(Super. Ct. No. 09F09095)
The opinion of the court was delivered by: Raye , P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant George Ellis Wallace argues on appeal that the circumstantial evidence of motive, identity, opportunity, and gunshot residue is insufficient evidence to sustain jury verdicts of first degree murder with special circumstances. His briefing reads like a closing argument to the jury and is dismissive of the exacting scope of appellate review. There is, quite simply, ample evidence to support the verdicts, and we reject his evidentiary and instructional objections as well. We accept the Attorney General's concession to award additional presentence custody credits and to eliminate the stayed/suspended restitution fine. In all other respects, we affirm the judgment.
A man with a shotgun shot and killed James Turner and Clifford Brown at very close range in their apartment sometime after midnight on December 15, 2009. The prosecution relied on a mountain of circumstantial evidence that defendant was the shooter.
Motive. In November 2009 defendant lived with his girlfriend, Bryanna Warren, her four-year-old son, and their nine-month-old son. Clifford Brown lived with his girlfriend, Lawanda Shoals, and James Turner. Shoals, angry with Brown, had moved home with her mother for a few days but brought him food on Thanksgiving Day, November 26. She was surprised to encounter Warren at their apartment. A physical altercation between the two women ensued, with Warren coming out on the losing end. Shoals moved back in with Brown on November 27.
Shoals testified that at 6:00 o'clock the following morning, Warren returned to the apartment and shot both Brown and Shoals. Turner was at the apartment when the shooting occurred. Warren was subsequently arrested and charged with two counts of attempted murder.
Defendant lied to the police that he had not seen Warren after the shooting. One of the investigating police officers showed him pictures of the victims. Defendant sought out Brown's mother, who called Brown and allowed defendant to talk to him. She heard defendant say they should "squash this," but Brown hung up on him.
Defendant told another resident of his apartment complex, Antonio Meneses, that his girlfriend was in jail for the shooting and asked him what he should do about it. At the end of the conversation, he told Meneses he would "kill a nigga." Meneses, a hostile witness, testified he thought defendant was joking and that the comment did not relate to defendant's girlfriend's problem.
Identity. There were no witnesses who identified defendant as the shooter. There were many, however, who testified that he had the same ethnicity and physique as the shooter. In short, the shooter was an overweight African American male dressed in all black clothing, including a black beanie.
On the night of December 14 and the early morning hours of December 15, George Clark was visiting Brown, Shoals, and Turner at their apartment. Sometime after midnight, Clark was in the living room when a "real heavy-set" African American, "dressed all in black," including a black vest, pointed a shotgun at him but did not shoot him. He ran out of the house. Clark testified that the person with the gun was the same size as defendant as he appeared in a photograph Clark viewed.
A neighbor testified that he saw a "big guy," weighing at least 200 pounds, peering into the windows of the victims' apartment. According to the neighbor, defendant fit the description of the man he saw. He was wearing a heavy jacket with a hood.
Brown, who had been in the bedroom with Shoals, walked into the hallway, hollered, "oh, shit," and ran back into the bedroom. He pulled Shoals off the bed and onto the floor out of defendant's sight. As she was being pulled off the bed, Shoals caught a brief glimpse of the shooter. She testified he wore a black sweat suit with long pants and a ski mask. He was very bulky in the chest. She estimated that the shooter was between five feet nine inches and five feet eleven inches tall and weighed approximately 210 pounds. She testified that defendant looked like he was the same size as the man with the shotgun.
Detective Zachary Bales of the Sacramento Police Department was assigned to do a follow-up investigation of the shooting. On December 15 he estimated that defendant was approximately five feet nine inches tall and weighed about 300 pounds. Another officer did a search for a physical description of defendant, which revealed that he was six feet one inch tall and weighed 280 pounds.
Defendant appeared on a video surveillance tape at Walmart on December 14, 2009, arriving at about 11:24 p.m. and leaving around 11:50 p.m. He was dressed in all black.
Opportunity. Defendant did not have an alibi. He told the police he had been in his apartment on the night of the shooting. He denied going to Walmart. He claimed the only time he left the apartment was to drive around the apartment complex for a short while at about two or three in the morning.
Forensic Evidence. The assailant kicked in the kitchen door to gain access. There was a footprint left on the door. A shoe matching that footprint was never found.
Defendants' clothes, however, contained gunshot residue. Police officers found a black hooded sweatshirt, black pants, and a black vest in defendant's apartment. There was gunshot residue on the black hooded sweatshirt on the lower front panel and lower right sleeve. There was gunshot residue on the black vest. There was gunshot residue on a Dickies jacket on the bottom of the left sleeve, bottom of the right sleeve, bottom of the right front, top of the right front shoulder area, and bottom of the left front. The gunshot residue was consistent with firing a gun. There was no blood found on the clothing.
Nor was there any blood found in any of defendant's vehicles, including his pickup truck, a pink Honda, or a silver Pontiac. A small amount of gunshot residue was found on the pickup truck's exterior driver's door ...