People v. Roquemore

• Decision Date: 18 July 2008
• Docket Number: No. B171255.,B171255.
• Citation: 31 Cal.Rptr.3d 214,131 Cal.App.4th 11
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marcel ROQUEMORE, Defendant and Appellant.

31 Cal.Rptr.3d 214

131 Cal.App.4th 11

The PEOPLE, Plaintiff and Respondent, v. Marcel ROQUEMORE, Defendant and Appellant.

No. B171255.

Court of Appeal, Second District, Division 5.

July 18, 2005.

Certified for Partial Publication.^*

As Modified July 21, 2005.

Judith Kahn, under appointment by the Court of Appeal, Ukiah, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Lawrence M. Daniels, Yun Lee, and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Marcel Roquemore, appeals from his convictions for two counts of attempted murder. (Pen.Code,¹ §§ 187, subd. (a), 664.) The jury also found: the attempted murders were willful, deliberate and premeditated (§ 664, subd. (a)); defendant, a principal, personally used and discharged a firearm causing great bodily injury (§ 12022.53, subds.(b), (c), (d), (e)(1)); and the conduct promoted street gang activities. (§ 186.22, subd. (b)(1).) In the published portion of this opinion, we discuss whether defendant unequivocally asserted his right to counsel when interrogated on September 27 2002. We conclude the question defendant asked concerning an attorney on September 27, 2002, was equivocal. Hence, defendant's statements made on September 30, 2002 were properly admitted as evidence against him. (Davis v. United States (1994) 512 U.S. 452, 458-459, 114 S.Ct. 2350, 129 L.Ed.2d 362; People v. Gonzalez (2005) 34 Cal.4th 1111, 1122-1127, 23 Cal. Rptr.3d 295, 104 P.3d 98.)

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal. Rptr.2d 26, 919 P.2d 640; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) On September 27, 2002, Rodrigo Pineda and Martin Espinoza were sitting on the steps of an apartment building in Long Beach. Two Black men dressed in black sweatshirts approached them and asked, "Where are you from?" Mr. Espinoza said they were from "nowhere." Thereafter, the two Black men drew guns and began shooting. Mr. Espinoza fell forward after he was shot in the arm. Mr. Pineda turned to run away. Mr. Pineda heard about 10 shots as he ran. Mr. Pineda was shot in the back of both legs and his left foot. Mr. Pineda fell and blacked out after he was shot.

Long Beach Police Officer Matthew Esproles arrived at the shooting scene. Officer Esproles saw the two bleeding victims, who described the two assailants and said they had fled. Officer Esproles broadcast a description of the assailants as two Black males crossing Seventh Street, possibly into the park or school. Officer Esproles described the assailants as two African American men, one tall and thin and the other shorter. Both wore black clothing. Ten shell casings and three projectile fragments were found at the scene. Seven of the casings were .380 caliber and three were .40 caliber.

Police Officer Michael Bolling heard the radio dispatch regarding the shooting. Officer Bolling heard that the two assailants ran in the direction of Caesar Chavez Park. Based upon the facts and descriptions given, Officer Bolling went to an area of the park where local African-American gang members often congregated. Officer Bolling was familiar with the fact there had been numerous gang-related shootings between Hispanic and Black gangs in the area. Officer Bolling saw five to eight young Black men standing in front of a residence. Officer Bolling spoke with the men about what had occurred. Officer Bolling patted each man down. As he was speaking to the men, Officer Bolling saw a Black man dressed in dark clothing and a hooded sweatshirt. The man, who ultimately turned out to be defendant, was running in Officer Bolling's direction. Officer Bolling then made eye contact with defendant. Thereupon defendant turned around and ran back into an alley in the opposite direction. Officer Bolling alerted other officers by radio that defendant was fleeing.

