People v. Laanui

59 Cal.App.5th 803

274 Cal.Rptr.3d 43

The PEOPLE, Plaintiff and Respondent,

v.Elliot Kimo LAANUI, Defendant and Appellant.

B297581

Court of Appeal, Second District, Division 1, California.

Filed January 8, 2021

Certified for Partial Publication.^*

Valerie G. Wass, 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, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

BENDIX, Acting P. J. Defendant Elliot Kimo Laanui appeals from the judgment after his conviction for six offenses committed between 1995 and 2017, including murder, solicitation of murder, and assault with a firearm. On appeal, defendant argues (1) the trial court abused its discretion by admitting into evidence an insufficiently redacted photograph of defendant shown to witnesses for purposes of identifying skin tone; (2) the prosecution committed misconduct during closing argument by appealing to the jury's sympathy for the murder victim and his family; (3) the trial court should have granted defendant a new trial in light of the erroneous admission of the photograph and the prosecutorial misconduct; (4) imposition of a restitution fine and court assessments violated defendant's right to due process; (5) defendant's counsel was ineffective to the extent he did not object to errors below; (6) the trial court erroneously doubled the sentence on one count based on an unpleaded prior strike conviction; (7) the trial court imposed a firearm enhancement under the wrong statute; (8) the trial court wrongly denied defendant presentence conduct credits; and (9) the minutes failed to state that the trial court struck five prior prison term enhancements.

In the published portion of this opinion, we address defendant's sixth claim of error, and hold that the information adequately pleaded the prior strike as to all counts, and the trial court did not err in doubling the sentences of all eligible offenses.

In the unpublished portion of the opinion, we hold that the trial court did not abuse its discretion by admitting the photograph, nor was the admission unduly prejudicial. The contentions regarding prosecutorial misconduct and the imposition of fines and fees are forfeited, and also fail on the merits. In the absence of prejudicial error, defendant was not entitled to a new trial, nor did he demonstrate ineffective assistance of counsel for purposes of this direct appeal. The Attorney General agrees with defendant, as do we, that the trial court imposed a firearm enhancement under the incorrect statute, that defendant is entitled to conduct credits, and that the minutes do not reflect the trial court's striking of the prior prison term enhancements. We direct the trial court to correct the errors on which the parties agree, but otherwise affirm the judgment.

FACTUAL BACKGROUND

We limit our summary of the evidence to the facts relevant to the resolution of this appeal, and do not attempt to summarize all evidence presented at trial.

1. Prosecution evidence

a. Murder and solicitation of murder

i. Homicide and initial investigation

On November 11, 1995, Edward Emery (Emery) and his wife Jacqueline Emery went to a supermarket in Redondo Beach. After buying some groceries, they returned to their vehicle in the store parking lot. A man suddenly appeared, grabbed the front of the shopping cart, and began shooting a gun at Emery. Multiple bullets struck Emery, who fell to the ground. Emery died from his wounds.

Julia Lindman, who was in the parking lot at the time of the shooting, heard gunfire and saw a "dark-skinned male" pointing a gun in her direction and firing it.

Frank Dozier was in a coffee shop near the supermarket parking lot at the time of the shooting. Through the window of the coffee shop, Dozier saw a man shooting another man with a nickel or silver-colored revolver. The shooter then fired at other people in the parking lot. The shooter got into a dark-colored minivan, which drove away.

Annette Silas was loading groceries into her car when she heard gunshots. She did not see the shooter. Silas saw a dark Chevy Astro van, possibly navy blue, exit the parking lot.

Jacqueline Emery described the shooter as having skin tone of "[c]offee with cream, a lot of cream." She testified that after the shooting she was unable to find her husband's money clip. The prosecution suggested robbery as a likely explanation for the shooting.

Police investigating the crime scene found freshly deposited saliva on the window of a vehicle in the parking lot. The police collected samples of the saliva.

In 2011, John Skipper, a retired police captain investigating unsolved crimes for the Redondo Beach Police Department, had the saliva analyzed for DNA evidence.¹ The DNA matched defendant's profile in a nationwide DNA database. After further investigation, Skipper determined that defendant matched the physical profile of the shooter, his residence at the time was about four miles from the crime scene, and a year before the murder he had been arrested driving a black Chevy Astro van.

