People v. Berry CA2/5
B262964
| Cal. Ct. App. | Aug 22, 2016Background
- Defendant Raymond Glen Berry was convicted by jury of multiple felonies arising from an April 19, 2012 apartment altercation in which Berry entered armed, shots were fired, and victim Eric Kennon sustained serious abdominal wounds requiring surgery; jury found personal use of a handgun and great bodily injury enhancements.
- Charges included firearm assault, first-degree burglary, child abuse, felon in possession of a firearm/ammunition, and semiautomatic firearm assault; prior serious-felony allegations and prior prison terms were found true.
- Defense sought to admit extensive impeachment evidence about the victim Kennon (prior carjacking using a replica gun, an alleged Albertsons armed robbery, and remote juvenile misconduct) to show Kennon’s credibility and suggested pattern of putting guns to victims’ heads; the trial court excluded much of that under Evidence Code § 352.
- Emergency 911-call statements by a child in the home (Richard Nichols) identifying Berry as the shooter were admitted; defendant later claimed counsel was ineffective for not objecting to hearsay.
- On appeal the court affirmed convictions but modified sentencing: (1) imposed and stayed additional prior serious-felony enhancements as required; (2) ordered recalculation of presentence custody and conduct credits because the trial court’s credited days lacked support; and (3) ordered deletion of a $10 local crime prevention fine and $2 surcharge from the abstract of judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of proposed impeachment evidence about Kennon (carjacking details, alleged Albertsons robbery, remote juvenile misconduct) | Prosecution: exclusion proper under Evid. Code § 352; underlying details unnecessary and prejudicial/confusing | Berry: exclusion was prejudicial; evidence went to Kennon’s MO and credibility and supported self-defense theory | No abuse of discretion: trial court permissibly excluded detailed and remote evidence under § 352; existing felony-impeachment notice (replica gun) was admitted and further collateral proof would unduly consume time/confuse jury |
| Admissibility of 911-call statements by Nichols (spontaneous statement/hearsay) | Prosecution: admissible under evidentiary spontaneous declaration exception | Berry: statements inadmissible because Nichols did not personally witness the shooting; counsel ineffective for not objecting | Statements qualified as spontaneous under Evid. Code § 1240 (Nichols perceived entry, heard argument/shots, saw bleeding); any hearsay objection would have been futile; no ineffective assistance shown |
| Cumulative error argument | Prosecution: errors (if any) were harmless individually and cumulatively | Berry: multiple rulings cumulatively denied fair trial | Rejected — no prejudicial legal errors shown; cumulative-error claim fails |
| Sentencing errors: prior serious-felony enhancements, presentence custody credits, and abstract fine/surcharge | Prosecution: enhancements found true; credits and abstract should reflect court’s calculations | Berry: trial court miscalculated custody credits; abstract incorrectly lists fines not orally imposed | Modified: imposed (and stayed) required section 667(a)(1) enhancements on count 3; remanded to recalculate presentence custody/conduct credits (determine federal arrest/extradition custody); amended abstract to delete $10 fine and $2 surcharge |
Key Cases Cited
- People v. Wheeler, 4 Cal.4th 284 (1992) (trial court has broad discretion under Evidence Code § 352 to exclude collateral impeachment evidence)
- People v. Waidla, 22 Cal.4th 690 (2000) (abuse-of-discretion standard for evidentiary rulings)
- People v. Blacksher, 52 Cal.4th 769 (2011) (spontaneous statement exception may admit declarant’s statements based on perceptions even if not eyewitness in narrow sense)
- People v. Riggs, 44 Cal.4th 248 (2008) (preservation and review of constitutional claims tethered to trial objections; evidentiary exclusions under § 352 generally do not violate confrontation/presentation rights)
- People v. Williams, 34 Cal.4th 397 (2004) (requirements for imposing prior serious-felony enhancements)