Opinion
B225327
11-14-2011
THE PEOPLE, Plaintiff and Respondent, v. TERRY RICHARDSON, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA107441)
APPEAL from a judgment of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Affirmed.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Terry Richardson appeals from the judgment entered following his conviction by a jury of attempted willful, deliberate and premeditated murder, assault with a firearm and possession of a firearm by a felon. Richardson contends, and the People concede, the trial court erred in failing to instruct the jury to view with caution Richardson's pretrial oral statements. However, we agree with the People the error was harmless. We modify the judgment to include omitted presentence conduct credit and, as modified, affirm the judgment.
Richardson also contends, and the People concede, the trial court erred in failing to give him 51 days of presentence conduct credit.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
In an information filed October 1, 2009 Richardson was charged with two counts of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 187, subd. (a), 664) (count 1—Eddie Jones; count 2—Richard Davis), two counts of assault with a firearm (§ 245, subd. (a)(2)) (count 3—Eddie Jones; count 4—Richard Davis) and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 5). As to counts 1 through 4, the information specially alleged Richardson had inflicted great bodily injury (§ 12022.7, subd. (a)), the offenses were committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(B) & (b)(1)(C)) and various firearm-use enhancements (§§ 12022.53, subds. (b), (c) & (d), 12022, subd. (a)(1), 12022.5). The information also specially alleged Richardson had suffered one prior serious or violent felony conviction within the meaning of the "Three Strikes" law (§§ 667.5, subds. (b)-(i); 1170.12, subds. (a)-(d)), and two prior serious felonies under section 667, subdivision (a)(1), and had served a prison term for a prior felony conviction (§ 667.5, subd. (b).)
Statutory references are to the Penal Code.
2. The Trial
According to the People's theory of the case, Richardson argued with a group of men in the early evening of July 7, 2009 outside a gym at the Rosecrans Recreation Center in south Los Angeles. Shortly after the argument Richardson and a woman left the area in a green Impala, but returned to the center an hour later. Richardson and the woman entered the gym, began firing handguns, seriously injuring Richard Davis and hitting another man, and then fled in the same car.
Richardson, who did not testify, presented a mistaken identity/alibi defense, claiming he was himself the victim of a shooting that had occurred at approximately the same time seven miles away from the recreation center.
a. The People's evidence
i. The shooting at the recreation center
During the late afternoon/early evening on July 7, 2009 a number of young men were playing basketball in the gym at the Rosecrans Recreation Center on 149th Street and Vermont Avenue. At about 6:15 p.m. an argument started outside the gym between Richardson and a group of 15 or 16 men. Jason Marrero, who worked at the center, testified people were shouting gang names. After one of the men identified himself as a member of the Rolling 60's, a Crips gang, Richardson said he was also a member of that gang. Just before walking away, Richardson warned, "Watch, I'll be back."
Richardson walked over to a green Impala parked on 149th Street and began working under the hood of the car. Marrero approached him because he "clearly looked like he was pissed off" and Marrero wanted to diffuse the situation. After Marrero told Richardson everything was all right, Richardson responded, "It's all right. I'm going to make sure they know it's all right, Cuz." During the exchange a woman came to the car, and Richardson told her to hurry up because they had to go. About an hour later Marrero heard gunfire and saw a gunman's arm extended into the gym.
Marrero was interviewed by Los Angeles Police Detective Peter Verschueren, the investigating officer assigned to the case, on July 21, 2009. According to Verschueren, Marrero selected Richardson's photograph from a group of six photographs (a photographic "six-pack" lineup) as the man who had had the confrontation with the group outside the gym and later shot into the gym. Verschueren did not have Marrero circle the photograph or otherwise acknowledge the identification in writing because he knew the interview was going to be recorded. At the end of the interview Verschueren served Marrero with a subpoena. Marrero appeared frightened and said he did not want to testify. In a second interview the next day Marrero again said he was afraid to testify and did not want to be labeled a "snitch."
