Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCN226668 K. Michael Kirkman, Judge.
McCONNELL, P. J.
INTRODUCTION
A jury convicted Dominick Porter of first degree murder (Pen. Code, § 187, subd. (a)), but could not reach a verdict on related special circumstance and firearm allegations. The trial court declared a mistrial as to the allegations and subsequently dismissed them without prejudice at the People's request. The trial court sentenced Porter to an indeterminate sentence of 25 years to life in prison.
Porter timely appealed the trial court's judgment. After reviewing the entire record in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende), we affirm the judgment.
BACKGROUND
Shooting and Flight
Around midmorning on March 22, 2007, Jerome Burnett was at Kenya Hunt's home on Lofty Grove Drive in Oceanside moving Hunt's truck for him when he heard gunshots. He saw a "tall, slinky" man wearing black or blue Dickies pants, a hooded sweatshirt, and a batting glove on his right hand run shooting from some bushes across the street toward Hunt. Burnett ducked down. When he looked up, he saw the person fire two gunshots from within a few yards of Hunt, who fell to the ground. The person then ran back across and down the street.
Around the same time, Jon Magidson was walking down the driveway of his home on Lofty Grove Drive when he heard two gunshots from what sounded like a.357 revolver. He looked down the street and saw a tall, thin, athletic man walking from near the middle of the street towards the sidewalk firing a black handgun. The man fired four more shots then turned and ran away. The man wore a black jogging suit and a tan jacket. Although the man's face and hair were concealed, Magidson believed the man was an African American based on the man's build.
Magidson ran down the street and found his neighbor, Kenya Hunt lying on the ground. The right side of Hunt's head and one of his hands were bleeding profusely. Hunt subsequently died from multiple gunshot wounds to his head and torso.
On the day of the shooting, three witnesses heard the gunshots and saw two men running from the area. The first witness, Anne Sowka, was doing dishes while looking out of her kitchen window toward the intersection of Lofty Grove Drive and Rose Drive. She heard six gunshots. A short time later, she saw someone run down the sidewalk from Lofty Grove Drive and toward Rose Drive. The person was around five feet eight to nine inches tall and thin, weighing approximately 165 pounds. The person wore a dark colored jogging suit and a royal blue ski mask over his face. She then saw a second person run down the middle of Lofty Grove Drive toward Rose Drive. The second person was approximately six feet tall and was also thin, weighing around 185 pounds. Like the first person, the second person wore a dark colored jogging suit and a royal blue ski mask. Both individuals turned onto Rose Drive and continued running.
The second witness, Jessica Delavega, was in the living room of her house on Rose Drive when she heard gunshots. Shortly afterwards, she saw two men run by her house. The first man was approximately five feet six inches tall, had darker skin, and wore dark blue or black sweats, a dark blue hooded sweatshirt, and a dark blue or black ski mask over his face. The second man was significantly taller than the first. He also had darker skin and was approximately six feet one or two inches tall with a slender build. He wore light gray sweats, a dark blue hooded sweatshirt, and a royal blue ski mask. He kept looking behind him while struggling to put a black gun into his pocket.
The third witness, Roberto Mier, was walking his dogs near the corner of Lofty Grove Drive and Rose Drive. He heard a gunshot. A few seconds later, a man ran by him. The man was dressed in black and his head and face were covered with a mask. The man came from Lofty Grove Drive, turned onto Rose Drive, and then turned onto a dirt path near the corner of Rose Drive and Granada Drive that leads to North Avenue. Mier heard some more gunshots and about four seconds later, a second man ran by holding a gun in his right hand. The second man was dressed in the same way as the first man. The second man followed the same route and went to the same place as the first man.
Another path, referred to by the parties below as the horseshoe trail, leads from North Avenue around some businesses, including the Federal Heath Sign Company (Federal Heath), and back onto North Avenue. Surveillance video from Federal Heath's security system showed at around 10:05 a.m. on the day of the shooting, two individuals wearing dark clothing traveled through Federal Heath's parking lot toward the horseshoe trail.
