P. v. Dunson

Filed 10/25/06 P. v. Dunson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Robert P. O’Neill, Judge. Affirmed.

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Terrence Antonio Dunson appeals the judgment entered after conviction by jury of second degree murder in which he personally discharged a firearm causing death and assault with a firearm in which he personally used a firearm. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d), 245, subd. (a)(2), 12022.5, subd. (a).)^[1] The trial court found Dunson had one prior conviction within the meaning of the Three Strikes law (§§ 667, subs. (b)-(i), 1170.12) and one prior conviction within the meaning of section 667, subdivision (a)(1), and sentenced him to a term of 70 years to life in state prison.

On appeal, Dunson claims the trial court erroneously denied discovery and the prosecutor committed misconduct in argument. We reject these contentions and affirm the judgment.

FACTUAL BACKGROUND

On July 8, 2003, at approximately 6:00 p.m., Gregory Moore was sitting in his green truck in the rear parking lot of the Vons grocery store on La Tijera Boulevard in Los Angeles. Moore was drinking coffee and listening to the radio when a white Honda parked approximately 10 to 15 feet from Moore’s truck. Dunson and another male approached the Honda. Dunson made hand gestures, said, “What’s up Cuz?” to the driver, then removed a hand gun from his waistband and fired two shots inside the driver’s window. Dunson and his companion fled on foot. Moore began to follow them in his truck. However, Dunson turned halfway around and pointed what appeared to be a small caliber hand gun at Moore. The Honda moved forward and ran into a wall. An individual exited the passenger side door of the Honda, said they had shot his friend, then ran around the corner. The entire incident took only a few seconds. “It happened that fast.”

Leon Richards lives in an apartment that overlooks the rear parking lot of the Vons. On July 8, 2003, he saw two males in the parking lot passing a cigarette between themselves. Richards looked out the window again when he heard the screeching of tires and gunshots followed by what sounded like an explosion. Richards saw Dunson and another male standing near a white car that had crashed into the side of the building. A green truck moved forward until Dunson pointed something that resembled a gun at the truck.

The driver of the Honda, 18-year-old Brandon Bennett, was dead at the scene of a gunshot wound to the heart.

Moore identified Dunson in a photographic lineup and at trial as the shooter.

Richards identified Dunson in a photographic lineup as one of the two individuals he saw smoking in Vons parking lot and as the individual he saw point a handgun at the driver of the green truck. Richards also identified Dunson in court.

Forty-four fingerprints were recovered from the Honda. Six of the fingerprints were suitable for AFIS analysis. A fingerprint from Dunson’s left hand was recovered from the outside of the driver’s window of the Honda. Bennett’s father testified Brandon kept his Honda clean and wiped it off every day. Inside the Honda, police officers found a small baggie containing marijuana and seven empty baggies.

CONTENTIONS

Dunson contends the trial court committed error in denying a pretrial request for discovery of Moore’s home address and the prosecutor committed multiple acts of misconduct in argument. Dunson also claims the cumulative effect of these errors requires reversal.

DISCUSSION

1. Request for discovery of Moore’s home address.

a. Background.

At a pretrial hearing, defense counsel indicated arrangements had been made to interview Moore about the case but he had failed to appear. Detective Paul Inabu stated that, although defense counsel had spoken to Moore on the phone that morning, Moore consistently had indicated he does not wish to speak to any attorneys. Defense counsel indicated he had asked Moore whether there had been any threats made against him. Moore said there had not and that he was not afraid to testify. Moore also indicated he preferred to come to court and did not wish to meet with defense counsel or the defense investigator.

Thereafter, in an ex parte hearing, defense counsel argued Moore’s address was needed to allow the defense to investigate the motivation for Moore’s testimony, Moore’s reputation in the community for veracity and whether he was someone who cooperates with the police. Defense counsel also wanted to discuss Moore’s identification of Dunson. The trial court indicated it would not disclose the address merely to permit defense counsel to continue to try to meet with Moore because Moore already had indicated he would not speak to the defense. Defense counsel responded he would not try to contact Moore at home but would only attempt to investigate Moore’s reputation in the community. The trial court indicated that, if it granted Dunson’s request, it would only order disclosure of the general community where Moore lived.

