People v. Limbrick, D050414 (Cal. App. 2/5/2010)
| Decision Date | 05 February 2010 |
| Docket Number | D050414. |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ADAM LIMBRICK et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
Appeals from judgments of the Superior Court of San Diego County, No. SCD187132, Browder A. Willis, III, Judge. Affirmed.
Not to be Published in Official Reports
A jury convicted Adam Limbrick and R'mon Howard Anderson of first degree murder (Pen. Code,1 § 187, subd. (a)), attempted premeditated murder (§§ 664/187, subd. (a)), and two counts of robbery (§ 211). With respect to each of these counts, the jury found Limbrick personally used a firearm (§ 12022.5, subd. (a)) and personally discharged a firearm (§ 12022.53, subds. (c), (d)), and Anderson was vicariously armed with a firearm (§ 12022, subd. (a) (1)). Limbrick also was convicted of shooting at an inhabited dwelling (§ 246). As to both Limbrick and Anderson, the jury found to be true the special circumstance allegation the murder was committed in the commission of robbery (§ 190.2, subd. (a)(17)(A)). In a bifurcated proceeding, the trial court found that Anderson had a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior serious/violent or strike conviction (§ 667, subds. (b)-(i)).
The court sentenced Limbrick to state prison for life without the possibility of parole, a consecutive term of life with the possibility of parole, a consecutive enhancement of 25 years to life, and a consecutive 48-year determinate term.
The court sentenced Anderson to state prison for life without the possibility of parole, a consecutive term of life with the possibility of parole, and a consecutive determinate sentence of 28 years.
In his appeal, Limbrick contends (1) he was denied his constitutional right to a speedy trial, (2) his trial should have been severed from Anderson's trial, (3) it was prejudicial error to admit evidence of his gang association while denying evidence of Anderson's gang association, (4) the punishment of life imprisonment without the possibility of parole for a killing during a robbery is unconstitutional, and (5) the cumulative effect of the errors deprived him of a fair trial.
In his appeal, Anderson contends (1) he was deprived of a representative and impartial jury when the court erroneously granted the prosecutor's challenge for cause against prospective juror R.; (2) the robbery special circumstance enhancement as to him was not supported by sufficient evidence; (3) the prosecutor committed misconduct in her closing argument by misstating the law with respect to the special circumstance; (4) the court erred by admitting evidence of his involvement in an unrelated drive-by shooting under Evidence Code section 1101, subdivision (b); (5) the court erred by admitting evidence of bullet holes in his truck; (6) the court abused its discretion by admitting a photo of the murder victim with his young son; (7) the court should have conducted individual interviews with jurors about the inadvertent receipt of information in the jury room instead of questioning the jury in a group setting; (8) the court erred by denying his request for a continuance to prepare a motion for a new trial; (9) the cumulative effect of the errors deprived him of a fair trial; and (10) the parole revocation fine must be stricken.2
Anderson was a marijuana dealer, and his main supplier was Richie Gonzalez. Usually, Anderson bought from five to 10 pounds of marijuana from Gonzales at a time and occasionally as much as 20 pounds.
On the morning of May 20, 2004, Anderson phoned Gonzalez and asked to buy 30 pounds of marijuana. Anderson and Gonzalez spoke throughout the day about Gonzalez's progress in coming up with 30 pounds.3 At one point, Gonzalez told Anderson that he would not be able to get that much marijuana, but he later called Anderson and said he had been able to gather the 30 pounds. Gonzalez and Anderson agreed to meet at a Blockbuster store, even though Gonzalez usually conducted his drug transactions at his girlfriend's residence or the residence of his friend, Daniell Vasquez. Vasquez often would act as Gonzalez's bodyguard.
That night, however, Vasquez did not accompany Gonzalez. Rather, Gonzalez met his friend, David Diaz, at the Blockbuster parking lot before the drug transaction. Gonzalez asked Diaz to go with him while he met some friends, and Diaz agreed. Diaz was an addict, having used methamphetamine twice daily since 1992, and on that day had ingested his second dose about eight hours earlier. Diaz was the prosecution's primary witness at trial. At the time of trial, Diaz was in custody on a drug possession charge. Diaz, who used a fake name to avoid paying child support, also had a prior conviction for possessing drugs for sale and was to be deported at some point.
