People v. Therman

• Decision Date: 19 October 2021
• Docket Number: C091147
• Parties: THE PEOPLE, Plaintiff and Respondent, v. SHYLOW MENYON THERMAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
SHYLOW MENYON THERMAN, Defendant and Appellant.

C091147

California Court of Appeals, Third District, Sacramento

October 19, 2021

NOT TO BE PUBLISHED

Super. Ct. No. 18FE024651

RENNER, J.

A jury found defendant Shylow Menyon Therman guilty of first degree murder and found true allegations of robbery-murder special circumstances and firearm use. The jury also found that defendant had a prior serious felony conviction. The trial court sentenced defendant to life without the possibility of parole for special circumstance murder, plus 25 years to life for the firearm enhancement.

Defendant appeals, arguing the trial court prejudicially erred by (1) admitting law enforcement testimony identifying him in surveillance videos, (2) admitting expert testimony regarding firearms toolmark comparison, and (3) instructing the jury on

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alternative theories of murder pursuant to CALCRIM No. 548. We reject these contentions and affirm.

I. BACKGROUND

A. The Shooting

Joe and Doretha, husband and wife, drove to a small Sacramento shopping center on December 22, 2018, around 5:00 p.m. They parked their minivan and went into a Money Mart check cashing store.

Doretha cashed a check at the Money Mart. The couple then went to a liquor store next door, where they bought lottery tickets and beer.

Joe and Doretha returned to their minivan. Doretha sat in the passenger seat, counting her money. The passenger window was partly rolled down. A man wearing a light blue sweatshirt appeared at the passenger window and demanded the money. The man was holding a gun. The man and Doretha wrestled over her wallet.

A Money Mart employee heard yelling and looked outside. She saw a man wearing a blue hoodie standing by the passenger side of the minivan and "kind of wrestling" with Doretha. She did not see the man's face.

Joe ran into the Money Mart to ask for help. As he was opening the door, he heard a gunshot. He ran back to the car, where he found Doretha, "laid out." She was not breathing. Joe saw a man walking away into the darkness.

Joe ran back inside the Money Mart and asked the employees to call 911. Joe then remembered that he had a cell phone in his pocket. He called 911 within minutes of the shooting. He told the 911 operator that the shooter was an African American man wearing a "blue hoodie and black jeans."

Sheriff's deputies arrived and found Doretha slumped over in the minivan, with blood flowing from her mouth and nose. An autopsy would later reveal that Doretha died of a gunshot wound to the head.

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B. The Investigation and Arrest

Crime scene investigators processed the minivan and surrounding area. A .40 caliber Smith and Wesson cartridge casing was recovered from the ground near the passenger side of the vehicle.^[1] Video surveillance footage was collected from the liquor store and Money Mart.

Sheriff's detectives interviewed Joe around 9:30 p.m. on the night of the shooting. Joe described the shooter as an African American man in his 30s, with a slender face, pointy chin, and scruffy goatee. He estimated the shooter weighed between 180 and 200 pounds and stood between 5 feet 8 inches and 6 feet 2 inches tall. He recalled that the shooter was wearing a blue hoodie and black pants.

During the interview, Joe was shown video footage from a surveillance camera inside the liquor store. Joe recognized only himself and Doretha in the video. But he noted that another man in the video was wearing the same color blue as the shooter.

Defendant was arrested on December 26, 2018, four days after the shooting. A search incident to arrest uncovered a Glock semi-automatic .40 caliber handgun in defendant's waistband. The handgun was partially loaded and had a live round in the chamber. A search of a car registered to defendant's wife and parked outside defendant's home uncovered a dark-colored beanie similar to one worn by the suspect in the surveillance video.

Joe was asked to view a live lineup in May 2019, some five months after the shooting. The lineup included defendant, but Joe picked someone else.

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C. The Charges and Jury Trial

Defendant was charged by first amended information with first degree murder (Pen. Code, § 187, subd. (a))^[2] with a special circumstance, namely, that the murder occurred during the commission or attempted commission of a robbery (§ 190, subd. (a)(17)). The information further alleged that defendant personally used a firearm during the commission of the crime (§ 12022.53, subds. (b) - (d)), and that he had been convicted of a serious felony within the meaning of the Three Strikes law (§§ 667, subds. (b) - (i) and 1192.7). Defendant pled not guilty and denied the allegations.

