IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
February 4, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CERON HILL, DEFENDANT AND APPELLANT.
Super. Ct. No. 06F02697
The opinion of the court was delivered by: Robie,j.
P. v. Hill 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Ceron Hill guilty of murdering Jack Lawrence by personally discharging a firearm. Defendant admitted he committed the murder while released from custody on another offense. The court sentenced him to two terms of 25 years to life plus a consecutive two years in prison.
Defendant appeals, raising issues of police coercion, instructional error, juror misconduct and tampering, prosecutorial misconduct, and sufficiency of the evidence. Finding these issues either forfeited or unmeritorious, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of March 15, 2006, Lawrence visited his friend Stanley Edwards at Edwards's apartment on Mack Road. Edwards was in the process of waking up, so Lawrence went across the street to the donut shop. Edwards was planning on joining Lawrence 15 minutes later.
The donut shop was located on Mack Road in a strip mall. Also in the strip mall was a Metro phone store. Going to the phone store that morning was one of Lawrence's childhood friends, Christopher Stone (Chris).*fn1 On his way to the store, Chris saw a white car that was traveling slowly past the donut shop and making multiple U-turns. Defendant, who was known as "Dooty," was a passenger in the car.
At the strip mall, Chris, who was sometimes mistaken for his brother Donald, saw Lawrence walking to the donut shop. The two started talking. Lawrence told Chris, "'Be cool. Doo[ty] out here.'"
Lawrence, Chris, and Donald were all affiliated with a gang called Bad Ass Youngsters or BAY. Defendant was not. Three weeks prior, defendant had approached Donald at a Chevron station and said he had heard that Donald and his partner "Poppa" were the ones who had shot at defendant in an earlier incident. Defendant then pulled out a gun and started shooting in the air. Since then, according to Chris, defendant had "been trying to get all [Chris's] partners from [BAY]."
Chris told Lawrence that he needed to go to the Metro store and would be right back. Chris saw the car again, driving "hella slower."
Chris finished his business at the Metro store, and as he was walking back to the donut shop, he heard three gun shots. Chris and Lawrence ran. Chris looked back and saw the shooter's profile. The shooter was defendant.
Lawrence collapsed as he was running. Chris ran to him and saw that Lawrence had been shot in the chest. Chris told Edwards, who had come to the scene from his apartment, "'Dooty did it.'" Chris heard another four gunshots and saw defendant "[b]ounce" in the white car. Lawrence died that day.
Chris and Edwards were interviewed by police. Edwards told police that when he had asked Chris who shot Lawrence, Chris told him, "'Dooty did it.'" When Chris was interviewed, he initially told Detective Scott MacLafferty he did not know who did it and he had told Edwards, "some dude shot [Lawrence]." As the interview progressed, Chris admitted to MacLafferty he had seen the white car with defendant inside and defendant shot Lawrence. At trial, Chris testified he did not personally know Dooty, and he implicated Dooty in the interview so the police would let him (Chris) go.
On March 22, 2006, defendant was arrested. He had another man's identification card on him. A search of defendant's bedroom revealed three bags containing shoes and clothes stacked by the bedroom door "like they were getting ready for someone to leave."
The next day Detective MacLafferty interviewed one of defendant's girlfriends, Lashawna Dees. She told MacLafferty defendant had told her "'something bad happened in Sacramento'" and he was going to Atlanta. Dees told her best friend, Stashaun Lewis, defendant wanted to leave town because he had shot someone. For Lewis's safety, the district attorney's office relocated her. The relocation expenses totaled approximately $27,000, all of which, except for $1,695 in per diem expenses, was paid directly to the service providers.
Jennifer Carroll, who had lived in the Mack Road area for 27 years, saw the shooting. After she learned that Lawrence died, she contacted police. She was shown a photographic lineup of suspects that included defendant, but she did not identify any of them as the shooter. At trial, she remained "confident" that defendant was not the shooter.
Defendant Forfeited The Right To Argue On Appeal That Chris's Statements To Police Were Coerced
Defendant contends his conviction must be reversed because "the police led, badgered and coerced witness Chris Stone into inculpating [defendant]" and therefore use of these coerced statements violated his Sixth and Fourteenth Amendment rights.
