P. v. Mallory

Filed 9/23/04 P. v. Mallory CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
OSCAR WILLIAM MALLORY,
Defendant and Appellant.
B169815
(Los Angeles County
Super. Ct. No. BA239682)
In re OSCAR WILLIAM MALLORY,
on Habeas Corpus.
B174734
APPEAL from a judgment of the Superior Court of Los Angeles
County, Judith Champagne, Judge. Affirmed in part, Reversed in part, Remanded
and Denied.
Lynette Gladd Moore, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,

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Robert F. Katz and Louis W. Karlin, Deputy Attorneys General, for Plaintiff and
Respondent.
Oscar Mallory was convicted by a jury of assault with a firearm with
the personal use of a handgun (Pen. Code, § 245, subd. (a)(2); 12022.5, subd.
(a)(1)). He was sentenced to 18 years in prison. He appeals, contending that the
court erred in excluding certain evidence and in sentencing him to the upper term
for the assault. He has also filed a petition for writ of habeas corpus (the petition),
contending that there was evidence of jury misconduct. On May 11, 2004, we
issued an order deferring consideration and determination of the petition so that it
could be resolved in conjunction with the appeal. Following oral argument on July
16, 2004, we requested additional briefing from the parties on the effect of Blakely
v. Washington (2004) 542 U.S. ____, 124 S.Ct. 2531. We affirm the judgment of
conviction, but remand the cause to the trial court for resentencing, and deny the
petition.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Appeal
On November 17, 2002, at approximately 1:45 a.m., appellant walked
up to an apartment complex on South Kenmore Avenue in Los Angeles, where his
girlfriend, Lakeisha Taylor, lived. He was holding a brown bag with a bottle of
liquor inside. Joshua McGinnis was sitting outside the front of the building with
his brother Derrick and his cousin Jermond. Joshua asked appellant what he was
drinking, but appellant did not respond. Appellant seemed “out of it.” Instead, he
began to argue with Joshua. When Joshua called out to Jermond, appellant pulled
a handgun from his overalls. He pointed it at Joshua’s head and told him to bow
down. Joshua kneeled down and told Derrick to go upstairs and get Lakeisha.

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Derrick ran upstairs and said, “Keisha, Keisha, your nigga has a gun at my
brother.” Lakeisha called down, “Don’t trip. He ain’t going to shoot you.” She
told appellant to put his gun away and appellant told her to get her “stuff.” Joshua
tried to run from appellant, and appellant fired at him. Joshua stumbled and passed
out. Appellant and Lakeisha drove away in appellant’s car.
Los Angeles police officers responded to the scene. They found a
spent bullet casing but no firearm. They observed Joshua bleeding, with a wound
in his chest, and in pain. Joshua was taken to the hospital and the bullet was
lodged so close to his heart doctors could not remove it.
At trial, Donald Mattos, another resident of the apartment complex,
said he saw a male wearing a baseball cap and black shirt pointing a gun at another
male. He heard a voice say “Bow down.” He later heard a female voice say “Do
not shoot” or “Drop the gun.” Danny Martinez testified that he was across the
street and heard voices say “Get down” and “Don’t shoot.” He also heard the
gunshot.
Appellant testified in his own behalf. He said that he was walking up
to the apartment building when Joshua, standing in the building’s entrance, asked
for a drink. He grabbed a bottle of brandy from appellant. Joshua started arguing
with appellant. Joshua then pulled out a pistol and handed it to his brother Derrick.
Appellant called out to Lakeisha. A third male in a hooded sweater approached
appellant, and said “Get down.” He then struck appellant in the head, and the three
men ran away. Appellant brushed himself off and went to Lakeisha’s apartment.
He told Lakeisha and the apartment manager that “the guys downstairs” were
trying to “jump” him. He and Lakeisha then left. Appellant denied pulling a gun
on Joshua.

