P. .v Stroman
Filed 6/21/12 P. .v Stroman CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JAJUAN
PHILLIP STROMAN et al.,
Defendants and Appellants.
A127950 & A127996
(Alameda
County
Super. Ct.
No. C150499)
In
these consolidated appeals by defendants Terrance Varner and Jajuan Phillip
Stroman, each claims errors assertedly affecting their joint jury trial
convictions for the second degree murder
of Clarence Ogden (Pen. Code, § § 187, 189), with gun use and arming
allegations, including that each discharged a firearm proximately causing the
death (id., § 12022.53, subd.
(d) (§ 12022.53(d))).
name="_ftnref1" title="">[1] Each was sentenced to an aggregate prison
term of 40 years to life, comprised of 15 to life for the murder (§ 190),
plus 25 to life for the enhancement.
Finding
no prejudicial error, we affirm the judgments.
Background
Overview
The
killing occurred on the evening of March
28, 2004, and most people in the drama had street names. Defendants did not testify. There were variations in the eyewitness
accounts, some evidently due to fear or loyalty, but the overall picture is
that 18-year-old Ogden (“Little Câ€) verbally accosted Stroman (“Wookieâ€) at an Oakland
street gathering by stepping into a tiff between
Stroman and former girlfriend Seneca Casteele (“Slimâ€). Stroman left in his burgundy Oldsmobile,
picked up Varner (“Tâ€), who had a gun for each of them, returned with Varner in
the car, and caught up with Ogden
as he ran from a car in which he rode with Casteele and her friends. In front of dozens of people, defendants then
got out, confronted Ogden and, as
he fled from them, each shot him once in the back, killing him.
22d Street as it rises from 23d
Avenue to a crest and descends to 21st
Avenue. It
is an area of drug dealing, and alcohol and drug use. People commonly hang out at the crest, at a
small housing authority complex and street-side parking lot. Several women, including Casteele and friends
Asia Allen (“Angelâ€) and Sumayyah Grey were out by Grey’s car, parked in the
lot. People from a barbeque at a house
across from the lot were out in front, as were others. It was Sunday, and Ogden
was on a weekend pass from a juvenile
facility, Camp Sweeney,
at the barbeque with friends. Ogden’s
longtime friend Lawrence Nero, still a minor, had been released from custody
the week before and was out riding in Stroman’s four-door Oldsmobile, drinking
and using drugs with defendants. He was
Varner’s cousin and had known Stroman for six years.
wounds, neither fired close enough to leave powder burns. The order of infliction was not determined,
but we identify them as shots one and two for ease of discussion.
Shot
one entered the left back, over six inches from the spine and 14 inches below
the shoulder, passed a bit downward, and made a one-eighth-inch hole in the
aorta before exiting near the armpit on that side. Shot two entered the right back over four
inches from the spine and seven below the shoulder, hit no vital structures,
just soft tissue and muscle, and had no exit wound. The bullet was removed during hospital
treatment. Shot one made a round hole
and a pathway three-eighths of an inch at its widest. Shot two made an ovoid entrance hole about
one-half by three-eighths of an inch.
The wounds did not allow typing of the weapon, weapons or caliber, but a
larger hole can indicate a larger caliber.
The same gun could leave both circular and ovoid holes.
A
third wound was a “grazing†one along the front of Ogden’s
left upper arm or shoulder. It did not
penetrate the skin and could have been caused by the bullet from shot one as it
exited near the armpit.
The
cause of death was internal hemorrhage from multiple
through the aorta, which could have caused death by itself. The second wound probably would not have
caused death by itself, but passed through the body and “did contribute to the
individual dying.†The combination of
the two wounds together is what caused Ogden’s
death.
The
bullet recovered from Ogden’s body
was .25 caliber full metal jacket bullet, and a .25-caliber metal casing found
at the shooting scene was, according to a police sergeant, from a
semi-automatic weapon, not a revolver, and a ballistics expert could not say
whether the recovered bullet and casing were related.
No weapons were recovered.
Department (OPD) led to Casteele and Allen, who were interviewed early the next
morning, and then Carl (“Ray-Rayâ€) Anthony, all implicating Stroman and
Varner. Months later, information from
DeAngelo Hudson led to Nero, who was interviewed and initially arrested as an
accessory.
Varner
was apprehended in October 2004, after he was found living in Kentucky
under an assumed name. Stroman was
discovered in March 2005 in Sacramento,
jailed under a false name.
and Statements Highlighted on Appeal
This
case took years to get to trial, and three eyewitness accounts particularly
bound up in the issues on these appeals were by people who, in the prosecutor’s
words, had opted to “go sideways.†By
this she meant that, having once given statements or testimony implicating
defendants, witnesses changed their stories or claimed no memory when it came
time to testify at a trial in front of defendants and others. We set out in some detail the highlighted
accounts from Nero, Hudson, and Anthony.
Lawrence Nero had been a friend of Ogden’s
for years, hung out with him all the time and, at age 17 on the night Ogden
died, was near his age. In October 2004,
seven months after the homicide, Nero was arrested by OPD officers as an
accessory (§ 32),
gave a Mirandized statement,
and testified at defendants’ preliminary hearing in July 2005, five months into
a year-long youth authority commitment for drug possession. By the time
of trial, he stood convicted but not yet sentenced for a San
Francisco drug offense. He said he did not want to testify at all,
but did cooperate in giving general facts leading to the homicide. He was Varner’s cousin, knew Stroman, and
spent the day hanging out with sometimes one and sometimes both of them,
driving around in Stroman’s burgundy Oldsmobile. They were “into heavy narcotics,†and all
three drank “Remy†and used marijuana and Ecstasy throughout the day.
Nero
knew that Stroman had dated Slim (Casteele), and on a drive down East 22nd
Street past her, with Nero in the car, Stroman got into an argument with
her. Then when Ogden
came up to the car and Stroman got out, those two got into a commotion that
turned loud and threatening enough that Nero got out, got between the men, and
pushed them apart. Ogden
told Stroman, “ ‘Get the fuck up out of here,’ †and tried to get
around Nero, telling Stroman to get out or else, as Casteele spewed aggressive
words at Stroman. Stroman told Nero,
“ ‘Come on,’ †and they both got back into the car (Nero in the front
passenger seat) and drove away as Casteele stood on the curb. There had been a lot of onlookers, but Nero
did not recall anyone else trying to halt the confrontation. They drove to 25th and parked near where
Nero’s grandmother lived. Varner was
standing there and, asked by Stroman to get in, took the backseat. Stroman then told Varner what had happened
and said something about Ogden
“ ‘talking shit.’ â€
At
this point in his narrative, whereas he had previously said Varner left the car
and returned with two guns, Nero started denying things or claiming lack of
memory. But confronted with his prior
statements, Nero conceded that Varner got the guns from behind some apartments,
returned with them to the backseat, and passed a .25 automatic over to
Stroman. Nero was not given one. Nero also conceded that the second gun, which
Varner kept, was a chrome revolver, and said they went back to East
22nd Street.
