Filed 4/17/13 P. v. Turner CA1/5
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES
TURNER,
Defendant and Appellant.
A132790
(Contra
Costa County
Super. Ct. No.
05-100136-1)
In
the early morning hours of November 7, 2009, Lathel Douglas, Jr., was shot and wounded in front of
his father’s home in North Richmond. His
father, Lathel Douglas, Sr., was shot and killed.
jury of the second degree murder
(Pen. Code, § 187)
name="_ftnref2" title="">[2] of Douglas Sr. and attempted
voluntary manslaughter (§§ 192, 664) of Douglas Jr. Turner was sentenced to a term of 47 years to
life in state prison. On appeal, Turner
contends that: (1) certain of
Douglas Jr.’s statements to police were coerced and that their admission at trial
violated Turner’s right to a fair trial; and (2) that the trial court violated
Turner’s due process rights by misinstructing the jury on use of evidence of
other offenses to prove identity (CALCRIM No. 375). We affirm.
I. Factual and Procedural Background
Turner
was charged, by information, with the murder of Douglas Sr. (§ 187; count
one), the attempted murder of Douglas
Jr. (§§ 187, 664; count two), and second degree robbery (§§ 211, 212.5;
count three). The information further
alleged that, in the commission of all three offenses, Turner intentionally and
personally discharged a firearm, causing great bodily injury or death
(§ 12022.53, subd. (d)).
Prosecution’s Case
Douglas
Sr. lived at 1729 First Street in North Richmond. Douglas Jr. had lived in the house with his
father and uncle, but moved out when his father got married. After moving out, Douglas Jr. continued to
keep some clothing and personal effects at his father’s house.
Douglas
Jr. knew Quianna Moore from high school.
The two were friends, but not romantically involved. Moore was a heavy drug user, and Douglas Jr.
had both sold drugs to her and used drugs with her.
Douglas
Jr. did not really know Vanessa Perez, but had seen her around the
projects. Perez had lived in North
Richmond for several years prior to the shooting. She had been living with her mother in an
apartment in the public housing projects on West Ruby Street, until about five
months before the shooting, when she moved in with a girlfriend on First
Street. Perez met Turner, whom she knew
as “Noony,†in late 2008, when he visited a cousin who lived in the unit next
door to Perez’s mother. Perez met Moore
through Turner. In September 2008,
Turner and Moore had a child together.
Douglas
Jr. testified that, on November 6, 2009, he was driving past the West Ruby
Street projects, where he saw Moore and Perez.
Moore spotted Douglas Jr. and waved him over. Douglas Jr. needed gas money and asked Moore
if she wanted to buy a $10 bag of marijuana.
Moore agreed, but said she needed a ride to a nearby house to get the
money. Moore got into the car, while
Perez stayed behind.
Moore
directed Douglas Jr. to a house nearby on Warren Street, which was around the
corner from Douglas Sr.’s home on First Street.
She went inside to get the money while Douglas Jr. waited in the
car. After a few minutes, Moore hurried
out of the house and got into the car.
She was agitated. She said, “he’s
comin’,†and urgently told Douglas Jr. to “drive off.â€
As
Douglas Jr. made a u-turn, he saw “[s]ome dude†he did not know approach. The man pointed a handgun at Douglas Jr. and
told him to stop the car. Two other men
were off to the side. The man with the
gun walked around to the passenger side and told Moore to get out of the
car. Moore refused. Douglas Jr. told Moore, “the dude got a
gun. Open the door.†When Moore still did not open the door,
Douglas Jr. reached across Moore and opened her door.
Douglas
Jr. asked what was going on. The man
responded: “ ‘It has nothing to do
with you.’ †Douglas Jr. tried to
explain that he and Moore were not involved; as he put it, “[Moore was]
actually trying to get high.†This
explanation made the armed man angrier.
He began swearing at Moore, telling her she was not supposed to get
high. He also said something like, “this
is my kid.†Moore still refused to get
out of the car. After five minutes, the
man said, “forget it,†shut the car door, and walked off.
Douglas
Jr. drove up the street a block, pulled over, and asked Moore to get out of the
car because he did not want trouble.
Moore responded that she still wanted to buy marijuana, and if he waited
a few minutes, she would run back to the house to get $10. Douglas Jr. needed gas money in order to get
to his son’s birthday party and he reluctantly agreed. Moore returned a few minutes later with the
cash, and Douglas Jr. gave her a small bag of marijuana. He then drove Moore back to the West Ruby
Street projects.
