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People v. Burton

COURT OF APPAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 13, 2012
D056818 (Cal. Ct. App. Jan. 13, 2012)

Opinion

D056818 Super. Ct. No. SCD215531

01-13-2012

THE PEOPLE, Plaintiff and Respondent, v. RAYSHEON MARQUISE BURTON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

A jury convicted Raysheon Marquise Burton of first degree murder of Jose Beltran (Pen. Code, 187, subd. (a); count 1) and of attempted murder of Rosalio H., then a minor (§§ 664, 187, subd. (a); count 2). With respect to count 1, the jury also found true that Burton: personally discharged a firearm (§ 12022.53, subd. (d)); personally used a firearm (id., subd. (b)); intentionally and personally discharged a firearm (id., subd. (c)); and was armed with a firearm (§ 12022, subd. (a)(1)).

All statutory references are to the Penal Code unless otherwise noted.

With respect to count 2, the jury found true that Burton: personally used a firearm (§ 12022.5, subd. (a)); the attempted murder was willful, deliberate and premeditated (§ 189); intentionally and personally discharged a firearm (§ 12022.53, subd. (d)); personally used a firearm (id., subd. (b)); intentionally and personally discharged a firearm (id., subd. (c)); and was armed with a firearm (§ 12022, subd. (a)(1)). The trial court sentenced Burton to an aggregate sentence of life plus a term of 75 years to life.

On appeal, Burton does not directly attack the evidence in support of the jury's finding that he was the shooter. Instead, he indirectly attacks that evidence, arguing the trial court abused its discretion when it refused to admit statements made by a co-defendant during a post-arrest police interview that Burton was "slow" and somewhat "retarded," which statements, Burton argues, are relevant to show the co-defendant's consciousness of guilt and to support Burton's theory that he was set up to take the fall as the shooter in the murder and attempted murder.

As we explain, we conclude the trial court properly exercised its discretion when it refused to admit the statements made by Burton's co-defendant. Assuming arguendo the trial court erred and abused its discretion when it excluded the statements, we conclude that error was not prejudicial. Judgment of conviction affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In 2007, Gregory Smith, a friend of Burton and Burton's friend and accomplice codefendant Warren Hargrove III, was shot and killed by Kevin Marquez. About a week after Smith's killing, Andre Mann and Beltran were involved in a stabbing incident during an altercation at an apartment complex in the Clairemont area of San Diego, where Beltran lived with his two sisters. Fearing for his life after the stabbing incident, Beltran fled to Mexico for about four months. Before he left, Beltran told his girlfriend Samantha Sanchez that he was afraid something was going to happen to him. While in Mexico, Beltran stayed in touch with Sanchez and family members.

Sanchez and her friend Ashley Garcia, also a friend of Beltran, encountered Burton and Hargrove one evening at the apartment complex. Initially, the encounter was cordial until Sanchez asked Burton and Hargrove about Beltran and what they had against him. At that point, things became heated because Hargrove was angry about the death of Smith. Hargrove believed Smith was killed by a "Mexican," and he told Sanchez and Garcia that whoever killed Smith was "going to pay back for what they did" and that "[someone] is going to get their ass kicked."

Sanchez later told police that during this exchange, Hargrove threatened "every Mexican's gonna get it." Garcia also reported that Hargrove called Sanchez a "little bitch," told Sanchez that a stabbing was not the "wors[t] that's going to happen" and that he will "make sure that when [Beltran] dies, my [Hargrove's] name is in your head."

In September 2007, Burton and Hargrove applied for and received range cards at the American Shooting Center. Both men filled out an application and passed a written safety test. The records from the range show that Burton used the range on the same day he obtained his range card.

From October 2007 through February 2008, Hargrove lived with Tonya Aune, his girlfriend. Aune also was a friend of Burton and knew Smith and Mann. In February 2008, Aune moved into a house in Clairemont and Hargrove moved into his family's house on Crandall Street in Linda Vista. Aune helped Hargrove purchase a white late model four-door Cadillac.

On March 17, 2008, Smith's mother had a memorial party for her son. Hargrove and Burton attended, along with other friends and family.

The following evening, Patricia Mathena met Hargrove and Burton at Hargrove's family's house. Mathena recalled Burton that night was wearing a brown pair of Dickie pants and a black hooded sweatshirt. After they ate and hung out for a while, Hargrove and Burton followed behind Mathena in the white Cadillac as she drove her family car home. After dropping off the car at about 11:00 p.m., Mathena got in the back seat of Hargrove's Cadillac and together they planned on taking Burton home and then going out.

