People v. Goodridge

THE PEOPLE, Plaintiff and Respondent, v. OLIVER DELANO GOODRIDGE, Defendant and Appellant.

B266061

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

October 12, 2016

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA406893)

APPEAL from a judgment of the Superior Court of Los Angeles County, Sam Ohta, Judge. Affirmed as modified with directions.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant, Oliver Delano Goodridge, of first degree murder committed for the benefit of a criminal street gang. (Pen. Code, §§ 186.22, subd. (b)(1)(C), 187, subd. (a).)¹ The jury further found defendant personally discharged a firearm causing the victim's death. (§ 12022.53, subd. (d)). The trial court sentenced defendant to 50 years to life in state prison. We modify defendant's presentence custody credit. We affirm the judgment as modified.

II. THE EVIDENCE

On September 27, 2012, defendant, a gang member, was at a McDonald's restaurant in another gang's territory. Defendant was accompanied by several fellow gang members. The two gangs were not rivals per se; they had what was characterized as a live and let live attitude towards each other. Nevertheless, a member of the other gang challenged defendant. A skirmish ensued during which a member of the other gang punched defendant. The incident was captured on surveillance videotape. Gang culture demanded that defendant retaliate. Defendant recruited several fellow gang members or former members to help him including Dayonte Hull, Quantel Nash and Robert Cobb. Mr. Cobb was on probation and was wearing a global positioning system ankle bracelet. Later that day, the four men returned to the scene of the earlier fight. They were in two cars, Mr. Nash's white Acura Legend and defendant's dark green two-door Lexus coupe. Mr. Hull drove defendant's Lexus.

As to the Acura, defendant concedes it belonged to Mr. Nash. Also, on September 28, 2012, Officer Christopher Soto stopped the white Acura Legend depicted in exhibit No. 63 as found in a salvage yard on November 5 or 6, 2012. Brittany Myvett, Mr.Nash's girlfriend or wife, was driving the Acura. Mr. Nash was the passenger. Mr. Nash's gang moniker was carved into the car's upholstery. Detective Matthew Courtney testified the white Acura captured on surveillance video was the same one stopped by Officer Soto and later found in the salvage yard.

As to the Lexus, defendant concedes it was his. Further evidence regarding the Lexus is as follows. On October 28, 2012, Officer David Hernandez executed a traffic stop of the Lexus depicted in "exhibit [No.] 78," a likely misreference to exhibit No. 38. Defendant, the driver, had been speeding. The Lexus was impounded. Exhibit Nos. 69-72 depict the Lexus in a police tow yard. The license plate No. is 6UDJ833. Detective Courtney testified you can see the worn paint on the roof. The door to the gas cap is missing. A state benefits card in defendant's name was in the center console. The detective identified the Lexus as the one captured on surveillance video in the alley at the time of the shooting.

At the time the defendant was in the front passenger seat of his Lexus. Mr. Cobb rode in the rear of the two-seater Lexus. In an alley near the McDonald's restaurant, defendant shot and killed Sador Fessahaye. Mr. Fessahaye was a musician and a rapper. There was no evidence he was a gang member. The shooting was captured, albeit from a distance, on surveillance tape. Detective Courtney testified: "In viewing the video a number of times, when the second vehicle, which is the darker Lexus-style vehicle, comes to a stop, you can see a[n] individual emerge from the passenger side wearing a white T-shirt, and in my viewing of the video, it appeared that there was small distortions of possible puffs of smoke over the roof of the car at the time [the victim] was standing out next to the vehicle."

Two eyewitnesses saw Mr. Fessahaye's assailant emerge from the Lexus's front passenger side and fire his weapon over the car's roof. Mr. Hull subsequently pled no contest to attempted murder and voluntary manslaughter. He testified against defendant at trial pursuant to a cooperation agreement with the prosecution. Mr. Hull testified defendant was the person who shot Mr. Fessahaye. Mr. Hull's testimony wascorroborated by eyewitness statements, surveillance videotapes, cell phone records, and global positioning system records.

III. DISCUSSION

A. Jury Instructions on Accomplice Testimony

1. Instructions

Defendant challenges the instructions on accomplice testimony. Section 1111 states: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." Consistent with section 1111, the jury was instructed: "An accomplice is a person who is subject to prosecution for the identical offense charged in Count 1 against the defendant on trial by reason of aiding and abetting. [¶] You cannot find a defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense. [¶] Testimony of an accomplice includes any out-of-court statement purportedly made by an accomplice received for the purpose of proving that what the accomplice stated out-of-court was true. [¶] To corroborate the testimony of an accomplice there must be evidence of some act or fact related to the crime which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged. [¶] However, it is not necessary that the evidence of corroboration be sufficient in itself to establish every element of the crime charged, or that it corroborate every fact to which the accomplice testifies. [¶] In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of thecrime. [¶] If there is no independent evidence which tends to connect defendant with the commission of the crime, the testimony of the accomplice is not corroborated. [¶] If there is independent evidence which you believe, then the testimony of the accomplice is corroborated." (CALJIC Nos. 3.10, 3.11, 3.12.)

2. Fundamental fairness and due process

Defendant argues CALJIC Nos. 3.10, 3.11 and 3.12 "presume[] the jury's ability to disregard accomplice testimony" in determining the question of accomplice corroboration. Defendant argues these instructions are fundamentally unfair and violate the federal Fourteenth Amendment due process clause. He relies on Jackson v. Denno (1964) 378 U.S. 368, 376-380 (Jackson), and Bruton v. United States (1968) 391 U.S. 123, 131-136 (Bruton).

In Jackson, the United States Supreme Court found unconstitutional a New York procedure that required a jury to determine whether a non-testifying accomplice's confession was voluntary. The procedure potentially put a jury in the untenable position of having to disregard a truthful confession it found involuntary and assess only the other evidence in determining the defendant's guilt. (Jackson, supra, 378 U.S. at pp. 376-391.) The United States Supreme Court noted: "The jury . . . may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession . . . . That a trustworthy confession must also be voluntary if it is to be used at all, generates natural and potent pressure to find it voluntary. Otherwise the guilty defendant goes free. Objective consideration of the conflicting evidence concerning the circumstances of the confession becomes difficult and the implicit findings become suspect." (Id. at p. 382, fn. omitted.) Further, the high court explained: "If [the jury] finds the confession involuntary, does the jury—indeed, can it—then disregard the confession in accordance with its instructions? If there are lingering doubts about the sufficiency of the other evidence, does the jury unconsciously lay them to rest by resort to the confession? Will uncertainty about the sufficiency of the other evidence to prove guilt beyond a reasonabledoubt actually result in acquittal when the jury knows the defendant has given a truthful confession?" (Id. at p. 388.) The high court emphasized the jury returned only a general verdict. Thus, there was no way to determine whether the jurors found the confession voluntary or even if it resolved the voluntariness issue at all. (Id. at pp. 379-380.)

In Bruton, a defendant and a codefendant were jointly tried. The codefendant's confession implicated the defendant. The codefendant did not testify and thus was not subject to cross-examination. The jury was instructed to consider the confession only with respect to the codefendant. But there was no way to determine whether the jury in fact ignored the confession in assessing the defendant's guilt. (Bruton, supra, 391 U.S. at p. 136.) The United States Supreme Court set aside the conviction. The high court...