People v. Harbor

THE PEOPLE, Plaintiff and Respondent, v. TRAVYON CHARLES HARBOR, Defendant and Appellant.

B302806

California Court of Appeals, Second District, Third Division

July 1, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No NA065766, William C. Ryan, Judge. Affirmed in part and dismissed in part.

Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Roberta L. Davis and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

KALRA J.^[*]

Travyon Charles Harbor was convicted of second degree murder and premeditated attempted murder in 2005. Approximately 14 years later, he filed a petition for writ of error coram nobis claiming that the prosecutor failed to disclose secret recordings of witness interviews, and that newly discovered evidence of witnesses recanting their trial testimony proved his actual innocence. Harbor also requested postconviction discovery of evidence related to the recorded witness interviews, among other things. The court denied Harbor's petition and his request for discovery. We affirm the court's denial of Harbor's petition and dismiss his appeal of the court's denial of his request for postconviction discovery.

BACKGROUND

I. Trial

The following factual summary is taken from our opinion in Harbor's direct appeal. (People v. Harbor (Nov 20, 2007, B187911) [nonpub. opn.].)

“[A.] Prosecution evidence.

“Dwayne Saulsberry testified that, on July 26, 2002, at about 6:00 p.m., he drove Kieanii K. and her brother home to... East Cruces Street in Wilmington. Saulsberry and Kieanii [K.]'s uncle, Timothy Fox, got into an argument. Kieanii [K.] told Saulsberry to leave. As he was returning to his car, Saulsberry heard Fox whistle. Then, just as Saulsberry started to drive away, a vehicle ‘came charging at' him. To avoid a head-on collision, Saulsberry swerved. The oncoming vehicle sideswiped Saulsberry's car. Saulsberry heard gunfire, six or seven rounds fired in rapid succession as he kept driving away. He reached the end of the block and turned onto Watson Avenue. Saulsberry did not see who was shooting at him.

“When the police subsequently searched Saulsberry's car, they found 11 rounds of.32-caliber ammunition. Saulsberry claimed the ammunition was old and that he did not know it was in his car. He denied having had a gun with him on the day of the shooting.

“Kieanii [K.] told police^[1] that during the argument between Fox and Saulsberry, Fox ‘was basically belittling him because of his handicap.' (Saulsberry was missing his right leg and he had suffered some kind of permanent injury to his left arm.) Saulsberry pulled a gun from his pocket, showed it to Fox and said, ‘I'm not a punk. I can take care of myself.' Kieanii [K.] told Saulsberry, ‘Look, you better get out of here. They are gonna shoot you.' According to Kieanii [K.], Saulsberry ‘went back to his car, threw the gun on the floorboard, got into his car, and... started to take off. And then she saw [defendant Harbor] come from a parked car, shoot at [Saulsberry, who] collided into a car that was coming up the street, and then... [Harbor] began to shoot as [Saulsberry] kept going west until he got to Watson.'^[2] Kieanii [K.] did not see anyone except Harbor fire a gun during this incident.

“Regina Smith testified she lived with her boyfriend, Willie Harbor, who was defendant Harbor's uncle, across the street and west of Kieanii [K.]'s house. At the time of the shooting, Smith was sitting in her Volkswagen Rabbit in front of the Harbor house smoking PCP. Smith told police she saw Saulsberry run to his car and start to drive away. A blue Cadillac appeared and collided with Saulsberry, who kept driving down East Cruces. Then Harbor, who was standing in the driveway of the Harbor house, started shooting at Saulsberry: ‘[T]hen the car went towards Watson on Cruces and [Harbor kept] shooting at the car....' When Saulsberry reached Watson Avenue, he turned left and Smith heard more gunshots. Later, after the ambulance came, Smith went into the house and saw Harbor trying to climb through the back window. When she asked what he was doing Harbor said, ‘I got to get out of here.' Smith did not see anyone besides Harbor shooting a gun during the incident.

“Walfred Marroquin and his wife, Rosa Garcia, lived... across Watson Avenue from, and west of, both Kieanii [K.]'s house and the Harbor house. When the shooting occurred, Marroquin and Garcia were just returning home. Garcia got out of the car and went to open the driveway gate. Then she fell to the ground. Marroquin ran over and saw she was bleeding from the head. Garcia never regained consciousness and she died two days later. It turned out she was six weeks' pregnant. Detective Goodman attended the autopsy and saw a bullet entry wound in the side of Garcia's head.

