Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD193788, John M. Thompson, Judge.
HALLER, Acting P. J.
Darrell Brown appeals from a judgment convicting him of first degree murder and accessory after the fact, with true findings on gang and firearm enhancements. He contends the judgment must be reversed because the trial court (1) failed to give the jury a cautionary instruction pertaining to accomplice testimony, and (2) denied his motion for new trial based on newly discovered evidence. We reject his arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At about 4:10 a.m. on December 11, 2005, Marshanae Johnson, Damien Carmichael, David Larkins, Enchante Turner, and Tyneisha Richards were sitting in an Infinity vehicle parked in the parking lot of the Bay Vista Apartments in southeast San Diego. A man approached the car and started shooting. Johnson was shot and killed by the bullets.
Darrell Brown, age 26, and Rico Flowers, age 15, were charged with and convicted of the murder. Brown and Flowers were members of the Skyline gang. The Bay Vista Apartments are located in the territory of the rival Lincoln Park gang, and two occupants of the vehicle (Carmichael and Larkins) were members of, or associated with, the Lincoln Park gang.
Brown was convicted of count 1 (first degree murder) and count 3 (accessory after the fact). The jury found true the enhancement allegations that Brown committed the murder to benefit a gang and that a principal personally discharged a firearm causing death. The jury was unable to reach a unanimous verdict on the count 2 allegation against Brown (shooting at an occupied vehicle), and this count was dismissed.
The Skyline and Lincoln Park gangs claimed different areas located in southeast San Diego.
The prosecution's theory was that Brown drove Flowers to the Bay Vista Apartments and waited in the car while Flowers committed the shooting. Prior to trial, three of the Infinity vehicle occupants made statements identifying Flowers as the shooter. Carmichael told vehicle occupant Turner that the shooter looked like Flowers, and told the police that he thought the shooter was Flowers. Larkins told his girlfriend (Marilyn Johnson) that the shooter was " 'Rico from Skyline,' " and told the victim's cousin (Anthony Saunders) that he recognized the shooter as Flowers. Richards (who did not know Flowers) recognized Flowers in a pretrial live lineup, and also identified him at trial as the shooter.
At trial, both Carmichael and Larkins recanted their pretrial identifications, claiming they were unable to identify the shooter. Saunders also recanted at trial, testifying that Larkins did not identify Flowers as the shooter.
Richards did not initially identify Flowers at the pretrial live lineup, but later contacted the authorities and stated she had recognized him. At trial, she explained that she knew who the shooter was at the live lineup, but did not tell the authorities because she was afraid the men in the lineup could see her.
Brown's girlfriend testified that in the evening of December 11, 2005, she and Brown drove Flowers to the Greyhound bus station. A surveillance video showed Brown with Flowers at the Greyhound bus station. Greyhound bus records reflected that at 6:30 p.m. on December 11, a Greyhound bus ticket to Virginia had been telephonically purchased and that Brown was the person authorized to pick up the ticket. Flower's sister, who lived in Virginia, testified that Flowers arrived unexpectedly in Virginia on the Greyhound bus. Accompanied by his sister, Flowers surrendered to the police in Virginia on December 16, 2005.
The ticket was purchased by Jamal Jackson, who was identified as a Skyline gang member.
When interviewed by the San Diego police, Flowers denied being a Skyline gang member, denied going to the Bay Vista Apartments, and denied involvement in the shooting. Flowers presented a mistaken-identity defense, and argued that another individual (perhaps Darnell Moore) was the shooter.
Moore was a key prosecution witness who provided evidence supporting the prosecution's theory that Brown was the driver of the vehicle who drove Flowers to the scene of the shooting. Moore testified that he was a passenger in the car driven by Brown. Brown asserts there was substantial evidence to infer that Moore was an accomplice. Accordingly, Brown contends the trial court should have given the cautionary accomplice instructions advising the jury to evaluate whether Moore was an accomplice and if so, it should not convict on his testimony alone and it should view his testimony with caution. To review this claim, we summarize Moore's testimony in some detail.
Moore's Testimony
Moore, age 17 at the time of the offense, testified that he grew up in the southeast San Diego neighborhood where the Skyline gang claimed its territory. Brown, who lived across the street from Moore, was a close family friend who Moore saw nearly every day. Flowers lived down the street from Moore, and Moore saw Flowers occasionally. Moore claimed he was not a member of a gang. However, he acknowledged that he knew Brown was a Skyline gang member; that he "h[u]ng out" with Skyline gang members; and that he had participated in fights with Skyline gang members who were his friends.
