Filed 4/16/15 P. v. Marshall CA4/3 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

TYRONE MARSHALL and EVAN 

RAMON ROLAND, 

 Defendants and Appellants. 

 G050893 

 (Super. Ct. No. SWF10000738) 

 O P I N I O N 

 Appeals from judgments of the Superior Court of Riverside County, Gary 

B. Tranbarger, Judge. Affirmed. 

 Eric S. Multhaup for Defendant and Appellant Tyrone Marshall. 

 Catherine White, under appointment by the Court of Appeal, for Defendant 

and Appellant Evan Ramon Roland. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and 

Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * 
2

 Defendants Tyrone Marshall and Evan Ramon Roland both appeal after a 

jury convicted Marshall of first degree murder with lying in wait special circumstance 

and personal discharge of a firearm allegations and convicted Roland of second degree 

murder. Marshall’s appeal contends his rights were violated by the admission of 

statements attributed to Roland. Roland contends the court erred in failing to instruct the 

jury it had to find him not guilty of first degree murder before it could return a verdict of 

guilty of second degree murder. 

 The statements attributabed to Roland were not admissible against Marshall 

as statements in furtherance of a conspiracy to commit murder, and the court erred in 

admitting them. But the error was harmless. The court’s failure to instruct the jury to find 

Roland not guilty of first degree murder before it could return a verdict of guilty of 

second degree murder was error. But the error was cured by the subsequent dismissal of 

the first degree murder charge. 

 We therefore affirm the judgments. 

FACTS 

 Darrel Hosey, known as “Fat Daddy” and a member of the Dorner Bloc 

gang, exchanged some words with other men, members of a competing gang. When he 

arrived at home, he was assured either by Roland, who was nicknamed “Bam,” or the 

latter’s companion Lecedric Johnson, that he did not have anything to worry about. 

Hosey asked them for a cigarette; they said they had none and Hosey asked them to come 

back later if they were able to obtain a cigarette. 

 Some time later, Roland was in another apartment in the same complex 

with Johnson and Thomas Haywood when others arrived. Two of the newcomers asked 

to speak with Roland. They stepped out and when Roland returned, he told his 
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companions “[s]omething bad is going to go down” and “[y]ou guys might not want to be 

here.” After Johnson, Haywood, and Roland were outside, Roland told his companions 

Marshall “was going to dome Fat Daddy.” 

 Roland then obtained some cigarettes and returned to Hosey’s apartment. 

When Hosey stuck his head out of the window, Roland showed him a cigarette and 

Hosey came downstairs. Roland told him they had to wait outside because he was 

expecting a cousin to bring him some pills. Shortly thereafter, Johnson joined them and 

found Roland and Hosey to be smoking. Roland gave Johnson a cigarette and, as the men 

were standing there, Marshall ran up and shot Hosey, killing him. Roland stayed near the 

body and Marshall ran away. 

DISCUSSION 

1. Failure to instruct the jury on the need to acquit Roland of first degree murder before 

returning a verdict of second degree murder

 Roland was charged with first degree murder. After five days of 

deliberations, the jury sent the court a note: “We have all agreed on second degree. We 

have split on first degree, but all accept [the] verdict as written and feel further debate 

will not change on first degree.” The court questioned the jurors. The foreperson told the 

court, and the other jurors agreed, the disagreement was “intractable” and there had been 

no progress in reaching a final decision, even after the court clarified the difference 

between first and second degree murder earlier. Thereupon, the court accepted the 

Marshall verdict, finding him guilty of first degree murder and excused the jury from the 

courtroom. 

 The prosecutor stated the court had failed to instruct the jury that it could 

not return a verdict on the lesser included offense unless they acquitted Roland of the 
4

greater offense. (CALCRIM No. 641.) The prosecutor urged the court to so instruct the 

jury. The court responded, “The request to have the jury further deliberate is denied. The 

Court’s of the opinion that, if I were to give the jury such an instruction in this context, it 

would be a form of coercion to the jury to force them to come to a decision as to first. 

