People v. Harvey

• Decision Date: 21 December 1984
• Docket Number: Cr. 15473
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Earl HARVEY, Defendant and Appellant. D000234.

Page 910

208 Cal.Rptr. 910

163 Cal.App.3d 90

The PEOPLE, Plaintiff and Respondent, v. James Earl HARVEY, Defendant and Appellant.

D000234.

Cr. 15473.

Court of Appeal, Fourth District, Division 1, California.

Dec. 21, 1984.

Hearing Denied Feb. 14, 1985.

John Van de Kamp, Atty. Gen., John W. Carney and David I. Friedenberg, Deputy Attys. Gen., for plaintiff and respondent.

Handy Horiye, San Diego, for defendant and appellant.

WIENER, Acting Presiding Justice.

James Earl Harvey appeals from a judgment of conviction entered after a jury found him guilty of first degree murder (Pen.Code, §§ 187, 189) ¹ and attempted murder ( §§ 187, 664), with accompanying firearm use allegations ( § 12022.5) on both counts and a great bodily injury allegation ( § 12022.7) on count two.

Factual and Procedural Background

Gerald Pierro and Robert Brady were in the United States Navy. Just after midnight on the morning of April 26, 1982, they left the main gate at the 32nd Street Naval Station to go to a friend's house. As they walked northward on the east side of 32nd Street, Pierro noticed two black males walking northward on the west side of the street. Between G and F Streets, one of the black males, later identified by Pierro as the defendant James Harvey, began crossing the street toward Pierro and Brady. Pierro noticed that Harvey was carrying a rifle and quickened his pace. He then heard Harvey say, "Freeze." Brady stopped but Pierro continued walking. Harvey repeated the command to "freeze." Pierro then stopped, turned and stepped toward Harvey. As he did so, he heard a shot strike the ground behind him. He glanced over his shoulder to see where the shot had landed and as he turned back to face Harvey, he was shot in the left side. Pierro then turned away from Harvey and began running north on 32nd Street to the F Street intersection.

When he reached F Street, Pierro stopped and looked back down 32nd Street. He saw Brady at the same position he had stopped initially. Brady was facing Harvey, who had the rifle pointed at Brady. Harvey had been joined by the second black male. Pierro could hear the three men talking but could not understand what they were saying. Harvey poked Brady in the abdomen with the rifle. Brady then turned and began running up 32nd Street toward Pierro. After Brady had taken approximately three steps, Harvey fired several shots. Brady continued running toward Pierro and the two men then ran west on F Street. As he ran, Pierro looked back and saw Harvey and his companion picking something up off the ground at the scene of the shooting.

Brady had been shot once in the back. The two men stopped at an unoccupied house on F Street in a futile attempt to get Approximately 11 days after the shooting Pierro was shown a photographic line-up which included Harvey's picture. He was unable to identify any of the photographs as the gunman. On the same day as the preliminary hearing, approximately 45 minutes before the hearing was to begin, Pierro viewed a live line-up consisting of six individuals including Harvey. Pierro was given a pre-printed card for his responses on which he checked a box labeled "I do not identify anyone." He testified that he checked that box because he "wasn't 100 percent sure" but that he believed individual No. 4, who was Harvey, was the man who shot him and Brady. Pierro conveyed this information to the prosecutor and police before the preliminary hearing began. He testified at trial that he was 100 percent certain that defendant Harvey was the gunman.

help. Brady collapsed and later died there. Pierro recovered from his gunshot wound.

Ray Donaldson testified under a grant of immunity. He was a friend of Harvey's and admitted to being the second black male walking on 32nd Street on the night of the shooting. The particulars of his story, however, differed from Pierro's version. According to Donaldson, he met Harvey outside the Oasis Club on the corner of 32nd and Market Streets sometime after midnight on April 26. They saw two white males walking on the east side of 32nd Street coming from the direction of the naval station. Without saying anything, Harvey turned and began to follow the sailors on the west side of 32nd Street. Donaldson followed some distance behind. Midway between G and F Streets, Harvey crossed the street on a 45-degree angle to intercept the sailors. Donaldson then heard several shots and saw the two sailors running north on 32nd Street. Harvey came running back down 32nd Street toward Donaldson, carrying something Donaldson said looked "like a long stick."

