P. v. Holmes
Filed 5/24/13 P. v. Holmes
CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
>
THE PEOPLE, Plaintiff and Respondent, v. CHARLES HOLMES, JR., Defendant and Appellant. | B239704 (Los Angeles County Super. Ct. No. TA115993) |
APPEAL
from a judgment of the Superior Court of
County,
Arthur M. Lew, Judge. Affirmed.
Charlotte
E. Costan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.
and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________
Appellant Charles Holmes, Jr.,
appeals from the judgment entered following his convictions by jury on count 1
– first degree murder (Pen. Code, §
187) with personal and intentional discharge of a firearm, and personal and
intentional discharge of a firearm causing great bodily injury and death (Pen.
Code, § 12022.53, subds. (d) & (e)(1)) with a finding he committed the
murder for the benefit of a criminal street gang (former Pen. Code,
§ 186.22, subd. (b)), and on count 2 – dissuading a witness (Pen. Code, §
136.1, subd. (a)(1)) with a court finding that he suffered two prior felony
convictions (Pen. Code, § 667, subd. (d)).
The court sentenced appellant to prison for 125 years to life. We affirm the judgment.
1.
People’s Evidence.
Viewed in
accordance with the usual rules on appeal (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that
Demond Vaughn was an East Coast Crips gang (ECC) member whose moniker was Boss
Hog. Vaughn was a snitch, i.e., he
provided information to law enforcement authorities, and he had a reputation
for being a snitch.
title="">[2] ECC had indicated Vaughn was to be stabbed or
killed for being a snitch. Vaughn met
Johnny Ray Thomas (the decedent) in prison.
Thomas was an ECC member. After
the two left prison they were close friends.
However, Vaughn avoided ECC territory.
On February 24,
2010, Vaughn, Thomas, Mercedes Spraggins, and Ramona McClinton were at
McClinton’s house near 48th and Hoover.
Spraggins was Vaughn’s girlfriend and McClinton was Thomas’s girlfriend. The four discussed going out. Vaughn, Thomas, and Spraggins left in
Thomas’s Tahoe SUV (Tahoe) to pick someone up.
They drove to 116th and Towne, a location in the “hood†where Vaughn did
not want to be. Thomas entered a
building while Vaughn and Spraggins remained in the Tahoe. About 10 minutes later, Thomas returned with
appellant, known as Slim, and Calvin Thomas (Calvin), known as Frog. Vaughn did not know appellant but Vaughn had
seen appellant before in the neighborhood when Vaughn was young. Appellant was a high-ranking ECC member.
Appellant came to
the driver’s side window of the Tahoe, and appellant and Vaughn greeted each
other. Vaughn was uncomfortable. The following occurred during the People’s
direct examination of Vaughn: “Q Did you see a reaction in the defendant? [¶] A Yeah, he just looked at me. Like just wow! It was just like wow!†Vaughn identified appellant at trial as the
person whom Vaughn had seen.
Appellant
told Thomas to meet appellant at a store.
Appellant was driving an undamaged SUV.
The SUV was depicted in a photograph, i.e., People’s exhibit No. 9. Thomas, in the Tahoe with Vaughn and
Spraggins, followed appellant. Thomas
drove to a liquor store at Century and Main, then, at appellant’s request, to
102nd and San Pedro, which was in ECC territory. At trial, Vaughn positively identified
appellant as the person named Slim whom Vaughn had seen driving, on February
24, 2010, the SUV depicted in People’s exhibit No. 9.
SUV. Thomas parked near the SUV and
exited the Tahoe.
Thomas
was later talking to appellant when Thomas asked Vaughn to approach. Vaughn exited the Tahoe and went to the
driver’s side of appellant’s SUV.
Appellant was sitting in its driver’s seat. Vaughn and appellant conversed. Thomas left appellant’s SUV and spoke with
Calvin while Vaughn remained talking with appellant.
Appellant suddenly
asked Vaughn if Vaughn had a gun on him.
Vaughn replied no. Appellant
exited appellant’s SUV and eventually appellant, Vaughn, Thomas, and Calvin
walked to a “homie’s†house. Later, the
four were outside the house. Vaughn
noticed people putting on black clothes, black hoodies, and black gloves. Vaughn knew it was “about [him].†Appellant called to Thomas and the two
conversed. At the time, Thomas had his
back to Vaughn. Thomas turned, faced
Vaughn, and looked at Vaughn in a way that signaled to Vaughn to leave. Vaughn left shortly thereafter.
