P. v. Smith
Filed 8/27/13 P. v. Smith CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
PIERRE
SMITH,
Defendant and Appellant.
A133769
(Alameda
County
Super. Ct.
No. C166345)
In re
PIERRE SMITH,
on Habeas Corpus.
A137965
The court on its
own motion modifies the opinion,
filed on August 1, 2013, as
follows:
The
third full paragraph of the disposition that begins with the words “Stephen B.
Bedrick, defendant’s counsel on appeal . . .†is deleted in its entirety. In its place, the following paragraph is
inserted:
“The
Presiding Judge of the Alameda County Superior Court shall forthwith appoint
counsel for petitioner to the extent required by California Rules of Court,
rule 4.551(c)(2), cause all filings to be served on said counsel, and issue any
appropriate orders for petitioner’s transportation and personal appearance at
the order to show cause hearing (Cal. Rules of Court, rule 4.551(f)).â€
This
change does affect the judgment.
Dated:___________ ___________________________________P.J.
Filed 8/1/13 (unmodified version)
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
PIERRE SMITH,
Defendant
and Appellant.
A133769
(Alameda County
Super. Ct. No. 166345)
In re PIERRE SMITH,
on Habeas
Corpus.
A137965
A jury
convicted defendant Pierre Smith
name="_ftnref1" title="">[1] of
first degree murder. (Pen. Code, § 187, subd. (a).) The jury also found
that defendant personally and intentionally discharged a firearm and caused
great bodily injury (Pen. Code, §§ 12022.7, subd. (a), 12022.53,
subd. (d)), that defendant personally and intentionally discharged a
firearm (Pen. Code, § 12022.53, subd. (c)), and that defendant personally
used a firearm (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subds. (b),
(g)). Defendant was sentenced to prison for a term of 25 years to life for
first degree murder plus an additional 25 years to life, to be served
consecutively, for the use of a firearm.
Defendant
timely appeals his conviction on several grounds. He claims that the trial
court erred in admitting evidence of a prior uncharged act, in allowing the
jury to use evidence of the uncharged act to prove malice and to evaluate his
credibility, and in permitting a witness to testify that a person referred to
as “C†committed the murder but to deny him the ability to identify the real
“C.†Defendant also contends that the prosecutor committed misconduct when he
challenged defendant’s credibility for denying he was “C†after having
successfully objected to defendant presenting evidence of the identity of the
real “C.†We conclude the trial court improperly admitted evidence of
defendant’s uncharged offense but that the error was not prejudicial. Finding
no other error, we shall affirm the judgment.
While his
appeal was pending, defendant filed a petition for a writ of habeas corpus. We
consolidated the writ petition with the pending appeal and requested that the
People file an informal opposition to the petition. Although the allegations in
defendant’s petition fail to establish a prima facie case for relief on most of
the issues raised, we conclude that the petition states a prima facie case for
relief with respect to newly discovered evidence that suggests that defendant
is factually innocent of the charges. Accordingly, we shall issue an order to
show cause, returnable in the superior court, for the purpose of conducting an
evidentiary hearing to determine the merits of the petition.
FACTS AND PROCEDURAL
HISTORY
Of the 16
witnesses who testified at defendant’s trial, only one witness, Robert Green,
identified defendant as a participant in the killing. The following
sequence of events is derived from his testimony.
Green’s
testimony regarding the April 15, 2011, shooting
In the
early morning hours of April 15, 2011—between
3:30 and 3:45 a.m.—Green and Pat Smith (Smith)
arrived at an apartment building at 1406 77th Avenue
in Oakland “to buy drugs.†Green
testified that he had previously accompanied Smith when he bought drugs from
defendant at this same location, the first time a week or two before the
incident. On that occasion, Green stated, he clearly observed defendant’s face
and heard his voice. Green had also seen defendant driving around the
neighborhood in a grey sedan.
On the
occasion in question, Green testified that he and Smith arrived at the
apartment building in a red Volkswagen Jetta driven by Smith. Green stayed in
the car while Smith went inside to buy the drugs. A few minutes later, Green
saw a man, later identified as the victim, Dawonye Taylor, exit the building
and walk down the street. Shortly thereafter, Smith and two men came out of the
apartment building. Green identified one of the men as Andre, who he recognized
“through buying drugs off him,†and the third individual as defendant. Green
testified that when he first saw defendant that night, his “name didn’t clickâ€
but he recognized defendant “from somewhere.†Later that night he remembered
that defendant had introduced himself as “C†during their initial meeting.
Green testified that defendant is in fact the person he knew as “C.â€
The three
men got into the red Jetta. Defendant, wearing a black “puff coat,†sat in the
rear passenger seat behind Green. As the car took off in the direction Taylor
was walking, defendant told someone on his cell phone “that somebody stole his
iPod†and that “[he] shouldn’t have left his iPod plugged up in the house.†As
the car approached Taylor, Green
heard defendant say, “there he go right there†and defendant told Smith to “let
him out of the car.†Smith made a u-turn next to Taylor,
stopping by a Giant Quarter-Pound Burger restaurant. Green testified that
defendant and Andre got out of the car, pinned Taylor
against the passenger door, and began hitting and kicking him in the face and
chest. Defendant accused Taylor of
stealing his iPod. As Green turned to speak to Smith, a single gunshot was
fired. Green turned and saw defendant “holding a gun towards†Taylor,
“pointing [the gun] towards [Taylor’s]
stomach.†Green stated, “it appear[ed] that [defendant] had his hand on the
trigger.†Defendant and Andre got back in the car and Smith drove off, leaving Taylor
to die on the street.
