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People v. Reed

Supreme Court of California

May 7, 2018

The People, Plaintiff and Respondent,
Ennis Reed, Defendant and Appellant.

          Los Angeles County Super. Ct. No. TA037369-01 John Joseph Cheroske Judge

          Gail Harper, under appointment by the Supreme Court, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Sharlene A. Honnaka and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

          Cuéllar, J.

         This automatic appeal follows from defendant Ennis Reed's 1999 conviction and death sentence for the murders of Amarilis Vasquez and Paul Moreland. Reed contends that several errors occurred during the guilt and penalty phases of his trial. After carefully considering defendant's claims, we find that they do not merit reversal of the guilt or penalty verdicts. So we affirm the judgment in its entirety.

         I. Facts

         Defendant Ennis Reed was charged in an amended information with two counts of murder (Penal Code § 187, subd. (a)), [1] two counts of attempted murder (§§ 667/187(a)), the special circumstance of multiple murder (§ 190.2, subd. (a)(3)), and various enhancements. The charges arose out of two separate incidents, but were consolidated in a single trial.

         A. Guilt Phase

         1. The Vasquez Murder

         At around 8:00 p.m. on September 24, 1996, Carlos Mendez and his wife Amarilis Vasquez took a meal break from their jobs at a plastics factory. The couple headed to Tacos El Unico, a Mexican fast food restaurant on Long Beach Boulevard in the City of Compton. Mendez and Vasquez parked in the restaurant's lot and ordered food to go. After they got back into their pickup truck, the couple noticed a man walking toward the truck with a large pistol. Mendez had never seen the man before. As Mendez started the truck, the man started shooting at them from a distance of roughly 20 feet. Vasquez - sitting in the passenger seat - was hit first, in the head. Mendez was then shot in the right cheek. He got out of the truck and started running, but was hit again, this time in the left thigh. Mendez fled about 15 feet from the truck before realizing that his wife was still inside. By the time Mendez ran back to the passenger side of the truck, the man had disappeared. Vasquez died from the gunshot wound to her head, while Mendez survived.

         Officer James Lewis of the Compton Police Department was one of the first law enforcement officers to arrive on the scene. Officer Lewis interviewed Mendez, who was clearly “very, very upset.” Mendez described the shooter as a black male with a black jacket. Later that evening, Detective Michael Paiz of the Compton Police Department interviewed Mendez at the hospital. Mendez described the shooter as a black male “about 5'8” to 5'11” in height, 20 to 25 years in age, clean shaven, short black hair, wearing a black jacket and black pants.” At trial, the parties stipulated that Officer Peters of the Compton Police Department would have testified that, on the day of the incident, Mendez described the shooter as “a male black adult, 25 years old, wearing black pants and a black jacket, clean shaven, with short hair, 5'11”, 150 to 180 pounds, medium complexion.”

         In January of 1997, Detective Paiz showed Mendez a six-photo array that included a photograph of defendant Reed. “[R]ight away, ” Mendez picked the photo of Reed. In May of 1998, Mendez identified Reed as the shooter at a preliminary hearing that Reed attended. About two months later - on July 14, 1998 - Mendez attended a live lineup at the county jail.[2] Mendez quickly selected Reed because his face “look[ed] like the same as in the photo.” Mendez also identified Reed in court during the trial.

         2. The Moreland Murder

         On November 22, 1996, Roy Fradiue was hanging out with his friend Paul Moreland at Fradiue's uncle's house. The two started drinking sometime that evening - or possibly earlier - and smoked marijuana as well. Moreland died with phencyclidine (PCP) and cocaine in his system; a deputy medical examiner opined he must have ingested the cocaine within hours of his death.

