People v. Mason , 181 Cal. Rptr. 3d 98 ( 2014 )

Filed 12/15/14
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063793
Plaintiff and Respondent,
v. (Super. Ct. No. SCD214650)
MICHAEL BARAKA MASON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David M.
Gill, Judge. Reversed in part and affirmed in part as modified.
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.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of parts I and II.
A jury convicted Michael Baraka Mason of three counts of first degree murder
(Pen. Code, § 187, subd. (a))1 and found true the special circumstances of robbery-
murder (§ 190.2, subd. (a)(17)) and multiple murders (§ 190.2, subd. (a)(3)) as to each.
The jury further convicted Mason of one count of attempted murder (§§ 187, subd. (a),
664); two counts of attempted robbery (§§ 211, 664); one count of burglary (§ 459); five
counts of false imprisonment by violence (§§ 236, 237, sub. (a)); one count of assault
with a firearm (§ 245, subd. (a)(2)); two counts of shooting at an inhabited dwelling
(§ 246); and four counts of possession of a firearm by a felon (former § 12021, subd.
(a)(1)). The jury also found true several gang and firearms-related sentencing
enhancements. (§§ 186.22, subd. (b)(1), 12022.53, subd. (d).) Mason admitted suffering
two prior serious felony convictions under section 667, subdivision (a)(1), and three
"strike priors" for purposes of section 667, subdivisions (b) through (i).
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.
The court sentenced Mason to nine consecutive terms of life imprisonment
without the possibility of parole. The nine terms consist of one term for each count of
murder, which were then tripled pursuant to the "Three Strikes" law. (§ 667, subd.
(e)(2).) In addition, the court sentenced Mason to an indeterminate term of 337 years and
six months to life imprisonment, plus an additional 110 years.
1 Further statutory references are to the Penal Code unless otherwise specified.
2
Mason appeals, contending (1) the court erroneously admitted the prior testimony
of one victim, Hana Jabbar, after finding her unavailable under Evidence Code section
240, subdivision (a)(4) and (5); (2) the court erroneously admitted the out-of-court
statements of an informant, Marquis Veal, allegedly recounting statements made by
Mason's accomplice, Terrill Bell, which the court found were statements against interest
under Evidence Code section 1230; (3) the evidence does not support Mason's multiple
convictions for possession of the same firearm, on different days, because that crime is a
single, continuous offense; and (4) the sentences of life imprisonment without parole
should not have been tripled pursuant to the Three Strikes law.
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
3
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 Lincoln Park was Z.Z.
Jabbar.2 Z.Z. was a successful drug dealer. He was known for flaunting his wealth,
which is called "flossing." Morris, as an established member of Lincoln Park, offered to
protect Z.Z. in exchange for part of Z.Z.'s drug revenues. After Z.Z. did not accept
Morris's offer, Morris severed his relationship with Z.Z.
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
2 We will refer to Z.Z. Jabbar and his sister Hana Jabbar by their first names to
avoid confusion.
4
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 criminal street gangs, but Preston
and Stacey believed they were trying to hide the fact that they were actually Bloods. At
3 We will refer to Preston and Stacey Adams by their first names, as well, to avoid
confusion.
5
one point, they heard the men slip up and use words commonly associated with Bloods
rather than Crips. Lincoln Park is a Bloods gang.
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 of which had passed through his brain. McGhee also had numerous bruises
6
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 1 in 2.1 sextillion individuals. (Mason is African-American.) The
cigarettes appeared to have been deposited in the toilet around the same time. Police also
found a blood stain on the bathroom door. Later analysis of the stain revealed that it
contained a mixture of DNA from McGhee and DNA from Tamoyia Morris.
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
7
that conversation, Bell admitted taking part in the Velma Terrace shootings and said that
Mason, Morris, and 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 Chevy van was parked. One witness heard both a male and 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
4 At trial, Veal denied any knowledge of the shootings. He claimed that police
detectives had told him what to say. Veal testified that he was distraught over his
grandmother's death and wanted to attend her funeral. After Veal discussed the Velma
Terrace shootings with police, they transported him from jail to attend the funeral.
8
condition. DNA recovered from the cigarette butt matched the DNA of a woman named
Jessica Jones.
