle. Detective Saario further testified to two predicate offenses by the
Oak Park Bloods. First, on June 2, 2013, Q.C. was convicted of assault by force likely to
produce great bodily injury and sale of methamphetamine with a gang enhancement.
Second, on March 21, 2014, T. Patterson was convicted of being a felon in possession of
a gun. Finally, based upon a hypothetical partially mirroring the facts of this case,
Detective Saario opined the murder would benefit the Oak Park Bloods because, as an act
of retaliation committed in rival territory, it would respond to the previous disrespect by
the rival gang and would increase the reputation of the Oak Park Bloods gang and show
they were capable of carrying out such attacks.
C. Further evidence of motive and defendant’s knowledge of the shooting
In addition to the expert gang evidence discussed above, the People presented
evidence that T.W., who was killed September 26, 2017, was defendant’s 15-year-old
friend. The next morning, which was also the day before the murder, defendant texted
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Williams, stating his “ ‘little bro’ ” had been killed during a robbery and he had “ ‘been
stressing.’ ” At 11:45 p.m. on September 27, Williams asked defendant to call her so that
she would know he made it home safely. However, they did not have any
communication until 10 a.m. September 28, and shortly thereafter defendant texted her to
“[c]heck Fox 40 shooting by Valley Hi,” and then added, “[t]his morning.”7 Following a
short conversation, Williams again texted defendant, relating that she did not need to
know everything but that she wanted to know he was alright. The murder was in the area
of Valley Hi.
Thereafter, Williams searched Facebook for the victim on September 29, 2017,
and defendant searched Google for the Valley Hi shooting four times between September
28 and 30, 2017. Carter, who was with defendant the day of the murder and a validated
Oak Park Bloods gang member, also tried to livestream Fox News at 3:45 a.m.
approximately 45 minutes after the shooting and before homicide detectives had even
been dispatched to the scene. Defendant also communicated with U. Williams, a
validated Oak Park Bloods gang member. While some content was missing, the People
recovered messages from U. Williams the day before the murder forwarding pictures
from social media showing a rival gang member claiming responsibility for T.W.’s death
and otherwise disrespecting defendant’s gang.
Finally, the People presented evidence of videos from defendant’s phone.8 One
taken the day before the murder showed defendant with Carter rapping about the death of
T.W. while using gang slang and displaying a handgun. Another video from August 22,
7 A review of defendant’s phone records showed his phone had either been turned
off or had a dead battery between 11:45 p.m. on September 27, 2017, and 5:53 a.m. on
September 28, 2017.
8 In addition to linking defendant to the Buick and guns/ammunition, this evidence
aligned with Detective Saario’s testimony that Oak Park Bloods members post on social
media to taunt and disrespect their rivals.
8
2017, showed defendant rapping inside the Buick with a box of 12-gauge shotgun shells
in view.
D. Shotgun evidence
Presumably to show that defendant had access to a shotgun, the People presented
evidence that in August 2015, defendant was seen brandishing a sawed-off shotgun on a
regional transit train. Defendant fled the train, but was followed by a sheriff’s
department helicopter and ultimately contacted by an officer when he entered a hotel
room. A search of that room revealed an unloaded short-barreled 12-gauge shotgun
found within a backpack that also contained defendant’s Social Security card. Defendant
admitted a friend had given him the shotgun for protection, but denied showing it to
anyone on the train.
Further, defendant’s ex-girlfriend R. Jackson told authorities in August 2017, and
again after Campbell’s murder, that defendant brandished a shotgun during an argument
with her. However, at trial, Jackson denied that he had possessed a gun during the
August 2017 argument. Detective Todd Culp confirmed speaking with Jackson, who had
told him that defendant pulled out a pistol-gripped shotgun from a closet during the
altercation with her in August 2017.
In their closing argument, the People theorized defendant committed premeditated
retaliatory murder. Campbell was killed by defendant, who was in rival gang territory
looking to avenge T.W.’s murder. Further, the surveillance footage and the witness
testimony showed the person driving the Buick killed Campbell. Finally, because
defendant wore the distinctive Cookie sweatshirt, he was identifiable as the person
driving the car and thus had committed the murder.
The jury found defendant guilty on all counts and found true the gang and firearm
enhancement allegations, including that defendant had personally and intentionally
discharged the firearm proximately causing the death of the victim. (§ 12022.53, subd.
(d).)