There,
they again met up with Perez. Perez
joined them in the car. Douglas Jr.
agreed to give Moore and Perez a ride to San Pablo since he was heading to
Pinole. Along the way, the three stopped
by a gas station and smoked marijuana.
Moore’s friend’s home in San Pablo.
Douglas Jr. went to his son’s birthday party in Pinole.
Later
that evening, Moore called Douglas Jr. for a ride home. He picked up the women, and they went to
another house where they “got high some more.â€
Douglas Jr. commented that he needed to get his hair twisted again, and
Moore offered to twist his braids for him.
Douglas Jr. drove the women to his father’s home on First Street where
he kept his hair products.
Douglas
Jr. arrived at his father’s house after 1:00 a.m., and backed his car into
the driveway. He called his father on
his cell phone to let him in. Douglas
Jr. went inside the house for several minutes while the women waited in the
car. Perez was in the back seat and
Moore was in the front passenger seat.
Douglas Jr. returned and put his hair products in the car. As Douglas Jr. started to get in the driver’s
side of the car, he heard the sound of someone coming up behind him. He looked up and saw “[s]ome dude in a hoodâ€
approaching with a gun in his hand. A
second man was standing nearby, about a car length away.
The
armed man went around to the passenger side, opened the passenger door, and
started arguing with Moore, telling her to get out. Not wanting a commotion outside his father’s
house late at night, Douglas Jr. told Moore:
“Get the fuck up off my car with this shit.†Immediately thereafter, the man raised the
gun and shot Douglas Jr. in the neck.
ground next to his car, where he played dead.
Both men came around to the driver’s side and went through Douglas Jr.’s
pockets, taking his wallet. Douglas Jr.
still had his cell phone in his hand. He
called his father and whispered into the phone that he had been shot.
Douglas
Jr. did not see his father come outside.
However, as Douglas Jr. was laying on the ground, he heard the gate open
and heard Douglas Sr. say, “Hey little nigga.â€
Then, Douglas Jr. saw the man who had shot him extend his right arm and
heard the man fire three shots at Douglas Sr.
He did not see the gun.
Immediately after the three shots were fired, the armed man fled the
scene.
Douglas
Jr. ran across the street to his neighbor’s house and frantically asked him to
call an ambulance for his father. The
police were dispatched to the scene at 1:25 a.m., and arrived within a few
minutes. Douglas Jr. was taken, by
ambulance, for treatment. Douglas Sr.
suffered gunshot wounds to the chest
and the foot and was pronounced dead at the scene.
At
trial, Douglas Jr. denied knowing the shooter’s identity and denied ever
telling the police that Turner was the shooter.
He also testified that the shooter was not the same person who
confronted him and Moore with a gun on Warren Street. The two men had different body types and
voices. They were also wearing different
clothes. Douglas Jr. testified: “Code on the streets is don’t tell, snitch.
[¶] . . . [¶] Could be the end of you, could be fatal.†Douglas Jr. admitted that he had a criminal
history, including convictions for possession of a stolen car and petty
theft. He was on probation at the time
of the shootings.
On
cross-examination, however, Douglas Jr. was asked about his statements to police
after the shooting. Douglas Jr.
initially told police that he had been robbed by someone he did not know. After being released from the hospital, he
repeated the same story. He was
contacted by officers again on November 9 and November 10. On November 10, the police came to Douglas
Jr.’s house and said, “you gotta come talk to us.†Douglas Jr. explained that he didn’t want to
talk. The officer’s asked Douglas Jr. if
he was on probation. When he said “yes,â€
the police said: “[T]ough luck. You’re going with us now.†At that point, Douglas Jr. “felt there was no
options, really . . . .
[He didn’t] want to go to jail.â€
Douglas Jr. was taken to the Martinez police station, where the officers
said nothing further about his probation.
At the station, Douglas Jr. finally mentioned he was with Perez and
Moore. Thereafter, the police “kept
bothering†him. Douglas Jr. continued to
resist talking to police. On November
16, Douglas Jr. again spoke with the police.
Perez
testified that, on November 6, 2009, Douglas Jr. drove by the West Ruby Street
projects, where Moore and Perez were hanging out. Moore and Perez walked over to his car. Moore got into the car, while Perez stayed
behind. Moore and Douglas Jr. returned
10 or 15 minutes later. Douglas Jr.
gave Moore and Perez a ride to San Pablo.
Along the way, the three stopped by a gas station and smoked
methamphetamine. Douglas Jr. then
dropped the women off at Moore’s friend’s home, in San Pablo, where they
watched television.
