People v. Davis, C051803.

• Decision Date: 20 November 2008
• Docket Number: No. C051803.,No. C051963.,C051803.,C051963.
• Citation: 168 Cal.App.4th 617,86 Cal. Rptr. 3d 55
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL AARON DAVIS, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. JAVIER MUNOZ, Defendant and Appellant.

168 Cal.App.4th 617

86 Cal. Rptr. 3d 55

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL AARON DAVIS, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JAVIER MUNOZ, Defendant and Appellant.

No. C051803.

No. C051963.

Court of Appeals of California, Third District.

November 20, 2008.

CERTIFIED FOR PARTIAL PUBLICATION^*

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Michael Aaron Davis.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant Javier Munoz.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MORRISON, J.

Defendant Javier Munoz made and received several calls on his mobile telephone before and after he and several other men, including defendant Michael Aaron Davis, Preston Baldwin and John Hernandez, drove to the Meadowview light rail station in two SUV's to retaliate against "some brothers" who had "jumped" Hernandez's nephews. Instead, the men trapped a car driven by Demario Chappell, who had nothing to do with "jumping" Hernandez's nephews, and fired pistols at the car. Although a number of nine-millimeter and .45-caliber shots were fired, only one bullet struck Chappell. The bullet lodged in Chappell's brain, but miraculously did not kill him.

Defendants were no doubt dismayed to learn that a federal judge had previously authorized the Drug Enforcement Agency (DEA) to wiretap Munoz's mobile telephone. This must have been a welcome surprise to the lead detective, when a DEA agent told him about the recordings.

Hernandez remains a fugitive. Baldwin pleaded no contest to two counts of assault with a firearm, with a vicarious arming enhancement, for a stipulated term of nine years four months, and he did not appeal. (Pen. Code, §§ 245, subd. (b), 12022, subd. (a)(1).) Davis and Munoz were jointly tried before separate juries which convicted them of attempted murder and found each used, discharged, and proximately caused great bodily injury with, a firearm; Munoz's jury also convicted him of conspiracy to murder, but Davis's jury deadlocked on that count and it was dismissed. (Id., §§ 664, 187, 12022.53, subds. (b)-(d), 182, 187.)

Both Davis and Munoz were sentenced to prison and both timely filed their appeals, which we consolidated for decision. Defendants each raise many issues on appeal and each incorporates the other's briefs. The People agree that Davis is entitled to additional custody credits, and identify an error in Munoz's abstract of judgment. Apart from these two points, we affirm the judgments.

(1) In the published portions of this opinion, we conclude: (1) Wiretap evidence is subject to the normal rule that a party seeking exclusion must object or move to suppress in the trial court, or claims of inadmissibility will be deemed forfeited on appeal. (2) The corpus delicti rule does not apply to uncharged acts, except when uncharged acts are used in the penalty phase of a capital trial.

FACTS

The DEA began monitoring Munoz's calls on June 24, 2004. (Further unspecified dates are in 2004.) The DEA's recording system captures conversations on the caller's end even before the recipient answers.

Some recordings were introduced into evidence to show the relationships of the parties, their access to weapons and their intent. For example, on June 30, Munoz called Davis and said he was taking a "Glock" to "John" (Hernandez). Davis replied that Munoz should take him the "four-five" (i.e., a .45-caliber pistol) because Davis wanted the Glock back. Munoz said he was referring to his Glock, but Davis said Munoz should still give Hernandez the "four-five," so Hernandez could "blow holes." Munoz explained that he preferred to give Hernandez the Glock because the "four-five" was "fresh" and "clean."

On July 1, at 9:22 p.m., Hernandez called Munoz, and said "My nig, you got the [clapper (gun)] on you?" "[S]ome brothers" "just jumped my nephews" at the Meadowview light rail station; Munoz replied, "I'm coming right now." At 9:29, Munoz called to tell Hernandez "I'm behind you, I'm, I'm turning right right here on Meadowview."

Chappell drove to the Meadowview station in his white Chevrolet Corsica with his cousin Marquis Landers as a passenger, in order to pick up Arielle Jones, Landers's friend. She got in the backseat and Chappell started to drive her home. It was about 9:30.

Although the various witness accounts were not entirely consistent, a white or silver SUV cut Chappell off, requiring him to brake hard, and inducing him to make an unfriendly comment to the SUV's driver. Munoz's green SUV trapped Chappell's car. A number of men got out of the SUV's, and when Chappell saw a man pointing a gun at him, he drove off, hitting the second SUV in his effort to get away. After he blacked out he stopped the car and then Jones drove him to the hospital. Landers testified one shooter got out of each SUV, but later he testified he did not know this, and he had so told an officer before trial.