At trial Marrero retreated from his earlier, positive identification of Richardson. He testified he had selected two photographs from the six-pack, not just one. Nonetheless, he acknowledged he had told Detective Verschueren he was "almost 100 [percent]" sure it was Richardson he had seen at the gym. Marrero also testified he never actually saw the shooter, just his arm, and therefore could not have identified Richardson as the shooter. Additionally, Marrero said he could not identify Richardson at trial as the man involved in the altercation with the group, claiming, "It just doesn't look like the same guy to me. I can't put the face together." Marrero, however, admitted he was afraid to testify, explaining, "You know, L.A. is a small city. I know plenty of people and I don't want the jacket to be on me, then I'll be a victim."
Detective Verschueren testified Marrero had told him, "I didn't see him actually step all the way in. But it was the same guy who I saw that was armed." Marrero denied he had said this.
Deshawn Burton, a volunteer baseball coach at the center, testified he was putting items into his car parked on 149th Street when he heard what he thought was the sound of firecrackers. He looked toward the gym and saw a man with a revolver and a woman running toward the door. The couple stood in the doorway and appeared to be spraying gunfire into the gym. Based on her bright clothing, Burton believed he had seen the woman about an hour earlier outside the recreation center. After the shooting the couple ran to a gray or green Impala and drove away. Burton called the 911 emergency operator and gave the operator the license plate number he had memorized. (The call came in just before 7:56 p.m.) It was determined Richardson was the registered owner of the Impala; however, Burton was unable to identify him.
Brian Diaz testified he was playing basketball at the recreation center when he noticed people going outside. Diaz looked outside and saw a man arguing with a group of people. The man, frustrated and mad, began cursing and walking toward a green Impala on 149th Street. A young woman, wearing something bright, "like, a yellow skirt," and carrying a baby, was with him. The couple got into the car and drove away.
About an hour later Diaz was talking outside the gym with a friend when he saw a man and woman "walking in a weird manner" toward the gym. There was a big purse between them and they both had their hands in the purse. Diaz testified the woman was the same woman who had earlier left in the green Impala and the man also appeared to be the same—he was wearing the same or similar shorts and was the same height—but Diaz could not "pinpoint and say that was him." Diaz saw the couple take out guns and begin shooting into the gym. After the shooting the couple got into a green Impala waiting on 149th Street. Diaz was not able to identify the male perpetrator.
J'son Johnson testified he was in the gym with his brother, John Johnson, and his friend Richard Davis, one of the shooting victims, when he heard an argument begin outside. J'son went outside as the argument ended, and a group of people walked back into the gym. J'son saw Richardson working under the hood of a green Impala or Monte Carlo and a woman put something into the backseat of the car.
Davis was shot in the leg during the incident and also fractured his finger. He testified he had to have surgery on his leg and missed a season of playing college football due to his injuries.
About an hour later, while J'son was playing basketball, he heard a pop. He turned, saw a flash and began to run. Although J'son testified he only saw the shooter for a "slight second" and "didn't get a good luck at him when he started firing," he was 100 percent certain it was Richardson, the same person he had seen working on the Impala. In addition to identifying Richardson at trial as the perpetrator, J'son selected Richardson's photograph in the six-pack lineup shown to him on the day of the incident and identified Richardson at the preliminary hearing, identifications J'son testified he was 100 percent certain of when he made them.
John Johnson testified he was in the gym when he heard gunshots. He turned, saw sparks and ran. On July 8, 2009, the day after the incident, John and J'son went to the police department where John was interviewed by Los Angeles Police Detective Norman Peters. Peters testified John selected and circled Richardson's photograph as the shooter on the six-pack lineup, initialed the identification, wrote a statement describing what the perpetrator had done and signed the card. John, however, testified at trial he told Peters he was not certain of the identification even though he had failed to indicate any uncertainty in his written statement.
In the section captioned, "additional comments regarding photographs," John wrote, "The guy that cam[e] into the gym while we [were] playing basketball and started shooting."
ii. The shooting on Gage
Detective Peters testified he interviewed Richardson on the morning of July 9, 2009 while Richardson was in the hospital being treated for a gunshot wound to his
wrist. Richardson said he had been shot on July 7, 2009 between 6:00 p.m. and 6:30 p.m. while walking alone on Gage Street between South Broadway and South Figueora Street. Richardson said a dark blue car with two Latino males in the front and an African American man in the back pulled up next to him and mumbled something like, "What's up Homes." Richardson said, "I'm not on that no more" and began to run. As he was running, he heard three or four shots; one hit him in the wrist. Richardson ran to a pay phone and called the 911 emergency operator.
