Filed 11/6/15 P. v. Griffin CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A140784
v.
CORDERRO DYLLON GRIFFIN, (Contra Costa County
Super. Ct. No. 5-131666-0)
Defendant and Appellant.
Defendant Corderro Dyllon Griffin was accused of taking at gunpoint a delivery
man’s money and car and, following that incident, robbing and assaulting another man.
As to the first incident, the jury convicted defendant of carjacking (Pen. Code, § 215,
subd. (a))1 and second degree robbery (§§ 211, 212.5, subd. (c)) with personal use of a
handgun during each offense (§ 12022.53, subd. (b)). On the second incident, the jury
acquitted defendant of attempted robbery but convicted him of assault by force likely to
produce great bodily injury (§ 245, subd. (a)(1)). The court sentenced defendant to 20
years in prison.
Defendant appeals upon the contention that he was arrested without probable
cause and evidence seized pursuant to that arrest should have been suppressed. Defendant
also claims hearsay statements of an accomplice were wrongly admitted in evidence. In
the following discussion we conclude that defendant was detained, not arrested, when
initially stopped by a police officer but, in any event, there was probable cause for an
1
All further section references are to the Penal Code except as noted.
1
arrest at the initiation of the contact. We also conclude that his accomplice’s statements
were properly admitted because defendant procured the accomplice’s absence from trial
by threats of violence. We shall affirm the judgment.
Statement of Facts
Evidence was presented at trial that defendant engaged in two separate criminal
incidents on a single night.
Robbery and carjacking
Douglas Stewart was a high school student who worked part-time delivering
pizzas. He drove his sister’s car, a black Chevy HHR, to make deliveries. On March 24,
2013, at around 11:00 p.m., Stewart arrived at a Pittsburgh apartment to deliver a pizza
when he saw two men in front of the building, a Latino and an African-American.
Stewart later identified defendant as the African-American man. Stewart asked the two
men how to enter the building and defendant said he did not know but that he was “an
off-duty security guard” and would radio someone. Defendant was holding a black
walkie-talkie in his hand. Stewart said “never mind” and proceeded to the building.
Stewart telephoned the customer to get the door’s security code, delivered the pizza,
collected cash payment, and exited the building.
Stewart was talking on his cell phone and approaching his sister’s car when he
heard the sound of running footsteps behind him. Stewart turned and saw defendant
pointing a handgun at him. Defendant told Stewart: “get on the ground.” Stewart was
frightened. He tossed his phone aside and lay on the ground. Defendant said “give me all
the money” and the car keys. Stewart complied. At this point, two other people ran up
and defendant handed one of them the car keys. The robbers asked Stewart what car he
was driving and Stewart, still on the ground, pointed to the Chevy with his leg. Defendant
told his accomplices to “stick the key in the door.” Defendant continued to stand over
Stewart with a gun when Stewart heard the car engine start and the car drive away.
Defendant told Stewart to stand, then directed Stewart to lie down next to a wall and stay
there for at least five minutes without moving. Defendant warned Stewart that he had
2
people watching him. Stewart saw defendant walk away and, after waiting a while, ran to
a nearby restaurant where he telephoned the police.
Investigation of carjacking, occurrence of assault, and apprehension of defendant
A police officer responded to the scene and Stewart gave her a full account of the
robbery and detailed physical descriptions of the robbers, which the officer documented
in a report. Stewart described the gunman (later identified as defendant) as “a Black male
adult, approximately 20 years old, six feet tall, 180 pounds, wearing a gray sweatshirt,
gray sweatpants, gray and blue Jordan sneakers, a dark beanie, he had shoulder length
dreads or dreadlocks, and was carrying a red backpack.” Stewart said the gunman had
been holding a black walkie-talkie when Stewart first encountered him with another man
outside the apartment building. Stewart described the man with defendant as “a Hispanic
male adult, approximately 25 years old, about 5-5, 180 pounds, wearing a black T-shirt
with gray sweatpants, with a long black ponytail and a goatee.” Stewart described another
man, one of the two people who joined defendant during the robbery and drove away in
the car, as “a Black male in his twenties, about 5-8, 160 pounds, and bald.”