During the morning
of February 25, 2010, Vaughn saw on television that the SUV appellant had been
driving had been involved in a crash.
Police showed Vaughn a Department of Motor Vehicles (DMV) photograph and
Vaughn identified it as depicting appellant from ECC.
Spraggins
testified as follows. On February 24,
2010, Thomas drove Vaughn and Spraggins in Thomas’s truck. They eventually went to Vaughn’s old
neighborhood, which was “in the hundreds.â€
Thomas exited the truck but Vaughn remained in it. Thomas returned with appellant and
Calvin. Spraggins did not know appellant
before that night. Calvin was Thomas’s
uncle.
After
Thomas returned with Calvin and appellant, appellant stuck his head in Thomas’s
truck and greeted Vaughn and Spraggins.
Appellant had a mustache and goatee, his hair was in braids, and he was
wearing a red shirt.
name="_ftnref4" title="">[4] Spraggins positively identified appellant at
trial as the person who looked into the window of Thomas’s truck in which she
had been seated that night.
name="_ftnref5" title="">[5] Appellant walked away and talked with
Calvin. Thomas reentered his truck, and
Thomas, Vaughn, and Spraggins followed appellant and Calvin. Appellant was driving the SUV depicted in
People’s exhibit No. 9. Thomas
eventually drove to 102nd and parked.
Spraggins observed
Thomas cross the street and talk to appellant.
Spraggins and Vaughn stayed in the Tahoe. Thomas invited Vaughn to exit the Tahoe and
Vaughn reluctantly did so. Appellant and
Thomas conversed, and Vaughn walked to appellant and talked with him. Appellant, Vaughn, Thomas and Calvin then
walked down the street to a house. When
the four returned, Thomas and appellant walked towards appellant’s truck and
talked. Vaughn told Spraggins that he
was going to his sister’s house, and Vaughn left. Thomas was still with appellant. Thomas returned to his SUV, looked inside it,
and asked where Vaughn was. Thomas then
returned to appellant.
During
cross-examination, Spraggins testified she was sitting in the front seat of
Thomas’s truck and operating a laptop computer.
However, she denied at trial that it was safe to say she was not paying
much attention to what “the guys†were doing.
She testified she was “still paying attention†even though she was doing
something.
A
few minutes after Thomas returned to appellant, Thomas came back to his truck
and drove away with Spraggins. Spraggins
first learned appellant was named Slim when Thomas reentered the truck. Almost two hours had passed from the time
Spraggins first saw appellant to the time she left 102nd with Thomas.
Thomas, driving
with Spraggins, was very upset.
Spraggins heard Thomas and appellant talking on Thomas’s cellphone. Thomas was using his speakerphone, and
Spraggins heard the following. Appellant
kept asking where Thomas and Spraggins were.
Appellant said he wanted “that nigga,†referring to Vaughn, and
appellant said he “wanted [Vaughn’s] head.â€
Appellant asked where Vaughn was.
Thomas replied Vaughn was not with them anymore. Appellant wanted to know where Spraggins
was. Thomas replied he had dropped her
off.
Thomas had about
10 phone conversations, and only one was on the speakerphone. Thomas’s phone rang incessantly. While Thomas was driving, he told Spraggins
that Vaughn was a snitch. Thomas drove
to his mother’s house and entered it with Spraggins. Thomas’s cellphone continued ringing. Thomas was pacing back and forth when he was
on the phone. He was worried and
upset. When it was very late, Thomas
left his mother’s house. He told the
occupants not to open the door. Later
that night, Thomas called and asked Spraggins to pick him up.
About 30 minutes
later, Spraggins went to 102nd and San Pedro.
Police were present. Spraggins
returned to Thomas’s mother’s house.
Spraggins saw on television Thomas’s body and a crashed vehicle. The crashed vehicle was the SUV appellant had
been driving.
About
2:05 a.m. on February 25, 2010, McClinton received a phone call from
Thomas. He was hysterical and wanted her
immediately to come to 102nd and San Pedro and get him. She drove to the intersection, which was
about 10 minutes away. While McClinton
was en route, Thomas called her and wanted to know where she was. McClinton testified that after she told
Thomas where she was, Thomas told her to wait, then she heard Thomas say on the
phone, “Nigga Slim, if you feel like that, then take off.†Thomas’s voice was raised and he was
angry. The following occurred during the
People’s direct examination of McClinton:
“Q Do you know what ‘take off’
means? [¶] A Yes
-- he wanted him to fight. [¶] Q
[Thomas] wanted to fight Slim?
