White v. Cal. Victim Comp. Bd.
| Decision Date | 17 November 2021 |
| Docket Number | B305678 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DE'WANN WESLEY WHITE, Plaintiff and Appellant, v. CALIFORNIA VICTIM COMPENSATION BOARD, Defendant and Respondent. |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCP02070, James Chalfant, Judge. Affirmed.
Kravis, Graham & Zucker and Thomas Ian Graham for Plaintiff and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri, Supervising Deputy Attorney General, and Barton Bowers, Deputy Attorney General for Defendant and Respondent.
After this court reversed for insufficient evidence De'Wann Wesley White's 2012 conviction for aiding and abetting the murder of Maurillo Ponce (People v. White (May 11, 2015, B249633) [nonpub. opn.]), White filed a claim for wrongful incarceration with the California Victim Compensation Board pursuant to Penal Code section 4900.[1] The Board denied the claim, finding White had failed to establish he was innocent of the crime with which he had been charged. The superior court denied White's petition for a writ of administrative mandamus to set aside the Board's decision. We affirm.
Ponce's body was found in a rural area of Lancaster in the early morning of October 7, 2008. He had been shot multiple times and bruises on his body were consistent with having been kicked or stomped while still alive. Five nine-millimeter bullet casings and one expended nine-millimeter bullet likely fired from a semiautomatic handgun, were found nearby. No other physical evidence related to the crime was recovered at the scene. The murder weapon was never found.
Three men were ultimately charged with the murder, White, Anthony Wayne Smith and Charles Honest. The prosecutor's theory was that Smith had arranged for the three men to meet with and kill Ponce in the Lancaster area. Smith was believed to be the actual killer, aided and abetted by Honest and White.
In a joint trial before separate juries, Honest was convicted of second degree murder as a direct aider and abettor; Smith's jury was unable to reach a verdict and a mistrial was declared. Honest's conviction was reversed by this court for insufficient evidence. (People v. Honest (Sept. 30, 2104, B242979) [nonpub. opn.].) At a retrial Smith's jury was again unable to reach a verdict on the charge of murdering Ponce but convicted him of three unrelated murders.
At his separate trial White was convicted of first degree murder on a direct aiding and abetting theory and sentenced to an indeterminate state prison term of 25 years to life. We reversed the conviction, agreeing with White the trial court had erred in denying his section 1118.1 motion for acquittal at the conclusion of the People's case-in-chief. The evidence of White's involvement in the murder, which we reviewed when reversing the conviction, consisted in large part of cell phone data that linked Smith, Honest, White and Ponce; White's statements during police interrogation; and comments made by White and his wife during a recorded telephone conversation while White was in custody.
Ponce, who lived in Lancaster, was self-employed as a truck mechanic and, using his commercial driver's license, also worked side jobs making truck deliveries. On the evening of October 6, 2008 Ponce borrowed his wife's SUV, explaining to her he was meeting someone named Tony near Santa Clarita or Valencia. Ponce left his home around 11:00 p.m. His wife called his cell phone several times later that night, initially getting no answer and then around 2:00 a.m. a busy signal.
Law enforcement learned from Ponce's cell phone call records that Ponce received a call around 11:00 p.m. the night of his death from a prepaid cell phone, registered with a false name and address, that was determined to be owned by Smith. The SUV Ponce had been driving the night of his murder was found in Smith's assigned space in the parking structure for Smith's apartment complex. Smith was in possession of the vehicle's keys when he was arrested. No fingerprints or other physical evidence connected White to the SUV. Firearms, nine-millimeter ammunition and an empty ammunition magazine for a handgun were found in Smith's apartment, but no nine-millimeter handgun.
The Los Angeles County Sheriff's Department began investigating White after deputies discovered a cell phone registered to White's business had exchanged several calls with Smith's and Honest's cell phones shortly before and after Ponce's death.
In his initial interview with sheriff's detectives in May 2010, White acknowledged he and Honest had worked together as longshoremen for several years. White initially denied working jobs with Honest and also said he was not familiar with the Lancaster area. He specifically denied being in Lancaster around 1:00 a.m. on October 7, 2008. He then said the only reason he would have been in Lancaster that night would have been to meet girls and denied ever being in Lancaster with Honest.