Mathena invoked her Fifth Amendment right at trial but testified under a grant of immunity; the jury was informed of the grant of immunity.

On their way to Burton's home, Hargrove drove down Chateau Drive near the apartment complex. At the same time, Rosalio H. was walking with Beltran, who was slowly pedaling his bike as the two left a convenience store and headed towards Beltran's home nearby. As they walked, Rosalio testified a white Cadillac headed in the same direction drove slowly past them. Rosalio testified he saw an African-American man sitting in the passenger seat staring at them as the Cadillac passed by. After the car drove by Rosalio and Beltran, Mathena recalled Burton saying, "I think that's the guy that stabbed Andre [Mann]."

Hargrove pulled over at a bend in the road and he and Burton exited the Cadillac and walked up the middle of the street towards Rosalio and Beltran. Rosalio recalled a darker-skinned African-American man (later identified as Burton) in a dark hooded sweatshirt getting out of the passenger seat. Both Burton and Hargrove appeared to be wearing gloves.

As Hargrove and Burton walked past Rosalio and Beltran, Rosalio heard one of the men ask, "Where are you from?" As Rosalio looked over his shoulder, he saw the darker-skinned African-American man, about 20 feet away, begin shooting at them. In court, Rosalio identified Burton as the shooter with 70 percent certainty. Rosalio did not see the face of Burton's companion, but testified the other man was lighter skinned than Burton.

On cross-examination, Rosalio testified that at the preliminary hearing he identified Burton as the shooter with only a 50 percent certainty because he was fearful and intimidated by spectators in attendance at the preliminary hearing.

Rosalio testified he heard about six shots. Rosalio received bullet wounds to his left leg and back. Rosalio also saw Beltran being hit by gunfire. Rosalio ran to the opposite side of the street and fainted on the sidewalk. After he got up, Rosalio saw Beltran fall off his bicycle and the two African-American men run towards the fire station at the end of the block. Rosalio ran back to where Beltran lay and told Beltran he would get help.

Rosalio unsuccessfully attempted to summon help from a nearby house. Rosalio then ran back to Beltran, who appeared to be in pain, and Beltran told him to go to Beltran's family. Rosalio instead jumped on the bicycle and rode to the fire station down the street for help. As he approached the fire station, Rosalio saw the white Cadillac proceeding westbound on Chateau Drive. At the end of the street, the Cadillac made a U-turn and drove past Rosalio who had arrived at the door of the fire station. As the white Cadillac went past him, Rosalio could see a blonde woman driving the car. The car then made a turn into the alley near the fire station.

Several residents living on Chateau Drive heard the gunshots. From their windows, two of the residents each testified they saw two males—one wearing all dark clothing and the other wearing a light shirt and dark pants—running towards the fire station and down the alley. One of the residents saw a white Cadillac drive down the street.

Another resident saw an individual, later identified as Rosalio, get up from the ground and limp over to where the other man, later identified as Beltran, was rolling on the ground ostensibly in pain. As this resident called 9-1-1, she could hear Beltran through an open window saying, "Help me. Somebody help me." This resident then saw Rosalio run to get help, first to a nearby home and then up the street in the direction of the fire station. As the resident continued to look out the window, she saw a "white car" drive by at about 11:10 p.m. in the direction of the fire house.

Rosalio received treatment at the fire station and then traveled by ambulance to the hospital. Rosalio sustained a gunshot wound to the knee, which passed through him. He also was shot in the lower back. Doctors were unable to remove the bullet from Rosalio's back, however. Rosalio required surgery on his stomach and stayed in the hospital for more than a week.

About 11:12 p.m. that night, San Diego Police Officer Kevin Conkle was nearby when he received a dispatch about the shooting. Officer Conkle and another police officer found Beltran lying on the ground, moaning and moving side to side. In response to the officers' question whether he was shot, Beltran said "Yes" but he did not respond to any other questions posed by the officers. Before paramedics arrived, Beltran appeared to have a seizure, gave his final breath and then his body went limp.

Beltran died from a gunshot wound to the thorax, which caused extensive internal injuries. Beltran also received gunshot wounds to his right hand and his right hip. All of Beltran's wounds were inflicted from behind.

