(Super. Ct. No. SF107537A)
The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The defendant, James Tyler Roots, Jr., shot and killed Obed Pigg. Convicted by jury of murder and other crimes, he appeals. He contends: (1) his trial was unfair because of an unsupported motive theory presented by the prosecution, (2) several errors resulted from the joinder of a gang participation count, (3) the prosecutor committed misconduct, (4) the asserted errors were prejudicial cumulatively, even if not so individually, and (5) the sentencing order was flawed. Other than two errors in the sentencing order, we find no prejudicial error. Therefore, we modify and affirm.
There were two primary types of evidence upon which the prosecution relied to convict the defendant: motive evidence and eyewitness evidence.
On October 5, 2007, two weeks before Pigg was killed, about 5:00 o'clock in the evening, the defendant robbed Pigg at Stribley Park. Pigg and his girlfriend, Tammy Samuels, had gone there in Pigg's green Cadillac to watch Samuels's son play football. Pigg had at least $300 in money for rent in his pocket. Pigg parked the Cadillac, and Samuels went across the park, while Pigg stayed by the Cadillac to talk to a friend. The defendant pulled a gun on Pigg, and Pigg attempted to keep his friend between him and the defendant. Eventually, the defendant took the money Pigg was carrying. The defendant also pulled the trigger on the gun several times, making a clicking sound. Pigg fled in his Cadillac and picked up Samuels. He was angry and scared.
Samuels believed that she and Pigg went to bed around midnight that night.
During the night after the defendant robbed Pigg, someone shot at the residence of the defendant's mother (the Boyce residence) in the same neighborhood as Stribley Park. There was also evidence that the defendant lived at the residence. Several shots were fired and caused damage to the house, a vehicle in the driveway, and an adjacent house.*fn1
The next morning, Pigg took Samuels to Franklin High School for her son's football game. From a distance, Samuels saw Pigg talking to several men, including Joe Boyce, the defendant's stepfather. The conversation lasted about five minutes, and Pigg left the group of men after giving Boyce a handshake and hug.
After the defendant robbed Pigg and someone shot at the home of the defendant's mother, Pigg and Samuels began getting phone calls, too numerous to keep track of.*fn2 Pigg became frightened, carrying a gun and saying that he was "not going to fear any man."
About a week after the defendant robbed Pigg, Samuels returned home late in the evening. Pigg was asleep on the couch. When she touched him, he was startled and jumped up with the gun.
Stockton Police Department Detective James Ridenour testified as an expert on Stockton gangs. Detective Ridenour testified concerning indicia that the defendant is an active participant in the East Coast Crips gang, based in southeast Stockton. The defendant has East Coast Crips gang tattoos, has been arrested with another East Coast Crips gang member, and has been identified by other East Coast Crips gang members as a fellow gang member. He is well-respected in that gang. Most directly, the defendant claimed to be an active East Coast Crips gang member when he was booked into jail after being arrested for Pigg's murder.
Detective Ridenour testified that respect is the most important thing to gang members. They tend to retaliate violently for any perceived lack of respect.
Yuronda Breed, who has a child with the defendant, told an officer one day after Pigg's murder that the defendant had told her several days earlier that he was having "serious problems" with Pigg.
On October 19, 2007, Pigg drove in his Cadillac to the Smoke Shop, owned by Daryl Walters. Soon after Pigg entered the Smoke Shop, someone in a dark, hooded sweatshirt followed him into the store and shot and killed him, firing at least 10 shots. The assailant spun and ran from the store. He disappeared into the neighborhood, but, before he did, several people saw him. He stashed the hooded sweatshirt and the gun in a backyard. The defendant could not be ruled out as a source of DNA found on the sweatshirt and gun.
Several witnesses who saw the assailant provided statements and testimony concerning the assailant's identity. We discuss each of the witnesses.
Walters was shown a photo lineup that had six photos. The defendant's photo was in the number four position. Walters testified that he recognized the defendant's photo from his picture in the newspaper. When asked whether the photo in the newspaper looked like the assailant who came into his store, Walters responded: "I guess so. Yes. Yes."
Hilda Loza owned a hair salon next door to the Smoke Shop. She saw a man in a blue, hooded sweatshirt walk past her business. He glanced in toward her and kept walking. She saw the man walk into the Smoke Shop, and then she heard gunshots.
Shown the photographic lineup, Loza looked at it for about 16 seconds before tapping on the defendant's photo (number four in the lineup) and saying: "Oh, my God. Oh, my God. . . . That's him." Her demeanor then changed as she became nervous and frightened and started backpedaling, saying that it is between photographs four and five. She noted that the eyes and complexion of number four were more like the person she saw, but the facial hair was more like number five's. She did not remember seeing a tattoo on the person's face as depicted in the defendant's photo.
