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People v. Coneal

California Court of Appeals, First District, Fifth Division

November 6, 2019

The PEOPLE, Plaintiff and Respondent,
v.
Jerry CONEAL, Defendant and Appellant.

         [CERTIFIED FOR PARTIAL PUBLICATION[*]]

         [254 Cal.Rptr.3d 655] Superior Court of San Mateo County, No. SC080432A, Hon. Lisa Novak, Judge.

Page 952

         COUNSEL

         Randi Covin, Willits, under appointment by the Court of Appeal, for Defendant and Appellant.

         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano and J. Michael Chamberlain, Deputy Attorneys General, for Plaintiff and Respondent.

         OPINION

         SIMONS, J.

Page 953

          Jerry Coneal appeals following his conviction for first degree murder (Pen. Code, � 187, subd. (a)).[1] In the published portion of the opinion, we consider his challenge to the admission of five rap videos featuring appellant and/or members of appellant’s gang. As we explain, the rap videos had minimal probative value, either because they were cumulative of other, less prejudicial evidence, or because their probative value depended on construing the lyrics as literal statements of fact or intent without a persuasive basis to do so. This minimal probative value was substantially

Page 954

outweighed by the highly prejudicial nature of the violent, inflammatory lyrics, and the admission of these videos was therefore an abuse of discretion under Evidence Code section 352. In light of the substantial other evidence of appellant’s guilt, however, we find the error harmless. In the unpublished portion of the opinion, we reject appellant’s remaining contentions.

          BACKGROUND

          The Shooting

         At approximately 8:21 p.m. on October 5, 2012, police responded to reports of gunfire on a residential street in East Palo Alto. Police found Christopher Baker at the top of a driveway, breathing but unresponsive, with apparent gunshot wounds. A bicycle lying in the middle of the street was later identified as belonging to Baker. Baker died at the scene from multiple gunshot wounds.

          On the other side of the street, a running but unoccupied silver Ford Escort was on the sidewalk, apparently stuck on a fence. The driver’s door was open, the front passenger seat was steeply reclined, and the headlights were off. Appellant’s blood was found in the Ford Escort and on the outside of a nearby parked car.

          The Ford Escort was registered to Lakeisha Campbell. Campbell testified that she loaned the car to Miguel Rivera, her then-boyfriend and a friend of appellant’s, at around 7 p.m. on October 5, 2012. A couple of hours later, Rivera called Campbell, told her the car had been stolen, and directed her to report the theft to the police. About 30 minutes later, Rivera arrived at their home, with blood on his stomach but no apparent injuries.

         Gang Evidence [2]

          Appellant and Rivera were members of the "Taliban" gang, whose territory extended [254 Cal.Rptr.3d 656] through parts of East Menlo Park and East Palo Alto. The Taliban had a longstanding and violent rivalry with another East Palo Alto gang, "Da Vill." The People played rap videos made before the shooting depicting Taliban and Da Vill members taunting rivals and bragging about violence they had committed or intended to commit.

          On September 30, 2012— less than a week before Baker was killed— two Taliban members were shot by a Da Vill member and a member of a gang allied with Da Vill. On October 5, a memorial for a murdered Da Vill

Page 955

member called "Box" was held around the corner from where Baker’s body was found. Baker, a Da Vill member, attended the memorial and was wearing a shirt memorializing Box when he was killed. On October 7— shortly after Baker was killed— a Da Vill member shot two Taliban members, one fatally.

          Appellant’s Actions the Day of the Shooting

          On October 5, 2012, around 11 a.m., appellant "liked" a Facebook post expressing birthday wishes to Box, the deceased Da Vill gang member whose memorial would be held later that day.

          Around noon, appellant sent a message on Facebook to a member of a gang allied with Da Vill, trying to identify a person who had been looking for appellant. The other gang member wrote, "Damn. Shit real serious?" Appellant replied, "Yup. It’s gone get real too." The People’s gang expert testified this indicated there would be a retaliation for what was perceived to be disrespectful conduct.

          In the early afternoon, appellant sent messages on social media indicating that he was trying to buy firearms.

          Neighborhood Testimony and Crime Scene Evidence

          On the evening of the shooting, a resident of the block on which Baker was killed saw a car with two occupants pass in front of his house three times in less than ten minutes. The resident heard gunfire 10 to 15 minutes later and, when he went outside, saw what he thought was the same car crashed against a fence.

