People v. Steen

• Decision Date: 22 October 2015
• Docket Number: A139526
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CORDARRYL STEEN, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. CORDARRYL STEEN, Defendant and Appellant.

A139526

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

October 22, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. 168348)

After a jury trial, defendant Cordarryl Steen was convicted of first-degree murder of Tuan Huu Hoang (Pen. Code, § 187, subd. (a).¹) The jury found not true related special allegations that defendant personally discharged a firearm (§ 12022.53, subd. (d)), and defendant, as a principal, was armed with a firearm (§ 12022, subd. (a)(1)). In a separate proceeding, the court found true allegations that defendant had served two prior prison terms within the meaning of section 667.5. At sentencing, the court struck the prior prison term allegations (§ 1385) and imposed a term of 25 years to life.²

On appeal, defendant raises three contentions of which we conclude two are without merit. Specifically, we reject defendant's argument that a reversal is required because he was convicted on a legally impermissible theory of murder. We also find thatthe trial court properly denied defendant's motion to suppress a bullet surgically removed from him and police observations and analyses done on the bullet. However, we agree with defendant that he is entitled to a new hearing on his renewed motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Accordingly, we shall conditionally reverse the judgment and remand for a new Pitchess hearing.

FACTS

The District Attorney filed an information charging defendant with one count of first-degree murder of Tuan Huu Hoang (§ 187, subd. (a)), together with related special allegations that during the commission of the murder defendant personally discharged a firearm (§ 12022.53, subd. (d), and defendant, as a principal, was armed with a firearm (§ 12022, subd. (a)(1)). The charge and related firearm-use special allegations arose from an incident that occurred in the late hours of December 18, 2010, and into the early morning hours of the next day. At a jury trial, the following relevant evidence was elicited.

The victim, Hoang, lived together with Nghiep Ton and Luyen Pham, as tenants at a residence on International Boulevard in Oakland. On the evening of December 18, all the tenants were present at the residence. Hoang's friend, Maurice Howard, was also there to view Hoang's new medical marijuana growing operation. Howard and Pham decided to pick up some crack cocaine. As Howard opened the front door to leave, three African-American men tried to force their way inside. Howard got the door shut, but he could not lock it. The three men rushed inside and "a gun battle ensued." During the gun battle, two of the men who had entered ran out of the house. The third man, wearing a baseball cap, and Hoang, continued to struggle and exchanged gun fire. The third man turned and began to run away while Hoang was in a prone position on the floor. As he fled, the third man turned around "to fire," grab[bed himself] in his mid region somewhere," and fired, hitting Hoang in the head,³ and Hoang then fired "a last shot."The gunshot fire illuminated the third man's profile. Howard got a clear view of the man's profile, and in court, Howard identified the third man as defendant.⁴ Following the shooting, defendant fled the residence.

Ton called 911. Before the police arrived, Howard retrieved Hoang's .40-caliber pistol from the floor. Howard went outside and put the gun in the wheel-well of a car that was parked on the street. The police, however, saw Howard secrete the gun and recovered it. The gun was loaded with six live rounds in its magazine. Inside the house, the police found Hoang lying on his side in the front room. A couple of bullet casings and a bullet were found under Hoang. Five spent bullet casings were recovered: one .40-caliber casing and four .25 caliber casings.

Later that morning on December 19, defendant's girlfriend, Dasai Harris, learned that he had sustained a gun shot wound.⁵ She drove defendant to a hospital in San Leandro, and defendant was later taken to Eden Hospital. During surgery at Eden Hospital, a doctor extracted a .40-caliber bullet from defendant's body. A ballisticsexpert testified that the bullet was the same caliber as the gun that the police had retrieved from the car wheel well. But, the expert could not say definitively whether the bullet was fired from that gun. All of the .25-caliber casings found at the scene had been fired from the same gun.

