(Super. Ct. Nos. 07F01565, 06F06452)
The opinion of the court was delivered by: Murray , J.
Received for posting 3/19/13
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Zachary Tyler guilty of second degree robbery (Pen. Code, § 211)*fn1 in case No. 06F06452. In case No. 07F01565, a jury in another trial found defendant guilty of attempted murder (§§ 664/187, subd. (a)) and second degree robbery (§ 211) with an enhancement for being armed with a firearm (§ 12022, subd. (a)(1)).
The trial court imposed a total term of 55 years four months, plus 65 years to life in case Nos. 07F01565, 06F06452, and 07F01299.*fn2 Defendant contends on appeal that the prosecutor committed misconduct in the closing argument in case No. 07F01565. We affirm.
The Robbery and Attempted Murder
On the night of January 29, 2007, Barbara Peoples heard gunshots and then banging at the front of her house. She opened the front door to find a man standing on the porch and a white Cadillac on her front lawn. The man, Raymond Amayao, fell onto the front porch and said he had been shot. He was in pain and appeared "quite apprehensive and afraid." He said he did not want to die and mentioned that he had three children. When Peoples called 911, the operator instructed her to ask Amayao who shot him. Peoples asked Amayao if he knew and he replied "no."
Sacramento Police Officer Casey Dionne interviewed Amayao in the ambulance as he was being transported to the hospital. Amayao said he had parked his car at the Evergreen Shopping Center off Mack Road when a white 1980's Buick with four to six occupants pulled up next to him. Amayao heard someone yell out to shoot him, and a man in the driver's side rear seat with two- to three-inch dreadlocks and a gold grille pointed a nickel-plated semiautomatic handgun at him. The man shot at Amayao, hitting him once in the shoulder and twice in the abdomen. Amayao was evasive with the officer, and said he did not know why he was at the Evergreen Shopping Center or where he was going. He said he did not know why he was shot or who had done this to him.
On January 31, 1997, Amayao was interviewed at the hospital by Sacramento Police Officer Kevin Howland. Amayao said he passed a car he described as a 1988 to 1991 white Buick Park Avenue when he pulled into the Evergreen Shopping Center parking lot. He parked near a liquor store, and one of the Buick's occupants called him over.
Amayao walked to the car and saw that there were five people in the car, including three males, one sitting in the driver's seat, one in the front passenger seat, and one in the driver's side rear seat. The man behind the driver asked Amayao to help jump-start a car. Amayao agreed, and followed the Buick in his car.
The Buick left the shopping center, went down Center Parkway, turned onto a side street and parked, with Amayao pulling off the road behind the Buick. The man in the rear driver's-side seat who had asked for the jump-start left the Buick and approached the passenger side of Amayao's car. He rested one hand on the roof of Amayao's car and pointed a faded, gold-colored semiautomatic pistol at Amayao with the other hand and told him to "break yourself," which Amayao understood to mean he was being robbed. The man entered Amayao's car and Amayao gave the man $24 in cash.
The man from the front passenger seat then exited the Buick. Shortly after Amayao gave the money to the robber, someone yelled "shoot him, shoot him." The man with the gun then shot Amayao several times. He continued shooting as Amayao drove away, shooting out the rear window of Amayao's car. Amayao continued to drive until he crashed into a house and asked for help. Amayao thought he could identify the occupants of the rear seat on the driver's side and the front passenger seat of the car.
On February 8, 2007, Sacramento Police Detective Brian Dedonder interviewed Amayao at his home. Amayao reiterated that someone from a white Buick called out to him after he had parked at the Evergreen Shopping Center. A man in the driver's-side rear seat asked for help jump-starting a car that was parked around the corner. Amayao agreed and followed the Buick, parking behind it when the Buick pulled over on a nearby street. The man who asked for the jump-start came up to Amayao's car, opened the passenger door, leaned in, and pointed a gun at Amayao, telling him to "break yourself." Amayao then gave the man $24. He believed the man in the front passenger seat got out of the car, walked behind the robber and told the robber to shoot him. The robber, who had been calm, got very excited and started shooting at Amayao. The man continued to shoot at Amayao as he drove off, shooting out the back window of his car.
