P. v.
Filed 3/26/13 P. v. Warren 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opinion has not been certified for publication or ordered published for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.
DESHANE
EARL WARREN,
Defendant and Appellant.
A134632
(Contra Costa County
Super. Ct. No. 081106-7)
Following
a jury trial and imposition of sentence, Deshane Earl Warren appeals from his
conviction of voluntary manslaughter
(Pen. Code, § 192, subd. (a))
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and personally using a firearm in the commission of this offense (§ 12022.5,
subd. (a)). Appellant’s appointed
counsel raises no issues, and requests an independent
review of the record under People v.
Wende (1979) 25 Cal.3d 436 (Wende)
and Anders v. California (1967) 386
U.S. 738 (Anders). Based on our review of the record and
appellant’s contentions, we conclude that there are no
The
information filed by the Contra Costa District Attorney charged appellant and
codefendant Chad Walker with first degree
murder (§ 187) and intentionally discharging a firearm in the commission of
this offense (§ 12022.53, subds. (b)-(d)).
Richmond
Police Officer Joanna Grivetti testified that she received a dispatch regarding
a shooting that occurred at 34th Street and Nevin Avenue in Richmond,
California. Grivetti stated that the
scene was “chaoticâ€; distressed family members yelled frantically, and others
crowded the area to observe what occurred.
Amid the commotion, Grivetti found the victim Davonte Wesley lying on
the road. Wesley was gravely injured and
unresponsive.
According
to Grivetti, paramedics that aided Wesley discovered a gun in the pocket of his
pants. Grivetti further stated that she
collected 14 shell casings at the scene.
Ikechi
Ogan, a forensic pathologist, testified that Wesley suffered six grazing
gunshot wounds and six gunshot wounds that punctured his body. Ogan indicated that Wesley died seconds after
suffering these injuries.
Richmond
Police Officer Thomas Hauschild testified that on the day of the incident, he
was on the lookout for a vehicle implicated in the shooting. Based on a dispatch regarding where the
vehicle was last seen, he headed to an area where he thought the vehicle would
most likely be found. When he got to that
area, he spotted the vehicle that matched the description. Hauschild stopped the car and arrested the
driver, codefendant Walker, and the passenger, appellant. Hauschild then searched the car, and
discovered appellant’s shirt in the back seat and a gun under the front
passenger seat.
The
prosecution introduced expert witnesses who testified regarding the gun and
shirt Hauschild discovered. Terrence
Wong, a firearms examiner for the Federal Bureau of Investigation, indicated
that the gun Hauschild discovered was not the gun used in the shooting. Margaret Kaleuati, an expert in gunshot
residue identification, found gunshot residue on appellant’s shirt that
Hauschild found. Kaleuati further
testified that an examination of appellant and Walker’s gunshot residue kits
revealed both had gunshot residue on their hands at the time of their
arrest.
Ashley
Wicks testified that she was Wesley’s girlfriend, and that she was present at
the scene when Wesley was shot. Wicks
recalled the event as follows: On the
day of the incident, she drove her car to Wesley’s cousin’s house, located near
34th Street in Richmond, with Wesley and Wicks’s friend, Kela Spears. After Wicks parked her car on the corner of
34th Street and Nevin Avenue, Wesley left the car. Wicks remained in the car.
While
in her car, Wicks heard Wesley greet and engage in a friendly conversation with
someone outside. She heard Wesley
telling the person outside that he was going to “ ‘lock him in.’ †According to Wicks, this meant that Wesley
was going to save that person’s phone number in Wesley’s phone. Wesley reached back into Wicks’s car to
retrieve his phone from Spears, who was borrowing his phone. Wicks then heard a gunshot, the first of more
than 10 shots that were fired.
Spears
testified that she was borrowing Wesley’s phone when they were together in
Wicks’s car. According to Spears, when
Wesley reached back into Wicks’s car and asked Spears for his phone back, she
heard gun shots.