Clyde Austin, another friend of Harvey's, also testified. He lived in the same apartment with his sister Nancy, her children, and Ray Donaldson, who was Nancy's boyfriend. Austin stated that Harvey came to his apartment around noon on April 26th with a newspaper which contained a headline relating to the shooting of two sailors on 32nd Street. Harvey wanted to make sure that Austin's nieces and nephews did not implicate him in the shooting. Austin admitted having previously told police, about a month and a half after the shooting, that Harvey had claimed to have shot the sailors when he brought the newspaper to Austin's apartment. He explained at trial, however, that he had lied to police in order to protect his sister.

Two .22 caliber shell casings were found by police at the scene of the shooting and a similar casing was found in front of the Donaldson/Austin apartment. Two criminalists positively confirmed that all three casings were fired from the same firearm, a .22 caliber rifle without a stock which was turned over to a defense investigator by the defendant's father, John Harvey Sr. John Harvey testified that after he learned his son was being investigated in connection with the shooting, he inquired around the neighborhood about the murder weapon, which police had been unable to locate. Shortly thereafter he received an anonymous phone call telling him to look underneath an automobile which was parked in his back yard. When he did, he discovered the stockless rifle, wrapped in a plastic trash bag, which he turned over to the investigator.

As to the alleged first degree murder of Robert Brady, the prosecutor pursued two theories at trial. He argued the circumstances of the crime demonstrated premeditation and deliberation. Alternatively, although the underlying felony was not charged, he contended Harvey was attempting to commit a robbery at the time the shooting occurred which would invoke the felony-murder rule. He theorized that the conversation between Brady and the gunman which Pierro could not understand concerned the demand for money. In support of this theory, the trial court admitted into evidence the testimony of Paul Bradley to the effect that Harvey committed an

armed robbery less than six months before the 32nd Street shooting incident. Bradley testified that he was delivering items to a liquor store at 32nd and Webster Streets when Harvey approached him with a pistol and demanded money. After Bradley had given Harvey the money he had in his pocket and as Harvey turned to leave, Bradley heard the pistol discharge and a bullet strike the ground near him. The trial court took judicial notice that Harvey had previously pled guilty to robbing Bradley.

DISCUSSION

Harvey's principal contention is that the trial court erred in admitting the evidence of his prior robbery of Paul Bradley. He also argues (1) the prosecutor's peremptory exclusion of two black jurors is prima facie evidence of discrimination and requires explanation; (2) evidence of Harvey's cooperation with the police investigation, consistent with his claim of innocence, was improperly excluded; and (3) the trial court should have given a sua sponte instruction that an immunized witness' testimony is to be viewed with distrust. Finally, Harvey asserts he was improperly sentenced to the upper term of nine years on the attempted murder count because the court made dual use of the factors in aggravation.

Admissibility of the Bradley Robbery

Evidence Code section 1101, subdivision (a) generally prohibits the introduction of evidence of a defendant's past criminal acts to prove that he committed the crime with which he is currently charged. As the Supreme Court explained in People v. Guerrero (1976) 16 Cal.3d 719, 724, 129 Cal.Rptr. 166, 548 P.2d 366,

"The reason for this rule is not that such evidence is never relevant; to the contrary, the evidence is excluded because it has too much probative value. 'The natural and inevitable tendency of the tribunal ... is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge.' (1 Wigmore, Evidence (3d ed. 1940) p. 646, quoted in People v. Schader (1969) 71 Cal.2d 761, 773, fn. 6 [80 Cal.Rptr. 1, 457 P.2d 841]....)"

Subdivision (b) of section 1101, however, provides a well-worn exception to the general rule by allowing evidence of prior crimes "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than [the defendant's] disposition to commit such acts." In the present case, the People argue that evidence of the Bradley robbery was relevant to the issues of the identity of the 32nd Street gunman and, once his identity was established, Harvey's intent to rob Brady prior to shooting him.

Both Harvey and the People agree that the admissibility of prior crimes evidence to prove identity and intent is governed by discussions in a series of Supreme Court cases. (See People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883; People v. Guerrero, supra, 16 Cal.3d 719, 129 Cal.Rptr. 166, 548 P.2d 366; People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267, disapproved on other...