P. v. Jackson

Filed 8/28/06 P. v. Jackson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Damion Monroe Jackson appeals the judgment entered after a jury convicted him of first degree murder (Pen. Code^[1], §§ 187, subd. (a), 189) and residential robbery (§ 211). The jury found true the allegations that Jackson committed the murder while engaged in the commission of the robbery (§ 190.2, subd. (a)(17)), and that he personally used a firearm in the commission of both offenses (§ 12022.53, subd. (b)). He was sentenced to state prison for a term of life without the possibility of parole, plus a determinate term of 10 years. He contends (1) the admission of the victim's dying declarations violated his Sixth Amendment right to confrontation; (2) the trial court abused its discretion in refusing to take judicial notice of the fact that he had not fled while released on bail, and in declining to give a special instruction regarding his absence of flight; and (3) the court abused its discretion in admitting evidence regarding "tagging" culture and the tagging evidence found in Jackson's room. We affirm.

FACTS AND PROCEDURAL HISTORY

On the evening of January 31, 2003, Edgar Guerrero and Peter Torres were in a car parked near the "bridge" area in Oxnard when Jackson approached them and told them he wanted them to assist him in robbing Mark Droney, a drug dealer who sold methamphetamine from his house on nearby Geronimo Drive in Oxnard. Guerrero and Torres knew Jackson as "Peanut," the moniker he used as a member of the "AWK" tagging crew. Earlier that evening, Guerrero and Torres had played pool at Droney's house. Torres had introduced Jackson to Droney as "Peanut" on the previous New Year's Eve when Torres took Jackson to Droney's house to purchase methamphetamine.

Jackson told Guerrero and Torres he needed them to provide a distraction by weighing marijuana inside Droney's house while Jackson went to the bathroom. Jackson told them he planned to return from the bathroom with a gun and steal the drugs from Droney, which he kept in a black leather bag. Jackson assured them he would not shoot Droney.

The following morning, Guerrero left Droney voice messages asking to borrow his scale to weigh marijuana and Torres left a message inquiring about a methamphetamine purchase. Shortly thereafter, Jackson, Guerrero, and Torres arrived together at Droney's house. Jackson went to the bathroom while Torres used Droney's scale to weigh marijuana and Droney measured methamphetamine at a desk. Jackson returned from the bathroom, pulled out the gun, pointed it at Droney and said, "Give me your shit" or "Give me all your stuff." Droney got up, ran at Jackson, and tried to take the gun from him. During the ensuing struggle, the gun discharged, and Droney fell to the floor. Jackson grabbed something from the desk where Droney had been sitting, and ran from the house.

At 7:14 a.m., Torres called 911 to report that Droney had been shot. He identified himself to the 911 dispatcher as "David," and waited on the telephone until the police arrived. The police arrived shortly thereafter and separated Guerrero and Torres. Droney was found lying on the floor. Oxnard Police Officer Jessica Hines asked Droney what had happened, and he told her he had been shot. When asked who had shot him, Droney said he did not know and that he was in pain.

Officer Hines accompanied Droney to the hospital, where doctors told her he had suffered a life-threatening injury and that he might not survive surgery. The officer conveyed this to Droney, and asked him again who had shot him. Droney replied that "Peanut" had shot him when he tried to fight back. Approximately an hour later, Droney reiterated that an individual he knew only as "Peanut" had pulled a gun and shot him.

Torres gave a tape-recorded interview at the scene of the crime. He initially identified himself as David Santiago, and refused to identify the shooter or provide any other information because he did not want to be labeled a "rat." Torres subsequently admitted his true name after the interviewing officer found it tattooed on Torres's body. In later interviews, Torres said that Peanut was the shooter, and provided an accurate physical description of Jackson. Torres also told the police where Jackson lived.

Guerrero also gave a taped interview at the scene. Guerrero was initially evasive because he too was afraid of being labeled a "rat." He did, however, identify the shooter as "Peanut," and gave a physical description that matched Jackson's. In a subsequent interview at the police station, Guerrero was again evasive and stated his concern about being harmed for giving information about the shooter. One or two days later, however, Guerrero identified Jackson as the shooter from a photographic lineup.