Defendant did not object to the introduction of Chris's out-of-court statements in the trial court on the grounds that his statements were coerced. He has therefore forfeited this contention on appeal. (People v. Kennedy (2005) 36 Cal.4th 595, 611-612 [failure to object on grounds of coercion barred review of the claim that coerced testimony was erroneously admitted at trial], overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458-459; People v. Ray (1996) 13 Cal.4th 313, 339 [where defendant did not raise in the trial court a claim his confession was involuntary, the claim was "waived"]; Evid. Code, § 353 [a judgment will not be reversed for the erroneous admission of evidence unless there was a specific objection to the evidence in the trial court].)
Defendant relies on older authority to argue "the issue is reviewable," citing the following four cases: People v. Millum (1954) 42 Cal.2d 524; People v. Underwood (1964) 61 Cal.2d 113; In re Cameron (1968) 68 Cal.2d 487; and People v Cahill (1994) 22 Cal.App.4th 296. These cases do not help defendant.
In Millum, the court ruled a defendant may assert the involuntariness of a confession on appeal where a timely objection had not been made, if the "uncontradicted" evidence by the state disclosed that the "attendant circumstances and methods of procurement of the confession" amounted to conduct that would make the use of the confession a denial of due process. (People v. Millum, supra, 42 Cal.2d at p. 527.)
In Underwood, the court reversed a criminal conviction based on the prejudicial introduction of involuntary statements made by the defendant and a witness. (People v. Underwood, supra, 61 Cal.2d at p. 126.) Trial counsel had not objected, but this did not preclude consideration of the issue on appeal. (Id. at p. 126.) The evidence was "uncontroverted" the statements were coerced, and "special policy considerations preclude[d] the use of involuntary statements," including that their admission would have been "offensive to the community's sense of fair play and decency," and their exclusion "would [have] serve[d] to discourage the use of improper pressures during the questioning of persons in regard to crimes." (Id. at pp. 124, 126.)
In Cameron, the court held the defendant could raise the involuntariness of his confession for the first time by habeas petition where the involuntariness appeared "as a matter of law," and where the defendant's failure to raise it on direct appeal was excusable because he risked receiving the death penalty if found guilty on retrial. (In re Cameron, supra, 68 Cal.2d at pp. 490-492, 503.)
In Cahill, the court rejected a "waiver" argument to taped statements where there was a notation in the clerk's minutes that an objection immediately preceded the playing of the tapes and the "'special policy considerations'" noted in Underwood precluded use of the involuntary statements. (People v. Cahill, supra, 22 Cal.App.4th at p. 309, fn. 3.)
These cases do not apply here because the evidence was not uncontroverted that Chris's statements were coerced*fn2 and, in any event, Kennedy impliedly called into question the holdings of these earlier cases when it held that the defendant had forfeited his involuntariness argument. The court did not mention any of these cases and it quoted In re Seaton (2004) 34 Cal.4th 193, 198, a case involving other types of constitutional challenges, for the proposition that the requirement of trial objections applies not only to "'claims based on statutory violations,'" but also to those "'based on violations of fundamental constitutional rights.'" (People v. Kennedy, supra, 36 Cal.4th at p. 612.) The court declared, "This rule applies equally to any claim on appeal that the evidence was erroneously admitted, other than the stated ground for the objection at trial." (Ibid.)
Following Kennedy, we conclude defendant has forfeited his challenge on appeal to the introduction of Chris's statements based on alleged police coercion.
Defendant's Claims Of Instructional Error Are Either Forfeited Or Unmeritorious
Defendant makes six claims of instructional error. We consider each in turn, rejecting all based on either a failure to make a request for the instruction in the trial court or a lack of merit to the claim.
The Trial Court Had No Sua Sponte Duty To Instruct On Coerced Statements
Defendant contends the court should have instructed sua sponte on Chris's coerced statements. Defendant's argument lacks merit because the factual premise on which it is based is not true.
