P. v. Melonson





















Filed 5/15/13 P. v. Melonson CA3













NOT TO BE PUBLISHED



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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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

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THE PEOPLE, Plaintiff and Respondent, v. SIRTICE MELONSON, Defendant and Appellant.	C061352 (Super. Ct. No. 05F10198)
THE PEOPLE, Plaintiff and Respondent, v. SARAH WEEDEN, Defendant and Appellant.	C061800 (Super. Ct. No. 05F10198)

Seventeen-year-old
Navnil Chand, his brother, and two friends approached 14-year-old defendant
Sarah Weeden and some of her friends and struck up a conversation. Navnil later called Weeden, who arranged to
meet him a few days later. Navnil and a
friend, 22-year-old Deovinesh Kumar, arrived at the assignation, where they
were met by defendant Sirtice Melonson and another man. The men ordered Navnil and Kumar out of the
car, and as Kumar opened his door one of the men shot into the vehicle. Navnil was attempting to open his door when
multiple shots rang out. Navnil died of
gunshot wounds; Kumar lost part of his finger.

An amended
information charged Weeden and Melonson with murder, attempted murder, and
attempted second degree robbery. (Pen. Code, §§ 187, subd. (a), 664/187, subd.
(a), 664/211.)href="#_ftn1" name="_ftnref1"
title="">[1] Weeden and Melonson were tried jointly before
separate juries. Melonson’s jury found
him guilty on all counts; Weeden’s jury found her guilty of first degree murder
and attempted second degree robbery, but found her not guilty of the attempted
murder of Kumar.

The court
sentenced Melonson to life in prison without possibility of parole, plus 50
years to life, plus 19 years four months.
The court sentenced Weeden to 25 years to life in prison, plus four
years.

Melonson
appeals, contending instructional error,
jury misconduct, and the trial court erred in denying him a mistrial. Weeden appeals, arguing instructional error,
ineffective assistance of counsel, the court erred in removing a juror, the
court erred in denying her motion for a new trial, the court erred in denying
her a mistrial, the court lacked jurisdiction, her sentence constitutes cruel
and unusual punishment, and sentencing error.
We shall affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Following
the shooting death of Navnil, an amended information charged Weeden and
Melonson with his murder, the attempted murder of Kumar, and the attempted
second degree robbery of Navnil and Kumar.
(§§ 187, subd. (a), 664/187, subd. (a), 664/211.) The information also charged Melonson with
possession of a firearm by a convicted felon and alleged a prior strike
conviction. (§§ 12021, subd. (a)(1),
667, subds. (b)-(i), 1170.12.) It
was further alleged that Melonson murdered Navnil while engaged in the
commission of a robbery. (§§ 211, 190.2,
subd. (a)(17).) Finally, the information
alleged Melonson personally used a firearm (§ 12022.53, subd. (d)), and that
Weeden, a principal, was armed (§ 12022, subd. (a)(1)). Both Weeden and Melonson pleaded not guilty.

Weeden and
Melonson were tried jointly before separate juries. The following facts were adduced at trial.

The Prosecution’s Case

One night
in July 2005, 17-year-old Navnil Chand, his brother Shavnil Chand, and two
friends, Ashneel Prakash and 22-year-old Deovinesh Kumar, were riding around in
Kumar’s Toyota Camry.href="#_ftn2"
name="_ftnref2" title="">[2] The vehicle was new and equipped with an
in-dash DVD player, chrome rims, and tinted windows. While driving, they saw four teenaged girls
walking down the street.

The group
of girls consisted of 14 year olds Angela G. and Weeden, and sisters Christina
W. and J.W.href="#_ftn3" name="_ftnref3"
title="">[3] The boys in the Camry stopped next to the
girls. The two groups conversed. Kumar invited the girls to “party” with them,
saying his group had beer and “weed.”

The girls
demurred and Angela gave Weeden’s cell phone number to Navnil. After Navnil said he would call Weeden’s
number, the boys drove away.

The girls
walked back to Christina’s home. A group
of boys hung out across the street. John
was outside with his friends, including Ryan Moore and S.M., defendant
Melonson’s brother. Weeden and Angela
talked with the group of boys. Weeden
told them about meeting Navnil and Kumar and that they had said they had beer
and weed.

Ryan Moore
and Weeden talked about robbing the boys.
Moore asked if Weeden had their phone number; she told him they had her
number. According to Weeden, “[T]he
Hindu guy’s phone number was restricted.”

A few days
later, Moore told Hill that he was considering robbing someone. Moore stated he was going to rob “[s]ome East
Indian boys” for “weed and money.”

During this
period, Angela asked Weeden if they were going to do the robbery. Weeden replied, “[Y]es.” Angela told Weeden not to do it. According to Weeden, the robbery would take
place at Vintage Park, and would yield money and drugs.

John heard
from Weeden and Angela that there was going to be a robbery. Weeden asked him to rob the boys they had met
the week before. John refused.

A week
later, on August 5, 2005, Weeden called Hill and asked for Angela; Hill told
her Angela was at home. Although Angela
was supposed to see Weeden that day, Angela’s mother forbade her from leaving
the house.

That
evening, Weeden called Hill and talked about boys that kept “crank calling” her
phone; she wanted to have them beaten up.
Weeden told Hill the boys were trying to get her to go to a motel. Weeden also told Hill she was going to have
Moore rob the boys, who kept calling her. She told Hill she met the boys while walking
with Hill’s cousins. Moore planned the
robbery, which would net Weeden weed and money.

Hill warned
Weeden that robberies can go wrong and bad things can happen. Weeden responded, “[O]kay.”

Also that
evening, Navnil called Kumar and asked him to call Weeden’s cell phone. Although Kumar called, no one answered. Navnil later called Kumar and told him he
needed money; he said it was urgent but did not tell him what it was for. Kumar owed him $60. The duo agreed to meet at an ATM to get the
money.

Kumar
picked up Navnil, and as the pair drove to the ATM, Navnil talked to someone on
his cell phone, trying to get a room at the Motel 6. Navnil used Kumar’s phone to call the girl he
was meeting. Kumar did not hear Navnil
mention drugs or alcohol.

Navnil,
while talking on the phone, directed Kumar’s route. Navnil told Kumar the girls they met
previously were going to meet them at the park.
Navnil made numerous calls.

Kumar
parked on a side street adjacent to the park, leaving his engine running. Navnil spoke to a girl who said, “I’ll be
there in two to three minutes.” Navnil
replied, “I’m waiting for you over here by the park.” Navnil told Kumar they should leave the car
because the girls told them to go to the park.