The interview was played for the jury, and a transcript provided.
The call to 911, which came in a few seconds before 8:11 p.m., was played for the jury; and transcripts distributed. Although Richardson had told Detective Peters he was alone when he got shot and called the emergency number himself, the call was made by a person who identified himself as Richardson's friend. The caller requested an ambulance be dispatched to 66th Street and Figueroa, approximately three blocks from the intersection of Gage and Figueroa. Police subsequently found 11 spent shell casings and one live round about five or six blocks away from that location. Richardson's blood was found in the Impala.
Detective Verschueren testified he drove from the Rosecrans Recreation Center to the area of Gage and Figureroa on a weekday around 5:30 p.m. The drive took approximately seven minutes.
iii. Richardson's interview at the police station
On the second day after the shooting at the recreation center, Richardson was interviewed not only by Detective Peters in the morning at the hospital, but also later that day by Detective Verschueren at the police station. Initially, Richardson maintained he had parked his car at his home in Orange County during the morning of July 7, 2009 because it ran out of gas and had his mother drive him to several appointments. Richardson also said after lunch he had taken the bus from Orange County to south Los Angeles to play basketball.
After Detective Verschueren showed Richardson a photograph captured on surveillance video of the green Impala traveling westbound on 149th Street toward Vermont Avenue on July 7, 2009, Richardson said he was being driven in the car to Rosecrans Park. Richardson explained he played basketball at the gym and then drove his car to a friend's house, where he left it. Richardson said the friend, whom he did not identify, drove him to the area of Figueroa and 66th Street. At some point during the interview Richardson also claimed his uncle Tyrone had the car.
In light of the jury's not-true findings as to the gang enhancement allegations, we do not summarize the testimony of the People's gang expert witness.
b. Dismissal of counts 1 and 3
At the close of the People's evidence, Richardson's motion for judgment of acquittal (§ 1118.1) was granted with respect to counts 1 and 3, the offenses allegedly committed against Eddie Jones, who did not testify.
c. The defense's evidence
Richardson, who did not testify on his own behalf, presented a mistaken identity/alibi defense. Dr. Edward Geiselman, a psychologist with expertise in the accuracy of eyewitness identification and recollection, testified about various factors that can affect the reliability of eyewitness identifications.
Derrell Griffith, an investigator with the Los Angeles County Public Defender's Office, testified he drove on the freeway from the Rosecrans Recreation Center to the area of Figueroa and Gage; and the trip, which was 6.7 miles, took about 16 minutes. (Griffith began driving the route at 9:39 a.m. on a Friday morning.) He also drove from the recreation center to the same area on surface streets; the trip took about 15 minutes. Based on this testimony, Richardson argued he could not have been at the recreation center when the shooting took place just before 7:56 p.m. because there was not enough time to drive from there to Gage and Figueroa by 8:11 p.m., when he called 911 to report he had been the victim of a shooting.
3. The Jury Instructions
The jury instructions included the elements of the charged offenses, evaluating eyewitness identification (CALCRIM No. 315) and the prosecution's burden to prove the defendant was present and committed the crime when the defendant offers an alibi (CALCRIM No. 3400).
With respect to evaluating the evidence of threats Richardson purportedly made after his initial altercation with the group outside the gym, the jury was instructed, pursuant to CALCRIM No. 358, "You must decide whether the defendant made any of these statements in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statements." The jury was not instructed with the additional cautionary language contained in the standard version of CALCRIM No. 358, "Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded."
4. The Jury's Verdict and Sentence
The jury found Richardson guilty of attempted murder (count 2), assault with a firearm (count 4) and possession of a firearm by a felon (count 5). The jury found true the firearm-use and great bodily injury enhancements, but found not true the gang enhancement allegations. In a bifurcated proceeding the court found true the special allegations regarding Richardson's prior serious or violent felony convictions and prior prison term. The trial court sentenced Richardson to an aggregate state prison term of 48 years eight months to life.
The trial court awarded Richardson 342 days credit for time actually served in presentence custody, but no presentence conduct credit. As Richardson argues and the People concede, he is entitled to 51 days of conduct credit—15 percent of his actual custody time—pursuant to section 2933.1, subdivision (c) (presentence conduct credit limited to 15 percent of actual custody days for defendant convicted of a violent felony within the meaning of § 667.5, subd. (c)). (See generally People v. Brewer (2011) 192 Cal.App.4th 457, 462 [defendant who receives indeterminate life term entitled to presentence conduct credit].)
