People v. Hickles

• Decision Date: 31 July 1997
• Docket Number: No. A058400,A058400
• Citation: 56 Cal.App.4th 1183,66 Cal.Rptr.2d 86
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 6092, 97 Daily Journal D.A.R. 9965 The PEOPLE, Plaintiff and Respondent, v. David R. HICKLES, Defendant and Appellant.

Page 86

66 Cal.Rptr.2d 86

56 Cal.App.4th 1183, 97 Cal. Daily Op. Serv. 6092,

97 Daily Journal D.A.R. 9965

The PEOPLE, Plaintiff and Respondent, v. David R. HICKLES, Defendant and Appellant.

No. A058400.

Court of Appeal, First District, Division 2, California.

July 31, 1997.

[56 Cal.App.4th 1186] A.J. Kutchins, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Asst. Attorney General, Ronald D. Bass, Senior Asst. Attorney General, Aileen Bunney, Supervising Deputy Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, for Plaintiff and Respondent.

KLINE, Presiding Justice.

David R. Hickles was convicted by a jury of aiding and abetting the second degree murder (Pen.Code, §§ 187, 189) of Leon Garrett, and an arming enhancement (Pen.Code, § 12022, subd. (d)) was found true. On appeal, he challenges the jury selection process, raises several evidentiary and instructional errors, and claims the trial court erroneously denied his new trial motion. We conclude the trial court's failure to instruct on the predicate or target offense appellant allegedly aided and abetted was prejudicial error and we reverse.

STATEMENT OF FACTS

On July 3, 1991, the victim, Leon Garrett, was shot by a man known as "Heavy D" ¹ at the Motel 5 on MacArthur Boulevard. The evidence established that appellant arrived with the gunman and was standing nearby at the time of the murder. The prosecution sought to prove accomplice liability on one of two theories: (1) appellant planned the murder with Heavy D, or (2) that he aided and abetted a target crime, e.g., assault, from which the murder was a natural and probable consequence, i.e., derivative liability.

Just prior to the murder, the victim, Garrett, had been living with appellant, Jarred Scott and Heavy D in an apartment on East 19th Street. Garrett's girlfriend, Brenda McKinley, had been living there also, but moved out a few weeks before. McKinley, a three-time felon, testified that she had never seen a gun in the apartment or in Garrett's possession.

After being served with an eviction notice, Garrett moved out of the apartment on July 1. On that day, Garrett's uncle, John Davis, drove him from the apartment to Motel 5. On The only witness to the killing, besides appellant, was Teresa Washington. Washington testified that she visited her boyfriend, Jarred Scott, at Garrett's apartment several times. On several occasions she saw Garrett, appellant, and Heavy D inside the apartment. She saw no guns in Garrett's possession.

July 2, Garrett telephoned Davis from the motel asking him to pick him up at 4 p.m. the next day, July 3, the day of the murder.

On the day of the murder she drove past Garrett's apartment and saw appellant and Heavy D standing on the sidewalk. Heavy D flagged her down. Appellant was standing on the sidewalk about three feet behind him. Appellant was wearing a white T-shirt with jeans, and Heavy D was wearing a matching tan shirt and pants. Heavy D asked her for a ride. She agreed and waited while the two men ran back into the apartment. When they returned, they asked her to drive them to see some friends.

Heavy D directed her to the motel. He instructed her to park in the street and let him out, rather than park in the motel's parking lot. He said he would be right back. Appellant exited the car, followed by Heavy D. She saw both men walk to the motel driveway. A few moments later, she pulled over to the curb and left her car with the motor running. This testimony conflicts with her version given at the preliminary hearing in which she said she had turned the engine off. Washington testified she got out of the car and walked to the motel.

Upon entering the motel grounds, she saw Heavy D on the second floor landing in front of Garrett's room shouting at him. She testified variously that when she first saw appellant he was on the same level as the other two men, was climbing up and down the stairs from "top to middle," or was standing a few feet behind Heavy D on the stairs. She said that while Garrett and Heavy D argued loudly for several minutes, appellant was just standing there looking, and did not say anything. She testified that at one point appellant had reached the landing, but this was contradicted by her preliminary hearing testimony in which she stated that appellant never stood on the landing. She admitted telling Sergeant Cheault that appellant had also been on the landing, and that he and Heavy D called out, "Dude, dude, what's up?" before Garrett walked out of his room. She testified that Garrett walked out the door looking scared. She did not see appellant pass a gun to Heavy D.

