P. v.
Filed 5/21/13 P. v. Jackson CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
DEMORIA RANDOLPH JACKSON et al.,
Defendants
and Appellants.
B231839
(Los Angeles County
Super. Ct. No. TA087375)
APPEALS
from judgments of the Superior Court of
County, David Sotelo, Judge.
Affirmed as modified.
Deborah
L. Hawkins, under appointment by the Court of Appeal, for Defendant and
Appellant Demoria Randolph Jackson.
Eric
R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant Devin Caress Murphy.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Demoria Randolph Jackson
and Devin Caress Murphy appeal from the judgments entered following their
convictions by jury of first degree
murder and attempted willful, deliberate, and premeditated murder, with
findings that each defendant and a principal personally discharged a firearm
which proximately caused great bodily injury or death to the victims and that
the murder was committed for the benefit of, at the direction of, or in
association with a criminal street gang.
subd. (a), 12022.53, subds. (b), (c), (d) & (e)(1), 186.22, subd. (b)(1)(C).)
to have suffered a prior serious felony conviction within the meaning of
sections 667, subdivisions (b)-(i), 1170.12, subdivisions (a)-(d)
(collectively, the “Three Strikes†law), and 667, subdivision (a). Each defendant was sentenced to 119 years to
life.
Defendants contend
their speedy trial rights were
violated, heavy police presence in the courtroom denied them a fair trial, and
they are entitled to additional presentence custody credits. Jackson
also alleges the prosecutor’s excessive use of his gang moniker and the
admission of Murphy’s out-of-court statements denied him a fair trial, the
trial court’s failure to admit exculpatory hearsay statements denied him a
right to present a defense, and cumulative error warrants a new trial. Murphy urges that if the judgments are
affirmed, liability under the court’s direct restitution order must be made
joint and several.
title="">[3]
We
will direct the superior court to amend each defendant’s abstract of judgment
and, as modified, affirm.
STATEMENT OF
FACTS
I. The Prosecution Case
On
February 19, 2002, at approximately 9:30 p.m., Tarasha Patterson went to visit
a friend on Cairn Avenue. As she parked,
Patterson noticed a small white car across the street. There were two African-American males sitting
in the car, which had its windows down.
Patterson did not get out of her car immediately, as she was wary of the
two males, who appeared to be waiting in their vehicle for no apparent
reason. After waiting for approximately
10 to 15 minutes, she exited and went into her friend’s house. After another 10 minutes, Patterson realized
she had forgotten something in her car.
As she started out of the house, she looked out of the window and
noticed the white car was still parked.
She began to turn the doorknob when she heard gunshots. Patterson ducked down. When she looked up, she saw the white car
driving away.
Patterson
noticed two people who appeared to have been shot. A female was lying on the grass and a male
was crouched down at the passenger side of Patterson’s car. Patterson went over to the female and
observed that she had been shot in the head.
The male had a gunshot wound to his leg.
Cheweakii
Ethrieg and her boyfriend were sitting in a car on Cairn Avenue. She heard multiple gunshots coming from
somewhere behind her. Ethrieg and her
boyfriend ducked down. When she got up,
she saw a small white car driving past.
Los
Angeles County Sheriff’s Department Sergeant Bradd Molner was on patrol when he
received a call regarding a gunshot victim.
When he arrived at the scene of the shooting, he saw the female victim,
Linda Mixon, and the male victim, Roland Bolton. Bolton was sitting on the curb. Paramedics arrived, began treating a wound on
Bolton’s upper thigh, and transported him to the hospital. Mixon was lying on her stomach and appeared
to have a gunshot wound in the back of her head. She was pronounced dead at the scene.
were in their 40’s. At the site of the
shooting, eight .45-caliber and 6 nine-millimeter shell casings and one
expended bullet were recovered.
Detective
Boyd Zumwalt spoke to Bolton at the hospital.
Bolton had been shot multiple times and was an uncooperative
witness. Zumwalt believed the shooting
was gang related because witnesses in such incidents do not want to talk to the
police. Zumwalt later served Bolton with
a subpoena to appear at the prior trial and he failed to appear. Subsequently, Bolton was unable to be
located. He did not testify at any court
proceeding.
On March 17, 2002,
Deputies Jeffrey Houle and his partner James Whitmore went to the residence of
Vertis Nevens, located on West Cypress Street in the City of Compton. The home is approximately one mile from the
location where Mixon and Bolton were shot.
While there, Houle and his partner ran the license plate of a parked
vehicle occupied by Sirone Edmond and Lederrick Jones. After the plate came back to a different car,
Houle got out to investigate. Edmond and
Jones exited their vehicle. With their
hands on their waistbands, they walked into Nevens’s home.
Later,
after Edmond and Jones were detained, Nevens’s house was searched. In his bedroom, the deputies located rifles,
BB guns, a loaded .38-caliber revolver, a loaded .45-caliber handgun, rounds of
ammunition, and photographs. Deputy
Houle testified that one of the photographs depicted Nevens holding the .45-caliber
handgun that was later determined to be one of the murder weapons. The Nevens home is known as a Tragniew Park
Crips gang stronghold. Several members
were jumped into the gang at that residence, others were sent on gang missions
from that location, and the home was used as a gathering place for the
gang. The gang also stored its weapons
at the house.
At
the time of trial, Lederrick Jones was serving a 15-year sentence for voluntary
manslaughter for his participation in a prior shooting. He testified against two others who were involved
in that incident. Jones decided to
testify in the present case because he learned the victim was an innocent
bystander and it was “something . . . on [his] chest†and he “just
wanted to get it off.†He received no
benefit for his current testimony, although the detective promised to help
relocate Jones’s family, as Jones feared retaliation.
Jones
was a member of the Tragniew Park Crips.
He went by the name of Little Slack or Little Bro. There were different generations within the
gang, one of which was the BGs, or Baby Gangsters. Jones had known defendants for a number of
years. They were older members of the
gang and part of the BGs generation.
