THE PEOPLE,
A165198
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 1/5/24
CERTIFIED FOR PUBLICATION; (Humboldt County Super. Ct. No. CR2000055B)
When a criminal defendant voluntarily takes the stand, his or her credibility is always at issue. A defense attorney‘s salient advice to a defendant to speak in his or her own voice when he or she testifies does not indicate bias or animus toward a defendant because of his or her race, ethnicity, or national origin. The California Racial Justice Act of
Defendant was convicted by a jury of first degree murder with special circumstances that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle (
BACKGROUND
We summarize only the facts necessary to resolve the issues on appeal.
I. Prosecution Evidence
Mariah A. was a friend of defendant‘s girlfriend, Alma A. Mariah A., Alma A. and defendant were involved in brokering illegal marijuana sales. On August 29, 2019, after a playdate with their children, Mariah A. and Alma A. drove together with their two children from Eureka to Rio Dell. Alma A. drove, and they followed defendant, who was driving a green Honda. Alma A. used Mariah A.‘s cell phone to call defendant during the drive. Mariah A. heard defendant on speaker phone say, ” ‘Stay back. Stay back, Mamas. You know what to do.’ ”
Shortly after 6:00 p.m., Alma A. and Mariah A. arrived in Rio Dell and parked on a corner near Wildwood Avenue. Alma A. got out of the car. Mariah A. saw Alma A. grab something from under the car‘s hood, put it under her T-shirt, and walk away along the sidewalk, out of Mariah A.‘s sight. Mariah A. stayed in the car. Defendant pulled up next to Mariah A. and
The police responded to the scene of the shooting and found a man later identified as Johnny Renfro suffering from an apparent gunshot wound. He died from the gunshot wound to his lower abdomen.
Mariah A. asked to be dropped off at a market, where her brother worked, but Alma A. refused and said she needed Mariah A.‘s phone to contact defendant. Defendant called Mariah A.‘s cell phone and spoke with Alma A. Mariah A. heard Alma A. ask him for his location. Defendant said he was on Main Street in Rio Dell, and he asked Alma A. where he should go. Defendant also said the back window of the Honda had been shot out. Alma A. gave defendant directions to a location off of Highway 36. Mariah A. asked Alma A. to let her out at a different market, which she did. Alma A. told Mariah A. not to say anything.
Regina O. and Jovan I. testified pursuant to an immunity agreement with the district attorney. They lived on farmland off of Highway 36 in Fortuna. They met with defendant in Eureka on the day of the shooting, and he gave them a marijuana sample. Later that evening, defendant came to their house in a green Honda. He told them that he had been robbed by men who took “a bag with 20 units” and shot at him as he was driving away. Defendant initially said he was robbed at a Target store and then that he was robbed in an industrial area of Eureka. Alma A. arrived at Regina O. and Jovan I.‘s home about 15 minutes after defendant. Alma A. asked for a vacuum to clean the glass out of the Honda. Alma A. started to vacuum the car. Defendant asked if he could leave the Honda there, and Jovan I. agreed. Before defendant and Alma A. left, defendant said to Regina O. and Jovan I., ” ‘If three people know a secret, it‘s best if two of them are dead.’ ” Regina O. understood his statement to be a threat and that she should not say anything. Regina O. later asked her father to move the car off her property, and he did so.
Two witnesses testified to hearing gunshots and seeing a green twodoor car drive by.3 They heard a man screaming for help, ran to help him and called the police. One of the witnesses described the driver of the Honda as a dark-skinned male with very thick hair on top and dreadlocks that went down to his ears. He did not see anyone else in the car, but he saw a woman walk by the passenger side of the car.
After learning of the shooting and that the police were looking for a green Honda, Regina O.‘s father contacted the police and told them the car was on his property. The Honda was registered to Denise L., who was defendant‘s ex-wife. Previously, in May 2019, a police officer in Arcata conducted a traffic stop on the Honda. Alma A. was driving, and defendant was a passenger.
In January 2020, defendant and Alma A. were arrested in North Dakota.
II. Defense Evidence
A woman who lived near the scene of the shooting testified that on August 29, 2019, she saw a green vehicle drive by and heard gunshots. The driver of the green car was a chubby male with a big, round face. A woman was in the rear passenger seat of the green car. She had a thinner face and longer hair. Both people in the green car were dark-skinned.
Defendant testified that he was working as a broker in the illegal marijuana business. He explained that as a broker, “[i]f you have a nice product, I bring the money.” He earned “a dollar off each bag,” which he explained meant $100 per pound of marijuana. Defendant had brokered marijuana deals with Regina O. and Jovan I., including million-dollar deals.
