People v. Vines

• Decision Date: 24 May 2022
• Docket Number: A160961
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ROOSEVELT VINES, JR., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
ROOSEVELT VINES, JR., Defendant and Appellant.

A160961

California Court of Appeals, First District, First Division

May 24, 2022

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. 19CR009370

Banke, J.

Defendant Roosevelt Vines Jr. shot and killed Mario Thomas at the site of a "memorial" to one of defendant's friends who had been shot the preceding day. Defendant was convicted of first degree murder, being a felon in possession of a firearm, and attempting to dissuade a witness.

Defendant maintains the prosecutor committed misconduct during cross-examination and closing argument, and that his own counsel was ineffective in failing to object. He also claims no substantial evidence supports the jury's finding that the murder was premeditated and deliberate. Lastly, he asserts the court erred in imposing fines without determining his ability to pay. We affirm.

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BACKGROUND^[1]

In August 2018, defendant's friend, Esau Davis, was killed in the 7100 block of International Boulevard in Oakland. Defendant learned about the death the following day, and then went to a memorial spot near where Davis had been killed to try to find out what happened. He carried a gun "on the side of [his] pants."

Defendant testified he encountered Thomas, also a friend, at the memorial spot. Defendant asked Thomas" 'what happened yesterday with Esau.'" Thomas responded he did not know, but" 'word was Esau told on someone and that's what happened.'" Thomas told defendant to" 'be safe, '" and defendant responded he was" 'strapped.'" Thomas asked to see the gun. Defendant had felony convictions and did not want to be seen with a gun. He knew there were surveillance cameras at that location, so he turned away from the cameras before he "pulled [the gun] out to show him." According to defendant, he "pulled [the gun] out and the motherfucker just said pow. And then when it went off, I looked and I seen him drop. . . . [T]hat's when the panic and shit started happening, and I left." He testified he did not intend for the gun to go off.

Defendant drove to his sister's house, changed his clothes, and disposed of his old clothing and the gun in three separate garbage bags. He then drove to the home of his girlfriend, J.W. He testified he was "hysterical," and told her he" 'accidentally shot my partna, [Thomas].'" J.W. told defendant to calm down and take a shower and brought him bleach to get rid of the gunshot residue. According to defendant, the idea of using bleach to

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eliminate the gunshot residue was J.W.'s. He "wasn't even thinking about nothing like that really because [he] wasn't trying to hide or cover up."

Oakland police responded to the scene of the shooting after the "Shotspotter," which has microphone sensors that detect shots and calculates their geographic location, indicated a sound consistent with a single gunshot at about 3:43 p.m. near the 7100 block of International Boulevard in Oakland. When police arrived, they found a man, later identified as Thomas, next to a motorized wheelchair with a single gunshot wound to his head. He was pronounced dead at the scene.

Police obtained footage from multiple surveillance cameras near the time and place of the crime. The footage showed a man, later identified as defendant, driving toward the crime scene in a Buick. Defendant parked the car, got out and headed towards Thomas who was sitting in a wheelchair on the other side of a fence. He stood next to Thomas for 90 to 100 seconds, then turned away from the main surveillance camera. The footage showed defendant quickly walking away before Thomas fell face forward to the ground. Defendant then jogged back to the Buick and drove away.

Police began conducting surveillance on the Buick. After obtaining a warrant, police placed tracker devices on the Buick at traffic stops on September 5th and October 2nd. On October 6th, police stopped the Buick for a traffic violation and arrested defendant, the driver, on an out-of-county arrest warrant.

Oakland Police conducted a videotaped interview of defendant almost two weeks later. Defendant initially denied knowing anything about Thomas's shooting, denied knowing where he was killed, and denied talking to Thomas. After police showed him the surveillance video footage of the

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Buick at the scene, defendant admitted he was in the area and that Thomas and the wheelchair were there.

Defendant told the police he had heard that someone tried to rob Davis and that Thomas might have witnessed Davis's murder. Defendant admitted driving the Buick to the spot where Davis was murdered to figure out what happened to him. He never told the police he accidentally shot Thomas.

