P. v. Davidson

Filed 5/30/06  P. v. Davidson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher Estes, Judge.  Reversed.

            Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

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            Larry Davidson appeals from the judgment entered following a jury trial in which he was convicted of first degree murder and found to have intentionally discharged a firearm in the commission of the offense.  (Pen. Code, §§  187, 12022.53, subd.  (d).)  He contends the trial court erred in ruling that the prosecution had shown due diligence in attempting to secure the presence of a witness, hearsay statements of another witness violated his right to confrontation, certain opinion testimony should have been excluded, and the abstract of judgment should be corrected.  We find merit in defendant's first contention and reverse the judgment on that basis without reaching defendant's other issues.

BACKGROUND

            At trial, the preliminary hearing testimony of Amere French was read into the record.  French testified that on the evening of July  16, 2000, he was with defendant, defendant's brother, Shawn Davidson, and Brian Johnson outside a friend's home when Quorne Warren walked by.  French and the others with him were members of or associated with the Crips street gang.  Warren was wearing the colors of the rival Bloods street gang.  Defendant got a handgun and chased Warren for about two blocks.  Defendant then fired the gun two times.  French did not see if Warren had been hit because his view was obstructed by a building.  Afterward, back at the friend's home, defendant cleaned the gun with his T-shirt.  Defendant next directed his companions to accompany him in a car, driven by Paula Perryman, to go by the shooting scene.  There, Warren was lying on the ground, bleeding.

            Further evidence established that Warren had been hit in the neck.  He was paralyzed from the neck down and died of complications from the wound in April 2001.^[1]

            Called as a prosecution witness, Perryman at first refused to testify.  After being informed that she could be held in contempt for such refusal, Perryman responded to the majority of questions about the incident by stating that she did not remember.  Shawn Davidson and Brian Johnson were also called as prosecution witnesses.  Both refused to testify.^[2]

            Los Angeles County Sheriff's Detective Timothy Miles testified that Perryman, who is the girlfriend of Shawn Davidson and the mother of his children, told him the following:  On the day of the shooting, defendant, Shawn Davidson, Johnson, and French came into the house, shouting excitedly.  Defendant had a gun and wiped it with his shirt.  Shawn Davidson suggested that defendant urinate on his hands to remove the gunpowder.  Defendant and Shawn Davidson demanded that Perryman drive them to the house of French's brother Arthur.  While on the way, they passed the scene where the victim had been shot.  Defendant rolled down the window and looked at him.

            Defendant did not present any evidence.

DISCUSSION

1.         The Record

            Amere French's preliminary hearing testimony was read into the record at trial following a finding that the prosecution had exercised due diligence in an unsuccessful attempt to secure French's attendance as a witnesses.  We agree with defendant that this finding was in error.

            French testified at a preliminary hearing in August 2000.^[3]  The information in this case was filed on January  23, 2003, and after numerous continuances, trial began on May  12, 2004.  On May  18, 2004, a hearing was held on the prosecution's efforts to locate French.  The sole witness testifying at the hearing was senior district attorney investigator Jeff Scott.  (During his testimony Scott also referred to his notes, which were marked as an exhibit in the trial court and which we have reviewed on appeal.)

            Scott testified that he was first asked for assistance in locating Amere French on April  7, 2004.  (At that point, trial had been set for May  5.)  On April  7, Scott conducted a â€