Opinion
A118346
6-4-2008
THE PEOPLE, Plaintiff and Respondent, v. RONALD W. ROSS, Defendant and Appellant.
NOT TO BE PUBLISHED
Ronald W. Ross (appellant) appeals after a jury found him guilty of attempted murder (Pen. Code, § 187, subd. (a), 664, subd. (a)) and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). The jury also found true allegations that appellant personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)), and personally used a firearm in the commission of the offense (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)). The court sentenced appellant to 25 years to life in prison. Appellant contends (1) the court abused its discretion in admitting evidence of the victims fear for his safety, (2) the court applied the wrong legal standard in denying appellants motion for a new trial, and (3) there is insufficient evidence to support the convictions. We disagree and affirm.
BACKGROUND
Prosecution Case
The victim, Renardo Williams, testified that in April 2006, he lived on Campbell Street in Oakland with his girlfriend and their two children. Around 4:30 p.m. on April 14, the day before the shooting, Williamss three-year-old daughter came into the house screaming with a cut under her eye. Other children told Williams that a teenager, Steven E., hit Williamss daughter with a stick. Williams went outside and yelled at Steven. He then went to the home of Stevens mother, Nikisha Stuart, and told her that Steven hit his daughter. They spoke for two or three minutes and then Williams left.
Several hours later, as it was getting dark, Stuart came to Williamss home and accused Williams of hitting her son. Williams denied hitting Steven, and Williams and Stuart argued for several minutes on the porch. As Stuart left, she said "Im gonna have a man come see you." Later that night, Williams went to a nearby bar. He later learned that an officer from the Oakland Housing Authority had been looking for him while he was out.
The following day at around 1 p.m., Williams and some friends took Ecstasy, which Williams used every day. Williams stopped feeling the effects of the drug around 4 p.m. Williams also drank two or three 32-ounce beers before 8 p.m. At around 8 p.m., Williams heard a knock on his front door. He turned on the porch light, looked through the peephole, and saw three people on his porch: Steven, appellant, and a third individual. Williams came out onto the porch, and the three individuals moved back to the bottom of the porch steps, about 12 feet from Williams. Williams heard someone say "Is that him?" Williams and appellant started arguing about whether Williams hit Steven the day before. After several minutes, Williams turned to go back inside his house. He heard someone say "Fuck that," turned back around, and saw appellant pull out a gun and point it at him. Appellant shot Williams, and then appellant and the other two individuals ran away. Williams was treated at Highland Hospital for a gunshot wound to his chest.
Oakland Police Officer Daniel Ming, who arrived on the scene shortly after the shooting, testified that Williamss porch light was off when he arrived, and the area in front of the home was not well-lit.
On April 17, 2006, while he was in the hospital, Williams spoke to Oakland Police Sergeant Steven Lovell. Before he was shown a photo lineup, Williams described the shooter as a black male in his late 30s, 58" to 510", 180-190 pounds, and bald. Lovell showed Williams a photo lineup, and Williams identified appellant as the shooter. Appellant is 45 years old, 6 tall, 210 pounds, and has a full head of braided hair. Williams testified that he described appellant as "bald" because appellant had a big forehead and his braids were tight, so he looked bald at the time. Williams stated he had never seen appellant prior to the shooting and initially assumed the shooter was Stevens father or uncle.
Travis A., a fifteen-year old neighbor of Williams, testified that on the evening of April 15, 2006, he was playing video games at Williamss house. Around 8 p.m., Travis heard a knock on the door. Williams answered it, and after several minutes, Travis looked outside and saw appellant on the porch steps. He had seen appellant once or twice before that night. Travis also heard Stevens voice. Travis then watched appellant fire a gun at Williams. A few days later, Travis spoke with Lovell and identified appellant from a photo lineup.
Steven testified twice. He initially testified that he was not at Williamss house on the night of April 15, but was at his friend Calvins house playing video games. After a recess, Steven was recalled and testified that on the night of April 15, he was playing outside with his friends near Williamss house. He saw appellant on Williamss porch, heard him say something about drugs and money, and then saw him shoot Williams. Appellant was wearing a ski mask, but he removed it as he was running away. Steven stated he did not testify to this earlier because he was afraid.