DeCarla Smith
(Carla) testified that as these events unfolded, she was standing at a bus stop
two blocks away. She saw a red Volkswagen make a u-turn and pull in front of
the Giant Burgers restaurant. She recognized the car as belonging to Smith
because two weeks before she had been in the car with him. She recognized Smith
as the driver of the car, and saw that there were three occupants. Carla
testified that after the car parked, someone exited the car, confronted the
victim, and then one gunshot was fired. About 15 to 20 minutes later, Carla
crossed the street and identified the victim as “2.†Carla acknowledged that
she had previously given different accounts of the incident to the police
because she did not want to be seen as a snitch. She said the “theory on the
street is what you see you don’t see†but swore that her trial testimony was
truthful.
Events
leading to defendant’s arrest
On the
following day, April 16, Green approached an Oakland
police officer and asked to speak with him about the shooting the day before.
Officer Steve Walker confirmed that Green had approached him and he gave
Green’s contact information to a homicide investigator, Steven Nowak. Green met
with Nowak on April 21, 2011.
Green testified that during this initial meeting, he was shown a photo lineup
from which he identified Andre as one of the men in the car on April 15, but he
was unable to identify the other two men. Green gave the officer a description
of “C†as brown skinned, about 5 feet 10 inches tall, with short hair, 20 years
old, and around 120 pounds with a slim build. Green met with Nowak the next
day, April 22, and identified Smith from a photo lineup, but was still unable
to identify any photograph as a picture of “C.â€
On April 22, 2011, Officer Michele
Melham spotted the red Jetta in a parking lot with Smith asleep in the front
seat. Aware of the ongoing homicide investigation, Melham detained both Smith
and the car. The car was dusted for fingerprints. Those of Smith, Green, and
Carla were taken from the car, but no fingerprints of Andre or defendant were
found.
On April
30, Green fortuitously saw defendant at a BART station wearing a red cap. He
called Nowak and told him that he had just seen “C†and that his prior
description of him was wrong, as the man had a darker complexion and was taller
than he initially thought. Green told Nowak that his height was in fact 6 feet
2 inches. At trial, Green attributed his mistake to the fact that the night of
the incident he was sitting in the car while defendant stood, so that he had no
frame of reference.
While on
patrol on May 3, 2011,
Officer Michael Igualdo saw a man matching the description of the suspect from
the April 15 shooting. This individual was a Black male, “tall, slim build, and
young,†and he was wearing a red cap.
Igualdo stopped the man, who identified himself as defendant. Later that day
Igualdo went back to the 1400 block of 77th Avenue
and observed defendant leaning against a grey sedan parked in close proximity
to the 1406 77th Avenue
apartment building.
On May 9, Nowak went to Green’s residence and
showed Green two new photo lineups. Green immediately identified photograph
No. 4 as the person he knew as “C.†At trial, Nowak testified that
defendant is the person shown in photograph No.4. Based on this information, an
arrest warrant was issued and defendant was arrested on May 20, 2011.
Forensic
pathologist and criminalist testimony
A forensic pathologist testified
that the victim had a grazing gunshot wound to the left shoulder. There was “an
entrance-type gunshot wound, entrance meaning bullet going into the body. And
this was located in the area of the left collar bone. There were also some
scrapes on [the victim’s] body, and these were located at . . . the
right eye area.†The pathologist said that the scrapes were consistent with
being punched with a fist, although he could not confirm that was in fact the
cause. The cause of death was a gunshot wound to the torso.
A
criminalist with the Oakland Police Department also testified. He tested the
victim’s sweatshirt, focusing particularly on the upper left-hand shoulder area
and what looked like a bullet hole. By examining the hole, the lead surrounding
the hole, and residue gun powder left on the sweatshirt, the criminalist found
that the hole was ragged and torn, indicating a “close, near contact or contact
shot†and that the hole is a bullet hole made from sweatshirt-to-muzzle
distance.
Defendant’s
alibi
Laura Richardson testified that
she and defendant were friends and were also intimate. She testified that she
was with defendant on April 14, 2011,
recording a video in the park. Richardson
said they went to the home of defendant’s grandmother “late†that night, and
stayed for four to six hours. She and defendant left his grandmother’s house
around the break of dawn the following morning, April 15, to get breakfast and
she then dropped defendant off back at his grandmother’s home. Richardson
said she specifically remembered April 15th, as it was tax day and her mother
“waits to the last day to do taxesâ€
and her son had a performance at school that afternoon. On cross-examination, Richardson
testified that when she visited him in jail “[defendant] did tell [her] that he
was with [her] on the day that it was alleged that it happened, but
. . . [i]t was not the main point of [their] conversation, and he did
not sound nervous . . . .â€
testified that she never thought to go to the police with the exculpatory
information.
Defendant
testified and denied any association with the victim, Green, Smith, or the
nickname C. He testified that he had only limited contact with the 77th
Avenue apartment building, but he also
acknowledged that he sold marijuana at the apartment complex throughout 2010
and that he previously told Nowak that the apartment “was [his] house growing
up.†He testified that he stayed in the apartment when he needed money and that
the apartment building appeared in his first rap music video.
Defendant
testified he was at his grandmother’s house on April 15, 2011, at 3:30 a.m.