[¶] A Yes.â€
McClinton put her
phone down but later picked it up and heard on the phone an ambulance and
someone say, “this man is shot . . . .â€
She went to 93rd and Avalon where she saw Thomas’s dead body on the
ground. McClinton had bought Thomas’s
cellphone for him, and its number was (323) 445-9157. (We refer hereafter to the cellphone with
this phone number as Thomas’s phone.)
McClinton drove to 102nd and saw Spraggins. Spraggins yelled out “Fuck that nigga
Hog. He’s a snitch.â€
Nishabia Pettaway
lived in an apartment near 93rd and Avalon. About 2:00 a.m. on February 25, 2010, she
heard a Black man’s voice. The man was
arguing. Pettaway heard the man say,
“ ‘You can’t see me. You can’t see
me because, . . . I’ll ‘[fuck]’ you up with a slap.’ †Pettaway testified, “[a]nd then he was like
‘you gonna shoot me.’ Then he was like
‘Well, [nigga] shoot me then.’ â€
The man was loud as if he were angry.
The man also said, “ ‘I ain’t scared’ †and “shoot me.†The man’s voice was the only voice Pettaway
heard. Pettaway then heard a gunshot and
subsequently heard a big truck that sounded “like a Yukon or something†take
off.
About 2:25 a.m. on
February 25, 2010, Los Angeles Police Sergeant Jaime Bennett responded to a
call pertaining to a man down at 93rd and Avalon. He went there and saw Thomas on the
ground. Bennett went to the apartment of
LaTonya King. Her apartment was nearby
on 93rd. Bennett spoke with King and
obtained from her the phone number to appellant’s cellphone. The number was (323) 944-4302. (We refer hereafter to the cellphone with
this phone number as appellant’s phone.)
Bennett searched the apartment but appellant was not there.
Thomas’s cellphone
was next to his body at 93rd and Avalon.
McClinton told an officer at the scene that McClinton had heard Thomas
mention the moniker Slim during an argument.
Los Angeles Police Detective Stacey Szymkowiak testified she scrolled
through Thomas’s phone and found contact information for “Slim five nine†with
the number “(323) 944-3402 [
Szymkowiak searched King’s apartment, which King shared with
appellant. Appellant’s California
identification card and the registration for the Yukon discussed below were
found in the apartment. Bennett had
information that the registered owner of the Yukon lived in the apartment.
About 2:15 a.m. on
February 25, 2010, Los Angeles Police Officer Michael Lanza saw a Black male
driving a Yukon SUV and speeding southbound on Avalon near 102nd. The driver slammed on the Yukon’s brakes just
before 102nd. Lanza attempted to
initiate a traffic stop, but the Yukon eventually sped away. Lanza lost sight of the Yukon at 102nd and
Broadway. Lanza received a shooting call
and responded to 93rd and Avalon. At
2:18 a.m. on February 25, 2010, King called 911 regarding the incident at 93rd
and Avalon, and she was one of the first persons to call.
About 2:00 a.m. on
February 25, 2010, Leticia Paine was asleep at her home near 102nd and
Broadway. She was awakened by the sounds
of a vehicle driving fast, and then multiple crashes. She also saw the lights and heard the sirens
of police cars. She ran outside and saw
that the SUV depicted in People’s exhibit No. 9 had crashed. Paine saw a light-skinned Black man exiting
the SUV from its driver’s side. The man
appeared to be injured and was having difficulty walking. The man was wearing a tan shirt and tan
pants.
thought photograph Nos. 2 and 6 looked like the person she had seen. She initially denied at trial that she had
gotten a good enough look at the man to identify him.
However, after
Paine testified, Paine told a detective who was taking Paine home that
appellant was the man who had left the SUV.
Paine, recalled to the stand, testified as follows. Appellant was the man who left the SUV. At the crash scene, Paine saw appellant’s
profile from about 23 feet away.
Appellant was in an illuminated area when she “really looked at
him.†At the time, appellant’s hair was
braided. It was not braided at time of
trial. Paine was positive appellant was
the man, and she was trying to do the right thing.
Los Angeles Police
Sergeant Michael Steward testified as follows.
