Opinion
C087436
08-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DAMESHLO ANTWONE GREEN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F03237)
In a second trial after the jury hung in a first trial, defendant Dameshlo Antwone Green was convicted of first degree murder with a shotgun and of being a felon in possession of a firearm. The trial court sentenced him to 75 years to life in prison.
Defendant now contends (1) his trial counsel was ineffective in not attempting to introduce hearsay statements that there was a struggle over the shotgun and that the shooting was an accident; (2) the trial court erred in finding that an unavailable hearsay declarant's statement about the location of the shotgun was not a statement against penal interest; (3) exclusion of the hearsay statement about the location of the shotgun violated defendant's due process right to present a defense; (4) cumulative prejudice requires reversal; and (5) the judgment must be modified to give defendant one more day of presentence credit, and the trial court minutes and abstract of judgment must be amended and corrected to properly reflect the judgment as orally pronounced and as modified.
We conclude (1) the record is inadequate to establish ineffective assistance of counsel, (2) the record does not support defendant's challenge to the trial court's evidentiary finding, (3) exclusion of the hearsay statement about the location of the shotgun did not violate defendant's due process rights, (4) there was no cumulative prejudice, and (5) we agree defendant is entitled to an additional day of presentence credit and that the trial court minutes and abstract of judgment must be amended and corrected to properly reflect the judgment as orally pronounced and as modified.
We will modify the judgment, affirm the judgment as modified, and direct the trial court to prepare amended and corrected minutes and abstract of judgment.
BACKGROUND
Defendant and the victim, Tamisha Ridge, had a long term, on-again, off-again relationship. Defendant had prior convictions for abusing Ridge in fits of jealous rage. At the time of the murder, the relationship between Ridge and defendant had ended, but defendant wanted to rekindle it. Ridge lived in Sacramento, and defendant had been staying with his sister and working with his father in Texas. Ridge was dating L.W.
On May 12, 2014, defendant flew from Texas to Sacramento. When he arrived, he called Ridge and they argued, but he did not tell her he was in Sacramento. On May 12 and 13, defendant sent text messages to Ridge accusing her of betraying him but also seeking to reconcile. He made numerous additional phone calls to Ridge, but Ridge did not answer most of them even though he begged her in text messages to answer his calls.
In the early morning hours of May 14, Ridge and L.W. went to bed together in Ridge's bedroom, while others were in the home. Defendant entered Ridge's home through the back door at around 4 a.m. and went to Ridge's bedroom. A shotgun discharged and defendant fled. L.W. woke a woman who had been sleeping in the living room and, referring to defendant, told her "Twon shot [Ridge]." L.W. wrapped a piece of clothing around the shotgun and slid it out of the bedroom, after which he drove to the home of Ridge's brother and said, "He shot her, he shot her, we gotta go. He shot [Ridge]."
Later that morning, defendant turned himself in at a sheriff's station.
Ridge died from a shotgun wound to her face. The shotgun was found in two pieces. A wooden piece was on the bed, and the rest was in the living room. No fingerprints were found on the shotgun.
Defendant testified during the first trial, and his testimony was read into evidence in the second trial. He said he went to Ridge's house at 4 a.m. on May 14, 2014, to reconcile with Ridge, not knowing that L.W. was there. He entered through the back door and went into Ridge's bedroom, where he found L.W. and Ridge. L.W. rushed defendant and they struggled. According to defendant, L.W. reached under the bed and pulled out a shotgun. As the two fought over the shotgun, L.W. hit defendant in the face with the stock. When L.W. hit defendant with the shotgun, it discharged toward Ridge. Defendant fled.
The first jury was unable to reach a verdict, and the trial court declared a mistrial. A second jury convicted defendant of first degree murder by personally discharging a firearm causing Ridge's death (Pen. Code, §§ 187, subd. (a), 12022.53, subds. (b), (c), & (d) -- count 1) and being a felon in possession of a firearm (§ 29800, subd. (a)(1) -- count 2). The trial court found true a prior serious felony conviction allegation under the three strikes law.
Undesignated statutory references are to the Penal Code. --------
The trial court sentenced defendant to a total indeterminate term of 75 years to life for the first degree murder. It also imposed but stayed a term of six years for being a felon in possession of a firearm.
DISCUSSION
I
Defendant contends his trial counsel was ineffective in not attempting to introduce the statements of L.W. that there was a struggle over the shotgun and that the shooting was an accident. He claims the statements should have been introduced under Evidence Code section 1202, which makes hearsay statements admissible if they are admitted to impeach other statements of the same hearsay declarant.
