People v. Dorsett, B204123 (Cal. App. 6/11/2009)

• Decision Date: 11 June 2009
• Docket Number: B204123.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. PHILLIP MICHAEL DORSETT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. PHILLIP MICHAEL DORSETT, Defendant and Appellant.

B204123.

Court of Appeals of California, Second Appellate District, Division One.

Filed June 11, 2009.

Not to be published in the Official Reports

Appeal from a judgment of the Superior Court of Los Angeles County, No. YA062761, Mark S. Arnold, Judge. Affirmed in part; reversed in part; and remanded.

William J. Genego for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

FERNS, J.^*

INTRODUCTION

Appellant Phillip Michael Dorsett appeals from the judgment entered following a jury trial in which he was convicted of second degree murder with gang and personal firearm-use findings. Appellant asserts claims of evidentiary error and insufficiency of evidence. We find no evidentiary error, but agree that the evidence was insufficient to support the gang enhancement finding, which we therefore reverse.

FACTS

On June 17, 2005,¹ appellant fatally shot Jesse Fujino in the head at close range. Fujino, who was a member of the Evil Klan gang, approached appellant's van along with Abel Soto and Sergio Soto. Appellant had been sitting in the parked van talking and drinking with Manuel Corrales, Victor Torres, Justin Cortez, Mayra Hernandez, Jasmine Hermosillo (Jasmine), and her sister Karina Hermosillo (Karina).² With the exception of Karina, everyone in the van was a member of the Muertos gang. The van was parked on the street near Hernandez's apartment building. Fujino asked, "Where you guys from?" Appellant or all of the men replied, "Muertos" and asked Fujino where he was from. Fujino responded that he was "Mousey" from Evil Klan. Fujino and the Sotos walked away, but Fujino urinated on the back of appellant's van. Appellant confronted Fujino angrily, asking why he urinated on the van.

Everyone got out of the van, and most of them walked toward Hernandez's apartment. Appellant approached Fujino and they argued. Appellant pulled a gun from his pocket and pointed it at Fujino's head from no more than 30 inches away. Fujino's arms were straight down by his side with his palms facing his body. Appellant said, "This is Muertos," and fired. Fujino dropped to the ground. Hernandez denied that she saw the shooting, but Jasmine and Karina testified they saw it. Hernandez testified she heard a single shot, turned, and saw Fujino on the ground and appellant standing alone near Fujino's body. Jasmine heard only one shot, and Karina could not remember how many shots she heard.

Appellant and Corrales ran to the van and drove away. The Sotos picked up Fujino, loaded him in a car, and drove him to a hospital. Police searched the Sotos, their car, and the hospital bags containing Fujino's clothing, but found no weapons. No weapons, bullets, or casings were found at the scene of the shooting. Fujino died from a single gunshot wound to the head. The presence of stippling indicated the muzzle of appellant's gun was about one foot from Fujino's head.

Detective Michael Valento testified that he interviewed Hernandez on June 23 and Jasmine and Karina the next day. They each told him they did not want to provide any information or testify in this case, as they feared the gang would harm them or their families. All three had moved out of the area by the time of trial. Jasmine and Karina testified they had moved four or five times since the shooting. Hernandez cried during her testimony and explained she feared for her family's safety.

Appellant was arrested on September 9. On September 14, a Muertos gang member named Steve Weitz summoned Hernandez and Jasmine to a motel. Weitz later sent another person to bring Karina to the motel. Corrales and Torres were also present in the motel room. Weitz asked who had spoken to the police about appellant. Hernandez said she had, but denied she had told the police anything. Jasmine denied talking to the police. Weitz placed a hot iron and a burning torch near Jasmine's face and threatened to kill her and her family if he found out she had spoken to the police. Weitz then told Corrales and Torres to "handle her." Weitz told the women they should not talk to the police and slapped Hernandez and Jasmine. He also threatened to kill or "get" Karina's and Jasmine's younger sister Bianca. Weitz also took Karina into the bathroom, pulled her close to him, and spread her legs. She shoved him and he let her go when someone else knocked on the door. Eventually, Weitz allowed Jasmine and Karina to leave, but he kept Hernandez at the motel overnight. Hernandez denied that anyone in the motel room threatened her, Jasmine, or Karina.

