Opinion
B228687
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. MELVIN WAYNE CLARK, JR., Defendant and Appellant.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General and Pamela C. Hamanaka, Assistant Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA074782)
APPEAL from a judgment of the Superior Court of Los Angeles County, Scott T. Millington, Judge. Affirmed.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General and Pamela C. Hamanaka, Assistant Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Melvin Wayne Clark, Jr., appeals from a sentence of 72 years to life in state prison for the murder of Robert Jackson, the attempted murder of Melvin Clark, Sr., appellant's father, and being a felon in possession of a firearm. He contends there was insufficient evidence to support his convictions. Finding no error, we affirm.
STATEMENT OF THE CASE
A three-count information filed January 4, 2010 charged appellant in count one with the murder of Jackson, in count two with the attempted murder of Clark, Sr., and in count three with possession of a firearm by a felon. (§§ 187, subd. (a)/664, 12201, subd. (a)(1).) As to counts one and two, it was further alleged that appellant personally and intentionally discharged and used a firearm causing great bodily injury and death. (§ 12022.3, subds. (b), (c), (d).)
All further statutory citations are to the Penal Code, unless otherwise stated.
A jury found appellant guilty of second degree murder on count one, and guilty as charged on the other counts. The jury also found true the firearm allegations as to counts one and two.
The trial court sentenced appellant to: 15 years to life on count one, plus 25 years to life for the section 12022.53, subdivision (d) firearm allegation; the middle term of seven years on count two, plus 25 years to life for the section 12022.53, subdivision (d) allegation to run consecutively; and a concurrent middle term of two years on count three. The court also imposed but stayed the remaining four firearm enhancements pursuant to section 654. Appellant was awarded credit for 592 days in custody.
After appellant filed a timely notice of appeal, this court appointed counsel to represent him. After examining the record, appointed appellate counsel filed a brief raising no issues, but asking this court to independently review the record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442. (See Smith v. Robbins (2000) 528 U.S. 259, 264.) On April 13, 2011, we advised appellant he had 30 days within which to submit by brief or letter any contentions or argument he wished this court to consider. On May 13, 2011, appellant filed a letter brief raising five issues.
STATEMENT OF THE FACTS
On April 6, 2009, appellant, his girlfriend Unique Talbert, his parents Clark, Sr. and Jackie Gipson, and Jackie's friend, Cassandra Raymond, were standing outside near the apartment of Versie Gipson, appellant's aunt. Appellant's parents were trying to convince appellant to inform his parole officer that he had moved out of Versie's apartment and into his uncle's apartment. Appellant had been living with Versie until she told him to move out the prior weekend. According to Clark, Sr., he had to call the police twice that weekend because after appellant moved out, Versie had threatened appellant and Talbert, and had struck appellant. Versie denied threatening or hitting appellant, but she admitted she had shot her brother in 1995 and had spent time in a mental hospital in 1996 after her mother died.
Clark, Sr. testified that he and Jackie were unable to contact the parole officer by telephone, so he told Jackie he would take appellant to the parole office. Jackie and Raymond, who were already high on drugs, told him they needed to run into the house quickly. He knew they were planning to smoke more drugs. As Jackie was walking toward the apartment complex, Robert Jackson pulled up in his car. He ran up to Jackie and hugged her. Jackson was the godson of Clark, Sr., and he had lived with the Clark family for years. Jackson then hugged Clark, Sr. and walked over to appellant.
According to recorded statements that Jackie and Raymond gave to the police, appellant shook Jackson's hand, pulled him closer, gave him a pat in the back, and then pushed him off and shot him three times. After Jackson fell to the ground, appellant shot him one more time. Clark, Sr. then tried to grab appellant's hand holding the gun, but appellant got away and shot his father once. Appellant then ran with Talbert to his car and drove away.
The recordings were played to the jury, and transcripts of the recordings were provided to the jury.
At trial, Jackie testified that she had gone into the building after Jackson had hugged her and before the shooting occurred. She claimed not to recall her conversation with the police, saying she was under the influence at that time. Raymond testified at trial that she was in the building with Jackie when the shooting occurred. She claimed to have related the events to police as she heard them from Versie.
