Opinion
A147250
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DRAWN IV, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C173278)
Robert Drawn IV was convicted of the first degree murder of Waleed Wheatfall, the attempted murder of K. Robinson and related firearms charges. His defense at trial was that he was not the shooter. Drawn contends it was error to admit hearsay evidence that police had information about the direction the shooter fled, and that the error was prejudicial because it tied the shooter to a hat that contained DNA consistent with his own. Not so. The testimony was properly admitted for a relevant nonhearsay purpose and, in any event, it was not prejudicial, so we affirm. But we correct two sentencing errors properly conceded by the People.
BACKGROUND
The shootings occurred near the intersection of 57th Avenue and Foothill Boulevard in Oakland, where Drawn operated an auto detailing service out of a space he leased from a car wash. Drawn typically parked his blue van with large rims at the car wash or on the street nearby.
On the day of the shootings the owner of the car wash saw Drawn conversing with Wheatfall. From their body language, "[i]t seemed like, you know, points were trying to be made." Later the owner heard gunshots, crossed the street and saw Robinson, in his car, shot.
That afternoon M. LeClaire was sitting in his parked truck at the car wash when he noticed a "big African-American guy with a full beard" in a truck parked next to his. The man was "talking really loud" and apparently arguing with someone. A few minutes later a blue van with big rims pulled in and parked in front of LeClaire's truck. Drawn got out of the van and the bearded man got out of his truck. Both were yelling and Drawn said "Come on. I'm gonna go knock this nigga's head off. Let's go knock this nigga's head off." The two crossed the street to the Safeland Market parking lot, where a man approached Drawn and extended his right arm as though to shake his hand. Drawn drew a gun, shot the man several times, then walked up to a parked car and "shot whoever was sitting there through the window." The bearded man ran back to his truck and drove away. Nobody returned to the blue van.
The next day police showed LeClaire a photo lineup. He recognized Drawn as the shooter, but did not want to get involved so he told police he did not recognize anyone. About six weeks later police showed LeClaire another photo lineup. This time he identified Drawn "[b]ecause I didn't feel I was so much under pressure like the first time," but said he was only 50 percent sure because he was afraid for his family's safety. He testified at trial that he lied to police about being uncertain and lied again at the preliminary hearing because he was afraid of repercussions from Drawn or his friends. LeClaire decided to do "the right thing" after the prosecutor promised to protect his family, and at trial testified he was certain Drawn was the shooter.
Robinson testified he was hanging out with Wheatfall at the Safeland Market the day of the shooting. He observed Wheatfall and Drawn having a conversation. Drawn left but returned 15 or 20 minutes later. Robinson thought he and Wheatfall were going to get jumped, so got into his car to put his phones away "[s]o I wouldn't break them if I get into a fight or something." Moments later he heard gunshots. Robinson was shot three times as he sat in his car.
Robinson called 911. A recording of his call was played for the jury. He said the shooter was "the guy at the detail shop across the street" and had a blue van. Five days later Robinson identified Drawn as the shooter from a six-pack photo lineup on which he circled and initialed Drawn's photograph.
At trial Robinson was a reluctant witness. He testified he never saw the shooter and did not remember being shown or making an identification from a photo lineup. But, he conceded that he recognized his handwriting and initials next to Drawn's photo. He later told police he did not know what he was doing when he identified the shooter because he was on medication. Robinson told the prosecutor that people who grow up in Oakland "are not supposed to come to court and testify . . . about what happened."
A. Williams and R. Lee drove to Safeland Market to see Wheatfall shortly before the shootings. Williams got out of the car and greeted Wheatfall. Then they heard gunshots. Lee looked around and saw a tall man in a hoodie and baseball cap shooting a gun toward the ground. She ducked and tried to drive away, but her car ran over "somebody or something" so she stopped and got out. Williams had run behind the market when he heard shots but came back to look for Wheatfall. Wheatfall was dead, his body pinned under Lee's car. The cause of death was multiple gunshot wounds. Neither Williams nor Lee was able to identify the shooter.
