P. v. Little 5/17/07 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D048452

Case Date: 07/25/2007

Preview:Filed 5/17/07 P. v. Little CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. RICO LAMAR LITTLE, Defendant and Appellant.

D048452

(Super. Ct. No. SCD191845)

APPEAL from a judgment of the Superior Court of San Diego County, Janet I. Kintner, Judge. Affirmed in part and reversed in part.

A jury convicted Rico Lamar Little of two counts of assault with force likely to produce great bodily injury against Patrick Malone and Freddie D. McNew in violation of Penal Code1 section 245, subdivision (a)(1) (counts 1 and 6) and two counts of battery with serious bodily injury against the same in violation of section 243, subdivision (d) (counts 2 and 5). The jury also found true the two allegations as to counts 1 and 6

regarding Little's personal infliction of great bodily injury in violation of section 12022.7, subdivision (a). Little was sentenced to a total of nine years in state prison. He received the upper term of four years for the assault against Malone (count 1) based on judicial findings regarding: (1) the viciousness of the crime (Cal. Rules of Court,2 rule 4.421(a)(1)), (2) the vulnerability of the victim (rule 4.421(a)(3)), (3) the threat to society posed by Little (rule 4.421(b)(1)), (4) Little's prior convictions (rule 4.421(b)(2)), (5) Little's probationary status at the time of the commission of the crime (rule 4.421(b)(4)), and (6) Little's unsatisfactory prior performance on probation (rule 4.421(b)(5)). Little was also sentenced consecutively to (1) one year, one-third the midterm, for the assault on McNew (count 6), and (2) three years and one year, respectively, for the personal infliction of great bodily injury allegations against Malone and McNew. The court stayed Little's sentences for the battery convictions (counts 2 and 5) under section 654. Little contends (1) the court violated his federal and state constitutional rights to confront the witness against him at trial when it found that the prosecution exercised due diligence in its efforts to produce Malone, an unavailable witness due to military deployment, and allowed Malone's preliminary hearing testimony to be read to the jury; and (2) the court violated his federal constitutional rights to a jury trial and proof beyond a reasonable doubt, under Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v.

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All further statutory references are to the Penal Code. All further rule references are to the California Rules of Court. 2

California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham) when he was sentenced to the upper term on count 1 based on aggravating factors found by the court. We reverse the upper term sentence for the assault on Malone because Little was denied his federal constitutional rights to a jury trial and proof beyond a reasonable doubt by the imposition of the upper term on the basis of judicial factfinding. We otherwise affirm the judgment and remand the matter for further proceedings not inconsistent with this opinion. FACTUAL BACKGROUND A. The People's Case At approximately 1:00 p.m. on June 28, 2005, McNew, a disabled college student who has a clubfoot and scoliosis of the spine, was waiting for a light to change at an intersection in downtown San Diego with his friend Ricardo Mosley. McNew heard a man state, "This is what you get." McNew turned toward the man and was hit on the right side of his face by the man's right hand on which there was a hard sort of cast. McNew fell into the street and landed on his face. The man, who McNew later identified in a photographic lineup as Little, kicked McNew's face and right foot. Little also patted McNew's pockets looking for his wallet. Little stated, in reference to McNew, "I'm going to kill you motherfucker." During the attack, 90-year-old Ann Depento was told by Little to "shut up." Depento, who either fell or was struck by Little, required stitches to close a gash on her hand. The attack on McNew stopped when Mosley interfered and Little overheard that the police had been called.

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McNew was initially in the hospital for a week. He suffered a broken foot and has twice had facial reconstructive surgery. A plastic surgeon surgically implanted a metal plate and approximately 10 screws in McNew's face and McNew remains physically scarred from the procedures. McNew did not know Little. Around 3:00 p.m. the same day, Little attacked Malone, a sailor in the United States Navy, while he was talking on his cell phone and walking a few blocks from the location of the McNew incident. Malone's next memory was of waking up in the hospital. He did not know the identity of his attacker. Lauren Boyd, Rachel Rose, and Michael Gurney witnessed the attack. The witnesses testified they saw Little, who they all positively identified in a curbside lineup, kick Malone repeatedly "full force" in the head and chest and jump on Malone's head with both feet. They testified that Malone attempted to shield his face with his hands. After the attack, Little casually walked in the direction of the trolley tracks. The witnesses to Malone's attack then helped Malone. Malone told Rose that he did not know what had happened to him and asked her why Little had attacked him. Malone could not tell Paul Schwenn, a responding officer, what had happened to him. Testimony from the witnesses and Schwenn revealed that Malone (1) had suffered injuries to his face, knee, and arm; (2) did not remember the attack; (3) had difficulty standing and walking after the attack; (4) had pain in his head and neck; and (5) could not remember paramedics asking him two questions that were asked to test his memory. Malone was transported to the hospital on a stretcher. As a result of the attack, Malone

