People v. Coleman

320 Cal.Rptr.3d 473

The PEOPLE, Plaintiff and Respondent,

v.Demetrius COLEMAN, Defendant and Appellant.

A165198

Court of Appeal, First District, Division 5.

Filed January 5, 2024

Trial Court: Superior Court of Humboldt County, Trial Judge: Kelly L. Neel (Humboldt County Super. Ct. No. CR2000055B)

Eric R. Larson, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Catherine A. Rivlin and Allen R. Crown, Deputy Attorneys General, for Plaintiff and Respondent.

Jackson, P. J.

[1, 2] When a criminal defendant voluntarily takes the stand, his or her credibility is always at issue. A defense attorney’s salient advice to a defendant to speak in his or her own voice when he or she testifies does not indicate bias or animus toward a defendant because of his or her race, ethnicity, or national origin. The California Racial Justice Act of 2020 (RJA) (Stats. 2020, ch. 317) is not violated when a testifying defendant follows his or her attorney’s advice to speak authentically and in his or her normal manner, even if the result is that the defendant testifies using slang terms, a certain accent, or a certain linguistic style.

Defendant was convicted by a jury of first degree murder with special circumstances that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(21))¹ and an enhancement for personally and intentionally discharging a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) Defendant contends we should reverse his conviction because his trial counsel exhibited racial bias toward him in violation of the RJA by advising him to "use Ebonics, slang, and to sound ghetto," when he testified.² Defendant also contends the trial court erred in imposing two sentence enhancements and in imposing a parole revocation restitution fine after sentencing him to life without the possibility of parole. The People agree the parole revocation restitution fine should be stricken. We modify the judgment to correct the sentencing error acknowledged by both parties and affirm the judgment as modified.

BACKGROUND

We summarize only the facts necessary to resolve the issues on appeal.

I. Prosecution Evidence

Mariah A. was a friend of defendant’s girlfriend, Alma A. Mariah A., Alma A. and defendant were involved in brokering illegal marijuana sales. On August 29, 2019, after a playdate with their children, Mariah A. and Alma A. drove together with their two children from Eureka to Rio Dell. Alma A. drove, and they followed defendant, who was driving a green Honda. Alma A. used Mariah A.’s cell phone to call defendant during the drive. Mariah A. heard defendant on speaker phone say, " ‘Stay back. Stay back, Mamas. You know what to do.’ "

Shortly after 6:00 p.m., Alma A. and Mariah A. arrived in Rio Dell and parked on a comer near Wildwood Avenue. Alma A. got out of the car. Mariah A. saw Alma A. grab something from under the car’s hood, put it under her T-shirt, and walk away along the sidewalk, out of Mariah A.’s sight. Mariah A. stayed in the car. Defendant pulled up next to Mariah A. and asked for the location of Alma A. Mariah A. said she did not know. Defendant said " ‘Oh, my God,’ " and drove off. Alma A. came running back to the car and got into the driver’s seat. Then Mariah A. heard "pop, pop, pop, pop three times." Alma A. said, " ‘Oh, shit. Oh, shit,’ " and drove off.

The police responded to the scene of the shooting and found a man later identified as Johnny Renfro suffering from an apparent gunshot wound. He died from the gunshot wound to his lower abdomen.

Mariah A. asked to be dropped off at a market, where her brother worked, but Alma A. refused and said she needed Mariah A.’s phone to contact defendant. Defendant called Mariah A.’s cell phone and spoke with Alma A. Mariah A. heard Alma A. ask him for his location. Defendant said he was on Main Street in Rio Dell, and he asked Alma A. where he should go. Defendant also said the back window of the Honda had been shot out. Alma A. gave defendant directions to a location off of Highway 36. Mariah A. asked Alma A. to let her out at a different market, which she did. Alma A. told Mariah A. not to say anything.

