P. v. Stone

Filed 6/16/06 P. v. Stone CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Elnorris Stone was convicted of one count of first degree murder. On appeal, he argues that his first-degree murder conviction is not supported by sufficient evidence of premeditation and deliberation, and that the trial court made several prejudicial errors in the jury instructions. He also seeks modification of the judgment to clarify that his obligation to pay direct victim restitution is joint and several with that of his former codefendant, who was the other participant in the killing.

We find the evidence sufficient to support the conviction. Although we agree that the trial court erred in refusing some of appellant's requested pinpoint jury instructions, we conclude the errors were harmless. We reject appellant's other assertions of error in the instructions. We modify the judgment to reflect that appellant's liability for direct victim restitution is joint and several, and otherwise affirm.

facts and procedural background

Appellant testified in his own defense at trial. Because he provided the only comprehensive narrative of the events leading to the death of the victim, the following statement of the facts is organized around his testimony, noting where it was contradicted or corroborated by that of other witnesses.

As background, appellant explained that he grew up in the neighborhood near the intersection of International Boulevard (also known as East 14th Street) and 52nd Avenue in Oakland. Members of appellant's extended family occupied all of the apartments in a four-unit building, owned by his grandparents, on a long block of 52nd Avenue running from International Boulevard to Bancroft Avenue. By his own account, appellant was a good student, but during his high school years he developed behavioral problems, and began dealing marijuana and crack cocaine in his neighborhood. He acknowledged he had a problem with being obsessed with money and sex, and that this had gotten him in trouble in the past.

From 1995 to 2001, while appellant was in his early 20s, he worked intermittently as a telecommunications technician. He still sold crack cocaine during that period, however, and began carrying guns to protect himself. During that time, appellant had a brief, purely sexual relationship with a woman named Kenya Smith (Smith), who lived about seven or eight houses away from appellant's family's house, closer to International Boulevard. Smith testified that appellant had asked her to work for him as a prostitute, but she had declined; appellant denied this.

Appellant testified that he had moved to Sacramento some time before the crime occurred,[1] and gotten out of the business of selling drugs in Oakland. He disclaimed any continuing interest in taking over the block where his family lived, or being the leader in the neighborhood. He did still come back to the 52nd Avenue neighborhood, however, to visit his family and his friend Romeo Yarborough (Yarborough), who was still involved in drug dealing in Oakland.

Appellant explained that on the day of the crime, December 5, 2002, he and Yarborough had gone to a club in Oakland to play pool, and in the early morning hours, he had been robbed by two men while filling up his van at a gas station. His van, wallet, cell phone, and keys were taken, as well as a cell phone belonging to Yarborough, who had been riding with him in the van. The wallet the robbers took contained appellant's driver's license, which bore the address of his family's home in Oakland.

Appellant recognized one of the men who robbed him, because appellant was friends with members of the man's family, so appellant later tried to contact the man through his family in an attempt to recover his van and possessions. Yarborough also tried to contact the robbers by calling his own cell phone. Later that day, appellant and Yarborough managed to reach one of the robbers by telephone. The robber told them that he knew where appellant lived, and threatened to â€