As to what happened next, however, Nero replied “I don’t know†or “I
don’t recall†to virtually every question put to him. The prosecutor moved without objection to
play Nero’s October 2004 police statement to the jury, and jurors were provided
transcripts.
In
his police interview, Nero had related an argument between Stroman and Casteele
on an earlier drive down East 22nd Street, and that Stroman went back after he
phoned Casteele and she started “talking mess to him on the phone.†It was on the return trip that Ogden
got involved, and this was after Stroman got out of the car and started arguing
with Casteele. After Nero broke up that
confrontation, they “went and got T,†who got the guns, and they went back a
third time.
On
the third trip, Nero had related, he remained in the front passenger seat
and saw Ogden, Casteele and
two other African American women pull away in a car. Stroman followed for two or three blocks, and
back again, until the car pulled over near the top of the hill on East
22nd Street and Ogden
got out, unarmed. Stroman stopped his
car a bit behind, and Varner got out, gun in hand, grabbed Ogden
and had him against a parked car.
Stroman arrived on foot seven seconds later and shot Ogden
once with the automatic, hitting him in the side. As Ogden
ran off, Varner shot with the revolver some 10 feet away from Ogden, but Ogden
kept running. Defendants ran back to the
car, and Stroman kept going toward the car when someone walked up, confronted
and started talking to him (out of Nero’s hearing). Defendants jumped in, both saying the guy had
a gun, and they all drove away together.
Nero had stayed in the car but saw the shootings through the window from
his place in the front passenger seat, about 30 feet away. He only heard the two guns that defendants
fired, and he saw no weapons on Ogden. Nero himself never had or shot a gun. As they drove off, Stroman phoned some female
and was “cussing her out,†calling her a stupid bitch. Defendants dropped Nero off at remote
intersection, and he never saw what happened to the guns.
After
the playing of the tape, Nero would not answer whether he recognized his voice
on it, and the court declared the evening recess. The next day, when Nero refused to answer any
questions, the court and all counsel agreed out of the jury’s presence that
Nero needed to have counsel present, and the court took under advisement a
defense motion to strike his testimony and a prosecution motion to find him
unavailable so that his preliminary hearing testimony could be read.
Those
motions became moot when, appearing with his own counsel, Nero agreed to
cooperate. It turned out, however, that
his cooperation did not mean he ultimately adhered to everything he said in his
police statement. On further direct
examination, he identified diagrams and pictures of a gray car as being the one
he saw Ogden pinned against, but then he began backpedaling by saying that,
when he spoke with police and district attorney personnel, he did so “to get
you out of my face†and said he was not happy having to testify, particularly
against his cousin in front of family.
Then he told the prosecutor he did not recall whether Stroman got on the
phone after the shooting and did not think he said on the tape that he saw
defendants shoot Ogden.
On
cross- and redirect examination, Nero stressed that he had been drinking and
using drugs the day of the killing, and repeatedly said he went along with some
things he was asked (or told) in his police interview in order to get out of
the station or end the interview. In the
end, several main points of retraction, despite contrary interview answers,
were that: (1) he only heard shots
being fired and never saw the shots
being fired; (2) he lied when he said he saw either defendant fire a gun; (3) he
could not see the action at the
parked gray car, beyond knowing that defendants were with Ogden, because the
gray car itself blocked his view; and yet (4) he could see that Ogden was just
leaning back on the car, albeit with Varner’s hand on his shoulder, and was not
being grabbed or restrained.
hearing in July 2005 implicated both defendants in the shooting. But when called to testify at trial, he was
in custody awaiting his own trial for a 2007 homicide and, in part because he
feared that his answers in this trial could incriminate him in his own case,
invoked his Fifth Amendment privilege.
After a closed session with only Hudson and his counsel to explore
further reasons for Hudson not testifying, the court excused Hudson altogether
and allowed his preliminary hearing testimony to be read to the jury. (See pt. III, post.)
Hudson
was outside his girlfriend’s house atop the hill on East
22nd Street, next door to the barbecue Ogden
attended, and saw the events leading to the death of Ogden,
his friend. Stroman drove by in his
burgundy Oldsmobile, and Hudson flagged him down and spoke briefly with him at
the window about wanting to buy some marijuana.
Varner was in the front passenger seat and another man was in the
back. As Stroman drove off, Casteele
flagged him down from across the street, and Stroman made a U-turn back. Hudson was walking back up the hill and not
paying much attention, but saw Casteele walk to within about 13 feet of the
passenger side of the car for a couple of minutes, with Ogden present but
further back. Hudson
then saw Ogden, seemingly drunk and
holding a two-liter soda bottle, walk up to the driver side of Stroman’s car
and tell Stroman, “ ‘Don’t mess with them boosie ass niggas.’ †Hudson and others walked a bit nearer to the
encounter, Hudson worried about Ogden starting something while drunk. Stroman told Ogden
to get away, and his passengers got out and walked around toward Ogden, who
backed off. Stroman then got out, too,
and the three had Ogden
surrounded. Stroman drove off with his
passengers and turned left on 21st Avenue,
and as Hudson walked back up the
hill, Grey drove off with Ogden in
her long, “gold-ish†four door car.
Among the bystanders Hudson
saw were Ronald, Anthony (“Ray-Rayâ€), and Jerome Robinson (“Romeâ€).
