APPEAL from a judgment of the Superior Court for Los Angeles County, Dennis J. Landin, Judge. Affirmed. (Los Angeles County Super. Ct. No. BA286340).
The opinion of the court was delivered by: Willhite, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Tyron Baldwin of murder (Pen. Code, § 187, subd. (a)) and conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1)), and found true gun and gang allegations as to each count (Pen. Code, §§ 12022.53, subd. (c), (d), (e)(1); 186.22, subd. (b)(1)(A)). It acquitted him of attempted murder (Pen. Code, § 664/187, subd. (a).) The trial court imposed a sentence of 25 years to life on the first degree murder, plus a consecutive 25 years to life on the gun allegation (Pen. Code, § 12022.53, subd. (d)), and stayed the sentence on the conspiracy and gang enhancement under section 654.
On appeal, defendant contends the trial court erred by denying his challenges to several potential jurors for cause. Although we acknowledge there are Supreme Court decisions, which have not been expressly overruled or disapproved, that support defendant's argument that we must examine those trial court rulings even though none of the potential jurors actually sat on the jury, we follow a subsequent Supreme Court ruling that concludes no examination is necessary where, as here, defendant did not challenge for cause any of the jurors who sat on his case.
Defendant also raises issues related to the admission of recordings of jail cell conversations in which defendant and another coconspirator made statements implicating defendant in the murder. One of those issues addresses the trial court's ruling that, unless he testified at trial, defendant could not introduce hearsay evidence of statements defendant made in other settings that were inconsistent with statements he made on the jail cell recordings. Although we conclude that, under the plain language of Evidence Code section 1202, defendant was entitled to introduce evidence of his inconsistent statements even though he was available to testify at trial, any error in excluding the evidence was harmless. Accordingly, we affirm the judgment.
On the morning of June 28, 2005, Jiovanni Jones was at an apartment, in an area of Los Angeles known to be Rolling 20's Blood gang territory, with his brother and his friend James Lane. Lane, who was not a member of the Rolling 20's gang, sold marijuana from that apartment. The apartment had a security system in which cameras fed images of the exterior of the apartment to a monitor inside the apartment. At one point, Jones saw two Black men on the monitor; the men were pacing in front of the building and looking around.*fn2 He and Lane went outside and he saw three people getting into a truck (later identified as a blue Suburban S.U.V.) that was being driven by a fourth man. Two of the people getting into the truck were the two men Jones had seen on the monitor.
A short while later, Jones and Lane left the apartment to walk to a gas station store down the street. As they were walking, they saw the three people Jones had earlier seen getting into the truck walking toward them. The three men looked like "gang bangers," so Jones and Lane turned around and started walking back toward the apartment. As soon as they turned around, Jones heard someone say "Hey," and then he heard a shot. Jones looked back and saw Lane on the ground and one of the three men pointing a gun at him (Jones). Jones ran toward the apartment, and heard three more shots. He went to the apartment, got his brother, and left.
The shooting was witnessed by a passerby, Jorge Melendez, who was driving near the gas station when he saw three young Black men cross paths with two other young Black men. One of the three men turned around and shot one of the two men in the back of the head.*fn3 As the victim's companion ran away, the shooter fired a shot after him, then the three men walked back toward the gas station. Melendez made a U-turn and tried to find the three men, but he lost sight of them. He turned down one of the streets, and saw a blue S.U.V. speed onto the street in reverse and head south. He tried to get close to the S.U.V. to see if the three men were in it but he could not get close enough. He noted that the S.U.V. did not have a license plate (it only had a paper plate from a car dealer) and was missing a hub cap. He turned around when he saw the S.U.V. get on the freeway, and went back to the gas station to call the police.
When police arrived at the scene, they found Lane dead from a gunshot wound to the head. He had been shot from behind, just above the left ear, from between one and two feet away. He still had on his person two cell phones, $704.93 in cash, a bag of marijuana, a wallet, keys, a ring, and a dog-tag type of necklace.
About an hour later, the police located an S.U.V. matching Melendez's description parked on a street several blocks away. The car's owner, Margaret Cook, met the police at that location (which was near her apartment). She told them she had bought the S.U.V. a few months earlier for her boyfriend, Bill Lennan*fn4-- who was also known as "O Dog" or "Old Dog" -- to drive. She gave the police permission to search her apartment, where they found, among other things, a diagram she had never seen before, in the bedroom on a nightstand near other papers belonging to Lennan. It was later determined that the diagram was of the apartment from which Lane sold marijuana. Cook subsequently identified Lennan from a photo lineup, as well as a friend of Lennan's she knew as "War Time." Lennan and "War Time" (whose real name is Evan Thurton) are members of the Rolling 20's gang.
The day after the shooting, at Lane's wife's urging, Jones went to the police and told them what had happened. Jones was shown a photo lineup from which he identified Lydell Powell as one of the three men who approached him and Lane the day before. Several days later, the police showed him some other photo lineups, from which he identified defendant as the shooter and Thurton as the other person who was with the shooter.
Defendant, Powell, and Thurton were arrested and were placed at various times in a jail cell that contained a recording device. At trial, the prosecutor played portions of the recordings. At times defendant was alone in the cell with Darris Wells, who had been arrested on charges unrelated to the instant crime, and at other times he was in the cell with both Wells and Thurton; he was never in the cell with Powell. Sometimes Thurton or Powell was alone in the cell with Wells. On those recordings, Thurton and defendant are heard trying to reassure themselves that the police do not have any evidence against them and that they will be okay as long as the police do not find Lennan and no one talks to the police. In many of those conversations, they make statements that implicate themselves in the shooting.
For example, defendant said that the police told him there was a camera that showed them, but he said, "If they had a camera . . . they would have came and got us right then. The following day type shit. . . . [¶] Or at least in that same week."*fn5 Similarly, Thurton and defendant agreed that the police must have no witnesses to the shooting, because if they did, "we'd already be fucked" and would have been brought to court right away.
They also expressed their belief that they were safe as long as the police did not find "Old Dog," i.e., Lennan. At one point, Thurton (who was arrested a few hours before defendant) told defendant, "I already know when they charged me I'm like they're going to get you because they can't catch the dog [i.e., Lennan]. They can't catch the dog. . . . [I]f they don't catch the dog, homey, they don't have no case." Later, Thurton reiterated his concern about Lennan, saying, "I just hope that they don't catch Old Dog, dog." Defendant responded, "Me, too. Because they can't really -- they can't -- they can't do nothing without -- with us, without Blood."
At another point, defendant and Thurton talked about how important it was that no one talk to the police. Thurton commented to defendant, "The only way they got something on us is if the niggers start talking. You know what I mean? . . . [¶] They don't have no guns or nothing. They don't have no evidence." Defendant responded, "That's why I'm happy. So that's why I'm like, I ain't tripping. ...