California Court of Appeals, Fourth District, First Division
Filed Date 12/10/19
from a judgment of the Superior Court of San Diego County No.
SCE361596, Jeffrey F. Fraser, Judge. Affirmed.
Randall Bookout, under appointment by the Court of Appeal,
for Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting, and Daniel J. Hilton, Deputy
Attorneys General, for Plaintiff and Respondent.
the jury deadlocked and the trial court declared a mistrial,
a second jury was empaneled and then it convicted Marlin
Royal of first degree murder (Pen. Code,  § 187). The
jury also found true that Royal personally used a firearm in
the commission of the murder (§ 12022.5, subd. (a)) and
intentionally discharged a firearm causing death (§
12022.53, subd. (d)). Royal subsequently admitted a serious
felony prior (§ 667, subd. (a)(1)) as well as two prior
strikes (§ 667, subds. (b)-(i)). The court sentenced
Royal to prison for 100 years to life, plus five years.
appeals, contending: (1) the prosecution did not exercise due
diligence in securing the key witness to testify during
Royal's second trial (leading the prosecution to read the
transcript of the witness's testimony at the second
trial); (2) the trial court erroneously admitted hearsay
evidence as past recollection recorded; and (3) the trial
court improperly limited the scope of the cross-examination
of the prosecution's expert witness.
we conclude the trial court erred in admitting certain
evidence under the past recollection recorded exception to
the hearsay rule, we determine such error to be harmless.
Additionally, we find Royal's other claims of error
without merit. We therefore affirm the judgment.
7, 2007, at around 10:15 p.m., a man left his house on Millar
Ranch Road to meet his friend at a nearby restaurant. As he
drove down Millar Ranch Road, he had to swerve to avoid
striking an object in the road. Because the object resembled
the lower half of a person, the man called 911. As he was
calling 911, a car with three women pulled up next to him.
The driver of this other vehicle, who appeared Middle Eastern
or Hispanic, seemed confused or nervous and asked the man if
he had seen anything in the road. When the man informed her
that he had, and that he was on the phone with 911, the women
drove off in the direction from which the man came.
10:25 p.m., a San Diego County Sheriff's Deputy was
dispatched to the scene. The responding deputy found the
victim, R.J., lying partially in the bushes. Part of his
brain and skull fragments were scattered in the road by his
feet. Paramedics pronounced R.J. dead at the scene.
lighter, cigarette butt, gum wrapper, and saliva were found
near the victim's body. The victim's wallet contained
only a quarter.
autopsy revealed that R.J. died from a shotgun blast to the
head. The fatal shot was likely fired from within three feet.
There was methamphetamine in his system. Based on the
evidence recovered at the scene, a criminalist stated the
shotgun shell used to kill R.J. was most likely "a
Remington shot shell of.12 gauge caliber containing No. 6
shot." The criminalist believed that Remington had
likely sold hundreds of millions of shotgun shells in the
past 25 years, and she acknowledged the shell that killed the
victim could have come from any 12-gauge shell with number 6
shot with similar manufacturing characteristics. The
criminalist also testified that it could be possible that
other manufacturers could use Remington components such as
wadding inside their own shells, so that the shell that
killed the victim potentially could have come from any number
victim's cell phone, found underneath his body, provided
investigators with certain information regarding where the
victim was leading up to his death. R.J. had last been seen
alive in a parking lot by Wrigley's Supermarket on Euclid
Avenue near his home. Cell tower records confirmed his phone
had been in that area. These records showed the victim's
cell phone, and a cell phone with the number (310) 693-3741,
moving in the same direction toward the crime scene. The 310
number belonged to Royal.
examined R.J.'s call logs. R.J. had called several people
on May 7th including his father, sister, and girlfriend. R.J.
had placed four outgoing calls to Royal's number around
11:30 a.m. Cell data indicated the calls were placed from a
tower in National City near his home. At 1:59 p.m. and 2:58
p.m., R.J. placed two more calls to Royal's phone. R.J.
again called Royal at 7:59 p.m. A call made from the
victim's phone at 9:06 p.m. connected to a different cell
tower than the previous calls, indicating that R.J. might
have been moving. The victim made several more calls between
9:32 p.m. and 9:40 p.m. These calls utilized a cell tower by
Jamul and Rancho San Diego, near where R.J.'s body was
night he was killed, R.J. exchanged several flirtatious texts
with a female friend between 8:03 p.m. and 8:24 p.m. He never
responded to a follow up text she sent him at 8:45 p.m.,
which was unusual. Sometime between 8:30 p.m. and 9:00 p.m.,
R.J. called one of his friends looking for his girlfriend.
