Opinion
A146219 A146221
04-05-2017
THE PEOPLE, Plaintiff and Respondent, v. DARREN JERRELL McFADDEN, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. DANNY ROBERT LOUIS JEFFREYS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR 306923) (Solano County Super. Ct. No. FCR 306926)
Defendants Darren Jarrell McFadden and Danny Robert Louis Jeffreys appeal judgments convicting them of first degree murder and attempted premeditated murder. They challenge the sufficiency of the evidence in support of their convictions and assert that the court made prejudicial evidentiary and instructional errors. In addition, defendants contend the case must be remanded to give them the opportunity to make a sufficient record of mitigating evidence in anticipation of their eventual youthful offender parole hearing in the 25th year of incarceration. We shall affirm the judgments and order a limited remand as requested by defendants.
Factual and Procedural Background
Defendants were charged with murder (Pen. Code, § 187, subd. (a)) and attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664). The information further alleged that Jeffreys personally and intentionally used and discharged a firearm during the commission of both offenses (Pen. Code, § 12022.53, subd. (c)).
The following evidence was presented at defendants' joint trial.
On April 11, 2014, shortly after 5:00 p.m., Fairfield police officers responded to a report of a shooting at the Grande Circle apartment complex. Officers found a man bleeding and not responsive, who was transported to a hospital and later died as a result of his gunshot wounds. A second shooting victim, the dead man's brother, left the scene after the police officers arrived and drove himself to the hospital. He had been shot once in his right leg.
Officers found casings from three guns near the crime scene. Casings from a .25-caliber gun were found near the area where the murder victim fell and nine-millimeter casings and .40-caliber casings were found in the parking lot across the street.
The prosecution pieced together the events leading to the shooting and immediately thereafter through testimony of witnesses and surveillance camera video recordings. Because of the number of individuals involved and the irregular curvature of the streets and adjacent parking lot, the prosecution made extensive use of an exhibit depicting the street layout and the locations shown on the videos, which undoubtedly was essential to a proper understanding of the testimony and collection of video clips.
Trayvon Wayfer was at the Grande Circle apartment complex when the shooting occurred. He testified that at around 5:00 p.m., he, Timothy Mitchell and the two defendants met Donald Hill at the complex. McFadden had driven to the complex in his black Lexus and Wayfer had driven to the complex in a Cadillac, which had handicapped license plates.
Hill, Mitchell and Wayfer were all charged in the same complaint as defendants. Wayfer entered a no contest plea to the charge of accessory to murder in exchange for his truthful testimony at trial. Mitchell was still at large at the time of trial. Hill's case was severed from defendants after the court granted his attorney's request for a continuance. --------
Wayfer was wearing a white T-shirt, white pants, a peach hoodie, and peach colored shoes. Jeffreys wore a blue Cal Berkeley sweatshirt. Mitchell was dressed in all black. Wayfer did not recall what McFadden wore that day.
Wayfer testified that shortly before the shooting, Jeffreys left the group and entered the apartment complex. Wayfer did not know where Jeffreys was at the time of the shooting. Just prior to the shooting, Mitchell borrowed Wayfer's peach sweatshirt and then also walked away from the group.
The prosecution called as a witness a forensic image analyst who had prepared a series of video clips that were presented at trial. The video recordings came from security cameras operated by the apartment complex and one camera operated by the city. In preparing the clips for trial, he enhanced some of the video recordings to correct for overexposure, enlarged some portions, and added markings on some clips, such as a circle or a spotlight effect to draw the viewer's attention to a particular part of the image. He did not add any content to the videos.
Video recovered from the city camera shows a group of men, including the two victims, standing in the street, then running away from the nearby parking lot when the shooting starts and, finally, one victim falling after being shot in the back. The same video appears to show one of the men, dressed in all black, shooting across the street towards the parking lot.
