People v. Jones

• Decision Date: 03 December 2007
• Docket Number: No. B189056.,B189056.
• Citation: 157 Cal.App.4th 580,69 Cal.Rptr.3d 132
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Melvin J. JONES, Defendant and Appellant.

69 Cal.Rptr.3d 132

157 Cal.App.4th 580

The PEOPLE, Plaintiff and Respondent, v. Melvin J. JONES, Defendant and Appellant.

No. B189056.

Court of Appeal, Second District, Division 8.

December 3, 2007.

As Modified December 21, 2007.

Joanna McKim, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Deborah J. Chuang and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

RUBIN, J.

Defendant and appellant Melvin J. Jones appeals from his conviction of second degree felony murder, attempted murder, assault with a semi-automatic firearm and shooting at an occupied motor vehicle.¹ He contends: (1) the conviction for second degree murder must be reversed; (2) there were various instructional errors; (3) the trial court erred in admitting evidence of defendant's post-arrest conduct; (4) even if individually harmless, the errors were cumulatively prejudicial; and (5) there were sentencing errors. We modify the judgment and affirm as modified.

FACTUAL BACKGROUND

A. Prosecution's Evidence

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053, 99 Cal.Rptr.2d 1, 5 P.3d 68), the evidence established that defendant was one of about 200 members of the criminal street gang known as the Tiny Rascals Gang (TRG). Defendant was one of three or four African-American members of TRG; about 90 percent of the members are Cambodian. TRG's primary rivals are Hispanic gangs, which are known as "Eses." A Latino gang member may be referred to as a "Longo."

On Sunday, June 22, 2003, Patricia Miller was driving her 12 year-old son, Michael, to a laundromat. As she was turning the car around on 15th Street, Michael saw a Black male wearing a "black outfit" and something on his head stand directly in front of their car, aim a gun and fire at them. Michael was shot in the left shoulder; his mother was fatally wounded. Michael told the police that he would not be able to identify their assailant. When Michael was subsequently shown a photograph of defendant, he said that his assailant had darker skin.

That day, TRG member Sothun Phuong, who worked part-time in a City of Long Beach community outreach program targeted at gangs, was having a barbeque at his home on Orange Street. Defendant was among other TRG members in attendance; defendant was the only African-American at the party. At about 8:00 or 9:00 p.m., defendant, Angela Van Phin and Sisouk Saengthavongsok left the party and walked to a nearby house from which defendant retrieved a semi-automatic handgun. As defendant returned to the barbeque, several male Hispanics in a white Saturn drove by. When defendant and his companions were walking down 15th Street, another white car drove by and pulled into a driveway, apparently to turn a round. Defendant and Saengthavongsok opened fire on the car. Defendant and the others ran back to the barbeque, changed clothes and hid the clothes they had been wearing in the garage.

Phuong, who had remained at the barbeque, heard about six gunshots just before seeing defendant come running from the direction of 15th Street. Defendant told Phuong that he had "shot an Ese" and then gave Phuong a gun, which Phuong put in a laundry basket in his closet. Phuong also put a second gun, which he received from another guest at the barbeque, in the laundry basket.

Officer Randy Mohagen of the Long Beach Police Department was dispatched to the shooting at 15th Street and Martin Luther King Boulevard. After attending to the victims, Mohagen walked with a witness to an apartment on Orange Street. There, in the garage, Mohagen found a black sweatshirt; in the pocket of the sweatshirt, he found a grey cap or "do rag" and a bag of potato chips; underneath the sweatshirt, he found a black cap. Subsequent analysis revealed that defendant's fingerprints were on the bag of potato chips and his DNA was on the sweatshirt, the black cap and the grey cap.

The next day, June 23, 2003, Phuong told his supervisor at the gang outreach program that he had two guns at his house: one which had been given to him by defendant and the other by a woman named Ozzie, whose boyfriend had also been at the party. Phuong told his supervisor that, when defendant gave Phuong the gun, defendant said he shot an Ese or a Longo.

The following day, June 24, 2003, Phuong went to the police station accompanied by an attorney. Phuong told the police the same things he had told his supervisor. Phuong testified to the same version of events at defendant's preliminary hearing.

