People v. Jones CA1/2 ( 2020 )

Filed 11/10/20 P. v. Jones CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A155649
v.
JERMAINE JONES, (San Mateo County
Super. Ct. No. SC081953A)
Defendant and Appellant.
In August of 2011, Carl Purvis, Jr. was shot and killed while driving
his car in East Menlo Park. A jury convicted defendant Jermaine Jones of
first-degree murder, and found true the special circumstance that Jones
intentionally murdered Purvis by shooting a firearm from a motor vehicle.
Jones argues that the special circumstance finding must be reversed because
it duplicated the prosecution’s theory of first-degree murder, and that the
trial court erred in refusing to instruct the jury on imperfect self-defense, in
admitting certain firearms evidence, and in limiting his counsel’s cross-
examination of a prosecution witness. We affirm.
BACKGROUND
Around 2:00 a.m. on the morning of June 4, 2011, two masked men put
a gun to Jones’s head, took his car keys, and stole his car—a red, four-door
Chrysler with “comb rims.” Jones called 911 and told the dispatcher that he
did not know the men, but asked police to check for the car on Alberni street
1
in East Palo Alto. Jones’s girlfriend at the time, Kimberly Brown, would
later testify that Jones told her that Purvis (known as “Man Man”) was one of
the carjackers, and a “hater” who “hat[ed] on [Jones] every time [Jones] went
over to Alberni Street,” where Purvis lived. Later that morning, police
recovered the car and returned it to Jones.
On August 18, 2011, around 6:00 p.m., Jose Juan Lopez saw what he
described as a “red candy”-colored Chrysler—which he later identified as
Jones’s car—following a Pontiac Grand Am on Plumas Avenue in Menlo
Park. A surveillance camera from a nearby house also captured Jones’s car
following Purvis’s car.
At around 5:55 p.m., Mariela Gonzalez saw Purvis’s car come to a stop
at the intersection of Almanor Avenue and Newbridge Street. She then saw
Jones’s car, driven by an African-American man with “little to no hair and a
little heavier-set than the other driver,” pull up next to it. The driver of
Jones’s car then fired two shots at Purvis’s car, and then Jones’s car “sped off
really fast.” Purvis’s car stopped on the sidewalk in front a nearby church.
Purvis was later pronounced dead at the scene.
On the night of August 22, Jones’s car was towed from an address on
Shropshire Court in Stockton, and released back to Jones the next day. On
August 23, Stockton police conducted a stop of the car and arrested Jones for
Purvis’s murder. Jones had two cell phones and a wallet on his person when
he was arrested. An August 19 newspaper article about Purvis’s murder was
subsequently found in the wallet.
In a search of Jones’s car, a .45-caliber Springfield Armory XD45LE
handgun was found under the hood and under the air filter. Analysis of the
gun later determined that it had Jones’s fingerprints, palm print, and DNA
2
on it. Ballistic analysis also determined that the gun had fired bullets
recovered from Purvis’s body, as well as the door and floorboard of his car.
A data extraction from an HTC brand phone that Jones had when he
was arrested produced several images of Jones holding what appeared to be
the Springfield Armory XD45LE handgun, as well as various firearm related
searches performed on August 16, including two related to a Springfield
Armory XD45 handgun.
On October 16, 2014, an amended indictment was filed charging Jones
with the murder of Purvis (Pen. Code, § 187)1 (count 1), shooting at an
occupied vehicle (§ 246) (count 2), and possessing a firearm as a felon
(§ 29800, subd. (a)(1)) (count 3). With respect to count 1, the indictment
further alleged the special circumstance that Jones intentionally murdered
Purvis by shooting a firearm from a motor vehicle (§§ 190, subd. (d), 190.2,
subd. (a)(21)) and that Jones personally and intentionally discharged a
firearm causing death (§ 12022.53, subd. (d)). The information also alleged a
prior serious felony conviction (§§ 667, subd. (a), 1170.12, subd. (c)(1)), and
three prior prison terms (§ 667.5, subd. (b)).
Trial took place in February and March of 2018.
The prosecution argued that Jones was guilty of first-degree murder
under two theories—that he premeditated and deliberated before shooting
Purvis, and that he committed the murder by shooting a firearm from a
motor vehicle. (See § 189, subd. (a).)