Other video clips show Wayfer, Mitchell, McFadden and Jeffreys arriving at the complex, getting out of the two cars and congregating on a corner. Hill is with them on the corner. Before the clip ends, Jeffreys can be seen walking away from the group. Later, a clip shows Mitchell putting on Wayfer's peach sweatshirt. Then Hill can be seen handing Mitchell what appears to be a gun. McFadden appears to be watching the transaction. Wayfer is standing with the group but at trial he denied seeing Hill hand Mitchell anything. The video shows Mitchell, after taking what looked like a gun from Hill, crossing the street. In a different clip, a man who appears to be wearing a peach sweatshirt can be seen walking behind a fence toward the parking lot from which the shots were fired. The same video shows what looks like multiple flashes coming from behind the fence by the parking lot. A man in blue can also be seen moving behind the same fence. After the shots were fired, the man in the peach sweatshirt can be seen through the fence running away from the parking lot and then crashing over some bushes. Finally, a clip shows Mitchell and Hill getting into McFadden's Lexus after the shooting. Hill remained in the car for less than a minute and then exited before Mitchell and McFadden drive away.
Wayfer testified that he heard gunshots but could not see who fired them. He confirmed that he saw the shots come from the parking lot. He also saw someone who was with the victims shooting as well. When the shooting started, he went to his car and drove away. Video shows Wayfer and McFadden moving in a slow jog towards their cars and briefly conversing before Wayfer backs out of the lot. Wayfer claimed at trial that he left without Mitchell and Jeffreys because he was afraid for his life. Wayfer called Jeffreys and Mitchell seconds after he left and coordinated where to pick them up. Wayfer picked up Mitchell from McFadden's car a few minutes after the shooting. Wayfer picked up Jeffreys a few blocks away. Jeffreys was still wearing the Cal Berkeley sweatshirt.
A neighbor testified that she looked out her window when she heard popping sounds. She saw a man wearing a blue hoodie with his left hand raised and pointing across the street. When she heard more popping noises, she realized the man was shooting although she did not see a gun. After the shooting, the man in the blue hoodie ran between a fence and an apartment building. The man never turned around and she never saw his face. She also did not see the front of the man's blue hoodie.
Two additional witnesses testified that they were near the apartment complex when they heard the gunshots. One witness testified that seconds after she heard the gunshots, a man jumped over the fence that separated her neighborhood from the apartment complex. The man wore a blue hoodie and he walked at a fast pace. The man had a phone up to his face. The other witness testified that he saw a man wearing a blue "U.C. Berkeley" sweatshirt coming from behind the apartment complex fence. The man was talking on his cell phone when he passed. The man started jogging, then switched to a walk, and then proceeded to run until he was out of sight. Thirty seconds after that, a Cadillac with handicapped plates drove by.
After the crime, Jeffreys went to visit his mother in Tennessee. According to the police officer who interviewed his mother, Jeffreys told his mother that he was present at the apartment complex at the time of the shooting. Jeffreys also told his mother that he had a gun, but he "handed the gun off before he went around the corner of the building." In a second interview with the same officer, Jeffreys' mother denied making any such statement to the police.
Defendants were found guilty as charged. Defendants were sentenced to a term of 25 years to life for the murder conviction plus an additional consecutive life term with the possibility of parole for the attempted murder conviction. Jeffreys was also sentenced to two additional consecutive 20-year terms for his use of a firearm.
Defendants timely filed notices of appeal.
Discussion
1. Substantial evidence supports Jeffreys' conviction.
Jeffreys contends there is no substantial evidence to support his conviction. He argues that "Although the evidence is sufficient to prove that [he] was present with his friends at the scene shortly before the shooting occurred, and that he fled the area once someone began firing shots, the prosecution failed to present evidence to prove [he] was one of the people who fired shots." We disagree.
The evidence, viewed as a whole, supports the jury's finding that Jeffreys was the second shooter. Bullet casings found at the scene indicate there were two shooters in the parking lot. The evidence established that Jeffreys was wearing a blue Cal Berkeley hoodie. Wayfer's testimony establishes that Jeffreys left the area where the group was standing before the shooting started and video evidence shows what appears to be someone wearing blue moving behind the fence towards the parking lot. A witness described a man in a blue sweatshirt shooting at the victims. The fact that she did not see the gun does not make her testimony any less persuasive. She clearly testified that the man had his arm raised and pointed at the victims and that his arm appeared to be tracking the victims as they ran. Jeffreys makes much of the fact that the witness did not see the Cal Berkeley emblem on the front of the hoodie, but the witness clearly testified that the man never turned around and she did not see the front of him. She testified that the shooter left the complex on foot near the exact fence where two other witnesses testified they saw a man exit the complex seconds after the shooting. One of those witnesses described the man as wearing a Cal Berkley sweatshirt. Jeffreys' statement to his mother confirmed that he had a gun with him that day. This evidence is sufficient to support his conviction.
