P. v. Reynolds

 

 

 

 

 

 

 

 

 

Filed 9/5/13  P. v. Reynolds CA4/3

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   CHARLES MICHAEL REYNOLDS,         Defendant and Appellant.

G046212            (Super. Ct. No. 08NF4115)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Thomas M. Goethals, Judge.  Affirmed.

                        J. Courtney Shevelson,
under appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III,
Deputy Attorneys General, for Plaintiff and Respondent.

 

                        A jury convicted Charles
Michael Reynolds of first degree murder,
premeditated attempted murder, two counts of href="http://www.fearnotlaw.com/">robbery and active participation in a
criminal street gang.  The jury also
found true allegations Reynolds committed the murder during a robbery and while
being an active participant in a criminal
street gang, vicariously discharged a firearm causing great bodily injury
and death, and committed all crimes for the benefit of, at the direction of, or
in association with the Rollin 20’s criminal street gang.  The trial court sentenced Reynolds to life
without the possibility of parole for the murder, plus 25 years for vicarious
use of a gun, imposed concurrent prison terms for the attempted murder and
robberies, and stayed imposition of sentence for active participation in a
criminal street gang pursuant to Penal Code section 654. 

                        Reynolds argues the
trial court violated his state and federal Constitutional right to due process
of law by admitting an in-court eyewitness identification which was the result
of an impermissibly suggestive photographic lineup introduced in a
codefendant’s earlier trial.href="#_ftn1"
name="_ftnref1" title="">[1]  He also asserts the trial court prejudicially
erred by not giving CALCRIM No. 240 on causation.  We find no error on either point and affirm.

 

FACTS

                        After an evening of
revelry at the Boogie nightclub in Anaheim,
Armand Jones, Giovanni Boyd, Dwayne Washington and Brent Hurd went to a nearby
Denny’s restaurant.  The Denny’s was
crowded, but the group of friends quickly found a place to sit, and they were
soon joined by their friend, Ronnell Spencer, and several other people. 

                        After a time, Boyd and
Washington went to the restroom.  While
they were inside the restroom, seven or eight African-Americans, including
Reynolds, Yolanda Brown, Stanley Simon, Nicholas Valerio, and Jarrell Kelly,
came into the restroom.  At least two
members of this group had guns.  One gun
was pointed at Boyd and another at Washington.  Various members of this group demanded Boyd
and Washington turn over their jewelry, cell phones, and expensive shoes.  One of them yelled out, “This is 20’s.” 

                        Washington and Boyd did
not resist, and various individuals patted them down and removed their
possessions.  Brown walked out of the
restroom, but quickly returned.  She said
another person wearing gold chains was coming. 
Jones entered the restroom and saw Washington
against the wall with his hands up. 
Jones asked what was going on. 
Simon demanded Jones turn over his gold necklace and grabbed it.  The chain snapped, Jones hit Simon, and a
melee ensued.  Everyone ran out of the
bathroom.  Reynolds pushed Jones to the ground
on his way out.  Hurd came over and
helped Jones to his feet, and together they chased the robbers out of the
Denny’s.  Another Denny’s patron heard
someone say, “‘20’s” or ‘“this is 20’s’” while the group ran through the
restaurant.  Witnesses also heard Jones
yelling that he had been robbed.

                        Spencer, who was still
sitting at the table, said, “Ya’ll robbed my homeboys,” drew a gun, ran
outside, and fired several shots into the air. 
A return volley of gunshots came from various locations as the robbers
fled for cover.  Two .38- or .357-caliber
bullets hit Jones in the chest and he died within minutes.  An eyewitness saw Reynolds fire a gun in
Jones’s direction, and Jones crumble to the ground. 

 

DISCUSSION

 

                        Reynolds raises two
issues on appeal:  First, he challenges
Hurd’s in-court identification of him as the person who pushed Jones down
outside the Denny’s bathroom, suggesting that without Hurd’s identification no
other evidence, except the testimony of his accomplice, Damon Hill, tied him to
the robberies.  Second, he joins in the
argument raised by Brown in her separate appeal that Spencer’s intervention gave
rise to a sua sponte obligation to instruct the jury on causation.  (CALCRIM 240.)  We address each issue in turn and find
neither has merit.

 

>1. 
In-Court Identification

                        a.  Pretrial Proceedings

                        Reynolds made a pretrial
motion to prohibit any in-court identification by Hurd based upon certain
events which had occurred during the earlier trial of codefendant Simon.  Before the Simon trial, the prosecution
prepared a document entitled, “People v. Kelly, Brown, Hill, Reynolds, Valerio,
Simon” which contained the names and photographs of the six defendants.  This document was marked as People’s Exhibit
No. 23 for the Simon trial.