The friend detected nothing unusual about R.J.'s voice.
phone records from the day of R.J.'s death also were
analyzed. His phone had called numbers associated with his
mother, stepfather, a landline registered in his
stepfather's name, and a landline registered to a woman
living with him. Royal's phone also had been used to call
a "Livelinks/phone sex" hotline. Phone records also
showed a call from a pay phone off of Jamacha Road to
Royal's mother's number on the night R.J. was killed.
Royal's mother's cell phone also had called a
Ralph's grocery store around the time of R.J.'s
death. The last call between Royal and his mother occurred at
1:00 a.m. on May 8.
around 8:30 p.m., Royal's phone had been connected to a
cell tower in National City. After that, his phone had
connected to the tower by Jamul and Rancho San Diego. There
were no calls between 8:31 p.m. and 10:18 p.m.
friend introduced him to R.J. R.J.'s nickname was
"Snake," and he occasionally engaged in minor
scams. For example, he once sold a friend a phone for $50
that did not have a working home button. Before his death,
R.J. was using methamphetamine and losing weight.
day he died, R.J. received a phone call, after which he said,
"Oh, I just need to go take care of something. I'm
meeting somebody at Wrigley's." He also changed into
nicer clothes. His girlfriend asked him who he was meeting
but he did not say, mentioning that the person he was meeting
told him not to bring her along because "they were about
to go handle man business." R.J. sometimes served as a
middleman in drug transactions, matching up a seller and
buyer in return for a cut of the drugs.
R.J. left for Wrigley's, his girlfriend followed him for
a short while. However, R.J. told her to wait for him at
another friend's house, where she ended up sleeping that
was a key prosecution witness. She testified during
Royal's first trial, but did not do so in the second.
Instead, a transcript of her testimony was read to the jury
during the second trial.
met Royal when she was 24 or 25 years old. The couple began
dating and remained in a relationship for about eight years.
After dating for six months, Royal persuaded L.N. to begin
prostituting herself. She gave the money she earned as a
prostitute to Royal. However, Royal became violent with L.N.,
beating her on multiple occasions, which resulted in several
separate incidents, Royal's two vehicles were shot up.
One night, L.N. saw Royal putting a shotgun into his pants.
Royal normally kept the shotgun under his bed. Royal was
upset that his vehicles had been shot up. Later that night,
Royal called L.N. and told her he needed to be picked up at a
supermarket. L.N., Royal's mother, and Royal's
stepfather drove to pick up Royal at the supermarket off of
State Route 94. After they picked him up, Royal told them he
had murdered someone. Royal explained that he had asked R.J.
who had shot at his car. R.J. refused to tell him and was
pleading for his life. Royal told R.J. he would give him
"one more chance." After "the victim said he
couldn't tell him... everything went silent."
did not have the shotgun when he got back to the car. Around
2:00 or 3:00 a.m., Royal left to find the gun. When he
returned, Royal and L.N. went to a diner in Mission Valley.
