Filed 8/4/16 P. v. McClelland CA2/6

                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                    2d Crim. No. B260644
                                                                             (Super. Ct. No. BA385552)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.

DAVION MCCLELLAND,

     Defendant and Appellant.




                   A jury convicted Davion McClelland of two counts of first-degree
murder and two counts of attempted premeditated murder (Pen. Code, §§ 187, subd.
(a), 189, 664)1 and found true a multiple-murder special circumstance (§ 190.2, subd.
(a)(3)) and allegations that he personally used a firearm (§ 12022.53, subds. (b)-(e))
and committed the offenses for a criminal street gang (§ 186.22, subd. (b)(4)). He was
sentenced on the murder counts to two consecutive terms of life without the possibility
of parole plus two 25-year-to-life enhancements for the gun use allegations, and on the
attempted murder counts to two concurrent terms of life plus two 25-year-to-life
enhancements for the gun use allegations.


         1
             All further statutory references are to the Penal Code.
                McClelland contends that the trial court erred by denying his motion to
suppress statements about his gang affiliation obtained in violation of his Fourth and
Fifth Amendment rights, excluding evidence of third-party culpability in violation of
the Sixth Amendment’s confrontation clause and his due process right to present a
defense, and failing to instruct the jury that unanimous agreement on the degree of the
murders was required. In addition, he requests that we independently review the trial
court’s in-camera hearing on his Pitchess motion2 and correct an error regarding his
presentence custody credit. We correct his custody credit and otherwise affirm.
                                          FACTS
                McClelland and an unidentified male were riding bicycles up and down
Hooper Avenue near 55th Street in Los Angeles one evening. This area was claimed
by the Blood Stone Villains (BSV) gang as its territory. McClelland was a member of
the rival Pueblo Bishop Bloods (Pueblos) gang.
                McClelland and his companion encountered Michael Smith and BSV
member Kenneth Corbin walking along Hooper. Either McClelland or his
companion called out “Sawoop,” indicating that he was a member of a gang affiliated
with the Bloods. Smith and Corbin turned around and gave them a “head nod.”
McClelland started shooting at them, firing about six shots in total. Although neither
Corbin nor Smith was struck, one bullet entered a nearby backyard, striking and killing
both 22-month-old Joshua Montes and his great uncle who was carrying him.
                                      DISCUSSION
                         Suppression of Gang Affiliation Evidence
                McClelland contends that the trial court violated his Fourth and Fifth
Amendment rights by not suppressing statements he made to the police regarding his
gang affiliation.
                The Fourth Amendment protects “against unreasonable searches and
seizures” by the police. (U.S. Const., 4th Amend.) Evidence obtained in violation of

       2
           (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

                                             2
this guarantee may not be used in a subsequent prosecution. (Mapp v. Ohio (1961)
367 U.S. 643, 655.) On review of a ruling denying a motion to suppress such
evidence, we view the facts most favorably to the prosecution and uphold the trial
court’s factual findings if supported by substantial evidence. (People v. Woods (1999)
21 Cal.4th 668, 673.) We decide independently whether a search or seizure was
reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876,
924.)
              The Fifth Amendment guarantees that a criminal defendant may not “be
compelled . . . to be a witness against himself.” (U.S. Const., 5th Amend.) This
precludes the prosecution from using “statements . . . stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” (Miranda v. Arizona
(1966) 384 U.S. 436, 444.) Such procedural safeguards include, prior to any
questioning, a warning “that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed.” (Ibid.) We “defer to the trial court’s
resolution of disputed facts, including the credibility of witnesses, if that resolution is
supported by substantial evidence,” and independently determine whether the
challenged statement was obtained in violation of Miranda. (People v. Weaver, supra,
26 Cal.4th at p. 918; People v. Davis (2009) 46 Cal.4th 539, 586.)
              Five weeks before the shootings, Officers Nathan Brown and Samuel
Briggs were on patrol in the Pueblo Del Rio housing project around 12:50 a.m. Brown
was familiar with the area. It had a high rate of gang and narcotics activity, especially
by non-residents violating a posted “no trespassing” sign. During the previous two
years he “[m]ade a number of arrests there and documented a number of [Pueblos
members]” while working in the criminal gang unit. It was “inherently a dangerous
place [for] police officers” because gangs that conducted business there had a tactical
advantage and would ambush officers. The police normally entered the housing
project with more than two officers.

