P. v. Sewell

Filed 10/16/07 P. v. Sewell CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Darlene E. Schempp, Judge. Affirmed.

Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Appellant Dandre Damone Sewell appeals from a judgment entered after a jury found him guilty of first degree murder (Pen. Code, 187, subd. (a)),[1]and second degree murder ( 187, subd. (b)). As to both counts, the jury found true the allegations that appellant personally and intentionally used and discharged a firearm which caused great bodily injury or death within the meaning of sections 12022.53, subdivisions (b), (c), and (d). The jury also found true the special circumstance allegation of multiple murders within the meaning of section 190.2, subdivision (a)(3).

CONTENTIONS

Appellant contends that: (1) the admission of Sterlinso Jacksons (Jackson) preliminary hearing testimony without an adequate showing of due diligence violated his right to confrontation; and (2) the giving of self-defense jury instructions violated his right to due process.

FACTS AND PROCEDURAL HISTORY

Second Degree Murder of Ramon Cardoza

On January 22, 2004, Fernando Lopez (Lopez), Ramon Cardoza (Cardoza), and Wilmer Garcia were passengers in a car driven by another man. Appellant, who was crossing the street, threw gang signs at them and said Whitsett. Cardoza became angry, told the driver to turn around, asked appellant where he was from, then got out of the car and began chasing appellant. Cardoza did not have a weapon, nor was he a gang member. Appellant shot Cardoza in the stomach, a nonfatal wound. Appellant then walked to within five feet of Cardoza and shot him three or four times in the face. Cardoza died as a result of the two gunshot wounds to his head. The gun was fired eight to 24 inches away from Cardozas head. On April 2, 2004, Lopez identified appellant from a photo lineup. He also identified appellant at trial as the killer. Two bullets were recovered from Cardozas body.

First Degree Murder of Alvin Flowers

On March 29, 2004, appellant and Jackson were walking near a bus stop when they were approached by Alvin Flowers (Flowers) and another man. Flowers asked where they were from. Jackson replied that he did not bang anymore, but that he used to belong to the West Boulevard Crips. Appellant said Trust no bitch. Flowers said Lets get these niggers, and they rushed appellant and Jackson. Jackson hit the other man in the chin, and appellant took a defensive stance. Jackson grabbed appellant and told him to run. Flowers and the other man, who did not have any weapons, chased them.

Appellant and Jackson stopped and faced the men. Appellant pulled out a gun. Jackson told appellant to put the gun away and that he was not a killer. Appellant said If I dont kill him, they are going to kill me. Jackson waved at Flowers to go back, but heard him say Lets fight. Jackson then told appellant that he was on his own, and walked away. Jackson heard appellant say Trust no bitch, fuck chickens. When he looked back he saw appellant run after Flowers. Jackson ran away as fast as he could. He heard a shot, looked back, and saw Flowers fall to the ground. He did not look back again, but heard more shots. Jackson had spent the previous night with appellant and saw a gun in appellants drawer.

Colin Follenweider and Thom Williams were coming out of a driveway when they heard a shot. They saw appellant chasing Flowers with a gun. Flowers was not armed and they did not see him approach or attack appellant. Appellant shot Flowers in the back, and after he collapsed, stood over him and shot him twice more, in the head and chest.

From his second floor patio, Gene Hodge (Hodge) saw appellant, Flowers, and two other men arguing. Flowers charged appellant. Hodge saw Flowers turn and run. Hodge then noticed that appellant had a gun and heard Flowers shout, He has a gun. Appellant shot Flowers, and after he fell, appellant shot him two or three more times while standing directly over him.

Leilani Rincon (Rincon), who knew appellant from middle school, saw appellant and three other men arguing with each other. She saw appellant pull out a gun and chase Flowers. Rincon identified appellant in a photo lineup and at trial.

Flowers suffered two fatal gunshot wounds. One shot, from one to three feet away, entered above his left ear, passed through his brain, and exited under his right eye. The other fatal wound entered his back left side, perforated his left kidney, the left portion of his liver, and aorta. The third, nonfatal gunshot wound was to the right side of his chest.