Inside Droney's house, the police found several baggies of marijuana, three marijuana plants, drug paraphernalia for ingesting marijuana and methamphetamine, a scale, and a "pay-owe" sheet containing various names with corresponding dollar amounts. No shell casings or a black bag containing drugs or money were found. Several messages were left on Droney's answering machine on February 1, including two requests to borrow his scale. None of Jackson's prints were found at the scene or in Guerrero's car, but latent prints found on the bathroom doorknob and sink were matched to Guerrero and Torres, respectively.

The autopsy revealed that Droney died from a single gunshot to the abdomen. A forensics expert determined that the bullet recovered from Droney's body was either a .380 automatic or a 9-millimeter caliber bullet from a semiautomatic firearm, although no such weapon was ever identified or linked to Jackson.

On February 3, 2003, the police searched Jackson's bedroom and found the word "Peanut" written on the mirror and on a magnet. There were also several items containing graffiti-style writing.

Oxnard Police Detective Brian Bishop, who was assigned to investigating graffiti vandalism in Oxnard, explained to the jury that "tagging" was a term used to describe such vandalism, and that AWK was one of the 179 identified "tagging crews" that were operating within the city. He also explained that taggers identified anyone who provided information to the police regarding their crimes as a "rat" subject to physical retaliation. Based on his review of the items recovered from Jackson's room, including the notation "AWK Mr. Peanut" in a 2002 calendar book and other references to AWK, Bishop opined that Jackson was an active member of the AWK tagging crew at the time of the crime and that his moniker was Peanut.

Jackson's evidence highlighted the inconsistencies in the numerous statements Guerrero and Torres made to the police, as well as the indications of untruthfulness during their polygraph examinations. Most notably, both men had initially indicated that they were unable to identify the shooter, were evasive, and denied or downplayed any involvement in the crime. Jackson also offered that Torres and Guerrero first claimed they were at Droney's house earlier in the evening during interviews conducted on November 23, 2004, and January 2, 2005, respectively. Torres also waited until that interview before claiming that he had introduced Jackson to Droney at Droney's house on New Year's Eve of 2002. It was also stipulated that on February 3, 2003, Jackson was arrested near the pool at the condominium complex where he lived, and that nothing recovered from his residence connected him to the scene of the crime.

DISCUSSION

I.

Admission of Droney's Dying Declarations

Jackson contends that the trial court violated the Confrontation Clause of the Sixth Amendment by admitting Droney's statements to the police that "Peanut" shot him. Jackson does not challenge the court's finding that those statements qualified as dying declarations pursuant to Evidence Code section 1242^[2], yet he disputes the court's reliance on People v. Monterroso (2004) 34 Cal.4th 743, for the proposition that admission of those statements, even if they were testimonial in nature, did not violate his confrontation rights. According to Jackson, Crawford v. Washington (2004) 541 U.S. 36, and its progeny, Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266, 2276-2277], dictate the conclusion that Droney's statements were admitted in violation of his confrontation rights. He also contends the court erred in concluding that his claim was barred under the doctrine of forfeiture by wrongdoing. Neither contention has merit.

As our Supreme Court concluded in Monterroso, dying declarations are excepted from Crawford's bar on the admission of the testimonial statements of an unavailable witness whom the defendant had no prior opportunity to confront or cross-examine. The court reasoned that "if, as Crawford teaches, the confrontation clause 'is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding' [citations], it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment." (People v. Monterroso, supra, 34 Cal.4th at p. 765.) The United States Supreme Court's recent decision in Davis v. Washington, in which the court established a test for determining which statements are "testimonial" for purposes of the confrontation clause, does not undermine the conclusion in Monterroso regarding the admissibility of dying declarations. As the court recognized in Crawford, all dying declarations were admissible at common law, including those that were testimonial in nature. (Crawford v. Washington, supra, 541 U.S. at p. 56, fn. 6.)