Defendant argues the trial court's duty to instruct sua sponte on coerced statements arises "where the record contains uncontradicted evidence that statements which were made extra-judicially were made involuntarily." As we have explained in part I of the Discussion, the evidence was not uncontroverted that Chris's statements were coerced. Therefore, even under defendant's reading of the law, an instruction on coerced statements was not necessary sua sponte.
The Trial Court Had No Duty To Instruct
Sua Sponte On How To Evaluate Preliminary Facts
Defendant contends the court should have instructed the jury that it must first determine whether a preliminary fact exists and then disregard the proffered evidence unless it finds the preliminary fact did in fact exist.
This argument is based on Evidence Code section 403, subdivision (c) which states that if a trial court admits evidence subject to the existence of a preliminary fact, the court "[m]ay, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist."
"On its own terms, this provision makes it discretionary for the trial court to give an instruction regarding a preliminary fact unless the party makes a request." (People v. Lewis (2001) 26 Cal.4th 334, 362.) Because defendant here failed to make such a request, the trial court was not required to so instruct.
The two cases defendant cites for the proposition that a court "[s]ometimes . . . must give a preliminary fact instruction even though counsel does not request it" assume for the sake of argument the instruction was required, and then assess prejudice. (See People v. Prieto (2003) 30 Cal.4th 226, 251-252; People v. Simon (1986) 184 Cal.App.3d 125, 131-132.) They do not hold the instruction is required without a request.
CALCRIM No. 318 Regarding Prior Statements
By A Witness Was Properly Given
Defendant contends CALCRIM No. 318, which was given here, was an erroneous statement of law, was "no substitute" for its predecessor (CALJIC No. 2.13*fn3 ) and caused "incalculable harm."
CALCRIM No. 318 as given here stated as follows:
"You've heard evidence of statements that a witness made before trial.
"If you decide that the witness made those statements, you may use those statements in two ways:
"1. To evaluate whether the witness's testimony in court is believable; and
2. As evidence that the information in those earlier statements is true."
Defendant argues this instruction was defective in three ways. We take each in turn.
One, defendant argues CALCRIM No. 318 improperly allowed use of all prior statements by witnesses for the truth of the matter by not distinguishing between prior statements that were consistent or inconsistent with the witness's testimony (and therefore admissible as substantive evidence) and prior statements that were neither consistent nor inconsistent with the witness's testimony (and therefore inadmissible as substantive evidence). This argument was rejected in People v. Solorzano (2007) 153 Cal.App.4th 1026 1038-1039: "[the] argument betrays an incorrect reading of CALJIC No. 2.13, which straightforwardly allow[ed] the jury to use prior statements as substantive evidence without finding those statements inconsistent with his or her testimony (as does CALCRIM No. 318) and which optionally characterize[d] as inconsistent a witness's testimony that he or she 'no longer remember[ed] a certain event' if the jury disbelieve[ed] that testimony."
Second, defendant argues the instruction "improperly allow[ed] a third party statement reported by a witness to be used as substantive evidence even if the statement f[e]ll within no exception to the hearsay rule." Defendant misconstrues the instruction by assuming it applies to a hearsay declarant other than the witness. Such a construction is not consistent with the express language of the instruction. CALCRIM No. 318 permits the jury to use statements made by the "witness" before trial "[a]s evidence that the information in those earlier statements is true." The instruction does not allow the jury to use the witness's statements as evidence that what a third party declarant said was true.
Third, defendant argues CALCRIM No. 318 did not tell the jury a witness is a person who testifies under oath and who sees, hears, or otherwise witnesses events. Thus, defendant argues, the jury may have regarded Lawrence as a witness and may have improperly used Chris's extra-judicial statements about what Lawrence said as evidence of what really happened. Considering the instructions as a whole, as we must do (People v. Frye (1998) 18 Cal.4th 894, 958), the jury here would not have understood this to be the case. The jury was instructed "[e]vidence is the sworn testimony of witnesses" and in evaluating a witness's testimony, it may consider factors such as "the witness's behavior while testifying." As Lawrence did not testify, the jury would have understood he was not a witness.