Appellant testified that he was no longer a member of the Muertos gang at the time of the shooting. He was living in Perris, but visited Los Angeles on June 17 to have the brakes on his car repaired. He borrowed his parents' van and gave Corrales, Torres, and Cortez a ride to Hernandez's apartment, where Hernandez, Jasmine, and Karina joined the men in the van. When Fujino asked where they were from, no one said anything. The third time Fujino asked the question, someone other than appellant replied, "Muertos." Fujino made his gang hand sign and walked toward his two friends. Appellant felt it was not safe in the van, so he told everyone to get out. Appellant placed his gun in his pocket before he got out because he believed Fujino had a gun. Appellant denied seeing Fujino urinate on the van. As everyone from the van walked toward Hernandez's apartment, Fujino twice asked appellant if he knew where he was. Appellant said he was not from the area. Fujino said that was not the question, and again asked appellant if he knew where he was. Appellant said, "Ain't this Crazy Riders?"³ This enraged Fujino, who walked to within 15 inches of appellant and screamed that it was Evil Klan's territory. Appellant was scared. Fujino pulled a small revolver from his waistband, pointed it at appellant, and fired one or two shots from a distance of about 22 inches. Appellant backed up, pulled his own gun, and fired a single shot. Appellant denied saying "Muertos" before he fired. Appellant ran back to the van, dropped his gun in the gutter, and drove back to Perris. After three or four days, appellant went to Mexico because he was afraid Fujino's gang would retaliate against him. He returned once to get a passport so he could work in Mexico then returned to live in Perris shortly before he was arrested.

Several people who lived in the vicinity of the shooting testified they heard more than one shot. Dennis Hernandez (Mayra's brother-in-law) testified he heard two or three shots. Chuckie Armstrong testified that he heard two that sounded different from one another. Jesus Escobar testified that he heard two "loud booms" that sounded like firecrackers. Monica Ruiz and Alyce Oliver heard three loud blasts or gunshots.

The jury convicted appellant of second degree murder. It found that appellant personally discharged a firearm in the commission of the crime, causing death (Pen. Code, § 12022.53, subds. (b)-(d))⁴ and that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. The court sentenced appellant to a term of 40 years to life in prison.

DISCUSSION

1. Admission of evidence of threats and witnesses' fear

Appellant filed a motion in limine to, inter alia, exclude evidence that Weitz had threatened Hernandez, Jasmine and Karina; these witnesses feared testifying against appellant; and these witnesses had moved due to their fear. The court denied this aspect of the motion, saying, "[I]f the witnesses are fearful about testifying due to threats from someone else, the jury is entitled to know that. Furthermore, if fear motivated the initial lies to the police by these witnesses, then the jury is entitled to know that, too. [¶] The jury will be informed that the threats did not come from Mr. Dorsett or that there is any evidence that he had a role in them."

Appellant first complains that the trial court "issued its ruling without requiring or waiting for testimony from the witnesses." By filing his motion in limine asking the court to exclude such evidence, however, appellant literally asked the court to rule on the admissibility of the evidence before the witnesses testified. He cannot now complain that the court did what he asked. Moreover, the court's ruling did not preclude appellant from objecting to particular testimony at the time it was given.

Evidence a witness is afraid to testify or fears retaliation for testifying is relevant to his or her credibility and is therefore admissible. (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) An explanation of the basis of the witness's fear is also admissible, in the court's discretion. (Ibid.) It is not necessary to show that the witness's fear is directly linked to the defendant for the evidence to be admissible. (People v. Guerra (2006) 37 Cal.4th 1067, 1142 (Guerra).)

We review any ruling on the admissibility of evidence for abuse of discretion. (Guerra, supra, 37 Cal.4th at p. 1113.)

Appellant apparently concedes the admissibility of the evidence of the threats and the witnesses' fear, but contends that the trial court abused its discretion by permitting the prosecutor to use the threat evidence as evidence of appellant's guilt. In support of this argument, appellant cites numerous questions, answers, and statements occurring during trial that he argues were improper.

First, appellant argues the prosecutor "used" the testimony of the first prosecution witness, Detective Valento, to establish the timing of the threat with respect to appellant's arrest, thereby suggesting that appellant was...