During the hours before the shooting, Brown drove Flowers and Moore in Brown's girlfriend's car to various locations in San Diego County. Flowers was in the front passenger seat and Moore was in the back seat. From around 9:00 or 10:00 p.m. until midnight or 1:00 a.m., they were at a "Drip-N-Wet" concert in El Cajon. After the concert they were going to go home, but Brown decided to drive them to downtown San Diego so he could show them the party scene there. However, when they arrived downtown there was not much activity. After driving in the downtown area for about 20 minutes, they decided to go to San Ysidro because the clubs in Mexico were closing and people would be coming back across the border. Around 3:00 a.m. on December 11, they arrived at a Jack in the Box restaurant in San Ysidro and, hoping to meet some girls, stood out front waiting for people to come across the border. After about 15 minutes, Moore went back to the car because he was tired and fell "[s]omewhat" asleep. Brown and Flowers stayed at the Jack in the Box.
When Brown and Flowers returned to the car, Moore told Brown he was ready to go home. Moore was lying in the back seat of the car with his eyes closed; he again fell "[s]omewhat" asleep, thinking they were going home. When he woke up, the car was stopped on a street behind the Bay Vista Apartments. Brown was in the front seat and Flowers was not in the car. Moore did not hear any gunshots and did not know what occurred while Flowers was gone. When Flowers returned, Brown drove them home, first dropping off Flowers and then Moore.
At 4:35 a.m. on December 11, Flowers called Moore and stated that he shot a girl in a car who he thought was Moore's sister, and suggested that Moore check. Moore's sister was dating a man from the Lincoln Park gang and was a frequent visitor at the Bay Vista Apartments. Moore checked and found his sister asleep in their mother's bedroom.
The next day, Moore heard on the news that a female had been shot and killed at the Bay Vista Apartments. He thought about the events of the previous night and Flowers's phone call, but did not call the police. Later, he read in the newspaper that Flowers had turned himself in, but he still did not call the police because he did not want to be involved in a trial.
On January 4, 2006, the police contacted Moore and interviewed him at his home. During this initial interview, Moore did not disclose to the police what occurred because he was afraid of the police questioning him and he did not want to be a "snitch." The police detective told Moore that he knew Brown was the driver, that Flowers was the shooter, and that Moore was with them in the car. The detective stated Flowers was in custody and that he might give a statement identifying Moore as the shooter; that Moore needed to be smart and tell him what happened; that it would be better for Moore to be a witness than a suspect; and that if Flowers and Brown made "deals" and Moore did not do so he could be " 'stuck with the charge.' " The detective suggested that maybe Moore was just in the car and did not know anything.
Moore's family asked the police to give Moore 24 hours to think about the matter. The next day Moore told the police about his activities with Brown and Flowers on the night of the shooting, except he did not mention the phone call from Flowers. About three months later, on March 9, 2006, Moore was interviewed at the district attorney's office with his mother in attendance. At first, he denied he had received a phone call from Flowers because this would reveal that he knew that Flowers had shot the female. After the authorities told Moore that Flowers admitted the phone call and showed Moore phone records reflecting the call, Moore finally admitted the call and told them what Flowers had said.
Moore claimed he did not know there was a gun in the car and did not know there was going to be a murder that night. In March 2006, he was provided a grant of immunity for his testimony. He testified on behalf of the prosecution at a preliminary hearing and grand jury proceeding. Thereafter, he became scared and did not want to testify at trial because he had been told that he was a " 'snitch' " and he better "watch [his] back." He tried to evade service of a subpoena on him, and was ultimately arrested and placed in jail pending his trial testimony. After his trial testimony he was to be provided relocation services, including financial assistance. When interviewed by Brown's defense counsel before trial, Moore stated that his release from custody "was going to be based upon the way [he would] testify." However, at trial he denied that his release was dependent on how he testified at trial.
DISCUSSION
I. Failure to Give Accomplice Instructions Regarding Moore
A conviction cannot be based solely on the uncorroborated testimony of an accomplice. (Pen. Code, § 1111.) If the evidence is sufficient to support a conclusion that a witness implicating the defendant was an accomplice, the trial court must sua sponte instruct the jury to determine whether the witness was an accomplice and give the cautionary accomplice instructions. (People v. Zapien (1993) 4 Cal.4th 929, 982; People v. Tobias (2001) 25 Cal.4th 327, 331.) Because an accomplice may tend to shift blame to the defendant, the accomplice instructions inform the jury that an accomplice's testimony should be viewed with caution and must be corroborated by evidence, independent of the accomplice's testimony, that tends to connect the defendant with the commission of the crime. (People v. Zapien, supra, 4 Cal.4th at p. 982; People v. Tobias, supra, 25 Cal.4th at p. 331; People v. Avila (2006) 38 Cal.4th 491, 562-563; see CALCRIM No. 334.)