On April 1, 2004, police officers searched Erick Stewarts (Stewart) apartment pursuant to a search warrant. Appellant had been staying periodically with Stewart. Officers found two nine-millimeter magazines, one containing 11 live rounds, and one containing 15 live rounds, and a box containing 24 nine-millimeter bullets. Officers also found information on Crips gangs printed from the Internet, and a piece of paper from a notebook with the words RIP and Damage written on it.

A bullet from Flowerss body and a bullet and cartridge casings recovered from the scene were fired from the same nine-millimeter semiautomatic weapon that was used to fire the bullets recovered from Cardozas body and the bullets and cartridge casings at the scene of Cardozas murder.

Appellants Defense

Appellant testified in his defense that he was at home on the day of Cardozas murder and knew nothing about it. As to the Flowers murder, appellant admitted that he was with Jackson that day, but denied that he killed Flowers. He testified that Flowers and his friend approached him and Jackson. Appellant showed the gun to Flowers and ran toward him in order to scare him, but never took the safety off or fired at him. Instead, appellant then ran away.

DISCUSSION

I. The trial court did not err in admitting Jacksons preliminary hearing testimony

Appellant contends that the district attorneys investigator did not exercise due diligence in trying to locate Jackson and that he was prejudiced by his inability to cross-examine Jackson at trial. We disagree with both contentions.

The Sixth Amendment to the United States Constitution and Article I, section 15 of the California Constitution guarantee a criminal defendant the right to confront witnesses against him. (People v. Wilson (2005) 36 Cal.4th 309, 340.) But, pursuant to Evidence Code section 1291, subdivision (a)(2), evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the party against whom the testimony is offered was a party to the proceeding in which the testimony was given and had the opportunity to cross-examine the declarant. A witness may be deemed unavailable if he or she is absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by court process. (Evid. Code,  240, subd. (a)(5).)

The term reasonable diligence or due diligence under Evidence Code section 240, subdivision (a)(5) connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.] [Citation.] Considerations relevant to this inquiry include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witnesss possible location were competently explored. [Citation.] We independently review a trial courts due diligence determination. [Citation.] (People v. Wilson, supra, 36 Cal.4th at p. 340.)

Appellant contends that Los Angeles County District Attorney investigator Joel Berk (Berk) did not exercise due diligence because he began searching for Jackson at a late date; relied solely on computerized searches and conversations with the probation officer; did not go to Jacksons address; and only left a phone message for Jacksons sister, to which she did not reply.

Appellants citation to People v.Cromer (2001) 24 Cal.4th 889, 904 (Cromer) does not assist him. There, our Supreme Court concluded that the investigator did not exercise due diligence where police officers knew the witness had disappeared two weeks after giving preliminary hearing testimony, but the investigator did not follow up on information regarding her whereabouts until the day of trial, even though he had been given the information two days before trial. The day of trial, the investigator left a subpoena with a woman at the witnesss mothers house, but did not attempt to follow up with the mother by telephone or any other means. The investigator consulted computerized information systems, the county jail, and the county hospital, but made no other attempts to locate the witness. (Id. at p. 904.)

The lack of diligence of the investigator in Cromer is simply not present here. At a due diligence hearing, Berk testified that in September 2005, he had Jacksons probation officer serve Jackson. In December 2005, a no-bail warrant was issued for Jackson. Berk also left messages with Jacksons sister, who did not respond. He did not visit Jacksons home because the probation officer had checked that address. Berk checked the federal and local computer system to determine whether Jackson had been placed in custody or whether the warrant was executed by any agency. Berk stated that he had exhausted all means available to him by also checking DMV records, hospital records, the employment development department; and employment records through Jacksons social security number. Still, he was unable to locate him. Our review of the record compels us to conclude that Berk exercised due diligence in attempting to locate Jackson. (People v. Wilson, supra, 36 Cal.4th at p. 340 [check of police, county, state records one month before trial, and visit to last known address constituted due diligence].)

