People v. Smith CA4/2

BACKGROUND

We take the background facts from our unpublished opinion issued in defendant’s

direct appeal (People v. Smith (Mar. 30, 2011, E049071 [nonpub. opn.]), supplemented

with information relating to the postjudgment proceedings seeking resentencing.

“On February 15, 2007, there was a shooting at the Racquet Club Apartments in

Moreno Valley. Five empty nine-millimeter Luger shell casings and one unexpended

nine-millimeter Luger round were collected. Some of the residents were interviewed;

however, no one was able to identify the shooter or shooters. The best that was

discovered was that two vehicles, a van and a four-door sedan with persons of African

American descent[,] were in the location of the sound of the shots.

“On February 23, 2007, about a week after the shooting, Sergeant Robert Spivacke

of the Riverside County Sheriff’s Department conducted a tape-recorded interview of

defendant about an unrelated matter. Detective Lance Colmer, a member of the gang

unit, was called in to interview defendant. Unbeknownst to the parties present, when

Detective Colmer began to interview defendant, it was not tape-recorded. When

Detective Colmer walked in, defendant…