Opinion
C083076
04-23-2018
THE PEOPLE, Plaintiff and Respondent, v. DEVONTA BOBBY GRAHAM, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F08243)
A jury found defendant Devonta Bobby Graham guilty of second degree murder (Pen. Code, § 187, subd. (a)), two counts of robbery (§ 211), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury also found true the allegations that he personally used and intentionally discharged a firearm proximately causing death. (§ 12022.53, subds. (b), (c) & (d).) The jury further found true the allegation that he personally used a firearm in the commission of the robbery. (§ 12022.53, subd. (b).) In a bifurcated proceeding, defendant admitted that he had suffered a prior serious felony conviction (§ 667, subd. (a)) for burglary (§ 459), which qualified as a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced him to an aggregate term of 90 years four months to life in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in admitting hearsay testimony relating to a codefendant's statements implicating him as the person who shot and killed the victim. Defendant further contends his admission that he had a prior serious felony conviction for burglary was invalid because he was not advised of his constitutional rights to remain silent and confront adverse witnesses. Finally, defendant contends that, in light of the recent amendment to section 12022.53, this matter must be remanded to permit the trial court to consider whether it should exercise its discretion to strike the firearm enhancements imposed under this provision. We affirm the judgment of conviction. However, we will remand the matter for the purpose of allowing the trial court to exercise its discretion whether to strike or dismiss any of the firearm enhancements imposed under section 12022.53.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves an armed robbery at a massage parlor and a murder that occurred thereafter at an apartment complex. In light of the issues raised on appeal, we only briefly summarize the underlying facts. Additional information relevant to the claims on appeal is discussed post.
The Robbery
Around 5:00 p.m. on December 15, 2014, three African-American males entered the Baidu Foot and Body Massage Parlor and robbed two female employees at gunpoint. The men took personal property and cash from the employees. They also took, among other things, a bag from the store containing store receipts and around $3,000 to $5,000 in cash. During the robbery, both females were pistol-whipped and physically assaulted. One of the men also threatened to kill the employees.
When images from surveillance video were circulated to local law enforcement agencies, defendant and Daquan Javon Cooper were identified as two of the perpetrators. Defendant was identified as the individual wearing the striped shirt. The video surveillance showed, among other things, defendant holding a revolver during the robbery and walking away from the massage parlor carrying a black bag.
At trial, defendant testified on his own behalf while his codefendants, Cooper and Ira Swanson, exercised their constitutional right to remain silent. When defendant testified, he admitted that he participated in the robbery. He explained that he and four other men drove to the massage parlor in a Ford Expedition. The driver of the vehicle, Cornelius Huston, and Jemahl Loharsingh stayed in the vehicle, while defendant, Cooper, and Swanson went inside. Defendant admitted that he had a revolver and was wearing a striped shirt during the robbery. He also admitted that he struck one of the female employees with his revolver.
The Murder
In December 2014, Yolanda Sanders lived on the second floor of an apartment complex on Bell Street. On the evening of December 15, she was on her balcony smoking a cigarette when she saw a Ford Expedition park in a neighboring apartment complex and four African-American males get out of the vehicle. Around five minutes later, the man wearing the striped shirt started arguing with one of the other men. The man in the striped shirt yelled, "F- you, nigga," and then raised his arm, stepped backwards, and fired four to five gunshots. Sanders yelled, "Stop that guy right there. He just shot that boy." The shooter looked up at Sanders before calmly walking away and entering a downstairs apartment.
At trial, Sanders identified defendant as the shooter.
At 5:09 p.m., the police received a report of a shooting at 2306 Church Avenue. An officer responding to the robbery heard radio traffic indicating that the shooting occurred near the intersection of Church Avenue and Bell Street. When an officer arrived at the scene of the shooting (i.e., 2312 Church Avenue), she checked the victim, later identified as Loharsingh, and found that he had an erratic pulse but was nonresponsive. Loharsingh was pronounced dead at the scene at 5:23 p.m.
An autopsy revealed that Loharsingh had been shot five times. A search of his pockets revealed, among other things, receipts from the massage parlor and $742 in cash. Forensic testing on the recovered bullets indicated that they came from the same gun, which was likely a revolver. The bullets were determined to be consistent with .38-caliber ammunition.
