People v. Dorsett
| Decision Date | 25 June 2021 |
| Docket Number | B294926 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. PHILLIP DORSETT, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA062761, Edmund Willcox Clarke, Jr., Judge. Reversed.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Phillip Dorsett of second degree murder and found true the allegation that he personally used a firearm in the commission of the offense. The trial court sentenced him to an aggregate term of 40 years to life in state prison.
On appeal, Dorsett contends the trial court committed judicial misconduct by repeatedly disparaging defense counsel and interjecting improper questions and comments to the witnesses in a manner that deprived him of a fair trial. We agree the trial court's conduct rose to the level of judicial misconduct. Finding the error prejudicial, we reverse the judgment.[1]
On June 17, 2005, Dorsett shot and killed Jesse Fujino, an Evil Klan gang member known as “Raton” or “Mousey.” Fujino was with Abel Soto, another Evil Klan member, and Sergio Soto, a tagging crew member, when he was shot.
Following an initial jury trial, Dorsett was acquitted of first degree murder and convicted of second degree murder. On direct appeal, we reversed the jury's finding of a gang enhancement, concluding the evidence was insufficient to support the allegation. (People v. Dorsett (June 11 2009, B204123) [nonpub. opn.].) The conviction was vacated after the Ninth Circuit Court of Appeals granted Dorsett's habeas petition due to ineffective assistance of counsel.[2]
At Dorsett's second trial, he claimed he shot Fujino in self-defense. Many of the witnesses had been questioned by police at least once and previously had testified at the first trial. The retrial largely focused on discrepancies among the various statements and testimony provided by the witnesses.
The following individuals were with Dorsett (a.k.a. Chino) at the time of the shooting: Manuel Corrales, Victor Torres Augustin Cortez, Myra Hernandez, Jasmine Hermosillo, and Karina Hermosillo.[3] With the exception of Karina, all of them, including Dorsett, were members of the Muertos gang.
Jasmine testified that in June 2005, she was 15 years old. On the evening of June 17, 2005, Jasmine and her 17-year-old sister, Karina, visited Jasmine's friend Myra on 95th Street in Los Angeles. Jasmine and Karina joined Myra outside her apartment building, where she was drinking with Dorsett, Cortez, Corrales, and Torres. At some point, the group moved to Dorsett's blue van and continued to “hang[ ] out inside the van.”
While seated inside the van, Jasmine saw a man come from the direction of Myra's apartment building and walk behind the van, where he urinated. The man approached the open sliding door of the van, and asked, “Where you guys from?” Someone in the van, possibly Dorsett, replied, “Muertos.” The man said he was from “EK.” As the man questioned the Muertos group, two men who appeared to be his friends walked away. The man also walked away.
At some point, Dorsett exited the van and walked up to the man who had asked “where are you from” and began to argue with him. Everyone else got out of the van. Dorsett and the man were arguing loudly on the sidewalk, standing only inches apart and facing each other. Jasmine could not recall any of the words they exchanged, but observed they were angry. The man's friends were standing about 40 feet from the van; they did not say anything while Dorsett and the man argued.
At one point, Jasmine saw Dorsett with a gun; she did not see anything in the other man's hands. Dorsett pointed the gun at the man's face, close to the man's head. Jasmine began running toward Myra's apartment. While running, Jasmine heard one gunshot and turned around. She saw Dorsett with the gun and the man down on the ground. Jasmine then saw Dorsett run to his van and drive off with Corrales.
One week after the shooting, the police interviewed Jasmine at the police station. The investigating officer testified that during the interview, Jasmine stated that the man who had asked the group where they were from was “acting tough, ” while his two friends were “mad-dogging” the group and looking “hard” at everyone. She identified a photograph of Abel Soto as the man she saw urinating behind Dorsett's van. She told the officer that she only turned around after hearing a gunshot and that was when she saw Dorsett with a gun. In response to further questions, she said she saw Dorsett shoot Fujino one time and saw Fujino fall backward onto the ground.