Police executed a search warrant at a home in Oakland where defendant stayed with his girlfriend, J.W. Her grandmother and a man named Jackie W. also lived there. Jackie W. told police J.W. told him defendant had" 'shot at somebody.' "

Police found indicia of ownership belonging to defendant in one bedroom, as well as nine-millimeter and .38-millimeter special ammunition, a box of .22 caliber ammunition and a .22 caliber firearm, and shotgun and rifle ammunition.

In May 2019, J.W. called police and said defendant shot Thomas. She left a voicemail for Sergeant Vass of the Oakland Police Department saying "this is pertaining to . . . Roosevelt Vines . . . Uh, he did it. . . . August 27, it was a Monday. Early day. 2018. I might have a bullet. . . . [B]ut his sister did something with the gun."

Sergeant Vass returned her call and told J.W. he would keep her name private. J.W. told Vass defendant came home on the day of the murder and changed his clothes. Defendant told her he had gone to the area of Davis's murder in the Buick and spoke with a man who might have information about it. The man was "disrespectful," so defendant shot him once in the head with a nine-millimeter gun. After the shooting, he went to his sister's house and threw away his clothes and the gun. J.W. helped defendant

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shower and sprayed him with bleach to eliminate the gunshot residue. J.W. gave Sergeant Vass a bullet.

In October 2019, J.W. learned that defendant knew what she had told police. She called the prosecutor and identified herself as a witness. She said she had heard defendant knew she "snitched on him," "which shouldn't have never happened because [she] wanted to be anonymous." She indicated she now felt her "life [was] in danger."

J.W. testified under a grant of immunity and as a hostile witness. Although she acknowledged earlier telling the police her life was in danger, at trial she testified, "I wasn't afraid. There's nothing to be afraid about." She also testified she "fabricated a story" when she talked to Sergeant Vass because she wanted to get defendant in trouble. She was angry at him because he told her he wanted to move out of state with another woman and take the child he shared with J.W. Defendant similarly testified that J.W. lied to the police about the shooting because she was angry with him because he cheated on her and was planning to take their baby and go to Las Vegas.

Defendant and J.W. visited while he was in jail and talked by phone. Not all their conversations were recorded because they whispered or, on one occasion, defendant motioned to J.W. to put down the hand set which recorded jail conversations. During their conversations, defendant told J.W.," 'I'm not going to slaughter your name.'" He testified that meant "she did whatever she tried to do; like she tried to throw me under the bus. I would never do that to her. . . . It's not worth it."

Defendant explained the "code" in Oakland is "You snitch, you'll get killed or something." He told J.W. to admit she had lied about the case to police, and to speak with his defense attorney's investigator, which she ultimately did. Defendant testified he "told her to . . . tell the truth, so she

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can tell what I really told her. Don't go and tell the police one thing and then turn around and just leave it like that."

The jury found defendant guilty of first degree murder (Pen. Code, §187), ^[2] unlawful possession of a firearm (§ 29800, subd. (a)(1)), and dissuading a witness (§ 136.1, subd. (a)(1)), and found true the enhancing allegation under section 12022.3, subdivision (d). The court sentenced him to 50 years to life, plus 3 years, 8 months, in state prison, DISCUSSION

Prosecutorial Misconduct

Defendant maintains the prosecutor committed numerous acts of misconduct, both during cross-examination and closing argument.

"' "A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such' "unfairness as to make the resulting conviction a denial of due process." '"' [Citations.]' "Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial."' [Citations.] 'When a claim of misconduct is based on the prosecutor's comments before the jury," 'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'"' [Citations.] Prosecutorial misconduct can result in reversal under state law if there was a 'reasonable likelihood of a more favorable verdict in the absence of the challenged conduct' and under federal law if the misconduct was not 'harmless beyond a reasonable doubt.'" (People v. Rivera (2019) 7 Cal.5th 306, 333-334.)

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Forfeiture

"' "[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard impropriety." '" (People v. Pearson (2013) 56 Cal.4th 393, 426.) "Where the defendant does not...