People v. Wright

• Decision Date: 15 December 2015
• Docket Number: A139881
• Citation: 196 Cal.Rptr.3d 115,242 Cal.App.4th 1461
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jennell Renee WRIGHT, Defendant and Appellant.

242 Cal.App.4th 1461

196 Cal.Rptr.3d 115

The PEOPLE, Plaintiff and Respondent,

v.Jennell Renee WRIGHT, Defendant and Appellant.

A139881

Court of Appeal, First District, Division 1, California.

Filed December 15, 2015

Ad Modified on Denial of Rehearing January 6, 2016

Certified for Partial Publication.^*

Dirck Newbury, by appointment of the Court of Appeal, Under the First District Appellate Project, Independent Case System, for Defendant and Appellant Jennell Renee Wright.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Assistant Attorneys General, Catherine A. Rivlin and Allen R. Crown, Deputy Attorneys General, for Plaintiff and Respondent People of the State of California.

DONDERO, J.

I. INTRODUCTION

Following years of strife between Jennell Wright and her former boyfriend, Le'Mar Green, some of it centered around their three-year-old son, defendant drove to Green's home, waited for him to return from work, and shot him three times. A jury convicted defendant of first degree murder with a special circumstance finding of lying in wait.

On appeal, defendant argues the trial court erroneously failed to instruct on self-defense, imperfect self-defense and provocation/heat of passion theories of voluntary manslaughter, and on provocation as a basis for the reduction of murder from first to second degree. She also argues the evidence was insufficient to support the lying-in-wait special circumstance finding, the court erroneously excluded defense evidence, and a juror's postings on Facebook constituted prejudicial misconduct. We affirm.

II. STATEMENT OF THE CASE

By first amended information filed July 28, 2011, the Contra Costa County District Attorney charged defendant, Jennell Renee Wright, with the special circumstance murder of Le'Mar Green while lying in wait (Penal Code,¹ §§ 187, 190.2, subd. (a)(15) ), and shooting at an occupied motor vehicle (§ 246) on February 23, 2010. The information alleged that she committed each offense while personally and intentionally discharging a firearm to cause great bodily injury or death. (§ 12022.53, subds. (b), (c), & (d).)

Jury trial commenced November 7, 2011, and was submitted to the jury on December 8, 2011. The jury was instructed on self-defense (CALCRIM No. 505 ); right to self-defense: mutual combat or initial aggressor (CALCRIM No. 3471 ); right to self-defense: may not be contrived (CALCRIM No. 3472 ); voluntary manslaughter-heat of passion (CALCRIM No. 570 ); voluntary manslaughter-imperfect self-defense (CALCRIM No. 571 ); and provocation: effect on degree of murder (CALCRIM No. 522 ).

During 10 days of deliberation, the jury made several inquiries.² One juror was replaced by an alternate, argument to the jury was reopened, and an Allencharge was given.³ On January 11, 2012, the jury found defendant guilty of shooting at an occupied motor vehicle, and further found she personally and intentionally used a firearm. (§§ 246, 12022.53, subds. (b) & (c).)

The jury reached no verdict on the murder charge and made no finding on the allegation she personally and intentionally discharged a firearm causing great bodily injury or death in the commission of the section 246 charge. The court declared a mistrial on that charge and allegation.

Jury trial before the same judge commenced January 22, 2013. The trial court solicited briefing on the preclusive effect of the section 246 conviction on self-defense and voluntary manslaughter issues. Subsequently, the court refused to instruct on self-defense, imperfect self-defense, provocation, and voluntary manslaughter.

On February 26, 2013, after one day of deliberation, the second jury returned a guilty verdict of first degree murder, found true the special circumstance that she killed while lying in wait, and the allegation she personally and intentionally discharged a firearm causing great bodily injury or death in connection with each substantive charge.

On July 26, 2013, the court sentenced defendant for murder and firearm use to life without the possibility of parole, plus 25 years to life. For shooting into an occupied vehicle and firearm use, the court sentence defendant to the midterm of five years, plus 25 years to life. The latter sentence was stayed pursuant to section 654. Defendant timely appeals.