They stayed there until early morning and then went to
Royal's grandfather's house. There, they saw a
television broadcast about R.J.'s murder. When Royal saw
the news story, he announced, "That's it. That's
and L.N. then went to Texas for a few days before returning
to San Diego. A few weeks later, Royal and L.N. decided to
drive to Missouri. As they were passing through Arizona, they
were pulled over by law enforcement. An Arizona police
officer found a box of shotgun shells in the trunk of
Royal's car. These shotgun shells were Remington 12
gauges with No. 6 shot. L.N. also had a small amount of drugs
in her purse. After the Arizona incident, the couple's
relationship ended, and L.N. moved to Georgia to live with
2013, detectives contacted L.N. in Nevada. She initially
denied having information about the murder, but in a second
interview, she admitted that Royal had confessed to
committing the crime. She added that the shooting might have
been related to Royal's car getting shot up. L.N. also
informed the detectives that a lot of men were angry with
Royal because he had pimped their girlfriends or wives.
also claimed that Royal made her call R.J. multiple times to
get him to meet her at Wrigley's. She denied that she was
arranging to meet R.J. for paid sex. L.N. was "deathly
afraid" of Royal.
L.N. told the detectives that "there might be an
association between [an individual identified as] Ali and one
of the [car] shootings...." Royal and Ali had formerly
worked together at NASSCO. Royal and Ali went to Los Angeles
together, where Ali got arrested for a parole violation
because he had left San Diego County. At some point before
the murder, Royal beat up Ali, apparently because he thought
Ali was involved in one of the car shootings. According to
one of the detectives, regarding R.J.'s death, L.N.
"suggested that [Ali] might be somehow involved or a
prosecution also called a clinical social worker as a sexual
trafficking expert. She testified that women who are
trafficked and abused commonly suffer from memory loss and
Stewart, the lead investigator assigned to the case,
testified that L.N. avoided cooperating with the
investigation. In 2015 and 2016, it took Stewart almost a
year to locate and serve her with a subpoena. L.N. testified
at the preliminary hearing in December of 2016 and the first
trial in September of 2017. Before her September testimony,
she was informed that the defense planned to argue that she
had committed the murder. This upset her, making her more
fearful and less cooperative.
weeks before the second trial began, in March 2018, L.N.
called the prosecutor and told her she would not come to
court, give up her location, or cooperate. Stewart believed
that L.N. had moved from Nevada to Georgia.
attorney testified at Royal's second trial. He testified
that L.N. had contacted him in the last ten days. L.N. told
him to present the prosecutor with a list of demands if she
was to testify. She wanted immunity from prosecution for
R.J.'s murder, her mother to be left alone, and $15, 000.
parties also stipulated that L.N. had attempted to invoke her
Fifth Amendment right not to testify in the first trial. The
trial court, however, had ruled that she had no Fifth
Amendment right because her testimony "did not
incriminate herself and implicate the Fifth Amendment."
testified in his defense. He claimed he did not have anything
to do with R.J.'s murder. He met L.N. on a Livelinks
phone sex hotline. She was already prostituting herself, but
Royal decided to act as her pimp to "show her the
correct way to do it." Royal also was pimping another
woman in Los Angeles. Royal stated that he wanted to help
L.N. prostitute herself in a safe manner, but admitted he had
beaten her up on two occasions.
to Royal, L.N. "became a very ruthless, very conniving,
deceiving prostitute." In 2005, Royal quit pimping and
began working at NASSCO. He claimed that he obtain "a
lot of certifications" while at NASSCO, including
certified sheet metalist, crane operator, electrician, and
pipefitter. He denied he started at NASSCO as a student
pipefitter and left as a pipefitter trainee. In 2006, Royal
left NASSCO because he was devoted to his other two jobs, a
cell phone business and a printing business.
testified that he made over $100, 000 a year from his two
companies. However, he admitted that he did not always pay
his bills. L.N. helped Royal with the administrative work for
the cell phone business. He also admitted the (310) 693-3741
phone number was his and his business cards included that
number. He stated that the number was "important,"
and he chose the 310 area code because "310 was like a
nice neighborhood, Beverly Hills," and he wanted the
business to be associated with wealth.
November 6, 2006, Royal took his friend Ali, to Los Angeles.
Ali was detained in Los Angeles and found to be in violation
of his parole. Ali ended up going back to prison and blamed
his misfortune on Royal. When Ali got out of custody, he
arranged for "three assassins" to shoot up one of
Royal's friends introduced him to R.J. Royal and R.J.
hung out about 10 times. Royal knew that R.J. had a
methamphetamine problem. He employed R.J. as a telemarketer.
to Royal, he gave L.N. the phone with the 310 area code on
May 7 and told her to give to it R.J. so he could use it to
make cold calls. Royal explained that he decided to give this
phone to R.J. because "the 310 number was kind of like a
phone [he] didn't really care about."