                                             3
              Brown and Briggs saw McClelland walking between two buildings.
McClelland was wearing a dark hoodie pulled over his head. He was “walking back
and forth” “without any apparent purpose or direction” and “looking left and right in a
manner consistent with monitoring police response.” He appeared to be “loitering for
the purpose of selling narcotics” and “looked to be under 18 years of age in violation
of curfew.”
              The officers followed him. They separated and circled around two
buildings so that they could track him on both sides. McClelland turned a corner and
“nearly walked into [Brown].” McClelland was looking back towards Briggs and
appeared to be attempting to evade him. Brown observed a heavy item the size of a
handgun in the center pocket of McClelland’s hoodie, causing it to sag. Brown
immediately suspected it was a handgun.
              Brown told McClelland, “Come over here and put your hands behind
your head and face the wall quick.” With one hand, Brown held McClelland’s hands
behind his head and with the other did a patdown weapons search. Brown felt an L-
shaped object and removed a handgun from the hoodie.
              Briggs gave McClelland Miranda warnings because Brown “had gang
questions that [he] was interested in asking.” Brown could not recall whether the
warnings were given in the field or at the police station. McClelland was asked if he
understood the warnings and said “yes.” He then answered gang-related questions,
including his gang affiliation, his gang name, and his friends in the gang.
              The trial court ruled that “given the totality of the circumstances, the fact
that this was [an] area where there were no trespassing signs and the time of night and
the conduct described in detail by the officers and the fact that he tried to avoid them[,]
. . . I think it follows that if he was going to pat him down he had to be in the process
of detaining him. [¶] So I do find that he had reasonable suspicion to detain him
briefly to check out his right to be in the area and what he was doing and so forth. [¶]
And the way he described the [patdown] seems to me that a gun would be fairly
discernable and that’s what he did describe so I think he had probable cause to make

                                             4
the arrest and gave him Miranda and the defendant made the statements so I will allow
the statements.”
                 McClelland claims that the police stopped him without reasonable
suspicion of a crime. To the contrary, this is a classic “stop and frisk” in which “a
police officer observes unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, where . . . he is entitled
for the protection of himself and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an attempt to discover weapons which
might be used to assault him.” (Terry v. Ohio (1968) 392 U.S. 1, 30.)
                 Officer Brown had reasonable suspicion that McClelland was a minor
violating curfew. (See Los Angeles Mun. Code, § 45.03; In re Justin B. (1999) 69
Cal.App.4th 879, 889 [“As a general rule, a peace officer is entitled to take a minor
who is in violation of a local curfew ordinance into ‘temporary custody,’ the functional
equivalent of the arrest of an adult”].) McClelland was alone, walking about aimlessly
after midnight. He appeared to be a minor.3 Furthermore, the area’s high degree of
drug activity, the late time of night, McClelland’s constant glances around, and his
attempt to evade the police gave the officers reasonable suspicion that he was loitering
to sell drugs.
                 McClelland argues that these factors, taken individually, are insufficient
to establish reasonable suspicion of criminal activity justifying a brief detention. This
misses the point. “‘In evaluating the validity of a stop such as this, we must consider
“the totality of the circumstances—the whole picture.”’” [Citation.]” (People v.
Souza (1994) 9 Cal.4th 224, 239; see also id. at p. 240 [based on “the area’s reputation
for criminal activity, the presence of two people near a parked car very late at night
and in total darkness, and evasive conduct” the officer “reasonably suspected that

