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People v. Jackson

California Court of Appeals, Second District, Eighth Division
Jul 8, 2008
No. B197767 (Cal. Ct. App. Jul. 8, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA265743 Craig E. Veals, Judge.

Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Nancy G. James, Deputy Attorneys General, for Plaintiff and Respondent.


RUBIN, J.

Defendant and appellant Jasmine Tanisha Jackson appeals from the judgment entered following a jury trial that resulted in her conviction of first degree murder and driveby shooting. She contends the trial court erred in excluding evidence to explain other evidence of flight. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that on February 26, 2004, Tamesha White and Latoya Richardson were female members of the criminal street gang known as the Seven Four Hoovers. That day, Tamesha, Latoya, and Latoya’s cousin, Rannesha Johnson, went to the Youth Opportunities Unlimited School (Y.O.U.) to confront female members of the Eight Trey gang about “disrespecting” the Seven Four Hoover girls. At the school, members of both gangs yelled and threatened each other, but no one hit anyone else and the crowd dispersed when school security guards threatened to call the police. As Latoya, Tamesha, and Rannesha were walking away from the school, three Eight Trey girls drove by and defendant, who was in the passenger seat, shouted out the window that they would be back.

To avoid confusion between witnesses with the same last name, we refer to Tamesha, Latoya, and Rannesha by their first names.

Latoya, Tamesha, and Rannesha walked back to Latoya’s apartment building. They were standing in front of the building telling a friend about the events at the school when Latoya heard Tamesha announce, “Here these bitches come.” Latoya turned and saw two cars approaching at a regular speed; in one car, Latoya recognized members of Eight Trey; the other car was the same car that drove past the girls as they were leaving the school. After driving past the building, both cars made a U-turn at the alley and came back toward the building. When both cars stopped in front of the building, Latoya walked to within six feet of the first car and told the occupants, “If y’all came to fight or whatever, if you want to fight, get from in front of my apartment building.” Receiving no reaction, Latoya said, “Bitch, get from in front of my apartment building.” As both cars sped away, a girl in the second car fired a gun out the front passenger side window toward Latoya, Tamesha, and Rannesha. Tamesha was fatally wounded. Latoya and Rannesha identified defendant as the shooter to police. Although Rannesha later recanted her identification, Latoya remained firm in hers at trial.

On the photo array shown to her by the police, Latoya wrote: “The person in circle A looks more like the shooter to me because they both have the same face structure. I cannot really tell because I just remember her red hair, small face, and being dark skinned. The person in number four looks like the shooter that was in the passenger seat.” At defendant’s preliminary hearing, Latoya identified her as the shooter.

At trial, Rannesha testified that everything she said to the police had been a lie, including her identification of defendant from a photo array. Rannesha maintained that she was not going to be labeled a “snitch.” When a recording of Rannesha’s police interview was played to the jury, she denied that it was her voice on the tape. On cross-examination, she testified that she did not get a good look at the shooter.

Daymond Johnson was a school safety officer at the California Charter Academy. He was familiar with defendant, who attended the academy in 2003. In the late spring and early summer of 2004, Johnson and his partner were working at the school’s graduation night at Disneyland when Johnson saw defendant approach a man to whom Johnson’s partner was speaking. In response to the man’s inquiry as to where she had been, Johnson heard defendant say, “I’m on the run. I have to lay low cause they’re looking for me.” Johnson took no note of the comment at the time. But the next day, after seeing defendant’s photograph on a flyer indicating that she was wanted for murder, he started looking for her. When Johnson next saw defendant at a Martin Luther King, Jr. parade in 2005, he immediately notified the police of defendant’s status as a wanted criminal and her presence at the parade, but she was not found that day. In February 2006, Johnson spoke to Rocky Sato, the investigating officer in this case, about having seen defendant at the parade in 2005.

Sato testified that his first contact with Johnson was when he interviewed him on February 21, 2006. Johnson told Sato that defendant left the California Charter Academy a few weeks before graduation night in 2004. Sato later determined that defendant attended Y.O.U. only until late 2003. In the interview, Johnson told Sato not that he himself saw defendant at the parade in 2005, but that he received information that others had seen her at the parade.

Defendant’s mother, Yvonne Williams, testified that she first learned of the shooting in February 2004 when police officers came to her house looking for defendant. At the time, Williams had not seen defendant for several months. The police returned about a month later. On this occasion, Williams told the police that she did not know defendant’s whereabouts, but that defendant “was on the run. I hadn’t heard from her in a while. That she had called me one time and told me that she was on the run.” Williams had heard rumors about why defendant was on the run and in their telephone conversation defendant indicated to Williams the reason. Williams testified, “[Defendant] told me that she was on the run for a homicide that they said she had committed. And that she was scared that the gang members and the police [were] trying to get her, or something of that sort.”