Mathena testified that after Burton and Hargrove exited the idling white Cadillac, Mathena moved into the front seat of the car. A few seconds later, after she had lost sight of the two men, she testified she heard about five loud gunshots coming from their direction. Scared and concerned, Mathena took off in the Cadillac, made a U-turn on Chateau Drive and drove back the way Burton and Hargrove had walked, and then doubled back and left the neighborhood in an attempt to find Hargrove and Burton. After driving a few minutes and unable to locate Burton and/or Hargrove, Mathena decided to drive home.

On the way, a police officer pulled behind her and put a spotlight on the Cadillac. Mathena abruptly pulled over and was subsequently arrested. During the search of the Cadillac, officers found a gun in a backpack Mathena identified as belonging to Burton. The backpack was located on the floorboard in the front passenger seat of the Cadillac.

On questioning, Mathena denied any knowledge of a shooting and instead told police she had picked up three Hispanic males she barely knew and had dropped them off at a fast-food restaurant. Mathena gave police fake names for the three men. However, Mathena subsequently changed her story after police told her that she could receive a lengthy prison sentence for her involvement in the shooting and that her story conflicted with the statement Hargrove already had given police.

Mathena told police Burton was wearing a dark sweatshirt and a ball cap and Hargrove was wearing an orange and black jacket with a white T-shirt underneath. She said that while they had been driving down Chateau Drive, Burton told Hargrove to pull over because Burton identified Beltran as the "guy that stabbed Andre [Mann]." Mathena said Hargrove asked Burton what he was doing and Burton responded, "Come on. Come on." as both men then got out of the car. Hargrove told Mathena to get in the front seat.

After giving her statement to police, officers placed Mathena and Hargrove in an interview room and videotaped their conversation, which was shown to the jury. During their discussion, Mathena became upset and told Hargrove she had lied to the police.

A security guard working at an apartment complex on the night of the shooting testified he heard about six shots from what sounded like a revolver. As the guard investigated, he saw two African-American men in their early 20's running through an alley. The guard testified that one of the men wore all dark clothing and possibly a baseball cap while the other wore a light-colored top and dark pants.

Sometime after 11:00 p.m. on the night of the shootings, Hargrove called his friend Gayle Martin. Martin was smoking marijuana with Jenessa Nelleman when Hargrove called and asked her to pick him up at a taco shop on Clairemont Mesa Boulevard. Martin agreed. Just after picking up Hargrove and Burton, Martin testified Burton said to Hargrove, "I'm going to go to jail because of you . . . ." Martin also testified that both men appeared upset: Hargrove was visibly upset, distraught and hit the back of Martin's driver seat, while Burton sat in the back seat and rocked back and forth.

Martin was taken into custody after failing to appear when subpoenaed because she felt threatened by various postings about her on Nelleman's social networking page, including the posts "Gayle Ann Ma[r]tin is a snitch" and "Bitch stop snitching," and because of a phone call Martin received from an unidentified male saying, "Go to court and see what happens." Martin testified after receiving a grant of immunity from the prosecution.

On the way to Hargrove's home, they passed the white Cadillac and saw Mathena with police, which, according to Martin, further upset Hargrove and Burton. On seeing Hargrove's Cadillac surrounded by police, Martin testified Hargrove said, "Fuck, cuz" and "that bitch is a snitch," or words to that effect. In addition, she saw Burton and Hargrove passing between them a grocery-type bag and heard them talk about having to get rid of its contents. After dropping off Hargrove, Martin—with Nelleman still in the car—drove Burton home. On the way, Martin slowed down the car and Burton threw something away in a black trash can located less than a mile from Hargrove's home.

Aune testified that Hargrove called about 12:45 a.m. on March 19, 2008, and asked her to pick him up so they could spend the night together. Hargrove told Aune that he needed a ride because his cousin had the Cadillac. After picking him up, they went to Aune's apartment and then a short time later to a nearby convenience store to get something to drink where they were detained by police.

In the morning of March 19, the day after the murder, police arrested Burton. During the initial police interview, Burton denied any knowledge of the shooting, stating he had been walking the night before in Serra Mesa when Hargrove picked him up in the white Cadillac. Burton told police they then drove to another friend's house where they stayed until about 11:00 p.m. and then drove to Hargrove's home.

