P. v. Strain
Filed 7/19/13 P. v. Strain CA4
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JEREMY DANIEL-LEE
STRAIN et al.,
Defendants and Appellants.
C062509
(Super. Ct. No. 06F04398)
ORDER MODIFYING OPINION
AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH GORDON HOLLORAN,
Defendant and Appellant.
C062652
(Super. Ct. No. 06F04398)
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT ANTHONY NELSON,
Defendant and Appellant.
3
Crim. C062742
(Super.
Ct. No. 06F04398)
THE COURT:
It is
ordered that the opinion filed herein on June 26, 2013, be
1. On page 29 of the opinion, at the
end of the first full sentence, ending on line four, add a footnote following
footnote 23, to read as follows:
In
a petition for rehearing, defendant Holloran argues we are not allowed
to consider the circumstance that the evidence was elicited by Holloran’s
own trial counsel unless we invite supplemental briefing, because
Government Code section 68081 precludes us from deciding an appeal based
on an issue not proposed or briefed by the parties. However, the circumstance that the challenged
evidence was elicited by Holloran’s counsel is not a new “issue†under Government
Code section 68081. The legislative
history of that statute indicates the court may apply rules, principles, or
theories of law to the issues raised by the parties without affording
supplemental briefing. The language of
the statute was amended before enactment to substitute the words “an issue†for
the phrase “a rule, principle, or theory of law.†(See Assem. Amend. to Sen. Bill No. 2321
(1985-1986 Reg. Sess.) July 9, 1986;
Gov. Code, § 68081 (added by Stats. 1986, ch. 1098, § 1.) Doubtless this change reflects a desire to
avoid an endless cycle of mandatory rebriefings and rehearings that could be
broken only by the court parroting the brief of one of the litigants. Moreover, “[s]ection 68081 does not require
that a party actually have briefed an issue; it requires only that the party had
the opportunity to do so. . . .
[The rule of court requiring the parties to file appellate briefs]
give[s] the parties the opportunity to brief any issues that are fairly
included within the issues actually raised.â€
(People v.
41 Cal.4th 668, 677.) Here, the
“issue†raised by defendant was the admissibility of statements made by Nelson
to Linggi. Defendant had the opportunity
to brief the issue and he did, but his arguments on appeal were based on his
own erroneous recitation of the facts.
It was not the prosecutor who elicited the evidence about which he
complains. Defendant brought out the
evidence. We find nothing in Government
Code section 68081 that mandates an appellate court to extend to a defendant an
opportunity for a do-over when the defendant makes a legal argument on an issue
grounded on an erroneous understanding of the procedural facts underlying the
issue.
2. On lines 11-12 on page 52 of the
opinion, replace the parenthetical “(See fn. 28, ante.)†with “(See fn. 29, ante.)â€
3. On line 2 on page 73 of the opinion,
after the sentence reading: “Those cases are inapposite here.†add a footnote
following footnote 34 in the opinion as filed June 26, 2013, to read as
follows:
In
his petition for rehearing, defendant Holloran claims that we misstate the
record by saying the trial judge made no finding regarding his father’s
credibility. Holloran cites the judge’s
response when Nelson’s lawyer conceded that Juror No. 10 should be removed
from Nelson’s jury for questionable veracity after the juror claimed not to
recall having spoken with Holloran’s father, yet Holloran’s father knew
personal information about the juror that turned out to be true, i.e., that the
juror worked in a bakery, got off work at 1:00 p.m., and ate a snack to stay
attentive. The judge said to Nelson’s
trial counsel, “I agree. I share your
concerns as to [the juror’s] veracity.â€
At most, this comment reflects that the judge believed that Holloran’s
father indeed spoke with this juror, as stated by Holloran’s father. In contrast, our opinion rejects Holloran’s
argument that the trial court found the father’s description of his encounters with the juror to be credible. Holloran cites no evidence of any such
finding. Our review of the record
reflects that the trial court did not make a finding that the father was
credible in all particulars.
4. In the second sentence of the third
full paragraph on page 87 of the opinion, replace the parenthetical “(fn. 37,
5. The two new footnotes added above will
require renumbering of all footnotes following footnote 23. Modification Nos. 2 and 4 are made to reflect
the footnote references in the body of the opinion, which have been
necessitated by the footnotes added here.
There is no
change in the judgment.
Defendant
Holloran’s petition for rehearing is denied.
FOR THE COURT:
ROBIE ,
Acting P. J.
BUTZ ,
J.
MURRAY ,
J.
Filed 6/26/13
P. v. Strain CA3 (unmodified version )
NOT TO BE PUBLISHED
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.
COPY
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JEREMY DANIEL-LEE
STRAIN et al.,
Defendants and Appellants.
C062509
(Super. Ct. No. 06F04398)
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH GORDON HOLLORAN,
Defendant and Appellant.
C062652
(Super. Ct. No. 06F04398)
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT ANTHONY NELSON,
Defendant and Appellant.
3
Crim. C062742
(Super.
Ct. No. 06F04398)
Defendants
accosted several people at a public park, leaving a park worker paralyzed and
another victim with a stab wound, concussion and broken jaw. Defendants Jeremy Daniel-Lee Strain, Joseph Gordon
Holloran, and Robert Anthony Nelson were convicted of aggravated mayhem (Pen.
Code, § 205
title="">[1]
(count two)) and assault by means of force likely to produce great bodily
injury (§ 245, subd. (a)(1) (count three)). Defendant Alexander Schornberg Kent was convicted
of simple mayhem (§ 203 (lesser included count two)) and assault with
force likely to produce great bodily injury (§ 245, subd. (a)(1)
(count three)). Holloran and Nelson were
also convicted of assault by means of force likely to produce great bodily
injury (§ 245, subd. (a)(1) (count four)) and battery with
serious bodily injury (§ 243, subd. (d) (count five). An enhancement for personal infliction of
great bodily injury causing coma or paralysis under section 12022.7,
subdivision (b) was found true as to each defendant except
Kent. A separate enhancement for personal infliction of great bodily
injury under section 12022.7, subdivision (a) was found true as to
Holloran and Nelson. A gang enhancement
(§ 186.22, subd. (b)(1)) was found true as to Nelson, who was tried
by a separate jury in the same trial.