Jones testified in his own defense. According to Jones, a man named
“Dollar” had previously expressed interest in buying his car, and on August
16, had offered to give him a gun and a large quantity of ecstasy pills in
1 Further undesignated statutory references are to the Penal Code.
3
exchange for the car, and had searched on Jones’s cell phone for the gun to
see how much it was worth. On the day of the shooting, Dollar came to his
door with the gun and Jones took pictures with it. Later that day, around
5:00 p.m., Jones went to the house of a man known as “Stag” and saw Dollar
again; Dollar asked to test drive the car and was gone about 45 minutes.
When he returned, he told Jones: “Me and that nigga whip it hard.[2] Just
got on somebody.”
Jones also introduced evidence, including the testimony of Menlo Park
police officer Nicholas Douglas and a letter written by Brian Seefeldt, Wilbert
Ard’s cellmate in jail, that Ard had confessed to Seefeldt that he had killed
Purvis because Purvis betrayed the Taliban gang, to which they both
belonged, and was going to inform the FBI about the gang’s plan to kill
federal judges.3
On March 9, the jury found Jones guilty on all three counts and found
true the firearm enhancement and drive-by special circumstance allegations.
On August 31, the trial court found true the prior conviction allegations.
On October 19, the trial court sentenced Jones to life without the
possibility of parole on count 1, five years on count 2 which was imposed and
stayed under section 654, and two years on count 3, doubled to four years as a
second strike. The court imposed the 25 year to life section 12022.53,
subdivision (d) enhancement on count 1 and stayed it on count 2, and
The transcript reflects that Jones said “whip it hard,” but on cross-
2
examination Jones clarified that he said “Wilbert Ard.”
3Seefeldt was a witness for the defense, who testified he had suffered a
head injury in 2007 that caused problems with his long-term memory and
that he did not remember anything about many of the events in question.
4
imposed five years on the prior felony (§ 667, subd. (a)), for a total sentence of
life without possibility of parole plus 34 years to life.
Jones appeals.
DISCUSSION
Jones argues that (1) the special circumstance finding should be
reversed because it duplicates the requirements for drive-by first-degree
murder; (2) the trial court erred in failing to instruct on imperfect self-
defense; (3) the trial court erred in admitting certain firearms evidence;
(4) the trial court erred in prohibiting defense counsel from asking a
prosecution witness if the victim had previously shot her brother; and (5) the
cumulative effect of these errors requires reversal.
I. The Eighth Amendment’s “Narrowing” Requirement Does Not
Apply Because Jones Was Not Sentenced to Death
Jones’s first argument is that the special circumstance finding must be
reversed because it is requires the same elements as the prosecution’s drive-
by theory of first-degree murder, and thus fails to satisfy the “narrowing”
requirement of the Eighth Amendment. (See §§ 189, subd. (a), 190.2,
subd. (a)(21); CALCRIM Nos. 521, 735.) Jones relies on cases holding that
“[t]o comply with the Eighth Amendment, a state’s capital punishment
scheme must include an ‘ “objective basis for distinguishing” ’ a capital case
from a noncapital case. (People v. Crittenden (1994) 9 Cal. 4th 83, 154; see
Godfrey v. Georgia (1980) 446 U.S. 420, 433.) ‘A legislative definition lacking
“some narrowing principle” to limit the class of persons eligible for the death
penalty and having no objective basis for appellate review is deemed to be
impermissibly vague under the Eighth Amendment.’ (People v. Bacigalupo
(1993) 6 Cal. 4th 457, 465.)” (People v. Arce (2020) 47 Cal. App. 5th 700, 711.)
5
The Attorney General argues that Jones has waived his Eighth
Amendment argument because he did not raise it before the trial court.
