Filed 5/21/21 P. v. Garner CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B299609
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA453809)
v.
DEAURELL GARNER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Leslie A. Swain, Judge. Affirmed.
Berangere Allen-Blaine, 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, Zee Rodriguez and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
___________________________________
A jury convicted Deaurell Garner of first degree murder
and other offenses, and found true several firearm, gang, and
recidivism allegations. The trial court sentenced him to 75 years
to life in prison. Garner contends the trial court committed
several evidentiary and procedural errors at both the preliminary
hearing and trial. We affirm.
BACKGROUND
Garner was a member of the Rolling 40’s Crips gang. On
August 31, 2016, he drove his Jeep to an intersection of 54th
Street and 2nd Avenue in Los Angeles, territory claimed by the
rival gang VNG, where he shot and killed Keenan Hogue.
Surveillance videos of the area of the shooting caught the Jeep’s
license plate number.
At trial, Los Angeles Police Detective Refugio Garza, the
investigating officer, testified Garner was a Rolling 40’s gang
member, and his Jeep was found at the residence of another
Rolling 40’s member. Garza also testified that he had
information extracted from Garner’s iPhone that placed him at
the scene of the shooting. We will describe further procedural
and evidentiary facts as they become pertinent to the discussion
below.
Garner presented a mistaken identity defense, essentially
contending the police investigation was flawed.
The jury convicted Garner of first degree murder (Pen.
1
Code, § 187, subd. (a)), shooting from a motor vehicle (§ 26100,
subd. (c)), and being a convicted felon in possession of a firearm
1
Undesignated statutory references will be to the Penal
Code.
2
(§ 29800, subd. (a)(1)), and found gang allegations true as to all
three counts (§ 186.22, subd. (b)(1)) and gun allegations true as to
the first two counts (§ 12022.53, subd. (d)). Garner admitted that
he had a prior serious felony conviction under the “Three Strikes”
law and section 667, subdivision (a)(1).
The trial court sentenced Garner to 75 years to life,
comprising a term of 25 years to life for the murder, which was
doubled as a result of Garner’s prior “strike” offense, plus 25
years to life for the firearm enhancement. The court imposed a
concurrent two-year sentence on the possession count and
imposed but stayed a sentence for shooting from a motor vehicle.
DISCUSSION
Garner contends the trial court made two evidentiary
errors at the preliminary hearing and 11 evidentiary and
procedural errors at trial.
A. Preliminary Hearing
At the preliminary hearing, evidence that Garner does not
challenge on appeal indicated he was a Rolling 40’s gang
member, his Jeep was used in the shooting, and his phone had
been situated near the scene at the time of the shooting.
In addition to this evidence, Los Angeles Police Officer
2
Tyler Booth testified over a defense Miranda objection that he
once conducted a traffic stop of Garner while he was driving the
Jeep used in the shooting. During the stop, Garner, who had the
numbers “4” and “0” tattooed on his left and right triceps,
admitted he “used to belong to the Rolling 40’s.”
Furthermore, Detective Garza testified that Garner was
placed in a jail cell after his arrest, and his three-hour
2
Miranda v. Arizona (1966) 384 U.S. 436.
3
conversation with a confidential informant was surreptitiously
recorded. During the conversation, Garza testified, Garner
stated he allowed no one else to drive his Jeep, he had disposed of
the murder weapon, and he knew about surveillance cameras
near the murder scene. When defense counsel asked for
permission to play the recording of the conversation, the court
ruled that the defense could not play the recording in its entirety,
and could play none without a transcript.
1. Gang Admission
Garner argues that admission of Officer Booth’s testimony
about his gang admission violated his Miranda rights. We
disagree.
“The Fourteenth Amendment to the federal Constitution
and article I, section 15, of the state Constitution bar the
prosecution from using a defendant’s involuntary confession.”
(People v. Massie (1998) 19 Cal.4th 550, 576.)
