THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BARAKA MASON, Defendant and Appellant.
No. D063793
Fourth Dist., Div. One.
Dec. 15, 2014.
232 Cal.App.4th 355
[CERTIFIED FOR PARTIAL PUBLICATION*]
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MCCONNELL, P. J.—A jury convicted Michael Baraka Mason of three counts of first degree murder (
Following a penalty phase trial, the jury fixed the penalty for one of the murder counts as life imprisonment without the possibility of parole. The jury was unable to reach a verdict on the penalty for the other two murder counts, and the court declared a mistrial. The prosecution declined to retry the penalty phase as to those two counts.
Mason appeals, contending (1) the court erroneously admitted the prior testimony of one victim, Hana Jabbar, after finding her unavailable under
In the unpublished portions of this opinion, we conclude Hana Jabbar‘s testimony was properly admitted and any error in admitting Marquis Veal‘s statements was harmless. However, we agree the evidence does not support multiple convictions for firearm possession based on Mason‘s possession of the same gun on different days. We also agree that the Three Strikes law does not provide for tripling sentences of life imprisonment without the possibility of parole. We discuss the latter two issues in the published portions of this opinion below. In light of our conclusion, we therefore reverse three of Mason‘s four convictions for firearm possession and modify the judgment to reflect a single life sentence without parole for each first degree murder conviction. In all other respects, the judgment as modified is affirmed.
FACTS
Mason, also known as “Don Diego,” is a documented member of the Lincoln Park criminal street gang. Lincoln Park‘s members have been found responsible for murders and other criminal acts. Mason is an older, more established member of the gang, known as an “original gangster” or “OG.” Other established or OG members of Lincoln Park included Tamoyia Morris, Terrill Bell, and Elliott Perry. In statements to law enforcement, Mason described Morris and Bell as his close friends.
In a gang like Lincoln Park, younger members of the gang are often expected to support older members like Mason. One younger member of
Z.Z.‘s sister, Hana, lived in a house on Velma Terrace in San Diego. The house was located within the geographic territory of the Lincoln Park gang. Hana‘s ex-husband purchased the house for her. Police observed Z.Z. coming and going from the house.
At the house, Hana had hoped to run an assisted living home for individuals with mental illnesses. Hana was unable to move the project forward, however, and she found roommates instead. One roommate was Sascha Newbern. Newbern was romantically involved with Meico McGhee, who was Z.Z.‘s and Hana‘s brother. McGhee was also Newbern‘s pimp. McGhee came to the house often, though he did not live there. Preston and Stacey Adams also lived with Hana and Newbern at the Velma Terrace house.3
On November 25, 2005, the day after Thanksgiving, Hana and Preston woke up early and went to work. Sometime afterwards, Stacey awoke to the sound of strange men in the house. When she opened her bedroom door, a man appeared wearing a ski mask and holding a gun. The man tied Stacey‘s hands and feet, blindfolded her, and asked her where “the money” was. Before she was blindfolded, Stacey observed Newbern tied up as well. At least two men were in the house, and they were speaking via walkie-talkies to at least one other man outside. They were discussing “the money” and using Hana‘s name.
Preston arrived home in the early afternoon. He was confronted at the front door by a man with a gun and a bandana or ski mask over his face. Preston was blindfolded, and his hands were tied behind his back. He was led to the room where Stacey was tied up. The men brought Newbern into the room as well. Newbern was crying hysterically. The men threatened to kill her if she did not quiet down.
The men were looking for $500,000, which they believed to be in the house. The men asked Preston and Stacey where the money was; Preston and Stacey were not aware of any money. The men used words typical of Crips
McGhee arrived at the house next. After he arrived, he fought with the men. They beat McGhee savagely and demanded to know where the money was. McGhee said he did not know what they were talking about. After the beating, McGhee‘s breathing was labored. The men threw McGhee into a bathtub in Preston and Stacey‘s bathroom.