He acknowledged, however, that when arrested he had told Officer Nowak
something different. He had first told Nowak that he was at his father’s house
on April 15th. At trial he explained that he was there later in the day, around
11:00 a.m. for “only 15, 20 minutesâ€
and that the “[the police officers] never made it specific on the time†and he
thought they were referring to later in the day, and not 3:45 a.m. Nevertheless, defendant testified he was
“deliberately lying to the police when [he] told them [he was] at [his] dad’s
house†and that even if the police officers had been specific as to the time of
day, he “probably would have still lied because [he] knew [he] didn’t know
nothing about a murder.†Later, defendant gave Nowak a second alibi, that he
was in custody in San Jose from
April 14 to April 16, 2011
and at trial admitted that this alibi was also untrue.
that April 15 was an important and memorable date for his family, he testified
that his mind was racing during his interview with Nowak and he mixed up the
dates. He was not arrested until the night of April 15.
Defendant
testified that he had not previously told the police he was at his
grandmother’s home at 3:30 a.m. on
April 15 because he did not want to involve his grandmother in a criminal
investigation and for that reason had lied to the police officers.
Uncharged
offense admitted to prove intent and absence of mistake or accident
Prior to
the jury being empanelled, the court ruled on motions in limine, including the
People’s motion “to admit evidence under [Evidence Code section] 1101(b)
regarding [defendant’s] conduct that occurred on March 22nd of 2009.†The
prosecutor offered to prove that on the prior occasion defendant shot another
man who he claimed owed him money, but that an attempted murder charge was
dismissed when the victim refused to identify defendant at the preliminary
hearing. This evidence was “solely offered to establish intent and the absence
of mistake or accident in this case.†The prosecutor argued that the two
incidents were “very similar in terms of the claim of rights. And even right
down to the confrontation with the victim that starts with a physical
confrontation and ends with a shooting.†Defendant objected, arguing that the
two incidents differed in motive and plan, and that evidence of the uncharged
offense was of limited probative value and would be extremely prejudicial. He
argued, “I think that the . . . defense in the case is going to be
misidentification and alibi,†and although “technically all the elements may be
an issue . . . it seems pretty clear to me that from the discovery
and the preliminary examination testimony that whoever [Green] sees, whoever he
may be . . . probably committed the murder, that shooting somebody
with a high caliber weapon in close range like that, . . . it doesn’t
leave much room to argue things like intent or mistake . . . [t]he
court’s decision should be made in relation to that given that the defense is
not seriously going to contest what was the intent of the shooter.â€
The trial
court ruled that evidence of the uncharged offense would be admitted because
the evidence was “materially and substantially probative . . . to
prove intent.†The court explained, “It is the 2009 incident in San
Francisco and the one here in Oakland
alleged in this complaint. There are similarities, the least of which would be
that I hit people and then I shoot them, and that’s what I do. The bottom line,
also, when you add to that similarity factor, is that defendant . . .
alleged that the victim owed him money in the March ’09 incident versus this
one where it is alleged that he had his iPod.†“The factors are certainly
consistent and great between the two instances that would allow [the court] to
conclude it is material, it is substantially probative and therefore should be
allowed.†With respect to Evidence Code section 352, the court considered the
evidence to have more probative value than prejudicial effect. The court stated
that the 2009 incident was “highly probative, highly relevant, highly material
as it relates to intent and to show the absence of mistake.†The evidence would
not be unduly time-consuming or prejudicial because “[i]t would not take that
much time, certainly, to have the witnesses brought forth from the ’09 incident
to testify, and it wouldn’t confuse the jury because the instructions are very
clear that they can only use it for certain matters and not for others.â€
Thus, at
trial, Parree Foster was permitted to testify regarding the events of March 2, 2009. He told the jury
that he sold drugs in downtown San Francisco
for several dealers, including defendant. On this particular day, he owed
defendant $15. At 8:00 p.m. on March
2, defendant approached Foster and said “you owe me some money.†Foster told defendant
he would get the money to him soon, but defendant hit Foster in the ear. Foster
responded by striking defendant. Defendant walked away but soon returned. As he
approached Foster, defendant said, “Oh, you owe me some money; you deserve
that, huh?†Defendant then reached into his pocket, walked into Foster, and
shot Foster three times in the abdomen and once in the leg. When the police
arrived and Officer Jason Robinson was collecting gun powder residue from
defendant, Robinson testified that defendant stated: “I’m not going to lie,
Officer. I ran up on the guy because he owed me some money. I heard shots. I’m
from Oakland. I came out here to
get my money.†Defendant was charged with attempted murder of Foster and
possession of a controlled substance. At the preliminary hearing, Foster denied
knowing defendant or that he was involved in the shooting and the attempted
murder charge was dropped. During his testimony in the present trial, defendant
offered a different account of the 2009 incident. He testified that he went to San
Francisco to confront Foster about a debt he owed a
friend. He admitted jumping Foster with four other men, but claimed that
someone else shot Foster. He told defense counsel that he found himself taking
the rap for another individual.
DISCUSSION
I.
court erred in admitting evidence of the 2009 shooting but the error was
harmless.
Defendant
contends the trial court erred in admitting evidence of the uncharged 2009
shooting. We agree with the trial court that there was sufficient similarity
between the charged and uncharged acts to make evidence of the prior shooting
relevant to prove intent and absence of accident or mistake. However, because
these factors were undisputed—the only disputed issue being the identity of the
shooter—the evidence should have been excluded as having little probative value
and being highly prejudicial.