2. Substantial evidence supports McFadden's conviction.
McFadden argues that the prosecution failed to prove anything beyond the fact that he was present at the scene and was an accessory after the fact. We disagree. Although the evidence was such that the jury might have found otherwise, the evidence was sufficient to support the finding that McFadden had agreed to act as a getaway driver for the planned shooting and was thus an aider and abettor of the crime.
The evidence regarding McFadden's conduct is as follows: Wayfer testified that McFadden was at his house with Jeffreys and Mitchell before they traveled together to the complex to meet Hill. After parking and walking part way through the parking lot, McFadden returned to his car briefly. The video evidence establishes that Jeffreys left the area where the group had congregated before McFadden arrived. McFadden was present and appeared to be looking towards Hill when Hill handed a gun to Mitchell. When Mitchell headed across the street with the gun, McFadden backed a few feet away from the group towards an entrance to an apartment building. When the shooting started, McFadden jumped behind a wall and peaked out several times toward where the shooting was taking place. After the shooting stopped, he and Wayfer returned to the cars. After exchanging a few words, Wayfer got into his car and backed out of the parking lot. McFadden sat looking back towards the area of the shooting for a few seconds before starting to back out of his parking space. He paused for another few seconds before Mitchell and then Hill jogged towards his car. Hill got in and out of the car before McFadden drove away. It is a reasonable inference from the way McFadden positioned himself next to the building that he knew the shooting was about to occur. Likewise, contrary to his argument on appeal, his conduct once he returned to his car can be characterized fairly as waiting and looking for his codefendants. As the prosecutor argues, this sequence of events supports the reasonable inference that McFadden was the prearranged getaway driver for Mitchell.
3. The trial court did not err in admitting expert opinion regarding the video compilation entitled "Tracking Subject from Cadillac."
At trial, the prosecution introduced a video compilation made up of clips from four cameras entitled "Tracking Subject from Cadillac" that, according to the prosecutor, showed Jeffreys traveling from Wayfer's parked car towards the location from which shots were fired at the victims. Jeffreys does not dispute that the first three clips fairly clearly show a man in a blue Cal Berkeley hoodie that Wayfer testified Jeffreys was wearing that day. The dispute centers on the final clip which is highly magnified. Everyone agreed at trial that the identity of the man in the fourth clip could not be determined from the clip alone. The prosecution's imaging witness testified, however, that he believed the man in the fourth clip was the same man in the blue hoodie shown on the prior three clips. He explained that when he put the video clips from the third and fourth cameras "side by side we can see at the exact same moment the individual leaving the Pool House Entrance camera. For a short time he appears on both camera views, and more conclusively, a short time later, we see an individual following him who then also appears in both camera views." In closing argument, the prosecutor encouraged the jury to rely on the video compilation clip to conclude that Jeffreys walked away from the group of men standing on the corner and arrived in the parking lot across the street where he subsequently fired shots at the victims. The defense argued that the witness's opinion that the same person appeared in all four segments of the compilation was unreliable. The defense pointed out that in the fourth segment, the person's clothing was unidentifiable, except that the person wore white shoes unlike the person's blue and white shoes in the earlier segments, and further argued that the person's location seemed to vary between the third and fourth segments of the video compilation clip.