CALCRIM No. 358 Regarding Out-Of-Court
Statements By Defendant Was Properly Given
Defendant contends the court erred by failing to modify CALCRIM No. 358, which instructs the jury to view a defendant's out-of-court oral statements with caution,*fn4 to encompass oral statements made by "certain witnesses." Specifically, defendant requested the following instruction:
"You have heard evidence that certain witnesses made [an] oral statement[s] before trial. You must decide whether each witness made any such statement[s], in whole or in part. If you decide that the witness made such a statement[s], consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give the statement[s].
"Oral statements have a tendency to be influenced by emotion and anger if made shortly after the event. Consider with caution any oral statement made by a witness."
There is no authority for the proposition that CALCRIM No. 358 applies to out-of-court statements of trial witnesses. As the People note, this is not surprising because the instruction is meant to benefit the defendant. (People v. Frye, supra, 18 Cal.4th at p. 959.) There is also no authority to support the latter part of defendant's proffered instruction, i.e., "[o]ral statements have a tendency to be influenced by emotion and anger if made shortly after the event" and "[c]onsider with caution any oral statement made by a witness."
Finally, contrary to defendant's argument that the jury received "no guidance at all on how it should evaluate the evidence of [witnesses's out of court] oral statements," other instructions told the jury how to evaluate witness credibility, which in turn would assist them in evaluating these witnesses' out of court statements. For example, the jury was told that in evaluating testimony, it could consider "[h]ow well . . . the witness [could] see, hear or otherwise perceive the things about which the witness testified," "[h]ow well the witness was able to remember and describe what happened," "[w]as the witness's testimony influenced by a factor such as bias or prejudice," and "[d]id the witness make a statement in the past that is consistent or inconsistent with his or her testimony"?
In sum, the court did not err by refusing to modify CALCRIM No. 358 to apply to statements other than defendant's.
Defendant Has Forfeited His Contention The Court Erred By Not Giving A Limiting Instruction On Hearsay Recounted By Chris
Defendant contends the court erred by not giving a limiting instruction on the hearsay statement recounted by Chris that Lawrence told him to "watch out 'cause Doo[ty] out here.'" This statement was proffered by Chris twice.
The first time was when Chris replied affirmatively to the People's question of whether he had told the detective in the interview that Lawrence told him to "watch out because Dooty out here." Defense counsel made a "continuing hearsay objection." The court ruled, "Well, on that particular question the objection is sustained, unless there's some other purpose." The People responded that it went "to this witness's state of mind as opposed to the truth of the matter," to which defense counsel said he would "like that explained to the jury, if that's gonna be the exception." The court ruled, "Well, the objection is sustained."
The second time the statement was proffered was when the recording of Chris's interview with Detective MacLafferty was played for the jury. In that interview, Chris said that when he went to the donut shop, Lawrence told him to "watch out 'cause Doo[ty] out here.'"
Noting that he did not request a limiting instruction pertaining to the recording which was played for the jury, defendant argues "failure to seek an instruction should not waive the issue" because "[a] request would have been futile given the court's previous refusal to give a limiting instruction." This argument is based on a misreading of the record. As we have recounted, the court sustained defendant's hearsay objection when the evidence was first introduced and excluded the evidence, obviating the need for the jury instruction. If defendant wanted a limiting instruction this time, he was required to ask for one. (People v. Smith (2007) 40 Cal.4th 483, 516.) Indeed, as pointed out by the trial court during a ruling on a motion for new trial based partly on the court's failure to give a limiting instruction, defense counsel was the one who asked the court to play the entire tape of the interview, not just portions as the People had requested. Moreover, counsel requested limiting instructions for certain portions of the interview, and since he did not do so when the at-issue portion of the videotape was played, counsel may have had a tactical reason for not requesting one. During closing argument, one of those tactical reasons appeared, i.e., defense counsel argued that Chris and others were "predispos[ed]" to think defendant was the shooter because there had been statements that Lawrence had seen defendant in the vicinity. On this record, defendant has forfeited his right to claim the court should have given a limiting instruction.
