Opinion
B229755
02-09-2012
THE PEOPLE, Plaintiff and Respondent, v. BOBBY RAY IVORY III, Defendant and Appellant.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Robert C. Schneider, Deputy 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA103220)
APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur M. Lew, Judge. Affirmed as modified.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Bobby Ray Ivory III, along with codefendants Dervon Douglas and Andres Plasencia, was charged by information with one count of murder (Pen. Code. § 187, subd. (a)), with gang and firearm enhancements (Pen. Code, §§ 186.22, subd. (b)(1)(C); 12022.53, subds. (b), (c) & (d) (count 1)), and two counts of attempted murder (Pen. Code. §§ 664; 187, subd. (a)), with gang and firearm enhancements (Pen. Code, §§ 186.22, subd. (b)(1)(C); 12022.53, subds. (b), (c) & (d) (counts 2 and 3)). A jury convicted defendant Ivory of all counts, and found true all corresponding gang and firearm allegations, except for the Penal Code section 12022.53, subdivision (d)enhancement on count 3. Codefendant Douglas was acquitted, and Plasencia's section 1118.1 motion was granted. Defendant moved for a new trial, based on newly discovered evidence. The trial court denied defendant's motion, and sentenced defendant to 50 years to life in prison for the murder, consisting of a term of 25 years to life, and a 25-year firearm enhancement under section 12022.53, subdivision (d) (the gang enhancement was stayed). Defendant was sentenced to 42 years to life on each of the attempted murder counts, which included firearm enhancements under section 12022.53, subdivision (d), as well as gang enhancements. The sentences were to run concurrently.
All subsequent statutory references are to Penal Code unless otherwise indicated.
The parties contend in their briefs that the section 12022.53, subdivision (d) enhancement was found true for all counts, but the signed jury verdict and reporter's transcript of the sentencing hearing demonstrate it was found "not true" for count 3.
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Defendant now appeals from the order denying his motion for new trial. We conclude the trial court did not abuse its discretion when it denied the motion, because the evidence would not affect the outcome upon retrial and could have been discovered with reasonable diligence. We do, however, find that the clerk's transcript and abstract of judgment erroneously imposed the section 12022.53, subdivision (d) enhancement on count 3, instead of the section 12022.53, subdivision (c) enhancement. We therefore affirm the judgment of conviction, as modified.
BACKGROUND
Defendant and Rendell Woods did not get along very well and got into at least two physical fights. One of these occurred on April 23, 2008, while defendant, Woods, and others were playing basketball at the 109th Street Recreation Center in Los Angeles. Woods knocked defendant unconscious after defendant called Woods a "pussy." Once defendant regained consciousness, defendant and Woods talked and appeared to make amends.
The following day, Gregory Moore was at the park adjacent to the recreation center with his 17-month-old son. While Moore was working out, he overheard defendant complaining about being beat up. He threatened to get revenge, saying, "I can't take it no more. [¶] I'm gonna do him wrong." Defendant also boasted, "I got my thing on me," which Moore understood to mean a gun. Defendant left the park shortly before noon. Around noon, Moore noticed Woods socializing in the park. At approximately 12:15 p.m., shots were fired from a car. Moore was struck in the arm while he was holding his son, and Woods was fatally shot in the head. Moore did not see who fired the shots, but believed they came from a blue-green Toyota Camry.
There were other witnesses to the shooting. Glen Brown told police he saw a gun come out of the back seat window of a car. He had also seen a second fight between defendant and Woods. Marisol Delgado thought the shots came from a green Mitsubishi. The rear windows of the car were tinted and she could not see if anyone was in the back seat, but did see the driver and a front seat passenger. She saw a gun extended from the driver's side, but could not tell whether it was extended from the front or back seat. She was not sure if the driver or the passenger was the shooter. Edgar Perez was at the park and saw the shooting. He told police that shots were fired from a blue, four-door Mazda sedan, driven by codefendant Dervon Douglas. He identified defendant as the shooter from a "six-pack" of photos.
A video from the security camera of a nearby store on 109th Street showed a green car with light-colored patches on its hood and roof entering the store's parking lot at 11:26 a.m. on the day of the shooting. A tall man got out of the car and went into the market while the driver turned the car around. A few minutes later, the man left the store and returned to the car, which drove off towards the park.
Police linked the car seen in the video and described by the witnesses to a green Mazda owned by codefendant Dervon Douglas. It had light patches on its hood and roof like the car seen in the security video.
