People v. Frazier
| Decision Date | 20 March 2012 |
| Docket Number | Los Angeles County Super. Ct. No. BA282901,Los Angeles County Super. Ct. No. BA322783,B227717 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. TERRELL FRAZIER et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from judgments of the Superior Court of Los Angeles County, Charles Horan, Judge. Affirmed as modified.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant Terrell Frazier.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Raul Alvarez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Lance E. Winters, Assistant Attorneys General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants, Terrell Frazier and Raul Alvarez, were convicted by a jury of: first degree murder committed during a robbery (Pen. Code,1 §§ 187, subd. (a), 190.2, subd. (a)(17)); second degree robbery (§ 211); and grand theft from a person (§ 487, subd. (c)). The jury found Mr. Frazier discharged a firearm proximately causing the murder victim's death. (§ 12022.53, subds. (d), (e)(1).) The jury also found the crimes were committed for the benefit of a criminal street gang. (§ 186.22.) Additionally, Mr. Frazier was convicted of two counts of second degree robbery (§ 211). The jury found Mr. Frazier personally used a firearm in the commission of one of those robberies. (§ 12022.53, subd. (b).) Mr. Alvarez was sentenced to an indeterminate term of life without the possibility of parole plus 50 years to life consecutive to a determinate 3-year term. Mr. Frazier was sentenced to an indeterminate term of life without the possibility of parole plus 50 years to life consecutive to a determinate term of 19 years, 4 months. We modify the judgments and affirm as modified.
Defendants were members of a Los Angeles gang. On August 6, 2004, at an Arco gas station, Mr. Frazier forcibly took $20 and a cellular telephone from Tina Caldwell. Mr. Frazier left the scene in a black Dodge Intrepid driven by Mr. Alvarez. Ms. Caldwell chased defendants in her car and recorded the Intrepid's license plate number. During the chase, Mr. Alvarez stopped the car, got out and threw Ms. Caldwell's cellular telephoneon a lawn. Mr. Alvarez denied knowing Mr. Frazier was going to take her telephone. Ms. Caldwell got a good look at defendants' faces. She identified both defendants in pretrial photographic lineups, at the preliminary hearing and at trial.
On September 3, 2004, defendants committed a robbery homicide at a video game store. An accomplice, Christopher Bingley, testified against them in return for leniency. Defendants telephoned Mr. Bingley and said they were going to commit a robbery. Defendants drove to Mr. Bingley's house to pick him up. Mr. Alvarez was driving a black Dodge Intrepid. Mr. Frazier was in the front passenger seat. Mr. Frazier explained that they were going to rob a video game store. Mr. Bingley was directed to duct-tape the employees. Mr. Frazier entered the store first and held two employees—Milton Secord and a second man—at gunpoint. Mr. Alvarez and Mr. Bingley followed quickly behind. Mr. Bingley and Mr. Alvarez duct-taped the employees while Mr. Frazier pointed the gun at them. A customer, James Bishara, entered the store while the robbery was in progress. Following a verbal altercation and what sounded to Mr. Bingley like wrestling, Mr. Frazier fatally shot Mr. Bishara. Mr. Bingley saw Mr. Bishara on the ground. Mr. Frazier was standing nearby holding the gun in his hand. The robbers took: video games; money from the store's cash register; the cash in the employees' wallets; and Mr. Secord's cellular telephone.
On September 6, 2004, police officers stopped a black Dodge Intrepid driven by Mr. Alvarez. Mr. Frazier exited the passenger seat, reached toward his waistband and ran. A police officer chased and arrested Mr. Frazier. Mr. Secord identified Mr. Frazier in an initial photographic lineup. Mr. Secord noted there was a "strong possibility" Mr. Frazier participated in the robbery. During a live lineup, on April 21, 2005, Mr. Secord was 95 percent certain Mr. Frazier was carrying a gun during the robbery. The gun was pointed at Mr. Secord during the robbery. Mr. Secord further identified Mr. Frazier at the preliminary hearing and at trial.
The murder weapon was a .380 caliber semi-automatic pistol. One month after the murder, on October 6, 2004, the gun was found in a backpack belonging to a female member of defendants' gang. Police officers found .38 caliber ammunition during a search of Mr. Frazier's girlfriend's house.