After a criminal trial and conviction, “irregularities in the
preliminary examination procedures which are not jurisdictional
in the fundamental sense shall be reviewed under the
appropriate standard of prejudicial error and shall require
reversal only if defendant can show that he was deprived of a fair
trial or otherwise suffered prejudice as a result of the error at the
preliminary examination.” (Avitia v. Superior Court (2018) 6
Cal.5th 486, 496.) A court lacks fundamental jurisdiction when it
has no power to hear or determine the case or has no authority
over the subject matter or the parties. (People v. Letner and
Tobin (2010) 50 Cal.4th 99, 139-140.) A nonfundamental error at
the preliminary hearing stage requires reversal only if the error
impacted the trial. (People v. Millwee (1998) 18 Cal.4th 96, 121-
4
122 [no prejudice from ineffective assistance of counsel at
preliminary hearing that had no impact on the trial].)
Here, the only issue decided at the preliminary hearing was
whether sufficient evidence existed to hold Garner to answer on
the charged crimes.
The record does not indicate, and Garner does not claim,
that Officer Booth’s testimony about Garner’s gang admission so
vitiated the evidence as to render it insufficient to hold him over
for trial. (Nothing in the record indicates Garner was precluded
from presenting a Miranda claim at trial.) Beyond any
reasonable doubt, therefore, Booth’s testimony about Garner’s
gang admission could not have affected the court’s decision to
hold him over. (See Chapman v. California (1967) 386 U.S. 18,
26 [standard for error of constitutional magnitude].)
Garner argues without explanation that admission of
Officer Booth’s testimony about Garner’s gang admission
“allowed the matter to proceed to trial based on [this] evidence.”
We disagree. Booth’s testimony went only to the limited issue of
Garner’s gang membership. Nothing in the record indicates
Garner would not have been held over for trial on murder charges
absent evidence of his gang membership. In any event, his gang
membership was established by independent evidence, for
example Booth’s observation of Garner’s gang tattoos.
2. Recorded Conversation
Garner argues that the trial court abused its discretion by
refusing to allow the defense to play the entire jailhouse
recording. He does not assert that the error prejudiced him.
This argument fails for the same reason as the prior one.
Garner makes no effort to identify any excluded statement that
would have corrected any misleading impression so as to result in
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him not being held over for trial, and makes no argument that he
was prejudiced at trial by the court’s refusal to hear the entire
recording at the preliminary hearing.
B. Destruction of Garner’s Jeep
A witness testified that the shots that killed Hogue were
fired from the open driver’s window of a dark colored Jeep.
Surveillance video of the crime showed it was Garner’s Jeep.
Police impounded the vehicle in September 2016, but notices to
the registered owner produced no response because neither
Garner nor the person from whom he purchased it had executed a
change of ownership with the California Department of Motor
Vehicles. The Jeep was destroyed as a matter of procedure on
January 4, 2017. Garner was not arrested until January 19,
2017.
Two other facts about the Jeep are pertinent: (1) Three
police officers testified that the driver’s side window was closed
and inoperable; and (2) there were holes in the Jeep that could
have been created by gunshots.
Garner moved to exclude any evidence about the Jeep
because it had been destroyed. The trial court denied the motion.
Garner argues the court erroneously denied his motion to
exclude all prosecution evidence about the Jeep because the
vehicle constituted material, exculpatory evidence, which the
police destroyed in bad faith. We disagree.
The state must preserve evidence “expected to play a
significant role in the suspect’s defense. To meet this
standard . . . [citation], evidence must both possess an
exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
6
available means.” (California v. Trombetta (1984) 467 U.S. 479,
488-489, fn. omitted (Trombetta).) In Arizona v. Youngblood
(1988) 488 U.S. 51, 57-58 (Youngblood), the Court clarified that
“unless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.”
We apply a two-step inquiry to determine whether the
state’s failure to preserve evidence violated a defendant’s right to
due process: “First, did the destroyed evidence meet either the
‘exculpatory value that was apparent’ or the ‘potentially useful’
standard for materiality under Trombetta or Youngblood,
respectively? (See Youngblood, supra, 488 U.S. at p. 58;
Trombetta, supra, 467 U.S. at pp. 488-489.) Second, if the
evidence qualified as ‘potentially useful’ under Youngblood but
did not meet the Trombetta standard, was the failure to retain it
in bad faith? (Youngblood, supra, 488 U.S. at p. 58.)” (People v.
