Opinion
D082568
10-01-2024
THE PEOPLE, Plaintiff and Respondent, v. NEHEMIAH LEASIOLAGI, Defendant and Appellant.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD294821 Carlos O. Armour, Judge. Affirmed.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
McCONNELL, P. J.
Shortly before 10 p.m., in a busy shopping center parking lot, Nehemiah Leasiolagi fired nine bullets into the back of a parked car, striking a man in the shoulder. As a result of the shooting, Leasiolagi was eventually charged with and convicted by a jury of attempted murder (Pen. Code, §§ 667, 187, subd. (a) ) and assault with a semiautomatic firearm (§ 245, subd. (b)). The trial court sentenced Leasiolagi to 24 years in state prison. On appeal from the judgment of conviction, Leasiolagi raises just one issue. He contends the trial court's admission of evidence concerning his involvement in marijuana sales was unduly prejudicial and should have been excluded from his trial. As we shall explain, we reject this argument and affirm the judgment of conviction.
Subsequent undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Prosecution's Case
On the evening of October 1, 2021, Leasiolagi drove into the parking lot of a shopping center in the Mira Mesa neighborhood of San Diego in a 2001 brown Lexus sedan. Minutes later, the victim drove into the same parking lot and parked his car near Leasiolagi's Lexus. Leasiolagi and G.R., a 14-year-old who was riding in Leasiolagi's car, got out of the Lexus and began walking toward the victim's car. When they reached the back of the victim's car, Leasiolagi began firing his gun at the vehicle, discharging nine bullets. Witnesses heard and saw multiple gun shots in rapid succession. When the shooting began, G.R. ran toward the stores in the shopping center and hid inside a restaurant along with other patrons. Leasiolagi ran back to his Lexus and drove away.
The victim was shot in the right shoulder over his shoulder blade. A surveillance video from the shopping center shows the victim's car picking up another person and leaving the area moments after the shooting. The victim or the passenger then drove to a medical facility nearby, and the victim was transferred to a trauma center and admitted to the intensive care unit. He suffered a single gunshot wound; the bullet was lodged in the base of his neck within a centimeter of his jugular vein and carotid artery. Because of the location of the bullet, the medical team determined it should not be removed. The victim refused to provide any information to the police who responded to the hospital. At trial, the victim testified that he had no memory of the shooting and was intoxicated the entire day before it occurred.
The surveillance videos from the shopping center that captured the incident allowed law enforcement to identify G.R. After G.R. was identified and interviewed, the lead detective on the case obtained search warrants for G.R.'s cell phone and the contents of his social media accounts. This information established G.R.'s relationship with Leasiolagi, whom G.R. referred to as "Nino," and showed G.R. was in Leasiolagi's brown Lexus before the night of the shooting and that the pair had previously sold drugs from that car together.
The surveillance videos also allowed the detective to create a description of Leasiolagi and to find his Lexus. Once Leasiolagi was identified, the detective seized his cell phone and the contents of his social media accounts, including his iCloud account. This information established Leasiolagi owned the Lexus. The detective also discovered videos showing Leasiolagi's physical characteristics, including a video taken four hours before the shooting that showed Leasiolagi wearing the same clothes and hairstyle, a long ponytail, as the shooter in the surveillance videos. Leasiolagi's social media accounts also contained messages from earlier in the evening of the shooting setting up a drug deal across the street from where the shooting occurred.
G.R. was interviewed by the case detective at school twice. During the first interview, G.R. stated he was at the shopping center that night because he had a drug debt he needed to pay. G.R. also identified himself from a surveillance video during the interview. During the second interview, G.R. told the detective he had arrived at the shopping center in a Lexus.
At the scene of the shooting, law enforcement investigators recovered nine .40-caliber bullet cartridge casings. A car that was parked near the shooting also had damage that was caused by a stray bullet. The bullet casings were tested for DNA and the analyst found "limited support for inclusion" of Leasiolagi's DNA on one of the recovered cartridge casings. A video found on Leasiolagi's phone, dated six days after the shooting, showed him holding a gun that investigators determined to be a Glock .40 caliber weapon based on the serial number visible on the gun in the video. Investigators also analyzed location data from Leasiolagi's and G.R.'s cell phones, which showed both were at or near the shopping center at the time of the shooting.