David
Busby testified that on the day of the incident, from the garage of his home on
35th Street in Richmond, he saw a black car park in front of his car. Ten to 15 minutes later, Busby heard
gunshots. Busby then saw a man running
up 35th Street who mumbled “ ‘oh shit,’ †as he passed by; the man got into the
black car. Busby stated that he called
911 to report the black car’s license plate, and identified appellant as the
man running up 35th Street during a police interview.
Appellant
testified that on the day of the incident, codefendant Walker picked appellant
up in a black car. They then drove to
34th Street and Nevin Avenue in Richmond to purchase marijuana from an
individual who lived in that area. After
Walker parked on 35th Street, appellant left the car alone, armed with Walker’s
gun. While walking down 35th Street to
purchase the marijuana, appellant saw Wesley.
Appellant
was displeased to see Wesley because Wesley fired a gun at Walker not long
before. He also knew Wesley as a gang member
who had killed people in the past.
Therefore, appellant tried to avoid Wesley, but could not because Wesley
called appellant’s name. A conversation
between the two ensued.
Wesley
asked if appellant was with Walker, and appellant answered that he was
not. Wesley then reached into a car
parked nearby and stated, “give it to me.â€
Appellant thought that Wesley might have been reaching for a weapon, so
he observed him closely. Appellant saw
Wesley reach for what appeared to be a gun, at which point appellant panicked
and started shooting. Appellant then ran
back to 35th Street to the car he came in, and told Walker what happened.
After
Walker heard what occurred, Walker told appellant to take appellant’s shirt off
and give Walker the gun. They drove to
South 35th Street, where Walker got out of the car with the gun and returned
without it. They then drove to
appellant’s father’s house, and were stopped by police along the way.
Walker
testified that on the day of the incident, he picked up appellant and headed to
34th Street in Richmond to purchase marijuana.
Walker dropped appellant off at 35th Street and parked nearby.
While
waiting for appellant in the car, Walker heard gunshots. Soon after, appellant returned to the car and
told Walker what happened. Walker then
told appellant to give Walker the gun.
Walker took the gun to his cousin’s house and placed the gun under a
mattress.
Walker
further testified that Wesley fired a gun at him in the past, but denied any
longstanding problems with Wesley.
However, Walker stated that he entered Wesley’s contact information in
Walker’s phone as “Dead Man Walking†after Wesley fired a gun at him.
Gaines’s Testimony
Riando
Gaines testified that he was housed in the same jail cell as Walker. While in their cell, Walker recounted the
incident to Gaines. Walker stated that
on the day of the incident, he was driving with appellant on Nevin Avenue, when
he saw Wesley standing near a parked car.
Walker told Gaines that he did not like Wesley because Wesley had robbed
Walker in the past and had fired a gun at him two weeks after that
robbery. Walker mentioned that Wesley’s
name in Walker’s cell phone was listed as “Dead Man Walking.â€
According
to Gaines, Walker stated that he feared a possible shootout if Wesley saw him,
so Walker asked appellant, who had no longstanding problems with Wesley, to
shoot Wesley. Walker claimed that he
gave the gun used in the shooting to his girlfriend, and instructed her to keep
it at her mother’s house. Walker further
stated that he used code words during a call he made in jail regarding the
location of the gun used in the shooting.
In
response to Gaines’s testimony, Walker testified that he never told Gaines that
he asked appellant to kill Wesley, and claimed that Wesley never robbed
him.
Prosecutorial Evidence
Over appellant’s
objection, the prosecution introduced the following evidence: a
letter discovered in Walker’s jail
cell allegedly instructing people to testify falsely on his behalf; Walker’s
statement urging people to contact witnesses to cover up his complicity in the
shooting; Walker’s recorded phone
conversation, in which Walker allegedly discusses the whereabouts of the gun used
in the shooting; and statements appellant made during a police
interrogation.
Based
on the foregoing testimony, the jury convicted appellant of the lesser included
charge of voluntary manslaughter (§
192, subd. (a)), and found sufficient support that appellant personally used a
firearm pursuant to section 12022.5, subdivision (a). The jury acquitted Walker of all
charges. Appellant was sentenced to 16
years in prison, six years for the voluntary manslaughter and a consecutive,
aggravated term of 10 years for the firearm enhancement.
