P. v. Bingham
Filed 4/11/13 P. v. Bingham CA2/3
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
>
THE PEOPLE, Plaintiff and Respondent, v. CALEB BINGHAM, Defendant and Appellant. | B240699 (Los Angeles County Super. Ct. No. TA120460) |
APPEAL from a judgment of the Superior Court of
County, Eleanor J. Hunter, Judge.
Affirmed.
Tracy A. Rogers, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Susan Sullivan Pithey and Jonathan M. Krauss, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury
found defendant and appellant Caleb Bingham (Caleb) guilty of
motor vehicle. At his jury trial,
prior crimes evidence was admitted.
Caleb contends on appeal that admitting the evidence, among other
things, was an abuse of discretion and violated his
evidence did not prejudice him. We
therefore affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
I. Factual background.
A.
Clarence and Sheena Paschal.
On September 17, 2011, around noon, Clarence Paschal
was walking with his young daughter when he was shot in the buttock or lower
back. The shooting took place near his
sister’s corner apartment on Parmelee Street in the Nickerson Gardens housing
project. Detective Erik Shear
investigated the shooting. As part of
the investigation, separate interviews with Clarence and his sister, Sheena
Paschal, were recorded.
name="_ftnref2" title="">[2]
recorded interview.
The recorded interview with Clarence took place the
same day he was shot, after his release from the hospital. Clarence said he was walking with his
daughter to Sheena’s apartment when he saw Caleb, alone in his car, “coming
across.†Because he knew Caleb, Clarence
tried to flag him down.
name="_ftnref3" title="">[3] Sheena called to Clarence, and when he went
to her, he heard four to five shots. His
back was turned to the street. Because
his daughter was near him, Clarence pushed her.
Turning, he saw a brown or tan four-door Regal. At the hospital, Sheena told him Caleb was
the shooter. Other people also told
Sheena “it was Caleb.†About six months
before he was shot, Clarence and Caleb fought.
After the fight, Clarence heard that Caleb wanted to shoot him. Clarence tried to talk to Caleb, who was also
Clarence’s brother’s best friend.
2. Sheena’s recorded
interview.
The detective interviewed Sheena on
October 11, 2011. Saying she was scared
to talk to him, Sheena asked the detective to pick her up at school in a plain
police car, and she wanted assurance he would be the only person interviewing
her. In the interview, Sheena told the
detective that on the day of the shooting, Clarence came by her apartment with
his daughter and told her he was going to see a movie. He also told her that Caleb “rolled past him
and said something to him.†Sheena had
also seen Caleb drive past, going around on Parmelee, “on the bend,†a few
times. He was by himself in a car that
Sheena had seen him driving in the past.
Clarence was walking away and Sheena was looking out
her front door when she saw Caleb shoot at her brother. Caleb moved into another lane to try and get
a better angle, and he almost crashed his car.
After firing four to five shots from a handgun, he fled around “the
bend.â€
When shown a photographic six-pack during the
interview, Sheena circled Caleb’s photograph and agreed that she was a
100 percent sure he was the shooter.
She also identified Caleb’s car from a photograph. According to Detective Shear, at no time
during their conversations or recorded interview did Sheena say she had only
heard rumors Caleb was the shooter and she didn’t see the shooting.
and Sheena’s trial testimony.
At trial, both Clarence and Sheena
recanted their statements to Detective Shear, with Clarence denying that he
ever talked to the police and that it was his voice on the audiotape. He denied seeing who shot him or any cars at
the time of the shooting. He denied that
his daughter was with him during the shooting, that his sister told him Caleb
was the shooter, and that Caleb wanted to shoot him after their previous
fight. Declaring his presence at trial
“a waste of my time,†he said Caleb wouldn’t have shot him because they were
good friends, and Caleb was Clarence’s brother’s best friend. Clarence said they remained “cool†despite
the fight they had in 2010 after Caleb pushed the mother of Clarence’s child.
Although Clarence admitted he was a
member of the Bounty Hunters, a Blood gang, he denied knowing what a snitch is
and whether Caleb is also a Bounty Hunter.
