Opinion
B190224
5-11-2007
THE PEOPLE, Plaintiff and Respondent, v. COREY STONE, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Pamela C. Hamanaka, Assistant Attorneys General, Paul M. Roadarmel, Jr. and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant and appellant, Cory Stone, appeals from the judgment entered following his conviction, by jury trial, for murder, possession of a firearm by a felon, possession of an assault weapon, and possession of cocaine base for sale, with firearm use and gang enhancements (Pen. Code, §§ 187, 12021, 12280, 12022.53, 186.22; Health & Saf. Code, § 11351.5). Sentenced to state prison for 50 years to life, Stone claims there was trial error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
On the morning of August 30, 2004, T.M. was in her car on 118th Street when she noticed a green Cadillac. The Cadillac "came southbound on Broadway, and it made a right-hand turn into the wrong lane, and the car just sat there, and [there] was a gentleman standing on the corner." After exchanging some words with the driver of the Cadillac, the pedestrian turned around to walk away. The driver pointed a handgun out the window and fired six to eight shots at the pedestrian, who fell to the ground.
All further calendar references are to the year 2004 unless otherwise specified.
T.M., who is black, described the gunman as a light-skinned black man with French braids. The French braids were growing out and getting frizzy, similar to defendant Stones booking photograph. T.M. testified she concluded the gunman was black from the combination of his skin color and his French braids. However, because she had not seen the gunmans face, she was unable to make an identification.
The victim, Eddie Woullard, suffered three gunshot wounds and died. Three shell casings and one bullet were recovered from the crime scene.
On September 3, at 1:00 a.m., Los Angeles police executed a search warrant at 10706 South Broadway, Apt. 1 (hereafter, "apartment one"), which had been under surveillance for suspected drug trafficking. Standing outside the apartment, the officers could hear someone inside playing a video game. When nobody responded to their knock notice, the officers forced the front door. Stone, the only person inside the apartment, ran into the bathroom, flushed something down the toilet and tossed a backpack into the bedroom closet before he was arrested.
In the living room, police found a video monitor sitting on top of a big screen television. The monitor was connected to three surveillance cameras which had been positioned in front of the apartment complex. A video game was playing on the television. A nine-millimeter Glock semiautomatic handgun was found tucked under a "futon couch bed." A set of car keys lying on a coffee table fit a green Cadillac parked outside. Inside the backpack that Stone had thrown into the bedroom closet, officers found a Tec 9 submachine pistol. Elsewhere in the apartment, they recovered a digital scale, a baggie containing marijuana, and 40 grams of cocaine base. In his pants pocket, Stone had a large amount of money and the keys to apartment one. Officers found two spent bullet casings inside the green Cadillac. Stones fingerprints were on the Cadillac.
A firearms examiner testified the shell casings found at the scene of the Woullard shooting and inside the green Cadillac had all been fired from the nine-millimeter Glock handgun police discovered under the futon in apartment one when Stone was arrested.
Officer Mark Arenas testified that, while monitoring apartment one for drug activity, he had seen a green Cadillac parked behind the apartment complex a month or so before the search. On September 3, the day after the search, Arenas arrested Jose Quiroz inside apartment one. It appeared to Arenas that Quiroz had been living in the apartment. Arenas testified it was common for gang members to sell drugs from a residence such as apartment one, and that more than one gang member might sell drugs from the same location. Gang members referred to such places as their "spot." Quiroz, who was subsequently convicted on drug charges, invoked his Fifth Amendment right not to testify at Stones trial.
The jury listened to tape recordings of Stones jail cell conversations. These conversations demonstrated Stone regularly sold drugs from apartment one and that he mistakenly believed the arresting officers had not been searching for drugs, but rather for evidence of the Woullard murder. He expressed concern about the murder, saying: "[T]he thing that is going to fuck me up cuz . . . is that hot one homie. Everything is pointing at me cuz. My car, they found two . . . casings in the thing, they got witnesses, everything pointing at me. Feel me? Light-skinned nigger with braids, green Cadillac. Everything pointing at me, cuz." Stone remarked he had only himself to blame for being the prime suspect: "But Im Bozo though, I need to go do some time, cause Im stupid . . . . Cause, I did some stupid shit. I was supposed to paint my car and stop driving that motherfucker and cut my hair, everything cuz." On the other hand, Stone indicated he was resigned to a long prison sentence: "I aint trippin though cuz. They give me life, fuck it. At least I know its for the gang, though."