Later
that evening, Douglas Jr. returned to pick up Moore and Perez. According to Perez, he drove them straight
back to North Richmond. Douglas Jr.
commented that he needed to get his hair twisted again, and Moore agreed to
twist his braids for him. Douglas Jr.
drove the women to his father’s home on First Street where he kept his hair
products.
Douglas
Jr. arrived at his father’s house and backed his car into the driveway. Douglas Jr. went inside the house for several
minutes while the women waited in the car.
Douglas Jr. returned with his hair products. However, unlike Douglas Jr., Perez testified
that once back in the car, Douglas Jr. complained that he needed to fix the
amplifier in his car to improve the sound quality. Moore offered that she knew how to adjust the
amplifier, and the two of them opened the trunk and worked for several minutes
while Perez waited in the back seat.
When they finished, Moore returned to the passenger seat and Douglas Jr.
headed for the driver’s seat. As Douglas
Jr. started to get in the car, Perez saw Turner approaching.
Turner
went to the passenger side of the vehicle and started arguing with Moore,
telling her to get out. The passenger
door was open, and at some point Moore began hugging Turner around the waist,
saying, “[B]aby, it’s okay. Stop.†Douglas Jr. was standing between the car and
the open driver’s side door. Perez heard
a gunshot and saw Douglas Jr. fall to the ground. Perez testified that she had seen a black
handgun in Turner’s left hand, which was pointed at the ground when Turner was
arguing with Moore.
name="_ftnref6" title="">[6] Perez was asked: “If [Turner] was holding the gun, and he was
pointing the gun over the hood of the car, would you have been able to see his
hand or the gun from your vantage point?â€
She answered: “No.â€
After
the shot was fired, Moore was already out of the car and the passenger door was
closed. Turner looked at Perez and said,
“ ‘Vanessa, get out.’ †Perez
said she was “freaking out.†She could
not open the passenger door because it was broken, so she climbed out through
the driver’s door. When she got out of
the car, Turner told her not to tell anyone.
She promised she would not and started to run. She noticed a second man standing on the
sidewalk, but she did not see him holding a gun. When Perez was around the corner, running
toward the projects, she heard approximately four more shots fired. Moore ran in the opposite direction. Perez did not see anyone go through Douglas
Jr.’s pockets.
A few
days later Perez was picked up by police and spoke with them at the police
station. From a photographic lineup, she
identified Turner as the shooter. Since
December of 2009, Perez had been receiving $800 per month for rent and $575 for
incidentals from the district attorney’s witness relocation program. She had been threatened by a man named
“Dante.â€
title="">[7]
Jeff
Moule, then a homicide sergeant with the Contra Costa County Sheriff’s Office,
responded to the scene. On November 7,
Moule interviewed Douglas Jr. after he was released from the hospital. Douglas Jr. told Moule that two unknown men
ran up to him, said it was a robbery, shot him, and then fled on foot. Douglas Jr. did not mention Perez or
Moore. Later on November 7, Moule
received a tip about the identity of the shooter. Moule prepared a photo lineup including
Turner’s picture and showed it to Douglas Jr. that evening. Douglas Jr. claimed that the shooter was not
in the lineup. However, Moule observed
that Douglas Jr. avoided looking at Turner’s photograph.
On
November 9, 2010, Moule again met with Douglas Jr., who said that he lied in
his earlier statement because he feared for his safety and that of his
family. He told Moule that “[the police]
were on the right track†and to keep doing what they were doing. Moule asked Douglas Jr. to come to the
station to give an interview the next day, but agreed to let Douglas Jr.
discuss it with his family first.
The
following day, Douglas Jr. initially balked at going to the station. Moule then told Douglas Jr. that he was
interfering with the investigation and “being on probation, that is not really
a proper way to interact with law enforcement.â€
Moule told Douglas Jr.: “[H]e
needed to come down, that [Moule] hadn’t called his probation officer but
. . . could have done [so].â€
At this point, Douglas Jr. agreed to be interviewed at police
headquarters. In the interview, Douglas
Jr. finally mentioned he was with Perez and Moore, mentioned the incident on
Warren Street, and gave a more detailed account of the shooting. Douglas Jr. was clear that the same man with
the gun on Warren Street was the shooter.
However, he still hesitated to identify the shooter, saying he was not
comfortable doing so and needed to talk to his relatives.
On
November 11, Moule interviewed Perez, who gave a full account of the evening
and identified Turner as the shooter.
Turner turned himself in that same day.