Several months after the shooting defendant was arrested for murder and he was questioned by Oakland Police Sergeant Sean Fleming. The interview was recorded on a DVD and played for the jury. During the interview, defendant said that on the day he was shot he lived with his mother in an apartment building on "Gardner Street" in Hayward. He also reported that on the day he was shot another man had also gotten killed on Gardner Street.⁶ Defendant stated that as he was walking home he "[g]ot caught in the crossfire" shooting between people coming out of his apartment building and people in a passing car. Defendant was taken to the San Leandro Hospital by a man who lived in the apartment next door to defendant's apartment. On the way to the hospital, defendant called Harris and told her that he had been shot. Defendant denied he had been shot "on 90th," claiming he "wasn't over there." Defendant also denied that he had killed anyone.

DISCUSSION

I. Sufficiency of Evidence to Support First Degree Murder Conviction

In this case the jury was instructed on the theories of first-degree murder (premeditation and deliberation) and felony murder. Defendant makes no substantive argument challenging the sufficiency of the evidence to support a conviction on the felony-murder theory. He contends only that there was insufficient evidence as a matter of law to support a verdict on the premeditation and deliberate murder theory. Hisargument is premised on the assumption that the jury's "not true" findings on the personal firearm-use allegations demonstrates that the jury found he was not the actual shooter. Not so. Howard's trial testimony, during which he identified defendant as the shooter acting under circumstances evidencing the necessary premeditation and deliberation, constitutes substantial evidence supporting a guilty verdict on that theory. (People v. Miranda (2011) 192 Cal.App.4th 398, 407, citing Evid. Code, § 411 and People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508 [testimony of one witness is sufficient to support verdict]; see People v. Smith (2005) 37 Cal.4th 733, 741 [the act of shooting toward a victim at close range in a manner that could inflict a mortal wound is sufficient to support an inference of intent to kill and is not dependent on a further showing of any particular motive to kill the victim]; Ibid. [" ' "the fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance" ' "]; People v. Arias (1996) 13 Cal.4th 92, 162 ["if the jury found defendant's use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance"].) "[T]he jury's 'not true' finding on the personal firearm use [allegations] may be logically inconsistent with a finding that defendant was the direct perpetrator of the charged offense[], but, . . . the inconsistency is not grounds for reversal" as there was substantial evidence to support the verdict based on the theory of premeditation and deliberation murder. (People v. Miranda, supra, at p. 407.)

Because the record does not reflect that the jury was presented with an impermissible theory of murder, defendant's claim of error fails.

II. Denial of Motion to Suppress Bullet Surgically Removed from Defendant and Police Observations and Analyses Done on the Bullet

A. Relevant Facts

Before trial defendant filed a written motion to suppress (1) the bullet taken from his body during a surgical procedure performed several weeks after the shooting and (2) the police officers' observations of the bullet after its removal and the results of anyanalyses conducted on the bullet. The motion was based on defendant's assertion that the bullet had been illegally seized without a warrant in violation of his Fourth Amendment rights. The prosecution opposed suppression on the grounds that the surgical removal of the bullet was not a governmental search and defendant did not have a reasonable expectation of privacy in the removed bullet.

The following evidence was presented at the hearing on the motion to suppress evidence. Oakland Police Sergeant Sean Fleming testified that at about 2:00 a.m. on December 19, he was at Eden Hospital investigating an unrelated homicide. He received a radio call informing him that Oakland police officers had responded to the scene of a shooting on International Boulevard in Oakland. He was later informed that a man, subsequently identified as defendant, had walked into San Leandro Hospital. Defendant had sustained a gunshot wound in his chest.

Thereafter, at 3:49 a.m. on December 19, Fleming went to the location of the International Boulevard shooting. Inside the residence, Fleming observed two pools of blood in the room where the shooting had occurred, about four feet from the location where the victim's body lay after he had been shot. Fleming also observed two shell casings, which he recognized as two different calibers; however, only one...