As police were "processing" Burton at the station, Burton "all of the sudden" nervously told police he wanted to tell them "what really happened" the night before. During this second 45-minute interview, which was played for the jury, Burton said Hargrove was the shooter. Burton also told police he was afraid for his family because of threats made by Hargrove after the shooting.

Burton told police during the second interview Hargrove had picked him up about 8:45 p.m. the night before; they had driven around and then had gone back to Hargrove's house. After eating, the two left in Hargrove's car and followed a van driven by Mathena. After dropping off the van at Mathena's house, all three were returning to Hargrove's house when, according to Burton, they saw "some Mexican's, a dude . . . on his bike." Hargrove pulled over and got out of the car and went to the trunk, where he pulled out a gun from a large, purple laundry bag. Hargrove and Burton next approached the two Hispanic males later identified as Beltran and Rosalio.

According to Burton, the man on the bike (Beltran) pulled out a gun but the two kept walking. Hargrove then asked, "Where are you from" and then, before either one could answer, Hargrove started shooting at them when he was about five or six feet away. Hargrove and Burton then fled into the alley, where Hargrove hid the gun behind a wall. Hargrove then used a payphone to try and reach Mathena, who had stayed in the Cadillac. When Mathena did not answer, Hargrove called Martin, who eventually picked them up. While trying to reach Mathena, Hargrove kept saying, "It's over," or words to that effect because he believed Mathena was going to "tell" on them.

After Martin picked them up, Hargrove asked Martin to drive by the crime scene. According to Burton, after seeing the street "blocked off," Hargrove became angry. As Martin continued driving they encountered Mathena, who had been pulled over by police and had been placed inside a police car. Hargrove became more enraged and started banging on the car seat. After dropping Hargrove at home, Martin drove Burton to his girlfriend's house. On the way, Burton threw away in a black trash can a pair of black and grey gloves Hargrove had worn in the shooting, as Hargrove had requested. Burton told Martin during the drive that Hargrove was a "fucking crazy man" for what he had done.

After the second interview, Burton led police to the location of the murder weapon—a .38 special caliber revolver—which police retrieved near the shooting. Two bullets removed during the autopsy from Beltran's body were determined to have come from this revolver. However, police were unable to locate the gloves thrown away by Burton because the trash can had been emptied.

In March 2009, the trial court denied Hargrove's motion for severance and granted the prosecution's motion to impanel dual juries, inasmuch as Hargrove and Burton each accused the other of being the triggerman.

Trial commenced in late March 2009. In April, Burton's jury reached a verdict that the court sealed pending a verdict, if any, by the Hargrove jury. In late April, after a mistrial was declared in the Hargrove case, the trial court unsealed and recorded the jury's verdict in the instant case finding Burton guilty as charged and the special allegations true. The trial court sentenced Burton to an aggregate sentence of life plus a term of 75 years to life.

This court in January 2011 granted Burton's unopposed motion to augment the record showing that after the mistrial in the Hargrove case the People refiled the charges and Hargrove pleaded guilty to single counts of voluntary manslaughter and assault with a deadly weapon and admitted he was armed with a firearm. Hargrove subsequently was sentenced to a 13-year prison term.

DISCUSSION

Burton does not challenge directly the evidence supporting his convictions on counts 1 and 2 and/or the true findings on the enhancement allegations. Rather, his sole claim on appeal is that the trial court erred and abused its discretion when it refused to admit into evidence the statements Hargrove made to police that Burton was "kind of slow in the head" and "talks retarded." Burton claims these statements were admissible as circumstantial evidence of Hargrove's consciousness of guilt and were significantly probative of Burton's defense theory that Hargrove was colluding with Mathena to set up Burton as the shooter, even though, according to Burton, it was Hargrove that shot Beltran and Rosalio.

A. Additional Background

After the juries were selected, Burton moved to admit statements Hargrove made to police post-arrest, but prior to Burton's arrest. When Hargrove made the statements, he was denying any responsibility for the shootings, but was contemplating what Burton might say about him and the shootings once police arrested Burton:

"[Counsel for Burton]: [] I would like to . . . admit the statement by Warren Hargrove in one of his interviews wherein he's talking about Raysheon Burton. And he's -- he's sort of wondering what Raysheon may have been saying about him out on the street. . . . [¶] . . . [¶]

