People v. Jackson

THE PEOPLE, Plaintiff and Respondent, v. TYSHAUN JACKSON et al., Defendants and Appellants.

B256011

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

May 26, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. VA110848, VA120231)

APPEAL from judgments of the Superior Court of Los Angeles County, Michael L. Schuur, Temporary Judge (pursuant to Cal. Const. art. VI, § 21); Margaret M. Bernal, Leland H. Tipton, Dewey L. Falcone, and Michael L. Cowell, Judges. Judgments modified, conditionally reversed, and remanded with directions.

George L. Schraer for Defendant and Appellant Tyshaun Jackson.

Barbara S. Perry, under appointment by the Court of Appeal, for Defendant and Appellant Garveia Brandon Freeny.

Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters, Assistant Attorneys General, Victoria B. Wilson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Tyshaun Jackson and Garveia Brandon Freeny appeal from the judgments entered upon their jury convictions of first-degree murder, shooting at an occupied vehicle, and several firearm offenses.

Jackson argues that the court violated his right to counsel of choice and prejudicially erred in instructing the jury with the natural and probable consequences doctrine for aider and abettor liability. Jointly, appellants contend their Fourth Amendment rights were violated by the warrantless search of cell phones in their possession; their trial attorneys were ineffective for failing to object to the prosecutor's introduction of hearsay evidence, investigate and present exculpatory evidence, and impeach the prosecution's timeline at trial; the prosecution destroyed or failed to turn over exculpatory evidence; appellants were deprived of their right to a speedy trial; and the court erred in denying their motions for a new trial. Freeny also contends that his post-trial counsel had a conflict of interest and offered ineffective assistance. We do not agree with these contentions.¹

Respondent concedes that appellants' sentence for shooting at an occupied vehicle should be stayed under Penal Code section 654,² and we modify the judgments accordingly. We also conditionally reverse the judgments and remand the case for a new in-camera hearing on appellants' Pitchess motions.³

FACTUAL AND PROCEDURAL SUMMARY

A few minutes before 10 a.m. on June 5, 2009, the victim, Edgar Kipp Eastman, was fatally shot while seated in a black Lexus. The vehicle was parked in front of a liquor store near the intersection of Pioneer Boulevard and Centralia Street in Lakewood.

Witnesses Robert Betts and his sister Nancy were stopped at the traffic light westbound on Centralia Street. Nancy was the driver, Robert the passenger. Robert heard seven to nine shots coming from the direction of the liquor store at the northwest corner. He saw that a white Cadillac CTS with chrome wheels and tinted windows was double parked next to a black Lexus on Pioneer Boulevard. He could not see the shooter because the Cadillac blocked his view of the Lexus, but he thought the sound of shots came from the Cadillac. Robert was looking at the car when he heard the shots. It had caught his attention because he worked on General Motors cars and liked the CTS model. The Cadillac rolled slowly into the intersection, turned right on Centralia Street, and headed west. Robert and his sister followed it until it disappeared from view over the hill spanning the 605 Freeway. Nancy turned the car around when she saw a sheriff's deputy travelling towards them on Centralia Street and returned to the scene of the shooting to give a statement. Both Robert and Nancy identified the Cadillac in which appellants were arrested later that morning as the car they had seen at the crime scene.

Witness Judy Sully was eastbound on Centralia Street. As she approached the intersection with Pioneer Avenue, she heard gunshots coming from the northwest corner of the intersection. She believed the shots came from a four-door Cadillac, which was next to another car that appeared to move with each shot she heard. The Cadillac turned west on Centralia Street and went over the freeway. Its windows were down, and Sully could tell there were two African American individuals inside, although she could not see them well. She saw a sheriff's deputy coming down the hill, and after calling her husband, returned to the crime scene. Sully was able to identify the car but not the occupants.

