P. v.
Filed 6/10/13 P. v. Butler 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
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DONYELL LADALE BUTLER,
Defendant and Appellant.
B236056
(Los Angeles
County
Super. Ct.
No. TA110580)
APPEAL from
judgments of the Superior Court
of
County. Laura R.
Walton, Judge; Paul A. Bacigalupo, Judge.
Affirmed with modifications.
Deborah L. Hawkins, 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, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys
General, for Plaintiff and Respondent.
* * * * * *
Two juries convicted defendant and
appellant Donyell Ladale Butler of attempted murder, assault with a firearm,
and possession of an assault weapon.
He appeals from the judgments and
contends that (1) the prosecution committed prejudicial misconduct, (2) the
trial court erred by refusing to dismiss two jurors, (3) the trial court erred
by refusing defense counsel’s request to instruct the jury on attempted
voluntary manslaughter, (4) the trial court erred when it instructed the jury
with CALCRIM No. 361 (failure to explain or deny adverse testimony), (5) the
trial court erred when it overruled a defense objection to a hypothetical
question posed to the gang expert, (6) the trial court erred in calculating the
length of the sentence for the gang enhancement on the count for possession of
an assault weapon, (7) the trial court erred in failing to award presentence
custody credits, (8) there was insufficient evidence that defendant was the
shooter, (9) the abstract of judgment should be corrected to reflect the proper
sentence on the count for possession of an assault weapon, and (10) the case
should be remanded because the abstract of judgment does not accurately reflect
the oral pronouncement of the court.
We agree that the trial court
imposed an incorrect sentence for the gang enhancement on the count for
possession of an assault weapon and modify the judgment. We also find defendant was entitled to
presentence conduct credit. In all other
respects, we affirm the judgment.
BACKGROUND
underlying proceeding involved three trials.
In the first trial, the Los Angeles County District Attorney charged
defendant with: attempted murder (count
1, Pen. Code, §§ 664/187, subd. (a));
(a)(2)); possession of an assault weapon (count 3, § 12280, subd. (b)); and
kidnapping (count 4, § 207, subd. (a)).
The amended information alleged that the attempted murder was committed
willfully, deliberately, and with premeditation, in violation of section 664,
subdivision (a). As to count 1, it
was alleged that defendant personally inflicted great bodily injury and used a
firearm (§§ 12022.7, subd. (a), 12022.53, subds. (b)–(d)). As to counts 2 and 4, it was alleged that
defendant personally used a firearm (§ 12022.5, subd. (a)). With respect to all counts and pursuant to
section 186.22, subdivision (b)(1)(C), it was alleged that the offenses
were committed for the benefit of a street gang. Finally, it was alleged that defendant had
served two prior prison terms within the meaning of section 667.5, subdivision
(b), and had suffered one prior serious or violent felony conviction within the
meaning of the “Three Strikes†law (§§ 667, subds. (b)–(i), 1170.12, subds.
(a)–(d)).
The first jury found defendant
guilty of possession of an assault weapon in count 3 and found the gang
enhancement to be true. Defendant was
found not guilty of kidnapping in count 4.
The jury was unable to reach a verdict on counts 1 and 2, and a mistrial
was declared as to those counts.
name="_ftnref2" title="">[2]
The second trial resulted in another
deadlocked jury on counts 1 and 2, and a mistrial was again declared.
found guilty on counts 1 and 2, and all firearm and gang allegations were found
to be true. The court conducted a
bifurcated jury trial on the prior conviction allegations, and the jury found
the allegations true–that defendant had served two prior prison terms, and
suffered one prior serious or violent felony conviction.
The trial court sentenced defendant
to a term of 44 years to life in state prison, calculated as follows: on count 1 for attempted murder, life with
the possibility of parole after a minimum term of 14 years, plus a consecutive
term of 25 years for the firearm enhancement, and two consecutive one-year
terms for the prior prison terms pursuant to section 667.5, subdivision (b),
and on count 3, a consecutive term of one year and four months (one-third
of the mid-term doubled pursuant to the “Three Strikes†law) and a consecutive
term of one year and eight months for the gang enhancement (one-third of the
five-year term).
title="">[4] The court imposed a three-year sentence on
count 2 which was stayed pursuant to section 654.
Defendant was ordered to pay a
$2,000 restitution fine (§ 1202.4, subd. (b)) and a parole revocation fine (§
1202.45) in the same amount was imposed and stayed. Defendant was ordered to pay a $60 court
security fee (§ 1465.8) and a $40 criminal conviction assessment (Gov. Code, §
70373).
January 21, 2010, defendant and his friends were in the bar area of T.G.I.
Friday’s restaurant in Compton. It was
karaoke night and the bar was crowded.
Defendant, who wore dark pants, a long-sleeved blue shirt, and a blue
beanie, was at a booth near the back wall.
A group of people seated at tables close to the bar wore red baseball
caps with the letter “W†on them. The
group reacted to a song on the jukebox and flashed gang signs and shouted
“Westside Piru.†They also shouted
“Saaawoop,†which was a battle cry used by gang members to indicate that they
are members of a Blood or Piru gang.
Defendant flashed different gang signs in reaction to the song.
Defendant walked over and confronted
the group of Westside Pirus. He challenged
them to “go out to the parking lot†and told them to “stop being a little
bitch.†Gang signs were flashed again
and somebody yelled out “Southside Compton Crips.†People started running when the confrontation
began and security escorted people out of the bar area. The sound of gunshots from outside was heard
and people ran back inside the bar. Paul
Shepherd, a documented member of the Westside Pirus, who was dressed in red,
ran into the bar and fell to the ground.
He suffered a gunshot
wound to the upper abdomen and lower chest area, and was hospitalized for
three weeks.
The restaurant was equipped with
four different surveillance cameras, one was located outside the front door,
another in the foyer, and two in the bar area.
Portions of the surveillance videos taken from the different camera
angles were played for the jury. They
were also shown still photographs taken from the videos.