       3
        Smith later testified that McClelland and his accomplice looked young, “[l]ike
school kids.”

                                              5
criminal activity was afoot”].) In light of the appearance that McClelland was
concealing a handgun in his hoodie, Brown could lawfully perform a patdown search
for weapons before investigating further. (People v. Miles (1987) 196 Cal.App.3d
612, 618.)
              McClelland also claims that the police advised him of his Miranda rights
in an intentionally misleading way, rendering his implied waiver of the rights
ineffectual. “In general, if a custodial suspect, having heard and understood a full
explanation of his or her Miranda rights, then makes an uncompelled and uncoerced
decision to talk, he or she has thereby knowingly, voluntarily, and intelligently waived
them. [Citation.] Law enforcement officers are not required to obtain an express
waiver of a suspect’s Miranda rights prior to a custodial interview. [Citation.]”
(People v. Cunningham (2015) 61 Cal.4th 609, 642.)
              Here, McClelland was informed of his rights, he acknowledged that he
understood them, and the police were not “yelling at him or threatening him or
anything like that” when they questioned him. In the case upon which he relies,
People v. Hawthorne (2009) 46 Cal.4th 67, abrogated on other grounds by People v.
McKinnon (2011) 52 Cal.4th 610, the Supreme Court concluded that under similar
circumstances the defendant impliedly waived his Miranda rights by continuing to
answer questions. (See Hawthorne, at pp. 87-88.)
              McClelland asserts in his reply brief that the prosecution failed to prove
the implied Miranda waiver occurred before the gang-related questions. He forfeited
this argument by failing to raise it in his opening brief. (People v. Tully (2012) 54
Cal.4th 952, 1075.) It is also meritless. Brown testified that when McClelland
“answer[ed] questions about . . . his gang involvement,” it was “after” being
“Mirandized.” The trial court properly refused to suppress his statements concerning
his gang affiliation.
                           Third-Party Culpability Evidence
              McClelland contends that the trial court denied his rights to confront
witnesses and present a defense by excluding evidence of third-party culpability. “To

                                            6
be admissible, the third party evidence need not show ‘substantial proof of a
probability’ that the third person committed the act; it need only be capable of raising
a reasonable doubt of defendant’s guilt. At the same time, we do not require that any
evidence, however remote, must be admitted to show a third party’s possible
culpability.” (People v. Hall (1986) 41 Cal.3d 826, 833.) Rather, “courts should
simply treat [such] evidence like any other evidence: if relevant it is admissible
([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk
of undue delay, prejudice, or confusion ([id.,] § 352).” (Id. at p. 834.) We review the
trial court’s exclusion of third-party culpability evidence for abuse of discretion.
(People v. Elliott (2012) 53 Cal.4th 535, 581.)
              Renee Lewis, McClelland’s aunt, testified that she resided in the Pueblo
Del Rio housing project and that McClelland occasionally stayed with her. He left
clothes—including a hoodie and apparel signifying an affiliation with the Pueblos
gang—in her apartment. She saw him a few days before the murders riding a bicycle
similar to the one used by the perpetrator. She also saw another nephew, Jaquain
Smith (Jaquain),4 riding the same bicycle around that time. Jaquain was “a little
thicker” or “heavier” than McClelland, who was “kind of skinny.”
              Defense counsel sought to present testimony from Lewis that three hours
after the murders, Jaquain showed up at her apartment “banging on the door” in “a
state of agitation.” Jaquain was sweaty and pacing. He asked if he and an unidentified
person accompanying him could stay the night. Defense counsel asserted that this
evidence was relevant “to argue . . . inferentially that [McClelland] was not the
shooter” and that “[Jaquain’s] behavior arguably shows that he thinks he’s guilty” as
the shooter. The trial court ruled that the proposed evidence was inadmissible because
“it doesn’t help [the jury] resolve who is the shooter” and “[t]he jury still knows [that]



       4
        We refer to Jaquain Smith by his first name in order to avoid confusion with
victim Michael Smith. No disrespect is intended.