The Trial Court Properly Refused
Defendant's Pinpoint Instruction
Defendant contends the court erred in refusing the following pinpoint instruction:
"You are hereby instructed that you may consider the following facts, if you find them to exist, in determining defendant's guilt or innocence of the crime charged:
"The ability of witnesses to see or not see the face of the perpetrator;
"The predisposition of witnesses to believe that the perpetrator was a person named 'Doo[ty]'
"Gang membership of any witnesses;
"The $28,000.00 received by Stashaun Lewis from law enforcement;
"A witness's emotional reaction to such a traumatic event in order to accurately recall the event;
"Stanley Edwards' testimony that Christopher Stone said 'Dude or Doo[ty];'
"Christopher Stone's testimony that he does not personally know an individual named 'Doo[ty].'"
The court refused to give the instruction because some of it was not supported by the facts, some of it was covered by other instructions, and some of it improperly pinpointed defense facts. The court was correct.
A trial court properly refuses a pinpoint instruction if it "merely duplicates other instructions, "is not supported by substantial evidence," or "is argumentative." (People v. Bolden (2002) 29 Cal.4th 515, 558.) An argumentative instruction is one that highlights defendant's specific evidence, because it "'invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence.'" (People v. Earp (1999) 20 Cal.4th 826, 886.) Defendant's pinpoint instruction exhibited these characteristics.
The pinpoint instruction was duplicative. The portions about a witness's ability to see the face of the perpetrator, the predisposition of the witnesses to believe the perpetrator was Dooty, the impact on Lewis of receiving money from law enforcement were covered in general terms by the instruction on evaluating witness testimony, CALCRIM No. 226, and evaluating eyewitness testimony, CALCRIM No. 315. Those instructions told the jury that in evaluating testimony, it could consider factors such as the witness's ability to perceive the event and a witness's bias or prejudice.
Also, the pinpoint instruction at least in part was not supported by substantial evidence. As the court noted, the evidence did not support that law enforcement "just handed [Lewis] $28,000."
Finally, the pinpoint instruction was argumentative because it singled out specific defense evidence, i.e., the financial assistance given Lewis, Edwards's testimony about what Chris said, and Chris's testimony about his knowledge of defendant, for the jury's consideration.
On this record, the court properly refused to give defendant's pinpoint instruction.
There Is No Merit To Defendant's Contention
There Was Jury Tampering Or Juror Misconduct
Defendant contends the judgment must be reversed based on "acknowledged but unexplored jury tampering and juror misconduct." We disagree.
Factual And Procedural Background
Defense counsel filed a motion for new trial after the verdict based in part on possible juror misconduct. To support the allegation of possible misconduct, defense counsel attached a summary of an interview of the juror conducted by a defense investigator.
The summary stated in relevant part as follows: About the second or third day of trial, some male and female friends of defendant were "talking [g]ibberish in the elevator." They said they "should beat [the juror's] ass." When the juror got out of the elevator to go to her car, defendant's friends followed her. "The woman said what a fake ass bitch [the juror] was and that [the juror] had fake boobs. They said they should jump [the juror] in the elevator." The juror "wasn't really concerned" but she "eventually told one of the other jurors and [they] brought it up to the bailiff." The bailiff told the visiting judge. After the verdict, the two jurors were escorted directly to their cars "so [they] didn't have to go past the people." "None of the girls [who] made the comments testified in the trial." "The comments did not affect [the juror's] decision making and [she] was not intimidated by it."
During the hearing on the motion for new trial, defense counsel explained the juror had yet to sign a declaration attesting to these facts. Defense counsel noted he had been retained on the case after the juror's statement had been taken and noted he was "bereft of a declaration from [the juror]." He "kind of tried valiantly to save this, but it really [was]n't salvageable because you have to get a declaration from a juror."
