People v. Lewis

• Decision Date: 30 March 2004
• Docket Number: No. A098387.,A098387.
• Citation: 12 Cal.Rptr.3d 1,117 Cal.App.4th 246
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Milton LEWIS, Jr., Defendant and Appellant.

12 Cal.Rptr.3d 1

117 Cal.App.4th 246

The PEOPLE, Plaintiff and Respondent, v. Milton LEWIS, Jr., Defendant and Appellant.

No. A098387.

Court of Appeal, First District, Division 4.

March 30, 2004.

Certified for Partial Publication.^*

Rehearing Denied April 19, 2004.

Review Denied June 30, 2004.

Renée E. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy

Attorney General, Aileen Bunney, Deputy Attorney General, for Plaintiff and Respondent.

KAY, P.J.

Appellant Milton Lewis, Jr. was convicted by a jury of two counts of assault with a semiautomatic firearm (Pen.Code, § 245, subd. (b)), and with personal use of a firearm (Pen.Code, § 12022.5, subd. (a)). He was sentenced to 22 years and 4 months in prison. In this appeal, he raises issues of prosecutorial misconduct, and Wheeler (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748) and instructional error. In the published portion of this opinion, we hold that the prosecutor did not commit misconduct by referring in questioning and argument to appellant's failure to request an Evans (Evans v. Superior Court (1974) 11 Cal.3d 617, 114 Cal.Rptr. 121, 522 P.2d 681) lineup. We conclude that the other claims of error also lack merit and affirm the judgment.

I. BACKGROUND

The assaults took place around 2:00 a.m. on December 16, 2000, in the parking lot of a Denny's restaurant in Eureka. The assailant hit David Moore in the neck with a gun (count one), and fired two shots in the direction of Keenin Ephriam, Cameron Matthews, Delvin Hudson, and Lawrence Bady (count two). Over 15 witnesses at the scene testified to what transpired. The issue in the case was whether appellant was the assailant.

Ephriam, Matthews, Hudson and Bady, students at Humboldt State University (HSU), went to Denny's in Ephriam's gold Sentra. HSU students Moore and Timothy Hair went there with Keion Morgan in Morgan's green Civic. Before the Civic and Sentra arrived at Denny's, a group of appellant's friends and acquaintances had gathered there, including: Tyvonne Latimer, Jacoby Achane, Donald Bell, Palavi Vainuku, Mo Charlo, Porsche Charlo, Emily Petra, Dee Dee Prudhomme, and Yolanda George. Everyone was coming from Club West, which had closed at 1:00 a.m. Appellant, who was known as "J.R.," went to the club with Latimer, Achane, and Bell in a white Altima rented to Achane's mother. George testified that appellant went to Denny's with Porsche, Petra, Prudhomme, and her in Prudhomme's van. George said that she sat on appellant's lap during the trip, and felt something hard, like a gun, in his waistband. She turned and looked at the object and saw something shiny.

Ephriam had an argument with appellant outside the club after it closed. Ephriam denied at trial that appellant threatened to "blow [his] brains out" during the argument, but acknowledged reporting words to that effect to the police on the night of the incidents. The argument between Ephriam and appellant was followed by a fistfight between Ephriam's friend Matthews and appellant's friend Porsche, which the police broke up. Eureka Police Officer James Jones saw appellant near the club when he was dispatched to the disturbance, and reported later that night that appellant had his hair in cornrows, and was wearing a red short-sleeved shirt and dark baggy pants.

Morgan drove the Civic to Denny's with Moore in the passenger seat and Hair in the back. Morgan stopped the car in the middle of a group of people in the parking lot to talk to Porsche. Moore testified that a man came around to his side of the car, opened the door, pulled out something shiny that appeared to be a gun, and hit him with something on the neck. Morgan told Eureka Police Detective David Parris later that night that the assailant had asked, "Was it one of you all who did it?" and pulled a chrome handgun out of his waistband and hit Moore with it. Moore lunged toward the driver's side of the car after he was hit and, according to a taped statement given by Vainuku, asked Porsche to "tell him it wasn't us." In his statement, Vainuku said that Porsche was angry and grabbed appellant; people were telling appellant to put the gun away, but Achane said, "let his ass go to jail." In his taped statement, Mo said that a green car pulled into the parking lot, and he saw appellant, who appeared to be drunk, walk up to the car and pull out a gun. Mo saw the man in the passenger seat jump to the other side of the car, but did not see appellant hit the man with the gun.

