People v. Perry CA1/5

Filed 4/8/14 P. v. Perry CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A136732 v. ERIC LEE PERRY, (Alameda County Super. Ct. No. 161564) Defendant and Appellant.

Appellant Eric Lee Perry was convicted, after a jury trial, of first degree murder (Pen. Code, § 187, subd. (a)) and two counts of attempted second degree robbery (id., §§ 211, 212.5, subd. (c), 664). Appellant’s sole contention on appeal is the trial court erred by excluding evidence that a third party was culpable for the charged crimes. We reject this contention and affirm. I. BACKGROUND A. Evidence Presented at Trial On the evening of August 20, 2007, Ronald Spears, Jr., was celebrating his birthday with Tara Rother and Angelina Richmond. Spears drove the group to Oakland in his silver Dodge car, with Rother in the front passenger seat and Richmond in back. They got lost on the surface streets of Oakland and pulled into a gas station to ask for directions. They saw a stranger—identified by Rother as appellant—standing between the cashier’s window and the gas pumps. Spears asked appellant for directions. Appellant indicated a direction and asked for a ride because he was going the same way. Spears agreed and appellant got in the back, right passenger seat.

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Appellant then produced a gun, pointed it at Spears’s head and said, “Break yourself.” Spears gave appellant cash, and appellant demanded Spears also give him a long chain around his neck. As Spears was handing appellant the chain, it dropped to the floor. Spears and appellant began to fight over the gun, with appellant pulling Spears into the back seat. The two men exited the car and Spears began to run. Appellant shot Spears and then ran away. Spears died from the gunshot wound. Rother unequivocally identified appellant at trial. Rother admitted she had been drinking and had taken ecstasy that night, and there was conflicting evidence as to the quantity of alcohol and drugs she consumed. However, Rother testified she did not feel impaired, and police officers who responded after the shooting testified she did not seem intoxicated or impaired. Richmond could not identify the shooter. The gas station cashier testified appellant, a regular customer, bought Newport cigarettes and a “Swisher” brand cigar less than five minutes before the shooting. Rother saw a Swisher cigar tucked behind appellant’s ear before he got into Spears’s car. After the shooting, a pack of Newport cigarettes and a cigar were found in Spears’s car on the floor of the back, right passenger seat. Fingerprints taken from these items were identified as appellant’s. After the shooting, Spears’s chain was not found in his car or at the scene. The chain had a distinctive clasp and was constructed by connecting a necklace and bracelet. About 11 months after the shooting, a chain was found in appellant’s possession. Both Rother and Spears’s ex-girlfriend identified the chain found in appellant’s possession as Spears’s. It also matched a chain visible in several photographs of Spears. B. Proffered Third Party Culpability Evidence Prior to trial, appellant sought to introduce evidence of the culpability of a third party, Kevin Duarte, for the charged crimes. For the purposes of the pretrial motion, the parties agreed to a stipulated statement of facts as follows. Approximately two weeks after the charged crimes, Duarte approached Tony Simon as he sat in his car at a gas station in Oakland. Duarte fired multiple gunshots at Simon, including shots as Simon attempted to drive away. Simon died from the gunshot