People v. Settles CA2/8

Filed 12/3/21 P. v. Settles CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303705
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA461802)
v.
ZEKIAH SETTLES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed.
Verna Wefald, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Sixteen-year-old Zekiah Settles (appellant) was convicted of
the first degree murder of 16-year-old Kevin Cleveland (Pen.
Code, § 187, subd. (a))1 and the willful, deliberate and
premeditated attempted murders of 17-year old Kierra Harris
and high school student Daymond Lafayette (§§ 187, subd. (a),
664).2 The jury found true firearm allegations (§ 12022.53, subds.
(b), (c), and (d)) and allegations that the offenses were committed
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1));
the evidence indicated that the shootings were in retaliation for
the murder of appellant’s uncle. Appellant was convicted
primarily by the testimony of co-defendant Raven Hall; her
testimony was sufficiently corroborated by one eyewitness to the
shooting and by appellant’s own statements on Facebook and
other social media. The trial court sentenced appellant to
130 years to life in prison, plus 14 years 8 months.
Appellant contends 1) the trial court erred in admitting a
December 2019 Facebook post in which he admitted he had a
gun; 2) the prosecutor impermissibly vouched for Hall when she
questioned Hall about the truthfulness requirement of her plea
agreement and referred to that requirement in her closing
argument; and 3) there is insufficient evidence to corroborate
Hall’s accomplice testimony. We affirm the judgment of
conviction.
1 Further undesignated statutory references are to the Penal
Code.
2 Before trial, appellant pled no contest to count 5 (robbery),
which was not related to the murder and attempted murders, and
to count 6 (possession of a firearm by a minor).
2
BACKGROUND
On December 10, 2016, appellant’s uncle, 16-year-old
Tyrone Davis, was killed in a suspected gang-related shooting.
Davis, known as “50 Bang,” was a member of the 5557
Neighborhood Crips (5557 Crips). The 5557 Crips were part of
the Rolling 50s gang. Appellant was a member of the Rolling 50s
gang and the 5557 subset; he was known as “BK7.” The 62
Brims, rivals of the Rolling 50s, were believed to be responsible
for shooting Davis. In a discussion of Davis’s murder on
Facebook two weeks after the killing, a friend told appellant he
should get a gun. Appellant replied on Facebook that he had one.
On April 4, 2017, Cody McCoy, a 5557 Crips gang member
known as D5, was shot in the ankle in a drive-by shooting on
56th Street, in an area claimed by the 5557 Crips. Surveillance
video of the shooting showed a black sedan and a gold Lexus
travelling down the street.
Raven Hall, a 19-year-old member of the 112 Neighborhood
Crips, also associated with the Rolling 50s gang, was present at
the shooting. She testified at trial pursuant to a plea agreement.
According to Hall, McCoy and appellant were in the front yard of
a house and began making gang signs as a car drove by.
Someone in the car started shooting. Hall, who was in her gold
Lexus with two other people, followed the car with the shooter.
She eventually realized that others were also following the car,
and decided to return to McCoy’s house. Along the way, she
picked up Noshi Hughes, a member of the Rolling 30s. The
various Rolling O's gangs are aligned with each other.
Appellant asked Hall for a ride, and she agreed. At
appellant’s direction, Hall drove him, Hughes, and McCoy into an
area claimed by the 62 Brims. At 60th and Vermont, Hughes
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pointed to a girl and asked appellant if he saw her. Appellant
looked, then told Hall to pull over. Hall eventually parked in an
alley as directed by appellant.
Appellant got out and walked toward Vermont. According
to Hall, Hughes said the girl she had pointed out had been
involved in Davis’s death.
Hall noticed a man taking out some trash. The man asked
Hall for her phone number. Hall gave him her name but not her
number. The man walked out of the alley. Hall heard gunshots.
The man returned and said, “He just did his shit. That nigger
just did his shit.”
Appellant returned and got into the back seat of the car.
