People v. Pharr

THE PEOPLE, Plaintiff and Respondent, v. ANGELO LEMELLE PHARR, Defendant and Appellant.

C087195

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

May 3, 2021

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. STKCRFE20170013697)

A jury found defendant Angelo Lemelle Pharr guilty of shooting at an inhabited dwelling, assault with a semiautomatic firearm, and felon in possession of a gun and felon in possession of ammunition. He was sentenced to an aggregate term of 18 years four months.

On appeal, he contends (1) the trial court abused its discretion in denying his motion for a new trial; (2) insufficient evidence supported the convictions for shooting at an inhabited dwelling and assault with a semi-automatic firearm; (3) insufficient evidence supported the convictions for felon in possession of a firearm and ammunition; (4) the court erred in failing to instruct sua sponte on the defense of alibi; (5) the 18-year four-month sentence is cruel and unusual; (6) the punishment for possessing ammunition must be stayed under Penal Code section 654¹; (7) remand is required in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); and (8) remand is required in light of Senate Bill No. 1393 (2017-2018 Reg. Sess; Stats. 2018, ch. 1013, §§ 1-2) (S.B. 1393).

We remand so the trial court may consider striking the prior serious felony enhancement in light of S.B. 1393. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Shooting

The victim is the father of defendant's ex-girlfriend. He testified that on the morning of the shooting, he got up, took a shower and started shaving. While shaving, bullets flew through his house, hitting his front door and windows. He looked out the front door and saw two men running down the street.²

Later, a neighbor with a surveillance camera told him: " 'Don't worry about it. It's on camera.' "

In the surveillance video, which was shown to the jury, a black SUV can be seen parked on the street in front of the victim's house. Moments later, as the camera panned back to the same spot, the SUV was gone, but an African American male wearing a redlong-sleeved shirt, light colored pants, and dark colored shoes was standing in the street. The man opened fire with a black handgun.³

The camera then panned away, but when it returned, a suspect could be seen across the street.

A neighbor testified to hearing gunshots, after which he looked through the window to see two individuals running, each wearing hoodies, red sweaters, and red bandanas over their faces; one had a gun. The neighbor then watched them get into an SUV that had just parked; though he could not see the driver. The SUV then drove off, heading in the direction of the freeway. The neighbor then called 911.

The 911 call, which was played for the jury, came in at 8:36 a.m.

Events Pertaining to Defendant's Ex-girlfriend Prior to the Shooting

Several days before the shooting, defendant and the ex-girlfriend broke up after she discovered he was cheating on her with another woman. They had been living together and have two children.

At trial, the ex-girlfriend testified that defendant got violent when she confronted him about the cheating. He pushed her, pulled her hair, punched and slapped her. At one point, she went to move her car, fearing defendant and his brother would vandalize it. When she returned, defendant wouldn't let her in the house. She testified that he then pushed her on the floor, stomped her leg, and threw several bottles at her. He then chased her down the street, throwing a firecracker at her and shooting a gun.

The ex-girlfriend soon returned to the house, gathered her children and some clothes, and left for her mother's house, where she stayed for several days. At some point, she and defendant met at their house, along with police, so defendant could retrievehis possessions. Sometime after that, defendant sent her a text message: " 'Ya all shit fucked up. It's like not even liveable anymore.' "

She returned to her home to find it " 'looked like a construction site.' " The kitchen, her bedroom, and her daughter's bedroom were destroyed. Cabinets and the staircase bannister were gone. And holes dotted the walls throughout.

After she filed a request for a restraining order, defendant told her: " 'A restraining order isn't anything but a piece of paper. Do you think that that's going to save you?' " He also said something to the effect of: " 'If you love your family, then you wouldn't go through with that or you wouldn't do that to them.' "

The morning of the shooting, defendant called and said if she "didn't give him his shit" — which she took to mean his extra ammunition magazine and some clothes and shoes he had left behind — he was going to do something to her family members.