Appellant
filed a timely notice of appeal.
In
accordance with Wende and
the following three points for our consideration: (1) whether the court violated the
confrontation clause of the Sixth Amendment or hearsay rules when it permitted
introduction of Walker’s incriminating statements implicating appellant; (2)
whether the court violated appellant’s Miranda
and Fifth Amendment rights when it admitted statements appellant made to
police; and (3) whether the court properly denied appellant’s
challenges to exclude African-American jurors.
We have reviewed the entire record and considered the matters suggested
by appellant’s counsel, and find no arguable issues.
Relying
on Bruton v. United States (1968) 391
U.S. 123 (Bruton) and
trial in response to the prosecution’s intention to introduce Walker’s
admissions to Riando Gaines, Walker’s phone calls in jail, an incriminating
letter seized from Walker’s jail cell, and Walker’s statement urging people to
contact one of the witnesses. Because
Walker could not be cross-examined, appellant asserted that the admission of
these statements implicating appellant in the charged offense violated his
Sixth Amendment right to confrontation according to Bruton and Aranda. Alternatively, appellant moved to exclude
Walker’s statements on hearsay grounds.
On
appellant’s claim of severance, “ ‘Aranda
and Bruton stand for the
proposition that a “nontestifying codefendant’s extrajudicial self-incriminating
statement that inculpates the other defendant is generally unreliable and hence
inadmissible as violative of the defendant’s right of confrontation and
cross-examination, even if a limiting instruction is given.’ â€
v. Homick (2012) 55 Cal.4th 816, 874, citing People v. Jennings (2010)
50 Cal.4th 616, 652.) In such cases,
implicating a defendant. (See
does not apply to nontestimonial evidence, Bruton
and Aranda, likewise, do not apply to
nontestimonial evidence. (See
984 [“the confrontation clause is concerned solely with hearsay statements that
are testimonialâ€]; see also People v.
Arceo (2011) 195 Cal.App.4th 556, 572 [“the confrontation clause has no
application to out-of-court nontestimonial statements].â€) Testimonial statements are “statements made
with some formality, which, viewed
objectively, are for the primary purpose
of establishing or proving facts for possible use in a criminal trial.†(Cage,
at p. 984, fn. 14.) Because the record
demonstrates that Walker’s out-of-court statements were not for the purpose of
use in a criminal trial, his statements are nontestimonial. As a result, Bruton and Aranda do not
require severance because they do not apply to Walker’s statements.
Regarding
appellant’s alternative hearsay ground, under the hearsay exception for
declaration against interest: “Evidence
of a statement by a declarant having sufficient knowledge of the subject is not
made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and the statement . . . subjected him to the risk of civil or criminal
liability . . . that a reasonable man in his position would not have made the
statement unless he believed it to be true.â€
(Evid. Code, § 1230.)
“[U]navailable as a witness†includes the circumstance that a declarant
is exempted or precluded from testifying on the ground of privilege. (Evid. Code, § 240.) In addition, a statement made against one’s
interest must be trustworthy. (
611.) To determine whether a statement
is sufficiently trustworthy, the court “ ‘ “may take into account . . . the
circumstances under which they were uttered, the possible motivation of the
declarant, and the declarant’s relationship to the defendant.†’ †(Id.
at p. 614, quoting People v. Cudjo
(1993) 6 Cal.4th 585, 607.)
The
record demonstrates that Walker’s statements fall within the declaration
against interest exception. First,
Walker was an unavailable witness as defined in section 1230 because his
assertion of his Fifth Amendment right of silence precluded him from testifying. Second, statements that Walker made to Gaines
were against his penal interest because they subjected Walker to criminal
liability for his part in the shooting.
While we recognize Gaines’s history of criminality and the presumed
benefits he might have received for testifying, his friendship with Walker and
other corroborating evidence are
sufficient indicia of trustworthiness.