He put a Glock into the pocket of his hoodie. Hall drove out of
the alley. Appellant said he “had to” because the girl had “set up”
his uncle. He said he was sorry. Hall dropped appellant and
McCoy off at McCoy’s house, then dropped Hughes off and went
home.
Surveillance cameras captured a shooting at Vermont and
60th Street around the time Hall heard shots and the man who
took out the trash made his observation. The videos of the
shooting itself were not good quality and did not provide a clear
view of the shooter. The videos did, however, provide a good view
of Hall’s gold Lexus.
Both the videos and the testimony of witnesses and victims
established that a group of young people was standing on the
corner when an African-American man in a dark hoodie walked
up and opened fire on the group. The young people, all or almost
all of whom were students at a near-by high school, scattered and
ran. The shooter hit Cleveland, Harris, and Lafayette.
4
Klenard Neadham, who was visiting his girlfriend at a local
business at the time of the shooting, took some trash out to the
alley next to Alba Snacks. There, he saw a parked gold four-door
sedan. A woman who looked like Beyonce was in the driver’s
seat. An African-American male about 18 years old, wearing a
gray hoodie, got out of the car and walked out of the alley toward
Alba Snacks. Neadham left the alley, saw the same man talking
to another man, then saw the man from the alley pull out a gun
and shoot the other man. Neadham ran back into the alley. He
heard more gunshots. Neadham then saw the man from the car
come back into the alley and get into the back seat of the gold car.
As the car sped past Neadham, he saw three people inside.
Neadham could not identify the shooter.
One of the high school students in the group on the corner,
Julian Myers, noticed the shooter as the shooter came out of the
alley next to Alba Snacks and walked toward the group. The
man was smiling and had his hands in his pockets. Myers
testified he recognized the man from Facebook. Myers testified
appellant, as shown in his Facebook profile photograph, looked
“exactly like” the shooter, but also stated he was not certain it
was the same person.3
3 There is some ambiguity in Myers’s trial testimony as to
whether he recognized appellant when he saw him at the corner
of Vermont and 60th because Myers had previously seen
appellant on Facebook, or whether he recognized appellant in a
Facebook photo he came across later that night when he was
scrolling through Facebook.
At trial, Myers was shown a print out of the profile page of
appellant’s Facebook account, and stated he recognized the
person on the right of the photo, appellant, as the shooter. Myers
was not asked to identify appellant in court.
5
According to Myers, appellant asked the group where they
were from. Myers understood appellant was asking for their
gang affiliation. Harris replied she was from Brims. Appellant
began firing at the group. People in the group began running.
Myers ran way. He was running toward an alley when a
gray or gold car pulled out. The car was driven by a woman
wearing glasses, and there were two other people in the car.
Myers believed the person in the front seat was the shooter. The
car sped off.
Myers turned and ran to a store because he was worried
the car might follow him. Myers saw victim Cleveland trying to
walk but he could not because of his injuries. Cleveland
appeared to be in pain and was yelling for someone to call his
mother. Cleveland was alive when paramedics took him away in
an ambulance, but died later from one of the three gunshot
wounds he had sustained.
Kierra Harris and Daymond Lafayette, who were in the
group of young people standing at the corner, were also wounded
by the shooter and taken to the hospital. Both survived.
Lafayette recalled a man in a gray hoodie approaching the
group and asking a question. Harris replied. The man began
shooting at the group. Lafayette ran inside a nearby donut shop,
realized he had been shot in the leg, and called his mother. He
could not identify appellant as the shooter at trial.
Harris testified that a man in a gray hoodie asked her
where she was from. She stated she kept walking and did not
reply. The man kept repeating the question. Harris did not
remember telling police that someone said “Westside Brims.”
Harris heard shots and began to run. She realized she had been
shot in the shoulder and eventually sat down on a curb. Harris
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denied being associated with a gang and denied anyone in the
group on the corner was associated with the Brims. She did not
remember telling police that some people in the group were
associated with the Brims. She could not identify appellant as
the shooter at trial.
As part of the police investigation of the shootings, Los
Angeles Police Department (LAPD) Detective Gorgonio Medina
obtained search warrants for Snapchat and Facebook records
relating to appellant from November 2016 through June 2017.