The Shooting

A few
seconds later, two men appeared at the front passenger side of the car. The window was down about five inches. One of the men stuck a handgun in the window
and said, “Mother fuckers, get out of the car.”

Thinking
the man wanted the car, Kumar began to open his door; Navnil did the same. As Kumar opened the door, the man fired a
shot into the car. Kumar saw blood and
thought his hand had been cut by broken windshield glass. He put the car in drive and sped off, yelling
for Navnil to call the police.

As he drove
away, Kumar heard more gunfire. He
pulled into a store parking lot and ran inside the store.

A store
security guard saw Kumar’s Camry speeding into the parking lot. Kumar jumped out and yelled that he had been
shot. The store clerk saw Kumar enter
the store and fall to the floor. Kumar
then got up and went back outside.

Kumar went
back to the car and shook Navnil, who did not respond. The security guard saw Navnil sitting upright
in the passenger seat, barely breathing.
Kumar returned to the store and again fell to the floor. The clerk went to Kumar’s aid and saw that
part of Kumar’s finger was gone. Kumar
said he did not want to die. The clerk
locked the store and the security guard called the police.

Witnesses in the Park

The evening of the shooting, 13
year olds Brittany R. and Vaughn T. sat on playground equipment in the
park. A car pulled up and two men walked
up to the children.

One of the
men was shorter and heavyset, with short hair and wearing gold teeth. This man also had light skin. Brittany thought “[h]e looked like he was
mixed with black and white.” Vaughn
thought the shorter man looked mixed “Black Mexican.” Brittany thought the man was 16 or 18 years
old, and maybe five feet six inches tall.
He wore a red shirt or sweater and sweat pants or basketball shorts, and
carried a backpack.

The second
man was African American. He was tall
and skinny, with braids and a darker complexion. The man wore a “do rag,” a kind of head wrap,
on his head. Both men carried cell
phones.href="#_ftn4" name="_ftnref4" title="">[4]

The pair
sat down next to Brittany and Vaughn.
The taller man spoke to a girl on his cell phone. The shorter man said, “[W]e’re going to make
a lick [commit a robbery]” to the person on the phone.

One man
asked the other, “[A]re these guys gonna get out of the car or what?” The shorter man told the taller man that the
men in the car were Indian, and that Indians do not carry guns, only Pakistanis
do.

The men
asked Brittany and
Vaughn to go over to the car and distract the occupants while they came up from
behind. Brittany refused.
Vaughn told a detective the taller man said, “They ain’t trying to get
out of the car, let’s go.” The shorter
man at first demurred, but after the taller man insisted, they walked toward
the car, approaching the passenger side.

The shorter
man stood close to the window; the taller man stood back by the trunk. The shorter man pointed a gun and began
shooting into the car through the passenger window. Brittany
heard two or three shots; she did not see anyone get out of the car. Vaughn heard three or four shots and saw the
shorter man shooting at the person inside the car on the passenger side.

After the
shooting, the two men ran. Brittany and Vaughn ran to Brittany’s house.

Renice Trujillo,
who lived in a court near the park, also heard gunshots that evening. She looked out her window and saw two people
walking quickly into the court. They
were male, tall and lanky. One wore
layered red and white shirts. One of
them was talking into a cell phone and mentioned the park. Another neighbor heard five loud pops.

Doug Reid,
another neighbor, heard “extremely loud” gunshots that he thought sounded like
a large-caliber handgun. He looked out
his window and saw two young men walking quickly down the court. One of the men looked Hispanic; the other
looked African American. The Hispanic
man wore a dark shirt and a backwards baseball cap, and carried a backpack. The other wore a red sweatshirt and a do-rag.

Reid saw
the two men jump onto the wall at the end of the court. The men looked around and the Hispanic man
dropped the backpack, which appeared to be heavy. The men jumped off the wall and walked away. Reid described the men as suspicious; he also
identified the backpack and sweatshirt found next to the wall as those worn by
the men.

Daniel
Albano, another nearby resident, heard three or four gunshots. He looked out the window and saw two
individuals running toward his house.
One wore a red or orange sweatshirt and long shorts, and was around five
feet seven inches tall and slender. The
other person was dressed in black.

Finally,
Thorlakur Tryggvason, who also lived in the area, heard five gunshots coming
from the park. Looking out his window,
he saw one female and five males running from the park. Two of the males ran past his house, entered
the next cul-de-sac, and jumped the fence at the end of the court. He described the males as teenagers, either
Asian or Hispanic and African American, of average height and build.

Weeden’s Activities the Night of the Murder

Weeden
called Hill repeatedly that night to have her get in touch with Moore. Weeden asked Hill to call Moore and find out
where he was. Moore said he was on his
way home. Weeden called later, again
asking where Moore was. Moore said he
was getting a ride from defendant Melonson and did not seem surprised that
Weeden wanted to know where he was.

While Hill
spoke with Weeden, the boys she had met that night kept “buzzing in” on
Weeden’s phone. Weeden told Hill to ask
Moore whether he was at the park. Moore
said he was at the big park, and after Hill told Weeden, she said
“[O]kay.” Weeden told Hill to ask Moore
if he saw the boys at the park and if he saw the boys’ gold car. Moore did not see the car.

Weeden told
Hill to tell Moore to go to Caymus Park.
Weeden then told Hill to ask Moore if he saw the boys at that park, and
Moore said he saw a gold car. Weeden
said, “[T]hat’s them.” Weeden told Moore
there had been two or three boys in the car.
Hill spoke to Melonson once or twice on Moore’s phone. Moore hung up and Hill did not speak with him
again that evening.

Later that
evening, Melonson called Hill and told her to keep quiet if anyone asked
questions and to turn off her phone.
Angela told Hill someone had been shot.
Hill tried to contact Moore but could not reach him. Hill also called Weeden, but Weeden had not
heard from Moore. A week or two after
the murder, Melonson called Hill and told her not to talk to the police.

The Aftermath

Sheriff’s
deputies responded to the shooting.
Navnil sat bleeding and unresponsive in the front passenger seat. The Camry had broken glass and bullet holes
on the passenger side.

Kumar lay
on the floor of the store, covered in blood.
Kumar told responders the shooting had occurred at a nearby gas
station. He described the assailants as
two dark-skinned black males wearing shorts.

Navnil
suffered gunshot wounds to his back and hand.
The fatal wound was caused by a bullet that entered his back and
perforated his lung and heart. The
entrance wound was irregularly shaped, which indicated the bullet struck
something before entering Navnil’s body.
Navnil did not have drugs or alcohol in his system. Kumar had been shot in the finger, losing
part of it.