Richard Andrew Vasquez, a bartender
at T.G.I. Friday’s saw defendant in a corner of the bar area throwing up gang
signs. He watched defendant move towards
the middle of the bar area and get into an altercation with a group of
people. Shortly afterwards he saw “the
guy in the red shirt [Shepherd] comes in the bar, flops down, and he’s
shot.†About a week after the shooting,
Vasquez circled defendant’s photo in a six-pack photo lineup. He identified defendant as the man he saw in
the bar that night, and wrote, “Nose, lips looks exactly like the guy that was
throwing up gang signs in the bar.†He
also identified defendant in surveillance clips showing defendant entering the
bar, confronting the Westside Pirus, exiting the bar, and shooting Shepherd. Vasquez identified defendant in court and was
“really sure†he was the man wearing a blue beanie and blue jacket that was
throwing up gang signs in the bar on January 21, 2010.
Keny Quijano was an employee of
T.G.I. Friday’s. He wore a T-shirt
marked “Security†and kept track of the number of people in the bar on karoke
night by handing out wristbands. On the
night of the shooting he stood by the back wall of the bar close to
defendant. Defendant kept “running into
[Quijano] the majority of the times†and had to “go through [Quijano] to get to
the tables.†Sometimes, Quijano had to
“move a little bit, like, to the side for him to go through.†Quijano saw the group of Westside Pirus
throwing up gang signs and saw defendant approach them. On January 23, 2010, “within a matter of
seconds†he identified defendant from a six-pack photo lineup and wrote, “This
was the guy that was standing next to me.â€
When shown a still photograph of the shooting taken from the
surveillance video, Quijano identified defendant as the shooter. Quijano was able to recognize defendant
because of the blue shirt and beanie and because Quijano stood next to him in
the bar. Quijano was sure of his
identification of defendant in court.
Latisha Doxie was working as a
waitress in the bar that evening. She
testified she saw a large African-American male approach another group in the
bar. It appeared “as if something was
bothering him†and then she heard “voices rising and an argument
starting.†When shown a still photograph
taken from a surveillance video she identified an individual who was wearing a
beanie as the person who approached the Westside Pirus. Phillip Wills, was the general manager of
T.G.I. Friday’s and became aware of an altercation in the bar area that
evening. From a still photograph taken
from a surveillance video he identified a large individual who was wearing a
beanie and appeared to be African-American as someone involved in the
confrontation. Neither Doxie nor Wills
identified defendant at trial.
Shepherd testified that he grew up
in a Westside Piru neighborhood but denied being a member of the gang. He had a cousin who was a member and Shepherd
had a tattoo on his back that said “Piru Nation†with the number “82†in the
middle, in honor of his cousin who died in 2006. He had been in the lock-up with defendant and
was uncomfortable identifying anyone in court.
He had no memory of the night of the shooting and did not want to
testify.
Los Angeles County Sheriff’s
Department (LASD) Deputy Gabriela Hernandez responded to the scene and found
two expended bullet casings in front of the restaurant. There was a bullet strike on the entrance
near the door frame and a bullet hole inside the lobby. LASD Detective Eric Arias interviewed some of
the witnesses at T.G.I. Friday’s on the night of the shooting. Vasquez told Detective Arias that “a male
Black in his mid to early 30’s . . . wearing a dark blue or
black beanie cap†stood next to Quijano.
The man had a hard stance and Vasquez described him as “a hard-core O.G.
gangster†because he was throwing up different gang hand signs while the
Westside Pirus were throwing up their gang signs. Quijano told police that defendant was the
one who said “Southside Compton Crips.â€
Detective Arias that she knew the large group of people she served in the bar
were Westside Pirus because they wore red baseball caps with a white “W†and
she heard them yelling out “Westside Piru.â€
She saw the “O.G. type†individual confront the Westside Piru group. He was acting “extremely hostile†and she heard
him repeatedly say “Fuck Piru†and “This is Southside.†Two days after the shooting Shepherd told
Detective Arias he was at T.G.I. Friday’s celebrating a friend’s birthday when
an African-American male approached one of Shepherd’s friends and challenged
him to go outside. Shepherd decided to
go outside anticipating a fist fight and was shot as he was about to exit
T.G.I. Friday’s. He stumbled back inside
the bar area and collapsed.
Beach Police Department provided the investigating officers with information
that an individual named “H.K.†from the 10-Deuce Budlong Gangster Crips was
responsible for the shooting at T.G.I. Friday’s. Detective Arias was able to identify
defendant from that particular gang. On
January 25, 2010, LASD Deputy Michael Jimenez saw defendant in the front
passenger seat of a 2002 Lexus, in the area of Compton Boulevard and
Willowbrook Avenue in the City of Compton.
The Lexus, which was driven by a female, pulled into a supermarket parking
lot and stopped. Deputy Jimenez and his
partner, Deputy Sakavu, who were both in uniform, activated the take-down red
light of their marked black and white patrol car, and exited their
vehicle. The Lexus drove through the
parking lot and back onto the street, driving against traffic. Deputies Jimenez and Sakavu, along with other
police vehicles and a helicopter, pursued the Lexus. The Lexus made a number of turns before
slowing down as it came to a three-way intersection. Defendant jumped out of the Lexus while it
was moving at a speed of five to ten miles per hour and ran towards a parking
lot. Deputies Jimenez and Sakavu chased
him on foot. Defendant tried to climb a
fence but fell to the ground. He refused
to comply with the deputies’ orders to stay down and show his hands. Deputy Sakavu shot defendant with a Taser and
he was taken into custody.
Deputy Jimenez found a loaded pistol
in the Lexus on the right front passenger floorboard. There was a live bullet in the chamber, and
an additional 16 live bullets in the magazine.
The gun was a Tech-9 assault weapon.
Detective Arias was present at the end of the pursuit. He testified defendant looked “essentially
the same†at trial as he did the day he was arrested. Defendant appeared to have gained a little
bit of weight and his hair appeared a little longer but otherwise looked the
same.
Detective Arias, a sworn peace
officer for 16 years and assigned to the gang unit referred to as Operation
Safe Streets Bureau in Compton, testified as a gang expert. He received general gang training at the
academy. He worked in a custody facility
for two years after graduating from the academy, where he interacted, talked,
and interviewed hundreds of gang members.
