(Super. Ct. No. 05F10198)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 05F10198)
Seventeen-year-old Navnil Chand, his brother, and two friends approached 14-year-old defendant Sarah Weeden and some of her friends and struck up a conversation. Navnil later called Weeden, who arranged to meet him a few days later. Navnil and a friend, 22-year-old Deovinesh Kumar, arrived at the assignation, where they were met by defendant Sirtice Melonson and another man. The men ordered Navnil and Kumar out of the car, and as Kumar opened his door one of the men shot into the vehicle. Navnil was attempting to open his door when multiple shots rang out. Navnil died of gunshot wounds; Kumar lost part of his finger.
An amended information charged Weeden and Melonson with murder, attempted murder, and attempted second degree robbery. (Pen. Code, §§ 187, subd. (a), 664/187, subd. (a), 664/211.)*fn1 Weeden and Melonson were tried jointly before separate juries. Melonson's jury found him guilty on all counts; Weeden's jury found her guilty of first degree murder and attempted second degree robbery, but found her not guilty of the attempted murder of Kumar.
The court sentenced Melonson to life in prison without possibility of parole, plus 50 years to life, plus 19 years four months. The court sentenced Weeden to 25 years to life in prison, plus four years.
Melonson appeals, contending instructional error, jury misconduct, and the trial court erred in denying him a mistrial. Weeden appeals, arguing instructional error, ineffective assistance of counsel, the court erred in removing a juror, the court erred in denying her motion for a new trial, the court erred in denying her a mistrial, the court lacked jurisdiction, her sentence constitutes cruel and unusual punishment, and sentencing error. We shall affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Following the shooting death of Navnil, an amended information charged Weeden and Melonson with his murder, the attempted murder of Kumar, and the attempted second degree robbery of Navnil and Kumar. (§§ 187, subd. (a), 664/187, subd. (a), 664/211.) The information also charged Melonson with possession of a firearm by a convicted felon and alleged a prior strike conviction. (§§ 12021, subd. (a)(1), 667, subds. (b)-(i), 1170.12.) It was further alleged that Melonson murdered Navnil while engaged in the commission of a robbery. (§§ 211, 190.2, subd. (a)(17).) Finally, the information alleged Melonson personally used a firearm (§ 12022.53, subd. (d)), and that Weeden, a principal, was armed (§ 12022, subd. (a)(1)). Both Weeden and Melonson pleaded not guilty.
Weeden and Melonson were tried jointly before separate juries. The following facts were adduced at trial.
One night in July 2005, 17-year-old Navnil Chand, his brother Shavnil Chand, and two friends, Ashneel Prakash and 22-year-old Deovinesh Kumar, were riding around in Kumar's Toyota Camry.*fn2 The vehicle was new and equipped with an in-dash DVD player, chrome rims, and tinted windows. While driving, they saw four teenaged girls walking down the street.
The group of girls consisted of 14 year olds Angela G. and Weeden, and sisters Christina W. and J.W.*fn3 The boys in the Camry stopped next to the girls. The two groups conversed. Kumar invited the girls to "party" with them, saying his group had beer and "weed."
The girls demurred and Angela gave Weeden's cell phone number to Navnil. After Navnil said he would call Weeden's number, the boys drove away.
The girls walked back to Christina's home. A group of boys hung out across the street. John was outside with his friends, including Ryan Moore and S.M., defendant Melonson's brother. Weeden and Angela talked with the group of boys. Weeden told them about meeting Navnil and Kumar and that they had said they had beer and weed.
Ryan Moore and Weeden talked about robbing the boys. Moore asked if Weeden had their phone number; she told him they had her number. According to Weeden, "[T]he Hindu guy's phone number was restricted."
A few days later, Moore told Hill that he was considering robbing someone. Moore stated he was going to rob "[s]ome East Indian boys" for "weed and money."
During this period, Angela asked Weeden if they were going to do the robbery. Weeden replied, "[Y]es." Angela told Weeden not to do it. According to Weeden, the robbery would take place at Vintage Park, and would yield money and drugs.
John heard from Weeden and Angela that there was going to be a robbery. Weeden asked him to rob the boys they had met the week before. John refused.
A week later, on August 5, 2005, Weeden called Hill and asked for Angela; Hill told her Angela was at home. Although Angela was supposed to see Weeden that day, Angela's mother forbade her from leaving the house.