In August 2019, defendant was robbed in the parking lot of a Target store during a sale of 30 pounds of marijuana. After defendant became suspicious that the buyers had not paid in full, they struggled over the “totes” and someone put a gun to defendant‘s face. He told them to take the marijuana, some of which he got from Regina O. and Jovan I. Defendant told Regina O. and Jovan I. about the robbery, and he paid them back for what was stolen.
On August 29, 2019, defendant planned to meet with clients. He was “working [his] phones and trying to get things situated” because he had “money in town,” which meant he had “clients in town ready to do what we do.” He was at a park with Alma A., Mariah A., and their children. He had driven there in his green Honda. Alma A. had driven in a gray Jeep with
Alma A. and Mariah A. left with the children to go to a store. Defendant started his Honda, planning to follow them to the store. As he was starting to drive off, “[two] trucks pull[ed] up” on him. One was the same one that was involved in the prior robbery, at Target. Three or four Black men with guns got out of the trucks and began grabbing the “totes” out of defendant‘s backseat. Defendant recognized two of the men. One, whom defendant knew as “Oliver,” hit defendant on the side of his head with a black gun that went off. Defendant struggled with Oliver for the gun. Oliver dropped the gun on the ground. The men ran back to their trucks and drove off. Dread was still there while defendant was “being jacked,” and he yelled at the men to stop.
Defendant picked up the gun and put it on his passenger seat. He drove to the store to meet Alma A. and Mariah A. While defendant was in the parking lot waiting for them, Dread called him and said he wanted the gun. When defendant was driving away from the store, with Alma A. and Mariah A. following him, defendant saw Dread pull up in a truck driven by another man. Defendant got out of his Honda, and Dread walked over and said he would drive the Honda. Defendant got in the back passenger seat of the Honda because he thought the man driving the truck was also going to get in the Honda. However, the other man did not get in the Honda. Dread sped off, southbound on Highway 101. Dread said, ” ‘I know who it was,’ ” and, ” ‘I‘m about to go get the pounds back.’ ” Defendant told him to stop and let him out. He told Dread, ” ‘It‘s just weed. I‘ll pay that shit back.’ ” Dread said, ” ‘Nah. Fuck that.’ ” Defendant called Alma A. while they were driving to tell her where they were located. Dread pointed the gun at defendant and told him, ” ‘Shut the fuck up.’ ”
Dread drove to Rio Dell. He drove by “this kid” who was changing clothes near a car and then went around the block. They passed the Jeep Alma A. had been driving, but only Mariah A. was in the car. They drove past Alma A., and she threw a marijuana sample in the Honda. Dread told defendant to shut up and get down, behind him. Defendant squatted on the floor behind the driver seat. Then defendant heard four shots and saw the shattering of the Honda‘s rear window. Defendant called Alma A. because Dread was asking where to go. Dread threw the gun in a river before turning north onto Highway 101. Dread stopped at Highway 36 and got out of the car. Dread was picked up in a truck by Oliver, who robbed defendant at the park, and another man.
Defendant drove to the San Francisco Bay Area because he thought he would be safe there. He got rid of his phones after the shooting. One of them was malfunctioning. He called Jovan I. and said, ” ‘I need some trash. I needed to take out the trash,’ ” which meant defendant “needed 10,000 pounds of trim.” Defendant explained that “trim” can be distilled and turned into cannabis.
Defendant did not know the person Dread shot, but he had seen him before. Defendant learned that there was a warrant for his arrest, and he told people he was on the run because he was a potential suspect in a shooting. After being on the run for a few months, defendant went to see his mother in North Dakota, where he was eventually arrested. However, defendant‘s mother had died on August 31, 2019.
When defendant spoke to the police following his arrest, he told them about the robbery at Target, but he did not say he was robbed at the park on the day of the shooting. He denied he was the shooter, but he did not say there was someone else in the Honda with him.
DISCUSSION
I. Racial Justice Act
Defendant argues that his conviction should be reversed because his attorney violated the RJA by exhibiting racial bias against him. Specifically, he asserts that his attorney advised him to “use Ebonics, slang, and to sound ghetto,” when he testified and that by doing so she at least exhibited implicit bias toward him. The People argue defendant may not raise this issue for the first time on appeal. In supplemental briefing, defendant argues that recent amendments to the RJA that became effective on January 1, 2024, permit defendant to raise this issue on direct appeal.4
The jury returned its guilty verdict on November 10, 2020. On December 30, 2020, defendant made an oral Marsden motion to replace his appointed counsel.5 He claimed ineffective assistance of counsel on multiple grounds, including that his attorney advised him “to speak Ubonics [sic] and sound ghetto” when he testified. She told him to “use my slang.” When he asked her why he should do this, defendant‘s attorney said she did not want him to sound like someone he was not. Defendant felt that his counsel‘s advice was discriminatory against him.