The failure to give accomplice instructions is harmless if there is sufficient corroborating evidence in the record. (People v. Zapien, supra, 4 Cal.4th at p. 982.) Corroborating evidence may be slight, may be entitled to little consideration when standing alone, and need not establish all the elements of the crime. (Ibid.) The corroborating evidence "is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth." (People v. Fauber (1992) 2 Cal.4th 792, 834.)
The burden is on the defendant to establish by a preponderance of the evidence that a witness is an accomplice. (People v. Fauber, supra, 2 Cal.4th at p. 834.) Accomplices include persons who share the perpetrator's criminal intent and act as co-conspirators or aiders and abettors. (See People v. Stankewitz (1990)51 Cal.3d 72, 90-91; People v. Tewksbury (1976) 15 Cal.3d 953, 960.)
We agree with Brown that there was sufficient evidence that Moore was an accomplice to warrant the cautionary instructions. The evidence showed that Moore associated with Skyline gang members, including Brown, on a regular basis; he had participated in fights with Skyline gang members; he was with Brown and Flowers at the time of the shooting; he did not call the police to inform them about Flowers's admission in the phone call; when contacted by the police he did not initially disclose what he knew; and he ultimately testified on behalf of the prosecution only after being promised immunity. From this evidence, the jury could infer Moore was not an innocent bystander but rather that he shared Flowers's criminal intent and conspired with or encouraged Flowers to commit the offense.
However, the instructional omission was not prejudicial because there was corroborating evidence, independent of Moore's testimony, that tended to connect Brown with the crime. Flowers was identified as the shooter through evidence apart from Moore's testimony. There was corroborating evidence that Brown was driving on the night of the shooting and that he was with the shooter (Flowers) shortly before the shooting. Brown's girlfriend stated that on the night of December 10, Brown left her residence in her car. The prosecution submitted a photograph of Brown at the Drip-N-Wet concert in El Cajon on December 10 where Moore stated he went with Brown and Flowers, and a surveillance video of Brown and Flowers buying food at the San Ysidro Jack in the Box between 3:19 and 3:25 a.m. on December 11. Further, evidence independent of Moore indicated that someone drove Flowers from Jack in the Box to the scene of the shooting. The shooting occurred at the Bay Vista Apartments in southeast San Diego at about 4:10 a.m. on December 11, which was approximately 45 minutes after Brown and Flowers were videotaped at the Jack in the Box in San Ysidro. The distance between the Jack in the Box and the Bay Vista Apartments was 12 miles (about a 13-minute car drive). Flowers was 15 years old and thus not old enough to have a driver's license. The evidence regarding the distance between the two locales, the closeness in timing between the visit to Jack in the Box and the shooting, and Flowers's age supported that Flowers travelled by vehicle and that he did not drive himself. These evidentiary items, viewed together, corroborated Moore's claim that Brown drove Flowers from the Jack in the Box to the Bay Vista Apartments where the shooting occurred.
At trial, Brown's girlfriend stated she could not recall if Brown was driving her car when he left her residence, but she assumed he was. At the grand jury proceeding, she had testified that he was driving her car on December 10.
Additional corroboration tying Brown to the crime was provided by the evidence showing that Brown and Flowers were members of the same gang (which gave Brown a motive for the crime in rival gang territory) and that Brown assisted in sending Flowers to another state the evening after the shooting (which could support an inference that Brown had facilitated the crime because he was assisting the escape). There was sufficient independent evidence tending to connect Brown with the crime from which the jury could conclude Moore was telling the truth about Brown's involvement. Accordingly, the failure to give the cautionary accomplice instructions was not prejudicial.
The lack of prejudice is further shown by the fact that the jury knew that the authorities had suggested to Moore that Brown was the driver and that Moore could be implicated in the crime if he did not talk to them; knew about the assistance provided to Moore by the prosecution, including immunity and relocation services; and knew that Moore had stated to Brown's defense counsel that his release from custody depended on how he testified. Thus, the jury knew Moore could have been charged with the crime and that he had a strong incentive to assist the prosecution and to place culpability on other persons. The jury was instructed that it could consider whether a witness's testimony was influenced by a bias or prejudice or a promise of immunity. From this instruction, as well as common sense, the jury would have known that it should carefully scrutinize Moore's testimony given that he had a reason to lie. Under these circumstances there is no reasonable probability that had the trial court given the cautionary accomplice instructions the result would have been different. (People v. Lewis (2001)26 Cal.4th 334, 371.)