He talked to them about their membership in gangs, how they got their
monikers, and the types of crimes they committed for the benefit of the
gang. After leaving the custody
assignment, Detective Arias worked patrol for four years, where he came in
contact with hundreds of gang members, and got to view their tattoos and again
interviewed them regarding their gang involvement.
In 2002, Detective Arias transferred
to the gang unit where he was currently assigned. His gang assignment at the Compton Station,
where he only investigated gang crimes, was with a goal of acquiring intelligence
on gang members, building a rapport with them, finding out what was going on in
their neighborhoods, and monitoring crime trends. He attended conferences put on by the
California Gang Investigators Association of which he is a member. He has authored in excess of 100 search
warrants relating to gang crimes and assisted in service of a well over
500 search warrants of gang members’ residences enabling him to study gang
paraphernalia, and view their tattoos. Detective
Arias testified as a gang expert in Los Angeles,
Orange, and San Bernardino Counties.
Detective Arias was familiar with
the Westside Piru gang and was responsible for investigating crimes committed
by them. Westside Piru was a Compton
based Bloods gang and historical enemies to Crips gang members. They associated with the color red and
typically wore a red baseball cap with a white “W†which stands for
Westside. Detective Arias opined that
Paul Shepherd was a member of the Westside Pirus based on several factors: Detective Arias had several contacts with
Shepherd in the previous two to three years, during which Shepherd admitted
being a member of the Westside Pirus and had the moniker “Two P’s†which stood
for “Piru Paulâ€; field interview cards dated June 7, 2003, February 1, 2006, and
February 21, 2009, indicated that Shepherd self-identified with Westside Pirus
on each of these occasions; and Shepherd had tattoos consistent with being a
Westside Piru gang member, i.e., a large tattoo on his back said “Piru Nation.â€
Detective Arias defined the term
“snitching†and its significance in gang culture. Cooperating with a police investigation in
any way is considered snitching.
Testifying in court and identifying somebody would be considered the
ultimate form of snitching. Gang members
typically abide by the street code and avoid snitching because it is never
forgiven and “ultimately, you’re retaliated against and killed for snitching on
a gang member.†It is not uncommon for a
gang member to give truthful statements the day of an incident but change their
story at trial because of fear of retaliation.
The 10-Deuce Budlong Gangster Crips
(10-Deuce) was a South Los Angeles gang with whom Detective Arias was also
familiar having had his patrol training at the Lennox Station in
Inglewood. The boundaries of 10-Deuce
territory included 102nd Street to the north, and Budlong Avenue to the east,
and was the source of many of their signs and symbols, e.g., the numbers 102nd,
or 10-Deuce, the number 10 with the number two, and the letters B.L.G.C. for
Budlong Gangster Crips. They associated
with the color blue, traditionally used by Crip gangs, and wore baseball caps
with the “B†logo. Their biggest rival
for the territory they claimed was the Hoover Crips. Their traditional rivals included Bloods and
Pirus.
When asked about the primary
activities of the gang, Detective Arias answered, “Vandalism, graffiti,
possession of narcotics for sales, possession of weapons, possession of assault
weapons, burglary, robbery, assault with a deadly weapon, and murder.†The detective testified to the commission of
three predicate crimes committed by 10-Deuce gang members. Andrew Dennell Arthur was convicted of
assault with a deadly weapon in 2008, Lamar Anthony James was convicted of
robbery in 2009, and David Travon Andrew was convicted of possession of a
firearm in 2009.
Detective Arias opined that
defendant was a member of 10-Deuce based on several factors. First, Detective Arias reviewed field
identification cards and spoke with detectives familiar with 10-Deuce and who
had personal contacts with defendant.
Defendant admitted his 10-Deuce membership to those detectives. Furthermore, in a recorded telephone call
defendant made while in custody he said “I’m H.K. from Budlong Gangster Crips.â€
Second, during the course of the
investigation Detective Arias became more familiar with defendant after
reviewing photographs and letters seized pursuant to a search warrant.
appeared to be from a fellow Crips gang member because of the style of
writing. When writing, Crips members
typically replace a “B†with a “C†and avoid using “ck†because it is used by
Bloods to signify “Crip Killer.†The
letter examined by Detective Arias contained these distinguishing characteristics. A second letter was addressed to Penda Lee,
defendant’s former girlfriend, with defendant’s name and address listed on the
return area of the envelope. The letter
stated “Missing you always†and contained a drawing of an individual wearing a
Brooklyn Dodgers baseball cap favored by members of 10-Deuce, with a tattoo of
“Budlong†on the forearm. One photograph
showed defendant dressed in blue wearing a blue baseball cap with the letters
“H.K.,†which Detective Arias opined stood for “Hoover Killer†because the
Hoover Crips were the main rival of 10-Deuce.
Another photograph showed defendant throwing up the gang sign associated
with
10-Deuce and wearing a baseball cap with the numbers “10†on it which Detective
Arias opined stood for 10-Deuce.
Third, defendant was heavily
tattooed with an assortment of images and references indicative of his gang
membership. On one arm defendant had a
tattoo which said “Snuva K.†Snuva is a
derogatory term for the Hoover Crips, and when followed by a “K†signifies
Hoover Killer. Another tattoo was “BLGCâ€
which Detective Arias opined stood for Budlong Gangster Crips. Underneath was a tattoo which said “H Kay†a
reference to defendant’s moniker “H.K.†or “Hoover Killer.†A tattoo, “RB,†stood for “Regal Boys†which
was a club that eventually evolved into the criminal street gang known as
10-Deuce. Defendant had “102†tattooed
between his index finger and thumb, and “102 percent†tattooed on his chest. A cartoon figure wearing a Brooklyn Dodgers
baseball cap with the letter B underneath was on the other arm, and a large
tattoo of the letter “B†was on defendant’s back.