The court asked the bailiff for his recollection. The bailiff stated the juror told him about an incident when she was on the lunch break and "people from the audience" who were in the elevator with her were "mumbling things . . . they wouldn't think that she would understand . . . but she thought that she understood what they were mumbling." "[S]he stated it had nothing to do with the case. She just said they were mumbling and she didn't feel threatened by it. That's why she didn't bring it up at that time." She did not include anything about being followed out to the parking lot.
Defense counsel "indicate[d]" "this can be raised on habeas corpus" and said he "would withdraw the claim if the Court d[id]n't want to pursue it further, because [he] d[id]n't think [they] ha[d] evidence frankly one way or another [on] what fully happened."
The court stated it was going "to put this to the end," noting it was "not necessarily something that should be left later on a habeas brief." The court then stated "right now we have an insufficient record to make a ruling," and defense counsel "totally agree[d]" and acknowledged he might be "inviting error."
Defendant Is Not Entitled To Further Proceedings Or Reversal Based On Alleged Jury Tampering Or Juror Misconduct
Defendant contends he is entitled to a reversal or at least an evidentiary hearing based on jury tampering and juror misconduct in delaying reporting the tampering. Further, he claims that because the court took no action and made no inquiry when the tampering and misconduct was disclosed, the presumption of prejudice that arose from the tampering and misconduct was never rebutted.
"'[W]hen the alleged misconduct involves an unauthorized communication with or by a juror, the presumption [of prejudice] does not arise unless there is a showing that the content of the communication was about the matter pending before the jury, i.e., the guilt or innocence of the defendant.'" (In re Hamilton (1999) 20 Cal.4th 273, 305-306.) Here, defendant's friends were "talking [g]ibberish" about "beat[ing] [the juror's] ass," and "jump[ing] [the juror] in the elevator," and making derogatory comments about the juror's appearance. These comments had nothing to do with defendant's guilt or innocence, so there was no presumption of prejudice entitling defendant to a reversal.
Moreover, where the alleged tampering is by the defendant's friends, our Supreme Court has "question[ed] whether a convicted person can ever overturn the verdict on grounds that persons acting in his behalf deliberately sought to influence the jury . . . . But even where, as here, there is no evidence petitioner was directly involved, recognition of such a claim suggests tempting opportunities for accuseds' allies to manufacture challenges against subsequent convictions." (In re Hamilton, supra, 20 Cal.4th at p. 305.) To the extent defendant's claim is that his friends were engaged in jury tampering, he cannot seek to benefit by a reversal or new trial based on their behavior.
Nor is there anything to support defendant's claim that the juror's failure to immediately report the incident constituted misconduct. "A sitting juror commits misconduct by violating her oath, or by failing to follow the instructions and admonitions given by the trial court. A lay juror cannot be expected to conform to standards of behavior of which she has not been informed, or to make unguided personal judgments about what the court needs to know. Her failure to do so cannot place at risk a presumptively valid verdict." (In re Hamilton, supra, 20 Cal.4th at p. 305.) Defendant notes the jurors were admonished at the beginning of trial "[i]f you receive any information about this case from any source outside the trial . . . do not share that information with any other juror" and "if anyone tries to influence you, you must immediately tell the bailiff." He contends the juror here committed misconduct by talking about the incident with another juror and not reporting the incident immediately to the bailiff. The juror did not engage in misconduct because she reasonably could view the behavior by defendant's friends as simply harassing and not an attempt to influence her. She therefore could have believed she had no reason to immediately tell the bailiff. Furthermore, since defendant's friends did not convey any information about the case to her, she was not violating the court's instruction by telling a fellow juror what had happened.
Finally, the court did not abuse its discretion in failing to hold a further evidentiary hearing on the claims of jury tampering and juror misconduct. (See People v. Avila (2006) 38 Cal.4th 491, 604 [standard of review].) The only evidence the defense proffered on these issues was an investigator's report recounting the investigator's conversation with the juror. "'Normally, hearsay is not sufficient to trigger the court's duty to make further inquiries into a claim of juror misconduct.'" (Id. at p. 605.) And, as we have already explained, the evidence in the investigator's report did not "demonstrat[e] a strong possibility that prejudicial misconduct [or tampering] had occurred." (Ibid.)
