P. v.
Filed 11/25/13 P. v. Warren CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
BRYANNA NADINE WARREN,
Defendant and Appellant.
C067036
(Super. Ct. No. 09F08633)
Defendant Bryanna Nadine Warren
appeals following a conviction of attempted
murder of Lawanda Shoals (Pen. Code, § 664/187)
and assault with a firearm on Clifford Brown (§ 245, subd. (a)(2))
with a great bodily injury enhancement as to Shoals (§ 12022.7) and gun
use enhancements as to both victims (§ 12022.53, subd. (d) (Shoals);
§ 12022.5, subd. (a)(1) (Brown)).
This case stems from a dispute between defendant and Shoals, culminating
when defendant forcibly entered the apartment where Shoals and Brown resided,
shot Shoals in both legs and shot at Brown, grazing his buttocks. The defense at trial was that defendant
believed she had access to the apartment at Brown’s invitation and that she
acted in self-defense when Shoals aggressively approached her inside the
apartment.
On appeal,
defendant contends the trial court erred in allowing Shoals to testify about
the subsequent murders of Brown and their roommate, James Turner. Defendant argues that this evidence was
irrelevant and unduly prejudicial under Evidence Code sections 210 and 352
and also that its admission violated her state and federal due process rights
to a fair trial. Defendant further
contends that the trial court erred in denying her motion to continue the
sentencing hearing so that her counsel could determine whether there were
grounds for a new trial motion.
We
conclude: (1) Defendant forfeited
her state and federal due process
claims by failing to raise them in the trial court; (2) even assuming
there was error in admitting evidence about the Brown/Turner murders, it was
harmless under any standard; and (3) the trial court did not abuse its
discretion in denying defendant’s motion to continue the sentencing
hearing.
We affirm
the judgment.
In November
2009, Lawanda Shoals and her fiancé, Clifford Brown, lived together in a
two-bedroom apartment. A roommate, James
Turner, also resided in the apartment.
Shoals and Brown had an argument and Shoals moved home with her parents
for a few days, but the two continued to speak over the phone every day. During
this period of time defendant, who lived with her boyfriend, George Wallace,
had an argument with Wallace, and went to stay with Brown and Turner for a
few days.
On
Thanksgiving Day, November 26,
2009, Shoals returned to her apartment with a plate of
Thanksgiving dinner for Brown. Brown’s
two daughters accompanied Shoals.
Defendant answered the door.
Because Shoals had told defendant that she was not welcome in their
home during an earlier encounter,
name="_ftnref2" title="">[2] Shoals asked defendant what she was doing
in her apartment. Defendant laughed and
responded, “Yes, bitch, I’m in your house.†Brown came out of the bedroom and closed the
door on Shoals, then argued through a window with Shoals about defendant’s
presence in their apartment.
After
arguing for several minutes, Shoals went to her car and began to drive away but
decided to return. Because it was her
apartment, Shoals felt that defendant should be the one to leave. Shoals kicked in the kitchen door and entered
the apartment, where she confronted defendant and told her to leave. Defendant advanced on Shoals, and the two
began hitting each other. Brown, Turner,
and Brown’s daughters broke up the fight.
After the fight, Shoals and Brown’s daughters left the apartment.
Brown reported
the fight to the police, describing Shoals as an ex-tenant who had kicked in
the door and assaulted his friend who was visiting. The police did not respond immediately
because Brown would not provide the friend’s information. However, approximately 30 minutes later,
Brown called the police again, identified defendant as the friend, and asked
for medical assistance. When a police
officer arrived, defendant stated that she did not want to prosecute. Subsequently, several officers attempted to
follow up with defendant at her various listed addresses and by phone, but
defendant did not respond.
Later
Thanksgiving night, Shoals and Brown reconciled over the phone, and Shoals
moved back into their apartment the following day. That day, defendant called Brown’s phone
and Shoals spoke to her. Defendant
apparently told Shoals she had left her identification, because Shoals testified
that she told defendant she would put defendant’s identification in the
mail. Shoals told defendant not to come
back to the apartment.
