People v. Sanders

• Decision Date: 29 May 1990
• Docket Number: B037473,Nos. B030989,s. B030989
• Citation: 221 Cal.App.3d 350,271 Cal.Rptr. 534
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sheldon SANDERS, Defendant and Appellant. In re Sheldon SANDERS on Habeas Corpus.

Page 534

271 Cal.Rptr. 534

221 Cal.App.3d 350

The PEOPLE, Plaintiff and Respondent, v. Sheldon SANDERS, Defendant and Appellant In re Sheldon SANDERS on Habeas Corpus.

Nos. B030989, B037473.

Court of Appeal, Second District, Division 7, California.

May 29, 1990.

As Corrected June 13, 1990.

As Modified June 28, 1990.

Review Denied Aug. 23, 1990.

[221 Cal.App.3d 357] R. Charles Johnson, San Anselmo, for defendant and appellant.

Rowan K. Klein, amicus curiae, on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., Roy C. Preminger and Sharon R. Wooden, Deputy Attys. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

A jury convicted appellant of second degree murder (Pen.Code, §§ 187, 189 )¹ and found true the firearm use allegation (§ 12022.5 and § 1203.06, subd. (a)(1).) Probation was denied and he was sentenced to state prison for a total term of 17 years to life. Appellant appeals on various grounds and also petitions for habeas corpus on the ground that he was denied his constitutional right to the effective assistance of counsel at trial. The proceedings have been consolidated for decision. We deny the petition and affirm the judgment.

PROCEDURAL AND FACTUAL BACKGROUND

Two families are entwined in these events, the Gregory and Sanders families. In 1985, when these matters occurred, Kelvin Sanders was married to but estranged from Raynetta Gregory Sanders. On occasion he would spend the night with her at the Gregory family residence, 2009 N. Slater Street in Compton.

On the morning of July 11, 1985, Kelvin Sanders was at the Gregory residence, having spent the night there. At around 10 a.m. appellant, Kelvin's brother, arrived to pick him up. Appellant was driving his sister's car, a burgundy BMW.

As Kelvin joined appellant in the car, two of Raynetta's younger brothers, Norman and David Gregory, approached the BMW and punched appellant. Each hit him once. When appellant, in retaliation, tried to run them down with his car, they threw rocks at the BMW, cracking its windshield. As appellant was leaving he said to Norman and David, "We'll be back. We're going to get you, motherfuckers."

About five minutes later another Sanders brother, Calvin, arrived at the Gregory residence looking for Kelvin. Learning Kelvin had departed with appellant, Calvin left.

Approximately 20 minutes later Raynetta received two short telephone calls from Kelvin who said she should get out of the house. She dressed her children and went next door.

About 20 minutes after the phone calls various witnesses heard what sounded like a gunshot. David, Terrell, and Norman Gregory and their friends Darryl Anderson and William Thomas all ran to the inside front door of the Gregory home. They all saw ² appellant in front of the house standing with a rifle. Raynetta, after she heard what sounded like a cherry bomb ran outside, looked towards her house, and saw appellant with a rifle.

With all five young men crowded around him, Norman Gregory opened the front door.

Appellant said "Come out now, motherfuckers."

Norman replied "Put the gun down. Let's go head up."

Appellant walked towards the Gregory front door, raised the rifle, pointed it at the door and fired. The gunshot fatally struck Norman Gregory in the back of the neck and exited his left jaw.

Appellant ran to the burgundy BMW, in which Kelvin and perhaps a third person were sitting, and left.

When the police arrived, before the ambulance, Norman was bleeding profusely. Some witnesses initially told the police that it was Xavier Sanders, appellant's brother, who had shot Norman, and one witness at first told them he wasn't sure who the shooter was.

The defenses were alibi, that the victim was shot from inside the residence, and that if shot from outside, Xavier Sanders was the shooter.

CONTENTIONS ON APPEAL

Appellant contends:

1. CALJIC jury instruction number 2.11.5 prejudiced appellant by creating the impression that the jury should not consider appellant's defense.

2. The prosecutor's comments appealing to juror passion and prejudice were misconduct requiring reversal.

3. The trial court erred in considering the "victim impact statement" contained in the probation report when sentencing appellant.

