People v. Pardue

• Decision Date: 21 April 2014
• Docket Number: C064864
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. SHONN LYNN PARDUE, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. SHONN LYNN PARDUE, Defendant and Appellant.

C064864

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Filed: April 21, 2014

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 08F01893)

Defendant Shonn Lynn Pardue became upset over the breakup of a romantic relationship and violently lashed out at his former girlfriend, Dominique Griffin, her family, and a friend. A jury found defendant guilty of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)),¹ three counts of kidnapping (§ 207, subd. (a)), three counts of making criminal threats (§ 422), two counts of attempted criminal threats(§§ 664, 422), and unlawful possession of ammunition (former § 12316, subd. (b)(1)). The jury also found true three allegations of personal use of a firearm (§ 12022.5, subd. (a)[(1)]) and one allegation of personal infliction of great bodily injury (§ 12022.7, subd. (a)). Defendant was sentenced to 175 years to life plus a determinate term of 11 years four months.

Defendant appeals, contending (1) the prosecutor discriminated against African-Americans during jury selection (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)), (2) the trial court improperly excluded third party culpability evidence, (3) defense counsel was ineffective for failing to object to sanitizing the victims' prior convictions for impeachment, (4) the prosecutor committed misconduct in closing argument, and (5) the trial court made various sentencing errors.

We conclude there were sentencing errors and remand for resentencing, but otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A third amended information filed on March 3, 2010 charged defendant with the following offenses involving five victims committed on or about² March 2, 2008:

Count One - Assault with a firearm on Mikio Morris, with personal use of a firearm. (§§ 245, subd. (a)(2), 1203.06, subd. (a)(1), 12022.5, subd. (a)³.)

Count Two - Kidnapping of Mikio Morris, with personal use of a firearm. (§§ 207, subd. (a), 1203.06, subd. (a)(1), 12022.5, subd. (a).)

Count Three - Criminal threats against Mikio Morris, with personal use of a firearm. (§§ 422, 1203.06, subd. (a)(1), 12022.5, subd. (a).)

Count Four - Attempted criminal threats against Vivian Richardson. (§§ 422, 664.)

Count Five - Assault with a firearm on Mark McFadzean, with personal use of a firearm and personal infliction of great bodily injury. (§§ 245, subd. (a)(2), 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.7, subd. (a).)

Count Six - Kidnapping of Mark McFadzean, with personal discharge of a firearm and personal infliction of great bodily injury. (§§ 207, subd. (a), 12022.53, subds. (c)-(d), 12022.7, subd. (a).)

Count Seven - Kidnapping of Dominique Griffin. (§ 207, subd. (a).)

Count Eight - Criminal threats against Mark McFadzean, with personal use of a firearm. (§§ 422, 1203.06, subd. (a)(1), 12022.5, subd. (a).)

Count Nine - Criminal threats against Dominique Griffin, with personal use of a firearm. (§§ 422, 1203.06, subd. (a)(1), 12022.5, subd. (a).)

Count Ten - Criminal threats against D.W., with personal use of a firearm. (§§ 422, 1203.06, subd. (a)(1), 12022.5, subd. (a).)

Count Eleven - Unlawful possession of ammunition by a felon. (former § 12316, subd. (b)(1).)

The pleading also alleged two prior serious felony convictions from October 1997, assault with a firearm and first degree burglary. (§ 667, subds. (b)-(i), 1170.12.)

The Prosecution's Case

Defendant and victim Dominique Griffin had a romantic relationship that ended in February 2008 when defendant moved out of the home they had shared with their three-year-old daughter and Griffin's eight-year-old son and 15-year-old daughter, D.W.