The police notified Stewart’s sister of the theft and she contacted OnStar Security
Services (OnStar), which tracked the stolen vehicle with GPS. Within an hour of the
carjacking, at about 11:48 p.m., OnStar informed the police that the vehicle was located
on the 500 block of 18th Street in Richmond. Two police officers in separate patrol cars
responded to the area: Officer Bell and Sergeant Pomeroy. The officers located the
vehicle, which was unoccupied. In an effort to see if the carjackers would return to the
vehicle, the officers conducted surveillance with each officer in a different location.
Minutes later, police dispatch reported “a man down” six blocks from the location
of the stolen vehicle and Sergeant Pomeroy responded to the call, leaving Officer Bell on
surveillance. Sergeant Pomeroy found a man, later identified as Jorge Hernandez, lying
unconscious in the street with a stab wound to his chest.
Back on surveillance, Officer Bell received updated information about the robbery
suspects that included a physical description of the gunman. Minutes after receiving the
3
information, at about 11:55 p.m., Officer Bell saw three young men running down the
street. The men slowed to a walk when they saw the officer. Two men were Latino and
the third was Latino or a “light skinned Black male.” One of the men approached the
officer and asked the time. When told the time, the man remarked to his companions that
they “still had time to get to BART” and walked away. The officer did not detain the men
because none matched the description of the gunman.
Within a minute or two, the officer saw defendant walking down 18th Street and
entering the BART parking lot. Defendant matched the description of the gunman: “a
Black male, thin build, long dreadlocks, wearing a gray hoodie, gray sweatpants” and
carrying a backpack. Officer Bell drove up behind defendant, illuminated him with a
spotlight, exited the patrol car and asked defendant to stop. Defendant turned to face the
officer then “quickly looked to the rear as looking over his shoulder.” The officer “again
requested him to stop” and ordered defendant to “remove his hands from his pants
pocket.” Defendant complied and was seen to be wearing blue latex rubber “surgical
type” gloves. Officer Bell called for backup and two officers responded.
With three officers on the scene, Officer Bell approached defendant and “detained
him in handcuffs.” The officer patted down defendant and found he was wearing a
baseball “catcher style chest protector.” The officer searched defendant’s pockets and
retrieved $42 in cash from his coat pocket and several keys from his front pants pocket,
including a key fob with a Chevy emblem. The officer then searched the backpack, which
contained two cell phones, a “two-way radio walkie-talkie style” and a water bottle.
Officer Bell asked another officer on the scene, Officer Diaz, to check if the Chevy key
seized from defendant opened the door to the stolen Chevy. Officer Diaz did so and
confirmed that the key operated the stolen Chevy. Officer Bell arrested defendant.
Later that evening, Stewart identified defendant from a photo line-up as the
gunman. A cell phone recovered from defendant’s backpack was Stewart’s phone.
While Officer Bell was detaining defendant, other officers were responding to the
area in connection with the stabbing of Hernandez. Just after midnight, an officer saw
three men running down the street then lost sight of them. A few blocks away, another
4
officer located and detained two of the men: Juan Laspada and Jesus Mariscal. The police
brought the men in for questioning but, lacking sufficient evidence of their criminal
involvement, released them.
Investigation of the assault
The stabbing victim, Hernandez, testified he has no memory of the assault. He
only remembers skateboarding in Richmond then waking in the hospital. The police
obtained a surveillance video from the neighborhood of the stabbing. The video shows
four men dispersing. Facial features are not discernable in the video. One of the men is
wearing a light colored sweat suit and backpack. Officer Bell identified the men in the
video as defendant and the three men he saw running near the BART station, based on
clothing, height, body build and hair style.