Defense witness Lashan Brown, Calvins mother, testified that Calvin was not staying with her in the neighborhood near the shooting on the night it occurred, but was staying with his grandmother in East Oakland.
Nikisha Stuart, Stevens mother, testified that in the mid-1990s she had lived next door to appellants mother, Thelma Ross. She knew appellant from his visits to his mothers house, but did not have a close relationship with him.
Defense Case
Nicole Scott, who has a child by appellants nephew, testified that on a Saturday in April, she was at Rosss house from around 12 p.m. until 5 p.m. Thelma Ross cooked a bread pudding for Scott, while Scott and appellant watched television and played games. Appellant did not seem upset and had no visitors. Ross testified that on the Saturday before Easter in April, appellant was at her house. Appellant stayed at her house all day and evening, and was asleep on the couch when she went to bed at 10 p.m. Appellant did not go out at all. Ross recalled baking a bread pudding for Scott that same day.
Appellant testified that he did not shoot Williams. He did not know Williams or Steven, although he recognized Williams from around the neighborhood, and he did not know anything about the dispute between Williams and Stuart. On the Saturday before Easter, appellant stayed at his mothers house. He and Scott played games in the afternoon, and after she left he watched the NBA playoffs on television and fell asleep on the couch.
The parties stipulated that the NBA playoffs did not begin until a week after the shooting, on April 22, 2006.
Procedural History
An amended information filed on October 23, 2006, charged appellant with attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)), and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). As to both counts, the information alleged that appellant personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)), and personally used a firearm in the commission of the offense (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)). The information further alleged that appellant had four prior convictions and one prior prison term (Pen. Code, § 667.5, subd. (b)). The prior conviction allegations were later dismissed.
Trial by jury began on October 24, 2006. On November 8, 2006, the jury found appellant guilty on both counts and found the associated great bodily injury and firearm use allegations true. The court sentenced appellant to 25 years to life in prison. On March 7, 2007, appellant filed a motion for a new trial pursuant to Penal Code section 1181, subdivision (6). The court denied the motion.
Appellant filed a timely notice of appeal from the judgment.
DISCUSSION
I. Admission of Evidence of Williamss Fear
Appellant contends the court erred in admitting Williamss testimony that he was afraid to live in Oakland and had relocated with the help of the district attorneys office. Appellant contends the court should have excluded this evidence under Evidence Code section 352, because its limited probative value was outweighed by the substantial risk that jurors would infer Williams had been threatened by appellant. We disagree.
During Williamss direct testimony, the prosecutor asked why Williams was no longer living in Oakland. Appellant objected on relevance grounds and the court overruled the objection; the court and counsel then held a side-bar discussion that was not reported. The prosecutor then proceeded with the direct examination:
"Q. Currently, you no longer live in Oakland; is that correct?
"A. Right.
"Q. Okay. And with the help of my office you have been relocated out of the area; correct?
"A. Right.
"Q. Okay. And that is because you were scared for your own safety?
"A. Yeah. I mean, yes. [¶] . . . [¶]
"Q. But my office has not made any promises to you with regards to your case or your testimony in order to relocate you?
"A. No.
"Q. You do not come to Oakland very often anymore?
"A. No, not now.
"Q. And is that because youre scared?
"A. Yeah."
Later, outside the presence of the jury, defense counsel placed on the record an objection discussed at the side-bar. Defense counsel stated he had objected to the prosecutors questions because "I would object to any evidence of this witnesss fears for his safety unless those fears can be attributed to threats actually received from, or on behalf of [appellant.] And theres no such evidence of that. So I believe under 352 that was rather prejudicial and of no probative value." The court responded, "I overruled the objection and directed [the prosecutor] to ask leading questions on that point, and he did so and I thought did a pretty good job of avoiding any suggestion that anybody in particular had threatened him. [¶] In fact, there was a discussion at side-bar that Mr. Williams believed guys, some guys were looking for him, and that did not come out in the testimony which I thought was good that did not come out in the testimony because of the leading questions. [¶] That I think its relevant to the witnesss state of mind and certainly relevant to explain why he was relocated to the extent that that could be seen as some sort of favor done for him by the district attorneys office. [¶] So youre welcome, [defense counsel], to ask questions if you want to clarify further that theres no—I dont think theres any question, just as far as what I heard so far, that Mr. Williams was not threatened in any way by [appellant]." Defense counsel replied, "Thats precisely why I felt the objection was, was objectionable."