Officer Sovanna Ly drove into the alley where the defendant had fled. Officer Ly saw defendant running in the alley. Officer Ly ordered defendant to stop. Defendant was then detained. Officer Ly noticed that defendant wore black pants and was holding a black sweatshirt. Defendant was sweating profusely and had a rapid heartbeat. Officer Bolling came to the patrol car where defendant was detained. Officer Bolling recognized defendant as the same individual who had fled into the alley. Officer Ly drove defendant to a nearby hospital, where individual field showups were conducted with the two victims. After being admonished, both Mr. Pineda and Mr. Espinoza identified defendant as one of the individuals who shot at them. Mr. Pineda later identified defendant in a live lineup and at trial as one of the two men who fired their handguns. Mr. Espinoza was unable to identify anyone at the live lineup or at trial. Detective Hector Guiterrez, who interviewed Mr. Pineda at the hospital immediately after the shootings, was present when the field showup of defendant was conducted. Detective Guiterrez testified as to defendant's appearance. Defendant had altered his appearance since he was arrested. At trial, defendant was more clean cut and well groomed. Defendant was wearing his hair in a shorter, thicker "Afro."

Defendant was arrested after being identified by the victims at the hospital. Defendant was advised of his constitutional rights while being driven to the police station. Defendant acknowledged that he understood those rights. Thereafter, defendant said he had recently been "jumped" by some male Hispanics. Defendant was again advised of his constitutional rights. Officer Ly then re-interviewed defendant. At one point, defendant was asked if he "tossed" the gun in the park. Defendant responded, "No." Defendant was asked who was the second "suspect?" Defendant said he did not know. Finally, defendant said he was confused.

Detectives Richard Birdsall and Scott Lasch interviewed defendant on September 30, 2002, regarding other shootings involving the local Black gang. This was three days after defendant's arrest. Defendant spoke willingly with them. Detective Birdsall asked defendant for the names of gang members involved in shootings at 20th and Pine Streets. Defendant gave Detective Birdsall five or six names, including Edward Crawford.

Detective Guiterrez had spoken to defendant on September 6, 2002. At that time, defendant identified himself as a member of the local Black gang. As noted, defendant was later interviewed by Detective Birdsall on September 30, 2002. On September 30, 2002, defendant indicated that he had been a member of the local Black gang, but no longer associated with gang members. Detective Mark McGuire had been assigned to the gang enforcement section of the Long Beach Police Department for six years. Detective McGuire was very familiar with the local Black gang. The local Black gang had approximately 800 to 1,000 documented members. Members often had tattoos depicting the gang letters and the clique or set to which they belonged. At the time of defendant's arrest in this case, he had three tattoos typically found on members of the Black gang. Detective McGuire testified that the primary criminal activities of the local Black gang involved vandalism, robbery, burglary, assault with a deadly weapon, attempted murder, murder, auto theft, forgery, fraud, kidnapping, residential robbery, and carjacking. On March 29, 2001, Dominique Beatty Oden, a member of the local Black gang, was convicted of first degree murder and attempted murder. On August 13, 2002, another member of the local Black gang, Santawn Atuanya Miller, was convicted of four counts of attempted murder and one count of murder. On December 24, 2002, Wallace Wendell Vaughn III, a member of the local Black gang, was convicted of first degree murder and eight counts of attempted murder.

According to Detective McGuire, the primary enemies of the local Black gang were members of a Long Beach based Hispanic gang. Conflict between the gangs was prevalent from 1995 to the time of trial in this case. During that time there were numerous murders and attempted murders between the gangs. When a gang member inquires, "Where are you from," it involves a challenge from one gang to another and typically occurs just prior to some type of violent action. The local Black gang was also known to target male Hispanics who were not necessarily gang members. The local Hispanic gang members often wear "Raider" colors or black jerseys with silver numbers. By targeting Latinos, the Black gang members gain an intimidation factor over Hispanic gang members and innocent citizens. According to Detective McGuire, this allows the Black gang to dominate the territory and continue criminal activities within the neighborhood. It also allows the Black gang to dictate the sale of drugs in the neighborhood.

A Black gang member who committed an attempted murder would bolster his reputation and status with the gang. Detective McGuire addressed the situation where a member of a Black gang had been beaten by male Hispanics. In that case, there would be an expectation that the Black gang would retaliate against the individuals who participated in the beating or simply attack any Hispanic person. Detective McGuire explained: the local Black gang in Long Beach often held meetings to discuss the crimes they were committing and assigned members to commit them; the local Black gang often assigned members who were similar in height, weight, and stature to commit crimes while dressed similarly in dark clothing; by doing so, they avoided capture and made it more difficult for witnesses to identify them; the gang members often wore baseball caps, knit...