Jackson was known as Time Bomb and Murphy’s moniker was Stutter
Box. Defendants were close. Jones described them as “road dogs,†meaning
that “when you see one[,] you see the other.â€
On
February 19, 2002, the night Mixon and Bolton were shot, Jones was with
defendants at Vertis Nevens’s house.
Nevens is also a Tragniew Park Crip, who goes by the name of Little Q‑Ball. Also present were C-Rag, Snake, and Blue
Jay. People were smoking and
drinking. Jones drank beer and cognac
and smoked marijuana and PCP. He was
feeling the effects of the PCP. Glenn
Jefferson, also known as Little Jack Dog, drove up in a white Ford Escort. Jefferson was carrying a nine-millimeter
Glock handgun for protection, as he was dealing drugs at the time and carried
large sums of money. He began smoking
PCP with the others.
Jefferson
took the gun from his side and was going to put it in his jacket pocket. Jackson asked to see the gun and took it from
Jefferson. While holding the gun,
Jackson said, “We’re going to fuck up the one time tonight, and bust up on the
Campanellas.†Murphy, who was standing
next to Jackson, said nothing. According
to Jefferson, Jackson meant that they were going to make problems for the
police and shoot a Campanella Piru member.
The Campanellas were enemies of the Tragniew Park Crips.
Jones
left the home with some others, including Blue Jay, and went to the park. When Jones returned, Jefferson was angry
because someone had taken the Ford Escort and his nine-millimeter handgun.
Nevens’s house. A few minutes later,
defendants returned and Jackson said to Jones, “I got a slob bitch and a slob
nigger.†Jones knew that “slob†was a
disrespectful term for a Blood gang member.
Murphy stated, “The BG’s with the business.†Jones stated this meant defendants put in
some work for their gang on some rival Bloods.
Defendants said they lured the victims toward their car by saying, “Hey,
Blood.†Jones saw Murphy with a
.45-caliber gun in his waistband.
Jefferson
asked where his gun was. Jackson
responded, “I just domed a mother fucker.
I got blood all over me.â€
Jefferson said this meant that Jackson had shot someone in the
head. Murphy was standing next to
Jackson when he made the statement and said nothing. Jefferson and Jackson began arguing. Jackson snatched a gold chain from
Jefferson’s neck. Jefferson took off his
jacket and the two men went outside and started fighting. Jackson told another gang member that they
were going to pull Jefferson to a nearby field and kill him. Jefferson’s mother, Syndee, and sister,
Rachel, drove up to the location. Syndee
got involved in the fight. Murphy struck
her on the back of the head and she yelled that someone had hit her. Syndee heard Jackson say, “We’ll smoke you
like we smoked them Campanellas.â€
name="_ftnref7" title="">[7] Rachel moved the car and tried to hit Jackson
with it. Jackson ran down the street and
Murphy followed. Jefferson got into his
mother’s car and the three Jeffersons left.
Jefferson did not see the Ford Escort or his gun again.
According
to Jones, defendants left the location on foot and returned in Jefferson’s
Ford. They began removing shell casings
from the car and wiping down the doors to remove fingerprints. After cleaning the car, they drove the Ford
away.
On
February 28, 2002, Los Angeles Police Officer Mario Cardona and his partner saw
a grey Mazda with an inoperative brake light.
They attempted to perform a traffic stop, but the Mazda did not pull
over. The officers activated the patrol
car’s lights and sirens. The Mazda did
not yield. Cardona turned on a spotlight
and illuminated the interior of the Mazda.
The driver, Jackson, was looking through the rear view mirror at the
officers, and the passenger, Murphy, glanced toward the patrol car and leaned
down toward the floor of the Mazda.
Jackson made a right turn, drove to the middle of the block, and pulled
into a driveway.
Cardona
called for backup units and after they arrived, defendants were told to exit
the Mazda. They complied. After officers discovered that Jackson was
driving with a suspended license, the vehicle was impounded. During an inventory search of the Mazda, a
nine-millimeter Glock handgun was found under the passenger seat.
A
ballistics expert determined that the eight .45-caliber shell casings found at
the scene of the murder were fired from the .45-caliber handgun seized during
the search of Nevens’s home. The
nine-millimeter bullet recovered during Mixon’s autopsy and shell casings
recovered at the location of the shooting were fired from the weapon recovered
from the Mazda in which defendants were stopped by police. The expert examined the Mazda and found no
gunshot residue.
title="">[8]
In
2002, when the Mixon homicide occurred, Detective Q. Rodriguez was a gang
detective assigned to the Tragniew Park Crips.
The gang’s primary activities include murders, attempted murders,
robberies, and narcotics sales.
name="_ftnref9" title="">[9] According to Rodriguez, defendants are
members of Tragniew Park Crips. The
Campanella Pirus, a Blood gang, is a rival of the Tragniew Park Crips. Crips denigrate members of a Blood gang by
referring to them as “Slobs.â€
A
number of calls defendants made while in custody were recorded. Rodriguez listened to several of the tapes of
Murphy’s calls and opined that Murphy:
(1) was aware that Jones and Jefferson would be testifying against him;
(2) was concerned that Jefferson in particular was “the problemâ€; and (3)
discussed getting the mother of his child, Tasheen Bradley, to help him by
giving certain testimony and acknowledged that he would have to tell her what
to say. The tapes were played for the
jury.
Given
a hypothetical based on the facts of this case, Rodriguez stated that he
believed the shooting of Mixon and Bolton was committed to promote, further,
and assist criminal conduct by the Tragniew Park Crips. His opinion was based on the preoffense statements
of defendants that they were going to put in work for the gang and shoot
someone in Campanella gang territory and the manner in which the shooting was
carried out, as it enhanced the gang’s reputation for violence and sent a
message to the Campanella gang that the Tragniew gang was responsible.