That evening, Weeden called Hill and talked about boys that kept "crank calling" her phone; she wanted to have them beaten up. Weeden told Hill the boys were trying to get her to go to a motel. Weeden also told Hill she was going to have Moore rob the boys, who kept calling her. She told Hill she met the boys while walking with Hill's cousins. Moore planned the robbery, which would net Weeden weed and money.
Hill warned Weeden that robberies can go wrong and bad things can happen. Weeden responded, "[O]kay."
Also that evening, Navnil called Kumar and asked him to call Weeden's cell phone. Although Kumar called, no one answered. Navnil later called Kumar and told him he needed money; he said it was urgent but did not tell him what it was for. Kumar owed him $60. The duo agreed to meet at an ATM to get the money.
Kumar picked up Navnil, and as the pair drove to the ATM, Navnil talked to someone on his cell phone, trying to get a room at the Motel 6. Navnil used Kumar's phone to call the girl he was meeting. Kumar did not hear Navnil mention drugs or alcohol.
Navnil, while talking on the phone, directed Kumar's route. Navnil told Kumar the girls they met previously were going to meet them at the park. Navnil made numerous calls.
Kumar parked on a side street adjacent to the park, leaving his engine running. Navnil spoke to a girl who said, "I'll be there in two to three minutes." Navnil replied, "I'm waiting for you over here by the park." Navnil told Kumar they should leave the car because the girls told them to go to the park.
A few seconds later, two men appeared at the front passenger side of the car. The window was down about five inches. One of the men stuck a handgun in the window and said, "Mother fuckers, get out of the car."
Thinking the man wanted the car, Kumar began to open his door; Navnil did the same. As Kumar opened the door, the man fired a shot into the car. Kumar saw blood and thought his hand had been cut by broken windshield glass. He put the car in drive and sped off, yelling for Navnil to call the police.
As he drove away, Kumar heard more gunfire. He pulled into a store parking lot and ran inside the store.
A store security guard saw Kumar's Camry speeding into the parking lot. Kumar jumped out and yelled that he had been shot. The store clerk saw Kumar enter the store and fall to the floor. Kumar then got up and went back outside.
Kumar went back to the car and shook Navnil, who did not respond. The security guard saw Navnil sitting upright in the passenger seat, barely breathing. Kumar returned to the store and again fell to the floor. The clerk went to Kumar's aid and saw that part of Kumar's finger was gone. Kumar said he did not want to die. The clerk locked the store and the security guard called the police.
The evening of the shooting, 13 year olds Brittany R. and Vaughn T. sat on playground equipment in the park. A car pulled up and two men walked up to the children.
One of the men was shorter and heavy-set, with short hair and wearing gold teeth. This man also had light skin. Brittany thought "[h]e looked like he was mixed with black and white." Vaughn thought the shorter man looked mixed "Black Mexican." Brittany thought the man was 16 or 18 years old, and maybe five feet six inches tall. He wore a red shirt or sweater and sweat pants or basketball shorts, and carried a backpack.
The second man was African American. He was tall and skinny, with braids and a darker complexion. The man wore a "do rag," a kind of head wrap, on his head. Both men carried cell phones.*fn4
The pair sat down next to Brittany and Vaughn. The taller man spoke to a girl on his cell phone. The shorter man said, "[W]e're going to make a lick [commit a robbery]" to the person on the phone.
One man asked the other, "[A]re these guys gonna get out of the car or what?" The shorter man told the taller man that the men in the car were Indian, and that Indians do not carry guns, only Pakistanis do.
The men asked Brittany and Vaughn to go over to the car and distract the occupants while they came up from behind. Brittany refused. Vaughn told a detective the taller man said, "They ain't trying to get out of the car, let's go." The shorter man at first demurred, but after the taller man insisted, they walked toward the car, approaching the passenger side.
The shorter man stood close to the window; the taller man stood back by the trunk. The shorter man pointed a gun and began shooting into the car through the passenger window. Brittany heard two or three shots; she did not see anyone get out of the car. Vaughn heard three or four shots and saw the shorter man shooting at the person inside the car on the passenger side.
After the shooting, the two men ran. Brittany and Vaughn ran to Brittany's house.
Renice Trujillo, who lived in a court near the park, also heard gunshots that evening. She looked out her window and saw two people walking quickly into the court. They were male, tall and lanky. One wore layered red and white shirts. One of them was talking into a cell phone and mentioned the park. Another neighbor heard five loud pops.
Doug Reid, another neighbor, heard "extremely loud" gunshots that he thought sounded like a large-caliber handgun. He looked out his window and saw two young men walking quickly down the court. One of the men looked Hispanic; the other looked African American. The Hispanic man wore a dark shirt and a backwards baseball cap, and carried a backpack. The other wore a red sweatshirt and a do-rag.