                                            7
there are two people involved” and that there is “some evidence the defendant is the
shooter.”
              The trial court was correct. It is undisputed that there were two men on
bicycles involved in the murders—the shooter and his accomplice. That Jaquain may
have been one of them did not call into question McClelland’s involvement. (Cf.
People v. Hall, supra, 41 Cal.3d at p. 835 [“Because no testimony or circumstantial
evidence limited the number of perpetrators, [the third party’s] participation would not
undermine the significant evidence linking defendant to the murder”].) Defense
counsel agreed with the trial court that he was not offering “evidence . . . that [Jaquain]
did it and not the defendant.” When the trial court asked “what evidence” there was
that Jaquain was the shooter rather than the accomplice, defense counsel stated, “Just
this consciousness of guilt activity that would be described by [Lewis].” Even if
Jaquain’s “suspicious” behavior was probative of his involvement in the murders, it
was not probative of his role as either the shooter or as an accomplice.
              McClelland asserts here that he “was skinny,” Jaquain “was heavier than
[him],” and victim Michael Smith “testified that the shooter was chubbier than the
other bicyclist.”5 Smith’s testimony was not introduced until after the trial court made
its evidentiary ruling, however, and McClelland failed to raise the issue. Regardless,
Smith’s testimony has no bearing on the analysis. While it was probative as to
McClelland’s involvement in the murders and role as the shooter, Lewis’s proposed
testimony was not and risked confusing the jury.
              McClelland also asserts that Lewis’s testimony would have revealed
“[Jaquain’s] request to . . . allow another unidentified person to stay over[night].”

       5
         Two weeks after the shooting, the police showed Smith a “six pack”
photographic lineup from which he identified McClelland as the shooter. At trial,
Smith again identified McClelland as the shooter. Defense counsel asked Smith about
his testimony at the preliminary hearing that McClelland “was there” at the shooting
but “that the shooter was thicker than Mr. McClelland” and Smith “[didn’t] know if
[McClelland] was the shooter.” Smith explained that he was not “a hundred
percent . . . sure” that McClelland was the shooter.

                                            8
Even assuming that [Jaquain] had some involvement in the shootings, the fact that he
was seen three hours later with an unknown person is irrelevant. To the extent this
“unidentified” person was not McClelland, as he speculates, there is no evidence that
the person had any connection to the murders.
              Lastly, McClelland challenges the trial court’s refusal to let defense
counsel question Officer Leonardo McKenzie about Jaquain’s alleged statement
during a custodial interrogation that he was present at the scene of the crime and was
riding a bike. The trial court properly excluded it as hearsay. (See People v. Hall,
supra, 41 Cal.3d 826 at pp. 834-835 [“As a general matter, the ordinary rules of
evidence do not impermissibly infringe on the accused’s right to present a defense. . . .
[T]his principle applies perforce to evidence of third-party culpability”].) Moreover, it
was improper third-party culpability evidence because it did not raise a reasonable
doubt about McClelland’s involvement. At most, it showed Jaquain had an
opportunity to commit the crimes with him. (See People v. Abilez (2007) 41 Cal.4th
472, 517 [“A criminal defendant may introduce evidence of third party culpability if
such evidence raises a reasonable doubt as to his guilt, but the evidence must consist of
direct or circumstantial evidence that links the third person to the crime. It is not
enough that another person has the motive or opportunity to commit it”].)
                                    Jury Instructions
              McClelland contends that the trial court failed to instruct the jury that it
must unanimously agree on the degree of murder, denying him his constitutional rights
to due process, a fair trial, and to present a defense. Jury unanimity is guaranteed by
the due process clauses of the federal and state Constitutions. (People v. Arevalo–
Iraheta (2011) 193 Cal.App.4th 1574, 1588.) “A defendant challenging an instruction
as being subject to erroneous interpretation by the jury must demonstrate a reasonable
likelihood that the jury understood the instruction in the way asserted by the defendant.
[Citations.]” (People v. Cross (2008) 45 Cal.4th 58, 67-68.) In evaluating the
likelihood of a misunderstanding, we consider the jury instructions as a whole, the
arguments of counsel, and the entire record. (People v. Mills (2012) 55 Cal.4th 663,

