People v. Flint

1

THE PEOPLE, Plaintiff and Respondent, v. JUSTIN ASHLEY FLINT, Defendant and Appellant.

B333482

California Court of Appeals, Second District, First Division

October 31, 2024

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. NA071779 Daniel J. Lowenthal, Judge. Reversed with directions.

David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General for Plaintiff and Respondent.

ROTHSCHILD, P. J.

In 2006, appellant Justin Ashley Flint acted as a lookout for his associate Frank Gonzalez as Gonzalez attempted to rob Maria Cecilia Rosa, an off-duty Los Angeles County Sheriff's Deputy. During the attempt, Gonzalez shot Rosa killing her. In 2007, a jury convicted Flint of first degree murder and attempted robbery.^[1]

In 2019, Flint filed a petition for resentencing under the predecessor to Penal Code section 1172.6.^[2] The court held an evidentiary hearing to determine whether, for purposes of section 189, subdivision (f), Flint knew or reasonably should have known at the time of the murder that Rosa was a peace officer engaged in the performance of her duties. The court found beyond a reasonable doubt that Flint had such knowledge, and denied his petition for resentencing. Flint appealed.

Flint contends: (1) Rosa was a peace officer described in subdivision (c) of section 830.1 and was not, therefore acting in the course of her duties when Gonzalez shot her and (2) The court erred in admitting certain hearsay statements made by Gonzalez while in custody. For the reasons given below, we remand the matter for a further evidentiary hearing to determine whether Rosa was, at the time of her murder, acting "in the course of [her] duties" as a peace officer. We further conclude that the court did not abuse its discretion in allowing the challenged statements by Gonzalez into evidence.

FACTUAL AND PROCEDURAL SUMMARY

A. Background

In the early morning of March 28, 2006, Gonzalez and Flint broke into residential garages and yards from which they stole property, including two bicycles. Flint was aware that Gonzalez possessed a gun. At some point, Gonzelez told Flint," 'I'm going to go snatch someone's purse.' "

Shortly before 6:00 a.m., they were riding the stolen bicycles in a residential area of Long Beach and came upon Rosa, a Los Angeles County Sheriff's Deputy. Rosa had just left her home to drive to the Los Angeles County Inmate Reception Center, where she worked. She was not in uniform. Her unmarked car was in her driveway facing away from the street. As Rosa stood near the open trunk of her car, Gonzalez got off his bicycle and approached her from behind. Flint remained on his bicycle and watched from a distance that he described at different times as "about two car lengths away," "a house away," and about 27 feet away. Flint heard Gonzalez say something to Rosa about her purse. Rosa's response is the subject of conflicting evidence, discussed below. Gonzalez started to run away from Rosa, then pulled the gun from his waistband and shot her twice, causing her death.

Officers responding to the scene examined and photographed the trunk of Rosa's car. A car key was in the keyhole on the trunk door. Inside the trunk, they found the following items: A gym bag, Rosa's purse, her 9 millimeter semiautomatic pistol, her sheriff's deputy badge holder with her badge inside, her gun holster, and boots. An officer described the items in the truck as having been "scattered" or strewn about.

Rosa's purse was upright, unzipped, and open. It contained her handcuffs, keys, and miscellaneous personal items. According to a detective, the purse "was relatively empty" and had enough room to carry her firearm, badge, and wallet, none of which was in the purse.

Rosa's firearm was found on the right side of the trunk, partially covered by the gym bag, and separated from her holster. Rosa's holster was between a plastic grocery bag and a boot. Her wallet was near the back of the trunk, underneath the gym bag, a boot, and an envelope. Rosa's badge holder was closed- thereby concealing the badge-and lying on top of, and partially inside, a plastic grocery bag on the left side of the trunk near the trunk opening. According to a detective, it appeared as if the badge holder had fallen or been dropped there. The detective explained that officers respect their badges and "don't normally just toss them in the trunk of the car."

Rosa ordinarily kept her firearm in her purse or in a holster clipped to her waistband. Based on the clothes Rosa was wearing that morning, a detective opined that Rosa would not have been wearing her firearm in a holster or on her waistband.