However, because Jones also argues that his counsel was ineffective in failing
to object to his sentence under the Eighth Amendment, we will reach—and
reject—the argument on the merits. Indeed, as Jones acknowledges, his
argument has already been rejected in People v. Rodriguez (1998)
66 Cal. App. 4th 157, 164 (Rodriguez):
“Defendant initially suggests that section 190.2[, subdivision] (a)(21)
contains a constitutional infirmity simply because it duplicates the elements
which defined defendant’s murder as, or ‘elevated’ it to, first degree murder
by way of the third category defined in section 189.[4] This suggestion,
however, has already been decided to have no merit, and we therefore need
not consider it further. (Lowenfield v. Phelps (1987) 484 U.S. 231[, 246]
[special circumstance of multiple murder may duplicate elements defining
defendant’s crime as first degree murder]; People v. Edelbacher (1989)
47 Cal. 3d 983, 1023, fn. 12 [rejecting suggestion of similar argument
regarding ‘lying in wait’ special circumstance].)”
Jones acknowledges that Rodriguez, and the cases on which it relied,
rejected his argument, but claims that Rodriguez is no longer valid on this
point because in People v. Johnson (2016) 62 Cal. 4th 600 (Johnson) our
Supreme Court “held that a constitutional challenge to a special
circumstance for a lack of ‘narrowing’ may be made in a LWOP case.”
Johnson held no such thing.
4Section 189 provides, in relevant part: “[M]urder that is perpetrated
by means of discharging a firearm from a motor vehicle, intentionally at
another person outside of the vehicle with the intent to inflict death, is
murder of the first degree.”
6
In Johnson, the jury convicted the defendant of lying-in-wait first-
degree murder (§ 189, subd. (a)) and found true a lying-in-wait special
circumstance (§ 190.2, subd. (a)(15)), and the defendant was sentenced to
death. (Id. at p. 607.) In concluding that defendant’s conviction did not
violate the Eighth Amendment, the Johnson court discussed People v.
Superior Court (Bradway) (2003) 105 Cal. App. 4th 297 (Bradway), which held
that the lying-in-wait special circumstance was not unconstitutionally vague.
(Johnson, supra, 62 Cal.4th at p. 635; Bradway, supra, 105 Cal.App.4th at
pp. 309–311.) Johnson included this footnote regarding Bradway:
“Because Bradway was sentenced to life without the possibility of
parole, rather than death, his constitutional challenge to the lying-in-wait
special circumstance arose as a void-for-vagueness claim under the due
process clause. (Bradway, supra, 105 Cal.App.4th at p. 309.) However, his
vagueness challenge echoed the ‘specialized concept of vagueness most clearly
defined by the [United States] Supreme Court in dealing with Eighth
Amendment challenges to death penalties.’ (Bradway v. Cate (9th Cir. 2009)
588 F.3d 990, 991.)” (Johnson, supra, 62 Cal.4th at p. 635, fn. 4.)
Thus Johnson—which was a death penalty case—did not hold that an
Eighth Amendment narrowing claim can be brought where the defendant
receives a sentence of life without possibility of parole, but rather that such a
claim takes the form of a void-for-vagueness claim under the due process
clause. (See Bradway v. Cate, supra, 588 F.3d at p. 991 [“Bradway recognizes
that he lacks standing for an Eighth Amendment death penalty challenge
because he was not sentenced to death, see Houston v. Roe [(9th Cir. 1999)]
177 F.3d 901, 907–908, so he presents his rather specialized vagueness
challenge to California’s special circumstance under the Due Process
Clause”].) But Jones has not asserted any void-for-vagueness claim under
7
the due process clause. Nor could he, because “[o]bjections to vagueness
under the Due Process Clause rest on the lack of notice, and hence may be
overcome in any specific case where reasonable persons would know that
their conduct is at risk.” (Maynard v. Cartwright (1988) 486 U.S. 356, 361;
see also Kolender v. Lawson (1983) 461 U.S. 352, 357 [invalidating as vague a
statute that did not “define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement”].)
And the “conduct to which [section 190.2, subdivision (a)(21)] applies is not in
doubt.” (Rodriguez, supra, 66 Cal.App.4th at p. 171.) In sum, Jones’s
argument that the special circumstance finding violates the Eighth
Amendment fails.
II. The Trial Court Did Not Err in Failing to Instruct on Imperfect
Self-Defense
Jones next argues that the trial court erred in refusing his request that
the jury be instructed on imperfect self-defense. Jones contends that the
evidence supported such an instruction because he believed that Purvis was
one of the men who stole his car on June 4, 2011, and because he believed
Purvis was a member of the “Taliban gang,” and thus that he “would have
been afraid of further armed attack by Purvis, when he saw Purvis’ car
directly next to his.”
