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People v. Whitaker

California Court of Appeals, First District, First Division
Sep 18, 2008
No. A119519 (Cal. Ct. App. Sep. 18, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MARQUES WHITAKER, Defendant and Appellant. A119519 California Court of Appeal, First District, First Division September 18, 2008

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. 154602

Marchiano, P.J.

A jury convicted defendant Marques Whitaker of attempted murder with enhancements and two firearms offenses. He contends that the trial court abused its discretion by admitting evidence of a prior offense and certain testimony of defendant’s mother. Both items of evidence were admitted on the issue of credibility. We find no prejudicial error and affirm.

I. FACTS

Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)

The evidence against defendant is more than substantial. He was found in possession of the firearm used in the attempted murder. The victim positively identified defendant as the man who shot him, but recanted his identification at the preliminary hearing and trial, apparently because he feared retaliation.

On December 30, 2006, at approximately 3:00 p.m., the Oakland Police Department Shots Spotter System, a collection of gunshot sensors, reported six gunshots in the 8000 block of MacArthur Boulevard. A few minutes later, an Oakland police dispatcher received an anonymous 911 call from an agitated woman, who said, “[I] just saw somebody walk away with a gun in their hand, and he had a black-hooded . . . sweatshirt. . . . I just heard the shots, but I [saw] some guy upstairs lying on the floor like he just got shot.” She described the man with the gun as Black and in his early 20’s. She told the dispatcher the man “was holding [the gun] in the air like he was proud of what he did, and then he ran across the street.”

Oakland Police Officer Sincerny heard the gunfire and responded to 7985 MacArthur Boulevard. He found the victim, Jamahl Cameron, lying on the second floor landing of an apartment building. There were six semi-automatic shell casings at the scene.

Cameron told Officer Sincerny that “Marques” had shot him. Cameron expressed no uncertainty. He described Marques as a light-skinned Black man, about 17 or 18 years old, 5′ 7′ tall, and with a thin build. Cameron told Sincerny that he saw Marques’ face. He never told the officer that the shooter’s face was covered by a hood. He never said that two girls had told him who shot him.

An evidence technician recovered the six semi-automatic shell casings from the entrance of the apartment complex. They were stamped “CCI NR .380 auto.”

Cameron had been shot five times. One shot shattered his right femur.

On December 31, 2006, at approximately 9:40 p.m., Oakland Police Officers Worcester and Rivera made a traffic stop of a vehicle. Defendant was a passenger. There was an open bottle of tequila on the rear seat, next to defendant. Defendant told the officers he had no identification. Officer Rivera asked him to step out of the car. Defendant did so, then pushed past Rivera as if trying to flee. He struggled, but was subdued.

The officers found a sock in defendant’s pants pocket, containing seven .380 semi-automatic pistol bullets. Under the sock was a loaded Walther PPK/S .9 mm semi-automatic pistol. Defendant blurted, “That’s not mine. That’s not mine.”

The shell casings found at the scene of the shooting were fired from the .9 mm pistol found on defendant. The shell casings found at the scene and the bullets in defendant’s pocket were all stamped “CCI NR .380 auto.” The .9 mm pistol was listed as a crime gun by the Oakland Police Department.

On January 5, 2007, Oakland Police Officer Nowak showed Cameron a photographic lineup. Within a “split second,” Cameron identified a photo of defendant as the man who shot him. He showed “no hesitation whatsoever” and expressed no doubt about his identification. He told Nowak that defendant shot him “five times for no reason. I want him punished for what he did.” Nowak wrote down Cameron’s statements, memorializing Cameron’s identification of defendant, his statement that defendant shot him five times for no reason, and his statement that he wanted defendant punished. Cameron read and signed the document incorporating his statements.

Cameron did not tell Officer Nowak that he did not see his shooter’s face. He did not suggest that someone other than defendant shot him. He did not say that he only heard that someone named Marques was the shooter.

