Filed 8/30/18 P. v. Norford CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Leon Norford III appeals his conviction following a jury trial of first degree murder, premeditated attempted murder, and criminal street gang conspiracy and true findings of several enhancements. The offenses arose out of a drive-by shooting which the evidence showed to have been committed by members of the Richmond “Deep C” gang against members of the rival “North Richmond” gang. Defendant challenges two rulings of the trial court and also asserts prosecutorial misconduct. We find no merit in these contentions and shall affirm the judgment.

Background

A jury found defendant guilty of the first degree murder of Lonnie Peterson (Pen. Code,[1] § 187, subd. (a)), the premeditated attempted murder of Jonathon Whitehead (§§ 187, subd (a), 664), and criminal street gang conspiracy (§ 182.5). The jury found true that the murder and attempted murder were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that a principal discharged a handgun causing great bodily injury and death (§ 12022.53, subd. (e)(1)), and that a gun was discharged from a vehicle (§ 190.2, subd. (a)(21)). The jury also found that the murder was committed by an active gang member in order to further the activities of the gang (§ 190.2, subd. (a)(22)). The jury found not true that defendant personally discharged a handgun in the commission of the murder and attempted murder (§ 12022.53, subds. (b)-(d)). Defendant was sentenced to life in prison without the possibility of parole, and has timely appealed.

We summarize the evidence presented at trial substantially as set out in the Attorney General’s brief, which summary does not disagree in any material respect with defendant’s summary of the facts.

The Rancho Market in North Richmond is an area where members of the “North Richmond” gang are known to congregate. North Richmond gang members list names of their deceased on one of the market’s walls, known by gang members as “the wall.” March 2012 was known as “March Madness,” a month where North Richmond and its rival gang—Central and South Richmond gang “Deep C”—killed one another to “update their scoreboard.”

On the afternoon of April 17, 2012, Johnathan Whitehead and Lonnie Peterson were outside the Rancho Market, talking, when Whitehead saw a car drive toward them at normal speed. The front and rear passenger-side windows of the car were rolled all the way down, which Whitehead considered a “textbook” indicator of a drive-by shooting. The car pulled to the curb for five or six seconds. Whitehead saw three people in the car: the driver, a person in the front passenger seat, and a person in the back, behind the front passenger. The people in the car looked directly in Whitehead’s direction, as if “checking [him] out.” Whitehead did not recognize the car or its occupants.

After a few seconds the car started moving again. Two or three seconds later, two people in the car started shooting. Whitehead was shot three times but survived. Peterson was shot three times, sustained a fatal head wound and eventually died.

Whitehead told police that the two shooters were sitting in the front and rear passenger-side seats. The shooter in the front passenger seat had dreadlocks and wore a gray sweater (or “hoodie”) and a baseball cap. He had dreadlocks that could have been “long” and were “coming out of his hat.” He looked “young,” around 18 or 19 years old. Defendant was 19 years old at the time of the shooting.

Police showed Whitehead some photo lineups, one of which included defendant. Whitehead could neither identify nor exclude anyone in the lineups. At trial Whitehead did not recognize defendant and could not say whether he was in the car. Whitehead acknowledged that gang members from North Richmond “hung out” around the Rancho Market and had a violent rivalry with gang members from Central Richmond.

Police collected 31 shell casings at the scene. The casings were of two different sizes: nine-millimeter and .40-caliber. The casings could not be interchanged between different guns, meaning at least two guns had been used in the shooting. Forensic analysis confirmed that all of the nine-millimeter casings were fired by the same gun, and that all of the .40-caliber casings were fired from the same gun.

Surveillance footage from the Rancho Market showed a gold car—later identified as an Acura Legend—approaching the market before the shooting. The arms of people seated in the front and rear passenger-side seats were extended out their respective windows. The person in the back wore a black sweatshirt and had an “off-white” or “extremely light color[]” glove on his hand. The front passenger wore a gray sweater and a hood, and also wore a glove. The shooting occurred at around 1:02 p.m.

The next day, officers located the Acura in front of a home on Burke Street in South Richmond. Contra Costa County Sheriff’s Sergeant Christopher Ulep spoke with a resident (the witness) who lived in the home. The witness said that on the day of the shooting she was sitting near the large front window in her home when she saw a man park the car on the street outside, on the same side of the street as her house. A Black male with long dreadlocks got out the car and then jogged down the street. The man wore blue pants, a gray sweater, and something on his head. The witness said she could identify the man if she saw him again.

