People v. Howard

324 Cal.Rptr.3d 848

The PEOPLE, Plaintiff and Respondent,

v.Jermaine Randy HOWARD, Defendant and Appellant.

H050156

Court of Appeal, Sixth District.

Filed August 27, 2024

Trial Court: County of Santa Clara, Trial Judge: Honorable Robert B. Hawk (Santa Clara County Super. Ct. No. C2103529)

Joseph Doyle, by appointment of the Court of Appeal under the Sixth District Appellate Program, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Alice B. Lustre, Supervising Deputy Attorney General and J. Michael Chamberlain, Deputy Attorney General, for Plaintiff and Respondent.

Danner, J.

Defendant Jermaine Randy Howard shot a man at an unlicensed nightclub in San Jose. At trial, Howard testified that he acted in self-defense. A jury rejected Howard’s claim of self-defense and convicted him of second degree murder.

After the jury’s verdict but prior to sentencing, Howard filed a motion alleging the prosecutor had violated the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 3.5; Pen. Code, § 745¹) (hereafter RJA or Act). Howard asserted the prosecutor violated the RJA by cross-examining him about his connection to East Palo Alto. The trial court denied the motion, deciding Howard failed to make a prima facie showing of an RJA violation, and sentenced him to prison for 19 years to life.

On appeal, Howard contends the trial court erred in denying his motion because he had demonstrated violations of the RJA and due process clause. Howard further contends the prosecutor violated the Act and due process by arguing to the jury that the victim’s use of the n-word before the shooting was not offensive in Howard’s "world."² Additionally, Howard asserts that the jury instructions misstated the law regarding murder, imperfect self-de- fense, and heat of passion and the alleged errors were cumulatively prejudicial.

For the reasons explained below, we decide that the trial court erred in concluding that Howard had not made a prima facie showing of a violation of the RJA as to the prosecutor’s cross-examination. We thus conditionally reverse the judgment and remand for further proceedings on Howard’s motion. We reject Howard’s claim of instructional error.

I. FACTS AND PROCEDURAL BACKGROUND

A. Procedural History

In January 2022, the Santa Clara County District Attorney filed an amended information (information) charging Howard with the murder of Reinol H.M.³ (§ 187, subd. (a); count 1). The information further alleged that Howard personally and intentionally caused Reinol’s death with a handgun when committing the murder (§ 12022.53, subd. (d)) (hereafter firearm enhancement), personally used a handgun (§ 12022.5, subd. (a)) when committing or attempting to commit the lesser included offense of voluntary manslaughter (§ 192) and was out of custody on bail when he committed the charged offense (§ 12022.1, subd. (b)) (hereafter out-on-bail enhancement). In addition, the information alleged various circumstances in aggravation (Cal. Rules of Court, rule 4.421(a), (b); § 1170, subd. (b)).

In March 2022, the jury convicted Howard of second degree murder and found the firearm enhancement allegation true.⁴ In a bifurcated proceeding, the trial court found true the out-on-bail enhancement allegation.

In May 2022, Howard moved to vacate the verdict and for a new trial pursuant to section 745 (hereafter RJA motion). Howard alleged violations of the RJA and his due process rights based on the prosecutor’s "repeated questions" during cross-examination "trying to connect [Howard] to East Palo Alto." Howard also filed a sentencing brief and request to strike the firearm enhancement under sections 1385 and 12022.53.

In June 2022, the trial court heard argument on Howard’s RJA motion and denied it. The court concluded that Howard had failed to make a prima facie showing of a violation of the Act. The court did not explicitly address Howard’s due process claims.

The trial court sentenced Howard to 15 years to life in prison for second degree murder (count 1) consecutive to four years for a firearm sentencing enhancement (§ 12022.5, subd. (a)). The court effected this sentence by, in the interest of justice (§ 1385, subd. (c)(1), (2)), striking the punishment for the firearm enhancement found true by the jury, dismissing that enhancement allegation, and imposing a consecutive four-year midterm enhancement under section 12022.5, subdivision (a). The court also struck the punishment for the out-on-bail enhancement and dismissed that enhancement allegation.

B. Evidence Presented at Trial

1. Prosecution Evidence

In the early morning hours of February 20, 2021,⁵ Reinol was at an unpermitted "after hours nightclub, strip club" in the basement of a building in San Jose. Anthony Watson operated the club with another man, Tameem Raheem. Reinol and Watson were acquainted.