Around 7:00
o’clock the following morning, November 28, Shoals and Brown were awakened
by defendant banging loudly on the front door.
Shoals looked through the blinds and saw defendant. Shoals then went back to the bedroom and told
Brown, “That crazy bitch is at the door.
You need to go take care of that,†and asked him to call the
police. Shoals got back into bed and
then heard defendant kick in the kitchen door, which had been repaired and was
locked with a deadbolt. Shoals walked to
the doorway of the bedroom. Defendant,
who had entered the apartment, pointed a gun at Shoals’s head and threatened,
“Bitch, I’m gonna kill you.†Shoals
threw her arm up to knock the gun away from her face and closed the bedroom
door, attempting to hold it shut to keep defendant out. Defendant fired two shots through the bedroom
door. One of the shots struck Shoals in
the right thigh. Defendant then came
through the door pointing the gun.
Shoals hit defendant in the face and then grabbed the hand in which
defendant held the gun. As the two
struggled over the gun, defendant placed the gun against Shoals’s left leg and
shot her a second time.
Brown
entered the bedroom to break up the fight and defendant turned toward him and
said, “Nigger, you want some, too?â€
Defendant then fired a shot at Brown, grazing his buttocks. Shoals “went for the gun†again, and
defendant fired additional shots until the gun was empty. Shoals was able to restrain defendant while
the police were called. However, Shoals
became weak and defendant managed to escape before the police arrived.
A police
officer observed two bullet holes in the bedroom door, a bullet hole in the west
wall of the bedroom and another bullet hole along the baseboard of the south
wall. Two bullet fragments and one
intact bullet were found in the bedroom and a mushroomed bullet was found
lodged near the doorway. One of the two
bullet holes in the door had soot around it, suggesting that it came from the
hallway outside the bedroom door and that the gun was held close to the door
when the shot was fired. The bullet
wound to Shoals’s right thigh -- the first of the two bullet wounds inflicted
by defendant -- also had soot around it consistent with the hole in the door. The strike panel for the kitchen door was
splintered.
An officer
went to the apartment defendant shared with Wallace looking for her. Defendant was not there, but Wallace
was. Several days later, defendant was
arrested at a motel where she was registered with Wallace.
After her arrest,
defendant told a detective that on Thanksgiving, she had been in a fistfight
on Broadway near Stockton Boulevard with three women she did not know. Defendant
did not know why the women fought her.
Defendant said that after the fight, she was picked up by an
old lady, at whose house she was temporarily staying. Defendant said she lied about the fight to
the officers who responded to the apartment on Thanksgiving because she
was afraid of the three women who had fought her. She said the women had her identification and
she feared they would retaliate if she made a police report. Defendant denied ever having a fight with
Shoals on Thanksgiving at the Shoals/Brown residence. Defendant said that on the morning of November 28,
she went to a pharmacy. After she found
it was closed, she returned to the old lady’s residence to thank her for
allowing her to stay. When defendant
entered the old lady’s house through a side door, she saw one of the women who
had fought her on the street corner on Thanksgiving. Defendant later identified the woman as
Shoals. Because she was scared,
defendant pulled her gun and pointed it at Shoals. Defendant said Shoals advanced toward her, so
defendant shot Shoals in the leg and then fired more shots because Shoals continued
to advance. She told the detective that
an unknown male grabbed her from behind and tried to wrestle her to the
ground. She said she was able to break
free and flee the area. After being
shown a photograph of Brown and initially denying that she knew him, she later
identified Brown as the man who had grabbed her from behind. She said Brown lived at the old lady’s
residence, but was hardly ever there and that the old lady lived with another
person named Filmore Slim. Multiple
times, defendant denied knowing why Shoals wanted to fight her, but eventually
said she thought it was because Shoals thought defendant was trying to “get
with†Brown. Defendant denied going to
the residence on November 28 to confront Shoals and maintained she had
gone there to talk to the old lady and thank the old lady for allowing her to
stay at the residence. Several times,
defendant told the detective that this was the truth.