When the matter returned to open court, the trial court asked the prosecutor why the defense was not entitled to know the general area of Moore’s residence in order to inquire regarding his reputation for veracity. The prosecutor observed the defense had not suggested there was any need for such an investigation.

Defense counsel then indicated both sides had been unable to locate Moore at the time of the preliminary hearing. Also, the preliminary hearing was continued to permit the defense to attempt to locate and interview Moore. The prosecutor responded the defense had made no showing of a need for the requested information and disclosure of the information in a murder case would give rise to the possibility of witness intimidation. Further, the prosecutor already had provided the defense with Moore’s criminal record, which consisted of a misdemeanor assault conviction in 1999.

The trial court indicated that, based on the facts as they appeared at that time, it intended to order disclosure of the major intersection nearest Moore’s residence. The trial court indicated it was making the ruling because there was no indication Moore had expressed fear for the safety of himself or his family. The trial court stayed the order for 12 days to permit the People to evaluate whether to seek writ review. On the continued date, October 12, 2004, Moore appeared in court and stated he was unwilling to meet with the defense. Moore also indicated he was in fear for the safety of his family should his address and phone number be disclosed. The trial court modified its prior ruling to deny Dunson’s request entirely.

On November 1, 2004, defense counsel asked the trial court to reconsider its ruling. The trial court indicated: “Here my ruling was based on the witness coming into court indicating quite clearly to everyone involved in this case that he didn’t want to be interviewed by the defense, further indicating he was fearful for himself and his family, and further, there being no showing that his credibility in the community was in question. So when ruling, I balanced your need for the information that you were requesting, his address, versus the nature of the offense here, the fear expressed by the witness, and also Mr. Dunson’s prior adult history which includes commitments to state prison for violent offenses, robbery.”

Dunson sought writ review of the trial court’s order. This court denied the request on January 20, 2005, citing Montez v. Superior Court (1992) 5 Cal.App.4th 763, 770. On March 16, 2005, the California Supreme Court denied Dunson’s petition for review of our ruling. (People v. Dunson, review den. Mar. 16, 2005, S130992.)

b. General principles.

The prosecution is generally required to disclose to the defense the names and addresses of persons the prosecution intends to call as witnesses at trial. (§ 1054.1 subd. (a).) Such disclosure is made only to defense counsel. Counsel may disclose such information only to those employed by counsel or appointed by the court to assist in preparation of the defense. (§ 1054.2, subd. (a)(1), (2).) On a showing of good cause a court may deny, restrict or defer disclosure. “ ‘Good cause’ “ is defined as “threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.” (§ 1054.7.)

The task for the trial court is to balance the need for information helpful to the defense against the safety of witnesses and the protection of the judicial process. (See Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1149-1151; Reid v. Superior Court (1997) 55 Cal.App.4th 1326, 1332-1339; People v. Ramirez (1997) 55 Cal.App.4th 47, 56-57; Montez v. Superior Court, supra, 5 Cal.App.4th at pp. 768-772.) The trial court has broad discretion in effecting that balance and absent abuse, its determinations will not be disturbed on appeal. (See Alvarado v. Superior Court, supra, at pp. 1134-1136; Reid v. Superior Court, supra, at p. 1339.)

c. Dunson’s argument.

Dunson contends the prosecutor did not show good cause to withhold Moore’s address. (§ 1054.7.) Dunson claims the prosecution failed to show Moore had been threatened or that disclosure of his address to defense counsel and the defense investigator created any danger to Moore. Dunson argues this case differs from Montez v. Superior Court, supra, 5 Cal.App.4th 763, because Dunson was not alleged to have been acting for the benefit of a criminal street gang. Although there was evidence that indicated Dunson was a gang member, there was no evidence Moore was aware of Dunson’s gang membership or that anyone had attempted to dissuade witnesses in general or Moore in particular.