During a search at the apartment complex where the shooting occurred, police found a .32-caliber Taurus revolver inside a grill on the front porch of apartment No. 2. The revolver was fully loaded with five .38-caliber rounds. A black bag was found near the front door of the apartment. It contained ammunition, including a box of .38-caliber ammunition. Various items were also found inside apartment No. 2, including receipts from the massage parlor.
On the night after the shooting, Swanson, who had been friends with Loharsingh for years, went to Loharsingh's mother's residence. When he arrived, numerous people were inside, including Loharsingh's mother, Dionne Wilson, and Monique Carson, the mother of Loharsingh's children. Swanson told Wilson and Carson as well as about five other people that he, defendant, and Huston robbed a "spa" while Loharsingh was asleep in the car. He explained that they split up the money after the robbery. Shortly thereafter, defendant and Loharsingh got into an argument about the division of the money. During the argument, defendant pulled out a gun and shot Loharsingh five times. Swanson explained that defendant shot Loharsingh after Loharsingh set his gun down and indicated he wanted to fight defendant.
When defendant testified about the shooting, he explained that Huston drove to the apartment complex after the robbery. He further explained that he divided the money from the robbery equally, and that, as he was walking away from the other men, he heard multiple gunshots and took off running. Defendant claimed that he did not see who shot Loharsingh. He also claimed that he saw Swanson carrying the black bag found by detectives following the shooting.
DISCUSSION
1.0 Evidentiary Claim
Defendant contends the trial court prejudicially erred in admitting into evidence certain portions of Swanson's statements to Wilson and Carson under the hearsay exception for declarations against penal interest. (Evid. Code, § 1230.) He argues that the statements Swanson made implicating defendant as the person who shot and killed Loharsingh were inadmissible because the statements were hearsay and not specifically disserving to Swanson to qualify as statements against penal interest. We disagree.
1.1 Additional Background
Prior to trial, the prosecutor filed a motion in limine seeking to introduce the statements Swanson made to Wilson and Carson about the robbery and murder based on Swanson's unavailability as a witness. The prosecutor argued that the hearsay evidence was admissible as a declaration against penal interest under Evidence Code section 1230. Defense counsel objected to the admission of this evidence. At the hearing on the motion, he argued that Swanson's statements regarding the robbery were against his penal interest and therefore admissible, but Swanson's claim that defendant shot Loharsingh was not against Swanson's penal interest and therefore was inadmissible.
The trial court ruled that the evidence was admissible. The court reasoned as follows: "I find that the parking lot incident was so close in time to the robbery—it was not far removed from the robbery. [¶] As a matter of fact, the individuals were not charged with the homicide, because apparently they found it was far enough removed where they couldn't be charged, but they easily could have been charged with that homicide. [¶] The point being is it was still part and parcel of that robbery, in that they were discussing the—the divvying up, the splitting up of the money, which caused the argument, which caused the homicide. [¶] To parse out what can be used and what cannot be used when it's basically all part and parcel of the same event puts the Court in the position of deciding what is believable and what is not believable, and that is within the purview of the jury, not the Court. [¶] And the Court finds that these incidents were so close in time that one cannot separate one from the other, and the jury has a right to hear how this event came about, the reason Mr. Swanson went to the house and—and his view of it." The court added that Swanson was unavailable as a witness because he was a codefendant and had a Fifth Amendment right not to testify, and that the statements he allegedly made to Wilson and Carson were incriminating in that he admitted to being part of the robbery and the events that took place after that. The court determined that Swanson's statements were nontestimonial because a reasonable person would not expect the statements to be used at trial. The court also determined that the statements were trustworthy because Swanson spoke out of remorse and said things against his penal interest.
1.2 Analysis
Although hearsay statements are generally inadmissible under California law (Evid. Code, § 1200, subd. (b)), the rule has a number of exceptions. The exception to the hearsay rule for declarations against penal interest provides, in relevant part: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) "[T]he rationale underlying the exception is that 'a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements." (People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes).)
To establish admissibility under this exception, the proponent has the burden of showing: (1) the declarant is unavailable, (2) the declaration was against the declarant's penal interest when made, and (3) the declaration was sufficiently reliable to warrant admission despite its hearsay character. (Grimes, supra, 1 Cal.5th at p. 711; People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).) "We review a trial court's decision whether a statement is admissible under Evidence Code section 1230 for abuse of discretion." (Grimes, supra, at p. 711.)