“California law requires a trial court, sua sponte, to instruct fully on all
lesser necessarily included offenses supported by the evidence,” which, in a
murder prosecution, includes “the obligation to instruct on every supportable
theory of the lesser included offense of voluntary manslaughter, not merely
the theory or theories which have the strongest evidentiary support, or on
which the defendant has openly relied.” (People v. Breverman (1998)
8
19 Cal. 4th 142, 149.) However, “ ‘[s]uch instructions are required only where
there is “substantial evidence” from which a rational jury could conclude that
the defendant committed the lesser offense, and that he is not guilty of the
greater offense. [Citation.]’ ” (People v. Williams (2015) 61 Cal. 4th 1244,
1263.) On appeal, we review de novo the trial court’s decision not to give a
particular instruction. (People v. Manriquez (2005) 37 Cal. 4th 547, 581, 584.)
The requested jury instruction on imperfect self-defense—CALCRIM
No. 571—provides that a killing that would otherwise be murder is reduced
to voluntary manslaughter if the following elements are satisfied:
“1. The defendant actually believed that (he/she/ [or] someone
else/) was in imminent danger of being killed or
suffering great bodily injury;
“AND
“2. The defendant actually believed that the immediate use of deadly
force was necessary to defend against the danger;
“BUT
“3. At least one of those beliefs was unreasonable.
“Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be.”
In this case, there is no substantial evidence of either the first or
second element. The only direct evidence of Jones’s state of mind at the time
of the shooting was his own testimony, and it was flatly inconsistent with
self-defense, imperfect or otherwise. As noted, Jones testified that he let
“Dollar” take his car for a test drive around the time of the shooting, and
denied both having killed Purvis and having pulled the trigger of a gun on
August 18, 2011. He also testified that he and Purvis “were never enemies,”
and denied believing that Purvis was responsible for his June 2011
9
carjacking. Obviously, all of this is entirely inconsistent with Jones having
killed Purvis in self-defense.
Even if the jury did not believe Jones’s testimony, there is no other
evidence that Jones believed that he was in imminent danger, and no
evidence that Jones actually believed deadly force was necessary to defend
against any such danger. That Jones believed Purvis had stolen his car two
months prior was manifestly insufficient, because the imminent threat
permitting one to act in self-defense or imperfect self-defense must be
“ ‘immediate and present. . . . [O]ne that, from appearances, must be
instantly dealt with.’ ” (People v. Aris (1989) 215 Cal. App. 3d 1178, 1187;
accord, In re Christian S. (1994) 7 Cal. 4th 768, 783.) And even if Purvis was
a member of a gang who normally carried a gun, there is no evidence that
Jones had any knowledge of that fact, which would in any event have been
insufficient to justify the instruction. (See People v. Manriquez, supra,
37 Cal.4th at p. 582 [evidence that victim usually carried a gun did not
support imperfect self-defense instruction where “the record contains no
evidence that defendant possessed a similar knowledge or belief”].) There
was no error in declining to give the requested instruction on imperfect self-
defense.
III. The Trial Court Did Not Err in Admitting Certain Firearms
Evidence
Jones next argues that it was error to admit certain firearms evidence,
invoking the rule that “it is generally error to admit evidence that the
defendant possessed a weapon that could not have been the one used in the
charged crime.” (People v. Sanchez (2019) 7 Cal. 5th 14, 55.) The reason is
that “such evidence proves only that the defendant is in the habit of
possessing a deadly weapon and is not probative on the issue of whether he
10
had possessed the particular weapon involved.” (People v. Gunder (2007)
151 Cal. App. 4th 412, 416; see People v. Riser (1956) 47 Cal. 2d 566, 577
[“When the prosecution relies, however, on a specific type of weapon, it is
error to admit evidence that other weapons were found in his possession, for
such evidence tends to show, not that he committed the crime, but only that
he is the sort of person who carries deadly weapons”].)