Defendant was tried before a jury in November 2019. The prosecution's witnesses testified substantially as described ante. The jury also heard the evidence described post, which was admitted over defense objection.

Catherine Currier, a criminalist with the Sacramento County District Attorney's Office, Laboratory of Forensic Services, testified as an expert on firearms toolmark identification. Currier examined the gun found on defendant and determined that it was a Smith and Wesson Glock model 23, with a polygonally rifled barrel. Currier explained that a polygonally rifled barrel differs from a conventionally rifled barrel in the direction of twist and number of lands (raised areas) and grooves (depressed areas). Currier preliminarily examined the class characteristics of the cartridge casing recovered from the scene and determined that they were consistent with the gun.

Currier explained that the tools used to manufacture firearms, and ordinary use or damage post-manufacture, leave unique-or individual-marks on firearm components, such as the breech face and firing pin. These marks, Currier continued, can be transferred onto the surface of a cartridge casing in the process of firearm discharge. As a firearms examiner, Currier elaborated, she uses a comparison microscope to compare the marks on

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one or more cartridge casings fired from a gun of known origin, to one fired from a gun of unknown origin.^[3] If the marks are sufficiently similar, Currier said, she can conclude that the cartridge casings were fired from the same gun. According to Currier, this approach to firearms identification is generally accepted in the scientific community.

Currier test-fired defendant's gun, using unspent cartridges from its magazine. She then compared the test-fired cartridge casings with the recovered cartridge casing, making a photographic record of her observations through the comparison microscope. Referring to the photographs, Currier explained that three dimensional striations (or striae) could be seen on the breech face mark, firing pin impression, and firing pin aperture sheer of the test-fired cartridge casings, which corresponded to similar striae on the recovered cartridge casing. Based on her examination, Currier concluded that the test-fired cartridge casings and recovered cartridge casing were fired from the same gun. Currier noted that an independent firearms examiner had reviewed her work and agreed with her conclusion. Defense counsel declined to cross-examine Currier.

Sacramento County Sheriff's Detective Marcos Camacho was one of the several detectives assigned to investigate the shooting. Camacho testified that he became aware of a traffic stop photograph of defendant in the course of his investigation. Camacho went on to say that he spent approximately one hour with defendant following his arrest on December 26, 2019. During this time, Camacho said, he observed defendant's physical bearing and movements, and studied the contours of his face. Camacho also received and reviewed booking photographs of defendant and attended the preliminary hearing and live lineup, where he again observed defendant from various angles.

Camacho testified that he carefully reviewed the surveillance video from the liquor store, focusing on footage in which an individual can be seen moving towards the

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camera for five to 10 seconds. Camacho explained that he analyzed the video from the liquor store on a frame-by-frame basis, and examined still photographs from the video, which were shown to the jury. Camacho also observed that the beanie found in the car parked outside defendant's house was similar to one worn by the suspect in the surveillance video. Based on the foregoing, Camacho opined that the suspect in the surveillance videos was defendant. Camacho explained: "The height, the weight, the overall body structure, primarily the bone structure of his chin. He has a pointed chin. It's very unique. That's evident in the video and also evident when you are in person with the defendant."

Camacho also testified that he had reviewed surveillance video showing the outside of the Money Mart. Camacho opined that an individual shown standing near Joe and Doretha's minivan, and wearing a blue hoodie, was the same as the suspect from the liquor store video.

D. Closing Arguments and Jury Instructions

The parties' closing arguments focused on the identity of the shooter. The prosecutor argued that defendant saw Joe and Doretha in the liquor store and noticed that they were flush with cash from their trip to the Money Mart. It was then, the prosecutor argued, that defendant formulated a plan to rob them. When the robbery failed, the prosecutor continued, defendant decided to kill Doretha.

The prosecutor acknowledged that Joe had not been able to identify defendant in the live lineup. The prosecutor also acknowledged that one of the surveillance videos appears to have shown defendant leaving the liquor store and turning right, while Joe and Doretha turned left. Nevertheless, the prosecutor reminded jurors that Detective Camacho had studied defendant and identified him as the person in the liquor store video. The...