Alvarez (2014) 229 Cal.App.4th 761, 774.)
Here, nothing indicates the Jeep constituted material
exculpatory or even potentially useful evidence. Garner argues in
his opening brief that the inoperability of the Jeep’s driver’s
window was exculpatory because a witness described the
shooting as coming from an open driver’s window. But that
evidence was immaterial because three police officers also
testified that Garner’s Jeep’s window was closed and inoperable.
Garner argues in his reply brief that the holes in the Jeep
could have originated near the time of the shooting, which might
indicate that the same gunfire that killed Hogue also impacted
the Jeep, establishing it was not the shooter’s vehicle. This is
pure speculation. Trombetta and Youngblood “ ‘do[] not require
the disclosure of information that is of mere speculative value.’ ”
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(See People v. Williams (2013) 58 Cal.4th 197, 259 [applying a
similar standard to evidence the state possesses but fails to
disclose].)
C. Evidentiary Sanction for Late Discovery
After Garner was arrested, police possessed his iPhones but
could not access the information in them because they did not
have Garner’s passwords. In February 2018, the prosecutor
learned that Cellebrite, a digital forensics company, had a new
ability to extract information from iPhones without a password.
The prosecutor sent the phones to Cellebrite and received the
information it extracted from them. One week later, on April 25,
2018, two weeks before the originally scheduled trial date, the
prosecutor forwarded the information to defense counsel.
Garner moved to exclude any information obtained from his
iPhones as a discovery sanction for the belated disclosure. The
trial court found the nondisclosure was not in bad faith, and
therefore denied the motion, but granted Garner’s request for a
continuance of trial until August 2018. Trial ultimately began on
March 12, 2019.
Garner argues the court erred by denying his defense
motion to exclude iPhone evidence. We disagree.
Section 1054.1 mandates that a prosecutor disclose
relevant evidence to a criminal defendant at least 30 days before
trial, or immediately if discovered or obtained within 30 days of
trial. “Upon a showing both that the defense complied with the
informal discovery procedures provided by the statute, and that
the prosecutor has not complied with section 1054.1, a trial court
‘may make any order necessary to enforce the provisions’ of the
statute, ‘including, but not limited to, immediate disclosure, . . .
continuance of the matter, or any other lawful order.’ . . . A
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violation of section 1054.1 is subject to the harmless-error
standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836,
299 P.2d 243.” (People v. Verdugo (2010) 50 Cal.4th 263, 280.)
We review “a trial court’s ruling on matters regarding discovery
under an abuse of discretion standard.” (People v. Ayala (2000)
23 Cal.4th 225, 299.)
Here, we need not decide whether the iPhone evidence was
relevant nor whether the prosecutor improperly delayed in
disclosing it, because any error in denying Garner’s motion to
exclude the evidence was undoubtedly harmless: Garner received
the disclosure 10 months before trial.
D. Prohibition of Ex-Felons Serving on a Jury
At the time of trial, Code of Civil Procedure section 203,
subdivision (a)(5) prohibited convicted felons from serving on a
jury. Garner moved to have this action dismissed on the ground
that the prohibition unconstitutionally deprived him of the right
to a trial by a jury drawn from a fair cross-section of the
community. The trial court denied the motion.
Garner argues the trial court violated his constitutional
rights by denying the motion. However, we are bound by
Supreme Court precedent squarely rejecting the argument that
prohibiting a convicted felon from serving on a jury is
unconstitutional. (People v. Karis (1988) 46 Cal.3d 612, 632-634.)
E. Search Warrants
A search warrant apparently issued on January 17, 2017,
supported by an affidavit by Detective Garza in which he stated a
witness reported that the shot that killed Hogue was fired from
an SUV or Jeep by a light-skinned Black man. With no
explanation of the circumstances surrounding the warrant, nor
description of the area to be searched, nor citation to the record,
9
Garner argues the warrant lacked probable cause because
Garza’s affidavit was too general, and the trial court erred in
denying his motion to have the warrant quashed.