This time Amayao described the gun as dark colored and kind of bronze, "like the kind you see in a western movie." He thought the shooter touched the roof with his other hand as he leaned into the car. Amayao identified co-defendant Anthony Richard as the shooter and robber in a photographic lineup. He was unable to identify defendant or co-defendant David Griffin in separate photographic lineups.
Dedonder asked Amayao why he told the first officer who interviewed him that the shooting had taken place at the shopping center rather than around the corner. Amayao responded that he was in pain, just wanted to get to the hospital, and did not want to talk.
Amayao has a 2004 felony conviction for transportation of a controlled substance from Solano County. At the time of the robbery and shooting here, Amayao lived with his fiancee and their three children in south Sacramento.
Amayao testified that he remembered driving his 1991 Cadillac on the day he was shot, and that the car was damaged during the shooting. He stated that he did not recall what he was doing the day he was shot, nor did he recall talking to the police at the scene of the crash or in the ambulance. He identified himself on a security video getting out of his car, but said he did not remember going to the Evergreen Shopping Center.
Amayao further testified that he could not recall seeing a man from the back seat of a white Buick pointing a nickel-plated revolver at him. He said he had no memory of talking to Detective Howland or any details of their conversation. He remembered talking to a detective at his home; he identified a person in a photographic lineup, but testified he was not sure that it was the person who shot him.
Looking at defendants in court, Amayao said he never saw defendant or the co-defendants on the day he was shot. He said he did not remember telling a deputy district attorney that he was afraid. But he admitted he did not want to come to court and testify. Amayao lives in Sacramento with his fiancee and their four children, but said he was not afraid about testifying.
Former Sacramento County Deputy District Attorney Larenda Delaini was assigned to the case in July 2007.*fn4 She met with Amayao on July 31, 2007 and August 8, 2007. Amayao was uncooperative during both visits, and made it clear he did not want to be part of the process. Amayao's body language and demeanor at both meetings indicated he was scared. Amayao did not want to come to court because he did not want the defendants or their family members to see him. At a third meeting on August 16, 2007, Amayao admitted he was scared for his family, telling Delaini he already had three children and his fiancee was pregnant.
Delaini met Amayao again on August 21, 2007. As in every previous meeting, Amayao said he did not remember the incident. Delaini told Amayao she knew he remembered the incident and that he was afraid. After telling Amayao he would look pretty silly if he claimed not to remember after she presented the evidence, Amayao said he remembered what happened, but was extremely fearful for himself, his fiancee, and their children. Amayao said he was trying to move his family from where they presently lived to get away from it all. After he was shown a video of him parking at the Evergreen Shopping Center, Amayao smiled and said, "I'll tell you." Amayao was still scared, but more open after that. He denied that the incident was a drug deal gone bad.
Surveillance videos from the Evergreen Shopping Center on the night of the incident showed two men getting out of a car and entering the liquor store. After they were in the store for some time, they left the liquor store and got back into the car. The parties stipulated that defendant and co-defendant Anthony Richard were the individuals depicted in the video. From the video, Detective Dedonder determined defendant and Richard were riding in a white Buick, which was registered to Dewayne Knorr. Defendant was the driver of the Buick.
Defendant's ex-girlfriend, Barbara Knorr, confirmed the Buick in the video was hers, although it was registered to her father, Dewayne Knorr. She allowed defendant to drive the car, and he was driving it on January 29, 2007.
Richard was arrested on February 13, 2007, after an officer saw him leaving a local apartment. Officers searching the apartment found a loaded .22-caliber revolver and a sock containing eleven .357-caliber bullets. Officers contacted a man at the residence who claimed to be Mark Butler, but they ...