Regina O. and Jovan I. testified pursuant to an immunity agreement with the district attorney. They lived on farmland off of Highway 36 in Fortuna. They met with defendant in Eureka on the day of the shooting, and he gave them a marijuana sample. Later that evening, defendant came to their house in a green Honda. He told them that he had been robbed by men who took "a bag with 20 units" and shot at him as he was driving away. Defendant initially said he was robbed at a Target store and then that he was robbed in an industrial area of Eureka. Alma A. arrived at Regina O. and Jovan I.’s home about 15 minutes after defendant. Alma A. asked for a vacuum to clean the glass out of the Honda. Alma A. started to vacuum the car. Defendant asked if he could leave the Honda there, and Jovan I. agreed. Before defendant and Alma A. left, defendant said to Regina O. and Jovan I., " ‘If three people know a secret, it’s best if two of them are dead.’" Regina O. understood his statement to be a threat and that she should not say anything. Regina O. later asked her father to move the car off her property, and he did so.

Two witnesses testified to hearing gunshots and seeing a green two-door car drive by.³ They heard a man screaming for help, ran to help him and called the police. One of the witnesses described the driver of the Honda as a dark-skinned male with very thick hair on top and dreadlocks that went down to his ears. He did not see anyone else in the car, but he saw a woman walk by the passenger side of the car.

Two other witnesses saw a green Honda driving erratically about 6:30 p.m. toward the Highway 101 on-ramp. They both described the car as having the back window broken and said that there was only one person in the car. One witness testified she was "95 percent" certain that defendant was the driver of the Honda. She described the driver as a male with a medium-dark complexion and curly hair that looked like dreadlocks. The other witness who saw the car enter the Highway 101 on-ramp described the driver as a Black male in his mid-thirties with black dread-locks to his shoulders.

After learning of the shooting and that the police were looking for a green Honda, Regina O.’s father contacted the police and told them the car was on his property. The Honda was registered to Denise L., who was defendant’s ex-wife. Previously, in May 2019, a police officer in Arcata conducted a traffic stop on the Honda. Alma A. was driving, and defendant was a passenger.

In January 2020, defendant and Alma A. were arrested in North Dakota.

II. Defense Evidence

A woman who lived near the scene of the shooting testified that on August 29, 2019, she saw a green vehicle drive by and heard gunshots. The driver of the green car was a chubby male with a big, round face. A woman was in the rear passenger seat of the green car. She had a thinner face and longer hair. Both people in the green car were dark-skinned.

Defendant testified that he was working as a broker in the illegal marijuana business. He explained that as a broker, "[i]f you have a nice product, I bring the money." He earned "a dollar off each bag," which he explained meant $100 per pound of marijuana. Defendant had brokered marijuana deals with Regina O. and Jovan I., including million-dollar deals.

In August 2019, defendant was robbed in the parking lot of a Target store during a sale of 30 pounds of marijuana. After defendant became suspicious that the buyers had not paid in full, they struggled over the "totes" and someone put a gun to defendant’s face. He told them to take the marijuana, some of which he got from Regina O. and Jovan I. Defendant told Regina O. and Jovan I. about the robbery, and he paid them back for what was stolen.

On August 29, 2019, defendant planned to meet with clients. He was "working [his] phones and trying to get things situated" because he had "money in town," which meant he had "clients in town ready to do what we do." He was at a park with Alma A., Mariah A., and their children, He had driven there in his green Honda. Alma A. had driven in a gray Jeep with Mariah A. and the two children. A man defendant knew only as "Dread," whom defendant described as a dark-skinned Jamaican man with dreadlocks down to his shoulders, met defendant at the park to pick up a sample of marijuana from defendant. Dread took the bag of marijuana back to his car.

Alma A. and Mariah A. left with the children to go to a store. Defendant started his Honda, planning to follow them to the store. As he was starting to drive off, "[two] trucks pull[ed] up" on him. One was the same one that was involved in the prior robbery, at Target. Three or four Black men with guns got out of the trucks and began grabbing the "totes" out of defendant’s backseat. Defendant recognized two of the men. One, whom defendant knew as "Oliver," hit defendant on the side of his head with a black gun that went off. Defendant struggled with Oliver for the gun. Oliver dropped the gun on the ground. The men ran back to their tracks and drove off. Dread was still there while defendant was "being jacked," and he yelled at the men to stop.

Defendant picked up the gun and put it on his passenger seat. He drove to the store to meet Alma A. and Mariah A. While defendant was in the parking lot waiting for them, Dread called him and said he wanted the gun. When defendant was driving away from the store, with Alma A. and Mariah A. following him, defendant saw Dread pull up in a truck driven by another man. Defendant got out of his Honda, and Dread walked over and said he would drive the Honda. Defendant got in the back passenger seat of...