About 2:20 a.m. on February 25, 2010, Steward went to 102nd and
Broadway where a Yukon had crashed. The
air bag on the driver’s side of the Yukon had deployed. A Samsung Metro PCS cellphone was found on
the driver’s seat of the Yukon. A Black
male, apparently a transient, gave Steward reason to look in a particular direction
for a person. Steward did not get
contact information from the apparent transient.
Szymkowiak
examined the cellphone recovered from the Yukon at 102nd and Broadway. Szymkowiak believed the phone number she saw
on the cellphone was “(323) 944-3402
[sic].†The cellphone had a screensaver photograph of
appellant and King, several photographs of appellant and King together, and
nude photographs of King. Several phone
numbers in the cellphone coincided with people involved in the Thomas murder
investigation. Those phone numbers
included numbers for Thomas, Slim Bad, Frog, and Baby Slim.
Michael Dikovitsky, a
records custodian at Metro PCS, testified based on cellphone records that Bad
Slim was the subscriber to phone number (323) 944-4302. (As mentioned, this was the number to
appellant’s phone.) At 10:41 p.m. on
February 24, 2010, Thomas’s phone called appellant’s phone. Szymkowiak testified, based on phone records,
the following. Between 10:30 and 11:30
p.m. on February 24, 2010, appellant and Thomas exchanged three calls. From 12:34 to 12:43 a.m. on February 25,
2010, the two exchanged about 13 calls.
Appellant called Thomas at 12:34, 12:35, and 12:43 a.m. Dikovitsky testified that between 12:59 and
1:35 a.m. on February 25, 2010, appellant’s phone called Thomas’s phone several
times.
From 2:00 to
2:20 a.m., all calls to appellant’s phone went to voicemail. Szymkowiak testified that from about 2:03 to
2:14 a.m., Thomas called McClinton and his mother. Thomas called McClinton five times. About 2:00 a.m., the last phone call was made
to appellant’s phone. At that time,
appellant’s phone was about three miles from 93rd and Avalon.
A detective found
a Smith and Wesson revolver in the street at 102nd and Spring. A bullet had been fired from the
revolver. Thomas died as a result of a
gunshot wound to his head. A coroner
removed a bullet fragment from Thomas’s head, and the fragment came from a
bullet fired from the revolver. DNA from
appellant and DNA from Calvin were on a drinking glass in the console of the
Yukon. The probability two other persons
supplied that DNA was one in 10,000,000.
Appellant’s thumbprint was found on the inside rearview mirror of the
vehicle depicted in People’s exhibit No. 9.
On April 20, 2010, police arrested appellant and King together. Following appellant’s arrest, Szymkowiak
noted on a form that appellant had a limp as a preexisting condition.
On
April 30, 2010, in a recorded jailhouse conversation, appellant told King to
keep a cellphone “[t]hey don’t know about†and to have the GPS turned off “so .
. . when they [try] to serve you, you won’t be there.†Appellant said he did not want King to “be in
nothing†and appellant said, “they need you.â€
At one point appellant indicated to King that she should not appear in
court on a date. He also told her, “Just
chill because they’re going to be looking for you.â€
On
June 16, 2010, Szymkowiak personally subpoenaed King to appear at appellant’s
June 22, 2010 preliminary hearing.
However, on June 21, 2010, during a recorded jailhouse conversation,
appellant told King “you . . . just lay low man, starting
today.†King replied, “I’m out
tonight.†King did not appear at the
preliminary hearing. On November 17,
2010, the trial court ordered King to return to court on November 30,
2010. She did not return and, as of the
time of trial, King had not been located.
Los
Angeles Police Detective Erik Shear, a gang expert, testified a snitch was the
worst thing a gang member could be. A
snitch could be beaten or even murdered.
If a gang member who was a friend of a snitch was informed by the gang
of the snitch’s actions and told to bring the snitch to the gang, the friend
would be obligated to comply. Failure to
comply would lead to consequences as bad as those that would have been imposed
on the snitch. Shear opined at trial
that the present murder was committed for the benefit of, in association with,
and at the direction of, ECC.
2.
Defense Evidence.
In
defense, James Dunn testified he was employed by Chapter 2 Inc., a gang
intervention organization. Appellant
assisted as a volunteer. Dunn testified
at the May 2011 trial that he believed the director of the organization brought
appellant in as a volunteer “like last year about summer time [
whereabouts on February 24 or February 25, 2010.)