The Investigation

Detectives
Christopher Joachim and Grant Stomsvik were assigned to investigate the
shooting. Their examination of the Camry
revealed the car had very dark tinted windows, after-market rims, and
low-profile tires.

The
passenger-side windows were shattered and the car had four or five bullet
holes. The right rear passenger window
and the right front passenger window had bullet holes. Other bullets passed through the right rear passenger
door and the base of the right front passenger window. Two of the bullets appeared to have been shot
either as the car was moving away or the shooter was moving toward the rear of
the vehicle.

The
investigation also revealed damage to the Camry’s interior. The windshield had been hit and blood was
pooling in the center console area. A
cell phone charger was plugged into the cigarette lighter. Copper jacketing from a bullet was also found
inside the car.

Detectives
found a bullet fragment on the driver’s seat between the seat and the back
cushion. In Detective Joachim’s opinion,
based on the physical evidence and witness statements, there was one shooter
and one gun, and all the shots came from outside the vehicle.

The
investigation also revealed Kumar’s wallet on the Camry’s floorboard. It contained a debit card but no cash.

Kumar
talked to the police at the hospital.
Although Kumar initially said the shooting took place at a supermarket
gas station, he testified that he had lost a lot of blood and was not thinking
clearly at the time.

The next
morning, after police told Kumar about Navnil’s death, Detective Stomsvik drove
Kumar back to the park. Kumar told the
detective that Navnil talked on his cell phone to a girl who told him to go to
the park. Navnil told the girl he was at
the park, and Kumar heard the girl reply that she could be there in two or
three minutes. Kumar heard the girl tell
Navnil to sit on a bench.

After Kumar
parked, two men came up to the passenger-side window of his car. Kumar saw a gun come through the window, and
the person said, “[G]ive me everything you have and step out of the car.” As Navnil opened the door, he hit the man’s
arm.

The man
fired one shot that Kumar thought hit the windshield. Kumar started to drive away as more shots
were fired. The shooter was a
fair-skinned Asian male, 18 to 20 years old, five feet nine inches tall with a
heavy build, and wearing an orange shirt.
However, Kumar could not identify either of the two suspects in a photo
lineup.

The morning
after the shooting, Doug Reid approached a deputy securing the crime scene at
the park. Reid told the deputy he knew
something about the shooting and took the deputy to his nearby home. Reid showed the deputy the wall that someone
had scaled the previous evening.

The deputy
drove around to the other side of the wall and discovered a revolver, a
backpack, and a red sweatshirt in the vegetation along the wall. The backpack contained shorts, boxer shorts,
a pencil, and razors. The DNA extracted
from one of the razors matched Melonson’s genetic profile.

The revolver
held six rounds but contained only one casing when found. Officers found five empty shell casings loose
on the curb. DNA extracted from the
revolver’s grip contained a mix of DNA from at least three individuals. Melonson was excluded as being a possible
contributor to this mixture.

A forensic
expert testified the bullet recovered from Navnil’s body could not be matched
to a particular gun because the bullet core did not make contact with the
barrel of the weapon or the barrel’s rifling.
Nor could the lead fragment recovered from Navnil’s body be matched.

The
forensic expert test-fired the revolver found by the wall to compare it with
evidence found at the scene. Three of
the casings found by the wall were fired by the revolver. Two other casings were likely fired by the
revolver. The copper jacketing found in
the Camry was likely fired by the revolver.

Melonson’s Arrest

About a
month later, officers searched the home of Melonson’s uncle, where Melonson
sometimes stayed. Officers found six
boxes of Winchester .357-Magnum shells in the garage; five boxes were full,
containing 50 cartridges, and one box contained only 48. Melonson’s uncle testified that his garage
had been broken into months before and three boxes of shells were stolen.

One of Melonson’s
friends, Shakti Rana, owned a .357-caliber revolver, which looked like the gun
found in the bushes near the park.
Melonson’s brother, S.M., stated that Melonson and Rana shared a gun in
July and August 2005 but denied the gun found in the bushes was the same gun.

Melonson’s
girlfriend, Julie G., had been dating him for about a year at the time of the
shooting. Julie gave Melonson a
backpack, which he used to carry clothes and toiletries. She identified the backpack found in the
bushes as the backpack she gave Melonson.
Julie identified the shorts found in the backpack as belonging to
Melonson. That summer, Melonson told
Julie someone had stolen his backpack.

Gabrielle
Perez, a friend of Melonson, was driving home one evening in 2005 when she saw
police in her neighborhood. Later that
night, Melonson sent Perez a text message stating he had “popped someone” and
needed to talk. Melonson called Perez
the next morning and told her he shot someone and threw away his “piece.” He feared that if the police found it they
would find him. Cell phone records
showed the text message was sent and the call was made on August 5 and August
6, 2005. Melonson changed his phone number
a few days later.

Melonson’s
friend Chris Butler moved from Sacramento to Denver, Colorado, in 2005. While in Sacramento, Butler had a cell phone
that did not provide service in Denver.
He got a new phone in Denver and left his prepaid cell phone with his
girlfriend. Butler’s girlfriend did not
know Julie, Perez, Moore, Rana, or Hill.
Butler was in Denver from July to early September 2005. He went to pick up Melonson at a bus terminal
in Denver in November 2005, but officers arrested Melonson at the station.

When
arrested at the bus station, Melonson was 20 years old, five feet seven inches
tall, and 185 pounds. Melonson carried a
cell phone, prepaid calling card, and a one-way bus ticket to Denver in the
name of “Mr. Brown.” During the booking
process, Melonson told officers he was “not looking for the best deal in the world. He was looking to make sure he got out of
prison by the time he was 45 or 50.”

The
prosecution presented extensive evidence
of numerous phone calls and text messages among the various parties.

Cell Phone Calls

Cell phone
records for Navnil’s, Weeden’s, Melonson’s, Moore’s, Hill’s, and Kumar’s phones
were introduced.href="#_ftn5" name="_ftnref5"
title="">[5] The phone number for Melonson’s phone was
changed on August 6, 2005, and again on September 7, 2005. Weeden changed her number after the murder.

Numerous
phone calls were made by Navnil to Weeden beginning late on the evening of July
29, 2005, and ending on the night of the shooting. The calls were very brief and many went
straight to voice mail.