         At around 11:00 p.m., Fradiue and Moreland left the house to walk to a store on Long Beach Boulevard in the City of Compton. As the two were walking, Fradiue noticed a man standing with several “dudes” in the yard outside of a duplex on Glencoe Avenue. Fradiue had never seen the man before. He noticed that the man was holding “some type of rifle” with the barrel resting on his shoulder, pointing backward. The man said something to Moreland, but Fradiue could not understand what. Once Fradiue and Moreland passed the duplex, Fradiue heard a shot. He did not see the man fire the rifle but assumed that the man fired into the air because “it didn't hit nothing.” Then, the man started firing at Fradiue and Moreland. Fradiue headed south on Temple Avenue, while Moreland headed north. The man fired once at Fradiue, but the shot hit a pole instead.[3] Fradiue kept running and, a few minutes later, he heard “three or four more shots.” Roland Darby was at his house near the intersection of Glencoe and Temple at the time of the shooting and recalled hearing a series of shots, a pause, [4] and then another series of shots. A few blocks away, Fradiue ran into another friend, who drove him back to his uncle's house.

         Officer George Betor of the Compton Police Department was the first officer to arrive on the scene. He found Moreland's body at the corner of Glencoe and Temple avenues. Moreland had been shot nine times. Officer Betor collected three shell casings and bullet fragments from the area surrounding Moreland's body.

         The next night, Officer Betor and two colleagues chased a man named Chico McLaine - a suspect in an unrelated matter - into a house near the scene of Moreland's murder. The officers encountered an unidentified man in the house but did not arrest him. The officers also found an SKS rifle and magazine, both of which Officer Betor seized because they fired the same caliber of bullet as the shell casings that the officer had found the night before. A forensic expert identified two of the three casings found near Moreland's body as having been fired by the SKS rifle. The third shell casing had been “worked through” the weapon but not fired. Tests were inconclusive, however, as to whether the bullet fragments came from the SKS rifle. Law enforcement also could not obtain any fingerprints from the weapon or magazine. When shown the gun during his trial testimony, Fradiue stated that it “look[ed] like” the weapon he saw on November 22.

         Officer Marvin Pollard of the Compton Police Department testified that - earlier in the same night as officers pursued McLaine -- he had encountered Reed and filled out a field interview card describing their interaction. The card indicated that Officer Pollard encountered Reed near the intersection of Glencoe and Temple avenues. Officer Pollard stated that other officers were present, but that they did not enter any building during the encounter. The interview card included a description of Reed's tattoo, which Officer Pollard relied on to identify the defendant in court. The card also described Reed as weighing 122 pounds, although Officer Pollard could not recall if the information came from Reed himself or his state ID card. In the “Persons with Subject” area of the interview card, Officer Pollard wrote “I. McLaine.”

         Fradiue never contacted the police after escaping from the shooting that killed Moreland. In April 1997 - roughly six months after Moreland's death - Officer Paiz contacted Fradiue and showed him a six-photo array that included a photo of Reed. Fradiue testified that he selected Reed's photo after studying the array for “10 minutes, ” although Officer Paiz recalled that the identification took roughly “10 seconds.” Fradiue thought that the shooter had “real short” hair, and admitted that Reed was the only subject in the lineup with “real short hair.” Fradiue also identified Reed at the same post-preliminary hearing lineup that Mendez attended, as well as at trial.

         3. Defense Evidence

         Reed called a single witness, Foster Slaughter. Slaughter was sitting outside the Zodiac motorcycle club at the time of the Vasquez murder. Slaughter was about 50 feet from Tacos El Unico when someone started shooting at Mendez and Vasquez. Slaughter saw the assailant only from the side but described him as a black male with long hair and a “big long coat.” He estimated that the assailant weighed 190 to 200 pounds, although he admitted that the coat could have given him that impression. Slaughter testified that Reed did not “look like the one was there [sic].”

         On rebuttal, the prosecution called Officer Kenneth Roller of the Compton Police Department. Officer Roller interviewed Slaughter immediately after the incident. Officer Roller's report indicated that Slaughter had described the assailant to him as a black male adult “wearing a three-quarter length black jacket and dark jean pants.” The officer testified that he would have included additional information in the description had Slaughter provided any.

         The jury convicted Reed of both counts of murder (in the first degree) and both counts of attempted murder. The jury also found true the special circumstance of multiple murder.