On this record, there was no error, constitutional or otherwise, pertaining to defendant's allegations of jury tampering and juror misconduct.
Defendant Forfeited His Claim Of Prosecutorial Misconduct
Defendant contends the judgment must be reversed because the prosecutor committed misconduct in closing argument. Defendant has forfeited his contention by failing to raise it contemporaneously in the trial court, and his single reference in his opening brief that he was denied "effective assistance of counsel" is insufficient to raise that claim here.
Defendant's contention of prosecutorial misconduct is based on an alleged nonverbal communication and argument that he claims had no basis in the evidence. According to a declaration by defense counsel in support of a new trial motion, when the prosecutor was arguing in closing that witness Carroll, a white woman, essentially lied when she said defendant was not the shooter, the prosecutor "paused and turned and stared at the audience composed primarily of African-Americans, many with dread[locks]." "The implication was clear that the witness was somehow intimidated due to the gang influence." When this issue was raised in a motion for new trial, the court stated it "ha[d] no recollection of the look that defense counsel [wa]s referring to," though the court "c[ounld]n't say with any certainty that at that particular moment [its] eyes were on the prosecutor."
Defendant's failure to timely object to the prosecutor's actions forfeits the issue on appeal. To preserve a claim of prosecutorial misconduct, defendant must make a timely objection on the same ground and request that the jury be admonished to disregard the impropriety. (People v. Thornton (2007) 41 Cal.4th 391, 454.) Defendant made no such objection here.
There Was Sufficient Evidence To Support
Defendant's Murder Conviction
Defendant contends his murder conviction must be reversed because there was insufficient evidence he committed the crime. He argues there was no forensic evidence linking him to the killing, no gun, no getaway car, no DNA, no confession or admissions by him, and no eyewitness at trial who identified him as the gunman. He further argues that the "extra-judicial" statements linking him to the crime and the evidence of flight was not strong enough to constitute substantial evidence. We disagree because the evidence was substantial that defendant was the killer.
There was evidence that defendant had motive to kill members of BAY. Defendant had "been trying to get all [Chris's] partners from [BAY]." Lawrence was one of those partners. Three weeks before Lawrence was shot, defendant approached Donald, a BAY member, at a Chevron station and said that defendant had heard that Donald and his partner "Poppa" were the ones who had shot him (defendant) in an earlier incident. Defendant pulled out a gun and started shooting in the air. From this evidence, a reasonable jury could have found that defendant had a motive to shoot BAY members.
There was the evidence defendant planned the murder. Defendant was seen in a slow-moving car in the area of Mack Road, driving past the donut shop, and making multiple U-turns. Chris, who was sometimes mistaken for his brother Donald, was near the donut shop talking with Lawrence. From this evidence, a reasonable jury could have found that defendant was looking for and preparing to shoot BAY members.
There was evidence it was defendant who shot Lawrence. Chris saw the shooter's profile. In his interview with MacLafferty, Chris identified defendant as the shooter. Defendant makes much of the fact that at trial Chris denied that defendant was the shooter. However, as even the case cited by defendant explained, "[l]ike the United States Supreme Court, we reject the proposition that 'out-of-court statements of identification are inherently less reliable . . . . '" (People v. Cuevas (1995) 12 Cal.4th 252, 265-266, quoting United States v. Owens (1988) 484 U.S. 554, 561 [98 L.Ed.2d 951, 959].)
There was evidence defendant admitted his conduct. Defendant's girlfriend Lashawna Dees told Detective MacLafferty that defendant told her "'something bad happened in Sacramento'" and he was going to Atlanta. Dees told her best friend, Stashaun Lewis, that defendant wanted to hide out at Dees's house and then leave town because he had shot someone.
Finally, there was evidence that supported defendant's imminent flight. When defendant was arrested, he had another man's identification card. And, in defendant's bedroom, there were three bags containing shoes and clothes stacked next to the bedroom door "like they were getting ready for someone to leave."
This evidence was sufficient to establish it was defendant who shot Lawrence dead.
The judgment is affirmed.
NICHOLSON, Acting P.J.