California Court of Appeals, Second District, Fifth Division
Order Filed Date 12/11/13
CERTIFIED FOR PARTIAL PUBLICATION[*]
APPEAL from a judgment of the Superior Court of the Los Angeles County, No. BA379826 Robert Perry, Judge.
Fay Arfa for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION
It is ordered that the opinion filed herein on November 26, 2013, be modified as follows:
A new footnote 4 is added to the end of the first full sentence on page 30, after the word slide, which reads as follows: Defendant contends that she was prejudiced by the bailiff’s demonstration because Keil testified about the operation of the handgun using a diagram of the handgun, and the bailiff demonstrated the operation of the handgun using the actual handgun. There was no material difference between Keil’s testimony using a diagram, and the bailiff’s demonstration using the actual handgun. (Cf. People v. Duenas (2012) 55 Cal.4th 1, 20 [diagrams are demonstrative evidence]; People v. Collins (2010) 49 Cal.4th 175, 255-256 [a jury’s demonstration and use of a diagram during jury deliberation was not prejudicial jury misconduct because they were based on the evidence admitted at trial].)
All subsequent footnotes are renumbered.
Petition for rehearing is denied. No change in judgment.
MOSK, Acting P. J.
Defendant and appellant Tomiekia Johnson (defendant) was convicted of the first degree murder of her husband, Marcus Lemons (Lemons). (Pen. Code, §§ 187, subd. (a), and 189.) On appeal, defendant contends, inter alia, that her statutory and constitutional rights to be present at trial were violated when the trial court, without defendant being present, allowed the bailiff to demonstrate the operation of the murder weapon in response to a jury request and to respond to questions from the jury about how the weapon operated.
In the published portion of this opinion, we hold that the trial court erred by allowing the bailiff, without the presence of defendant, to conduct for the jury a demonstration of how the murder weapon operated and answer jury questions about that subject, but that error was not prejudicial because defendant was present when the prosecution’s expert provided testimony that was consistent with the bailiff’s communications with the jury. The failure of defendant’s counsel to object to the colloquy between the bailiff and the jury forfeited any contention concerning that process. We affirm the judgment of conviction.
A. Factual Background
1. Summary of Evidence
A surveillance video from the inside of a bar showed Lemons and defendant drinking at the bar on February 21, 2009. Later that evening, the driver of a car and her passenger observed a physical altercation between a female and a male outside their car and noticed that when the female departed in the couple’s car, they only saw the female’s head; neither the driver nor her passenger saw the male. They testified the man and woman were African Americans, and that the man wore a baseball hat. Their description of the couple’s appearance was consistent with the physical appearance of defendant and Lemons in the video at the bar, and with the hat subsequently recovered near Lemon’s body.
In response to a 911 call from defendant’s mother, the police found Lemons’s body in defendant’s car parked outside her mother’s house. Lemons had suffered a fatal gunshot wound to the head. Defendant was arrested. The police found in the car a.25 caliber semiautomatic handgun, loaded with a magazine containing five rounds and one round in the chamber. Just behind the driver’s seat there was an expended.25 caliber shell casing. The hammer on the gun was in the cocked position, and the safety lever was in the center position.
A deputy medical examiner concluded that based on the trajectory of the bullet and the wound, the gun was in a position above and to the right of Lemons when it was fired and that the gun was in contact or near contact with Lemons’s head. She further opined that Lemons was seated on the front passenger seat, and the shooter was standing near the front passenger door frame.
At the time of the shooting, defendant was a seven-year veteran California Highway Patrol (CHP) officer. Nevertheless, she had a past history of making threats, firing her weapon, and engaging in threatening conduct, including, inter alia, against Lemons.