Events Just Before the Shooting

The mother of defendant's ex-girlfriend (and ex-wife of the victim) testified that the day of the shooting, defendant, defendant's brother, and another man came to her house in a small black SUV. The brother and the other man both had guns. They complained that someone had vandalized the car of the woman defendant had been cheating with.

When the mother told them her daughter wasn't there, an argument erupted. The mother eventually called 911, and the men left while she was on the phone. Defendant yelled that he'd be back to shoot up her house, and " 'I'm going to go over to her father's house.' "

A recording of the 911 call was played for the jury. In it, the mother told the dispatcher the black SUV was defendant's mother's car, and its license plate began with"7LB."⁴ She also said two of the men wore red shirts, but she did not know if they had weapons.

The mother acknowledged that at the preliminary hearing she had falsely testified defendant had made no threats that morning. But she did so because she was "protecting [her] daughter and [her] grandchildren." She also acknowledged that she wrote a letter to the District Attorney's office, recanting her statements to police and asking that the charges be dropped. She explained she wrote it "[b]ecause the shooters are still out there and we were still in California." She and her family subsequently moved out of state.

The Cell Phone Evidence

A Department of Justice specialist testified as an expert in cell site connection data and cell data analysis. She had examined the cell site connection data of defendant's cell phone for the day of the shooting.

She testified that between 6:00 and 8:00 a.m., the cell site connections of defendant's phone were consistent with being in the area of defendant's mother's house. Between 8:01and 8:20 a.m., defendant's phone appeared to be in transit. And within that period, at 8:07 and 8:12 a.m., defendant's cell phone was in the area of the ex-girlfriend's mother's house.

From 8:21 to 8:40 a.m., the expert concluded the phone was in transit, and between 8:26 and 8:30 a.m., "[i]t did connect with one of the closest cell sites to the crime location . . . ."⁵

From 8:41 to 9:00 a.m., the cell site connections were consistent with being in the area of the ex-girlfriend's mother's house or defendant's mother's house. And from 9:00to 10:00 a.m., the connections were consistent with being in the area of defendant's mother's house.

On cross-examination, defense counsel asked the expert: "So in your expert opinion, I can assume that the cell phone in question relating to [defendant] is within the 1.5 mile radius of Newton Road [a cell site location north of the shooting] at 8:34. [¶] Could he have been at the incident location on Sinclair Avenue where the 9-1-1 call had the shots being fired?" The expert answered: "I don't think the cell site is consistent with him being in the area of the incident location at that time." Counsel clarified, "would that mean that the holder of that cell phone was not at the location of [the victim's house]." The expert answered: "In my opinion, the cell phone is not in the area of [the victim's house] during the time of those cell site hits."

Defendant's Statement to the Police

Defendant told the police that he, his brother and another man went to the mother's house looking for his ex-girlfriend because someone had vandalized the car of the woman he had been cheating with, and he wanted to talk to his ex-girlfriend about the vandalism. They drove his Mercedes sedan, not his mother's black SUV. Defendant said that after his ex-girlfriend's mother threatened to call the police, he left and went home. Thereafter, he left to get a rental car repaired and then went about his regular day. He denied being involved in the shooting. He also denied having access to any guns or ammunition.

Recorded Admissions to the Ex-Girlfriend

After the shooting, the ex-girlfriend spoke to defendant on the phone. She recorded the conversation, which was played for the jury. In it, she asked, "oh you ready to kill people," He replied: "I ain't afraid, don't play with my shit hoe." She said: "I just asked you what am I playing with?," to which he said, "for once nigga, I keep telling you nigga. (inaudible) Your mother fucking family nigga. On the real, stop playing with me bitch." And when she asked: "So you sending warning shots? That's what you callyourself doing?," he said, "Yeah nigga, yeah nigga. My shit nigga." But when she said, "So you wanta kill... you trying to kill my daddy? Is that what you trying to do?," there was no response.

Later, in a recorded call from the jail, defendant told her: "I got ammo on you and your kids," "It's gonna be night night" if she snitched, and "Bitches get their heads busted too," which she took to be a threat to shoot her.

Jury Verdict & Sentencing

The jury found defendant guilty of...