People v. Mitchell, B151026.

• Court: California Court of Appeals
• Citation: 110 Cal.App.4th 772,2 Cal.Rptr.3d 49
• Decision Date: 18 July 2003
• Docket Number: No. B151026.,B151026.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeffrey Dewayne MITCHELL, et al., Defendants and Appellants.

2 Cal.Rptr.3d 49 110 Cal.App.4th 772 The PEOPLE, Plaintiff and Respondent,
v.
Jeffrey Dewayne MITCHELL, et al., Defendants and Appellants. No. B151026. Court of Appeal, Second District, Division 1. July 18, 2003. Certified for Partial Publication.^* Review Denied Oct. 15, 2003.^**

[2 Cal.Rptr.3d 50]

[110 Cal.App.4th 774]

Robert E. Boyce, San Diego, under appointment by the Court of Appeal, and Boyce & Schaefer for Defendant and Appellant Jeffrey Dewayne Mitchell.

Kathy M. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant Robert Jimmie Rogers.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Scott A. Taryle, Deputy Attorney General, for Plaintiff and Respondent.

[110 Cal.App.4th 775]

MALLANO, J.

Jeffrey Mitchell and Robert Rogers appeal from judgments entered following a joint trial in which they were convicted of first degree murder and found to have personally used firearms. It was further found that the crime was committed for the benefit of a street gang. In the published portion of this opinion, we conclude

2 Cal.Rptr.3d 51

that the trial court erred in permitting evidence that Mitchell had been identified in a canine scent identification lineup without first holding a hearing under People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240. Nevertheless, we hold that the error was harmless. In the unpublished portion, we reject arguments that challenge Rogers's photographic identification and the propriety of certain evidence. Accordingly, we affirm.

FACTUAL BACKGROUND

1. The Crime and the Investigation

Defendants are members of the Underground Crips (UG Crips) gang. The intersection of 106th Street and Budlong Avenue in Los Angeles County is in the territory of the adjacent rival, Hoovers gang. Around 10 a.m. on August 20, 1999, 19-year-old Jose Lazaro was in his mother's house at the intersection of 106th and Budlong when he heard loud noises that sounded like firecrackers. After a pause, he heard two more similar sounds, and then about five more bangs which sounded more like gunshots. Lazaro looked through the black metal front screen door to investigate the sounds. For three or four seconds he was able to see two men, whom he later identified as defendants, on the sidewalk directly in front of the house. They were walking very quickly. As they walked, men later identified as Mitchell and Rogers bumped into each other. Mitchell was in front holding a gun. Lazaro testified that he was able to get a view of the right profile of both men and also a "partial look at the front of [Mitchell's] face when he turned around."

When Mitchell and Rogers proceeded a bit farther up the street, Lazaro went outside and saw the body of Peter Drake lying faceup in the intersection. Lazaro recognized Drake as a member of the Hoovers gang, which frequently congregated in a nearby parking lot. Lazaro went back inside and called 911 to report the shooting.

Paramedics and police officers soon arrived. Drake was declared dead at the scene. Lazaro did not go back outside to talk to the officers because he did not want to be recognized by neighbors. Instead, he again called 911 and gave descriptions of both assailants. In this call, Lazaro described the man with the gun (Mitchell) as African-American, 16 to 23 years old, about 5 feet

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8 inches tall, with a "fade" haircut, and wearing a white shirt, black shorts, and black shoes with a white Nike insignia. Rogers was described as a bit taller and heavier, with slicked-back hair, and wearing white shoes with a black Nike insignia. Later that day, Lazaro worked with a police artist, who made a drawing of Mitchell that depicted what Lazaro described as the assailant's prominent cheekbones and Adam's apple. Lazaro had been in the Los Angeles County Sheriffs Department Explorer Program for two and one-half years and had been trained to notice such details. He testified that he has glasses with a correction for distance that he uses sometimes for driving at night but that he does not use them at any other time. He was not wearing the glasses when he saw the two assailants walk by.

Officers at the scene of the shooting located five bullet casings from a .25-caliber semiautomatic weapon near Drake's body. An autopsy revealed that Drake had sustained multiple gunshot wounds, with fatal or potentially fatal bullets lodged in his brain, neck, lung, and chest. Eight bullets were recovered, four of which were .25-caliber and had been fired from a semiautomatic gun. The other four bullets were .22-caliber and most likely had been fired from a revolver inasmuch as no casings of that caliber bullet were found at the scene.