Reid saw the two men jump onto the wall at the end of the court. The men looked around and the Hispanic man dropped the backpack, which appeared to be heavy. The men jumped off the wall and walked away. Reid described the men as suspicious; he also identified the backpack and sweatshirt found next to the wall as those worn by the men.
Daniel Albano, another nearby resident, heard three or four gunshots. He looked out the window and saw two individuals running toward his house. One wore a red or orange sweatshirt and long shorts, and was around five feet seven inches tall and slender. The other person was dressed in black.
Finally, Thorlakur Tryggvason, who also lived in the area, heard five gunshots coming from the park. Looking out his window, he saw one female and five males running from the park. Two of the males ran past his house, entered the next cul-de-sac, and jumped the fence at the end of the court. He described the males as teenagers, either Asian or Hispanic and African American, of average height and build.
Weeden's Activities the Night of the Murder
Weeden called Hill repeatedly that night to have her get in touch with Moore. Weeden asked Hill to call Moore and find out where he was. Moore said he was on his way home. Weeden called later, again asking where Moore was. Moore said he was getting a ride from defendant Melonson and did not seem surprised that Weeden wanted to know where he was.
While Hill spoke with Weeden, the boys she had met that night kept "buzzing in" on Weeden's phone. Weeden told Hill to ask Moore whether he was at the park. Moore said he was at the big park, and after Hill told Weeden, she said "[O]kay." Weeden told Hill to ask Moore if he saw the boys at the park and if he saw the boys' gold car. Moore did not see the car.
Weeden told Hill to tell Moore to go to Caymus Park. Weeden then told Hill to ask Moore if he saw the boys at that park, and Moore said he saw a gold car. Weeden said, "[T]hat's them." Weeden told Moore there had been two or three boys in the car. Hill spoke to Melonson once or twice on Moore's phone. Moore hung up and Hill did not speak with him again that evening.
Later that evening, Melonson called Hill and told her to keep quiet if anyone asked questions and to turn off her phone. Angela told Hill someone had been shot. Hill tried to contact Moore but could not reach him. Hill also called Weeden, but Weeden had not heard from Moore. A week or two after the murder, Melonson called Hill and told her not to talk to the police.
Sheriff's deputies responded to the shooting. Navnil sat bleeding and unresponsive in the front passenger seat. The Camry had broken glass and bullet holes on the passenger side.
Kumar lay on the floor of the store, covered in blood. Kumar told responders the shooting had occurred at a nearby gas station. He described the assailants as two dark-skinned black males wearing shorts.
Navnil suffered gunshot wounds to his back and hand. The fatal wound was caused by a bullet that entered his back and perforated his lung and heart. The entrance wound was irregularly shaped, which indicated the bullet struck something before entering Navnil's body. Navnil did not have drugs or alcohol in his system. Kumar had been shot in the finger, losing part of it.
Detectives Christopher Joachim and Grant Stomsvik were assigned to investigate the shooting. Their examination of the Camry revealed the car had very dark tinted windows, after-market rims, and low-profile tires.
The passenger-side windows were shattered and the car had four or five bullet holes. The right rear passenger window and the right front passenger window had bullet holes. Other bullets passed through the right rear passenger door and the base of the right front passenger window. Two of the bullets appeared to have been shot either as the car was moving away or the shooter was moving toward the rear of the vehicle.
The investigation also revealed damage to the Camry's interior. The windshield had been hit and blood was pooling in the center console area. A cell phone charger was plugged into the cigarette lighter. Copper jacketing from a bullet was also found inside the car.
Detectives found a bullet fragment on the driver's seat between the seat and the back cushion. In Detective Joachim's opinion, based on the physical evidence and witness statements, there was one shooter and one gun, and all the shots came from outside the vehicle.
The investigation also revealed Kumar's wallet on the Camry's floorboard. It contained a debit card but no cash.
Kumar talked to the police at the hospital. Although Kumar initially said the shooting took place at a supermarket gas station, he testified that he had lost a lot of blood and was not thinking clearly at the time.
The next morning, after police told Kumar about Navnil's death, Detective Stomsvik drove Kumar back to the park. Kumar told the detective that Navnil talked on his cell phone to a girl who told him to go to the park. Navnil told the girl he was at the park, and Kumar heard the girl reply that she could be there in two or three minutes. Kumar heard the girl tell Navnil to sit on a bench.
