People v. Butler, A120995 (Cal. App. 6/25/2009)
| Decision Date | 25 June 2009 |
| Docket Number | A120995. |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RONALD BUTLER, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from the Superior Court of Alameda County, No. 156364.
Defendant was convicted following a jury trial of first degree murder (Pen. Code, § 187), with personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)), and given an aggregate state prison sentence of 26 years to life. In this appeal defendant complains of the admission of the prior statement and testimony of a witness, an incomplete instruction on attempted robbery, and challenges the evidence in support of the conviction. We conclude that the evidence was not erroneously admitted, and the partial failure of the court to define attempt was harmless error. We also find substantial evidence to support the murder conviction on a theory of a murder committed during the course of an attempted robbery. We therefore affirm the judgment.
The homicide victim, Tammy Anderson, was a "homeless" person who lived in tents, abandoned vehicles, and under houses in the "fifties" neighborhood of Oakland. Anderson was acquainted with defendant and the two primary witnesses in the case, Deanna Gaines and Kassandra Cleveland.
Deanna Gaines testified that on the night of January 10, 2007, she was "getting high" and "prostituting." She robbed one of her "dates" and ran to International Boulevard to get away from him and the police. Gaines came upon Anderson, defendant and Kassandra Cleveland, who were standing by a small Toyota truck at the Rainbow Recreation Center. She asked for a ride away from the area in exchange for "some money and some dope." All four of them entered the truck, with Anderson in the driver's seat. Defendant, known to Gaines as "Moe," and Anderson were engaged in a loud, intense argument. As the quarrel intensified, Anderson left the truck, followed by the others.
The argument between defendant and Anderson continued on the sidewalk as Gaines and Cleveland stood by the truck. Anderson became "louder" and more irate; defendant "kept telling her to shut up," but "[s]he wouldn't." Defendant "went to the back of the truck," where he got a silver "metal pole." He returned to Anderson and repeated his warning to her to "shut up." Anderson "kept getting louder" and threatened to "call the police," whereupon defendant "hit her with the pole" in the forehead. Gaines heard a "little crunch" and saw Anderson buckle to a knee on the ground. Anderson was moaning and holding her head when defendant struck her with the pole again. Gaines gave Cleveland some money for a "little piece of dope," and ran to the railroad tracks.
Gaines was interviewed by Sergeant James Morris of the Oakland Police Department on April 26, 2007.1 She stated that "Moe" was the man who hit Anderson, and subsequently selected defendant from a photo lineup as the person she was "talking about." Gaines also identified Kassandra Cleveland as another witness to the murder.
Cleveland was interviewed by Sergeant Morris on May 25, 2007.2 She was "composed but emotional." In the interview Cleveland stated that on the day of the murder "people in the neighborhood" learned that Anderson "hit a lick" — that is "robbed" someone — and "had some extra money." Everyone on the streets, including Cleveland, was "lookin' for her." Cleveland was driving an old brown truck when she encountered Anderson on East 14th Street. They decided to purchase "some crack."
During their search for drugs Cleveland and Anderson picked up defendant and he rode in the truck with them. Gaines also subsequently entered the truck. Defendant told Anderson, "I been lookin' for yo' little ass," apparently referring to the rumor that she had some money. Defendant continued to demand money from Anderson and frighten her, while Anderson repeatedly denied that she had any money. Cleveland stopped the truck by the park; she stayed in the driver's seat as defendant and Anderson got out. As the dispute between defendant and Anderson escalated, defendant rummaged through Cleveland's belongings in the truck and extracted a metal pipe. Suddenly, he walked up to Anderson and hit her in the head with the pipe. After defendant struck Anderson again with the pipe, she did not move. Cleveland was "stunned," and yelled at defendant. He picked up Anderson from the ground and placed her in the truck. Cleveland then drove the truck to 57th Street, where she "helped" defendant remove Anderson from the truck before he carried her away. Cleveland also used the name "Moe" or "Mo" to refer to the man who hit Anderson, and identified defendant's photograph, number 2, from a lineup displayed to her that day as the man who struck Anderson with a pipe.3
Cleveland offered a rambling, confusing account of the murder at the preliminary hearing that differed considerably from her prior statements.4 She testified that she lived in San Leandro but often visited the "fifties" neighborhood, and had many acquaintances there, including Anderson, Gaines and defendant. She was just recently "out of jail" and "really high" on crack the evening of January 10, 2007. She was not driving a truck, but rather was on foot. She contacted her friend Anderson on the street on that night. Anderson was "moving fast" and seemed nervous. Cleveland asked Anderson "if she's all right," and told her not "to be nervous." She also offered Anderson drugs. Cleveland heard from others around the neighborhood that Anderson "hit a lick," meaning she "stole some money." Cleveland "kept seeing" Anderson purchase drugs that evening. She also observed Anderson arguing with "one guy" who was "on a heroin tweak" and "pretty upset."