In the early afternoon of March 2, 2008, defendant became upset when he could not find Griffin at her home and saw in her driveway the car of a man, Mark McFadzean,whom defendant believed was Griffin's new boyfriend.⁴ D.W. telephoned Griffin's mother, Vivian Richardson, and said defendant was at the house acting crazy. Richardson has known defendant since he was a child and knows him to be prone to "excited episodes." Defendant then phoned Richardson, said he was upset about the end of his relationship with Griffin and planned to vandalize the new boyfriend's car or have it impounded. Richardson asked her godson, Mikio Morris, to protect McFadzean's car by blocking it with her truck. Morris did so. Morris then walked down the street to get an ice cream. As he walked back toward the house, defendant met Morris in the driveway. He put his arm around Morris, pressed a gun in Morris's rib, and ordered him into Griffin's house, saying he did not want to shoot Morris outside. Inside, Morris saw defendant's two nephews, looking mad. At gunpoint, defendant questioned Morris about Griffin's whereabouts. Morris said he had had an argument with Griffin and had not spoken to her for about a month. Defendant demanded to check Morris's cell phone call history and threatened to shoot Morris if Griffin's number appeared. When Griffin's number did not appear in the cell phone, defendant wept and said he did not know where Griffin or their daughter was. Morris received a phone call from Richardson and told her that defendant was at the house with a gun. Defendant moved out of Morris's view, and Morris heard clinking sounds like the unloading of a gun. Defendant returned and showed Morris that the gun was unloaded.

Richardson, without calling the police, drove to Griffin's house. Defendant, crying and angry, said he was going to take his daughter, kill himself and everyone else. Richardson did not take the threats seriously and told defendant to stop talking crazy. She never saw defendant holding a gun at the house that day but she did see a revolver on a table.

Richardson said she would give defendant his daughter in exchange for defendant releasing Morris. Richardson testified she feared defendant might hurt Morris but believed defendant would not hurt his own daughter. Everyone drove in Richardson's van to her home, a short distance away. Morris went inside, got defendant's daughter and gave her to defendant. Defendant physically blocked Morris from getting back into the van, and Richardson told Morris to stay. Richardson drove defendant, his daughter, and his nephews to a grocery store and thereafter dropped them all off with defendant's sister, Nedra King. No one called the police at that time.

Richardson later received a phone call from Griffin, who was in Los Angeles. Richardson related what had happened. Griffin said to call the police. Richardson was reluctant because she did not want to get defendant in trouble, and having watched prior similar episodes of defendant, she did not believe his conduct was completely out of the ordinary. When Richardson eventually spoke with police, she said she had not called them because defendant threatened to kill everyone if she did. Her main motivation was to get defendant away from her family.

Griffin and McFadzean returned that night around 10:30 or 11:00 p.m. (according to Griffin) or between 9:00 and 11:00 p.m. (according to McFadzean). The security gate on Griffin's front door was locked. D.W. let them in. Griffin saw that her bedroom had been ransacked. As she walked through the house, defendant jumped out from behind a speaker, where he had been hiding. He had a gun in his hand and said, "I'm gonna fucking kill you." She picked up a phone. He pointed the gun at her, said, "Put the fucking phone down," and "I'm gonna kill you." She feared for her life and threw the phone down.

Defendant grabbed McFadzean around the neck from behind, hit him with the gun, pulled him into the living room and had him sit or kneel. McFadzean said he was Griffin's friend. Defendant said, "That's my fuckin' wife." Defendant got upset, yelling and screaming. D.W. came out of her room. Griffin testified that everyone was yellingand screaming, pleading with defendant to calm down. McFadzean, who is smaller than defendant, testified he was afraid for his life and kept quiet. Defendant kept pointing the gun back and forth, saying, "You guys, I'll fucking kill you." Griffin pleaded with defendant just to take her and leave everyone else alone. Defendant replied, "No, this mother fucker is my ticket to Oak Park."

Defendant grabbed McFadzean in a headlock with a gun to his head. Griffin, followed by defendant, who was holding McFadzean, went outside. Defendant told Griffin to drive. Defendant made McFadzean lie face down in the backseat of Griffin's car and held the gun to the back of McFadzean's head. D.W., who had insisted on accompanying them, tried to talk defendant down.⁵ Defendant directed Griffin to drive to his sister Nedra's home and honk the horn. No one came out. Defendant told Griffin, "Your daughter's in that house. Go get [her], go." Griffin knocked on the door but no one answered. Defendant started screaming for his sister to come outside, with no response. Defendant started shaking, rocking the car, and saying "This is what you want. This is what you want," and fired the gun, shooting McFadzean in the leg. Defendant jumped out of the car. Griffin ran to the back of the car and saw McFadzean's head hanging down outside of the car, with his legs still inside the car. Defendant, with the gun in his hand, said, "I'm gonna kill this mother fucker. I'm going to kill this mother fucker." Defendant's sister and niece came outside, distracting defendant. Griffin and D.W. got back in the car and drove off with McFadzean toward a hospital. Griffin called 911 as they drove. They stopped when they saw a...