People v. Mays, C057099.

• Decision Date: 08 May 2009
• Docket Number: No. C057099.,C057099.
• Citation: 174 Cal.App.4th 156,95 Cal. Rptr. 3d 219
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DARIOUS ANTOINE MAYS, Defendant and Appellant.

174 Cal.App.4th 156

95 Cal. Rptr. 3d 219

THE PEOPLE, Plaintiff and Respondent, v. DARIOUS ANTOINE MAYS, Defendant and Appellant.

No. C057099.

Court of Appeals of California, Third District.

May 8, 2009.

As modified June 3, 2009.

CERTIFIED FOR PARTIAL PUBLICATION^*

A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SIMS, Acting P. J.—

In this case, defendant Darious Antoine Mays was being questioned about his involvement in a homicide. Defendant asked to take a polygraph test. The police administered a fake polygraph test during which defendant denied any involvement in the crime. The police showed defendant a fake graph from the fake polygraph machine and told defendant he had not been telling the truth. Defendant then admitted he had been present at the scene of the crime. We hold that defendant's admissions were not involuntary so as to preclude their admission in evidence.

Defendant Mays appeals following his conviction of first degree murder with a lying-in-wait special circumstance and personal firearm discharge enhancement. (Pen. Code, §§ 187, 190.2, subd. (a)(15), 12022.53, subds. (b)-(d); undesignated statutory references are to the Penal Code.) Defendant contends the trial court erred by (1) denying his Batson-Wheeler¹ motion when the prosecutor used a peremptory challenge on a Black prospective juror, (2) admitting into evidence defendant's statements taken by police in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602], (3) admitting into evidence defendant's statements allegedly coerced by police faking a polygraph test, (4) allowing a witness to testify by conditional examination videotaped outside of the presence of the jury and the public and then played in open court, and (5) denying defendant's motion for new trial. Defendant also challenges a parole revocation fine (§ 1202.45) and a clerical error in the abstract of judgment showing the case as a three strikes case.

In the unpublished portions of the opinion, we explain why we reject defendant's Batson-Wheeler and Miranda claims and why we shall order modification of the abstract of judgment (1) to strike the parole revocation fine (§ 1202.45) and (2) to delete the reference to the three strikes law. In the published portion of the opinion, we reject defendant's contentions (3) and (4). Thus, although we will modify the abstract of judgment, we will otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A complaint deemed to be an information alleged that on January 24, 2005, defendant committed first degree murder of Sheppard Scott (§ 187), with a special circumstance of lying in wait (§ 190.2, subd. (a)(15)), and an enhancement for personal discharge of a firearm causing death (§ 12022.53, subds. (b)-(d)). Defendant's age (17) precluded the death penalty. (§ 190.5.)

The trial court denied defendant's motion to suppress his statements to police on the ground of a Miranda violation, as we discuss post. The jury thus heard evidence that defendant admitted to the police that he was at the crime scene at the time of the crime, though he denied being involved.

Evidence adduced at trial included the following:

Yalandria Narcisse testified she was the victim's girlfriend and was with him when he was shot.² Around 4:30 a.m. on January 24, 2005, they were in a car waiting to order food at the Jack in the Box drive-through on Norwood Avenue. Two persons standing outside the adjacent ampm asked if the victim had any weed, and he said no. The victim told Narcisse one of the two persons insulted him, calling him a "bitch-ass nigger or something." She said she did not hear that. The victim got out of the car and engaged in an animated conversation with the two persons, during which the victim stated a gang affiliation. As the victim walked back to the car, Narcisse saw one of the persons, dressed in orange (an Orioles jacket), pass something to the other person, who was dressed in a gray hooded sweatshirt. The victim collected the food and drove to the exit. Somebody yelled, "hey, homey," and the victim stopped the car. The gray-clad male came up to the car and said he wanted to apologize. The victim said to forget about it. The person in gray held out his hand to shake. The victim, still seated in the car, held out his hand. The person in gray pulled out a gun, fired several shots at the victim, and ran off (following the person in the orange jacket).³

Narcisse (and other witnesses) said the shooter fired the gun with his right hand. Defendant (and others) testified defendant is left handed. Narcisse testified, "The guy in the gray sweater took out his hand, took out his hand to shake, to shake [victim] Sheppard's and then Sheppard stuck out his hand and when the guy pulled out his hand he had a gun and he started shooting." This would only make sense if the shooter had the gun in the hand other than the one he extended to shake hands. Narcisse thought the shooter had gold teeth (defendant does not have and denies ever having worn gold teeth), and from her seated position she thought the shooter stood about five feet one inch tall (defendant is five feet seven inches tall).