II. Denial of New Trial Motion
Richards was the only occupant of the Infinity vehicle who identified Flowers as the shooter at trial. After the jury's guilty verdict, Brown filed a new trial motion based on newly discovered evidence concerning Richards. The new evidence consisted of Richards's statements, made to district attorney representatives about two months after the trial, that she had doubts about her trial testimony and that when she now thinks back to the incident "she sees the face in the photograph she was shown prior to trial," which was a reference to Moore's face. In her new trial testimony, Richards explained that although Flowers was the shooter, she may have also seen Moore near the Infinity vehicle at the time of the shooting. Brown argued that Richards's posttrial statements indicated that Moore fabricated his testimony that he was not involved in the shooting, and that if the jury had been presented with this evidence it might have concluded Moore also lied about his claim that Brown was the driver. After Richards testified at the hearing on the new trial motion, the trial court denied the motion, finding the evidence was not newly discovered and would not have affected the verdict.
As stated, two of the four car occupants (Carmichael and Larkins) recanted their pretrial identifications at trial. (See fn. 3, ante.) Car occupant Turner did provide trial testimony identifying Flowers; however, she was not herself able to identify the shooter but merely testified that Carmichael told her that the shooter looked like Flowers.
Brown argues the trial court abused its discretion in denying his request for a new trial based on Richards's new trial testimony that she may have seen Moore with Flowers at the time of the shooting. Because this evidence contradicts Moore's claim that he was asleep in the car and unaware of the shooting, Brown asserts it would likely cause a jury to discredit Moore's testimony that Brown drove to the scene of the shooting. To evaluate Brown's claim, we review relevant portions of Richards's testimony at trial and at the new trial hearing.
At trial, Richards was extensively examined about her pretrial identifications of the shooter, including at a photographic lineup, a live lineup, a preliminary hearing, and a grand jury proceeding. In these pretrial identifications, she did not initially provide a firm identification of Flowers as the shooter, but eventually did so. She also identified Flowers as the shooter at trial. Additionally, Richards was questioned at trial about her reactions when shown a picture of Moore. Just prior to the grand jury proceeding, Richards was shown a photograph of Moore, and she stated that the person in the picture was not the shooter. Shortly before her trial testimony, she was again shown a picture of Moore. When shown Moore's picture on this second occasion, she told the authorities she was "[u]nsure about everything" or "unsure about testifying." Further, Richards was cross-examined at trial about whether she saw anyone else at the scene of the shooting apart from Flowers. She testified that other than Flowers, no one else walked up to the car before the shooting started. When asked again to verify that no one else approached the car other than the shooter, she responded "that's right." When defense counsel observed that she seemed "a little puzzled" about this, she responded "It's just hard to—I'm trying to remember every little detail about that day almost two years ago."
At a six-person photographic lineup, Richards stated she did not see the shooter, but she identified a picture of Flowers as having similar hair and lips. At a six-person live lineup, she identified the shooter as being tall like Flowers and having hair like Flowers, but did not identify him as the shooter. The next day, she contacted the authorities and told them that she knew the shooter was the male she had identified as being tall and having hair like the shooter. At a preliminary hearing and a grand jury proceeding, she identified Flowers as the shooter.
At the new trial hearing, Richards testified that she was going through an emotional period in her life; she was "second-guessing everything about me"; and she had called the prosecutor's office to get help and ask if "it was okay to be not sure... after all this time." When asked whether she was second-guessing her identification of Flowers as the shooter and whether she saw Moore's face as the shooter, she initially responded that sometimes she did question her identification but she did not know, and she was not sure if she saw Moore's face as the shooter and did not remember anymore. However, upon further examination, she stated that she was certain that she saw Flowers shoot Johnson and that she testified correctly at trial. She explained she was not trying to say Moore was the shooter, but rather that maybe she saw Moore outside the Infinity vehicle and saw him walking at the time of the shooting.