2 Cal.Rptr.3d 52

On August 23, 1999, officers arrested UG Crips member Marcus Hartfield for burglary. Hartfield told the officers that he had some information about a murder. He stated that on August 20 he was at the home of UG Crips member Roderick Hyatt, who lived very close to 106th and Budlong but still in UG Crips territory. There, Hartfield saw Rogers and Mitchell speaking with senior UG Crips member Lynn Woods. Rogers told Woods that he (Rogers) had just shot a "Snoover" in the head. Mitchell added that he and Rogers had "`caught a Hoover slipping,'" and both defendants bragged that they had "`laid some Hoover down this morning.'" (A gang expert testified that "Snoover" is a derogatory term for Hoover and having "caught the victim slipping" means that a rival gang member had been caught off guard in his own territory.) Hartfield was released from custody a few hours after he gave this information.

Following the interview with Hartfield, officers put together three six-pack photographic arrays, which were shown to Lazaro on August 24. The target photographs in the arrays were of Rogers, Mitchell, and UG Crips member Ray Owens, respectively. The photograph of Rogers displayed only his head; it had been enlarged so that the plaid shirt he was wearing would not be seen. The photograph of Mitchell, who had turned 16 the week before the murder, had been taken in 1997. Lazaro did not make any identification from the array that had the photograph of Rogers. Viewing the next array, Lazaro stated that Mitchell "looks like" the person with the gun. He also told officers

110 Cal.App.4th 777

that another person in the array had the hair and cheekbones that resembled the person with the gun although he was not one of the perpetrators. Looking at the third array, Lazaro stated that the photograph of Owens also resembled the person with the gun but was not that person.

On September 10, 1999, Mitchell was arrested on an unrelated charge and a search warrant was executed at his home. Among other items, officers found four Winchester .25-caliber semiautomatic bullets (two of the .25-caliber casings found at the murder scene were Winchester brand) and a sheet of paper with writing that appeared to be lyrics of a rap song. The lyrics included the phrases: "`Caught off brand slipping'" and "`Put two in his brain.'" (The gang expert explained that "off brand" referred to a rival gang member.)

On September 11, Mitchell gave a statement to the police. Although he acknowledged his membership in the UG Crips gang and his gang's rivalry with the Hoovers, he disclaimed any knowledge of the murder. He also denied having been at the intersection of 106th and Budlong, a place he regarded as enemy territory. When asked where he had been at the time, Mitchell said he may have been in school or at the graduation of a fellow gang member. Mitchell further stated that the rap lyrics had been written shortly after his release from camp community placement on July 6,1999, and had nothing to do with the Drake murder the following August 20.

Meanwhile, officers assembled front and profile photographs of 12 individuals, including Mitchell and Rogers (Rogers was photographed upon being detained in a gang sweep), all wearing identical white Tshirts and standing against the same background. Ray Owens was not included in the group of 12 because officers had been unable to detain him. Other than Mitchell and Rogers, none of the subjects included in the three six-packs previously shown to Lazaro were included in the new set of photographs.

2 Cal.Rptr.3d 53

The photographs were shown to Lazaro on September 12. Lazaro identified Mitchell as the person with the gun. He tentatively identified Rogers, saying that he would be definite if the person were a bit heavier and had a different hairstyle.

Rogers was arrested on September 12, 1999, also on unrelated charges. He denied any involvement in or knowledge of the murder. He later stated that on the morning of the murder a Hoovers gang member shot at him from a car and that he had told his fellow UG Crips gang members about the shooting. Rogers also stated that he knew there had been "walkup shooting" on August 20 and that the "correct Hoover" had been killed. Rogers further admitted that he had gone to Roderick Hyatt's house on the day of the murder. When

110 Cal.App.4th 778

an officer said that it was unlikely that anyone could go into rival gang territory on foot, Rogers replied, "`That's exactly what they did. They walked over and they ran back.'" At one point during the interview, Rogers commented that "`[p]eople get murdered around here all the time'" and added, "`Why are you all doing this to me? Why me? Why this murder? Why do you have to solve this one?'"

On December 1, 1999, Lazaro attended live lineups that included Mitchell and Rogers. He identified both. A detective who attended the lineups testified that afterward Lazaro "came up to me, said `You should have done this the first time.' He said it was easy to make the identification[s]. That he was absolutely sure these were the suspects" and that Mitchell was the one with...