People v. Tuggles

• Citation: 100 Cal. Rptr. 3d 820,178 Cal.App.4th 1106
• Decision Date: 29 October 2009
• Docket Number: No. C054250.,C054250.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOSHUA DANIEL TUGGLES et al., Defendants and Appellants.
• Court: California Court of Appeals

178 Cal.App.4th 1106

100 Cal. Rptr. 3d 820

THE PEOPLE, Plaintiff and Respondent, v. JOSHUA DANIEL TUGGLES et al., Defendants and Appellants.

No. C054250.

Court of Appeals of California, Third District.

October 29, 2009.

CERTIFIED FOR PARTIAL PUBLICATION^*

Sharon G. Wrubel and Jerry D. Whatley, under appointments by the Court of Appeal, for Defendants and Appellants.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SIMS, Acting P. J.—

A jury convicted defendants Joshua Daniel Tuggles and Tyrone Duwane Mollett of first degree murder (Pen. Code, § 187, subd. (a)),¹ found true the allegation that Tuggles committed the offense with a firearm (§ 12022, subd. (a)(1)), and that Mollett personally discharged a firearm resulting in the death of a nonaccomplice (§ 12022.53, subd. (d)). On appeal, defendants contend that the trial court erred by (1) failing to caution the jury about inferring consciousness of guilt from defendants' flight from the scene of the murder, (2) denying their joint motion for a new trial based on juror misconduct, and (3) denying their motions for access to jurors' telephone numbers and addresses.

Tuggles separately argues that (1) the trial court erred in allowing the hearsay statement of a witness who testified about hearing in the neighborhood that Tuggles "wanted to shoot up the block there on Charbono,"² (2) CALCRIM Nos. 318 and 335, when read together, gave the jury the mistaken impression that an accomplice's testimony could be corroborated by the same accomplice's prior out-of-court statements, (3) the cumulative effect of the prejudice from the errors he asserts requires reversal of his conviction, and (4) the fee for preparation of his probation report must be stricken due to his inability to pay.

Mollett separately argues that (1) the trial court erred in restricting cross-examination of Eugene Shands, who drove defendants to the location of the murder and testified as a witness for the prosecution, and (2) the fees for preparation of his probation report and his appointed attorney must be stricken because they were not actually imposed by the trial court.

In the published portion of the opinion, we explain why we shall affirm the murder convictions and firearm enhancement allegations. In the unpublished portion, we shall strike the fees for Mollett's probation report preparation and his appointed counsel. However, we will not disturb the probation report preparation fee imposed on Tuggles.

FACTUAL AND PROCEDURAL HISTORY

In June 2005, the Sacramento County District Attorney filed a consolidated complaint, later deemed an information, that charged Mollett, Tuggles, Shands, Jon Paul Mitchell, and Daniel Joseph Neves with murder (§ 187, subd. (a)). The information further alleged that all of the defendants were principals in the murder and committed the offense with a firearm (§ 12022, subd. (a)(1)). Mollett was charged with personal use of a firearm resulting in the death of a nonaccomplice (§ 12022.53, subd. (d)).

In December 2005, Shands pled no contest to voluntary manslaughter and admitted the firearm allegation. In exchange for testifying against the remaining defendants, Shands hoped to receive a four-year prison sentence.

Evidence adduced during the jury trial established that Adrian Romero, Steven Olivas, and Tuggles had been good friends until June 2004. They would sometimes hang out together at Olivas's house on Charbono Way. Tuggles lived with his family in a house located on Aramon Drive, which was about a block away from Olivas's residence. Daniel Neves lived next door to Tuggles. Neves shared his home with Mollett, Michael Nagy, Sara Cashmark, and her infant, Isaac.

Romero and Olivas became estranged from Tuggles after he backed down from a fight. Rather than fighting, Tuggles fell to the ground after being hit once. Tuggles stayed on the ground, having injured his leg while falling. Romero called Tuggles a "bitch," and the crowd that had gathered to watch the fight dispersed disappointedly. Afterward, Romero and Olivas stopped talking to Tuggles. Cassandra Bake stopped dating Tuggles.

People in the neighborhood soon started calling Tuggles a "bitch" because he "didn't do what he said he was going to do." Tuggles stopped hanging out on Charbono Way. Instead, he would drive by Olivas's house and "stare hard at them."

Beginning in November 2004, tensions developed and escalated between the Charbono and Aramon groups as they would slowly drive by each other's houses. The occupants of the cars would stare or yell at the people on the street, who responded in kind.