All defendants were acquitted of attempted murder (§§ 664, 187
(count one)) and the lesser included offense of attempted voluntary
manslaughter (§§ 664,
192).
Defendants
Strain, Holloran, and Kent, who were all tried by the same jury, raise
a variety of contentions in consolidated appeals (C062509 &
C062652). Nelson claims insufficiency of
the evidence as to the gang allegation in a separate appeal (C062742) we
ordered consolidated for purposes of oral argument and disposition only.
We vacate
the restitution orders and remand for a restitution hearing related to one of
the victims for Holloran, Kent, and Strain.
We also make various other orders related to victim restitution. We otherwise affirm all four judgments.
An amended
information filed on April 8, 2009, charged all four defendants with the
following:
Count one -
Attempted murder of Richard Dickerson (§§ 664, 187),
Count two -
Aggravated mayhem on Richard Dickerson (§ 205),
Count three
- Assault by means of force likely to produce great bodily injury (GBI) on
Richard Dickerson (§ 245, subd. (a)(1)),
Count four
- Assault by means of force likely to produce GBI or with a deadly weapon, a
knife, on Jeffrey Dobbs (§ 245, subd. (a)(1)), and
Count five
- battery resulting in infliction of serious bodily injury on Jeffrey Dobbs
(§ 243, subd. (d)).
As to
counts one and three, it was alleged that defendants personally inflicted GBI
causing paralysis and a coma to Richard Dickerson. (§ 12022.7, subd. (b).) As to counts four and five, it was alleged
that defendants personally inflicted GBI to Jeffrey Dobbs. (§12022.7, subd. (a).) As to all counts, it was alleged that
defendants committed the offenses for the benefit of, at the direction of and
in association with the Norteño
criminal street gang. (§ 186.22,
subd. (b)(1).)
The parties
agreed to dual juries. A separate jury
was impaneled for Nelson, so that the jurors in his case would not hear
evidence of a videotaped conversation between the other three defendants at the
sheriff’s station in Nelson’s absence.
On
May 11, 2006, defendants got drunk and made trouble for various people at
Hagan Park in Rancho Cordova. That
evening, they attacked and seriously injured the victims, Richard Dickerson and
Jeffrey Dobbs. The eyewitness testimony
conflicted as to exactly who did what.
Dickerson,
a park worker, was unable to provide details at trial because the attack left
him with memory loss.
Dickerson’s
companions, his friend Jeffrey Dobbs and his cousin Daniel Riddle, had
volunteered to help Dickerson set up a stage.
As they were preparing to leave the park, they heard a woman, later
identified as Betty Williams, calling for help, asking that someone call
911. Williams and a male holding a
12-pack of beer -- whom Dobbs and Riddle identified as Kent -- yelled
profanities at each other. According to
Dobbs, Kent had approached behind Williams and was yelling at her in a
threatening manner. Dobbs told a
sheriff’s deputy that the person he later identified as Kent called Williams a
bitch and told her, “I’m a Norteño.†Riddle testified that Kent said he was “East
Side Piru†and she was “fucking with the wrong people.†Dickerson and his companions approached the
group to calm the situation.
A passerby
who looked like a drug addict approached.
All witnesses and the parties referred to this person as “Tweaker.â€
are you looking at†and faked as if he were going to throw a can of beer
at Tweaker. Tweaker took out a knife and
threatened to take Kent’s life.
Kent made a
noise “kinda†like a yell, and four to five males, mostly White,
came running down the hill to his aid. There was a physical “tussle†between Kent and
Tweaker. By that point, the group
running down the hill was about 20 feet away. Dobbs and Dickerson were on their phones
trying to get through to 911. Dobbs told
the group that they were “on 911†and suggested that everybody go their
separate ways. Dickerson said, “Hey, I
work here. You guys got to go.†Dobbs testified that Kent threw a beer can at
Dickerson which struck Dickerson and knocked him to the ground.
and ran away toward the parking lot.
Dobbs said two of the males chased after Tweaker. Dobbs said three or four males kicked and
stomped Dickerson’s head and body as he lay on the ground with his knees pulled
up in a defensive position. Dobbs initially
identified Kent as one of the people who had kicked Dickerson. He said he last saw Kent when Tweaker ran,
but was not sure whether Kent ran after Tweaker. Dobbs later testified Kent was in the group
around Dickerson when Dickerson was being kicked, but he could not be sure Kent
did any stomping or kicking. Riddle, who
was already backing away, and Williams ran to Dickerson’s nearby truck. Riddle said the males in Kent’s group
surrounded Dickerson and Dobbs. Riddle
identified Kent as one of the people who was kicking Dickerson.
Dobbs was
attacked by three people. During this
assault, he was punched in his jaw and ribs, stabbed in the side, and then hit
on the back of the head as he fled toward Dickerson’s truck.
Dobbs fell
several times while he was attacked.
After the fourth time he fell, all of his assailants stopped their
assault on him and went toward Dickerson.
When Dobbs got to Dickerson’s truck, he looked back. He thought there were five to six people
kicking and stomping Dickerson at that time.
Sometime
during the mêlée and
after Dickerson was hit with a can of beer, Dobbs heard a male voice refer to
the Norteños gang. He also heard a male voice say, “[i]t’s a
Rancho thing†and “You fucked with the wrong people.†He did not know who said those things.
At trial,
Dobbs was unable to identify his attackers.
He had told a sheriff’s deputy and testified at the preliminary hearing
that a shorter, Mexican guy flanked him and stabbed him in the side with a
knife, but he was not sure at trial.