Hudson
was alerted to the final encounter when, back with his girlfriend on the front
porch at her house, a man ran up the stairs and said, “they about to jump
him.†Walking down the street, Hudson
saw Ogden, about two houses to the left, toward 23rd Avenue, backed against a
parked gray car, with both defendants “up on him.†Ogden
had his hands to his side at hip level, and Hudson
saw nothing in them. Ogden
was moving his shoulders as if trying to get away from the car. When Ogden
broke free by pushing between defendants and starting to run, Stroman yelled
“ ‘Get him,’ †and Varner shot Ogden
once in the back at arm’s length. Then
Stroman fired a second shot, hitting Ogden
in the shoulder (where Hudson saw a
blood spot on his white T-shirt). Hudson
did not actually see guns but heard the shots, saw flashes from the end of each
defendant’s extended arms, and saw Ogden’s body jerk from the impacts. Ogden
ran off toward 23rd Avenue. Defendants walked down the sidewalk, the
other way, after Hudson heard a
man’s voice saying, “ ‘You shouldn’t have did that shit up
here.’ †Hudson ran after Ogden to
23rd Avenue, turned right and, after yelling out for Ogden, found him lying
midblock on the sidewalk with a woman kneeling over him. Hudson
called 9-1-1.
another longtime friend of Ogden’s,
was outside drinking and hanging out with Ogden and others on East
22nd Street, on the hill, when the events took
place. He gave a taped statement to
police the next morning that closely tracked Hudson’s
account, implicating both defendants. He
knew Stroman (“Wookieâ€) well, knew the car he drove (a 1986 four-door, burgundy
Oldsmobile Cutlass Ciera), knew Stroman’s companion Varner as “T,†and knew
Casteele (“Slimâ€) as a woman Stroman had been “dealin’ with.â€
Casteele
had arrived on the hill with friends Sumayyah Grey and Asia Allen (“Angelâ€) in
Grey’s car, and Anthony first noticed Casteele arguing with Stroman over her
phone. Then five minutes later, Stroman
came “stompin’ †(“drivin’ hella crazyâ€) over the hill and did this twice
more, drawing the crowd’s attention and the third time evoking cussing and loud
yelling (“You, you bitchâ€) from the trio of women gathered near Grey’s
car. Stroman had Varner and a third man
in his car; Anthony had seen the third man other times but did not know him
beyond that.
On
the third pass, all three men in the Oldsmobile hopped out, and Anthony could
hear Stroman arguing with Ogden—“like, ‘man, you shouldn’t of came at
. . .’ like, ‘you should, got me messes up, [sic] you shouldn’t be talkin’ to me like that.’ †Robinson was passing by in a car at that
moment and told them: “Man, be
cool. Y’all squash that shit.†Stroman and his companions “bounce[d]†(rode
off), as did Robinson, and as the three women were getting into Grey’s car to
leave, Ogden asked them for a ride
around the corner and hopped into the backseat.
Then
as Grey’s car pulled away, Stroman followed close behind, and Anthony could see
that the same three men were in the car as when he first saw it, except that
Varner, not the third man, was in the front seat. When Grey’s car doubled back and let Ogden
out near a burnt building, Stroman and Varner got out of their car and
confronted him, running up and putting a gun in his face, pushing him up
against a car, and saying “I’ll smoke your bitch ass.†Stroman had a chrome gun and Varner a black
one—each described by Anthony as a “revolver.â€
Defendants were then briefly distracted as “some OG dude†Anthony did
not know tried to stop them. He came
into the street and tried to calm things down, urging, “ ‘Y’all can’t do
this. Don’t do this on my spot’ â€;
and “ ‘Man, y’all gotta quit all that bullshit! Don’t do this on my spot.’ †Ogden
used the diversion to spin[] off†and make a run for it, but as he did, Stroman
yelled “ ‘Hit him!’ †Anthony
heard “BAM!†as Varner fired first, dropping his cell phone and sweatshirt, and
then Stroman fired, each hitting Ogden
in the back. Ogden
did not have a weapon. Anthony and a
crowd of people headed off down the hill to 23rd
Avenue, where Ogden
had run, and found him lying on the ground.
When
it came time to testify at trial, however, Anthony claimed in extensive
questioning that he had no memory of giving the statement or of the
participants and events and of that night—beyond seeing his friend dead. He was further questioned about the statement
after it was read into the record (see pt. IV, post).
and, to use the prosecutor’s term, “sideways,†that it was almost worthless
beyond laying a foundation for admitting her preliminary hearing
testimony. She claimed to have been
drunk and drug addled, to not recall any significant events of that night or
her own statements about them, and to have previously said things just to end
questioning. She would “plead the Fifthâ€
to questions that posed no conceivable risk of
to answer. She did recount, however, going
with Grey, and best friend and roommate Allen, to the apartment of friend
Sabrina on the hill that day, to having a post-breakup relationship with
Stroman characterized by continued phone calls but cussing and trying to
publicly humiliate each other almost every time they met, and yet, at the time
of trial, still loving Stroman “for the person he is,†and not wanting to say
anything to get him in trouble.
Her
preliminary hearing account was this.
She, Allen and Grey drove in Grey’s goldish-brown Pontiac Catalina and
parked in the lot outside Sabrina’s apartment after stopping for alcohol at
Booker’s, a liquor store, and she saw Ogden for the first time that day. Stroman pulled up to the crowd with Varner in
his car, and Allen joked to Casteele, “There go your stalker.†When Stroman noticed Casteele there, he
shouted out his window, “[Y]ou fucking ripper!†and she ran out into the street
to hurl her own insults, “disrespecting him†back. Sure he did not hear her because he had
already sped away, she yelled after him:
“[F]uck you, you bitch-ass nigga!
Get up outta here. You looking
hella boosey in front of yo’ friends!â€
(By “boosey,†Casteele meant “not cool.â€) She then ducked into the backseat of Grey’s
car, correctly anticipating another go-round.
She hid there as Stroman drove up and down the street several times,
“pedal . . . to the floor,†shouting out for her to quit phoning him
(which she was not doing). Then he got
out (wearing blue jeans, a white T-shirt, and black-and-white cap) and found
her in the backseat. She got out, and
they argued back and forth, Allen trying to intervene. Then as Stroman stormed back toward his car,
he became engaged in an argument with Ogden, who followed him to the car to
carry on at his driver’s window (Casteele unable to hear what was said). That ended when Stroman said “All right,†and
“smashed down the block†toward East 21st Avenue.
Figuring
the drama was over, Casteele, Allen, Grey and Ogden
all got into the Pontiac to go get
some more liquor, and Grey drove them toward East 23rd
Avenue. But
a short distance away, they realized that Stroman was following them. There was some phone contact between Stroman
and Casteele during the pursuit. They
drove fast, hitting speed bumps and curbs, and Grey, sensing that this was
about Ogden, announced that she was circling back to East 22nd Street to let
him out. She did so near a burned-down
house, and Ogden got out on the
curb side and walked on the sidewalk, unarmed.