On December 10, 2004, Romero and his friend, Jerrel, argued with Tuggles's sister, Ashley, in front of Neves's home. Jerrel pushed Ashley to the ground. Cashmark had just gotten her infant to sleep and told them to quiet down. Romero ran up to her window and the two began a vulgar argument. Nagy came outside and started beating up Jerrel.

When Tuggles came home, he became upset upon learning that his sister had been pushed down. He paced back and forth. Two witnesses testified that Tuggles did nothing more, but another testified that Tuggles chased after Jerrel with a gun.

About 1:30 a.m. on December, 13, 2004, Romero and Jerrel returned to Neves's home—this time with Olivas. Romero wanted to talk about rumors that the two groups planned to "shoot up" each other's homes. A guest at Neves's home answered the door and invited them inside. Romero and Jerrel attempted to enter, but Cashmark told them to leave. Romero pulled a knife from his pocket and said they were there for some "clear up." Nagy and others pushed Romero and Jerrel outside. In the dark, there was much commotion. Olivas saw someone with a gun. Olivas urged Romero and Jerrel to leave. While they were walking away, someone fired about 10 gunshots into the air. Cashmark called the police, reporting that the shots were fired by Romero's group. The police found six expended nine-millimeter shells and one nine-millimeter bullet nearby.

In January or February 2005, Bake was at Neves's home when Tuggles "dedicated" a rap song with the lyrics "get our Glocks and blow your block away" to the group that hung out on Charbono Way. Bake further testified that Tuggles said that "on a Friday or Saturday night that they were going to go over there and just start shooting down the street" because that was when Romero and his friends usually spent time outside. Olivas testified that he had "heard in the neighborhood that [Tuggles] had said how he wanted to shoot up the block there on Charbono." Bake also heard Tuggles twice say that before he died, Romero would be dead.

Bake had several times seen Tuggles with a sawed-off shotgun he called his Elmer Fudd. Tuggles had sawed off the barrel with a hacksaw. He also modified the stock and added a pistol grip. Tuggles would sleep with the gun next to him.

In early March 2005, Tuggles drove by Olivas's house with Mollett and Neves. Olivas and his friends were playing basketball in the driveway when Mollett and Neves exited the car. Mollett and Neves challenged them to fight, but were told, "[O]ur beef is not with you, it's with [Tuggles], the driver." Mollett, Neves, and Tuggles eventually drove away without a fight.

In March 2005, Shands was having relationship difficulties with his girlfriend and had been staying at Neves's home. On March 20, 2005, Shands, Mollett, Neves, Nagy, and Cashmark were socializing, drinking, smoking marijuana, and using methamphetamine. Shands was high, which was not unusual. He had begun using cocaine daily in 1985, but switched to methamphetamine around 2001. Shands used methamphetamine on a nearly daily basis. That evening, he was under the influence of alcohol, marijuana, and methamphetamine.

Around 4:00 p.m., Olivas and Romero walked to the nearby Eco Liquor store. As they entered, they encountered Nagy, who had gone to the store to buy diapers for Cashmark. Romero attempted to talk to Nagy about rumors that Nagy wanted to shoot up the Charbono group. Nagy brushed him off, saying, "[N]o, not right now. I don't want to talk to you."

When Nagy returned home without diapers, Cashmark instructed him to go back and get them. Nagy said that some people had tried to jump him and he did not want to go back. Cashmark told Nagy to take someone with him to the store, and fight if necessary, but to come back with diapers.

Olivas and Romero spent the evening drinking beer with their friend, Regina Zamarron. Around midnight, Zamarron drove them back to the store to buy more alcohol. Olivas waited outside. Shands drove up in his Ford Bronco with Nagy, Neves, Mollett, and Tuggles. Tuggles waited outside while the rest of them entered the store. Olivas asked Tuggles, "What's going on?" Tuggles giggled a bit and responded, "I don't know."

Romero and Zamarron came out of the store and ran into the others. Romero wanted to fight, but the others declined. Olivas wanted to leave and avoid trouble. The two groups argued and called each other names. Zamarron saw one of the men from the Ford Bronco holding a knife at his side. Not wanting her friends to get hurt, Zamarron stepped in the middle and tried to stop them from fighting. When a police car drove by, everyone got into their cars to leave. Before leaving, Romero told Mollett, "I hope you don't think that I got punked." As they drove off, someone from Zamarron's car yelled, "[W]e are going to see you guys later." Everyone in the Bronco was "all fired up to fight."

When the Bronco returned to Neves's home, Nagy went to his room to relax by watching movies with Cashmark. Soon afterward, Jon Paul Mitchell and Tyler Ollum arrived.

When Zamarron's car drove by Neves's home twice within 20 minutes of the liquor store encounter, Mollett angrily exclaimed, "[W]e need to...