During
follows. Dunn did not remember exactly
when he met appellant. Appellant’s
moniker was Slim and appellant was in the “five nine†gang. Dunn’s moniker was the Godfather. Dunn suffered a 1981 murder conviction, a
2002 felony conviction for carrying a concealed and loaded firearm, a 2002
felony conviction for possession of a firearm (as a felon), and a 2004 felony
conviction for possession of narcotics for sale.
Appellant
claims (1) the trial court erroneously refused to instruct on voluntary
manslaughter based on sudden quarrel or heat of passion, and his trial counsel
provided ineffective assistance of counsel by asking the court not to instruct
on that issue, (2) appellant’s trial counsel provided ineffective
assistance of counsel by failing to investigate alibi witnesses and other
relevant evidence, (3) the trial court erroneously refused to exclude the
identification testimony of Vaughn and Spraggins as products of an
impermissibly suggestive single-person photographic showup, (4) there was
insufficient evidence appellant committed murder or that the murder was
willful, deliberate, and premeditated, and (5) cumulative prejudicial error
occurred.
1.
The Trial Court Properly Refused
to Instruct on Voluntary Manslaughter.
a. Pertinent
Facts.
During
discussions concerning jury instructions, the prosecutor asked the court to
instruct on voluntary manslaughter based on sudden quarrel or heat of passion
(hereafter, voluntary manslaughter) in light of alleged evidence Thomas and
appellant were involved in a heated argument immediately before the
killing. The prosecutor indicated he
believed appellant was going to request the instruction. Appellant submitted the matter. Later, appellant’s counsel indicated he had
discussed the matter with appellant, and appellant did not want the court to
instruct on voluntary manslaughter. The
court ruled it would give the instruction over appellant’s objection.
The
next day, the court indicated it had reconsidered the matter. The court indicated the only evidence of heat
of passion was “the witness that heard the words just before the shot.†Appellant’s counsel agreed. The court indicated there was insufficient
evidence to support a voluntary manslaughter instruction. The prosecutor indicated he had requested the
instruction out of an abundance of caution to prevent appellant from appealing
on the ground the trial court erroneously failed to give the instruction.
Appellant
continued to object to the instruction and indicated one reason he was
objecting was tactical. Appellant’s
counsel, reading from CALCRIM No. 570, noted an element of the instruction was
“As a result of the provocation the defendant acted rationally [
and under the influence of intense emotion that obscured his reasoning or
judgment.†Appellant’s counsel denied
there was evidence of that element.
The court
indicated words alone were insufficient provocation. The court rejected the prosecutor’s request
that the court instruct on voluntary manslaughter. The court indicated its decision was based in
part on the objection of appellant’s counsel and the fact he had tactical
reasons why he did not want the court to give the instruction.
b. Analysis.
Appellant
claims the trial court erroneously refused to instruct on voluntary
manslaughter. The claim is
unavailing. Appellant’s counsel, at
appellant’s personal request, ultimately objected to the trial court giving the
instruction. Appellant’s counsel indicated
he had a tactical reason for objecting to the instruction. Appellant obviously wanted to present the
jury with an all-or-nothing decision of convicting appellant of murder or
acquitting him on that charge. Appellant
waived the issue of whether the trial court erroneously refused to instruct on
voluntary manslaughter as a lesser included offense of murder because any such
error was invited by appellant. (Cf.
1234-1236.)
Even
if the issue was not waived, McClinton’s testimony provided evidence that
Thomas challenged appellant to fight and used a racial epithet towards
appellant. Pettaway testified that
Thomas said “ ‘. . . I’ll ‘[fuck]’ you up with a
slap’ †and that, using a racial epithet towards appellant, Thomas invited
him to shoot Thomas. In sum, any
provocation by Thomas was purely verbal.
As to the requisite objective provocation for voluntary manslaughter,
“The provocative conduct by the victim may
be . . . verbal, but the conduct must
be sufficiently provocative that it would cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection. [Citations.]â€
(People v. Moye (2009)
47 Cal.4th 537, 550, italics added.)
However,
there is no need to decide whether Thomas’s conduct constituted the requisite
objective provocation. Even if it did, a
defendant’s reason must be
actually obscured as the result of a strong passion aroused by a provocation
sufficient to cause an ordinary person of average disposition to act rashly or
without due deliberation and reflection, and from this passion rather than
judgment. (People v. Lasko (2000) 23 Cal.4th 101, 108.)