At around the same time, Marcus Rivera and Marcial Torres were on the horseshoe trail smoking marijuana when two African American men wearing dark clothing came by looking scared. One of the men was approximately six feet five inches tall and slim. Both Rivera and Torres identified the man in court as Porter, whom they had previously seen playing basketball at John Landes Park. The other man was shorter and heavier. He was also limping. The shorter man had an item in his hand, a piece of clothing or something in a bandana, which he gave to Porter. Porter gestured for the shorter man to get on Porter's back. Porter then threw the item into the bushes, the smaller man jumped on Porter's back, and Porter started jogging away. Rivera and Torres walked to where they thought they had seen Porter throw the item, but they did not find anything. They then left the trail and started walking back home along North Avenue.
The parties stipulated that on the day of his arrest, Porter stated he was six feet five inches tall and weighed 185 pounds.
On the way, they flagged down a police officer. Torres asked if the officer was looking for some African American males, and showed the officer where they had seen Porter and his companion. Torres told the officer he might be able to identify one of the men; however, he did not say he had previously seen the man at a park. Rivera also did not say he had previously seen the man at a park and told the officer he could not identify anyone.
On the morning of the shooting, Warren Forrest was driving along North Avenue when he saw two African American men come out of some bushes along the horseshoe trail and start walking on North Avenue toward Temple Heights Drive. As they came out of the bushes, the men were crouched down and looked back and forth down the street and behind them. One of the men, who was taller than the other, was wearing black baggie shorts with white piping around the edge and carrying a cell phone. The shorter man was wearing a bulky sweatshirt.
Between 10:00 a.m. and 11:00 a.m. on the morning of the shooting, Christina Macedo was working on a construction project at the railroad crossing on Temple Heights Drive. She heard loud popping noises, like firecrackers. No more than 10 minutes later, two young African American men walked by hurriedly. One of the men was about six feet two or three inches tall and wore a white shirt. The other man was about five feet nine inches tall. One of the men wore black shorts with a red stripe and the other wore gray sweats. One of the men had a towel wrapped around his hand.
Porter's Detention, Identification, and Arrest
Oceanside Police Detective Tina Baroni heard a broadcast of the shooting. When she learned the suspects were running, she headed to a shopping center at the corner of Oceanside Boulevard and Temple Heights Drive (shopping center), a few minutes drive from Hunt's home, to check for them. When she arrived at the shopping center at approximately 10:18 a.m., she saw an African American man at a bus stop. She contacted him, obtained some personal information from him, and subsequently determined he did not fit the description of either of the fleeing suspects.
Detective Carl Regalado, who arrived at the shopping center to cover Detective Baroni, pointed out another African American male, Porter, who was standing at a payphone near a convenience store. Porter matched the general description of one of the suspects. In addition, Detective Regalado saw Porter exit a store with a beverage, which Porter drank rapidly before walking over to the payphone.
Detective Baroni contacted Porter, who told her he had been released from jail the day before and had spent the night at a friend's apartment nearby. Porter did not know the friend's name or anything else about him. He went to the shopping center to use the payphone because his cell phone was not working. When he got there, he ran into "his homie" in the parking lot. He did not know the person's name, but described him as being approximately 20 years old, shorter than himself, and wearing a black T-shirt and gray sweats. They went into a store together and Porter bought drinks for both of them. When Porter walked out of the store, he saw a man at the bus stop whose face he recognized. He walked over and briefly chatted with the man. He did not know where "his homie" went. He then went to the payphone and called a friend to relay a message to Porter's brother that he needed a ride.
The parties stipulated that the evening before the shooting, Porter was released from the San Diego County Sheriff's detention facility in Vista, where he had been held on driving under the influence charges. The parties also stipulated Porter had not previously been convicted of any felony crimes.
While Detective Baroni detained Porter, another detective brought Magidson to the shopping center for a curbstone lineup. Magidson could not identify or eliminate Porter as the shooter; however, he stated Porter's height and build were similar to the shooter's.
A police officer also took Burnett to the shopping center for a curbstone lineup. Burnett testified he told the officer Porter was not the shooter because Porter was taller and his hair was more noticeable than the shooter's.
Another officer brought Rivera to the shopping center for a curbstone lineup. Rivera positively identified Porter as the taller African American man he saw on the horseshoe trail. Detective Baroni then arrested Porter.