         B. Penalty Phase

         The first penalty phase trial ended in a hung jury, with the jury voting seven to five in favor of life without parole. The penalty phase retrial commenced on July 30, 1999. The parties stipulated that Reed had been convicted of attempted murder on September 12, 1992, “on an aiding and abetting theory... wherein he was charged as being the driver in a drive-by shooting, not the shooter.” A parole officer testified that Reed was released from prison on August 3, 1996, and reported to the parole office two days later. The prosecution also introduced the following evidence specific to the two murders.

         1. The Vasquez Murder

         Carlos Mendez recounted what happened on the day of his wife's murder. He also testified about the effect of her death on him. Defense counsel cross-examined Mendez about the circumstances of his identification of Reed as the shooter. Officer Robert Childs of the Compton Police Department arrived on the scene and collected nine shell casings and two expended bullets from the area surrounding Mendez's truck. A forensic pathologist testified about the cause of Vasquez's death.

         2. The Moreland Murder

         Roland Darby heard gunshots on the night of Moreland's murder. He also looked out the window and saw Moreland's dead body. Roy Fradiue recounted the circumstances of Moreland's murder. Defense counsel cross-examined Fradiue on various factors relating to the strength of his identification of Reed as the shooter: Fradiue had consumed alcohol and marijuana, it was dark out, and he had never seen the shooter before. Detective Paiz described the rusty bullet hole in the sign on Temple Street. Floyd Moreland - Paul's father - testified about his son's life and that he missed Paul “terribly.” Officer Betor described the scene of Moreland's murder and recounted finding the SKS rifle in the nearby house. A forensic pathologist testified about the cause of Moreland's death.

         3. Defense Case

         Joe Galindo was at his girlfriend's house near Tacos El Unico on the evening of Vasquez's murder.[5] He was on her porch when he heard three gunshots. He then saw a black, “somewhat stocky” man run past his girlfriend's house at a distance of roughly 50 feet. Galindo did not see the man's face but did not believe that Reed was the man. Galindo - who was 6'1” and weighed about 200 pounds - testified that the man he saw “must have been at least my height or a little bit taller.” Defense counsel then read Slaughter's testimony from the guilt phase to the jury.

         Dolores Sheen was the executive director and principal of the middle school Reed attended for seventh grade. Reed displayed poor literacy and performed at a third or fourth grade level. Reed was initially interested in school, but his interest waned over time. Often tardy or absent, Reed began to exhibit behavioral disorders. Sheen attempted to involve Reed's mother in his education, but his mother did not provide any “visible support system.” The school did not promote Reed to eighth grade.

         Dolores Churchill was Reed's great-aunt. She testified that Reed's father and mother separated when Reed was in kindergarten. Reed had minimal contact with his father and his relationship with his mother was “strained.” Reed always manifested learning disabilities and stopped going to school after seventh grade. Reed was always considerate, however, and tended toward “quietness” and “withdrawing, rather than an explosion of temper.”

         On rebuttal, Officer Lewis described his interview of Mendez immediately after the shooting. Mendez then recounted how he had selected Reed in both a photographic and live lineup. Officer Childs testified that, when he interviewed Galindo on the night of Vasquez's murder, Galindo told him only that the shooter was a “black male adult in a plaid shirt.”

         On August 4, 1999, the jury recommended imposition of the death penalty. On September 29, the trial court denied Reed's motion for a new trial and sentenced him to death.

         II. Discussion

         A. Jury Selection and Pretrial Claims

         1. Batson/Wheeler Motion

         Reed is African American. He contends the prosecutor violated his state and federal constitutional rights to equal protection and a jury drawn from a fair cross-section of the community by peremptorily excusing five black prospective jurors at the guilt phase. (See Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) We find no error.

         a. Factual Background

         The trial court began voir dire on May 25, 1999. After exclusions for hardship, the jury venire consisted of 123 people, including 42 black jurors, 49 white jurors, 16 Hispanic jurors, 14 Asian jurors, one “Middle East[ern]” juror, and one juror whose race we are unable to determine. Once the parties excused certain jurors for cause or by stipulation, 82 prospective jurors remained. The first 18 jurors to enter the jury box included nine white jurors, six black jurors, two Hispanic jurors, and one Asian juror. Following a brief round of voir dire, the prosecution exercised peremptory strikes against Corrine T. (a white woman), Bert A. (a black man), Billie L. (a black woman), Betzaida C. (a Hispanic woman), and Janice C. (a black woman). During a second round of peremptory strikes, the prosecutor excused Bruno B. (a Hispanic man), Nickey W. (a black man), and Mary C. (a black woman).

