Filed 3/27/14 P. v. King CA1/4
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A134044
v.
JASON KING,                                                          (Alameda County
                                                                     Super. Ct. No. 157947)
         Defendant and Appellant.


         Jason King appeals from a judgment upon a jury verdict finding him guilty of first
degree murder (Pen. Code,1 § 187, subd. (a)) and attempted murder (§§ 187/664). The
jury also found true the allegations that defendant used a firearm and intentionally
discharged it within the meaning of sections 12022.5, subdivision (a); 12022.53,
subdivisions (b), (c), and (d) and 12022.7, subdivision (a). Defendant contends that the
trial court abused its discretion in admitting evidence of a witness who claimed he was
almost kidnapped two days prior to his testimony. We affirm.
                                                      I. FACTS
         Sherman “June” Hart testified that he knew defendant and Evan Williams from
around the neighborhood. Defendant and Williams were always together.
         On June 10, 2007, Hart ran into defendant and Williams at Alice’s house on 72nd
Street in Oakland. Williams took Hart’s two dollars that were on a dresser and started to


1
    Unless otherwise indicated, all further statutory references are to the Penal Code.


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leave. Hart followed them out the door and said, “Hold on man. What you doing?”
Williams turned around and knocked Hart into the bush.
       Approximately 20 minutes later, Hart saw Jason McGill at the corner of 71st and
Hamilton. McGill was selling drugs and had sacks of marijuana in his hand and rock
cocaine in his mouth. Hart was on his bicycle and spoke to McGill for about 15 to 20
minutes. At some point, he noticed a blue four-door Buick traveling south from
International coming down 71st Street. He then saw Williams and defendant approach.
Williams asked Hart, “June, nigga, what you got your bitch ass nigga ass here for?”
       Williams and defendant were leaning against a wall about three feet away from
Hart and McGill. Hart saw Williams hand a black pistol to defendant. Defendant
stepped behind McGill and fired the gun at his head. Hart then fled on his bicycle. As he
was cycling toward 69th Street, a number of gunshots were directed at him that
ricocheted off the bicycle. He heard about five gunshots. He looked back and saw that
defendant was shooting the gun. Hart did not immediately notice that he had been hit in
the lower calf area of his leg. He proceeded to try to get out of the area. When he
reached International Boulevard, he realized that he had been hit in the leg. A friend saw
him and flagged down a police car. Hart was taken by ambulance to the hospital where
he was treated. In addition to the gunshot wound to his leg, a bullet had also grazed his
buttock. McGill died from the gunshot wound to his head.
       Sergeant Andreotti investigated the shooting. He took a statement from Hart at the
hospital at about 3:00 a.m. on June 11, 2007. Hart provided a description of the suspects
in the shooting. Andreotti’s investigation led to the identification of defendant and
Williams as suspects. Two days after the shooting, Hart identified defendant and
Williams in a photographic lineup.
       The police recovered a gun when they arrested Jerrin Carpenter in Oakland on
June 11, 2007 for possession of a firearm. Carpenter had purchased the weapon earlier
that evening in a dice game. The police subsequently determined that it was the murder




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weapon.2 On September 6, 2007, the police arrested defendant and Williams after
stopping them in a gray Buick. Williams provided a statement to the police.
       After defendant’s arrest, he was incarcerated in the Santa Rita jail and housed in
the cell next to Raul Villanueva. Villanueva helped defendant with reading and writing
and in preparing defendant’s prisoner complaints. Villanueva testified that defendant told
him that he was in jail because he was charged with murder. Defendant told him that he
was involved in a shooting where the victim was shot in the back of the head. The victim
was shot because he was selling drugs on “his block” and refused to leave. Defendant
told Villanueva that his brother had been killed on that block and that he had no problems
with taking people out on that block.
       Defendant offered Villanueva a car and $7,000 to take care of a witness in his
case. Villanueva did not follow through with defendant’s plan; he was interested only in
purchasing the car.
       Villanueva testified that his life was ruined as a result of having to testify in this
case. He had received threats and, two days prior to his testimony, some people tried to
throw him in a van and told him to “[k]eep your mouth shut.”
       Williams testified at the preliminary examination. He refused to testify at trial;
his preliminary hearing testimony was read to the jury.3 The court found that Williams
was unavailable as a witness under Evidence Code section 240, subdivision (6) and
permitted the People to introduce his testimony from the preliminary examination.
       Williams testified that he had known defendant for probably 14 years. On the
evening of June 10, 2007, he was with defendant and they were selling cocaine and
marijuana in the neighborhood of 71st Street in Oakland. He said that he had gotten into
a squabble with Hart earlier at Alice’s house. He later went to the liquor store with
defendant and walked back toward 71st and Hamilton where he saw Hart and McGill.

2
  The parties stipulated that Officer Borjesson would testify that the weapon recovered
from Carpenter was the same weapon used in this case.
3
 Sergeant Andreotti had recommended that Williams be placed in the witness relocation
program.