On appeal, Jeffreys contends the court erred in allowing the prosecution's witness to opine that the same man was depicted in each of the video clips. Jeffreys argues that the witness's opinion, whether as an expert or lay witness, usurped the jury's function because an ordinary juror "would be capable of viewing the videos and evaluating the possibility that [Jeffreys] was the person who walked across the street . . . toward a location from which he could have been the person who fired the fatal shots." Jeffreys asserts that the witness's testimony "erroneously 'tend[ed] to suggest that the . . . jury may shift responsibility for decision to the witness.' "
Initially, we disagree with the suggestion that the witness invaded the province of the jury. The witness explained how and why he pieced the clips together as he did and defense counsel cross-examined him extensively regarding his reasoning. Furthermore, any error with respect to this clip was harmless under any standard. (People v. Watson (1956) 46 Cal.2d 818; Chapman v. California (1967) 386 U.S. 18.) The jury's finding that Jeffreys was one of the shooters did not depend on this witness's opinion that the man seen crossing the street in the fourth video clip was the man wearing the blue Cal Berkeley sweatshirt in the three prior clips. The unchallenged clips show the man in the Cal Berkeley sweatshirt leaving the group shortly before the shooting starts, the neighbor's testimony places a man in a blue sweatshirt in the parking lot shooting at the victims and then exiting the complex over a fence, and the other witnesses placed the man in the blue Cal Berkeley sweatshirt exiting the complex moments after the shooting and running towards the location where Jeffreys was later picked up by Wayfer. The fourth clip was not necessary to show that Jeffreys was the person shown in the first three clips that tied him to the shooing.
4. The trial court did not abuse its discretion in admitting Jeffreys' statement to the police that the murder victim looked like a crack head.
Over defense objection, a police detective testified at trial that when he interviewed Jeffreys about the murder, Jeffreys was very unemotional and said he "didn't care" and "didn't do shit." When Jeffreys was shown a picture of the victim, Jeffreys said the victim "looked like a crack head." On appeal, Jeffreys contends the court abused its discretion in admitting this testimony because it was irrelevant and unduly prejudicial.
The Attorney General states, without further elaboration, "The evidence established motive, and therefore it was relevant and admissible." In the trial court, the prosecutor argued that the statement was "evidence of possible personal animus or contempt toward the victim," which provided evidence of motive and that the remark was "inconsistent with the reaction of an innocent person."
We need not decide whether the evidence was admissible in this instance because even if it should have been excluded under Evidence Code section 352, its admission was clearly harmless. Jeffreys argues, "The improper inference that [Jeffreys] was a person of bad character whose callous remark demonstrated his lack of respect for the murder victim may well have caused the jurors to set aside their legitimate concerns about the convincing force of the prosecution's case." As discussed above, however, the case against Jeffreys was not as weak as he suggests. Nor was his remark so inflammatory as to reasonably affect the outcome of the trial. (People v. Watson, supra, 46 Cal.2d at p. 836.) Contrary to Jeffreys' argument, this is not a case in which the admission of evidence infringed upon his federal constitutional right to due process. (People v. Partida (2005) 37 Cal.4th 428, 439 ["[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.].) The admission of Jeffreys' "callous remarks" did not render his trial fundamentally unfair.
5. A unanimity instruction was not required in this case.
McFadden contends that he that he was deprived of due process, a fair trial, and a unanimous jury verdict by the trial court's failure to give a unanimity instruction as to the act that constituted aiding and abetting. He argues that the jury "was never instructed that it had to identify the perpetrator (or perpetrators plural) that [he] aided and abetted, nor that it had to agree on what act constituted the aiding and abetting."
A unanimous jury verdict is required to convict a person of a criminal offense. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Jurors must unanimously agree that defendant "is criminally responsible for 'one discrete criminal event.' " (People v. Thompson (1995) 36 Cal.App.4th 843, 850.) Although unanimity principles require a jury to be convinced beyond a reasonable doubt that a defendant is guilty of one discrete criminal event—for example, first degree murder, a jury need not agree on the theory of the murder—for example, premeditated murder or felony murder. (People v. Millwee (1998) 18 Cal.4th 96, 160.) Unanimity principles also do not require a jury to agree unanimously whether a defendant is guilty of a crime as a direct perpetrator or as an aider and abettor. (People v. Jenkins (2000) 22 Cal.4th 900, 1025 ["Naturally, in order to return a guilty verdict, the jury must agree unanimously that each element of the charged offense has been proved, but the factors that establish aiding and abetting liability are not included as elements of the crime of murder."]; People v. Davis (1992) 8 Cal.App.4th 28, 45 ["Jurors need not unanimously agree on whether the defendant is an aider and abettor or a principal even when different evidence and facts support each conclusion."].)
