People v. Harrison

• Decision Date: 29 August 2012
• Docket Number: A129229
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HARRISON et al., Defendants and Appellants.

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HARRISON et al., Defendants and Appellants.

A129229

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Filed August 29, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. Nos. 162373A, 162373B, & 162373C)

The three defendants before us in this appeal, Joseph Harrison, Marcus Moore and Lonnel Moore, along with Freeman Griffin,¹ were jointly tried and convicted by a jury of the following offenses: Harrison, of premeditated attempted murder of Gerrick White (Pen. Code, §§ 187, 664), assault on a peace officer with a semiautomatic weapon (Pen. Code, § 245, subd. (d)(2)), with an enhancement for personal discharge and intentional use of a firearm (Pen. Code, § 12022.53, subd. (c)), and possession of cocaine base for sale (Health & Saf. Code, § 11351.5); Marcus, of premeditated attempted murder (Pen. Code, §§ 187, 664), with an enhancement for intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (c)), and possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)); and Lonnel, of possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)).²

On appeal, defendants argue that evidence of recorded statements made during jailhouse telephone calls and prior uncharged offenses was erroneously admitted, a conspiracy instruction was improperly given, the prosecutor committed misconduct, and the evidence does not support their convictions. We conclude that no error in the admission of evidence or prosecutorial misconduct occurred, and the conspiracy instruction was proper. We also find in the record substantial evidence to support the convictions. We therefore affirm all of the judgments.

STATEMENT OF FACTS

The convictions are based on two separate but related shootings that occurred in the same neighborhood in Oakland, the 2000 block of 23rd Avenue, barely more than 24 hours apart. Shots were fired at Oakland Police Officer Marcell Patterson on the night of August 27, 2009. Gerrick White, a witness to the shooting, was shot very early on the morning August 29, 2009.

The Shooting at Officer Patterson.

At about 10:50 p.m. on August 27, 2009, officer Patterson responded to a report of gambling at 2015 23rd Avenue. As he approached the 2000 block of 23rd Avenue the officer observed a group of around five males and females "in their 20's," "all Black," standing and drinking alcohol on the west side of the street. From inside his marked patrol vehicle he shined his spotlight on the group, and they "started walking away."

As officer Patterson began to drive away he heard a male voice shout, "Fuck the police, get the fuck out of here. I'll kill you, mother fucker. You bitch, fucking bitch." He could not identify the person who was yelling, so he drove slowly southbound on 23rd Avenue, shining his spotlight. Officer Patterson then made a U-turn to "look again on the east side of the street" for the "person who was shouting the threats" and issue a parking citation to an unoccupied vehicle parked on the sidewalk. After he wrote the citation, placed it on the windshield of the parked car, and returned to his vehicle, the officer heard the same male voice yell from the east side of the street, "I told you to get the fuck out of here, bitch. I'll kill you bitch." He "couldn't see anybody," so he drove away "really slow."

As officer Patterson reached the front of Tony's Liquor store, he heard a volley of "about eight gunshots" fired in rapid succession from the east side of 23rd Avenue. He thought the weapon "was probably a semiautomatic" firearm. He drove southbound, made a U-turn to face northbound, reported a "code 33, shots were being fired," and requested assistance.

Additional officers quickly arrived at the scene. Officer Patterson proceeded northbound to a parked gold Jaguar. A female named Adrienne and defendant Marcus Moore were "approaching the car" from the east side of the street. Marcus was detained and placed in handcuffs.

Officer Patterson then looked in the direction of the driveway at 2016 23rd Avenue, where he saw "two Black males." One of them was subsequently identified as defendant Lonnel Moore, the other was Gerrick White. Lonnel "side stepped" to a milk crate next to the house and placed a silver pistol "on top of the milk crate." Officer Patterson advanced on Lonnel and White with his gun drawn and ordered them to show their hands. They both complied, and were handcuffed, "detained and escorted to police cars." As officer Patterson then walked up the driveway "to recover the gun," a .45-caliber semiautomatic weapon, he noticed a "male Black" named Charles Robinson hiding behind a chair, and detained him as well. A search of the area did not result in discovery of any .45-caliber shell casings, although .40-caliber casings were found in the front yard of an abandoned duplex at 2036 23rd Avenue.