Detective Arias was responsible for
investigating crimes committed by the Southside Compton Crips gang and was
familiar with them. The residence at
1217 East Glencoe Street, was in the geographical area claimed by the Southside
Compton Crips. Defendant’s former
girlfriend, Penda Lee, and her son, a known member of Southside Compton Crips
lived at the residence. A field
identification card from April 2006 indicated that defendant was contacted at
the Glencoe address in the company of two known members of Southside Compton
Crips. Detective Arias was shown a still
photograph taken from a video depicting the shooting at T.G.I. Friday’s. He identified the individual standing next to
the shooter as Darryl Bradford, a member of the Southside Compton Crips
gang. Initially, Bradford was
cooperative with Detective Arias and told what he knew about the incident. Bradford failed to respond to a subpoena to appear
as a witness and a surveillance team from the gang unit attempted to locate
him. His telephone was disconnected and
he could not be found.
Responding to a hypothetical
question based on the facts of this case, Detective Arias opined that the shooting
would benefit the 10-Deuce Budlong Gangster Crips, and possibly also benefit
the Southside Compton Crips. The gang
culture involves respect and gangs achieve their power through fear and
intimidation. The gang with the most
violent members willing to commit the most serious crimes is the most feared
and intimidating. The presence of a
Blood gang, the Westside Pirus, openly wearing their red colors, throwing up
gang signs, and yelling their battle cry was a direct challenge to defendant
who was clearly dressed in his Crips gang color of blue. As an original gangster with status within
the gang, defendant had to respond.
Defendant’s propensity and willingness to commit a violent crime in a
public place with video cameras and potential witnesses benefits the gang
because “the crime itself is going to instill fear and intimidation in not only
members of the Westside Piru, but also the general community, the civilian
witnesses in there, who witnessed the shooting.â€
The Southside Compton Crips and the
10-Deuce, being Crip gangs, were natural enemies of any Blood or Piru
gangs. By shouting the name “Southside
Compton Crips†the shooting would benefit that gang by making people in the bar
believe that it was committed by a member of that gang. Detective Arias opined that the Westside
Pirus would be more familiar with the Southside Compton Crips because the
smaller 10-Deuce were not generally recognized outside of their limited
territory. If an individual is in an area
where his gang is not known, he may yell the name of the local gang he is with
to instill more fear.
b. Defense Evidence
testified in his own behalf and stated he was not at T.G.I. Friday’s on the
night of the shooting. He was at his
home located at 1217 East Glencoe Street, in Compton with his ex-girlfriend,
Penda Lee Williams. He was “hanging outâ€
with Felicia Simmons, a female he knew, on the day he was arrested. As they were driving to the store she told
him the “gang police†were behind them.
Defendant looked in the mirror and saw the police follow them into the
parking lot. Simmons, who was driving,
“just took off†and “didn’t say nothing.â€
Defendant jumped out of the car when Simmons turned a corner. He ran to the parking lot of a post office
but when he saw there was nowhere to go he turned around and gave up. The Tech-9 assault weapon did not belong to
him, he did not place it in the car, and he never touched it.
Defendant was six feet two inches
tall and weighed 283 pounds, and was about the same weight at the time of his
arrest. He was not the large
African-American man in the videos wearing a beanie because he only wore fitted
baseball caps, not beanies. He explained
that his tattoos were for personal reasons.
His “H.K.†tattoo represented the mother of his child, whose name was
Honey K., and his “BLGC†tattoo stood for “bitches love gangster crew.†Some members of his car club became gangsters
but he denied any affiliation with gangs.
He would never shout “Southside†because he was from Los Angeles.
Defendant had a sustained juvenile
petition for assault with a deadly weapon, a conviction for possession of a
controlled substance while in possession of a Tech-9 weapon, and a conviction
for possession for sale of a controlled substance.
DISCUSSION
Misconduct
prosecutor committed misconduct during opening and closing arguments by
superimposing defendant’s image over a photograph taken from the surveillance
video that showed the shooter holding the gun.
Specifically, defendant contends the misconduct occurred because the
prosecutor altered existing evidence in a way that was unfairly suggestive and
unduly prejudicial, and created evidence that did not exist to encourage the
jury to prejudge the case.
The People
assert that defendant waived or forfeited any claim of prosecutorial
misconduct. A defendant alleging
prosecutorial misconduct is required to make a timely objection, state his
reason for the objection, and request the jury be admonished. (People
v. Brown (2003) 31 Cal.4th 518, 553.)
The admonishment requirement is subject to an exception for
futility. (People v. Cole (2004) 33 Cal.4th 1158, 1201.) “[F]ailure to request the jury be admonished
does not forfeit the issue for appeal if ‘“an admonition would not have cured
the harm caused by the misconduct.â€â€™
[Citations.]†(
820.)
Defendant
acknowledges his trial attorney did not request an admonition but argues it
would have been disrespectful to the court to seek one. He contends his objections should be deemed
preserved and addressed on the merits.
We agree that defense counsel should have sought a curative admonition, and
therefore forfeited the objections on appeal.
(People v. Stanley (2006) 39
Cal.4th 913, 952.) Nevertheless, we
address the contention and conclude that defendant’s prosecutorial misconduct
claim fails on the merits.
Below
defense counsel objected to the prosecutor’s proposed “juxtaposition†of
defendant’s booking photograph with a “surveillance photo still of the
shooting.†The prosecutor explained that
she was “inserting the booking photo, the profile booking photo, into the
surveillance still image†and stated that she would lay a foundation for every
photograph that was in her PowerPoint presentation and would mark them as
exhibits. The court asked the prosecutor
if the image consisting of the booking photograph superimposed over the still photograph
of the shooting would be an exhibit.
Referring to the previous trials the prosecutor responded, “It wasn’t in
the past. It might be in time. We’ll see.â€
Defense counsel reiterated his objection that the People were distorting
the evidence because they represented that the booking photograph and the
surveillance photograph were not altered in any way but now superimposing “one
upon the other alters the physical, tangible evidence the People are
offering.†The court stated that it
could “see a scenario where you have the original video, and you could create a
production where you then superimpose [the booking photograph], the jury sees
that, and you would withdraw it, simply to show as an illustration that you
believe that’s—in argument that that’s an image of the defendant.†The court concluded it would be prejudicial
to the defendant to create an exhibit that did not exist.
