People v. Humphrey
| Decision Date | 04 May 2011 |
| Docket Number | Super. Ct. No. 02F02888,C052744 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ROY LEE HUMPHREY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOTTOBEPUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sacramento)
On a winter's evening, Victor Jiminez sat on a porch, playing penny-ante poker with four friends. As they played, a young man approached and asked to join the game. After the group refused, the man demanded their money and pulled out a gun. A scuffle ensued, shots rang out, and Victor fell, mortally wounded. An information charged defendant Roy Lee Humphrey with murder committed in perpetration or attempted perpetration of a robbery, attempted robbery, and assault with afirearm. (Pen. Code, §§ 187, subd. (a), 189, 664/211, 245, subd. (a)(2).)1
Following a lengthy jury trial, the jury found defendant guilty on all counts. The trial court sentenced defendant to 25 years to life for murder and two years for attempted robbery, plus a 10-year consecutive determinative enhancement pursuant to section 12022.53, subdivision (b).
Defendant appeals on a wide range of issues. Defendant challenges the sufficiency of the evidence that he fired the gun. He argues the admission of mitochondrial DNA2 profile evidence ran afoul of Kelly-Frye.3 He contends the court erred in failing to allow impeachment of a prosecution witness with prior crimes of moral turpitude, in excluding impeachment evidence, and in admitting inadmissible hearsay to prove the attempted robbery allegation. Defendant argues the court erred in failing to provide one of the witnesses with an interpreter.He also presents a variety of instructional challenges and challenges his sentence, arguing it runs afoul of both section 654 and Cunningham.4 In addition, defendant contends his conviction should be reduced to second degree murder. Defendant objects to restitution to compensate Victor Jiminez's wife for wages lost while attending trial. Finally, defendant contends his presentence conduct credits were erroneously calculated. We agree with the final contention and shall direct that the abstract of judgment be corrected. In all other respects, we shall affirm the judgment.
Defendant was charged by information with murder, attempted robbery, and assault with a firearm. (§§ 187/189, 664/211, 245, subd. (a)(2).) The information alleged as a special circumstance that the murder was committed in the attempted commission of a robbery and that defendant used a firearm in the commission of the murder and the attempted robbery. (§§ 12033.53(b), 190.2(a)(17).) The information also alleged defendant was 17 years old at the time of the crime.
A trial followed during which the jury heard the following evidence.
One evening in January 2002, Victor Jiminez played poker with four friends: Antonio Jiminez, Bernardo Valdez Silva, Rafael Gonzales, and Artemio Gutierrez.5 They sat on the porch, around a table that contained about $20 dollars in coins. A light illuminated the table and the men around it. Marcelino Jiminez, who owned the house, and his mother were inside.
Two young black men on bicycles stopped by the house's front gate. As the men on the porch played, one of the young men approached and began to talk to Victor and Antonio in English. The man, about 19 or 20, had cropped braided rows of hair. Bernardo described the young man as weighing about 140 pounds, wearing a black jacket and cap. Antonio described the man as about six feet tall.6
The man asked to play cards, but Antonio said no. Rafael heard the man say in English, "Give me the money." Bernardo and Artemio watched the man argue with Antonio and Victor for several minutes. Because Artemio did not understand English, he did not understand what the stranger was saying. Others at thetable told him the man was asking to play. Bernardo saw Antonio gesture for the man to leave.
The young man pulled out a black automatic handgun. Victor reached for the gun and told the man not to shoot. Antonio grabbed the man around the waist. Bernardo saw Antonio push the man with his arm. Antonio and Victor wrestled with the man. During the struggle, the men broke the house's front window.
Bernardo hit the young man in the head with a chair two or three times. The man shot his gun toward the porch, hitting Bernardo in the thigh. Bernardo fell in the doorway.
As Antonio and Victor tried to wrestle the gun away, the man shot Victor at close range. Victor fell to the side of the door.
Artemio saw a second black man outside the gate of the house. Rafael told the second man he could not come inside. In response the second man said, "I'm coming in." Artemio saw a gun in the man's waistband. Artemio struggled with the second man and was able to disarm him. The man dropped the gun and ran away.
