People v. Robinson CA1/5

Filed 10/8/13 P. v. Robinson CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A133703 v. DWAYNE LAVELL ROBINSON, (Alameda County Super. Ct. No. 162995) Defendant and Appellant.

Defendant Dwayne Lavell Robinson (appellant) admitted firing several gunshots into a group of people, killing one and injuring two others, but claimed he acted in self- defense. A jury disagreed, convicting him of second degree murder (Pen. Code, § 187, subd. (a)) and assault with a firearm (id., § 245, subd. (a)(2)), and finding true firearms enhancements (id., §§ 12022.5, subd. (a), 12022.53, subds. (b)-(d), 12022.7, subd. (a)). He now appeals, contending (1) the trial court erroneously denied his motion for a new trial based on a newly-discovered scene in surveillance video footage (footage) of the shooting, (2) aspects of the prosecutor‟s closing argument constituted prosecutorial misconduct, (3) the prosecution‟s failure to disclose the scene from the footage was a Brady1 violation, and (4) a ruling precluding the use of two witnesses‟ prior convictions

1 Brady v. Maryland (1963) 373 U.S. 83 (Brady). 1

under Evidence Code section 1103 was prejudicial error. We reject appellant‟s contentions and affirm. BACKGROUND In the early morning hours of March 28, 2009, appellant fired several shots into a group of people standing outside a restaurant in Oakland. Vincent Choi was killed and Michael Voong and John Lu were wounded. At trial, the prosecution called nine witnesses who were present at the shooting, including Voong, Lu, and three other friends with whom they and Choi had been socializing that evening. The four other witnesses had been socializing with appellant. The testimony of these nine witnesses varied in certain details, but consistently described the following chain of events. At the restaurant on the evening in question, a verbal altercation arose between the two groups, who had not previously met. At some point during the altercation, both groups left the restaurant. Most members of appellant‟s group began walking to their cars. Most members of the victims‟ group stood on the sidewalk outside the restaurant. Appellant walked down the sidewalk away from the restaurant, then took out a gun and fired several shots into the victims‟ group. Some witnesses heard him say “last chance” before he fired. Two members of appellant‟s group testified that appellant then joined them in the back seat of a friend‟s car. The car made a U-turn, stopped in front of the restaurant, and more shots were fired. One of the two witnesses heard appellant say “stop” before the car stopped, and subsequently saw a gun on the floor near appellant‟s feet. Approximately five weeks after the shooting, this same witness told the police that he saw appellant pull a “smoking” gun back into the car. The second witness saw appellant retract his arm from the car window immediately after hearing the gunshots, and then heard the sound of an object dropping to the floor. In testimony at a previous hearing, she identified the dropped object as a gun. None of the nine witnesses present at the shooting saw any member of the victims‟ group with a gun that evening.