During the prosecutor’s opening
statement, defense counsel objected and a sidebar exchange took place. Defense counsel moved for a mistrial based on
the prosecutor showing “the image of the shooting on the video surveillance
superimposing [defendant’s] booking photo,†which he argued was not authorized
by the court. The prosecutor sought
clarification of the earlier ruling and the court explained that he did not
“watch exactly how the image came up, but if you then put in the original still
photo and then you inserted as a new image to superimpose it on top of it, that
would be acceptable.†The prosecutor
confirmed she did it that way, the objection was overruled, and the prosecutor
continued with her opening statement.
During a break in testimony the
prosecutor sought further clarification on the issue and asked if the court
required her “to create an exhibit that has both of those photos on one piece
of paper?†The court explained that the
way the prosecutor presented it was appropriate because she “first showed the
image . . . from the video, and then . . . the
next step was the image of the booking photo that you were imposing into
it.†They were both separate exhibits
and an image was created using the two separate images. Defendant objected to a similar slide the
prosecutor intended to use in closing argument and the trial court overruled
the objection.
Authority
“The
applicable federal and state standards regarding prosecutorial misconduct are
well established. ‘“A prosecutor’s
. . . intemperate behavior violates the federal Constitution
when it comprises a pattern of conduct ‘so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.Չۉ۪ [Citations.]
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves ““the use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.â€â€
[Citation.]†(
841.)
Prosecutors have
“‘“broad discretion to state [their] views as to what the evidence shows
. . . .â€â€â€™ (
752.) A defendant’s conviction will not
be reversed for prosecutorial misconduct that violates state law unless it is
reasonably probable that a result more favorable to the defendant would have
been reached without the misconduct. (
1032, 1071.)
statement is to prepare ““‘the minds of the jury to follow the evidence and to
more readily discern its materiality, force and effectâ€
[citation]. . . .’
[Citation.]†(
827.) The prosecutor’s PowerPoint
presentation did not mislead the jury into believing that defendant’s image
could clearly be identified from the surveillance video because of the manner
in which the slides were presented. The
prosecutor told the jury that they were “going to see the surveillance video
from the night of the shooting†and that Vasquez and Quijano were going to
identify defendant “as being the shooter in that video.†The prosecutor did not create evidence as
defendant contends by presenting a slide showing defendant’s image in a
photograph of the shooting from the surveillance video. Instead, a still photograph taken from the
surveillance video, which was later admitted as evidence, was first shown to
the jury. Defendant’s booking
photograph, which was also later admitted as evidence, was then superimposed
over the photograph taken from the surveillance video. The use of the two photographs to create the
superimposed image was merely a visual aid to assist the jury in following the
testimony of Vasquez and Quijano. “The
use of photographs . . . intended later to be admitted in
evidence, as visual or auditory aids is appropriate.†(Ibid.)
Defendant’s contentions that the
prosecutor altered existing evidence and created new evidence are without
merit. The still photograph taken from
the surveillance video and defendant’s booking photographs were properly
admitted into evidence.
name="_ftnref10" title="">[10] The challenged slide comprised of the
combined images was not shown to the jury outside of the prosecutor’s opening
and closing statements. Nor did the
prosecutor intend to mislead the jury.
In closing argument, the
prosecutor acknowledged the surveillance video by itself was inconclusive for
purposes of identifying defendant. The
prosecutor stated, “The defendant’s image on that video, it’s not crystal
clear, like I said, but it fits the description that [Quijano] gave perfectly.â€
Citing People v. Katzenberger (2009) 178 Cal.App.4th 1260 (
use of the superimposed image subverted the deliberative process and invited
the jury to jump to the conclusion that defendant was the person on the
surveillance video.
the prosecutor’s closing argument
included a PowerPoint presentation in which six of eight puzzle pieces
created a picture immediately and easily recognizable as the Statue of Liberty,
although a portion of the statue’s face and torch were not visible. (Katzenberger,
supra, 178 Cal.App.4th at pp. 1264–1265.)
Over defense objection, the prosecutor argued that even without the
missing pieces, one would know beyond a reasonable doubt that the puzzle
depicted the Statue of Liberty. (
The appellate court concluded that the presentation was misleading,
leaving the “distinct impression that the reasonable doubt standard may be met
by a few pieces of evidence†and “invit[ing] the jury to guess or jump to a
conclusion, a process completely at odds with the jury’s serious task of assessing
whether the prosecution has submitted proof beyond a reasonable doubt.†(Id.
at p. 1267.) The presentation had also
suggested, erroneously, that proof beyond a reasonable doubt could be measured
quantitatively at 75 percent (six of eight puzzle pieces). (Id.
at pp. 1267–1268.) Though the
prosecutor’s actions were harmless in light of the jury instructions correctly
defining reasonable doubt and the overwhelming evidence of the defendant’s
guilt, the presentation did amount to misconduct. (Id.
at pp. 1268–1269, applying standard of prejudice articulated in
18, 24.)
Here, the prosecutor did not
suggest that the reasonable doubt standard may be met by only a few pieces of
evidence. Nor did the prosecutor attempt
to quantify the concept of reasonable doubt as the Katzenberger court concluded the prosecutor did in that case. The prosecutor argued that while the video
corroborated the witnesses’ testimony, the jury should not make their decision
“based on the video alone†because there was “enough evidence [to find
defendant guilty] beyond a reasonable doubt without the video.†The prosecutor did not mention the standard
of proof in connection with her presentation of the slide at issue here and we cannot infer
that its use was egregious or reprehensible conduct by the prosecutor that rose
to the level of misconduct.
Finally, no harm
could have resulted. Prior to opening
statements and also before closing argument and the commencement of
deliberations, the
trial court instructed the jury that what the attorneys said in their arguments
was not evidence. We presume the jury followed this instruction. (People
v. Waidla (2000) 22 Cal.4th 690, 725 [“The presumption is that limiting
instructions are followed by the juryâ€]; People
v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 [“The crucial assumption
underlying our constitutional system of trial by jury is that jurors generally
understand and faithfully follow instructionsâ€].)
