People v. Robinson

11 Cal.Rptr.3d 182

116 Cal.App.4th 1302

The PEOPLE, Plaintiff and Respondent, v. Derek Edward ROBINSON, Defendant and Appellant.

No. B149425

Court of Appeal, Second District, Division 7

March 22, 2004

Certified for Partial Publication^*

As Modified March 30, 2004

Rehearing Denied April 21, 2004

Review Granted June 9, 2004

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Reversed with directions.

Ralph H. Goldson, under appointment by the Court of Appeal for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Susan Lee Frierson, Deputy Attorney General, for Plaintiff and Respondent.

MUÑOZ (AURELIO), J.^**

Derek Edward Robinson (defendant) was convicted by a jury of the murders of Michael Boyd (count 1) and Anthony Wells (count 2). (Pen.Code, § 187.) The jury found true the special circumstance allegations that defendant committed multiple murders (Pen.Code, § 190.2, subd. (a)(3)) and that the victim in count 2 was intentionally killed because he was a witness to a crime. (Pen.Code, § 190.2, subd. (a)(10).) The jury also found defendant guilty of attempted murder of Howard Littleton (count 3) and found the attempted murder was committed willfully, deliberately, and with premeditation. (Pen.Code, § 664, subd. (a).) On all counts, the jury found defendant personally used a firearm. (Pen.Code, § 12022.5, subd. (a)(1).)

In the penalty phase, the jury returned a verdict of death. At the sentencing hearing the penalty was modified, without objection by the People.¹ As to counts 1 and 2, the court sentenced the defendant to life without the possibility of parole plus an additional five years for the use of a gun in the commission of the offenses. As to count 3 defendant was sentenced to life with the possibility of parole plus an additional five years for the use of a gun. All sentences were to run consecutively to one another.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Introduction.

Defendant was convicted of killing Michael Boyd (Boyd) and Anthony Wells (Wells), who were both friends of defendant and members of defendant's gang, the Denver Lane Bloods. The prosecution's theory of the case was that defendant shot Boyd over a gun that Boyd was allegedly keeping for defendant while defendant was in jail,² and defendant shot Wells because he knew too much about the Boyd murder. Aside from ballistic evidence at the scenes of the crimes, most of the evidence of defendant's guilt was hearsay testimony from friends and acquaintances of defendant. Such testimony came in at trial as prior inconsistent statements made in interviews conducted by the police, as the witnesses at trial uniformly denied their prior statements implicating defendant. (See Evid.Code, § 1235;³ California v. Green (1970) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.)

This case was remanded by the Supreme Court for reconsideration in light of People v. Yeoman (2003) 31 Cal.4th 93, 2 Cal.Rptr.3d 186, 72 P.3d 1166. In Yeoman, the Supreme Court stressed to the trial courts that they were to make as complete a record as possible whenever successive motions under People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 are made. (People v. Yeoman, supra, 31 Cal.4th at pp. 115-118, 2 Cal.Rptr.3d 186, 72 P.3d 1166.) We have reexamined our decision in this case and find it is consistent with Yeoman. In this case, a complete record has been made. That record reveals that the trial court, in ruling on a Wheeler challenge, failed to consider prior prosecution challenges to minority jurors. (Opinion, infra, pp. 192-193.) Wheeler requires the trial court to examine whether there has been a systematic pattern of juror exclusion, not just whether a particular juror was improperly excluded. (Wheeler, supra, 22 Cal.3d at pp. 279-281, 148 Cal.Rptr. 890, 583 P.2d 748.)

B.-D.^***

DEFENDANT'S CONTENTIONS

On appeal, defendant argues that the trial court erred in (1) ruling that the prosecution could ask a key defense witness about a statement made by defendant; ( 2) denying defendant's Wheeler¹⁵ motion that the prosecution improperly excluded an African-American juror; (3) failing to instruct sua sponte that accomplice evidence required corroboration and should be viewed with caution; (4) that substantial evidence does not support a special circumstance finding that he killed a witness within the meaning of Penal Code section 190.2, subdivision (a)(10); and (5) his custody credits were wrongly limited to 15 percent of actual confinement time.

I. IMPEACHMENT OF ERIC THOMAS

During trial, defendant advised the court that he intended to introduce the testimony of Eric Thomas that Thomas overhead a third party, Damien Lane, confessing to the Wells murder. In ruling on defendant's motion to introduce this testimony, the court indicated it would also permit the prosecution to impeach¹⁶ Thomas by asking about defendant's statements that he intended to have someone take care of the people out there who were telling on him to the police about the Wells murder. Thomas overheard these statements on a jail bus in 1998. Defendant apparently chose not to introduce Thomas's testimony because of this potential impeachment.