Nor are we convinced otherwise by appellants argument that the investigator should have taken further steps by checking with the utility companies; contacting Jacksons other relatives; or contacting New Orleans police after being informed by Jacksons probation officer that Jackson might have relocated to that city. An appellate court will not reverse a trial courts determination [under  240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. [Citation.] (People v.Diaz (2002) 95 Cal.App.4th 695, 706.) Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state or simply disappear, long before a trial date is set. (Ibid.) Here, Jackson had not been regularly communicating with his probation officer or complying with other probation conditions, and it would have been futile for Berk to duplicate Jacksons probation officers prior efforts. There was no indication whether Jackson had other relatives for Berk to contact; and it was unclear how contacting New Orleans police would have been helpful because Berk had already checked federal and local police databases. (People v. Smith (2003) 30 Cal.4th 581, 611 [the prosecution must take reasonable steps to locate an absent witness, but need not do a futile act].)

We conclude that the trial court did not err in admitting Jacksons preliminary hearing testimony.

II. The self-defense instructions were supported by substantial evidence

Appellant contends that the trial court erred in giving self-defense jury instructions over his objection because they were not supported by substantial evidence. We disagree.

The trial court has the duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v.Michaels (2002) 28 Cal.4th 486, 529-530.)

Appellant contends that CALJIC No. 5.30[2]and CALJIC No. 5.31,[3]instructions regarding reasonable self-defense, do not apply to cases involving homicide. Contrary to appellants assertion, however, CALJIC Nos. 5.30 and 5.31 do pertain to justifiable homicide. (People v.Rios (2000) 23 Cal.4th 450, 458 [justifiable homicide defined as a killing in reasonable self-defense by CALJIC Nos. 5.30 and 5.31].)

Appellant next asserts that CALJIC Nos. 5.54, 5.55, and 9.11 should not have been given because the evidence did not show that appellant had been the aggressor in the incidents and appellant did not claim self-defense at trial. CALJIC No. 5.54[4]provides that self-defense is available to one who initiated an assault if he tried to refuse to continue fighting and conveyed his intention to his opponent. CALJIC No. 5.55[5]provides that the right of self-defense is not available to a person who intended to exercise self-defense by seeking a quarrel.

In the incident involving Cardoza, appellant first threw gang signs and said Whitsett to the occupants of the car, causing Cardoza to become angry enough to ask the driver to turn the car around, and to get out of the car to pursue appellant. Therefore, the jury could have concluded that appellant deliberately sought a quarrel with Cardoza so that he could shoot him in a display of self-defense. In the Flowers episode, the evidence showed that appellant and Jackson took aggressive, fighting stances and that Jackson was the only person to make physical contact when he punched Flowerss companion. Thus, the jury reasonably could have concluded that appellant and Jackson were the aggressors and were properly instructed with CALJIC Nos. 5.54 and 5.55. Even if the jury doubted that appellant was the aggressor in the Flowers situation, it was instructed pursuant to CALJIC No. 17.31 that whether instructions apply depends on what the jury finds to be the facts and to disregard any instruction not applicable to the facts as determined by the jury.

CALJIC No. 9.11[6]provides that insulting words alone do not justify an assault with a deadly weapon. The evidence shows that Flowers, his friend, Jackson, and appellant exchanged words right before Flowers said Lets get these niggers. Shortly thereafter, appellant shot Flowers to death. Accordingly, this instruction was closely connected to the evidence adduced at trial.

We conclude that the trial court did not err in giving the challenged instructions.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, J.

DOI TODD

We concur:

___________________, P. J.

BOREN

___________________, J.

CHAVEZ

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] CALJIC No. 5.30, as given, provides: It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.

[3] CALJIC No. 5.31, as given, provides: An assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar circumstances would believe that the assault is likely to inflict great bodily injury upon him.

[4] CALJIC No. 5.54, as given, provides: The right of self-defense is only available to a person who initiated an assault, if 1. He has done all the following: A. He has actually tried, in good faith, to refuse to continue fighting; B. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and C. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he has stopped fighting. After he has done these three things, he has the right to self-defense if his opponent continues to fight, or 2. If the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.

[5] CALJIC No. 5.55, as given, provides: The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.

[6] CALJIC No. 9.11, as given, provides: No oral or written words of abuse, insult or reproach addressed to or said about a person, however insulting or objectionable the words may be, if unaccompanied by any threat or apparent threat of great bodily injury, or any assault upon the person, will justify an assault with a deadly weapon or by any means of force likely to produce great bodily injury. The provocation of words alone does not constitute a defense to a charge of having committed such an assault.