Motions to Dismiss Jurors
A. Contentions
Defendant
contends the trial court erred in denying defense motions to dismiss Juror Nos.
2 and 11. He contends that because Juror
No. 2 expressed fear of a witness and also saw defendant in restraints during a
break in trial, the totality of the circumstances indicated bias. Defendant also contends Juror No. 11 did not
understand the burden of proof, disregarded the trial court’s instructions not
to talk to witnesses, and identified with the prosecution’s gang expert
demonstrating his bias. We find no merit
to these contentions.
1. Factual Background
During a break in Shepherd’s
testimony, Juror No. 2 contacted the bailiff and asked to speak with the court
in private. Juror No. 2 stated she lived
in the same neighborhood as Shepherd and frequently saw him on the street. She covered her face during his testimony
because she was scared and did not want him to see her. In response to questioning by the court,
Juror No. 2 said her fear would not affect her ability to be impartial and
would not influence her verdict. After
Juror No. 2 left the courtroom, defense counsel had a “separate
objection.†Based on defendant’s
misconduct in the courtroom during the previous trials and while in custody,
the court ruled that defendant would be placed in a “restraint chair†during
trial. Counsel stated that when they
broke for lunch, Juror No. 2 walked back into the courtroom as the deputy was
removing defendant from the courtroom.
Counsel stated “It looked like she could see him being brought in
because [the bailiff] asked her ‘Can you wait outside, please?’†Counsel was concerned it would lead to
speculation as to “why we bring him out of the courtroom without the jury
present†and asked that Juror No. 2 be excused “for that reason.†The court denied defense counsel’s request
stating the bailiff was very conscientious and that even if Juror No. 2 did see
something “she’s just expressed her commitment to fairness just a moment ago as
it relates to both sides, so I don’t think, even if she did see something like
that, it’s going to interfere or affect her as an impartial juror.â€
Legal Principles
Section 1089 authorizes the trial court to
discharge a juror at any time before or after the final
submission of the case to the jury if, upon good cause, the juror is “found to
be unable to perform his or her duty.†A
trial court “has broad discretion to investigate and remove a juror in the
midst of trial where it finds that, for any reason, the juror is no longer able
or qualified to serve.†(
142, fn. 19.) A juror’s inability to
perform “‘must appear in the record as a “demonstrable reality†and bias may
not be presumed.’ [Citations.]†(People
v. Beeler (1995) 9 Cal.4th 953, 975.)
We review the trial court’ determination for abuse of
discretion and uphold its decision if it is supported by
substantial evidence. (
462.)
3. Analysis
The record does not support
defendant’s claim that Juror No. 2’s ability to serve was compromised because
she may have observed defendant on a single occasion in some form of restraints
during a break in the proceedings. Juror
No. 2’s removal was not warranted and substantial evidence supports the trial
court’s conclusion that she was not biased.
The court questioned Juror No. 2 in the presence of counsel regarding
her fear of Shepherd. She assured the
court that her fear would not affect the way she decided the case. She stated she could be fair to both sides in
response to a question from the prosecutor.
Defense counsel had “no questions†when asked for his input. The court found Juror No. 2’s assurances
credible, despite her fear of Shepherd.
Secondly,
it is not clear from the record that Juror No. 2 actually saw defendant in
restraints because defense counsel’s claim was based on the bailiff’s request
that Juror No 2 wait outside. Defense
counsel stated “it looked like [Juror No. 2] could see†defendant.
In any
event, any brief observation by a juror that defendant was in restraints would
not support a conclusion that bias existed.
The
California Supreme Court has repeatedly held that a juror’s brief observation
of a defendant in restraints for the purpose of transporting the defendant
outside the courtroom does not constitute prejudicial error. (People
v. Cunningham (2001) 25 Cal.4th 926, 988; People v. Tuilaepa (1992) 4 Cal.4th 569, 584; People v. Duran (1976) 16 Cal.3d 282, 287, fn. 2.) Sometimes, and as occurred here, “a
jury inevitably will learn a defendant is in custody for the current charged
offense.†(People v. Bradford (1997) 15 Cal.4th 1229, 1336.) Here, immediately prior to defense counsel’s
concern that Juror No. 2 may have observed defendant’s restraints and become
aware of his custody status, Shepherd testified that while he was in custody
and traveling back and forth to court on the custody bus, he observed
defendant. That afternoon immediately
after the discussion regarding Juror No. 2’s possible bias, defense
counsel asked Shepherd “How many times did you see [defendant] in
custody?†Shepherd responded he had seen
defendant a number of times, and in response to defense counsel’s further
questions clarified that he was referring to defendant being in custody for
this particular case. Defendant himself
testified regarding “the tank downstairs†and how custodial prisoners “come up
to this tank up here.â€
“The customary
practice of utilizing physical restraints while transporting a prisoner from
place to place, e.g., from jail to courtroom and back, is a matter of common
knowledge and generally acknowledged as acceptable for the protection of both
the public and defendant.†(
1135, 1141.) Given Juror No. 2’s
assurances that she could be fair to both sides, her brief observation of
defendant during transportation to and from the courtroom, did not establish
good cause for her removal.
Background
The morning
after Detective Arias testified, the prosecutor informed the court that Jurors
Nos. 1, 7 and 11 greeted Detective Arias as they walked into the
courtroom. Detective Arias informed the
court that one of the jurors told him “You did a really good job,†to which he
replied, “Thank you.†Defense counsel
moved for a mistrial on the grounds that the jurors had already started to form
opinions, and asked that all three jurors be removed. The prosecutor suggested it could have been a
benign comment meaning Detective Arias looked at them while testifying and
spoke well, and did not mean they had formed an opinion about the evidence.
The court
questioned Juror No. 11 in the presence of counsel. Juror No. 11 said he greeted Detective Arias
and said “You did a good job, and I hope it’s not going to take much longer
than the case should be.†The court
reminded Juror No. 11 that he had been admonished not to speak to anybody
regarding the case, and asked him why he spoke to the detective. Juror No. 11 stated “Just I seen him come
through and testify so many times and I’m here too, and I just feel that we
have been—be here and we going to sit through the same procedures for many,
many days, just expressed that we doing the right thing for a long time.†The court asked Juror No. 11 if he had made
up his mind already, or had begun to make up his mind, as to whether the
prosecution had proved their case. He
responded that he had not made up his mind and would not do so until the case
ended. The court invited counsel to
question the juror:
“[DEFENSE
COUNSEL]: Sir, just briefly, who has the
burden of proof in the case?