Two passersby heard someone in the green SUV yell "Bitch, ass, Niga" as it left; one heard laughter and described this yell as "Celebrating sort of."

Many shots had been fired at Chappell's car; four nine-millimeter and seven .45-caliber shell casings were found. Two nine-millimeter bullets were found in the car, and a .45-caliber bullet was extracted from Chappell's brain.

At 9:33, Hernandez called Munoz, and said, "Think they got my license plate?" He told Munoz "Put your shit in the garage, I'm putting mine away right now, too."

At 9:49, Munoz spoke with someone and said he could not drive his "truck," and "we just lit some niggers up, bro. I think I murffed [phonetic] one of `em. I need somebody to go by there, bro."

At 9:56, Munoz called Davis, in part as follows:

"[Munoz:] Where you at?

"[Davis:] Right here. There ain't even nothing up there!

"[Munoz:] So we didn't even shoot `em then, nigga.

"[Davis:] Ah, hell no, nigga! The [unintelligible] up there though.

"[Munoz:] Some boys [i.e., police] are out there?

"[Davis:] Yeah, just a couple o' cars though.

"[Munoz:] We ... so then we didn't kill his ass?

"[Davis:] Naw, we didn't kill `im, man.

"[Munoz, in a disappointed tone of voice:] Fuck! Now we really gotta watch out."

At 9:57, Munoz called Hernandez, but before Hernandez answered on his end, Munoz can be heard on the recording telling someone "... seen me shoot like this, `Pop! Pop!' Then I said, `Fuck that!' `Pop! Pop! Pop! Pop! Pop!' That's why ...." After Hernandez answered, Munoz told him "Lil' Smokes," meaning Davis, was at the scene, there were some police there and it seemed like nobody got hit; Hernandez said "they probably drove to the hospital." Munoz said "Pop!" seven times and there were seven .45-caliber casings found.

At 10:14, Munoz called someone and in part said, "We just have to show these niggas that we ain't playing," that they had had trouble with "some Blacks" "because of [Hernandez's] nephews" and they "almost killed the dudes."

At 10:47, Munoz talked to someone about the need to fix a dent in his SUV "ASAP," a dent presumably caused when Chappell drove away, hitting one of the SUV's while attempting to escape.

In a call on July 2, Davis told Munoz he should switch "clappers," and Munoz suggested that Davis give him the "forty" (i.e., .40-caliber pistol) and take the "Neener" (nine-millimeter pistol); Davis said, "I don't want them guns around me." They talked about what the police might know.

In Munoz's apartment police found a silver and black .45-caliber Ruger pistol, a black nine-millimeter Glock pistol, and ammunition fitting both. A criminalist testified these guns fired the bullets that left the shell casings at the scene, and fired the bullet in Chappell's brain.

On July 21, Davis was found hiding under a house in which a safe contained a .40-caliber Glock pistol, as well as a nine-millimeter bullet; another nine-millimeter bullet was found on a nightstand in the master bedroom: Davis refused to surrender until he was extracted with the help of a canine officer.

Munoz's jury heard evidence of statements he made while in custody to Detective MacLafferty on July 7. Munoz first claimed that Davis had borrowed his SUV after Hernandez called to say his nephew Bradley had been jumped; when Davis returned, he said he had been in a shootout. Munoz said that the guns found in his house were not connected to the shooting and his gun was at his father's house. Munoz then admitted that he knew Hernandez was going to the station to "fuck some kids up," and that Davis was armed, and that with that knowledge Munoz drove his green Tahoe, with Davis, Baldwin and "Dion," and met Hernandez and others; Dion gave one man a gun. After a white car cut them off at the station, Davis and Dion shot at it. Munoz denied using a gun or expecting that the men would do anything other than beat someone up.

Munoz's jury also heard some wiretap calls unrelated to Davis, including two calls within minutes of each other on June 26. In the first call, at 1:21 p.m., Hernandez directs Munoz to bring him a gun so he could shoot a rival named "Rabby," Munoz accepts the assignment. The men were discussing where to meet during the conversation. In the second call, at 1:27, between Munoz and an unidentified person, Munoz says he "caught `em" and "was about to let `em have it, nigga, but the boys was right there!," and later says "When John [i.e., Hernandez] runs up on `im, he pulls a fucking strap out! He almost shot John!"

In a call on June 29, Munoz told Hernandez about shooting at someone from inside his "truck," so the shell casings would not be left; he thought this incident was "hella funny." Also on June 29, a man called Munoz and described beating "Gabino" over a debt; Munoz said he had "hammers" (guns) and would "com...