Jackson argues that in Monterroso, our Supreme Court "appeared to limit its holding to the facts" underlying the dying declaration at issue in that case. We do not construe the opinion as so limited. Although the court stated that "the dying declaration in this case passes constitutional muster" and that dying declarations were admissible at common law "under certain circumstances" (People v. Monterroso, supra, 34 Cal.4th at p. 764, italics added), those remarks cannot be reasonably construed to limit the court's holding in the manner Jackson urges.

First, there is nothing remarkable in the court's reference to the particular extrajudicial statements at issue, since the defendant in that case, unlike Jackson, argued that those statements did not qualify as a dying declaration under Evidence Code section 1242. (People v. Monterroso, supra, 34 Cal.4th at pp. 762-763.) Moreover, the court's reference to the admissibility of dying declarations "under certain circumstances," considered in context, merely reflects the recognition that such statements were admissible only where it was established that the victim made the statements with knowledge of his or her pending death. (Id., at pp. 764-765.)

In other words, if statements qualify as a dying declaration under Evidence Code section 1242, then they are excepted from the rule of Crawford regarding the admissibility of extrajudicial statements that are testimonial where the defendant has no opportunity for cross-examination. To the extent Jackson relies on other factors bearing on the reliability of Droney's statements--for example, his characterization that Droney "initially refused to talk with police and refused to answer questions"--those arguments go to the weight to be accorded to those statements, not their admissibility. Jackson had the opportunity to argue to the jury that the circumstances surrounding Droney's identification of him as the shooter rendered that identification unreliable. The court found that those statements qualified as dying declarations under Evidence Code section 1242, and Jackson has never challenged that finding. Because dying declarations do not violate the Sixth Amendment right of confrontation, Jackson's claim that the admission of Droney's dying declarations violated that right must fail.

In any event, the trial court correctly concluded that Jackson's Sixth Amendment claim was barred by the doctrine of forfeiture by wrongdoing. The issue of whether a defendant's confrontation clause rights are forfeited by wrongdoing is pending before our Supreme Court in People v. Giles, review granted December 22, 2004, S129852, a case decided by this court. The doctrine of forfeiture by wrongdoing is premised on the equitable principle that a defendant who has rendered a witness unavailable for cross-examination through a criminal act may not object to the introduction of hearsay statements made by that witness on the ground that it would violate his constitutional right to confront the witnesses against him. Because Droney's unavailability was caused by Jackson's intentional criminal act, Jackson cannot be heard to complain that he was deprived of the opportunity to confront and cross-examine him.

II.

Absence of Flight Instruction and Judicial Notice

At trial, Jackson submitted a proposed jury instruction regarding his absence of flight during the 12 days that he was erroneously released on bail shortly after being charged, and requested that the court take judicial notice of the facts demonstrating his absence of flight.^[3] In declining to give the instruction or take judicial notice of the attendant facts, the court reasoned: "We're talking about a narrow window period here when Mr. Jackson would have been out of custody. It's not so probative that the Court finds it to be compelling. And it would be [Evid. Code, § 352] in the Court's view." The court further noted that the evidence would open the door to evidence regarding the reason Jackson did not flee, "including in this matter the posting of a substantial bond through the use of property . . . in order to secure his appearance, all of which are issues

. . . that divert the jury's attention from the real issues in the case in the Court's view." Jackson contends the court abused its discretion in so holding.

Evidence Code section 352 provides in relevant part: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The section "'. . . gives the trial court broad discretion when weighing the probative value and prejudicial effect of proffered evidence.' [Citation.]" (People v. Gurule (2002) 28 Cal.4th 557, 654.) "A trial court's exercise of discretion in admitting or excluding evidence . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently

absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Requests for judicial notice are subject to the relevance and admissibility requirements of Evidence Code section 352. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)

The trial court did not abuse its discretion in refusing to give the requested instruction on absence of flight and in declining to take judicial notice of the supporting facts. Our Supreme Court has concluded that courts need not give instruction on the absence of flight because the probative value of such evidence is "slight." (People v. Green (1980) 27 Cal.3d 1, 38-39.) Indeed, "the scales tip so heavily against admission of evidence of absence of flight that it must be excluded as a matter of law." (Id., at p. 39, fn. omitted; see also People v. Williams (1997) 55 Cal.App.4th 648, 653 ["the absence of flight presents such marginal relevance it is usually not even admissible"].)