                                             9
680.) We assume jurors will exercise intelligence and common sense. (People v.
Coddington (2000) 23 Cal.4th 529, 594, overruled on other grounds by Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) We review the propriety of jury
instructions de novo. (People v. Leeds (2015) 240 Cal.App.4th 822, 830.)
              The trial court instructed the jury as follows: “If you decide that the
defendant committed murder it is murder of the second degree unless the People have
proved beyond a reasonable doubt that it is murder of the first degree . . . .”
(CALCRIM No. 520.) “The defendant has been prosecuted for first-degree murder
under two theories: One, the murder was willful, deliberate and premeditated and, two
the murder was committed by lying in wait. [¶] Each theory of first-degree murder
has different requirements and I will instruct you on both. [¶] You may not find the
defendant guilty of first-degree murder unless all of you agree that the People have
proved that the defendant committed murder but all of you do not need to agree on the
same theory.” (CALCRIM No. 521.)
              The trial court slightly modified the concluding language of the
instruction: “The People have the burden of proving beyond a reasonable doubt that
the killing was first-degree murder rather than a lesser crime. [¶] If the People have
proven the defendant has committed murder but have not met the burden of proving it
was first-degree murder you must find the defendant not guilty of first-degree murder
and the murder is second-degree murder.” (CALCRIM No. 521, trial court’s
modifications in italics.)
              McClelland argues that “[w]hen the jurors in this case were told they
need not ‘all [. . .] agree on the same theory,’ the jurors were misled into thinking they
did not have to all agree on whether [he] was guilty of first or second degree murder
upon unanimously reaching a murder verdict.” We conclude otherwise.
              It is clear from the trial court’s instructions on CALCRIM Nos. 520 and
521 that the jury’s first-degree murder finding must be unanimous but the theory
underlying it need not be. To the extent there was any ambiguity, the trial court
expressly instructed jurors with CALCRIM No. 640 that they must unanimously agree

                                            10
on whether the murder was in the first or second degree.6 The court reiterated the
necessity for unanimity with CALCRIM No. 3550, instructing that “[y]our verdict on
each count and any special finding must be unanimous. This means that, to return a
verdict, all of you must agree to it.”
              Moreover, the prosecutor clarified the issue during closing argument:
“[W]hat the law tells us for first-degree murder is if, for instance, six of you believe
that the crimes here for which the defendant is guilty or responsible was done with
willful, premeditation and deliberation and six of you disagree but believe that the
crimes were done through lying in wait for the murders charged in this case the twelve
of you have just reached a unanimous verdict on first-degree murder. [¶] Let me