On November 14, Douglas Jr. called Moule and said that the shooter’s
photo had been in the bottom right corner of the photographic lineup. That photo was of Turner. On November 16th, Douglas Jr. came to the
station on his own. He picked Turner out
of a new photographic lineup and gave a taped statement identifying Turner as
the shooter. The prosecution played a
video recording of Douglas Jr.’s November 16th taped interview.
Four
shell casings were found at the scene. A
fired projectile was also found in the front passenger floorboard area of
Douglas Jr.’s car. Bullet damage was
found in the roof. Ballistics testing
demonstrated that the four shell casings found at the scene were all fired by
the same .40 caliber semiautomatic handgun.
Defense Case
Turner’s
mother, Rhashonda Stevenson, testified that Turner is left-handed. On November 11, 2009, Stevenson drove Turner
to the police station, after learning that he was a murder suspect. She also confirmed that Turner and Moore had
a child together. The child was born in
September 2008.
Turner
did not testify. However, he was
directed by defense counsel to handwrite his name and the letters A through F
on an easel in front of the jury. The
record reflects that he did so with his left hand.
Verdict and Sentence
In
his closing argument, Turner’s trial counsel argued that the prosecution’s main
witnesses, Douglas Jr. and Perez, were not credible. He maintained that their testimony
implicating Turner was not corroborated, as Turner was left-handed and there
was no fingerprint or DNA evidence tying Turner to the scene.
The jury convicted Turner,
on count one, of the lesser included offense of second degree murder and, on
count two, the lesser included offense of attempted voluntary
manslaughter. The jury also found the
firearm enhancements to be true as to both counts. The jury found Turner not guilty of robbery,
but hung on the lesser included offenses for that charge, and the court
declared a mistrial as to the lesser charges.
Turner was sentenced to a term of 47 years to life in state prison and
the prosecution dismissed the remaining charges. Turner filed a timely notice of appeal.
II. Discussion
On
appeal, Turner contends that:
(1) Douglas Jr.’s statements to police, made after November 10,
2009, were coerced and that their admission at trial violated Turner’s right to
a fair trial; and (2) that the trial court violated Turner’s due process rights
by instructing the jury pursuant to CALCRIM No. 375 on consideration of
evidence of other offenses (the Warren Street incident) to establish identity.
A. Coerced Statements to
Police
First,
Turner argues that the trial court erred by denying his motion to exclude
Douglas Jr.’s statements to police made after November 10, 2009. He contends that the statements were coerced
and that their admission (in the form of the videotaped interview and Moule’s
testimony) violated his right to a fair
trial.
“[D]efendants
generally lack standing to complain that a police interrogation violated a
third party witness’s Fifth Amendment privilege against self-incrimination or
Sixth Amendment right to counsel, nor may a defendant complain that law
enforcement officers violated a third party witness’s Fourth Amendment
rights. (People v. Badgett (1995) 10 Cal.4th 330, 343 [(Badgett)].) A defendant may
assert a violation of his or her own right to due process of the law and a fair
trial based upon third party witness coercion, however, if the defendant can
establish that trial evidence was
coerced, or rendered unreliable by prior coercion, and that the admission of
this evidence would deprive the defendant of a fair trial. (People
v. Jenkins (2000) 22 Cal.4th 900, 966, 969; [Badgett,] at
pp. 347, 348.)†(
405, 452–453, parallel citations omitted.)
The defendant bears the burden to prove both “improper coercion†and
that “the pretrial coercion was such that it would actually affect the
reliability of the evidence to be presented at trial.†(Badgett,
at p. 348, fn. omitted.)
“[T]he
primary purpose of excluding coerced [statements] is to assure the reliability
of the trial proceedings . . . .†(Badgett,
supra, 10 Cal.4th at p. 347.)
“Although the out-of-court statement itself may be subject to exclusion
because coercion rendered it unreliable, it is more difficult for a defendant
to establish that the court should exclude the witness’s trial testimony. As we have
explained, ‘[t]estimony of third parties that is offered at trial should not be
subject to exclusion unless the defendant demonstrates that improper coercion
has impaired the reliability of the testimony.’
([Badgett,]
demonstrate how the earlier coercion ‘directly impaired the free and voluntary
nature of the anticipated testimony in the trial itself’ (People v. Boyer (2006) 38 Cal.4th 412, 444) and impaired the
reliability of the trial testimony ([Badgett,]
v. Williams, supra, 49 Cal.4th at p. 453, fn. & parallel
citation omitted.)