Corroborating Skipper's testimony, the prosecution presented evidence that the DNA in the saliva collected at the scene of the murder matched defendant's DNA. The prosecution also presented a police report indicating defendant was driving a black Chevy Astro van on August 17, 1994. A registration record from August 2000 to August 2001 indicated the van was registered to defendant.

ii. Defendant speaks with jailhouse informants

In 2012, Skipper learned that defendant had violated his parole and had him arrested. With the assistance of the Los Angeles County Sheriff's Department, Skipper and his partner, Detective Rick Peterson, arranged a "Perkins operation," in which two confidential informants, Jose and Raymond, were placed in a cell with defendant while wearing body wires.

In order to "stimulate conversation" about the murder between defendant and the informants, Skipper and Peterson interviewed defendant. They told him that they were investigating a murder from 1995, that they suspected he was involved, and that they had found his DNA at the crime scene. They mentioned Jonathan Ross, also known as "Never," a known confederate of defendant, along with other names, to see if that would provoke a reaction in defendant. Skipper testified he had no idea if Ross was involved in the homicide, but knew Ross and defendant had been arrested together twice before.

Back in the cell with the informants, defendant discussed the murder investigation with them. In that conversation, defendant never directly admitted committing the murder, and indeed appears to have denied it repeatedly. There was extensive discussion, however, about Ross and the possibility that he had informed on defendant, the relevant portions of which we summarize below.

Jose first suggested a "rat" had told the police that defendant was involved in the murder. Raymond confirmed with defendant that the police had mentioned Ross, whom Raymond referred to as Never. Jose said, "Anyone who was there with you and they were, that's your fucking mole." He continued, "There's only one way to deal with them. You're gonna have to get to them."

Later, defendant asked the informants what he should do. Raymond said that maybe the police had Ross and "the other fool."² Jose said, "Eliminate the fucking rat and get rid of the problem." Raymond agreed "someone's telling on you," and "[i]t kinda looks like Never ...." Jose asked if defendant thought Ross was informing on him. Defendant said he had also heard from some "homies" that Ross was "a rata."

Raymond said defendant could have Ross "whacked, but that's up to you." Jose said he and Raymond could find Ross.

Later, Jose again asked if defendant believed Ross "snitched" on him, and defendant said yes, because Ross had been "acting weird" as a result of defendant having sex with and eventually marrying Ross's girlfriend. Asked what defendant would do if he got out of custody, defendant said he would go to Ross and "grab him," and "get it out of him," presumably referring to finding out why Ross informed on him.

After further discussion, Raymond asked, "What are we gonna do[,] homes? Fucking whack him?" Defendant said, "Yeah. I need you guys to, uh, help me out. A favor for a favor, it would be just like the movies."

Later, under the guise of wanting to make sure Ross was the correct person to kill, Jose asked if defendant was sure that Ross "knows what went down, and you know for a fact that it was him." Jose said, "Now, if you know that he's the fucking rat and he's the only one that knows, then you tell me that you know that it[’]s him ...." Defendant demurred, stating, "I can't say all that, ‘cause as far as I know, that shit never happened." He surmised from what the police had told him during his interview, however, that it was Ross who had informed on him. Jose said, "But at the same time, right, you want me to fucking take this fool out because he's a fucking witness, period, right?" Defendant said, "Yeah."

They discussed price, with Raymond saying he might ask for defendant's car and a "G," to which defendant did not object.

iii. Defendant communicates with an undercover deputy posing as a hitman

An undercover sheriff's deputy, Dylan Navarro, posed as a hitman and met with defendant at the county jail. Due to "human error," only Navarro's side of the conversation was recorded. At trial, Navarro testified as to what was said.

Navarro intimated to defendant that he had been sent by Jose and Raymond. He asked if defendant still wanted to move forward with the plan discussed with Jose and Raymond, and defendant nodded yes. They discussed payment of $1,000 and an old car, and Navarro said if defendant was unable to pay, he could work for Navarro in a criminal capacity. Navarro testified he gave defendant multiple...