Evidence
Code section 1101, subdivision (a)
name="_ftnref8" title="">[8]
states in pertinent part that “evidence of a person’s character or a trait of
his or her character . . . is inadmissible when offered to prove his
or her conduct on a specified occasion.†However, subdivision (b) of
section 1101 permits “evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact†at issue such as “motive,
opportunity, intent, preparation, plan, knowledge, identity, [or] absence of
mistake or accident. . . .†(See also People v. Lindberg (2008) 45 Cal.4th 1, 22.) However, the
admissibility of evidence for these purposes is subject to the limitation imposed
by section 352, under which the trial court, “in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger
of undue prejudice . . .†(E.g.,
People v. Ewoldt (1994) 7 Cal.4th 380, 404.) The “decision whether to admit
other crimes evidence rests within the discretion of the trial court.†(
p. 23.) “On appeal, the trial court’s determination of this issue, being
essentially a determination of relevance, is reviewed for abuse of discretion.â€
(People v. Kipp (1998) 18 Cal.4th
349, 369.)
Evidence of
uncharged acts is admissible to prove identity, common plan or design, or
intent “only if the charged and uncharged crimes are sufficiently similar to
support a rational inference of identity, common design or plan, or intent.†(
similarity (between the uncharged act and the charged offense) is required in order
to prove intent. [Citation.] . . . In order to be admissible to prove
intent, the uncharged misconduct must be sufficiently similar to support the
inference that the defendant ‘ “ ‘probably harbor[ed] the same intent
in each instance.’ †’ †(People
v. Ewoldt, supra, 7 Cal.4th at p. 402.) “When the proponent offers the
uncharged misconduct [for intent], the judge should not be unduly strict in
evaluating the degree of similarity.†(1 Imwinkelried, Uncharged Misconduct
Evidence (2009) Degree of Similarity Required Between Uncharged and Charged
Acts to Invoke Doctrine of Chances, § 5:08,
p. 25.)
The trial
court did not abuse its discretion in finding that the 2009 act and the charged
act were sufficiently similar to prove intent and absence of mistake or
accident. The court described the 2009 incident with Foster as “the defendant
confronted Mr. Foster . . . , alleging that [Foster] owed
him money, that [defendant] then struck [Foster] first and then he shot
[Foster].†The judge summarized the present act as “[defendant] confronted [the
victim], [who] allegedly . . . [took] his iPod, . . . and
then [defendant] hit [the victim] first and then he shot [the victim]
. . . just from looking at the two [acts], . . . he
confronted [the victim], he alleged he owed, he beat him up, and then he shot
him.†For the limited purpose of proving intent, this was sufficient. (See
782, 804 [evidence that both victims were beaten in the face, resulting in
bruising around the eyes, indicated a similarity between the two acts];
706, overruled on other grounds in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [concealed weapon indicates
commonality between two acts].) “ ‘[W]hen the other crime evidence is
admitted solely for its relevance to the defendant’s intent, a
crimes is often unnecessary for the other crime to be relevant. Rather, if the
other crime sheds great light on the defendant’s intent at the time he
committed that offense it may lead to a logical inference of his intent at the
time he committed the charged offense if the circumstances of the two crimes
are substantially similar even though not distinctive.’ †(
1, 16-17.) The same is true with respect to the absence of mistake or accident.
Intent and absence of mistake or accident “[reflect] two ways of describing the
same relevant issue, namely, that defendant performed the acts that killed [the
victim] intentionally rather than accidentally.†(People v. Whisenhunt (2008) 44 Cal.4th 174, 204.)
Although
evidence of the 2009 uncharged shooting was relevant to show state of mind, the
similarity between the charged and uncharged acts was insufficient to be probative
of the identity of the shooter. “The greatest degree of similarity is required
for evidence of uncharged misconduct to be relevant to prove identity.†(
offered for the ostensible purpose of proving that defendant was the shooter
and the Attorney General does not suggest that the evidence would have been
admissible for this purpose. Nonetheless, in admitting the evidence, there was
an unmistakable danger that the jury would improperly consider the evidence to
show defendant’s disposition to shoot others, supporting Green’s testimony that
defendant is the person who committed the murder in this case. “Evidence of
uncharged offenses ‘is so prejudicial that its admission requires extremely
careful analysis. [Citations.]’ [Citation.] ‘Since “substantial prejudicial
effect [is] inherent in [such] evidence,†uncharged offenses are admissible
only if they have substantial probative
value.’ †(People v. Ewoldt, supra,7
Cal.4th at p. 404; People v. Hendrix (2013)
214 Cal.App.4th 216, 245.)
The
probative value of the evidence concerning the 2009 shooting was minimal at
most in this case. The defense was not that defendant did not intend to shoot Taylor,
or that he accidentally did so, but that he was not the person who did the
shooting. It is true, as the Attorney General argues, that a “[d]efendant’s
plea of not guilty put in issue all of the elements of the offenses, including
his intent.†(People v. Balcom (1994)
7 Cal.4th 414, 422-423.) Nonetheless, there are circumstances in which “if the
jury found that defendant committed the act alleged, there could be no
reasonable dispute that he harbored the requisite criminal intent.†(
“evidence of defendant’s uncharged similar offenses [to prove intent] would be
merely cumulative on this issue†and “the limited probative value of the
evidence of uncharged offenses, to prove intent, is outweighed by the
substantial prejudicial effect of such evidence.†(Id. at p. 423.) In such cases, there is “no need for the jury to
hear inherently prejudicial other crimes evidence that evinced a propensity of
violence.†(People v. Hendrix, supra,
214 Cal.App.4th at p. 245.)
In
defendant placed a gun at the victim’s head, which was sufficiently compelling
evidence of the defendant’s intent, if believed, to render evidence of an
uncharged similar offense unnecessary to prove intent, and the value of the
evidence for that purpose was outweighed by its substantial prejudicial effect.