Moreover, the defendant must possess and act upon the requisite state of mind. (People
v. Sinclair (1998) 64 Cal.App.4th 1012, 1016.)
In the present
case, the witnesses pertinent to the issue of provocation largely testified
only as to what Thomas said. There was
no substantial evidence from McClinton, Pettaway, or anyone else that
appellant’s reason was actually obscured by any provocation, or that appellant
acted with the requisite state of mind.
For all the record reflects, appellant shot and killed Thomas based on
an exercise of judgment, not from passion.
A trial court
is under no duty to give an instruction unsupported by
v. Tufunga (1999) 21 Cal.4th 935, 944.) The trial court did not err or violate
appellant’s constitutional rights guaranteed by the Fifth, Sixth, and/or Fourteenth
Amendments by refusing to instruct on voluntary manslaughter as a lesser
included offense of murder.
Moreover, even if
the trial court erred as a matter of state law by refusing to instruct on
voluntary manslaughter, it does not follow we must reverse the judgment. As later discussed (see, e.g., fn. 9,
appellant committed not merely murder but willful, deliberate, and premeditated
murder. The jury found appellant
committed such a murder. It is not
reasonably probable a result more favorable to appellant would have occurred
absent the alleged error. (Cf.
1153, 1171, 1213; People v. Watson
(1956) 46 Cal.2d 818, 836.)
We similarly reject appellant’s claim his
trial counsel provided ineffective assistance of counsel by objecting to the
court giving a voluntary manslaughter instruction. In light of our previous analysis,
appellant’s trial counsel properly objected to the instruction because it was
unsupported by substantial evidence; therefore, appellant has failed to
demonstrate trial counsel’s representation of appellant was constitutionally
deficient. Even if it was, there was no
prejudice for the same reasons any trial court error in failing to give the
instruction was not prejudicial.
Appellant’s ineffective assistance claim fails. (See People
v. Slaughter (2002) 27 Cal.4th 1187, 1219 (Slaughter); People v. Ledesma
(1987) 43 Cal.3d 171, 216-217 (Ledesma).)
2.
Assistance of Trial Counsel by Any Alleged Failure to Investigate Alibi Witnesses or Other Relevant Evidence.
Appellant makes
several claims of ineffective assistance of counsel based on unsworn assertions
he made during a Marsden hearing
concerning his trial counsel’s alleged failure to investigate alibi
witnesses. (The trial court denied the
Appellant claims
his trial counsel did not call as a witness his probation officer, “who would
have testified that appellant had no injuries two days after the shooting—as
[appellant] would have[,] had he been driving the truck that crashed.†Appellant cites in support a page of the
reporter’s transcript that reflects appellant stated during the
wanted to come and testify that two days prior after [sic] the incident, I came to her office with no wounds or anything
when the investigators went and talked to her.â€
However, appellant
has failed to demonstrate from the record that (1) appellant necessarily would
have suffered injury, or observable injury, as a result of having been in the
Yukon when it crashed, (2) a probation officer (whom appellant did not name)
saw appellant two days after Thomas was killed, (3) any such officer saw all
injuries appellant might have received as a result of the crash, (4) any such
officer was available to testify at trial, or (5) any such officer would have
testified the officer saw no injuries on appellant. Appellant’s vague and unsworn self-serving
statement during the Marsden hearing
does not compel a contrary conclusion.
Appellant claims his trial
counsel did not interview “the person who called and said his uncle did the
shooting.†Appellant cites in support
various pages of the reporter’s transcript that indicate that, during the
was “an anonymous phone call allegedly that was turned over to us and the
victim – I mean, the person on the call said that his uncle was the person that
did the crime.†Appellant said that,
prior to trial, he had given this information to his trial counsel but his
trial counsel had failed to investigate it.
However, appellant
has failed to demonstrate from the record that (1) such an anonymous phone call
was made, (2) how appellant’s trial counsel could have investigated the matter
if the caller was anonymous, or (3) for that matter, appellant’s counsel did
not interview the caller. Appellant’s
statement was unclear as to whether appellant was suggesting the caller’s uncle,
or Thomas’s uncle, committed the crime.
Appellant’s vague and unsworn self-serving statement relating multiple
hearsay does not compel a contrary conclusion.