                        During
the Simon trial the prosecutor showed Exhibit No. 23 to an eyewitness without
objection, but that eyewitness was unable to identify anyone.  Later in the Simon trial, during
cross-examination of Hurd, Simon’s attorney asked Hurd if he had seen
“everybody” who came out of the Denny’s restroom.  Hurd said he saw people run by him at close
range, and he claimed to have gotten a good look at some of these people.           Simon’s
attorney then showed Hurd Exhibit No. 23and asked him “if [he] recognize[d]
anybody.”  Hurd pointed to Kelly, Hill,
Brown, and Reynolds, and said they had been involved in the robbery, or at
least had run by him on their way out of the restroom.  Hurd testified Reynolds was the one who
pushed Jones down.  Hurd was unable to
identify Simon or Valerio.  Hurd also
testified in the Simon trial that during the initial investigation Anaheim
Police officers had shown him several other photographs, but he was only able
to identify Kelly because he knew him from high school. 

 

                       

                        b.  Trial Court Ruling

                        The trial court denied
Reynolds’s pre-trial motion to exclude any in-court identification by Hurd
during the Reynolds trial.  The trial
court found Exhibit No. 23 was not “‘so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification,’”
citing Simmons v. United States (1968)
390 U.S. 377
and Manson v. Brathwaite (1977) 432 U.S.
98.  As the trial court stated, “This
isn’t a perfect photo lineup.  But as I
said earlier, except for the names in various locations on what is now court
exhibit 1 and was previously People’s 23 in Mr. Simon’s trial, I frankly don’t
find the photo lineup itself impermissibly suggestive.  I’ve seen a lot worse, which is not the
standard.  I’ve seen better; I’ve seen
worse.  I don’t think this is that
bad.  If this was shown without names to
any prospective witness in this case, I don’t think as a matter of law any
court would find that it was impermissibly suggestive.” 

                        The trial court also
concluded there was no state action in Hurd’s identification of Reynolds during
the Simon trial and referenced several factors used by a jury to evaluate
eyewitness identification testimony.  In
the end, the trial court found Reynolds’s objection to Hurd’s in-court
identification of Reynolds went to the weight of the evidence and not its
admissibility.

 

>                        c.  In-Court Identification

>                        Later,
during the Reynolds trial, Hurd testified he saw five African-American males
and one African-American female come out of the Denny’s restroom.  He said Jones backed up as the others rushed
out.  Nevertheless, Hurd testified Jones
was pushed down right in front of him, and he pointed to Reynolds at the
defense table when asked if he saw the person who pushed Jones down anywhere in
the courtroom. 

                        On cross-examination by
defense counsel during the Reynolds trial, Hurd said his friends found a
photograph of Kelly and sent it to his MySpace page, but he denied searching
MySpace for photographs of other suspects. 
On redirect, the prosecutor asked Hurd if he had identified Reynolds
from a photograph during his testimony in the Simon trial.  Hurd said he did pick Reynolds’s picture, and
admitted the first time he had seen that picture (Exhibit No. 23) was at the
Simon trial. 

                        Hurd also claimed he
previously identified Reynolds in a true six-pack photograph lineup a detective
had shown him.  However, a detective
testified he had not shown Hurd a six-pack lineup that included Reynolds’s
picture.  In fact, this detective
testified Hurd identified Kelly from a six-pack lineup and said he knew him
from his old neighborhood, but that Kelly was the only person he could
identify. 

 

>                        d.  Analysis

                        Reynolds challenges the
trial court’s ruling on his motion to exclude Hurd’s in-court identification of
him, claiming the court violated his state and federal Constitutional right to
due process of law.  We disagree.

                        “In order to determine
whether the admission of identification evidence violates a defendant’s right
to due process of law, we consider (1) whether the identification procedure was
unduly suggestive and unnecessary, and, if so, (2) whether the identification
itself was nevertheless reliable under the totality of the circumstances,
taking into account such factors as the opportunity of the witness to view the
suspect at the time of the offense, the witness’s degree of attention at the
time of the offense, the accuracy of his or her name="SDU_175">prior
description of the suspect, the level of certainty demonstrated at the time of
the identification, and the lapse of time between the offense and the
identification.”  (People v.
Cunningham (2001) 25 Cal.4th 926, 989.) 
An appellate court conducts an independent review of the trial court’s
determination ruling.  (>People v. Kennedy (2005) 36
Cal.4th 595, 609, disapproved on another point in People v. Williams (2010) 49 Cal.4th 405, 459.)