Versie testified that during the incident, she was in her apartment looking through her window at the group below. She saw Jackson approach the group, hug Jackie and Clark, Sr., and approach appellant. When Jackson was about six inches away from appellant, appellant drew out a gun and shot Jackson three times. Jackson fell to the ground after the third shot. Appellant then stood over him and shot him a fourth time. Clark, Sr. grappled with appellant before appellant got free and shot his father in the shoulder. Versie then went to her telephone to call her daughter and 911 when she heard a fifth shot being fired.
According to Detective Loyd Waters, when he interviewed appellant's father, Clark, Sr. had told him that his son had shot a friend and then shot him in the shoulder. At trial, Clark, Sr. denied making these statements to the detective. He testified that a man in a hooded sweatshirt had shot Jackson and himself. Versie denied seeing a man in a hooded sweatshirt during the incident. Andrea Bryant, who lived in the apartment next to Versie, allegedly told a defense investigator that she saw a black male wearing a hooded sweater approach appellant, Jackson, and Clark, Sr. At trial, however, she testified that she saw only the latter three men, and denied seeing any male in a hooded sweatshirt. Bryant did not see the person who was shooting.
The police interview with Clark, Sr. was not recorded.
According to the medical examiner, Jackson died from multiple gunshot wounds to the head. Three of the gunshots wounds were lethal and had very similar trajectories. The ballistics evidence showed that the shooter was more than 18 inches away from Jackson as there was no stippling caused by a gun discharge near the wounds. When appellant was arrested at 2:00 a.m. the next day, he had no weapon on him.
DISCUSSION
In his letter brief, appellant contends his convictions should be reversed because (1) the trial court allowed Versie to testify even though she was not asked whether she was taking any medication for her mental illness, (2) the prosecutor introduced statements by his father that were hearsay, (3) defense witnesses who would have testified about Versie's threats to him were not called, (4) the ballistics evidence showed he could not have murdered Jackson, and (5) no weapon was found on him. We address each contention in turn.
As to Versie's testimony, there was no evidence that she was currently on any medication that might affect her testimony. Nor was there any evidence that she could not testify at trial. She was hospitalized more than 10 years ago, in 1996. Thus, the trial court did not err in allowing Versie to testify even though she was not asked if she was currently on any medication.
During the examination of Clark, Sr., the prosecutor asked him about certain statements he had made to Detective Waters. Clark, Sr. denied making most of the statements. Thereafter, the prosecutor asked Detective Waters about these statements. There was no prosecutorial misconduct in asking Clark, Sr. or Detective Waters about the statements because the prosecutor was attempting to impeach Clark, Sr.'s trial testimony with his prior inconsistent statements. (Evid. Code, § 770 [extrinsic evidence of a prior inconsistent statement admissible if witness given opportunity to explain or deny].)
As to calling additional defense witnesses to testify about Versie's threats, their testimony would have been duplicative of Clark, Sr.'s testimony.
As to the ballistics evidence, it did not conclusively establish that appellant could not have murdered Jackson. While there was no stippling near the wounds and the evidence indicated that appellant was close to Jackson when he shot him, it is possible that he was more than 18 inches away. Versie's testimony that appellant was about six inches away was based upon viewing the incident from her apartment above the street. Thus, a reasonable jury could have found that appellant shot Jackson from a distance farther than Versie's estimate of six inches.
Finally, the fact that no murder weapon was found on appellant when he was arrested hours later did not establish that he could not have committed the crimes. Forensic evidence established that Jackson was fatally shot and that Clark, Sr. was injured by a bullet in his shoulder; eyewitnesses identified appellant as the shooter. This was sufficient to support the convictions.
This court has examined the entire record in accordance with People v. Wende, supra, 25 Cal.3d at pp. 441-442. We agree with counsel that no arguable issue exists on appeal. Accordingly, we affirm the judgment of conviction.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J. We concur: EPSTEIN, P. J. SUZUKAWA, J.