As to the particular evidence here, Doretha Smith, with whom Jones
lived for about a month around May of 2011, testified that Jones requested
that she assist him in obtaining a 9-millimeter firearm around that time, and
that she did so.5 Smith went on to testify that in late June 2011, Jones asked
her via text message to purchase a .45-caliber handgun for him, but that she
did not respond to that request.
Jones also argues that it was error to admit People’s Exhibits 223 and
224, which were internet searches extracted from his cell phone and dated
August 16, 2011, for various handguns, including a “Glock”-style handgun.
Finally, Jones contends that it was error to admit People’s Exhibit 259, which
5 “Q Okay. With that in mind, was there an occasion earlier in 2011
when the Defendant asked you for assistance in purchasing a firearm?
“A Yes.
“Q Can you tell us what type of firearm it was?
“A It was a 9-millimeter.
“Q During that time, did you know someone that you could buy an
illegal firearm from?
“A Yes.
“Q Did you, in fact, assist Mr. Jones to acquire that illegal 9-millimeter
firearm?
“A Yes.
“Q Why? And I’m asking for your reason.
“A Well, because it was also to be for security for the home, so I went
ahead and helped purchase it.”
11
he characterizes as “a photograph found in [his] cell phone of an HTC brand
handgun.”
To begin with, these objections are forfeited because Jones did not raise
them before the trial court. (See Evid. Code, § 353, subd. (a) [reversal for
erroneous admission of evidence precluded unless “[t]here appears of record
an objection to or a motion to exclude or to strike the evidence that was
timely made and so stated to make clear the specific ground of the objection
or motion”]; People v. Williams (1998) 17 Cal. 4th 148, 161, fn. 6.) Jones’s
counsel objected to the admission of this evidence on the grounds that its
probative value was outweighed by prejudice, and lack of foundation, but did
not raise the argument he now asserts on appeal. However, because Jones
also argues that his counsel was ineffective in failing to raise this objection,
we will consider the merits.
With respect to the testimony of Smith and the searches for handguns
from Jones’s cell phone, the rule of People v. Riser, supra, 47 Cal. 2d 566, does
not apply, because this evidence clearly had probative value apart from
showing that Jones was the “sort of person who carries deadly weapons.”
(Id. at p. 577.) Given that the murder in this case was committed on August
18, 2011 with a .45-caliber handgun, evidence showing that Jones asked
Smith in late June to purchase him just such a handgun was plainly
relevant, and evidence of Smith’s previous purchase of a different handgun
for Jones was relevant to explaining that request. And evidence that Jones
was searching for various handguns on his phone two days before the murder
was relevant to suggest that he ultimately obtained a gun and committed the
murder, even if some of the guns searched for were ultimately not the murder
weapon. In short, the rule of Riser does not apply here, because the evidence
was probative of whether Jones ultimately possessed the murder weapon.
12
Accordingly, there was no error in admitting it. (See People v. Gunder, supra,
151 Cal.App.4th at p. 417 [“the extent to which evidence demonstrates
criminal propensity is simply a factor to consider in assessing the prejudice
from its admission; it is not a basis for exclusion unless the evidence
otherwise lacks any probative value”].)
With respect to People’s Exhibit 259, Jones’s argument appears to
misrepresent the record. Inspector Matthew Broad, who performed a data
extraction on Jones’s HTC brand cell phone, testified as follows regarding
People’s Exhibit 259:
“Q Okay. All right. So let’s, then, focus on the image, on these five,
that you did find metadata on, you said it was People’s 211. Did you then
create a one-page report for that particular image, including the metadata
information you found?
“A I did.
“Q I’m handing you what has been marked as People’s Exhibit 259. Is
this the one-page report containing the image and the metadata information?
“A Yes.
“Q Now, can you explain a little bit about what we see when we’re
looking at People’s 259?
“A So the top image is a thumbnail of the original image that is placed
there for our benefit. Then below that, you see the file name, which was the
name given to the image by the forensic software as it was being recovered,
so it was a recovered image. It didn’t have a file name anymore. And then
below is a bookmark comment, which includes text that I basically copied out
and pasted in to be viewed. And this is the beginning of the file, so, for
instance, the first—you just lost it.”