Nelson is Puerto Rican, and the only Hispanic male in the group.
A truck
from the adjacent parking lot, which may have been driven by Tweaker, drove
toward the group and hit Holloran. Dobbs
testified the truck drove “right into the crowd†that was kicking and stomping
Dickerson, and the person that was hit was on the asphalt “[a]bout ten feetâ€
from Dickerson. Dobbs testified that at
the moment of the collision, the person who was hit was in the general area of
Dickerson, but was not kicking or stomping him at that time. Dobbs testified he could not tell whether
that person had kicked or stomped Dickserson.
Defendants collected Holloran and fled.
Dickerson
suffered major trauma, with injuries to his head, including fractured facial
bones, and a single injury to his wrist, which could have been a defensive
wound. He was in a coma for three
months. He testified from a wheelchair
and was still unable to walk. At the
time of trial, he was living in a facility for people with traumatic brain injury.
Dobbs
suffered a stab wound to his right lateral chest, a jaw fracture, and a
concussion. He had surgery, during which
his jaw was wired shut and a metal plate with screws was inserted into his
jaw.
Betty
Williams testified that shortly before the attack, she and her then-boyfriend,
Norman Thompson, encountered a group of people in the park -- two females who
appeared Mexican, several males who appeared White, and one male who looked of
“mixed†race and had “brownish-green†eyes, later identified as Nelson.
One male
was called Joe (Holloran’s first name) by the others. The mixed-race male asked for a cigarette in
a “stronger than polite†voice, and Thompson gave him one. Then the mixed-race male asked Thompson where
he was from. Thompson said, “San
Francisco.†Williams testified that the
mixed-race male looked Thompson up and down, angrily hunched his shoulders up
and forward and said he was from “Piru.â€
After reviewing the statement she had made to sheriff’s deputies,
Williams testified that she thought it may have been the guy who had been
called Joe who made these statements. In
response to the statement about being from Piru, Thompson said, “Well, this is
the Bay.†Williams and Thompson ran away
in different directions, with some of the group following Thompson, and others
following Williams. She thought the men
who chased Thompson were “Joe†and the mixed-race male. As she fled, Williams screamed “somebody call
the police.†Williams testified the park
worker tried to help but ended up on the ground with several men punching and
kicking him. She saw the two males who
had chased Thompson swing at another person who had tried to help her and then
join the other three males in attacking the park worker who was on the ground.
Jeffrey
Brown encountered defendants earlier that day.
He was sitting in the park with friends Debi Ravareau and Angela Freitag
and their children. A group of about
eight males and two females, some White and some Hispanic, walked by, followed
by two intoxicated White males drinking from a vodka bottle, “cussing†loudly
and making vulgar comments. Brown asked
the two to watch their language because “two ladies [were] sitting there.†In response, one of the two put his fists up
and the other punched Brown on the chin.
but kept an eye on the troublemakers.
Brown later saw them as part of a “swarm of guys†in the parking area,
kicking and punching a person who was on the ground.
Ravareau
saw a Hispanic male, Holloran, and another White male run toward the park
worker (Dickerson). Each man, one after
the other, hit Dickerson in the upper body.
She could not tell whether they hit Dickerson in the chest, face or
head. Dickerson dropped to the ground
after the third man punched him.
The three
men, including Holloran, then went to a person Ravareau learned later had been
stabbed (Dobbs). She saw a “scuffleâ€
with the three men moving their arms and hands.
They appeared to assault Dobbs together.
Although her recollection was hazy, she acknowledged having testified at
the preliminary hearing that she saw one of the three hit the stabbing victim
in the side. She turned and noticed
Kent, Strain, and a third White male run toward Dickerson and kick and stomp
him as he lay on the ground. She saw a
vehicle strike Holloran.
Angela
Freitag testified at the preliminary hearing that she thought the person who
got hit by a vehicle (Holloran) was part of the group “stomping†on
Dickerson.
After
Holloran was hit by the vehicle, the other defendants loaded him into Kent’s
red Bronco and brought him to the nearby Holloran home. A neighbor heard something hit the ground as
the Bronco went by, and picked it up.
The object was a wallet. It
contained some of Dickerson’s identification, but there was no money in
it.
At the
Holloran home, Nelson told Holloran’s father, Timothy Holloran, “Dude ran over
Joe.†The father told a sheriff’s deputy
that Nelson said they stopped the driver, and took his driver’s license from
him, which Nelson handed to the father.
Holloran’s
married sister, Sarah Holloran Linggi, testified that Kent and Strain came to
her apartment that night and said her brother had been hit by a truck. Kent was not wearing a shirt and he had
dried blood smeared on his chest. Strain
lived in an apartment that was directly upstairs from Linggi’s
apartment.
Nelson
telephoned Linggi later and asked if her brother was okay. According to Linggi, Nelson said he loved her
brother like family and he “would kill somebody†for him. Nelson said he hit somebody in the head with
a bat at the park that day and stabbed someone.
Nelson did not say whether the person he stabbed and the person he hit with the
bat were the same person; nor did he say why he stabbed and hit somebody with a
bat. She also said he did not say how
many times he stabbed someone, but said he hit the person with the bat four or
five times in the head. She told him to
“shut up†because she did not want him to get in trouble. A few weeks later, Linggi reported Nelson’s
admissions to the sheriff’s investigators because she wanted to get it off her
chest and “[t]here were boys that were gonna go to prison for something
they didn’t do.†On cross-examination by
counsel for Holloran, Linggi testified that Nelson said he stabbed the person
because that person was on top of Holloran.
Strain’s
wife Kimberly (who married him after this incident) testified that Strain went
out that day with Holloran and Kent in Kent’s red and white Bronco. They came back to the apartment in the
afternoon and picked up a friend, Jason “Bubba†Anderson. Strain, Kent, and Anderson returned as it was
getting dark outside. They said Holloran
got hit by a car. Kent had no shirt and
was not wearing shoes when he arrived.
