PEOPLE v. CLIFTON TERRELL
Filed 8/8/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
| THE PEOPLE, Plaintiff and Respondent, v. CLIFTON TERRELL, JR., Defendant and Appellant. | A110124 (San Francisco County Super. Ct. No. 189576-01) |
A jury convicted defendant Clifton Terrell, Jr., of murder and robbery charges arising from a fatal shooting in the course of an attempted street robbery. Defendant contends that his conviction resulted from the improper admission of a secretly-recorded telephonic confession he made to family members immediately after confessing to police. Although the police confession was later found to be involuntary and excluded from evidence, we find no error in the admission of defendant's ensuing admissions to family members, and affirm the judgment.
I. BACKGROUND
Defendant was charged by information with the murder of Hunter McPherson (Pen. Code,[1] § 187; count 1), robbery of Alexa Savelle (§ 212.5, subd. (c); count 2), attempted robbery of Hunter McPherson (§§ 664/212.5, subd. (c); count 3), robbery of Wenyun He (§ 212.5, subd. (c); count 4), attempted robbery of Zhao Li (§§ 664/212.5, subd. (c); count 5), robbery of Jeremy Molinaro (§ 212.5, subd. (c); count 6), and robbery of Davida Froehlich (§ 212.5, subd. (c); count 7). The information further alleged: as to each count that defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), as to counts 1 and 3 that defendant personally and intentionally discharged a firearm, which proximately caused the death of Hunter McPherson (§ 12022.53, subd. (d)), and as to counts 2, 4, 5, 6, and 7 that defendant personally used a firearm (§ 12022.53, subd. (b)). As to count 1, the information alleged as a special circumstance that the murder was committed during the commission of an attempted robbery (§ 190.2, subd. (a)(17)). On September 21, 2004, the trial court granted defendant's section 995 motion to set aside the gang allegations. Defendant pleaded not guilty and denied the allegations.
Codefendant Dwayne Reed was charged with the same counts and allegations, with the exception of the section 12022.53 allegations pertaining to counts 1, 2, and 3. Reed was also charged with being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 8), and with prior strike convictions (§§ 667, subds. (d), (e) & 1170.12, subds. (b), (c)), a prior serious felony conviction (§ 667, subd. (a)), and with having served a prior prison term within the last five years (§ 667.5, subd. (b)). On October 1, 2004, Reed entered into a plea agreement under which he pleaded guilty to being an accessory after a murder (§ 32), grand theft from Wenyun He (§ 487, subd. (c)), and the robbery of Davida Froehlich (§ 212.5, subd. (c)). Reed also admitted a prior conviction allegation. All other charges were dismissed as part of the agreement, which was conditioned on Reed providing truthful testimony in the case against defendant.
Defendant's jury trial commenced on January 20, 2005.
A. Prosecution Case
1. Li/He Robbery
A few minutes after 1:00 a.m. on November 17, 2001, Zhao Hui Li was walking her friend, Wenyun He, to his car, which was parked near Li's residence on Bay Street in San Francisco. She left her purse in the apartment and took her key. Before they reached the car, two men stopped them. One of them said to Li, â€
