P. v. McConnell
Filed 7/18/13 P. v. McConnell CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RONNIE McCONNELL,
Defendant and Appellant.
B243017
(Los Angeles
County
Super. Ct.
No. NA088369)
APPEAL from
a judgment of the Superior Court
of
County. Tomson T.
Ong, Judge. Affirmed as modified.
Allison H. Ting, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Brendan
Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
Appellant
Ronnie McConnell appeals from a judgment entered after a jury convicted him of
two counts of premeditated attempted
murder (Pen. Code, §§ 664/187, subd. (a))
personally used and intentionally discharged a firearm that caused great bodily
injury (§§ 12022.53,
subd. (d), & 12022.5, subd. (a)). In
a bifurcated proceeding, appellant admitted allegations that he had suffered
one prior prison term (§ 667.5, subd. (b)) and a felony conviction within the
meaning of the “Three Strikes†law (§§ 667, subds. (b)-(i), & 1170,
subds. (a)-(d)), which was also a serious felony pursuant to Penal Code
section 667, subdivision (a).
The trial
court sentenced appellant to a term of 75 years to life in prison. On count 1, appellant was sentenced to
the base term of seven years to life doubled pursuant to the Three Strikes law,
plus consecutive terms of 10 years for the firearm enhancement (§ 12022.5, subd.
(a)), five years for the prior serious felony conviction (§ 667,
subd. (a)(1)), and one year for the prior prison term (§ 667.5, subd.
(b)). On count 2, appellant was
sentenced to the base term of seven years to life doubled pursuant to the Three
Strikes law, plus consecutive terms of 25 years to life for the firearm
enhancement (§ 12022.53, subd. (d)), five years for the prior serious felony
conviction (§ 667, subd. (a)(1)), and one year for the prior prison term
(§ 667.5, subd. (b)). The court imposed
a $1,000 assessment pursuant to Penal Code section 1464 and Government Code
section 76000.
Appellant
contends (1) the trial court erroneously admitted, over defense counsel’s
objection, irrelevant, inflammatory, and cumulative gang evidence; (2) the
imposition of the assessment in the amount of $1,000 was unauthorized; and (3)
the reference to Penal Code section 667.61 in the abstract of judgment must be
stricken. We disagree with the first of
these contentions but agree with the others.
Accordingly, we will modify the judgment to strike the unauthorized
assessment and the reference to Penal Code section 667.61, and affirm the
judgment as modified.
FACTS
Prosecution Case
On January 18, 2011, around 9:00
p.m., Donald Greene was on the north side of South Street, in the City of Long
Beach. He saw his grandson Maurice
Harrison, and Darrell Mitchell walking eastbound on the south side of South
Street. Harrison was texting on his cell
phone, while Mitchell was walking about 10 feet ahead of him. As they passed a maroon-colored Ford Taurus
that was parked in front of a driveway, Greene saw the driver get out of the
car holding a shotgun.
Harrison
saw an individual get out of the passenger side of the Ford Taurus and heard
someone say “Where you from, cuz?†which he understood to mean that he was being
asked what gang he was from. He saw a
light-skinned African-American male who was trying to hide his face. He immediately heard a loud boom which he
recognized as a shotgun blast and ran back in the direction he had come
from. He was hit in his back by a
shotgun blast. He hid behind a
tree. He looked back in the direction of
the Ford Taurus and saw a person by the driver’s side pointing a shotgun at
him. Harrison heard another shotgun
blast and was hit in the arm. He ran
towards a fence and tried to escape. He
was hit by a third blast that knocked him through the fence. He crawled away and eventually made his way
to the nearest store.
Mitchell
saw appellant get out of the front passenger seat of the Ford Taurus. Appellant looked Mitchell “straight†in the
face. Mitchell continued on for a few
steps and then heard someone ask “Where you from?†He turned around to see if Harrison was
talking to someone and immediately heard a shotgun blast. Mitchell ran eastbound on South Street and
saw Harrison running in the opposite direction.
He turned to look back and saw appellant coming in his direction. Mitchell turned to run again and suffered a
gunshot wound to his back.
Greene saw
the driver of the Ford Taurus fire the shotgun and heard the blasts. He saw appellant get out of the car and chase
Mitchell. He then heard two or three
handgun shots coming from the direction of where appellant was chasing
Mitchell. Appellant returned to the Ford
Taurus and Greene watched as appellant and the driver left the scene.
Harrison
was treated for gunshot wounds to his back and left arm. He was struck by 15 pellets in the back and
some pellets remained in his left arm.
Mitchell suffered a “through-and-through†gunshot wound that was
consistent with the type of wound associated with a handgun. At trial, Mitchell positively identified
appellant as the individual who got out of the passenger side of the Ford
Taurus. Mitchell testified that
appellant “looked me straight in my face, and I’m the type of person I don’t
forget no face.â€
Long Beach
Police Department Officer Jeffrey Deneen responded to the crime scene and
recovered three expended shotgun casings, a shotgun wadding, and a silver cell
phone.
