People v. Treadaway, A114560 (Cal. App. 12/2/2008)
| Decision Date | 02 December 2008 |
| Docket Number | A116069.,A114560. |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ERIC WILLIAM TREADAWAY and CHELSEA MARIE LOGUE, Defendants and Appellants. In re CHELSEA MARIE LOGUE, on Habeas Corpus. |
Appeal from the Alameda County, Super. Ct. No. H39527.
Chelsea Marie Logue and Eric William Treadaway appeal from multiple convictions of offenses including residential burglary, residential robbery, attempted murder and assault with a firearm. Logue's defense at trial was that she was forced by Treadaway to accompany him before and after the offenses. She contends that the trial court erred in excluding evidence critical to this defense and in denying her motions to sever her trial from Treadaway's; that there was insufficient evidence she knowingly aided and abetted the attempted murders and assaults with a firearm; that the trial court erred in admitting other crimes evidence; and that the trial court erred in failing to instruct the jury sua sponte on the defense of accident or misfortune. In a related petition for writ of habeas corpus, Logue contends she was denied effective assistance of counsel by her attorney's failure to obtain a qualified expert witness in time for trial.
Treadaway joins Logue's contention regarding the defense of accident or misfortune, and separately argues that the trial court precluded him from presenting a "claim of right" defense by limiting state of mind evidence to Logue; erred in giving a jury instruction on circumstantial evidence; erred in sentencing him to both an upper term and consecutive terms; and erred in failing to stay enhancements on two counts.
We affirm the judgment. Logue's petition for writ of habeas corpus is denied.
An amended information, filed on February 16, 2006, charged appellants with first degree residential burglary (Pen. Code, § 4591-count 1); two counts of attempted murder (§§ 187, subd. (a), 664-counts 2 [Jason Rossi] and 3 [Marcus Derry]); four counts of attempted first degree residential robbery (§ 211-counts 4, 5, 6 and 7); and four counts of assault with a firearm (§ 245, subd. (a)(2)-counts 8, 9, 10 and 11). In addition, Treadaway was charged with one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)-count 12). The information alleged that Treadaway personally inflicted great bodily injury (§ 12022.7, subd. (a)) in connection with counts 1, 2, 3, 4, 5, 6, 7, 8, and 10; personally used a firearm within the meaning of section 12022.5, subdivision (a), in connection with counts 1, 8, 9, 10 and 11, and within the meaning of section 12022.53, subdivision (b), in connection with counts 2, 3, 4, 5, 6, 7; personally discharged a firearm (§ 12022.53, subd. (c)) and personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) in connection with counts 2, 3, 4, 5, 6, and 7. With respect to Logue, the information alleged in connection with counts 1 through 11 that a principal in the offenses was armed with a firearm (§ 12022, subd. (a)(1)). Finally, the information alleged that Treadaway had suffered four prior convictions and three prior prison terms (§ 667.5, subd. (b)).
After a joint trial, the jury convicted Treadaway on all counts and found all the enhancement allegations true. The jury convicted Logue of all 11 counts with which she was charged and found the arming allegations true. On July 13, 2006, Treadaway was sentenced to a total prison term of 114 years eight months to life. On July 24, 2006, Logue was sentenced to a total prison term of 12 years.
Treadaway filed a timely notice of appeal on July 13, 2006. Logue filed a timely notice of appeal on July 27, 2006.
Prior to July 28, 2004, Jason Rossi2 had known Logue for about a year; they had been involved in a sexual relationship, but had had an argument and he had not seen her for a couple of days. On the afternoon of July 28, Jason was at home in Castro Valley when Logue called and asked to come over. Jason had been drinking beer since the morning and was feeling the effects of the alcohol. Also at Jason's house were his brother, Erick, and Erick's friends Marcus Derry and Ashley O'Callaghan. Erick and his friends had not been drinking alcohol or consuming other intoxicants.
About 20 or 30 minutes after Logue called, she came to the house and Jason answered the door. He saw a black Honda Prelude outside, still running. They walked to the car and Logue turned the car off by unhooking the battery. There was no one in the car and Jason did not notice anyone on the street. He and Logue returned to the house, Jason closed the door and believed he locked it. Jason went into the kitchen and saw Logue walk over to his brother, Erick, who was sitting in a chair in the family room. Logue appeared to give Erick a hug.