"This is Hargrove. 'He'll probably tell you the same thing or he'll probably tell you he don't want anything to do with it. Now I'm -- I'm going to tell you something about Raysheon. Raysheon is -- he's kind of slow in the head. He kind of talk[s] weird, like he -- I don't want to -- like -- that's my friend. He talks retarded.' . . . [¶] . . . [¶]

"THE COURT: This is a statement by Hargrove referring to

"[Counsel for Burton]: Referring to Burton. Right. [¶] . . . [¶]

" . . . Hargrove starts impugning Raysheon's capacity. [¶] . . . [¶]

" . . . It's no surprise to you, Judge, that these guys are essentially pointing at each other. I think what he's saying is that . . . his assessment of Raysheon is that Raysheon is -- he couldn't really have the wherewithal to take care of himself against this sort of accusation. And as they're pointing at him, by saying Raysheon is weird, that he's retarded, they're sort of setting it up in case Raysheon does start to protest. They're starting to put him in a tighter box.

"I think it's all part of the theory that I have; and, that is, that Hargrove and his girlfriend Mathena are going to be pointing at Raysheon [as the shooter].

"I think it's admissib[le] under, I think it's [Evidence Code section] 1220, statement of party,[] [Evidence Code section] 356, completeness of his statements-- he's making other statements in the case which are going to be admitted. And it goes to my defense, which is that these guys are pointing at Raysheon. They're going to be saying that he did it. And here's yet another instance where they're pointing at him saying, 'Well, if he give[s] you trouble with this story, it's because he's retarded, he's slow.'

Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity."

Evidence Code section 356 states: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." Burton does not rely in this proceeding on this particular statute for admission of the statements by Hargrove.

"It's also their assessment that maybe we can get away with pointing at Raysheon because he is kind of slow.

"There are other things in the case that are consistent [with] this. No offense to Raysheon. Raysheon is a very simple, young man. Ah, you are going to see in the tapes of him when he talks about guns, he makes gun noises, like a little kid would. When he talks about cars, he makes car noises like a little kid would. When he talks about what other people are saying, he changes his voice up like a little kid would. So I think this is all consistent with the picture that I want the jury to understand about Raysheon; and, that is, he is a little bit different, as he's been described by a couple of people in this case.

"I think Hargrove's statement[s] fit in under a couple of layers. Again, a statement of a party. It goes to this notion that they're going to be pointing at him. It goes to the notion that Hargrove is sort of providing himself with a cover by saying, 'Well, if Raysheon goes against what I'm telling you, it's because he's slow. It's because he's retarded.'

"It all fits in with the idea that they're going to be pointing at him. Thinking, No. 1, he can't deal with it. No. 2, he doesn't have the wherewithal to take care of himself against those accusations and for the completeness and statement of a party.

"I would introduce this -- just to keep problems from the jury, I could introduce these couple of questions. It wouldn't take very long at all. I could get this from a witness outside of the Hargrove jury."

The trial court initially determined the statements were inadmissible hearsay and not made admissible under Evidence Code section 1220 because the statements were not being used against the declarant—Hargrove. The trial court ruled that defense counsel should refrain from mentioning the statements in opening argument, but noted that defense counsel could tell the jury in opening statement that Burton was a little slow, based on the video of his police interview:

"[THE COURT]: . . . You can certainly mention in your opening statement, 'I expect you're going to see and hear a video of an interview of my client and I think it will be pretty apparent to you that he's a little slow,' you know[.] He's -- that okay I think because I think they're [the jury] going to see and hear that video."

B. Governing Law and Analysis

"A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; see also People v. Vieira (2005) 35 Cal.4th 264, 292 [a trial court's decision to admit or exclude evidence is reviewed for abuse of discretion]).

Initially, we note the statements appear to have been offered by Burton for the truth of the matter—to show Hargrove believed that Burton was in fact a "very simple[] young man" and a "little bit different" and thus was incapable of dealing with the murder or possessing the wherewithal to protect or safeguard himself against or from accusations he was the shooter because in fact he was "slow" and/or "retarded."

To the extent Burton argues the statements were offered for the non-hearsay purpose to show Hargrove's consciousness of guilt because Hargrove did not want police to believe Burton's story, we conclude the trial court did not abuse its discretion in finding the statements were of minimal relevance under Evidence Code section 352 in Burton's case, which case was heard and decided by a separate jury.
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On this record, we cannot say the trial court acted in an arbitrary, capricious or patently absurd manner when it found the allegedly relevant statements inadmissible under Evidence Code section 1220. (See People v. Rodriguez, supra, 20 Cal.4th at p. 10.) We note that statements of a party, or party admissions, are admissible against the party-declarant, which is Hargrove, and not Burton. (See Evid. Code, § 1220 [a statement is not inadmissible as hearsay "when offered against the declarant" in an action involving the declarant], italics added.)