Jones had purchased an older, full-sized Chevy van the month before in Las
Vegas, Nevada. Jones was accompanied by a muscular African-American man with a
tattooed arm. Witnesses identified it as the same van leaving the alleyway near Suncrest
Drive.
Three weeks after the Suncrest shootings, witnesses observed a similar van
involved in a drive-by 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 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 voice mail 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
9
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 Altima, which met a white sport utility
vehicle in the lot.6 The Nissan exited the parking lot, and police followed. At one point,
5 During his conversation with police, Morris identified himself as "Tamoyia
Johnson."
6 The owner of a recording studio in San Diego testified he went to the lot that
night, but he could not remember whom he met there. He was delivering a studio
recording of music produced by Mason (under the name "Don Diego").
10
a police detective in an unmarked car found himself in front of the Nissan. The Nissan
pulled up alongside the police car, and the police detective believed the Nissan's
passenger looked very similar to Mason. The detective and other marked patrol cars
followed the Nissan. The Nissan drove to an apartment complex and crashed into a
building. The individuals in the car fled. The police detective followed the passenger
who looked similar to Mason, but he escaped through nearby woods. In the woods, along
the passenger's path, police found a gun that appeared to have been freshly dropped there.
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 drive-by
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
11
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 their subsequent investigation, Jones led police to the Chevy 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 drive-by 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 happen[ed] to you just
sayin[g] I want my lawyer!!?" Another letter expressed dismay that police had recovered
the van "in the condition it was left in!!" A document recovered from Mason's jail cell
appeared to contain rap lyrics about a home invasion robbery stemming from a gang
member's failure to support other members of the gang.
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 Chevy 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.
12
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
Hana did not testify live at trial. Instead, her preliminary hearing testimony was
admitted as the prior testimony of an unavailable witness. (Evid. Code, § 1291.) To
establish Hana's unavailability, the prosecution offered the testimony of William Cahill,
an investigator employed by the prosecution. Cahill spent approximately 18 years as a
detective with the San Diego Police Department. Outside the presence of the jury, Cahill
testified that he had been in contact with Hana prior to the trial of Tamoyia Morris, who
was also charged in connection with the Velma Terrace shootings. Hana was very
cooperative until just prior to the start of Morris's trial. Cahill continued to try to contact
her, but he was unable to do so. Cahill's efforts included calls, e-mails, and text messages
to Hana; discussions with Hana's ex-husband and boyfriend; and visits to places where
Hana had lived. Cahill also placed Hana's name in an "Officer Notification System."
Cahill was unable to reach her.
Hana contacted Cahill after Morris's trial to ask about the outcome. Cahill spoke
with Hana and told her he would need to subpoena her for Mason's trial, which was
upcoming. Hana said she would be in contact with Cahill. When she was not, Cahill
tried to contact Hana again. He used the same methods he had used before. Cahill texted
13
or e-mailed Hana, but he received no response. Cahill spoke with Hana's ex-husband, but
he said Hana was living on the streets in the East Village area of downtown San Diego.
Cahill drove through that area several times, spoke with homeless people there, and
showed them Hana's picture. Cahill also spoke with Z.Z. and Hana's now-former
boyfriend. Cahill reviewed a police database that would list any contacts Hana had with
police or emergency personnel, but there were no results. On cross-examination, Cahill
was asked whether he had attempted to triangulate Hana's location through her cell
phone. Cahill replied he had not.
Based on Cahill's testimony, the trial court found that Hana was unavailable as a
witness within the meaning of Evidence Code section 240, subdivision (a)(4) and (5).
The court stated, "I think under either one or both of those provisions, the preponderance
of the evidence establishes her unavailability, which satisfies that foundational
requirement for the use of her prior testimony."
Mason contends the court erred in finding Hana unavailable. Evidence Code
section 240, subdivision (a)(4), provides that a witness is unavailable when he or she is
"[a]bsent from the hearing and the court is unable to compel his or her attendance by its
process." The Attorney General does not argue that Hana was unavailable within the
meaning of that subdivision. Instead, the Attorney General relies on Evidence Code
section 240, subdivision (a)(5), which provides that a witness is unavailable when he or
she is "[a]bsent from the hearing and the proponent of his or her statement has exercised
reasonable diligence but has been unable to procure his or her attendance by the court's
process." Mason counters that the prosecution did not exercise reasonable diligence in
14
securing Hana's attendance at his trial and thus cannot establish her unavailability under
this subdivision.