II. The Defense Case
On the day of the
shooting, Philip Shivers was living at Vertis Nevens’s home. That evening, he returned home from work and
saw defendant Jackson. Shivers was in
his room in the back of the house when he heard people arguing. He went to investigate and saw Glenn
Jefferson and someone named Ronald quarreling.
Jackson, Jefferson, Ronald, and Lederrick Jones went outside. Shivers saw the men shoving each other, but
no blows were thrown. Because the
situation was upsetting, Shivers walked down the street and got Nevens to come
back to the house to break up the argument.
Shivers did not hear Jackson make any remarks with reference to the
Campanella Park Pirus. According to
Shivers, the Nevens residence was a “fun house†where guys could “play cards
and chess and dominoes.†He denied the
home was a hangout for Tragniew Park gang members.
Jamal
Hakim, also known as Blue Jay, was a sentenced prisoner due to his conviction
for possession of narcotics for sale. In
February 2002, he was a member of the Tragniew Park Crips. Hakim knows defendants, Vertis Nevens, and
Lederrick Jones. Hakim did not recall
where he was on the night of February 19, 2002; however, contradicting Jones’s
testimony, he was not at Vertis Nevens’s home, did not accompany Jones to a
park, and did not see a fight between Jackson and Glenn Jefferson.
John
Treuting is a toxicologist. Toxicology
is the study of the adverse effect poisons have on living organisms. Phencyclidine, or PCP, was developed as an
anesthetic for animals. It was taken off
the market because it caused the animals (and later the humans who tested it)
to act very bizarrely. PCP is a
hallucinogenic drug. The drug affects
people differently; it may act as a depressant on one person and a stimulant on
another. Long-term use can cause brain
damage.
Treuting
reviewed the testimony of Lederrick Jones and Glenn Jefferson. He concluded that Jones was under the
influence of PCP on February 19, 2002.
Jefferson may have felt the effects of the drug to a lesser extent
because he smoked fewer PCP‑laced cigarettes that day than Jones.
John
Green is a forensic print specialist.
Prior to joining the panel of experts for the Los Angeles Superior Court,
he worked for the Los Angeles Police Department in the latent print section of
the Scientific Investigation Division.
Green examined the print lifted from the .45-caliber handgun used in the
murder and compared it to Murphy’s prints.
Murphy’s prints and the print from the gun were not from the same
individual. Green could not say that
Murphy did not touch the gun and acknowledged that it is difficult to leave a
print on a firearm.
Dennis
Cota is a Los Angeles County Fire Department paramedic firefighter. According to a Department report, he
responded to the scene of the shooting on February 19, 2002; however, he
had no recollection of the events. The
report reflected that a victim was pronounced dead at 9:40 p.m.
Tasheen
Bradley has known Murphy since 1994 and they have had a dating
relationship. She was with Murphy on
December 11, 2002, when the police searched her vehicle and recovered a
firearm. The gun was not hers and Murphy
took responsibility for the weapon.
On
February 19, 2002, upon leaving work, Bradley picked up Murphy and they went to
get their daughter from daycare. Bradley
went to school while Murphy looked after the child. After class, Bradley, Murphy, and their
daughter went out to dinner and drove to Murphy’s mother’s house to watch
movies. From the time Bradley got out of
class at 8:00 p.m. until she left to go to her home at 10:30, Murphy did not
leave her side. On the way home, she
dropped Murphy off at a house near where he lived. Bradley conceded that Murphy had to remind
her what they had done on February 19.
Damion
Yeargin has known Murphy for over 20 years.
On February 19, 2002, he was present at Vertis Nevens’s home. On that day, Jefferson and Jones were at the
house. Yeargin believed that Jefferson
arrived first. Jefferson and Jones were
using cocaine and PCP. Yeargin heard
them bragging about putting in work or busting on some Campanellas. He said this meant the two men were talking
about shooting or taking part in gang activity.
They said the victims deserved what they got. Yeargin recalled that after these statements
were made, Murphy was dropped off at the house by Tasheen Bradley at about
10:00 or 10:30 p.m. At the time, Yeargin
was outside watching a police helicopter that was flying over Campanella gang
territory. Yeargin did not see Murphy
with a firearm. Murphy did not state he
had been involved in a crime that had just occurred.
Yeargin
said that Jefferson accused Jackson of taking his gun, Jackson denied it, and
they got into a fight. Yeargin recalled
that Jefferson’s mother appeared, got involved in the fight, and was struck by
someone.
Murphy
testified. On February 19, 2002, he and
Tasheen Bradley picked up their daughter from daycare at about 3:30 p.m. They went to his mother’s house, where he was
living at the time. They ate, watched a
movie, played with their daughter, and had sexual relations. At about 10:00 or 10:30 p.m., Bradley wanted
to leave and he asked her to drop him off at Vertis Nevens’s house. When Murphy arrived, Yeargin was
outside. A helicopter flew overhead and
the men went inside.
Jefferson
entered the residence screaming that he wanted his gun back. He accused Jackson of taking it. A fight ensued. Jefferson’s mother appeared; Murphy denied
hitting her.
When
asked about the nine-millimeter handgun (one of the murder weapons) that was
found under the passenger seat of the Mazda stopped by police, Murphy denied
placing the weapon there or knowing it was in the car. Murphy acknowledged he had suffered four
felony convictions: one for forgery in
1995, one for being a felon in possession of a firearm in 2001 or 2002, one for
burglary in 1997, and another for robbery.
He had no idea why Lederrick Jones and Glenn Jefferson would accuse him
of being involved in the Mixon murder.
III. The Prosecution’s
Rebuttal
Detective Zumwalt
is a qualified expert in the area of possession of PCP for sale. Often sellers will cut or dilute the drug and
the small time buyer is most likely to receive a diluted dose. Addicts will develop a tolerance for the
drug. He had personal experience with
individuals who were under the influence of PCP and nonetheless were able to
participate in controlled buys.