                        This case does not
present the typical scenario for suggestive six-pack photographic
identification procedures.  While Exhibit
No. 23 did contain six photographs, it was not used to identify potential
suspects during the investigation of the crimes.  In fact, there is no evidence any police
officer ever used Exhibit No. 23.  To the
contrary, the prosecutor used Exhibit No. 23 while questioning another witness
during the Simon trial.  Simon’s defense
attorney then showed it to Hurd in a gamble that paid off:  Hurd was unable to indentify Simon.  Even so, the first time Hurd saw the
photograph of Reynolds, he said Reynolds was the person who pushed Jones to the
ground when the restroom cleared.  Then,
in the Reynolds trial the prosecutor simply asked Hurd if he saw the person who
pushed Jones down in the courtroom, and Hurd pointed to Reynolds. 

                        Reynolds fails to
explain how Hurd’s in-court identification of him during the Simon trial was
unduly suggestive.  In fact, there was
nothing suggestive in defense counsel’s impromptu use of the People’s exhibit
during the Simon trial.  Counsel merely
showed Hurd the photographs and asked if he recognized anyone.  Not only did Hurd recognize Reynolds, he
testified Reynolds was the person who pushed Jones to the ground inside the
Denny’s restaurant. 

                        Furthermore, Reynolds
fails to explain how Hurd’s in-court identification of him during the Simon
trial was unreliable.  If anything, that
identification seems more reliable because it did not involve investigating
officers or the prosecutor, and there is no evidence Hurd even knew the names of
any of Kelly’s codefendants at that time. 
In addition, Hurd had the opportunity to see Reynolds up close.  True, the circumstances were chaotic, but
Hurd’s testimony suggests he was paying careful attention to the people running
by him.  Finally, there is no evidence
Hurd previously gave a description of Reynolds to investigators, but he
consistently indentified Reynolds as the person who pushed Jones to the
ground.  Thus, even though the
identification happened years after the crime, the fact he first identified
Reynolds while under oath in the Simon trial, engenders confidence in the
identification, not doubt.

                        Reynolds also disputes
the trial court’s finding there was no state action but cites no authority for
his assertion the “People’s preparation and use of the photo display in Simon’s
trial made them complicit in its use during Hurd’s testimony.”  We are not convinced.  During the Simon trial the prosecutor did not
suggest anything to Hurd  which related
to Reynolds and did not use Exhibit No. 23 in any impermissible way. 

                        In sum, under the facts
presented and considering the factors appropriate to our determination, Hurd’s
identification of Reynolds as one of the robbers in Simon’s trial was not so
impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification in Reynolds’s trial.   (Simmons,> supra, 390 U.S. at p. 384.) 
Therefore, we agree with the trial court and find Reynolds’s arguments
go to the weight rather than the admissibility of Hurd’s in-court
identification of Reynolds.

 

>2. 
CALCRIM No. 240

>                        Reynolds
next argues, “Spencer’s unlawful intervention [in the robbery] raises a legal
issue whether it was an independent intervening cause of Jones’ death that
abrogates felony-murder as to appellant, who was not personally involved in the
shooting.”  He contends Spencer’s
intervention triggered the court’s sua sponte duty to instruct the jury with
CALCRIM No. 240.href="#_ftn2" name="_ftnref2"
title="">[2]  Again, we disagree.

                        In People v. Cervantes (2001) 26 Cal.4th 860 (>Cervantes), the California Supreme Court
had occasion to discuss proximate causation in the context of a provocative act
murder prosecution.  (>Id. at p. 866.)  The high court stated, “‘In general, an
“independent” intervening cause will absolve a defendant of criminal liability.  [Citation.] 
However, in order to be “independent” the intervening cause must be
“unforeseeable . . . an extraordinary and abnormal
occurrence, which rises to the level of an exonerating, superseding
cause.”  [Citation.]  On the other hand, a “dependent” intervening
cause will not relieve the defendant of criminal liability.  “A defendant may be criminally liable for a
result directly caused by his act even if there is another contributing cause.  If an intervening cause is a normal and
reasonably foreseeable result of defendant’s original act the intervening act
is ‘dependent’ and not a superseding cause, and will not relieve defendant of
liability.  [Citation.]  ‘[ ] 
The consequence need not have been a strong probability; a possible
consequence which might reasonably have been contemplated is enough.  [ ] 
The precise consequence need not have been foreseen; it is enough that
the defendant should have foreseen the possibility of some harm of the kind
which might result from his act.’ 
[Citation.]”  [Citation.]’  [Citations.]” 
(Id. at p. 871.)

