Metropolitan News-Enterprise


Wednesday, April 1, 2009


Page 3


Court of Appeal Affirms Convictions for Gang-Related Murders at Party




The Fourth District Court of Appeal has affirmed the convictions of three San Bernardino men on charges of murdering a teenager at a Sweet 16 party in Corona six years ago.

Div. Three Monday said there was sufficient evidence to convict Tavares C. Scott, Wesley I. Young, and Mario J. Gray of the first degree murder of 13-year-old Daveon Lee, who was shot in the head in the garage of the house where the party was being held.

The three were among six Crips gang members arrested in the case. One of those arrested pled guilty to manslaughter and testified at the trial, saying the men crashed the party as part of a plan to set up a one-on-one fight with one of the partygoers, who had beaten up Gray’s brother during an attempt to crash a previous party.

The case was tried before three separate juries, with each of the defendants convicted of first degree murder with the special circumstance that the crime was gang-related, as well as attempted premeditated murder and shooting at an inhabited dwelling. Riverside Superior Court Judge Paul Zellerbach sentenced each of them to life imprisonment without possibility of parole for the murder and imposed consecutive terms for the other crimes.

Each of the defendants argued on appeal that prosecutors lacked substantial evidence of intent to kill, but the Court of Appeal disagreed.

While the evidence did not establish with certainty who fired the fatal shot, Justice William Rylaarsdam explained in an unpublished opinion, it showed that each of the defendants was  responsible for the killing, whether as the shooter, a co-conspirator, or an aider and abettor.

“We conclude defendants, as active members of a violent street gang who participated in an attempt to inflict a retaliatory beating with knowledge guns were available for use and would be employed if the beating did not proceed as planned, acted with the requisite intent to kill,” the justice wrote.

The panel acknowledged concern that Zellerbach might have erred in allowing the Scott jury to hear evidence of three uncharged incidents, one in which Scott allegedly used a nine-millimeter handgun that was also fired at the Corona residence, and two involving the same .40-caliber handgun with which Lee was killed, but found any error to be harmless.

In one incident, a man identified as Scott allegedly approached the driver of a gang and asked where he was from. When the driver took the question as a reference to gang affiliation and said he didn’t “gang bang,” the man took out a gun and fired at the vehicle as the driver fled.

The other incidents involved parties, at which shots were fired after a man, who may have been Scott according to general descriptions by witnesses, was rebuffed trying to enter.

Rylaarsdam explained that there was sufficient identification evidence to permit the jury to find that Scott was involved in the three uncharged incidents, but that it could not be inferred from that evidence that Scott was involved in the Corona shooting, since there was no evidence tying Scott in particular to either weapon.

The uncharged-crimes evidence might have been admissible for other purposes, such as to show that Scott was a gang member and would have been willing to use a gun to further the gang’s purposes, the justice said. But the last incident carried with it no indication of any gang-related purpose, Rylaarsdam said.

But whether applying the “reasonably probable” or “harmless beyond a reasonable doubt” standard, the justice concluded, admission of the evidence was not prejudicial.

Numerous witnesses, he explained, identified Scott or a person fitting his description as having been present when the shooting occurred. And it was clear that Scott was a participant in a battery or attempted battery and that Lee’s murder was a “natural and probable consequence” of that crime, so that Scott was guilty even if he did not fire the fatal shot, the justice said.

The case is People v. Scott, G040888.


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