People v. Reynoso, B195118 (Cal. App. 10/2/2008)

• Decision Date: 02 October 2008
• Docket Number: B195118
• Citation: People v. Reynoso, B195118 (Cal. App. 10/2/2008), B195118 (Cal. App. Oct 02, 2008)
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE REYNOSO, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE REYNOSO, Defendant and Appellant.

B195118

Court of Appeals of California, Second Appellate District, Division Two

October 2, 2008

Not to be Published

Appeal from a judgment of the Superior Court of Los Angeles County, No. BA251579, Curtis B. Rappe, Judge. Affirmed.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.

CHAVEZ, J.

Juan Jose Reynoso appeals from the judgment entered upon his convictions by jury of first degree murder (Pen. Code, § 187, count 1)¹ and two counts of second degree robbery (§ 211, counts 2 & 3). As to all counts, the jury found to be true the special allegations that a principal personally and intentionally discharged a firearm in the commission of each of the offenses proximately causing death within the meaning of section 12022.53, subdivisions (d) and (e)(1), the offenses were committed for the benefit of, at the direction of, or in association with, a criminal street gang within the meaning of section 190.2, subdivision (a)(22) and, as to count 1, that the murder was committed while defendant was engaged in the commission of a robbery, a special circumstance within the meaning of section 190.2, subdivision (a)(17).² The trial court sentenced defendant to a life term without the possibility of parole plus 25 years to life on count 1, and to six years plus 25-years-to-life terms on both counts 2 and 3. The sentence on count 3 was made concurrent to the sentence on count 1, and the sentence on count 2 was stayed pursuant to section 654.

Defendant contends that (1) his first degree felony murder conviction should be reversed because the jury instructions erroneously permitted his conviction though the murder occurred after others had already committed the robberies and before he arrived at the scene; (2) he was deprived of a fair trial by the trial court's refusal to order the prosecutor to turn over discoverable material; (3) the trial court denied him a fair trial by erroneously denying his Pitchess³ motion; (4) the trial court erred in allowing the preliminary hearing testimony of a key prosecution witness for whose attendance at trial the prosecution failed to exercise due diligence; (5) there is insufficient credible evidence to sustain the convictions; (6) the prosecutor's sobbing during closing argument constituted misconduct depriving defendant of a fair trial; (7) CALCRIM instructions Nos. 358 and 359 were conflicting and ambiguous, depriving him of his constitutional rights; (8) the convictions must be reversed as the result of cumulative prejudicial errors; or (9) alternatively, the murder conviction should be reduced due to insufficient evidence of intent.

We affirm.

FACTUAL BACKGROUND

Prosecution Evidence

Quincy Wright

On the evening of February 24, 2002, Quincy Wright (Wright)⁴ and Gregory Damron (Damron), who knew each other from a downtown Los Angeles mission, took the subway to Hollywood to sell rock cocaine that Damron had in his pocket. Once in Hollywood, they asked a man on a bicycle, subsequently identified as "Scrappy" Herrera (Scrappy), a White Fence gang member, for a good place to sell cocaine.

After receiving directions, Wright and Damron went to a liquor store where Damron bought a drink. They then went around the corner so Wright could smoke cocaine. Before he could do so, Damron walked away, saying, "Let's go." Wright looked down the street and saw Scrappy and several other men approaching. As the men reached Damron and Wright, Scrappy asked what they were selling, and where it was. Wright showed the men his cocaine pipe and lighter, and Scrappy again asked where it was. Wright pulled from his pocket a bus ticket to Chicago and a couple of dollars. The men slapped the cocaine pipe from Wright's hand, took it and the bus ticket.

A fight began. Wright hit at least one person with his fist. He noticed a taller young man, wearing black pants walk by holding up his sweatshirt, displaying a gun at his waist. One of the men with whom Wright was fighting left Wright to approach Damron with the man with the gun. Wright heard Damron say to them, "I don't have nothing," "this is all," and "here." As Wright continued fighting with the other men, he heard a gunshot and saw a quick flash. Damron fell, and his attackers ran. Wright ran to a nearby restaurant to telephone police.