13
According to Menlo Park Officer David Apple, People’s Exhibit 211, the
“original image” included in People’s Exhibit 259 in thumbnail form, depicted
Jones holding a firearm which was similar to the murder weapon. Jones’s
argument that the trial court erred in admitting People’s Exhibit 259 because
it depicted Jones holding an “HTC brand handgun” that “could not have been
used in the charged crime” does not accurately describe that exhibit.
IV. The Trial Court Did Not Err in Preventing Defense Counsel from
Asking Tatiana Harmon if Purvis Shot Her Brother
Jones’s next argument is that the trial court erred in prohibiting his
counsel from asking Tatiana Harmon—Purvis’s girlfriend, and the mother of
his child—whether Purvis had previously shot her brother. This is the
background:
Outside the presence of the jury, defense counsel explained to the trial
court: “I also indicated that given [Harmon’s] testimony, that she has
indicated to the police that Man Man, on a prior occasion, had shot her
brother, and I wanted to inquire as to that of the witness with respect to that
line of questioning with regard to her testimony, and [the prosecutor]
objected. Those would be my requests.” The trial court refused this request
as “not relevant to the issues currently before the Court.”
Jones argues that this testimony was relevant because it showed that
“Purvis was a member of the firearms-wielding Taliban gang,” that members
of that gang “often fired handguns at other persons in the East Palo Alto
area,” and that Purvis “was the kind of person who would inform on his
friends to the FBI,” and “was the type of untrustworthy person who would
endanger his fellow-Taliban gang members by talking to the FBI about
them.”
14
This claim fails, first, because Jones failed to make an offer of proof as
to Harmon’s testimony. (See Evid. Code, § 354, subd. (a) [reversal based on
exclusion of evidence requires that “[t]he substance, purpose, and relevance
of the excluded evidence was made known to the court by the questions
asked, an offer of proof, or by any other means”].) Jones concedes he made no
such offer, but contends that one was not required because Harmon was a
prosecution witness, and “[t]he evidence was sought by questions asked
during cross-examination.” (Id., subd. (c).) However, “[t]his exception applies
only to questions within the scope of the direct examination.” (People v.
Hardy (2018) 5 Cal. 5th 56, 103.) On direct examination, Harmon testified
regarding two conversations she had with Kimberly Brown regarding
Purvis’s death, and an incident in which Purvis shot her brother was outside
the scope of that direct examination, as Jones appears to concede on reply.
In addition, any error in excluding this evidence was harmless because
it is not reasonably probable that a more favorable result would have been
reached absent the alleged error. (See People v. Watson (1956) 46 Cal. 2d 818,
837.) Jones contends that the fact that Purvis shot Harmon’s brother showed
that Purvis was “violent and untrustworthy,” and thus “supported Ard’s
explanation of his motive for killing Purvis,” that is, that Ard shot Purvis to
punish him for informing on the Taliban gang to the FBI. But the evidence
at trial already showed that Purvis was associated with the Taliban gang and
suggested that he had committed an armed carjacking of Jones, with the
prosecutor’s opening statement acknowledging that Purvis “was no angel”
and was “associated with members of a criminal street gang known as the
Taliban.” Evidence of a further incident in which Purvis shot his girlfriend’s
brother—even had it been included in what was a eight-day trial featuring
the testimony of dozens of witnesses—would have been cumulative to this
15
evidence and would not have created a reasonable probability of a more
favorable result.6
V. There Was No Cumulative Error
Jones’s final argument is that the cumulative effect of the errors he
alleges require reversal. Since we have found no prejudicial error in any
respect, this argument fails. (People v. Coryell (2003) 110 Cal. App. 4th 1299,
1309.)
DISPOSITION
The judgment is affirmed.
6 For the same reason, we reject Jones’s argument that this limitation
on his cross-examination of Harmon was a violation of his rights under the
confrontation clause. (See People v. Linton (2013) 56 Cal. 4th 1146, 1188
[“However, not every restriction on a defendant’s desired method of cross-
examination is a constitutional violation. Within the confines of the
confrontation clause, the trial court retains wide latitude in restricting cross-
examination that is repetitive, prejudicial, confusing of the issues, or of
marginal relevance”].)
16
_________________________
Richman, Acting P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
People v. Jones (A155649)
17