Rafael heard the sound of two gunshots coming from the porch. Rafael chased the second man but turned to see the gunman running from the scene in the same direction.
That evening, neighbor Rosa Miramontes heard a commotion outside and four or five gunshots. Miramontes immediately called 911. Miramontes saw two black men, in their mid-twentiesor younger and wearing dark jackets and jeans, running away. One ran down the alley; the other ran toward the street.
Officers arrived on the scene at 8:24 p.m. The crime scene investigator, Scott Williams, found two bicycles by the front gate. A silver Diamondback Assault 24 BMX leaned against the fence. A red Rocky Mountain 10-speed leaned against a pickup truck.
Past the gate, in the driveway, Williams found a brown leather jacket, a black knit cap, three wrapped condoms, a five-shot revolver with three rounds in the cylinder, and two.38-caliber rounds on the ground. Williams also noted a trail of blood leading into the house and a spent bullet on the porch.
Another crime scene investigator found three live.38-caliber bullets inside the revolver on the driveway, and a spent bullet on the porch. The investigator collected possible blood samples from the driveway and the kitchen floor in the house.
Robert Guitierrez, an identification technician, collected hair samples and fiber samples from a black and white cap found in the pocket of the brown jacket. He also found possible hair samples on the cap. Inside the cap he found unknown fibers.
Guitierrez also examined the two bicycles, the black knit cap, the condoms, and the brown jacket for fingerprints. He obtained six latent prints from the BMX bicycle but none from the Rocky Mountain bike.
On tape wrapped around the revolver Guitierrez found three latent prints. The revolver had the words "I.N.A. made inBrazil" stamped on it. The condoms yielded no prints. None of the prints on the gun matched either defendant's or DeSwan Fisher's fingerprints.
That January, Danna Easter was involved in a relationship with defendant's sister Michelle. The couple, along with defendant, lived with defendant and Michelle's mother.
On the afternoon of the shooting, defendant's friend DeSwan Fisher came to the house to show defendant a dog. Fisher left. Later, after it became dark, defendant left. Defendant told Easter he was going to shoot dice.
Earlier that day, Easter saw defendant with a revolver in his hand in the hallway. Defendant told Easter that Fisher had a gun. Easter saw Fisher place the gun in his waistband.
Defendant returned three or four hours later, bleeding from his head and leg. Defendant told Easter and Michelle that he and Fisher had been attacked. Defendant said he fought with a man near St. Paul's Church. The man hit him on the head and shot him. Defendant never got a good look at his attacker. He lost his wallet during the fight.
Defendant told his mother about the fight, and she became hysterical. She insisted that Easter and Michelle take defendant to the hospital.7 When Easter overheard defendant relating the story to his mother, defendant did not mentionbeing with Fisher. Defendant told his mother he blacked out after being hit over the head and was robbed.
Easter, Michelle, and another sister took defendant to the hospital. Before they left, Michelle searched defendant's wallet for his insurance card.
Defendant produced his insurance card at the hospital. After returning from the hospital, Easter saw defendant put his wallet in his room.
Easter told a prosecution investigator that defendant told her he went to shoot dice and "dudes like got into it." Defendant admitted to Easter that he went to rob some people and "everything went down." Defendant also said he had a problem with "some Mexicans." The conversation took place after their return from the hospital while defendant washed his wound.
During cross-examination, Easter acknowledged she was interviewed by police a few months after the shooting after being arrested on a bench warrant. Easter testified that, during the interview with the investigator, she stated what she thought had happened, based on assumptions and opinions. She repeated what she had heard from someone that Mexicans were involved. Easter also admitted reading newspaper accounts of the shooting.
Easter was on probation for an assault with a deadly weapon committed in 2003. Easter, involved in another criminal case out of state, was transported back to California to testify.
An emergency room nurse treated defendant on the night of the shooting. Defendant stated that he had been hit in the head and shot by an unknown assailant. The nurse confirmed defendant had his health insurance card with him at the hospital.
An emergency room physician treated d...
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