Shoals
testified that in the late evening hours of December 14, 2009, Shoals and
Brown were watching television in their bedroom when they heard a loud bang
coming from the kitchen area. Brown went
to the hallway to investigate and then yelled “Oh shit,†and ran back in the
bedroom, pulling Shoals to the floor next to the bed. As she was being pulled onto the floor,
Shoals saw a large man wearing a ski mask and a bulletproof vest in the hallway
with a shotgun walking toward Turner’s room.
Shoals then heard a shotgun blast come from Turner’s room. Brown rose up from the floor, and the armed
man shot him in the abdomen. Then Brown
told Shoals, “Baby, I love you. I’m
going to die. I’m not going to let
anything happen to you.†Brown then rose
up again, and the armed man shot him in the face. Brown fell to his knees, gurgling, and held
Shoals’s ankle. The parties stipulated
that defendant’s boyfriend, Wallace, had been convicted of killing Brown and
Turner. The parties also stipulated that
defendant did not instigate or participate in the murders.
The defense
theory was that defendant suffered from posttraumatic stress disorder (PTSD)
and had acted in what she believed to be self-defense. Defendant testified that on the morning of
November 28, 2009, she went to a pharmacy to pick up some
medications, but discovered it was closed.
Instead of returning home, she went to the Shoals/Brown
apartment. She said she went there
because she was still irritated with Wallace and did not want to go
back home. Defendant explained that she
knocked on the front door but no one answered, so she entered the apartment
through the side door because the lock was broken. Defendant also testified that Brown
always kept that door unlocked. She said
she brought the gun with her for self-protection because she had been
“jumped†on Thanksgiving and was not thinking clearly. She did not have the gun with her on
Thanksgiving. Defendant testified that
after she entered the apartment and approached the bedroom, Shoals came
running toward her in the hallway to try to hit her, so defendant raised
the gun and told Shoals, “Back up. I
have a gun, I don’t want to shoot you.â€
Defendant said Shoals continued to come toward her, so she fired a shot
but did not realize she had hit Shoals.
She testified that Brown then grabbed her from behind, the three began
to struggle and the gun continued to fire as they struggled. Defendant said she struggled to keep the gun
because she did not want Shoals to take it and give it to the police. Defendant said she was able to break free and
run away. Defendant explained that she
lied to police because she was afraid Wallace would be angry that she had
stayed with Brown, even though she did not have a romantic relationship with
Brown.
Dr. Linda
Barnard, a licensed marriage and family therapist, opined that defendant
suffered from PTSD due to various traumatic events throughout her life,
including molestation as a child, living on the streets where she was raped and
beaten, and the assault a few days prior to the shooting. Dr. Barnard explained that PTSD can
produce hypervigilance, which causes a person to see danger where others would
not. She further opined that someone
with PTSD who had been beaten and later encountered the assailant would view
the person with “more of a sense of danger.â€
The jury
convicted defendant of the charged crimes and found the enhancements true. On December 9, 2010, defendant was
sentenced to state prison for an indeterminate term of 25 years to life plus a
determinate term of 10 years. As we
discuss in more detail post, on the
day of sentencing, defendant moved for a continuance to investigate grounds for
a new trial. The motion was denied.
Evidence of the Murder of Brown and Turner
Background
In an in
limine motion, the prosecution requested that the court inform the jury that
Wallace had been convicted of murdering Brown and Turner and that the jury found
true the witness-murder special circumstance which alleged that the murders were
committed to prevent Brown and Turner from testifying in defendant’s
trial. The prosecution further requested
the jury be instructed that defendant was not a party to that crime and
that the jury could only consider that information as it related to why
Brown and Turner would not be testifying in defendant’s case.
The defense,
in its in limine briefing, moved to exclude evidence of Wallace’s convictions
for the Brown and Turner murders.
Counsel objected to the admission of this evidence as irrelevant and
prejudicial.
