P. v. Betterson

Filed 10/11/07 P. v. Betterson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Michael M. Johnson, Judge. Affirmed with modifications.

Smyth Law Office and Andrew E. Smyth for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant, Dayvon Tomore Betterson, appeals after he was convicted of first degree murder count (Pen. Code, 187, subd. (a)) and three counts of willful, deliberate, and premeditated attempted murder. (Pen. Code, 187, subd. (a), 664, subd. (a).). The jury also found: defendant personally and intentionally discharged a firearm causing death in the commission of the first degree murder; defendant inflicted great bodily injury in the commission of one of the attempted murders; and all of the offenses were committed for the benefit of a criminal street gang. (Pen. Code, 186.22, subd. (b)(1), 12022.53, subd. (c), (d).) Defendant argues the eyewitness statements should have been excluded because they were unreliable and coerced and the photographic lineup was impermissibly suggestive. The Attorney General argues the trial court should have imposed additional court security fees. We affirm with modifications.

We view the evidence in a light most favorable to the judgment. (Jacksonv. Virginia (1979) 443 U.S. 307, 319; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909; People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Osband (1996) 13 Cal.4th 622, 690.) At approximately 6:25 p.m. on February 7, 2005, 14-year-old Keion J., Frederick Moore, Rubin Womack, and Lavelle Ardoin were walking down a stairway of an apartment building. An alley was adjacent to the building. Neither Mr. Moore nor Keion J. were gang members. Mr. Moore did not believe that either Mr. Womack or Mr. Ardoin were members of the local gang. A white car, possibly an Oldsmobile, drove in front of the apartment complex. The car was approximately 15 to 20 feet away. As the four reached the stairs, Mr. Moore heard four or five gunshots ring out. Mr. Womack saw a flash and heard as many as 15 gunshots. Mr. Moore saw two flashes from a firearm on the passenger side of the car before he turned and ran. Mr. Womack went inside the apartment with Mr. Moore. Keion was in front of Mr. Moore. Mr. Womack saw between two and four Black individuals in the car. Mr. Moore was shot once in the leg. The bullet went through Mr. Moores leg. Mr. Moore could see that Keion was down. Keion died as the result of a gunshot wound to his neck.

Mr. Moore and the prosecution gave divergent testimony as to his statements given to the police before the trial. At trial, Mr. Moore denied having told the police who committed the murder. Mr. Moore did not recall telling the police that he saw two Black males in the driver and front passenger seats of the white car. Mr. Moore did not remember having told the authorities that he saw the white car come from the alley and turn right in front of the apartments. Mr. Moore did not recall telling the police that the male who fired the shots: wore a hood or a beanie on his head; had a dark complexion; and, appeared to be 20 to 25 years old. Mr. Moore was first interviewed by Detective Richard Arciniega at the hospital on February 7, 2005; the day of the shooting. Mr. Moore did not recall what he said about the shooting during that interview.

Approximately two or three weeks later, Detective Arciniega came to Mr. Moores home. Detective Arciniega told Mr. Moore, Get your ass in the car. Detective Arciniega grabbed Mr. Moores neck. Mr. Moore was driven to the police station. Once there, Mr. Moore was questioned by Detective Arciniega about the shooting for approximately 30 minutes. Detective Arciniega showed Mr. Moore some photographic lineups. Mr. Moore circled defendants photograph on one lineup, noting: 60. 40. I was scared. No court. FM. Mr. Moore did not remember circling a photo and writing 100% on another photo lineup. Mr. Moore testified he was grabbed by his neck, and forced to write the notations on the photos. Mr. Moore testified that he was appearing at trial because he was subpoenaed. Mr. Moore did not recall telling Detective Arciniega that defendants cousin Mike may have been driving the car on the night of the shooting. Mr. Moore did not remember saying that he would not come to court because he was just trying to stay alive.

Mr. Womack testified that he did not see who fired the shots. Mr. Womack was treated well when he was interviewed at the police station after the shooting. Detective Arciniega met with Mr. Womack six or seven times regarding this case. Other witnesses had described the person who fired the shots as a dark complected Black man. Based on the descriptions provided by others, Mr. Womack told Detective Arciniega the individual who fired the shots was a dark complected African-American. Detective Arciniega showed Mr. Womack a photographic lineup. Detective Arciniega told Mr. Moore, Whoever you think it was, or like if it fits the description. Mr. Womack understood that the officers wanted him to pick out a Black man. Mr. Womack selected an individual with a dark complexion, circled the photo and wrote, This looked most like the passenger shooters skin color. Mr. Womack initialed the photo display and dated it. The remaining photos depicted light-skinned Black men. Mr. Womack did not know any of the individuals shown in the photo lineup. Detective Arciniega told Mr. Womack, Youre going to have to go to court. Detective Arciniega never threatened Mr. Womack. Mr. Womack was also shown another six pictures in a lineup. Mr. Womack circled a photo and wrote, This kind of looks like him from the lips. Mr. Womack meant the individuals lips looked like those on the person who fired the shots. These descriptions were not based upon Mr. Womacks observations, but those of other witnesses. Mr. Womack did not remember saying he was fearful about testifying because of possible gang retaliation.