“On
appeal, we independently review the entire record to determine whether a
witness’s testimony was coerced, so as to render the defendant’s trial
unfair. [Citation.] In doing so, however, we defer to the trial court’s
credibility determinations, and to its findings of physical and chronological
fact, insofar as they are supported by substantial evidence.†(People
v. Boyer, supra, 38 Cal.4th at p. 444.)
1.
In the middle of Moule’s testimony, outside the presence
of the jury, Turner’s trial counsel moved to exclude any statements Douglas Jr.
made to police after November 10, 2009, on the ground that the statements were
coerced. Specifically, Turner’s trial
counsel argued: “[I]t is my position
those statements over the next five-day period—it’s not a long period, less
than a week—were coerced statements, not in the sense of a gun to the
gentleman’s head, but in the sense he had no choice, given the prospect of
incarceration, and it would be a violation of due process to admit those
statements from that point forward . . . .â€
A hearing was held pursuant to Evidence Code section 402,
in which Moule was examined by the People and defense counsel. Moule testified: “[On November 10,] I [told Douglas Jr.] the
problem is . . . yesterday, you told us that you lied to us, you
know. This is a homicide. It’s a serious investigation. You’re on probation. I think you need to come down with us. You know, you admitted to interfering with
our investigation. We’re heading in a
direction and then you lied to us. You
told us nope, that’s not it. [¶] So now we’re looking around some
more. We’re using resources,
. . . but then you admit no, that was a lie. You’re on the right track. We’re at a standstill waiting on your
truthful statement regarding what happened here. [¶] Will you please come
with us and talk with us . . . ? [¶] . . . [¶] I
don’t recall I ever said . . . you’re going to be under arrest or
going to jail or anything like that. You
know, I made mention of probation, calling his probation officer. I said I had not yet. Made mention that he was interfering, and
. . . by admitting that he lied to us and we’re on the right track,
he was confusing our investigation, and we needed to get the truth out so we
can move forward. That was the
extent.†When Douglas Jr. did speak to Moule,
later that day, he discussed the involvement of Moore and Perez, the Warren
Street incident, and also said that the same man later shot him and his
father. However, Douglas Jr. continued
to refuse to identify the shooter by name.
Between
November 10 and November 14, Moule repeatedly called and left messages for
Douglas Jr. On November 14, 2009,
Douglas Jr. called Moule on the phone and said he “want[ed] to come
clean.†Douglas Jr. identified the
shooter’s location in the photographic lineup he had previously been
shown. No mention of probation or
interference with an investigation came up during that conversation. On November 16, 2009, Douglas Jr. showed up
at the police station on his own. Moule
showed Douglas Jr. a second photo lineup and recorded a short interview. During that interview, Douglas Jr. identified
Turner as the shooter. Douglas Jr.’s car
and cell phone were returned to him that same day. Douglas Jr. was never handcuffed.
After
hearing argument, the trial court concluded that the police conduct did not
rise to the level of coercion. The trial
court explained: “First of all,
naturally they were calling him because he was a victim and percipient witness,
so I don’t find that coercion. They gave
him a lot of opportunity to come forward.
While . . . Moule mentioned that the probation, and certainly
one could say there’s an implicit threat in that. I don’t find that he threatened him in any way
that caused [Douglas Jr.] to come forward. [¶] I think [Douglas Jr.] came
forward on his own volition, and I think that’s particularly highlighted by the
fact that on November 14, [Douglas Jr.] calls . . . and comes in [on
November 16,] voluntarily. He comes
in on his own. He isn’t even picked up
and brought in by law enforcement then . . . . And there was a lapse of time between the
first interview on the 10th and when he ultimately called . . . on
the 14th of November. [¶] So I’m not finding that he was coerced or
threatened, and I do agree that if you do mention the probation officer, there
could be an implicit threat there, but he just mentioned ‘I haven’t called the
probation officer.’ He hasn’t gone on in
great detail . . . about what could happen . . . if I
called probation officer. [¶] And I do find . . . Moule very
credible.†Turner’s motion was denied.
2.
Turner
contends that Moule’s reference to Douglas Jr.’s probation officer made the
statements coerced. A witness’s
statement is coerced if it is the product of police conduct which overcomes the
individual’s free will. (
772, 782 (Lee).) A statement is considered involuntary if not
“ ‘ “the product of a rational intellect and a free
will.†’ †(
398.) Voluntariness is tested by the
totality of the circumstances, including the details of the interrogation and
the characteristics of the witness. (
959, 981, disapproved on other grounds by Price
v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13;
U.S. 218, 226.)
