People v. Marcell Jones

Filed 12/22/05 P

Filed 12/22/05 P. v. Jones CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCELL JONES,

Defendant and Appellant.

B180799

(Los Angeles County

Super. Ct. No. TA072443)

APPEAL from a judgment of the Superior Court of Los Angeles County, Allen J. Webster, Jr., Judge. Affirmed as modified and remanded with directions.

Cynthia A. Thomas, 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, Mary Sanchez, Supervising Deputy Attorney General, and Michael A. Katz, Deputy Attorney General, for Plaintiff and Respondent.

Marcell Jones was convicted of attempted murder, with true findings on allegations that he committed the crime to benefit a criminal street gang and personally used a firearm, personally discharged a firearm, and personally discharged a firearm causing great bodily injury. (Pen. Code, §§ 664, 187, 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d).)[1] He was sentenced to prison for life, plus a consecutive term of 25 years to life for the firearm with great bodily injury enhancement, plus a consecutive 10-year term for the gang benefit enhancement. Jones appeals, claiming there were evidentiary, instructional, and sentencing errors. We strike the gang enhancement sentence and, as modified, affirm the judgment.

FACTS

A.

In about May 2002, Daniel Levao (the victim, a former member of the Carson West Side Piru Bloods gang) moved into a house on South Corlett Avenue in Compton, a neighborhood within the “territory” of the Tragniew Park Crips gang. In September 2003, Levao was working on his car in his garage when Jones walked up and asked “if [Levao] was from West Side Piru.” Levao said he was a “family man” and did not “gang bang.” Before walking away, Jones said, “A couple people from Carson tried to jump me.” During the following months, Levao saw Jones around the neighborhood “almost every other day” and learned that he lived “down the street,” about “a quarter of a mile” away from Levao’s house.

On November 8, 2003, Levao (wearing a red shirt) was in front of his house, raking and cutting the grass, when he saw Jones come out of an apartment building across the street. Levao turned back around and continued to work. Jones (wearing an “afro wig”) walked toward Levao and asked, “Are you finished?” Levao said, “Yeah, I’m finished.” “Seconds later,” Jones “just shot” Levao in the back four times (in the shoulder, arm, hip, and head).

B.

Los Angeles County Sheriff’s Department officers responded to the scene and spoke to Levao before he was taken to a hospital. He told the officers that he had been shot by a “male Black with a black afro, approximately five-feet-eight, 180 to 200 pounds [and] about 20 to 25 years old.”

A neighbor (Virgil Sims, who lived across the street from Levao) told the officers he had looked outside when he heard the gunshots, saw Levao on the ground by his garage, and also saw a man with a “pretty nice size” or “large” afro. As Sims watched from his front door, the man with the afro walked way “fast,” heading to and then through Sims’s apartment building. After the man passed through the building, Sims went to the parking area, through a “parking alley” to a gate, then stopped and watched as the man got into the front passenger seat of an SUV stopped on the street about “two to three car lengths away” with the engine “already on.” After the man got into the SUV, he “pulled . . . off” the large afro wig. “That’s when [Sims saw] no more afro. No more clown wig.” The SUV then “took right off. It sped right off.” Sims was able to get a partial license plate number.

About 10 to 20 minutes later, Sims saw the SUV but only the driver was in the vehicle. A little bit later, Sims told a Sheriff’s deputy about the SUV. About 25 minutes after that, Sims identified the SUV and its driver (Charles Mosley) in a field lineup.

C.

Two days after the shooting, at the hospital, Levao told Detective Al Garcia that the shooter was a member of the Tragniew Park Crips named Marcell. From the Department of Justice’s “Cal Gangs” database, Detective Garcia obtained a black and white photograph of Jones and information confirming that he was a member of the Tragniew Park Crips. On November 13, the detective placed the photograph in a six-pack photo array which he took to the hospital and showed to Levao, who identified Jones as the shooter.

Later the same day, Detective Garcia showed the photo array to Sims, who said two of the photographs (one was Jones) looked like the shooter but he was “not too sure” and wanted to see color photographs. The next day, Detective Garcia showed a color six-pack to Sims, who again picked two photographs (again, one was Jones) that looked like the shooter, and again was unsure about his identification.

On November 18, Detective Garcia obtained arrest and search warrants. On November 20, Detective Garcia and other officers search 10 locations connected to the Tragniew Park Crips, including Jones’s Alondra Boulevard residence. Jones was not at any of the locations, and he was not found until June 25, 2004, at which point he was located in Colorado and arrested.