Defense counsel responded to defendant‘s claim as follows: “He wanted. . . or was concerned about, I guess, trying to speak in a different manner. My experience has been, in serious felony trials, including murder, that . . . the jury will be able to pick up on if someone‘s trying to speak in a way that‘s not authentic or genuine, and it produces very, very bad results. So . . . I told him . . . don‘t be anybody that he‘s not. ‘Speak how you speak. They‘re going to be able to know if you‘re trying to fake it and . . . adopt a manner of speech that‘s not yourself.’ [¶] . . . [¶] . . . It wasn‘t based in race at all. And at points I would redirect him and . . . question him, ‘Well, what does that actually mean,’ to explain it to the jury so nothing went over their head, for sure.”
The trial court denied defendant‘s Marsden motion on all grounds and found that defendant did not demonstrate ineffective assistance of counsel. However, the trial court decided to appoint new counsel who could investigate a potential motion for new trial, including possibly based on ineffective assistance of counsel due to an alleged disagreement between defendant and his counsel as to whether he should testify. When defendant further questioned the trial court if it was acceptable for a lawyer to advise a client “to sound ghetto right before he gets on the stand and testifies for his life,” the trial court said, “I can understand an attorney telling someone . . . [¶] . . . [¶] . . . to be yourself.” The trial court then stated that new counsel could further explore the issue.
On December 30, 2021, defendant‘s new counsel filed a motion for new trial raising claims of ineffective assistance of counsel on other grounds, and other alleged bases for a new trial. The motion did not assert ineffective assistance of counsel based on racial discrimination; nor did it assert a claim under the RJA.
On April 19, 2022, the trial court denied defendant‘s motion for new trial and proceeded with sentencing. Although his motion for new trial did not
The trial court sentenced defendant to life without the possibility of parole, plus consecutive terms of 25 years to life for the firearm enhancement and five years for one prior serious felony conviction, and restitution fines and fees.
B. Legal Framework
The RJA became effective on January 1, 2021. (
The RJA provides: “The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” (
Prior to recent amendments, the procedures for seeking relief under the RJA were as follows: “A defendant may file a motion in the trial court or, if judgment has been imposed, may file a petition for writ of habeas corpus or a motion under Section 1473.7 in a court of competent jurisdiction, alleging a violation of subdivision (a).” (
C. Forfeiture
Although defendant complained during his Marsden hearing that he thought his defense counsel discriminated against him when she advised him “to speak Ubonics [sic] and sound ghetto” and to “use my slang” when he testified, neither defendant nor his substituted defense counsel raised an RJA claim before the trial court. The People argue defendant has forfeited his RJA claim.
In supplemental briefing, defendant asserts that the recent amendments to
We exercise our discretion to reach the merits of defendant‘s RJA claim and do not decide whether Assembly Bill No. 1118‘s amendments to section 745 excuse forfeiture. (People v. Monroe (2022) 85 Cal.App.5th 393, 400 [appellate court has authority to consider issue not preserved for review].)
D. No RJA Violation
The Legislature‘s stated intent in enacting the RJA was ” ‘to eliminate racial bias from California‘s criminal justice system because racism in
We recognize the extraordinary need to root out both explicit and implicit biases that infect the judicial system and that the RJA is an important tool to help achieve a more just judicial system. At the same time, we also recognize that determining what does and what does not constitute the exhibition of “bias or animus towards the defendant because of the defendant‘s race, ethnicity, or national origin, whether or not purposeful,” may be a difficult task. (
Defendant argues that the record shows he testified in “a highly unusual and informal manner, repeatedly using slang, street vernacular, improper English, and other language inappropriate in any formal courtroom setting. . . .” He cites examples from the record highlighting his use of slang terms, such as: he would “[c]harge a dollar off each bag,” which meant he received $100 for each pound of marijuana sold; he “smash[ed]” in his truck, which meant he had sex; and he repeatedly referred to “bags,” ” ‘weed,’ ” and ” ‘totes.’ ” He further references his response, when asked about Regina O. and Jovan I.‘s share of the proceeds from their marijuana deal, that he “wasn‘t worried about they cut because I wasn‘t concerned about what they got they cut for or what they got each the bag for or if it was theirs or—you know what I mean? I was just there to make that deal then worry about my people getting up out of there.” (Sic.) Further, he cites to the answer he gave when he was asked if he understood Jovan I. to be Bulgarian.7 Defendant
We reviewed the entirety of defendant‘s testimony and find that he fully explained his version of the events that led up to the shooting. As defense counsel stated at the Marsden hearing, she redirected defendant at times to further explain his responses. Defense counsel also referenced the “lingo” defendant used with the farmers and buyers engaged in the illegal marijuana business. She questioned him about his use of slang terms such as “bag” and “dollar,” and he clarified that when he said he makes a dollar off of each bag sold, he meant that he made $100 per pound of marijuana sold. Nothing about defendant‘s use of these terms or the manner of his overall testimony suggests that his attorney exhibited racial bias or animus toward him. In fact, it is not unusual for witnesses of any race to use slang terms in cases involving illegal drug dealing.