Precisely the same is true in the present case. The only evidence was that the
shooter, standing next to Taylor,
fired a single shot at his stomach and that Taylor
died from a single “close, near contact or contact [gun]shot.†The criminalist
testified that the shot was “sweatshirt-to-muzzle distance.†Green saw
defendant within seconds after the shooting, aiming the gun at the victim’s
stomach, with his finger still on the trigger. As defense counsel put it in objecting
to the admission of the other-crime evidence, there was not “much room to argue
things like intent or mistake.†Unlike the situation in Whisenhunt, where the defense offered evidence that the victim’s
injuries were inflicted accidentally (People
v. Whisenhunt, supra, 44 Cal.4th at p. 204), the defense here consistently
argued that its defense was that the prosecutor was charging the wrong person.
Defense counsel made this clear in opposing the prosecution’s in limine motion
and his opening statement to the jury began: “In this case I expect the
evidence will not prove beyond a reasonable doubt that [defendant] was the
shooter who caused the death of Mr. Taylor on April 15th this year.†These
facts presented the strongest case for exclusion of the evidence of other
crimes: “(1) the defendant has not affirmatively claimed accident and
(2) the nature of the crime is such that accident would not be a plausible
defense.†(1 Edward J. Imwinkelried, Uncharged Misconduct Evidence (2009) Use
of Uncharged Misconduct To Prove Elements of Mens Rea─Disproving
Defendant’s Claim That He or She Acted Accidentally, § 5:11, p. 40.)
Although we
conclude that the trial court erred in admitting testimony concerning the 2009
shooting, whether this error was prejudicial presents a close question. The
error was harmless if it is not reasonably probable that defendant would have
received a better outcome had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) “We will only disturb
the trial court’s exercise of discretion under section 352 ‘when the
prejudicial effect of the evidence clearly outweighed its probative
value.’ †(People v. Hollie
(2010) 180 Cal.App.4th 1262, 1274.)
Defendant
was identified as the shooter by only a single witness, Green, who was then on
felony probation and actively used drugs. There was no tangible evidence
linking defendant to the killing. Although several fingerprints were recovered
from the vehicle in which the shooter was riding, none were those of defendant.
Moreover, Green’s initial description of “C†was inaccurate, albeit in
relatively minor respects.
Nonetheless,
Green declined to make an identification of the shooter when defendant’s
photograph was not included in the several photo lineups initially shown to
him. However, when he fortuitously encountered defendant at a BART station, he
immediately recognized him. When first presented with a collection of photos
that included defendant’s photograph, he instantly and unequivocally identified
defendant. Green had seen defendant on prior occasions and had no apparent
reason to falsely accuse him. And there were other corroborating circumstances.
The testimony of Carla Smith and a video surveillance tape confirmed Green’s
version of the shooting. Although neither Carla nor the video tape identified
the shooter, both support the reliability of Green’s testimony. Green’s
identification of defendant was also confirmed by his testimony that he had
previously seen the person he knew as “C†driving in a grey sedan, in
combination with Officer Igualdo’s testimony that he had observed defendant
leaning on a grey sedan near the 77th Avenue
apartment building. Indeed, the evidence linking defendant with the sale of
drugs at the apartment building from which the killer and the victim emerged
also tends to confirm the reliability of Green’s identification.
Perhaps the
most persuasive support of Green’s testimony is defendant’s acknowledgement
that he gave the police two false accounts of his whereabouts at the time of
the killing, before providing a third alibi for the first time at trial.
Moreover, his single supporting alibi witness, Laura Richardson, professed
confidence in her recollection of events on April 15 because that was
supposedly the final day for paying taxes, when the final date in 2011 was in
fact April 18. Still further, Richardson
admitted that when she visited defendant in jail he told her that they were
together on April 15. And defendant admitted that even if he had not been
confused in his initial accounts to the police, he would have lied because “he
didn’t know nothing about a murder.†Taken together, defendant’s repeated lies
about his whereabouts strongly suggest a consciousness of guilt (see
399 [jury could reasonably infer that defendant’s lies to the police reveal a
consciousness of guilt]; CALJIC No. 2.03) and support the veracity of Green’s
testimony identifying him as the person who shot Taylor.
Considering
the record as a whole, we conclude that the other evidence of defendant’s guilt
was sufficiently strong that exclusion of the 2009 act would not have produced
a different outcome. (See People v.
Williams (2009) 170 Cal.App.4th 587, 613.) Moreover, other factors that the
court is to consider in evaluating potential prejudice also mitigate against
such a finding. The amount of testimony concerning the uncharged act was not
disproportionate to the volume of testimony devoted to the charged act, which
minimizes possible prejudicial effects. (See People v. Avitia (2005) 127 Cal.App.4th 185, 194; 2 Imwinkelried,
Uncharged Misconduct Evidence (2009) Direct appeal ─ Reversibility of
error ─Factors considered in deciding whether error was harmful,
§ 9:87, p. 282.)
name="_ftnref9" title="">[9]
The testimony describing defendant’s uncharged acts was “no stronger and no
more inflammatory than the testimony concerning the charged offenses.†(
p. 405.) Furthermore, the court
provided limiting instructions throughout the proceedings. (
1009, 1023 [limiting instruction inform the jury that it cannot consider the
evidence for propensity purposes].) The court gave a limiting instruction
before each witness who testified regarding the 2009 incident and reiterated
the limiting instruction in the jury instructions at the close of the evidence.