Data from Leasiolagi's phone also suggested he had the brown Lexus painted silver shortly after the shooting. Investigators located the Lexus, which had been sold to someone living in Orange County, and found areas of brown paint still visible under the new silver paint job. In addition, 13 days after the shooting, Leasiolagi reported the license plates of the Lexus stolen and obtained new plates. A few days later, he posted pictures of the Lexus, painted silver, on his Snapchat account advertising it for sale. Leasiolagi also purchased a new car five or six days after the shooting. Photos found in Leasiolagi's iCloud account showed that by October 6, 2021 Leasiolagi had also changed his own appearance, shaving his head and blacking out a distinctive tattoo on his hand.
When Leasiolagi was brought in for an interview, he denied any knowledge of the shooting. He told the detective he never owned a 2001 Lexus and he never registered the car to his address. He said he was not the person in the picture in his bathroom that he posted to his social media account the day of the shooting. He also falsely claimed the baby he was holding in that picture was not his child.
2. Defense Case
The defense called two witnesses in its case in chief. The first, E.Z., testified he was a mechanic who fixed up cars as a hobby. He purchased a 2001 Lexus GS 300 in March 2022 in Mira Mesa, but he did not recall the identity of the seller. He testified he made some changes to the vehicle and sold it two or three weeks later. E.Z. also told the jury Leasiolagi was not the person he bought the car from. The defense also called A.M. A.M. testified he was not the person in surveillance video from the hospital where the shooting victim was dropped off, and that he did not know the victim or Leasiolagi.
3. Arrest, Verdict, &Sentencing
After months of investigating the shooting, police arrested Leasiolagi on May 26, 2022. He was eventually charged with attempted murder (count 1) and assault with a semiautomatic firearm (count 2). As to count 1, the information alleged the attempted murder was premeditated and that Leasiolagi personally discharged a firearm causing great bodily injury. (§§ 189, 12022.53, subd. (d).) As to count two, the information alleged Leasiolagi personally used a firearm and personally inflicted great bodily injury. (§§ 12022.5, subd. (a), 12022.7, subd. (a).) The information also alleged he suffered a prior strike (§ 1170.12) and a prior serious felony conviction (§ 667, subd. (a)).
At the conclusion of the trial, the jury found Leasiolagi guilty on both counts. The jury also found true the allegation on count 1 that Leasiolagi intentionally and personally discharged a handgun and proximately caused great bodily injury to another person not an accomplice. As to count two, the jury found true that Leasiolagi personally discharged a handgun and personally inflicted great bodily injury. In a bifurcated trial, the trial court found beyond a reasonable doubt the elements supporting a finding the defendant had suffered a juvenile prior strike.
The trial court sentenced Leasiolagi to a total aggregate term of 24 years in state prison. The term was comprised of the middle term of seven years for count 1, doubled to 14 years because of the prior strike, and 10 years for the enhancement under section 12022.53, subdivision (b) as an alternative to the charged enhancement under section 12022.53, subdivision (d). On count 2, the trial court imposed a 12-year term on the assault with a semiautomatic firearm conviction representing double the middle term, which the court stayed pursuant to section 654. For the enhancement under section 12022.5, the trial court imposed a four-year term and stayed it pursuant to section 654. For the section 12022.7, subdivision (a), enhancement, the trial court imposed a three-year term, which it also stayed under section 654.
DISCUSSION
I
Additional Background
Prior to trial, Leasiolagi's defense counsel moved in limine to exclude testimony regarding his involvement in drug sales. Specifically, the defense sought to exclude "testimony regarding drug sales found in [Leasiolagi's] phone or social media and any testimony or evidence regarding drugs/marijuana found in [his] home." At the pretrial conference on the in limine motions, the prosecutor asserted the evidence was properly admitted as relevant to prove both Leasiolagi's motive to commit the crimes and his identity. The prosecutor explained that G.R. told police the reason he was in Leasiolagi's car the night of the shooting was because G.R. was selling marijuana, he owed someone money, and that person told him to meet someone, who turned out to be Leasiolagi, on the night of the shooting.
The prosecutor also stated that Leasiolagi's phone and social media records showed he was engaged in marijuana sales, which also suggested the connection between G.R. and Leasiolagi. The prosecutor explained Leasiolagi had called E.L., another prosecution witness, the evening of the shooting and had met E.L. just before the shooting for a drug sale. E.L. told police that during that transaction Leasiolagi stated he was "going to shoot someone." The prosecutor stated she intended to present the testimony of G.R., the detective's testimony that Leasiolagi's phone and social media accounts suggested he sold marijuana, and the testimony of E.L. The prosecutor argued the information was relevant because it was "the nexus between all of these individuals" and showed a potential motive for the shooting relating to drug sales.