In this case, there was one murder and one attempted murder and two potential perpetrators (Jeffreys and Mitchell). To convict McFadden of aiding and abetting these crimes, the jury was required to find that (1) the perpetrators committed the crimes, (2) that McFadden knew the perpetrators intended to commit the crimes, (3) before or during the commission of the crime, McFadden intended to aid and abet the perpetrators in committing the crime, and (4) McFadden's conduct did in fact aid and abet the perpetrators' commission of the crimes. (CALCRIM No. 401.) McFadden's convictions can be supported based only on the single act of driving Mitchell from the crime scene. The jury was not required to agree as to whether that act was performed based on an agreement made with Jeffreys before they reached the complex or made with Mitchell at some point prior to the shooting or both, so long as he intended to serve as the get-away driver sometime before or during the commission of the crimes.
6. Remand is necessary to determine whether defendants were afforded an opportunity to make a record of information that may be relevant at a youthful offender parole hearing.
In People v. Franklin (2016) 63 Cal.4th 261, 276, the California Supreme Court held that the Eighth Amendment of the United States Constitution prohibition against cruel and unusual punishment prohibits a juvenile court from sentencing a minor "to the functional equivalent of [life without parole] for a homicide offense" without taking into account " 'how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison' " (quoting Miller v. Alabama (2012) 576 U.S 460). The court concluded, however, a juvenile's claim that his sentence of 50 years to life was the functional equivalent of life without parole and thus unconstitutional was moot in light of recent statutory amendments that provided for parole hearings for youthful offenders. (Franklin, supra, at p. 268, citing Pen. Code, § 3051, subd. (a)(1) [A "youthful offender parole hearing" is held "for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense."].) The court explained, "Consistent with constitutional dictates, those statutes provide [the juvenile] with the possibility of release after 25 years of imprisonment [citation] and require the [parole board] to 'give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity.' " (Id. at p. 268) Because the enactment of the statutes meant that the juvenile was "now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration," his sentence "is neither LWOP nor its functional equivalent" and "no Miller claim arises." (Franklin, pp. 279-280.) Although the court in Franklin held that the juvenile offender "need not be resentenced," it remanded "the matter to the trial court for a determination of whether [the juvenile] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Id. at p. 284.) The court advised, "If the trial court determines that [the juvenile] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 [of the Penal Code] and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [The juvenile] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors [citation] in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law.' " (Franklin, p. 284.)
Jeffreys, who was age 20 at the time the offenses were committed and who was sentenced to a term of 65 years to life for the murder plus an indeterminate term of life with the possibility of parole for the attempted murder, contends remand is appropriate under Franklin because Penal Code section 3051 was not amended to extend the applicable age for a youthful offender parole hearing to persons under age 23 at the time of the crime until after his sentencing hearings. Thus, he was not afforded the opportunity to make the relevant record. The Attorney General notes that it is not apparent from the record whether Jeffreys was provided the opportunity required by Franklin and thus agrees that a limited remand is appropriate to allow the court to make that determination and to provide defendants with the opportunity to make such a record if necessary.
Because it was unclear from McFadden's appellate briefs whether he was joining in Jeffreys' argument, we requested supplemental briefing on whether a limited remand would also be appropriate in his case, should his conviction be affirmed. Defense counsel submitted additional briefing arguing that given that McFadden was 19 years old on the date of the offense and that he was sentenced to a term of 25 years to life for the murder as well as an indeterminate life sentence for the attempted murder, remand would be appropriate. The Attorney General did not submit supplemental briefing in response to our request. Although defendant's sentence may not be the functional equivalent of life without parole, remand remains appropriate to ensure that McFadden is afforded a full opportunity to preserve the record for his eventual youthful offender parole hearing in conformity with the new statute.
Accordingly, we shall remand the case for further proceedings consistent with Franklin.
Disposition
The judgments of conviction are affirmed. The matter is remanded to the trial court for further proceedings consistent with People v. Franklin (2016) 63 Cal.4th 261.
Pollak, J. We concur: McGuiness, P.J.
Jenkins, J.