Defendant’s telephone call from jail
On March 27, 2013, two days after his arrest, defendant placed a telephone call to
Allen Taylor. Defendant told Taylor “I’m in jail” and “you are the only one that got
away.” Defendant said “I went down for the carjacking” — “[t]hey got the keys, they got
the phone on me. They got all that on me.” Taylor asked, “They didn’t say nothing about
me to you?” Defendant said “you drove the car off” but that he told the police someone
named “Deveon” was driving and that there were three other men in the car, none of
whom he knew. Defendant assured Taylor: “you ain’t even accessory to nothing cuz they
only got me to the car.” Defendant asked Taylor, “where’s the other two” and Taylor said
he thought “they got hemmed up.” Defendant said “[t]hey stabbed somebody” and the
police “tried to link me to the murder” (apparently thinking Hernandez died). Defendant
told Taylor the police “said that I was with two Mexicans and we got out the car and that
. . . I was accessory to a murder based on that they was inside that car with me.”
Defendant said the police “got me on surveillance leavin” but “don’t got me on
surveillance robbin the cool dude.” Defendant asked Taylor how he got away and Taylor
said “we walked past” a police officer, asked the time, and pretended to go to the BART
station. Taylor heard the police officer yell at defendant to stop. Taylor “ran and ran and
5
ran” then hid in a back yard and phoned for someone to drive him home. Defendant told
Taylor the police were “looking for the hamma” and asked “[w]ho got the hammer.”2
Taylor said it “got tossed somewhere” by “[t]hat little dude.”
Mariscal’s statements
Jesus Mariscal and Juan Laspada were arrested and released on the night of the
carjacking and stabbing. The police arrested Mariscal again two months later, in May
2013. Mariscal gave a statement incriminating himself, defendant, Laspada and Taylor.3
The original complaint charged the four men as codefendants. Sometime after the
preliminary hearing, Mariscal agreed to testify against defendant in exchange for a
favorable plea bargain.
Trial commenced against defendant alone in October 2013. The day before his
scheduled appearance at trial, Mariscal told the prosecutor he would not testify because
defendant threatened to kill him and his family. The prosecutor moved to introduce
Mariscal’s May 2013 statement to the police and his October 2013 statement describing
the threat from defendant. The trial court found that defendant procured Mariscal’s
unavailability as a witness and, applying the rule of forfeiture by wrongdoing, held the
statements admissible. (Evid. Code, § 1390; Davis v. Washington (2006) 547 U.S. 813,
833.)
A redacted version of Mariscal’s audiotaped May 2013 interview with the police
was admitted in evidence and played for the jury. In the interview, Mariscal says
defendant pretended to be a security guard when the pizza delivery man walked up to him
and defendant. Defendant, Laspada and Taylor then talked about robbing the delivery
man. Mariscal denied participating in the robbery. Mariscal said he walked away from
the robbery discussion and was on his way home when Taylor drove up in a car with
Laspada as a passenger. Defendant then ran up and entered the car. The four men drove
to a house in Richmond but, after seeing the car was equipped with OnStar, decided to
2
A police officer testified that “hammer” is slang for a semiautomatic firearm.
3
Mariscal knew defendant by the nickname “Bo-bo.”
6
“get rid of it” by driving it to the BART station and leaving it there. After abandoning the
car, the men wanted to ride BART, but only defendant had money and he refused to share
the $40 he took from the delivery man. Defendant said “let’s go walk up here real quick”
and Mariscal “figured” the other men “wanted to go rob somebody else.” Mariscal was
walking ahead of the others when he turned and saw that defendant, Laspada and Taylor
had stopped a “skateboard guy.” Mariscal walked back to join the group. One of
Mariscal’s companions asked the skateboarder “where’s the money” and he did not
answer. Laspada said “Man, he looks like a scrap” and “that was when everything
escalated.”4 All four men started “jumpin’ on him, tryin’ to get sumpin’.” Mariscal said
he punched the skateboarder, then he and Laspada held him as Taylor stabbed the victim
in the ribcage. Taylor and Laspada continued “roughing him up.” The skateboarder
started screaming and the men dispersed. Mariscal, Laspada and Taylor walked past a
police officer at the BART station and Taylor asked the officer for the time. The three
men were waiting for defendant at the BART station when they heard the officer order
defendant to stop. The three men ran and then Taylor broke away when police officers
drew near. Mariscal and Laspada were arrested.