Douglas testified he had known defendant for many years, and was afraid of him. On the day of the murder, Douglas drove Christian "Ray Ray" Parsee (who is tall, like the man observed in the security video) to the market on 109th Street around 11:20 a.m. They drove in Douglas's car, as Parsee had left his car parked near the park. Douglas then went to sit in Parsee's car and watch DVD's with Parsee and Anthony Aguilar, on 109th Street near the park. Parsee sat in the driver's seat, Aguilar in the passenger seat, and Douglas in the back. While the three were watching movies, defendant approached the parked car, showed Douglas the butt of a handgun, and quietly told Douglas to take him to "Andy's" house. Douglas did not tell Parsee and Aguilar he was leaving, and they did not ask where he was going. Douglas did not know if Parsee and Aguilar noticed or heard defendant. They did not say or do anything to acknowledge defendant or Douglas's departure.
Douglas drove defendant west on 109th Street, by the park. As they came to a speed bump, defendant told Douglas to slow down. Defendant was sitting in the back seat. As Douglas slowed the car, he heard four or five shots coming from behind him, where defendant was seated. Defendant shot and killed Woods. After the shooting, Douglas drove away quickly and took defendant to defendant's home on Bell Haven and 113th Streets. Douglas stayed away from his home for a week. He cooperated with defendant because he was terrified of him and afraid for his safety if he refused.
Gang expert Tyson Hamaoka testified that defendant is an admitted member of the 10-8 set of the Bounty Hunter Bloods gang. Douglas, however, was not affiliated with any gang. The victim, Mr. Woods, was a member of a rival set of the Bounty Hunter Bloods. Hamaoka testified that gang members are expected to remain loyal to the gang, and put the gang "above your family, . . . above any of your friends that are not related to the gang." He also testified to the code of silence, and that "snitching" is looked down upon. Glen Brown is a Bounty Hunters member. Gregory Moore is a member of the Bounty Hunters as well. Given a hypothetical based on the facts of this case, Hamaoka opined that the offense was committed in association with a gang, and for its benefit. Defendant was humiliated in front of other members of his gang by getting knocked out by Woods, a member of a rival set.
The jury found defendant guilty on all counts, and found all special allegations true, except one of the firearm enhancements. Defendant made a new trial motion based on newly discovered evidence, on the ground that the identity of witnesses to the interaction between defendant and Douglas had not been disclosed until Douglas testified at trial. Attached to counsel's declaration was a summary of a police interview with Douglas, in which it was revealed that Douglas was sitting in someone else's car when he was approached by defendant, although the name of that individual was partially redacted. Counsel received a copy of the recorded interview, and the summary, before trial. At the hearing on the motion, Christian Parsee confirmed that he watched DVD movies in his car with Douglas on the day of the murder, but testified he did not see defendant approach Douglas before Douglas got out of the car before the shooting. Detective Mark Hahn testified that defendant received an unredacted video of the interview with Douglas that revealed Douglas was in "Ray Ray's" car. The trial court denied the motion, concluding that the evidence could have been discovered with reasonable diligence because Douglas had revealed he was in "Ray Ray's" car, and that it could not have affected the outcome favorably to defendant upon retrial.
DISCUSSION
1. New Trial Motion
Defendant contends the trial court abused its discretion by denying his new trial motion based on newly discovered evidence. (§ 1181, subd. 8; People v. Williams (1988) 45 Cal.3d 1268, 1318 [rulings on new trial motions are reviewed for abuse of discretion].) "In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: '"1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits."' [Citations.]" (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).) New trial motions based on newly discovered evidence are looked upon with distrust and disfavor, and the discretion of the trial court in ruling on such a motion will not be interfered with unless clearly and manifestly abused. (People v. Mandell (1942) 48 Cal.App.2d 806, 818.)
At issue here is whether the evidence was new and could not have been discovered with reasonable diligence, and if a different result upon retrial is probable. "[O]ne who relies upon the ground of newly discovered evidence to sustain his motion for a new trial 'must have made reasonable effort to produce all his evidence at the trial, and . . . he will not be allowed a new trial for the purpose of introducing evidence known to him and obtainable at the time of trial, or which would have been known to him had he simply exercised reasonable effort to present his defense.' . . . [¶] The term 'diligence' is 'incapable of exact definition because it is a relative term' [citation] and the 'diligence' of defendant in marshaling his evidence for the trial must be determined in the light of the 'peculiar circumstances' involved." (People v. Williams (1962) 57 Cal.2d 263, 273, citations omitted.) Furthermore, even if the evidence is new, the primary consideration is whether the newly discovered evidence is of "sufficient probative force to render probable a different result upon a retrial of the case." (People v. Egbert (1941) 43 Cal.App.2d 117, 118.) "'[T]he trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.' [Citation.]" (Delgado, supra, 5 Cal.4th at p. 329.)