At approximately 8:30 p.m., Anderson arrived at the parking lot and signaled Gonzalez to follow him in his truck. As Gonzalez began to follow Anderson's vehicle, he told Diaz that he was going to sell marijuana. Gonzalez followed Anderson for about 15 minutes; neither Gonzalez nor Diaz knew where they were being led. Anderson stopped near the corner of Appian Drive and Casey Street in San Diego, and Gonzalez parked behind him.
Anderson got out of his truck as did his passengers — Limbrick and a third man wearing glasses, whom police believe was John Harris.4 Anderson approached the driver's side of Gonzalez's truck while Limbrick and Harris approached the passenger side, where Diaz was sitting. Harris then walked toward a grassy area; Diaz initially thought Harris was looking for a place to urinate. But Harris did not urinate and, unbeknownst to Diaz, was probably serving as a lookout.
Gonzalez told Anderson that he had the marijuana, which was in a box on the back seat of Gonzalez's truck. Anderson took the box of marijuana and placed it in his truck before returning to Gonzalez's truck. When Anderson returned to Gonzalez's truck, he leaned into the driver's side window and removed the keys from the ignition. At that point, Limbrick put a gun to Diaz's neck and told him, "Don't move motherfucker." Harris, who had returned from the grassy area, told Diaz the situation "was serious" and Diaz "was going to die anyway."
Harris removed Diaz from the truck and took his wallet and cell phone while Limbrick held the gun to Diaz's neck. While Limbrick ran to the back of Anderson's truck, Harris grabbed Diaz by his belt and dragged him to the same location. Diaz then saw Limbrick leaning with his left hand on the front of Gonzalez's truck while he pointed a gun toward the ground, where Gonzalez was lying.
Diaz was ordered to throw himself down on the ground next to Gonzalez. Diaz pretended to comply with the order, but ran away. Limbrick fired several shots at Diaz before shooting Gonzalez in the head and killing him. Gonzalez was lying face down in the street in a pool of blood. The cause of death was a gunshot wound near Gonzalez's left eye socket, with the bullet injuring both hemispheres of the brain, the brain stem and the cerebellum. Diaz left the murder scene without calling the police because he was in the country illegally and did not want to be arrested. Police contacted Diaz several months later after finding his phone number on Gonzalez's cell phone.
Two bullets, apparently meant for Diaz, entered the residence of the Munoz family through different windows. One bullet was found lodged in a computer, which the 13-year-old Munoz son had been using. The other bullet was found lodged in the children's bedroom closet.
Nearby residents heard the gunshots and called the police. Police responding to the scene found eight .45-caliber cartridge casings and two bullet fragments in the street near Gonzalez. All the cartridge casings came from a Glock firearm. Based on the trajectories and the placement of the casings and bullet strikes, a police detective opined the shots were fired from someone standing near Gonzalez's truck. The door to Gonzalez's truck was open; no keys were found in or near the truck. Limbrick's left palm print was found on the front hood of Gonzalez's truck with the fingers pointing toward the windshield.
At about 10 p.m., Anderson phoned Lionel Johnson, who also was a customer of Gonzalez and who had introduced Anderson to Gonzalez. Anderson told Johnson, "Don't call Richie."
The following day Anderson told Johnson: "We licked him [Gonzalez]." Johnson assumed that Anderson and others had stolen marijuana from Gonzalez. Later that day, Johnson accompanied Anderson to a garage in Encanto, where Anderson split the marijuana with Harris and Limbrick. Johnson knew Limbrick by his moniker, "Grim Reaper." Limbrick also went by the moniker "Brim Reaper" and was a documented member of the 5/9 Brim, a Blood gang in southeast San Diego.
When Johnson was in custody on another matter in September 2004, he learned from police that Gonzalez was dead. Johnson subsequently informed Anderson that Gonzales was dead and police might be looking for him. Johnson suggested that Anderson get rid of his truck and leave the area for a while.
The prosecution also presented evidence that in 2001 Anderson was driving a Nissan Sentra when the passenger fired a gun at a Toyota Camry or Corolla, which was ahead of the Sentra. A police officer witnessed this incident and pulled over the Sentra. Anderson remained in the car, but the shooter fled. Anderson told police that earlier he had fought with three Skyline Piru gang members. Anderson then picked up the shooter, a Lincoln Park gang member he knew. Anderson claimed that someone in the Toyota had fired a gun at them three times before the shooter fired in the air. At first, Anderson said he thought the gun was a starter pistol, but later admitted it was a real gun.
Testifying in his own defense, Anderson denied planning a drug rip-off or robbery and knowing Gonzalez was going to be shot. Anderson...
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