According to defendant, she and Lemons argued on the way home from the bar on the evening of February 21, 2009, and she exited the car to walk home. She thought Lemons was going to reach for a gun that she believed was in her purse that she left in the car. Lemons was in the passenger seat with one foot on the ground. When defendant saw the gun on the ground on the passenger side of the car, she was afraid Lemons would get it so she picked it up, squeezed the gun tightly, and, in so doing, it fired accidentally striking Lemons. She drove him to her parents’ house and told them to call 911 because she had shot and killed Lemons. Defendant’s firearms and trajectory reconstruction expert said that Lemons did not suffer a contact wound and that there was not sufficient evidence to determine Lemons’s position when he was shot.
2. Prosecution Evidence
a) The Incident
Portions of a February 21, 2009, video recording of the interior of a TGI Fridays bar (TGIF) located in the City of Compton depicting defendant and Lemons were played for the jury. The parties stipulated that defendant and Lemons arrived at TGIF on February 21, 2009, about 9:00 p.m. It appeared from the video recording that both defendant and Lemons were African-American and defendant had straight hair that was slightly shorter than shoulder length. Lemons wore a baseball cap.
Los Angeles County Sheriff’s Department (LASD) Detective Frank Salerno testified, based on the TGIF video recording that defendant, a CHP officer, and her husband Lemons were at TGIF, and at some point defendant left Lemons and went to the other side of the bar to talk to a man. For approximately 17 minutes, defendant sat next to the man. They talked, whispered and hugged each other. During this time, Lemons talked to a friend on his cell phone. Lemons then motioned defendant to return to his side, and she complied. Lemons seemed to be restless, repeatedly standing up and sitting down on his bar stool. While at TGIF, defendant drank two shot glasses of alcohol and a beer, and Lemons drank one shot glass of alcohol and one beer. After defendant paid the bill, she and Lemons left TGIF together at about 10:47 p.m.
Janie Wright testified that on February 21, 2009, she was watching a movie at the Lakewood Mall located at 5200 Faculty Avenue in Lakewood with her daughter and three nieces. The movie ended at 10:23 p.m. Approximately 10 minutes after the movie ended, Wright and the girls returned to their parked vehicle and left.
While traveling to her niece’s house in Compton, Wright stopped her vehicle at a red light on Wilmington, near Central. Wright and Ashley Young, one of Wright’s nieces, testified that they noticed a silver—or gray—colored car parked on the side of the road. They observed a physical altercation between the female driver and the male passenger.
According to Young, the female driver exited the vehicle and went to the rear of the vehicle. The male exited from the vehicle’s passenger side and met the female driver near the rear of the vehicle. The female was “just going crazy basically”—she “charg[ed] toward[s]” the male and hit him several times with her closed fists. The man tried to block the woman’s blows. The man eventually backed up against the open front passenger door and fell into the car, and the woman got on top of him in the car.
Young testified that she momentarily lost sight of the incident, and when she regained sight of it, she saw the woman slam the passenger door shut, return to the driver’s seat, and drive off “really fast.” Wright testified that she only saw one head inside the vehicle and concluded, “Well, maybe he’s sitting on the cur[b]... or maybe he’s walking away.” Wright continued to look for the man, but did not see him.
Both Wright and Young testified that the couple was African-American, and the man wore a baseball cap. Wright testified that the woman had “pressed” bobbed hair, and her hair extended below her ears.
At approximately 11:00 p.m., in response to a 911 call from defendant’s mother, LASD Deputy Curtis Brown went to the mother’s house to investigate a report of an assault with a deadly weapon and a gunshot victim. When Deputy Brown arrived at the location, he saw defendant standing in the driveway with her vehicle parked in the front of the house. Deputy Brown detained defendant, placed her in the back of his patrol vehicle, and noticed a strong odor of alcohol emanating from her. Inside defendant’s BMW, Deputy Brown found the body of Lemons, who was deceased, with a gunshot wound to the right side of his upper forehead.