And given the amount of time that they’ve spent and their previous statements that they 

are hung, I’m not going to instruct them on that, nor am I going to instruct them . . . on 

the modified Allen instruction about further deliberations. If this were two days ago, I 

probably would. But after the amount of time that they have spent, I’m not going to do 

that. So that request is denied.” 

 The prosecutor then asked the court to dismiss the first degree murder 

charge. Roland’s lawyer asked the court declare a mistrial. The court denied the latter’s 

request and took the prosecutor’s motion to dismiss the first degree murder charge under 

submission. It then took the jury’s verdict for second degree murder, polled the jury, and 

excused the jury. Thereafter, the court ordered the first degree murder charge against 

Roland be dismissed. 

 The court erred. (See People v. Kurtzman (1988) 46 Cal.3d 322, 332-334.) 

In cases where a defendant is charged with first degree murder and a lesser offense is 

submitted to the jury, the court has a sua sponte duty to instruct the jury it must find the 

defendant not guilty of the greater offense before it can decide he or she is guilty of the 

lesser offense. In People v. Fields (1996) 13 Cal.4th 289 (Fields), the Supreme Court 

stated, “When, however, the jurors express their inability to agree on a greater inclusive 

offense, while indicating they have reached a verdict on a lesser included offense, the 

trial court must caution the jury at that time that it ‘may not return a verdict on the lesser 

offense unless it has agreed . . . that defendant is not guilty of the greater crime 

charged.’” (Id. at pp. 309-310.) 
5

 In Fields, the defendant had been charged with gross vehicular 

manslaughter while intoxicated, vehicular manslaughter while intoxicated, gross 

vehicular manslaughter, driving under the influence and causing bodily injury, driving 

with a blood-alcohol level of .08 percent or more and causing bodily injury, and driving 

with a suspended license. (Fields, supra, at p. 296.) The jury was deadlocked on gross 

vehicular manslaughter while intoxicated and gross vehicular manslaughter but rendered 

guilty verdicts on the other counts. (Id. at pp. 296-297.) The trial court declared a mistrial 

on the two deadlocked counts, set a date for retrial on those counts, discharged the jury, 

and sentenced defendant on the remaining counts. (Id. at p. 297.) 

 The procedures employed by the trial court in Field are similar to what 

happened here, except in this case the court ultimately dismissed the first degree murder 

count. In Fields, the trial court ordered a second trial on the greater charges and then 

resentenced the defendant to a higher term. (Fields, supra, at p. 297.) 

 The Supreme Court reversed the conviction on the greater charge. (Fields, 

supra, at p. 297.) It acknowledged that “when the jury expressly deadlocks on the greater 

offense but returns a verdict of conviction on the lesser included offense, the conviction 

on the lesser offense does not operate as an implied acquittal of the greater.” (Id. at p. 

302.) The court came to the same conclusion under the California Constitution’s 

prohibition on double jeopardy: “We thus conclude that under the double jeopardy 

principles embodied in the California Constitution, when jurors deadlock on a greater 

offense, an acquittal on that charge will not be implied by the jury’s verdict of guilty on a 

lesser included offense.” (Id. at p. 303.) 

 But Fields went on to conclude, “Although we find the doctrine of implied 

acquittal inapplicable to a case such as this one, in which the jury is not merely silent but 

expressly deadlocked on the greater offense, this conclusion does not mean that 

defendant was properly retried on the greater offense under principles of manifest 
6

necessity or legal necessity. To the contrary, notwithstanding the jury’s deadlock on the 

greater offense, defendant could not be subjected to retrial on that charge. As we explain, 

once the verdict of guilty on the lesser included offense was received by the trial court 

and recorded, and the jury was discharged, defendant stood convicted of the lesser 

included offense within the meaning of [Penal Code] section 1023. Pursuant to that 

statute, when an accused is convicted of a lesser included offense, the conviction bars a 

subsequent prosecution for the greater offense.” (Fields, supra, at p. 305.) 

