People v. Mason

232 Cal.App.4th 355

181 Cal.Rptr.3d 98

The PEOPLE, Plaintiff and Respondent,

v.Michael Baraka MASON, Defendant and Appellant.

D063793

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

Filed 12/15/2014

Certified for Partial Publication.^*

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 429 et seq.

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Reversed in part and affirmed in part as modified. (Super. Ct. No. SCD214650)

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

McCONNELL, P.J.

A jury convicted Michael Baraka Mason of three counts of first degree murder (Pen.Code, § 187, subd. (a)) ¹ and found true the special circumstances of robbery-murder (§ 190.2, subd. (a)(17)) and multiple murders (§ 190.2, subd. (a)(3)) as to each. The jury further convicted Mason of one count of attempted murder ( §§ 187, subd. (a), 664); two counts of attempted robbery ( §§ 211, 664); one count of burglary (§ 459); five counts of false imprisonment by violence (§§ 236, 237, sub.(a)); one count of assault with a firearm (§ 245, subd. (a)(2)); two counts of shooting at an inhabited dwelling (§ 246); and four counts of possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury also found true several gang and firearms-related sentencing enhancements. (§§ 186.22, subd. (b)(1), 12022.53, subd. (d).) Mason admitted suffering two prior serious felony convictions under section 667, subdivision (a)(1), and three “strike priors” for purposes of section 667, subdivisions (b) through (i).

Following a penalty phase trial, the jury fixed the penalty for one of the murder counts as life imprisonment without the possibility of parole. The jury was unable to reach a verdict on the penalty for the other two murder counts, and the court declared a mistrial. The prosecution declined to retry the penalty phase as to those two counts.

The court sentenced Mason to nine consecutive terms of life imprisonment without the possibility of parole. The nine terms consist of one term for each count of murder, which were then tripled pursuant to the “Three Strikes” law. (§ 667, subd. (e)(2).) In addition, the court sentenced Mason to an indeterminate term of 337 years and six months to life imprisonment, plus an additional 110 years.

Mason appeals, contending (1) the court erroneously admitted the prior testimony of one victim, Hana Jabbar, after finding her unavailable under Evidence Code section 240, subdivision (a)(4) and (5); (2) the court erroneously admitted the out-of-court statements of an informant, Marquis Veal, allegedly recounting statements made by Mason's accomplice, Terrill Bell, which the court found were statements against interest under Evidence Code section 1230; (3) the evidence does not support Mason's multiple convictions for possession of the same firearm, on different days, because that crime is a single, continuous offense; and (4) the sentences of life imprisonment without parole should not have been tripled pursuant to the Three Strikes law.

In the unpublished portions of this opinion, we conclude Hana Jabbar's testimony was properly admitted and any error in admitting Marquis Veal's statements was harmless. However, we agree the evidence does not support multiple convictions for firearm possession based on Mason's possession of the same gun on different days. We also agree that the Three Strikes law does not provide for tripling sentences of life imprisonment without the possibility of parole. We discuss the latter two issues in the published portions of this opinion below. In light of our conclusion, we therefore reverse three of Mason's four convictions for firearm possession and modify the judgment to reflect a single life sentence without parole for each first degree murder conviction. In all other respects, the judgment as modified is affirmed.

FACTS

Mason, also known as “Don Diego,” is a documented member of the Lincoln Park criminal street gang. Lincoln Park's members have been found responsible for murders and other criminal acts. Mason is an older, more established member of the gang, known as an “original gangster” or “OG.” Other established or OG members of Lincoln Park included Tamoyia Morris, Terrill Bell, and Elliott Perry. In statements to law enforcement, Mason described Morris and Bell as his close friends.

In a gang like Lincoln Park, younger members of the gang are often expected to support older members like Mason. One younger member of Lincoln Park was Z.Z. Jabbar.² Z.Z. was a successful drug dealer. He was known for flaunting his wealth, which is called “flossing.” Morris, as an established member of Lincoln Park, offered to protect Z.Z. in exchange for part of Z.Z.'s drug revenues. After Z.Z. did not accept Morris's offer, Morris severed his relationship with Z.Z.

