P. v. McKinley

Filed 4/13/09 P. v. McKinley CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Mark V. Mooney, Judge. Modified in part; affirmed in part.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Roy McKinley was convicted, following a jury trial, of the first degree murder of Ricky Paxton in violation of Penal Code[1]section 187, subdivision (a), the count of attempted murder of Harvey Davis in violation of sections 664 and 187, possession of a firearm by a felon in violation of section 12021, and shooting at an occupied vehicle in violation of section 246. The jury found true the allegations that appellant personally discharged a firearm in the commission of the murder and attempted murder within the meaning of section 12022.53, subdivisions (b) through (e), and suffered two prior felony convictions for which he served a prison term within the meaning of section 667.5, subdivision (b). The jury also found true the allegation that the crimes were committed for the benefit of a criminal street gang within the meaning of section 186.22. The trial court sentenced appellant to 25 years to life in state prison for the murder conviction, plus 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d).

Appellant appeals from the judgment of conviction, contending that the trial court erred in failing to instruct the jury on self-defense, imperfect self-defense and imperfect self-defense of others and failing to suppress appellant's recorded statements made in a jail holding cell. Appellant also contends that the trial court erred in failing to stay his sentence for shooting at an occupied vehicle pursuant to section 654. Respondent contends that the abstract of judgment should be corrected to reflect the trial court's imposition of $80 in court security fee. We order the abstract corrected to show these security fees and affirm the judgment of conviction in all other respects.

Facts

On the night of January 9, 2002, sisters Darleen and Ebony Roach hosted a party at their home at the intersection of 18th Street and Wilton Place in Los Angeles. Darleen associated with both a Bloods gang, the Black P-Stone 40's ("BPS") and a Crips gang, the Rolling 30's. Darleen's father had been a member of the Rolling 30's.

Members of BPS and an associated gang, the Rolling 20's, came to the party. Among the BPS gang members in attendance were appellant and co-defendant Marvin Smith.[2] Smith was wearing a red hat and some other red clothing.

Ricky Paxton, a member of the Santana Block Crips, was also present at the party with a friend, Harvey Davis. Davis was romantically involved with Ebony.

Appellant left the party with Tashawna Vanhardenberg. They drove in appellant's car to buy marijuana, then went to what Vanhardenberg believed was appellant's house. There, they "messed around" for a while in one of the bedrooms.

Four members of the Rolling 30's Crips arrived at the party, including Darleen's cousins Michael Jones and Alex Green. They were all wearing all blue, the Crips' color. Darleen and Ebony's mother, Annie Miller, met the men on the porch. She heard Jones tell one of his friends to go back to the car and get the Uzi. Miller told Jones not to start any trouble.

Inside the house, one of the Crips, Myron, said: "Which one of you niggas is dancing with my baby momma?" Nadia, the mother of Myron's child, was upstairs at the time, and was not dancing with anyone. Shortly thereafter, Smith had a confrontation with the Crips, during which he told them: "This is my hood."

Some time after the confrontation, Jones held a gun to Smith's head for about 15 seconds. He said: "Cuz, I kill you." Darleen and her parents made Jones and his friends leave the party. The men drove away in either a truck or a van.

Davis decided it was time to leave. He went outside and saw Jones and his friends driving away. He went back inside, got Paxton and left in a black Cadillac Seville. Smith was on his cell phone during the two or three minutes when Davis returned to the house. Davis heard him giving someone directions to the house.

Darleen also heard Smith talking on his cell phone. Smith said: "Cappucino, Blood, you need to hurry up and get here."[3] He also said: "Blood, there is some Crabs here. . . . Blood, you need to get here because they just put a gun to my head." During the conversation, Smith was looking out the window toward the street. Smith appeared to be using a Nextel-like cell phone with a walkie-talkie feature.

Meanwhile, appellant received a call on his cell phone. When appellant completed his call, he told his companion Vanhardenberg that they had to go. He seemed to be in a hurry. Once they were in the car, appellant was "in a rush" and "driving crazy." Appellant was speeding and ran a red light.

