Filed 4/16/15 P. v. Marshall CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050893

         v.                                                            (Super. Ct. No. SWF10000738)

TYRONE MARSHALL and EVAN                                               OPINION
RAMON ROLAND,

     Defendants and Appellants.
                   Appeals from judgments of the Superior Court of Riverside County, Gary
B. Tranbarger, Judge. Affirmed.
                   Eric S. Multhaup for Defendant and Appellant Tyrone Marshall.
                   Catherine White, under appointment by the Court of Appeal, for Defendant
and Appellant Evan Ramon Roland.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and
Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
              Defendants Tyrone Marshall and Evan Ramon Roland both appeal after a
jury convicted Marshall of first degree murder with lying in wait special circumstance
and personal discharge of a firearm allegations and convicted Roland of second degree
murder. Marshall’s appeal contends his rights were violated by the admission of
statements attributed to Roland. Roland contends the court erred in failing to instruct the
jury it had to find him not guilty of first degree murder before it could return a verdict of
guilty of second degree murder.
              The statements attributabed to Roland were not admissible against Marshall
as statements in furtherance of a conspiracy to commit murder, and the court erred in
admitting them. But the error was harmless. The court’s failure to instruct the jury to find
Roland not guilty of first degree murder before it could return a verdict of guilty of
second degree murder was error. But the error was cured by the subsequent dismissal of
the first degree murder charge.
              We therefore affirm the judgments.


                                           FACTS


              Darrel Hosey, known as “Fat Daddy” and a member of the Dorner Bloc
gang, exchanged some words with other men, members of a competing gang. When he
arrived at home, he was assured either by Roland, who was nicknamed “Bam,” or the
latter’s companion Lecedric Johnson, that he did not have anything to worry about.
Hosey asked them for a cigarette; they said they had none and Hosey asked them to come
back later if they were able to obtain a cigarette.
              Some time later, Roland was in another apartment in the same complex
with Johnson and Thomas Haywood when others arrived. Two of the newcomers asked
to speak with Roland. They stepped out and when Roland returned, he told his



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companions “[s]omething bad is going to go down” and “[y]ou guys might not want to be
here.” After Johnson, Haywood, and Roland were outside, Roland told his companions
Marshall “was going to dome Fat Daddy.”
              Roland then obtained some cigarettes and returned to Hosey’s apartment.
When Hosey stuck his head out of the window, Roland showed him a cigarette and
Hosey came downstairs. Roland told him they had to wait outside because he was
expecting a cousin to bring him some pills. Shortly thereafter, Johnson joined them and
found Roland and Hosey to be smoking. Roland gave Johnson a cigarette and, as the men
were standing there, Marshall ran up and shot Hosey, killing him. Roland stayed near the
body and Marshall ran away.


                                       DISCUSSION


1. Failure to instruct the jury on the need to acquit Roland of first degree murder before
returning a verdict of second degree murder
              Roland was charged with first degree murder. After five days of
deliberations, the jury sent the court a note: “We have all agreed on second degree. We
have split on first degree, but all accept [the] verdict as written and feel further debate
will not change on first degree.” The court questioned the jurors. The foreperson told the
court, and the other jurors agreed, the disagreement was “intractable” and there had been
no progress in reaching a final decision, even after the court clarified the difference
between first and second degree murder earlier. Thereupon, the court accepted the
Marshall verdict, finding him guilty of first degree murder and excused the jury from the
courtroom.
              The prosecutor stated the court had failed to instruct the jury that it could
not return a verdict on the lesser included offense unless they acquitted Roland of the



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greater offense. (CALCRIM No. 641.) The prosecutor urged the court to so instruct the
jury. The court responded, “The request to have the jury further deliberate is denied. The
Court’s of the opinion that, if I were to give the jury such an instruction in this context, it
would be a form of coercion to the jury to force them to come to a decision as to first.
And given the amount of time that they’ve spent and their previous statements that they
are hung, I’m not going to instruct them on that, nor am I going to instruct them . . . on
the modified Allen instruction about further deliberations. If this were two days ago, I
probably would. But after the amount of time that they have spent, I’m not going to do
that. So that request is denied.”
              The prosecutor then asked the court to dismiss the first degree murder
charge. Roland’s lawyer asked the court declare a mistrial. The court denied the latter’s
request and took the prosecutor’s motion to dismiss the first degree murder charge under
submission. It then took the jury’s verdict for second degree murder, polled the jury, and
excused the jury. Thereafter, the court ordered the first degree murder charge against
Roland be dismissed.
              The court erred. (See People v. Kurtzman (1988) 46 Cal.3d 322, 332-334.)
In cases where a defendant is charged with first degree murder and a lesser offense is
submitted to the jury, the court has a sua sponte duty to instruct the jury it must find the
defendant not guilty of the greater offense before it can decide he or she is guilty of the
lesser offense. In People v. Fields (1996) 13 Cal.4th 289 (Fields), the Supreme Court
stated, “When, however, the jurors express their inability to agree on a greater inclusive
offense, while indicating they have reached a verdict on a lesser included offense, the
trial court must caution the jury at that time that it ‘may not return a verdict on the lesser
offense unless it has agreed . . . that defendant is not guilty of the greater crime
charged.’” (Id. at pp. 309-310.)