4. Appellant was denied the effective assistance of counsel when Mr. Jefferson failed to produce testimony from appellant's brother that he, not appellant, was the actual shooter, and again when Ms. Abramson declined to move for a new trial on that basis.

5. The trial court was under a sua sponte duty to order either a new trial or further factual hearings once it learned of Xavier's confession.

DISCUSSION

1. CALJIC jury instruction number 2.11.5 prejudiced appellant by creating the impression that the jury should not consider appellant's defense.

Over appellant's objection the trial court instructed the jury that, "There has been evidence in this case indicating that a person other than defendant was or may have been involved in the crime for which the defendant is on trial. [p] You must not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted." (CALJIC No. 2.11.5 (4th ed. 1979).)

Appellant argues that there was no evidence more than one person "was involved in the crime and that therefore "the instruction inferred [sic] that the jury should ... not discuss [ ] ... why appellant ... was being prosecuted for the death of Norman Gregory." In other words, appellant maintains, even if the jury believed appellant was not the person with the rifle or if they believed the victim was shot by some other person from inside the house, this instruction directed them to still convict appellant.

We disagree both with appellant's assumption and with his interpretation.

A trial court has a duty to instruct a jury "on the general principles of law relevant to the issues raised by the evidence." (People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390.) There was evidence that a person other than the shooter may have been involved in the crime. E.g., Kelvin Sanders was with appellant at the Gregory residence when appellant said "We'll be back. We're going to get you...." Then, at the time of the shooting many witnesses saw one or two other people in the burgundy BMW, the car appellant used. One witness, David Gregory, thought the other person in the car was Kelvin Gregory. Thus, there was an evidentiary predicate for the instruction. ³

Contrary to appellant's interpretation, the instruction did not impinge upon any of appellant's defenses. It merely directed the jury not to be distracted from its task of determining appellant's guilt or innocence by considering whether some uncharged person might, to some degree, be culpable.

We find no error in the giving of this instruction.

2. The prosecutor's comments appealing to juror passion and prejudice were misconduct requiring reversal.

Appellant cites the following examples of prejudicial prosecutorial argument: "There is a four inch gap spurting blood"; "... four-inch hole in his cheek"; "Again Norman is shot; he is laying down; there is a four inch gap in his neck. The ambulance never seems to get there."; "... 4 inch gap, spurting blood...."

Initially, we note that appellant made no objection to any of these prosecutorial comments and is therefore precluded from claiming error on appeal. (Evid.Code, § 353; People v. Green (1980) 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468.) The reason appellant, which is to say trial counsel, made no objection to these during-argument comments is no doubt because they are not objectionable. During argument counsel may "comment on the credibility of a witness in light of all the evidence presented." (People v. Prysock (1982) 127 Cal.App.3d 972, 997, 180 Cal.Rptr. 15.) That is what the prosecutor, by these relatively bland comments, was attempting to do.

Defense counsel had impeached prosecution witnesses by their inconsistent statements to the police. The prosecutor attempted to explain the inconsistencies by describing the circumstances: the witness's brother or friend had just been shot through the neck and jaw, was motionless on the ground, bleeding profusely, and no ambulance had yet arrived.

As the prosecutor himself explained in argument, "I did not mean to prejudice the case or prejudice the defendant in anyway when I bring up this four-inch gap. I'm not trying to appeal to your sympathy. The reason it's important is so you understand why witnesses might have made mistakes shortly after when the ambulance isn't even there. You shouldn't convict Sheldon Sanders because of a four-inch gap, but one of the things you have to consider, is it possible someone can really make a mistake when their brother has a four-inch gap, spurting blood and there is no ambulance that seems to be coming? That it is something you should consider."

The prosecutor's comments were proper.

3. The trial court erred in considering the "victim impact statement" contained in the probation report when sentencing appellant.

In accordance with California Rules of Court, rule 419 the probation report, which the trial judge read before imposing sentence, contained statements by members of the victim's family about the victim, appellant, and the crime. Appellant claims it was error for the report to contain these statements.

Appellant relies on Booth v. Maryland (1987) 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. Booth is distinguishable since it holds that the Eighth Amendment is violated when "victim impact" evidence is presented to a jury during the sentencing phase of a capital murder trial. None of the three emphasized factors were present here. Not only did Booth not disapprove the use of "victim impact" information by judges for sentencing purposes (id. at p. 507, fn....