P. v. Fletcher

Filed 5/1/07 P. v. Fletcher CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

----

A jury convicted defendant Anthony Fletcher of first degree murder (Pen. Code, 187, 189) and sustained an allegation he personally used a firearm in the murder (Pen. Code, 12022.53, subd. (c)). The trial court sentenced defendant to 25 years to life for the murder and a consecutive 20-year term for the firearm enhancement.

On appeal, defendant contends the trial court abused its discretion under Evidence Code section 352 by admitting recordings of calls made by defendant from jail. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was shot on September 2, 2004, at the corner of 36th Street and Second Avenue in Oak Park. Defendant initially did not want to help the police, but eventually identified the shooter as Dub. As a result, Dub, also known as Christopher Williams, was later convicted of violating Penal Code section 246.3 (grossly negligent discharge of firearm).

At 11:19 p.m. on September 14, 2004, Sacramento Police Detective Michael Poroli took a shots fired call. John Huston was killed by five gunshot wounds to the chest and one to the back of the neck. Hustons body was discovered behind the auditorium at American Legion High School in Oak Park. Huston, who moved from Oakland approximately 15 years earlier and sold drugs in Oak Park, was an acquaintance of Williams.

Defendant also sold drugs in Oak Park. His girlfriend was Henrietta Reno. The mother of his baby is Deana Randle. Latosha Brooks (Tosha), was a friend of defendant and lived with Belyn Johnson (Billie) in a rental house across from American Legion High School. Beverly Tukes managed the rental house and lived next door to Billie and Tosha.

Billie testified that on September 14, 2004, defendant and Henrietta came to her house to deliver a pit bull puppy. The three smoked marijuana for a couple of hours before defendant and Henrietta left. She denied telling an investigator defendant was over at her place around 8:00 p.m. the night of the murder. Billie also denied telling anyone she saw defendant running from American Legion High School and get on a bicycle on the night of the murder.

Carolyn Lark gave defendant and Henrietta a ride home the night of the murder. The couple started fighting and defendant left the van, telling Lark to take Henrietta home.

Beverly Tukes heard multiple gunshots from the direction of American Legion High School on the night of the murder. She went to her front porch and saw two people running. One of the two, a Black male, ran towards her. The man told Tukes he was running because of the shooting. He ran to Tosha and Billies residence and tried to enter their house. Failing at this, the man left through their backyard.

Tandra Davis, Hustons sister, went to American Legion High School with other members of her family the morning after her brothers murder. She met Billie there, who told Tandra defendant shot Huston and then rode away on a bicycle. Billie told her defendant shot Huston because he provided the gun which Christopher Williams used to shoot defendant.

Winston Richards married Billie between the murder and the trial. He testified Della Fort told him she saw defendant flee on a bicycle from the scene of the shooting. Fort, who lived across the street from American Legion High School, testified. She disputed Richardss testimony, denying seeing defendant flee the area on the night of the shooting.

On December 6, 2004, Henrietta Reno telephoned the homicide detective assigned to the case, Sacramento Police Detective Michael Poroli, and told him defendant killed Huston. As defendant left Larks van, he said, in reference to the looming murder, that he was going to do it. He said, Im going to make everybody cry. Reno saw defendant and his brother with Huston after he got out of Larks van. Defendant put a gun to Hustons side and said to Huston, How come all of a sudden I got shot and dont nobody know nothing. He then made Huston take off his shoes and sit against a wall. Defendants brother was supposed to shoot Huston but could not. Instead, defendant took the gun from his brother and shot Huston.

Reno then went to the police station and told Detective Poroli that Huston had provided the gun Christopher Williams used to shoot defendant. She also said she did not actually see defendant shoot Huston. Defendant had threatened to do something to her if she told anyone about the murder.

Reno went to the police station on December 16, 2004, and told another detective that she lied about defendants culpability. Reno told the second detective the word on the street was she was a snitch, which made her afraid.

Reno married defendant on February 14, 2005, while he was in custody awaiting trial. While visiting defendant before the trial, she was caught handing him a note stating: Just read my statement. Tell me what you think, and then write what I should say. At trial, Reno claimed her prior statements incriminating defendant were all lies motivated by jealousy over defendants relationship with Randle.

Deana Randle was afraid to testify due to threats on her life, but decided to testify after the district attorneys office agreed to talk with Fresno County about her probation violation. She said defendant thought he had been shot over a turf dispute. She said defendant admitted shooting and killing someone at American Legion High School. When Randle referred to a news story about Hustons death, defendant told her he killed the person in the news. Defendant also told her he needed a place to stay because he had killed someone and Reno talked too much. He was only marrying Reno so she would shut up.

Over his objection,^[1]the trial court admitted recordings of phone calls made by defendant while in custody awaiting trial.^[2] Defendant is heard on the tapes admitting he wanted to marry Reno to keep her from talking even though he could not stand her. He told his friend Antoine they had to get in Renos face, and he told his brother that someone would have to snatch her up. Defendant told Antoine that Reno, who was the key, must stay within the regime and stay out of the way. Defendant said he had to let Reno know that no one was badder than [him] and he had to pump the fear of God or the fear of Anthony into her. The recorded statements contained numerous swear words, racial epithets referencing Black people, and derogatory references to women.^[3]

DISCUSSION

The prosecution presented numerous witnesses who testified to defendants guilt. Taken together, the interlocking testimony of the prosecutions witnesses presented overwhelming evidence of defendants guilt. Trial counsel did the best he could, attacking the credibility of the prosecution witnesses.

