People v. Caldwell

29 Cal.App.5th 180

240 Cal.Rptr.3d 80

The PEOPLE, Plaintiff and Respondent,

v.Maurice CALDWELL, Defendant and Appellant.

A148828

Court of Appeal, First District, Division 3, California.

Filed November 15, 2018

As Modified on Denial of Rehearing December 17, 2018

Certified for Partial Publication.^*

Gross Belsky Alonso, Terry Gross, Adam C. Belsky, and Monique Alonso, San Francisco, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Barton Bowers, Acting Supervising Deputy Attorneys General, Sharon E. Loughner, Deputy Attorney General for Respondent.

Ross, J.^** Appellant Maurice Caldwell’s 1991 second degree murder conviction was reversed when the trial court granted his habeas corpus petition. Caldwell’s habeas petition alleged various grounds for relief—including the actual innocence claim at issue here—but the sole basis for granting the petition was the ineffective assistance of his trial counsel. Caldwell filed a subsequent Penal Code section 1485.55¹ motion for a finding of factual innocence (factual innocence motion), which the trial court denied. Caldwell appeals. The People contend that the order is not appealable. We hold that the order is appealable, review the record de novo and affirm the trial court’s decision.

FACTUAL AND PROCEDURAL BACKGROUND

A. The murder and investigation

On June 30, 1990, at approximately 2:30 a.m., Judy Acosta was murdered, and his friend, Domingo Bobila, was injured when they were shot during a drug deal in the Alemany Housing Project in San Francisco. Acosta and Bobila drove to the 900 block of Ellsworth Street with their friends Eric Aguirre and Dominador Viray. Having spent the evening drinking beer, the men decided to buy crack cocaine in the Alemany projects, an area known for drug sales and violent crime. During the drug buy, a drug seller punched Bobila in the face. Marritte Funches then shot Acosta several times in the chest at close range with a handgun. The People presented evidence—which Caldwell disputes—that Caldwell arrived and fired a shotgun at Acosta and Bobila. As they were hit by the shotgun pellets, Bobila pulled Acosta into the car and drove to a nearby gas station where Acosta died from multiple gunshot and shotgun wounds.

Initially, Caldwell told police that, having heard five to six gunshots, he ran to the scene, arriving after the shooting ended. He later said that he arrived on the scene and saw Henry Martin carrying the shotgun. In support of his habeas petition, Caldwell submitted a declaration stating that he saw Martin firing the shotgun. During a deposition in his civil rights case,² Caldwell retracted that statement and said that he did not see Martin firing.

San Francisco Police Department Inspectors Arthur Gerrans and James Crowley responded to the gas station, investigated the murder scene, and spoke with witnesses, many of whom were unresponsive; no one identified the suspects. During a police interview in the hospital, Bobila described the dealers as young black men and thought he could identify them from their photographs. The inspectors questioned the two passengers, Aguirre and Viray, who corroborated Bobila’s version of the events. Aguirre described one of the suspects as a black male, with a Jheri-curl hairstyle, and five feet, four to six inches tall, which matched Caldwell’s appearance at that time.

On July 12, 1990, San Francisco Police Captain Diarmuid Philpott received an anonymous tip—which he provided to Gerrans and Crowley—to "check out" Maurice Caldwell because he’s "been shooting off guns in the projects." The police canvassed the area and Gerrans interviewed Mary Cobbs. During a taped interview inside her apartment, Cobbs told Gerrans that on the night of the murder, awakened by gunshots, she looked out her window, and she saw a shirtless, light-skinned black male, aged 21-25, five feet, four inches tall, weighing 150 pounds, wearing dark sweat pants, firing a shotgun at the departing victims’ car. Cobbs’s description of the shotgun shooter was consistent with Caldwell’s appearance at the time. Cobbs said she did not think the shooters were from the area.

On July 18, 1990, Caldwell told the inspectors that he was not present at the murder scene, that he had been inside at "Debbie’s house" during the shooting, and that the victims’ car was driving away when he came outside.

On July 26, 1990, Cobbs positively identified Caldwell during a photographic lineup. She told the inspectors that she "heard they call him Twan" and that twice the previous week Caldwell had threatened her, saying: "Bitch, we gonna’ fuck you and your family up if you talk to the police."

On July 27, 1990, during a photographic lineup, Bobila selected Caldwell’s photograph as the person he thought he was talking to during the drug deal and who punched him in the face, although he was not "100% sure."