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suffered major headaches and has had problems chewing. He was on sick leave for four days and on limited duty for the Navy for two weeks. Officer Steve Holliday responded to information called into the San Diego Police Department that the suspect in Malone's attack had boarded a specific bus. Holliday detained Little when he got off of the bus because Little matched the suspect's description. Once detained, Little told Holliday that Malone had attempted to hit him and that he hit Malone in response once and kicked his head when he was on the ground. Holliday did not observe, and photographs of Little did not reveal, any injuries on Little. Little did have some type of cast on his right arm. Little was advised of and chose to waive his Miranda3 rights. In an interview by San Diego Police Detective Dawn Wolfe, Little stated that "White K" was plotting against him to make him gay and that Malone was one of those who wanted him to be gay. Little stated that he had recently been in several fights because of this conspiracy to make him gay. Little repeatedly told Wolfe that he was the best fighter in the world. Little also stated that Malone, who was accompanied by a Black male who was never identified, told Little, "You need to be a fag," to which Little responded, "Fuck you, I'm nobody's fag." Malone then attempted to hit Little but ran off when he missed. Little then beat up the unidentified Black male and chased after Malone. Little stated that he punched Malone in the jaw and kicked him twice in the head. Little told Wolfe that he was angry with Malone and wanted to "finish him off."

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Miranda v. Arizona (1966) 384 U.S. 436. 5

B. The Defense Little testified he was listening to music on his headphones when Malone pushed him into McNew. McNew fell into the street and as a result of this accidental impact sustained all of his previously described injuries. Mosley then attempted to engage Little in a fight but Little did not respond. Little testified that he never touched Depento and that when he first noticed her she was already on the ground. Little observed Malone standing with clenched fists and left the area because he thought he was going to be "jumped." Little then testified that later that afternoon he again encountered Malone. Malone approached Little with both fists clenched and said, "You are the fool who jumped me the other day, huh?" Malone then hit Little in the mouth breaking a tooth. Little responded by punching Malone in the face, tripping him, and kicking him in the stomach and buttocks because Malone was fighting back and trying to get up. Little decided to leave because he saw Gurney, who he believed to be Malone's friend, approach him. Before he left he heard Malone tell him "Fag, you need to be a fag." Little denied telling Officer Wolfe (1) about the "White K" conspiracy to make him gay; (2) of his fighting prowess; and (3) that he had kicked Malone in the face and head. DISCUSSION A. Preliminary Hearing Testimony Little first contends the court violated his federal and state constitutional rights by allowing Malone's preliminary hearing testimony to be read to the jury. Specifically, he contends that the court erred in finding that Malone was unavailable because the 6

prosecution did not exercise due diligence to secure his attendance at trial by placing him on standby for the week following the start of the trial. This contention is unavailing. 1. Background The trial in this case was to start on Friday, February 24, 2006, but was trailed to the following Monday on the stipulation of both parties. Malone was personally served with a subpoena on February 22 by Patricia Sanchez-Valdez, a field specialist with the district attorney's office, and was to appear in court on February 24, the anticipated trial date. Phone messages made by Malone to the prosecutor formerly responsible for this case indicate that Malone had appeared on this date. Specifically, Malone stated, "It's 9:40, I guess it's not happening today. I'm going now. You guys call me later." It is not clear whether Malone was placed on a standby arrangement. On Monday, February 27, 2006, a jury was sworn in and the prosecutor, David Grapilon, stated in his opening statement that Malone would testify. On Tuesday, February 28, Rodney Tucker, a process server, was sent to locate Malone at a Navy base and was informed that Malone's ship, the U.S.S. Rushmore, had been deployed. Tucker was also informed that the information regarding where the ship had been sent and when Malone was expected to return was classified. Later that day, Grapilon informed the judge that Malone had been deployed and requested he be declared unavailable. The defense requested a hearing on the issue of whether the prosecution had exercised due diligence. At the due diligence hearing, Paul Meyers, the prosecutor formerly assigned to Little's case, testified that Malone had been a cooperative witness in that he was present 7

at all of the five to seven preliminary hearing dates that had been set for the case and subsequently continued for various reasons on the request of the defense. Malone received notice of these preliminary hearings by way of subpoenas and orders given to him by the judge to appear. The prosecution was given no indication by Malone that he would soon be deployed or otherwise unavailable after the subpoena date. The judge declared Malone unavailable and allowed his preliminary testimony to be read to the jury as Malone was subject to cross examination at the preliminary hearing. 2. Applicable Legal Principles The confrontation clauses of both the United States and California Constitutions guarantee criminal defendants the right to confront the witnesses against them. (U.S. Const., 6th Amend.; Cal. Const., art. I,

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