People v. Onley, 011019 CAAPP2, B281919

Docket Nº:B281919
Opinion Judge:LAVIN, J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. ONLEY, Defendant and Appellant.
Attorney:Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Robert C. Schneider, Deputy Attorneys General, for Plaintif...
Case Date:January 10, 2019
Court:California Court of Appeals

THE PEOPLE, Plaintiff and Respondent,


MICHAEL J. ONLEY, Defendant and Appellant.


California Court of Appeals, Second District, Third Division

January 10, 2019


APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA387967 George G. Lomeli, Judge. Affirmed with directions.

Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.



This is defendant Michael Onley’s second appeal after he was convicted by a jury of the first degree murder of Andrew Todd Cherry and sentenced to life in prison without the possibility of parole. (See People v. Diaz (Apr. 15, 2016, B258629) [nonpub. opn.] (Diaz).) In the first appeal, we concluded substantial evidence supported Onley’s murder conviction, but we reversed his judgment because the trial court abused its discretion in denying his motion to represent himself at the sentencing hearing under Faretta v. California (1975) 422 U.S. 806 (Faretta). We remanded the matter for the limited purpose of providing Onley a new hearing on his Faretta motion. We also directed the court to strike Onley’s parole revocation restitution fine.

On remand, the court granted Onley’s Faretta motion. Onley subsequently filed a motion for a new trial, arguing, among other things, that: (1) the People violated his due process rights by failing to disclose certain items of evidence before trial; and (2) the prosecutor committed misconduct during her closing argument when she argued facts that Onley claims were not supported by the evidence. The court denied Onley’s new trial motion, reinstated Onley’s judgment, and re-imposed Onley’s sentence of life in prison without the possibility of parole. The court did not, however, strike Onley’s parole revocation restitution fine. We affirm the judgment with directions for the court to strike Onley’s parole revocation restitution fine.


The Prosecution’s Case-in-Chief

1. The burglary, robbery, and shooting

In January 2011, Donivan Diaz and Onley were living together, and Diaz was dating Porscha Chambers. On January 22, 2011, Chambers went to Diaz and Onley’s apartment.2 Ryan Whitmore, whom Diaz had met earlier that day, was also at the apartment. Diaz, Chambers, and Whitmore decided to go to a party. Diaz drove them to a gas station, where they met Andrew Todd Cherry. While Diaz and Cherry talked, Chambers went to a store across the street to buy a bottle of alcohol. Diaz, Chambers, and Whitmore then went to Cherry’s house to hang out before the party.

Cherry lived by himself, but he owned a parrot that talked. He sold clothes, electronics, and marijuana out of his house. When they arrived at Cherry’s house, Chambers, Diaz, and Whitmore drank alcohol and smoked marijuana, and Whitmore also smoked Phencyclidine (PCP).

While at Cherry’s house, Chambers allowed Diaz to use her phone to make several calls. Diaz became fidgety after using Chambers’s phone. Diaz then asked Chambers to go to the store to buy some blunts so that they could smoke marijuana. When Chambers returned about five minutes later, Diaz asked her to go back outside to grab something from his car, which was parked near Cherry’s house. When she went outside, Chambers saw Onley and Octivan Moore standing under a tree.

Chambers then received a call from Onley, who asked for Diaz. Chambers replied that Diaz was inside Cherry’s house. Onley and Moore then pulled hoods over their heads and walked toward the house. As Onley and Moore approached the house, Whitmore was trying to leave through the front door.[3] Onley and Moore tried to pull her inside the house with them, but she broke free. Onley and Moore then entered the house and closed the front door.

While Whitmore was outside, she heard what sounded like popping balloons, firecrackers, or gunshots. She then ran away from Cherry’s house, and Chambers tried to follow her. Chambers eventually stopped following Whitmore and returned to Diaz’s car. She then saw Diaz, Onley, and Moore leave the house carrying white bags or pillowcases that appeared to be stuffed with items. Diaz returned to his car, and Onley and Moore got into a different car. Diaz and Chambers then went looking for Whitmore. They found her outside of a nearby church, and Diaz told her to get into his car.

Diaz then drove Chambers and Whitmore to a party. Chambers and Whitmore stayed in the car while Diaz went inside for about 15 minutes. After leaving the party, Diaz dropped Whitmore off at a house and drove Chambers and himself to a motel room, where they met Moore who was with an unknown woman. After about 45 minutes, Moore and the woman left the motel room, and Diaz and Chambers stayed in the room until the next morning.

After leaving the motel, Chambers told Diaz that she was worried that her fingerprints would be found inside Cherry’s house. Diaz told her not to worry because he had “got it already.” During another conversation after they left the motel, Diaz told Chambers that he had returned to Cherry’s house on January 23, 2011, and found Cherry lying face-down on the ground. He also told her that “they” had robbed Cherry, that he had Cherry’s computer, and that “they” had killed Cherry’s bird because it talked too much.

2. The discovery of Cherry’s body

Before January 22, 2011, Cherry spoke to his family on a daily basis. However, between the evening of January 22 and the afternoon of January 24, 2011, Cherry did not speak to or contact any of his family members.

Cherry spoke to his mother every day; he took her to and from work and called her at night to check on her. Cherry last spoke to his mother around 8:30 p.m. on January 22, 2011. He also regularly spoke to his sister, brother-in-law, and brother, and he would often take his daughter to school in the morning.

Cherry and his family had planned to throw Cherry’s son a birthday party on Sunday, January 23, 2011. Cherry, however, never showed up to the party or told anyone that he was not coming. During the morning of January 23, 2011, Cherry’s mother tried calling him several times, but he never answered his phone. Cherry’s sister also tried calling him, but he did not answer her calls either. Cherry’s brother went to Cherry’s house twice that day, but Cherry never answered the door.

On Monday, January 24, 2011, Cherry was supposed to drive his mother to work and his daughter to school, but he never contacted either of them. His sister tried calling him that morning, but he did not answer his phone. His sister, brother-in-law, and brother then went to his house around noon.

All doors to Cherry’s house were locked, so Cherry’s brother and brother in law forced open the front door. They found Cherry, non responsive, lying face down in a puddle of blood, with his hands tied behind his back and his feet bound by a jump rope. Cherry had suffered seven gunshot wounds: four to the back of his head, one to his neck, and two to his legs. Nine expended.22-caliber bullet cartridges were found near Cherry’s body and throughout his living room. Blood had pooled around Cherry’s body, and there was blood on the ground in the living room, the kitchen, the hallway to a bedroom, and near the front door.

Law enforcement officers found no signs of forced entry at Cherry’s house, aside from the front door that Cherry’s brother and brother-in-law had forced open. The inside of the house, however, looked like it had been ransacked. Some of the furniture in the living room was overturned. A computer cable in the living room had been cut and the corresponding computer was missing. A dead bird with a broken neck was found in the kitchen, and some of the bird’s feathers were found in the living room. The officers also found a large amount of cocaine base, a white powder, a green leafy substance, and a digital scale in the living room.

Several fingerprints were found throughout the house. A fingerprint that matched Diaz was found on the frame to the front door, and two prints that matched Whitmore were found on a mug inside the house. Onley’s and Moore’s fingerprints were not found at Cherry’s house.

3. The investigation

3.1 The time of Cherry’s death

A coroner began examining the crime scene and Cherry’s body around 6:15 p.m. on January 24, 2011. Cherry weighed approximately 320 pounds at the time of the examination. The coroner observed that by the time he started his examination, the blood that had pooled around Cherry’s body had started to...

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