Z.Z.'s sister, Hana, lived in a house on Velma Terrace in San Diego. The house was located within the geographic territory of the Lincoln Park gang. Hana's ex-husband purchased the house for her. Police observed Z.Z. coming and going from the house.

At the house, Hana had hoped to run an assisted living home for individuals with mental illnesses. Hana was unable to move the project forward, however, and she found roommates instead. One roommate was Sascha Newbern. Newbern was romantically involved with Meico McGhee, who was Z.Z.'s and Hana's brother. McGhee was also Newbern's pimp. McGhee came to the house often, though he did not live there. Preston and Stacey Adams also lived with Hana and Newbern at the Velma Terrace house.³

On November 25, 2005, the day after Thanksgiving, Hana and Preston woke up early and went to work. Sometime afterwards, Stacey awoke to the sound of strange men in the house. When she opened her bedroom door, a man appeared wearing a ski mask and holding a gun. The man tied Stacey's hands and feet, blindfolded her, and asked her where “the money” was. Before she was blindfolded, Stacey observed Newbern tied up as well. At least two men were in the house, and they were speaking via walkie-talkies to at least one other man outside. They were discussing “the money” and using Hana's name.

Preston arrived home in the early afternoon. He was confronted at the front door by a man with a gun and a bandana or ski mask over his face. Preston was blindfolded, and his hands were tied behind his back. He was led to the room where Stacey was tied up. The men brought Newbern into the room as well. Newbern was crying hysterically. The men threatened to kill her if she did not quiet down.

The men were looking for $500,000, which they believed to be in the house. The men asked Preston and Stacey where the money was; Preston and Stacey were not aware of any money. The men used words typical of Crips criminal street gangs, but Preston and Stacey believed they were trying to hide the fact that they were actually Bloods. At one point, they heard the men slip up and use words commonly associated with Bloods rather than Crips. Lincoln Park is a Bloods gang.

McGhee arrived at the house next. After he arrived, he fought with the men. They beat McGhee savagely and demanded to know where the money was. McGhee said he did not know what they were talking about. After the beating, McGhee's breathing was labored. The men threw McGhee into a bathtub in Preston and Stacey's bathroom.

When Hana came home, one of the men met her soon after she entered the doorway. The man was holding a gun and wearing a mask. Hana later identified this man as Mason after seeing Mason's photograph on the internet.

The men bound Hana's hands and feet. The men told Hana they knew her brother Z.Z. had hidden money in the house. (Z.Z. was incarcerated at that point.) The men threatened to kill her, or hurt the others, if she did not tell them where the money was. They poured gasoline on McGhee and threatened to set him on fire. Hana did not know about any money, but she told them to look in the backyard and in a safe to distract them.

Having failed to find the money, the men told Newbern to get into the bathtub with McGhee. They turned up the television volume very loud. There was at least one gunshot. One of the men said to another that he had to “put in work” too. Then at least one other shot was fired. The men fled. Stacey, Preston, and Hana ran from the house and called for help.

Police arrived and found the house ransacked. They discovered McGhee and Newbern bound and gagged in the bathtub. McGhee had suffered two gunshot wounds to the head, one of which had passed through his brain. McGhee also had numerous bruises and lacerations on his head and chemical burns on his body. The chemical burns could have been caused by exposure to gasoline. Newbern suffered a single gunshot wound to the head. She also had chemical burns on her buttocks. Both victims' gunshot wounds were fatal. Three bullet casings were found at the scene. Forensic analysis revealed that they were likely fired from the same gun.

In the bathroom, police found three cigarette butts, a tampon, and a piece of wax paper in a toilet. Police observed urine in the toilet, which Preston had flushed before he went to work that day. DNA analysis of the cigarette butts revealed that one matched Newbern's DNA. Another cigarette butt matched Mason's DNA. The probability that a random man in the African–American population would match the DNA found on that cigarette butt is 1 in 2.1 sextillion individuals. (Mason is African–American.) The cigarettes appeared to have been deposited in the toilet around the same time. Police also found a blood stain on the bathroom door. Later analysis of the stain revealed that it contained a mixture of DNA from McGhee and DNA from Tamoyia Morris.

Although they did not have Hana's...