Late in the
afternoon prior to the shooting, Navnil began calling Weeden from his cell
phone. There were also several calls to
Weeden from Kumar’s cell phone. Navnil’s
cell phone blocked caller identification, preventing the recipient from
identifying the caller. Twenty-nine
calls were placed to Weeden from Navnil’s and Kumar’s phones; she did not
answer 13 of the calls. The calls
continued up until the time of the shooting.

Navnil
called Weeden for the last time at 10:59 p.m., but Weeden was already on the
phone with someone else and did not answer.
At 11:03 p.m., Navnil called 911.
Navnil made no calls to Melonson, Moore, or Hill.

Shortly
after the first call from Navnil on the night of the murder, Weeden and Hill
began calling each other. There was a
41-minute phone call from Weeden’s cell phone to Hill’s home phone that ended
at the time of the murder. Immediately
after the murder, there was a 26-minute phone call between Weeden’s cell phone
and Hill’s cell phone. Later in the
evening there were a few brief calls between Weeden’s cell phone and Hill’s
cell phone. Weeden did not call Navnil
or Melonson.

Moore first
called Melonson the day before the murder.
Melonson returned the call.
Melonson called Moore at 6:07 the evening of the shooting. There were 17 calls between Moore and
Weeden on the night of the murder. The
calls began when Moore called Weeden at 9:30 p.m. and then called Melonson at
9:31 p.m. The calls between Moore and
Melonson ended at 10:06 p.m. The calls
between Moore and Weeden ended at 10:42 p.m.

Hill called
Moore 18 times the night of the murder.
The calls began about 12 minutes before the murder and continued
after the murder. Moore never called
Hill.

Cell phone
tower data showed Moore’s and Melonson’s phones were being used in the area of
the park between 10:00 and 11:00 p.m. the night of the murder. Navnil’s cell phone was in the vicinity of
the park at 11:00 p.m. Hill’s and
Weeden’s cell phones were in a different part of town.

At 11:04
p.m., immediately after the murder, Melonson called Rana. Numerous calls between the two followed. Melonson also tried to call Perez one to two
hours after the shooting. They spoke
briefly the morning after.

Text Messages

In November
2005 Detective Joachim directed Moore to send a text message to Weeden over
their cell phones. Another officer took
a photo of each message.

Weeden told
Moore she was moving to Los Angeles.
Moore said, “[O]h, you movin’ because of what happened with the Sirtice
thingy,” and Weeden answered, “Nah, I don’t even really care about that, but den
I kind of do because someone keep [sic]
calling me saying they gonna kill me. I
wasn’t even the one that told on him.”

Moore asked
Weeden if she had told her father about what Moore had done. Weeden responded: “[N]o, all I told him was you my friend and
you didn’t do anything.” Moore falsely
told Weeden that in order to get a deal, Melonson had told the police about
what she and Moore had done. Weeden
asked what kind of deal Melonson made and if Moore was going to be arrested.

Moore said
it was all Weeden’s fault because she met the “hindus.” Weeden responded: “[D]is ain’t my fucking fault. Sirtice should [sic] have done what he did.
He brought you into that by doing that.
This shit wasn’t my fault, so don’t even fucking say it was.” Weeden said, “[I]t’s Angie’s fucking fault,
dummy. She da one that went to the car
and gave them my number.”

Moore
replied: “[I]t was yo fucking idea to
even rob them.” Weeden denied this and
blamed Angela, asking Moore, “Why you trying to put this on me? It wasn’t my fucking idea. It was Angie’s, so shut up. They already know it was.”

Weeden
continued: “I didn’t set nuttin’
up.” She admitted knowing Melonson was
going to rob the boys: “I already fuckin
told them I knew Sirtice was going to rob them.
They already know what I did. I
told the truth, but I didn’t set this up, okay.” Weeden said she was “hella scared” and did
not want either of them to go to jail.

Moore asked
Weeden what she had told the police about the robbery and she replied: “I told them that someone told me to tell
them to meet me at the park, and that Sirtice was gonna be there to rob them,
but I didn’t tell them who told me to set it up.” Weeden blamed Hill, saying, “And you know dis
all Janee fault because she told them some shit, then they got her phone
records and mine den yours.” Weeden
advised Moore: “If you want to get out
of this, you have to give up Angie’s name.”

Statements by Participants

Angela G.

In November
2005 Detective Joachim interviewed Angela about the night of the murder. Angela told the detective that Weeden was
telling everyone about the previous meeting with Navnil, Kumar, and the other
boys. She said the boys had weed and beer.

Weeden
talked extensively to Moore about meeting the boys. Moore suggested they rob them. Weeden agreed and said, “[Y]eah, we
should.” Moore asked Weeden if she had
the “Hindu guy’s” number and she told him he had her number. Angela told Weeden not to do the robbery, but
Moore said he and “Teze” should rob the boys.

After Angela
passed the victim’s car, she asked Weeden if they went through with the
robbery. Weeden denied it. After the murder, Weeden did not want to
discuss it over the phone.

John W.

In December
2005 Detectives Joachim and Stomsvik interviewed John. John indicated Weeden planned out the
robbery. He overheard Weeden telling
Angela about someone Moore was going to rob.

Janee
Hill

Detectives
also interviewed Hill in December 2005.
The day before the murder, Moore told Hill he was planning to rob
someone. Hill attempted to dissuade
Moore by telling him robberies often end up in murder. Moore agreed and told Hill he was not going
to rob them. Later Weeden told Hill that
Melonson and Moore were going to commit the robbery.

The night
of the shooting, Weeden called Hill and had her talk to Moore to find out where
he was. Moore or Melonson directed Hill
to ask Weeden about what the boys were driving and which park they were going
to. Hill believed Weeden, Melonson, and
Moore had the robbery planned before Hill became involved. Initially Moore and Melonson went to a
different park but relocated when they realized which park the boys were at.

S.M.

In November
2005 Detective Stomsvik interviewed Melonson’s brother S.M. S.M. stated that Melonson and Rana bought a
gun together. He recognized the gun
found in the bushes as Melonson’s gun and the sweatshirt found in the bushes as
a sweatshirt that he and his brother wore.
S.M. also identified the backpack, the razors, and the shorts as his
brother’s.

In a second
interview, S.M. said he was at a park near Rana’s house with Rana, Moore, and
Shatez the night of the shooting.href="#_ftn6"
name="_ftnref6" title="">[6] Moore gave his phone to Melonson, who sent a
text message to Julie. Melonson then
gave the phone back to Moore. At that
time, Melonson was using two phone numbers:
Butler had given him his phone after he moved. The night of the murder, S.M. was not with
Melonson but was “laser bowling” with friends and his brothers Idrice and
Shatez.

