People v. Lee
| Decision Date | 14 June 2019 |
| Docket Number | A151330 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. STEPHON LEE et al., Defendants and Appellants. |
| 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 176746A & B)
Stephon Lee and Mario Mady Floyd were convicted by jury of first degree felony murder, with robbery-murder special circumstance findings.1 Both contend the trial court erred by not sua sponte instructing on second degree murder. Floyd additionally claims a pretrial statement by one of the witnesses should have been suppressed as involuntary, the jury instructions on felony murder as to an aider and abettor were incomplete, the robbery-murder special circumstance finding as to him is not supported by the evidence and his felony-murder conviction is likewise not supported by sufficient evidence.
As to Lee, who was the actual killer, we conclude any error in failing to instruct on second degree murder was harmless given the special circumstance finding as to him, which he has not challenged on appeal. However, we conclude the matter must beremanded to allow the sentencing court to consider whether to strike the firearm enhancement under amended Penal Code section 12022.53, subdivision (h).2
As to Floyd, who was convicted of felony murder as an aider and abettor, we conclude the trial court did not err in allowing the challenged evidence nor did it commit instructional error. However, we conclude that under the explication of the special circumstances law as to aiders and abettors in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), the evidence is insufficient to support the robbery-murder special circumstance finding as to Floyd. While we agree our conclusion as to the special circumstances finding calls into question his felony-murder conviction in light of the recent changes to the felony-murder law, we conclude, as have other appellate courts, Floyd must seek to vacate his conviction in the trial court pursuant to new section 1170.95.
On a summer afternoon in 2013, Judy Salamon drove down a neighborhood street in Oakland, stopped her car, got out, and took cell phone photos or video in the direction of a car then being driver by Lee.
Floyd, who was in the passenger seat of Lee's car, exited the car. Shortly thereafter, he confronted Salamon and demanded she turn over her cell phone. When she refused, he spit on and then threw a garbage can at her car.
Apparently Lee had gotten out of his car, and after Floyd failed to procure the cell phone, one witness stated Lee had words with Floyd to the effect that " 'It should've been done with.' " According to another witness, as Lee exited his car, he told Floyd he was "about to go get the phone." Several witnesses said Lee then walked over to Salamon's car and shot her in the head. Another witness told officers that after Floyd returned toLee's car, Lee pulled alongside Salamon's car and fired shots through the passenger side window of his car into Salamon's car, one of which struck her in the head.
Witnesses saw Lee's car start up the street, but shortly make a U-turn, drive back down the street, and stop. Witnesses differed as to whether Lee or Floyd was driving at the time, and also differed as to whether it was Lee or Floyd who exited the car, reached into Salamon's car, snatched her cell phone, and hopped back into the car. Floyd's DNA, however, was found under Salamon's fingernails.
Around the same time, a masonry contractor who was working nearby, overheard the shooting, went to Salamon, and found her bleeding in her car. A police officer soon arrived, and found Salamon sitting in the driver's seat of her car, slumped over and bleeding from her head. She was still breathing and had a pulse. The officer and a nurse who happened to be nearby removed Salamon from her car and attended to her until paramedics arrived. Despite efforts by the paramedics, Salamon died at the scene.
When Lee was arrested, he had a cell phone containing a photograph of Salamon's cell phone with a reflection of someone wearing a Falcon's hat, which one witness described Lee as wearing at the time of the shooting. Metadata for both photographs established they were taken about the same time as the murder.
The jury convicted Lee of one count of murder (§ 187, subd. (a)) and one count of a felon in possession of a firearm (§ 29800, subd. (a)(1)). In conjunction with the murder conviction, the jury found he personally and intentionally discharged a firearm causing great bodily injury or death (§§ 12022.7, subd. (a), 12022.53, subd. (d)), personally inflicted great bodily injury (§ 12022.7), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), and murdered Salamon while committing robbery (§ 190.2, subd. (a)(17)(A)).
The jury convicted Floyd of one count of murder (§ 187, subd. (a)). It further found that he was armed with a firearm in the commission and attempted commission ofthe felony murder (§ 12022, subd. (a)(1))4 and the murder was committed during a robbery (§ 190.2, subd. (a)(17)(A)).
Approximately three months after the shooting, Police Sergeants Gantt and Fleming interviewed Carmelita Jordan over a nearly five-hour period.
At trial, when Jordan claimed she could not recall her prior statements to the officers, the prosecution sought to introduce an audiotape of the interview into evidence. Floyd objected on the ground Jordan's statements had been coerced. After listening to the entire audiotape, the trial court overruled Floyd's objection and admitted a portion of the audiotape into evidence. Floyd maintains the court erred in admitting any part of the audiotape.5
Jordan was interviewed at the police station. She was not under arrest, and the door to the interview room was unlocked and at times open. At one point during the interview, Jordan stormed out of the door, but later returned and closed the door herself. There is no indication her mental or physical capabilities were impaired in any way, such that she was "incapable of free or rational choice." (In re Cameron (1968) 68 Cal.2d 487, 498.)
There is no question Jordan was hostile at the outset of the interview. She repeatedly insisted she would not testify. She swore. She was angry and threw chairs. In fact, at trial, Jordan agreed with the prosecutor's description that she had thrown a tantrum.
Frustrated with Jordan's behavior, Sergeant Gantt explained she was a witness to the events and she could choose to cooperate or be hostile: Jordan responded, "All right, what do you want me to do . . . [¶] . . . [¶] 'cause I'm not goin' to jail." Sergeant Gantt repeated, [¶] . . . Jordan said she wanted to go home, so she would admit "[h]e did it." But she refused to sign anything to that effect. Sergeant Gantt tried to calm her down, saying he was not going to force her to sign anything and asking her, again, to tell him what happened. Jordan continued to insist Lee and Floyd were just "hangin' out" and that she heard a loud boom as she was getting into her car, but did not see anything.
Sergeant Gantt then asked Jordan how old her child was. Jordon shot back, "None of your fucking God damned business." Taken aback, Sergeant Gantt told Jordan, "I'm not gonna to do anything to your child." The following colloquy ensued:
Jordan continued to insist she had not seen anything and she did not know anything. Sergeant Gantt, in turn, continued to ask her what had actually happened. He made it clear— At that point, Jordan, referring to Lee, said: [¶] . . . She went on to say it had all happened "so fast" and she heard three gunshots. Jordan then said she wanted to go home, tore up the photographs on the table in front of her, and reiterated that she did want to be a witness. Sergeant Gantt again said he could not make her do anything she did not want to do.
Over 10 minutes later, after Jordan had, on her own, walked out of the interview room and then returned, she demanded that the officers put their...
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