Here, there is no dispute that Swanson was unavailable as a witness, having exercised his constitutional right to remain silent. We must therefore determine whether the trial court abused its discretion in concluding that Swanson's statements implicating defendant as the person who shot and killed Loharsingh were against his (Swanson's) penal interest when made and sufficiently trustworthy to warrant admission.
"There is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry." (People v. Greenberger (1997) 58 Cal.App.4th 298, 334 (Greenberger); see Grimes, supra, 1 Cal.5th at p. 711 [" 'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' "].) "Clearly the least reliable circumstance is one in which the declarant has been arrested and attempts to improve his [or her] situation with the police by deflecting criminal responsibility onto others. 'Once partners in crime recognize that the "jig is up," they tend to lose any identity of interest and immediately become antagonists, rather than accomplices.' [Citation.] However, the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures." (Greenberger, supra, at p. 335.)
Similarly, " 'whether a statement is self-inculpatory or not can only be determined by viewing it in context.' " (Duarte, supra, 24 Cal.4th at p. 612.) While the exception for declarations against penal interest applies only to statements that are "specifically disserving of the declarant's penal interest," this does not mean "that a statement that incriminates the declarant and also inculpates [someone else] cannot be specifically disserving of the declarant's penal interest. Such a determination necessarily depends upon a careful analysis of what was said and the totality of the circumstances." (Greenberger, supra, 58 Cal.App.4th at p. 335.)
We find no evidentiary error. Here, the evidence showed that Swanson and Loharsingh had been friends for years. The day after the shooting, Swanson went to Loharsingh's mother's residence and admitted to various people, including Loharsingh's mother (Wilson) and the mother of Loharsingh's children (Carson), that he and several other people (including defendant) had been involved in a robbery, and that defendant shot and killed Loharsingh during an argument over how to divide the money from the robbery. These statements disserved Swanson's penal interests. The context in which the statements were made support the trial court's conclusion that the statements had sufficient indicia of trustworthiness. Swanson's statements, made in the noncoercive setting of Wilson's residence on the day after the shooting prior to any arrests, are inherently trustworthy and sufficiently subjected him to the risk of criminal liability to qualify as declarations against interest. Accordingly, the trial court did not abuse its discretion in admitting the statements under the exception to the hearsay rule for declarations against penal interest.
Defendant's reliance on Duarte is misplaced. In Duarte, the hearsay declarant and the defendant committed a drive-by shooting. After he was arrested, the hearsay declarant told the police that he did not want to kill anybody and " 'shot high' " to avoid harming anyone. (Duarte, supra, 24 Cal.4th at p. 613.) In determining that the declaration lacked trustworthiness, the court noted that the declaration was made shortly after the hearsay declarant had been arrested and taken into custody and was therefore " 'made in the coercive atmosphere of official interrogation.' " (Id. at p. 617.) The court continued: "Under these circumstances, [the declarant] may have believed that the police had sufficient evidence to link him to the crimes, and that he had little to lose and perhaps something to gain by admitting his role while attempting to minimize his participation and shift primary responsibility to others." (Ibid.) The court concluded that the declarant's statements lacked sufficient indicia of trustworthiness to qualify for admission under Evidence Code section 1230 because they were not specifically disserving to the declarant's interests. (Duarte, at p. 618.) In reaching this conclusion, the court stated: "We have observed that the entire rationale underlying the against penal interest hearsay exception 'breaks down in a situation where a declarant in police custody seeks to exculpate himself [or herself] by implicating another suspect.' " (Ibid.) Here, unlike Duarte, Swanson's statements to Wilson and Carson were made under circumstances akin to the circumstances that have been deemed to be the most reliable, i.e., a conversation that occurs between friends in a noncoercive setting which fosters uninhibited disclosures. (Greenberger, supra, 58 Cal.App.4th at p. 335.)
Because we find no evidentiary error, we do not consider the People's alternative harmless error argument.
2.0 Admission of Prior Conviction Allegations
Defendant contends his admission that he had a prior serious felony conviction for burglary was invalid because he was not advised of his constitutional rights to remain silent and confront adverse witnesses. Although the trial court failed to fully advise defendant of his rights, the totality of the circumstances demonstrates that defendant's admission of the prior conviction allegations was voluntary and intelligent. We therefore reject defendant's contention that the error requires reversal.