“[JUROR No.
11]: Burden to prove the case?
“[DEFENSE
COUNSEL]: Right.
“[JUROR No.
11]: The juror, and you are too.
“[DEFENSE
COUNSEL]: Okay. So I have the same burden as [the
prosecutor]; right?
“[JUROR No.
11]: Yes.
“[DEFENSE
COUNSEL]: Okay. Thank you.
“[THE
COURT]: Okay.
“[THE
PROSECUTOR]: Sir, you understand that I
have to prove the case to you; right?
“[JUROR No.
11]: Yes.
“[THE
PROSECUTOR]: Okay. Nobody else has to prove anything; right?
“[JUROR No.
11]: Yes.
“[THE
PROSECUTOR]: Okay. You’re going to wait until you hear
everything before you make a decision; right?
“[JUROR No.
11]: Yes. Yes.â€
The court
briefly questioned Jurors Nos. 1 and 7.
Juror No. 1 denied making any comment to Detective Arias and did not
hear Juror No. 11 make any comment.
Juror No. 7 also stated that he did not speak to Detective
Arias. He did not know what Juror No. 11
said to Detective Arias but thought it was “a hello—it was just a two-second
interchange.â€
Defense
counsel requested that Juror No. 11 be removed because the juror was unclear
about the burden of proof and had spoken to a witness. The prosecutor argued that Juror No. 11 did
understand who had the burden of proof and thought he was confused about “who
has to approve the case.†The court
noted that Juror No. 11 was Cambodian and worked at a Cambodian community
organization and presumed that was his first language. The court also noted that during jury
selection he was articulate and open-minded.
The court agreed with defense counsel’s view that Juror No. 11 tended to
agree with whoever asked the question.
The court reporter read back Juror No. 11’s answers to defense counsel’s
questions. The court stated that Juror
No. 11 may not have heard the question correctly and confused the terms “proveâ€
and “approve.†The court found no legal
cause to remove Juror No. 11 stating:
“My recollection during voir dire is there was a lot of discussion about
who has the burden of proof, what the
standards are, and questions about if the defendant does not testify and
exercises his right not to do so, as well as a whole range of other subjects,
and there was not any misunderstanding at that phase.â€
2. Applicable Legal Principles
“Before an
appellate court will find error in failing to excuse a seated juror, the
juror’s inability to perform a juror’s functions must be shown by the record to
be a ‘demonstrable reality.’ The court
will not presume bias, and will uphold the trial court’s exercise of discretion
on whether a seated juror should be discharged for good cause under section
1089 if supported by substantial evidence. [Citation.]â€
(People v. Holt (1997) 15
Cal.4th 619, 659; see also People v.
Williams (1997) 16 Cal.4th 153, 232.)
3. Analysis
Here, the trial court questioned
Juror No. 11 at length about the comments he made to Detective Arias when the
matter was brought to the court’s attention.
The court needed to be satisfied that Juror No. 11 was not biased and
that he understood the prosecution carried the burden of proof in order to
perform his function as a juror. Juror
No. 11 admitted speaking to Detective Arias and his recollection of the
comments was corroborated by Detective Arias.
He assured the court that he had not formed any opinion about the case
and would not do so until all the evidence was presented. The court was also convinced that Juror No.
11 would follow the law and apply the correct standard with respect to the
burden of proof. Having considered the juror’s
court was in the best position to observe his demeanor and assess his credibility.
However, assuming
arguendo that in talking to Detective Arias Juror No. 11 violated section 1122
review the full record does not show a reasonable probability that defendant’s
case was actually harmed by such misconduct.
First, in view of
the ample evidence of defendant’s guilt, it is highly improbable that
defendant’s case was actually harmed.
(See People v. Ryner (1985)
164 Cal.App.3d 1075, 1082–1083; see People
v. Cochran (1998) 62 Cal.App.4th 826, 831 [court may consider strength of
prosecution’s case to determine prejudice].)
The shooting which was committed by a large African-American male
wearing a blue beanie was captured on surveillance videotape. The victim, a member of a “Blood†gang was wearing
red, while defendant a member of a “Crips†gang was wearing blue. Long Beach Police Department provided
Detective Arias with information that an individual named “H.K.†from the
10-Deuce Budlong Gangster Crips was responsible for the shooting at T.G.I.
Friday’s. Defendant was identified
by a number of witnesses as the large African-American male wearing the blue
beanie who had initiated a confrontation with the victim and his friends
moments before the shooting.
Second, Juror No.
11’s statement to Detective Arias was innocuous and considering the trial was
entering its third week probably nothing more than a comment about the
efficient nature of the testimony. The
fact that the juror made the comment is at worst a trivial violation of section
1122’s admonition against discussing the case with others. (See People
v. Ryner, supra, 164 Cal.App.3d 1075, 1083 [record on full review revealed
that juror’s contact with another was insignificant and did not result in
actual harm].)
Finally, jurors
are presumed to follow jury instructions.
(People v. Frank (1990) 51
Cal.3d 718, 728.) When the trial court
called Juror No. 11 before it and reapprised the juror of his oath not to
prejudge defendant and not to talk to anyone about the trial, it is presumed
that Juror No. 11 did, in fact,
follow the court’s instructions.
Accordingly, we find no substantial likelihood that Juror No. 11 was
biased against defendant.
In light of the
full record, we find no reasonable probability that defendant suffered actual
harm as a result of Juror No. 11’s comment to Detective Arias, and therefore the
presumption of prejudice is successfully rebutted. The trial court did not err in choosing not
to dismiss Juror No. 11.
Court’s Refusal to Instruct on Voluntary Manslaughter
A. Contention
Defendant
contends the trial court prejudicially erred by failing to instruct the jury on
attempted voluntary manslaughter upon sudden quarrel or in the heat of passion
as a lesser included offense of murder.