During
witness interviews, the police “are not precluded from discussing any
‘advantage’ or other consequence that will ‘naturally accrue’ in the event the
[witness] speaks truthfully about the crime.
[Citation.] The courts have
prohibited only those psychological ploys which, under all the circumstances,
are so coercive that they tend to produce a statement that is both
(People v. Ray (1996)
13 Cal.4th 313, 340.) Urging an
individual to tell the truth is not coercive.
(People v. Hill (1967) 66
Cal.2d 536, 549.) Further, even if the
police promise a benefit, if it is one “which flows naturally from a truthful
and honest course of conduct,†the conduct is not improper, ergo, not
coercive. (Ibid.) “We have never held,
nor has any authority been offered in support of the proposition, that an offer
of leniency in return for cooperation with the police renders a third party
statement involuntary or eventual trial testimony coerced.†(Badgett,
supra, 10 Cal.4th at p. 354.)
In
supra, 95 Cal.App.4th 772, the reviewing court reversed the defendant’s
murder conviction after determining that police had coerced a statement from a
witness by giving him a polygraph test, falsely stating that the test indicated
a 97 percent probability that the witness himself was the killer, and
threatening to charge him with first degree murder if he did not name the
defendant as the killer. The officer,
not the witness, first brought up the defendant’s name in connection with the
murder. (Id. at pp. 781–785.) The
reviewing court concluded that that the witness’s statement was coerced. It observed:
“It is . . . well established exhortations directed to the
suspect or witness to ‘tell the truth’ are not objectionable. . . .
[¶] . . . [¶] . . . [But,] the interrogation of [the
witness] was not designed to produce the truth as [the witness] knew it but to
produce evidence to support a version of events the police had already decided
upon. In this respect, the police
crossed the line between legitimate interrogation and the use of threats to
establish a predetermined set of facts.â€
(Lee, at pp. 785–786,
fns. omitted.)
Contrary
to Turner’s suggestion, this case is nothing like Lee, supra, 95 Cal.App.4th 772.
call his probation officer unless he implicated Turner, nor did Moule ever
suggest any particular statement police wanted Douglas Jr. to give. There is no evidence that, before Douglas Jr.
implicated him, Turner’s name was even mentioned by Moule. To the extent Moule pressured Douglas Jr., it
was only to tell the truth. Such
pressure is permissible. (See
p. 445; People v. Jenkins, supra,
22 Cal.4th at p. 1010; People v.
Hill, supra, 66 Cal.2d at p. 549.)
Even immediately after being subject to Moule’s pressure, on November
10, Douglas Jr. continued to refuse to name the shooter. It was only days later, after Turner had
turned himself in, that Douglas Jr. himself initiated statements to police that
implicated Turner. The evidence in fact
indicates that any “coercion†Douglas Jr. felt was not from police conduct, but
from his concern not to be identified as a “snitch†who voluntarily provided
information to police. We conclude that
Turner has not met his burden, under the totality of the circumstances, to show
that Douglas Jr.’s statements, made after November 10, 2009, were tainted by
improper coercion.
B. CALCRIM No. 375
Next,
Turner contends that the trial court erred, and violated his due process
rights, by instructing the jury with a modified version of CALCRIM
No. 375. The jury was instructed as
follows: “The People presented evidence
that the defendant committed another offense of brandishing a weapon in
violation of . . . section 417 that was not charged in this case;
[¶] AND [¶] The People presented evidence that the defendant had an
altercation with [Moore] and [Douglas Jr.] on Warren Street before the
shooting. [¶] You may consider this evidence only if the People have
proved by a preponderance of the evidence that the defendant committed the
uncharged offense and/or had the altercation.
Proof by a preponderance of the evidence is a different burden of proof
than beyond a reasonable doubt. A fact
is proved by a preponderance of the evidence if you conclude that it is more
likely than not that the fact is true. [¶] If the People have not met this
burden, you must disregard this evidence entirely. [¶] If you decide that
the defendant committed the uncharged offense or act you may, but are not
required to, consider that evidence for the limited purpose of deciding whether
or not: [¶] The defendant was the person who committed the offenses alleged
in this case; or [¶] The defendant acted with the intent to rob [Douglas
Jr.], kill [Douglas Jr.] or kill [Douglas Sr.]; or [¶] The defendant had a
motive to commit the offenses alleged in this case. [¶] Do not consider
this evidence for any other purpose except for the limited purposes of
identity, intent and/or motive. [¶] Do
not conclude from this evidence that the defendant has a bad character or is
disposed to commit crime. [¶] If you conclude that the defendant committed
the uncharged offense and/or act, that conclusion is only one factor to
consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant is guilty of
murder, attempted murder, or robbery.