2.1 Additional Background
The second amended information alleged that defendant had a prior serious felony conviction (§ 667, subd. (a)) for first degree burglary (§ 459), which qualified as a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12). While the jury was deliberating, the prosecutor advised the trial court that defendant was willing to allow the court to decide the truth of the prior conviction allegation. Thereafter, the trial court advised defendant that he had the right to a jury trial on the prior conviction allegation if the jury found him guilty of any of the charges. The court also advised defendant that, in the alternative, he had the right to have the court decide the truth of the prior conviction allegation. In response to the court's inquiry as to whether he understood his options, defendant said, "Yes. I waive." The court replied, "Okay. You're going to waive and wish to [have] . . . a court trial on [the] prior conviction?" Defendant responded, "Yep." Defense counsel requested the court trial take place at the same time as judgment and sentencing.
After the jury returned its guilty verdicts later that same day, the court scheduled a hearing for judgment and sentencing. At the outset of that hearing, which occurred about five weeks later, defense counsel submitted the matter of the prior conviction allegation to the court. Based on the submission, the court asked defendant whether he admitted he had a prior conviction for violating section 459, residential burglary, on September 15, 2011. In response, defendant said, "Yes." Prior to defendant's admission, the court did not advise defendant of his rights to remain silent and to confront adverse witnesses.
2.2 Analysis
"[B]efore accepting a criminal defendant's admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. [Citation.] Proper advisement and waivers of these rights in the record establish a defendant's voluntary and intelligent admission of the prior conviction." (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).) "[I]f the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of 'the entire proceeding' to assess whether the defendant's admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances." (Id. at p. 361.) In applying the totality of the circumstances test, "previous experience in the criminal justice system is relevant to a recidivist's ' "knowledge and sophistication regarding his [legal] rights." ' " (Id. at p. 365.)
In Mosby, our Supreme Court addressed the following issue: "When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial, can that admission be voluntary and intelligent even though the defendant was not told of, and thus did not expressly waive, the concomitant rights to remain silent and to confront adverse witnesses?" (Mosby, supra, 33 Cal.4th at p. 356.) The court concluded that the answer to this question is " 'yes,' if the totality of circumstances surrounding the admission supports such a conclusion." (Ibid.)
In concluding the defendant voluntarily and intelligently admitted the prior conviction despite the incomplete advisement by the trial court, the Mosby court explained that the defendant had admitted the prior conviction immediately after a jury found him guilty of the substantive offense following a trial in which he was represented by counsel and did not testify. (Mosby, supra, 33 Cal.4th at p. 364.) "Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation." (Ibid.)
The court added, "[a] review of the entire record also sheds light on [the] defendant's understanding. For instance, 'a defendant's prior experience with the criminal justice system' is, as the United States Supreme Court has concluded, 'relevant to the question [of] whether he knowingly waived constitutional rights.' [Citation.] That is so because previous experience in the criminal justice system is relevant to a recidivist's ' "knowledge and sophistication regarding his [legal] rights." ' [Citations.] Here [the] defendant's prior conviction was based on a plea of guilty, at which he would have received Boykin-Tahl advisements. As the Court of Appeal here concluded: '[H]e knew he did not have to admit [the prior conviction] but could have had a jury or court trial, had just participated in a jury trial where he had confronted witnesses and remained silent, and had experience in pleading guilty in the past, namely, the very conviction that he was now admitting.' " (Mosby, supra, 33 Cal.4th at p. 365, fn. omitted.)
Boykin v. Alabama (1969) 395 U.S. 238 ; In re Tahl (1969) 1 Cal.3d 122.
Having considered the record in its entirety, we conclude defendant voluntarily and intelligently admitted the prior conviction allegations. Although the trial court erred in failing to advise defendant of his rights to remain silent and confront adverse witnesses, defendant's admission occurred shortly after he had participated in a jury trial in which such rights were exercised. At trial, defendant chose to testify while his codefendants exercised their constitutional right to remain silent. During the trial, defendant and his codefendants, through counsel, vigorously confronted adverse witnesses. Having been represented by counsel during the jury trial, it is reasonable to infer defendant was aware that he had the right to remain silent and confront witnesses against him at the court trial on the prior conviction allegations.