Following
the shooting, Melonson, Shatez, and Rana told S.M. he needed to find Rana’s
gun. S.M. searched for the gun in the
bushes three times after the murder.
Accompanied by Shatez, Moore, and John, S.M. failed in several attempts
to find the gun.

Shakti
Rana

A district
attorney investigator interviewed Rana in July 2007. Rana stated he and Melonson had a gun that
they “passed back and forth.” Rana had
the gun the day before the shooting, then gave it to Melonson because Melonson
said he “wanted it for something.” Rana
identified the gun found in the bushes as the gun he and Melonson shared.

The night
of the shooting, Melonson called Rana and asked for a ride. Melonson sounded shaky on the phone. Rana picked up Melonson and another person
who “looked nervous and stuff. . . . [¶]
. . . [¶] . . . It looked like something
went down.” According to Rana, “I knew
something was wrong just the way he was acting . . . . He was just real . . . I
never seen him like that. He was real
shaky, panicky . . . .”

Melonson
did not say much “because he was just on the hush-hush.” Although Melonson did not mention the murder,
Rana stated, “[H]e knows what he did was wrong.
You know what I’m saying? He knew
that . . . we was good enough friends to know that he knew exactly what I meant
by like how the hell you going to put me in a position without letting me
know?”

During the
trial, Idrice, who lived with S.M. and Melonson’s uncle, visited Rana, who was
in jail on contempt charges, to discuss his testimony.href="#_ftn7" name="_ftnref7" title="">[7] Idrice tried to dissuade Rana from
testifying, telling Rana that if he testified and only rapped “one verse,” that
Rana’s prior statements to detectives would be admitted into evidence and “[i]t
will be bad.” Idrice told Rana, “[I]f
they have your music and your . . . name is on the track, it’s the audience,
your fans, your fans is going to be like, oh, wow. Automatically.”

Idrice told
Rana he could be out of jail in a few weeks.
Idrice suggested to Rana: “[y]ou
can rap the . . . five lyrics, you know what I’m saying, the five?” Rana said he needed to take care of his
daughter, and Idrice responded: “If you
need money on your books, let us know.
[¶] . . . [¶] . . . We’re going
to take care of you . . . .” Idrice
offered to get diapers and told Rana, “Sacrifice is the ultimate key.”

Rana told
Idrice: “I slipped up and must have just
said a little extra, a little few little verses here and there. I slipped up, but I know for a fact everybody
else was way worse . . . . [¶] . .
. [¶] . . . My song wasn’t that good,
but it’s good. It’s still solid, sort of
solid.”

Rana told
Idrice to tell “Cuzzie” that he had Rana’s “dope” and to “keep flipping and
doubling it.” Idrice told Rana, “It’s
all up to you right now. [¶] . . . [¶] . . . This is going to determine
everything.” Idrice also told Rana everybody
was counting on him, even “the white boy downstairs.”

Melonson’s Phone Call

During the
trial, Melonson spoke to his mother and Idrice by phone. Melonson asked his mother, “[H]ow’s it
lookin’ from the audience point of view?”
His mother told him it looked good and Melonson replied: “[A]in’t nobody identify me . . . as the
dude.”

Melonson’s
mother told him to stop talking about the case and said, “they can’t convict
you with the evidence they got.” His
mother mentioned Kumar, noting “He scared.
He don’t know. He . . . got no
family up there with him. Nobody’s
helping support this.”

Melonson’s
mother also stated, “The DA’s case is tankin’ really fast. [¶] . . . [¶]
. . . the witnesses that the State is calling are not doing what .
. . the State want them to do.” Melonson
told his mother, “I know. . . . [¶] . .
. [¶] . . . Everything [is] going my
way.”

Melonson
also told his mother that he frequently looked at the jury because he did not
want the jurors to think he was trying to avoid them. He asked his mother whether he looked mad,
and she reassured him that he looked very calm.

Melonson
and his mother discussed the prospect of Rana’s testimony. Melonson said he needed to talk to
“Dreecy.” Melonson told his mother,
“Tell him . . . this is the biggest visit I’m gonna have with him . . . . [¶] . . . [¶]
. . . Cuz my case is looking too good for him to slack on me right now.”

Melonson
asked his mother to tell “Dre” that “I need them to come . . . to court on
Monday when Shakti on the stand -- because that’s they [sic] best friends.” Melonson
also asked his mother to tell “Dre” not to “be coming up here looking like no
damn thug like he was today.”

Melonson’s
mother asked him, “You ain’t admitted to nothin’, right?” He responded, “Heck, no.”

Melonson
also mentioned his remark during booking about hoping to get out before he was
40 or 50 years old and said, “I’ll damage control that . . . . I might have to get on the stand myself.” Melonson also reassured his mother about his
attorney’s capabilities. Idrice visited
Melonson in jail the following day and a few days after that.

Defense Case

The defense
called character witnesses who testified that Weeden’s character was not
consistent with someone who would set up a robbery. Kim Gibson, a family friend who had known
Weeden her whole life, testified Weeden did not have the character of someone
who would set up a robbery. Gibson
described Weeden as a “generous, considerate, loving person.”

Linda
Matson, whose children Weeden babysat, also testified Weeden was not capable of
planning a robbery because Weeden had “always been a very sweet person, very
responsible, just nice, kind, not nobody that would do something like that.”

Weeden’s
great-aunt testified that Weeden would not set up a robbery because she was a
“kind, caring, bashful, shy, young lady, and she cares about others. She’s considerate. She minds her
parents. She’s just a good girl.” Weeden’s grandmother echoed these sentiments,
stating Weeden would not engineer a robbery because she was “much too caring
and much too kind, considerate. She
would never do that.”

Verdict

The
Melonson jury found him guilty on all counts and found all enhancement
allegations true.href="#_ftn8" name="_ftnref8"
title="">[8] Two days later a juror from Weeden’s panel
was discharged for misconduct and replaced by an alternate. Five days after that, a second juror was
discharged for misconduct and failure to follow the court’s instructions, and
was replaced by an alternate.

That day,
after the second juror was replaced, the jury found Weeden guilty of the first
degree murder of Navnil and the attempted second degree robbery of Navnil and
Kumar, and found the arming enhancement allegations true. The jury found Weeden not guilty of the
attempted murder of Kumar.

Motion for a New Trial

Weeden
filed a motion for a new trial, arguing (1) jurisdiction of the trial
court was improperly invoked, (2) ineffective assistance of counsel based
on counsel’s failure to call Weeden to testify and counsel’s failure to have
Weeden examined by a psychologist, (3) Weeden was denied a fair trial by her
inability to testify effectively due to her age and immaturity, (4)
instructional error, (5) improper removal of a juror, (6) juror
misconduct, and (7) new information revealed a juror was improperly seated. Following a hearing, the court denied the
motion.

