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People v. Royal

California Court of Appeals, Fourth District, First Division

November 26, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
MARLIN ROYAL, Defendant and Appellant.

          Order Filed Date 12/10/19

          APPEAL 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.

          Xavier 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.

          HUFFMAN, J.

         After 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, [1] § 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.

         Royal 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.

         Although 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.

         FACTUAL BACKGROUND

         Prosecution

         On May 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.

         At 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.

         A lighter, cigarette butt, gum wrapper, and saliva were found near the victim's body. The victim's wallet contained only a quarter.[2]

         An 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 of manufacturers.

         The 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.

         Investigators 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 found.

         On the 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.

         Royal's 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.

         At 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.

         Royal's 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.

         On the 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.

         When 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 night.

         L.N. 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.

         L.N. 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 hospital stays.

         In 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."

         Royal 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.[3] 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 him."

         Royal 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 family.

         In 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.

         L.N. 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.

         Additionally, 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 reason why."

         The 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 disassociation.

         Defense

         Kenneth 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.

         A few 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.

         L.N.'s 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.

         The 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."

         Royal 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.

         According 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.

         Royal 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.

         On 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 vehicles.

         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.

         According 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."

         On May 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.

         At 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.

         Royal 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.

         Royal 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.

         Royal 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.

         Royal's 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.

         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.

         Royal's 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.

         Royal's 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.

         A 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 legal defense.

         A 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.

         A 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.

         A woman 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 with Royal.

         Rebuttal

         A detective testified that Royal's mother lied to him and told him Royal was not living at her home when he was ...


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