As Ogden got out, Stroman
pulled his car in front of them, and Varner “bounced out†and went toward Ogden
with a revolver, the gun stifling Casteele’s initial idea to get out, too.
What
followed in Casteele’s version roughly tracked what other witnesses said
except—inferably due to her loyalty and feelings toward the ex-boyfriend—that
Stroman never left the car and Varner fired three
to four shots at Ogden. Watching from a distance of about 10 to 15
feet out the back window of Grey’s car, she saw Varner go up to Ogden,
have words with him, and Ogden try
to get past him. Within 15 to 20 seconds
of Varner leaving the car, she saw him raise his hand with the revolver and
fire once at Ogden, at “body to
body†range. That shot must have hit him
in the shoulder, she figured, because Ogden
“spint around†and ran off. After some
seconds, as if confused or hesitating, Varner fired two or three more times at Ogden’s
back. Varner looked up and made eye
contact with Casteele, who yelled at him out her window: “[Y]’all hella scandalous.
. . . Y’all hella boosey. I ain’t fucking witch y’all no more. Y’all ain’t cool.â€
Varner
got back in Stroman’s car, in the right front seat, and the car drove off. Within seconds, Casteele got a phone
call. She related: “He was like, bitch, it’s like that? You riding with them niggas? And I was like, um, don’t come at me like
that. You got me fucked up. Don’t call my phone no more. You ain’t cool.†Some guy in “long dreads,†hearing her, asked
if that was “Wook,†then took her phone and called, essentially seconding the
idea that Stroman was out of line.
Casteele got further messages from Stroman that night but did not return
his calls. The next morning, she shared
this one with an OPD sergeant:
“ ‘Damn, so nigga it’s like that blood? You not gonna even gonna return my phone
calls? It’s bad enough you running
around this motherfucker trying to get a nigga sent to jail for life
. . . you need to call my phone back, or just tell me you don’t give
a fuck. Call me when you get this
message.’ â€
testified at length, repeatedly claiming no memory of her preliminary hearing
testimony, but demonstrating an apparently good memory of many events. She prepared for trial by listening to a tape
of her interview with OPD Sergeant Jones from the day after the killing, and
said the tape refreshed her memory, but she said she lied to Jones on two
points and gave some answers that were not actual memories, just assumptions
Jones made in his questions. Jones, she
said, would leave the room (before taping) and return saying he felt she was
lying because of something another witness at the station had just told
him. Allen was also a reluctant witness,
reporting negative repercussions from giving prior testimony in another case,
and she had gotten to know, and now “loved,†three members of Stroman’s family
who were present in court. No appellate
issues focus on Allen’s testimony, and it is enough to note some unsettled
parts of her account.
Allen
recalled driving around with Casteele and Grey that afternoon, smoking
marijuana, splitting a fifth of Remy Martin they bought at Booker’s, and
arriving after nightfall at the lot outside her best friend Sabrina’s apartment
on the East 22nd Street hill. She knew
Stroman as the boyfriend of her roommate, Casteele, and saw Ogden
for the first time that night.
Allen
first saw Stroman when he drove fast up and down the hill a few times as she
stood talking with Casteele. Then on one
pass, Stroman called out “ripper ass bitch†(“ripper†meaning someone who has
sex with a lot of guys), and Casteele retorted, “bitch ass nigger.†This was not an unusual exchange for the
couple, in Allen’s experience, and she could not see whether there was anyone
else in Stroman’s car.
Eventually,
and maybe on a separate drive by, Stroman left his car in the street, got out
and came over to Casteele in the parking lot where the women stood. Stroman and Casteele exchanged more words,
another typical argument in Allen’s view, but when Stroman said something about
hitting Casteele, Allen stepped in and told Stroman that, if he hit her
partner, she “was going to take off on him†(meaning hit him or beat him
up). The triggering taunt was: “ ‘Bitch, you lucky you still walking
around. Bitch, I gave you a pass. You lucky I ain’t beat your ass yet.’ â€
It
was during this second argument between the couple that Allen first noticed Ogden. He came into the parking lot asking everyone,
without luck: “Anybody seen my
drink? It was in a two-liter bottle. Anyone see my drink?†Stroman went back to his car, without further
argument, and Allen next saw Ogden
standing out in the street, bent over at Stroman’s car, talking with him
through the window. From the parking
lot, she could not hear the conversation, but it did not look quarrelsome to her,
and was not attracting anyone’s attention.
Casteele was upset from the argument, and Allen tried to calm her
down. Stroman eventually drove away. Allen still had not seen anyone else in the
car with him. It was pretty dark out;
she had not really paid attention to the car; and she could not have seen into
it anyway.
Like
Casteele, Allen recounted the three women piling into Grey’s car with Ogden and
pulling away toward East 23rd Avenue, intent on buying more liquor, but
aborting the plan and going back to East 22nd Street after they realized they
were being followed. Despite prior
statements that it was “Wookie’s car,†Allen would not commit at trial to the
car being Stroman’s, explaining that she could only see headlights and had only
repeated what Sergeant Brown told her it was.
Grey
pulled the car to a stop in the street, halfway down the hill on the East
23rd Avenue side of East
22nd Street.
This was near the burned-out house, and gray and red cars were parked at
the curb. The pursuing car pulled to a
stop right behind theirs (not in front).
Ogden got out from the front seat and walked further downhill to the
sidewalk beyond the parked cars, and Allen, looking back through the rear
window from her rear passenger seat toward the headlights, saw a “shadow†exit
the passenger side of the other car, leave the door open, and walk to Ogden on
the sidewalk, where the figures were still shadows. She could not make out a face, but the new
figure was bigger than Ogden’s. The figures stood higher than the parked cars
they were behind. They faced one
another, as if conversing, but out of her hearing. Ogden
held his hands up and out to his sides and was backed against a parked car, and
the other figure leaned into him with one forearm across Ogden’s
chest and something shiny in the other hand.
Upon
seeing a spark and hearing a shot, Allen ducked her head down, heard about four
shots in all, and lifted her head to see Ogden turning to run down the
hill. That was her trial account, but
she had stressed in prior testimony that she heard only two shots. Prior testimony
about the gun being a revolver, she
urged at trial, was an idea planted by Sergeant Jones during the early
interview. She said she never saw a gun
as such, only inferred its existence from the shiny, silver object, sparks and
sounds. Ogden
kept running downhill, across the street and around the corner, and the
pursuing car left. Allen was not aware
until much later that Ogden was
fatally shot.