The murder was investigated by the Los Angeles County Sheriff's Department. Deputy Solorio was the first to arrive. Based on what he learned from witnesses at the scene, he broadcast that the suspect car was a white Cadillac with large chrome rims, last seen heading west on Centralia Street, and that there were two or three black males in thecar. Deputy Niebla, who arrived next, made a similar broadcast.⁴ Deputy Esquivel arrived after Deputy Niebla. After speaking to an eyewitness named Samuel Torres, she broadcast that the suspect car was a four-door white Cadillac with tinted windows, headed west on Centralia Street, and that there were two black males in the car.

About a mile away from the scene, Deputy Nowell heard Deputy Niebla's broadcast and almost immediately spotted a white Cadillac matching the broadcast description. He made a U-turn and followed it. After running a check on its license plate, Deputy Nowell notified dispatch that he was following the suspect car.

After backup arrived, Deputy Nowell pulled over the Cadillac in a parking lot. Jackson was the driver; Freeny the passenger. The two men were handcuffed and placed in separate patrol cars. Their hands were later tested for gunshot residue without having been bagged. Freeny's kit yielded several particles characteristic of, or consistent with, gunshot residue; Jackson's did not. The prosecution's gunshot residue expert testified at trial that the presence of gunshot residue could have been due to handling or shooting a gun, being close to a shooting, or to environmental contamination. The kit from inside the Cadillac yielded numerous interesting particles, and the expert opined the interior of the car had been in "a gunshot residue environment at some point in time." Jackson's shirt was tested a year later; it yielded one characteristic particle and several which were inconclusive. Freeny's shirt was not preserved or tested.

A loaded nine-millimeter gun found in a space behind the Cadillac's glove compartment was not the gun used in the shooting. The route taken by the Cadillac over the freeway was searched, but no weapon was found. The murder scene was not searched for a weapon. Nine casings found at the scene all came from a 45-caliber gun. The casings were spread over a large area in front of and behind the Lexus. The prosecution's firearms expert testified at trial that bullet holes in the driver's door of thatcar indicated a northwest bound trajectory with a downward angle. If the bullets were fired from a car, the shooter's arm would have been extended outside the car since the casings were expelled onto the street. It was likely that the shooter was moving when the shots were fired because of the distance between the casings, but the expert could not determine whether the shots were fired from a moving vehicle.

During additional searches of the Cadillac, two cell phones were found in the center console. A magazine addressed to victim Eastman's home address and a postal delivery slip with his name and address were located respectively on the back seat and in the passenger seat back pocket. Deputy Robison searched the cell phones on the evening of the shooting and retrieved the number of one of the phones. The phone was registered to Tango 8, Inc., with an address in Long Beach. Cell phone tower records indicated that, on the morning of the shooting, calls to and from that phone accessed towers in Buena Park at 7:46 a.m., La Palma at 7:56 a.m., Cerritos at 7:59 and 8:00 a.m., Artesia at 8:04 a.m., Hawaiian Gardens between 8:53 and 9:13 a.m., Cerritos at 9:48 a.m., and Lakewood at 10:01 a.m.

Eastman had homes in Artesia and Buena Park. He had been seen at a fitness center in Cerritos that morning. He had some unidentified business relationship with Millie Lynette Williams, whom Jackson listed as next of kin on his booking slip. Williams was the secretary and agent for service of process of two corporations named "24 Tango Maintenance, Inc." and "Xpress Funding, Inc."; Eastman was their chief executive officer. Williams's listed address for these corporations was the same address in Long Beach to which the Tango 8, Inc. phone found in the Cadillac was billed.

Appellants were initially charged in case No. VA110848. At the preliminary hearing in that case, conducted in September 2009, Deputy Robison testified that witness Torres had identified appellant Freeny at a field showup and from a six-pack photo array. Appellants were held to answer, and a number of continuances ensued, some of them due to discovery issues. The court conducted an in-camera hearing on appellants' Pitchess motions and found no discoverable records in the personnel file of the officer who conducted the additional search of the Cadillac. In June 2011, the prosecution advisedthe court that it was "having a witness issue," dismissed case No. VA110848, and refiled it as case No. VA120231. At the preliminary hearing in the latter case, appellants objected to Deputy Robison's testimony about Torres's identification of Freeny because Torres had died. Their motions to dismiss the charges for insufficient evidence were denied.

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