The trial
court indicated it would preclude evidence that Wallace was convicted of the
murders, but it would allow Shoals to testify that Brown and Turner had been
murdered, without identifying the perpetrator of the murders. The court stated, “it’s hard for
the Court to imagine how the jury would be properly able to weigh [Shoals’s] testimony
. . . without her testifying in response to the question as to where
[Brown and Turner] are currently and her being able to say she was present when
somebody came in and killed them on December [14], 2009. [¶] That
doesn’t appear to the Court that it establishes who that was, but the
representations here are that it’s by some men in black -- or man in black
with a black ski mask. [¶] So it seems to the Court that it would
be improper to preclude that question from being put to the witness. It has to do with her testimony in this
case. [¶] I realize it’s an event after the fact,
but it seems to me were the Court to grant the motion and say yes, there will
be no testimony that George Wallace was convicted of murdering these people, it
doesn’t seem to the Court if that I’m looking and trying to do a[n Evidence
Code section] 352 analysis and weighing the probative value against the
potential for confusion or misleading the jury or having them
inappropriately respond to this testimony, it doesn’t seem like we’re going to
have a trial within a trial because we’re not going to have the prosecutor
looking to have her express opinions as to who that was or wasn’t in this
particular case. [¶] But granting the motion and saying there’s
not going to be any mention of the conviction of George Wallace, from the
Court’s standpoint doesn’t preclude the complaining victim from coming in and
saying what she knows happened to . . . percipient witness[es]
to the events that are going to be talked about in the case.â€
Defense
counsel contended that Shoals need only testify that Brown and Turner were
deceased and there need not be any testimony about how and when they died. Counsel also expressed concern that the
evidence concerning the murders could grow and grow until it resembled the
factual allegations underlying defendant’s charges.
As we have
noted, Shoals testified about the murders but did not identify the
perpetrator. The parties stipulated that
Wallace had been convicted of killing Brown and Turner and that defendant
did not instigate or participate in these homicides.
Analysis
Defendant
contends the trial court erred in admitting evidence about the murders of Brown
and Turner over her relevance and Evidence Code section 352
objections. Defendant also contends that
admission of the testimony violated her due
process right to a fair trial. The
People contend that the evidence was relevant on the issue of Shoals’s “credibility
vis-à -vis†defendant’s credibility and explained why Brown and Turner did not
appear as witnesses in defendant’s case.
The People further contend that the jury needed to know the whole story
of all the participants to assess the credibility of Shoals and defendant, and
the evidence concerning the murder “completed the narrative arc of the
interactions between all the parties.â€
1. Forfeiture of
Constitutional Claims
The People
contend that because defendant did not raise any constitutional claims in the
trial court, those claims are now forfeited.
Defendant does not respond to this argument directly in her reply brief
but instead contends, “To the extent this court finds [defendant’s] federal
constitutional claims to be waived, [defendant] has received ineffective
assistance of counsel.â€
name="_ftnref3" title="">[3]
The general rule is that
questions relating to the
admissibility of evidence will not be reviewed on appeal in the absence
of a specific and timely objection in the trial court on the ground sought to
be urged on appeal. (
grounds to the admission of evidence regarding the deaths of Brown and Turner,
her constitutional arguments are not cognizable on appeal. (Partida,
supra, 37 Cal.4th at p. 435;
Raley, supra, 2 Cal.4th at p. 892.)
Moreover,
because defendant, in her reply brief, belatedly raises a claim of ineffective
assistance of counsel, we deem that argument forfeited as well. (
685 [“Courts will ordinarily treat the appellant’s failure to raise an
issue in his or her opening brief as a waiver of that challengeâ€].)
2. Harmless Error
We need not
reach the issue of the admissibility of the evidence concerning the
Brown/Turner murders, because even if the admission of Shoals’s testimony was
error, we conclude any error was harmless.
“It is . . . well settled that the erroneous admission or
exclusion of evidence does not require reversal except where the error or
errors caused a miscarriage of justice. [Citations.] ‘[A] “miscarriage of justice†should be
declared only when the court, “after an examination of the entire cause,
including the evidence,†is of the “opinion†that it is reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.’