Detective
Rodriguez testified about two calls Murphy made in December 2008. On the recordings, Murphy is heard saying
that Bradley could not remember the events of February 19, 2002, and that
Murphy would have to remind her. Bradley
did not realize that she could help him, but he would explain things to
her. Murphy suggested that Damion also
could help him out.
IV. The Defense Surrebuttal
The parties
stipulated that Tasheen Bradley did not have a
she could remember the period from Valentine’s Day 2002 until the day a friend
was killed on February 26, 2002; however, Murphy did not provide any details of
their activities.
DISCUSSION
Speedy Trial Rights Were Not Violated
On November 9,
2010, Jackson filed a motion to dismiss, alleging the delay in filing the
complaint and in arraigning him on the charges violated his right to a speedy
trial under the state and federal
Constitutions. He noted that the
crime was committed in 2002. However,
the complaint was not filed until 2006, and he was not arraigned “until the
fall of 2008, over six years after the murder,†despite the fact that he was a
suspect from the beginning and his whereabouts were known since 2003. Jackson argued that he had suffered prejudice
due to the delay because: (1) he could
not locate Bolton, the victim of the attempted murder; (2) he lost potential
witnesses; and (3) he could not contest the traffic stop during which the
nine-millimeter handgun was found due to the fact that he could not locate the
vehicle.
On
December 3, 2010, Murphy filed a motion to dismiss, contending that the delay
between the 2006 filing of the complaint and his October 2008 arraignment
violated his right to a speedy trial under the state Constitution. He claimed prejudice due to his inability to
locate Bolton, who had told Detective Zumwalt that “Mexicans†had committed the
shooting. Murphy’s motion included a
declaration from his investigator that set forth her efforts to locate
Bolton.
On
December 13, 2010, the trial court heard the
was complaining only about the delay between the November 2006 filing of the
complaint and his October 2008 arraignment.
The prosecutor informed the court that she did not intend to call any
witnesses with respect to that two-year period.
Because Jackson contended there was no justification for the delay
between the February 2002 murder and the filing of the complaint, the
prosecutor called several witnesses.
Detective
Q. Rodriguez was working in the gang unit on February 19, 2002, the day he
learned of the murder. Rodriguez was
told by a confidential informant that Time Bomb and Stutter Box were
responsible for the crime and he relayed this information to the investigating
officer, Detective Zumwalt. Rodriguez
could not recall when he spoke to Zumwalt.
Initially, Rodriguez did not know the identities of Time Bomb and
Stutter Box. After learning that the
monikers belonged to Jackson and Murphy, Tragniew Park Crip gang members, on
November 21, 2003, Rodriguez served search warrants on a number of locations
associated with that gang. As a result
of the warrants, Rodriguez spoke to Lederrick Jones. Jones told him that a person named Lil Jack
Dog, a member of Tragniew Park, had his car and gun taken by Jackson and
Murphy, who then left the location. They
returned and bragged about shooting some people in Campanella Park
territory. Sometime later, Rodriguez
determined that Lil Jack Dog was the moniker for Glenn Jefferson and informed
Zumwalt of that fact.
Rodriquez
and Zumwalt attempted to locate Jefferson.
They periodically checked to determine whether Jefferson had contact
with police. In October 2006, Rodriguez
learned that Jefferson was in custody in connection with another homicide. Rodriguez spoke briefly to Jefferson and his
mother and told Zumwalt that Jefferson was in custody and available to be
interviewed.
Detective
Boyd Zumwalt is the investigating officer in the case. On February 21, 2002, he received information
from a gang detective, who told him about an anonymous call concerning the
shooting of Mixon and Bolton. The caller
said Time Bomb, a Tragniew Park Crip, had done the shooting with a
nine-millimeter Glock. Zumwalt knew that
nine-millimeter and .45-caliber shell casings were recovered from the scene of
the shooting. An informant told Zumwalt
in late February 2002 that the shooters were Tragniew Park Crips, but the
informant was unable to provide any names.
In
March 2002, another homicide investigator told Zumwalt that defendants had been
arrested on February 28 and a nine-millimeter Glock was found in their
car. On January 29, 2003, Zumwalt
learned that the nine-millimeter Glock fired the shell casings left at the
location of the murder.
Zumwalt
testified about his contact with Roland Bolton.
On April 24, 2002, Zumwalt interviewed him. Bolton was not cooperative. He was shown 2 six packs that contained
photographs of defendants. Bolton told
Zumwalt that Mexicans shot him. In 2009,
Zumwalt served him with a subpoena to appear for trial. Bolton did not show up and Zumwalt had not
seen him since.
In
2003, Detective Rodriguez told him about information Rodriguez had received
from an informant. According to the
informant, defendants took a car belonging to Lil Jack Dog, shot some people in
Campanella Park Piru territory, and returned to brag about it. At that time, Zumwalt did not know who Lil
Jack Dog was.
In
November 2003, Zumwalt learned that Lederrick Jones had information about the
shooting. Detective Rodriguez told
Zumwalt that Jones had implicated defendants in the shooting of Mixon and
Bolton. Zumwalt knew Jones had been
charged in another murder and waited for that case to be completed before
speaking to him.
In June 2005, the
two detectives interviewed Jones in prison.
Jones repeated the story he had told Rodriguez, again stating that
defendants took Lil Jack Dog’s car and gun and shot the victims in Campanella
Park territory. At that point, Zumwalt
did not believe he had enough evidence to seek a murder filing because no
witness had corroborated Jones’s version of events.
On
October 10, 2006, Rodriguez told Zumwalt that a person in custody named Glenn
Jefferson was the Lil Jack Dog they had been looking for. That day, Zumwalt spoke to Jefferson and his
mother, Syndee. They corroborated
Lederrick Jones’s statement with regard to the February 2002 shooting. Zumwalt also learned that Syndee Jefferson
was the anonymous caller in February 2002, who said that Time Bomb was
responsible for shooting Mixon and Bolton.