7, Royal got home from work around 3:00 or 3:30 p.m., and
went out with one of the women he was seeing. He returned
home around "11:00ish, somewhere around there, at
nighttime." L.N. was not home when he got home, which
was unusual. Royal became upset because he thought L.N. was
cheating on him.
11:15 p.m., L.N. called Royal from the supermarket acting
nervous and timid. Royal was "highly upset" when
she told him she had not given the phone to R.J. like he had
told her to do. Royal claimed the series of calls from his
phone to his mother and stepfather were a subsequent
"huge argument" between him and L.N. According to
Royal, they argued and hung up on each other, and he changed
phones as he walked around his house. Royal also explained
that the call at 11:39 p.m. to the supermarket from his
mother's phone occurred because he did not believe that
L.N. had been calling from the supermarket and wanted to see
if she was actually there.
did not see L.N. until the following morning around 6:00 or
7:00 a.m. She was still carrying Royal's phone, but Royal
did not know what she did with it. Royal did not go to a
diner in Mission Valley or his grandfather's house.
admitted he suffered from a "terrible record" that
included three prior robbery convictions and an assault
conviction. He also admitted to beating L.N. on two
occasions. He beat her the first time because she was
"lying" and "difficult." The second time
he beat her because she gave him food poisoning. L.N. had
lied to Royal about her stepfather sexually abusing her.
claimed he had never had any firearms at his mother's
house, and that he did not have access to his
stepfather's firearms. He also testified, "I
don't think I knew they was in there," when asked
about the shotgun shells found by Arizona police in his car.
mother testified that while L.N. was living with Royal she
came and went as she pleased and did not appear to be afraid
of leaving the house. During this time, L.N. would visit her
own family. L.N. drove a white compact car and never appeared
to be afraid of Royal.
did not have a gun in the house, and his mother was adamant
she would have found it if he did. Both Royal and L.N. had
separate cell phones, and there were separate landlines in
Royal and L.N.'s bedroom and in the kitchen. Royal's
mother would leave her own cell phone in various locations
whenever she was at home; her husband would leave his cell
phone in a charger at night and would not have known if
anyone used it.
mother also claimed she did not drive to pick up Royal from
Spring Valley in May of 2007, and that she never heard him
say he had killed someone.
stepfather had triple bypass surgery in April of 2006 and
experienced a significant recovery period, which included
being hospitalized with pneumonia. According to him, there
was no way he could have driven to Spring Valley in May 2007
to pick up Royal. He likewise was confident he did not hear
Royal confess that he had killed anyone. He owned a shotgun
and many other guns, but kept them locked up.
defense investigator testified that Royal's mother
expressed frustration with the fact that L.N. stopped running
Royal's businesses and was not generating money for his
defense crime scene analyst testified that he could not
definitively establish whether the victim was standing,
kneeling, or ducking when he was shot. There was dried grass
and dirt on the victim's back, which could not have been
there had the victim been shot from behind while kneeling
execution-style and fallen straight forward.
forensic examiner reviewed the calls made from Royal's
phone. He testified that the prosecution's experts did a
good job analyzing the phone records in this case. However,
he opined that several calls made on the morning of May 8,
2007, could not have been made from the diner in Mission
Valley. He further opined that it was plausible that another
call made that morning could have come from Royal's
grandfather's house, but he did not believe it had.
who had an on-again, off-again relationship with Royal from
2005 to 2007 testified that she might have been with Royal on
the night of the murder because it was her routine to hang
out with Royal on weeknights around that time. However, she
was not positive because she could have been broken up with
Royal at the time. She denied that Royal asked her to provide
him with an alibi during a jail visit on December 16, 2016.
Around the time of trial, the woman had recently reconnected
detective testified that Royal's mother lied to him and
told him Royal was not living at her home when he was