People v. Ali
| Decision Date | 07 February 2013 |
| Docket Number | D058357 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. AHMED ALI, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed.
A jury found Ahmed Ali guilty of one count of murder (Pen. Code, § 187, subd. (a))1; four counts of attempted murder (§§ 187, subd. (a), 664); two counts of shooting at an inhabited structure or vehicle (§ 246); one count of being a convicted felon in possession of a firearm (former § 12021, subd. (a)(1)); and one count of unlawfully possessing a firearm (former § 12316, subd. (b)(1)). The jury further made true findingson firearm and criminal street gang enhancements (§§ 12022.53, subds. (c), (d), (e)(1), 186.22, subd. (b)(1)). The trial court sentenced Ali to an indeterminate prison term of 135 years to life, plus a determinate term of 60 years.
Ali argues that the judgment should be reversed because (1) the prosecutor committed prejudicial discovery violations; (2) the trial court should not have admitted the preliminary hearing testimony and other statements by a central prosecution witness who was deceased at the time of trial; (3) the trial court should have granted immunity to two defense witnesses who refused to testify; (4) the trial court should have admitted those witnesses' statements through the testimony of investigators who could have related the witnesses' relevant out-of-court statements; (5) the trial court should have instructed the jury concerning evidence of third party culpability; (6) the trial court should have instructed the jury how to view the testimony of witnesses who received benefits from the prosecution; (7) the prosecutor committed misconduct during closing argument and by engaging in discovery violations; (8) the trial court should have granted the motion to release juror contact information; (9) the trial court should have granted the motion for a new trial based on prosecutorial misconduct and juror misconduct; and (10) the cumulative effect of the alleged errors requires reversal. Ali also requests that we review sealed records to evaluate whether the trial court erred in ruling on certain discovery motions. We conclude that Ali has failed to establish reversible error, and accordingly we affirm the judgment.
On the night of July 22, 2008, shootings occurred at two different locations in San Diego.
The first shooting occurred around 9:30 p.m. when two men walked up to and shot at a car that was driving out of the Harbor View apartment complex. The apartment complex was known as a location where members of the Neighborhood Crip gang congregated. One witness described the apartment complex as a "war zone" between the Neighborhood Crip gang and the nearby Lincoln Park gang. Three men were riding in the targeted car, at least two of whom were affiliated with the Neighborhood Crip gang. Before shooting at the car, one of the shooters said, "What's up, cuz," with "cuz" being a term that refers to Crip gang members. Bullets struck the car, but no one in the car was shot or seriously injured. A bullet also entered a nearby residence.
The second shooting, which occurred at an apartment complex on College Avenue, was reported to police shortly before 11:00 p.m. Two men approached a group of people congregating by the stairs at the apartment complex and opened fire. Larry Lumpkin was fatally shot in the head. Maurice McElwee sustained a minor gunshot wound to his chest. Although the College Avenue apartment complex was not in any particular gang's territory, it was a common place for members of the O'Farrell Park and Skyline Piru gangs to congregate. Those gangs were rivals of the Lincoln Park gang. Some of the people fired upon at the College Avenue apartment complex were members of the O'Farrell Park or Skyline Piru gangs.
On August 7, 2008, the police received information about both shootings when a member of the Lincoln Park gang, Jesse Freeman, spoke to police after being arrested on an unrelated offense. Freeman told police that a fellow Lincoln Park gang member, Ali, claimed to have committed both of the July 22, 2008 shootings along with someone named "L" or "Lex." Freeman also gave police information about other crimes, including bank robberies, committed by different Lincoln Park gang members. Freeman made similar disclosures to police in subsequent interviews.
After the disclosure from Freeman, police examined the ballistics evidence from the two July 22, 2008 shootings and discovered that the same firearm was used in both incidents. Police next searched Ali's apartment and found a shell casing that was shown through forensic analysis to have been discharged from a gun that was fired at both of the July 22, 2008 shooting scenes.
Police arrested Ali in connection with the July 22, 2008 shootings. Freeman testified at a preliminary hearing held on November 14, 2008, describing Ali's admission to committing the shootings. According to Freeman's testimony, Ali told him that he carried out the shootings to " 'put in some work' " for the Lincoln Park gang and get at members of rival gangs. Because Freeman was in danger from having testified against a fellow gang member, the police relocated Freeman to Arizona after the preliminary hearing. Freeman was found dead under a freeway overpass in Arizona on November 22, 2008, having suffered blunt force head trauma. Local police investigation into Freeman's death was inconclusive as to whether the death was a homicide, a suicide or an accident.
Ali was tried for one count of murder based on Lumpkin's death (§ 187, subd. (a)); four counts of attempted murder based on the chest wound to McElwee and the shots fired at the three victims in the car at the Harbor View apartments (§§ 187, subd. (a), 664); two counts of shooting at an inhabited structure or vehicle (§ 246); one count of being a convicted felon in possession of a firearm (former § 12021, subd. (a)(1)); and one count of unlawfully possessing a firearm (former § 12316, subd. (b)(1)). The information also alleged firearm and criminal street gang enhancements (§§ 12022.53, subds. (c), (d), (e)(1), 186.22, subd. (b)(1)).
Because Freeman was no longer alive at the time of trial, his preliminary hearing testimony was read into the record at trial. The jury also heard recordings of Freeman's interviews with police.
Among the other evidence against Ali at trial was the testimony of two eye witnesses. First, one of the men who came under fire at the College Ave apartments on July 22, 2008, testified that he picked out Ali from a photographic lineup in February 2009 as one of the shooters, stating that he was 60 to 70 percent certain at the time of the identification. Second, a teenage boy, James Gomez, who saw the shooters at the College Avenue apartments before they opened fire, identified Ali as one of the shooters.
Ali presented testimony from friends and family members, who said they were with Ali at his apartment at the time of the shootings. Defense counsel argued that instead of Ali committing the shootings, Freeman or some other Lincoln Park gang member could have committed them and could have framed Ali, or the shootings could have been committed by someone associated with a different gang.
The jury convicted Ali on all counts, and the trial court sentenced him to prison for an indeterminate prison term of 135 years to life, plus a determinate term of 60 years.
We first discuss several issues relating to the conduct of discovery in this action.
Prior to trial, Ali made motions for discovery of information in the personnel files of (1) San Diego Police Detective Duane Malinowski; and (2) San Diego County District Attorney investigator Shane Lynn. Malinowski was the arresting officer on Ali's case, and Lynn was heavily involved in investigating the shootings for which Ali was convicted. Specifically, Ali sought evidence from Malinowski's and Lynn's personnel files, encompassing — among other things — evidence of dishonesty and excessive use of force or aggression. The trial court determined that evidence showing a pattern of harassing gang members as to Malinowski and allegations of fabrication of evidence and threatening witnesses as to Lynn would be relevant in this case.
The trial court reviewed the relevant personnel records in camera for the purpose of determining whether they contained such items and found no discoverable material. On appeal, Ali requests that we review the personnel records provided to the trial court in camera to determine whether the trial court abused its discretion in determining that noinformation from Malinowski and Lynn's records should be provided.2 The Attorney General does not oppose the request.
A defendant is entitled to discovery of a law enforcement officer's confidential personnel records if those files contain information that is potentially relevant to the defense. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538); Evid. Code, §§ 1043-1045.) The discovery procedure has two steps. First, the defendant must file a motion seeking such records, containing affidavits "showing good cause for the discovery or disclosure sought [and] setting forth the materiality thereof to the subject matter involved in the pending litigation." (Evid. Code, §...
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