A
The prosecution successfully introduced evidence of L.W.'s hearsay statements made soon after the shooting implicating defendant as the one who shot Ridge. The woman who had been sleeping in the living room testified that L.W. woke her in a panic and said, "Twon shot [Ridge]," and L.W. drove to the home of Ridge's brother and said, "He shot her, he shot her, we gotta go. He shot [Ridge]." The hearsay statements were admitted as excited utterances under Evidence Code section 1240.
While defendant's trial counsel attempted to have L.W.'s later statements to an investigator about a struggle or an accident introduced as a declaration against interest under Evidence Code section 1230, the trial court denied defendant's request to introduce this evidence because the statements were not against L.W.'s interest. Defendant now asserts the statements were admissible as prior inconsistent statements under Evidence Code section 1202 and defense counsel provided ineffective assistance by not attempting to introduce them under that provision of the Evidence Code.
L.W. did not testify at trial because he invoked his right not to incriminate himself. L.W.'s counsel advised the trial court that L.W. would refuse to answer questions concerning his affiliation with a criminal street gang. The trial court determined that L.W.'s affiliation with a criminal street gang was relevant to his credibility, but because he would not testify concerning those matters, the parties would not have a chance to impeach him, and therefore L.W. was unavailable as a witness in this case.
In the discussion of whether L.W. would testify, the trial court said: "I do believe [L.W.'s] gang involvement back then and now are relevant issues. It does go to his motive, does go to his attitude towards testifying, to his credibility. [L.W.] has given several conflicting statements, first stating that [defendant] shot [Ridge], then later stating that there was a scuffle. The gang affiliation, as I said, is relevant."
At trial, counsel for defendant asserted that some of L.W.'s statements to an investigator about a struggle between L.W. and defendant and about the shooting being an accident should be admissible under Evidence Code section 1230. Under that statute, hearsay is admissible if it is a declaration against the declarant's interest. (Evid. Code, § 1230.) Counsel did not make an offer of proof regarding what L.W. said, but it appears the trial court and parties may have discussed L.W.'s statements either off the record or in another proceeding to which defendant does not provide a citation. The trial court noted that, up until that point, the defense had argued L.W. could not invoke his right not to incriminate himself because his prior statements were not incriminating. Defense counsel countered, however, that the statements were against L.W.'s interest because L.W. "left the scene of the crime. He moved the shotgun. [¶] . . . [¶] And he had a struggle with [defendant] which would tend to incriminate him." Defense counsel added: "The whole thing shows it was an accidental shooting." The trial court noted that an accidental shooting in this case would not be against L.W.'s penal interest, and the trial court said it would need a lot more information to find L.W.'s hearsay statements admissible under Evidence Code section 1230.
Still opining on the application of Evidence Code section 1230, the trial court explained: "I don't see this applying because my understanding is that the statement was given to Mr. Fletcher [apparently defense counsel in the first trial] while [L.W.] was in custody, coincidentally housed on the same floor as [defendant]; that the statement came shortly before the first trial; and that also prior statements were made that were inconsistent to the statements about the accident and the struggle, and that statement was that he gave to Mr. Fletcher or an investigator was that the gun accidentally went off." Defense counsel agreed that was the gist of what L.W. told the investigator.
The trial court said: "So if those facts are true that he said I was sleeping there, [defendant] or someone came in, we struggled over a gun and it went off, not sure if it would qualify as being so far contrary to the declarant's pecuniary or proprietary interest or so far subject him to the risk of civil/criminal liability."
The following exchange then took place among counsel and the trial court:
"[Defense counsel]: I think in one of the statements he said the gun was already there under the bed.
"THE COURT: Yeah.
"[Prosecutor]: "Well, I don't remember that but even so, still
"THE COURT: Right, even so.
"[Defense counsel]: The charge is he brought a gun into the house, and he shot and killed this woman.
"[Prosecutor]: I never said
"THE COURT: I'm just looking at whether it falls under 1230. So let's assume he said, [L.W.] said I had a gun there. I don't know what the statement is.
"[Prosecutor]: He's never said that. He's never said he had a gun there. At most he may have said a gun was there, but he never said he brought a gun.
"[Defense counsel]: He basically said there was a gun under the bed, and they struggled over it.
"[Prosecutor]: So, again
"[Defense counsel]: Whether he brought it there or Ridge had it there, he still knew it.
"[Prosecutor]: Again
"[Defense counsel]: Then he moved the gun.
"THE COURT: I'm sorry?
"[Defense counsel]: Then he moved the gun and left the scene.
"THE COURT: Okay.
"[Prosecutor]: That's not a crime, Danny.
"THE COURT: So I'm not sure how any of those statements would subject him to -- those are so against one's penal interest that they give indicia of reliability. So based on what I've heard so far, I would deny your request to admit that under 1230.
"[Defense counsel]: I'll do some more research, too."