In the aftermath of his failure to discredit those witnesses, defendants sole claim on appeal is the trial court abused its discretion in admitting the recordings of the phone calls from jail over his Evidence Code section 352 objection. Examining this claim in the context of the overwhelming evidence of defendants guilt and the nature of his defense, we reject the contention.

Evidence Code section 352 provides the trial court with discretion to exclude evidence if the probability that its admission will create substantial danger of undue prejudice substantially outweighs its probative value. An appellate court reviews the trial courts ruling on the admissibility of evidence for abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) The courts discretion will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Defendant argues his statements, contained in the recordings, were unduly prejudicial. He notes he is heard frequently using a term considered to be highly derogatory to Black people. Defendant also frequently refers, in the recordings, to women by using a word commonly considered to be highly disrespectful of them. Defendant contends his improper attitude towards women is reinforced by his other highly derogatory references to women found in the recordings.

Defendant is also heard saying, I havent had a Christmas on the streets in six years, which he asserts is evidence of having been in jail or prison. He concludes these statements could only have convinced the jurors that [defendant] was a person of abysmally low character an inference so prejudicial as to violate a defendants right to due process.

How are we to address these assertions? Relevant law is clear. The prejudice which [Evidence Code section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [Citations.] Rather, the statute uses the word in its etymological sense of prejudging a person or cause on the basis of extraneous factors. [Citation.] [Citation.] (People v. Zapien (1993) 4 Cal.4th 929, 958.) Defendants statements in the recordings simply were not etymologically prejudicial.

As the trial court noted, defendant, a Black man, employs the offensive terms referring to Black people and to women for many reasons. They are often times employed as a term of affection. Sometimes [t]hey are used as power terms, terms of intimidation, terms to invoke the position of leadership by the defendant in a position of command by the defendant. Other times, the terms are used to emphasize the need of the defendant to have certain acts carried out on his behalf and to show contempt. Defendants complex use of these terms diminishes their prejudice, while giving them substantial probative value in context. Defendants statements establish his utter contempt for the people around him, regardless of category, and document his hair-trigger willingness to harm others and even murder them. His life, in short, takes on the aura of a bad dream to law-abiding people, but to defendant, it accurately depicts his state of mind and thus contributed to establishing motive. The trial court did not abuse its discretion in ruling the probative value of these terms outweighed any potential for prejudice.

The other profanity in the recordings, while considerable, is all too often a part of everyday life. A defendants profanity-laden remarks are not so inherently prejudicial as to require the suppression of a tape containing probative evidence. (People v. Hines (1997) 15 Cal.4th 997, 1044-1045.)

Defendants derogatory references towards women in the recordings are not unduly prejudicial when examined in the context of the entire trial. The jury already had evidence of defendants attitude towards women. Randle testified she knew defendant was serious when he admitted the killing to her because he called her by her first name rather than the same derogatory term referring to women found in the tapes. Randle also testified that defendant, in reference to Reno, said he beat her up because she was running her mouth.

Any potential prejudice from defendants lament he would spend another Christmas off the streets is obviated by other evidence of his criminal past. The trial testimony, which came in without objection, refers to defendant having a parole agent and contains multiple references to defendants drug dealing and drug use. According to Randles testimony, defendant committed the murder as part of a battle over his turf. He thought people from the Bay Area, like Huston and Williams, were making more money from the territory than he does.

The prejudicial effect of prior misconduct evidence is evaluated in the context of the trial. If the uncharged misconduct is less inflammatory than evidence describing the charged offense, then the potential for prejudice is diminished. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Testimony described a premeditated killing of the victim by the defendant as part of a struggle over turf, that is a part of organized crime, however crude and amateur. It is inconceivable the jury convicted defendant on the basis of his Christmas on the streets remark, his profanity, his attitude towards women, or his racially derisive expressions, rather than the evidence proving he murdered Huston, which he does not here challenge.

Balanced against the limited prejudicial effect of the recordings is their substantial probative value. Defendants statements on the recordings support the inference that Henriettas trial testimony was a product of defendant exerting pressure on her. This in turn supports the conclusion her initial statements to the police inculpating defendant were true. The trial court did not abuse its discretion by admitting the recordings after weighing this genuine probative value against any potential prejudicial effect.

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

^[1] Defendant argued the tapes should be suppressed pursuant to Evidence Code section 352, but he never requested the redaction of prejudicial material from the tapes.

^[2] The record contains no transcript of the recordings, but has a CD of the recordings. Defendants citation to the recordings note the day and time the conversation containing the particular reference took place. What defendant does not do is tell this court at what point in the recorded conversation was the cited statement made. This is analogous to quoting from a case without providing a point page citation.
We refer counsel for defendant to California Rules of Court, rule 8.204(a)(1)(C), which provides that briefs must [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. If any part of the record is submitted in an electronic format, citations to that part must identify, with the same specificity required for the printed record, the place in the record where the matter appears.
Defendants brief repeatedly violates this rule, requiring this court waste scarce judicial resources looking for specific statements in over four hours of recordings.

^[3] This opinion does not make any specific references to the actual terms used by defendant in the recordings. We choose to avoid incorporating vulgar or otherwise improper terms in our opinion unless the use of such words is in our judgment essential to place the remarks in perspective. (United States v. Cintolo (1st Cir. 1987) 818 F.2d 980, 984, fn. 3.) Having examined the record and the parties arguments carefully, we have determined that it is not essential to state the specific offensive terms employed by defendant in the tapes in order to place them in their proper perspective.