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              In Fields, the defendant had been charged with gross vehicular
manslaughter while intoxicated, vehicular manslaughter while intoxicated, gross
vehicular manslaughter, driving under the influence and causing bodily injury, driving
with a blood-alcohol level of .08 percent or more and causing bodily injury, and driving
with a suspended license. (Fields, supra, at p. 296.) The jury was deadlocked on gross
vehicular manslaughter while intoxicated and gross vehicular manslaughter but rendered
guilty verdicts on the other counts. (Id. at pp. 296-297.) The trial court declared a mistrial
on the two deadlocked counts, set a date for retrial on those counts, discharged the jury,
and sentenced defendant on the remaining counts. (Id. at p. 297.)
              The procedures employed by the trial court in Field are similar to what
happened here, except in this case the court ultimately dismissed the first degree murder
count. In Fields, the trial court ordered a second trial on the greater charges and then
resentenced the defendant to a higher term. (Fields, supra, at p. 297.)
              The Supreme Court reversed the conviction on the greater charge. (Fields,
supra, at p. 297.) It acknowledged that “when the jury expressly deadlocks on the greater
offense but returns a verdict of conviction on the lesser included offense, the conviction
on the lesser offense does not operate as an implied acquittal of the greater.” (Id. at p.
302.) The court came to the same conclusion under the California Constitution’s
prohibition on double jeopardy: “We thus conclude that under the double jeopardy
principles embodied in the California Constitution, when jurors deadlock on a greater
offense, an acquittal on that charge will not be implied by the jury’s verdict of guilty on a
lesser included offense.” (Id. at p. 303.)
              But Fields went on to conclude, “Although we find the doctrine of implied
acquittal inapplicable to a case such as this one, in which the jury is not merely silent but
expressly deadlocked on the greater offense, this conclusion does not mean that
defendant was properly retried on the greater offense under principles of manifest



                                              5
necessity or legal necessity. To the contrary, notwithstanding the jury’s deadlock on the
greater offense, defendant could not be subjected to retrial on that charge. As we explain,
once the verdict of guilty on the lesser included offense was received by the trial court
and recorded, and the jury was discharged, defendant stood convicted of the lesser
included offense within the meaning of [Penal Code] section 1023. Pursuant to that
statute, when an accused is convicted of a lesser included offense, the conviction bars a
subsequent prosecution for the greater offense.” (Fields, supra, at p. 305.)
              Of course the present case does not involve the Fields problem where the
defendant was retried on the greater offense after the jury found him guilty of the lesser
offense. But one of the remedies suggested by the Fields court was used here. The court
stated, “Alternatively, when faced with a deadlock on the greater offense and a verdict of
guilt on the lesser included offense, the People may prefer to forgo the opportunity to
convict the accused of the greater offense on retrial in favor of obtaining a present
conviction on the lesser included offense. [Citation.] In that case, the People should move
the trial court to exercise its discretion to dismiss the charge on the greater offense in
furtherance of justice under [Penal Code] section 1385.” (Id. at p. 311, see People v.
Bordeaux (1990) 224 Cal.App.3d 573, 581-582 [right to mistrial under section 1140 does
not impair trial court’s authority to dismiss charge pursuant to section 1385].) The
prosecutor did just that here and the court subsequently granted the motion to dismiss the
first degree murder charge. Therefore, the court properly denied defendant’s motion for a
mistrial.


2. Admission of extrajudicial statements against Marshall
              Marshall’s appeal raises issues dealing with the admission of extrajudicial
statements attributed to Roland. These statements were admitted against Marshall
because the court, relying on Evidence Code, section 1223, found they were made in



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furtherance of the conspiracy to murder Hosey. We disagree with the trial court. But, in
light of the overwhelming evidence of Marshall’s guilt, the admission of these statements
and references to the statements during the trial was harmless.
              In response to a motion in limine by the prosecution, the court ruled that
evidence of statements attributed to Roland that “[s]omething bad is going to go down”
and Marshall “was going to dome Fat Daddy” were admissible as advancing the goals of
the conspiracy. In order to support this view, we would have to agree with the Attorney
General who urges these statements were made to encourage the hearers to join the
conspiracy. But the evidence as presented does not support this conclusion. And as our
Supreme Court stated, “The trial court erred when it admitted [a witness’] testimony
under the coconspirator statement exception because the foundational requirements—
‘[t]he statement was made by the declarant while participating in a conspiracy to commit
a crime . . . and in furtherance of the objective of that conspiracy’ . . . were not met.”
(People v. Homick (2012) 55 Cal.4th 816, 872.) Therefore it was error to admit these
statements against Marshall.
              In arguing whether the admission of these statements was harmless error,
the parties disagree whether we should apply the standards of People v. Watson (1956) 46
Cal.2d 818, 836, “there should be no reversal where ‘it appears that a different verdict
would not otherwise have been probable’” or Chapman v. California (1967) 386 U.S. 18,
24 [87 S.Ct. 824, 17 L.Ed.2d 705] “the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” People v. Homick, supra, Cal.4th 872 suggests the
Watson standard applies. However, even under the Chapman standard, the evidence that
Marshall committed the murder under circumstances clearly demonstrating it was willful,
deliberate, and premeditated, was so strong that it was clearly “harmless beyond a
reasonable doubt.”




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              DNA test confirmed that Marshall had likely used a glove, discarded in the
direction he had fled. Defense investigator Sherrie Smith testified she had interviewed
Tamara Pritchett, who recounted a conversation with Marshall who told her “I shot him.”
Witnesses of the shooting described the shooter’s clothing and clothes fitting that
description were found in a trash can near the route of the shooter’s escape. A
bloodhound exposed to the scent of the clothes led officers near Marshall’s residence.


                                      DISPOSTION


              The judgment is affirmed.



                                                 RYLAARSDAM, ACTING P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.




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