Sentencing

The court
sentenced Melonson to life in prison without the possibility of parole, plus 50
years to life, plus 19 years four months:
life without parole for first degree murder, plus 25 years to life
for the firearm use enhancement; 18 years, to be served consecutively, for
attempted murder, plus a consecutive 25 years to life for the firearm use
enhancement; and 16 months, also to be served consecutively, for possession of
a firearm by a convicted felon. On the
attempted second degree robbery counts, the trial court imposed and stayed,
pursuant to section 654, a sentence of 16 months, plus a term of 25 years
to life for the firearm use enhancements as to those counts. Melonson filed a timely notice of appeal.

The court
sentenced Weeden to 25 years to life in prison, plus four years: 25 years to life for first degree murder,
plus one year for the firearm use enhancement; and two years, to be served
consecutively, for attempted second degree robbery, plus one year for the
firearm enhancement. On one robbery
count, the court imposed and stayed, pursuant to section 654, the midterm of
two years, plus one year for the firearm enhancement. Weeden filed a timely notice of appeal.

DISCUSSION

Melonson’s Appeal

Instructional Error

Melonson
argues the trial court erred in instructing the jury on accomplice liability in
violation of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution. According to
Melonson, the court erred by failing to refer to all possible accomplices,
omitting S.M. and Rana. In addition,
Melonson faults the court for not instructing that Angela and Hill were
accomplices as a matter of law.

Background

Melonson’s
counsel requested that the court give the accomplice testimony instruction,
CALCRIM No. 334, applying it to Hill, Angela, and S.M. Counsel argued that, based on the trial
testimony, the jury could believe one of two things: either S.M. shot Navnil, or he knew of the
intended robbery and aided and abetted it.
S.M. was present or nearby when Weeden and Moore discussed the
robbery. He also admitted being in the
park on the night of the murder. In
addition, counsel pointed out that S.M. matched the description of the shooter
and admitted handling the gun.

The
prosecution countered that, at most, S.M. was an accessory after the fact in
his fruitless search for the weapon after the shooting. No evidence, the prosecution maintained,
pointed to S.M. as the shooter, and S.M. was at a different park prior to the
shooting.

The court
denied defense counsel’s request, noting:
“I agree that there is testimony that at some point in time he touched
that gun. There is testimony that he
overheard and might have overheard that a robbery was going to be committed,
although I think that is fairly murky . . . clearly the law is you can know
about a crime being committed and do nothing to aid, facilitate, encourage or
promote. There is no criminal liability,
and I think 334 is an instruction required where you clearly have an accomplice
or at least an arguable accomplice. I
don’t see [S.M.] as an arguable accomplice.
He is certainly an accessory after the fact. The jury is going to be given instructions
that will cause them pause when they consider his testimony and rightfully
so. [¶]
In addition to just the general credibility instruction that they will
be given, I think you have ample evidence and circumstantial evidence to argue
the questionable nature of [S.M.’s] testimony.
I do not think, however, that he is an accomplice under the 334
instruction, so I will decline to give that instruction.” The court instructed pursuant to CALCRIM
No. 334 as to Angela and Hill.

Discussion

Section
1111 states: “A conviction cannot be had
upon the testimony of an accomplice unless it be corroborated by such other
evidence as shall tend to connect the defendant with the commission of the
offense; and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is
liable to prosecution for the identical offense charged against the defendant
on trial in the cause in which the testimony of the accomplice is given.”

If there is
evidence from which the jury could find that a witness is an accomplice to the
crime charged, the court must instruct the jury on accomplice testimony. The defendant bears the burden to prove, by a
preponderance of the evidence, that a particular witness was an accomplice
whose testimony requires corroboration.
(People v. Williams (1997) 16
Cal.4th 153, 247.)

A witness’s
mere knowledge of a defendant’s criminal intent, without more, does not satisfy
this burden. Nor is the witness’s
presence at the scene, or failure to prevent a crime, sufficient to demonstrate
guilt as an aider and abettor. (>People v. Nguyen (1993) 21 Cal.App.4th
518, 529-530.)

Angela G. and Janee Hill

Melonson
argues the court erred in not instructing that Angela and Hill were accomplices
as a matter of law. Whether or not a
witness is an accomplice is a question for the jury, unless there is no dispute
as to the facts or the inferences to be drawn from the facts. The trial court may determine a witness is or
is not an accomplice only when such facts are clear and undisputed. (People
v. Anderson (1987) 43 Cal.3d 1104, 1138; People v. Rodriguez (1986) 42 Cal.3d 730, 759.)

According
to Melonson, the “record leaves no room for any determination bu[t] that both
Grace and Hill were liable for prosecution as aider and abettors of the robbery
plan and the natural and probable consequences theory of liability.” We disagree.

As for
Angela’s connection to the crimes, she was with Weeden when they met the
victims and gave Weeden’s cell phone number to Navnil. Angela overheard Weeden and Moore discussing
the robbery and was aware of the plan because of her relationship with the duo.

However,
when Weeden told Angela about the plan to rob the boys, Angela attempted to
dissuade her, to no avail. Angela was
not with Weeden, Moore, Hill, or Melonson the night of the murder; instead, she
was at home. There is no evidence she
communicated with any of the participants.
Angela testified she did not know if “they were gonna do a robbery or
not.”

Although
Melonson argues the evidence reveals Angela knowingly and intentionally aided
and abetted in the murder, such liability depends upon whether the individual
promotes, encourages, or assists the perpetrator and shares the criminal
purpose. “It is not sufficient that he
merely gives assistance with knowledge of the perpetrator’s criminal
purpose.” (People v. Sully (1991) 53 Cal.3d 1195, 1227 (>Sully).)
Here, although Angela was aware of the robbery plan, there is no
evidence to support the inference that she shared Melonson’s criminal plans.

Similarly,
Hill’s participation does not rise to the level of an accomplice as a matter of
law. Hill heard from Moore about the
scheme to rob the boys the day before the shooting. The night of the shooting, Weeden told Hill
she was going to help Moore rob the boys.
Hill testified, “I really didn’t understand they was gonna rob the
boys.” Hill told Weeden not to do it but
remained involved by relaying information by phone among Weeden, Moore, and
Melonson. Hill, as instructed by Weeden,
directed Moore and Melonson to the right park and gave them information about
the prospective victims. Hill was
charged with murder and robbery, and tried as an adult. She pleaded guilty to the robbery charge and
agreed to testify in court.

