People v. Howard
| Decision Date | 30 May 2018 |
| Docket Number | A149081 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DONNIE HOWARD, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. H56262B)
June Pavon was shot to death during a burglary of her home. One of the intruders, Lionel Harris, pled no contest to voluntary manslaughter and testified against the other two, appellant Donnie Howard and his co-defendant Ayodele Patterson, during their joint jury trial. A mistrial was granted as to Patterson, but the case against appellant proceeded to a verdict. The jury convicted appellant of first degree murder with a felony-murder special circumstance and found that he had been armed with a firearm in the commission of the offense, and the court determined he had been previously convicted of a first degree burglary. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(G), 12022, subd. (a)(1).)1 Appellant was sentenced to life without the possibility of parole.
In this appeal, appellant contends: (1) the trial court made numerous statements during voir dire that trivialized the burden of proof beyond a reasonable doubt; (2) the court should have granted his motion for a mistrial based on evidence suggesting that Patterson had implicated him during a police interrogation; (3) the evidence wasinsufficient to show appellant acted as a major participant and with reckless indifference to human life, as is necessary to support a felony-murder special circumstance allegation for a non-killer; and (4) the accusatory pleading did not adequately allege a prior conviction under the Three Strikes law. We agree with the final two contentions and will order appellant's sentence modified to 25 years to life for first degree murder.
June Pavon, the victim in this case, was eighty years old lived alone with her dog in a home on Spring Drive in the Hayward Hills. Her house had an attached garage with a door at the top of a flight of stairs leading into her kitchen. A side door to the garage had been broken during a burglary of her home in May 2010. Pavon had not been home during the May burglary.
On the afternoon of Friday, June 25, 2010, Pavon spoke with her daughter Malia on the telephone. On Sunday, June 27, 2010, worried because Pavon was not answering her telephone, Malia and her husband went to Pavon's house and discovered her dead body on her living room couch. Pavon had been shot four times at close range in the face and chest and her house had been ransacked.
Three empty jewelry box drawers from a bedroom jewelry case were found on the living room floor, the contents of Pavon's purse had been dumped onto a living room chair, and her wallet was open on the living room floor. In Pavon's bedroom, a jewelry box and a piece of jewelry were lying on the bed and a jewelry case drawer was lying on the floor. Another piece of jewelry was found on the steps and keys and coins were found outside the garage door. The side door to the garage was damaged and appeared to be the point of entry.
No useable DNA or fingerprints were found at the scene.
On September 23, 2014, the district attorney filed an amended information charging appellant, Ayodele Patterson, and Lionel Harris with Pavon's murder. (§ 187, subd. (a).) It was alleged that Patterson had personally and intentionally discharged afirearm causing great bodily injury and death (§ 12022.53, subd. (d)) and that as to appellant and Harris, a principal had been armed with a firearm (§ 12022, subd. (a)(1)). Harris pled guilty to voluntary manslaughter and admitted an arming allegation and was given an agreed sentence of 12 years in exchange for his truthful testimony about the Pavon murder.
At the joint jury trial of appellant and Patterson, Harris testified that he had been close friends with Patterson for many years, knew his family well, and considered him to be like a brother. He met appellant at Patterson's house when he was 17 or 18 years old and sometimes hung out with him, though he was not as close to appellant as he was to Patterson. Harris and Patterson had committed a residential burglary together, which was known as a "house lick," and Harris had pawned some jewelry from that crime at a pawn shop. Harris had committed a separate burglary with appellant, and afterwards they went to a local store where the clerk bought things for cash. During both of the burglaries, the men wore gloves. Patterson owned a long rifle, and Harris later saw it with its stock cut off and its handle covered in duct tape.
On the day of the Pavon murder (Saturday, June 26, 2010), Patterson called Harris and invited him to come over and hang out. After Harris arrived, Patterson took a phone call, left the room, and came back and told Harris he had a "lick on [the] line," meaning there was a house he wanted to burglarize. Harris told Patterson he just wanted to hang out, but Patterson insisted he come along.
The two walked past some basketball courts near Patterson's apartment and up a tree-lined dirt path. It was getting dark. Patterson gave Harris a pair of blue gloves, which Harris put on. As they were walking, Harris saw the butt of the sawed-off rifle sticking out of the top of Patterson's pants. After they passed the basketball courts, they were joined by appellant, who was also wearing blue gloves. Patterson said there was a big black dog at the house and it was agreed that Harris would be the lookout. Appellant did not say anything about a dog.
When they arrived at Pavon's house, they walked down an alleyway between the garage and a shed. Appellant and Patterson stopped at a side door to the garage and Harris continued walking around the corner to the backyard patio. There, he looked through the kitchen window and saw Pavon get a glass of water. He did not know whether she had seen him, and he went back around the corner to let appellant and Patterson know that someone was in the house. The side door to the garage was open and when he walked inside the garage he saw that the door leading from the stairs inside to the kitchen was also open. He had not heard anyone breaking into the house.2
Harris walked up the stairs and into the kitchen, where he saw Patterson standing between the kitchen and the living room, holding his gun at his side pointing down toward the floor. Patterson whispered to Harris that there was a lady in the living room and asked him what he wanted him to do. Harris said they should come back when she was not there and Patterson said, "Fuck that" and Patterson then entered the living room and approached Pavon, who was sitting on her couch reading a book with her dog next to her. He fired a shot into her chest from about a foot away and Pavon made a screech. Patterson paused after the first shot then fired three more in rapid succession, with the last one hitting her nose. Pavon's dog moved to a position under the table.
Harris became angry and yelled at Patterson, wondering why he had shot Pavon. Patterson started picking up casings and told Harris to help him, but Harris did not do so. Patterson started going through Pavon's purse and the entertainment center in the living room and then walked into another room. Harris felt shocked and angry and left without going through any of Pavon's belongings. He did not see appellant inside the house and did not see him again that night. The last place he saw appellant had been at the side door of the garage.
After the shooting, Harris returned to Patterson's house, and Patterson returned about 15 minutes later. He said he had stashed the gun outside. Harris spent the night at Patterson's house because it was too late to take the bus home, but they did not talk very much.
Harris saw appellant once or twice after the shooting but never discussed it with him. About a year later, he attended a party and saw David Hall, with whom he had committed a street robbery. Police were called to the party, and after they left he saw Hall with the duct taped gun that Patterson had used to shoot Pavon. Patterson was not at the party. Harris acknowledged he had been a member of the Taliban gang, but testified he was no longer a member when he was arrested for this crime in April 2014. A friend of his had been shot in 2011, and he testified against the shooter in that case without getting any deal for his testimony.
It was stipulated that on Sunday, June 27, 2010, appellant pawned one piece of scrap 14 karat yellow gold jewelry weighing 1.6 grams at a pawnshop in Oakland.
Appellant was interviewed by the police several times regarding the Pavon murder and burglary and consistently denied involvement. In April 2014, the police interviewed him and Patterson separately and then placed them alone in a room together and recorded their conversation. At the time, appellant had pled guilty to an unrelated burglary for which he would receive a four-year prison sentence.
At the beginning of the video, Patterson indicated he knew their conversation was being recorded. Appellant said, "I'm already goin' to the pen, bro, it's over;" "I'm tellin' you, bro, you're gonna have to take one, blood;" and Patterson told appellant, ...
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