Relying on People v. Lloyd (2015) 236 Cal.App.4th 49 (Lloyd), defendant argues that his admission was not voluntary and intelligent because it did not occur until over a month after the jury trial and he did not exercise his right to remain silent during the jury trial. Lloyd is distinguishable.
In Lloyd, a jury found the defendant guilty of assault with a deadly weapon and found true the allegation he inflicted great bodily injury on the victim. (Lloyd, supra, 236 Cal.App.4th at p. 52.) In a bifurcated proceeding conducted more than seven months later, the defendant admitted having served five prior prison terms. (Id. at p. 59.) "In the interim, [the] defendant's trial counsel declared a conflict of interest and was relieved as counsel of record, new counsel was appointed to represent [the] defendant, and the matter was continued a number of times for trial on the state prison priors and sentencing." (Ibid.)
The appellate court in Lloyd distinguished Mosby, noting that "the Supreme Court stressed the defendant's admission 'immediately' followed a trial in which he had 'just' exercised his right to silence and his right to confrontation, such that it was reasonable to infer he would have been aware of the right to silence and confrontation at the time he entered his admission." (Lloyd, supra, 236 Cal.App.4th at p. 59.) "Here, on the other hand, [the] defendant's admission did not immediately follow his trial. In fact, the admission was not made until seven months later." (Ibid.)
Here, although defendant's admission did not "immediately" follow the jury trial, the time period between the trial and his admission was not so long that a reasonable person in defendant's position would have been likely to forget or become confused about his constitutional rights. (See United States v. Dawson (9th Cir. 1999) 193 F.3d 1107, 1110-1111 [the defendant, who had received full advisements in state court action two months before he entered a guilty plea on incomplete advisements in federal court, knowingly waived rights of confrontation and silence despite lack of advisement on either].) Moreover, unlike the defendant in Lloyd, defendant did not experience any change in counsel, such that new counsel may have failed to discuss the consequences of his admission with him. The record discloses that defendant was represented by the same attorney during the jury trial and the court trial.
Furthermore, defendant was no stranger to the criminal justice system, having suffered multiple juvenile adjudications as well as a prior felony conviction in adult criminal court. He was also acquitted of attempted murder in 2013 following a jury trial. We can infer defendant's understanding of his constitutional rights from his extensive experience with the criminal justice system. (Mosby, supra, 33 Cal.4th at p. 365.)
3.0 Firearm Enhancement Reconsideration
In a supplemental brief, defendant contends that, under the recent amendment to section 12022.53, this matter must be remanded to the trial court so it may consider whether to strike the firearm enhancements imposed in this case. The People concede the point, and we agree.
On October 11, 2017, the Governor signed into law Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended section 12022.53, subdivision (h), effective January 1, 2018 (Stats. 2017, ch. 682, § 2). Prior to the enactment of Senate Bill No. 620, and at the time defendant was sentenced by the trial court, this provision required mandatory imposition of sentencing enhancements in certain enumerated situations. As amended, this provision now states: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
For the reasons stated by this court in People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091, petition for review pending, S246941 (petn. filed Mar. 2, 2018), we conclude that the recent amendment to section 12022.53 is retroactive and applies to this case. We further conclude that remand is appropriate to allow the trial court to exercise its discretion as to whether to strike any of the firearm enhancements. The People do not argue, and the record at sentencing does not disclose, that remand would be futile because the trial court would not have exercised its discretion to strike any of the firearm enhancements had it known it had such discretion. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand not required where trial court's comments at sentencing and sentence itself show that "no purpose" would be served by a remand].)
In finding that the recent amendment to section 12022.53 is retroactive, this court reasoned as follows, "[T]he amendment to subdivision (h) of Penal Code section 12022.53 . . . necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice. Moreover, because there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply . . . ." (People v. Woods, supra, 19 Cal.App.5th at p. 1091, review pending.) --------
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded to the trial court to exercise its discretion whether to strike or dismiss any of the firearm enhancements imposed under section 12022.53, and, if appropriate, to resentence defendant.
BUTZ, Acting P. J. We concur: MURRAY, J. RENNER, J.