Detective Arciniega arrived at the crime scene on February 7, 2005. Detective Arciniega recovered six .40 caliber casings as well as a bullet and bullet fragments at the scene. Detective Arciniega spoke to witnesses at the scene and the hospital, including Mr. Moore. Mr. Moore was in pain. But Mr. Moore was able to walk to a different location to speak with Detective Arciniega. Mr. Moore said he had been sitting out front of the apartment with friends when a white car came from the alley. The white car turned in front of the apartment building. Mr. Moore said as the car slowed, a passenger wearing a hoodie or beanie began shooting. The hoodie or beanie covered the forehead of the person who fired the shots. Mr. Moore said there were two individuals in the car. Mr. Moore stated that the front passenger, a Black man with dark complexion, fired the shots. The front seat passenger appeared to be approximately 20 to 25 years old. Mr. Moore saw the arm of the person who fired the shots come out of the passenger window. The passenger then began shooting. Mr. Moore had been cooperative when interviewed on February 7, 2005.

At a subsequent interview on February 24, 2005, Mr. Moore was cooperative but nervous. Mr. Moore was picked up at his home by two detectives. Mr. Moore voluntarily got into the detectives car. Mr. Moore was admonished before being shown a photographic lineup that he should look at each photo and the perpetrator of the crime may or may not be in the group. Mr. Moore initialed the admonishment. Mr. Moore said he was 60 to 40 percent sure that the individual he identified from a photographic lineup fired the shots. Mr. Moore also said, Im not going to court, I cant go to court. Mr. Moore was able to identify defendants gang moniker. Defendant was a suspect in the shooting at the time the photographic lineup was compiled. A computer was used to select the remaining photos in the photographic lineup.

Detective Arciniega told Mr. Moore: You know, this was your friend, and you guys were out there, it could have been very easy that were sitting in here talking to Keion and hes talking about who killed you. [] . . . [] You have to stand up, step up and be honest about what happened, tell us who did it, we know that you know. Thereafter, Mr. Moore pointed to defendants photo again. Mr. Moore stated, This is the guy who did it, Im a hundred percent sure. Mr. Moore repeated, Im not going to court. Mr. Moore wrote hundred percent below defendants photo on another copy of the lineup and initialed it. On a third copy of the photographic lineup, Mr. Moore circled defendants photo, initialed the picture, and dated it. Detective Arciniega wrote on the admonition form that Mr. Moore was one hundred percent certain defendant was from the rival gang territory. Mr. Moore signed the form and dated it. Mr. Moore was asked when he originally said he was 60/40 certain of his identification but was now a hundred percent sure . . . . Mr. Moore responded, Because I was scared, I dont want to go to court. Defendants brother, Trayvon Betterson, was depicted as No. 3 in the photographic lineup. Mr. Moore said that he was afraid of what could happen to either himself or his family if he testified.

Detective Arciniega again interviewed Mr. Moore in February 2006. A tape recording of that interview was played for the jury at trial. A transcript of the recording was provided to the jurors. Mr. Moore acknowledged circling defendants photograph. Also, Mr. Moore read what he had written on the photo lineup. When Mr. Moore was subpoenaed to testify in this case in April 2006, he was adamant that he did not want to testify for fear that something would happen to him or his family. A tape of Detective Arciniegas conversation with Mr. Moore regarding the subpoena was played at trial. A transcript was provided for the jurors. Mr. Moore did not appear as a witness at the preliminary hearing in this case. A warrant was issued for Mr. Moores arrest. Mr. Moore was arrested and posted bail.

Detective Arciniega interviewed Mr. Womack on February 7, 2005. Mr. Womack described the person who fired the shots as 20 to 25 years old with a dark complexion. Mr. Womack was shown a photographic lineup. Mr. Womack selected the individual that looked most like the skin color of the person who fired the shots. The individual identified was defendants brother, Trayvon. Mr. Womack wrote on the lineup This kind of looks like him from the lips. Mr. Womack never said his identification came from other witnesses. Mr. Womack said that there were two individuals in the car. The passenger, who began shooting, was a Black man dressed in a black hoodie or beanie.