Another search warrant issued in 2019, seeking
information from Garner’s iPhones that had already been
obtained by a search pursuant to warrant. The prosecutor
represented that the second search was necessary because the
police expert overseeing the first was unavailable to testify.
Garner moved to quash the warrant on the ground that nothing
indicated the information sought the second time was the same
as that obtained the first time. Finding that the iPhones had
never left the police chain of custody, the court found no reason to
believe the second extraction would differ from the first. It
therefore denied the motion.
Citing no pertinent authority and with only perfunctory
argument, Garner claims the court erred in denying his second
motion to quash.
We deem both arguments forfeited.
“ ‘A reviewing court will consider the totality of the
circumstances to determine whether the information contained in
an affidavit supporting the application for a warrant establishes
a fair probability that a place contained contraband or evidence of
a crime.’ ” (People v. Lim (2000) 85 Cal.App.4th 1289, 1296.)
Reviewing courts will not consider matters that are “perfunctorily
asserted without argument or authorities in support.” (People v.
Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11.)
Because Garner provides no circumstances surrounding the
first warrant, failing even to describe the object of the search, we
have insufficient information to evaluate the merits of his claim
that the trial court erred in denying his motion to quash it.
10
Because Garner gives no explanation how the content of his
iPhones might have changed over time, or why any change would
matter, we have no ground upon which to ascertain whether the
warrant was insufficient.
F. Evidence of Other Vehicles
After a detective testified that the shooter’s vehicle
depicted in the surveillance video could have been a Sports
Utility Vehicle rather than a Jeep, defense counsel attempted
during cross-examination to make use of a photographic array
depicting SUVs rather than Jeeps. The trial court found that use
of the display would be more prejudicial than probative, and
additionally that no foundation had been established as to what
vehicles were depicted. After defense counsel offered to secure a
witness to establish foundation, the court stated that it would
decide the foundation issue later. The matter was never
revisited.
Garner argues the trial court prejudicially erred in
excluding defense counsel’s photo array. We conclude the issue
has not been preserved for appeal.
“It is well settled that demonstrative evidence is admissible
for the purpose of illustrating and clarifying a witness’
testimony.” (People v. Ham (1970) 7 Cal.App.3d 768, 780,
disapproved on another ground in People v. Compton (1971) 6
Cal.3d 55, 60.) Prior to the use of a visual aid, a witness must
offer foundational testimony as to the representative accuracy
and illustrative value of the visual aid, and it must be established
that the aid was substantially similar to that which it seeks to
illustrate. (Ham, at p. 780.)
Here, defense counsel at first offered no foundation for the
representative accuracy or illustrative value of his visual aid, but
11
was invited to do so by the court. He ultimately declined to do so.
When a trial court defers ruling on a motion to admit
foundationless evidence, the defendant must renew the motion to
preserve the issue for review. (See People v. Ramos (1997) 15
Cal.4th 1133, 1171.) Failure to do so “depriv[es] the trial court of
the opportunity to correct potential error.” (Ibid.) Garner
therefore failed to preserve this issue for appeal.
G. The Prosecution’s Refusal to Stipulate
The prosecution planned to link Garner to a cell phone that
was in the area of the shooting by having his probation officer
testify about Garner’s cell phone number. Garner offered to
stipulate to his phone number to prevent the jury from
discovering he was on probation, but the prosecution declined the
offer.
The prosecution also planned to establish that Hogue died
of a gunshot wound by introducing two autopsy photographs.
Defense counsel offered to stipulate that Hogue died of a gunshot
wound, but the prosecution again declined.
Garner thereafter moved to exclude the probation officer’s
testimony and autopsy photos on the ground that, given his
willingness to stipulate, they would have unduly prejudicial
effect. The court denied the motions.
Garner argues that given his willingness to stipulate, the
probation officer’s testimony and autopsy photos had no probative
value. We disagree.