Cameron did not appear skeptical, nervous, or scared. Rather, he appeared calm and cooperative. He gave Nowak a tape-recorded statement which was played for the jury. Cameron told Nowak, “This little boy, his name is Marques, that Marques just come out of nowhere.” He described defendant as “brown-skinned,” about 5′ 4′ tall, 160 pounds, and about 17 or 18 years old. Cameron had had a problem with defendant about three years previously, when defendant was “being a bully” in the neighborhood and Cameron tried to tell him “what’s right and what’s wrong.” Cameron told Nowak that defendant opened the gate to the apartment complex, walked up, and “just started shooting.” Cameron told Nowak he wanted defendant to go to prison.

On January 30, 2007, with the preliminary hearing set for February 5, Deputy District Attorney Ortega met with Cameron at his house. Cameron told Ortega he did not want to testify because he feared retaliation against himself and his family. In this meeting, Cameron never expressed any uncertainty that defendant was the shooter. He never said he couldn’t see the shooter’s face. He never said he could only identify defendant as the shooter because two girls told him defendant shot him.

Cameron failed to appear at the February 5 preliminary hearing and a bench warrant issued. Cameron appeared the next day. Although calm on January 5 when he spoke to Officer Nowak, Cameron was “scared” and “very nervous” at the preliminary hearing. Cameron testified that his prior identification of Marques as the shooter was mistaken: “It wasn’t him.” This was the first time Cameron had told anyone he was mistaken in his identification of the shooter. Cameron admitted that his written statement to Nowak, in which he identified defendant, said that defendant shot him five times for no reason, and said he wanted him punished, had been put in a storefront window in his neighborhood. But he claimed this did not make him afraid.

On September 10, 2007, Cameron testified at trial. He said he was shot at the apartment complex on December 30, 2006 by a person wearing a black hood. He claimed he could not see the shooter’s face. He claimed he told Officer Sincerny that he was not sure who shot him, and that two girls at the scene told Cameron the shooter could have been Marques or Marques’ friend. He admitted that he never told the prosecutor about the two girls until he was subpoenaed for trial.

Cameron testified that he identified defendant at the photo lineup, but told Officer Nowak that he wasn’t sure defendant was the shooter. He denied telling Ortega on January 30 that he was afraid of retaliation.

There were three witnesses for the defense: defendant’s mother, Lacreice Faulk; his 18-year-old sister, Shawntta Smith; and defendant himself.

Faulk testified as follows on direct examination. Defendant spent the night of December 29, 2006, at Faulk’s Allendale Avenue apartment. Both Faulk and defendant awoke around 12:30 p.m. on December 30. Around 2:00 p.m., Faulk began to cook gumbo, which was a New Year’s Eve family tradition. Defendant stayed home all day until about 9:00 p.m., when he left to go to the store. He returned 15 to 20 minutes later. Faulk “would do anything to help” defendant, but would not commit perjury to protect him.

On cross-examination, Faulk acknowledged she had a first-floor apartment with no bars on the windows and both front and rear doors. She also related an incident involving a gun, other than the weapon used in this case, being found under defendant’s bed. On November 10, 2006, or about six weeks before the shooting of Cameron, police came to Faulk’s apartment to arrest defendant. The officers found a loaded revolver under defendant’s bed. Faulk testified that the gun was hers, and that she had obtained it about two weeks previously for protection, because her apartment had been shot at. She said she put it under the bed, without defendant’s knowledge, because she did not want her teenage daughters to touch it.

Shawntta Smith testified as follows. She also woke up around 12:30 p.m. on December 30, and heard defendant talking to Faulk in the living room. She helped Faulk cook gumbo. Defendant stayed home all day, playing video games. He left for a short time around 9:00 p.m. to go to the store. Shawntta admitted she did not keep defendant constantly in her sight the day of December 30.

Smith and Faulk spoke to a defense investigator about the events of December 30, 2006. Faulk “refreshed [Smith’s] memory” about the day that the family cooked gumbo. But Smith seemed to testify that the family cooked gumbo on December 31, not December 30, because it was their tradition to cook gumbo on New Year’s Eve and eat it New Year’s Day.

At one point in her testimony, Smith said she wasn’t sure whether New Year’s Eve was December 30 or 31.