Detective
Joo Pirooz who was previously assigned to the Long Beach Police Department Gang
Enforcement Unit, was the investigating officer on the case. He examined the silver cell phone found at
the scene and discovered a Facebook application which contained appellant’s
profile picture. Using the information
obtained from the cell phone he obtained a search warrant for appellant’s
residence and garages. A sawed-off
shotgun and numerous unexpended shotgun rounds were found in one of the
garages. Also recovered were a box of
rifle ammunition and some .22 caliber bullets.
Appellant later identified the silver cell phone as his.
Troy Ward,
a criminalist with the Long Beach Police Department crime lab, testified as a
firearms expert. He opined that the
three shotgun casings found at the scene of the shooting were fired from the
shotgun found in appellant’s garage.
Defense Case
The defense read a stipulation
concerning Dr. Graham Purcell, a board certified orthopedic surgeon, who had
reviewed appellant’s medical records that showed appellant dislocated the
carpal bone in his right hand which required surgery on November 23, 2010. Dr. Purcell opined that a surgery of the type
undergone by appellant required wires to hold the wrist in place and the hand
would be enclosed in a hard cast leaving only the fingertips and thumb tip
exposed. The cast was removed on
February 26, 2011. Dr. Purcell
opined that the cast would have prevented appellant from being able to grip and
hold a gun in his right hand. Dr.
Purcell conceded that he had never held a handgun or pulled a handgun trigger
and opined that it would not have been impossible for appellant to fire a
weapon. Appellant did not testify.
DISCUSSION
I. Admission of Evidence Referring to
Gangs
Appellant
contends he was denied a fair trial by the admission of highly inflammatory
evidence—specifically, testimony from which the jury could infer that appellant
was a gang member or affiliated with a gang.
Appellant contends the court abused its discretion in admitting this
evidence when there was no gang allegation charged.
Prior to
trial, defense counsel was concerned with two areas of proposed testimony. The first involved the statement “where you
from†allegedly made either by appellant or the driver of the Ford Taurus. The second concerned a statement appellant
gave to the investigating officer during which accusations and denials of gang
membership occurred. Defense counsel
brought a motion in limine requesting that the witnesses be instructed that “no
reference to gang membership by [appellant] be referred to.â€
The prosecutor
stated that appellant’s girlfriend believed appellant was a gang member and
there was some documentation that he was, but it was not a gang-motivated crime
and the prosecutor was not going to argue that appellant was a gang member.
“where you from†caught the attention of the victims and made them pause and
turn around. The prosecutor intended to
ask the victim what effect the statement had on him, and the victim’s response
would be that he understood the question to mean what gang he was from. The trial court responded that the testimony
was a “non-attribution†and the question and response was appropriate as it
went to the victim’s “state of mind that caught his attention.â€
During her
opening statement the prosecutor described the confrontation as follows: “As the two young friends passed this car
. . . . the two victims heard ‘where you from?’ and the victim
‘what gang are you?’ before they could even answer, the shooters opened
fire.†During trial, the prosecutor
elicited only the information the trial court had ruled appropriate during the
pretrial hearing on the motion. While
discussing the victim in closing argument, the prosecutor stated, “The next thing
he hears is ‘where you from?’ which infers what gang are you from.â€
Gang evidence is
admissible in the prosecutor’s case-in-chief, regardless of whether there is a
allegation, where such evidence is relevant to establish motive, intent or some
fact other than the defendant’s criminal propensity, provided that the probative
value of the evidence is not substantially outweighed by its prejudicial
effect. (People v. Williams (1997) 16 Cal.4th 153, 193; generally Evid.
Code, § 352.) Because the admission of
evidence of a defendant’s participation in a criminal street gang is
potentially inflammatory and creates a risk that the jury will improperly infer
the defendant is guilty because he has a criminal disposition, the trial court
should carefully scrutinize such evidence before admitting it. (People
v. Williams, supra, at p. 193.)
The trial court
has great discretion in determining the admissibility of evidence, and on
appeal, we find reversible error if the trial court’s exercise of its
discretion was arbitrary, capricious, or patently absurd resulting in a
manifest miscarriage of justice. (
Cal.App.4th 587, 606.)
Appellant
argues that the victims’ attention would have been diverted had they been asked
the location of the nearest liquor store or spoken to “in Icelandic†and the
explanation of a gang meaning to the phrase “where you from†was unnecessary
and prejudicial. We will not speculate
as to how the victims would have reacted in hypothetical situations. Here, Harrison’s testimony that he understood
he was being asked what gang he was from had probative value because it was
relevant to show the effect the question “where you from†had on him. It caused him to stop texting on his cell
phone and look up. Similarly, when
Mitchell heard the question, he paused and turned around to look at
appellant. Given the significance of the
statement to the victim’s state of mind, the trial court did not err in
concluding that its relevance was not substantially outweighed by its
prejudicial effect. (See
1121 [evidence is prejudicial if it uniquely tends to evoke an emotional bias
against the defendant without regard to its relevance on material issues].)