The People must still prove each charge and allegation beyond a reasonable
doubt.â€
Turner
argues that his due process rights
were violated because “the Warren Street incident was not [Evidence Code
section] 1101(b) evidence†and that “this instruction . . .
permitt[ed] the ultimate issue of identity to be proven by a lesser standard of
proof.†We need not decide the issue,
because we find that Turner invited any error.
1.
Contrary to Turner’s contention on appeal, it was defense
counsel who specifically requested CALCRIM No. 375 and not the
People. In response, the People proposed
a modification to CALCRIM No. 375.
The following discussion regarding the proposed
modification took place on the record:
“[DEFENSE COUNSEL]:
What [the prosecutor] has done in the instruction is he’s taken out the
two types of evidence that this instruction applies to the evidence of other
crimes and evidence of other acts—(a) and (b) sections in the general
instruction, combined them and worded it as an altercation that [Turner] was
involved in, and that’s all they have to prove by a preponderance of the
evidence that there was an altercation that he was involved in. And that’s not the case. That’s not the law. That’s not what triggers you having to give
this instruction. What triggers you
having to give this instruction is the evidence of other uncharged
offenses. You have to specify what those
offenses are. In this case, at a
minimum, there’s a brandishing, arguably, there’s also a false imprisonment by
pointing the gun and making him stop, and so it’s not enough for [the
prosecutor] to prove by a preponderance an altercation that [Turner] was
involved in in some generic way, but rather there are specific offenses that
were committed and those offenses, if proved to the preponderate standard, can
be used to establish a motive, identity, and then [intent.] [¶] . . .
[¶]
“I think we have to specify for them what those offenses
were and the reason for that is that this
instruction is really supposed to apply [to] 1101 situations where
more commonly what happens . . . is that you have a case brought to
trial and then you have another crime that’s been adjudicated, or not, at some
prior date that’s not even related to this crime in the sense of happening on
the same day or anything like that.
“THE COURT: Right.
“[DEFENSE COUNSEL]:
And then it’s either criminal signature or may provide motive because
it’s the same victim at a different time or something like that. Here we
have a somewhat different—although, obviously not unprecedented situation where
on the same day, there’s a previous altercation which gives [
these other things. Nonetheless, because
it is other crimes evidence, I think it has to be spelled out as such and
more general references to whether the defendant was involved in an altercation
is insufficient. [¶] . . . [¶] So I would propose that you keep the instruction as you printed it
out, insert the words ‘brandishing’ and then, if you agree, ‘false
imprisonment’ or just ‘brandishing’—either one I’d probably be comfortable with
in (a)—and the rest of the instruction as it goes.
“THE COURT:
Wouldn’t that then require, though, that I have to give instructions on
the elements of brandishing and false imprisonment as well?
“[DEFENSE COUNSEL]:
In theory, yes.
“THE COURT: And
when I look at this instruction, I’m not sure it’s applicable to these
facts. And I’m looking at the bench
notes that indicate that the Court must give this instruction on request when
evidence of other offenses has been introduced. . . . [¶] Doesn’t
seem like it’s applicable to the facts in this case.†(Italics added.)
Turner’s trial counsel agreed that “[CALCRIM No. 375
is] not applicable as a sua sponte instruction†but argued that it should be
given nonetheless because “the Court must give this instruction on request when
evidence of other offenses have been introduced.†He explained:
“[CALCRIM No. 375] traditionally comes up in the situation where
there’s a clear distinct crime either the defendant’s been convicted of or
committed at an entirely different time or different day. [¶] While that’s
the more common situation for this to come up, it does appear to apply to our
situation because other offenses have been introduced, and the People are
trying to claim that those other offenses prove . . . the motive,
intent, and identity elements. [¶] And so given that they’re trying to do
that, I think that the instruction is
proper, but not as modified by counsel.â€
(Italics added.)