After Kumar parked, two men came up to the passenger-side window of his car. Kumar saw a gun come through the window, and the person said, "[G]ive me everything you have and step out of the car." As Navnil opened the door, he hit the man's arm.
The man fired one shot that Kumar thought hit the windshield. Kumar started to drive away as more shots were fired. The shooter was a fair-skinned Asian male, 18 to 20 years old, five feet nine inches tall with a heavy build, and wearing an orange shirt. However, Kumar could not identify either of the two suspects in a photo lineup.
The morning after the shooting, Doug Reid approached a deputy securing the crime scene at the park. Reid told the deputy he knew something about the shooting and took the deputy to his nearby home. Reid showed the deputy the wall that someone had scaled the previous evening.
The deputy drove around to the other side of the wall and discovered a revolver, a backpack, and a red sweatshirt in the vegetation along the wall. The backpack contained shorts, boxer shorts, a pencil, and razors. The DNA extracted from one of the razors matched Melonson's genetic profile.
The revolver held six rounds but contained only one casing when found. Officers found five empty shell casings loose on the curb. DNA extracted from the revolver's grip contained a mix of DNA from at least three individuals. Melonson was excluded as being a possible contributor to this mixture.
A forensic expert testified the bullet recovered from Navnil's body could not be matched to a particular gun because the bullet core did not make contact with the barrel of the weapon or the barrel's rifling. Nor could the lead fragment recovered from Navnil's body be matched.
The forensic expert test-fired the revolver found by the wall to compare it with evidence found at the scene. Three of the casings found by the wall were fired by the revolver. Two other casings were likely fired by the revolver. The copper jacketing found in the Camry was likely fired by the revolver.
About a month later, officers searched the home of Melonson's uncle, where Melonson sometimes stayed. Officers found six boxes of Winchester .357-Magnum shells in the garage; five boxes were full, containing 50 cartridges, and one box contained only 48. Melonson's uncle testified that his garage had been broken into months before and three boxes of shells were stolen.
One of Melonson's friends, Shakti Rana, owned a .357-caliber revolver, which looked like the gun found in the bushes near the park. Melonson's brother, S.M., stated that Melonson and Rana shared a gun in July and August 2005 but denied the gun found in the bushes was the same gun.
Melonson's girlfriend, Julie G., had been dating him for about a year at the time of the shooting. Julie gave Melonson a backpack, which he used to carry clothes and toiletries. She identified the backpack found in the bushes as the backpack she gave Melonson. Julie identified the shorts found in the backpack as belonging to Melonson. That summer, Melonson told Julie someone had stolen his backpack.
Gabrielle Perez, a friend of Melonson, was driving home one evening in 2005 when she saw police in her neighborhood. Later that night, Melonson sent Perez a text message stating he had "popped someone" and needed to talk. Melonson called Perez the next morning and told her he shot someone and threw away his "piece." He feared that if the police found it they would find him. Cell phone records showed the text message was sent and the call was made on August 5 and August 6, 2005. Melonson changed his phone number a few days later.
Melonson's friend Chris Butler moved from Sacramento to Denver, Colorado, in 2005. While in Sacramento, Butler had a cell phone that did not provide service in Denver. He got a new phone in Denver and left his prepaid cell phone with his girlfriend. Butler's girlfriend did not know Julie, Perez, Moore, Rana, or Hill. Butler was in Denver from July to early September 2005. He went to pick up Melonson at a bus terminal in Denver in November 2005, but officers arrested Melonson at the station.
When arrested at the bus station, Melonson was 20 years old, five feet seven inches tall, and 185 pounds. Melonson carried a cell phone, prepaid calling card, and a one-way bus ticket to Denver in the name of "Mr. Brown." During the booking process, Melonson told officers he was "not looking for the best deal in the world. He was looking to make sure he got out of prison by the time he was 45 or 50."
The prosecution presented extensive evidence of numerous phone calls and text messages among the various parties.
Cell phone records for Navnil's, Weeden's, Melonson's, Moore's, Hill's, and Kumar's phones were introduced.*fn5 The phone number for Melonson's phone was changed on August 6, 2005, and again on September 7, 2005. Weeden changed her number after the murder.
Numerous phone calls were made by Navnil to Weeden beginning late on the evening of July 29, 2005, and ending on the night of the shooting. The calls were very brief and many went straight to voice mail.
Late in the afternoon prior to the shooting, Navnil began calling Weeden from his cell phone. There were also several calls to Weeden from Kumar's cell phone. Navnil's cell phone blocked caller identification, preventing the recipient from identifying the caller. Twenty-nine calls were placed to Weeden from Navnil's and Kumar's phones; she did not answer 13 of the calls. The calls continued up until the time of the shooting.