Drawn never returned to the car wash for his van and stopped visiting his children's mother not long after the shooting. He called her two or three times per month, but he blocked his phone number and would not disclose his whereabouts.
Police found a blue baseball cap in the direction the shooter was seen fleeing from the crime scene. DNA on the cap was consistent with Drawn and could have come from him, but a statistical analysis was not possible due to the quality of the sample.
Drawn was arrested in Southern California almost a year and a half later. A jury found him guilty of first degree murder and attempted murder, each enhanced for his use of a firearm, and three firearms offenses. Sentenced to 84 years to life in prison, Drawn filed this timely appeal.
DISCUSSION
I. Hearsay
Drawn contends his convictions for murder and attempted murder must be reversed because a police sergeant and an evidence technician were permitted to testify that the blue baseball cap was collected and tested for DNA due to information the suspect fled in the direction where it was found. Drawn argues this was inadmissible hearsay and that the error was prejudicial because the testimony "struck directly at the heart of appellant's defense that he was not the shooter" and the prosecution's case was "not overwhelming." We disagree.
Background
The prosecutor moved in limine to introduce a recording of an anonymous 911 call made shortly after the shooting. The caller reported that one of the suspects dropped a dark blue hat as he fled and described the location where police could find it. The court ruled the recording was not admissible as a spontaneous utterance, "[s]o it may be admissible for non-hearsay purpose[s], but it's not admissible for the truth asserted in the statement."
At trial, the prosecutor asked questions of two witnesses that elicited information drawn from the recording. Over a defense objection, evidence technician Patricia Boyle testified that she placed a placard next to a baseball cap found not far from the shootings because she "was advised that the suspect fled southbound on foot." The court admonished the jury. "[T]echnician Boyle just testified that she was advised that the suspect fled this direction. Now, that would be hearsay if it was being offered to prove that, in fact, the suspect fled that direction. However, there's a non-hearsay purpose which is information that was imparted to Technician Boyle that the suspect fled that way. Whether it's true or not, based on that information that's why she placed the placard there and that explains her conduct. That's a non-hearsay purpose for why the evidence is offered."
Lead police investigator Sergeant Rosin testified over objection that he had the cap tested for DNA "because I had information that the suspect in this crime had ran from the crime scene on foot in a southern direction which would cover this area . . . ." The court admonished the jury: "Again, ladies and gentlemen, the statement that Detective Rosin just related about the suspect running on that street is offered only as giving information to this detective which caused him to have the hat tested for DNA not as truth of the fact that the suspect, in fact, ran south on that street." At the conclusion of trial, the court instructed the jury pursuant to CALJIC No. 2.09 that "Certain evidence was admitted for a limited purpose. [¶] At the time this evidence was admitted, you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [¶] Do not consider this evidence for any purpose except the limited purpose for which it was admitted."
Analysis
"An out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute. (People v. Armendariz (1984) 37 Cal.3d 573, 585 . . . ; People v. Bunyard (1988) 45 Cal.3d 1189, 1204-1205 . . . ; see People v. Scalzi (1981) 126 Cal.App.3d 901, 907 . . . [' "one important category of nonhearsay evidence—evidence of a declarant's statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearer's reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement." '].) (People v. Turner (1994) 8 Cal.4th 137, 189, overruled on another point in People v. Griffin (2004) 33 Cal.4th 536, 555 fn. 5.) We review the court's relevance determination for abuse of discretion. (See People v. Rowland (1992) 4 Cal.4th 238, 264.)