Strain had “kind of a lot of blood†on his pants. Kent and Anderson said they “had that nigga
choking on his own blood†and thought they killed him.
A
helicopter appeared overhead and sheriff’s deputies soon arrived at the
apartment. Kent and Anderson went
inside. Strain started to go inside, but
then turned around and walked toward the deputies. After going inside, Anderson, who was staying
at the apartment, supplied Kent with some clothes. They both cleaned up and changed
clothes. Kent made phone calls in an
attempt to get a ride away from there.
Strain’s wife allowed the deputies to enter the apartment, where they
arrested Kent and Anderson. Both were in
her bedroom where the children were sleeping.
The deputy
who entered testified that he announced “Sheriff’s Department†three to five
times. He found Kent and Anderson in the
bedroom, pretending to be asleep.
Kent, who
had been arrested and was seated in the patrol car, yelled repeatedly “[s]top
snitching†to Anderson, who was talking to the sheriff’s deputies.
in the patrol car. Among the things he
said while in the car was “I didn’t stick nobody.†No deputies had said anything to him about
anybody being stabbed.
A deputy
sheriff took a statement from Holloran at the hospital.
“tailbone.†Nevertheless, he was
coherent and able to answer questions.
Holloran said he went to Hagan Park alone, met some acquaintances, heard
a commotion, which did not involve his acquaintances, was intentionally hit as
he left the park by someone driving a truck, and got a ride home from someone
he knew as “Dom.†Holloran said he was
“an associate of the Norteñosâ€
gang and told the deputy he had had a confrontation with “some Sureño gang members†two weeks
earlier.
At the
sheriff’s station, deputies placed Holloran, who had been released from
the hospital, Kent and Strain in an interview room and secretly videotaped
their conversation. The video recording
was played for the Holloran/Kent/Strain jury but not for Nelson’s jury.
At various
points, the following was said:
Kent said,
“Bubba[ Anderson’s] snitchin.†Strain
said, “Telling them everything,†and Kent said, “Singing like a canary.†Later, Kent said the people in the park
snitched.
At another
point, Holloran and Strain said they thought Nelson stabbed a person. Later, Strain said, “I think Robby [Nelson]
stabbed him,†and Holloran said, “Yeah, I’m pretty sure, but that’s Rob for
you.†At another point, Strain said, “We
had it taken care of. Why did he have to
stab him?†Holloran said, “That’s how
Rob is. I mean, it would not surprise me
at all.â€
At one
point Strain reenacted stomping on somebody.
At another point, Kent looked at Strain’s shoes and said, “Your K-Swiss
are so bloody.†Strain replied, “If
they were white, nigga, they’d be red†and “I put bodies on these.â€
Kent said
he should have run when the police came to Strain’s house. Holloran said his dad should never have
called 911.
The three discussed jumping
bail. Kent said he intended to call
Aladdin and Strain responded, “That bail bondsman won’t never see me
again.†Holloran also said Aladdin would
never see him again. Holloran said he
intended to flee to Canada and was never coming back. Kent said he would go to Minnesota and live
with his uncle.
As we
discuss post, Kent and Strain
testified at trial and tried to explain away the conversation. We will also discuss Holloran’s admission
that he kicked the victim before he was struck by the vehicle.
Holloran
and Nelson did not testify at trial, but Kent and Strain did.
Kent
testified he did nothing wrong. He only
threw a beer at Tweaker in self-defense.
He claimed that the witnesses who saw him kick or stomp Dickerson were
inaccurate. He denied ever touching
Dickerson. He claimed the only time he
was close to Dickerson was when he picked up Holloran. Kent also denied throwing beers at
Dickerson.
Kent testified
that he, Holloran, Strain, Nelson, and Anderson drank alcohol that day. Kent was drunk, but his intoxication did not
make him madder than he would have been if he had been sober; it made him less
scared. Strain, who was “sloppy†drunk,
punched Brown. Kent saw Strain in an
angry verbal exchange with Thompson and Williams. Strain, Holloran, and Nelson chased after
Thompson. Kent headed for the parking
lot, where he came upon Williams pointing at him and yelling for help. Angry at being falsely accused, Kent
yelled back. Tweaker approached in a
threatening manner. Kent was
scared. With a beer can in his hand,
Kent hit Tweaker. Dobbs, who was 20
to 25 feet away from Kent, made a movement that Kent interpreted as
pulling a knife. Tweaker ran away, and
Kent ran after him. When asked at trial
why he chased someone he supposedly feared, Kent said he did not know. When pressed, Kent said when Tweaker ran, “it
kind of made [him] not scared.†Kent
claimed he did not hear Tweaker say, “I’ll take your life.†He also said he never saw a knife in
Tweaker’s hands. Kent saw Tweaker jump
into a vehicle. Kent ran to his red
Bronco. From his position in the parking
lot, Kent saw Strain grappling with Dickerson.
They were both on their feet and each had their arms around the
other’s upper body. Kent then saw
Holloran step into the road, heard the engine “rev†in the truck in which
he had last seen Tweaker, and then saw the truck drive directly toward
Holloran and strike him. Holloran landed
where the grass met the pavement, about six to eight feet from Dickerson who,
by this time, lay unconscious on the grass. Kent helped Holloran to the Bronco. Nelson straddled Dickerson and went through
his pockets. Nelson kicked Dickerson
once in the head and then joined his friends in the Bronco. Kent agreed that the male described by
witnesses as mixed race with hazel eyes was Nelson.
Kent
testified that he had on red basketball shorts because he was given them by the
school and red is one of the school’s colors.
Contrary to Williams’s testimony, Kent denied ever saying he was an East
Side Piru. He testified he yelled to
Anderson not to talk to the police only because the police had nothing on them,
and they did not do anything.
Regarding
the recorded conversation at the sheriff’s station, Kent testified he said
Anderson was “singing like a canary†because, even though Kent himself was
innocent, he “assumed†his friends were not.