B
"To succeed in a claim of ineffective assistance of counsel, defendant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that, but for counsel's error, the outcome of the proceeding, to a reasonable probability, would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 ; People v. Ledesma (1987) 43 Cal.3d 171, 216-218, 233.) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim on appeal must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264.)" (People v. Lawley (2002) 27 Cal.4th 102, 133, fn. 9 (Lawley).)
Defendant now asserts L.W.'s excluded statements were admissible under Evidence Code section 1202 and defense counsel provided ineffective assistance by not attempting to introduce them under that provision. That statute provides: "Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct." (Evid. Code, § 1202.)
Defendant's claim of ineffective assistance is unsupported because, with regard to the excluded statements, the appellate record does not provide sufficient evidence of exactly what L.W. said to the person who heard the statements and the circumstances of the statements. No offer of proof was made concerning the actual statements; we can derive from the record only hints of the circumstances and actual statements. It appears the statements were made while L.W. was incarcerated near defendant and that there were contradictions in what L.W. told the investigator.
L.W.'s statements that there was a struggle between him and defendant and that the shooting was accidental were not expressly inconsistent with the statements made soon after the shooting that defendant shot Ridge. Certainly, the later statements may have explained L.W.'s earlier excited utterances, but they were not inconsistent because defendant may have shot Ridge even if there was a struggle between defendant and L.W. and the shooting was accidental. However, we recognize that a statement may be found inconsistent under the Evidence Code if it had " 'a tendency to contradict or disprove the [witness's trial] testimony or any inference to be deduced from it.' " (People v. Spencer (1969) 71 Cal.2d 933, 942, italics added.) Nevertheless, without the context of L.W.'s statements and the actual statements he made, as well as other statements L.W. apparently made about the incident, it is impossible for us to conclude with any level of certainty that the outcome of the proceeding, to a reasonable probability, would have been different. (Lawley, supra, 27 Cal.4th at p. 133, fn. 9.) Therefore, because the record does not establish the prejudice prong of the test for defendant's contention of ineffective assistance of counsel, the contention is without merit.
II
Referring to the same discussion between court and counsel, defendant claims the trial court erred in finding that L.W.'s statement that the shotgun was under the bed was not a statement against penal interest. (Evid. Code, § 1230.)
"We review a trial court's decision whether a statement is admissible under Evidence Code section 1230 for abuse of discretion. [Citations.]" (People v. Grimes (2016) 1 Cal.5th 698, 711.) " 'The proponent of such evidence must show "that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character." ' [Citation.] 'The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration.' " (People v. Geier (2007) 41 Cal.4th 555, 584.)
Without knowing exactly what L.W. said concerning the shotgun being under the bed and the surrounding circumstances when L.W. made the statement, it is difficult to determine whether the statement was against L.W.'s penal interest. Defendant argues the statement was against L.W.'s penal interest because it exposed him to prosecution for possession of an illegal firearm. For this proposition, he cites later testimony that the shotgun was sawed off. But that testimony came in after the trial court had denied defendant's motion to introduce the statement, and defense counsel did not mention anything about the shotgun being sawed off when the trial court and parties discussed admission of the evidence that the shotgun was under the bed. We review the correctness of a trial court's rulings in light of what the trial court knew at the time of the ruling, not in light of later events. (People v. Welch (1999) 20 Cal.4th 701, 739.)
However, even assuming the statement was against L.W.'s penal interest, the record is inadequate to determine whether it had sufficient indicia of reliability. As noted above, the trial court alluded to circumstances and other statements made by L.W. that may have rendered the statements about a struggle and an accident inadmissible because of reliability concerns. We do not know exactly what L.W. said about the shotgun being under the bed, what else he said about the shotgun, when he said it, and what the circumstances were when he said it. The defense, as the proponent of the evidence, failed to carry its burden to resolve those concerns.
Defendant argues, "[L.W.'s] statement had sufficient indicia of trustworthiness because it exposed him to criminal prosecution and because it was not an attempt to shift blame or lessen his responsibility." We disagree. As noted, it was not clear at the time the defense attempted to introduce the evidence that the shotgun was illegally sawed off; therefore, it was not obviously self-inculpatory to the trial court. And even if this statement, in isolation, may not have been an attempt to shift blame or lessen responsibility, that factor must be considered in light of the remaining circumstances, which the record does not divulge.
Accordingly, we conclude the record does not support defendant's contention that the trial court abused its discretion by excluding L.W.'s statement that the shotgun was under the bed.