Allen
eventually left the car and walked with Casteele further down the hill. Near the bottom of the hill, Casteele got a
phone call, and Allen heard her say, “ ‘You hella boosey for what you
did.’ †Allen identified Jerome
Robinson (“Romeâ€) as a man in long
dreadlocks who wound up talking on Casteele’s phone afterward. He had been sitting on a porch or stairs near
the bottom of the hill. Casteele claimed
she did not hear what he said and did not know who had called her.
In
the end, while Allen corroborated much of other witnesses’ accounts in many
particulars, she said she did not see either defendant with guns or at the
shooting, and did not know if the shooter’s car was Stroman’s. She did say, however, that the figure that
left that car did not match the body shape of Stroman, who was quite thin at
the time.
of her neighbor’s house around 10:30 p.m.
that night, near the East 23rd Avenue
end of the street, when she saw a brown car with “a lot of girls†come down the
street and pass by headed uphill. Then
just 20 feet to her right, she saw a really thin man in a white shirt and blue
jeans get out on the passenger side and run, first up and then back down the
hill as a red or burgundy four-door car came and stopped ahead of the brown car. Mata did not know any of the people in either
car but saw four men in the burgundy car—including a tall and slim one with a
red hat, white shirt and jeans—get out and surround or encircle the man from
the other car. A tree partly blocked her
view, but Mata could hear the one in the red baseball hat say loudly,
“ ‘Why are you talking kind of shit about me?’ †raise a black gun
with “a wheel†in the middle to the other’s temple, and punch him. Then as Mata turned and went up the
neighbor’s stairs to hide, she heard one shot and then, two seconds later,
another. From the window, she saw the
man without the hat run toward East 23rd Avenue. She did not see who did the shooting.
Discussion
I. Aider
and Abettor Instruction
“The
mental state necessary for conviction as an aider and abettor . . .
is different from the mental state necessary for conviction as the actual
perpetrator. [¶] The actual
perpetrator must have whatever mental state is required for each crime charged
. . . . An aider and
abettor, on the other hand, must ‘act with knowledge of the criminal purpose of
the perpetrator and with an intent or
purpose either of committing, or of encouraging or facilitating commission of,
the offense.’ [Citation.]†(People
v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123.) Also, “an aider and abettor’s liability for
criminal conduct is of two kinds. First,
an aider and abettor with the necessary mental state is guilty of the intended
crime. Second, under the natural and
probable consequences [(NPC)] doctrine, an aider and abettor is guilty not only
of the intended crime, but also ‘for any other offense that was a “natural and
probable consequence†of the crime aided and abetted.’ [Citation.]â€
(People v. McCoy (2001) 25
Cal.4th 1111, 1117 (McCoy).)
The
jury here was instructed on aiding and abetting without the NPC doctrine, and Varner claims prejudicial error in
two respects. First, he contends that
telling jurors that “[e]ach principal, regardless of the extent or manner of
participation is equally guiltyâ€
(CALJIC No. 3.00, italics added) incorrectly kept them from finding him guilty
of manslaughter rather than Stroman’s crime of second degree murder. Second, he contends that jurors were
improperly allowed to find him guilty of second degree murder by sharing
Stroman’s implied malice—i.e., subjective awareness of the dangerousness of
Stroman’s acts. Finding no prejudice
from either such claimed error, we do not decide whether, as the Attorney
General argues, there was no such error, or that any error was invited by the
defense or forfeited by defense failure to request more complete instruction.
A. “Equally
Guiltyâ€
The
“equally guilty†language of standard instructions has been under siege since
our Supreme Court held as to non-NPC cases, a decade ago in
“The statement that an aider and abettor may not be guilty of a greater
offense than the direct perpetrator, although sometimes true in individual
cases, is not universally correct. Aider
and abettor liability is premised on the combined acts of all the principals,
but on the aider and abettor’s own mens rea.
If [that mens rea] is more culpable than the actual perpetrator’s, the
aider and abettor may be guilty of a more serious crime than the actual perpetrator.†(McCoy,
supra, 25 Cal.4th at p. 1120.) In the wake of McCoy, Court of Appeal decisions have held that the aider and
abettor of a homicide-related offense may also be guilty of a lesser offense
than the direct perpetrator. (
181 Cal.App.4th 504, 507, 513-518; People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1163-1164.) As a result of these developments, CALJIC No.
3.00 has been modified to propose substituting “guilty of a crime†for “equally
guilty†in cases where confusion might arise (CALJIC No. 3.00 (2011 ed.)
& Use Note), and the counterpart standard instruction, CALCRIM No. 4.00
(2011 ed.), has abandoned the words “equally guilty†altogether.
B. “Implied
Malice†Murder
The
other strand of Varner’s argument, as clarified in his reply brief, is that the
instructions on aiding and abetting and second degree (implied malice) murder
together misdirected the jury that it could find him guilty of aiding and
abetting implied-malice murder where the NPC doctrine was not used—a “legal
impossibility†in his view. We need not
burden this opinion with his full reasoning in this regard, for we may reject
the claim for lack of prejudice.
C. Prejudice
As
already indicated, we assume for argument’s sake that it was error to include
the “equally guilty†language and that the instructions given allowed the jury
to improperly find aiding and abetting of implied malice murder. We further assume for argument’s sake that
these issues were not invited or otherwise forfeited by Varner for purposes of
appeal and that they implicated federal constitutional rights meriting review
under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. Using, further, the most stringent test of
prejudice advocated by Varner, we conclude beyond a reasonable doubt that the
errors did not contribute to the verdict.
(People v. Chun (2009)
45 Cal.4th 1172, 1201.)
Varner’s
theory of prejudice is that testimonial variation about how many shots were
fired and whether he himself fired at Ogden allowed the jury to decide that he
did not directly perpetrate the murder but, rather, aided and abetted by
getting the guns and giving one to Stroman, and that the jury improperly found
him guilty without assessing his own intent as an aider and abettor.