After being told Honest had recently been arrested on suspicion of murder, White said he may have heard from Honest about a job moving cargo in Lancaster on October 6, 2008. He denied Smith was involved. After detectives showed White records showing his cell phone had received calls from Smith's cell phone on October 5, 2008, White initially said he thought the calls were coming from Honest to discuss the potential job. He then admitted he knew Smith (but explained he was not as close with Smith as he was with Honest). White said he learned the job had fallen through during the late evening of October 6, 2008 or early morning of October 7, 2008 after he had arrived in Lancaster. He met Honest by an off-ramp of State Route 14 (SR-14, the Antelope Valley Freeway). Honest seemed upset but did not say why the job had been cancelled. In a subsequent interview in March 2011 White admitted the Lancaster job involved transporting stolen goods and said, when he met with Honest off SR-14, there was a male passenger in the truck Honest was driving.
After his initial interview with investigators White spoke to his wife in a recorded telephone call from jail. At one point his wife asked, "What are they charging you for?" White responded, "They, they trying to charge me with the murder, but, I don't know, he, he said that . . . he's going to check the DNA and if the DNA don't match than [sic] he's going to cut me loose tomorrow." A moment later White's wife asked, "You protect yourself when you eat, correct?" White responded, His wife continued, White replied, "Yeah." His wife persisted, "Correct?" And White assured her,
The People's cell phone expert opined at trial regarding the location of White's, Smith's, Honest's and Ponce's cell phones leading up to and following Ponce's death based on records from the men's cell phone networks. The lead investigator from the sheriff's department, Detective Robert Gray, provided a narrative concerning the likely movement of the cell phones on October 6 and 7, 2008.
Smith called White twice during the afternoon of October 5, 2008. Detective Gray testified based on the phone records White's phone was near Honest's house in South Los Angeles around 9:00 or 9:15 p.m. on October 6, 2008 and then moved toward Smith's apartment in Marina del Rey around 9:45 p.m. Shortly after 11:00 p.m. Smith's and Honest's phones travelled north along Interstate 405 and Interstate 5 to SR-14 in Santa Clarita. Around 11:07 p.m. Ponce's phone was still at his house when he received a call from Smith's phone. At 11:43 p.m. Smith's phone made another call to Ponce's phone. Detective Gray opined Ponce's phone had travelled south on SR-14 away from Ponce's home. Smith's phone had not moved.
At 12:53 a.m. on October 7, 2008 Ponce's phone made a call that indicated it was travelling north back toward Lancaster on SR-14. At 1:03 a.m. White's phone called Honest's phone; both phones connected to the same cell tower in Lancaster, which was approximately eight miles from the location where Ponce's body was found. White's phone again called Honest's phone a few minutes later. White's phone had not moved, but Honest's phone had connected during the call to a cell tower one mile closer to the murder scene.
At 2:02 a.m. Ponce's phone received a call and connected with a cell tower located near SR-14 and Red Rover Mine Road in Acton. At 2:04 a.m. one of Honest's two phones called his second phone, which connected to the same tower as Ponce's call two minutes earlier. Detective Gray opined that someone drove Ponce's SUV, which likely contained Ponce's cell phone, from the crime scene. The detective believed Smith and Honest were communicating with each other through Honest's phones, while one drove Ponce's SUV.
Thereafter, according to Detective Gray, White's phone travelled south in the same direction as Smith's and Honest's phones but several miles behind them. White's phone called Honest's again at 2:30 a.m. and once more at 3:00 a.m. when White's phone was in Inglewood. Based on the phones' locations during this period, Gray opined they were in the vicinity of Lake Balboa and the Sepulveda Basin Wildlife Reserve in Sherman Oaks. The phones contacted each other several more times during the early morning hours. Honest's phone called Smith's shortly thereafter when both were in Culver City.
Testifying in his defense White explained Honest spoke to him about a possible driving job that involved moving cargo loads...
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