The jury also heard a redacted version of Mariscal’s October 2013 interview with
his attorney and the prosecutor in which Mariscal informed counsel he would not testify
because he received a threat from defendant while both men were in custody. Mariscal
said Griffin sent a “kite”—slang for written jail communication—that was read aloud to
him through an air vent. Defendant told Mariscal that if he testified, “things” would
happen to him and his family.
The defense
The defense did not deny the robbery and carjacking of Stewart, but defense
counsel argued to the jury that the “case was overcharged” because there was no proof
that a firearm, rather than a fake gun, was used in those offenses and “no reliable
evidence” of defendant’s participation in the charged robbery and assault of Hernandez.
4
“Scrap” is a derogatory term for people affiliated with the Sureño gang.
7
The defense presented a firearms expert who testified that some pellet guns are designed
to look like firearms and are often indistinguishable by sight. The defense also introduced
Mariscal’s initial statement to the police denying involvement in the offenses and
testimony that Mariscal stabbed a man in a bar fight in 2010. Defense counsel argued that
Mariscal is “a criminal and a liar” whose statements implicating defendant could not be
trusted.
Discussion
1. The motion to suppress evidence was properly denied.
Defendant appeals denial of his motion to suppress evidence. (§ 1538.5.)
Defendant contends he was effectively arrested when Officer Bell first stopped him and
placed him in handcuffs and that the arrest was without probable cause to believe
defendant was involved in the carjacking or armed robbery. The Attorney General argues
that defendant was detained, not arrested, when initially contacted by Officer Bell but, in
any event, there was probable cause for an arrest at the initiation of the contact. We agree
with the Attorney General on this point.
“The standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the trial court’s factual findings, express or implied,
where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).)
“Police contacts with individuals may be placed into three broad categories
ranging from the least to the most intrusive: consensual encounters that result in no
restraint of liberty whatsoever; detentions, which are seizures of an individual that are
strictly limited in duration, scope, and purpose; and formal arrests or comparable
restraints on an individual’s liberty.” (In re Manual G. (1997) 16 Cal.4th 805, 821.)
“When the seizure of a person amounts to an arrest, it must be supported by an
arrest warrant or by probable cause.” (People v. Celis (2004) 33 Cal.4th 667, 673
(Celis).) But “[a] brief stop and patdown of someone suspected of criminal activity is
8
merely an investigative detention requiring no more than a reasonable suspicion.” (Id. at
p. 674.) “A detention is reasonable under the Fourth Amendment when the detaining
officer can point to specific articulable facts that, considered in light of the totality of the
circumstances, provide some objective manifestation that the person detained may be
involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)
At the hearing, Officer Bell testified that he ordered defendant to stop walking and
remove his hands from his pants pockets, and when defendant stopped but failed to
remove his hands, the officer unholstered his Taser and held it at his side, at which point
defendant complied. Defendant was handcuffed about 30 seconds later, when a backup
officer arrived. Defendant claims there was a de facto arrest when Officer Bell drew his
Taser and handcuffed him.