Danny Acevedo

As Wright and Damron were preparing to sell drugs in Hollywood, Acevedo⁵ was drinking and doing drugs in his apartment, on the corner of Harold Way and St. Andrews Place, with his half-brother Fernando Narvarez (Narvarez) who lived with him, defendant, defendant's brother, George, and Lerid Haaccann (Haaccann). All of the men were involved with the White Fence gang. Acevedo was involved in the gang's activities, but did not claim membership. He did allow the gang's members to use his apartment to sleep, "chill[]," smoke, drink and party, and became very close to defendant.

At some point in the evening, defendant, wearing gray sweatpants rolled up to his knees, and Haaccann went to a nearby liquor store to buy more beer. Fifteen to 30 minutes later, excited and out of breath, defendant returned. As he described what happened, he removed from his waistband a gun that Acevedo recognized as belonging to the White Fence gang. Defendant said that on the way to the liquor store he and Haaccann saw two Black males who appeared to be selling drugs. They approached the two men and asked if they were selling, because if they were, defendant intended to tell them they could not do so in White Fence gang territory. As they were talking, a car approached and three gang members jumped out. One immediately started swinging at the Black males, and a fight broke out. Defendant said that "Silent," who Acevedo assumed referred to gang member "Little Silent," pulled out and waved a gun. One of the Black men knocked Haaccann to the ground. One of the Black men ended up on the ground, and defendant put a gun to his head and shot him.

Fernando Narvarez

Narvarez corroborated his half-brother's story. When defendant returned to the apartment alone after the shooting, he was breathing heavily, had a gun, and was wearing a black sweatshirt and, as was his habit, gray sweatpants pulled up to his knees. Defendant said they became involved in a fight, and he shot someone.

At various times after the shooting, when Narvarez went with defendant to the liquor store, defendant would point to the place where he shot "that fool."

Narvarez denied cooperating with police to get his half-brother an early release from prison, but acknowledged the police contacted him and said that Acevedo gave them his number so "perhaps" Acevedo could get an early release.

Lerid Haaccann

Haaccann testified at defendant's preliminary hearing and trial under a grant of use immunity.⁶ He reported going to Acevedo's apartment on a February 2002 night where he ingested crack cocaine and drank beer. He brought with him a gun that he had been ordered to deliver and put it on a table.

Later that evening, he and defendant went to a liquor store at Hollywood Boulevard and St. Andrews Place to buy more beer. As they were walking, they met Scrappy, who was riding a bicycle. Scrappy told them that two guys were selling dope up the street. Haaccann saw two Black men near the side of the liquor store, appearing to be drinking beer and talking on the sidewalk.

After they spoke with Scrappy, Haaccann and defendant continued toward the liquor store. As they walked past the two Black men, White Fence gang members, including Scrappy, attacked the two Black men, and a fist fight ensued. Haaccann joined the fight, and one of the Black men came at him. Haaccann tried to grab the man, and someone punched Haaccann in the jaw, causing him to fall. Defendant came over and asked Haaccann what happened. Defendant then shot the man who had punched Haaccann, using the gun that Haaccann had delivered to Acevedo's apartment. Haaccann, defendant and the other White Fence gang members ran from the scene. Haaccann walked around a few blocks and then returned to Acevedo's apartment where he thanked defendant for saving his life.

Juan Andrade

Andrade did not appear for trial despite having been served with a subpoena. Consequently, his preliminary hearing testimony was read into the record.⁷ Andrade was in his apartment at approximately 9:05 p.m., on February 24, 2002, when he heard screaming outside and someone say something about selling dope "in their hood." He looked outside and saw five or six males beating up one person. As he walked out of his apartment, he saw someone's arm go up, apparently with a gun, and then heard one gunshot. The person he thought fired the shot was wearing a white t-shirt, a black baseball cap, and gray sweatpants that were rolled or bunched like shorts to the upper calf area. He could not identify defendant as the shooter. After the shooting, the shooter and other attackers ran. Andrade telephoned police, and told them that the assailants "dropped" the victim, and the other attackers started stomping on him. One took out the gun and shot him. He believed the attackers were gang members.

The Investigation

Detective Parry arrived at the crime scene after an ambulance had taken Damron to the hospital. He observed items of Damron's clothing, which had been removed by paramedics, and blood spatter on the sidewalk. A .380-caliber bullet casing and a paper bag were on the sidewalk. A wristwatch was also found at the scene.

Nine months after the shooting, Detective Parry showed Wright a photographic six pack lineup. Wright selected one of the photos as depicting the person he had seen on...