"The term 'reasonable diligence' or 'due diligence' under Evidence Code
section 240, subdivision (a)(5) ' "connotes persevering application, untiring efforts in
good earnest, efforts of a substantial character. [Citations.]' " [Citation.] Considerations
relevant to this inquiry include the timeliness of the search, the importance of the
proffered testimony, and whether leads of the witness's possible location were
competently explored." (People v. Wilson (2005) 36 Cal.4th 309, 341.)
" 'What constitutes due diligence to secure the presence of a witness depends upon
the facts of the individual case.' " " 'The totality of efforts of the proponent to achieve
presence of the witness must be considered by the court.' " (People v. Sanders (1995) 11
Cal.4th 475, 523.) The proponent of an unavailable witness's testimony must undertake
good faith efforts that are reasonable under the circumstances to obtain the witness's
presence at trial. (People v. Herrera (2010) 49 Cal.4th 613, 622-623 (Herrera).)
" 'That additional efforts might have been made or other lines of inquiry pursued
does not affect [a] conclusion [there was due diligence] . . . . It is enough that the People
used reasonable efforts to locate the witness.' [Citation.] A court cannot 'properly
impose upon the People an obligation to keep "periodic tabs" on every material witness in
a criminal case, for the administrative burdens of doing so would be prohibitive.
Moreover, it is unclear what effective and reasonable controls the People could impose
upon a witness who plans to leave the state, or simply "disappear," long before a trial date
is set.' " (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
15
The proponent of the witness has the burden of showing the witness is unavailable.
(People v. Valencia (2008) 43 Cal.4th 268, 292.) "We review the trial court's resolution
of disputed factual issues under the deferential substantial evidence standard [citation],
and independently review whether the facts demonstrate prosecutorial good faith and due
diligence [citation]." (Herrera, supra, 49 Cal.4th at p. 623.)
Here, the facts surrounding the prosecution's efforts to secure Hana's attendance at
trial are essentially undisputed. Cahill, the prosecution's investigator, spoke with Hana
prior to Mason's trial and told her her testimony would be required. Later, Cahill
attempted to contact Hana by cell phone, but she did not respond. Cahill spoke with the
people closest to Hana about her whereabouts and determined she was homeless. Cahill
went to the area where she was reportedly staying and showed her picture to other
homeless people in an effort to find her. Cahill himself drove through the area multiple
times looking for her. Cahill also reviewed a database of contacts with law enforcement
and emergency personnel and found no mention of Hana.
Although Hana's eyewitness testimony and identification of Mason were important
evidence at Mason's trial, we conclude the prosecution's efforts to secure her attendance
were reasonable under the circumstances. (See People v. Sanders, supra, 11 Cal.4th at
p. 523.) Based on Cahill's investigation, even Hana's closest friends were not in contact
with her and did not know her location.7 Cahill nonetheless determined the area of San
Diego in which she was believed to be living. With that information, Cahill undertook
7 Mason argues that the police should have put Hana's former boyfriend under
surveillance. We disagree. Under the circumstances, it is reasonable to believe that such
surveillance would have been a waste of resources.
16
substantial efforts to try to find her. Mason suggests that Cahill could have visited
homeless shelters and spoken to aid agencies in the area about Hana. While those actions
may have been helpful, it was not unreasonable for the prosecution to rely on Cahill's
direct contact with homeless people and his own search of the streets in the area.
Mason points out that Hana failed to appear at the earlier Morris trial. He
contends the prosecution should have secured a material witness warrant for her arrest.
(See § 1332.) After Morris's trial, however, Hana reached out to Cahill to inquire about
the results. When Cahill told her she would have to testify at Mason's trial, she did not
explicitly resist. Hana said she would contact Cahill when the trial was closer, and Cahill
continued to have her cell phone contact information. Under these circumstances, the
prosecution's failure to obtain a material witness warrant was not unreasonable. "To have
a material witness who has committed no crime taken into custody, for the sole purpose
of ensuring the witness's appearance at a trial, is a measure so drastic that it should be
used sparingly." (People v. Cogswell (2010) 48 Cal.4th 467, 477.) Mason has not shown
that such a drastic measure was required here.