We find no
merit in appellant’s contention that the prosecutor’s remarks during argument
constituted prosecutorial misconduct. A
prosecutor is given wide latitude during argument to comment on the evidence,
which includes reasonable inferences, or deductions to be drawn therefrom. (People
v. Sassounian (1986) 182 Cal.App.3d 361, 396.) Moreover, the jury was instructed that
“[s]tatements made by the attorneys during the trial are not evidence.†We presume the jury obeyed these
instructions. (See, e.g.,
684.)
Equally
unavailing is appellant’s contention that the prosecutor introduced gang
evidence through the investigating officer.
At trial, Detective Pirooz testified that he was a “gang detective for
Long Beach Police Department†but was currently assigned to the United States
Marshals Service, Fugitive Task Force.
To establish that Detective Pirooz was the investigating officer in the
case, the prosecutor asked him if his assignment in January 2011 was with the
gang enforcement unit. Detective Pirooz
was not asked and did not volunteer any information about appellant’s gang
affiliation—including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, or rivalries that might
unduly influence the jury to find appellant guilty of the charged crime. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
In sum, no evidence was introduced at any time during the trial, as to
appellant’s gang membership.
Assuming arguendo
evidentiary error, “the admission of evidence, even if erroneous under state
law, results in a due process violation only if it makes the trial
v. Partida (2005) 37 Cal.4th 428, 439.)
“Absent fundamental unfairness, state law error in admitting evidence is
subject to the traditional Watson
The reviewing court must ask whether it is reasonably probable the
verdict would have been more favorable to the defendant absent the error. [Citations.]â€
(Id. at p. 439.) Appellant has not persuaded us that the trial
was fundamentally unfair. As discussed
below, it is not reasonably probable the verdict would have been more favorable
to appellant absent any alleged error.
Even under the
more stringent Chapman
overwhelming. Mitchell testified that
when appellant stepped out of the car he looked Mitchell straight in the face. Mitchell positively identified appellant in
court. Greene saw appellant chase
Mitchell and appellant appeared to be holding a handgun based on his body
language and silhouette. Mitchell
testified that as he ran from appellant he was shot in the back and suffered a
wound consistent with a gunshot from a handgun.
A sawed-off shotgun found in appellant’s garage was determined to have
fired the shotgun casings found at the scene of the crime. A cell phone found near the shotgun casings
contained a Facebook application with appellant’s profile picture. Appellant identified the cell phone as his.
II. The $1,000 Assessment Pursuant to Penal
Code Section 1464 and Government Code Section 76000 Must Be Stricken
Appellant
contends, and the People do not dispute, that the trial court improperly imposed a
$1,000 assessment, pursuant to Penal Code section 1464, and Government Code
section 76000. Penal Code section 1464
and Government Code section 76000 provide for penalty assessments on fines for
criminal offenses. Restitution fines and
parole revocation fines as were imposed here under Penal Code sections 1202.4
and 1202.45 are not subject to these penalty assessments. (People
v. Allen (2001) 88 Cal.App.4th 986, 992–993.) Accordingly, the assessment imposed by the
trial court pursuant to Penal Code section 1464 and Government Code section
76000 was unauthorized and must be stricken.
(People v. Allen, supra, at p.
998.)
III. The Reference to Penal Code Section
667.61 Must Be Stricken
Appellant
argues, and the People agree that the abstract of judgment contains a clerical
error which should be corrected. The
abstract contains a checked box indicating appellant was sentenced pursuant to
the provisions of Penal Code section 667.61.
This is clearly
clerical error. “The distinction between
clerical
error and judicial error is ‘whether the error
was made in rendering the judgment, or in recording the judgment
rendered.’†(In re Candelario (1970) 3 Cal.3d 702, 705.) Appellate courts may order correction of clerical
errors in abstracts of judgment (People v. Mitchell (2001) 26 Cal.4th 181, 188), and we accordingly
order the required correction in this case.
IV. Abstract of Judgment
The $40 court security fee imposed by the
trial court pursuant to Penal Code section 1465.8, subdivision (a)(1) is
applicable to each count. The abstract
of judgment incorrectly records the amount as $40, and must be corrected to
reflect court security fees totaling $80.
Likewise, the trial court was required to impose a criminal conviction
assessment under Government Code section 70373, subdivision (a)(1) in the
amount of $30 for each of the felonies of which appellant was convicted, for a
total assessment of $60. The abstract of
judgment must be amended to so reflect.
DISPOSITION
Upon remittitur issuance, the clerk
of the Superior Court shall prepare an amended abstract of judgment to
reflect: (1) the $1,000 assessment pursuant to Penal
Code section 1464, and Government Code section 76000 is stricken; (2)
the
reference that appellant was sentenced pursuant to section 667.61 is stricken;
(3) the court security fee imposed pursuant to section 1465.8, subdivision
(a)(1) is modified to reflect $80 for the reasons stated herein; and (4) the
criminal conviction assessment imposed pursuant to Government Code section
70373, subdivision (a)(1) is modified to reflect $60 for the reasons stated
herein. The clerk shall forward
the amended abstract of judgment to the Department of Corrections and
Rehabilitation. The judgment is affirmed
as modified.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
FERNS
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
further statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] Appellant’s
statement to the police was not introduced into evidence at trial.