Johnson's Arrest
Margaret Wischstadt lives in a house near the shopping center. Around 10:30 a.m. on the morning of the shooting, she was in her backyard when a man jumped over the brick wall behind her house, ran past her, jumped over her front fence, and crouched down and hid. After she saw helicopters and heard loudspeakers, she called 911, asked if the police department was hunting for someone running on foot, and provided her address. She then heard the man run away from her house.
Sergeant Jeffrey Novak heard the broadcast of the shooting and directed officers to establish perimeter positions to contain the suspects. After hearing the report of a man jumping into Wischstadt's yard, Sergeant Novak drove around the area and noticed a light-skinned African American man looking around nervously. The man, Jonathon Johnson, was approximately five feet eight or nine inches tall and of medium build, which matched the description of one of the suspects. Sergeant Novak stopped Johnson to talk to him and noticed grass particles on his clothing. In addition, Johnson was sweating and shook violently. After speaking with him, Sergeant Novak arrested him.
Johnson was tried separately. The outcome of Johnson's trial is not contained in the record in this case.
Collection and Testing of Physical Evidence
Evidence Found on the Horseshoe Trail
On the day of the shooting and on the two following days, officers from the Oceanside Police Department, deputies from the San Diego County Sheriff's Office, and members of the San Diego County Sheriff's Search and Rescue and the San Diego Mountain Rescue Team searched the horseshoe trail for evidence. On the first day, an officer and a deputy K-9 handler found a black knit cap. Another officer found a black sweatshirt with a white logo, black Dickies pants with a black woven belt, a yellow do-rag, a blue ski mask, and a black bandana. A second black bandana was in the pocket of the black sweatshirt. A detective found a pair of blue Dickies pants with a black leather belt.
DNA testing showed Porter's DNA matched DNA found on two different areas of the black knit cap. In addition, he was included as a contributor to a partial DNA mixture found on a third area of the cap. Porter's DNA matched the profile of the major contributor to the DNA mixture found on the blue ski mask. Porter's DNA also matched the DNA of the major contributor to the DNA mixture found on the blue Dickies pants and the black leather belt with those pants. Porter was included and Johnson could not be excluded as a contributor to the DNA mixture found on one side of the black bandana that was in the pocket of the black sweatshirt. Porter was included and Johnson was excluded as a contributor to the DNA mixture found on the other side of the black bandana.
Johnson's DNA matched the DNA found on the other black bandana. Johnson was included and Porter was excluded as a possible contributor to DNA mixtures found on the black sweatshirt, the yellow do-rag, the black Dickies pants, and the black woven belt with the black Dickies pants.
On the second day, a police detective found a black T-shirt in the bushes. DNA testing showed Porter's DNA profile matched the DNA found on the T-shirt.
On the third day, San Diego Mountain Rescue Team members found a revolver buried under dirt and leaves, and a black batting glove. San Diego County Sheriff's Search and Rescue team members found a black knit glove and a black sweatshirt.
The parties stipulated that fingerprints taken from the gun were of no value and could not be compared to anything. However, DNA testing of the gun showed Porter was included and Johnson was excluded as a possible contributor to the DNA mixture found on it. DNA testing further showed Johnson was included and Porter was excluded as a possible contributor to the DNA mixture found on the gloves. Although testing revealed there was gunshot residue on the black sweatshirt, there was insufficient DNA on the sweatshirt to test.
Other Evidence
A casting of a shoeprint found in dog waste on the sidewalk by Hunt's home was similar to the shoes worn by Johnson when he was arrested. The shoeprint was not similar to the shoes worn by Porter when he was arrested.
The gun found on the horseshoe trail was a Smith and Wesson.357 Magnum revolver that holds six rounds. An expended bullet found at the scene of the shooting bore the same class characteristics as the revolver. Another expended bullet recovered from Hunt's body also bore the same class characteristics as the revolver. Both bullets were too damaged to conclusively determine whether they were fired by the gun found on the horseshoe trail. The other bullet evidence recovered from Hunt's body could not be meaningfully analyzed.