Not only did Stone refer to apartment one as "my spot" but, apparently referring to what the police did after arresting him, Stone said, "They took my cameras, but they didnt take my Play Station . . . ."
Los Angeles Police Officer Patrick Flaherty testified as a gang expert. Woullard had been shot in territory claimed by the East Coast Crips gang. Apartment one was located in territory claimed by the 112 Broadway Gangster Crips gang. The East Coast Crips and the Broadway Gangster Crips were enemies, and a Broadway Gangster Crips member had been shot a month or two before the Woullard shooting. Woullard had been a member of the 118 East Coast Crips. Stone belonged to the Broadway Gangster Crips. The primary activities of this gang included drug sales, murders, robberies and assaults. Flaherty opined apartment one was a "spot," i.e., a place used by gang members to sell drugs.
2. Defense evidence.
Stone testified in his own defense. He was a member of the 112 Broadway Gangster Crips. On September 3, he was "covering for" Curtis Gilliam, a fellow gang member, by selling drugs for Gilliam in apartment one. Stone had done this only two or three times before. This drug selling "spot" belonged to Gilliam, who lived there with Joe Quiroz, another drug seller who was a member of a Mexican gang. Stone had been evicted from a different apartment a few days before his arrest, and since then he had been living with his grandmother. Gilliam had given Stone the keys to apartment one. The purpose of the surveillance cameras was to alert Stone should the police or some enemy approach apartment one. Stone had the Tec 9 to protect his money and drugs in case someone tried to rob him. When the police arrived to execute the search warrant, Stone went into the bathroom to flush drugs down the toilet, but he accidentally left some on the living room table. He admitted trying to hide the Tec 9, but he denied knowing anything about the Glock under the futon.
Two days before Stone was arrested, Gilliam asked if he wanted to buy the Cadillac. Gilliam said "he did something in the car so he wanted to get rid of it," and he advised Stone to paint it. Stone described Gilliam as a light-skinned black man who wore braids. Gilliam had died of cancer three months after Woullards murder.
Trying to explain away his jail cell statements about having done something stupid, Stone testified he had been "[t]alking about the drugs that I didnt flush." The following colloquy then occurred:
"Q Who told you to paint your car?
"A It was part of the agreement that I had with [Gilliam].
"Q And who told you to cut your hair?
"A My parole officer.
"Q Okay. Now, how did that conversation come about with your parole officer?
"A He said I looked like a thug. He was trying to clean up my act."
3. Rebuttal evidence.
Rafael Pineda, Stones parole officer, testified he never told Stone to cut his hair.
4. Proceedings.
Stone was jointly tried for the murder of Woullard and for drug and firearm charges arising out of his arrest at apartment one. During Stones testimony, he admitted the gun and drug charges, but denied the murder charge.
CONTENTIONS
1. The trial court erred by consolidating the charges for trial.
2. Stone was denied a fair trial because exculpatory evidence was not disclosed in a timely manner.
3. The trial court erred by precluding disclosure of an informants identity.
DISCUSSION
1. Consolidation was proper.
Stone contends the trial court erred by consolidating the murder case with the drug and firearms case. This claim is meritless.
a. Legal principles.
Section 954 provides, in relevant part: "An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or . . . two or more different offenses of the same class of crimes or offenses, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . ."
"`The law prefers consolidation of charges. [Citation.] Where . . . joinder is proper under section 954. . . . [d]efendant can predicate error in the denial of [a severance] motion only on a clear showing of potential prejudice. [Citations.] We review the denial of defendants motion for an abuse of discretion, that is, whether the denial fell " `outside the bounds of reason. "[Citation.] [Citation.]" (People v. Manriquez (2005) 37 Cal.4th 547, 574; see also People v. Maury (2003) 30 Cal.4th 342, 395 ["Because the statutory requirements for joinder were met, defendant can establish error only on a clear showing of prejudice."].) "A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process. [Citations.]" (People v. Stitely (2005) 35 Cal.4th 514, 531.)
"The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial. Thus, refusal to sever may be an abuse of discretion where `(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all; and (4) any one of the charges carries the death penalty. [Citation.]" (Frank v. Superior Court (1989) 48 Cal.3d 632, 639.)