         Other residents testified they heard gunshots that evening: most heard an initial grouping of shots, a pause, and then a second grouping. "ShotSpotter"— an acoustic gunfire detection and location system— recorded 15 shots at 8:20 p.m. around the location Baker was killed and then, after a break of about eight seconds, 19 additional shots a half-block away, near the location of Box’s memorial.[3] Two residents, after hearing the shots, saw two people running away.

          Five cartridge casings were recovered from the street near the bicycle, and four more cartridge casings were found in the driveway where Baker lay. These cartridges were all fired from the same Glock semiautomatic firearm. In addition, two bullet fragments were removed from Baker’s body and a third was removed from the garage door in the driveway where Baker died.

Page 956

These three bullet fragments— which came from three separate bullets— were fired from a second gun, a revolver. Based on this evidence, a firearms and ballistics expert opined there were at least two guns involved in the shooting resulting in Baker’s death.

          Sixteen additional casings were found at the corner of the block, near the location of Box’s memorial, all of which came from the same Glock firearm. This firearm (not the same Glock that fired casings found near [254 Cal.Rptr.3d 657] the bicycle and Baker’s body) was used two days later when a Da Vill member shot two Taliban members. Multiple bullet fragments recovered from the Ford Escort exhibited characteristics typical of bullets fired from Glock firearms. The People’s theory was these casings were from the second round of shots and were fired by Da Vill members attending Box’s memorial who had heard the first round of shots.

          A handgun was found under Baker’s body. Although the gun was one bullet shy of being fully loaded, loading the last bullet into the gun was a cumbersome process that the prosecution argued Baker did not likely undertake. The gun was also corroded, making it difficult to operate. Baker had particles consistent with gunshot residue on his hands, which could have resulted from firing a gun, being in the vicinity of a gun when it was fired, or touching a surface with gunshot residue on it.

          There was evidence that the crime scene could have been contaminated: the original crime scene tape did not cover the entire crime scene; the responding officer had run to the driveway where Baker lay, possibly disturbing casings or fragments; and the morning after the shooting, officers found the crime scene tape was down, allowing people to move through the crime scene.

          Appellant’s Actions After the Shooting

         Warner Travis, a friend of appellant’s and fellow Taliban member, testified pursuant to a plea agreement in a separate murder case that guaranteed him a sentence of 25 years to life in exchange for his truthful testimony. Appellant told Travis that he and Rivera went to the neighborhood where the crime took place during a gathering for Box, intending to "shoot somebody." While there, appellant shot the victim "off his bike" and in the face,[4] Rivera also fired shots, and then they tried to drive off but crashed. Appellant told Travis he was worried because he had been injured and might have left blood in the car. Travis thought Anthony Fuller was probably there when appellant said he shot Baker, but Fuller testified that he never heard any such statements.

Page 957

          Appellant appeared in a rap video titled "On Da Boulevard," in which he rapped, "I don’t know who baked the last cake,/All I know was the place got yellow taped." Although the video was first posted to YouTube a few weeks after Baker’s death and the prosecutor argued the quoted lyrics referred to his killing, it was unclear whether appellant’s lyrics were recorded before Baker was shot (see further discussion post, part II).

         In November 2012, appellant, while in jail, was recorded on a phone call reciting lyrics from a new rap song he had written called "Jailhouse Gas."[5] The lyrics referred to catching someone "slippin for the mob[6] he got sprayed up.../And I got so close in, like I was going for a lay up"; "Two shooters on one hit that’s how I like to move"; "nine tore his chest out ... had that boy stretched out. Got his partners mad and left his fams stressed out"; "Caught him in the driveway, and chased him up to the porch."

         Appellant was interviewed by police in July 2013 and again in November.[7] Appellant [254 Cal.Rptr.3d 658] denied knowing anything about a Ford Escort with his blood in it or hanging out with Rivera.

          Appellant’s Testimony

          Appellant testified in his own defense at trial. He was a member of the Taliban. On October 5, 2012, Rivera, a fellow Taliban member, drove with appellant to the street where Baker was killed because Rivera "wanted to go drop or get some money from his girlfriend’s little sister." Appellant did not know they would be near a memorial gathering for Box, who had been friends with ...


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