Hill knew
of, and assisted, Weeden in the planning of the robbery, but it is not clear
and undisputed that she shared Melonson’s criminal purpose. (Sully,
supra, 53 Cal.3d at p. 1227.)
Whether or not Hill was an accomplice was properly left to the jury to
determine; the evidence did not support an instruction that Hill was an
accomplice as a matter of law.href="#_ftn9"
name="_ftnref9" title="">[9]

Shakti
Rana and S.M.

Melonson
also contends the trial court erred in excluding Rana and S.M. in the
accomplice instruction. According to
defendant, the trial court should have instructed that the jury needed to
determine whether S.M. and Rana were Melonson’s accomplices and, if they were,
that their testimony should be viewed with distrust. At trial, Melonson’s counsel requested that S.M.
be included in the accomplice instruction but did not include Rana in the
request.

The trial
court has the duty to instruct the jury sua sponte to determine whether a
prosecution witness was an accomplice if supported by the evidence at
trial. (People v. Zapien (1993) 4 Cal.4th 929, 982.) The evidence must be substantial, not
speculative. (People v. Lewis (2001) 26 Cal.4th 334, 369.)

As evidence
of Rana’s status as an accomplice, Melonson argues Rana gave him the gun the
day before the murder. However, Rana
testified he did not know why Melonson, with whom he shared the gun, wanted
it. Although Rana picked up Melonson
after the shooting, Melonson never told him about the crime. Rana thought Melonson had been in a
fight. Rana’s involvement in the
shooting did not amount to encouraging, facilitating, or assisting in the
robbery. The trial court did not err in
failing to instruct that Rana might be considered an accomplice.

Similarly,
S.M.’s involvement did not support an accomplice instruction. S.M. knew of the robbery plan and helped look
for the gun after the shooting, but there is no evidence that he shared
Melonson’s criminal purpose. His
knowledge before the crime and assistance after the crime did not make him an
accomplice. Again, the court did not err
in failing to include S.M. in the accomplice instruction.

Potential Juror Misconduct

Melonson
argues the trial court abused its discretion in denying his petition for access
to juror information. Melonson posits
two instances of potential juror misconduct, which he contends necessitated the
release of juror information. In the
first, Gabrielle Perez’s mother signaled to her daughter that she should change
her testimony. In the second, Weeden
told her counsel that she saw a member of Melonson’s jury reading the
Sacramento Bee on December 3, 2008, during deliberations. Melonson contends the trial court’s denial of
his request for juror information violated his Sixth and Fourteenth Amendment
rights.

Background

Prior to
sentencing, Melonson filed a motion for release of juror information to
determine whether juror misconduct had occurred. Melonson’s counsel attached a declaration
stating that following the verdict, he spoke with a juror who told him that
“while prosecution witness Gabrielle Perez was testifying, a woman he believed
to be her mother was present in the back of the court room, signaling to her
daughter during a specific portion of the testimony that her testimony should
be changed.” According to counsel, this
occurred while Perez testified regarding the date on which she received text
messages from Melonson about the shooting.
The juror stated he believed several other jurors observed the conduct.

The second
instance of potential misconduct occurred on the morning the jury returned its
verdict. Weeden saw a juror in a hallway
of the courthouse reading the Sacramento Bee, then passing a portion of the
paper to another juror. That issue of
the Sacramento Bee contained an article on the trial which quoted text messages
that had been excluded at trial. Defense
counsel did not know if either juror read that particular article.

In opposing
the motion, the prosecution argued the first instance of alleged misconduct was
spectator misconduct, not juror misconduct.
The prosecution stated it was obvious Perez was mistaken on the date but
that other evidence, including the detective’s testimony and cell phone
records, revealed the message was sent a few hours after the shooting. As to the second alleged instance of
misconduct, defense counsel presented no evidence any juror read the article in
question. Defense counsel requested
permission to explore how many jurors witnessed the spectator’s attempt to
influence Perez’s testimony, and to determine whether any jurors read the
article.

The court
denied the motion. The court reasoned
that the jury had been instructed with CALCRIM No. 222, which directed it to
consider only the evidence presented at trial.
Therefore, “an attempt by a spectator to coach a witness is not
contemplated in that jury instruction.
And case law is clear that jurors are presumed to have followed the
Court’s instructions if properly instructed as this jury was. [¶]
Whether a person in the audience attempted to or did coach a witness is
not misconduct by a juror. Had this
Court observed such behavior, that person would have been removed and the jury
given an admonishment as one spectator was during the testimony of John
Williams. [¶] In any event, it is the Court’s recollection
that [defense counsel] did an excellent job at questioning the witness on the
date and times of the relevant text calls, and notwithstanding significant
evidence to the contrary and . . . even if this Court was to presume coaching
by a spectator, the witness continued to believe that these text messages and
phone calls were received at a time that was contradicted by the better
evidence in the case, which was phone records from the cellular carrier. [¶]
Regardless, the jury did not commit misconduct even if they observed a
witness being coached. Evidence Code
Section 1150 expressly excludes evidence to show the effect of such
statement, conduct, condition or event upon a juror either influencing to
assent or dissent from the verdict, or concerning the mental processes by which
it was determined. [¶] This allegation, even if true, would require
an inquiry into the mental processes of the jurors and, as such, would not
constitute good cause to unseal the confidential juror identifying
information.”

As for the
second instance, the court found the allegation regarding the newspaper article
was “highly speculative and, as such, it fails to establish good cause for the
unsealing of the confidential information.”
The court noted it had instructed the jury not to read or listen to news
accounts of the case and found the fact that some jurors might have read the
newspaper on the date the article appeared was wholly insufficient to unseal
confidential juror information. After
weighing defendant’s rights against the juror’s expectations of confidentiality,
the court found good cause did not exist to unseal the documents.

Discussion

Following
recording of the verdict, the jurors’ personal information is sealed. (Code Civ. Proc., § 237,
subd. (a)(2).) A defendant may
request the information by submitting a declaration with facts sufficient to
establish good cause for the release of the information. (Code Civ. Proc., §§ 206, subd. (g),
237, subd. (b).) Defendant must make a
sufficient showing (1) to support a reasonable belief that juror misconduct
occurred, (2) that diligent efforts were made to contact the jurors
through other means, and (3) that further investigation is necessary to provide
the court with adequate information to rule on a new trial motion. (People
v. Wilson (1996) 43 Cal.App.4th 839, 850 (Wilson).) Defendant bears
the burden of establishing good cause. (>People v. Granish (1996)
41 Cal.App.4th 1117, 1131.)