When Hana came home, one of the men met her soon after she entered the doorway. The man was holding a gun and wearing a mask. Hana later identified this man as Mason after seeing Mason‘s photograph on the Internet.
The men bound Hana‘s hands and feet. The men told Hana they knew her brother Z.Z. had hidden money in the house. (Z.Z. was incarcerated at that point.) The men threatened to kill her, or hurt the others, if she did not tell them where the money was. They poured gasoline on McGhee and threatened to set him on fire. Hana did not know about any money, but she told them to look in the backyard and in a safe to distract them.
Having failed to find the money, the men told Newbern to get into the bathtub with McGhee. They turned up the television volume very loud. There was at least one gunshot. One of the men said to another that he had to “put in work” too. Then at least one other shot was fired. The men fled. Stacey, Preston, and Hana ran from the house and called for help.
Police arrived and found the house ransacked. They discovered McGhee and Newbern bound and gagged in the bathtub. McGhee had suffered two gunshot wounds to the head; one bullet had passed through his brain. McGhee also had numerous bruises and lacerations on his head and chemical burns on his body. The chemical burns could have been caused by exposure to gasoline. Newbern suffered a single gunshot wound to the head. She also had chemical burns on her buttocks. Both victims’ gunshot wounds were fatal. Three bullet casings were found at the scene. Forensic analysis revealed that they were likely fired from the same gun.
In the bathroom, police found three cigarette butts, a tampon, and a piece of wax paper in a toilet. Police observed urine in the toilet, which Preston had flushed before he went to work that day. DNA analysis of the cigarette butts revealed that one matched Newbern‘s DNA. Another cigarette butt matched Mason‘s DNA. The probability that a random man in the African-American population would match the DNA found on that cigarette butt is one in 2.1
Although they did not have Hana‘s witness identification or the DNA analysis identifying Mason at the time, police suspected that Mason was involved in the shootings. Mason‘s photograph was posted on a Crime Stoppers Web site, and he was identified twice on the television show America‘s Most Wanted. Later, Marquis Veal, a Lincoln Park gang member, told police about a conversation he had with Terrill Bell. In that conversation, Bell admitted taking part in the Velma Terrace shootings and said that Mason, Morris, and Elliott Perry were involved as well.4
Twenty months after the Velma Terrace shootings, Nagar Safavi and Timothy Traaen were out celebrating their anniversary in the area of Adams Avenue and 30th Street in San Diego. They parked on Suncrest Drive and went to a nearby bar to meet friends. They left the bar around midnight and walked to their car. Traaen opened the car door. As they talked, a man approached and pointed a gun at them. He demanded money. Traaen tried to reason with the man, but after a few minutes Safavi emptied the contents of her purse on the car seat. The man grabbed some items and then fired several shots at Safavi and Traaen.
Traaen was struck three times and died from his wounds. Safavi suffered a gunshot wound to her chest, but she survived. Safavi described the shooter as an African-American male with a flat nose and full lips. He was wearing a hooded sweatshirt that partially covered his face. While viewing a lineup that included Mason, Safavi could not identify the shooter.
Witnesses observed a man with a gun running down an alleyway, where an older full-sized Chevrolet van was parked. One witness heard both a male and a female voice. The man told the woman to “[h]urry up, get in the van.” The van drove away, in reverse, with its lights off. In the alleyway, police investigators recovered a cigarette butt in very good condition. DNA recovered from the cigarette butt matched the DNA of a woman named Jessica Jones.
Jones had purchased an older, full-sized Chevrolet van the month before in Las Vegas, Nevada. Jones was accompanied by a muscular African-American
Three weeks after the Suncrest shootings, witnesses observed a similar van involved in a driveby shooting on Capistrano Avenue in Spring Valley, an unincorporated area in San Diego County. An African-American man in the van fired shots at several other African-American men who were gathered near the street. The men returned fire. A bullet was recovered from a nearby house where Elliott Perry lived with his family. The bullet was fired from the same gun that was used in the Suncrest shootings. Other bullets, fired from another gun, were recovered in the area.
