People v. Jackson
| Decision Date | 03 April 2020 |
| Docket Number | A155509 |
| Parties | THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. LEE JACKSON, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR013196)
Defendant Lee Jackson was sentenced to 55-years-to-life in prison after a jury found him guilty of four crimes, including the first degree murder of Tony Smith. On appeal, he presents the following five arguments: (1) his counsel provided ineffective assistance by failing to seek exclusion of a witness's identification of him as the shooter, an identification he contends the police coerced by threatening the witness she would lose her child if she did not answer their questions; (2) the trial court erred in denying defendant's motion to suppress evidence (including the murder weapon found in his possession) because he was detained without reasonable suspicion and there was no probable cause for the warrantless search that led to discovery of the murder weapon; (3) the trial court abused its discretion in allowing the prosecution to introduce text message exchanges between defendant and another man in which they discussed committing armed robberies; (4) the matter must be remanded for resentencing to allow the trial court to exercise its discretion with regard to a Penal Code section 667, subdivision (a) enhancement in light of a recent amendment to the statute that makes the imposition of the enhancement discretionary; and (5) cumulative error. Defendant has also filed a petition for writ of habeas corpus (A158572) asserting two ineffective assistance of counsel claims.
Defendant's argument regarding resentencing is well taken. All others lack merit. We thus reverse and remand for the sole purpose of allowing the trial court to exercise its discretion to impose or strike the five-year enhancement provided by Penal Code section 667, subdivision (a). In all other regards, we affirm.
At 4:14 a.m. on September 14, 2016, Oakland's "Shotspotter" system recorded a gunshot in the city's Fruitvale district. Approximately 15 minutes later, 66-year-old Tony Smith was found dead in his car near the intersection of 35th Avenue and International Boulevard. He died from a single gunshot to his torso. The police found a bullet lodged in the car's console and a nine-millimeter spent casing near the corner of 36th Avenue and International Boulevard.
A left palm print lifted from the driver's door of Smith's car was found to match defendant. As a result, in early October, the police began to focus on defendant as a suspect in Smith's murder. They obtained his cell phone records and learned that he was in communication with a woman named Lea Farr, who had been arrested on October 6 on prostitution charges in the same area as the Smith murder.
A records check on defendant revealed that on September 23—nine days after Smith's murder—he had been arrested in Davis. The police report on the arrest related that defendant and Farr were in a car parked on the shoulder of a road leading to a freeway onramp in a dark, isolated area of Davis in the middle of the night. The officers approached the car and spoke to defendant and Farr, detecting the smell of burnt marijuana during the conversation. After defendant told the officers he was on parole, they searched the car and found a nine-millimeter handgun under the front passenger seat. While defendant and Farr were seated in the back of the patrol car, defendant urged Farr to tell the officers the handgun belonged to her.
The car defendant was driving in Davis was a rental car that had been rented by Jessica Ballard, defendant's girlfriend. Ballard had never seen the handgun found in the rental car. Ballistics confirmed that the gun had fired the shell casing found at the scene of Smith's murder and the bullet found in Smith's car.
The police obtained cell phone records for defendant, Farr, and a man named Vincent Renfrow. The records indicated that between 12:11 a.m. and 12:37 a.m. on September 14—the morning of Smith's murder—their three cell phones were in the vicinity of each other in the Sacramento area. Defendant's and Farr's cell phones then exchanged calls at 3:04 a.m., 3:07 a.m., and 3:08 a.m. using a tower "extremely close" to the scene of Smith's murder. Between 3:56 a.m. and 4:18 a.m., defendant's and Farr's phones again pinged off towers near the scene of Smith's murder. The area where Smith was murdered was known for prostitution, and the police believed defendant was Farr's pimp and they were in the area so Farr could engage in prostitution.
The internet history from defendant's cell phone showed searches on September 14 for "September 14th shooting in Oakland," "Man sitting in car shot killed in Oakland," "man shot, killed in car near Fruitvale BART station in Oakland," and other similar searches. Defendant's cell phone also contained a series of texts exchanged from October 1 to November 3, 2016, between him and someone identified in his phone contacts as "Vinny," regarding obtaining a gun and committing armed robberies.
On November 1 and 2, warrants were issued for the arrest of defendant and Farr for Smith's murder. On November 3, they were arrested at a courthouse in Oakland, where Farr was scheduled to appear on her October 6 prostitution case. A car key found on defendant led the police to Farr's car, where they found a loaded revolver.
In a police interview that day, Farr gave the following account of Smith's murder: On September 14, she rode from Sacramento to Oakland in a car with defendant and a man she knew as "V." She was walking the streets when Smith drove by and asked for a date. She ultimately met him around the corner and got into his car to negotiate the price for her services. After she got into the car, she heard defendant's voice on the driver's side. When she looked over, she saw a gun. She did not remember exactly what defendant said but it sounded like someone getting ready to rob someone. Smith tried to shift the car out of park, and Farr heard a gunshot. The car rolled forward, and when it came to a stop, she jumped out and ran back to the car she had arrived in. She, defendant, and V then fled to San Francisco.
At defendant's trial, Farr initially refused to answer questions about her November 3 police interview, despite that she had been granted immunity. Consequently, portions of the video recording of her police interview were shown to the jury.
After a lunch break, Farr was more willing to answer the prosecutor's questions. Her ensuing testimony was largely consistent with what she had told officers in her November 3 interview, up until the point when she described what happened once she was in Smith's car. Rather than repeat her identification of defendant as the gunman, she testified that after she and Smith negotiated the price for her services, she bent down to get a cigarette, and when she looked back up, she saw a gun through the driver's side window. She said she could see the hand that was holding the gun but did not remember whose gun it was. She further said she heard an exchange about money between the gunman and Smith, but she forgot what the gunman said and did not recognize his voice.
On cross-examination, defense counsel took Farr through her August 2017 preliminary hearing testimony, in which she testified that when she was sitting in Smith's car, she saw her ex-pimp—a man named Prince—who had dark skin and was wearing a black hoodie, standing outside the car, and that Prince, not defendant, was the shooter.1 She also testified at the preliminary hearing that she did not identify Prince as the shooter in the police interview because she was scared of him—more scared of him than of defendant—and the police pressured her to identify defendant as the shooter.
Farr further testified on cross-examination that in February 2017 she told a defense investigator that defendant was not the shooter and that she had told the police he was the shooter because she was scared of Prince, who had told her that if she talked to the police something might happen to her and her family.
Still on cross-examination, Farr testified both that she was truthful when she spoke to the police on November 3, and that at the preliminaryhearing she did her best to tell the truth. She also responded, "Um, I don't know" when defense counsel asked if she was being truthful when she gave certain answers at the preliminary hearing, including when she identified Prince as the shooter.
On re-direct, Farr testified that she had seen Prince at a strip club in Sacramento earlier in the evening of September 13 but had not seen him in Oakland on the day of Smith's murder. The prosecutor asked, "[A]re you telling this jury that you never saw Prince in Oakland, but Prince was the person that shot this poor customer who is sitting to your left?" Farr responded, "No. I don't know."
An amended information charged defendant with one count of murder, two counts of possession of a firearm by a felon, and one count of shooting at an occupied motor vehicle. It also alleged multiple enhancements, including a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a).2
As will be set forth in greater detail below in connection with defendant's second argument, in March 2018, defendant moved to suppress evidence recovered during the September 23 search of the car in Davis, including the murder weapon. He argued that the police lacked probable cause to search the car because he was not in fact on parole at the time...
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