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DISCUSSION
The trial court has a sua sponte duty to instruct the jury that a defendant's out-of-court statements tending to show guilt, if not memorialized in writing or otherwise recorded, should be viewed with caution. (People v. Beagle (1972) 6 Cal.3d 441, 455-456.) This cautionary instruction "applies broadly," given that its purpose is to assist the jury in determining if the statement was in fact made. (People v. Carpenter (1997) 15 Cal.4th 312, 393 ["[t]his purpose would apply to any oral statement of the defendant, whether made before, during, or after the crime"].)
Although acknowledging the trial court's failure to give the cautionary instruction was error, the People urge the error was harmless under the Watson standard of prejudice—that is, reversal is not required unless "it is reasonably probable that a result more favorable to the appealing party would have been reached in absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Carpenter, supra, 15 Cal.4th at p. 393 [applying "the normal standard of review for state law error" when court failed to give cautionary instruction]; People v. Beagle, supra, 6 Cal.3d at p. 456; see generally People v. Mower (2002) 28 Cal.4th 457, 484 [instructional error that violates only state law, not federal constitution, evaluated under Watson standard of prejudice, not Chapman's beyond-a-reasonable-doubt standard].)
Richardson contends the court's failure to instruct with the cautionary language necessary to assist the jury in determining whether he threatened to return to the recreation center was prejudicial because, if the jury believed he made the threats, it would be much more likely to believe he also returned and committed the charge offenses, rather than accept his alibi/mistaken identity defense. Unlike the two principal cases upon which Richardson relies, People v. Deloney (1953) 41 Cal.2d 832 and People v. Ford (1964) 60 Cal.2d 772, overruled on other grounds in People v. Satchell (1971) 6 Cal.3d 28, however, his statements did not constitute "vitally important evidence" upon which any key issue hinged. (Deloney, at p. 840; Ford, at p. 800.) In both Deloney and Ford the defendants' admissions were essential to establishing the homicides committed were deliberate and premeditated and thus constituted first degree murder. (See Deloney, at p. 840 [determining premeditation and deliberation was "a difficult question on the facts of the present case"; "[d]efendant's alleged statement[s] . . . were key parts of the People's poof"]; Ford, at p. 800 [defendant's statements "constituted a substantial part of the evidence offered to establish the prosecution's theory that the shooting . . . was deliberate and premeditated because defendant had formed an intent to kill any police officer who might interfere with his plans"].)
In the case at bar, the question was not one of intent, often difficult to determine in the absence of a defendant's incriminating admissions, but whether Richardson was the perpetrator. On this question, the evidence was strong: J'son Johnson identified Richardson as both the participant in the argument outside the gym and the shooter with 100 percent certainty. Marrero selected Richardson's photograph as both the man who had had the confrontation with the group and who later shot into the gym. Although Marrero attempted to cast doubt on his identification of Richardson at trial, it was apparent his uncertainty was linked to his fear of testifying.
To be sure, several other identifications of Richardson were not as certain as J'son's. The evidence of Richardson's guilt, however, was powerfully reinforced by the testimony that the perpetrator drove away in a green Impala registered to Richardson and that the same woman who drove away with Richardson after the argument was the female shooter, as well as by Richardson's lack of credibility regarding his alibi. After telling police his car ran out of gas in Orange County on the day of the shooting, he changed his story when confronted with irrefutable evidence contradicting his claim. Additionally, although Richardson had told Detective Peters he was alone when he was shot and called the emergency number, the transcript from the call indicates a friend of Richardson's placed it. Finally, although Richardson argued there was insufficient time to get from the recreation center to the area where he had been shot, Detective Verschueren established the trip could take as little as seven minutes, ample time for Richardson to have been the shooter. In sum, there is no reasonable probability the verdict would have been different had the jury been instructed with the additional cautionary language in CALCRIM No. 348.
DISPOSITION
The judgment is modified to reflect a total of 393 days of presentence custody credit. As modified, the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
PERLUSS, P. J. We concur:
WOODS, J.
JACKSON, J.