         After the prosecutor struck Mary C., defense counsel raised a Batson/Wheeler objection. Defense counsel noted that the prosecution had used five of his eight strikes up to that point on black prospective jurors. Without hearing from the prosecution, the trial court overruled the objection, stating “there has not been a showing of a strong likelihood” that the prosecutor's challenges were racially motivated.

         Before the jury was sworn, the prosecutor struck five additional jurors, one of whom was a black woman. The prosecutor also exercised three peremptory strikes during the selection of alternate jurors, one of which removed a black woman from the panel. The resulting guilt phase jury initially consisted of three black jurors, five white jurors, one Hispanic juror, two Asian jurors, and one “Middle East[ern]” juror. During the trial, one black juror was excused for hardship and replaced by a Hispanic alternate.

         b. Analysis

         Both the United States and California Constitutions prohibit discriminatory use of peremptory strikes. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Gutierrez (2017) 2 Cal.5th 1150, 1157-1159.) To assess whether such prohibited discrimination has occurred, our inquiry under Batson/Wheeler follows three distinct, familiar steps. First, the party objecting to the strike must establish a prima facie case by showing facts sufficient to support an inference of discriminatory purpose. (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) Second, if the objector succeeds in establishing a prima facie case, the burden shifts to the proponent of the strike to offer a permissible, non-biased justification for the strike.[6] (Ibid.) Finally, if the proponent does offer a non-biased justification, the trial court must decide whether that justification is genuine or instead whether impermissible discrimination in fact motivated the strike. (Ibid.)

         The trial court denied Reed's Batson/Wheeler motion at the first step of the inquiry, finding Reed had not established a prima facie case. But it did so at a time when California courts applied an unduly stringent standard for Batson claims at step one. (See People v. Carasi (2008) 44 Cal.4th 1263, 1293.) In Johnson, the United States Supreme Court rejected our previous standard - requiring that it be “ ‘more likely than not' ” that purposeful discrimination occurred - as inconsistent with federal constitutional protections, and instead favored a standard turning on whether the opponent of the strike has “ ‘produc[ed] evidence sufficient to permit the trial judge to draw an inference' ” of discrimination. (Carasi, 44 Cal.4th at p. 1293, quoting Johnson, 545 U.S. at p. 170.) As the People concede, the trial court here denied the motion using the “more likely than not” standard that Johnson disapproved. In these circumstances, we conduct our own independent review of the record and apply the Johnson standard to determine whether the record supports an inference that the prosecutor excused a juror on a discriminatory basis. (People v. Bonilla (2007) 41 Cal.4th 313, 342 (Bonilla).)

         Although we examine the entire record when conducting our review, certain types of evidence are especially relevant. These include whether a party has struck most or all of the members of the venire from an identified group, whether a party has used a disproportionate number of strikes against members of that group, whether the party has engaged those prospective jurors in only desultory voir dire, whether the defendant is a member of that group, and whether the victim is a member of the group to which a majority of remaining jurors belong. (Scott, supra, 61 Cal.4th at p. 384.) We may also consider nondiscriminatory reasons for the peremptory strike that “necessarily dispel any inference of bias, ” so long as those reasons are apparent from and clearly established in the record. (Ibid.)