Mason also suggests that the prosecution was required to use Hana's cell phone to
locate her, either through billing records or electronic tracking. Since Hana was
homeless, however, her billing records would not have reflected her residence. While
some evidence of her location may have been obtained from her payment information, or
through electronic tracking, the prosecution was not required to undertake every possible
17
effort to locate Hana.8 The prosecution's actions show good faith and reasonable efforts
under the circumstances here. (See Herrera, supra, 49 Cal.4th at pp. 622-623.) " 'That
additional efforts might have been made or other lines of inquiry pursued does not affect
this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate
the witness.' " (People v. Wilson, supra, 36 Cal.4th at p. 343.)
We conclude the trial court did not err in finding Hana unavailable under Evidence
Code section 240, subdivision (a)(5), and admitting her preliminary hearing testimony.
Because the trial court did not err, we need not consider Mason's arguments regarding
prejudice.
II
The trial court admitted a video recording of Marquis Veal's statements to police
detectives about the Velma Terrace shootings. In the video, Veal identifies Mason, along
with Bell, Morris, and Perry, as taking part in the shootings. One of the detectives, Scott
Barnes, testified that Veal identified Bell as the source of Veal's information about the
Velma Terrace shootings.9 The trial court reasoned that Bell's statements to Veal, while
hearsay, were admissible as statements against Bell's penal interest. (See Evid. Code,
§ 1230.)
8 We note that Mason's discussion of the possibility of electronic tracking relies
largely on speculation and unsupported assertions regarding the technical feasibility and
legality of the procedure.
9 The defense offered testimony from another police detective who interviewed
Veal the day after Barnes. That detective testified that Veal told him that Bell had named
only himself as a participant. Veal heard the others were involved only through rumors.
18
Evidence Code section 1230 provides as follows: "Evidence of a statement by a
declarant having sufficient knowledge of the subject is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and the statement, when made,
was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected
him to the risk of civil or criminal liability, or so far tended to render invalid a claim by
him against another, or created such a risk of making him an object of hatred, ridicule, or
social disgrace in the community, that a reasonable man in his position would not have
made the statement unless he believed it to be true."
"[I]n order to qualify for admission [under this hearsay exception], '[t]he
proponent of such evidence must show that the declarant is unavailable, that the
declaration was against the declarant's penal interest when made and that the declaration
was sufficiently reliable to warrant admission despite its hearsay character.' " (People v.
Brown (2003) 31 Cal.4th 518, 535.)
This exception is limited to statements that are specifically disserving of the
declarant's penal interests; collateral assertions do not qualify. (People v. Duarte (2000)
24 Cal.4th 603, 612.) "In order to ' "protect defendants from statements of unreasonable
men if there is to be no opportunity for cross-examination," ' we have declared section
1230's exception to the hearsay rule 'inapplicable to evidence of any statement or portion
of a statement not itself specifically disserving to the interests of the declarant.' " (Ibid.)
" 'The focus of the declaration against interest exception to the hearsay rule is the
basic trustworthiness of the declaration. [Citations.] In determining whether a statement
is truly against interest within the meaning of Evidence Code section 1230, and hence is
19
sufficiently trustworthy to be admissible, the court may take into account not just the
words but the circumstances under which they were uttered, the possible motivation of
the declarant, and the declarant's relationship to the defendant.' " (People v. Geier (2007)
41 Cal.4th 555, 584; see People v. Greenberger (1997) 58 Cal.App.4th 298, 335 ["The
trial court must look to the totality of the circumstances in which the statement was made,
whether the declarant spoke from personal knowledge, the possible motivation of the
declarant, what was actually said by the declarant and anything else relevant to the
inquiry."].) "We review a trial court's decision as to whether a statement is against a
defendant's penal interest for abuse of discretion." (People v. Lawley (2002) 27 Cal.4th
102, 153.)
