P. v. Gray

Filed 4/25/06 P. v. Gray CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

After the initial jury deadlocked, resulting in a mistrial, a second jury convicted defendant Jeffery Gray of second degree murder. It also sustained an allegation that he personally and intentionally used a handgun to cause the death of the victim. The trial court sentenced him to state prison.

The defendant contends that the trial court violated his right to a speedy trial; allowed the prosecutor to exercise an illicit peremptory challenge; improperly admitted evidence of prior acts of domestic violence against the victim and evidence related to his juvenile adjudication for voluntary manslaughter; ineffectually responded to prosecutorial misconduct; incorrectly instructed the jury in various regards; did not follow the proper procedure in receiving the jury's verdict; and violated his right to be present at court proceedings. We shall affirm.

Facts

A

The primary prosecution witness was the victim's most recent roommate, with whom she had come to live a couple of weeks before the murder. On the day of the shooting, the victim had returned home in the late afternoon with a car that the roommate's father had rented. She asked the roommate to come along with her while she drove the defendant home (who was outside in the car). This was the first time that the roommate had met the defendant.

The victim drove to an apartment complex. She explained to the defendant that they had to return the car to the roommate's father. The defendant refused to get out of the car. The victim went into the apartment complex and returned with the defendant's cousin, who joined the roommate in the back seat. The victim drove around, seemingly aimlessly. Eventually, they returned to the apartment complex. The defendant still would not leave the car; he told the victim that the roommate and cousin could follow her in the defendant's car.

The victim continued to drive with no apparent destination. It appeared to the roommate that the victim and the defendant were having an argument. Eventually, the cars stopped at a gas station, at which point the victim told her roommate that she wanted to go to the cemetery to see the grave of her mother, after which they would go to a restaurant to eat.

When they got to the cemetery, they followed a road to the rear. The victim got out of the car, carrying only a purse, and walked quickly toward the fence. The defendant got out of the car holding a small black gun. He started walking toward the victim. The roommate could see his hands make the motion of cocking the gun.

The defendant tried to grab the victim's neck. She shrugged him off but he took hold of her. The two of them struggled. The roommate did not see the victim's hand on the gun at any point. The music was on in the car and the windows up, so the roommate could not hear anything. As the victim broke away from the defendant, the roommate heard the sound of a shot. The victim staggered away. The defendant walked back to the car with the purse and gun in hand, and told his cousin and the roommate that someone needed to get the victim to a hospital. The roommate ran to the victim and dragged her (without assistance from the men) to the rental car, but could not get her inside. She demanded the keys and the victim's purse from the men. Unable to summon assistance on a cell phone, she decided to drive to the nearby home of her grandmother to make the call.

The bullet entered the victim's neck and exited the right side of her back in essentially a straight line. The angle of the wound indicated it had been fired from someone standing over the victim, or shooting at a bent-over victim. The bullet perforated a major vein to her heart and two of the three lobes of her right lung. Her chest cavity was filled with a quart of blood. Her blood-alcohol level was .05, and a significant amount of methamphetamine was in her system. There was also a pipe in her pocket.

A resident of an apartment complex bordering the cemetery was in the process of taking laundry in two or three trips to his car. He heard what sounded like a young woman nearby who was crying, gasping, and gurgling. It sounded as if she was saying, â€