White, Lonnel and Robinson were arrested and transported to the Oakland Police Department downtown criminal investigation division. In the patrol vehicle White stated that he "just got out of doing six years in prison," and "wasn't involved" in the shooting. White implied that he "knew who did the shooting," but "was in fear of retaliation and didn't want to talk right there." He "wanted to cut a deal" to avoid arrest if he "said who did what."

White, Lonnel and Robinson were placed in separate interrogation rooms. Beginning around 2:30 a.m., White was interviewed by officers Richard Vass and Leronne Armstrong. White requested "a deal" before he provided information to theofficers. He identified defendant Joseph Harrison, known to him as "Heron," as the man he believed fired the shots at officer Patterson. White also told the officers Harrison parked his brown Honda, "wrecked in the front," on the sidewalk on 23rd Avenue just before the shooting. Officer Vass subsequently verified that the Honda was still parked on 23rd Avenue, and was registered to Harrison. Officer Vass showed a photo of Harrison to White, whereupon White said, "That's Heron."

Officer Vass released White at 6:55 a.m. While White was outside the interview room putting on his belt and shoelaces, Lonnel was inadvertently and inopportunely escorted out of another interview room.³ White and Lonnel saw each other; White "had a petrified look on his face, and he stopped talking." Officer Vass advised White not to "go back to 23rd Avenue," to the "very location that Lonnel Moore and his associates hang out at."

White testified at trial that on August 27, 2009, he "sold dope" during the day, and again in the evening on the 2000 block of 23rd Avenue. Defendant Harrison was present, along with Lonnel, Marcus, and others, perhaps 15 in total. Everyone was "just hanging out" and drinking. Harrison was "playing" with a "black automatic handgun" with an extended clip in his "hoodie." Lonnel was in possession of a chrome .45-caliber semiautomatic handgun.

When officer Patterson's patrol vehicle arrived, Harrison was seated in his car. The officer flashed his lights and the group dispersed in different directions. White walked past the police car and stopped to watch, then turned around and walked back toward the liquor store. The police vehicle then made a U-turn, slowly came back down 23rd Avenue and parked at the corner. Harrison was standing behind a wrought iron gate. White heard Harrison proclaim, "I'm fixing to bust," which to White meant he was "gonna start shooting." White responded, "Hell, no," meaning "don't shoot." White took five or six steps away from Harrison, then heard four or five shots fired. He "got low tothe ground and ducked off in the driveway," behind a car. Lonnel and a "youngster" also ran into the driveway. Lonnel was holding his chrome handgun.

From the driveway, White observed the police apprehending a male and female who were next to a Jaguar. The officers then "pulled their guns out" and ordered them to put their "hands up." White heard Lonnel complain that he had a gun, which he was trying to hide "somewhere by the car." White and Lonnel both stood up and raised their hands, after which they were arrested.

While he was traveling to the police station White told the officers he "knew who shot the gun." He was willing to provide information because he "didn't want to be charged" for the shooting.

White testified that he was interviewed separately by officer Vass and another officer. White disclosed that Harrison was the shooter, and identified his photograph at the conclusion of the interview. He also mentioned where Harrison was standing when he yelled, "I'm fixing to bust," and described Harrison's car to the officers.

White was released early in the morning on August 28th.⁴ As he left the interview room he encountered Lonnel, escorted by two officers. According to White, he and Lonnel looked at each other but did not speak.

At 10:30 that morning, Lonnel was transferred to a holding cell in the North County Jail facility. During the course of the day he placed numerous recorded telephone calls to Harrison, Alonzo Johnson, and other relatives or friends. In the telephone conversations Lonnel discussed his observation of White's release. He also expressed suspicion, concern and anger that White was cooperating with the police in the investigation of the shooting. In one recorded telephone call by Lonnel at just after noon, Lonnel indicated he knew White was "out of pocket" - that is, was "doing something" he shouldn't have done - if he was already back "on the street."

Harrison was arrested for the shooting at around 12:30 p.m. that day as he walked northbound on 23rd Avenue. He was found in...