People v. McDaniels

THE PEOPLE, Plaintiff and Respondent, v. LAMARR MARQUIS McDANIELS and JOEL JAREA BRITT, Defendants and Appellants.

B250574

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

March 9, 2015

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. GA076378)

APPEALS from judgments of the Superior Court of Los Angeles County. Candace J. Beason and Darrell S. Mavis, Judges. Affirmed in part and reversed in part with directions.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant McDaniels.

Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant Britt.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.

____________________ Defendants Lamarr McDaniels and Joel Britt appeal from the judgments entered following a jury trial in which they were convicted of first degree murder and attempted murder, with firearm and gang findings. McDaniels was also convicted of being a convicted felon in possession of a firearm. Each defendant raises several contentions and McDaniels joins in Britt's contentions. We reverse McDaniels's first degree murder conviction for instructional error, but otherwise affirm.

BACKGROUND

1. The death of Brandon Lee (possible motive for charged offenses)

On January 29, 2008, Brandon Lee was shot and killed. Lee was a member of the Duroc Crips gang. A member of the rival Monrovia Nuevo Varrio gang (MNV) was ultimately charged with Lee's murder. MNV members were also suspected of shooting at Lee six months before he was killed.

Lee was the father of Koteysha Cox's child and a good friend of defendant Britt, who grew up living next door to Lee. In March of 2008, Cox wrote to Larry Alderson, a Duroc Crips gang member who was then in jail, expressing frustration that people were not doing anything about Lee's death. Cox testified at trial she was referring to the police and to witnesses who had not told the police everything they knew.

2. Events in the days before the shooting

Someone broke into Nader's Market in Loma Linda about 2:00 a.m. on February 7, 2009,¹ and stole cartons of cigarettes and the store owner's Heckler & Koch (HK) semiautomatic handgun, along with its case and user's manual. A woman who lived across the street from Nader's Market observed three to four African-American men wearing hooded sweatshirts loading boxes of cigarettes into a white minivan parked in front of her house.

On the evening of February 7, a Monrovia police officer saw a white minivan parked in an alley and shone a light on it. A man who had been standing next to the passenger-side door ran away. The officer found two women in the van: Cox andAquaneesha Rawls. He also found a user's manual for an HK handgun, crowbars, several pairs of gloves, several hooded black sweatshirts, several mobile phones, including one in its original packaging, and a camera in its original packaging. About 15 feet from the van, the officer found a Glock nine-millimeter handgun in a planter next to the yard of a home.²

Cox and Rawls testified that defendant McDaniels had driven the van and parked it where the officer found it, and then left. One or two other men had been in the van and ran when the police officer approached. Cox and Rawls were along for the ride because McDaniels was supposed to be going to a liquor store.

In a recorded statement played at trial, Cox told detectives that she saw McDaniels hand Britt a "cute," expensive-looking gun with "a laser" on it. At trial, Cox denied that she had seen this and claimed she had simply told the detectives what Rawls had told her. Rawls denied seeing a gun transfer and denied telling anyone she had.

3. Events of February 9, prior to shooting

Cox lived on Goodall Avenue in Duarte and Rawls lived directly across the street. Throughout the day on February 9, a number of people hung out on Goodall in the vicinity of Cox's home, including Cox, Rawls, McDaniels, Britt, Alderson, and Joseph Barnes. Britt admitted at trial he was a member of the Duroc Crips gang. Britt was 21 years old, while McDaniels, Alderson, and Barnes were in their thirties. The prosecution's gang expert opined McDaniels and Alderson were members of the Duroc Crips gang and Barnes was an associate. They were drinking, smoking strong marijuana, and listening to music. Alderson and Cox were involved in a romantic relationship at the time. At some point, a blue Dodge Magnum arrived and parked on the driveway at Cox's house. "RIP Brandon Lee" was written in chalk on a wall next to Cox's house. She testified one of her younger sisters had written it.

Recordings from surveillance cameras at Al's Liquor store depicted McDaniels and Alderson entering the store approximately 5:20 p.m. According to the prosecution's gang expert, members of both the Duroc Crips gang and the rival MNV gang shopped at Duarte Liquor.