From a laundry basket found in a closet at Phuong's home, police recovered an unloaded Hi-Point nine millimeter C-9 handgun and a SIG-Sauer with 10 live rounds of ammunition in the magazine; both guns were wrapped in a black T-shirt. The Hi-Point smelled like it had been recently fired; the SIG-Sauer did not. A bullet recovered from Michael's shoulder and one recovered from Patricia's body were determined to have been fired by the Hi-Point. The pattern of shell casings found at the scene of the shooting were consistent with having been ejected from the Hi-Point; none of the projectiles could have come from the SIG-Sauer.

When Phin was interviewed by police, she at first falsely stated that defendant and his companions were returning fire on a car full of Hispanics who were shooting at them. Eventually, Phin told the police the truth, that the attack appeared unprovoked.

B. Defendant's Evidence

Alejandro Ocegurera was 10 years old on June 22, 2003. That day, he ducked to the floor upon hearing gunshots. About five seconds later, he looked out a window and saw an Asian-American man with curly hair and wearing a black beanie standing on 15th Street; Ocegurera had only a side view of the man and could not see his face.

That day, Frank Green was standing outside his home on the corner of Orange and 15th Street when he heard gun shots and then saw two Asian-American men and one Asian-American woman run past him and into an apartment building at 14th Street and Orange; Green could not see their faces, but could see their skin color. That evening, the police showed Green a photograph of defendant; Green told them that defendant was not one of the three people he saw running.

C. Prosecution's Rebuttal Evidence

Gerald Abraham Jr. was with Frank Green on June 22, 2003, when they heard gun shots. About half a minute later, Abraham saw defendant "creeping" across the street, crouched down and holding a handgun; defendant was wearing tan pants and a long-sleeved hooded sweatshirt. Abraham, who was able to identify defendant later that evening, never told the police that the shooter was Asian-American.

D. Defendant's Surrebuttal Evidence

According to a police report of the incident taken by a patrol officer, Abraham said there were three Asian-Americans running across the street, one of whom was wearing black pants, a black longsleeved shirt and a black beanie. Also according to the report, Abraham stated that defendant was not the shooter at the field show-up because the shooter was Asian-American.

DISCUSSION

A. Second Degree Felony Murder

As we understand defendant's contention, it is that the conviction for second degree murder must be reversed because, under the merger doctrine first announced in People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (Ireland), second degree felony murder cannot be based on the predicate felony of shooting at an occupied motor vehicle in violation of section 246. We disagree.

First degree felony murder is defined by section 189 as a murder committed in the perpetration of certain enumerated felonies. Second degree felony-murder rule is a court-made rule which has been defined as follows: "A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the ... felonies enumerated in Pen.Code, § 189) constitutes at least second degree murder. [Citation.]" (People v. Howard (2005) 34 Cal.4th 1129, 1135, 23 Cal.Rptr.3d 306, 104 P.3d 107.)

The felony-murder rule "eliminates the need for proof of malice in connection with a charge of murder, thereby rendering irrelevant the presence or absence of actual malice, both with regard to first degree felony murder and second degree felony murder. [Citations.]" (People v. Robertson (2004) 34 Cal.4th 156, 165, 17 Cal.Rptr.3d 604, 95 P.3d 872 (Robertson).) Accordingly, the "second degree felony-murder doctrine is limited to inherently dangerous felonies because, in the absence of such danger, it would be less justifiable to remove the element of malice from the prosecutor's burden of proof. [Citations.]" (Robertson, supra, at pp. 165-166, 17 Cal. Rptr.3d 604, 95 P.3d 872.)

In Ireland, supra, our Supreme Court adopted the "merger" doctrine which had been "developed in other jurisdictions as a shorthand explanation for the conclusion that the felony-murder rule should not be applied in circumstances where the only underlying (or `predicate') felony committed by the defendant was assault." (People v. Hansen (1994) 9 Cal.4th 300, 311, 36 Cal.Rptr.2d 609, 885 P.2d 1022 (Hansen).) In Ireland, the court held that it was error to instruct on second degree felony murder based on the crime of assault with a deadly weapon, reasoning that an assault merges with the resulting homicide and cannot form the basis for an application of the felony-murder rule. Without the merger doctrine, a jury would effectively be precluded "from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of felonious assault—a category which includes the great majority of all homicides." (Ireland, supra, 70 Cal.2d at p. 539, 75 Cal.Rptr. 188, 450 P.2d 580.)

In People v. Mattison (1971) 4 Cal.3d 177, 93 Cal.Rptr. 185,...