People v. Swinney

• Decision Date: 17 November 2020
• Docket Number: B299452
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CARL SWINNEY, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. CARL SWINNEY, Defendant and Appellant.

B299452

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

November 17, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA450026)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Carl Swinney was convicted of the first degree murder of Daren Clark with a felony murder special circumstance. On appeal, he contends his conviction should be reversed due to insufficiency of the evidence, inadequate jury instructions, erroneous evidentiary rulings, prosecutorial misconduct, and improper ex parte communications by the court clerk. He further argues the felony-murder special-circumstance finding must be stricken on the basis of instructional error and because the special circumstance fails to sufficiently narrow the class of persons subject to the enhanced penalty. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Larry Williams worked at a Los Angeles laundromat. Williams typically stayed overnight at the laundromat and opened the business in the morning. On April 8, 2016, Williams worked at the laundromat in the morning and returned for the night at 11:45 p.m. Williams found the door to the laundromat unlocked, which was unusual. Williams's coworker Daren Clark was responsible for locking the door when he left after work. The laundromat's storage room was not visible from the entrance to the laundromat. When Williams entered the storage room, he found Clark's body on the concrete floor.

Clark died from multiple blunt force trauma to the head; he suffered a subdural hemorrhage, indicating the head trauma was severe. He had sustained five separate lacerations to his head and scalp, each of which represented a strike or blow. Clark had injuries to both sides of his scalp, multiple abrasions on both sides of his face, bruises on his face and head, and lacerations inside his mouth. He had abrasions on his hands and legs in the areas where he was bound with plastic ligatures referred to aszip ties. His position, face-down and bound, may have hastened his death but did not cause it. No other possible causes of death were identified during Clark's autopsy. Clark's death was determined to be a homicide.

Inside the laundromat, an ATM had been severely damaged: According to Williams, "Somebody broke in it and just ripped [it] off like peeling a banana." The ATM's locked exterior door had been pried open, and there were pry marks on a slot where the money was dispensed. There were also pry marks on a coin exchanging machine affixed to the laundromat wall. The recording system for the laundromat's security cameras, mounted in the storage room, was missing.

Drops of Swinney's blood were found on the floor adjacent to the ATM, on the interior surface of the ATM door, and on some currency left inside the machine. Clark's DNA was found on one of the plastic ligatures that bound him. A rubber work glove was found in the parking lot immediately outside the laundromat door, but the DNA recovered from it was insufficient for analysis.

Swinney was arrested and placed in a monitored jail cell with a police operative posing as another arrestee; their conversation was recorded. Swinney told the operative the incident was a "lick," meaning a robbery. Swinney took credit for the crime, stating it was his idea and not his co-participant's plan. Clark "wasn't supposed to die," Swinney said. They had tied Clark up with his arms and feet together. Swinney said he did not know how Clark died, as "[unintelligible] only hit the [n----] in the head a couple of times. Fuck, that fool dead."

The operative commented, "[Y]ou must have a fucking hard-ass punch if you [unintelligible] punch somebody in the head."

"Crazy," responded Swinney.

The operative said, "So it was fast. It wasn't like you had time to get out. It was just one hitter quitter."

"Yeah," Swinney said.

"Not that serious," said the undercover operative.

Swinney agreed it was "not that bad but . . . it's just the way that n---- was."

Swinney told the operative he had checked on Clark, and there was "no response." Swinney said he had stolen the recording system from the laundromat, so he was confident the police had no camera images of him.

Swinney said he "robbed the ATM" and cut himself in the process, causing himself to bleed substantially. After the police collected his DNA, Swinney told the operative, "It's over, bro. They got me."

Swinney and codefendant Issac¹ Eaton were charged with first degree murder (Pen. Code, § 187, subd. (a)),² with the special circumstances allegations that the murder was committed in the course of a robbery (§ 190.2, subd. (a)(17)(A) and in the course of a burglary (§ 190.2, subd. (a)(17)(G)). The defendants were separately tried.

At trial, in addition to the evidence above, the prosecution presented evidence Swinney was a self-admitted member of a gang engaged in a pattern of criminal activity including murder, firearms possession, graffiti and vandalism, possession for sale of narcotics, shootings, and prostitution. An expert witness testified about specific convictions of other members of the gang to serve as predicate offenses for the gang enhancement. The expert witness testified the evidence did not support a conclusion the crime here was committed for the benefit of or at the direction of a gang.

Swinney declined to testify, and the defense did not present an affirmative defense. The jury found Swinney guilty of first degree murder and also found the murder was committed while Swinney was engaged in the commission of "the crime of robbery and/or burglary within the meaning of Penal Code Section 190.2[, subdivisions] (a)(17)(A) and (G)." The jury found the gang enhancement allegation not true.

Swinney was sentenced to life imprisonment without the possibility of parole (LWOP). He appeals.

DISCUSSION

I. Sufficiency of the Evidence

Swinney acknowledges participating in the incident at the laundromat that led to Clark's death but contends the evidence was insufficient to support his conviction of first degree felony murder. A person may be convicted of first degree felony murder for a death occurring in the course of a limited number of felonies, including burglary and robbery, if (1) the "person was the actual killer"; (2) the person aided or abetted the commission of murder in the first degree; or (3) the "person was a major participant in the underlying felony and acted with recklessindifference to human life." (§ 189, subd. (e).) The prosecution proceeded under both the first and third theories. The primary theory was Swinney was the actual killer, and the alternative theory was Swinney did not inflict the fatal blow but was guilty of first degree murder because he was a major participant in the underlying crime and acted with reckless indifference to human life. The evidence was sufficient to permit a reasonable jury to find beyond a reasonable doubt Swinney committed first degree felony murder under either theory.

" '[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be . . . to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.' [Citation.] ' "When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' [Citation.] A reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] '[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.' [Citation.] We do not reweigh the evidence or resolve conflicts in the testimony when determining its legal sufficiency. [Citation.] Rather, before we can set aside a judgment of conviction for insufficiency of the evidence, 'it must clearly appearthat upon no hypothesis whatever is there sufficient evidence to support [the jury's finding].' " (People v. Garcia (2020) 46 Cal.App.5th 123, 144-145 (Garcia).)

A. Actual Killer

Presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, we conclude there was sufficient evidence from which a reasonable juror could find Swinney was Clark's actual killer. During Swinney's recorded conversation with the undercover operative, Swinney either agreed with or did not dispute the operative's statements implicating Swinney as the person who personally struck Clark with the blows that caused Clark's death. " 'Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.' (Evid. Code, §...