During the recorded conversation, Kent observed Strain’s shoes were
bloody. Kent testified that Strain said
he “put bodies on these.†Kent also
testified that Holloran and Strain said they kicked somebody and that what they
said was on the video recording of their conversation:
“[PROSECUTOR]: And they [Holloran and Strain] never told you
they kicked anybody?
“[KENT]: Yes, they did.
“[PROSECUTOR]: Who told you they kicked?
“[KENT]: It was on the interrogation video.
“[PROSECUTOR]: Right.
[¶] Mr. Strain reenacts the kicking, right?
“[KENT]: Yes.
“[PROSECUTOR]: And Mr. Holloran says something, ‘I was
kicking him, bang, bang, bang, and then I got hit by the car. Pow,’ right?
“[KENT]: Yes.â€
On
cross-examination by Holloran’s counsel, Kent said he did not have an
independent recollection of Holloran’s words but heard them on the recording
and believed the transcript matched what he heard on the recording.
Strain
testified he was drunk that day. He
punched Brown but did not kick or injure Dickerson or Dobbs and did not chase
Williams. Holloran and Anderson got into
an argument with Williams and Thompson.
Thompson became aggressive, saying he would “fuck anybody up that wants
it.†Strain took the comment from
Thompson (who was five feet two inches tall) as a threat, and he and
Holloran walked toward Thompson and chased him when he ran. Strain testified he did not know why he ran
after Thompson. Holloran fell
behind and disappeared. Strain gave up
the chase and walked toward the parking area.
Anderson ran up to him and told him there was a big fight in the parking
lot and someone was hurt. Strain then
ran toward the parking lot and saw Dickerson on the ground. A truck brushed by Strain, causing him to
stumble and fall over the bloodied Dickerson, but he testified he had no
idea how he got blood on his shoes.
Strain claimed he was being
sarcastic during the conversation at the sheriff’s station when he told his
friends he had “put bodies†on his shoes.
He said he could not explain why he said “[w]e had it taken care of,â€
although he was referring to the people with whom he had been. As for the stomping reenactment, Strain
claimed he was mimicking what Anderson had done, even though he never said
anything about Anderson at the time he demonstrated the stomping movements.
Strain agreed that the male
described by witnesses as mixed-race with hazel eyes was Nelson.
The jury found Strain guilty on
counts two and three -- aggravated mayhem and assault with force likely to
produce GBI on Dickerson, but not guilty on the other counts or as to attempted
voluntary manslaughter, a lesser included offense to attempted murder charged
in count one. The jury found true the
allegations that Strain personally inflicted GBI and caused paralysis or coma
due to brain injury. The jury found the
gang allegation on counts two and three not true.
The trial court sentenced Strain to
an indeterminate term of seven years to life on count two and imposed but
stayed pursuant to section 654 a determinate term of eight years for count
three and its enhancement.
The jury found Holloran guilty on
counts two and three -- aggravated mayhem and assault by means of force likely
to produce GBI on Dickerson. The jury
also found him guilty of counts four and five, assault with a deadly weapon and
battery with serious bodily injury on Dobbs.
The jury found true the allegations that Holloran personally inflicted
GBI and caused paralysis or coma due to brain injury as to Dickerson, and
personally inflicted GBI as to Dobbs.
The gang allegation was found not true.
And the jury found Holloran not guilty of count one, attempted murder
and the lesser included offense of attempted voluntary manslaughter.
The trial
court, after denying Holloran’s motion for new trial for insufficiency of
evidence, sentenced Holloran to an indeterminate term of seven years to life on
count two, aggravated mayhem on Dickerson, plus a consecutive determinate term
of six years on count four, assault with a deadly weapon on Dobbs and the GBI
enhancement. Pursuant to
section 654, the court imposed but stayed three years for the assault by
means of force likely to produce GBI on Dickerson charged in count three and
three years for battery with serious bodily injury on Dobbs charged in count
five.
The jury
found Kent guilty of simple mayhem as a lesser included offense to aggravated
mayhem on Dickerson charged in count two and assault by means of force likely
to produce GBI on Dickerson charged in count three. The jury found the GBI allegations concerning
both victims and the gang allegation not true as to Kent. The jury also found Kent not guilty on count
one, attempted murder, as well as the lesser included offense of attempted
voluntary manslaughter, and count three, aggravated mayhem on Dickerson, as
well as counts four and five, assault with a deadly weapon, the lesser included
offense of misdemeanor assault, and battery with serious bodily injury on
Dobbs.
The trial
court sentenced Kent to a determinate upper term of eight years for mayhem on
Dickerson. Pursuant to section 654,
the court imposed but stayed three years for assault by means of force likely
to produce GBI on Dickerson.
Nelson’s
separate jury found him guilty on counts two and three, aggravated mayhem and
assault by means of force likely to produce GBI as to Dickerson, and counts
four and five, assault with a deadly weapon and battery with serious bodily
injury as to Dobbs. Nelson’s jury found
true the gang allegation and the allegations that Nelson personally inflicted
GBI and caused paralysis or coma due to brain injury as to Dickerson and GBI as
to Dobbs.
The trial court denied Nelson’s
motion for new trial and sentenced him to an indeterminate term of
15 years to life on count two, aggravated mayhem, and the gang
enhancement, and a consecutive determinate term of 16 years, consisting of
the midterm of three years on count four, assault with a deadly weapon on
Dobbs, plus three years for the GBI enhancement as to Dobbs, plus 10 years
for the gang enhancement. The court
imposed but stayed pursuant to section 654 three years on count three,
assault by means of force likely to produce GBI and five years for the GBI
enhancement as to Dickerson, as well as three years on count five, battery with
serious bodily injury on Dobbs, and a three-year gang enhancement.
The Appeals of Strain, Holloran, and Kent
We refer to
the arguments by the defendant who bears the laboring oar in the appellate
briefs, but we have in mind that each defendant joins in any helpful
contentions of the others.
