People v. Pope CA4/2
E073703
| Cal. Ct. App. | Jun 24, 2021Background
- Defendant Robert Jerome Pope, amid a longstanding feud with victim Ernie Sanders Jr., was identified by eyewitness S.M. as the shooter after the victim was fatally shot and S.M. was wounded on January 28, 2014.
- S.M. knew defendant as “J Biggs,” saw a muzzle flash and later identified a photo of defendant; other witnesses placed a man with dreadlocks and a black hoodie in the area that night.
- Two weeks after the shooting police located defendant hiding in Los Angeles; he had cut off his dreadlocks. While jailed, inmate J.T. testified defendant confessed to the killings and described disposing of a revolver.
- Witness M.B., interviewed the day after the murder, gave inconsistent trial testimony about seeing defendant run past his apartment; Detective Faylor testified that M.B. had told him he “was aware J Biggs had shot his own cousin the night before,” a statement later stricken by the court.
- Defendant was convicted of first degree murder and attempted premeditated murder with firearm enhancements and sentenced to 52 years to life; he appealed on grounds including mistrial, prosecutorial misconduct, CALCRIM No. 315 (eyewitness certainty), and cumulative error.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Pope) | Held |
|---|---|---|---|
| 1. Mistrial based on Detective Faylor’s testimony repeating M.B.’s statement that he was “aware” defendant shot his cousin | Testimony was admissible as impeachment/prior inconsistent statement; any prejudice could be cured by striking and admonition | Volunteered hearsay improperly suggested extrajudicial corroboration of guilt and irreparably prejudiced jury; only mistrial would cure | Denied. Court found statement ambiguous, isolated, properly stricken under Evid. Code §352, and curative measures sufficient; no abuse of discretion |
| 2. Prosecutorial misconduct for arguing absence of alternative suspect shifted burden to defendant | Prosecutor argued on the state of the evidence and lack of evidence pointing to another suspect—permissible | Argued prosecutor impermissibly suggested defendant had burden to produce exculpatory evidence | No reversible error. Argument fell within proper comment on evidence and failure to call logical witnesses; jury instructions preserved prosecution’s burden |
| 3. Constitutionality of CALCRIM No. 315 (eyewitness certainty factor) | Instruction is proper; certainty is one of many factors jurors may weigh | Inclusion of certainty factor lowers burden of proof and risks juror confusion; defense preserved claim despite no trial objection | No reversible error. Under People v. Lemcke and Sánchez the factor is permissible as one of many; Lemcke directed omission of the certainty language pending Judicial Council review but upheld its use here as not violating due process; any error harmless beyond a reasonable doubt |
| 4. Cumulative error from asserted trial errors | Errors did not occur or were harmless individually, so no cumulative prejudice | Combined errors deprived defendant of a fair trial and require reversal | Denied. As no prejudicial errors accumulated, conviction affirmed |
Key Cases Cited
- People v. Molano, 7 Cal.5th 620 (discusses mistrial standard for volunteered statements and abuse of discretion review)
- People v. Navarrete, 181 Cal.App.4th 828 (curative instruction inadequate where officer intentionally referenced inadmissible confession)
- People v. Allen, 77 Cal.App.3d 924 (reversal where prejudicial volunteered testimony in close credibility contest could not be cured)
- People v. Bentley, 131 Cal.App.2d 687 (volunteered prejudicial testimony by police required reversal where admonition insufficient)
- People v. Sánchez, 63 Cal.4th 411 (addressed eyewitness-identification instructions and certainty factor)
- People v. Lemcke, 11 Cal.5th 644 (approved Sánchez reasoning, upheld CALCRIM No. 315 but warned about certainty language and directed Judicial Council consideration)
- People v. Gomez, 6 Cal.5th 243 (permissible for prosecutor to comment on state of evidence and defense’s failure to present material evidence)
- People v. Bradford, 15 Cal.4th 1229 (distinguishes permissible comment on lack of defense evidence from improper burden-shifting)