Jones was charged with attempted murder, with ancillary gang and firearm allegations. At trial, the People presented evidence of the facts summarized above.[2] In addition, Detective Garcia testified as an expert on gangs, and about the Tragniew Park Crips in particular (his testimony is discussed below). Jones was convicted and sentenced as noted at the outset.

DISCUSSION

I.

Jones contends the trial court should not have admitted any gang evidence or, alternatively, that the court should have granted his motion to bifurcate trial of the gang benefit allegation. In related arguments, he challenges some of the court’s specific rulings with regard to the gang evidence. None of these claims have any merit.

A.

Before trial, Jones filed a motion for “an order, before voir dire examination, to all witnesses not to give, and the prosecutor not to elicit, testimony concerning [Jones’s] alleged gang affiliation and that all such evidence . . . be excluded.” Jones claimed any gang affiliation evidence would be more prejudicial than probative (Evid. Code, § 352), and would violate his right to a fair trial. The motion was denied.

Jones then orally moved to bifurcate trial of the gang benefit allegation on the ground that he did not want the jurors to hear the gang evidence until after they had determined whether he was guilty of attempted murder. After Jones confirmed that the identity of the shooter would be the main issue at trial, the trial court denied the motion.

B.

At trial, Detective Garcia testified that Tragniew Park was a Black gang with a territory that included the area where Levao was shot. The gang (which had about 90 documented members) had been involved in drug sales, assaults, attempted murders, murders, and armed robberies. Tragniew Park members identified themselves with the color blue, and used “T” hand signals to show their gang affiliation.

The Photographs. Over Jones’s objection, Detective Garcia testified about two photographs recovered during the November 2003 searches of one of the 10 Tragniew Crips locations (not from Jones’s residence). Detective Garcia did not know when or where or by whom the photographs had been taken, only that he had retrieved them from a police folder that had been booked into evidence after the searches. One of the photographs (Exhibit 17) shows six men on a sidewalk in front of a house; the other (Exhibit 18) shows the faces of three men (at least two of whom are also shown in Exhibit 17) in a closer view with the same house in the background. It appears the pictures were taken at the same time. Jones is one of the three men in Exhibit 18, and he is shown using his left hand to make a “T” sign. Two of the men in Exhibit 17 are making the same sign.

The Other Gang Murder. During Detective Garcia’s testimony, the trial court admitted certified copies of three minute orders from a joint prosecution in which three documented Tragniew Park members, “in retaliation [for] a murder” of one of their members, “killed a member of the Mona Park Crip gang.”

Charles Mosley. Detective Garcia opined that Charles Mosley, the man who drove the getaway SUV, was a member of the Tragniew Park Crips. The detective explained that he had talked with Mosley, that Mosley had admitted he was a member of Tragniew Park, and that he had also talked to other officers who believed Mosley (who had two tattoos, “Park” and “Life”) was a member of the gang. Mosley was identified in “Cal Gangs” and consistently gave his gang moniker (“Lil Doc”) to the officers.

Jones’s Membership. Detective Garcia opined that Jones was a member of the Tragniew Park Crips because (1) Jones had admitted membership to other deputies; (2) Jones lived with other members of the gang; (3) Jones had given his gang moniker (“Lil Moon”) in the past; and (4) Jones associated with Mosley, a known member, on the day of the shooting.[3]

Gang Behavior. The detective explained that a gang member “will rarely, if ever” commit a crime with someone other than a fellow gang member (so that he knows his accomplice will refuse to testify against him). Detective Garcia testified that the West Side Piru Bloods and the Tragniew Park Crips are “enemies” and that, when a Blood enters Crip territory wearing red (the Blood’s color), it is a “sign of disrespect.” When a Crip member sees a sign of disrespect, he would “be expected [to] respond” or he “would lose some respect” from his fellow gang members.

In response to a hypothetical question, Detective Garcia testified that the facts of this case show the shooting was committed for the benefit of the gang because it “show[ed] a clear sign to other gang members that [the victim was] not going to come into [the Crip’s] territory and wear . . . rival gang colors and not expect some form of retaliation.” This sort of shooting also sends “a sign to the community that this [was the Crip’s] area, [and that the Crips were] going to do what [they] want[ed],” and makes “law-abiding citizens . . . afraid to come forward [to] testify for fear of retaliation” (which, of course, benefits the gang).

C.

We reject Jones’s related contentions that the trial court should have excluded all gang evidence or, at a minimum, granted his motion to bifurcate trial of the gang benefit enhancement allegation.