During closing argument, the prosecutor characterized Williams’s testimony as follows: “[T]he defendant’s mother took basically an admission from her over the phone that she had committed this crime.” “And then the [last] piece of corroboration, which I think was somewhat unanticipated, the defendant’s own mother came in and [told] you [that] a few months after the shooting she [got] a call from the defendant saying, ‘I’m on a run for a homicide that I committed’. ” “We know that the defendant’s own mother corroborates what all the other evidence has told you. That a few months after the shooting, she calls her and says, ‘I’m on the run for a homicide that I committed’; right?”

During his closing argument, defense counsel challenged the prosecutor’s characterization of Williams’s testimony: “[The prosecutor] said why even have this trial, because according to him, [defendant’s mother] got up on the stand and told you that [defendant] said she’s on the run for a murder that she committed. [¶] Well that’s not what she said. . . . What she said was that [defendant] said she was running for a murder that she did not commit. That’s what she said. Not that she did commit. That’s ridiculous. And I don’t believe it was intentional. Maybe he thought he heard something that he didn’t.” “Her mother told you she was scared. You heard it. The People said that her mother said she did a homicide, that’s not what she said. Her mother told you that she said she was scared that people were trying to say she did a homicide, and she wouldn’t even come home because she knows what that environment is like. And she knows what it is like to have people looking for you, gang bangers.”

In rebuttal, the prosecutor stated: “[T]here was another disagreement regarding what the defendant’s mom said; right? I heard her say, ‘My daughter called me and told me she was on the run for a homicide that she had committed’. The defense heard her say she was on the run for a homicide she had not committed. Well what do we do with that? Is someone lying on purpose, you know, maybe, maybe not. Maybe it’s just a failure of recollection, people perceive thing[s] differently. [¶] We’re fortunate in this case to have an audio recording of that statement and the statements of those witnesses who have testified. And let’s take a listen. That she had [committed] or that she had not committed. Let’s take another listen. And again this copy may not be the best. We have a much clearer copy if you want to listen to that same question and answer. Again that she had committed. That’s what she said. She was on the run for a homicide that she had committed and that she was scared. [¶] That’s the evidence. That’s the evidence in the case. That’s really from the horse’s mouth the recording of her testimony.”

Deliberations commenced about 4:00 p. m. on February 5, 2007. That day, several written questions from the jury were filed, including a request for “the better audio of [Williams’s] testimony re: her daughter on the run for a homicide she commit[t]ed,” and a request for the transcript and audio of Latoya’s statement to the police. Between 10:53 a.m. and 11:13 a.m., on February 6, 2007, the court reporter played audio for the jurors. Half an hour later, the jury announced it had reached a verdict. It found defendant guilty of both charges and found true all of the enhancement allegations. Defendant was sentenced to 50 years to life in prison. She filed a timely notice of appeal.

The reporter’s transcript does not include the discussion of the jury’s questions.

DISCUSSION

Defendant’s sole contention on appeal is that the trial court prejudicially erred in excluding on hearsay grounds evidence that defendant told Williams that the reason defendant fled was because she was afraid there were gang members “looking at her for the murder she didn’t commit. And she wasn’t going to give up who did it.” Defendant argues that this evidence was admissible under the state-of-mind exception to the hearsay rule because it was relevant to counter the consciousness of guilty inference the prosecutor would argue arose from defendant’s statement, overheard by Johnson, that defendant was on the run and laying low. We find any error to have been harmless under the circumstances.

Only relevant evidence is admissible and, except as otherwise provided by statute, all relevant evidence is admissible. (Evid. Code, §§ 350, 351.) With certain exceptions, even relevant evidence is inadmissible if it runs afoul of the hearsay rule. (Evid. Code, § 1200.) One exception to the hearsay rule is “evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) . . . [when] [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an in issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250, subd. (a).)

When evidence of flight is admitted to show consciousness of guilt, evidence tending to show the alleged “flight” was entirely consistent with innocence is relevant and, accordingly, admissible. (People v. Green (1980) 27 Cal.3d 1, 39, fn. 24, disapproved on another ground in People v. Martinez (1999) 20 Cal.4th 225.) But when such evidence constitutes hearsay, it must still come within an exception to the hearsay rule to be admissible. (Evid. Code, § 1200.)

The erroneous exclusion of relevant evidence cannot be the basis of a reversal unless the error resulted in a miscarriage of justice. (Evid. Code, § 354.) “A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. [Citations.] Prejudice from error is never assumed but must be affirmatively demonstrated by the appellant. [Citations.]” (Brokopp v. Ford Motor Company (1977) 71 Cal.App.3d 841, 853-854; cf. People v. Koontz (2002) 27 Cal.4th 1041, 1078, citing People v. Watson (1956) 46 Cal.2d 818, 836.)