The detective also obtained search warrants for Hall’s and
Cleveland’s social media records for the same period.
Appellant’s Facebook entries in December 2016 mentioned
the murder of his uncle. In one exchange about two weeks after
the murder, appellant acknowledged he had a gun. Appellant’s
Facebook entries for April 4-7, 2017 referred to his uncle and to
“Fat Strap” which was a nickname for victim Cleveland, who was
overweight.
LAPD Officer Michael Alvarez, a gang expert, provided
background information on the gangs mentioned in connection
with the shootings. In response to a hypothetical based on the
facts of this case, Officer Alvarez opined the shootings were
committed in association with other gang members and were
done for the benefit of the gang.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Admitting
the Facebook Exchange Related to a Gun.
Appellant contends his admission in December 2016 on
Facebook that he had a gun did not show that he had a gun on
April 4, 2017 and so was not relevant to the charges against him.
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He also argues evidence of his past possession of a gun was
prejudicial. He contends the trial court abused its discretion in
admitting the statement and violated his right to due process.
We see no abuse of discretion and no due process violation.
“Except as otherwise provided by statute, all relevant
evidence is admissible.” (Evid. Code, § 351.) “ ‘ “The test of
relevance is whether the evidence tends ‘logically, naturally, and
by reasonable inference’ to establish material facts such as
identity, intent, or motive.” ’ ” (People v. Young (2019) 7 Cal.5th
905, 931 (Young).) Even relevant evidence may be excluded “if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.” (Evid. Code, § 352.)
We review a trial court’s decision under Evidence Code
section 352 for an abuse of discretion, and do not disturb that
ruling unless “ ‘ “the trial court acted in an arbitrary, capricious,
or absurd manner resulting in a miscarriage of justice.”
[Citation.] When evidence is erroneously admitted, we do not
reverse a conviction unless it is reasonably probable that a result
more favorable to the defendant would have occurred absent the
error.’ ” (Young, supra, 7 Cal.5th at p. 931.)
At the hearing on the admissibility of the Facebook
statement, the prosecutor noted that the remark was made as
part of a conversation about appellant’s uncle’s murder, which
took place about two weeks after that event. The prosecutor
contended it “shows already the beginning of a plan to retaliate
. . . . [¶] And in this case, obviously, there’s going to be issues of
motive, premeditation.” Appellant’s counsel pointed out the age
of the statement, and argued: “A lot of things can happen. Being
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angry at the time of close to an incident, and many months later,
time—things cooled off.” The court replied the age of the
statement “really goes more to the weight that the evidence is
going to be given as opposed to admissibility.” The court added
that the evidence “goes directly to the People’s theory.”
The Facebook exchange is clearly probative of the issues of
appellant’s motive and premeditation. The trial court was correct
concerning the age of the exchange. “[T]he passage of time
generally goes to the weight of the evidence, not its
admissibility.” (People v. Hernandez (2011) 200 Cal.App.4th
953, 968; see People v. Taylor (2001) 26 Cal.4th 1155, 1172–1173
[testimony about defendant’s plan to commit a murder to steal a
particular type of car years before the charged murder and theft
of such a car was admissible to rebut defendant’s attempt to
disclaim any preexisting intent; remoteness of plan “would affect
its weight, not its admissibility.”]; see also People v. Scott (2011)
52 Cal.4th 452, 490 [evidence of defendant’s habitual behavior
months before charged offenses went “to the weight, not the
admissibility, of the evidence.”].)
Appellant does not explain why, under the facts of this
case, evidence that he possessed a gun was likely to invoke a
“uniquely emotional bias against him as an individual.” Gun
violence was common in appellant’s milieu: not only was
appellant’s uncle shot, it was a drive-by shooting which spurred
the murder and attempted murders in this case. (See People v.
Lenart (2004) 32 Cal.4th 1107, 1125 [evidence that defendant
possessed gun not unduly prejudicial where it was not uncommon
behavior among the witnesses at trial].)