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Defendant’s bifurcated court trial on the sentencing enhancements and sentencing
were both held on the same day. The trial court determined the prior strike and serious
felony enhancements were true. The court then denied defendant’s request for probation,
as well as his request to strike the prior strike allegation, but did strike the prior serious
felony enhancement. The court sentenced him to an aggregate term of 10 years, plus 75
years to life in prison. This sentence was calculated as follows: 25 years to life for count
one, doubled because of the prior strike, plus 25 years to life for the section 12022.53,
subdivision (d) enhancement, plus 10 years determinate for the gang enhancement. The
court imposed but stayed sentences for the remaining counts pursuant to section 654.
Defendant timely appealed, and appellate briefing in this matter was completed on
August 22, 2022.
DISCUSSION
I
Assembly Bill No. 333 (2021-2022 Reg. Sess.)
A. The gang enhancements
As recently explained by the California Supreme Court in People v. Tran (2022)
13 Cal.5th 1169 (Tran): “ ‘In 1988, the Legislature enacted the California Street
Terrorism Enforcement and Prevention Act (STEP Act; § 186.20 et seq.) to eradicate
“criminal activity by street gangs.” ’ [Citation.] Among other things, the STEP Act
created ‘a sentencing enhancement for a felony committed “for the benefit of, at the
direction of, or in association with any criminal street gang” (. . . § 186.22, subd. (b)(1)).’
[Citation.]
“In 2021, the Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.)
(Assembly Bill 333), which became effective on January 1, 2022. Assembly Bill 333
made the following changes to the law on gang enhancements: First, it narrowed the
definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing, organized
association or group of three or more persons.’ (§ 186.22, subd. (f), italics added.)
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Second, whereas section 186.22, former subdivision (f) required only that a gang’s
members ‘individually or collectively engage in’ a pattern of criminal activity in order to
constitute a ‘criminal street gang,’ Assembly Bill 333 requires that any such pattern have
been ‘collectively engage[d] in’ by members of the gang. (§ 186.22, subd. (f), italics
added.) Third, Assembly Bill 333 also narrowed the definition of a ‘pattern of criminal
activity’ by requiring that (1) the last offense used to show a pattern of criminal gang
activity occurred within three years of the date that the currently charged offense is
alleged to have been committed; (2) the offenses were committed by two or more gang
‘members,’ as opposed to just ‘persons’; (3) the offenses commonly benefitted a criminal
street gang; and (4) the offenses establishing a pattern of gang activity must be ones other
than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill
333 narrowed what it means for an offense to have commonly benefitted a street gang,
requiring that any ‘common benefit’ be ‘more than reputational.’ (§ 186.22, subd. (g).)”
(Tran, supra, 13 Cal.5th at pp. 1205-1206.)
“Finally, Assembly Bill 333 added section 1109, which requires, if requested by
the defendant, a gang enhancement charge to be tried separately from all other counts that
do not otherwise require gang evidence as an element of the crime. If the proceedings are
bifurcated, the truth of the gang enhancement may be determined only after a trier of fact
finds the defendant guilty of the underlying offense.” (Tran, supra, 13 Cal.5th at p.
1206.)
Here, the parties agree, and we concur, that the jury’s true findings associated with
the section 186.22 gang enhancements cannot stand in light of the legislative changes
brought about by Assembly Bill No. 333 (Assembly Bill 333). These ameliorative
changes apply retroactively to defendant’s pending case on appeal (Tran, supra, 13
Cal.5th at pp. 1206-1207), and neither of the two predicate offenses proffered by the
People occurred within three years of the pending charged offense as required. (Id. at p.
1206; § 186.22, subd. (e)(1).) Accordingly, we will vacate the jury’s true findings for the
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section 186.22 gang enhancement allegations and remand the matter for the People to
determine whether to retry them under the amended law.
B. Section 1109
Defendant further argues newly enacted section 1109 requires reversal of both his
enhancements and the convictions attached thereto. We disagree. While there is a split
of authority on the retroactivity of section 1109 (Tran, supra, 13 Cal.5th at p. 1208), we
need not decide that issue because we conclude that even if section 1109 applied
retroactively, any error in failing to bifurcate was harmless.