Here, the prosecutor interposed a hearsay objection to defense counsel’s inquiry of Williams as to what defendant told Williams about why defendant was on the run. Defense counsel countered that the evidence was admissible under the Evidence Code section 1250 state-of-mind exception to the hearsay rule; he explained that Williams was expected to testify that defendant told her that defendant “was scared there [were] gang members looking at her for the murder she didn’t commit. And she wasn’t going to give up who did it.” He argued that this evidence was probative of defendant’s state of mind because it tended to prove she ran away to escape gang retaliation and not because of any consciousness of guilt. The prosecutor conceded that defendant’s statement to Williams that she was afraid was admissible under Evidence Code section 1250, subdivision (a), but maintained that the elaboration as to the reasons she was afraid were inadmissible. The trial court agreed with the prosecutor, explaining: “ [‘]I have pain in my shoulder,[’] that’s admissible. But [‘]I have pain in my shoulder because the doctor didn’t treat me properly when I went to visit him,[’] that additional verbiage would not be allowed.” The trial court concluded that Williams could testify that defendant told Williams that she was afraid, but could not testify as to the reasons defendant may have given for being fearful because the latter did not fall within the state-of-mind exception to the hearsay rule.

After the court’s ruling, defense counsel asked Williams: “[W]hen [defendant] contacted you, what did she say to you, if anything?” To which Williams responded: “She told me that she was on the run for a homicide that they said she had committed. And that she was scared that the gang members and the police [were] trying to get her, or something of that sort.”

This colloquy followed: “[THE PROSECUTOR]: Objection: motion to strike. [¶] THE COURT: All right. Do you wish to approach? [¶] [DEFENSE COUNSEL]: No. [¶] THE COURT: Would counsel approach please. [¶] (Discussion on the record at the bench.) [¶] THE COURT: Unless I didn’t hear properly, did she just say when she talked to defendant[,] the defendant told her she was on the run for a homicide? [¶] [DEFENSE COUNSEL]: Yes. [¶] THE COURT: And you want that out? [¶] [THE PROSECUTOR]: That she had committed or hadn’t committed, because it was something in there. [¶] THE COURT: Well I mean either way, I mean that’s not what we expected -- [¶] [DEFENSE COUNSEL]: No. [¶] THE COURT: -- I’m sure. [¶] [THE PROSECUTOR]: Can we get a readback of the answer before I decide? [¶] THE COURT: Either way, why would you object? But, you know what I mean, I can’t believe what I just heard here. Do you want readback? [¶] [THE PROSECUTOR]: I do. [¶] THE COURT: Do you need that? [¶] [DEFENSE COUNSEL]: No. I heard her pretty clearly. I think you did too. [¶] THE COURT: Right. Are you seeking to have it stricken? [¶] [DEFENSE COUNSEL]: No. I don’t even want to address it again. [¶] [THE PROSECUTOR]: Can I just know what it was she said? [¶] THE COURT: Well, of course. Weren’t you listening? [¶] [THE PROSECUTOR]: It was so fast. [¶] THE COURT: Right, I mean. [¶] [THE PROSECUTOR]: I think it is what it is, but I don’t want -- [¶] THE COURT: She inserted that so quickly as almost as though she were a prosecution witness. I mean, I’m really startled to hear it. [¶] [DEFENSE COUNSEL]: I think -- [¶] THE COURT: What he’s asking for is just a readback of what the witness just said. So we’ll just proceed. [¶] [THE PROSECUTOR]: Yes. [¶] [DEFENSE COUNSEL]: Okay.” The answer quoted in the text was not stricken.

Thus, notwithstanding the trial court’s ruling, Williams testified as to the reasons defendant told Williams she was on the run: because she was “scared that the gang members . . . [were] trying to get her, or something of that sort.” Consequently, in spite of the trial court’s evidentiary ruling, the jury heard evidence of the reason defendant was afraid. Even if the court erred when it initially excluded the reasons for defendant’s fear, the testimony came in nevertheless. Both counsel had the opportunity to argue their differing inferences from this evidence and the jury was able to come to its own conclusion with the aid of the audio recording of the testimony. Under these circumstances, it is not reasonably probable that a different result would have been reached if the trial court had overruled the initial hearsay objection. Accordingly, defendant suffered no prejudice. (People v. Koontz, supra, 27 Cal.4th at p. 1078; People v. Watson, supra, 46 Cal.2d at p. 836.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: COOPER, P. J., FLIER, J.


Summaries of

People v. Jackson

California Court of Appeals, Second District, Eighth Division
Jul 8, 2008
No. B197767 (Cal. Ct. App. Jul. 8, 2008)
Case details for

People v. Jackson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JASMINE TANISHA JACKSON…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Jul 8, 2008

Citations

No. B197767 (Cal. Ct. App. Jul. 8, 2008)

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