Jackson nevertheless urges us to reject this authority because of the "highly unlikely" facts of this case, in that there was evidence of both flight and absence of flight. According to Jackson, refusal of the instruction violated the due process principles of reciprocity and parity because the prosecution was allowed to exploit the fact that Jackson fled from the scene while Torres and Guerrero did not. We disagree. Evidence of lack of flight from the scene of the crime is entirely different from the evidence that Jackson did not flee while he was released on bail several weeks after he was apprehended.

Jackson also argues that evidence of flight and absence of flight are qualitatively similar, but it is well settled that they are not: "Although flight may also be subject to arguably innocent interpretation in certain contexts, and CALJIC No. 2.52 permits the jury to accord it appropriate weight under the circumstances, flight is significantly different than the absence of flight. Flight is by its nature an active, conscious activity which readily and logically tends to support the inference of consciousness of guilt, as described in CALJIC No. 2.52. Indeed, the inference of consciousness of guilt from flight is one of the simplest, most compelling and universal in human experience. [Citation.] The absence of flight, on the other hand, is far less relevant, more inherently ambiguous and 'often feigned and artificial.' [Citation.]" (People v. Williams, supra, 55 Cal.App.4th at p. 652.) Because any relevance of Jackson's absence of flight during his release on bail was substantially outweighed by the probability that its admission would confuse the issues to be decided by the jury, the court did not abuse its discretion in rejecting that evidence pursuant to Evidence Code section 352.

In any event, any error in excluding the evidence would have been harmless because the victim and two witnesses identified Jackson as the shooter. Under the circumstances, it is not reasonably probable that Jackson would have received a more favorable outcome had the jury been allowed to consider the fact that he did not flee while he was out on bail. (People v. Watson (1956) 46 Cal.2d 818, 836.)

III.

"Tagging" Evidence

Jackson also contends the trial court abused its discretion in admitting evidence regarding "gang graffiti" and the expert testimony on "gang culture." As the People correctly point out, the word "gang" was never used at trial. Rather, evidence of Jackson's tagging activity was admitted for the limited purpose of proving his identity as "Peanut," and the expert testimony regarding tagging culture was admitted to support the testimony of Torres and Guerrero that they were reluctant to give any information to the police because they feared being labeled as "rats" by Jackson's tagging crew. Jackson contends the court abused its discretion in admitting this evidence over his Evidence Code section 352 objection.

The court did not abuse its discretion in admitting the evidence. As we have noted, the evidence was relevant to prove Jackson's identity. It also bolstered the credibility of Torres and Guerrero in that it explained why they were initially afraid to talk to the police. (See People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450 [gang evidence properly admitted on the issue of witness credibility to explain why witnesses initially refused to identify the defendant].) Although we do not disagree that the evidence of Jackson's participation in the tagging crew was inflammatory, the court prohibited the expert from mentioning any acts of violence committed by the group and the jury was instructed to consider the evidence for the limited purpose it was offered. To the extent Jackson challenges the tagging evidence identifying him as "Peanut" as cumulative of other evidence on this point, he overlooks the fact that the evidence was also relevant to prove his membership in AWK at the time of the offense. Moreover, the court did prevent the prosecution from admitting some of the graffiti evidence found in Jackson's bedroom. In any event, any error in admitting the evidence was harmless because there is no reasonable probability that Jackson would have received a more favorable outcome had the evidence been excluded.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Kevin J. McGee, Judge

Superior Court County of Ventura

______________________________

Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Statutory references are to the Penal Code, unless otherwise noted.

^[2] Evidence Code section 1242 provides that "[e]vidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death."

^[3] Jackson submitted the following proposed special instruction: "The absence of flight of a person after he is accused of a crime, although the person had the opportunity to take flight, is a fact which may be considered by you in light of all other proven facts, in deciding whether or not the defendant's guilt has been proven beyond a reasonable doubt. The weight to which such circumstances is [sic] entitled is a matter for the [sic] you to determine."