Mason challenges the admission of those portions of Bell's statement (as repeated
by Veal) that name Mason as a participant in the Velma Terrace shootings. "When
examining what was actually said by the declarant special attention must be paid to any
statements that tend to inculpate the nondeclarant. This is so because a statement's
content is most reliable in that portion which inculpates the declarant. It is least reliable
in that portion which shifts responsibility. Controversy necessarily arises when the
declarant makes statements which are self-inculpatory as well as inculpatory of another.
This is why Evidence Code section 1230 only permits an exception to the hearsay rule for
statements that are specifically disserving of the declarant's penal interest. [Citation.]
This is not to say that a statement that incriminates the declarant and also inculpates the
nondeclarant cannot be specifically disserving of the declarant's penal interest. Such a
determination necessarily depends upon a careful analysis of what was said and the
20
totality of the circumstances." (People v. Greenberger, supra, 58 Cal.App.4th at p. 335;
see People v. Lawley, supra, 27 Cal.4th at p. 154.)
The exact statement that Bell made to Veal is not part of the record. Veal's
description of Bell's statement is, at best, unclear. Although Bell and Veal are friends
and fellow gang members, the circumstances and context of Bell's statements to Veal are
largely unknown. However, even assuming the trial court erred in admitting Veal's
statements implicating Mason, we conclude any such error was harmless.
The parties agree that we review the prejudicial effect of this error under People v.
Watson (1956) 46 Cal.2d 818, 836. (See People v. Samuels (2005) 36 Cal.4th 96, 121;
see also People v. Duarte, supra, 24 Cal.4th at p. 619.) Under this standard, we must
determine whether it is reasonably probable that Mason would have obtained a more
favorable verdict if the court had excluded Veal's statements. (See People v. Watson,
supra, 46 Cal.2d at p. 836; see also People v. Garcia (2008) 168 Cal.App.4th 261, 292.)
Here, Veal's statements were the weakest of the evidence directly tying Mason to the
Velma Terrace shootings. The source of Veal's information, Bell, was Mason's
accomplice. At trial, Veal claimed he lied to the detectives and told them only what they
wanted him to say. Another police detective, who interviewed Veal a day later, testified
that Veal told him that he heard Mason was involved only through rumors. After Veal's
interview with the detectives, police let him out of jail temporarily to attend his
grandmother's funeral.
By contrast, other evidence tying Mason to the Velma Terrace shootings was quite
strong: Hana identified Mason as one of the perpetrators, and Mason's DNA was found
21
on a freshly-dropped cigarette in the bathroom where Newbern and McGhee's bodies
were found. Mason's participation in the Velma Terrace shootings was also consistent
with his position in the Lincoln Park gang and his close friendship with Morris, whose
DNA was also found at the scene and whose relationship with Z.Z. was severed over
Z.Z.'s failure to share the revenue from his drug distribution. Given this evidence, we do
not find it reasonably probable that Mason would have achieved a more favorable result
if Veal's statements had been excluded.10
III
Mason was convicted of four counts of possession of a firearm by a felon.
(Former § 12021, subd. (a)(1).)11 Each count specified a date of possession,
corresponding to the dates of the Suncrest shootings, the Capistrano drive-by shooting,
the Keeler drive-by shooting, and the police chase that led to the recovery of the firearm
used in each. The prosecution's theory was that Mason possessed the same firearm on
each of the specified dates.
Mason contends that the evidence does not support four separate convictions for
possession because his possession of the firearm was continuous throughout the period
10 Mason relies on statements by one juror, after the guilt phase had ended, that she
had reconsidered her verdict and potentially had reasonable doubt as to one or more of
the charges against Mason. Consideration of the juror's statements appears to be barred
by Evidence Code section 1150. (See People v. Peavey (1981) 126 Cal.App.3d 44, 50-
51.) Moreover, we disagree that the juror's vague statements—which do not relate to
Veal or the Velma Terrace shootings specifically—show that the admission of Veal's
statements was prejudicial.
11 As of January 1, 2012, former section 12021, subdivision (a)(1), was repealed and
recodified without substantive change as section 29800, subdivision (a)(1). (Stats. 2010,
ch. 711, § 6; see People v. Correa (2012) 54 Cal.4th 331, 334, fn. 1 (Correa).)