Because we find no abuse of discretion in the admission of
the evidence, we reject appellant’s claim that the admission
9
violated his federal constitutional right to due process. Further,
the admission of evidence, even if error under state law, does not
violate due process unless “it makes the trial fundamentally
unfair.” (People v. Partida (2005) 37 Cal.4th 428, 436.) Appellant
has not made such a showing.
B. Appellant Has Forfeited His Claim of Prosecutorial
Misconduct.
Appellant contends the prosecutor impermissibly vouched
for Hall by repeatedly questioning her to elicit testimony that her
plea deal was contingent on testifying truthfully. The prosecutor
compounded the vouching by also discussing this requirement in
closing argument. We agree with respondent that appellant has
forfeited these claims. Appellant has identified five questions
and three statements during closing argument that he contends
amounted to vouching; at trial, he did not object to any of them or
request an admonition. (People v. Krebs (2019) 8 Cal.5th
265, 341; People v. Bonilla (2007) 41 Cal.4th 313, 336 (Bonilla)
[vouching during closing argument forfeited]; People v. Price
(2017) 8 Cal.App.5th 409, 459 [vouching claim based on
questioning forfeited].)
Appellant requests that we exercise our discretion and
consider the claim. Appellant suggests such review might
forestall any later charge of ineffective assistance of counsel.
California law requires that the terms of a plea agreement, or any
agreement affecting the witness, be disclosed to the jury “ ‘ “to
ensure the jury has a complete picture of the factors affecting the
witness’s credibility.” ’ ” (Bonilla, supra, 41 Cal.4th at p. 337; see
People v. Perez (2018) 4 Cal.5th 421, 459.) Thus, “[i]t is settled
that making a record of the terms of a plea agreement requiring a
witness to tell the truth does not constitute impermissible
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vouching.” (People v. Williams (2013) 56 Cal.4th 165, 193,
overruled on another ground by People v. Elizalde (2015)
61 Cal.4th 523, 538, fn. 9.) This includes making a record by
questioning the witness. (Williams, at pp. 189–191.) Likewise, a
prosecutor does not commit impermissible vouching when she
argues that a witness “should be believed because he had an
incentive to tell the truth under the terms of his plea agreement.”
(Bonilla, at p. 337.)
As appellant highlights, the prosecutor remarked during
closing argument “that if a neutral magistrate, such as this trial
judge, were to determine that [Hall] did not give truthful
testimony, then she would be sentenced on the murder charge,
which she’s already pled to.” Appellant contends this statement
implied that the judge presiding over the case would have special
knowledge as to whether Hall was telling the truth and also
implied that the judge, not the jury, would be the “final arbiter”
of Hall’s truthfulness.
While it is important that a jury learn what would happen
to a witness if she fails to testify truthfully, “the precise
mechanism whereby [her] truthfulness would be determined was
not a matter for its concern.” (People v. Fauber (1992) 2 Cal.4th
792, 823.) As our Supreme Court has explained, suggesting that
the trial court would decide the witness’s credibility “arguably
carried some slight potential for jury confusion, in that it did not
explicitly state what is implicit within it: that the need for such a
determination would arise, if at all, in connection with [the
witness’s] sentencing, not in the process of trying defendant’s
guilt or innocence. For these reasons, had defendant objected to
its admission, the trial court would have acted correctly in
excluding it on a relevancy objection.” (Ibid.) The Supreme
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Court found no possibility in Fauber that defendant was
prejudiced by its admission because the “jury could not
reasonably have understood [the] plea agreement to relieve it of
the duty to decide, in the course of reaching its verdict, whether
[the witness’s] testimony was truthful.” (Ibid.) The Supreme
Court’s conclusion was reinforced by the fact that the trial court
instructed jurors at the beginning and end of the case that they
were “ ‘the sole judges of the believability of a witness and the
weight to be given to his testimony.’ ” (Ibid.) The Court also
noted that the prosecutor had “emphasized the jurors’ role as sole
judges of credibility.” (Id. at p. 824.)