         What Reed relies on primarily to advance his challenge is evidence of disproportionate strikes against black jurors. The prosecutor used five of his first eight peremptory strikes (roughly 63 percent) on black jurors, even though such jurors constituted only 34 percent of the venire. Considered in the context of the entire jury selection process, however, these initial strikes do not support an inference of discriminatory intent. (See People v. Garcia (2011) 52 Cal.4th 706, 748 [considering ratio of stricken challenged jurors in context of overall strikes, including those made after Batson/Wheeler motion].) The prosecutor's next four strikes all targeted non-black jurors, and taken together, his strikes did not target black jurors in a particularly disproportionate manner. The prosecutor exercised 13 strikes during the selection of regular jurors, and three more while selecting alternates. Six of the prosecutor's thirteen regular juror strikes (46 percent) - and seven of sixteen overall (44 percent) - targeted black jurors. Although these figures exceed the 34 percent ratio of black jurors in the venire, they do so only barely. Viewed in its overall context, the pattern of strikes by itself does not suggest the inference of discrimination that might otherwise be drawn from the prosecutor's initial strikes.

         What is more, the prosecutor first signaled his acceptance of a jury at a time when it contained two black jurors, and three black jurors ultimately sat on the jury. (See People v. Clark (2011) 52 Cal.4th 856, 906 [noting that prosecutor's repeated passing of “an African-American woman who ultimately served as a juror in the guilt phase” helped dispel any inference of discriminatory motive].) It is true that the prosecutor used his last strike on a black woman before the trial court empaneled the jury. But another black juror replaced her, and the prosecutor immediately accepted the panel. While acceptance of one or more black jurors by the prosecution does not necessarily settle all questions about how the prosecution used its peremptory challenges, these facts nonetheless help lessen the strength of any inference of discrimination that the pattern of the prosecutor's strikes might otherwise imply. (See People v. Hartsch (2010) 49 Cal.4th 472, 487 [“The prosecutor's acceptance of a panel including these African-American prospective jurors, while not conclusive, was ‘an indication of the prosecutor's good faith in exercising his peremptories....' ”].) Most notably, the prosecutor's decision to strike one black juror while accepting another who replaced her suggests that non-race related differences between the jurors, rather than race, explain the prosecutor's actions. (See ibid.)

         Reed also argues that the prosecutor struck the challenged jurors without asking them voir dire questions. Yet the prosecutor did in fact engage Billie L. in a lengthy colloquy regarding her views on the death penalty. More important, the attorneys received the jurors' questionnaires prior to commencement of voir dire. What we have held is that under these circumstances, an attorney's failure to engage jurors in voir dire is less significant than when the attorneys know nothing about the jurors prior to striking them. (See People v. Taylor (2010) 48 Cal.4th 574, 615 (Taylor).) Accordingly, we accord no great weight to the prosecutor's limited voir dire.

         We find further evidence dispelling any inference of bias in the struck jurors' questionnaires and answers during voir dire. (See People v. Sanchez (2016) 63 Cal.4th 411, 435-439(Sanchez)[considering nondiscriminatory reasons for peremptory challenges that are apparent from and “clearly established” in the record].) While we are not relying here solely on hypothesized prosecutor reasons to strike a juror in assessing a Batson/Wheeler motion, a record devoid of any support for race-neutral reasons justifying prosecutor strikes would raise further concerns. In this case, however, the record is not devoid of support for race-neutral reasons for excusing each of the jurors in question. Bert A. wrote that his brother had a negative experience with law enforcement when he was convicted of robbery in 1984. We have previously recognized a relative's negative experiences with law enforcement as a race-neutral hypothetical reason for a strike that dispels any inference of discriminatory intent. (See People v. Harris (2013) 57 Cal.4th 804, 836 (Harris).) Moreover, Bert A. reported that he had previously served on a criminal jury that hung. We have also recognized such a disclosure as the sort that sufficiently dispels any inference of discrimination. (See People v. Farnam (2002) 28 Cal.4th 107, 138 (Farnam).)

         Similarly, both Janice C. and Mary C. reported that their spouses had prior contact with law enforcement. Janice C. wrote that her spouse had been convicted of a drug offense in 1977, while Mary C. stated that her husband had been arrested or charged with a crime 10 years prior to Reed's trial. (See People v. Booker (2011) 51 Cal.4th 141, 167 [“A negative experience with the criminal justice system is a valid neutral reason for a peremptory challenge”]; Harris, supra, 57 Cal.4th at p. 836.)