A witness identified one of the men near the street as Tamoyia Morris. Earlier, Morris‘s mother had contacted police and reported that Morris had been threatened by Mason, whom she identified as “Lon Don.” Mason left a note on Morris‘s car threatening to kill him for being a “snitch.” Morris‘s mother spoke to police a week later to report that Morris had received threatening voicemail messages from Mason. In the messages, Mason demanded money because he was on the run from police.
The next day, police responded to a report that shots had been fired at Morris‘s house as well. Morris and his grandmother, who also lived there, denied that any shots had been fired recently.5 However, police reinvestigated the shooting almost a year later and found three bullets in the stucco walls of the house, which was located on Keeler Street. These bullets were fired from the same gun that was used in the Suncrest and Capistrano shootings.
Later, Jessica Jones was contacted by police investigating a potential domestic disturbance at the Padre Gardens apartment complex in San Diego. Police received a report of an argument between a male and a female there. Police knocked on the door of the apartment, but there was no answer. Police noticed the van Jones had purchased parked outside the apartment. It took police several minutes to get a key from the apartment management. When police entered the apartment, they spoke with Jones. They did not find any other person in the apartment. In a later interview with law enforcement, Mason admitted staying at the apartment with Jones. He said he hid underneath a pile of clothes when the police arrived.
Other members of law enforcement continued to search for Mason, who also had an outstanding warrant for parole violations. One night, in the hopes of finding Mason, police surveilled a parking lot at a shopping center in the College Grove area of San Diego. They identified a dark green Nissan
Forensic analysis revealed that the gun police recovered had been used in the Suncrest shootings, which killed Traaen and injured Safavi, as well as the driveby shootings at Capistrano and Keeler. Analysis of DNA found on the gun revealed a mixture of DNA from at least two individuals. Mason was very likely a contributor to the DNA mixture found on the gun. Mason‘s DNA types were the strongest of the types in the mixture.
Mason contacted an acquaintance, Veronica Patton, and asked her to help him buy two vehicles, one of which was for Jones. Patton also assisted Mason in renting a house in Las Vegas for him and Jones. In Las Vegas, Mason was stopped for a routine traffic violation. After stopping, Mason sped away from police. The police gave chase, but they had to fall back because Mason‘s driving was creating a dangerous situation. The police, assisted by a helicopter, tracked Mason‘s position. Mason and a passenger eventually fled on foot. An officer, also on foot, caught up with Mason in a Las Vegas backyard. As the officer tried to apprehend him, Mason swung a pipe at the officer. After a struggle with two officers, during which Mason was hit with a Taser several times, Mason was taken into custody. The passenger, a 17-year-old female, was found in a nearby pizza restaurant and arrested as well. While in custody, Mason gave a false name to Las Vegas police.
In the subsequent investigation, Jones led police to the Chevrolet van, which was at an abandoned car upholstery shop. Police identified a bullet hole on the inside of the van. Police recovered a bullet, which matched the unidentified bullets recovered from the scene of the Capistrano driveby shooting. The bullets appeared to have been fired by one of the targets of the shooting.
Police uncovered a number of letters and other documents written by Mason. One letter chides Jones for speaking with police. It asked her, “What
At trial, Mason‘s defense disputed the various eyewitness identifications as unreliable and contradictory. It also attacked the credibility of the statements Marquis Veal made to police. A Lincoln Park member, Desavian Powell, testified that Mason was a well-respected musical artist and the member of a rap group called the Cherry Chuck Gang. The Cherry Chuck Gang wanted to fix up the Chevrolet van and use it for their tours. The owner of the car upholstery shop testified that Darryl Charles, another Lincoln Park member and a member of the Cherry Chuck Gang, brought the van in for upgrades. When the business failed, however, the owner left the van parked on his lot.
Powell said the van could be started without keys and numerous people drove it. Another defense witness, Tyrone Simmons, also a Lincoln Park member, testified that he lived in the Padre Gardens apartment and was romantically involved with Jessica Jones. He denied that Mason ever stayed at the apartment.