Holloran’s Motion to Set Aside Charges
Holloran
contends his convictions must be reversed because the trial court improperly
denied a section 995
name="_ftnref10" title="">[10]
motion to set aside charges and allowed him to be charged with attempted
murder and personal use of a knife, after a magistrate supposedly concluded he
did neither of these things, yet held him to answer. Although the jury found Holloran not guilty
of attempted murder and no personal use of a knife allegation was advanced by
the prosecution, he argues he was prejudiced by the anxiety and embarrassment
of defending himself against those accusations and, without those charges, he
may have obtained a more favorable outcome on the other charges. We find no error.
Background
At the
conclusion of the preliminary hearing, the magistrate said, “we’ve got some
differing versions on how many people were involved in the beatings and so
forth, different numbers at different times.
But I think overall given when you take the record as a whole, it’s clear
all these defendants were there, I think they all took part in the
beating. [¶] [T]here’s enough for
at least a holding order, to find that they all took part in the stomping of
Mr. Dickerson.â€
When asked
to clarify that there was sufficient evidence of express malice for the
attempted murder charge, the magistrate initially said, “No, I don’t think
so. No.
I think there’s enough for implied malice, and that’s what I’m
finding.†The defense noted implied
malice would not support the attempted murder charge.
Dickerson’s head as he lay motionless on the ground showed express malice. The magistrate said,
“. . . Upon reconsidering, . . . I’m going to make
a finding that there is enough for purposes of the preliminary hearing to
hold them on an express malice finding.
So I’m going to reconsider and amend my finding of fact regarding that
particular point.â€
As to the
personal use of a knife, the magistrate wrote on the complaint, “Nelson onlyâ€
and placed parentheses around the words, “with a deadly weapon, to wit, a
knife, and . . . .†As to
that, the magistrate said, “With regard to Count Four, that was the personal
use of a knife. Now I’m holding them all
to answer on that 245 with GBI. I’m
holding them all to answer to that. But
the personal use of a knife enhancement
should only apply then to Mr. Nelson.
That’s the only one.†(Italics
added.)
Strain
filed the section 995 motion to dismiss the case, claiming insufficient
evidence had been presented at the preliminary hearing. Holloran joined in the motion. The trial court -- after reviewing the
1653-page preliminary hearing transcript -- denied the motion, finding the
charges were supported by the evidence adduced at the preliminary hearing.
Analysis
Our
standard of review of section 995 rulings is to determine whether
substantial evidence supports the decision of the magistrate holding the
defendant to answer the charges. (
184 Cal.App.4th 305, 310-311.) A
defendant must show not only that denial of the motion was erroneous, but also
prejudicial. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 140 (
Holloran
cites the rule that an information cannot include charges for which a
magistrate found insufficient evidence.
(People v. Slaughter
(1984) 35 Cal.3d 629, 652, fn. 18.)
Holloran claims (1) the magistrate found insufficient evidence of
the express malice required for attempted murder, at least as to defendants who
did not personally stomp on Dickerson, and (2) Holloran did not stomp Dickerson
because Ravareau testified Holloran got hit by the truck while others were
kicking Dickerson.
name="_ftnref12" title="">[12] We will assume this theory is preserved for
appeal despite Holloran’s admission that no one presented it to the trial
court.
Contrary to
Holloran’s assertion, the magistrate did not find that personal stomping was
required for express malice or that Holloran did not stomp Dickerson. Rather, the magistrate’s initial finding of
implied malice was based on the “record as a whole†showing probable cause
that “all [defendants] took part in the stomping of Mr. Dickerson.†Upon reconsideration, the magistrate found
these same facts supported express malice.
Holloran fails to show grounds for reversal in the magistrate’s
reconsideration of the matter.
Holloran
relies on Letner & Tobin,
contending that our high court implied in that case that a defendant is
prejudiced and entitled to relief if (1) a magistrate makes a factual
finding that should preclude trial on a given count, (2) the prosecutor
nevertheless files the count, and (3) the jury finds the defendant not
guilty of that count. We discern no such
implication in that case. Our high court
simply held that a defendant is required
to show prejudice when a prosecutor files a charge for which the defendant
is not held to answer, a section 995 motion is denied, and defendant is
convicted after trial. (
p. 140.) Even so, we are not
presented with the same scenario here.
Unlike in Letner & Tobin,
answer on the charge they sought to have dismissed, Holloran was held to answer
on the attempted murder charge.
Holloran
also contends the magistrate did not find that he personally used a knife and
adds that he was improperly held to answer on count four, the assault on Dobbs
with a deadly weapon. He bases his
contention on the magistrate’s notation, “Nelson only†on the complaint and
parentheses around the words, “with a deadly weapon, to wit, a knife, and
. . . .â€
The amended
information charged all defendants in count four with a section 245
“assault upon JEFFREY DOBBS, with a deadly weapon, to wit, a knife, and by
means of force likely to produce great bodily injury.†As to this count, the pleading also contained
the following notice: “. . .
This offense is a serious felony within the meaning of . . .
section 1192.7(c)(23)[
title="">[13]] in that the defendants personally used a
dangerous and deadly weapon†and further alleged that each defendant personally
inflicted GBI.
The charges
and allegations in the pleading were not inconsistent with the magistrate’s
finding that Holloran did not personally use the knife. Count four alleged assault with a deadly
weapon and by means of force likely to produce GBI on Dobbs. As noted, the magistrate expressly held
defendants to answer on the “245 with GBI.â€
There was sufficient evidence at the preliminary hearing to establish
Holloran’s liability as an aider and abettor under both theories. At trial, the prosecutor proceeded only on
the deadly weapon theory, and he argued that Holloran was liable as an aider
and abettor to Nelson, who personally used the knife. The jury in the verdict form found Holloran
guilty of assault with a deadly weapon.