Dunson asserts more than a generic fear for a witness’s safety is required to prevent the defense from investigating the witness’s reputation in the community. Such a restriction requires the People to demonstrate a compelling circumstance such as an overriding interest in security. (Reid v. Superior Court, supra, 55 Cal.App.4th at pp. 1332, 1335.)

Dunson argues the trial court’s ruling resulted in the denial of material evidence favorable to his defense. Dunson notes only Moore identified Dunson as the shooter and Moore’s identification was flawed because he initially described the shooter as being six feet to six feet two inches tall when Dunson, in fact, is six feet seven inches tall. Also, Moore identified Dunson from a photographic lineup that contained only two pictures that featured subjects with braided hair and Moore did not testify at the preliminary hearing. Thus, he was only subject to impeachment with the statement he gave to the police at the time of the incident, the suggestive photographic lineup identification and any internal consistency that might have been developed on cross-examination. Although the People disclosed Moore’s prior conviction of assault, everything else about his background and reputation was hidden from the defense. Dunson argues he could not make a prima facie showing of a problem with Dunson’s veracity in the community because he was unable to learn the whereabouts of the community. Moore’s prior conviction of assault suggested he might have a poor reputation. Dunson concludes the failure to disclose Moore’s address, the only eyewitness to the murder and the victim of the charged assault, must be seen as prejudicial. Because a federal constitutional right is involved, the error must be tested under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].

d. Resolution.

In denying Dunson’s motion, the trial court noted the nature of the offense, the fear expressed by Moore and Dunson’s criminal history as an adult which included a prior conviction of robbery and a prison term. These factors indicate the trial court reasonably could find the risk of danger to Moore outweighed Dunson’s right to learn Moore’s address. No abuse of the trial court’s discretion appears.

Dunson’s attempts to distinguish Montez v. Superior Court, supra, the case cited by this court in denying Dunson’s pre-trial writ, are unavailing. In Montez, four employees witnessed a shooting and murder at the market where they worked. The prosecutor alleged the offense had been committed for the benefit of a criminal street gang. The employees indicated they feared for their safety and the trial court repeatedly noted the defense had not questioned their bias or veracity and there was no showing any of the employees had a bad reputation for veracity or had engaged in criminal activity.

Although this case differs from Montez in that there was no criminal street gang enhancement, Dunson concedes there was evidence that suggested Dunson was a member of a criminal street gang. Further, the nature of the crime demonstrates extreme violence and suggests the perpetrator was involved in gang activity, even if the People did not allege a criminal street gang enhancement. Although there was no evidence Moore had been threatened or intimidated, that possibility flowed from the violent nature of the crime, an unprovoked shooting of an unsuspecting victim, as well as Dunson’s history of committing other violent crimes, such as robbery.

Additionally, Dunson failed to show there was any question regarding Moore’s reputation in the community. Although Moore had a 1999 conviction of misdemeanor assault, that offense is not a crime of moral turpitude. Thus, contrary to Dunson’s assertion, Moore’s assault conviction did not suggest his reputation in the community for veracity might be questionable.

For the foregoing reasons, we once again reject Dunson’s claim of error in the refusal to disclose Moore’s home address.

2. Prosecutorial misconduct.

a. Background.

Dunson contends the prosecutor improperly appealed to the passion or prejudice of the jury in argument. The following excerpts summarize the relevant portions of the prosecutor’s opening argument, defense counsel’s closing argument and the prosecutor’s final argument.

At the end of opening statement, the prosecutor argued as follows: “Sadly, Brandon Bennett lost his life. Brandon Bennett became a victim on July 8, 2003; but Brandon is not the only victim. This killing doesn’t happen in a vacuum. Brandon’s family has become the victim as well. Brandon’s mother, Brandon’s father, Brandon’s brother, Brandon’s grandmother. These people are all victims now because of the defendant’s actions. You heard the evidence, ladies and gentlemen. You have heard the testimony. The People ask that you do what the evidence demands, and that is find the defendant guilty. Thank you.”