As she stood at the foot of the stairs, she saw a gun suddenly drop at Heavy D's feet, about one to two arms' lengths from appellant, who was then standing on the steps behind Heavy D. Heavy D picked the weapon up and shot Garrett three times as he walked away. By the third shot, appellant had run down the stairway. He was followed by Heavy D. Both men ran by Washington who was still standing at the bottom of the stairs covering her ears. Once inside the car, Washington heard Heavy D say, "We peeled that fool" as he shook appellant's hands. According to the witness, appellant wore a blank expression and said nothing. After driving a couple of blocks, Washington ordered both men out of her car.

After stopping briefly at her home, Washington drove to a barber shop where her boyfriend, Scott, worked. This was about 25 minutes after the shooting. Appellant entered a little later and sat down in a barber chair. She took Scott aside and told him "his friends just killed" Garrett. That night, Washington, Scott, appellant and his girlfriend, drove to a motel in Pinole and spent the night.

Several people in office buildings near the motel heard the shots and saw two or three people running out of the motel courtyard. Mary Stanton testified she saw a large, Black man dressed in khaki holding a gun to his side, walk to a dumpster and throw it in. She was unable to tell if the gunman or someone else opened the top to the dumpster. The police recovered a .357 magnum revolver with three live rounds and three expended casings from the dumpster. Three .38 caliber hollow point bullets were recovered from Garrett's body.

Diane Akers heard three gunshots, looked out the window of her office and observed a Black male and a heavyset Black Judith Heller heard three gunshots, looked out of her office window and watched as a small, Black male, apparently appellant, walk from the area of the dumpster, cross the street, and run away. He was followed by a heavyset couple, a Black man and woman, who ran towards a Chevrolet Nova and sped away. Heller supplied the police with the car's license number.

female walk slowly from the motel driveway before breaking into a run.

Jarred Scott testified he had been giving haircuts at the East 19th Street apartment ever since Heavy D had told him many young people in the neighborhood would visit the apartment. During May and June, Scott would cut hair three or four times a week and often slept at the apartment. Appellant often accompanied Scott to the apartment and spent the night. Scott testified that he saw two handguns (a .357 magnum and a .38 revolver) and a rifle and saw Garrett clean the rifle. One time, Scott asked appellant if he could fire the .357 pistol.

During the week preceding Garrett's murder, appellant told Scott he was moving some clothes from the apartment. Scott told an investigator, though he denied it at trial, that appellant became upset when he learned Garrett had been served with an eviction notice and had the telephone serviced canceled after appellant had been paying rent to Garrett.

Scott testified that appellant did not arrive at his shop until 45 minutes after Washington, in contrast to Washington's version. According to Scott, appellant appeared to be in shock. Appellant told Scott that he was surprised Heavy D shot Garrett and that he did not want this to happen. Scott said appellant was not angry with the victim. He said appellant had called Pacific Bell to restart telephone service so Scott could continue to cut hair in the apartment.

A few days following the murder, appellant fled to Washington state where his mother lived. Scott telephoned him there. Appellant returned to Oakland in October 1991 and was arrested.

Stanley McGraw, a career criminal, agreed to testify for the prosecution if the People agreed not to prosecute him on recent charges for selling narcotics and to refrain from notifying his parole officer. On August 14, 1991, McGraw was arrested for selling heroin to an undercover officer. McGraw, also known as "Greedy," had more than five felony convictions, including assault with a deadly weapon, attempted murder and weapons offenses, and was on parole for dealing drugs at the time of his arrest. Soon after his arrest, McGraw contacted Sergeant Raymond Conner and, according to Sergeant Conner, "right off the bat" offered information about Garrett's murder, saying it involved a .38 hollow point bullet fired from a .357 magnum. McGraw told the officer that he got this information from a man named "Dave." McGraw also identified Scott's photograph as that of "Big Jay."

McGraw gave a lengthy, taped statement to the police which was read to the jury in edited form. In that interview, McGraw told Sergeant Conner he was buying crack from Dave (appellant) who sold it out of the victim's apartment together with "Big Jay" and "Youngster" (a.k.a. Heavy D). McGraw told the officer the victim received cocaine in return for allowing Dave and his friends to sell crack from the apartment. The victim was evicted because he spent his rent money on drugs. McGraw stated he knew the victim owed Dave from $200 to $500.

After the victim moved out of the apartment and into the motel, the phone service was...