The trial
court possesses broad discretion in determining whether a request for juror
information should be granted. We review
the court’s denial of such a request for an abuse of discretion. (People
v. Carrasco (2008) 163 Cal.App.4th 978, 991; People v. Santos (2007) 147 Cal.App.4th 965, 978.)

We agree
with the court’s analysis of the two alleged instances of juror
misconduct. The spectator’s attempt to
influence Perez during her testimony was not misconduct by a juror. Nor was it conduct that could influence the
jury or prejudice Melonson. The
spectator shook her head during the proceedings; she did not speak. This act did not implicate Melonson’s guilt
or innocence. Moreover, the court
instructed the jury on what evidence it could consider in reaching its verdict,
evidence which excluded the actions of a spectator in court.

As for the
juror reading the Sacramento Bee, the court instructed the jury on its
obligation not to read news accounts of the case. The only support for this allegation was the
statement of codefendant Weeden. The
trial court did not abuse its discretion in declining to release confidential
information based on an unsubstantiated claim by Weeden. As the court observed, the request “emanates
from the hearsay statement of codefendant Weeden” and “[t]he fact that some
jurors may have read the Bee on a date an article about the case appeared” was
wholly insufficient to justify unsealing the confidential records. If the allegations of misconduct are vague,
speculative, or unsupported, they cannot support good cause for the release of
confidential information. (>Wilson, supra, 43 Cal.App.4th at p. 852.)

Nor can we
find, as Melonson argues, that the court abused its discretion by curtailing
the defense’s ability to investigate allegations of serious misconduct. According to Melonson, the trial court abused
its discretion in characterizing the defense request as a “fishing
expedition.” Notwithstanding the court’s
words, Melonson failed to meet his burden of establishing good cause for the
release of the requested confidential juror information. The alleged misconduct was not such that it
“is likely to have influenced the verdict improperly,” and therefore the court
acted well within its discretion in denying the request. (Evid. Code, § 1150, subd. (a).)

Motion for a Mistrial

Melonson
argues the court erred in denying his motion for a mistrial, which followed
Detective Stomsvik’s testimony.
Detective Stomsvik stated that while interviewing Angela, he confronted
her with the “fact that Ryan Moore had confessed.” According to Melonson, this testimony both
prejudiced him and violated Aranda-Bruton.href="#_ftn10" name="_ftnref10" title="">[10] In addition, Melonson contends the trial
court’s admonition following the testimony was not sufficient.href="#_ftn11" name="_ftnref11" title="">[11]

Background

During the
trial, Detective Stomsvik testified about his interview with Angela. He stated she began to provide information
about Weeden and Moore. Detective
Stomsvik testified, “About halfway into the interview when Detective Joachim
confronted her with the fact that Ryan Moore had confessed, things changed.”

On
cross-examination, Melonson’s counsel did not ask Detective Stomsvik about his
interview with Angela. Weeden’s counsel
did question the detective about the interview:
“Q[:] Okay. With respect to Ryan Moore’s ever evolving
confessions, let me ask you some questions with respect to Angela [G.’s]
statements.

“First of
all, you would agree that one of the tactics of law enforcement when
interviewing a witness might be to feed them false information to see what
they’re going to say; is that true?

“A[:] Are you asking did I do that to Angela [G.],
or is that just a plain tactic that could be used by law enforcement?

“Q[:] Make it so clear. Is it a tactic for law enforcement to feed
false information to witnesses to see what they will say, yes, it is, no, it is
not.

“A[:] It can be, yeah.

“Q[:] In respect to in this case with Angela [G.],
at some point you said, hey, Ryan had made a statement about being involved in
the robbery, correct”?

“A[:] Correct.

“Q[:] Then she says, I heard Ryan say they should
rob the victims, correct?

“A[:] I think she said that, but said, I wasn’t
sure who said that first, if it was Ryan or Sarah, I think.”

Out of the
jury’s presence, the court discussed Weeden’s counsel’s objection to Detective
Stomsvik’s testimony. The court observed
that the testimony was not solicited by questioning, but “volunteered by the
way of a somewhat nonresponsive answer concerning Detective Joachim indicating
to Angela [G.] that Ryan Moore had, quote, confessed, and thereafter Angela
[G.’s] statements became more consistent.”

Both
defendants’ counsel moved for a mistrial.
Weeden’s counsel stated Detective Stomsvik’s mention of Moore’s
confession could lead to the inference that the confession implicated
Weeden. Melonson’s counsel echoed these
fears.

The
prosecutor stated Detective Stomsvik’s response was unexpected but argued a
cautionary instruction would mitigate the harm.
When asked by the court whether he would refer to Moore’s confession in
closing argument, the prosecutor said no.

The court
denied the motion, stating: “I did give
the jury a limiting instruction that defense counsel had requested. And in part, the admonition given stated
thusly, thus the statements by Detective Joachim are not themselves evidence,
and the contents of these statements may not be considered by you as evidence
against either of the charged defendants.
[¶] And the sentence preceding
that admonition was as follows, law enforcement officers are permitted to lie
to criminal suspects and to pretend that they are in possession of particular
facts when they may not be. [¶] I believe out of the entire totality of the
circumstances with Detective Stomsvik’s testimony this morning, and the fact
that Mr. Bowman also clarified that this [is] a typical law enforcement tactic,
I think it does not rise to the level of such a due process violation where it
has not created such an unfairness in this trial that would warrant a mistrial
at this time, and so I would deny the motion for mistrial. [¶] I
will certainly reinstruct the jury on this point, counsel, if either one of you
want me to do that during the final instructions.” Weeden’s counsel commented: “Your Honor, I think that would be
satisfactory.”

Discussion

A mistrial
is appropriate only when a party’s chances of receiving a fair trial have been
irreparably damaged. If the court finds
the prejudice is incurable by admonition or instruction, a mistrial should be
granted. We review the trial court’s
ruling on the mistrial motion for an abuse of discretion. (People
v. Avila (2006) 38 Cal.4th 491, 573.)
The statement of a witness during trial can provide the basis for
incurable prejudice. (>People v. Wharton (1991) 53 Cal.3d 522,
565.)

Melonson
argues Stomsvik’s remark that Moore had confessed was extremely
prejudicial. Melonson urges us to
consider the devastating impact of Moore’s confession given the plethora of evidence
of phone calls between Angela, Weeden, and Moore the night of the shooting,
coupled with the prosecution’s theory at trial that Moore and Melonson were the
shooter