III. STATEMENT OF FACTS

A. The Crime Scene

Pelican Loop in the City of Pittsburg is a secluded community of about 100 townhouses with five parking lots. On February 23, 2010, Barbara Gee returned to her home on the Loop at about 1:00 a.m. to find the body of her next-door neighbor Natasha's fiancé lying face down on the ground next to the driver's door of his car. Gee called the police. At 12:50 a.m., another resident of the Loop had been awakened by the sound of gunshots. The first shot was followed by a pause, then by two more gunshots that sounded as if they came from the parking lot. Shortly thereafter she heard a car drive out of the parking lot, pass her house going pretty fast, and turn onto Railroad Avenue.

Pittsburg police officer Jerald Lombardi arrived at Pelican Loop a few minutes after 1:22 a.m. A man's body was lying face down on the ground in the parking lot between two cars. His right hand was partially clenched into a fist. There was broken glass on the ground around the body. The car's driver's door was open and the driver's door window was shattered. There was broken glass on the floorboard and front seat, and a bullet fragment on the driver's seat. There were no signs of life. The driver's license in a wallet in the man's right rear pants pocket identified him as Le'Mar Green.

Green's feet were one to one-and-a-half feet from the open doorjamb. Lombardi found a pack of cigarettes and a single burned-out cigarette butt on the ground near Green. Liquid on the ground under Green's mouth smelled of beer. There was no blood inside the car.

The keys were in the ignition, which was in an "on" position, and Lombardi could hear an audible alarm sounding an alert that the car door was open while the keys were inside the car. The engine was not running. In the center console of the car was a cold beer can about three-quarters full. Green's cell phone was found in the car.

Approximately 10 feet from the body, behind the car, was a fully loaded speed loader containing six live rounds. Seven more live rounds were on the ground. The bullets in the speedloader were Hornady .38–caliber, Special rounds, hollow tip, as were the bullets found on the ground. No empty shell casings were found, indicating a revolver was used. No weapons or additional bullet damage to the car were found.

1. The Police Investigation

The City of Pittsburg has surveillance cameras in all the major intersections that feed information to a monitoring room at the police department, where the information is recorded by computer hard drive 24 hours a day, seven days a week. A police officer on monitoring duty at the station located seemingly relevant video footage. Still photos from that footage of the vehicles leaving the scene at approximately 12:51 a.m. that morning were taken to the investigating officers at the scene.

Green's fiancée, Natasha Griffith, was located and informed of Green's death. Griffith told police that defendant was the mother of Green's three-year-old son, that Green had been ordered to pay child support in November of 2009, that defendant had been asking Green for more money, and that she had been excessively phoning and texting Green. Griffith was transported to the Pittsburg Police Department, where she identified defendant from a picture the police showed her. They also showed her a picture of a car she did not recognize. She told police defendant drove a beat-up red or wine-colored automobile.

Green's mother, Lucinda Jackson, was summoned to the Pittsburg police station, where other family members were also gathered. Ms. Jackson told police the only person her son had problems with was defendant. She also identified defendant's mother's car at an intersection near Green's home in a picture the police showed her.

Police used DMV records to verify defendant's mother's car was a 1997 Toyota Avalon and matched it to the car in the surveillance video. When police later checked defendant's home in Vallejo, no one was home. Defendant's car was there, but her mother's Avalon was not. Police learned that defendant did not go to work on February 23.

Later, police inspectors learned defendant had been arrested for possessing a concealed loaded firearm at the Mar Ray motel on Railroad Avenue. Defendant had checked into the motel on February 22, 2010, after 10:00 p.m. Defendant did not appear intoxicated to the motel owner at that time.

The next morning, defendant did not check out despite several warnings. When she had not checked out by 2:30 p.m., the motel owner called the police. The responding officer told defendant she needed to leave. Defendant was moving slowly, and said she was feeling dizzy. She gathered her two bags and purse, and said her mother was coming to give her a ride.

Defendant sat outside to wait. A little while later, the motel's housekeeper reported to the motel owner that defendant had a gun. The motel owner again called the police and when the police responded shortly thereafter, he pointed out to them defendant's green Toyota Avalon. The cleaning lady pointed out live cartridges under the mattress in defendant's motel room. They were hollow-tip .38–caliber Special Hornady.

Defendant consented to a search of her belongings. Inside one bag was a small silver Smith and Wesson .38–caliber revolver containing six live rounds. Inside another bag were more live .38–caliber rounds. Defendant was arrested for possession of a loaded concealed firearm.

There were rounds of ammunition on the driver's seat of defendant's car, which was registered to Robbie Wright. Inside one of defendant's bags police found an Orchard Supply and Hardware sales receipt and inside her purse they found some handwritten notes, which read: "I got...