Narcisse and the victim had been drinking alcohol that night. The police did not determine the extent of Narcisse's drinking.

An autopsy revealed the victim, who had a blood-alcohol level of 0.11 percent, was shot six times.

Surveillance cameras at ampm did not capture images of the shooting but did capture images of the persons wearing gray and orange and shows one of them pointing at the victim's vehicle as it passes through the ampm parking lot on its way to Jack in the Box. The images of the suspects are not clear.

Witness Sharla Flores was across the street, heard the shots, looked and saw the male in the gray sweatshirt, whom she had encountered earlier that night, firing a gun at a car. When shown a photo lineup, she indicated defendant's photo could possibly be the shooter. She rated her level of certainty as five out of 10. When shown the ampm photo, she said it looked like the shooter (four on a scale of 10) but she could not tell because she could not make out the face in the photo. She believed the shooter used his right hand but was not positive.

Lisa Faupula, who was pumping gas at the ampm, saw a young Black male rapidly approach a car, pull out a gun, fire multiple shots with his right hand (defendant testified he is left handed), and run off. She estimated his height at five feet seven or eight inches. She "guessed" his weight at 145 or 150 pounds. She said he wore a white "doo-rag" on his head, tied in back with a piece of cloth hanging down, and white trousers. (The pants of the gray-clad male in the ampm photo appear to be white or gray.) She admitted her eyesight was not good and she was in shock. She was unsure whether the gray-clad person in the ampm photo was the shooter and could not identify anyone.

Edward Kim was pumping gas. He noticed a male wearing an orange jacket walk past him. Kim returned his attention to his task, then heard gunshots, turned, and saw two persons running away—the male in the orange jacket, and another male wearing dark clothing.

The prosecution sought (over defense objection) to conduct a conditional examination of Tamara Schallenberg, a neighbor who considers defendant like a son, on the ground she had phobias precluding testimony in open court. A psychiatry resident who treated her testified Schallenberg has a panic disorder with agoraphobia, characterized by sudden onset of shortness of breath, chest pain, dizziness, and extreme fear. Schallenberg has reported passing out when a panic attack brought on an asthma attack. The doctor did not believe Schallenberg was faking. The doctor said Schallenberg might be able to testify if she took a sedative, but the risk was oversedation. The court allowed a conditional examination of Schallenberg in a courtroom, in the presence of the judge, court staff, counsel for both sides, and defendant; the jury and the public were excluded. The conditional examination was videotaped. The court found the witness's infirmity made her unavailable to testify in open court. The videotaped conditional examination was played for the jury in open court.

In her conditional examination, Schallenberg denied making statements to the police, including identification of defendant and his brother as the persons depicted in the ampm photos. She testified that she told the officer the person in the photo might be defendant, but she was not sure. She testified she never saw defendant wear a light gray sweatshirt. She denied ever seeing defendant deal drugs and denied that he ever said he was a gang member. Schallenberg testified she has known defendant since 1999, and he is like a son to her. She admitted that one day in January 2005, she received a phone call from defendant's mother around 5:00 a.m. As a result of the call, Schallenberg went out looking for defendant, but she did not find him. The next day, she saw defendant and asked him what was going on. Defendant said he was with his brother at the ampm, and his brother shot somebody. In her conditional examination, Schallenberg said defendant laughed when he told her, but it was a "scared" laugh. Schallenberg also admitted that she and defendant had a telephone conversation while he was in jail, in which he said the investigator said she should testify in court that she made false statements to the police because she was mad at defendant.

Detective Charles Husted testified about his audiotaped interview of Schallenberg. He showed Schallenberg the ampm photo, and she stated without hesitation that the person in the gray sweatshirt was defendant....