In response, Leasiolagi's counsel argued the information should be excluded under Evidence Code section 352 as unduly prejudicial. She specifically referred to "jars of marijuana" that were found in Leasiolagi's home. The trial court sided with the prosecutor and denied the motion to exclude the evidence. The court found the evidence was minimally prejudicial, largely because marijuana was legal. The court also found the evidence was relevant to show a "motive or at least partial motive" for the crimes. The court did rule the prosecutor could not admit the specific amount of marijuana seized from Leasiolagi's home at the time of his arrest.
During trial, G.R. testified that he owed a hundred dollars for selling marijuana and he was summoned to pay off the debt the night of the shooting. He told the jury he was picked up by someone he did not know, the meeting went fine, but then "some shit started happening." E.L. testified he purchased drugs from Leasiolagi on four occasions, including on the night of the shooting in a parking lot across the street. By way of impeachment testimony, the prosecutor admitted E.L.'s statements to the case detective that during the transaction he heard Leasiolagi say he intended to "spin the block," which was a reference to a drive-by shooting.
The lead detective on Leasiolagi's case testified he found items "consistent with the sale of marijuana" during the search of Leasiolagi's home and discovered references to marijuana sales on his social media accounts. The detective also testified that one of Leasiolagi's Snapchat accounts had a name that was associated with selling drugs.
II
Legal Standards
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.)" 'Relevant evidence' means evidence ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Id., § 210.) Evidence Code section 1101 states: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character ... is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ...) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness." (See People v. Hendrix (2013) 214 Cal.App.4th 216, 238 (Hendrix) [Evidence of other crimes is admissible "when relevant for a noncharacter purpose-that is, when it is relevant to prove some fact other than the defendant's criminal disposition, such as 'motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake of fact or accident.' "].)
"Although a prior criminal act may be relevant for a noncharacter purpose to prove some fact other than the defendant's criminal disposition, the probative value of that evidence may nevertheless be counterbalanced by a section 352 concern. Evidence may be excluded under section 352 if its probative value is 'substantially outweighed by the probability that its admission [would] ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (Hendrix, supra, 214 Cal.App.4th at p. 238.) Accordingly," 'the admissibility of uncharged crimes depends upon three factors: (1) the materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to prove or disprove the material fact (i.e., probative value); and (3) the existence of any rule or policy requiring the exclusion of relevant evidence (i.e., prejudicial effect or other section 352 concern).'" (Ibid.)
The admission of evidence under Evidence Code section 1101, subdivision (b), is addressed to the sound discretion of the trial court. (People v. Memro (1995) 11 Cal.4th 786, 864.) Accordingly, on appeal, a trial court's admission of such evidence is reviewed under the deferential abuse of discretion standard. (People v. Gray (2005) 37 Cal.4th 168, 202; Memro, at p. 864.) The trial court's ruling will not be disturbed on appeal absent a clear showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614.)
When a trial court misapplies Evidence Code section 1101, or Evidence Code section 352, the applicable standard of prejudice is that for state law error as set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Lopez (2011) 198 Cal.App.4th 698, 716, citing People v. Malone (1988) 47 Cal.3d 1, 22.) Under Watson, a reversible "miscarriage of justice" can be declared only when the reviewing court, after an examination of the entire cause, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error. (Watson, at p. 836.)
III
Analysis
As discussed, Leasiolagi asserts the trial court abused its discretion by admitting the testimony of G.R., E.L., and the investigating detective concerning his involvement in marijuana sales. He argues the evidence was not material to the prosecutor's case and did not tend to establish either a motive for the crime or Leasiolagi's identity as the shooter. Leasiolagi asserts that there was no trial evidence that the victim was involved in drug dealing, or that Leasiolagi was selling drugs at the time of the shooting. These assertions are directly contradicted by the record before this court. The evidence admitted by the court was probative of the prosecutor's theory that the shooting was related to Leasiolagi's drug sales.