         Billie L. stated in her questionnaire that she was “[s]trongly against” the death penalty and, during voir dire, she repeated this view, commenting that “I believe that maybe we should just not have a death penalty.” These statements were later subject to a measure of equivocation, given her statement that “Each case is unique. The death penalty must be considered very carefully.” Even so, the prosecutor could have had a reasonable preference to strike Billie L. because of the risk -- in light of her earlier statements -- that she would in fact refuse to impose the death penalty. We have previously held that the declaration of opposition to the death penalty, even when combined with some subsequent equivocation, reasonably dispels any inference of discrimination. (See Scott, supra, 61 Cal.4th at pp. 384-385; People v. Panah (2005) 35 Cal.4th 395, 440-441.)

         Finally, Nickey W. offered answers on his questionnaire that were sufficiently conflicting to raise the possibility for reasonable concern by the prosecutor. In response to a question about whether he understood and agreed that the fact defendant had been charged with certain crimes was not evidence of his guilt, Nickey W. wrote “no, ” but then added “you are innocent until proven [guilty].” Later, Nickey W. rejected the proposition that a defendant is not required to prove that he is innocent, and elaborated that “the defendant has to prove his [innocence].” The concerns raised by Nickey W.'s response to critical aspects of the questionnaire provide a strong reason for the prosecutor to excuse him. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 470.)

         Reed also contends that a comparison between the jurors struck by the prosecution and the non-black jurors that ultimately served on the jury proves these rationales could not have motivated the prosecutor's strikes. In particular, Reed suggests that, if the rationale for the prosecutor's strikes against black jurors Bert A., Janice C., and Mary C. was grounded in their relatives' arrests or criminal convictions, the prosecutor should have also challenged non-black jurors with relatives who had comparable experience with the criminal justice system. We have often declined to undertake comparative juror analysis at step one of the Batson/Wheeler framework. (See, e.g., Sanchez, supra, 63 Cal.4th 411 at p. 439; Taylor, supra, 48 Cal.4th at pp. 616-617; Bonilla, supra, 41 Cal.4th 313 at p. 350.) Nonetheless, such analysis can be helpful in certain circumstances to assess whether a defendant established a prima facie case of bias. (See Scott, supra, 61 Cal.4th at p. 390; Harris, supra, 57 Cal.4th at 874-876 (conc. opn. of Liu, J.).) Reed's comparisons in this case, however, are unavailing.

         It is true that Bert A., Janice C., and Mary C. have family members who were arrested or convicted of crimes. Nonetheless, the prosecution had additional, independent reasons for striking these potential jurors aside from the fact that their relatives had a criminal history. For one, Bert A. indicated that he previously served on a criminal jury involving a murder charge that resulted in a hung jury. (See Farnam, supra, 28 Cal.4th at p. 138 [concluding that sitting on a hung jury “constitutes a legitimate concern for the prosecution”].) Mary C.'s questionnaire answers, meanwhile, were frequently incomplete and, in particular, she failed to answer critical questions related to her husband's criminal history.

         There is a further distinction in whether the relevant family members had been convicted of their respective crimes. The relatives of Bert A. and Janice C. had indeed been convicted. Bert A.'s brother was convicted and served time for burglary, and Janice C.'s husband was convicted on drug charges. Although Reed compares Bert A. and Janice C. with jurors whose family members had been arrested, no evidence suggests these family members were convicted or served time in prison. The prosecutor could have readily concluded that a criminal conviction, or time spent in prison, was more significant than simply having a family member arrested. (See People v. Lancaster (2007) 41 Cal.4th 50, 78 [“[N]o inference of group bias appears from the prosecutor's decision to challenge a prospective juror whose family members were serving or had served prison terms”].)

         Accordingly, Reed fails to demonstrate that the totality of relevant facts give rise to an inference of discriminatory intent for the prosecutor's strikes. (See also People v. Gray (2005) 37 Cal.4th 168, 189 [a prosecutor may “excuse a prospective juror ...

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