The
problem with his hypothesis is that the jury, beyond finding him guilty of
second degree murder, also found true enhancements that, during the crime, he
personally and intentionally discharged a firearm (§ 12022.53, subd. (c)),
and did so proximately causing Ogden’s
death (§ 12022.53(d)). On the
evidence, the jury cannot have relied on aiding and abetting to return those
enhancement findings,
name="_ftnref3" title="">[3]
and thus no error in the aiding and abetting instructions could have affected
the verdict.
Relying
on People v. Bland (2002) 28 Cal.4th
313 (Bland), Varner insists that the
jury did not necessarily find that he
shot Ogden, only that he intentionally fired a gun, missed, but nevertheless
proximately caused Ogden’s death by “setting in motion†events that led to
Stroman and perhaps a third shooter who actually wounded and killed Ogden. The hypothesis is untenable on this record.
12022.53(d), while requiring that a defendant intentionally and personally
discharge the firearm, does not require that he personally inflict great bodily injury or death, only that he
supra, 28 Cal.4th at
pp. 333-336.) Thus “[a] person can
proximately cause a gunshot injury without personally firing the weapon that
discharged the harm-inflicting bullet,†as where two persons engage in a gun
battle, killing an innocent bystander. (
also declared a sua sponte duty to instruct on the meaning of
CALJIC No. 17.19.5: “ ‘A
proximate cause of great bodily injury or death is an act or omission that
produces as a direct, natural and probable consequence of the act or
omission the great bodily injury or death and without which the great bodily
injury or death would not have occurred.’ †(Id.
at p. 335, italics added.)
But
the main obstacle for Varner is that, as discussed in the next section of this
opinion (pt. II, post), this jury was
never instructed on the meaning of proximate cause and thus had no reason to
think Varner could have “proximately caused†Ogden’s death by merely setting in
motion events that produced Ogden’s death as a direct, natural and probable
consequence. Proximate cause is not a
commonly understood term. It has “a
meaning peculiar to the law†(Bland,
when it is not defined for jurors:
“[J]urors ‘may misunderstand its meaning or improperly
constitutes a cause in fact.’
[Citation.] . . . The
correct definition of proximate causation is broader, not narrower, than jurors might assume.†(Id.
at p. 338.) There is no reason to
think, on the evidence and presentation in this case, that the jury understood
that section 12022.53(d) could require anything less than personal infliction
of the harm. The possibility was never
suggested in jury arguments, and the jury never asked questions about it.
II. Instruction
on “Proximate Causeâ€
Instruction
on the section 12022.53(d) enhancement, modeled on CALJIC No. 17.19.5, was
in part as follows (italics added): “It
is alleged in Count 1 that the defendant intentionally and personally
discharged a firearm and proximately caused great bodily injury or death to a
person other than an accomplice during the commission of the crime
charged. [¶] If you find the
defendant guilty, you must determine whether the defendant intentionally and
personally discharged a firearm and proximately
caused great bodily injury or death to Clarence Ogden.†As already noted (pt. I, ante), no definition of proximate cause was given. This was error under Bland, which declared a sua sponte duty to give one. (Bland,
supra, 28 Cal.4th at
pp. 334-336.)
Both
defendants complain of the error. Each
claims prejudice, but we find none. As
prejudice there “under any standard,†lack of the instruction generally leads
jurors to a more limited view of
proximate cause than the law allows.
“[J]urors who improperly limit
their discussion of what constitutes proximate cause will not find causation
where it does not exist. The correct
definition of proximate causation is broader,
not narrower, than jurors might assume.
In a criminal case, we noted that ‘in Mitchell [v. Gonzales
(1991) 54 Cal.3d 1041] we criticized the [former proximate cause instruction]
as placing undue emphasis on physical or temporal nearness. [Citation.]
Thus, . . . any such confusion on the jury’s part could only
benefit defendant.’ [Citations.]†(Bland,
supra, 28 Cal.4th at p. 338.) That appears to be the case here.
concurrent causes in appropriate cases, a proper charge being: “ ‘There may be more than one cause of
the [great bodily injury or death]. When
the conduct of two or more persons contributes concurrently as a cause of the
[great bodily injury or death], the conduct of each is a cause of the [great
bodily injury or death] if that conduct was also a substantial factor
contributing to the result.’ †(
Absence of concurrent-cause instruction in this case caused no
conceivable harm. Even if we assume in
Varner’s favor that the jury had doubt about which defendant fired which of the
two shots that killed Ogden, the undisputed testimony was that Ogden died of
internal hemorrhage from multiple
gunshot wounds and that even the less serious of the two passed through Ogden’s
body and “did contribute to [him] dying.â€
The two shots together are
what caused his death.
III. Preliminary
Hearing Testimony by Hudson
DeAngelo
Hudson was subpoenaed by the People to testify but never got to the witness
stand. He had testified at the July 2005
preliminary hearing in this case (as set out in the background facts of this
opinion), but was now in jail on a murder charge for a 2007 homicide, having
had his own preliminary hearing but, as yet, no trial. His counsel, Jason Clay, advised that Hudson
would refuse to testify, on grounds of Fifth Amendment privilege, as to matters
that could incriminate him in his new case, and initial input from both defense
counsel was that they would want to impeach Hudson with the new charge but were
content to do so with the charge itself, not the facts underlying it. The court, however, said it was concerned,
first, whether Hudson had valid
claims of privilege, something on which he would need to be examined.
A. Hearing
and Rulings
The
matter next arose when Hudson was
called by the People. He was sworn
outside the jury’s presence and, through counsel, immediately invoked his right
to remain silent. Counsel Clay explained
that, the pending charge being a crime of moral turpitude, it could be used to
impeach Hudson, adding: “Furthermore,
there are allegations related to the homicide that Mr. Hudson was or is or at
the time was involved in some sort of drug transactions, sales, possession for
sale of narcotics, which also is a crime of moral turpitude, which could be
inquired into on cross-examination, and which is related to the circumstances
surrounding a possible motive for the homicide in Mr. Hudson’s own case.†Asked by the court if there were other
questions to which Hudson would
need to assert privilege, beyond those about the pending charge, counsel
added: “No. However, Mr. Hudson, for reasons which were
discussed in chambers and which I would not like to discuss in open court,
would not answer any questions related to this current case.†Prosecutor Connie Campbell reluctantly agreed
that the defense would have a right to inquire into the facts underlying Hudson’s pending charge for “
(presumably People v. Wheeler (1992)
4 Cal.4th 284) but asked that, if the court upheld the claim of privilege,
it declare Hudson to be an unavailable witness.