And the jury found Holloran personally inflicted GBI under
section 12022.7, subdivision (a) for his involvement in physically
assaulting Dobbs and Dobbs’s resulting broken jaw, which was inflicted during
the commission of the assault with a deadly weapon.
We conclude
that the magistrate’s finding concerning personal use of the knife as reflected
by the written note on the complaint related only to the section 1192.7
language. (See fn. 13,
The jury made no finding of personal knife use by Holloran. It was not asked to make a finding under
section 1192.7 or a finding under the enhancement provided in
section 12022, subdivision (b)(1) for personal use of a knife.
There is no
basis for reversal regarding the trial court’s denial of the section 995
motion.
Nelson’s Statement to Holloran’s Sister
Holloran
contends that the trial court erred when it refused to redact his name before
allowing the prosecutor to adduce testimony from Holloran’s sister, Sarah
Linggi, that Nelson told her he stabbed and beat someone at the park that day
because that person was on top of Holloran.
Holloran argues the statement that “someone was on top of Holloran†was
not sufficiently reliable for admission under Evidence Code section 1230,
the declaration against interest exception to the hearsay rule. He further contends that the
name="_ftnref16" title="">[16]
rule required redaction of his name.
We conclude
that admission of Nelson’s entire statement did not violate
whether the statement was admissible as a declaration against interest because
it was actually Holloran’s attorney, not the prosecutor, who elicited the
portion of the statement about which defendant complains. On cross-examination, counsel for Holloran
elicited from Linggi the testimony that Nelson said he attacked the person in the
park because that person was on top of Holloran. As for admission of the rest of the
statement, any error was harmless.
Background
The
prosecutor made an offer of proof in limine that Linggi would say Nelson phoned
her to ask how Holloran was doing, and said he (Nelson) “stabbed [a] guy†at
the park four times because the guy was on top of Holloran, and he (Nelson)
grabbed a bat from Kent’s truck and hit the guy in the head four times. In a voice mail message, which Linggi did not
save, Nelson said he loved Holloran and would kill for “his brother.â€
Nelson
sought exclusion, implying the statement lacked any indicia of reliability,
because the sister may have fabricated the statements to help Holloran. Holloran asked the trial court to redact his
name so the jury would hear only that Nelson said he stabbed the guy for being
on top of “someone.†The prosecutor
objected to the proposed redaction, arguing (1) Nelson’s relationship with
Holloran explained why Nelson would be making these statements to Holloran’s
sister, and (2) Aranda/
because Nelson took the bulk of responsibility upon himself and did not try to
shift blame to Holloran.
The trial
court ruled Nelson’s statement was admissible in its entirety against the other
defendants as a declaration against interest.
The court reasoned that Nelson’s statement to Linggi implicated Holloran
by “plac[ing] defendant Holloran as involved in the fight,†but Nelson’s statement
carried a particularized guarantee of trustworthiness because it was against
his own penal interest and did not try to shift blame to his codefendants. The court also ruled that Nelson’s comments
to Linggi were not testimonial and therefore presented no confrontation clause
problem under Crawford v. Washington
(2004) 541 U.S. 36 [158 L.Ed.2d 177].
Linggi did
not testify as expected at trial. She
testified on direct examination by the prosecutor that Nelson did not say why
he stabbed and hit somebody with a bat.
She also said he did not say how many times he stabbed someone. She did say Nelson said he hit the person’s
head with the bat four or five times.
As for
Nelson’s assertion that he stabbed the person because that person was on top of
Holloran, that testimony was not elicited by the prosecutor; it was
deliberately elicited by Holloran’s trial counsel on cross-examination. Holloran fails to point out this important
procedural nuance in his appellate briefing, and the People have overlooked it.
Analysis
a. Aranda/
We look first to Holloran’s
constitutional claim because the harmless error analysis would require
application of the Chapman
reasonable doubt standard if admitting the statement violated the Confrontation
Clause.
(People v. Garcia
(2008) 168 Cal.App.4th 261, 281 (Garcia).) Holloran claims admission of the statement
violated his right to confront the witnesses as set forth in
is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply
to nontestimonial statements.
name="_ftnref19" title="">[19] (Arceo,
supra, 195 Cal.App.4th at
p. 572.)
title="">[20] Defendant concedes the statement Nelson made
to Linggi was nontestimonial, and we agree.
Consequently, Bruton has no
application here.
name="_ftnref21" title="">[21]
Declaration against interest
Evidence Code section 1230
creates a hearsay exception for statements against penal interest. Evidence Code section 1230
provides: “Evidence of a statement by a
declarant having sufficient knowledge of the subject is not made inadmissible
by the hearsay rule if the declarant is unavailable as a witness and the
statement, when made, . . . so far subjected him to the risk of
. . . criminal liability . . . that a reasonable man in his
position would not have made the statement unless he believed it to be
true.†Thus, to establish admissibility
under this exception, the proponent has the burden of showing: (1) the
declarant is unavailable, (2) the declaration was against the declarant’s
penal interest when made, and (3) the declaration was sufficiently
reliable to warrant admission despite its hearsay character. (People v.
Vasquez (2012) 205 Cal.App.4th 609, 619-620 (Vasquez).) “We review a
trial court’s decision about whether a statement is admissible as a declaration
against penal interests for abuse of discretion.†(Vasquez,
supra, 205 Cal.App.4th at
p. 620.)
Holloran
argues Nelson’s statement was not against Nelson’s interests, because it was
designed to shift blame to the person on top of Holloran and make Nelson a hero
in Linggi’s eyes. Holloran further
contends that Nelson’s statement should have been excluded as insufficiently
reliable, because no eyewitness testified about anyone using a baseball bat,
and Dobbs was stabbed only once, not four times.
“Only
statements that are specifically disserving to the hearsay declarant’s penal
interests are admissible as statements against penal interests.†(Vasquez,
supra, 205 Cal.App.4th at
p. 621.) A statement is disserving
of penal interest if it subjects the hearsay declarant to the risk of criminal
liability to such an extent that a reasonable person in his position would not
have made the statement unless he believed it to be true. (People v.