The circumstances here are very similar. The trial court
instructed the jury at the beginning and end of the case: “You
alone must judge the credibility or believability of the witnesses.”
After the reference to the trial judge, the prosecutor stated: “So
she’s in a position where she has to be truthful. But how do you
know whether she is actually being truthful or not? You have to
listen to her testimony.” (Italics added.) Accordingly, we see no
possibility that appellant was prejudiced by the prosecutor’s
reference to the trial judge.
C. Hall’s Testimony Was Sufficiently Corroborated.
Appellant contends there is insufficient evidence to provide
the required corroboration of Hall’s accomplice testimony and so
his convictions must be reversed. We do not agree.
Section 1111 provides: “A conviction cannot be had upon
the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient
if it merely shows the commission of the offense or the
circumstances thereof.”
12
“[A]n accomplice’s testimony is not corroborated by the
circumstance that the testimony is consistent with the victim’s
description of the crime or physical evidence from the crime
scene. Such consistency and knowledge of the details of the crime
simply proves the accomplice was at the crime scene, something
the accomplice by definition admits. Rather, under section 1111,
the corroboration must connect the defendant to the crime
independent of the accomplice’s testimony.” (People v. Romero
and Self (2015) 62 Cal.4th 1, 36 (Romero and Self).) “ ‘The entire
conduct of the parties, their relationship, acts, and conduct may
be taken into consideration by the trier of fact in determining the
sufficiency of the corroboration.’ [Citations.] The evidence ‘need
not independently establish the identity of the victim’s assailant’
[citation], nor corroborate every fact to which the accomplice
testifies [citation], and ‘ “may be circumstantial or slight and
entitled to little consideration when standing alone.” ’ ” (Id. at
p. 32.) A defendant’s own statements and admissions may
corroborate an accomplice’s testimony. (People v. Dalton (2019)
7 Cal.5th 166, 245–246.)
The corroboration requirement for accomplice testimony is
an exception to the substantial evidence rule: the Legislature
has determined that such testimony standing alone is insufficient
as a matter of law to support a conviction. (Romero and Self,
supra, 62 Cal.4th at p. 32.)
Hall’s testimony was sufficiently corroborated by Myers’s
testimony that he recognized appellant as the shooter from or in
a Facebook photograph of appellant. Appellant points out that
Myers expressed some uncertainty about whether appellant was
the same person as the shooter. Myers acknowledged he had
expressed uncertainty, but he was also clear that, in his mind,
13
appellant’s Facebook photograph looked “exactly like” the
shooter.
We conclude Myers’s testimony is sufficient corroboration
of Hall’s testimony. It places appellant at the scene of the
shooting as the shooter. Nevertheless, Hall’s testimony was
further corroborated by some of appellant’s own statements on
Facebook and Snapchat, taken in context. In the late afternoon
of April 4, 2017, appellant posted: “Long Live 50 Bang.” Later
that evening, he updated his status to read: “I’m the sickest
young 16-year-old ever Crip! Doubt me if you want.” About 20
minutes later, appellant sent a message stating: “Fuhk Fat Boy”
and “the bitch.” He then messaged: “I’m Slobkn.” This meant he
was killing Bloods. On the evening of April 6, 2017, appellant
sent a message saying: “He gone” and “It was easy.” In the early
morning of April 7, 2017, appellant sent a photograph of a
drawing of an overweight body with three gunshots, which was
the number of times Cleveland had been shot. The name “Fat
Strap” is crossed out. The first four messages, with their
reference to 50 Bang, animus to “Fat Boy” and self-referential
bragging (I’m the sickest; I’m Slobkn), were made very soon after
the shooting and tend by that timing to connect him to the
commission of the crime. Similarly, the last two messages
indicate knowledge of the details of the shooting (it was “easy”
and Cleveland was shot three times) and so also tend to connect
appellant to the shooting. Corroborating evidence may be
“ ‘ “circumstantial or slight and entitled to little consideration
when standing alone.” ’ ” (Romero and Self, supra, 62 Cal.4th at
p. 32.)
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DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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