That
motion and the anticipated prospect that Hudson’s preliminary hearing testimony
would be read under Evidence Code section 1291, subdivision (a)(2), spurred
defense of confrontation right violations should Hudson not testify. The court, identifying issues of Fifth
Amendment privilege, impeachment, contempt of court for refusal to testify
(Pen. Code, § 166, subd.
(a)), and “other grounds . . . alluded to on the record,â€
stated: “I need to go in-camera so that
counsel can recite on the record those areas in which there are concerns, so I
can make a full and informed decision as to the privilege and [Hudson’s]
assertion not to answer any questions let alone any questions pertaining to his
pending matter.†The court then went
into closed session with Hudson and his attorney, and the reporter’s transcript
of that session has been transmitted to this court under seal for our
confidential review.
Emerging
from closed session, the court ruled: “I
do find that Mr. Hudson has met his burden pursuant to Evidence Code section
404, and . . . that he is asserting his right [against]
self-incrimination pursuant to Evidence Code section 940, and that counsel will
not be able to ask any questions regarding his pending homicide.â€
grounds of Hudson’s refusal to
answer questions and had advised him of contempt consequences. “[A]nd in spite of that information, he
continues to refuse to answer any questions.
[¶] Therefore,
I do find him unavailable pursuant to Evidence Code section 240, subdivision
(a), and keeping in mind the case of Keller
[In re Keller (1975)] 49 Cal.App.3d
663, I further find that to pursue contempt charges may be without consequence
and therefore further grounds to find the witness unavailable pursuant to
Evidence Code section 240, subdivision (a)[(1)].†The court excused Hudson
and invited counsel to make a further record of their objections.
Defendants
reiterated their Crawford
objection. Prosecutor Campbell noted
that counsel for each defendant had, and acted upon, an opportunity to
cross-examine Hudson at the preliminary hearing, but defense counsel stressed
that Hudson’s absence would deprive them of the chance to (1) question him
about his current murder charge, and (2) question him further about
motivations for testifying at the preliminary hearing, particularly a
then-pending drug charge for which he was later convicted. Much of this concern evaporated, however,
with the prosecutor’s offer to stipulate for the jury the current murder
charge, the earlier-pending drug charge (Health & Saf. Code, § 11352), and Hudson’s
eventual conviction for the offense.
The
court reiterated its unavailability finding and allowance of prior testimony,
this time incorporating the prosecutor’s stipulation offers as things that
would or could be done. After prosecutor
Campbell further represented that she had not approached, and did not plan to
approach, Hudson in the other case with any inducement for his cooperation
here, and that defense counsel in Hudson’s
case had not approached her, the court reiterated that it would allow the prior
testimony to be read, with the noted stipulations given to the jury.
Hudson’s
preliminary testimony was read before the jury, including over 100 pages
of cross-examination by counsel for Varner (also his trial counsel) and lesser
follow-up examination by prior counsel for Stroman. Stipulations at the close of the reading informed
the jury that Hudson had been
arrested in February and September of 2005 for sales or transportation of
narcotics, that this resulted in his felony conviction, and that he had been
arrested and was now charged for a 2007 murder.
B.
Analysis
On
appeal, defendants further pursue their claim of confrontation-right violation
under Crawford, but add
unavailability finding and prior-testimony ruling. The added arguments are that: (1) Hudson’s Fifth Amendment privilege did
not extend to his entire testimony
about the Ogden homicide; (2) the prosecution did not exercise due diligence to
compel Hudson’s testimony in that, if the prospect of contempt sanctions for
someone already in custody for murder was not promising, he could have been
offered immunity (Pen. Code, § 1324); and (3) strategic differences
inherent between preliminary hearings and trials are different enough that
prior cross-examination at the preliminary hearing was not enough to ensure
their confrontation rights. We find no
error.
Taking
first the basic Crawford contention
and applicable statutory provisions implementing the confrontation right, the
matter was settled by our state Supreme Court soon after Crawford: “A criminal
defendant has the right under both the federal and state Constitutions to
confront the witnesses against him.
[Citations.] This right, however,
is not absolute. The high court recently
reaffirmed the long-standing exception that ‘[t]estimonial statements of
witnesses absent from trial have been admitted only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to
cross-examine.’ [Citations.] Evidence Code section 1291 codifies this
traditional exception. [Citation.] When the requirements of Evidence Code
section 1291 are met, ‘admitting former testimony in evidence does not violate
a defendant’s right of confrontation under the federal Constitution. [Citations.]’
[Citation.]
“Evidence
Code section 1291, subdivision (a)(2), provides that former testimony is not
rendered inadmissible as hearsay if the declarant is ‘unavailable as a
witness,’ and ‘[t]he party against whom the former testimony is offered was a
party to the action or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an interest and
motive similar to that which he has at the hearing.’ In turn, Evidence Code section 240,
subdivision (a)(5), states a declarant is ‘unavailable as a witness’ if the
declarant is ‘[a]bsent from the hearing and the proponent of his or her
statement has exercised reasonable diligence but has been unable to procure his
or her attendance by the court’s process.’ †(People
v. Wilson
(2005) 36 Cal.4th 309, 340-341 (Wilson); restated in People v. Thomas (2011) 51 Cal.4th 449, 499.)
a witness’s preliminary hearing testimony
is admissible, without violating state or federal constitutional rights, where
the witness is unavailable (People v.
Seijas (2005) 36 Cal.4th 291, 303 (Seijas)),
and this extends to unavailability caused by the witness’s successful assertion
of Fifth Amendment privilege: “A witness
who successfully asserts the privilege against self-incrimination is
unavailable to testify for these purposes.
[Citations.] . . . However, ‘[t]o be found unavailable on this
ground, a witness must not only intend to assert the privilege, but also be
entitled to assert it.’
[Citation.]†(
§ 240, subd. (a).)
Next,
defendants challenge the court’s finding of similar motive and opportunity by
insisting that “[t]he effectiveness of prior cross-examination must be
evaluated to determine if it was good enough to render the prior testimony
reliable,†but they cite only pre-Crawford
decisions and thereby misconstrue post-Crawford
law. Crawford
made a prior opportunity to cross-examine a witness “ ‘dispositive’ of the
admissibility of his testimonial statements, ‘and not merely one of several
ways to establish reliability,’ †and Crawford
overruled longstanding contrary precedent in Ohio v. Roberts (1980) 448 U.S.