Cervantes (2004) 118 Cal.App.4th 162, 175.) We observe that the Cervantes court held the statement made in that case was
specifically disserving, in part, because nothing about the statement suggested
the declarant acted in self-defense. (
at p. 175.) Here, arguably Nelson’s
statement amounts to a claim of defense of others, but that can only be said
when the portion of the purported statement elicited by counsel for Holloran is
factored into the analysis. As we have noted,
on direct examination by the prosecutor, Linggi testified that Nelson did not
say why he had stabbed anyone. And he
said he hit someone on the head multiple times with a bat. These statements, as related by Linggi during
the direct examination of the prosecutor, were disserving of Nelson.
On the
other hand, the trustworthiness of Nelson’s statements was suspect. As Holloran notes, Dobbs was stabbed only
once, not four times. Moreover, neither
Dobbs nor any other witness said Dobbs or anybody else was struck with a
bat. And nobody said they saw anybody on
top of Holloran. Arguably, the
exaggeration contained in Nelson’s statement as conveyed by Linggi makes it
untrustworthy for purposes of the declaration against interest exception. (See
51 Cal.4th 894, 933 [unbelievable statements made declarant’s statements
untrustworthy].)
c. Invited error/harmless error
Even assuming the entire statement
was not admissible as a declaration against interest, which could be considered
as evidence against Holloran, Strain, and Kent, we conclude any error was both
invited and harmless.
The standard in
46 Cal.2d 818, 836–837 is applicable to state law error in the admission
of hearsay. (People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Under Watson,
the error is harmless unless it is reasonably probable that a result more
favorable to the defendant would have been reached had the evidence not been
introduced. (Watson, supra,
46 Cal.2d at p. 837.) We find
that to be the case here.
Here, Holloran himself introduced
the portion of the statement that is the focus of his argument on appeal. Holloran was not mentioned as being involved
during the prosecution’s direct examination of Linggi; thus, Linggi effectively
redacted the statement by her purported lapse of memory. Any error related to the admission of
Nelson’s assertion that he stabbed someone because that person was on top of
Holloran was invited by Holloran when his trial counsel elicited that testimony
for apparent tactical reasons. (
28 Cal.4th 1083, 1139 [doctrine of invited error barred defendant from
challenging on appeal the trial court’s admission of evidence, where it was
defense counsel who first elicited the evidence at trial]; People v. Williams (2009) 170 Cal.App.4th 587, 620
[same].)
Morever, any error in introducing
the entirety of the statement was harmless.
First, we note that no part of Nelson’s statement accused Holloran of
criminal conduct. Second, as we have noted, Nelson’s assertions that
he stabbed someone multiple times, hit someone with a bat multiple times and
that the person he attacked was on top of Holloran were at odds with the
testimony of all of the other witnesses, including Dobbs -- the person who was
stabbed. As a result, the statement
lacked credibility beyond the assertion that Nelson stabbed someone. Third, there was other evidence that
established Holloran’s guilt, which we discuss post.
Defendant Holloran complains that
the prosecutor used Nelson’s assertion in closing argument to argue “that
Dickerson was on top of Holloran to show that Holloran was involved in the
assault and not hit by a truck before Dickerson was kicked.†But after the portion of Nelson’s statement
about which Holloran now complains was elicited by counsel for Holloran, it
became fair game for argument by either side.
Moreover, in making this argument, defendant would apparently have us
ignore the context of the prosecutor’s remarks.
He fails to mention that the prosecutor’s comments came in the
prosecutor’s rebuttal argument. The
comments were made in response to argument by counsel for Holloran regarding
what Holloran actually said during the conversation with Strain and Kent at the
sheriff’s station.
name="_ftnref22" title="">[22] The prosecutor actually made no mention of
any portion of Nelson’s statement to Linggi in his opening closing argument to
the Strain/Holloran/Kent jury.
name="_ftnref23" title="">[23]
We conclude that it is not
reasonably probable that Holloran would have received a more favorable result
if Nelson’s statement had not been admitted in their joint trial.
Holloran’s Miranda Violation
Contention
When he was
interviewed at the hospital, Holloran claimed he went to the park alone, played
basketball with people he did not know well, heard an altercation, and decided
to walk home. He got hit by a truck,
apparently intentionally, and got a ride home from someone he knew as
“Dom.†He said he was not involved in an
altercation at the park. Holloran said
he had “associated with†the Norteño
street gang in the past, was involved in a fight with some Sureños a couple of weeks
earlier, and perhaps one of them was responsible.
Holloran
contends the trial court erred in denying his motion to exclude this statement
as he was not informed of his rights under Miranda v.
Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (
1. Background
At the hearing on the suppression
motion, Deputy Christopher Baker testified he went to the hospital to check on
the victims. Because he thought Holloran
was just a victim, he took Holloran’s statement without a Miranda advisement. Holloran
was in a trauma emergency room at the hospital, unrestrained. No other law enforcement officers were in the
room. When asked whether he “started
questioning†Holloran without a Miranda
warning, Deputy Baker said, “Not questioning him. I’m speaking to him in regards to what took
place.†The interview began at
8:47 p.m. and lasted no more than 15 minutes. Deputy Baker remained at the hospital in the
vicinity of the victims waiting for an update on Holloran and Dickerson. At 11:30 p.m., a supervisor contacted
Deputy Baker and told him Holloran was a suspect and to arrest him.
Another
deputy’s report indicated Holloran was identified as a “possible suspect†at
8:16 p.m. That deputy had been
assigned to maintain the crime scene at the park and he had not been to
Holloran’s home or the hospital that night.
Nor did he communicate with Deputy Baker, who was dispatched to the
hospital.
Holloran’s
father testified he went to the hospital a few minutes after Holloran had been
transported. When he arrived,
| Description | A modification decision. |
| Rating |