 Of course the present case does not involve the Fields problem where the 

defendant was retried on the greater offense after the jury found him guilty of the lesser 

offense. But one of the remedies suggested by the Fields court was used here. The court 

stated, “Alternatively, when faced with a deadlock on the greater offense and a verdict of 

guilt on the lesser included offense, the People may prefer to forgo the opportunity to 

convict the accused of the greater offense on retrial in favor of obtaining a present 

conviction on the lesser included offense. [Citation.] In that case, the People should move 

the trial court to exercise its discretion to dismiss the charge on the greater offense in 

furtherance of justice under [Penal Code] section 1385.” (Id. at p. 311, see People v. 

Bordeaux (1990) 224 Cal.App.3d 573, 581-582 [right to mistrial under section 1140 does 

not impair trial court’s authority to dismiss charge pursuant to section 1385].) The 

prosecutor did just that here and the court subsequently granted the motion to dismiss the 

first degree murder charge. Therefore, the court properly denied defendant’s motion for a 

mistrial. 

2. Admission of extrajudicial statements against Marshall

 Marshall’s appeal raises issues dealing with the admission of extrajudicial 

statements attributed to Roland. These statements were admitted against Marshall 

because the court, relying on Evidence Code, section 1223, found they were made in 
7

furtherance of the conspiracy to murder Hosey. We disagree with the trial court. But, in 

light of the overwhelming evidence of Marshall’s guilt, the admission of these statements 

and references to the statements during the trial was harmless. 

 In response to a motion in limine by the prosecution, the court ruled that 

evidence of statements attributed to Roland that “[s]omething bad is going to go down” 

and Marshall “was going to dome Fat Daddy” were admissible as advancing the goals of 

the conspiracy. In order to support this view, we would have to agree with the Attorney 

General who urges these statements were made to encourage the hearers to join the 

conspiracy. But the evidence as presented does not support this conclusion. And as our 

Supreme Court stated, “The trial court erred when it admitted [a witness’] testimony 

under the coconspirator statement exception because the foundational requirements—

‘[t]he statement was made by the declarant while participating in a conspiracy to commit 

a crime . . . and in furtherance of the objective of that conspiracy’ . . . were not met.” 

(People v. Homick (2012) 55 Cal.4th 816, 872.) Therefore it was error to admit these 

statements against Marshall. 

 In arguing whether the admission of these statements was harmless error, 

the parties disagree whether we should apply the standards of People v. Watson (1956) 46 

Cal.2d 818, 836, “there should be no reversal where ‘it appears that a different verdict 

would not otherwise have been probable’” or Chapman v. California (1967) 386 U.S. 18, 

24 [87 S.Ct. 824, 17 L.Ed.2d 705] “the court must be able to declare a belief that it was 

harmless beyond a reasonable doubt.” People v. Homick, supra, Cal.4th 872 suggests the 

Watson standard applies. However, even under the Chapman standard, the evidence that 

Marshall committed the murder under circumstances clearly demonstrating it was willful, 

deliberate, and premeditated, was so strong that it was clearly “harmless beyond a 

reasonable doubt.” 
8

 DNA test confirmed that Marshall had likely used a glove, discarded in the 

direction he had fled. Defense investigator Sherrie Smith testified she had interviewed 

Tamara Pritchett, who recounted a conversation with Marshall who told her “I shot him.” 

Witnesses of the shooting described the shooter’s clothing and clothes fitting that 

description were found in a trash can near the route of the shooter’s escape. A 

bloodhound exposed to the scent of the clothes led officers near Marshall’s residence. 

DISPOSTION 

 The judgment is affirmed. 

 RYLAARSDAM, ACTING P. J. 

WE CONCUR: 

MOORE, J. 

FYBEL, J.