Believing there was enough evidence, Zumwalt caused the case against
defendants to be filed on November 1, 2006.
The
parties stipulated that defendants were arraigned in October 2008. The prosecutor presented evidence showing
that the Mazda in which defendants were stopped and the nine-millimeter handgun
was recovered was destroyed on March 26, 2003.
The
prosecutor argued the prefiling delay was justified due to the fact that
Lederrick Jones could not be interviewed until his criminal matter was
resolved. She acknowledged that Roland
Bolton was not available as a witness.
However, she argued, because he had been uncooperative from the outset,
it was difficult to conclude that the passage of time was the reason for his
absence. He had been subpoenaed for the
first trial and refused to appear. She
observed that a defense investigator went to the residence where Bolton was
purported to live and contacted a male who was hostile and declined to identify
himself. The prosecutor surmised the
male may have been Bolton.
Jackson
contended the prosecution could have interviewed Jones earlier. He was sentenced on his matter in February of
2004 and was not interviewed until June of 2005. Jackson asserted the prefiling delay led to
the unavailability of one of the officers involved in the traffic stop of
defendants that led to the discovery of the nine-millimeter Glock. In addition, Jackson was unable to locate the
owner of the Mazda, who was necessary to refute the officer’s claim that the
tail light was not operating.
The
prosecutor responded that Jones could not be interviewed until Jackson’s other
murder trial was completed. Jones was a
witness in that case and faced the
possibility of testifying in the event Jackson’s new trial motion was
granted. That was the state of affairs
until Jackson was sentenced in March of 2005.
Detectives interviewed Jones three months later.
Murphy
reiterated that Bolton was key to defendants’ case, as he had told police that
he had been shot by Mexicans. Murphy
also claimed he had lost the opportunity to receive concurrent time with
another sentence he was serving.
The
trial court concluded that the prefiling delay was justified. With respect to the prearraignment delay, the
court found defendants had suffered slight prejudice in that they were having
difficulty locating Roland Bolton.
However, it observed that Bolton had been available and was served in
2009. In addition, Murphy’s investigator
had found a male at Bolton’s home. The
court stated it was unclear whether the male was Bolton. It denied the motion.
Defendants
contend their right to a speedy trial was violated in two ways: (1) the prosecution improperly delayed
filing the case for the February 2002 murder until November 2006; and (2) the
prosecution waited two years before having defendants arraigned in October
2008. For the following reasons, we
disagree.
“A
defendant seeking relief for undue delay in filing charges must first
demonstrate resulting prejudice, such as by showing the loss of a material
witness or other missing evidence, or fading memory caused by the lapse of
time. [Citation.] Prejudice to a defendant from precharging
delay is not presumed. [Citations.] . . . If the defendant establishes
prejudice, the prosecution may offer justification for the delay; the court
considering a motion to dismiss then balances the harm to the defendant against
the justification for the delay.
[Citation.] But if the defendant
fails to meet his or her burden of showing prejudice, there is no need to
determine whether the delay was justified.
[Citations.]†(
909.) A defendant is also obligated to
affirmatively demonstrate prejudice to establish a speedy trial claim for delay
occurring after the filing of a felony complaint but before the attachment of
statutory speedy trial rights. (
750, 768.)
title="">[10] With this background, we examine whether
defendants demonstrated that they suffered any prejudice resulting from the
delay.
Defendants claim
the delay led to the loss of a crucial witness, Roland Bolton. If, they assert, he had been located, he
would have testified that Mexicans were responsible for the shooting that led
to Mixon’s death and his injuries, as he had told police. Even if true, defendants have failed to
establish that their inability to obtain Bolton’s testimony was the result of
any delay. Bolton was located after
defendants were arraigned in October 2008.
He was subpoenaed in July 2009 for the first trial and failed to appear. Murphy argues that if the case had proceeded
in a timely fashion in 2006, following the filing of the complaint, Bolton may
have been willing to appear in court. We
do not agree.
Detective
Zumwalt attempted to speak to Bolton at the hospital after the shooting. Even at that early stage, Bolton was an
uncooperative witness. Zumwalt assumed
the shooting was gang related because Bolton’s attitude mirrored that of other
witnesses in gang cases who refuse to
speak to police. There is nothing in the
record to suggest that Bolton would have been a willing witness had the trial
commenced sooner. His refusal to obey
the 2009 subpoena supports the contrary conclusion.
In addition, there
was evidence demonstrating that the defense could have located (or possibly did
locate) Bolton prior to the second trial.
Murphy’s investigator filed a declaration with the court stating that
she: (1) found an address for Bolton;
(2) went to the address on April 22, 2010, and made contact with a “hostile
male occupant who refused to give his name or any information about Roland
Bolton. However, he did state that
Roland Bolton was a resident and that he would tell him to call meâ€; (3)
returned to the address on May 20, 2010, and spoke to the same male, who again
confirmed that Roland Bolton was a resident at that address and said he would
tell Bolton to contact her; and (4) confirmed that Bolton was not in custody or
hospitalized. This declaration was
signed on June 11, 2010. There is
nothing in the record showing that any further attempts to contact Bolton
occurred between June 11, 2010, and January 20, 2011, the day the jury panel
was sworn. Thus, as late as June 2010,
the defense knew where Bolton lived, and there is no evidence that he moved
prior to the commencement of trial.
Given these facts, defendants are incorrect when they assert that the
passage of time made it more difficult to secure Bolton. More accurately, he simply was a witness who
refused to cooperate and demonstrated a continuing willingness to avoid taking
part in the judicial process, however long it took to play out.