Officer Alfred Garcia was assigned as a gang investigator for approximately four years. In that capacity, he monitored gang activity in the area where the murder in this case occurred. Officer Garcia was familiar with the rival gangs in the area and had investigated crimes at the apartment complex where the shooting occurred. Officer Garcia gathered intelligence by speaking with gang members during consensual stops, arrests, and crime investigations. The Cal Gang system stores information regarding gang members. In February 2005, Officer Garcia was aware that there was a war going on between the rival gangs. The parties stipulated that the rival gang is a criminal street gang within the meaning of section 186.22. Officer Garcia knew defendant as a member of the rival gang. Officer Garcia had seen defendant in the company of other gang members. Defendant had been seen in places where members of his gang congregate. Defendant admitted he was a member of the gang. Officer Garcia knew defendants moniker. Officer Garcia considered a hypothetical scenario wherein a member of the rival gang rode as a passenger in a car into the local gang territory. The car drove to a location where a group of four young Black men were gathered in the local gang territory. The passenger shot several times into the group, killing one minor and injuring another individual. Officer Garcia believed that the drive-by shooting was committed for the benefit of or in association with or at the direction of a street gang to promote criminal conduct by its members.

First, defendant argues that this court should review the eyewitness statements to determine whether coercion rendered them unreliable. As a corollary of this contention, defendant asserts that the use of police statements should be excluded. Preliminarily, defendants failure to object to the introduction of the statements at trial constitutes a waiver of the issue on appeal. (Evid. Code  353; People v. Seijas (2005) 36 Cal.4th 291, 302; People v. Ervin (2000) 22 Cal.4th 48, 82; People v. Medina (1995) 11 Cal.4th 694, 753; In re Michael L. (1985) 39 Cal.3d 81, 87-88.) Notwithstanding that waiver, defendants argument is cursory and without supporting authority. We presume defendants objection is to the statements of Mr. Moore and Mr. Womack. Defendant cites only to two cases without explanation of their relevance, In ReWalker (1974) 10 Cal.3d 764, 777, and People v. Lee (2002) 95 Cal.App.4th 772, 780. Lee involves the introduction of witness statements over trial counsels objection. As noted, no such objection was entered in this case. In Walker, the defendant challenged the voluntariness of his statements to police. Neither case is analogous to the circumstances of this case. We need not entertain a claim which is not properly raised or is perfunctorily asserted without supporting argument. (People v. Griffin (2004) 33 Cal.4th 536 589-590, fn. 25; People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8; People v. Ashmus (1991) 54 Cal.3d. 932, 1011, fn. 29; see also Cal. Rules of Court, rule 8.204 (a)(1)(B).)

In any event, the trier of fact determines the credibility of a witness. Here, the jurors were instructed with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 226 in pertinent part as follows: You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness gender, race, religion or national origin. [] You may believe all, part or none of the witness testimony. Consider the testimony of each witness and decide how much of it you believe. . . . The instruction further advised the jurors to consider various factors in evaluating a witnesss testimony. The jurors were also instructed with CALCRIM No. 302 regarding conflicts in evidence and CALCRIM No. 315 regarding eyewitness testimony. The California Supreme Court has consistently stated that on appeal it is presumed that the jury is capable of following the instructions they are given. (People v.Bradford (1997) 15 Cal.4th 1229, 1337; People v.Osband, supra,13 Cal.4th at p. 714; Peoplev. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) Where substantial evidence supports the verdict: [W]e must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] [Citations.] [Citation.] (People v. Smith (2005) 37 Cal.4th 733, 739, quoting People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Substantial evidence supported the verdict here. We presume the jurors followed the witness credibility instructions. Finally, there is no merit to the suggestion we may not consider the testimony of Detective Arciniega as to Mr. Moore and Mr. Womack in assessing the sufficiency of the evidence.

Second, defendant argues the photo lineup, taken together with Detective Arciniegas actions may have been impermissibly suggestive. Again, defendant did not raise this objection at trial and is precluded from doing so on appeal. (Evid. Code  353; People v. Seijas, supra, 36 Cal.4th 291, 302; People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Medina, supra, 11 Cal.4th at p. 753; In re Michael L., supra, 39 Cal.3d at pp. 87-88.)