Appellant claims
there was a surveillance tape from a nearby hamburger stand, the tape was
provided to appellant’s investigator, but it could not be played and the
investigator could not review it because it was apparently password-protected
and the “prosecutor did not provide access.â€
Appellant cites in support various pages of the reporter’s transcript
that indicate that, during appellant’s Marsden
hearing, he indicated the hamburger stand was a block from the murder scene and
the “D.A. and them†had access to the “code.â€
However, appellant
has failed to demonstrate from the record that (1) such a surveillance tape
existed, (2) any camera from which the alleged tape originated had been
pointing in the direction of the crime scene or otherwise surveilling that
scene, (3) any such camera recorded useful information from a block away,
and (4) the prosecutor had access to any password or code needed to access a
tape originating from a camera apparently belonging to a private business. Appellant’s vague, unsworn statement does not
alter that conclusion.
Appellant claims
“[a] suspect was found within the
perimeter set up on the night of the shooting to confine the
disclosed. The officers took a statement
from a woman who saw him, but defense
counsel insisted he never received a copy of that statement. [Fn. omitted.]†(Italics added.)
However,
the pages of the reporter’s transcript cited by appellant demonstrate the
prosecutor represented during the Marsden
hearing that there was mention of “a witness
at the scene after the crash that
(Italics added.) Moreover, the
prosecutor represented at the hearing that a detective went to interview
Paine’s mother “and then they found out it wasn’t her that actually supposedly
made the observation. It was her
daughter [apparently Paine], and they went to talk to the daughter.†The prosecutor indicated no notes had been
given to him, and the prosecutor was delivering to appellant all discovery the
prosecutor possessed. Appellant has
failed to demonstrate a woman or Paine’s mother saw anyone, or how any of the
above facts constituted ineffective assistance of trial counsel.
Appellant claims
“The interview with Ms. Wilborne, who was in the car with Thomas before he
dropped her off in an area known as the ‘jungle’ was never provided to the
defense, nor were the officer’s notes of his interview with her on the night of
the shooting. All counsel had was a
one-page summary of a statement from Wilborne.â€
(Events involving Wilborne occurred before Thomas went to 102nd and San
Pedro.)
However, at the
pages of the reporter’s transcript cited by appellant, the prosecutor
represented during appellant’s Marsden
hearing that Wilborne was interviewed in
the field, the prosecutor had no “reports [that Wilborne] was interviewed,â€
and Wilborne was not a percipient witness.
Appellant’s counsel indicated he
did not know if police interviewed Wilborne and recorded the interview, but
if police did, appellant did not have
“that.†Appellant has failed to
demonstrate how any of the above constituted ineffective assistance of counsel.
Appellant claims
the trial court erroneously denied his presentence motion for the appointment
of an investigator to investigate the above matters. In light of the above, the claim is without
merit. Appellant claims “Witnesses who
would have placed appellant at the gang intervention meeting at the time of the
shooting would have provided an absolute defense, or at least cast a reasonable
doubt as to appellant’s guilt.†However,
the claim is conclusory, does not identify any such witness, does not explain
why appellant would be at a gang intervention meeting about 2:00 a.m. on
February 25, 2010, and does not explain how appellant could have been at any
such meeting in February 2010 in light of Dunn’s testimony at one point to the
effect appellant first became a volunteer at Chapter 2 Inc. in the summer of
2010. Appellant has failed to
demonstrate trial court error or ineffective assistance of counsel.
Finally, as to all
of the above matters relating to appellant’s alleged alibi, appellant presented
no alibi evidence but instead presented evidence of his participation in a gang
intervention organization, apparently as circumstantial evidence that he
possessed good character and did not murder Thomas. In any event, there is no real dispute
someone murdered Thomas by shooting him in the head. There was overwhelming evidence appellant was
the murderer.
title="">[9] Accordingly, the alleged instances of
constitutionally deficient representation concerning appellant’s alleged alibi
were not prejudicial. Appellant has
failed to demonstrate ineffective assistance of his trial counsel, including
any ineffective assistance regarding any potential alibi defense. (See Slaughter,
supra, 27 Cal.4th at p. 1219;
Ledesma, supra, 43 Cal.3d at pp. 216-217.)
3.
The Identifications of Appellant
by Vaughn and Spraggins Were Not Products of Impermissibly Suggestive
Identification Procedures.
a. Pertinent
Facts.