Navnil called Weeden for the last time at 10:59 p.m., but Weeden was already on the phone with someone else and did not answer. At 11:03 p.m., Navnil called 911. Navnil made no calls to Melonson, Moore, or Hill.
Shortly after the first call from Navnil on the night of the murder, Weeden and Hill began calling each other. There was a 41-minute phone call from Weeden's cell phone to Hill's home phone that ended at the time of the murder. Immediately after the murder, there was a 26-minute phone call between Weeden's cell phone and Hill's cell phone. Later in the evening there were a few brief calls between Weeden's cell phone and Hill's cell phone. Weeden did not call Navnil or Melonson.
Moore first called Melonson the day before the murder. Melonson returned the call. Melonson called Moore at 6:07 the evening of the shooting. There were 17 calls between Moore and Weeden on the night of the murder. The calls began when Moore called Weeden at 9:30 p.m. and then called Melonson at 9:31 p.m. The calls between Moore and Melonson ended at 10:06 p.m. The calls between Moore and Weeden ended at 10:42 p.m.
Hill called Moore 18 times the night of the murder. The calls began about 12 minutes before the murder and continued after the murder. Moore never called Hill.
Cell phone tower data showed Moore's and Melonson's phones were being used in the area of the park between 10:00 and 11:00 p.m. the night of the murder. Navnil's cell phone was in the vicinity of the park at 11:00 p.m. Hill's and Weeden's cell phones were in a different part of town.
At 11:04 p.m., immediately after the murder, Melonson called Rana. Numerous calls between the two followed. Melonson also tried to call Perez one to two hours after the shooting. They spoke briefly the morning after.
In November 2005 Detective Joachim directed Moore to send a text message to Weeden over their cell phones. Another officer took a photo of each message.
Weeden told Moore she was moving to Los Angeles. Moore said, "[O]h, you movin' because of what happened with the Sirtice thingy," and Weeden answered, "Nah, I don't even really care about that, but den I kind of do because someone keep [sic] calling me saying they gonna kill me. I wasn't even the one that told on him."
Moore asked Weeden if she had told her father about what Moore had done. Weeden responded: "[N]o, all I told him was you my friend and you didn't do anything." Moore falsely told Weeden that in order to get a deal, Melonson had told the police about what she and Moore had done. Weeden asked what kind of deal Melonson made and if Moore was going to be arrested.
Moore said it was all Weeden's fault because she met the "hindus." Weeden responded: "[D]is ain't my fucking fault. Sirtice should [sic] have done what he did. He brought you into that by doing that. This shit wasn't my fault, so don't even fucking say it was." Weeden said, "[I]t's Angie's fucking fault, dummy. She da one that went to the car and gave them my number."
Moore replied: "[I]t was yo fucking idea to even rob them." Weeden denied this and blamed Angela, asking Moore, "Why you trying to put this on me? It wasn't my fucking idea. It was Angie's, so shut up. They already know it was."
Weeden continued: "I didn't set nuttin' up." She admitted knowing Melonson was going to rob the boys: "I already fuckin told them I knew Sirtice was going to rob them. They already know what I did. I told the truth, but I didn't set this up, okay." Weeden said she was "hella scared" and did not want either of them to go to jail.
Moore asked Weeden what she had told the police about the robbery and she replied: "I told them that someone told me to tell them to meet me at the park, and that Sirtice was gonna be there to rob them, but I didn't tell them who told me to set it up." Weeden blamed Hill, saying, "And you know dis all Janee fault because she told them some shit, then they got her phone records and mine den yours." Weeden advised Moore: "If you want to get out of this, you have to give up Angie's name."
Statements by Participants
In November 2005 Detective Joachim interviewed Angela about the night of the murder. Angela told the detective that Weeden was telling everyone about the previous meeting with Navnil, Kumar, and the other boys. She said the boys had weed and beer.
Weeden talked extensively to Moore about meeting the boys. Moore suggested they rob them. Weeden agreed and said, "[Y]eah, we should." Moore asked Weeden if she had the "Hindu guy's" number and she told him he had her number. Angela told Weeden not to do the robbery, but Moore said he and "Teze" should rob the boys.
After Angela passed the victim's car, she asked Weeden if they went through with the robbery. Weeden denied it. After the murder, Weeden did not want to discuss it over the phone.
In December 2005 Detectives Joachim and Stomsvik interviewed John. John indicated Weeden planned out the robbery. He overheard Weeden telling ...