A. Factual Background.

The defense proposed to put on the testimony of Eric Thomas. At the hearing pursuant to Evidence Code section 402, Eric Thomas testified he had told Detective Orent that he was with Darrell Johnson and Damien Lane¹⁷ when Lane told Thomas that he had killed Wells. Lane did not identify the other person with him at the time shooting, but Thomas believed it might have been Cooks. Lane, who was over six feet tall, was a member of the Squiggly Lane Bloods,¹⁸ whereas Thomas is a member of the Pasadena Denver Lanes. On cross-examination, Thomas admitted gang members sometimes brag about doing things they did not do to increase their respect among other gang members. At that same hearing, Thomas was asked about — and denied — telling the detectives he overheard defendant make a statement on the jail bus, sometime in 1998, that Everett Johnson was going to take care of people who were talking to the police about defendant.

Defendant sought to offer the hearsay statement of Damien Lane as a declaration against penal interest, but indicated it depended upon the court's ruling on the admissibility of defendant's statement. Relying on People v. Cudjo (1993) 6 Cal.4th 585, 25 Cal.Rptr.2d 390, 863 P.2d 635, the court stated it was inclined to admit the statement as a declaration against penal interest, but further stated if the Lane declaration came in, the prosecution would be allowed to impeach Thomas with the statements overheard on the jail bus even though Thomas denied telling the police defendant had made those statements. The court further indicated Thomas could be impeached by his affiliation with gangs and the fact he was a convicted and sentenced prisoner. The court was of the opinion these facts were relevant to Thomas's credibility. Defendant never objected to the admission of defendant's prior statement; rather, he simply did not call Thomas as a witness.

B. Defendant's 1998 Statements Were Admissible As Admissions

On appeal, defendant contends the court's ruling was error because defendant's statement was irrelevant to impeach Thomas and in fact the proposed impeachment was prohibited character evidence. This error by the court, he argues, had the improper effect of excluding critical exculpatory evidence of the third-party confession. (People v. Hall (1986) 41 Cal.3d 826, 831-834, 226 Cal.Rptr. 112, 718 P.2d 99.) Defendant argues the threats were not relevant as impeachment evidence because defendant did not threaten to harm Thomas, nor did Thomas express any fear of defendant. (See, e.g., People v. Olguin (1994) 31 Cal.App.4th 1355, 37 Cal.Rptr.2d 596.) Furthermore, the threats were generalized, non-specific threats that were not admissible as evidence of defendant's consciousness of guilt and the statements were not admissible as evidence of defendant's state of mind, because they were too remote to the killings. (See, e.g., People v. Rodriguez (1986) 42 Cal.3d 730, 757, 230 Cal.Rptr. 667, 726 P.2d 113; People v. Hamilton (1985) 41 Cal.3d 408, 429-430, 221 Cal.Rptr. 902, 710 P.2d 981; People v. Karis (1988) 46 Cal.3d 612, 634, 250 Cal.Rptr. 659, 758 P.2d 1189.) Defendant also argues the evidence was impermissible character evidence. (Evid.Code, § 1101, subd. (b).) Lastly, defendant argues the error was prejudicial — Lane's testimony would have altered the outcome of the trial because it corroborated Denham's testimony that Lane was the second shooter, not defendant.

In making this contention, defendant paints with too broad a brush. First of all, the fact that Eric Thomas was a convicted felon was admissible to impeach his credibility. (Evid.Code, § 788.) Secondly, the fact that Eric Thomas was also a member of the Pasadena Denver Lanes was admissible to show a possible bias in favor of defendant. (Evid.Code, § 780, subd. (f).)

Finally, asking Eric Tomas about defendant's statements to the effect¹⁹ that he was going to beat this case because Everett Johnson was going to get out and take care of those people that were out there telling on him is not prohibited character evidence under Evidence Code Section 1101. Rather, defendant's extra-judicial statements qualified as admissions against interest. (See People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620; People v. Brackett (1991) 229 Cal.App.3d 13, 19-20, 280 Cal.Rptr. 305.)

Here, the murders had been committed in 1994. The initial investigation had come to a standstill in January 1995 and the case lay dormant until June 1998. At that time, a...