A159128
Cal. Ct. App.Mar 3, 2021Background
- Appellant Dontae Allen was charged with murder, robbery (later dismissed), and being a felon in possession of a firearm; a jury convicted him of first-degree murder and felon-in-possession; sentence 50 years to life plus concurrent term.
- Surveillance showed Allen entering the victim’s car shortly before the victim was shot; the victim was found with fatal gunshot wounds and .40-caliber casings in the car.
- The victim’s diamond-studded black watch and wallet went missing after the killing; the victim’s wife had last seen the watch the day before.
- Police recovered Allen’s phone at the scene; texts showed he had arranged to buy a .40 Glock earlier and included an January 31 “I’m broke” message and a February 13 text about needing money for child support.
- At trial Allen admitted getting into the victim’s car but claimed the victim dropped him at his own car; surveillance contradicted that. On appeal he challenged admission of the watch testimony, admission of financial texts, sufficiency of the felony-murder instruction, and several prosecutorial remarks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of victim’s watch testimony under Evidence Code §1105 (habit) | Watch testimony was relevant to infer victim wore the watch that night and thus that the killer intended to steal it | Wife’s testimony did not show a sufficiently regular habit to permit inference the victim wore the watch that night | Court affirmed admission: testimony supported inference (habit/custom analysis) and trial court did not abuse discretion |
| Admissibility of texts referencing Allen’s finances (poverty/motive) | Texts showed immediate need for cash near time of killing, supporting motive for robbery | Texts largely remote or not showing acute financial distress; admission was prejudicial under §352 | Court: admission was erroneous under §352 (poverty evidence presumptively excluded) but error was harmless under Watson standard |
| Sufficiency of evidence to support felony-murder instruction (intent to steal) | Evidence (missing watch/wallet, surveillance, casings, texts) permitted inference killing done to effectuate robbery | Wife’s testimony lacked absolute certainty; inference of possession at time of murder was speculative | Court: substantial evidence supported felony-murder instruction; reasonable jury could infer intent to steal |
| Prosecutorial misconduct in closing (various remarks including implied comment on defendant’s silence, sympathy appeals, vouching, attacks on defense) | Arguments emphasized strength of case and witness credibility as permitted | Several remarks attacked counsel, arguably implied defendant’s failure to testify, appealed to sympathy, or mischaracterized experts | Court: most remarks permissible or non-prejudicial; one Griffin error found (improperly suggested defendant didn’t refute evidence) but was harmless beyond a reasonable doubt; other misconduct claims failed and cumulative error not shown |
Key Cases Cited
- People v. Memro, 38 Cal.3d 658 (Cal. 1985) (habit evidence admissibility framework)
- People v. McPeters, 2 Cal.4th 1148 (Cal. 1992) (habit evidence and trial court discretion)
- People v. Hughes, 27 Cal.4th 287 (Cal. 2002) (habit evidence standard)
- People v. Edelbacher, 47 Cal.3d 983 (Cal. 1989) (rule excluding poverty evidence as motive absent special circumstances)
- People v. Clark, 52 Cal.4th 856 (Cal. 2011) (poverty evidence and §352 analysis)
- People v. Cole, 33 Cal.4th 1158 (Cal. 2004) (standard for instructing on theories supported by substantial evidence)
- People v. Potts, 6 Cal.5th 1012 (Cal. 2019) (inference of robbery when killer takes substantial property)
- People v. Marshall, 15 Cal.4th 1 (Cal. 1997) (post-mortem taking supports inference murder committed for robbery)
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (prohibition on comment about defendant’s failure to testify)
- People v. Vargas, 9 Cal.3d 470 (Cal. 1973) (Griffin error analysis and harmlessness)
- People v. Frye, 18 Cal.4th 894 (Cal. 1998) (limits on vouching and permissible argument based on record facts)