Defendants
also complain that the delay caused the car in which they were stopped to be
lost. Without the vehicle, they argue,
there was no way to dispute the police claim that a tail light was not
operating. Defendants have made no
attempt to explain why this is so. The
owner of the vehicle could have shed light on the condition of the
vehicle. Although Jackson suggested in
the trial court that he had difficulty locating the owner, on appeal defendants
do not attempt to establish that this witness was unavailable. Even assuming it was crucial for defendants to
have the car to contest the search (a speculative proposition given that the
vehicle was towed and left in a yard for over a year until it was destroyed,
thereby compromising any evidentiary value it may have had), the police first
obtained evidence showing the possible involvement of defendants in the
shootings in November 2003, when Lederrick Jones told Detective Rodriguez that
they were responsible. The car was destroyed
in March 2003. The loss of the car was
not caused by an unreasonable delay.
Defendants also claim they suffered prejudice from the absence of the
second officer involved in the stop. The
other officer, Mario Cardona, testified at the suppression hearing. Defendants had every opportunity to
cross-examine the officer and vigorously litigate their motion. They give no reason, such as an offer of
proof, for concluding that the second officer was necessary.
Next,
defendants contend they were prejudiced because the delay led to the loss of a
photograph showing Vertis Nevens holding the .45-caliber handgun that was one
of the murder weapons. We are not
persuaded. First, Deputy Houle
testified, without contradiction, that he recovered the photograph at the March
2002 search of Nevens’s home. He said
the photograph showed Nevens holding the weapon in his right hand, with his arm
across his chest, pointing it at the ceiling at a 45-degree angle. Houle was “100 percent positive†that the
weapon in the picture was the same .45-caliber handgun recovered from the home
and determined to have been used in the shooting. Defendants offer no support for their claim
that “the impact of the actual photograph would have been far greater.†Second, no one disputed that the weapon was
found in Nevens’s bedroom. Thus, the
photograph was merely cumulative to the points defendants had already
established, those being that Nevens possessed the .45-caliber handgun and it
was found in his bedroom approximately one month after the shooting.
Our
analysis is not changed by defendants’ reliance on Lederrick Jones’s testimony
at the preliminary hearing. He stated
that defendants and Nevens returned to Nevens’s house in Jefferson’s car. This, defendants argue, was after the
shooting occurred and supports the theory that it was Nevens who shot the
victims. The flaw in their argument is
that possession of the murder weapon at some unknown point in time, which is
all the photograph depicts, does little to prove that Nevens used the firearm
on February 19. In the absence of any
other evidence tying Nevens to the shooting, the evidentiary value of the
missing photograph was minimal, at best.
Murphy
argues that the passage of time caused him to lose the ability to fully prepare
his defense. Initially, he concedes that
in the trial court he was unable to identify any witnesses that, but for the
delay, he could have called to support his defense. This alone is fatal to his claim. He had “the burden to affirmatively
demonstrate that the delay prejudiced his ability to defend against the
charge.†(People v. Contreras (2009) 177 Cal.App.4th 1296, 1305.)
On appeal, Murphy
still does not present an offer of proof regarding the witnesses he allegedly
lost due to the delay. He now argues
that he was prejudiced because his alibi was based on the fact that he and his
girlfriend were at a restaurant at or around the time of the shooting. He complains that he was unable to
substantiate his alibi by locating restaurant employees who may have seen him
on the night in question, a receipt from the restaurant, or a surveillance
video that could have verified his presence.
Murphy submits nothing showing that the delay caused the loss of such
evidence. He does not give the slightest
suggestion that he attempted to return to the restaurant and was unable to find
evidence due to the passage of time. The
truth is that he was able to present his and Tasheen Bradley’s detailed
testimony as to Murphy’s whereabouts from the afternoon of the day of the shooting
until 10:00 or 10:30 p.m., when Bradley dropped Murphy off at Nevens’s
home. (Mixon was declared dead at the
scene at 9:40 p.m.) In addition, Damion
Yeargin testified that Jefferson and Jones spoke about shooting some Campanella
Park members, not Murphy. He also
verified that Murphy arrived at Nevens’s home between 10:00 and 10:30 p.m.,
saying he saw Murphy being dropped off by Bradley. On this record, Murphy has failed to
establish that any delay prevented him from presenting a defense.
In his opening
brief, Murphy argues that due to the delay, he lost the ability to receive
concurrent sentences. However, as the
Attorney General points out, Murphy was sentenced pursuant to the Three Strikes
law. Because Murphy’s crimes (the
robberies for which he was previously sentenced and the shootings committed in
the present case) were not committed on the same occasion and did not arise
from the same set of operative facts, the trial court was required to impose
consecutive sentences. (§§ 667, subd. (c)(6),
1170.12, subd. (a)(6).) In his reply
brief, Murphy concedes the Attorney General is correct.
Finally,
in order to preserve the issue for federal
review, Murphy raises the contention that the filing of the complaint
triggered his Sixth Amendment right to a speedy trial. He concedes that we are bound by the Supreme
Court’s contrary conclusion in People v.
Martinez, supra, 22 Cal.4th at
pp. 758-765. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
Failed to Make an Adequate Record Demonstrating the Presence of Police Officers
in the Courtroom Denied Them a Fair Trial
The jury panel was
sworn on January 20, 2011. Jury
selection, opening statements, and testimony ensued. On February 7, before the morning proceedings
began, the court advised defendants that the trial had to be moved to another
courtroom because of a “facility problem.â€
Before the afternoon session, Jackson objected to the “high police
presence in the courtroom†during the trial.
Claiming it was distracting to him and perhaps the jury, Jackson stated,
“Because you had mentioned in voir dire that it would be, like, three or
four. And I think I counted about eleven
or twelve officers in here, Your Honor.
I think that it has become a problem.
My family is being kicked out and stuff like that.â€
The
court responded that it did not know what Jackson meant when he claimed his
family was being kicked out. It asked
Jackson whether he wanted to put anything else on the record. Jackson declined. Murphy joined in the objection.