“ ‘[T]here is no hard and fast line to distinguish permissible investigative
detentions from impermissible de facto arrests. Instead, the issue is decided on the facts
of each case, with focus on whether the police diligently pursued a means of investigation
reasonably designed to dispel or confirm their suspicions quickly, using the least
intrusive means reasonably available under the circumstances.’ ” (Celis, supra, 33
Cal.4th at pp. 674-675.) “[S]topping a suspect at gunpoint [and] handcuffing him” does
“not convert a detention into an arrest” if the actions of the police do not go “beyond
those necessary to effectuate the purpose of the stop.” (Id. at p. 675.) Police officers are
justified in holding a suspect at gunpoint and handcuffing him—without probable cause
for arrest—where the police have information the suspect is dangerous. (Glaser, supra,
11 Cal.4th at p. 366.)
Officer Bell was justified in stopping defendant for an investigatory detention.
Defendant was found walking within 50 yards of the stolen car, an hour after the
carjacking and closely matched the victim’s physical description of the gunman: “a Black
male, thin build, long dreadlocks” who was “wearing a gray hoodie [and] gray
sweatpants.” Officer Bell was also justified in drawing his Taser and handcuffing
defendant after defendant—who was reasonably suspected of being armed—failed to
remove his hands from his pockets when asked to do so. Officer Bell’s actions went no
9
further than those necessary to effectuate the purpose of the stop. (Celis, supra, 33
Cal.4th at pp. 674-675.)
Upon stopping defendant, the officer was authorized to make a protective pat-
down search for weapons “designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer” (Terry v. Ohio (1968) 392 U.S. 1, 29)
and to seize an object that was not a weapon if its incriminating character was
“immediately apparent” (Minnesota v. Dickerson (1993) 508 U.S. 366, 375-376). Officer
Bell’s trial testimony describes an initial patdown search for weapons that found the
incriminating car key in defendant’s pants pockets followed by a search of defendant’s
backpack. The officer’s testimony at the hearing was abbreviated and not clear as to the
exact sequence of events. Officer Bell said he placed defendant in handcuffs then
“searched both his person and his backpack,” which could be interpreted as a full
custodial search of defendant.
In any event, probable cause to arrest defendant exists even if defendant was
subjected to a de facto arrest when he was handcuffed. “ ‘Probable cause exists when the
facts known to the arresting officer would persuade someone of “reasonable caution” that
the person to be arrested has committed a crime. [Citation.] “[P]robable cause is a fluid
concept—turning on the assessment of probabilities in particular factual contexts . . . .”
[Citation.] It is incapable of precise definition. [Citation.] “ ‘The substance of all the
definitions of probable cause is a reasonable ground for belief of guilt,’ ” and that belief
must be “particularized with respect to the person to be . . . seized.” ’ ” (People v. Scott
(2011) 52 Cal.4th 452, 474.)
“To determine whether an officer had probable cause to arrest an individual, we
examine the events leading up to the arrest, and then decide ‘whether these historical
facts, viewed from the standpoint of an objectively reasonable police officer, amount to’
probable cause.” (Maryland v. Pringle (2003) 540 U.S. 366, 371.) In this case, a car was
stolen in Pittsburgh by an armed man and several others. The car was driven to Richmond
where it was located by GPS an hour later, near midnight. Police surveillance of the car
revealed no one in its vicinity until three men were seen running in the area. A couple
10
minutes later, defendant appeared on the scene; he closely matched the victim’s
description in race, body build, hair style and clothing. When Officer Bell called to
defendant to stop, defendant “quickly turned and looked behind him.” The officer told
defendant to take his hands out of his pockets. Defendant did not comply until the officer
took his Taser from his holster. This evidence, viewed in its totality, provided probable
cause to arrest defendant.
2. Mariscal’s statements were properly admitted.
The rule of forfeiture by wrongdoing permits admission of a witness’s hearsay
statements where the defendant procures the witness’s absence from trial through threats
of violence. (Evid. Code, § 1390; Davis v. Washington, supra, 547 U.S. at p. 833.)
Defendant accepts the rule but contends there is “no competent evidence that [defendant]
had in fact made any threats.” Defendant argues that Mariscal’s report of threats is
unreliable because Mariscal is an alleged accomplice and there is insufficient
corroborating evidence of the claimed threats. We conclude, in the following discussion,
that Mariscal’s statements were corroborated and properly admitted.