The governing law is well established. "Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion `must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
"`Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. (Evid. Code, § 780; [citation].) Testimony a witness is fearful of retaliation similarly relates to that witnesss credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witnesss fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citation.] [Citation.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368; accord, People v. Sapp (2003) 31 Cal.4th 240, 281.) "A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat." (Olguin, at p. 1368-1369.)
The trial court did not abuse its discretion in denying appellants Evidence Code section 352 objection. The trial court reasonably concluded that the challenged testimony corroborated Williamss credibility. From this testimony, jurors could reasonably infer that Williams had been threatened or feared retaliation for his testimony. That he testified despite this fear was relevant to his credibility, even in the absence of any evidence that appellant was the source of the threat. (People v. Olguin, supra, 31 Cal.App.4th at pp. 1368-1369.)
Moreover, Williamss testimony did not create a substantial danger of undue prejudice. Appellant contends there is a "substantial risk that at least one juror inferred that Williams had been threatened by [appellant]." However, Williams did not state or suggest in any way that he had been threatened by appellant, and the prosecutor did not make any such argument or suggestion. Instead, pursuant to the trial courts instructions, the prosecutor asked leading questions to avoid the suggestion that anybody in particular had threatened Williams. Williams merely testified that he was "scared" to live in Oakland and the district attorneys office had assisted him in relocating. The trial court also made clear that defense counsel was permitted to ask Williams questions on cross-examination to further clarify that appellant had not threatened Williams. Under these circumstances, Williamss testimony created no substantial risk of prejudice to appellant.
Indeed, defense counsel did cross-examine Williams about whether the district attorneys office assisted him in relocating, although he did not question him about why he was afraid to live in Oakland or whether he had been threatened by appellant.
Appellant correctly points out that California law prohibits proving consciousness of guilt by establishing attempts to suppress evidence unless those attempts can be connected to a defendant. (People v. Hannon (1977) 19 Cal.3d 588, 596-600; People v. Weiss (1958) 50 Cal.2d 535, 551-554, overruled on another ground in People v. Johnson (1980) 26 Cal.3d 557, 571.) However, this was not done here. The prosecutor did not argue, or even suggest, that this evidence reflected consciousness of guilt. (People v. Olguin, supra, 31 Cal.App.4th at p. 1368.) In fact, the prosecutor did not refer to Williamss "fear" testimony at all in closing argument. As appellant concedes, no consciousness-of-guilt instruction was given to the jury. The evidence was admitted solely for its relevance to Williamss credibility. Appellant suggests that the jury should have been admonished that Williamss fear was relevant only to his credibility. However, there is no indication in the record before us that defense counsel requested such a limiting instruction below. Accordingly, appellant forfeited any claim of error premised on the courts failure to give it. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 697 ["defendant has forfeited any claim that the trial courts comments were erroneous, because he did not request an instruction that [the doctors] testimony could be considered only for the limited purpose of evaluating the basis of the experts opinions"].)
We conclude the challenged evidence was properly admitted at trial.
We likewise reject appellants contention that the trial courts error in admitting Williamss testimony under Evidence Code section 352 denied appellant a fair trial under the due process clause. Admission of evidence of Williamss fear did not violate state law, and because appellants constitutional claim is premised on his assertion of state law error, it must also fail. (See, e.g., People v. Ayala (2000) 23 Cal.4th 225, 253.)
II. Motion for New Trial
Appellant filed a motion for a new trial on the grounds that the evidence was insufficient to support the jurys verdict. (Pen. Code, § 1181, subd. (6).) After hearing argument, the court denied the motion. Appellant contends the court applied the wrong legal standard in evaluating the motion. He points to the courts statements that its duty was to decide whether the jurys finding was "against the weight of the evidence," and argues that these statements indicate the court failed to independently weigh the evidence and assess the witnesses credibility. Again, we disagree.
Penal Code section 1181 provides in relevant part: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial . . . [¶] . . . [¶] 6. When the verdict or finding is contrary to law or evidence. . . ."
"In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court `should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citation.] [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion." (People v. Davis (1995) 10 Cal.4th 463, 523-524.)