Similarly, Walker’s phone calls in jail regarding the gun’s whereabouts,
his incriminating letter instructing a person to testify falsely to avoid
blame, and his statements urging people to contact one of the witnesses all
constitute statements made against his interest. That these statements were confided to people
that Walker trusted is sufficient proof of trustworthiness.
Statements to Police
Appellant
also moved to exclude statements he made to police during a custodial
interrogation on Fifth Amendment grounds.
First, appellant claimed that he never waived his right to remain silent
before the interrogation, and that he invoked that right during the
interrogation when he asked the interrogating detective to send him back to his
jail cell. He asserted that subsequent
questioning constituted violation of his Miranda
right to remain silent. In addition,
appellant claimed that his statements were otherwise involuntary, rendering
them inadmissible as a violation of his Fifth Amendment rights.
The
Miranda right to remain silent can be
waived explicitly or implicitly. (See
2250, 2261.) For implied waivers, if a
suspect is read his Miranda rights and
he understands them, the suspect’s subsequent uncoerced statements constitute
an implied waiver of his right to remain silent. (Berghuis,
his right to remain silent when he began answering questions after remaining
silent for nearly three hours].)
The
record demonstrates that appellant implicitly waived his Miranda right to remain silent.
Before the interrogation, the detective who conducted the interrogation
advised appellant of his Miranda
rights. The detective then asked if
appellant understood his rights, and appellant stated that he did. Immediately after being advised of his
rights, appellant initiated a discussion with the detective by asking him a
question, and appellant proceeded to freely answer all the questions that
followed. In doing so, appellant
implicitly waived his right to remain silent.
Appellant
also claims that he invoked his Miranda
right to remain silent during the interrogation. However, a mid-interrogation invocation to
remain silent must be clear and unambiguous.
(People v.
434.) “ ‘A defendant has not invoked his
or her right to silence when the defendant’s statements were merely expressions
of passion frustration or animosity toward the officers . . . .’ †(Id.
at p. 433.) Here, the record
demonstrates that appellant’s request to return to his cell during the
interrogation was an expression of his frustration with the detective’s refusal
to accept appellant’s denials of his involvement in the shooting, rather than
an unambiguous invocation of his right to remain silent.
Appellant
further asserts that his statements were otherwise involuntary, rendering them
inadmissible as a violation of his Fifth Amendment rights. A statement is involuntary if it is not the
product of “ ‘ “a rational intellect and free will.†’ †(People
v. Maury (2003) 30 Cal.4th 342, 404, citing Mincey v. Arizona (1978) 437 U.S. 385, 398.) The test is whether the appellant’s “ ‘will
was overborne at the time he confessed.’ â€
(Maury, at p. 404, citing
the interrogation, we conclude that appellant’s statements were not involuntary.
In
response to the prosecution’s use of peremptory challenges to exclude five
African-American jurors, appellant made Wheeler/
v. Kentucky (1986) 476 U.S. 79; People
v. Wheeler (1978) 22 Cal.3d 258.) In
each case, the prosecution offered race neutral explanations in exercising his
preemptory challenges.
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We
must review the court’s findings concerning sufficiency of reasons proffered
for exercising peremptory challenges “ ‘ “ ‘with great restraint.’ †’ †(People
v. Lenix (2008) 44 Cal.4th 602, 613, quoting People v. Burgener (2003) 29 Cal.4th 833, 864.) “ ‘So long as the trial court makes a
sincere and reasoned effort to evaluate the nondiscriminatory justifications
offered, its conclusions are entitled to deference on appeal.’ †(Lenix,
864.) The prosecution offered race
neutral reasons for exercising preemptory challenges to exclude
African-American jurors, and the court considered these explanations before
denying appellant’s Wheeler/
sincere and reasoned effort to evaluate the prosecution’s race neutral
reasons.
Our
independent review of the record reveals no arguable issues that require
further briefing. The judgment is
affirmed.
_________________________
Lambden,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
Penal Code unless otherwise indicated.
v. Arizona (1966) 384 U.S. 436.