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Appellant’s brother testified as to appellant’s reputation in the
community for peacefulness as well as to his opinion as to appellant’s good
character.
DISCUSSION
1. Hearsay Statements
During direct examination of Lakeisha, the prosecutor asked what
happened after she opened the door for appellant. Lakeisha responded,
“[Appellant] was explaining to me that some guys were trying to jump on him.”
The prosecutor interrupted her and defense counsel argued that the witness should
have been permitted to complete her statement. The court ruled in favor of the
prosecution, saying “The answer was obviously going to be hearsay, which is not
allowed.” Later, the prosecutor was attempting to impeach Lakeisha, and asked
her what she told the police investigators about appellant’s actions, and she
responded, “I believe I told him that he started explaining that . . . some guys were
downstairs trying to jump on him. Trying to rob him.” No objection was made to
this answer and no admonition was given to the jury.
On cross-examination, defense counsel said to Lakeisha: “You hit the
nail on the head earlier. You said [appellant] told you the guys downstairs were
trying to rob--” At that point the prosecutor objected, the court sustained the
objection on hearsay grounds and warned defense counsel not to “go into the area
again.” Later, defense counsel asked Lakeisha, “Isn’t it also true that you told that
investigator that [appellant] was basically telling you to get out of there because
the guy” and the prosecutor objected again, and the court stated, “We are not going
to revisit that.”
Appellant contends that the statements he made to Lakeisha should
have been admitted under the spontaneous statement exception to the hearsay rule.

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Our review of the record convinces us that any conceivable error in
sustaining the prosecution’s hearsay objections was utterly harmless. Appellant’s
defense was that Joshua and his companions threatened him first and that he told
Lakeisha and the apartment manager that they were trying to rob him. Appellant
testified both on direct and cross that people were trying to “jump” him. Despite
the prosecutor’s objections, Lakeisha’s testimony that appellant had told her that
he was being attacked and that people were trying to rob him came across clearly
to the jury without being stricken, and supported appellant’s defense. Any more
elaboration on the topic would not have aided appellant.
2. Disparaging Remarks
Appellant contends that the court made several disparaging and
sarcastic remarks to defense counsel during the rulings on the hearsay evidence.
Appellant claims that the cumulative effect of these errors was to “cramp and
hinder the exercise of the right to cross-examine witnesses.”
We have reviewed the entire record and do not discern from it a pro-
prosecution bias. In addition, most of these claimed slights did not occur in front
of the jury, and furthermore, the jury was instructed with CALJIC No. 17.30,
warning them against inferring the existence of any fact from either the court’s
instructions or statements, so any possible prejudice would be harmless. (People v.
Williams (2000) 79 Cal.App.4th 1157, 1172.)
3. Sentencing
The information contained a special allegation that appellant had
inflicted great bodily harm within the meaning of 12022.7, subdivision (a). The
jury made a finding of “not true” on this allegation, despite the undisputed
evidence that Joshua had been shot in the chest.

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The court commented that this finding was not surprising, stating:
“During the trial counsel had indicated there was probably going to be a stipulation
as to the physician’s testimony. Up until the very afternoon that it was going to be
presented, the court was under that impression. I even told the jurors based on
counsel’s statements there was likely to be no medical testimony, but rather a
stipulation. [¶] . . . The next thing I knew there wasn’t going to be a stipulation.
The People had the medical records, but those records were not in the court’s
estimation clear and concise enough to avoid the undue confusion and delays under
352 of the Evidence Code. I disallowed the medical evidence by way of reports.
[¶] I don’t have any question in my mind as to the verdict. I think it reflected their
own confusion on what would be sufficient since there was no doctor. There was
no medical report. They had basically just a description of what had occurred. [¶]
However, the court can and will rely on the nature of the injury in reaching its
conclusion, both as to the motion and as to an appropriate sentence.”
At sentencing, the court imposed the upper term on the assault,
stating, “this was a crime involving great violence and great bodily harm,
disclosing a high degree of cruelty, viciousness or callousness.” It then imposed
the upper term for the section 12022.5 firearm use enhancement, stating, “The
court is selecting the upper term noting that the defendant has previously served a
sentence in the state prison or Youth Authority and that his crimes appear, though
with a large interval, to be of increasing seriousness, reflecting that he continues to
pose a danger to society.”
Appellant contended in his opening brief that because of the jury’s
“not true” finding, the court was prohibited from using “great bodily harm” as a
factor in sentencing and thus should not have imposed the upper term for the
assault.