Porter's Postarrest Statements
The parties stipulated police detectives advised Porter of his rights under Miranda v. Arizona (1966) 384 U.S. 436, and Porter waived those rights before he made the statements.
After his arrest, Porter told police detectives he spent the night at a friend's apartment. He woke up at around 7:00 a.m. and walked to a former employer's home, and chatted with someone for 10 to 20 minutes. Then, he walked to his father's home, where he stayed for approximately 45 minutes to an hour. After he left his father's house, he went by his mother's house, but no one was home. He went back to his friend's apartment and no one was home there either. Because his cell phone was not working, he went to the shopping center to use the payphone to call his brother for a ride.
While he was waiting for a ride, he encountered two friends whose names he did not know and chatted with them. He and the first friend went into a store and Porter bought drinks for them. When they came out of the store, the first friend left to go to a Mexican food shop. Porter then walked his second friend to the bus stop and chatted with him for approximately 10 to 15 minutes. After that, Porter returned to the payphone and called to check on his ride. While waiting, he went to the Mexican food shop and shared some food with his first friend. He then went back to the payphone and was calling to check on his ride again when Detective Baroni approached him.
Porter told police detectives he had been released from jail the prior evening for driving under the influence charges and got into a fight with a drunken Hispanic man on the way to his friend's apartment. He had been wearing blue Dickies pants, a beanie, a mask, and gloves. He threw the mask and gloves into some bushes after the fight because they had blood on them. He also threw his pants into the bushes because they had blood on them and because he peed on himself. He later said he left the outfit he had been wearing in the bushes to prevent any friends of the man with whom he had fought from recognizing him. He further acknowledged there could be gunshot residue on his hands because he went to the firing range a week and a half earlier.
Although Porter admitting knowing Hunt, he denied having seen him recently. He additionally denied being the shooter or having anything to do with the shooting. He also denied bearing any ill will toward Hunt as Hunt had treated him well and had previously offered to employ him.
DISCUSSION
Appointed appellate defense counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal, but asked this court to review the entire record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel identified as possible, but not arguable issues, whether: (1) the trial court erred by refusing to allow the jurors to submit questions during trial; (2) the trial court erred by refusing to allow Porter to retest and view evidence unsupervised; (3) the trial court erred by refusing to excuse Juror No. 10 and prospective Juror No. 16 for cause; (4) Detective Baroni illegally detained Porter; (5) the trial court erred in admitting a dispatch report into evidence at the hearing on Porter's motion to suppress; (6) the trial court erred by denying Porter's motion to suppress; (7) the trial court erred by overruling Porter's objection to a portion of the prosecutor's closing argument and denying his related motion for mistrial; (8) the trial court erred by denying Porter's request that the jury be given the CALCRIM No. 440 instruction regarding accessories; (9) the trial court sufficiently restricted the DNA expert's testimony regarding the use of the term "match"; (10) the curbstone lineup of Porter was impermissibly suggestive; (11) the prosecutor committed misconduct by eliciting evidence Porter had been in jail the evening prior to the shooting; and (12) the prosecutor's late discovery of witness impeachment information deprived Porter of his rights to due process, to confront and cross-examine witnesses, to effective assistance of counsel, and to a fair trial (Anders issues).
After receiving appellate counsel's brief, we granted Porter permission to file a brief on his own behalf. He has not responded.
Wende briefs are rare in cases, such as this one, in which the appellant has been convicted of first degree murder following a lengthy jury trial. Although appellate defense counsel, who is an experienced and able advocate, submitted one of the finer Wende briefs we have ever received, we were skeptical the record would reveal the absence of any arguable issues. However, after carefully reviewing the entire record and considering the Anders issues identified by appellate defense counsel, we also were unable to identify any reasonably arguable appellate issues.
We attribute the absence of arguable issues to a remarkable combination of circumstances, most of which are not readily apparent from the facts of the offense. First, when the shooting occurred, there happened to be eyewitnesses in key locations along Porter's path of travel. Although there were some inconsistencies in the witnesses' testimony, the witnesses largely corroborated one another. Surveillance video, the physical evidence found along the horseshoe trail, and the DNA testing of the physical evidence also corroborated the witnesses' testimony, making the circumstantial case against Porter exceedingly strong.