Walters's fiancee, Iisha Willis, was in her car behind the Smoke Shop when she heard the shots fired. As she drove around the corner, she saw the assailant in the blue, hooded sweatshirt. Thinking this man shot Walters, Willis followed the assailant in her car. The assailant took his hood off and looked at her. He then took off the sweatshirt and continued running away from the Smoke Shop. Willis followed him for a short distance, yelling at him, before he disappeared over a fence.
When she was shown the photo lineup, Willis stated that the persons in photos one and two had faces shaped similar to the assailant's face and that number one matched the assailant's complexion. She did not identify the defendant's picture included in the lineup as number four.
At trial, Willis identified the defendant as the man she followed in her car. It was the first time she saw him in person since the day of the murder.
While she was conducting an investigation in a nearby bar, Officer Raquel Betti heard a female outside screaming and cussing. She went outside and saw Willis in her car following a man in a blue, hooded sweatshirt. She had only a side view of the man and could not positively identify the man in the photo lineup. She could only say that the defendant's photo was consistent with the man she saw. At trial, she said that the defendant looked "just like" the man she saw.
Armando Gutierrez heard the gunshots and saw a man running toward them in a blue, hooded sweatshirt. Armando identified the defendant when shown the photo lineup later that day. A trial, however, Armando could not identify the defendant as the man he saw.
Armando's mother, Theresa Gutierrez was with Armando when they saw the assailant. She was unable to identify the defendant from the photo lineup.
Armando's sister, Elsa Castaneda Gutierrez, was also with Armando and their mother when they heard the gunshots and saw the assailant. She made eye contact with the man. Elsa identified the defendant in the photo lineup. She also identified the defendant at trial.
Maxx Chavez heard the gunshots and saw a man in a black, hooded sweatshirt run away from the Smoke Shop. When shown the photo lineup, Chavez pointed to a few of the pictures but did not specifically identify the defendant. About a week after the murder, however, Chavez saw the defendant's picture on the television news and recognized him as the assailant. At trial, Chavez identified the defendant as the assailant.
Patricia Solano saw the assailant walk through her backyard. She tentatively identified the defendant from the photo lineup, saying the defendant's photo looked like the man she saw.
Pursuant to a consolidated indictment and information, a jury found the defendant guilty of the murder of Obed Pigg, Jr. (Pen. Code, § 187),*fn3 possession of a firearm by a felon (§ 12021, subd. (a)), and criminal street gang participation (§ 186.22, subd. (a)), all committed on October 19, 2007. The jury also found defendant guilty of transportation of cocaine (Health & Saf. Code, § 11379), possession of cocaine with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)), and possession of a firearm by a felon (§ 12021, subd. (a)), all committed on October 23, 2007, the day the defendant was arrested for Pigg's murder.*fn4 The jury also found true various arming, personal firearm use, and on-bail enhancements.
In a bifurcated proceeding, the defendant admitted prior strike and prior prison term allegations. (§§ 667, subd. (d), 667.5, subd. (a), 1170.12, subd. (b).)
The trial court sentenced the defendant to a determinate state prison term of eight years, followed by an indeterminate term of 70 years to life.*fn5
The Prosecution's Motive Theory
The defendant contends that the prosecution's motive theory lacked evidentiary support and therefore he was subjected to an unfair trial. In support of this contention, defendant argues that (A) the evidence introduced to establish a motive was irrelevant, (B) evidence of an uncharged robbery and gang involvement was overly prejudicial under Evidence Code section 352, and (C) the prosecutor's reliance on the motive theory resulted in a denial of due process. None of these contentions has merit.
Before trial, the prosecution stated its intention to proffer evidence that the defendant had a motive of retaliation when he shot and killed Pigg. The defendant objected to the motive evidence, so the trial court held an Evidence Code section 402 hearing. During the hearing, the prosecution presented evidence of (1) the defendant's robbery of Pigg in Stribley Park, (2) the shooting of the Boyce residence, (3) Pigg's demeanor and behavior between the robbery and the murder, and (4) Detective Ridenour's expert assessment of the gang-retaliation motive.
After the hearing, the trial court sustained the defendant's objections to some of the specific evidence, including hearsay. However, the court found the motive theory both relevant and supported by substantial evidence. Therefore, it ruled that the prosecution could introduce evidence establishing the defendant's motive.
In addition to admitting the evidence summarized above concerning motive, the trial court gave the jury a modified version of CALCRIM No. 375. The instruction informed the jury that the evidence of the Stribley Park robbery was offered for the purpose of showing motive for the murder. It directed the jury that it could not use the evidence to conclude that the defendant had a bad character or a disposition to commit a crime. The court also instructed the jury, using CALCRIM No. 370, that a motive is a factor tending to show that the defendant was guilty and the lack of a motive is a factor tending to show that the defendant was not guilty.
The prosecutor presented the motive theory to the jury during opening statements and argued in her closing argument that the Stribley Park robbery, the shooting of the Boyce residence, and the gang evidence concerning respect and retaliation was evidence that the defendant had a motive to kill Pigg. She specifically told the jury that the ...