[Citations.]†(
959, 1001, quoting People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson).)
The
evidence against defendant included her own admission that she brought the gun
to the Shoals/Brown residence and shot at Shoals, although she claimed she used the
gun in self-defense because she was afraid.
Defendant’s testimony was inconsistent with her earlier statement to the
police that she returned to the home to thank an “old lady†who lived
there. Additionally, defendant’s
testimony that she shot only because Shoals was running toward her was
inconsistent with the forensic evidence.
The forensics showed there were two bullet holes in the bedroom door,
one of which had soot around it, which suggested that it came from outside
the bedroom door and that defendant held the gun close to the door when
she fired that shot. This evidence matched
the wound to Shoals’s right thigh, which also had soot around it. This
forensic evidence was consistent with Shoals’s testimony that she was
attempting to hold the bedroom door shut to protect herself when defendant
fired through the door, striking Shoals in the leg. Thus, the forensics were consistent with Shoals’s
testimony describing defendant as the aggressor, and inconsistent with defendant’s
testimony that she acted in self-defense.
Shoals’s testimony that defendant was the aggressor was also more
consistent with defendant entering through the kitchen door after no one
answered the front door.
Defendant
asserts that the evidence of what occurred on Thanksgiving Day, including
Shoals telling a police officer that she “whooped [defendant’s] ass†showed
that Shoals was the aggressor. We see
that evidence differently. It shows
defendant had a motive to seek out Shoals, whom she knew was back in the house
because she spoke with her on the phone.
Further,
defendant changed her story about the shooting, while Shoals’s initial
statement to the police was largely consistent with her
the police -- in which she denied going to the apartment to confront Shoals and
said she was only there to visit an old lady who had helped her after a fight
that had purportedly taken place on a street corner -- as an attempt to cover
up her motive for returning to the apartment.
Additionally, when police were called about the Thanksgiving Day
altercation, defendant stated that she did not want to prosecute, and several
officers attempted to follow up with defendant, but she did not respond. This suggests that defendant decided to take
matters into her own hands.
Based on
the evidence, it is likely the jury would have found defendant not credible and
Shoals credible regardless of the testimony about Brown’s and Turner’s
murders.
Further,
the testimony about the Brown/Turner murders did not implicate defendant. The jury was specifically cautioned that
defendant was not involved in those murders in any way. The testimony, while emotional, was
relatively brief, and the prosecutor did not mention this evidence in her
opening statement or closing argument.
It was hardly the focal point of defendant’s trial.
Defendant
complains on appeal that “the jury was told that her partner and the father of
one of her children, George Wallace, was convicted of the murders. No reasonable juror could have failed to make
the connection between [defendant], Mr. Wallace, and the murders.†Yet, it was not the trial court that allowed
this evidence. Indeed, the trial court
indicated it would preclude evidence concerning the identity of the
killer. The jury only learned that
Wallace was the perpetrator because of the stipulation agreed upon by both
sides.
In light of
the overwhelming evidence against defendant and the stipulation cautioning the
jury that defendant was not involved in the Brown/Turner murders, we conclude it
was not reasonably probable that defendant would have obtained a more favorable
result had the evidence not been admitted.
(Watson, supra,
46 Cal.2d at p. 836.)
Indeed, assuming defendant’s due process objection had been preserved
and had merit, we would conclude that any error is harmless even under the
“beyond a reasonable doubt†standard in Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].
Denial of Defendant’s Motion for a Continuance
Background
On the day
of sentencing, defendant’s counsel requested a continuance to determine whether
there were grounds for a new trial motion.
Counsel asserted that statements in the probation report attributed to
Shoals were inconsistent with her trial testimony. Specifically, the probation report indicated
that prior to the shooting, Shoals was attending school and working for the
federal government. This, defense
counsel contended, was inconsistent with testimony Shoals had given on
cross-examination in the prosecution’s rebuttal case, in which Shoals
purportedly said she was with Brown “24 hours a day, seven days a week.â€
the probation report showed that Shoals was not with Brown as much as she had
indicated and that this showed it was not impossible for defendant to form a
friendship with Brown. Defense counsel
further asserted, “[w]hen she lies about anything, I think that would be
significant,†and asked for time to investigate the statements to determine if
there were grounds for a new trial motion.