DISCUSSION
I, II*
III
Mason was convicted of four counts of possession of a firearm by a felon. (Former
Mason contends that the evidence does not support four separate convictions for possession because his possession of the firearm was continuous
Former
“Former section 12021, subdivision (a)(1), made it a felony for a convicted felon to possess ‘any firearm.’ . . . [T]he purpose of The Dangerous Weapons Control Law, of which former section 12021, subdivision (a) was a part, is to protect the public by denying firearms to felons, who are considered more likely to commit crimes with them.” (Correa, supra, 54 Cal.4th at p. 345.)
The Supreme Court has recognized that possession of a firearm by a felon is a continuing offense. (Wright v. Superior Court (1997) 15 Cal.4th 521, 525, fn. 1 [63 Cal.Rptr.2d 322, 936 P.2d 101] (Wright); see People v. Warren (1940) 16 Cal.2d 103, 112 [104 P.2d 1024] (Warren).) “The concept of a continuing offense is well established. For present purposes, it may be formulated in the following terms: ‘Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.’ [Citations.] Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. ‘The crime achieves no finality until such time.‘” (Wright, supra, 15 Cal.4th at pp. 525-526, fn. omitted.)
“In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over [an] indefinite period.” (People v. Keehley (1987) 193 Cal.App.3d 1381, 1385 [239 Cal.Rptr. 5] (Keehley); see People v. Davis (2002) 102 Cal.App.4th 377, 381 [125 Cal.Rptr.2d 519] (Davis).) Thus, our Supreme Court recognized more than 70 years ago that the Deadly Weapons Act, from which former section 12021 is derived, “does not provide that it is an offense for each day that the ex-convict is in possession of the weapon.” (Warren, supra, 16 Cal.2d at p. 112.)
Although it involved a different offense, the court‘s analysis in Davis is instructive. In that case, the defendant was convicted of two violations of former section 290, subdivision (a)(1)(A), which required certain sex offenders to register with police within five working days of coming into a city. (Davis, supra, 102 Cal.App.4th at p. 381.) Because violation of former section 290 was a continuing offense (former § 290, subd. (g)(8)), the defendant challenged his two convictions. (Davis, supra, 102 Cal.App.4th at p. 381.) Davis rejected the defendant‘s argument. The evidence showed that the defendant moved to Los Angeles a first time (thus invoking the duty to register), moved away for a time, then moved back to Los Angeles a second time (invoking the duty to register again). (Id. at p. 383.) Because the defendant‘s separate moves to Los Angeles gave rise to two different duties to register, the defendant could properly be convicted of separate violations of each duty, notwithstanding the characterization of the offense as continuing. (Id. at pp. 381-382 [“The question here is not whether a continuous offense can be parsed into multiple violations (it can‘t) but whether a separate offense is committed each time a person required to register as a sex offender enters the same jurisdiction and fails to register within the specified period.“].) Here, unlike Davis, there was no evidence that Mason‘s possession of the gun in question was interrupted, such that multiple separate offenses were committed.
The Attorney General argues that Warren concerned only situations where the underlying possession charges did not specify a particular date or occasion. We disagree. Warren states categorically that the Deadly Weapons
The Attorney General also argues that Mason‘s possession occurred at various times and places, and with various objectives. However, these circumstances are irrelevant for purposes of liability under former section 12021, subdivision (a)(1). Regardless of the circumstances of his possession, Mason‘s crime was not completed until the possession ceased. (See Wright, supra, 15 Cal.4th at p. 526.) Mason‘s possession ceased only after the police chase when the gun was recovered. Because there was no evidence of any interruption before then, Mason committed a single crime. (See Keehley, supra, 193 Cal.App.3d at p. 1385.) All but one of Mason‘s convictions for possession of a firearm by a felon must be reversed for lack of evidence.