Two
days later, Jackson again broached the subject of the presence of
officers. Referring to his earlier
objection, he informed the court that a witness had informed him that there may
have been an improper conversation between law enforcement and the jury. For that reason, Jackson moved for a
mistrial.
title="">[11]
The
issue did not come up again until after the court trial on the priors. The prosecutor stated: “Mr. Murphy — or Mr. Jackson had stated that
there were all these officers in court and stated some high number. I didn’t interrupt them at the time. But I just wanted for the record on appeal
that I 100 percent disagree with that when Mr. — I think it was Mr. Jackson
said he counted eleven cops —.†The
court interrupted and stated it did not want to get into another topic. The prosecutor continued, “Okay. I just want to say I disagree with that. I counted and I didn’t come to the same
number. It was significantly less.â€
Initially,
we note that the record does not set forth with any degree of specificity how
many officers were in the courtroom at any given time. Jackson said, “I think I counted about eleven
or twelve officers†in the courtroom.
(Italics added.) The prosecutor
disagreed, saying she counted “significantly less.†Nor does the record indicate whether the
officers in the courtroom were armed and in uniform. That fact is important because a jury cannot
be prejudiced if it is unaware that an individual in the courtroom is an
officer. (See People v. Ainsworth (1988) 45 Cal.3d 984, 1003-1004 [the number of
armed, uniformed deputies in the courtroom did not deny defendant due process];
Holbrook v. Flynn (1986) 475 U.S.
560, 570 [“The only question we need answer is thus whether the presence of
these four uniformed and armed officers was so inherently prejudicial that
respondent was thereby denied his constitutional right to a fair
trial.â€].) In addition, the record does
not reflect where the officers were situated in the courtroom. Did Jackson count Detective Zumwalt among the
officers he saw in the courtroom?
Zumwalt was the investigating officer and sat at counsel table. Defendants do not explain how his presence
was prejudicial. Most significant, the
record does not establish whether the jury was in the courtroom at the time
Jackson allegedly counted about 11 or 12 officers. There were a number of motions heard during
the trial without the jury. We do know,
from the record, that when Jackson made the statement referring to the number
of officers in the courtroom, the jurors were not present.
Defendants bear
“the burden to provide a record on appeal which affirmatively shows that there
was an error below, and any uncertainty in the record must be resolved againstâ€
them. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) This obligation means that “during trial, the
parties must ensure that an adequate record is made of errors by which they are
or may be aggrieved; ordinarily, errors not reflected in the trial record will
not, and indeed cannot, sustain a reversal on appeal.†(Yield
Dynamics, Inc. v. TEA Systems Corp. (2007)
154 Cal.App.4th 547, 557.) Here,
defendants could have made an adequate record by simply asking the trial court
to confirm the number of armed, uniformed officers who were present in the
courtroom while the jurors were present.
By failing to make a record sufficient to review their claim of error,
defendants forfeited the contention.
(See People v. Morris (2003)
107 Cal.App.4th 402, 409 [defendant failed to make a record from which
appellate court could determine which of the challenged jurors were the subject
of his Wheeler
error].)
III. Jackson’s Claim
Relating to the Use of His Gang Moniker Was Forfeited
While conceding
that a court may properly admit evidence of a gang moniker, Jackson asserts the
prosecutor’s excessive use of his moniker, Time Bomb, violated his right to due
process. We conclude he forfeited the
contention by failing to lodge an objection in the trial court, much less a
specific objection citing the constitutional ground he raises on appeal.
In
his opening brief, Jackson states that he objected to the use of his gang
moniker, citing several portions of the record.
We have reviewed the record cites and he is mistaken. The first citation establishes that he was
objecting to the admission of photographs of his gang tattoos. He asserts that the motion seeking the
exclusion of his tattoos also referred to the use of his moniker. He is incorrect. Nowhere during that discussion did Jackson
mention the words “Time Bomb†or moniker or request that the prosecutor be
barred from using his gang name. Indeed,
Jackson’s second citation to the record makes it clear that the trial court
denied Jackson’s motion to bifurcate the gang allegation and to exclude any
reference to his gang tattoos and nothing more.
Even if we were to conclude that Jackson raised a generic objection with
respect to the use of his gang name, he had an obligation to preserve his
constitutional claim by identifying that ground in his objection to the trial
court. His failure to do so results in a
forfeiture of the claim on appeal. (
292.)
We
agree with Jackson that he complained about the use of his gang moniker when he
requested transcripts in order to prepare a motion
for new trial. At that point, it was
too late.
IV. Jackson Was Not
Prejudiced by the Admission of Murphy’s Statements
The prosecution
sought the admission of a number of recorded statements made by Murphy. The court allowed the evidence and instructed
the jury it was to consider that evidence only against Murphy and not Jackson. Jackson urges that his due process right to a
fair trial was violated by the admission of Murphy’s statements.
At
trial, when the parties and the court discussed the admissibility of Murphy’s
statements, Jackson objected on two grounds.
One, he claimed their admission violated the Aranda-Bruton
name="_ftnref13" title="">[13]
codefendant’s confession. Two, he argued
the evidence was inadmissible under Evidence Code section 352, as it was
prejudicial and time consuming. Jackson
did not lodge an objection on the specific ground he now raises on appeal—the
evidence violated his constitutional right to a fair trial. As a result, he has forfeited the
contention. (People v. Riggs, supra,
44 Cal.4th at p. 292.) In any event, the
court did not err by admitting the evidence.