Although the trial court has discretion to bifurcate trial of a gang enhancement allegation (People v. Hernandez (2004) 33 Cal.4th 1040, 1048), the trial court did not abuse its discretion by refusing to do so in this case. As Hernandez explains, the gang benefit enhancement statute (§ 186.22) does not suggest that this enhancement should receive special treatment of the kind given to prior convictions (People v. Hernandez, supra, 22 Cal.4th at p. 1048). Unfortunately, there is nothing particularly unusual about the circumstances of this case, nothing to suggest there ought to be a deviation from this rule.

Indeed, the same factors that support the trial court’s decision to admit gang evidence also support the court’s decision to deny Jones’s motion to bifurcate. The gang evidence was highly probative with regard to the charged offense as well as to the gang enhancement - to show motive and intent with regard to a senseless shooting - and it is clear to us that the probative value of the evidence far outweighs its prejudicial effect. (People v. Carter (2003) 30 Cal.4th 1166, 1194-1195; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) In short, expert testimony was necessary to explain to the jurors that a man was shot because he wore a red shirt while working in his yard. In these circumstances, there was no error, constitutional or otherwise. (Estelle v. McGuire (1991) 502 U.S. 62, 70; People v. Falsetta (1999) 21 Cal.4th 903, 913.)

D.

In a separate but related argument, Jones contends the photographs (Exhibits 17 and 18) should have been excluded (1) because they were not properly authenticated and (2) because they were not timely disclosed by the prosecutor. Assuming error, it was harmless by any standard - because the pictures add little, if anything, to Detective Garcia’s testimony about the gangs generally or, more specifically, Jones’s membership in the Tragniew Park Crips. (People v. Watson (1956) 46 Cal.2d 818, 836-837; People v. Earp (1999) 20 Cal.4th 826, 878.) Jones’s only argument to the contrary - that the photographs had to be prejudicial here because they were not admitted during the first trial that ended in a hung jury - is pure speculation and ignores the fact that, on the evidence presented during this trial, the photographs could not have made a difference.

II.

Jones contends the trial court should not have instructed the jury that evidence of his flight could be considered in deciding guilt. We disagree.[4]

The evidence established that Jones left the scene of the shooting, then left California and was ultimately arrested in Colorado. This evidence supports the flight instruction (People v. Smithey (1999) 20 Cal.4th 936, 982), and the wording of the instruction was proper (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183). There was no instructional error.

III.

Jones contends there is insufficient evidence to support the gang benefit enhancement because, he claims, there is no evidence that one of the Tragniew Park Crip's “primary activities” was the commission of one or more of the crimes listed in the gang enhancement statute, section 186.22, subdivisions (e) and (f). Jones is wrong.

Detective Garcia testified that the Tragniew Park Crips were involved in drug sales, assaults, attempted murders, murders, and robberies. Minute orders from the murder convictions of three Tragniew Park Crips members were admitted in evidence, and Detective Garcia testified that that murder was in retaliation for a prior killing of a Tragniew Park Crip member. No more was required. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324; People v. Vy (2004) 122 Cal.App.4th 1209, 1221-1226; People v. Snow (2003) 30 Cal.4th 43, 66.)

IV.

Jones contends, the Attorney General concedes, and we agree that the 10-year sentence imposed for the gang benefit enhancement must be stricken because Jones was otherwise sentenced to a term of 25 years to life. (People v. Lopez (2005) 34 Cal.4th 1002, 1005-1011.) As required by section 186.22, subdivision (b)(5), the gang benefit finding means that Jones will not be eligible for parole until he has served a minimum of 15 years in prison.

DISPOSITION

The judgment is modified by striking the 10-year sentence imposed for the gang benefit enhancement (§ 186.22) and, as modified, affirmed and remanded to the trial court with directions to issue a corrected abstract of judgment and forward it to the Department of Corrections.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

SPENCER, P.J.

ROTHSCHILD, J.

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[1] Subsequent undesignated section references are to the Penal Code.

[2] This was Jones’s second trial. The first trial ended in a mistrial after the jury was unable to reach a verdict (the vote was 10 to 2 for guilt).

[3] Detective Garcia explained that it is common for younger gang members to include terms like “Lil” in their monikers to pay respect to older gang members who might include “Big” in their own monikers. Jones’s cousin or uncle was a gang member known as “Big Moon.”

[4] The jury was instructed according to CALJIC No. 2.52 that: “The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”



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