Defendant maintains that the record contains sufficient evidence that he
acted in response to adequate provocation.
During the
discussion on jury instructions among counsel and the trial court, defense
counsel asked that the jury be instructed on attempted voluntary
manslaughter. The trial court denied the
request stating there was no evidence in the record “that shows any objectively
reasonable provocation to substantiate the instruction on attempted voluntary
manslaughter based on a theory of heat of passion or sudden quarrel.â€
C. Relevant Authority
“The trial court
is charged with instructing upon every theory of the case supported by
substantial evidence . . . .â€
(People v. Montoya (1994) 7
Cal.4th 1027, 1047.) Substantial
evidence is evidence that is “reasonable, credible and of solid value.†(People
v. Quintero (2006) 135 Cal.App.4th 1152, 1165; People v. Crew (2003) 31 Cal.4th 822, 835.) Pure speculation does not constitute the
requisite substantial evidence sufficient to support a lesser included offense
instruction. (People v. Wilson (1992) 3 Cal.4th 926, 942.) The failure to instruct on a lesser included
offense is reviewed de novo. (
366 [‘“We apply the independent or de novo standard of review to the
failure by the trial court to instruct on an assertedly lesser included offense’â€].)
“A heat of
passion theory of manslaughter has both an objective and a subjective
component. [Citations.]†(People
v. Moye (2009) 47 Cal.4th 537, 549.)
To satisfy the objective, or reasonable person, element of heat of
passion voluntary manslaughter, the defendant’s heat of passion must be
attributable to sufficient provocation.
(Ibid.) “To satisfy the subjective element of this
form of voluntary manslaughter, the accused must be shown to have killed while
under ‘the actual influence of a strong passion’ induced by such
provocation. [Citation.]†(Id.
at p. 550.) “Heat of passion arises when
‘at the time of the killing, the reason of the accused was obscured or
disturbed by passion to such an extent as would cause the ordinarily reasonable
person of average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.’ [Citations.]â€
(People v. Barton (1995) 12
Cal.4th 186, 201.)
The circumstances
giving rise to the heat of passion are also viewed objectively. (People
v. Oropeza (2007) 151 Cal.App.4th 73, 82–83.) A defendant may not set up his own standard
of conduct and justify or excuse his acts because his passions were aroused,
unless the facts and circumstances were sufficient to arouse the passions of
the ordinarily reasonable person. (
547, 584; People v. Oropeza, supra, at
pp. 82–83.) “The claim of provocation
cannot be based on events for which the defendant is culpably
responsible.†(People v. Oropeza, supra, at p. 83.)
If the trial
court fails in its duty to instruct on a lesser included offense supported by
the evidence, the error is one of state law alone. (People
v. Breverman (1998) 19 Cal.4th 142, 165.)
It does not require reversal unless an examination of the entire record
establishes a reasonable probability that the error affected the outcome. (Id.
at p. 178; People v. Watson (1956) 46
Cal.2d 818, 836.)
D. No Evidence Justified a Voluntary
Manslaughter Instruction
Here, there was
no evidence from which the jury could conclude that defendant shot Shepherd in
the heat of passion or sudden quarrel.
There was no direct evidence concerning defendant’s subjective mental
state at the time of the shooting because he testified at trial and denied
being present at T.G.I. Friday’s on the night of the shooting.
surveillance video no witness testified that defendant was provoked in any way
by Shepherd, and Shepherd testified that he was shot as he exited the
establishment.
The incident
could not be characterized as a “sudden quarrel†because the evidence showed
that defendant was standing some distance away when he saw rival gang signs
being flashed. He walked over and
confronted the group of Westside Pirus and challenged them to “go out to the
parking lot†and told them to “stop being a little bitch.â€
The
sequence of events was simply not one that would cause an ordinary person of average
disposition to act in the heat of passion.
Defendant contends that a jury could have found provocation from the
verbal altercation in the bar. But there
was no testimony that Shepherd flashed gang signs or shouted the Bloods gang
name or “battle cry.†This claim is
without merit because the yardstick is not how defendant or an active gang
member would react. Defendant is not
entitled to set up his own standard of conduct.
(People v. Manriquez, supra,
37 Cal.4th at p. 584 [defendant cannot create an unreasonably heightened sense
of injustice in order to justify his conduct].)
Instruction—Failure to Explain or Deny Adverse Testimony
contends it was error for the trial court to instruct the jury with CALCRIM No.
361 (failure to explain or deny adverse testimony).
We review a claim of instructional error
de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 217; People v. Burch (2007) 148 Cal.App.4th 862, 870 [validity and
impact of jury instructions reviewed independently because “question is one of
law and the application of legal principlesâ€]; see also People v. Smith (2008) 168 Cal.App.4th 7, 13 [propriety of jury
instructions determine
| Description | Two juries convicted defendant and appellant Donyell Ladale Butler of attempted murder, assault with a firearm, and possession of an assault weapon. He appeals from the judgments and contends that (1) the prosecution committed prejudicial misconduct, (2) the trial court erred by refusing to dismiss two jurors, (3) the trial court erred by refusing defense counsel’s request to instruct the jury on attempted voluntary manslaughter, (4) the trial court erred when it instructed the jury with CALCRIM No. 361 (failure to explain or deny adverse testimony), (5) the trial court erred when it overruled a defense objection to a hypothetical question posed to the gang expert, (6) the trial court erred in calculating the length of the sentence for the gang enhancement on the count for possession of an assault weapon, (7) the trial court erred in failing to award presentence custody credits, (8) there was insufficient evidence that defendant was the shooter, (9) the abstract of judgment should be corrected to reflect the proper sentence on the count for possession of an assault weapon, and (10) the case should be remanded because the abstract of judgment does not accurately reflect the oral pronouncement of the court. We agree that the trial court imposed an incorrect sentence for the gang enhancement on the count for possession of an assault weapon and modify the judgment. We also find defendant was entitled to presentence conduct credit. In all other respects, we affirm the judgment. |
| Rating |