IV
The court sentenced Mason to nine terms of life imprisonment without parole. The nine terms consist of one term each for Mason‘s three first degree murder convictions, which the court then tripled pursuant to the Three Strikes law, section 667, subdivision (e)(2). That section provides, in part, that “the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: [[]] (i) Three times the term otherwise provided as punishment for each current felony conviction. . . .” (
Courts have reached differing conclusions regarding whether a term of life imprisonment without parole may be doubled or tripled under the Three Strikes law. In People v. Hardy (1999) 73 Cal.App.4th 1429, 1434 [87 Cal.Rptr.2d 278, 87 Cal.Rptr.2d 279] (Hardy), the Court of Appeal for the Second Appellate District held that terms of life imprisonment could be doubled under the Three Strikes law, section 667, subdivision (e)(1). The court found that doubling such terms was consistent with the “intent of the Legislature and voters that persons with prior strikes serve longer sentences.” (Hardy, at p. 1434.) The court rejected the argument that
The next year, the Court of Appeal for the Third Appellate District disagreed. (People v. Smithson (2000) 79 Cal.App.4th 480, 503-504 [94 Cal.Rptr.2d 170].) In Smithson, the court emphasized that the language of section 667, subdivision (e)(1), allowed doubling only of a determinate term and the minimum term of an indeterminate term. (Smithson, at p. 503.) Quoting the Supreme Court‘s decision in People v. Jefferson (1999) 21 Cal.4th 86, 92 [86 Cal.Rptr.2d 893, 980 P.2d 441], the court noted that a determinate term is one ” ‘consisting of a specific number of months or years in prison.’ ” (Smithson, at p. 503.) Because it does not specify a specific number of months or years in prison, a term of life imprisonment without parole is not a determinate term. (Ibid.) Similarly, the minimum term of an indeterminate term is a specified term of incarceration before an inmate is eligible for parole. (Ibid.; see Jefferson, at p. 96.) Thus, as the court explained, a term of life imprisonment without parole “is an indeterminate sentence without a minimum term.” (Smithson, at p. 503.) Because section 667, subdivision (e)(1), provides for doubling only determinate terms and the minimum term of an indeterminate term, the court concluded that a term of life imprisonment without parole was ineligible for doubling. (Smithson, at p. 503.)
In People v. Coyle (2009) 178 Cal.App.4th 209, 219 [100 Cal.Rptr.3d 245], the Court of Appeal for the Third Appellate District extended its precedent in Smithson to the sentence-tripling provisions of section 667, subdivision (e)(2). The court noted that the rationale in Smithson applied equally to the language of that subdivision. (Coyle, at p. 219.)
We agree with Coyle that the Three Strikes law does not provide for the tripling of a term of life imprisonment without the possibility of parole. The language of section 667, subdivision (e)(2), like subdivision (e)(1), concerns the calculation of the “minimum term” of an indeterminate sentence. A sentence of life imprisonment without parole does not have such a minimum term because it does not allow for parole. (People v. Smithson, supra, 79 Cal.App.4th at p. 503; see People v. Jefferson, supra, 21 Cal.4th at p. 96.) While “life” is the effective minimum that an offender will serve under such a sentence, as the Attorney General points out, it is not the “minimum term” as the phrase is used in the Three Strikes law because it does not differentiate when an inmate will be eligible for parole. (Smithson, at p. 503; see Jefferson, at p. 96.) A sentence of life imprisonment without parole thus does not contain a term that may be tripled. (People v. Coyle, supra, 178 Cal.App.4th at p. 219.)
Because the trial court erred in tripling Mason‘s life sentences without the possibility of parole from three to nine, we will modify the judgment to reflect a total of three life sentences without the possibility of parole for Mason‘s three first degree murder convictions.
DISPOSITION
The judgment is reversed with respect to counts 17, 19, and 20. The portions of the sentences on counts 1, 2, and 11 that imposed three indeterminate terms of life without the possibility of parole are modified to reflect the imposition of a single indeterminate term of life imprisonment without the possibility of parole in each count. As so modified, the judgment is affirmed in all other respects. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
O‘Rourke, J., and Irion, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied March 11, 2015, S223830.