At approximately 2:00 a.m. on February 22, 2009, LASD Detective Steve Rubino arrived at the house of defendant’s mother. Detective Rubino found a purse on the floorboard of the driver’s seat of defendant’s vehicle, inside of which were various items belonging to defendant, as well as a.25 caliber semiautomatic handgun. The gun was loaded with a magazine that contained five rounds, and there was one round in the chamber. On the left rear floorboard directly behind the driver’s seat, there was an expended.25 caliber shell casing. The hammer on the gun was in the cocked position, and the safety lever was in the center position. In the driver’s side cup holder, there was a Styrofoam cup half-filled with wine. In between Lemons’s legs, on the passenger seat floorboard, Detective Rubino found a baseball cap.
b) Forensic Evidence
i) Dr. Lisa Scheinin
Dr. Lisa Scheinin, a deputy medical examiner with the Los Angeles County Department of Coroner, conducted the autopsy on Lemons’s body. Lemons had a gunshot wound to the right side of the forehead close to the hairline. The direction of the wound went from right to left, front to back, and downward. Lemons also had a bruise on the edge of his left forearm and a scratch on his right forearm close to the wrist. Both forearm injuries were consistent with defensive wounds. Based on the bullet’s trajectory, Dr. Scheinin concluded that the gun was in a position above and to the right of Lemons when it was fired.
In Dr. Scheinin’s opinion, Lemons died of a contact or near contact wound. She explained that her opinion was based on the fact that no stippling or soot, which are deposits from the explosive gases leaving the muzzle ahead of the bullet, were found around the wound or on Lemons’s skin, but there was soot on the thick membrane surrounding the surface of Lemon’s brain. Dr. Scheinin added that Lemons suffered a contact wound or “even a tight contact wound” because the soot was “pushed all the way into the wound track rather than being on the surface.” Based on the bullet trajectory, the blood flow, and the vomit pattern, it was Dr. Scheinin’s opinion that Lemons was seated on the front passenger seat while the shooter was standing near the passenger door frame. The toxicology results showed that at the time of his death, Lemons had a blood alcohol content of between.03 and.07, as well as traces of marijuana in his system.
ii) Robert Keil
LASD senior criminalist Robert Keil testified that he recovered a handgun from defendant’s purse located on the driver’s side floorboard, and a bullet cartridge on the left rear floorboard. The handgun, a model Titan.25 caliber semiautomatic pistol, was admitted into evidence. The bullet fragments found inside Lemons’s body and the casing found in the backseat of defendant’s vehicle came from the recovered pistol.
Keil asserted that he was proficient with guns and testified extensively about the characteristics and operation of the gun used to kill Lemons. According to Keil, the Titan pistol operated in a single-action mode; it was not a double-action firearm; and the weapon had a maximum capacity of nine rounds, with eight rounds in the magazine and one additional round in the chamber. Keil performed a “trigger pull test” and determined that to pull the trigger and cause the hammer to release required approximately seven and a half pounds of force, slightly less than the weight of a gallon of milk.
Keil examined the bullet hole on the baseball cap found near Lemons and found traces of gun powder in the fabric. Based on his analysis of the residue left on the baseball cap, he opined that the shot was fired in “contact or loose contact, meaning that the muzzle was either pressed against the fabric or just slightly removed from the fabric”—no more than a quarter of an inch away from the target. This conclusion was supported by the fact that Keil found discoloration on tissue samples of Lemons’s brain membrane, consistent with soot caused by gun powder, as well as red fibers from the baseball cap fabric inside the wound.
Based on, inter alia, the contact or loose contact bullet hole found on the baseball cap, the bullet trajectory, and the vomit drippings on the chest, inner thighs, and cap, Keil also opined that when the shot was fired the shooter was positioned outside of the car and inside an open door, standing above Lemons with the gun pressed against Lemons’s head. He said that an accidental discharge following a drop of the weapon was inconsistent with the contact wound on Lemons.
c) Defendant’s Law Enforcement Experience and Training
Defendant was hired by CHP as a cadet in September 2002 and graduated from the CHP Academy on March 14, 2003. After graduation, defendant worked, inter alia, as a field officer in the West Los Angeles area and as a member of the Cal Grip detail that assisted contract cities with gang suppression.
