People v. Tanks, B196752 (Cal. App. 10/30/2009)
| Decision Date | 30 October 2009 |
| Docket Number | B196752 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DOMINIQUE TANKS, Defendant and Appellant. |
Appeal from a judgment of the Superior Court of Los Angeles County, No. NA065616, Joseph E. DiLoreto, Judge. Affirmed.
Law Offices of James M. Hodges, James M. Hodges; The Cochran Firm and Al F. Amer for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the official Reports
Defendant Dominique Tanks appeals from the judgment entered following a jury trial in which he was convicted of first degree murder with firearm discharge findings. Defendant contends the trial court erred by holding an evidentiary hearing in his absence, denying his motion to exclude statements he made to the police, and refusing to let a defense surrebuttal witness testify. We affirm.
On the night of December 2, 2004, defendant exchanged gunfire with security guard Noe Fernandez outside of the grocery store that employed Fernandez. Fernandez suffered two bullet wounds and died. Defendant, who was 16 years old, was shot three times on the legs and once in the abdomen. Ballistics evidence, recordings from security cameras, eyewitness testimony, clothing and bullets found in the car in which defendant arrived at the hospital, and defendant's own statements and testimony established defendant's identity as the person who shot Fernandez. (Defendant attempted to tell—and have his girlfriend tell—the police a false story about being shot during a road rage incident.)
Ilalia Benfield, who was dating defendant at the time of the shooting, testified that defendant once told her he was a member of a Crips gang in Long Beach. In defendant's bedroom the police found a newspaper article referring to gang members who had been killed. Someone had written on the article and circled several of the photos included in the article, including that of John Butler. Officers found in defendant's room a separate photograph of Butler wearing a Pittsburgh Steelers hat and making a gang hand sign. They also found a photograph of defendant in which he was making a Rollin' 20's Crips gang hand sign and photographs of other people making hand signs for the same gang. Officers also found a Pittsburgh Steelers jersey in defendant's room. The prosecution's gang expert testified that the Rollin' 20's Crips gang identified with the colors of black and yellow, and that they often wore Pittsburgh Steelers garb. The expert had never encountered defendant and could find no information in any police database indicating defendant was a gang member or associate. Nonetheless, the expert opined that defendant either was a member or was going on his first mission to become a member of the Rollin' 20's Crips gang and that the charged crime was gang-related within the meaning of Penal Code section 186.22, subdivision (b). (All further statutory references pertain to the Penal Code unless otherwise specified.)
Defendant testified that he was at the scene of the shooting to meet a girl. The gun he was carrying in his waistband dropped down inside his jeans and ultimately fell out on the ground. Defendant reached to pick up the gun and Fernandez shot him. Defendant tried to flee, but Fernandez kept firing, so defendant returned fire. Defendant denied that he was a gang member.
Defendant's original trial resulted in a hung jury and a mistrial.
The jury at the retrial convicted defendant of first degree murder and found that in the commission of the offense, defendant personally and intentionally fired a gun, causing death (§ 12022.53, subd. (d)). The jury found that a gang enhancement allegation was not true. The court sentenced defendant to prison for 50 years to life.
Defendant filed a timely appeal. The attorney appointed by this court to represent defendant on appeal filed a no merit brief under People v. Wende (1979) 25 Cal.3d 436, 441. Defendant then substituted retained counsel, who filed a supplemental opening brief raising specific issues on the merits and seeking reversal of defendant's conviction. This court deemed the appeal to no longer be a proceeding under the strictures of Wende, deemed the supplemental opening brief to be the opening brief, and directed the Attorney General to file a responsive brief. We now resolve the issues raised in the supplemental opening brief and have not independently reviewed the record as we would if this had remained a Wende appeal. (Id. at p. 442.)
Defendant contends that the trial court violated his constitutional and statutory rights to be present during trial proceedings when it ruled upon his motions in limine in his absence on November 6, 2006. (All further date references pertain to 2006, unless otherwise noted.) The court's minute order for that date indicates defendant was in lock-up, but not in the courtroom. The court first discussed scheduling matters with counsel, then addressed defendant's four motions in limine: to prevent the prosecution's gang expert from testifying to defendant's intent and to exclude a newspaper article found in defendant's bedroom and defendant's statement to Officer Matthew Whybrew and his subsequent statement to Detectives Daniel Mendoza and Scott Lasch. Counsel argued the motions but introduced no evidence regarding any of them. The court denied the motions to exclude the newspaper article and defendant's statement to Detectives Mendoza and Lasch and deferred ruling upon the permissibility of the gang expert's testimony regarding defendant's intent, pending the introduction of sufficient evidence establishing that defendant was a gang member. Defense counsel informed the court that he wanted an Evidence Code section 402 hearing on the motion to exclude the statement defendant made to Officer Whybrew. Counsel agreed to have the evidentiary hearing that afternoon, but for reasons that do not appear in the record, the hearing was not conducted until the next day. Finally, the court and counsel discussed the witness list.
Defendant was present in the courtroom when proceedings resumed on November 7. The court addressed defendant: Defendant replied, "Yes."
The court then conducted an evidentiary hearing at which Officer Whybrew testified, as described in the next section. The court denied defendant's motion to exclude the statement he made to Whybrew.
The Sixth and Fourteenth Amendments of the federal Constitution, article I, section 15 of the California Constitution, and Penal Code sections 977 and 1043 establish a defendant's right to be personally present at his trial. (People v. Wallace (2008) 44 Cal.4th 1032, 1052.) A defendant does not have a protected right to be present at every proceeding, only those in which his or her presence either bears a reasonable and substantial relation to the opportunity to defend against the charges or would contribute to the fairness of the procedure. (Ibid.; People v. Harris (2008) 43 Cal.4th 1269, 1306.) Sections 977 and 1043 require the defendant's presence or a written waiver only when the aforementioned standard has been met. (Wallace, supra, 44 Cal.4th at p. 1052.) Defendant must show that a violation of the right to be present resulted in prejudice or violated the right to a fair and impartial trial. (Ibid.)
The proceedings on November 6 involved only legal arguments and trial management discussions. No evidence was taken and nothing that was discussed was a matter to which defendant could have personally contributed. Defendant's presence would not have made any difference in the outcome of any matter discussed, and was thus neither substantially related to his opportunity to defend nor likely to have contributed to the fairness of the proceedings.
Also, defendant agreed to let the court conduct proceedings in his absence. Because defendant had no protected right to be present at the November 6 proceedings, his oral waiver was effective.
Defendant contends that the trial court erred by denying his motions in limine to exclude the statements he made to the police at the hospital on the grounds they were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We address each of the statements in turn.
Defendant sought to exclude his statement to Officer Whybrew because the officer did not advise him pursuant to Miranda, supra, 384 U.S. at page 444. Before interrogating a person who is in "custody or otherwise deprived of his freedom of action in any significant way," the police must first warn the person "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Ibid.) Statements obtained in violation of this rule may not be used to establish guilt. (Ibid.)
Whybrew was the only witness at the Evidence Code section 402 hearing regarding the statement defendant made to him at the hospital. Whybrew testified that the police dispatcher directed him and his partner to go to Memorial Hospital, where a gunshot victim was being treated. Whybrew knew that there had been a shooting around an hour earlier at Willow and Baltic and that officers were searching for a...
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