Defense counsel commenced closing argument by stating this case was “not about sympathy for [Bennett’s] family. . . . There isn’t anybody here who doesn’t feel sympathy for them and what they’ve been through. They lost their son. It’s about whether the government has sufficient proof presented to you to find someone guilty of murder and also assault with a firearm. That’s what this is about. Everybody is going to be able to talk to the Bennett family when the case is over. Everyone can express their condolences and their sorrow. Do your job. It’s not about sympathy. It’s about evidence.”

Defense counsel then proceeded to argue there had been multiple investigative failures by the police in that they had not investigated any other fingerprints found on the Honda and did not investigate the numerous telephone numbers in Bennett’s cell phone. Counsel also noted Moore’s misidentification of Dunson’s height and the fact Moore saw the shooter only in profile. Defense counsel argued the photographic lineup had been so suggestive that Moore’s identification of Dunson was of no value, especially where Moore testified he only saw the shooter in profile. At the end of argument, defense counsel indicated, “It’s not about the Bennett family. It’s about whether the government did its job so that you can do your job.” Finally, defense counsel told the jury, “I urge you to set aside sympathy, passion, prejudice. It is a difficult task ahead of you.” Thereafter, the prosecutor ended final argument as follows: “There is a picture of Brandon. This is what’s left of Brandon for his family, this photograph and his memories. We just celebrated Mother’s Day. Brandon’s mom every year won’t be getting a bouquet of flowers or card from Brandon. This is all she has left of Brandon. All she has left on every Mother’s Day are photographs of Brandon and a painful memory. This is all she has left because of the defendant’s actions on July 8, 2003. The People ask that you find defendant guilty.”

b. Dunson’s contentions.

Dunson contends the prosecutor’s argument encouraged the jury to view the crime through the eyes of the victim’s family. Such an appeal for sympathy is improper during the guilt phase of the trial. (People v. Arias (1996) 13 Cal.4th 92, 161.) Dunson concedes defense counsel did not object to the prosecutor’s argument. However, he contends the issue nonetheless must be addressed because the failure to object to the argument constituted ineffective assistance of counsel. (People v. Cox (1991) 53 Cal.3d 618, 682.)

Also, anticipating the People will argue any prosecutorial misconduct was harmless because of the overwhelming evidence of Dunson’s guilt, Dunson argues Moore’s description of the shooter did not match Dunson’s height and the photographic lineup from which Moore selected Dunson had only two individuals with braided hair. Given that the jury deliberated almost one full day before finding Dunson guilty of second degree murder, Dunson concludes at least one juror must have had a reasonable doubt.

c. Resolution.

Initially, we note this claim has been waived for failure to object in the trial court. (People v. McDermott (2002) 28 Cal.4th 946, 1001; People v. Welch (1999) 20 Cal.4th 701, 753; People v. Hill (1998) 17 Cal.4th 800, 820.) Moreover, even if we address the merits of the issue based on defense counsel’s asserted ineffective assistance in failing to object, the claim fails. As the foregoing summary demonstrates, it appears defense counsel chose to address the issue of sympathy in argument rather than by objecting. This was a reasonable tactical decision to which we must accord great deference. (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)

In any event, the prosecutor’s brief comments were within the common knowledge of the jurors and merely pointed out there was more than one victim of this crime. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1250; People v. Williams (1988) 45 Cal.3d 1268, 1326.) These remarks fall short of a “ ‘pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.]’ “ (People v. Gionis (1995) 9 Cal.4th 1196, 1214.)

Finally, even assuming the argument was misconduct, Dunson cannot show prejudice. Contrary to Dunson’s assertion, the evidence of guilt was overwhelming. Two eyewitnesses saw Dunson near the white Honda and Moore saw the entire incident unfold from a distance of only 10 to 15 feet. Also, Dunson’s fingerprint was found on the driver’s window of the white Honda. In light of this evidence, the prosecutor’s remarks cannot be seen as having had any effect on the outcome of the case. Consequently, reversal is not required.

3. Cumulative effect.

Dunson claims that even if the foregoing claims of errors, considered individually, are harmless, the cumulative prejudice from both errors requires reversal of his conviction. We have found no error and reject this argument as well. (People v. Bolin (1998) 18 Cal.4th 297, 335.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] Subsequent unspecified statutory references are to the Penal Code.