The prosecutor responded:
“Your Honor, let me tell you the problem I have with the instruction
. . . . My point is, what
if the jury believes there was an altercation, what if they believe [Douglas
Jr.] is accurate in his identification of [Turner] on Warren Street? What if they’re convinced of that, but yet
they’re not convinced that a crime was committed, and the instruction tells
them to reject all of that evidence if they’re not convinced a crime was
committed. And that’s why I put
altercation down because if they feel that [Turner] had a gun but didn’t
brandish it or that he made comments but they don’t rise to the level of false
imprisonment, then [
in that instance, according to the instruction, the jury would be required to
reject and not consider any of the evidence of what happened on Warren Street,
and that is patently unfair and incorrect. [¶] That’s why I put in
altercation because the fact that he saw this man out there is important to
this case, and the fact that the man got into some sort of beef or altercation
with [Moore] is also important to this case.
It’s not important to this case that he may or may not have brandished a
firearm in the sense that he committed a crime out there at that scene, so the
evidence wasn’t introduced in some fashion to show because he brandished
therefore he killed. [¶] The evidence was introduced to corroborate the
identification of [Turner] by [Douglas Jr.], and to show that there is a
motive.â€
Turner’s trial counsel responded: “The way you get around the problem that [the
prosecutor] mentions is you write the
instruction in the conjunctive [sic]
commission of a crime or . . . the fact that they saw each other at least on Warren Street—then you can use
this evidence for these purposes, and so that’s the way you get around it.
[¶] You don’t toss out the entire
instruction. . . . [¶] . . .
[¶] . . . And so I think if you word it with an ‘or’
between—either he committed these crimes or they saw each other on Warren
Street or something like that, that would be the way for [the prosecutor] to
still be able to argue that, at a minimum, he had an ability to identify him
later in a photo lineup because he had seen him before and . . .
that’s how he recognized the shooter . . . .†(Italics added.)
Later in the discussion regarding jury instructions, the
court returned to CALCRIM No. 375.
The following colloquy occurred on the record:
“[DEFENSE COUNSEL]:
What I’m asking is that in the (a) paragraph, [section] 417, comma,
brandishing firearm, refer to the definition elsewhere in these
instructions. Then I suppose in
paragraph (b), it could be worded as the defendant and [Douglas Jr.] had a
confrontation earlier on Warren street.
“THE COURT: I
could use the language that [the prosecutor] proposed.
“[DEFENSE COUNSEL]:
Sure. Yeah, as long as it’s in a
separate paragraph, but ‘involved’ is what I’m objecting to, not so much ‘an
altercation,’ just ‘involved’ is too vague a term. So they had an altercation. That would be sufficient in my view.
“THE COURT: I
think that’s what he said.
“[DEFENSE COUNSEL]:
That they had an altercation on Warren street, that would be fine.
“THE COURT: Yes.
“[DEFENSE COUNSEL]:
That would specify it enough for my purposes.
“THE COURT:
Okay. I’ll use that language.â€
2.
We
agree with the People that the doctrine of invited error bars Turner from
raising his current complaint. “The
doctrine of invited error bars a defendant from challenging an instruction when
the defendant has made a conscious and deliberate tactical choice to request
it. [Citations.]†(People
v. Enraca (2012) 53 Cal.4th 735, 761; People
v. Harris (2008) 43 Cal.4th 1269, 1292–1294.) “ ‘The doctrine of invited error is
designed to prevent an accused from gaining a reversal on appeal because of an
error made by the trial court at his behest.
If defense counsel intentionally caused the trial court to err, the
appellant cannot be heard to complain on appeal. . . . [I]t also must
be clear that counsel acted for tactical reasons and not out of ignorance or
mistake.’ In cases involving an action
affirmatively taken by defense counsel, we have found a clearly implied
tactical purpose to be sufficient to invoke the invited error rule. [Citations.]â€
(People v. Coffman and Marlow (2004)
34 Cal.4th 1, 49; see also People v.
Wader (1993) 5 Cal.4th 610, 657–658.)
If the record shows no tactical decision, the invited error doctrine is
not applied. (People v. Harris, supra, 43 Cal.4th at p. 1299.)
Here,
as the above excerpts from the record make clear, Turner’s trial counsel did
not merely acquiesce. In fact, he
affirmatively requested CALCRIM No. 375 and affirmatively sought the modified
language that was ultimately presented to the jury. We can infer that Turner sought a tactical
advantage in doing so. Namely, he sought
to add to the prosecution’s burden of proof with respect to the Warren Street
incident. Thus, Turner cannot be heard
to challenge the instruction on appeal.
III. Disposition
The
judgment is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Simons, J.
name="_ftn1" title=""> [1]
To avoid confusion, we refer to the victims as Douglas Sr. and Douglas Jr.
name="_ftn2" title=""> [2]
All further section references are to
the Penal Code unless otherwise indicated.