On November 18, 2004, Mr. Frazier and a second man robbed Anthony Coleman at gunpoint. Mr. Frazier came face-to-face with Mr. Coleman. Mr. Frazier pushed the gun into Mr. Coleman's stomach. Mr. Frazier told Mr. Coleman: Mr. Coleman's cellular telephone was stolen by Mr. Frazier. Mr. Coleman subsequently identified Mr. Frazier in a book of photographs, at the preliminary hearing and at trial. Mr. Coleman was 100 percent sure Mr. Frazier was the robber.
Mr. Frazier committed an additional robbery on November 21, 2004. This robbery occurred at the same intersection where Mr. Coleman was robbed. Mr. Frazier and an unidentified co-perpetrator robbed Tyler Severe. Mr. Severe's cellular telephone and wallet were stolen. The co-perpetrator was armed. Mr. Severe did not see a gun, but he felt a hard metal object. The unidentified assailant said, "Give me your phone or . . . [I'll] shoot[ you]." Mr. Frazier was yelling, "Give me the phone or we're going to shoot you." Mr. Severe saw Mr. Frazier's face clearly when they were at arms' length. Mr. Severe identified Mr. Frazier in a photographic lineup, at the preliminary hearing and at trial. Mr. Severe was 100 percent sure Mr. Frazier was one of the individuals involved in the robbery.
Detective Robert Lait and a partner interviewed Mr. Funchess in March 2005. As noted, Mr. Bingley was granted leniency because he testified for the prosecution. Mr. Funchess told the detectives about a meeting with Mr. Bingley. Mr. Bingley said he had robbed the video game store. According to Mr. Funchess, Mr. Bingley committed the video store robbery with two accomplices. Mr. Bingley also referred to a robbery in which Mr. Frazier was a co-perpetrator. Detective Lait said it was unclear from Mr. Funchess's statements whether Mr. Bingley had identified Mr. Frazier as a participant in the video game store robbery.
Mr. Funchess testified that on the day following the video game store robbery, Mr. Bingley bragged about committing the robbery homicide. Mr. Bingley said he had two accomplices, fellow gang members. Mr. Funchess did not know one of the gang member's real name. Mr. Funchess had never heard anyone call Mr. Frazier by one of the aliases referred to by Mr. Bingley. One of the persons named by Mr. Bingley was Eric Alexander. Mr. Alexander was a tall, kind of slender, medium-complexioned Black man who walked with a limp.
On cross-examination, Mr. Funchess described other aspects of the conversation with Mr. Bingley. Mr. Bingley spoke about other robberies he had committed as well. Mr. Bingley admitted committing a robbery with a gang member and getting some money out of it. Mr. Bingley described the other robber using a gang moniker. Mr. Funchess did not know Mr. Frazier by the gang moniker. But other people referred to Mr. Frazier by the gang moniker described by Mr. Funchess. Mr. Funchess recalled telling Detective Lait that Mr. Frazier "hung out" with Mr. Alvarez.
Ms. Harmon lived near the video game store. Ms. Harmon testified she did not recall ever talking to Detective Lait about the robbery. Detective Lait testified, however, he interviewed Ms. Harmon on January 14, 2005. According to Detective Lait, Ms. Harmon said Jade Harris had come to her apartment near the video game store. Mr. Harris said he planned to rob it. Mr. Harris asked Ms. Harmon for bags, rope and gloves. Mr. Harris returned a few days later. Ms. Harmon asked Mr. Harris whether he had robbed the video game store. Mr. Harris said he had not robbed the video game store. Detective Lait testified Mr. Harris was a member of defendants' gang.
Investigators Stewart Johnson and John Musakas interviewed Mr. Harris several days prior to trial. Mr. Harris told the investigators that he had "cased" the video game store. Mr. Harris did so with another person—neither of defendants here. Mr. Harris mentioned that he had duct tape with him at the time. Mr. Harris testified at trial and denied he had been at Ms. Harmon's house. Mr. Harris denied telling the investigators he had "cased" the video store. Mr. Harris said that when they asked him about it, he laughed at them.
Dr. Shomer testified about factors critical to an accurate eyewitness identification—stress, passage of time, repetition and confidence. In particular, Dr. Shomer stated that a witness's confidence has no relationship to the accuracy of his or her identification.
Mr. Alvarez's brother was present when police officers searched their home. The officers removed video games. One of the removed games was a...
To continue reading
Request your trial