"Cross-admissibility of evidence is sufficient but not necessary to deny severance. [Citation.] As the four-part test is stated in the conjunctive, joinder may be appropriate even though the evidence is not cross-admissible and only one of the charges would be capital absent joinder. [Citation.]" (People v. Manriquez, supra, 37 Cal.4th at pp. 574-575.) "Cross-admissibility is the crucial factor affecting prejudice. [Citation.] If evidence of one crime would be admissible in a separate trial of the other crime, prejudice is usually dispelled. [Citation.]" (People v. Stitely, supra, 35 Cal.4th at pp. 531-532, italics added.)
b. Discussion.
Stone argues consolidation was improper under section 954 because the cases were neither of the same class, nor linked in their commission. He further argues that, even if proper under section 954, consolidation should have been refused because it "resulted in the prejudicial joinder of a strong case with a much weaker case; and the spillover of highly inflammatory and prejudicial evidence of appellants drug-dealing and illegal weapons possession." We disagree.
Under section 954, " `[o]ffenses "committed at different times and places against different victims are nevertheless `connected together in their commission when they are . . . linked by a ` "common element of substantial importance" [Citations]." [Citation.]" (People v. Valdez (2004) 32 Cal.4th 73, 119; see People v. Pike (1962) 58 Cal.2d 70, 84 [where joint trial for accomplices armed robbery was proper, unrelated murder charge against one of them was also properly joined because same gun had been used in both crimes]; People v. De La Plane (1979) 88 Cal.App.3d 223, 251, disapproved on other grounds by People v. Green (1980) 27 Cal.3d 1, 39, fn. 25 [joinder of robbery with a subsequent murder was proper where murder victim was allegedly a robbery accomplice killed for cooperating with prosecutors].)
Here, joinder was proper under section 954 because there were significant common elements between the two sets of charges. Both involved Stones gang, the Broadway Gangster Crips. The evidence showed apartment one was being used by Stones gang as a place for selling drugs, and that Woullard, who belonged to a rival gang, had probably been killed in retaliation for the earlier shooting of a member of Stones gang. While Stones alibi for the murder was that Gilliam sold him the green Cadillac after using it to carry out the Woullard drive-by shooting, evidence in the drug/firearm case tended to impeach this alibi by showing Stone was trying to use Gilliams convenient death to minimize his own culpability.
Stone tried to capitalize on Gilliams death by making him out to have been both Woullards killer and the Broadway Gangster Crips member who usually sold drugs from apartment one. By claiming he had merely filled in for Gilliam two or three times, Stone tried to escape the fact that his own drug dealing at apartment one tended to connect him to the murder weapon. The evidence showing Stone regularly sold drugs from apartment one (e.g., his jail cell conversations in which he referred to "my spot," "my cameras" and "my play station") tended to strengthen the connection between Stone and the murder weapon.
Moreover, not only were the two sets of charges properly consolidated under section 954, but a consideration of the relevant factors demonstrates there was no clear showing of potential prejudice arising from the consolidation. (See People v. Manriquez, supra, 37 Cal.4th at p. 574; People v. Maury, supra, 30 Cal.4th at p. 395.) Cross-admissibility existed because crucial evidence used to prove the identity of Woullards murderer had been found by police when they executed the drug search at apartment one (see People v. Miller (1990) 50 Cal.3d 954, 988 [identity is a material cross-admissibility factor]), and the jail cell tapes provided substantial inculpatory evidence as to both sets of charges. Cross-admissibility, by itself, usually dispels prejudice. (People v. Manriquez, supra, 37 Cal.4th at pp. 574-575; People v. Stitely, supra, 35 Cal.4th at pp. 530-531.) Although the drug case evidence was overwhelming, the murder evidence was also very strong given Stones inculpatory statements on the jail cell tapes. Stone did not suffer a prejudicial spillover effect because the drug and firearm charges were less inflammatory than the murder charge, not more.
The trial court did not abuse its discretion by consolidating these charges.
2. Stone was not denied a fair trial because of discovery errors.
Stone contends he was denied a fair trial because the prosecution failed, in a timely manner, to turn over discovery in violation of Brady v. Maryland (1963) 373 U.S. 83 , and the trial court then refused to grant a continuance so Stone could investigate this new evidence. This claim is meritless.
a. Legal principles.
A new trial for failure to disclose evidence favorable to the defense is required only if there is a reasonable probability its disclosure would have affected the verdict. (See United States v. Bagley (1985) 473 U.S. 667, 682 ["A `reasonable probability is a probability sufficient to undermine confidence in the outcome."].) A defendant must show the undisclosed information was material, in the sense that its nondisclosure undermines confidence in the trial outcome, because "not every nondisclosure of favorable evidence denies due process. `[S]uch suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial. Consistent with "our overriding concern with the justice of the finding of guilt," [citation] a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial. [Citation.]" (In re Brown (1998) 17 Cal.4th 873, 884.)