When they were interviewed by Parris later that night, Moore, Hair and Morgan were shown two six-photo lineups: appellant was pictured in photo two in lineup one; Latimer was shown in photo two in lineup two. Latimer testified that people often confuse him with appellant, especially when their hair is braided.¹ Moore testified that he did not see his assailant's face. Moore identified Latimer as the assailant from the photo lineups, and told Parris that he had seen his assailant get into the white Altima at the club. Hair did not identify either appellant or Latimer from the photo lineups; he thought that the man depicted in photo six in one of the lineups resembled the assailant. Morgan identified appellant as the assailant from the lineups but declined to identify him in court. Morgan described appellant at trial as a "changed man," and testified that appellant was not the one who assaulted Moore.

After the assault on Moore, Morgan drove out of the parking lot toward the police station next to the restaurant. Ephriam saw Morgan's car leaving the lot as he was driving in. In her interview with Parris a few days after the incidents, Prudhomme said that when the gold car pulled into the other end of the lot, she tried to calm appellant down and hold him back. In their statements, Mo and Vainuku said that when the other car arrived, everyone pointed and said "there they are," "that's them." Ephriam recognized the man he had argued with at the club; people tried to hold the man back, but he broke away and walked toward Ephriam, Hudson, Bady, and Matthews as they were getting out of the car.

Ephriam testified that the man pulled out a silver gun and fired two shots; two .40 caliber shell casings were recovered by the police at the scene. Hudson testified that the man who had argued with Ephriam at the club came toward them and fired at them from the middle of the Denny's lot. Bady testified that when they got to Denny's he saw the men who had argued and fought with Ephriam and Matthews at the club, and that he heard shots as he was getting out of the car. Matthews testified that the men from the club were walking toward them, and that he was bent over, putting his shirt in the car prepared to fight again, when he heard the shots, so he did not see who fired the gun. In his statement, Mo said that he watched from close range as appellant pulled out a gun, ran toward the people in the car, and fired twice, pointing the gun straight toward the vehicle. In his statement, Vainuku said that appellant walked over, pulled out a gun, fired twice, and tried to fire again but the gun jammed.

Ephriam and Hudson identified appellant from the photo lineups and in court as the shooter. Bady and Matthews, who did not see the shots fired, identified appellant from the photo lineups as the man who had argued with Ephriam. Matthews "guaranteed" that he could identify the assailant when he saw the photo lineup, and reiterated his identification of appellant at trial. Bady stood next to Ephriam during the argument with appellant; he and Hudson testified that they got a good look at appellant at that time. Ephriam testified that he stood a foot and a half away from appellant during the argument, in an area illuminated by street lamps.

In court or in their interviews with Parris, Ephriam, Hudson, Bady, and Matthews said that appellant had his hair braided and was wearing a red shirt on the night of the incidents. Tracy Gothier, a Eureka police dispatcher, was working at the police station next to Denny's at 1:51 a.m. that night when she heard shots and went to her second story window overlooking the well-lit restaurant parking lot. She testified that there were many people out in the lot, and that she observed a slender African-American man with braided hair in a baggy white sweatshirt standing by a car holding a silver gun.² She broadcast a report of a shooter wearing a white sweatshirt.

When the shots were fired, Matthews dove into the back seat of the Sentra, and Ephriam, Hudson, and Bady ran out of the parking lot toward the police station. Hudson reported to Parris that when he got to the police station and looked back, he saw their assailant get into and out of the white Altima in the Denny's lot. In his statement, Vainuku said that people were telling appellant to "get out of [t]here," and that he saw appellant leave the scene. Hair, riding with Morgan and Moore, saw Ephriam, Hudson, and Bady running down the street; Morgan picked them up and they returned to the Denny's lot.

Officer Todd Wilcox arrived at Denny's looking for an African-American male in a white sweatshirt, but based on descriptions of the shooter at the scene, started looking for someone with cornrows wearing a red shirt and red shoes. Ephriam, Matthews, and Hudson reported that night that the assailant wore a red shirt, red shoes, and blue jeans. They and Bady described the assailant as a man in his 20', 5'7" to 5'10"; Matthews said that the man was thin, and Bady estimated that he weighed 160 pounds. Morgan thought that the assailant was 5'7" and 145 pounds; Moore said that the assailant was 5'9" or 5'10" and 160 pounds, and that he was wearing a red shirt, long red jacket, and jeans; Hair described the...