Specifically, G.R. and Leasiolagi, who were together at the time of the shooting, were connected by G.R.'s statements to law enforcement that he was at the shopping center where the shooting occurred to settle a debt related to his own involvement in marijuana sales. In addition, E.L. told investigators that after engaging in a drug sale with Leasiolagi just prior to the shooting, Leasiolagi stated he intended "to spin the block," a reference to a shooting. A natural inference from G.R.'s and E.L.'s statements was that G.R. and Leasiolagi were involved in a drug transaction of some sort and that the shooting, which occurred while the two were together, was related to that transaction.
As the Attorney General points out, the evidence showed G.R. arrived at the parking lot just prior to the shooting as the passenger in Leasiolagi's brown Lexus. G.R. also told police he went to the parking lot that night because "he was summoned to pay off a debt" for marijuana. Further, G.R. had been in Leasiolagi's Lexus on other occasions prior to the shooting and had conducted at least one earlier drug sale from that vehicle. And the evidence from G.R.'s social media accounts showed he had an existing relationship with Leasiolagi. This evidence of Leasiolagi's and G.R.'s drug activity supported the prosecutor's theory that the shooting was motivated by a drug transaction. (See People v. McKinnon (2011) 52 Cal.4th 610, 655 ["' "[b]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence"' "].)
The facts that Leasiolagi points to on appeal-G.R.'s failure to tie the shooting to drug activity in his statements to police, another witness's testimony that he saw two groups of people shouting at each other just before he saw and heard gunshots fired, and the lack of evidence about the victim- does not negate the relevance of the drug sale evidence to show both motive and Leasiolagi's identity as the shooter. Leasiolagi pulls from other evidence to tell an alternate story about what happened on October 1, 2021. This alternate story, however, does not invalidate the relevance of the evidence to the prosecutor's theory of motive and Leasiolagi's identity as the shooter. Rather, it was the jury's "exclusive province" to determine the weight of evidence and the credibility of the witnesses. (People v. Cantrell (1992) 7 Cal.App.4th 523, 538.)
Further, we reject Leasiolagi's assertion that the evidence was so prejudicial that the court abused its discretion by allowing it. The prejudice that may have been created by the evidence concerning Leasiolagi's involvement in drug sales was relatively small. As the trial court pointed out, the fact that marijuana was legal minimized any prejudice. And the evidence was not more inflammatory than the details of the crimes themselves. Given this, the evidence would not have evoked an "emotional bias against the defendant on legally irrelevant or improper grounds...." (People v. Flinner (2020) 10 Cal.5th 686, 737.) Rather the evidence was appropriate" '" 'damage to a defense that naturally flows from relevant, highly probative evidence.'" '" (Ibid.) The trial court did not abuse its wide discretion by allowing the evidence concerning Leasiolagi's involvement in drug sales.
Finally, any error in admitting the drug evidence was harmless. The evidence that Leasiolagi committed the crimes, outside of what his motive may have been, was strong. Photos on Leasiolagi's phone showing his attire earlier on the day of the shooting matched the shooter's appearance in surveillance videos. Compelling evidence established Leasiolagi's ownership of the Lexus the shooter arrived and fled the scene in. In addition, the evidence showed Leasiolagi owned a gun that discharged bullets matching the bullet casings found at the scene, and cell phone data placed him at the scene of the crimes. And evidence of Leasiolagi's actions after the shooting to change his appearance and distance himself from the Lexus showed a consciousness of guilt. In light of the substantial evidence supporting the jury's verdict, it is not reasonably probable that "a result more favorable to [Leasiolagi] would have been reached" in the absence of evidence concerning his involvement in marijuana sales. (People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008.)
In the context of his harmless error analysis, Leasiolagi argues he was prejudiced by the trial court's failure to specifically instruct the jury to limit its use of the evidence. Leasiolagi acknowledges the trial court instructed the jury with CALCRIM No. 303 that evidence admitted for a limited purpose should not be used for other purposes, but states the instruction was insufficient. Leasiolagi, however, does not raise a separate claim that the trial court's failure to further instruct on this issue was error. Nor was the trial court under a sua sponte duty to give such a limiting instruction, and Leasiolagi's trial counsel did not request one. (Evid. Code, § 355; People v. Hernandez (2004) 33 Cal.4th 1040, 1051 [trial court does not have sua sponte duty to provide a limiting instruction.].) Any claim of error on this issue was forfeited.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: HUFFMAN, J., O'ROURKE, J.