Second, on the day of the shooting, the officers from the Oceanside Police Department's (Department) investigations unit were all on patrol duty because the Department's regular patrol officers were in training. Consequently, most of the officers responding to and assisting with the shooting were highly experienced, not just in general law enforcement practices, but also in investigations. They were able to deploy themselves in an efficient and effective manner such that Porter was detained, identified, and arrested within approximately an hour of the shooting.
The one disappointing aspect of the Department's performance was some sloppy evidence handling by a few of the Department's field evidence technicians. The errors were largely administrative and were quickly corrected; however, they had the potential to undermine the integrity of the scientific testing of the physical evidence found along the horseshoe trail. Consequently, the prosecutor had to devote trial time to presenting evidence of what the errors were, how they occurred, how they were identified, and how they were corrected. While the errors did not ultimately influence the outcome of the case, they wasted scarce resources and generally conveyed a lack of professionalism on the part of the personnel who made them.
Third, the performance of Porter's trial counsel was exemplary. Throughout the proceedings below, she raised the appropriate issues at the appropriate junctures and prevailed in her positions more often than not. On the two key matters where she did not prevail, the motions to suppress the identification evidence and Porter's statements to police detectives, her zealous advocacy forced the prosecutor to present exhaustive evidence showing the Department's actions in this case passed constitutional muster. Thus, the motions fulfilled both her duty to Porter and her role in the criminal justice system.
Through thoughtful objections and skillful cross-examinations, Porter's trial counsel likewise held the prosecution to its burden during trial, resulting in a comprehensive presentation of evidence for the jury to consider and for us to review on appeal. Her closing argument to the jury was especially noteworthy as she was able to effectively highlight where the jury could find reasonable doubt in the prosecution's case. We have no doubt the jury's inability to reach a verdict on the special circumstance and firearm allegations directly resulted from her remarks.
For his part, the lead prosecutor also performed in an exemplary fashion. Not only did he present a strong case in a thorough and accessible manner, but he avoided creating any unnecessary appellate issues by carefully choosing which battles to fight. For instance, near the end of trial, he opted not to call an important witness because of potentially appealable issues defense counsel intended to raise if he did. At other times, when he could not avoid the creation of an appellate issue, he did his best to make a defensible record for appeal. For instance, when defense counsel challenged the admissibility of the identification evidence and Porter's statements to police detectives, he submitted a comprehensive array of evidence, briefing, and argument to the trial court, which provided us with one of the better records we have received on such matters in recent memory.
With highly skilled advocates on both sides, the issues raised below tended to be more sophisticated and, therefore, more difficult to decide. Defense counsel's motion relating to the expression of the DNA testing results illustrates this point especially well. Fortunately, each time the prosecutor or defense counsel presented the trial court with a complicated matter to resolve, the trial court provided a detailed analysis as well as citations to the authorities it relied on for its decision. Such care both minimized the potential for error and aided our review enormously.
Finally, we note from the transcripts of the jury voir dire process that it was not easy to select a jury in this case. When the prospective jurors learned of the nature of the case and the likely length of the trial, many of them immediately tried to "run for the hills." The trial court expended considerable effort to gather a sufficient size panel of able and willing prospective jurors from which the parties could select the jury. Ultimately, the effort was worthwhile as the jury took its role seriously. It asked for clarification of instructions it did not understand, it asked to rehear the lengthy recordings of Porter's statements to police detectives, which were the only evidence of Porter's version of events, and it did not rush to judgment, but instead deliberated several days before reaching its verdict. In sum, the jury did everything the criminal justice system asks a jury to do to ensure a criminal defendant receives a fair trial.
We are not required to and do not usually provide a lengthy explanation of our decision in a case where a Wende brief is filed. We elaborated a bit in this case because of its rarity, and because it is important to acknowledge how well the criminal justice system functions when the people who comprise its components perform their assigned tasks as ably as occurred here. We include appellate defense counsel in that assessment and conclude that, by virtue of her compliance with the Wende procedure prompting our review of the entire record, she has provided Porter with effective representation on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J.IRION, J.