After Richards testified at the new trial hearing, defense counsel argued that at a minimum her new trial testimony showed that Moore may have been present during the shooting, and that this cast grave doubts on the veracity of Moore's testimony that Brown was at the scene of the crime. Opposing the new trial motion, the prosecutor argued the evidence was not new evidence because it reflected essentially the same type of second-guessing by Richards as was presented at trial concerning her response to seeing Moore's picture, and further, given the other evidence in the record, it would not have affected the outcome.
In denying the new trial motion, the trial court noted that Richards adhered to her identification of Flowers as the shooter and that, akin to her trial testimony, the proffered evidence merely showed her lack of confidence in her identifications. The court concluded that the mere fact that she was now second-guessing herself did not show newly discovered evidence or evidence that could affect the outcome.
Analysis
To obtain a new trial on the ground of newly discovered evidence, the defendant must show the evidence is newly discovered; the evidence is not merely cumulative; the evidence is such as to render a different result probable on a retrial of the case; the party could not with reasonable diligence have discovered and produced the evidence at trial; and these facts are shown by the best evidence of which the case admits. (People v. Dyer (1988) 45 Cal.3d 26, 50.) The granting or denying of a new trial motion on the ground of newly discovered evidence is a matter within the sound discretion of the trial court; each case must be judged from its own factual background; and the trial court's ruling will not be disturbed on appeal except for an abuse of discretion. (Id. at pp. 50, 52.)
The trial court did not abuse its discretion in concluding that Richards's new trial testimony did not warrant a new trial. The trial court could consider that the proffered new evidence did not consist of a definitive statement from Richards that she saw Moore at the scene of the shooting, but rather was an equivocal statement that she was now second-guessing herself and may have seen him there. The trial court could reasonably assess that this new testimony was similar to the type of testimony that had been presented to the jury at trial—i.e., Richards's trial testimony that when she was shown Moore's picture before trial she became unsure of her testimony, and that she was "puzzled" when she tried to remember if she had seen another person with Flowers at the scene of the shooting.
Further, to the extent a jury might give some weight to Richards's new trial testimony that she may have seen Moore near the car at the time of the shooting, the trial court could reasonably conclude that a different outcome was not probable. Even assuming a jury might conclude from this testimony that Moore lied about his lack of involvement in the crime because Richards saw him at the scene, the jury would still have to decide if Brown had transported Flowers and Moore to the scene of the shooting. When the record is viewed in its entirety, there is strong evidentiary support for a finding that Brown was the driver, which supports the trial court's conclusion that a jury would likely reach the same result at a retrial.
Brown's girlfriend stated that on the night of December 10 Brown left her residence in her car. The prosecution presented photographs or videos depicting Brown at the concert in El Cajon where Moore stated they went, at the Jack in the Box with Flowers shortly before the shooting, and at the Greyhound bus station with Flowers the evening after the shooting picking up the ticket purchased for Flowers. This evidence showed that on the night of the shooting Brown was driving and that he was involved in Flowers's and Moore's activities, and that after the shooting Brown assisted in Flowers's attempt to escape. Further, Moore, age 17 at the time of the offense, testified that he did not have a driver's license and had never driven a car. Flowers was only 15 years old at the time of the shooting and Moore testified he had never seen Flowers drive a car. Absent some showing refuting this evidence, it was unlikely the jury would have thought that Moore or Flowers might have driven themselves to the Bay Vista Apartments where the shooting occurred. The 12-mile distance between the Jack in the Box in San Ysidro and the Bay Vista Apartments in southeast San Diego, and the closeness in timing between their presence at the Jack in the Box and the shooting, indicate that Flowers and Moore were transported to the scene of the shooting by vehicle. The combined effect of this evidence provides strong support for the finding that it was Brown who provided this transportation.
Brown argues the trial court was required to grant the new trial motion because Richards's new trial testimony made Moore's testimony placing Brown at the scene " 'worthless.' " The contention is unavailing. Richards's new trial testimony did not contradict Moore's testimony that Brown was the driver. Rather, it merely raised the possibility of contradicting Moore's testimony that he (Moore) was unaware of the shooting. Even if a jury found Moore lied about his lack of involvement in the shooting, it was not required to reject Moore's claim that Brown drove him and Flowers to the locale where the shooting occurred. (In re Daniel G. (2004) 120 Cal.App.4th 824, 830 [jury may credit part of witness's testimony and reject other parts].)
Given the equivocal nature of Richards's new trial testimony and the strength of the evidence that Brown was the driver, the trial court could reasonably conclude it was not probable that a jury would reach a result more favorable to Brown even if presented with Richards's new trial testimony. The trial court did not abuse its discretion in denying the new trial motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J. AARON, J.