Particles of lint found in the gun barrel of Rosa's firearm indicated that it had not been fired recently. Indeed, the gun had what a firearms expert described as a "failure to eject" malfunction. This malfunction occurs when someone attempts to manually eject a cartridge from the gun's chamber, but fails to pull back the slide far enough to eject the cartridge completely.

The partially ejected cartridge prevents another cartridge from loading into the chamber. An attempt to manually eject a cartridge requires one hand to hold the gun and a second hand, or some other object, to pull the slide back.

After shooting Rosa, Gonzalez went to the home of Glenn Gosnell. Gosnell described the visit to detectives about three months later. Gosnell told the detectives that Gonzalez was "freaking out, about how he shot a cop." Gonzalez told Gosnell that he was going to rob Rosa, and Rosa "started reachin' for somethin'." Gonzalez said he thought Rosa was reaching for a gun. He felt threatened, and shot her. After shooting Rosa, Gonzalez ran "up to her" and "looked in" and saw "the badge" inside the car. Gonzalez was not more specific as to where in the car he saw the badge. A detective asked Gosnell if Gonzalez said he saw a gun, and Gosnell responded: "He didn't say. He just kept sayin' a badge." When the detective asked if Gonzalez had said why he selected Rosa to rob, Gosnell said: "She was there." Gonzalez also told Gosnell that Flint was "down the street" when the shooting occurred and "he didn't know nothing."

About two days after the murder, Gonzalez spoke to Jessica Rowan about the murder. Rowan testified about the conversation during a preliminary hearing in March 2007. According to Rowan, Gonzalez told her," 'We did something, we did something in Long Beach,'" and showed her a newspaper article about the murder, which described Rosa as a deputy sheriff. When Rowan questioned Gonzalez about the matter, Gonzalez told her that "he tried to rob [Rosa] because he wanted dope," and he "tried to rob her, take her purse" and "her money," but Rosa "didn't want to give it to him." Gonzalez told Rowan that "[b]oth of them" tried to rob Rosa, but Gonzalez "was the one that said[,] 'give me your money.'" Rosa then started "fighting with him." Gonzalez told Rowan he had seen a badge "in the back seat" of Rosa's car as he left the scene.

In the days following the shooting, Flint told at least four people about the crime. On one occasion, within a day or two after the murder, Flint went to the home of Eddie Zogg. Eric O'Brien and Mark Smith were also there. According to Flint, he told them that he and Gonzalez were trying to "take lawn mowers or something and [Gonzalez] ended up shooting somebody." The others told him they had heard about the murder and said the victim was a deputy. When a detective asked Flint if he already knew that fact, he responded, "[n]ot [until] they showed me that flyer." The "flyer" is a bulletin about the crime that law enforcement published on April 7, 2006, 10 days after the murder.

According to Zogg, Flint came to his house a day or two after the shooting. Eric O'Brien was there at the time. Flint told Zogg and O'Brien that he and a friend "tried to rob some lady" and that "she fought back" or "put up a struggle." Flint said he "heard a gunshot" and "took off running." A detective asked Zogg if Flint had said anything about the victim "being a cop or anything like that," and Eddie responded that Flint "didn't say anything like that."

At some point, Zogg saw the flyer about the murder posted on a bulletin board at his place of work. He took the flyer and showed it to O'Brien.

According to O'Brien, Flint came to Zogg's house and said that Gonzalez "tried to rob somebody," that Flint "heard shots," and then "they took off." At some point, maybe "a couple weeks after" the murder, Flint saw the flyer about the murder and acknowledged to O'Brien that he was involved in the crime. Flint told O'Brien that the victim "was a cop," and she had "a gun." Flint also told O'Brien that he "saw the victim's badge." Flint did not tell O'Brien where Rosa had the gun or badge.

In August 2006, Flint and Gonzalez were in custody on unrelated robbery charges. They were initially placed in different holding cells, each with undercover officers posing as fellow inmates-a so-called Perkins^[3] operation. Later, Flint and Gonzalez were placed together in a cell. Their conversations with the undercover officers and each other were audio and video recorded. When an undercover officer asked Flint why Gonzalez shot Rosa, he replied: "[The] bitch pulled out a gun" and it was "a bigger caliber gun than the one we had." Although Flint made many statements during the Perkins operation incriminating himself and Gonzalez in the attempted robbery of Rosa and incriminating Gonzalez in Rosa's murder,^[4] Flint did not...