As explained in Tran, supra, 13 Cal.5th at page 1208, the trial court’s failure to
bifurcate does not constitute structural error requiring automatic reversal. Nor do we
believe that it would be appropriate to assess the failure to bifurcate utilizing the
Chapman9 standard for federal constitutional error because, under the circumstances of
this case, that failure did not result in a trial that was “ ‘fundamentally unfair.’ ” (Tran, at
p. 1209.) Accordingly, like the high court in Tran, we will weigh the possible prejudice
of the trial court’s failure to apply section 1109 for state law error under People v.
Watson (1956) 46 Cal.2d 818. (Tran, at p. 1209.)
Here, defendant has not shown it is reasonably likely that the jury would have
come to a different result had the gang enhancements been bifurcated. “[N]othing in
Assembly Bill 333 limits the introduction of gang evidence in a bifurcated proceeding
where the gang evidence is relevant to the underlying charges.” (People v. Ramos (2022)
77 Cal.App.5th 1116, 1132.) Before trial, the court denied defendant’s motion to
bifurcate the gang enhancements, highlighting that the People’s theory of the case
included gang motivation and finding that bifurcating the gang evidence would
improperly restrict the People’s presentation of their case. Thereafter at trial, and as
9 Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].
12
described in detail ante, the People presented evidence intended to establish that
defendant committed the murder in rival gang territory in retaliation for the killing of his
friend and fellow gang member T.W. the day before. Consistent with this evidence, the
People argued in closing that defendant had committed premeditated retaliatory murder.
Campbell was killed because defendant, in rival gang territory, was looking to avenge
T.W.’s murder. Moreover, the gang evidence presented at trial that was not relevant to
the People’s theory of motive was minimal and unlikely to have impacted the result.
Further, a review of the remaining evidence presented against defendant does not
suggest a reasonable probability that the jury would have come to a different result.
Rather, compelling surveillance video and witness testimony established defendant was
driving the Buick down the street where the shooting occurred, made a U-turn in that
vehicle, and then fled the scene following the ShotSpotter alert. That Buick was later
determined to contain gunshot residue, suggesting a gun was fired from the car.
Moreover, defendant’s companion in the Buick that night attempted to livestream
news of the shooting within 45 minutes of the murder, and incriminating text messages
between defendant and Williams, as well as their social media activity, suggested
defendant’s involvement in the murder. Against this backdrop, the jury determined
defendant personally and intentionally fired the firearm killing Campbell. Accordingly,
we find defendant has not shown it is reasonably likely the jury would have reached a
different outcome had the gang enhancement been bifurcated, and thus, we conclude that
reversal of defendant’s substantive convictions is not warranted.
C. The firearm enhancements
We finally address defendant’s argument that this court must vacate the firearm
enhancements because the section 12022.53, subdivision (e) allegation relies upon
defendant’s participation as a principal in a gang-related offense. We disagree that it is
necessary to vacate any more of the jury’s findings.
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Section 12022.53, subdivision (e) provides: “(1) The enhancements provided in
this section shall apply to any person who is a principal in the commission of an offense
if both of the following are pled and proved: [¶] (A) The person violated subdivision (b)
of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in
subdivision (b), (c), or (d). [¶] (2) An enhancement for participation in a criminal street
gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall
not be imposed on a person in addition to an enhancement imposed pursuant to this
subdivision, unless the person personally used or personally discharged a firearm in the
commission of the offense.”
As relevant to defendant’s argument here, the jury found true the allegations that
“defendant was a principal in the [murder and shooting from a vehicle], and in the
commission of the offense, at least one principal intentionally and personally used a
firearm, and proximately caused death to Brandon Campbell.” This finding complied
with section 12022.53, subdivision (e)(1)(B)’s requirement that “[a]ny principal in the
offense committed any act specified in subdivision (b), (c), or (d)” and is unchanged by
Assembly Bill 333’s amendments. Thus, there is no need to vacate this finding, even
though we have concluded that we must vacate the gang enhancement findings necessary
for the trial court to sentence defendant under section 12022.53, subdivision (e). Because
the trial court sentenced defendant under section 12022.53, subdivision (d), not
subdivision (e), we need not and will not vacate the firearm enhancement portion of his
prison sentence.
DISPOSITION
The jury’s true findings on the section 186.22 gang enhancements associated with
counts one and two are vacated and the matter remanded to allow the People to elect
whether to retry defendant on those enhancements. If the People elect not to do so, the
trial court shall modify the abstract of judgment accordingly and forward a certified copy
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to the California Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
KRAUSE , J.
We concur:
HULL , Acting P. J.
DUARTE , J.
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