Later, Cleveland observed Anderson standing near a truck at the Rainbow Center on the corner of 56th and East 14th with a man whom she called "Moe" and identified as defendant. Anderson was " Cleveland heard defendant ask Anderson, "Bitch, where the money at?" Cleveland testified that defendant was "tripping" and repeatedly calling Anderson a "bitch." Cleveland decided to leave. As she reached the corner she "turned back" and realized that defendant "was hitting" Anderson. She did not see defendant in possession of an object, but she "could see hands going up and hands coming down." According to Cleveland's testimony, she told an investigating officer that after defendant struck Anderson a second time the victim fell to the ground, and "it was a wrap." Anderson did not scream or move thereafter, and Cleveland assumed she was dead. Cleveland "ran away," and thought to herself, "I hope he didn't kill that girl."
During her preliminary hearing testimony Cleveland acknowledged that specified statements she made during the prior interview with the police were untrue: that she had been in a truck with defendant and Anderson; and that she observed defendant pick up Anderson's body and place it in the truck, then saw him later throw the body into a creek. Those statements were lies that Cleveland told the police officers because they were "really scaring" her and she "told them whatever they needed to hear to get up out of there." Cleveland also testified that she told the officer in her pretrial statement that she heard defendant say to Anderson, "I been looking for your little ass," but she did not disclaim that statement in her testimony.
Anderson's body was found the next morning in a drainage canal behind the Rainbow Recreation Center. Her silver scooter was discovered on the bank of the creek. Cleveland arrived not long after the body was found. She observed Anderson "laying down in the water dead." Defendant then appeared at the scene and asked Cleveland why people were "standing around." When Cleveland told him that Anderson had been killed, defendant did not exhibit any remorse or emotion. He "was like, oh, well."
An autopsy revealed multiple lacerations and soft tissue contusions of the victim's scalp, face and both sides of the brain. She suffered a skull fracture of the left temporal-parietal area and bleeding beneath the dural and arachnoid membranes. Exertion of a "significant amount of force" was necessary to cause the injuries. The injuries were consistent with blows from a metal object. Cause of death was "[b]lunt injuries to the head."
We first confront defendant's contention that the trial court erred by admitting Cleveland's "preliminary hearing testimony and, to impeach it, her out-of-court statements to the police." His argument has two facets. First, he complains that the court failed to undertake the requisite "particularized inquiry" into Cleveland's assertion of her Fifth Amendment privilege against self-incrimination before determining that she was unavailable and admitting her prior testimony. Defendant also submits that the court did not consider whether Cleveland "could legitimately refuse" to answer any questions about the murder, particularly given her prior incriminating statements and preliminary hearing testimony. Defendant therefore argues that his "rights under the state and federal Constitutions to confront and cross-examine the main witness against him" were violated by the trial court. He adds that "his attorney's failure to object to the admission of the preliminary examination testimony and the out-of-court statements on those grounds violated his Sixth and Fourteenth Amendment rights to the effective assistance of counsel."
Cleveland was found to be an unavailable witness prior to trial. She had already given a statement to the police in which she admitted transporting the victim's body in the truck and helping defendant "pull her" up to "a position where he could go on and just carry her" ...
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