The Burke Street home had a surveillance system, and the witness retrieved the video from the day of the shootings. The video showed a man with dreadlocks and a hat getting into the Acura in front of the witness’s home at 12:47 p.m. on April 17, 2012, about 15 minutes before the shooting, and then driving away. About 1:33 p.m. the man came back and parked the car in front of her home. The man then got out of the car and walked past the home, as she had recalled. A few minutes later the man returned to the car on a bike and appeared to examine the car’s exterior. Richmond Police Department Gang Detective Matthew Anderson viewed the video and identified defendant as the man getting in and out of the Acura.

Surveillance video from an intersection near the Burke Street home showed the Acura traveling on the Richmond Parkway away from Burke Street heading east, in the direction of North Richmond and the Rancho Market, at 12:50 p.m. The quickest way to get from the Burke Street home to the Rancho Market was via the Richmond Parkway. It would take around five minutes driving at the speed limit to get from one place to the other.

On April 26, 2012, Sergeant Ulep presented the witness with a six-person photographic lineup of possible suspects. Defendant was not one of the men in the lineup. The witness told Ulep that the man she saw was not in any of the photographs.

On May 10, 2012, Ulep presented the witness with a six-person photo lineup that included defendant. This time, the witness identified a photo of defendant as the man she had seen in front of her home. She did not hesitate and took only a second to identify him. She was certain and “didn’t waiver in her identification.”

The witness was uncooperative at trial and attempted to recant her identification of defendant, stating variously that the photograph she identified “does not look like the man that I saw” and “does not look like the person in my mind’s eye.”[2] The witness did testify consistently with her statement to Sergeant Ulep that she had seen a man park the car and then walk away toward the corner. She paid attention to the man because he was walking toward a corner known for drug sales. The man was Black with a light complexion, of medium height, and with dreadlocks that extended to around two inches below his shoulder.

The witness said she was truthful when she spoke to police and identified the photo of defendant. She was correct when she confirmed at the preliminary hearing that the man she identified in the photo lineup was the man she saw on April 17, 2012. She acknowledged that she circled the photo of defendant, that that was her honest recollection of how the man looked, based on how she remembered him at the time, and admitted she had sufficient memory of the man she had seen to answer under oath several times that the photo she selected was the man she saw in front of her home on the day of the shootings. The witness acknowledged that she previously testified that she identified defendant based on the man she saw in real life—and not based on her home surveillance video—and while the image of the man was fresh in her mind. She admitted she had spoken to Sergeant Ulep after her identification of defendant, after the preliminary hearing, and during trial, but had never recanted her identification of defendant.

On June 1, 2012, officers recovered a .40-caliber Glock pistol from known Deep C member Clarence Wallace.[3] The gun’s chamber held 22 rounds. Forensic analysis confirmed the gun was the same gun that fired the .40-caliber casings found at the Rancho Market.

The Acura used in the drive-by shooting had been stolen from a man named Keith Marks on April 11, 2012. Three shell casings were found in the Acura: a .40-caliber casing on the rear passenger-side floor, a .40-caliber casing near the front passenger seat, and a nine-millimeter casing on the rear-passenger side floor but closer to the front passenger seat. The casings came from the same guns that produced the corresponding-sized casings found at the Rancho Market. No fingerprints could be developed from the gun recovered from Wallace.

Defendant’s cellphone records showed that on 12:47 p.m. on the day of the shootings he made a phone call, which was answered. At 12:48 p.m., defendant received and answered a call from Wallace. Defendant was within one mile of the Burke Street residence when he made the call at 12:47 p.m. and when he subsequently received the call from Wallace. At 1:25 p.m., defendant received a call while he was within one mile of the Burke Street residence. Wallace’s cellphone records showed that at 2:29 p.m., he made a call from within one mile of the Burke Street residence.

Based on the cellphone records and corresponding cell tower data, a district attorney investigator opined that defendant was within one mile of the Burke Street residence at 12:57 p.m. on the day of the shootings. Both defendant and Wallace were within one mile of the Burke Street residence at 12:58 p.m. Defendant was back at the original location, within one mile of the Burke Street residence, at 1:25 p.m. Defendant’s cellphone activity was consistent with him having been near the Burke Street residence at 12:47 p.m., having travelled northwest in the direction of North Richmond by 12:58 p.m., and having returned back to the Burke Street residence by 1:25 p.m. There was no evidence that defendant made or received any calls between 12:58 p.m. and 1:30 p.m., which was consistent with him having turned off his phone to avoid leaving traceable evidence of his location.