"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Greene (1999) 527 U.S. 263, 281-282 .) "Materiality . . . requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction `more likely [citation], or that using the suppressed evidence to discredit a witnesss testimony `might have changed the outcome of the trial [citation]. A defendant instead `must show a "reasonable probability of a different result." [Citation.]" (People v. Salazar (2005) 35 Cal.4th 1031, 1043.)
"The granting or denial of a motion for continuance rests within the sound discretion of the trial court. . . . A continuance may be granted only on the moving partys showing of good cause. [Citation.] Such a showing requires, inter alia, a demonstration that both the party and counsel have used due diligence in their preparations. [Citation.] [¶] It follows that on appeal, a ruling on a motion for continuance is subject to review under the abuse-of-discretion standard." (People v. Mickey (1991) 54 Cal.3d 612, 660.) "When a continuance is sought to secure the attendance of a witness, the defendant must establish `he had exercised due diligence to secure the witnesss attendance, that the witnesss expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
b. Proceedings.
Stone complains the prosecution did not timely disclose a police report indicating "that Jose Quiroz — who was arrested the day after appellants arrest, for selling drugs at the same apartment — was the true name of Jose Ramirez, whose name was on the apartment lease." Stone argued in the trial court this late disclosure violated Brady because, by demonstrating apartment one had not been under his exclusive control, this evidence contradicted the prosecutions theory that the gun tucked under the futon was his. The prosecutor argued Stones prior defense counsel, who had been dismissed from the case after declaring a conflict of interest, knew about this evidence. In denying the Brady motion, the trial court concluded that, even if prior counsel had been unaware of the evidence, Stone himself knew about Quirozs existence. The trial court reasoned that even if Stone thought Quirozs name was Ramirez, he had an obligation to inform his attorneys about this man who allegedly had been sharing apartment one with Gilliam. When Stone then asked for a continuance in order to further investigate the new information, the trial court refused.
Stone now contends these rulings denied him a fair trial. He argues he "was entitled to discovery of the true identity of the person who had rented the apartment," and that this "information was directly relevant to the issue of appellants constructive possession of the drugs and weapons found inside the apartment, including the murder weapon." We disagree.
The prosecution never claimed Stone had been the only person using or living at apartment one. Rather, the prosecution theory was that apartment one was a drug-selling spot being used by various gang members, one of whom was Stone. Thus, the fact Quiroz also occupied apartment one did not undercut the prosecution case. The jail cell tape and Stones trial testimony demonstrated he knew Quiroz had been living in apartment one, even if he did not know Quirozs real name. In any event, Quiroz was unavailable to testify at Stones trial not because his whereabouts were unknown, but because he invoked his Fifth Amendment right not to testify. As for Stones suggestion the police report of Quirozs arrest could have led to exculpatory evidence because it mentioned other witnesses, this amounts to mere speculation and is insufficient to warrant reversal of Stones convictions. (See People v. Salazar, supra, 35 Cal.4th at p. 1043 [to demonstrate Brady violation "defendant instead `must show a "reasonable probability of a different result" "]; United States v. Flores-Mireles (8th Cir. 1997) 112 F.3d 337, 340 ["no duty to disclose evidence [under Brady that is] . . . speculative"].) For the same reasons, we conclude the trial court did not abuse its discretion by denying Stones request for a continuance.
Officer Arenas testified Quiroz appeared to be living in apartment one. Stone himself testified Quiroz lived in apartment one with Gilliam. The apartment manager testified apartment one had been rented by a Hispanic man who looked like Quiroz, not Stone.
For example, noting the police report named several witnesses who had been present when Quiroz was arrested, Stone argues that "[e]ven if Quiroz himself refused to testify," these "other potential witnesses . . . could have shed light on Quirozs connection with the apartment, including his knowledge, dominion and control over property therein, including the murder weapon."
We also reject Stones argument that, even if the Brady and continuance claims do not alone warrant a reversal, the cumulative effect of both errors does. Because we have found no errors, his claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
3. Trial court properly refused to disclose identity of a confidential reliable informant.
Stone contends the trial court erred by refusing to disclose the identity of the confidential reliable informant whose information led to the search warrant for apartment one. This claim is meritless.
a. Proceedings.