A defendant has the constitutional right to confront witnesses but “one who
obtains the absence of a witness by wrongdoing forfeits the constitutional right to
confrontation.” (Davis v. Washington, supra, 547 U.S. at p. 833.) California’s hearsay
rule is in accord. “Evidence of a statement is not made inadmissible by the hearsay rule if
the statement is offered against a party that has engaged, or aided and abetted, in the
wrongdoing that was intended to, and did, procure the unavailability of the declarant as a
witness.” (Evid. Code, § 1390, subd. (a).) Our hearsay rule further provides that proof of
the above elements shall be established by a preponderance of the evidence and “shall not
be based solely on the unconfronted hearsay statement of the unavailable declarant, and
shall be supported by independent corroborative evidence.” (Id., subds. (b)(1), (b)(2).)
There is ample corroborating evidence that defendant procured Mariscal’s refusal
to testify. Mariscal said defendant threatened him by using a “kite” (jailhouse writing)
that was read aloud to him by a woman inmate through an air vent. The trial court
11
credited the means of conveyance, noting that inmates use such means to send messages
between Contra Costa County jail buildings and women are housed in the same building
as Mariscal. The court also noted that the alleged threat was received the night after
defendant “spent two full days in court” during which “a number of things occurred.”
The court proceedings concerned in limine motions with an extensive discussion of
Mariscal’s expected testimony. The discussion included the fact that Mariscal was a
reluctant witness who feared retaliation for testifying against defendant. The trial court
properly found the timing of the alleged threat corroborative, as the threat was reportedly
made on the eve of trial after the witness’s importance—and susceptibility to coercion—
was communicated to defendant.
The trial court also noted that the recorded interview between the prosecutor and
Mariscal concerning the threat includes a highly detailed description of the threat that is
self-authenticating. Mariscal, asked to provide an exact account of the message he
received, said he was told: “bruh, I heard that, I heard my attorney [tell] me that you’re
taking three, bruh, that’s messed up they’re tryin to give me 11 years bruh, I’m not, I’m
not playing with you, . . . if you sit here and testify, things are going to happen to you,
you don’t want nothin’ to happen to you or your family bruh. Don’t say nothin’. Uh, me
and Laspada can get off if you don’t testify. . . . He said don’t testify cuz if you do I’m
going to put it all over the internet and, and that’s that. But basically if you don’t want
nothing to happen to you and your family bruh, don’t testify.”
Mariscal said he knew the message came from defendant because “his street name
was used . . . and how the person came about it was just eager to do it like he’s been
talking about me for a long time. And this isn’t the first time I’ve been hearing about him
talking about me. I’ve been hearing about him a lot, all the time, but I just been ignoring
it and shaking it off. . . . [B]ut now it’s just out the window . . . his street name was used
. . . and she read it just how he wrote it in the kite and how he would speak it.”
Mariscal’s report of the threat is further corroborated by the content of the threat
that refers to a plea bargain offer made to defendant. Mariscal reported that defendant
said, “I heard my attorney [tell] me that you’re taking three, bruh, that’s messed up
12
they’re tryin to give me 11 years.” The prosecutor had, in fact, offered Mariscal a three-
year sentence and defendant an 11-year sentence. The 11-year offer to defendant was not
public knowledge and Mariscal had no known source for the knowledge apart from the
threatening communication from defendant. The prosecutor did not tell Mariscal’s
attorney. Mariscal’s attorney confirmed she never told Mariscal, and Mariscal and
defendant never appeared in court together.
The prosecutor presented sufficient proof that defendant threatened Mariscal and
did so with the intention, and result, of preventing him from testifying. Mariscal’s
statements were properly admitted in evidence.
Disposition
The judgment is affirmed.
_________________________
Pollak, Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
13