We reject defendant‘s contention that his own testimony amounts to a violation of the RJA because his attorney allegedly told him to “sound ghetto” and “use my slang.” At the Marsden hearing, defendant acknowledged that when he questioned his counsel‘s advice on this point, she said “she didn‘t want me to sound like somebody I wasn‘t.” Defense counsel corroborated that her advice to defendant was to ” ‘[s]peak how you speak’ ” and not to adopt a different manner of speech in order to avoid appearing inauthentic before the jury. As the trial court found, in denying defendant‘s Marsden motion, defense counsel was not ineffective for advising defendant to “be yourself” when he testified.
When a defendant testifies in his or her own defense, his or her credibility is always at issue. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.) The record establishes that defense counsel had a valid tactical reason for advising defendant not to change his manner of speaking. Counsel was not ineffective for recognizing the importance of defendant‘s appearing authentic and genuine when he testified before his jury. Arguably, there was a factual dispute as to the precise language used when defense counsel discussed defendant‘s manner of speaking in preparation for his testimony. However, the record on which defendant asks us to rule reflects that the trial court credited defense counsel‘s statement that she told defendant to “be yourself.” It further reflects defendant‘s acknowledgment that defense counsel explained to him her concern that defendant should not sound like someone he was not. Even if we assume that in preparation for defendant‘s testimony defendant or defense counsel used slang terms regarding defendant‘s manner of speaking, when considered in the context of giving advice to testify authentically, we find no violation of the RJA. This record
II. Senate Bill No. 81
On April 19, 2022, the trial court sentenced defendant, in accordance with the recommendations of the probation report, to life without the possibility of parole for his murder conviction (
The People argue defendant‘s claim is forfeited because he failed to request that any enhancements be stricken under
In his reply brief, defendant does not address the People‘s forfeiture argument. Instead, defendant acknowledges that recent case law supports the People‘s argument that the trial court maintains discretion to impose sentencing enhancements under amended section 1385.8 He then argues for the first time in his reply brief that the record does not indicate the trial court was aware of its discretion and, therefore, we should remand for resentencing. We agree with the People that defendant‘s claim that his enhancements should have been stricken is forfeited.
Effective January 1, 2022, Senate Bill No. 81 amended section 1385 to add subdivision (c), which states: “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative
the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” (
Defendant was sentenced on April 19, 2022, over four months after the effective date of Senate Bill No. 81. Defendant offers no excuse for his failure to ask the trial court to strike his enhancements, and he does not respond to the People‘s forfeiture argument in his reply brief. Instead, his reply brief admits he did not file a sentencing brief in the trial court and that neither Senate Bill No. 81 nor section 1385 was mentioned at the sentencing hearing.
Under section 1385, a defendant “ha[s] the right to ‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading‘. . . .” (People v. Carmony (2004) 33 Cal.4th 367, 375.) However, “any failure on the part of a defendant to invite the court to dismiss under
We further find that defendant forfeited his refashioned argument that a remand for resentencing is required because the record does not indicate the trial court was aware of its discretion under
Defendant‘s final argument is that the trial court erred in imposing a parole revocation restitution fine pursuant to section 1202.45 because his sentence of life without the possibility of parole does not include a period of parole. The People agree that the trial court improperly imposed the parole revocation restitution fine. Section 1202.45 provides in pertinent part: “In every case where a person is convicted of a crime and whose
DISPOSITION
The judgment is modified to strike the parole revocation restitution fine. The trial court is directed to prepare an amended abstract of judgment striking the parole revocation restitution fine and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
Jackson, P. J.
WE CONCUR:
Burns, J.
Chou, J.
A165198/People v. Demetrius Coleman
A165198/People v. Demetrius Coleman
| Trial Court: | Superior Court of Humboldt County |
| Trial Judge: | Kelly L. Neel |
| Counsel: | Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. |
| Rob Bonta, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Catherine A. Rivlin and Allen R. Crown, Deputy Attorneys General, for Plaintiff and Respondent. |