The search warrant affidavit prepared by Officer Arenas stated that, as part of his assignment to the Gang Enforcement Detail, he had been aware of ongoing problems involving the 112 Broadway Gangster Crips. Arenas said police had been advised by a confidential reliable informant that "gang members . . . from a Hispanic criminal street gang known as 36th Street Loco [were selling drugs from apartment one]. This gang is closely associated with the 112 Broadway Gangster Crips who claim the area, where the apartment building is located, as their `territory. " The informant reported having been inside the apartment four times when marijuana and rock cocaine were being sold. Officers established surveillance of apartment one and observed conduct consistent with drug selling. Subsequently, the informant reported having gone into apartment one during the last week of August and having seen a large amount of rock cocaine on a coffee table in the living room. At this time, the informant saw Stone and another person inside apartment one.
The trial court rejected Stones pretrial motion to disclose the informants identity on the ground there had "not been a sufficient showing of materiality." Stone contends this ruling was erroneous: "The informer was a material witness not only on the issue of the identity of the sellers who had dominion and control over the drugs inside the apartment; but [also] the issue of whether appellant knowingly possessed the murder weapon found hidden in a couch."
b. Discussion.
"[T]he prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of adducing ` " `some evidence " on this score." (People v. Lawley (2002) 27 Cal.4th 102, 159.)
Stone argues "[a]n informer who is an eyewitness to the possession and sale of drugs is a material witness on the issue of knowledge, dominion and control over drugs that are later found at the location where he or she made observations." But this is not always true; it depends on the particular circumstances of each case. (Compare Honore v. Superior Court (1969) 70 Cal.2d 162, 168-169 [informer, who saw four people at defendants apartment while defendant was being detained by police, was material witness because defendant claimed some third person brought illegal drugs into her apartment], People v. Perez (1965) 62 Cal.2d 769, 773 [informant, who saw marijuana in defendants hotel room shortly before their arrest, was material witness because defense claimed stranger who planted the drugs must have been the informant] and People v. Williams (1958) 51 Cal.2d 355, 359-360 [informant, who facilitated drug transaction between defendant and undercover officer, was material witness because defendant claimed the officer misidentified him] with People v. Wilks (1978) 21 Cal.3d 460, 469 [informant, whose tip merely led to defendants detention, was not material witness because police independently discovered drugs when the defendant consented to a search] and In re Benny S. (1991) 230 Cal.App.3d 102, 108-109 [informant, who advised police the defendant was selling cocaine and marijuana from his car, was not material witness where defendant ultimately charged with possessing marijuana police found in his pocket, not with the earlier drug sales].)
The lesson of these cases is that "an informant is not a material witness when ` "he simply points the finger of suspicion toward a person who has violated the law. . . ." [Citation.]" (People v. Wilks, supra, 21 Cal.3d at p. 469.) As Benny S. explained: "Had appellant been charged with the sales of marijuana witnessed by the informant, then disclosure would have been required. As to that conduct the informant was a percipient and material witness. But appellant was not so charged. As to the possession (for sale) of marijuana in appellants jacket pocket, the conduct with which appellant was charged, the informant was neither an `eye nor material witness." (In re Benny S., supra, 230 Cal.App.3d at p. 109.)
Stone was prosecuted for the drugs found in apartment one when the police arrested him; he was not prosecuted for anything the informant saw. Indeed, the search warrant affidavit does not say the informant saw Stone selling drugs, only that the informant saw Stone and drugs in apartment one at the same time. It was this information, in combination with police surveillance, that supported issuance of the search warrant.
Thus, the search warrant affidavit stated: "During the week of August 29, 2004, your affiant received information from Officer Luna that his C.R.I. entered 10706 South Broadway # 1 and observed a large amount of rock cocaine on a coffee table located in the livingroom [sic] of the apartment. He/she stated that a male hispanic and a male black 112 Broadway gang member known by the moniker of `C-Stone, inside [sic] the location. Your affiant knows `C-Stone to be Cory Stone."
Stones suggestion the informant might have seen someone else exercise dominion and control over the murder weapon amounts to mere speculation; the search warrant affidavit does not say anything about guns. As we noted in People v. Luera (2001) 86 Cal.App.4th 513, 526, a " `defendants showing to obtain disclosure of an informants identity must rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility. [Citation.]"
The trial court did not err by refusing to disclose the confidential reliable informants identity.
DISPOSITION
The judgment is affirmed.
We concur:
CROSKEY, J.
KITCHING, J.