Third, the Attorney General argues that the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. We agree. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Although the abstract of judgment indicates that the trial court imposed one section 1465.8, subdivision (a)(1) court security fee, the reporters transcript does not reflect the imposition of such a fee. Defendant was convicted of four counts. As a result, four section 1465.8, subdivision (a)(1) fees shall be imposed.

Fourth, the trial court stayed the section 186.22 enhancements pursuant to section 654, subdivision (a). The trial court orally imposed sentence as follows: Count 1, the sentence as prescribed by law for first degree murder is 25 to life. [] As prescribed by law, the firearm discharge, causing death, under subdivision [(d)] is 25 to life consecutive, as required by law. [] The finding under [section 12022.53] subdivision [(c)] is stricken. [] The gang finding, under Penal Code [section] 186.22 (b)(5) prescribes a minimum parole eligibility of 15 years. Obviously, the other components of the sentence exceed that, and therefore the punishment under [section] 186.22 is stayed under Penal Code [section] 654. [] Count 2, the sentence for premeditated attempted murder is prescribed by law as seven years to life. The firearm use discharge, causing great bodily injury under subdivision [(d)], is prescribed as 25 to life consecutive. The subdivision [(c)] finding is stricken. The gang enhancement, for the reasons stated earlier, is stayed under Penal Code 654 for the same reasons as count 1. [] Counts 3 and 4, the term is prescribed by law for premeditated attempted murder as seven to life. [] The firearm discharge finding, under subdivision (c) is prescribed as 20 years as a determinate sentence. [] The gang findings, under Penal Code 186.22 (b)(5) are a minimum parole eligibility of 15 years. So the sentence for premeditated attempted murder becomes 15 to life.

Section 654, subdivision (a)^[1]does not preclude the imposition of a 15-year minimum term pursuant to section 186.22, subdivision (b)(5). Here, the trial court accurately noted the 25-year minimum term for first degree murder exceeds the section 186.22, subdivision (b)(5) 15-year minimum term. However, as our Supreme Court held in People v. Lopez (2005) 34 Cal.4th 1002, 1009: [T]he fact that section 190 fixes a parole eligibility date equal to or greater than that provided by section 186.22(b)(5) is neither an absurdity nor an anomaly . . . As that section provides . . . the greater penalty set forth in section 190i.e., 25 years to lifeis the proper punishment for defendants first degree murder conviction. The true finding under section 186.22(b)(5), which provides for a lower minimum term, is a factor that may be considered by the Board of Prison Terms when determining a defendants release date, even if it does not extend the minimum parole date per se. (People v. Johnson [2003] 109 Cal.App.4th [1230], 1238.) As a result, we reverse the stay order of the section 186.22, subdivision (b)(1) findings as to counts 1 and 2. The section 186.22, subdivision (b)(1) true finding as to count 1 is reinstated. Although the trial court imposed a 15-year-to-life sentence as to counts 3 and 4 pursuant to section 186.22, subdivision (b)(5), the abstract of judgment indicates a 7-year-to-life sentence as to count 2, 3, and 4. The abstract of judgment should be corrected to more accurately reflect the sentence imposed. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The minimum term of 15 years is imposed as to counts 2, 3, and 4 pursuant to section 186.22, subdivision (b)(5).

Fifth, the abstract of judgment should be corrected to accurately state the trial court imposed and did not stay the section 12022.53, subdivision (d) enhancements as to counts 1 and 2 and section 12022.53, subdivision (c) enhancements as to counts 3 and 4.

To sum up, the trial court is to personally insure the abstract of judgment accurately states defendant is sentenced to: 25 years to life as to count 1 plus 25 years to life pursuant to section 12022.53, subdivision (d) and is subject to a section 186.22, subdivision (b)(5) eligible parole date finding; life with a 15-year minimum term as to count 2 plus 25 years to life pursuant to section 12022.53, subdivision (d); life with a 15-year minimum term as to count 3 plus 20 years pursuant to section 12022.53, subdivision (c); and, life with a 15-year minimum term as to count 4 plus 20 years pursuant to section 12022.53, subdivision (c). The minimum terms in counts 2, 3, and 4 are imposed pursuant to section 186.22, subdivision (b)(5). The abstract must also state counts 2, 3, and 4 are to be served concurrently with count 1. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

The judgment is modified to reflect the imposition of four court security fees and the sentencing modifications set forth above. The superior court clerk shall forward a corrected copy of the abstract of judgment to the Department of Corrections and

Rehabilitation. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J. KRIEGLER, J.

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^[1] Section 654, subdivision (a) provides in pertinent part: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.