Relevant evidence should be excluded if the trial court, in
its discretion, determines that its probative value is substantially
outweighed by the probability that its admission will create a
substantial danger of undue prejudice. (Evid. Code, § 352.) In
this context, unduly prejudicial evidence is evidence that would
12
cause the jury to “prejudge” a person on the basis of extraneous
factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.) We review
the trial court’s decision on whether evidence is unduly
prejudicial for abuse of discretion. (People v. Avitia (2005) 127
Cal.App.4th 185, 193.)
Here, given that the prosecution refused to stipulate to
Garner’s telephone number or Hogue’s cause of death, the probity
of the autopsy photos and probation officer’s testimony about
Garner’s cell phone number were manifest.
“Neither the prosecutor nor the trial court [is] legally
obligated to accept [a] . . . stipulation” (People v. Rogers (2013) 57
Cal.4th 296, 329), because to require a prosecutor to accept a
stipulation would permit a defendant to “stipulate . . . his way out
of the full evidentiary force of the case as the Government
chooses to present it” (id. at p. 330). Therefore, a defense offer to
stipulate is of no consequence in an analysis under Evidence
Code section 352. (People v. Carter (2005) 36 Cal.4th 1114, 1169-
1170.)
H. Motion for Mistrial
At trial, Detective Garza testified that the Jeep driven by
the suspected shooter was found at the address of Jason
Edwards, a known Rolling 40’s member. In violation of the
court’s order to limit his testimony, Detective Garza then
volunteered that Garner was an associate of Edwards. Defense
counsel objected to the testimony and moved for a mistrial, which
the trial court denied because there had already been a “plethora
of testimony” that Garner was an active member of the Rolling
40’s gang.
13
Garner argues the court erred in denying his motion for
mistrial because Garza’s testimony suggested Garner had a
“propensity for criminality.” We disagree.
A mistrial must be granted when prejudice caused by
improperly admitted evidence irreparably damages a defendant’s
chance of receiving a fair trial and cannot be cured by an
admonition to the jury. (People v. Edwards (2013) 57 Cal.4th
658, 703.) Improperly volunteered information will necessitate a
mistrial only when the testimony cannot be cured by an
admonition. (People v. Franklin (2016) 248 Cal.App.4th 938,
955.) “The California Supreme Court has consistently found
vague and fleeting references to a defendant’s past criminality to
be curable by appropriate admonition to the jury.” (Ibid.)
A trial court has considerable discretion in determining
whether improper testimony causes incurable prejudice. (See
People v. Jenkins (2000) 22 Cal.4th 900, 986-987.) We review the
denial of a mistrial motion for an abuse of discretion. (People v.
Elliott (2012) 53 Cal.4th 535, 575.)
Here, the trial court could reasonably find that no incurable
prejudice arose from Detective Garza volunteering that Garner
and Edwards were associates. Evidence established that both
were Rolling 40’s members, and the strong inference that they
therefore knew each other was given no greater weight by Garza
confirming it. Such confirmation suggested nothing about
Garner’s propensity for criminality.
I. Detective Garza
While cross-examining Detective Garza, defense counsel
asked whether he investigated the possibility that another gang
also had a reason to commit a shooting in VNG territory. The
trial court sustained a prosecution objection raised under
14
Evidence Code section 352, and denied the defense request to ask
whether Garza had investigated other groups or people for the
shooting.
Garner argues the court prejudicially erred in excluding
such testimony because it would have impeached Garza’s
credibility by showing that “the police rushed to judgment”
regarding Garner. We disagree. (See People v. Page (2008) 44
Cal.4th 1, 37 [“The possibility the police may have chosen not to
follow up more thoroughly on all leads does not impeach the
evidence against defendant”].)
J. Motion for New Trial and Cumulative Error
After trial, Garner moved for a new trial under section
1181.6, arguing that issues surrounding the destruction of the
Jeep, the second cell phone extraction, and the rule excluding
felons from jury service resulted in a miscarriage of justice. The
court denied the motion.
Garner argues that for “reasons discussed” above, the trial
court erred. He also argues that the cumulation of errors
described above necessitates reversal. Having concluded that
none of Garner’s arguments have merit, we reject also his
arguments concerning new trial and cumulative error.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
*
FEDERMAN, J.
*
Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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