The court did not abuse its discretion in denying appellants motion. The record as a whole establishes that the court independently evaluated the witnesses credibility and the probative strength of the evidence. The court first discussed the legal standard, stating: "this is not a situation where I can just simply say well, I disagree with the jury or if I were on the jury I would have voted differently. Its not that situation. Thats not what the standard is. Thats not why we have these proceedings for a judge to, at the end, make a different decision based upon his or her own beliefs. [¶] I certainly dont do it the other way; that is, if the jury found [appellant] not guilty, the judge is not permitted to say oh, by the way I disagree, I think the evidence was sufficient to convict. Cant do that. [¶] So in sort of a similar vein, the idea is you dont just substitute my own judgment of that for the jurys. I have to make what is essentially a legal finding, that is, whether their finding is against the weight of the evidence. Whether their finding was essentially an unreasonable one. [¶] I have to ask myself, could a reasonable trier of fact have made the decision that it did. And in that light, Im faced with, as weve discussed already, three separate identifications, each of them has its own problems, thats for certain."
The court then proceeded to discuss the testimony of the three eyewitnesses in some detail, and offered what were clearly its own independent conclusions as to their credibility. The court stated, "the totality of the evidence is that Mr. Williams identified [appellant] from a photo lineup, there is the odd coincidence that [appellant] lived in the same building with Steven when—Stevens mother and Steven when he was much younger a number of years ago; be coincidental, but possibly not. And . . . Mr. Williams apparently was unaware of all that, yet he picked [appellant] out of a lineup, as did Travis. [¶] I think we all agree whatever the bottom line of Traviss testimony, Traviss testimony in its presentation and his demeanor was quite compelling. He came across as an extremely sensitive and bright young man and was obviously very moved by his having to testify here. He was clearly scared by the proceedings and, in fact, cried during the proceedings and his evident fear in identifying [appellant] was, I think, compelling certainly to the jury. [¶] And then that leaves Steven. And weve discussed Stevens testimony already at some length this morning. I dont need to rehash that, other than to say that I do—Im still puzzled over why Steven would have conceded that [appellant] was the shooter so late in the game if [appellant] hadnt been. Just makes no sense. Steven basically came in here, he said he didnt know anything about—said he didnt know who the shooter was. He could have just kept his mouth shut and left. He didnt. [¶] So on the totality of the evidence, I cannot say that the jury was unreasonable in its finding. I cannot say that their finding was against the weight of the evidence. And so I am denying the motion for new trial." This discussion makes clear that the court independently evaluated the witnesses credibility and reached its own conclusions as to the probative strength of the evidence.
People v. Robarge (1953) 41 Cal.2d 628, relied on by appellant, is distinguishable. In Robarge, our Supreme Court held that the trial court had applied the wrong standard in denying a motion for new trial, where the court clearly disbelieved much of a key eyewitnesss testimony but "nevertheless indicated at least three times that it was bound by the contrary conclusion of the jury." (Id. at p. 634.) Here, the court did not indicate that it was bound by the jurys assessment of the eyewitnesses credibility, but instead demonstrated that it independently evaluated their testimony.
III. Sufficiency of Evidence
Finally, appellant contends the evidence is insufficient to support the convictions. We disagree.
In evaluating a claim of insufficiency of the evidence, "our role on appeal is a limited one. `The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] `Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Under this deferential standard, we conclude that sufficient evidence supports the verdict. Three eyewitnesses, Williams, Travis, and Steven, all testified at trial that they saw appellant shoot Williams. Williams and Travis both identified appellant as the shooter from a photo lineup within several days of the shooting. Appellant questions the credibility of the eyewitnesses testimony, pointing to inconsistencies in their testimony and contrary evidence from defense witnesses. He notes that Williams and Travis both said the shooter was about their height or shorter, yet appellant is taller than both Williams and Travis. Appellant also notes that evidence from defense witnesses placed him elsewhere at the time of the shooting. However, we cannot substitute our evaluation of the witnesses credibility for that of the jury. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Viewing the evidence in the light most favorable to the People, as we must, we conclude that sufficient evidence supports the convictions.
DISPOSITION
The judgment is affirmed.
We concur:
JONES, P. J.
NEEDHAM, J.