                        In Cervantes, members of different gangs attended the same party.  The defendant, a member of the Highland
Street gang, shot a member of the Alley Boys gang (Linares) in the arm and
chest during a scuffle over a perceived slight to a woman associated with the
Alley Boys.  (Id. at pp. 863-864.)  A
melee erupted with several participants yelling gang challenges.  (Ibid.)  A short time later, a group of Alley Boys
spotted a lone Highland Street gang member (Cabrera) and fired several shots,
killing him.  (Id. at p. 864.)  At
trial on charges he killed Cabrera, the defendant testified he did not intend
to shoot anyone, and that he was driving away from the party when he heard
several shots being fired.  (>Ibid.) 


                        The California Supreme
Court reversed the defendant’s conviction, observing, “Defendant was not the
initial aggressor in the incident that gave rise to the provocative act.  There was no direct evidence that Cabrera’s
unidentified murderers were even present at the scene of the provocative act,
i.e., in a position to actually witness defendant shoot Linares.  Defendant himself was not present at the
scene where Cabrera was fatally gunned down; the only evidence introduced on
the point suggests he was already running away from the party or speeding off
in his car when the victim was murdered.” 
(Cervantes,> supra, 26 Cal.4th at p. 872, fns. omitted.)  The high court further observed, Cabrera’s
murderers “‘intend[ed] to exploit the situation created by [defendant], but
[were] not acting in concert with him,’ a circumstance that is ‘normally held
to relieve the first actor [defendant] of criminal responsibility.’  [Citations.]” 
(Id. at p. 874.)

                        Here, unlike >Cervantes, Spencer took it upon himself
to protect his friends during the course of a robbery, but there is no evidence
he sought to exploit the situation caused by Reynolds and his fellow gang
members.  In our view, Spencer stands in
the shoes of a victim of the robbery or a responding police officer, and should
not be considered an intervening or superseding cause cutting off Reynolds’s
liability for Jones’s death.  (See >Cervantes, supra, 26
Cal.4th at p. 868; see also People
v. Gilbert (1965) 63 Cal.2d 690, 704-705 [police officer kills
accomplice] reversed on grounds not relevant here sub nom. Gilbert v.
California (1967) 388 U.S. 263.)

                        Under established
principles of causation, “[t]he defendant remains criminally liable if either
the possible consequence might reasonably have been contemplated or the
defendant should have foreseen the possibility of harm of the kind that could
result from his act.  [Citation.]”  (People
v. Crew (2003) 31 Cal.4th 822, 847.) 
A shooting death during a gang-related
armed robbery like this is a reasonably foreseeable risk, not an
extraordinary or abnormal occurrence.  By
way of contrast, if an airplane had fallen from the sky and killed Jones, then
Reynolds’s argument would have merit. 
But here we see no reason for absolution simply because the victims’
friend intervened as opposed to one of the victims himself or a responding
peace officer.

 

                        The evidence shows
Reynolds participated in two armed robberies in which more than one perpetrator
possessed a gun.  The crimes took place
in a busy restaurant.  Although a
bystander’s violent intervention was not inevitable, Spencer’s involvement in
the robbery is hardly the type of occurrence so remote and unusual that it
would cut off the criminal liability of one of the robbery participants.  “[I]t is impossible to see how it could
reasonably be concluded that the death[] of [Jones] in such circumstances could
have been an unnatural or improbable consequence of appellants’ admitted
acts.”  (People v. Anderson (1991) 233 Cal.App.3d 1646, 1662.)

                        Reynolds also argues
Spencer’s acts were not legally justifiable, and he “cannot be liable for the
robbers’ reaction to Spencer’s independent, illegal, and lethal conduct.”  He has cited no authority for the proposition
an intervening act cuts off liability unless the intervening act is both
foreseeable and legally
justifiable.  Furthermore, we are not
prepared to find on this record that his acts fall outside of Penal Code
section 197’s provision for justifiable homicide when the life of another is
threatened, or as a justified act to apprehend those who had just robbed his
friend.  (See Pen. Code, § 197,
subds. (1), (4).)

                        Finally, as Reynolds
concedes, the court gave CALCRIM No. 540-B, which required the jury to find,
among other things, a “logical connection” between the cause of Jones’s death
and the robbery, and that the connection between the robbery and murder was
“more than just their occurrence at the same time and place.”  And, as the Attorney General notes, the trial
court also gave CALCRIM Nos. 549 and 730, which informed the jury Reynolds
could be convicted of felony murder only if it determined the act causing
Jones’s death and the robberies were part of one continuous transaction.  Thus, there was no sua sponte obligation to
instruct the jury with CALCRIM No. 240.

 

 

 

DISPOSITION

 

                        The judgment is
affirmed.

 

 

 

                                                                                   

                                                                                    THOMPSON,
J.

 

WE CONCUR:

 

 

 

ARONSON,
ACTING P. J.

 

 

 

IKOLA, J.