On September 21, 1990, Caldwell was arrested for the murder of Acosta and attempted murder of Bobila. During an interview with police that same day, Caldwell said that he was at his aunt’s house with a woman named Tina during the murder and that he ran outside after the shooting ended. He claimed not to know his aunt’s last name or her address. Caldwell also refused to provide Tina’s last name.

After the arrest, police conducted a live lineup attended by Cobbs, Bobila, Aguirre, and Viray. Cobbs identified Caldwell as the shotgun shooter; Bobila and Aguirre each put a question mark next to Caldwell on the lineup card; and Viray did not identify Caldwell. At trial Bobila testified that he identified Caldwell during the lineup as the person whose photograph he had selected from the photographic lineup.

The inspectors interviewed Caldwell’s aunt, Deborah Rodriguez, who told them that she spoke to Caldwell while he was in jail. She said Caldwell was at her house the night of the murder and that, after a few gunshots, he ran out of her house without a shirt on. Jacqueline Williams, Rodriguez’s friend who was at her house the night of the murder, said that Caldwell was upstairs with a woman named Linda and that he ran out of the apartment shirtless.

On October 17, 1990, Caldwell’s trial attorney provided the inspectors with Caldwell’s version of the events: Funches had the handgun, Erick Brown punched Bobila, and Martin had the shotgun. The inspectors showed Cobbs, Bobila, Aguirre, and Viray three different photo spreads that variously included photographs of Funches, Brown, and Martin; they could not identify anyone in the photo spreads.

The inspectors searched unsuccessfully for Funches, Brown, and Martin. Martin did not fit the witnesses’ description of the shotgun shooter.

B. The criminal case

On December 3, 1990, the court conducted the preliminary hearing, at which Cobbs and Bobila testified. Caldwell’s trial counsel cross-examined Cobbs extensively. He attempted to impeach Cobbs’s testimony both with her statements to the police and with questions about statements she allegedly made to a neighbor, Dorothy Wiggins—a witness he anticipated calling. Caldwell was held to answer on the charges. On December 14, 1990, the San Francisco District Attorney charged Caldwell with murder (Count 1; § 187), attempted first degree murder (Count 2; §§ 664/187), and felony discharge of a firearm at an occupied vehicle (Count 3; § 246). As to each count, the information alleged that Caldwell used a firearm to inflict great bodily injury on the victims (§ 12022.5, subd. (b) ), and that the offenses were serious felonies (§ 1192.7, subd. (c)(8) ). Aguirre also testified that Caldwell resembled one of the people present at the shooting.

Cobbs testified that she was positive Caldwell was the shotgun shooter. She clearly saw Caldwell, without a shirt on, holding the shotgun; a street light illuminated the area; there were no obstructions; and she recognized him from his presence in the area before the shooting. Cobbs testified that the interview with Gerrans in her apartment was interrupted by a knock on the door (by Sergeant Crenshaw), and the only person she saw outside was another police officer.³ (See People v. Maurice A. Caldwell (Aug. 27, 1992, A053626) [nonpub. opn.].) Cobbs also testified about Caldwell’s threats to her and her family.

Caldwell’s defense was that the shotgun did not cause Acosta’s death and that he was not present during the murder. Rodriguez testified that Caldwell ran out of her apartment after the initial shots wearing a T-shirt and that he did not have a shotgun. Alice Carruthers testified that she observed Funches fire a handgun at the victims and that she heard more shots as she ran home. Betty Jean Tyler testified that at the time of the shooting, Caldwell had been living in her apartment at 949 Ellsworth, next door to Cobbs’s apartment. Caldwell did not testify, and he did not challenge Cobbs’s identification at trial.

On March 20, 1991, the jury found Caldwell guilty of second degree murder, attempted murder, and discharging a weapon at an occupied vehicle and found two of the personal-use-of-a-firearm enhancement allegations to be true. This court affirmed Caldwell’s conviction.

C. The habeas proceedings

In 2009, Caldwell filed a petition for writ of habeas corpus alleging his imprisonment was unlawful because: 1) newly discovered evidence undermined the People’s case; 2) he was convicted on false testimony; 3) he was denied effective assistance of counsel; 4) these cumulative errors denied him due process; and 5) he is actually innocent.

In support of his habeas petition, Caldwell submitted: (1) a declaration from his trial counsel, Craig Martin, stating that he did not hire investigators to work on the case; (2) his own declaration stating that he observed Henry Martin fire the shotgun; (3) Marritte Funches’s⁴ declaration stating that he shot the handgun, that one of his "homeboys" fired the shotgun, that Caldwell was not present, and that one of the...