Defendant had extensive firearm training. All CHP officers were trained to carry their handgun in a double-action mode, meaning the hammer and the slide of the weapon were not pulled back, thus requiring greater force to pull the trigger to fire
d) There Was Evidence of Prior Threats and Acts of Defendant Including Those Directed at the Victim
i) Defendant’s burning of a basketball shirt on the vehicle of a person she dated in college
Corey Jones testified at trial that in about October 1997, he dated defendant while they attended California State University at Dominguez Hills. When defendant found out that Jones was seeing another woman, she went to the woman’s apartment, found Jones in the bedroom, and told the woman, “If my knee wasn’t messed up, I’d whoop your ass.” The next day, Jones found on his car a burned basketball shirt he had given to defendant. When Jones later confronted defendant about why she had burned his shirt, defendant said, “Yeah, because you lied. You was messing with Chavronne. I knew you was.” Defendant seemed aggressive to Jones.
ii) Defendant’s threats to at the shoot house of a person she dated in college, and breaking of vehicle windows
William Hall testified that he met defendant while they attended California State University at Dominguez Hills together. In December 1998, defendant was dating Hall’s roommate, Kedrean Terrell. One evening, after defendant and another friend returned home from a party, defendant climbed over a locked eight-foot tall gate and began banging on a window. When Hall asked defendant what she was doing, defendant laughed and shouted, and angrily said, “I’ll have somebody come shoot your house up.” She mentioned someone by name from the Tragniew Park Crip gang. Hall took the threat seriously. Terrell came home shortly thereafter and, in Hall’s presence, called defendant on the phone. During the phone call, Hall heard defendant repeat the same threat to Terrell.
Hall testified that the next morning he saw that someone had “smashed” out the windows of several cars parked outside his house—his two vehicles, Terrell’s vehicle, and a neighbor’s vehicle. Hall filed a police report and went to defendant’s mother’s house to confront defendant. While talking to defendant’s mother, Hall heard defendant screaming from one of the rooms in the house, “Yeah, I did it.”
iii) Defendant and Lemons arguing and defendant shooting into the air
Derrick White testified that when Lemons and defendant were dating, White was with Lemons at an apartment complex defendant owned. Defendant arrived and brought some hard alcohol. She and Lemons drank some of it. At one point, defendant accused Lemons of looking at “some type street walker chick walking down the street.” Defendant “kind of went off” on Lemons and said, “Is this what you want? Is this what you looking at, this kind of bitch?” Shortly thereafter, White heard a gunshot. Lemons ran inside the house laughing and said, “Man, this girl is crazy. She just shot a gun up in the air.”
iv) Defendant shooting at a concrete freeway embankment
Darren Stillwell testified that in 2008, he was at one of defendant’s apartment buildings with defendant and Lemons. There was a homeless woman in the back of defendant’s property, and defendant told her to leave. Defendant was visibly upset. As the homeless woman was walking away from the property, Stillwell saw defendant grab a gun out of her silver BMW and shoot into a concrete freeway embankment. Stillwell said to Lemons, “Man, your wife is crazy.” Lemons responded, “Yes, I know that.”
v) Defendant’s statements that she carried a gun
June Collier had known defendant for 30 years because her son and defendant grew up together. She testified that she heard defendant state on a few occasions that she was “always carrying” a gun or that she was “always strapped.” Defendant once became upset at another person while bowling, and Collier heard defendant say, “They don’t want to mess with me. I’m always strapped.” Felecia Tripp testified that in December 2008, while attending a birthday party at a Holiday Inn, she heard defendant say, “Don’t worry, I got my... gun in my... shoe.”
vi) Other arguments between defendant and Lemons and defendant’s physical altercations
Collier testified that she often participated in bowling tournaments in which both defendant and Lemons also participated. She had seen “[q]uite a few” disagreements between defendant and Lemons, and defendant “pretty much [yells] when she’s had a few [drinks].” She saw defendant throw a small bowling supplies bag at Lemons after they had “a few words, ” and defendant place her hand on Lemon’s face while arguing with him. On one occasion, defendant said that “she sometimes fe[lt] ...