Given the number of instructions that were given and the clarity of the
instruction, we must presume that the jury adhered to the admonitions. (
II. The limiting instructions were proper.
Defendant
asserts numerous errors in the content of the court’s instructions concerning
the proper consideration of the uncharged offense. The court instructed the
jury on this issue at the close of trial, in full, as follows: “The People
presented evidence that the defendant committed another offense that was not
charged in this case. [¶] You may consider this evidence only if the
People have proved by a preponderance of the evidence that the defendant, in
fact, committed the uncharged offense. Proof by the preponderance of the
evidence is a different burden of proof than proof beyond a reasonable doubt. A
fact is proved by the preponderance of the evidence if you conclude that it is
more likely than not that the fact is true. [¶] If the People have not met
this burden, you must disregard this evidence entirely. [¶] If you decide
that the defendant committed the uncharged offense, you may, but are not
required to, consider that evidence for the limited purpose of deciding whether
or not: [¶] The defendant acted with malice aforethought in this case; or
[¶] The defendant’s alleged actions were the result of mistake or
accident. [¶] In evaluating this evidence consider the similarity or lack of
similarity between the uncharged offense and the charged offense. [¶] Do
not consider this evidence for any other purpose except for the limited purpose
of determining the defendant’s credibility. [¶] Do not conclude from
[this] evidence that the defendant has a bad character or is disposed to commit
a crime. [¶] And if you conclude that the defendant committed the
uncharged offense, that conclusion is only one factor to consider along with
all the other evidence. It is not sufficient by itself to prove that the
defendant is guilty of murder or that the allegations that the defendant
personally used a firearm or personally and intentionally inflicted great
bodily injury or death on Dawonye Taylor have been proved. The People must
still prove the charge and allegations beyond a reasonable doubt. [¶] Now,
prior to the defendant testifying, I instructed you that the testimony of
Parree Foster, Sergeant Simon Kim, and Officer Jason Robinson could only be
considered by you for the limited purpose of intent or the absence of mistake
or accident. The defendant has testified. You may now consider that evidence
for the additional purpose of determining the defendant’s credibility.â€
Defendant
contends this instruction erroneously permitted the jury to consider the
other-crime evidence in determining whether he acted with malice aforethought,
which he argues is not a permissible purpose under section 1101, subdivision
(b). Although subdivision (b) does not specifically list malice, “the list is
not exclusive.†(People v. Catlin (2001)
26 Cal.4th 81, 146.) “The categories listed in section 1101, subdivision (b),
are examples of facts that
legitimately may be proved by other-crimes evidence.†(Ibid., italics added.) The list in section 1101, subdivision (b)
explicitly allows evidence to prove motive and intent, which are states of
mind, and malice clearly falls within the ambit of such proof. The concern is
to preclude the use of such evidence to establish propensity, which is very
different from proving that a defendant acted with malice aforethought. The
court did not err in instructing that the evidence could be considered for that
purpose.
Defendant
also contends that it was error to instruct that the other-crime evidence could
be used to evaluate defendant’s credibility. Defendant is correct that section
1101, subdivision (b), does not authorize the use of uncharged acts for
credibility purposes. But section 1101, subdivision (c), provides that
“[n]othing in this section affects the admissibility of evidence offered to
support or attack the credibility of a witness.†(See People v. Millwee (1998) 18 Cal.4th 96, 130-131 [section 1101 does
not preclude admissibility of evidence to show “implausibility and
untruthfulness of defendant’s testimonyâ€].) And section 780 provides, “[e]xcept
as otherwise provided by statute, the court or jury may consider in determining
the credibility of a witness any matter that has any tendency in reason to
prove or disprove the truthfulness of his testimony at the hearing, including
but not limited to any of the following: [¶] . . . [¶] (i) [t]he
existence or nonexistence of any fact testified to by him.†“[W]hen a defendant
in a criminal prosecution takes the stand and denies his guilt he puts in issue
his reputation for truth and honesty and thus subjects himself to the rules for
testing credibility.†(People v. Taylor (1986)
180 Cal.App.3d 622, 631.) The trial court properly found that “[w]hen the
defendant got up and took the stand and . . . indicated there was a
lack of culpability, he really did blow the door wide open for the testimony to
be used for all purposes, particularly credibility.†Indeed, elsewhere in his
argument defendant acknowledges that “[i]t was, of course, proper for the jury
to rely upon [defendant’s] trial testimony regarding the prior San
Francisco incident both for impeachment and to
determine his credibility.â€
Defendant next
argues that the instructions regarding the uncharged act allowed the jury “(i)
to find the prior true by a preponderance of the evidence—rather than beyond a
reasonable doubt—and (ii) then to use the truth of the prior to determine
whether or not [defendant] was credible.†“[A] reviewing court must consider
the instructions as a whole to determine whether there is a reasonable
likelihood the jury applied the instructions in an unconstitutional manner.â€
v. Loy (2011) 52 Cal.4th 46, 74.) Here, the court instructed that if the
jury concluded that defendant committed the other offense, “that conclusion is
only one factor to consider along
with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of murder.