In
his opening brief, Jackson sets forth the evidence at length. A review of the statements reveals that
Jackson was mentioned only once. Murphy
told his mother that Jackson was “straight.â€
In his testimony, Murphy explained he meant that he knew Jackson would
not try to frame him for a crime he did not commit. Notwithstanding Murphy’s singular reference
to Jackson in the recorded conversations, Jackson contends he was prejudiced
because the prosecutor constantly elicited testimony from witnesses that he and
Murphy were inseparable. Due to Murphy’s
multiple statements regarding the potential witnesses in the case and the
admission of a detective’s misinterpretation of another conversation Murphy had
with others in a van upon his arrest, Jackson asserts, “no juror could have
possibly drawn any conclusion other than if Murphy was conscious of guilt, [he]
was too.†We reject this speculative
claim.
With respect to
Murphy’s statements, the court instructed the jury as follows:
“You
have heard evidence that Devin Murphy made statements out of court[:]
“1. heard by L[e]derrick Jones;
“2. to individuals inside of a custody van
that was recorded; and
“3. to numerous persons using a pay phone
which were recorded.
“You
may consider that evidence only against Mr. Murphy, not against Demoria
Jackson.â€
The
court went on to inform the jury that it could not use any statement made by
Jackson against Devin Murphy.
“We
‘credit jurors with intelligence and common sense’ [citation] and presume they
generally understand and follow instructions [citation].†(People
v. McKinnon (2011) 52 Cal.4th 610, 670.)
The cited instruction regarding the use of Murphy’s statements could not
be any clearer. Jackson’s theory that
because witnesses said he and Murphy were close, the jury must have ignored the
court’s instruction and concluded that Murphy was speaking for Jackson, who was
neither present nor (with the one exception) referred to, is based wholly on
conjecture. Unlike other situations
where attorneys have misstated the law and potentially confused the jury, the
prosecutor here said in argument, “At least with respect to Mr. Murphy — I’m
only talking about him when I’m talking about these phone calls, this van
conversation. You can’t use the van
conversation — or actually any of Mr. Murphy’s phone calls against Mr.
Jackson. You cannot do that.†“Absent some contrary indication in the
record, we presume the jury follows its instructions [citations] ‘and that its
verdict reflects the legal limitations those instructions imposed’
[citation].†(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804.) That presumption applies here.
Jackson
also complains that the evidence should have been excluded under Evidence Code
section 352 because it was unduly prejudicial.
As we have concluded that the jury understood it was not to use Murphy’s
statements in evaluating Jackson’s guilt, Jackson could not have been
prejudiced by their admission. To the
extent he is arguing that Detective Rodriguez’s interpretation of Murphy’s
statements should have been excluded because it was misleading, he forfeited
that contention by not raising it below.
Moreover, on the merits, Jackson’s claim is unavailing. It was up to the jury to determine whether
the detective’s interpretation was accurate.
In that regard, the jury was instructed that it was not required to
accept an expert’s opinion as true or correct and free to reject an opinion if
it was unbelievable, unreasonable, or unsupported by the evidence. Again, we may presume the jury followed the
court’s instruction. The admission of
Murphy’s recorded statements did not prejudice Jackson.
Claim That Roland Bolton’s Out-of-Court Statement Was Improperly Excluded Was
Forfeited
On two occasions,
after the incident and while viewing photo lineups, Roland Bolton told officers
that he was shot by Mexicans. After the
parties were unsuccessful at securing Bolton’s attendance at trial, defendants
attempted to admit those out-of-court statements. The court sustained the prosecutor’s hearsay
objection. Defendants argue they were
denied their constitutional right to present a defense as a result. They forfeited the contention by failing to
lodge an objection on federal constitutional grounds in the trial court.
Prior to trial,
the prosecutor asked that Bolton’s statements be excluded. The court granted the request without
objection. Later, during trial, Murphy
sought to utilize Bolton’s statement to Detective Zumwalt, arguing it was admissible
as former testimony. (Evid. Code, §§
1291 & 1292.) After the court explained
that Bolton had not testified in a prior proceeding, Murphy objected “under
[Evidence Code section] 353.†No further
grounds were stated by either defendant.
Their failure to object in the trial court on the constitutional grounds
they now raise results in a forfeiture of the claim. (People
v. Riggs, supra, 44 Cal.4th at p.
292.)
VI. The Abstract of Judgment
Must Be Corrected
In their opening
briefs, defendants claimed they were entitled to additional presentence custody
credits. After the Attorney General’s
brief cited People v. Gisbert (2012)
205 Cal.App.4th 277, 281, for the proposition that defendants were not entitled
to any presentence custody credits because they were already incarcerated as a
result of a sentence in another case, defendants conceded the Attorney General
was correct. The concession was
appropriate. At the time of their arrest
on this case, defendants were serving prison sentences imposed for other
offenses, and Gisbert holds they were
not entitled to presentence custody credits for the present offense. (Ibid.) We agree.
And, as discussed above, because defendants had suffered a prior serious
felony conviction, the court was required to impose consecutive sentences. (§§ 667, subd. (c)(6), 1170.12, subd.
(a)(6).) The abstracts of judgment must
be amended to reflect that each defendant’s sentence is to be served
consecutively.
At
sentencing, the court ordered defendants to pay direct victim restitution and
made the obligation joint and several.
The parties agree that the abstract of judgment must be changed to
reflect the oral pronouncement of judgment.
We agree. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment
may not modify court’s oral pronouncement of judgment].)
The clerk of the
superior court is directed to prepare an amended abstract of judgment for each
defendant to reflect that: (1) each is
awarded no presentence custody credits; (2) each of their sentences is to be
served consecutively to any other sentence previously imposed; and (3) each
defendant’s liability for victim restitution is joint and several. The clerk is to forward a copy of the amended
abstracts to the Department of
Corrections and Rehabilitation. As
modified, the judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
WILLHITE,
Acting P.J.
MANELLA, J.
name="_ftn1" title="">[1]
granted their motion for a new trial due to prosecutorial misconduct. Although both were represented by counsel at
the first trial, they elected to represent themselves at the trial under review
in this appeal.
name="_ftn2" title="">[2]