Just over an hour after the shooting, at 2:16 p.m., Wallace posted to Facebook, “God, you niggas better getting to that nigga name on the wall because it looks like he’s out of here. Man down. You niggas check the record. Ten to two.” “[T]he wall” referred to the wall on the Rancho Market memorializing deceased North Richmond gang members. “Check the record” or “check the score” referred to the tally of dead gang members during “March Madness.” The April 17, 2012 shooting was a “spillover” of the violence from March.

On May 30, 2012, officers searched the home defendant shared with his family in San Pablo. In defendant’s room they found a box of latex gloves hidden behind a television. Also in defendant’s room was a gray zip-up sweater, a Cincinnati hat with a “Little Dave” button on it, and a Kansas City Royals hat with “Little Leon” and “3300” embroidered on it.[4]

Additional gang-related evidence and defense testimony was presented but need not be described because, except for evidence of an incident when defendant was in custody discussed in section 2 below, the additional evidence is not relevant to the issues raised on appeal.

Discussion

1. Denial of motion to suppress identification evidence.

Defendant contends the trial court erred in denying his motion to suppress the evidence that the witness identified defendant in a photo array shown to her on May 10, 2012, and thereby denied his right to due process under the state and federal constitutions. Defendant argues that May 10 “was nearly a month after [the witness] saw [defendant], which was on April 12, 2012. The photo identification introduced against defendant was replete with questions of reliability. From the fact that [defendant] was the one with the lightest complexion and longest hair in the photo array, to the fact that the sole witness who made the identification of [defendant] later recanted that identification at trial, this identification evidence was questionable, at best, from the start. [Defendant’s] trial counsel filed a motion to exclude the photo identification but the motion was denied, even after the trial court noted how [defendant’s] hair was longer than the five others depicted in the array. Two days later, [the witness] took the stand and admitted, when presented with the photo array, that she did not know why she chose [defendant]. She explained that it might have been because he was the one with the lightest complexion or because he had the longest hair.”

However, the evidence showed that before the witness was shown the first array on April 26, she was advised, “The fact that photographs are shown to you should not influence your judgment. You should not conclude nor guess that the photographs contain the picture of the person who committed the crime. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties.” The witness obviously understood the admonition because she identified no one in the first array. According to the testimony, she unhesitantly identified defendant’s photograph when shown the second array. The evidence was that both she and defendant are both African-American, that on the day in question she viewed the man for 10 to 15 seconds from a distance of only 25 to 28 feet, and that she paid particular attention to the man because she thought he was going to purchase drugs. She described the man as having “medium length” dreadlocks, three to four inches below the shoulder neckline.

The trial court denied the motion to suppress the identification evidence with the following explanation: “[A]s far as this particular case is concerned, when I look at the photo lineup that was presented to [the witness], I believe on May the 10th, the second photo lineup that was presented, I simply do not conclude that it was unduly suggestive or prejudicial. To be certain, that Mr. Norford, as he appears in that photo array, may have slightly longer hair than the other five gentlemen that are pictures, but it’s more by degree than anything else. I kind of liken it to a photo lineup or a lineup in which maybe one individual is 5-foot-11 and the others are 5-9 or 5-10. He may have the longest hair in the . . . photograph . . . but he’s not the only one with long hair in this array.

In fact, all six individuals—and actually, looking at what I guess was Exhibit A in [the prosecutor’s] submission, certainly the one that she identified Mr. Norford from is perhaps less suggestive than the one she was originally shown. Because in the one that she was originally shown, there are a couple of individuals that have hair towards the shorter side, and she certainly didn’t succumb to any suggestions from that array.

And then when I also factor in the totality of the circumstances of the identification, her proximity to the person who got out of the car, the opportunity she had to look at them, the duration, and one of the points that I think [the prosecutor] made, and I agree with, is this was a lady who had some concern and some focus as to what was happening because of what she suspected was taking place, which was some sort of drug activity around the corner rather than somebody just simply walking across to the park.”

This court has also viewed the photographic array, as well as the pertinent testimony, and in our independent judgment reach the same conclusion. The six men pictured in the array are all African-American men with dreadlocks and appear to be of approximately the same ages. Although their complexions are not identical and only defendant’s dreadlocks extend below his shoulders, as the witness had described the man she saw, the differences are not the striking feature of the photographs. The differences did not “ ‘cause[] defendant to “stand out” from the others in a way that would suggest the witness should select him.’ ” (People v. Avila (2009) 46 Cal.4th 680, 698-699.) The identification procedure was not unduly suggestive and was reliable under the totality of circumstances. The evidence was properly admitted. (E.g., People v. Cook (2007) 40 Cal.4th 1334, 1354-1355; People v. Cunningham (2001) 25 Cal.4th 926, 990; People v. Johnson (2010) 181 Cal.App.4th 253, 272.)