Howard (aka "Maine") arrived at the club around 5:00 a.m. with two men and a woman named Marissa C.⁶ There were approximately 20 people in the club. Howard ordered a bottle of liquor.

Approximately 10 to 15 minutes after Howard arrived, he greeted Reinol with "a little handshake." According to prosecution witness Tyra P., Reinol had previously attended an afterhours event hosted by Howard on the east side of San Jose (in March 2020). Reinol and Tyra had also attended a couple of gatherings at Howard’s house in East San Jose (in April or May 2020). On cross-examination, Tyra testified that Reinol and Watson were from Oakland and grew up in the same Oakland neighborhood.

Josephine V. was a waitress at the club on the night of the shooting (February 20). She knew both Reinol and Howard. Shortly after 5:00 a.m., while Josephine was in the "kitchen area" of the club, she heard gunshots. After waiting "a little bit," Josephine exited the kitchen area and saw Reinol sitting on a couch. He had been shot. Josephine did not see any guns. As people crowded around Reinol, someone said, " ‘It was Maine.’ "

Dominicqueca T. was working as a dancer at the club that night and standing next to Reinol when he was shot. Dominicqueca testified that she knew Howard but did not see him there. She also testified that prior to the shooting, Reinol had been "chilling" on a couch in front of a stripper pole, "smoking, doing his thing." She did not hear any arguments immediately before the shooting.

Dominicqueca heard a loud noise that startled her and saw Reinol (who was sitting on the couch) "put his arms up." He placed his left hand in front of his face in an apparent "blocking move." Dominicqueca also saw a person approaching from about eight feet away with "a bubble jacket, and a gun" that had an extended magazine. According to Dominicqueca, the shooter was "walking and aiming" the gun. The shooter’s arm was extended at a downward angle, pointing toward Reinol on the couch. Dominicqueca heard two shots. She did not look at the shooter’s face and ran away.

After the shooting, Dominicqueca saw a man wearing a bubble jacket "walking casually … up the stairs" before the lights in the club were fully turned on. The man was walking slowly and normally while others in the club were running. Dominicqueca approached Reinol to render aid. She applied pressure to Reinol’s lower abdominal wound. Reinol "kept saying that, ‘they killed me. They killed me.’ " Dominicqueca did not see Reinol with a gun.

Josephine ran to get her car so she could take Reinol to the hospital. People carried Reinol upstairs to the street and placed him inside Josephine’s car. Josephine drove him to the hospital, where he died later that day.⁷

According to a forensic pathologist, Reinol had been shot twice. He had two entrance wounds (one in his chest and another in his abdomen) and two exit wounds in his back. The entrance wounds were higher on Reinol’s body than the corresponding exit wounds, indicating the bullets passed through Reinol from front to back and downward.

On the couch at the club where Reinol had been sitting, police investigators observed blood and two bullet holes. The police recovered two intact bullets/projectiles from inside the couch. They also located bullet fragments and one cartridge casing at the crime scene. A firearm analysis determined that the two bullets and most of the fragments were fired from the same gun, and the fragments could have come from additional shots.

On March 18, law enforcement officers approached Howard on a street in Santa Rosa to arrest him on a warrant for murder. Howard fled from the officers, "jumping over fences." An officer yelled " ‘Stop. Police,’ " but Howard continued to run until the officers caught up to him.

At trial, the prosecution introduced a letter that Howard had written on an "Inmate Request Form" and was seized by police from Marissa on April 2. In the letter, Howard said (among other things) " ‘Do not speak of this letter to anyone.’ " He also indicated he would be pleading " ‘self-defense.’ "⁸

2. Defense Evidence

Howard presented the testimony of five police officers who had spoken with Jo- sephine at the hospital and collected Reinol’s belongings. Howard also called an expert witness on cell phone record analysis. The expert testified that after the shooting, a phone associated with Reinol had connected to cell towers in the same vicinity as Watson’s phone, including in Oakland.

Howard testified on his own behalf. He told the jury that he was born in "Palo Alto" and raised "[b]etween Menlo Park and San Jose." He acknowledged suffering a prior arrest in November 2018 for possessing a loaded gun in his car and prior convictions in July 2008 for felony assault with force likely to produce great bodily injury, in April 2007 for felony assault with force likely to produce great bodily injury and misdemeanor false imprisonment, and in April 2006 for giving a false name to a police officer.

On the night of the shooting (February 20, 2021), Howard socialized with...