       6
         The trial court instructed in relevant part as follows: “You will be given
verdict forms for guilty and not guilty of first-degree murder and second-degree
murder. [¶] You may consider these different kinds of homicide in whatever order
you wish but I can accept a verdict of guilty or not guilty of second-degree murder
only if all of you have found the defendant not guilty of first-degree murder. [¶] As
with all the charges in this case to return a verdict of guilty or not guilty of a count you
must all agree to that decision. [¶] . . .[¶]
        “One, if all of you agree that the people have proved beyond a reasonable doubt
that the defendant is guilty of first-degree murder complete and sign that verdict form.
Do not complete or sign any other verdict forms for that count.
        “Two, if all of you cannot agree whether the defendant is guilty of first-degree
murder inform me that you cannot reach an agreement and do not complete or sign any
verdict form for that count.
        “Three, if all of you agree that the defendant is not guilty of first-degree murder
but also agree the defendant is guilty of second-degree murder complete and sign the
form for not guilty of first-degree murder and the form for guilty of second-degree
murder. Do not complete or sign any other verdict form for that count.
        “Four, if all of you agree that the defendant is not guilty of first-degree murder
but cannot agree whether the defendant is guilty of second-degree murder complete
and sign the verdict form for not guilty of first-degree murder and inform me that you
cannot reach further agreement. Do not complete or sign any other verdict form for
that count.
        “Five, if you all agree the defendant is not guilty of first-degree murder
and not guilty of second-degree murder complete and sign the forms for not guilty of
first-degree murder and not guilty of second-degree murder. Do not complete or sign
any other verdict forms for that count.”

                                            11
repeat that. [¶] What I’m trying to say [is] you don’t have to be unanimous as to
which of these two theories it is as long as each of you is convinced beyond a
reasonable doubt that one or more of these two theories apply.”
              People v. Sanchez (2013) 221 Cal.App.4th 1012, upon which
McClelland relies, is distinguishable. In that case, there were two theories of
murder but only one was applicable to each degree. Thus, jurors could not differ on
the theory of murder and still reach a unanimous verdict notwithstanding “[t]he final
instruction . . . on unanimity . . . that [they] need not agree on the theory of guilt.”
(Id. at p. 1025.) Here, in contrast, there were multiple theories of first-degree murder,
which helped put the instruction at issue in context. Unlike in Sanchez, the last
instruction that the jury here received on the matter—CALCRIM No. 640—was that
unanimity was required as to the degree of murder. The jury instructions were not
misleading.
              As McClelland points out, the trial court made one minor
misstatement. Pursuant to CALCRIM No. 359, the trial court instructed, “You may
rely upon the defendant’s out-of-court statements to convict him only if you first
conclude that the other evidence shows that the charged crime or lesser-included
offense was committed.” It then added, erroneously, “Here there is no lesser-included
offense so disregard that part of the statement.” While it was once true that first- and
second-degree murder constituted a single offense, that is no longer the rule. (Gomez
v. Superior Court in and for Mendocino County (1958) 50 Cal.2d 640, 643-644.)
Because this was the only discussion of a “lesser-included offense” and the jury was
properly instructed on second-degree murder, the trial court’s misstatement was
harmless.
                                     Pitchess Motion
              Prior to trial, McClelland filed a Pitchess motion for discovery of
information in Officers Brown’s and Briggs’s personnel files regarding complaints and
allegations regarding false statements and other dishonest conduct. The trial court


                                             12
granted the motion and held an in-camera hearing, in which it found some
discoverable items that were turned over to defense counsel.
               McClelland asks us to independently review the sealed transcripts of the
in-camera proceedings on his Pitchess motion. We have done so and conclude there
was no error. (People v. Mooc (2001) 26 Cal.4th 1216, 1232.)
                                     Custody Credit
               The trial court awarded McClelland 1,280 days of presentence custody
credit. He contends, and the People concede, that he is entitled to 1,288 days of credit.
We agree. We will modify the judgment accordingly and order an amended abstract
of judgment.
                                     DISPOSITION
               The judgment is modified to reflect 1,288 days of presentence custody
credit. Upon remittitur issuance, the clerk of the superior court is directed to prepare
an amended abstract of judgment reflecting this modification and to send a certified
copy of that abstract to the California Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
               NOT TO BE PUBLISHED.




                                           PERREN, J.


We concur:


               GILBERT, P. J.



               YEGAN, J.




                                            13
                                Curtis B. Rappe, Judge
                         Superior Court County of Los Angeles
                         ______________________________

             Thomas T. Ono, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, and Stacy S. Schwartz, Deputy
Attorney General, for Plaintiff and Respondent.