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He thought that McGill was selling Hart drugs. He approached Hart and started to swear
at him. He then heard a gunshot behind him and subsequently he heard multiple
gunshots. He saw a gun in defendant’s hand, and saw that McGill was on the ground.
Williams fled up 71st Street. He saw defendant fire at Hart who was riding away on his
bicycle. Defendant fired five to seven shots at Hart. Williams and defendant believed
that McGill was involved in the killing of Rudy Junior, their friend, who was killed at
almost the same spot as McGill.
       The parties stipulated that defendant suffered several previous arrests for drug
possession and sales in the vicinity of 71st and Hamilton. The parties further stipulated
that defendant was convicted of misdemeanor possession of marijuana, sale of cocaine
base and possession for sale of marijuana and that he had admitted two probation
violations. The parties also stipulated that Villanueva had suffered numerous felony
convictions.
                                     II. DISCUSSION
       Defendant contends that the trial court erred in admitting evidence that Villanueva
was almost kidnapped just days before the trial. Villanueva testified that he was
“jumped,” almost thrown in a van, and told to “keep his mouth shut.”4 He perceived the
threat as a warning not to testify in this case. We conclude that the court did not abuse its
discretion in admitting the evidence.
       “Evidence that a witness is afraid to testify or fears retaliation for testifying is
relevant to the credibility of that witness and is therefore admissible. [Citations.] An
explanation of the basis for the witness’s fear is likewise relevant to [his] credibility and
is well within the discretion of the trial court. [Citations.]” (People v. Burgener (2003)
29 Cal.4th 833, 869.) Evidence of a third party threat may also bear on the credibility of


4
  The record suggests that defendant had a head injury at the time of his testimony. The
following colloquy occurred during his testimony: “[Mr. Wilson (deputy district
attorney)]: [Have] there been any consequences to you as a result of being asked to
testify in this case? [¶] [Mr. Villanueva]: Look at my head, okay? I don’t know what
the hell is going on . . . .”


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a witness even if the threat is not directly linked to the defendant. (People v. Mendoza
(2011) 52 Cal.4th 1056, 1084.)
       Here, defendant requested an Evidence Code section 402 hearing concerning
Villanueva’s testimony. The court declined to hold a hearing, recognizing that it had
discretion to admit the evidence and that it could rely on the deputy district attorney’s
offer of proof.
       The court did not abuse its discretion in admitting the evidence. The evidence that
Villanueva was attacked just days before his testimony was relevant to his state of mind
and to his credibility. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) “A witness
who testifies despite fear of recrimination of any kind by anyone is more credible because
of his or her personal stake in the testimony.” (Ibid.) It is immaterial whether the source
of the threat came from the defendant; the important fact is that the witness is testifying
despite fear of recrimination. (Id. at p. 1369.) The jury is entitled to evaluate the
witness’s testimony with the knowledge that it was given under fear of retaliation. (Ibid.)
       Relying on People v. Cardenas (1982) 31 Cal.3d 897, 904, defendant argues that
the testimony was cumulative evidence of witness bias. In Cardenas, the defendant
presented the testimony of five witnesses who were his neighborhood friends. (Id. at
pp. 902–904.) The court held that the evidence that these witnesses were also gang
members was cumulative because their testimony had already established that the
witnesses were biased because of their close association with the defendant. (Id. at
p. 904.)
       The present case is distinguishable. Here, Villanueva’s testimony was not
cumulative of evidence showing that he was fearful of testifying. While the testimony of
Sergeant Gus Galindo also showed that Villanueva was a reluctant witness in that he
feared being labeled a snitch,5 that evidence was not cumulative of the fact that he was




5
 Galindo testified that during the interview, Villanueva expressed concern that he could
be labeled as an informant or snitch which could get him injured or killed.


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threatened immediately prior to his testimony. The threat evidence was highly relevant to
show Villanueva’s state of mind and credibility.
       Moreover, any potential for prejudice from the evidence was eliminated by the
court’s limiting instruction. (People v. Mendoza, supra, 52 Cal.4th at p. 1088.)
During Villanueva’s testimony, the court instructed the jury that his testimony about
threats was being received for the limited purpose of assessing “the credibility of this
witness and for your ability to assess the witness’s state of mind.”
       Defendant also argues that Villanueva’s testimony that he was a member of the
Bammer Boys increased the potential for prejudice. We disagree. The evidence that
defendant was connected to the Bammer Boys was relevant to show motive for the
shooting because McGill was selling drugs on the corner claimed by defendant’s gang.
Defendant had previously been arrested on that same corner for drug possession and
sales. On these facts, the evidence was highly relevant and properly admitted. No error
appears.
                                   III. DISPOSITION
       The judgment is affirmed.



                                                   _________________________
                                                   Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Humes, J.




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