2. Evidence of a jail altercation

Defendant contends that the trial court erred in refusing to exclude under Evidence Code section 352 evidence that he was involved in a jailhouse fight with a member of a rival gang. He contends that because “the prosecutor introduced a plethora of evidence regarding [his] alleged gang membership,” and because there was no testimony that he knew the other individual with whom he fought was a gang member, “the evidence was effectively used in an attempt to prove that [he] has a violent character, not that [he] was a gang member.”

Although, as the Attorney General recognizes, gang evidence must be carefully scrutinized because of its inflammatory capacity, “[g]ang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative.” (People v. Avitia (2005) 127 Cal.App.4th 185, 192-193.) We review the admission of such evidence for an abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 547.)

There was no abuse here. Over defendant’s objection and after the denial of defendant’s in limine motion to exclude the evidence, evidence was admitted of a jailhouse “altercation” between defendant and Jequerie Proctor, on one hand, against Shaune Rogers. The deputy who witnessed the incident could not remember “who was hitting who or how,” but that defendant and Proctor “directed an attack towards Mr. Rogers,” who suffered injuries. Another witness testified that Proctor, like defendant, was a member of the Deep C gang and that Rogers was a member of its rival, “the Mainline Boyz.”

Although there was considerable other evidence of defendant’s gang membership, unlike much of the other evidence, the fight evidence was relevant to show defendant’s active membership, necessary to establish the alleged gang conspiracy under section 182.5, and the alleged special circumstance of killing while an active gang member under section 186.22, subdivision (i). It was necessary to show that defendant’s gang involvement was active, and not nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 746-747.) While there was no explicit testimony that defendant knew that Rogers belonged to another gang, that knowledge could reasonably be inferred from the evidence of the fight participants’ respective gang memberships and of the hostility between the gangs. The testimony concerning the “altercation” did not include any details likely to evoke an emotional reaction adverse to defendant. There is no basis to disturb the trial court’s determination that the probative value of this evidence outweighed any possible prejudice to defendant. There was no error in admitting the testimony.

3. Prosecutorial misconduct

Defendant contends that the prosecutor engaged in deceptive and reprehensible misconduct by implying that the witness recanted her prior identification of defendant because she feared defendant, for which the record contained no evidence. Assuming, without deciding, that counsel’s simple “objection” during the prosecutor’s argument was sufficient to preserve the issue, the prosecutor engaged in no misconduct.

During her testimony, the witness acknowledged she had concerns for her and her family’s safety. In defense counsel’s closing argument, he argued: “she never suggested that she had safety concerns about [defendant] as to the reason why she testified the way she did. And so given that there was no evidence presented of that, that’s not something you consider, and yet that was something that I believe Detective Anderson was trying to suggest from the way he answered his questions.”

In rebuttal, the prosecutor answered: “What was also very clear from her testimony was that she was afraid. And even though she didn’t specify that, ‘I am afraid of the defendant,’ doesn’t take a whole lot of common sense to realize that her fear is fear for her safety. [¶] . . . [¶] . . . Now, it’s very easy for us, and I’m not suggesting—I’m not suggesting that the defendant has done anything to prompt that fear. I’m not suggesting that you should infer any efforts on his part to incite that fear directed towards [the witness]. I’m talking about what’s in her mind as a witness, as an uncooperative witness. It’s understandable why she would have those fears. Here she is, trying to do the right thing, trying to remain [anonymous]. She doesn’t want to drag herself or her family into this, but she feels, as a good citizen, she wants to tell the police what she knows. She tries to do that while maintaining her confidentiality, her anonymity. But much against her will, that doesn’t happen. It blows up, and she has to come to court.”

The prosecutor then repeated: “And again, I’m not saying that the defendant did anything to provoke that. But in any event, that is a very real fear to her, and the kindest thing you can say about her and her testimony is, even if she’s not intentionally trying to protect herself by recanting her earlier identification, certainly over the passage of time, that is going to affect her ability to clearly recall something that happened almost four years ago.”

The prosecutor’s argument was entirely proper. He made clear that he was not suggesting that defendant had done anything to provoke fear in the witness, and that he was not relying on any evidence not before the jury. The prosecutor merely offered a plausible explanation that could be drawn from the circumstances of the reason for which [the witness] had backtracked on her identification of defendant. This he was entitled to do and there was no misconduct. (E.g., People v. Dykes (2009) 46 Cal.4th 731, 761; People v. Caldwell (2013) 212 Cal.App.4th 1262, 1271.)

Disposition

The judgment is affirmed.

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Pollak, J.

We concur:

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Siggins, P.J.

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Ross, J.*

A148253