Davis and Paxton drove down 18th Street away from the party and began to turn onto Cimarron, the next cross street. Davis, who was driving, saw appellant's silver Caprice coming fast in the opposite direction. Davis pulled over to let the Caprice go by. In the car with appellant, Vanhardenberg saw a pickup truck belonging to "Alex" drive past. A small blue car was behind it. Vanhardenberg ducked because Alex was a Crip and she was afraid that there would be shooting. As Alex's truck drove by, appellant leaned out the window. Vanhardenberg heard gunfire. Davis saw a gunshot come through his windshield. As the Caprice passed the car, another gunshot blew out his driver's side window. Davis heard two more gunshots as he accelerated away. Paxton collapsed. Police later found spent shelling casings about 50 to 75 feet from the intersection of Cimarron and 18th Streets. These casings were fired from the same gun as a bullet removed from Paxton's body and from the door of Davis's car.

Davis drove to a gas station and had an employee call 911. While waiting for help to arrive, Davis noticed a gun in Paxton's waistband, partially concealed by a cloth. Davis disposed of Paxton's gun by throwing it over the gate of a nearby apartment building. He did so because he did not want Paxton to get into trouble. Paxton died from a gunshot wound to his head. Gunshot residue was found on his hands.

Police found a magazine with six live rounds in it on the car floor near Paxton's legs. They also found one loose live round on Paxton's seat.[4] The loose round had markings on it that indicated that it had been run through a weapon. The markings were not typical of a misfire. When Paxton's firearm was recovered, the gun's hammer was cocked, but there was no bullet in the chamber.

Appellant and Vanhardenberg drove down 18th Street toward the party. Appellant crashed the car into a parked car. Vanhardenberg got out. Appellant drove away.

At about 3:30 a.m., police saw appellant driving his silver Caprice. They followed him and he sped up, then crashed into a parked car. They arrested him.

At the police station, while the arresting officers were trying to find a gunshot residue testing kit, appellant urinated and rubbed his hands in the urine. Appellant resisted officers when they tried to get a sample from his hand. Eventually, they obtained a sample. The results of the ensuing test were inconclusive.

The morning after the shooting, Smith came to Darleen's and Ebony's house and talked to the two women and their father. He asked Darleen if she had spoken with police. She lied and told him that she had not. Smith said that the police were trying to get him for something he did not do, and that he was not trying to get in trouble. He added that the police had found photos of him in his cousin's car. He left a card with his phone number, and asked Darleen to keep in touch and let him know what was going on.

At trial, Los Angeles Police Officer Manuel Botello testified as an expert about the BPS gang. Appellant and Smith were members of BPS. Smith was an "O.G.," an older gang member. The house where the party took place was in BPS territory.

BPS's primary activities were narcotics sales, street robberies and robberies of jewelry stores and banks. In 2002, three BPS gang members were convicted of murders. The Rolling 30's were an enemy of the BPS gang.

Officer Botello testified that a gang member who had a gun pointed at his head would not "let it ride." Holding a gun to a gang member's head in his own neighborhood, in front of females and other gang members would be "very disrespectful." Officer Botello would expect to see some form of retaliation for that act of disrespect. A failure to retaliate would make the gang and the involved members look weak. If the disrespected gang member or any of the other gang members present had a gun, Officer Botello would expect to see a shooting.

Officer Botello also testified that if a gang member called another gang member and told him that a rival gang member had put a gun to his head at a party, and if the other gang member then rushed to the area of the party and fired at a car leaving the party, that would be retaliation. This would be so even if the victim was not a member of the rival gang. Such a shooting would still build up the reputation of the shooter and his gang.

Officer Botello further testified that gang members who are forced to leave a party may return later with guns. If the gang members already had guns, the officer would not expect them to leave, get rid of the gun they had and return with a different gun.

In his defense, appellant presented only some medical records dated August 10, 2002.

Smith called numerous witnesses in his defense. He called Los Angeles Police Officer Jason Delacova to testify as an expert about the Rolling 30's Crips gang. Officer Delacova testified that the primary activities of the Rolling 30's were graffiti, robberies, narcotic sales, drive-by shootings, and murder. The Rolling 30's were rivals of BPS. Officer Delacova had investigated shootings of Rolling 30's gang members where he suspected that the perpetrators were BPS members.

Smith also offered the testimony of two witnesses who heard gunshots on the morning in question. Both women reported hearing gunshots, followed by arguing, then one or more cars speeding away. One of the women reported hearing a second set of gunshots about five minutes later.