Defendant testified on direct examination as follows. He was home all day December 30 at Faulk’s apartment, playing video games with his friends. In the evening, he went out to buy snacks at the corner store. On his way to the store he ran into his friend Anthony, also known as “Ant,” who offered to sell him a pistol. Defendant, who carried a lot of cash on him “just in case,” gave $150 to Anthony for the weapon and a sock full of ammunition. Defendant did not know if the pistol was loaded. He bought it for protection because he had been shot twice and his home had been shot at recently. He put the gun in his pocket and went home.

Defendant went out with his friends in the evening of the next day, December 31. The police stopped the car in which defendant was riding, and found the gun in his pocket. He said the gun wasn’t his. Defendant claimed he did not know the gun was used in a shooting. Defendant waived his Miranda rights and gave a statement to the police. Defendant said he found the gun in the bushes near the housing projects on 35th Street, because he did not want to get Anthony into trouble.

Defendant denied shooting Cameron.

On cross-examination, defendant testified that he didn’t know Anthony’s last name, and it was only “coincidence” that he ran into him the day of the shooting and purchased the pistol. Defendant claimed he never fired the gun he bought from Anthony, and did not check to see if it was loaded. He had never handled a gun before, and did not know how to operate one. Although he supposedly bought the weapon for protection, “It didn’t cross [his] mind to figure out how the gun worked.”

The jury convicted defendant of attempted murder (Pen. Code, §§ 187/664). The jury found true two enhancements: that the attempted murder resulted in great bodily injury (§ 12022.7, subd. (a)), and involved the personal use of a firearm causing great bodily injury (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)). The jury also convicted defendant of possession of a concealed firearm (§ 12025, subd. (a)(2)) and carrying a loaded unregistered firearm (§ 12031, subd. (a)(1)).

Subsequent statutory citations are to the Penal Code unless otherwise indicated.

The trial court sentenced defendant to the seven-year midterm for the attempted murder, and consecutive eight-month term for possession of a concealed firearm, and a consecutive term of 25 years to life for the personal use/great bodily injury enhancement under section 12022.53, subdivision (d).

II. DISCUSSION

Defendant contends the trial court abused its discretion by admitting evidence of prior juvenile criminal conduct and Faulk’s testimony about the gun under defendant’s bed. Both items of evidence were admitted on the question of credibility. The trial court did not abuse its discretion.

Prior Juvenile Conduct.

Defendant was 19 at the time of his trial in 2007. Prior to trial, the People moved in limine to introduce evidence that defendant participated in the armed robbery of a liquor store as a juvenile in 2004. The conduct apparently resulted in a juvenile adjudication for violating section 487. The People argued the prior conduct showed moral turpitude and thus was admissible to impeach defendant. Defendant objected that the prior conduct, which also involved a firearm, would be particularly prejudicial, and asked that the evidence be excluded under Evidence Code section 352.

The trial court initially ruled that the incident was not remote in time and was probative of credibility, and that the court was “inclined to let something be used.” The court seemed to view the admission of evidence of a firearm as possibly prejudicial, and, apparently in light of defendant’s request to sanitize the prior conduct, asked the parties to try to come up with a resolution—such as simply asking defendant if it was found that he violated section 487 as a juvenile.

Later, just before defendant was to testify, the court noted that counsel had not “reach[ed] a reasonable accommodation.” The court ruled that the People could ask defendant about the incident, but the court “[did not] intend to drag this out . . . .”

In the wake of the trial court’s ruling, defendant admitted on direct examination that he, his brother, and a friend were arrested on January 11, 2004, for stealing from a store. Defendant’s brother was armed with a BB gun during the store theft. The trial court immediately advised the jury that the evidence of the theft could be used only to evaluate defendant’s credibility.

On cross-examination, defendant testified that his brother walked into the store and pulled out the BB gun. Defendant then took “some bags of chips” and ran. He claimed he did not know his brother had a gun. He and his brother talked about stealing from the store while they were walking there. He admitted he lied to the police and to a juvenile probation officer about the incident. At the conclusion of the cross-examination, the court again reminded the jury that the evidence was admitted for the limited purpose of determining credibility.