. . . The People must still prove the charge and allegations beyond a
reasonable doubt.†(Italics added.) The instructions state repeatedly that the
People had the burden of proving every element of the charged offenses beyond a
reasonable doubt. In People v. Lindberg,
supra, 45 Cal.4th at page 35, our Supreme Court found no error in similar
instructions to those given here. The court found “no reasonable likelihood
that the instructions as a whole led the jury to believe that the prosecution
was not required to prove all elements . . . beyond a reasonable
doubt.†(Ibid.; see also
p. 75.) Under the instructions given here, we similarly conclude that no
reasonable jury could believe that the prosecution was not required to prove
all elements of the crime beyond a reasonable doubt.
III.
The trial court did not erroneously refuse to permit defendant to identify “C.â€
Defendant
argues that the trial court violated his constitutional rights by prohibiting
him from presenting evidence of the identity of the real “C.†This contention
fails for several reasons.
Defense counsel asked defendant, “Do you know
anybody in your neighborhood who goes by the nickname of C?†Defendant
responded “Yes.†Counsel then asked, “What’s that person’s true name?†to which
defendant responded, “I don’t know.†The latter answer was stricken after the
prosecutor objected on the grounds of “relevance without foundation for
third-party culpability.†In chambers, the prosecutor explained, “[s]o my
objection, I think this line of questioning is somehow trying to establish
third-party culpability, and I don’t think any kind of threshold has been met
in order to get that evidence in.†The court asked defense counsel, “is this
where this is going, that somehow this is all a grave mistake and that is the
other C who did this, not [defendant]?†Defense counsel responded, “Well, yesâ€
and the court ruled, “Okay. Then there definitely would need to be a greater
foundation shown than this. At this point I will sustain, you know, the
objection at this point. If you lay a foundation, that’s very different.†The
defendant offered no further testimony on this subject, and made no further
offer of proof that the court rejected.
Thus, the
only evidence presented was that defendant knew somebody else who used the
nickname “C.†This answer was not stricken. As to the identity of this supposed
other person, defendant testified he did not know his name. Although the answer
was stricken, there can be little objection to striking the answer that
defendant did not know the answer to the question. Beyond that, defendant made
no further offer of proof. There was no attempt to present evidence identifying
this supposed other person in some manner other than by name. Moreover, the
court was correct in requiring a foundation for the admission of third-party
culpability evidence. “[T]here must be direct or circumstantial evidence
linking the third person to the actual perpetration of the crime.†(
833.) Defendant made no offer to provide such a foundation or to prove any
facts tending to identify any other person as the perpetrator of the killing.
Section
354, subdivision (a) states: “A verdict or finding shall not be set aside, nor
shall the judgment or decision based thereon be reversed, by reason of the
erroneous exclusion of evidence unless the court which passes upon the effect
of the error or errors is of the opinion that the error or errors complained of
resulted in a miscarriage of justice and it appears of record that:
[¶] (a) [t]he substance, purpose, and relevance of the excluded evidence
was made known to the court by the questions asked, an offer of proof, or by
any other means.†Therefore, “[a]s a condition precedent to challenging the exclusion
of proffered testimony, [citation], . . . the proponent [must] make
known to the court the ‘substance, purpose, and relevance of the excluded
evidence.’ †(People v. Ramos
(1997) 15 Cal.4th 1133, 1178.)
Although the court terminated
counsel’s line of questioning without a foundation, it did not rule on the
admissibility of any proffered evidence. Neither the trial court nor this court
can evaluate the admissibility of proposed evidence that is not properly
described. An offer of proof “ ‘must set forth the actual evidence to be
produced and not merely the facts or issues to be addressed and argued
[citation]. The trial court may reject a general or vague offer of proof that
does not specify the testimony to be offered by the proposed witness.’ †(
286, 329; see also People v. Pride
(1992) 3 Cal.4th 195, 237 [absent an offer of proof as to what the testimony
would have been, defendant has not preserved any challenge to its exclusion on
appeal].) There is thus no basis to conclude that the trial court excluded any
particular evidence, much less evidence that was admissible, and still less
that the court’s ruling deprived defendant of his constitutional rights.
Defendant
argues alternatively that his attorney’s failure to provide a proper offer of
proof constituted ineffective assistance of counsel. However, in the absence of
any indication of what evidence the attorney had to offer, and of the
attorney’s reasons for failing to make an offer, we are in no position to say
that his performance amounted to constitutionally inadequate representation.
Moreover, we certainly cannot say “that it is ‘reasonably probable a
determination more favorable to the defendant would have resulted in the
absence of counsel’s failings.’ †(People
v. Stankewitz (1990) 51 Cal.3d 72, 113.) Even if defendant had been able to
produce evidence of another person named “C,†that evidence would not have
negated Green’s positive identification of defendant as the shooter, regardless
of whether he was called “C†or any of the other nicknames that the evidence
showed he used from time to time (e.g. “Young Stank†or “Jewelsâ€).
IV.
The prosecutor did not commit misconduct
in implying that defendant lied when he denied association with the nickname “
Defendant also contends that the
prosecutor committed misconduct because, after successfully preventing him from
identifying the person who went by the nickname “C,†the prosecutor attacked
defendant’s credibility by implying that he falsely denied that his nickname
was “C.â€
“ ‘ “
It is settled that a prosecutor is given wide latitude during argument. The
argument may be vigorous as long as it amounts to fair comment on the evidence,
which can include reasonable inferences, or deductions to be drawn therefrom.†’ â€
(People v. Thomas (2012) 53 Cal.4th
771, 822.) It is up to the jury to decide whether the inference was in fact
reasonable. (People v.