In addition, Evidence Code section 1220 requires the statement be offered by a party opposing the party declarant, which in this case is the People, and not Burton. (See People v. Castille (2003) 108 Cal.App.4th 469, 479, fns. omitted [the hearsay exception under Evidence Code section 1220 "contains two important limitations[:] First, the statement must be offered by a party opposing the declarant. Second, the statement is only admissible against the party who actually made it."].) For this separate and independent reason, we conclude the trial court properly exercised its discretion in ruling the statements by Hargrove were inadmissible under Evidence Code section 1220.

Moreover, even assuming the trial court erred by not admitting the statements in evidence in Barton's case either as non-hearsay or as an exception to the hearsay rule, we conclude that error was harmless. (See People v. Partida (2005) 37 Cal.4th 428, 439 ["the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair, " and absent "fundamental unfairness, state law error in admitting evidence is subject to the traditional [People v.] Watson [(1956) 46 Cal.3d 818, 836] test."]; see also People v. Hall (1986) 41 Cal.3d 826, 834 ["As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense."].)

First, Burton was not precluded from presenting evidence to the jury that he was allegedly "slow." As the trial court noted, the defense was certainly entitled to argue to the jury that Burton was in fact "slow" (in connection with some defense theory), as evidenced (according to defense counsel) by the video-taped interview of Burton conducted by police shortly after his arrest in which Burton made noises and sounds like a child. Thus, we conclude it was not reasonably probable that a result more favorable to Burton would have been reached absent the trial court's alleged error in failing to admit the statements by Hargrove. (People v. Watson, supra, 46 Cal.3d at p. 836.)

Second, there is ample evidence to support the jury's finding that Burton was in fact the shooter, a finding Burton does not directly challenge on appeal. The record shows that at trial Rosalio identified Burton as the shooter with a 70 percent certainty; that Rosalio testified the shooter wore a dark hooded sweatshirt, had darker skin than the person with the shooter and exited the white Cadillac from the passenger seat. The record further shows Burton wore a dark hooded sweatshirt on the night of the crime, the same sweatshirt police found in his room when they arrested him the following day, and that Burton in fact had slightly darker skin than Hargrove. In addition, the record shows Hargrove drove the white Cadillac on the night of the killing and that he and Aune owned the Cadillac.

Moreover, the clothing of the shooter described by Rosalio matched the description of Burton's clothing Mathena provided to police. Mathena also confirmed that Burton sat in the passenger seat of the Cadillac immediately prior to the shooting, before the passenger exited the vehicle.

Finally, shortly after the shooting a security guard saw two African-American males running through some apartments, one of whom wore dark clothing and the other a light shirt. The security guard's description of the clothing worn by the suspects generally matched the actual clothing worn that evening by Burton and Hargrove.

In light of such evidence in the record supporting the jury's finding that Burton was the shooter, we conclude it was not reasonably probable Burton would have achieved a more favorable result absent the trial court's alleged error in excluding the statements by Hargrove regarding Burton's mental acuity. (See People v. McKinnon (2011) 52 Cal.4th 610, 673 [any error by the trial court in admitting hearsay statements was harmless because other, independent evidence "substantially incriminated" the defendant and the hearsay statements were, in any event, "cumulative and of minor value."]; see also People v. Houston (2005) 130 Cal.App.4th 279, 301 [admission of hearsay harmless when other evidence of defendant's guilt was "overwhelming" and hearsay was "cumulative" and "tangential" on the issue of defendant's guilt].)

DISPOSITION

The judgment of conviction is affirmed.

_______________

BENKE, J.

WE CONCUR:

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McCONNELL, P. J.

_______________

IRION, J.


Summaries of

People v. Burton

COURT OF APPAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 13, 2012
D056818 (Cal. Ct. App. Jan. 13, 2012)
Case details for

People v. Burton

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAYSHEON MARQUISE BURTON…

Court:COURT OF APPAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 13, 2012

Citations

D056818 (Cal. Ct. App. Jan. 13, 2012)

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