Smith offered the testimony of his grandmother, who stated that Smith and appellant were cousins and had lived with her off and on for all of their lives. She also testified that she had given Smith money in the summer of 2002 to start a recording business.

Smith further offered the testimony of Annie Miller, Darleen and Ebony's mother. She testified that she did not hear any gunshots in the period between the departure of Jones and his friends and the time when appellant crashed his car into a parked car near her house.

Discussion

1. Self-defense and "imperfect" self-defense

Appellant contends that the trial court erred in failing to instruct the jury on self-defense and voluntary manslaughter based on "imperfect" self-defense. We do not agree.

A killing is justifiable where the person who killed did so in an actual and reasonable belief that it was necessary to defend himself from imminent peril to life or great bodily injury. (People v. Stitely (2005) 35 Cal.4th 514, 551.) A killing is voluntary manslaughter when a person killed another in the actual but unreasonable belief that it was necessary to defend himself from imminent peril to life or great bodily injury. (Ibid.)

A trial court must instruct the jury on self-defense and "imperfect" self-defense voluntary manslaughter when there is substantial evidence to support those theories. (People v. Stitely, supra, 5 Cal.4th at p. 551.) A defendant is not entitled to these instructions if evidence of such evidence is lacking.

Appellant points to the following evidence to support his claim of self-defense: Jones put a gun to Smith's head and threatened to kill him. Smith called appellant and told him of the threat. Davis got rid of Paxton's gun after the shooting. When the gun was found, it was cocked. A magazine with six rounds was found in Davis's car. A seventh round, with markings showing that it had been inside a gun, was found loose in the car. Paxton had gunshot residue on his hand.

This is not substantial evidence that appellant fired at Paxton or Davis in self-defense. These facts show, at most, that Paxton had a gun while he was in Davis's car. They do not show that Paxton displayed the gun, let alone fired it. A person can acquire GSR residue from firing a gun or being near a gun when it is fired. Victims may well have GSR on their person which comes from their assailant's gun. The gun was thrown over a fence after the shooting and its condition could have been altered by the impact.

There was no physical evidence that shots were fired by Paxton. There were no bullet holes in appellant's car and no spent shell casings in Davis's car. The only spent shell casings recovered from the scene were from a different gun, presumably the one used by appellant.

Appellant did not give any indication before or after the shooting that indicated that he saw a gun or believed that he was in imminent danger. He did not say anything to Vanhardenberg. Vanhardenberg did not relate any physical activities by appellant that would suggest fear. Appellant did not duck or cry out. Later, when appellant spoke on the telephone from jail, he did not mention that he saw Paxton with a gun or had been in fear of being shot.

2. Imperfect defense of others

Appellant contends that the trial court erred in failing to instruct the jury on voluntary manslaughter based on "imperfect" defense of others. We do not agree.

A killing is voluntary manslaughter when a person kills in the actual but unreasonable belief that he must defend another from imminent danger of death or great bodily harm. (People v. Randle (2005) 35 Cal.4th 987, 997.)[5]

Appellant points to the following facts to support his claim of imperfect defense of others: Smith telephoned appellant and told him that a rival gang member had put a gun to Smith's head and threatened to kill him. The prosecution's gang expert testified that gang members who are ejected from parties commonly return with weapons. Some rival gang members left the party.

There is nothing to suggest that appellant knew that any gang members had left the party to get weapons, or for any other reason. Smith had stated to appellant during their cell phone conversation that the gang member threatening him was armed, and indicated that the rival gang members were at the party. If appellant believed that Davis and Paxton were Crips and were coming from the party, a much more likely conclusion would have been that Crips had shot Smith and were fleeing from the scene. Further, even if appellant believed that Davis and Paxton were gang members who were going to get weapons, this does not show a belief in imminent danger. The two men were just leaving the party. They were in no position to hurt anyone. It would clearly take some time for them to acquire weapons and return.

3. Holding cell statement

Appellant contends that the trial court erred in admitting a recording of a conversation appellant had on a cell phone while in a holding cell at Parker Center. The recording was only of appellant's part of the conversation.[6]

Federal law provides that it is unlawful for any person to intentionally intercept or attempt to intercept any wire, oral or electronic communication except as specifically permitted by the Act. (18 U.S.C. 2511, subd. (1)(a).) The law applies to prison systems. (U.S. v. Van Poyck (9th Cir. 1996) 77 F.3d 285, 291.)[7] The law only applies when there is a reasonable expectation of privacy. (U.S. v. Veilleux (D.N.H. 1994) 846 F.Supp. 149, 153; see U.S.C. 2510, subd. (2).)