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After the matter was briefed, the United States Supreme Court
decided Blakely v. Washington, supra, 542 U.S. ____, 124 S.Ct. 2531. The parties
submitted additional briefing on the effect of Blakely on this case.
Appellant contends that Blakely prohibits California courts from
utilizing facts not determined by a jury to increase a defendant’s sentence or to
impose the upper term prescribed for an offense. He argues that because the jury
specifically made a “not true” finding on the great bodily injury allegation, the
court was precluded from using that fact to impose the upper term for the assault.
He also argues that the aggravating factors used by the trial court to impose the
upper term for the firearm enhancement were never presented to the jury for
consideration, and thus the court had no authority to impose an upper term on that
enhancement either.
The People argue that appellant forfeited his claim because he did not
make a specific objection to the sentence on these grounds. Because Blakely was
decided after appellant had been sentenced, we find no waiver. (People v. Ochoa
___ Cal.App.4th ___ (Sept. 2, 2004, No. D042215); see also People v. Vera (1997)
15 Cal.4th 269, 276-277 and People v. Cleveland (2001) 87 Cal.App.4th 263, 268,
fn. 2.)
Pursuant to Blakely, “‘[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.’”
(Blakely, supra, at p. 2536, quoting Apprendi v. New Jersey (2000) 530 U.S. 466,
490.) We agree that pursuant to Blakely, consideration of the fact that the victim
suffered great bodily injury and the fact that appellant’s prior convictions were of
increasing seriousness to enhance the sentence violates appellant’s Sixth
Amendment rights, and as a result the sentence is invalid. (Blakely, supra, 124

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S.Ct at pp. 2537-2538.) Accordingly, the matter must be remanded for
resentencing.
II. The Habeas Petition
Appellant contends in his habeas petition that during a brief recess,
the prosecutor spoke with a teacher and her class in the hallway outside the
courtroom, discussing the case. Appellant alleges that two of the jurors, as well as
members of his family, were in the hall and heard the conversation, thus violating
his right to an impartial jury. Appellant submitted the declaration of Coeita Ali
who had heard the prosecutor say, “[Appellant] shot someone, and she was going
to impeach [appellant’s] girlfriend Lakeisha Taylor’s testimony,” as the prosecutor
pointed at Lakeisha. Ms. Ali stated that the jurors were in close proximity and
heard the statements. Appellant also submitted a portion of the record which
reflects that the court received a communication from Juror No. 8, who was
questioned by the court and counsel, and then allowed to return to the jury room
for deliberations.
Our review of the record reveals that after both parties had rested, and
just before deliberations were about to commence, Juror No. 8 had submitted a
note to the court, which stated, “I am sure it was innocent, but I wanted to express
my mild feeling of disagreement with the District Attorney addressing a visiting
class in the lobby outside of the courtroom.” The letter concluded, “I felt this is
minor, but should be brought to your attention (and that of the [deputy district
attorney’s]) for future instances.” Defense counsel did not raise a further objection
nor did he request a curative admonition. Therefore, his prosecutorial misconduct
claim is waived. (People v. Cunningham (2001) 25 Cal.4th 926, 1000; People v.
Riel (2000) 22 Cal.4th 1153, 1212.) Moreover, based upon the timing of the
statement as well as the content, we can perceive no misconduct. No more

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evidence was to be elicited and the prosecutor’s comments did not mention
anything that the jurors did not already know. We do not find that appellant has
met his burden for habeas corpus relief. (People v. Duvall (1995) 9 Cal.4th 464,
474-475.)
DISPOSITION
The judgment is reversed and remanded for resentencing in
accordance with the views set forth in this opinion. In all other respects, the
judgment is affirmed. The petition for writ of habeas corpus is denied.
NOT TO BE PUBLISHED
HASTINGS, J.
We concur:
EPSTEIN, Acting P.J.
CURRY, J.

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