Defendant argues, alternatively, that his trial counsel provided ineffective assistance if counsel failed to adequately preserve for appeal the issue of the admissibility of L.W.'s statement about the shotgun being under the bed. This argument suffers from the same defects. We don't know exactly what L.W. said about a shotgun being under the bed, and we don't know the circumstances of the statement, including what else L.W. said. Therefore, we cannot conclude the evidence was admissible or that defendant's trial counsel provided ineffective assistance of counsel by failing to adequately present the issue to the trial court. Nor can we conclude defendant has established prejudice on this record. Given the vagary of the offer of proof, defendant cannot establish there was a reasonable probability he would have obtained a more favorable result had the testimony been admitted. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
III
Again referring to the trial court's exclusion of L.W.'s statement about the shotgun being under the bed, defendant contends exclusion of the statement violated his due process right to present a defense.
As defendant acknowledges, exclusion of evidence under state evidentiary rules ordinarily does not violate a defendant's due process rights. (People v. Jones (1998) 17 Cal.4th 279, 305.) However, it is at least theoretically possible the principles of due process may require admission of evidence excludable under our state evidentiary rules. For example, "Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense. [Citations.]" (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.)
Defendant argues L.W.'s statement about the shotgun being under the bed could not be excluded without violating defendant's due process right to present a defense because "[L.W.'s] statement was reliable and highly relevant to a crucial issue at trial . . . ." As noted, however, the record on appeal does not support defendant's argument that L.W.'s statement was reliable. Therefore, because L.W.'s statement may have been unreliable under the circumstances, we cannot agree with defendant that exclusion of the hearsay statement violated his due process rights.
IV
Defendant contends that the cumulative prejudice of the trial court's errors requires reversal. Having found no error, we conclude the claim of cumulative prejudice lacks merit.
V
Defendant further asserts three errors: (A) the minutes and abstract of judgment fail to accurately reflect that the sentence on the felon in possession of a firearm count (count 2) was stayed; (B) the trial court's award of presentence custody credit must be increased by one day; and (C) the abstract of judgment improperly reflects that the felon in possession of a firearm count was a violent and serious felony.
A
The trial court orally sentenced defendant on count 2, felon in possession of a firearm, to the upper term of three years, doubled to six years under the three strikes law, but the trial court stayed that term under section 654. The minutes and abstract of judgment properly reflect that defendant was sentenced to six years on count 2, but they do not reflect the stay. Because the oral rendition of judgment prevails over the written (People v. Mesa (1975) 14 Cal.3d 466, 471-472), the minutes and abstract of judgment must be corrected to conform to the oral rendition of judgment.
B
Defendant was arrested on May 14, 2014, and he was sentenced on June 15, 2018. Including the date of arrest and the date of sentencing, that entitles defendant to 1,494 days of presentence credit. (See People v. Bravo (1990) 219 Cal.App.3d 729, 735 [a presentence credit calculation includes the date of arrest and date of sentencing].) However, the trial court awarded only 1,493 days. Defendant is entitled to one more day, and we will modify the judgment to reflect that day.
C
The abstract of judgment reflects that count 2, felon in possession of a firearm, is both a violent and serious felony. Defendant asserts felon in possession of a firearm is not violent or serious and that the abstract of judgment must be corrected. The Attorney General disagrees, arguing that the conduct involved in possessing the firearm resulted in great bodily injury. (See §§ 667.5, subd. (c)(8) [violent felony]; 1192.7, subd. (c)(8) [serious felony].)
The crime of being a felon in possession of a firearm is not a violent or serious felony under the definitions provided in sections 667.5 and 1192.7. The Attorney General's argument that it was a violent and serious felony under subdivision (c)(8) of each provision lacks merit.
A violent felony is "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 . . . ." (§ 667.5, subd. (c), italics added.) No great bodily injury enhancement was charged or proved as to count 2.
Concerning serious felonies, section 1192.7, subdivision (c)(8) does not include the same charging and proof language. It defines as a serious felony "any felony in which the defendant personally inflicts great bodily injury . . . ." (§ 1192.7, subd. (c)(8).) However, the California Supreme Court has held that being a felon in possession of a firearm is not a serious felony under section 1192.7, even in the case of murder. (People v. Prieto (2003) 30 Cal.4th 226, 276.)
Therefore, count 2 was not a violent or serious felony. The abstract of judgment improperly reflected that it was both, so it must be corrected.
DISPOSITION
The judgment is modified to reflect 1,494 days of presentence credit. As modified, the judgment is affirmed. The trial court is directed to correct the minutes to reflect that the sentence on count 2 was stayed. The trial court is also directed to prepare an amended and corrected abstract of judgment reflecting (1) the award of 1,494 days of presentence credit, (2) the section 654 stay of the sentence on count 2, and (3) that the conviction on count 2 was not a violent or serious felony, and to send a certified copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
MURRAY, J. /S/_________
RENNER, J.