In June 2005, Karina was 17 years old. She was not a member of the Muertos gang.
On the day of the shooting, she was present in Dorsett's van when a man walked up and asked, “Where you guys from?” Dorsett responded, “This is Muertos.” The man identified himself as “Mousey.” When Mousey approached the van, there were two males behind him, about eight feet away. All three were “mad dogging” the group.
Mousey walked to the back of the van and urinated. Everyone got out of the van, including Dorsett, who “looked mad.”
Dorsett and Mousey walked toward each other and began arguing “face-to-face.” Dorsett lifted his right hand, which held a gun, and said “This is Muertos.” Dorsett shot Mousey on the right side of the head and Mousey fell to the ground. Mousey did not have a gun; nor did he try to punch Dorsett prior to the gunshot. Karina heard “[j]ust that one” gunshot and started to run.[4] As she ran she saw Dorsett drive away in his van with the three male friends.
The police interviewed Karina the same day as Jasmine. At trial, she explained she did not want to be involved so she initially lied to the officers. During the first interview, she denied seeing the shooting. During the second interview, she stated she did not see Dorsett shoot Mousey, but rather she saw Mousey on the ground after he had been shot.
During the trial, Karina was impeached with her preliminary hearing testimony, in which she stated she did not look at Dorsett and Mousey until she heard the first shot.
On September 14, 2005, Jasmine went to a motel room, where she joined Myra, Torres, Corrales, and a Muertos member named “Psycho.” Psycho asked Jasmine and Myra whether they had talked to the police. He slapped both of them and threatened to kill Jasmine with a welding torch. He displayed the lit torch to the group. Psycho told the women that if he found out they had talked to the police, he would kill Jasmine's little sister, who was eight or nine years old at the time.
At Psycho's direction, Jasmine called Karina and invited her to the motel room. When Karina arrived, Psycho made her sit on the bathroom sink and spread her legs, but she pushed him away and he stopped. Psycho hit both Myra and Jasmine before letting Karina and Jasmine leave. Afterward, Jasmine reported Psycho's threats to the police and her family was relocated.
Torres testified under a grant of immunity. He conceded he had prior felony convictions for domestic violence, assault with a deadly weapon, and possession of firearms and ammunition.
On the day of the shooting, while Torres and a group of friends were hanging out in Dorsett's van, someone approached the van and some words were exchanged. As Torres began to leave, he heard the man ask, “Where you from?”
As Torres walked in search of a liquor store, he heard multiple popping noises. When he returned to the location where the van had been parked, he did not see the van or Dorsett.
Officers interviewed Torres in September 2005. A recording of the interview was played for the jury. During the interview, Torres said that when he left to look for a liquor store, he heard one popping noise.
Officers learned that Abel Soto and Sergio Soto[5] brought Fujino to the hospital in a red Thunderbird around 9:30 p.m. Abel was an Evil Klan gang member and Sergio was a member of a tagging crew called Mexicans Kicking Ass.
Fujino died from a gunshot wound that pierced the edge of his left eye. A bullet recovered during the autopsy was most consistent with a.380 cartridge used in a semi-automatic gun with a three- to four-inch barrel. The medical examiner estimated the barrel was about 12 inches away from Fujino when the weapon was fired.
Dorsett was arrested on September 9, 2005. On September 13, 2005, police searched his home in Rancho Palos Verdes. They found a visa for Mexico in Dorsett's name in a bedroom closet and Dorsett's passport on a shelf in the bedroom.
Detective Michael Valento testified as a gang expert. He knew Jesse Fujino as a member of Evil Klan.
The area where the shooting took place was claimed by the Crazy Riders gang, while the Evil Klan claimed nearby streets. Detective Valento was not aware of any rivalry between the Evil Klan and the Muertos gang. In 2005, Evil Klan members were known to go outside their territory and shoot at other gang...
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