Drawn contends the court erred when it concluded the challenged testimony was admissible to explain why police collected and tested the hat for DNA because "the officers' conduct and the legality of their actions in collecting this evidence was not a disputed issue." Therefore, he maintains, the testimony was not relevant for any nonhearsay purpose and should have been excluded. Not so
"A hearsay objection to an out-of-court statement may not be overruled simply by identifying a nonhearsay purpose for admitting the statement. The trial court must also find that the nonhearsay purpose is relevant to an issue in dispute." (People v. Armendariz, supra, 37 Cal.3d at p. 585; People v. Lucero (1998) 64 Cal.App.4th 1107, 1109-1110.) Here, the officers' reason for treating the baseball cap as potential evidence, i.e., information that the suspect fled in that direction, contradicted a main theme of Drawn's defense: that the police conducted a sloppy and biased investigation, pursuing only evidence they knew would implicate Drawn while ignoring other avenues of investigation. Defense counsel told the jury in her opening statement that "the police focus[ed] their investigation immediately on Mr. Drawn and ignored evidence of other possibilities. The police had tunnel vision. They had a theory about who did the shooting, and they did everything they could to support that theory." Repeating the theme in closing, she argued the police "started with the conclusion that Mr. Drawn committed these crimes, and they worked backwards to support that conclusion, and that is not the way an unbiased investigation works. Instead, we see the bias. We see the bias—we see the bias in the steps that they took in this investigation. We see the bias in the steps that they did not take in this investigation." So the police "looked for what they wanted to hear. If it didn't fit their theory, then they disregard it as lies and fears with no basis to support that." In this context, police retrieval and testing of the hat for DNA was directly relevant. There is nothing in the record to show that police had any reason to believe the hat belonged to Drawn at the time it was taken from the scene. These circumstances were relevant to refute his theory that he was targeted by police. The court's ruling was well within its discretion.
In any case, admission of the evidence was also nonprejudicial. Drawn complains the hearsay information that the shooter fled southward tied the cap (with arguably his DNA) to the shooter, but the jury saw a video depicting the shooter, wearing a baseball cap, fleeing in that direction. That police possessed information the shooter fled south thus had little if any independent significance. Moreover, the jury was admonished not to consider the challenged testimony as proof the suspect fled south, and the prosecution evidence, including Robinson's identification of Drawn from a photo lineup and LeClaire's in-court identification, was compelling. We are satisfied the challenged testimony could not have affected the verdict under any standard.
II. Sentencing Issues
Drawn was charged in count three with unlawfully transporting an assault weapon and in counts four and five with being a felon in possession of a firearm. Counts three and four were based on his possession of an assault weapon found in the blue van, while count five was based on his possession of the handgun used to shoot Wheatfall and Robinson.
The court imposed a two-year concurrent term for count four and imposed and stayed a two-year term for count five pursuant to Penal Code section 654. Drawn and the People correctly observe that this was error. Both counts three and four were based on possession of the assault weapon, so the court should have stayed count four. (See People v. Jones (2012) 54 Cal.4th 350, 353, 357 [single possession or carrying of a single firearm on a single occasion may be punished only once under section 654].) On the other hand, count five was based on possession of the handgun, so section 654 did not apply. (See People v. Correa (2012) 54 Cal.4th 331, 334, 342-343.) We therefore order the sentence modified to stay execution of sentence on count four and impose the concurrent term on count five, consistent with section 654 and the intent apparent from the court's sentencing decision.
Both parties also correctly agree that the abstract of judgment fails to reflect the trial court's award of 1,010 days of presentence credit for actual time served. We modify the judgment accordingly and remand for the trial court to determine whether Drawn is entitled to good conduct credits not shown on the abstract of judgment.
DISPOSITION
The case is remanded for a determination of whether Drawn is entitled to good conduct credits not reflected on the abstract of judgment. The sentence is modified to stay the two-year concurrent term imposed on count four and impose the two-year concurrent term imposed and stayed on count five. The trial court shall modify the abstract of judgment to show this change and to reflect Drawn's presentence custody credits and, if applicable, any good conduct credits to which he is entitled. The judgment is affirmed in all other respects.
/s/_________
Siggins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Jenkins, J.