“Leticia Huerta lived... a couple of houses west of Kieanii [K.]'s house. Huerta heard the gunshots and, when the shooting was over, she looked out her bedroom window. She saw Fox shaking hands with Harbor on the sidewalk across the street. Huerta told police she heard a single shot, a pause, and then rapid gunfire.

“Huerta's husband, Rigoberto Martinez, looked out the living room window when the shooting stopped. He saw Harbor by the sidewalk across the street, crouched behind a white Cherokee which was parked in front of 1405 East Cruces Street, behind Smith's car. Harbor appeared to be putting a gun into his waistband. Martinez then saw Fox and Harbor shaking hands in a congratulatory way.

“Five.40-caliber bullet casings were found spread out in front of 1405 East Cruces Street. One casing was found on the sidewalk close to a gate belonging to 1405 East Cruces Street, and four casings were found in the driveway area. Detective Goodman testified this physical evidence was consistent with Martinez's statement about where he had seen Harbor when the shooting stopped.

“Detective Goodman testified it appeared gunfire had hit the front of a Buick Regal, which was parked very close to where Garcia had been standing when she was shot.

“[B]. Defense evidence.

“Harbor's uncle, Willie, testified he was inside the house when he heard shooting. He went outside when it stopped and saw Smith sitting in her car, smoking cocaine. Smith said to him, ‘It's another drive-by shooting.' Willie did not see Harbor or anyone with a gun.”

“Harbor's cousin, Tim Fox, testified he had been at Kieanii [K.]'s house that afternoon. He denied having seen Saulsberry there. Fox testified he was in the yard when he heard shooting and he got on the ground to avoid being hit. When he got up, he saw Smith in her parked car and went over to check on her. Fox did not see Harbor; nor did he see anyone with a gun. He denied having told police a car drove up, that the driver spoke to Fox and a man named Shane, but Fox ignored the driver because he didn't know him.

“[C]. Rebuttal evidence.

“Detective Goodman testified he interviewed Fox, who said he was in front of Kieanii [K.]'s house, talking to someone named Shane, when a man drove up and said, ‘ “What's up, homey?” or, ‘ “Hey, what's up?”' Fox did not know the man, so he ignored him. The man drove away and a few seconds later Fox heard five or six gunshots.” (People v. Harbor, supra, B187911 [pp. 2-5].)

II. Procedure

On August 25, 2005, a jury convicted Harbor of second degree murder (Pen. Code, ^[3] § 187, subd. (a)) and premeditated attempted murder (§§ 664, 187, subd. (a)), with firearm and prior serious felony conviction enhancements (§§ 667, subd. (a)-(i), 12022.53). The court sentenced Harbor to 200 years to life.

Harbor moved for a new trial on October 5, 2005, arguing that there was newly discovered evidence that he acted in self-defense. He submitted interview statements from Aretha Bonner who stated she saw Saulsberry fire multiple shots towards Harbor, and Natealie Sherman who stated that only Saulsberry and an unidentified Hispanic man fired shots towards the victim Garcia. The court denied the motion and Harbor appealed.

We affirmed the court's denial of Harbor's motion for a new trial but remanded the matter for resentencing. On remand, Harbor was resentenced to 95 years to life.

In May 2008, Harbor moved again for a new trial, arguing that newly discovered evidence showed that he acted in self-defense and the prosecutor failed to disclose exculpatory evidence. In addition to the interview statements from Bonner and Sherman, Harbor attached handwritten investigation notes from two detectives that indicated they interviewed a witness who saw Saulsberry shoot three times from his car. The court construed Harbor's motion for a new trial as a petition for writ of habeas corpus and denied the petition. “The court finds that the ‘new evidence' of... Sherman was previously presented in a new trial motion which was denied and affirmed on appeal. The statement of... Bonner does not exonerate the defendant as to the final two shots and does not justify a habeas corpus hearing.”

From July 2008 through March 2018, Harbor filed multiple habeas petitions, including three in this court, two in our Supreme Court, and one in the United States District Court. Each petition was denied.

In April 2019, Harbor filed another habeas petition in the superior court. The petition alleged that: (1) the prosecutor committed a Brady^[4]violation by failing to disclose evidence related to detectives' recordings of witness interviews; (2) the prosecutor and police obtained Smith's false testimony by bribing her with promises to return her children to her custody and to help her...