Unreported / Non-Citable
Background
Taeviyon Wandick and Denell James Martray King were convicted by a jury in connection with 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 a prior serious felony conviction constituting a strike. Each defendant was sentenced on count 1 to life without parole plus additional terms, with sentences on the remaining counts imposed and stayed under Penal Code section 654.
On appeal, defendants challenged the denial of bifurcation, the admission of gang evidence, the sufficiency of the evidence on intent to kill and the gang findings, the gang conspiracy target offense, and the sentences on counts 2 and 5. The Court of Appeal issued its opinion on October 19, 2026. On November 4, 2026, the court ordered six modifications to that opinion, denied Wandick's rehearing petition, and stated there was no change in the judgment.
The Court’s Holding
The court agreed that the count 5 gang conspiracy convictions were unsupported by substantial evidence that defendants committed the charged target offense, a violation of Penal Code section 26100, subdivision (c), which requires discharge of a firearm at a person other than an occupant of a motor vehicle. The court modified the verdicts to reflect gang conspiracy based on the lesser included target felony violation of section 26100, subdivision (d), which requires only discharge of a firearm from a motor vehicle. It rejected the argument that subdivision (d) could not be a target offense because it is a wobbler punishable as either a felony or a misdemeanor.
The court also vacated the count 2 sentences because the trial court had sentenced under the alternate penalty provision in section 186.22, subdivision (b)(4), which was neither pled nor proved, violating due process. On remand, the court held, only one enhancement—either the gang enhancement or the gang-related firearm enhancement—may be imposed on count 2 as to each defendant because the information did not allege and the jury did not find personal firearm use in that count, as section 12022.53, subdivision (e)(2) requires.
The court rejected the remaining contentions, including the challenges to intent-to-kill evidence, the drive-by murder special circumstance, gang-evidence admission, bifurcation, and instructional error, and affirmed the judgments in all other respects while remanding for resentencing on counts 2 and 5.
Key Takeaways
- An appellate court may modify a gang conspiracy verdict to a lesser included target offense when the charged target offense lacks substantial evidence, even if the prosecution chose to charge the greater offense.
- A violation of Penal Code section 26100, subdivision (d), is a wobbler and may serve as the target felony for a gang conspiracy conviction under section 182.5.
- Due process requires an alternate penalty provision to be pled and proved before it may increase punishment.
- Under section 12022.53, subdivision (e)(2), both a gang enhancement and a gang-related firearm enhancement may not be imposed on the same count unless personal firearm use is alleged and found true.
- Substantial evidence supported intent to kill and the drive-by special circumstance where defendants pursued the victim at high speed, pulled alongside, and fired multiple shots into the driver's side door.
Why It Matters
The decision clarifies appellate authority to modify gang conspiracy verdicts to lesser included target offenses and confirms that wobbler offenses can be target felonies for gang conspiracy. It also reinforces that alternate penalty provisions must be pled and proved and gives guidance on the dual-use limit for gang and firearm enhancements under section 12022.53, subdivision (e)(2).
The later November 4, 2026 order did not change the judgment; it corrected six particulars in the opinion—including the timing of a prior killing, a sentence about Williams's Facebook profile picture, the Daleon paragraph, and footnotes on the rule of lenity and Wandick's age—and denied rehearing.