22
covered by the dates in question. Mason argues that the evidence supports only a single
conviction for possession. The Attorney General disagrees, arguing that the possessions
were distinct as to time and place, and accompanied by different objectives, such that
they should constitute separate offenses.
Former section 12021, subdivision (a)(1) provided as follows: "Any person who
has been convicted of a felony under the laws of the United States, the State of
California, or any other state, government, or country or of an offense enumerated in
subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any
narcotic drug, and who owns, purchases, receives, or has in his or her possession or under
his or her custody or control any firearm is guilty of a felony."
"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. 344.)
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 (Wright);
see People v. Warren (1940) 16 Cal.2d 103, 112 (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
23
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 (Keehley); see People v. Davis (2002) 102 Cal.App.4th 377,
381 (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.)
Here, Mason was convicted of four counts of possessing the same firearm,
corresponding to four different dates of possession.12 Although the evidence showed
that Mason possessed the firearm on each of the dates, there was no evidence that
Mason's possession of the firearm was anything but continuous over the period
encompassing the four dates. The prosecution did not present evidence, for example,
showing that Mason had relinquished possession of the gun for a period between the
specified dates. Mason's crime was complete at the time he first possessed the gun
12 The evidence here is therefore distinguishable from Correa, which involved
multiple convictions arising from a defendant's possession of multiple firearms. (See
Correa, supra, 54 Cal.4th at pp. 334-335; see also People v. Crawford (1982) 131
Cal.App.3d 591, 595-596 [requiring unanimity instruction where defendant was charged
with a single count of possession but the evidence showed defendant's simultaneous
possession of four separate firearms].)
24
because he violated the duty imposed by the statute not to do so. (See Wright, supra, 15
Cal.4th at p. 526.) But the crime continued—as a single offense—for as long as the same
possession continued, i.e., so long as Mason continued to violate his duty under the
statute. (See ibid.; see also Keehley, supra, 193 Cal.App.3d at p. 1385.)
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 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.
25
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 Act "does not provide that it is an
offense for each day that the ex-convict is in possession of the weapon . . . ." and notes
that this principle is "especially" true where "the information does not charge the
possession on a specific date or on a particular occasion." (Warren, supra, 16 Cal.2d at
p. 112.) The fact that the principle is "especially" true under such circumstances does not
mean that it cannot be true under other circumstances. (See ibid.) Subsequent cases
interpreting the concepts underlying continuing offenses support this interpretation, as we
have discussed. (See Wright, supra, 15 Cal.4th at p. 526; Davis, supra, 102 Cal.App.4th
at pp. 381-382; Keehley, supra, 193 Cal.App.3d at p. 1385.) The fact of separate
charging alone does not convert a single, continuing offense into multiple offenses.
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.
26
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 . . . ." (§ 667,
subd. (e)(2)(A).) Mason contends that the court erred in tripling his life sentences
without parole because such sentences have no minimum term under the statute.
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 (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 doubling terms of life imprisonment without parole was "absurd," noting
the possibility that the Governor might commute one or more of the sentences (but leave
other sentences in effect). (Id. at pp. 1433, 1434.)
The next year, the Court of Appeal for the Third Appellate District disagreed.
(People v. Smithson (2000) 79 Cal.App.4th 480, 503-504.) In Smithson, the court
27
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, 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, 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,
28
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.)
The rationale cited by Hardy, that the purpose of the Three Strikes law was to
increase the sentences for second and third strike offenders, is unpersuasive. (See Hardy,
supra, 73 Cal.App.4th at p. 1434.) An offender sentenced to one term of life
imprisonment without parole serves the same sentence as an offender sentenced to three
such terms: imprisonment under each sentence will extend for the entirety of the
offender's natural life. We likewise find it unlikely that the presence of tripled life
sentences without the possibility of parole, for a single offense, would bear in any way on
an offender's ability (or inability) to benefit from the Governor's commutation.
(Cf. Hardy, at pp. 1433-1434.) Commutation of only one of an offender's tripled life
sentences without parole, for example, would serve no meaningful purpose.
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.
29
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.
MCCONNELL, P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
30