Prior
to trial, police showed a single photograph of appellant to Vaughn and
Spraggins, and each told police the photograph depicted appellant. Prior to the presentation of evidence at
trial, appellant moved to exclude those pretrial identifications on the ground
the single-person photographic showup was suggestive. Appellant distinguished any in-court
identification Vaughn and Spraggins would make from an extrajudicial
identification based on a single photograph shown to them. Appellant argued the single photograph was
suggestive and the resulting pretrial identification was tainted.
The
prosecutor represented that police interviewed Vaughn and Spraggins on the
night of the murder. Several photographs
were then shown to them, a single DMV photograph was shown to each, but a
six-pack folder was not shown to them.
The prosecutor believed appellant was not arrested until a month and a
half later. The court, noting Vaughn and
Spraggins each had seen appellant prior to the single-person photographic
showup, ultimately denied appellant’s motion.
b. Analysis.
Appellant claims
the trial court erroneously refused to exclude the identification testimony of
Vaughn and Spraggins as the products of an impermissibly suggestive
single-person photographic showup. We
disagree. At the outset, we note
appellant asked the trial court to exclude the pretrial identifications of
Vaughn and Spraggins, not their in-court testimony. We assume without deciding the issue of the
admissibility of their in-court testimony is preserved for appellate review.
A defendant has
the burden of showing that an identification procedure was so unfair it
violated the defendant’s due process rights.
(People v. Sanders (1990)
51 Cal.3d 471, 508.) We review
independently any trial court ruling that a pretrial identification procedure
was not unduly suggestive. (
698.)
First, a
single-person photographic showup is not inherently unfair or impermissibly
suggestive. (Cf. People v. Ochoa (1998) 19 Cal.4th 353, 413, 425-426.) Appellant’s claim fails for this reason
alone. (Id. at p. 412.) Second, we
have set forth here and in our Factual Summary pertinent facts concerning such
factors as the opportunity of Vaughn and Spraggins to have viewed appellant,
their prior familiarity, if any, with appellant, the degree of their attention
during the events of February 24 and/or February 25, 2010, the accuracy of any
prior descriptions by them of appellant, the level of any certainty
demonstrated at the time of the showup, and the time between the crime and the
showup. Considering these factors, we
conclude that even if the single-person photographic showup was unduly
suggestive, the pretrial identifications by Vaughn and Spraggins following that
showup, and their in-court identification testimony, were reliable under the
totality of the circumstances. (Cf.
23 Cal.App.4th 32, 39; see People v.
Gordon (1990) 50 Cal.3d 1223, 1242.)
Finally, we have
concluded in part 2, ante (see, e.g.,
fn. 9, ante), that there was
overwhelming evidence appellant was the person who murdered Thomas. That evidence was overwhelming even absent
the testimony of Vaughn and Spraggins identifying appellant. Any erroneous admission of their
identifications or the DMV photograph was harmless beyond a reasonable doubt. (Cf. People
v. Rodrigues (1994) 8 Cal.4th 1060, 1119, fn. 22; People v. St. Germain (1982) 138 Cal.App.3d 507, 518-519,
73, 85-86.)
4.
There Was Sufficient Evidence
Appellant Committed First Degree Murder.
Appellant
claims there is insufficient evidence he committed first degree murder. He argues there was insufficient evidence he
was the person who shot Thomas, and insufficient evidence any murder was
willful, deliberate, and premeditated.
We disagree.
As
for appellant’s identification argument, we have concluded in part 2,
evidence appellant was the shooter.
Appellant’s identification argument fails. As for appellant’s premeditation argument,
the overwhelming evidence appellant murdered Thomas was also overwhelming
evidence appellant committed a willful, deliberate, and premeditated
gang-related shooting and murder of Thomas because appellant had “wanted
[Vaughn’s] head†for being a snitch, and Thomas had let Vaughn get away from
appellant and ECC. There was sufficient
evidence appellant committed the first degree willful, deliberate, and
premeditated murder of Thomas. (
at p. 1206.)
title="">[10]
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
ALDRICH, J.
On February 14, 2013, appellant
filed a petition for a writ of habeas corpus (case No. B246863) and, on
February 25, 2013, this court ordered that this appeal and the petition be
concurrently considered. The petition will be the subject of a separate
order.
In 2003, Vaughn provided
information about a gun transaction and two persons whose monikers were Biscuit
and Slim, respectively.