From the kitchen, Jason heard Erick say there was someone in the house. Jason went to see what Erick was talking about and, while standing where the kitchen met the family room, saw a person standing about 10 feet away, in the family room, wearing a mask and holding a gun. Jason laughed at the man, who appeared to be scared. He did not remember the exact sequence of events, but testified that he lunged forward and hit the man at least once, heard a gunshot and became aware he had been shot. He heard the man say something like "break yourself, get on the ground." Jason testified that he remembered the man said something about demanding money, but acknowledged that in a taped statement to the police in October 2004 he had said the man did not mention money, and that in his preliminary hearing testimony he did not say anything about money. Jason testified that he wrestled with the man, trying to fight him, "ended up shot again" and fell to the ground. He did not remember whether the man also fell down. At the preliminary hearing, Jason had testified that the man looked "spooked," he hit the man in the teeth before the first shot was fired, he hit the man more than once, the man fell to the ground and Jason jumped on top of him. Jason testified at trial that he exaggerated at the preliminary hearing because he was angry. Jason did not see Logue again after he observed her going to hug Erick. Jason acknowledged that at the time of trial he was on probation for three misdemeanor offenses and had a pending probation violation, but stated this did not influence his testimony. A sheriff's deputy who responded to the scene of the shooting testified that Jason told him Jacob Cowin might have been the shooter, but it was determined that Cowin was in custody at the time.
Erick testified that after Jason went to answer the door, he was gone for a while, so Erick went to the door and saw Jason holding up the hood of a black car. Erick returned to his chair and Jason came inside with Logue. Erick stood up to hug her and, as he was sitting down again, saw her walk toward the door. Five or ten seconds later, a man wearing a ski mask ran into the house with a handgun. The man stood between Erick and the television, pulled a gun out of his sweater and pointed it at Erick, sitting in the chair, and Derry and O'Callaghan, who were sitting on the couch. The man told them to "get on the ground." At trial, Erick did not remember the man also demanding money. Later on the day of the incident, however, Erick told a police officer that the man had said, "Get on the ground and give me your fucking money." In a taped statement to a different officer, Erick did not mention the demand for money, saying only that the man had directed them to get on the ground. A few days later, the first officer asked whether the man had asked for money and Erick replied in the affirmative. At the preliminary hearing, Erick testified that the man demanded, "Get on the ground and give me your fucking money."
Erick saw Jason run toward the man, who walked toward Jason and pointed the gun at him from about four feet away. Jason hit the man in the face and, simultaneously, Erick heard a gunshot. Erick testified that Jason was shot before he hit the man, although at the preliminary hearing he had testified that Jason hit the man, and there was a scuffle between them, before the shot was fired. Erick explained that he remembered things differently at the time of trial than he had at the preliminary hearing.
After the first shot, Erick saw Jason grab the man's arm, heard another shot and saw Jason fall down. Erick started to stand up and the man, about four feet away, pointed the gun at Erick's face and pulled the trigger. The gun did not fire, and Erick hit the man repeatedly. The man fell down onto his knees and elbows and Erick, continuing to hit the man, became aware of Derry kicking the man in the head. Erick heard a gunshot; Derry said "ow," jumped back and ran toward the front door. Erick ran upstairs to his room and opened the window, intending to jump out onto the roof. Out the window, Erick saw the black Honda Prelude he had seen Jason with earlier, and saw Logue sitting in the passenger seat. Erick saw the gunman walk quickly from the garage to the car and reach under the hood. Erick ran downstairs and outside, where he saw the Honda Prelude turning the corner up the street. He ran back inside to help Jason, called 911, and called his mother. Erick estimated that the entire incident, from when he first saw the gunman to when he ran upstairs, lasted no more than three minutes. Later, Erick saw the car at the police department and recognized a jacket found in the car as the one Logue was wearing on July 28. At trial, Erick identified a tan sweatshirt as the one the gunman was wearing.
Derry testified that after Logue gave Erick a hug, she "disappeared" and Derry saw the masked gunman jog from the hall into the family room. The man pointed the gun at everyone and demanded, "Everybody on the ground, give me your money." Jason ran...
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