The trial court instructed the jury regarding evidence admitted for a limited purpose (CALJIC No. 2.09 (Spring 2007 ed.)); the consideration of past conduct involving moral turpitude in determining credibility (CALJIC No. 2.20 (Spring 2007 ed.)); and the consideration of a felony conviction in determining credibility (CALJIC No. 2.23 (Spring 2007 ed.)).

Defendant was asked on cross-examination if he “entered a plea” in juvenile court. He responded that he did. An objection to the question was never ruled on.

Defendant now contends the trial court abused its discretion by admitting the evidence of the prior juvenile conduct. In essence, defendant argues the court should have found the evidence more prejudicial than probative under Evidence Code section 352 (section 352).

Defendant does not dispute that the prior conduct was admissible on the question of credibility. As conduct involving a theft, and therefore involving moral turpitude, it was admissible. (People v. Harris (2005) 37 Cal.4th 310, 337; People v. Wheeler (1992) 4 Cal.4th 284, 295-297, fn. 7; see People v. Rogers (1985) 173 Cal.App.3d 205, 211.)

Defendant argues that the trial court should nevertheless have excluded the evidence under section 352. We review the trial court’s ruling admitting the evidence for abuse of discretion (People v. Cudjo (1993) 6 Cal.4th 585, 609), and we will not disturb that ruling unless the trial court “exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1990) 20 Cal.4th 1, 9-10.)

Defendant’s credibility was directly an issue. The trial court was within its discretion to conclude that the jury was entitled to hear of relatively recent conduct involving the moral turpitude of theft. While the conduct did involve a weapon, it was a relatively innocuous BB gun rather than a standard gunpowder firearm and the jury was told defendant neither possessed the BB gun nor knew it was going to be used. The jury was repeatedly instructed by the court to consider the prior conduct solely for the purpose of credibility. We see no error.

Accordingly, we conclude the trial court did not err by denying defendant’s request to sanitize the conduct, presumably by not mentioning the BB gun.

In any case, any error would be harmless. Defendant was positively identified as the shooter, without hesitation, by a witness who later recanted only in fear of retaliation. Defendant was caught a day after the shooting with the pistol in his pocket and ammunition matching the weapon found at the scene. His explanation for his obtaining the weapon, especially the fact that he bought it for protection, but never tried to learn how to operate it, was entitled to be found of strained credulity by the jury. (As was defendant’s alibi, provided by family members and with some confusion as to which date defendant was home all day while his family cooked gumbo.)

Faulk’s Testimony About the Gun Under Defendant’s Bed.

Defendant contends the trial court erred by admitting this testimony because the jury could have used it to undermine Faulk’s credibility: in other words, to conclude that she claimed the gun was hers only to protect her son, and that she might be lying in court about her son’s whereabouts on the day of the shooting. Defendant emphasizes that there was no evidence the gun was his, and thus no evidence that Faulk was not telling the truth.

The fact that the gun was found under defendant’s bed is evidence that the weapon was in his constructive possession. (See People v. Rushing (1989) 209 Cal.App.3d 618, 621-622.) This provides the basis for an inference that Faulk was not telling the truth about the gun being hers when she testified that the loaded revolver found under the bed six weeks before the shooting was hers. We see no abuse of discretion in admitting this testimony for possible bias of Faulk in her willingness to accept blame to protect her son. The jury would determine the weight, if any to be given, to her testimony regarding the revolver and its effect on her alibi testimony. In any case, any error would be harmless for the reasons set forth above.

III. DISPOSITION

The judgment of conviction is affirmed.

We concur: Swager, J., Margulies, J.


Summaries of

People v. Whitaker

California Court of Appeals, First District, First Division
Sep 18, 2008
No. A119519 (Cal. Ct. App. Sep. 18, 2008)
Case details for

People v. Whitaker

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARQUES WHITAKER, Defendant and…

Court:California Court of Appeals, First District, First Division

Date published: Sep 18, 2008

Citations

No. A119519 (Cal. Ct. App. Sep. 18, 2008)