The trial
court stated that it reviewed its trial notes and specifically remembered that
when defense counsel questioned Shoals about the time she spent with Brown, “it
was obvious from my looks at the jury that they understood that that was not
accurate, this person was not spending 24 hours a day with the person
literally.†The court concluded that the
potential impeachment evidence was on a collateral issue and immaterial to the
evidence at trial and denied the motion for a continuance.
Analysis
Defendant
contends the trial court erroneously denied her continuance motion, asserting
that it was grounded on good cause and the trial court’s refusal to grant a
continuance denied defendant of her constitutional right to due process.
“A continuance
in a criminal case may be granted only for good cause. (§ 1050, subd. (e).) Whether good cause exists is a question for
the trial court’s discretion.
[Citation.]†(
390, 450, citing People v. Jenkins
(2000) 22 Cal.4th 900, 1037.) Upon
application of a defendant, the trial court may grant a new trial “[w]hen new
evidence is discovered material to the defendant, and which he could not, with
reasonable diligence, have discovered and produced at the trial.†(§ 1181, subd. 8.) “In ruling on a motion for new trial based on
newly discovered evidence, the trial court considers the following factors: ‘ “1. That the evidence, and not
merely its materiality, be newly discovered; 2. That the evidence be not
cumulative merely; 3. That it be such as to render a different result
probable on a retrial of the cause; 4. That the party could not with
reasonable diligence have discovered and produced it at the trial; and 5. That
these facts be shown by the best evidence of which the case admits.†’ â€
(People v.
Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)
It is well settled
that, “ ‘[a] new trial on the ground of newly discovered evidence is not
granted where the only value of the newly discovered [evidence] is as impeaching
evidence’ or to contradict a witness of the opposing party.†(People v.
Hall (2010) 187 Cal.App.4th 282, 299, quoting Hanton v. Pacific Electric Ry. Co. (1918) 178 Cal. 616,
623 & citing Pandolfo v. Jackson
(1936) 12 Cal.App.2d 232, 236.)
Defendant nevertheless claims it is reasonably probable that the
impeachment of Shoals’s testimony about being with Brown “24 hours a dayâ€
would have achieved a more favorable result for defendant on retrial because
the case turned entirely on the credibility of Shoals and defendant. We are not persuaded.
While we
agree that the case turned on the credibility of Shoals and defendant, the
trial court did not abuse its discretion in finding that this possible
impeachment evidence was on a collateral issue and immaterial to the evidence
at trial. The testimony defendant sought
to impeach does not relate to the incident in which defendant shot Shoals and
Brown. In any case, as the trial court
pointed out, it is unlikely that the jury believed that Shoals was “spending 24 hours
a day with [Brown] literally.â€
Defendant’s argument that Shoals was not actually with Brown constantly
and therefore did not know that defendant had been friends with Brown for an
extended time before the incident is immaterial to the circumstances of the
shooting and Shoals’s testimony about the shooting. Whether defendant had been with friends with
Brown hardly justifies her armed entry into the Shoals/Brown apartment on the
morning of the shooting.
Finally, as
previously discussed, the evidence against defendant was compelling. We conclude that impeachment on this
collateral matter would not “render a different result probable.†(Delgado,
supra, 5 Cal.4th at
p. 328.)
Accordingly,
the trial court did not abuse its discretion in denying defendant’s motion to
continue the sentencing hearing.
The
judgment is affirmed.
MURRAY ,
J.
We concur:
NICHOLSON ,
Acting P. J.
HOCH ,
J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] Two to three months prior, defendant
came to the Shoals/Brown residence at 1:00 a.m., and Shoals told defendant
that she “did not appreciate [defendant] coming to [Shoals’s] house at that
time of the morning.†Defendant denied
ever meeting Shoals before Thanksgiving and testified that this confrontation
never occurred.