Defendant's new trial motion was based on declarations from defense counsel and a defense investigator, stating that Parsee never saw defendant approach Douglas while Douglas was watching movies in Parsee's car, as well as Parsee's testimony at the hearing. Counsel declared that "the first time I became aware that Mr. Douglas alleged that other people were in the vehicle with him at the time Bobby Ray Ivory allegedly approached him with a gun was during the trial in this matter. . . . I had no . . . opportunity to follow up on this information, seeing as Mr. Douglas was the second to last witness to testify. The case was sent to the jury the day following his testimony." Attached to counsel's declaration was a summary of the October 2008 police interview with Douglas, where it was revealed that he was in "Ray Ray's" car when approached by defendant, although "Ray Ray" was partially scratched out. Counsel's declaration admitted she received a recording of the interview, but was silent as to whether any information was redacted from it.
Parsee testified that on the day of the murder, he was sitting in his car with Douglas and Aguilar, watching DVD movies. Douglas got out of the car at some point. When asked whether he saw "Bobby Ivory have any contact with Dervon Douglas," he responded "no." He and defendant were friends and members of the same gang and had known each other for most of their lives. He heard gunshots after Douglas left the car.
Detective Mark Hahn testified that during his interview with Douglas, it was revealed that others were present in Parsee's car when defendant approached him. He prepared the summary of the interview, which was also video recorded. The summary provided to defense appeared to be redacted, although he had not directed it to be. The video which was produced to defendant was not altered in any way.
The trial court denied the motion, concluding "[t]he defense was aware that Dervon Douglas was driving Ray Ray's car . . . . [¶] And it would seem to me that if the defendant is charged with a [section] 187, you're going to want to uncover all of that. . . . [¶] . . . [¶] . . . I think the evidence could have been discovered with reasonable diligence . . . . [¶] And I'm going to find that it's not newly discovered for that reason." The court also determined there was not a reasonable possibility of a different result upon retrial, finding "[Parsee] seemed to forget a lot of things . . ." and that "there [may have been] some kind of bias because . . . [Parsee and defendant] are both members of Ten Eight Bounty Hunter[s]."
The trial court did not abuse its discretion when it denied the motion. The evidence is not probative of any material fact sufficient to make a different result upon retrial probable and, in any event, could have been discovered with reasonable diligence. Douglas testified that he was not sure if Parsee and Aguilar noticed defendant approaching him as he sat in the back seat of the car, when defendant brandished a gun, and quietly asked Douglas to drive him to Andy's house. Parsee's testimony merely confirms that he did not notice defendant approach Douglas, not that defendant did not approach him. Parsee's testimony was not inconsistent with Douglas's testimony, and did not undermine his version of events. Parsee is a close friend and fellow gang member of defendant. His testimony, on a collateral issue, could not have affected the outcome of defendant's trial. Given the state of the evidence, including Douglas's otherwise corroborated and credible testimony, Perez's statements to officers that defendant fired the shots, the fight between defendant and Woods, and their status as members of rival gang sets, a different result upon retrial is improbable.
Moreover, Douglas's version of the events leading up to the murder was substantially disclosed to defendant before trial, in both a summary and video recording of the police interview with Douglas. Counsel, in reasonable diligence, could have further investigated whether there were other witnesses to the interaction between defendant and Douglas because Douglas told police he was in another person's car when approached by Ivory. Also, when Douglas testified at trial that others were present in the car with him, defense counsel did not seek a continuance, or try to conduct any discovery regarding these individuals before the matter was submitted to the jury. We consider counsel's failure to seek out this evidence as an implicit concession that it could not have impacted the outcome of the trial. (See People v. Preston (1958) 160 Cal.App.2d 545, 551; People v. Chrisman (1901) 135 Cal. 282, 288-289.) Accordingly, we find no abuse of discretion.
2. Sentencing Error
We discovered a sentencing error not identified by the parties. The firearm enhancement under section 12022.53, subdivision (d) was found "not true" by the jury for count 3. The section 12022.53, subdivisions (b) and (c) enhancements were, however, found true. Although the reporter's transcript reflects that the trial court intended to impose the 20-year enhancement under section 12022.53, subdivision (c), the clerk's transcript and abstract of judgment erroneously imposed the 25-year enhancement under subdivision (d). An appellate court has jurisdiction to modify and correct a sentencing error as a matter of law, without the need for preservation of the issue for appeal. (See People v. Smith (2001) 24 Cal.4th 849, 852-854; People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Stone (1999) 75 Cal.App.4th 707, 717.) Therefore, the sentence should be modified to reflect the correct enhancement under section 12022.53, subdivision (c).
DISPOSITION
The judgment is affirmed as modified to exclude the section 12022.53, subdivision (d) enhancement on count 3, and impose the section 12022.53, subdivision (c) enhancement. The superior court is directed to prepare an amended abstract of judgment, and shall forward a certified copy of the same to the Department of Corrections. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J. WE CONCUR:
BIGELOW, P. J.
FLIER, J.