45 Cal.4th 863, 928.)
The
prosecutor stated the following in his closing argument: “Let’s take the Parree
Foster incident. This incident and that San Francisco
incident share some remarkable similarities. Both Parree Foster and Robert
Green knew the defendant for only a short time before this incident: once
before in the case of Green twice before in the case of Foster. [¶] . . .
[¶] Both knew him by a nickname that the defendant says was incorrect:
Stay, in the case of Parree Foster and the defendant has testified, I should
have corrected him. . . . Of course he is not going to correct him.
What good is that going to do you? You can ask Pierre Smith about correcting
somebody when they have got your name wrong or giving a false name when you are
engaged in criminal activity. If someone has got your name wrong and you are
engaged in criminal activity with that person, no sense in correcting.
[¶] . . . [¶] The defendant is possibly identified as the shooter in
both cases. . . . [¶] And the defendant’s response to both
incidents: Mistaken identity. Defendant wants you to believe lightning struck
him twice. It is nonsense. The reality is that the defendant shot both men
under very similar circumstances with the same intent.â€
The
prosecutor’s argument involved no misconduct. The situation here is very
different from that in People v. Frohner
(1976) 65 Cal.App.3d 94, on which defendant relies. In Frohner, the court found that the prosecutor committed misconduct
when he allowed the jury to infer that the defendant purposely failed to call a
witness when in fact the prosecutor had failed to take reasonable efforts to
secure the witness. (Id. at
p. 109.) Here the prosecutor made a proper objection to defendant’s line
of questioning; he was not responsible for the unavailability of any witness or
other evidence defendant sought to produce and he did not misstate the facts.
Defendant had denied that he went by the nickname “C†and he also denied going
by the name “Stay,†which evidence showed he had used at the time of the prior
shooting. The prosecutor’s comment on this evidence was not improper.
V. Cumulative
Prejudice
Having
concluded that the trial court committed only a single error that was not
prejudicial, we reject defendant’s argument that, in combination with the other
rulings that were not erroneous, there was a cumulative prejudicial effect
requiring the reversal of his conviction. (People
v. Bell
(2007) 40 Cal.4th 582, 621.)
VI. Petition
for Writ of Habeas Corpus
Defendant’s
petition is based on numerous grounds. Insofar as the petition alleges
prosecutorial misconduct and ineffective assistance of counsel based on the
prosecutor’s closing argument discussed in section IV, ante, we find no merit to those allegations. Likewise, we find no
merit in the claim that the prosecution committed Brady error (Brady v.
Maryland (1963) 373 U.S. 83) by failing to disclose Green’s “Crime Stopperâ€
reward or engaged in misconduct by arguing at trial that Green “had nothing to
gain†by testifying against defendant. There is no indication in the
allegations of the petition or the supporting exhibits that Green asked for or
was promised the reward or knew prior to trial that he was likely to receive
the reward for his testimony.
However,
the petition is also based on a claim of factual innocence, supported by new
evidence that requires an evidentiary hearing to evaluate its credibility and
significance. An affidavit of codefendant Patrick Smith acknowledges that he
was driving the car that was involved in the incident and that he witnessed the
shooting, and it states that the crime was committed by a man he knew as “Câ€
and defendant is not that man. Smith’s testimony was unavailable at the time of
trial because Smith was then exercising his constitutional privilege not to
testify. Other purportedly newly discovered evidence includes the affidavit of
Yolanda Washington in which she states that she was present in the apartment
when “C†left to pursue Taylor and that “C†is Charles Lynn Dunn, Jr., not
defendant. Also submitted are copies of defendant’s cell phone records
(indicating that defendant was not speaking on his cell phone at a point before
the killing when Green testified the person who shot the victim was speaking on
his cell phone) and a report by Stuchman Forensics Laboratory following its
enhancement of the security video shown at trial (which assertedly shows that
details of Green’s testimony were incorrect). If credited, the new evidence
tends to indicate that defendant is factually innocent of the crime for which
he has been convicted, and thus, establishes a prima facie case for relief. (
v. Duvall (1995) 9 Cal.4th 464, 474.) The
credibility of the new evidence, and its ultimate significance in view of the
other evidence submitted at trial, must be determined by the trial court under
governing habeas corpus standards, following an evidentiary hearing. (See
DISPOSITION
The
judgment is affirmed.
With
respect to the petition for writ of habeas corpus, respondent is directed to
show cause in the trial court why relief should not be granted with respect to
petitioner’s claim of factual innocence based on newly discovered evidence.
(Cal. Rules of Court, rule 8.385(d), (e).) The trial court is directed to
evidentiary hearing and grant or deny relief based on the law and the court’s
determination of the facts.
Stephen B.
Bedrick, defendant’s counsel on appeal and in the proceedings on the petition
for a writ of habeas corpus filed in this court, is appointed to represent
defendant in any further proceedings on the habeas corpus petition. (Cal. Rules
of Court, rule 4.551(c)(2).)
Respondent
shall serve and file its return to the petition in the trial court within 30
days from the date of this order, petitioner may serve and file a traverse
within 30 days thereafter, and the trial court shall hold the required
evidentiary hearing as soon as practicable after the filing of the return and
traverse.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
Throughout these proceedings, defendant has been referred to as Pierre Smith,
although his real name apparently is Pierre Rushing. As the trial testimony
brings out, defendant used a variety of nicknames, such as “Young Stank†and
“Jewels.†An issue discussed post is
whether he was also referred to as “C.â€
name="_ftn2" title="">[2]
Three persons named Smith were involved in the facts of this case. None are
related.