56. (Wilson,
supra, 36 Cal.4th at
p. 343) “Crawford . . . made clear that reliability is not part of
the inquiry under the confrontation clause:
‘To be sure, the Clause’s ultimate goal is to ensure reliability of
evidence, but it is a procedural rather than a substantive
guarantee. . . .’
[Citation.]†(
1291: “ ‘As long as defendant was
given the opportunity for effective
cross-examination, the statutory requirements were satisfied; the admissibility
of this evidence did not depend on whether defendant availed himself fully of
that opportunity. [Citations.]’ [Citations.]â€
(Id. at p. 346.) In this case there was extensive
are cited no authority that the strategic differences raised by defendants,
between preliminary hearings and trials, has ever been held insufficient to
protect a defendant’s constitutional right of confrontation. This was certainly not a preliminary hearing
where any limitation imposed by the court denied a defendant of his rights, or
completely prevented him from exercising them.
Defendants cite no such restrictions from the preliminary hearing.
Finally,
defendants’ arguments that self-incrimination could not justify excusing Hudson
from all testimony in this case and
that a grant of immunity was a solution not properly tried by the prosecution
are answered by the transcript of the closed session held with just Hudson and
his counsel. The parties, of course, do
not have that information, but we have independently reviewed it and are
satisfied that there was no error or abuse of discretion in the unavailability
ruling.
There
being no constitutional or other error shown, there is no need to discuss
defendants’ claims of prejudice.
IV. Prior
Statement by Anthony
We
have set out in the background part of this opinion the detailed statement
Anthony gave to police the morning after the killing. When called before the jury at trial,
however, he said straightaway that he did not want to be there and, while
conceding that he knew Ogden and
Stroman, and passingly knew Varner, denied memory of most events of that day
beyond an image of his best friend, Ogden, lying dead on 23rd
Avenue. In
extensive direct and cross-examination, he claimed he did not, or did “[n]ot
really†remember what went on, even when passages of his police statement were
read to him. He said he prepared for his
testimony by listening to the taped statement with a transcript, and recognized
his voice on the tape, but he claimed no memory of the arguments, shooting, or
confrontations of the fatal evening, who was there, what kind of car Stroman
drove or owned, knowing which “Rome†might have been there, or seeing either
defendant with a gun. He also denied memory of picking defendants out of photo
spreads days later.
title="">[6]
Anthony
blamed his past use of drugs, especially Ecstasy, for a memory so poor that he
could not recall being shot two years before trial, but even the cold record
leaves a strong impression that he was feigning memory loss to avoid having to
testify. His nearly total loss of
memory, with surrounding memories intact, defied logic, and he tripped himself
up in at least one major inconsistency, claiming no memory of speaking with
police officers or giving them a statement, yet recalling having a “drug
warrant†out for him at the time, having a sense in making the tape that he would “get out†if he told officers what
they wanted to hear, and having an understanding from speaking with the officers that they would let him go and not
serve the warrant if he cooperated.
A. Ruling
Challenged
by both defendants is a ruling allowing Anthony’s police statement to be read
into the record. The ruling came after
lengthy direct examination by prosecutor Campbell, who then asked that the tape
be played, with transcripts for the jury to follow. Upon invitation for defense objection,
Varner’s counsel objected and gave this somewhat murky explanation: “On the grounds that the fact is that he says
he doesn‘t remember. That
doesn’t—because you don’t remember wouldn’t automatically make it invalid so
that you can play a tape. And I would
say that if he truly doesn’t remember, then there is no basis for it.â€
Campbell
responded: “[B]ased on the witness’s
clear reluctance to be here, his clear reluctance to answer any questions that
directly implicate[] anyone, I believe that it is, under Green [(People v. Green
(1971) 3 Cal.3d 981 (Green))], and
that line of cases, appropriate to play this as consistent with whether or not
you believe a witness when they are saying they don’t remember. And I believe there has been abundant
foundation laid for that.â€
Overruling
the objection, the court said: “There
were several recitations with regards to his inability to recall, even after
being given an opportunity to review the tape, and so the court will allow the
playing of the tape.†It was then read
for the jury, with Anthony still on the stand.
Afterward, direct and cross-examination produced essentially the same
denials of recollection as before.
However, as already noted, Anthony did implicitly recall making the
statement and speaking with the officers, for he recalled that, from speaking
with them, he expected to escape his drug warrant if he made the tape.
B. Contention
and Analysis
Defendants
claim that admission of the statement denied them their confrontation rights
because, while they had the opportunity to cross-examine Anthony, his claimed lack
of any memory deprived them of a meaningful opportunity to test the
statement. We reject the claim.
The
court did not specify its basis for admission but, given the prosecutor’s
allusions to consistency, reluctance to testify, and case authority “under
maintaining an inability to recall despite review of the tape, the court must
have relied on the hearsay exception for inconsistent statements. A recent post-Crawford exposition of the law quotes in part from
“ ‘A statement by a witness that is inconsistent with his or her
trial testimony is admissible to establish the truth of the matter asserted in
the statement under the conditions set forth in Evidence Code sections 1235 and
770.’[
title="">[7]] [Citation.]
‘The “fundamental requirement†of section 1235 is that the statement in
fact be inconsistent with the
witness’s trial testimony.’
[Citation.] ‘ “Inconsistency
in effect, rather than contradiction in express terms, is the test for
admitting a witness’[s] prior statement . . . .†’ [Citations.]â€
(Cowan, supra, 50 Cal.4th at
p. 462, fn. omitted.)
“[A] witness’s deliberate evasion of questioning can constitute an
implied denial that amounts to inconsistency, rendering a prior statement
admissible under Evidence Code section 1235.
[Citation.] Normally, the
question of evasiveness arises when[, as here,] a witness claims memory loss
about the subject of the questioning.
[Citations.]†(
We
review a ruling under Evidence Code section 1235 for abuse of discretion (
| Description | In these consolidated appeals by defendants Terrance Varner and Jajuan Phillip Stroman, each claims errors assertedly affecting their joint jury trial convictions for the second degree murder of Clarence Ogden (Pen. Code, § § 187, 189), with gun use and arming allegations, including that each discharged a firearm proximately causing the death (id., § 12022.53, subd. (d) (§ 12022.53(d))).[1] Each was sentenced to an aggregate prison term of 40 years to life, comprised of 15 to life for the murder (§ 190), plus 25 to life for the enhancement. Finding no prejudicial error, we affirm the judgments. |
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