Around 6:00 p.m., Cox, Rawls, and Rawls's younger brother were driving to West Covina when the Magnum pulled up next to them at a stoplight. McDaniels was driving, Alderson was the front passenger, and Britt and Barnes were in the backseat. Cox spoke with the men in the Magnum, each asking where the other group was going. Rawls and Cox testified that McDaniels said they were going to the store. Rawls further testified that McDaniels said that they were going to "hit some corners." Cox testified that someone other than McDaniels said they were going to hit some corners. The Magnum turned right, which was toward Duarte Liquor store.

Recordings from surveillance cameras at Duarte Liquor store depicted McDaniels, Alderson, and Barnes entering the store approximately 6:08 p.m. Britt got out of the Magnum but remained outside the store. When the other three returned to the vehicle, McDaniels and Britt got in the driver's side, while Alderson and Barnes got in the passenger side. According to the prosecution's gang expert, members of both the Duroc Crips gang and the rival Duarte Eastsiders gang shopped at Duarte Liquor.

4. The shooting

Friends Miguel Sanchez and Salvador Velasquez were walking in the middle of Millbrae Avenue en route from Sanchez's house to a park. It was around sunset and getting dark. Neither belonged to a gang. Velasquez saw the Dodge Magnum make a sharp turn from the cross-street onto Millbrae and head toward them. He testified it seemed as if the car had almost passed the street before turning abruptly. Sanchez and Velasquez moved toward the curb and continued walking. As the Magnum approached them, it slowed to a "really slow" speed. Velasquez saw the driver's side, rear passenger window roll down, then he saw a gun protruding from that window. He began running and yelled to Sanchez to run. Almost immediately, the passenger began to shoot. Velasquez heard more than five shots, in rapid succession, and felt two shots fly past him.Velasquez escaped injury, but Sanchez was killed. The fatal shot entered his back on the left side and traveled sharply upward. The coroner recovered a projectile from just below the base of Sanchez's skull. A second shot hit the back of Sanchez's leg.

The site of the shooting was about 1.8 miles from Duarte Liquor in an area claimed by the Duarte Eastsiders gang.

5. Discovery of vehicle and gun

The shooting was reported to 911 at 6:15 p.m. Velasquez provided responding sheriff's deputies with a description of the vehicle, which was then broadcast to other law enforcement officers. Ten to fifteen minutes after he heard the police broadcast about the shooting, Deputy Louis Serrano drove down Goodall Avenue in a marked patrol car to "check the area for suspects." Serrano saw the Dodge Magnum parked in the driveway at Cox's house. Five men and one woman stood near the vehicle. Serrano stopped and four of the men ran away. The fifth man, Barnes, and the woman, Katrina Cox (Koteysha's sister), remained. Serrano was unable to identify the defendants.

Deputies drove Velasquez to Goodall Avenue, where he identified the Magnum as similar to the vehicle from which shots had been fired. At trial, he was certain the Magnum was the vehicle.

Sheriff's personnel found an HK .45-caliber semiautomatic handgun under the driver's seat of the Magnum. They also found an empty vodka bottle and a full bottle of beer inside the vehicle. Three more empty vodka bottles were on the driveway and sidewalk near the vehicle.

6. Forensic evidence

Investigators found eight .45-caliber casings spread over a distance of 87 feet on Millbrae. They also found a bullet jacket and recovered a partial bullet from a hole on a parked vehicle. Ballistics testing revealed the HK gun recovered from the Magnum ejected all of the casings recovered at the scene of the crime and fired the bullet recovered from Sanchez's body.

DNA was obtained from the HK gun, the Dodge Magnum, and the empty vodka bottle found in the Magnum. Testing and analysis indicated both defendants andAlderson were possible contributors to a mixture of multiple individuals' DNA found on the vodka bottle. Both defendants were possible contributors to DNA mixtures from several locations on the gun. McDaniels was a possible contributor to a mixture of multiple individuals' DNA found on the steering wheel and gear shift of the Magnum, while Britt's profile matched DNA found on the inside of the driver's side, rear passenger door of the Magnum.

7. Statements by defendants

Britt and Alderson were arrested with a third person on April 2. Detectives arranged to have the three men placed together in a cell equipped...