California law prohibits the use of unauthorized intentional electronic amplifying or recording devices to eavesdrop upon or record "confidential communication." ( 632, subd. (a).)

Here the trial court found that appellant had no reasonable expectation of privacy in the holding cell at Parker Center. We see no error in the court's ruling.

Generally, a person has at best a diminished expectation of privacy in a jail holding cell. (See People v. Von Villas (1992) 11 Cal.App.4th 175, 212-214, citing Donaldson v. Superior Court (1983) 35 Cal.3d 24, Bell v. Wolfish (1979) 441 U.S. 520 and Hudson v. Palmer (1984) 468 U.S. 517; see also People v. Hines (1997) 15 Cal.4th 997, 1042-1043.) Here, the surrounding circumstances show that appellant did not have an expectation of privacy in his conversation. Other voices could be heard in the background of the conversation, indicating that other people were within hearing distance. Appellant showed no surprise when a jailer interrupted his conversation to convey some information about visitation. When that jailer, a sergeant, walked away, appellant called out, "Hey, Officer. Can you have the sergeant come back?" Thus, there was a law enforcement official within hearing distance of appellant's conversation.

Since appellant had no reasonable expectation of privacy in his portion of the phone conversation in the holding cell, the trial court did not err in admitting the recording of that conversation.

4. Count V sentence

Appellant contends that the trial court erred in failing to stay sentence on his conviction for shooting at an occupied vehicle. The trial court did stay that sentence pursuant to section 654. Thus, there is no error.

5. Court security fee

Respondent contends that the abstract of judgment should be corrected to reflect the trial court's imposition of a $20 security fee for each count. We agree.

The trial court clearly stated: "Also, the court will be imposing the court security fee of $20 pursuant to Penal Code section 1465.8, and that will be as to each count." Further, the trial court was required to impose the fee for each conviction. (People v. Walz (2008) 160 Cal.App.4th 1364, 1372.) Accordingly, the abstract is ordered corrected.

Disposition

The abstract of judgment is ordered corrected to reflect the imposition of one $20 security fee for each of appellant's convictions pursuant to section 1465.8, for a total of $80 in such fees. The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting this correction and to deliver a copy to the Department of Corrections and Rehabilitation. We affirm the judgment of conviction in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1]All further statutory references are to the Penal Code unless otherwise specified.

[2]We affirmed Smith's convictions in case number B190520.

[3]Darleen, who testified that appellant used the name "Cappucino" while speaking on the phone, told a police interviewer that McKinley was introduced to her at the party as "Cappucino." At trial, she denied that he had been so introduced to her, and claimed that he had been introduced as "Corona."

[4]The magazine was capable of holding a total of seven rounds.

[5]Relying on a 2002 case, respondent contends that the trial court did not have a sua sponte duty to instruct on this form of manslaughter because the imperfect defense of others is not a commonly known and established defense. (See People v. Michaels (2002) 28 Cal.4th 486, 529-530.) This doctrine has been unequivocally recognized by the California Supreme Court since 2005. (People v. Randle, supra, 35 Cal.4th 987.)

[6]The trial court did exclude a recording of a cell phone conversation which appellant conducted while in an interview room. The trial court found that there was a reasonable expectation of privacy in that situation.

[7]There is a "law enforcement" exception to the Act. "Under this exception, oral communications may be intercepted by investigative and law enforcement officers acting in the ordinary course of their duties. See 18 U.S.C. 2510(5)(a)." (U.S. v. Van Poyck, supra, 77 F.3d at pp. 291-292.) For example, if a law enforcement agency tapes all outbound inmate telephone calls on pay phones, the interception of these calls would occur in the ordinary course of the agency's employee's duties. (Id. at p. 292.) Here, there is no evidence that jail officials recorded all conversations in holding cells. Thus, the recording of appellant's conversation does not appear to have occurred in the ordinary course of the jail employee's duties and does not fall under the law enforcement exception. A "consent" exception also applies to jail and prison recordings, but does not appear to have been applicable in this case.