But he did say that a person who identifies in court the person who shot
him would be a snitch and could be killed.
Clarence also denied that anybody, including Shawn, Caleb’s brother,
threatened him. He did see “paperworkâ€
with his name on it at his sister’s house.
To save his life, Clarence would do what he had to.
At trial, Sheena testified that
Clarence was pushing his daughter in her stroller when she heard four to five
gunshots and Clarence yell he’d been shot.
She denied seeing any cars on the street at the time of the shooting,
although she did tell the detective she saw Caleb alone in a car drive right
past her apartment several times before the shooting. At trial, Sheena was unsure if it was the
same car driving past. When shown a
picture of a car at trial, Sheena was unsure who it belonged to, although she
admitted telling the detective it was Caleb’s car. She denied telling the detective she saw
Caleb pull out a gun and shoot and get into the wrong lane of traffic to get a
better angle. She didn’t tell the
detective that the gun was a .45. She
didn’t tell her brother at the hospital that Caleb was the shooter.
She knew Caleb from the
neighborhood, and she was unaware of any problems between him and
Clarence. She did tell the detective,
however, that they had a “minor fist fight†in the past, although they had
always been friends. Caleb did show her
brother a gun after the fight.
Since the shooting, Sheena has tried
to move from her apartment on Parmelee because she has a new baby, not because
of safety concerns. She doesn’t feel
safe because her apartment is in a high crime housing project, and bullets from
drive-by shootings might go through the window of her corner apartment. She told the detective something different
than at trial because she was scared and, right after the shooting, she was
“hearing stuff from off the streets,†like that “Caleb did it.†She heard rumors from “random people off the
streets.†She circled Caleb’s photograph
and told Detective Shear that Caleb shot her brother, “based on what I
heard. I just knew his name and his
face.†She really didn’t see anything.
Sheena didn’t know if Caleb and
Clarence are Bounty Hunters. She had not
seen her brother’s tattoos. She had not
heard what can happen to people who testify against gang members.
Although she saw Shawn at the
courthouse and in the neighborhood, they did not talk about the shooting and
she was never threatened by either Shawn or Caleb’s girlfriend, in connection
with this case.
B.
Caleb was arrested on October 13,
2011 after he was spotted driving a brown sedan. When arrested, Caleb said his name was
Shawn. Caleb’s car and home were
searched, but no evidence was found.
Caleb’s car was brownish, tan and looked like the car in surveillance
footage from Nickerson Gardens taken the day Clarence was shot. That video surveillance shows a car driving
in the manner Sheena described to Detective Shear.
According to Detective Shear, a gang
expert, Nickerson Gardens is the “main part†of the Bounty Hunters’s territory.
about the gang and its criminal activities to the police. Snitching can lead to consequences that
include getting beaten and killed.
Testifying in court against a gang member is the worst kind of
“snitching,†and gang members try to intimidate witnesses. For a gang member to testify is traitorous. Thus, it is very common for witnesses who
initially cooperate with the police to become uncooperative.
In Detective Shear’s opinion, Caleb
is a Bounty Hunter, and so is his brother, Shawn. Caleb admitted his gang membership to the
detective. Clarence, the victim, is also
a Bounty Hunter.
During a wiretapped phone call between Caleb and
Shawn, Shawn told his brother “you shouldn’t be worried. That ain’t going to court bro. Like hopefully, these motherfuckers ain’t,
you know what I mean? And ain’t nobody
going to court on you.†“I said
hopefully ain’t nobody coming to court on you, they just saying they got
witnesses just to say it.†Caleb asked
his brother if he “ ‘put that information about who’s telling on me on
Facebook?’ †Shawn said, that he didn’t
“ ‘think they’re going to come to court on you.’ †Caleb and Shawn also discussed getting
“paperwork,†which Detective Shear described as proof of snitching. When Caleb referred to a “whip,†a gun,
during the conversation, the detective interpreted him to be asking whether a gun
was found in his car.
In another wiretapped call, Caleb
asked his brother, if Queena (Caleb’s girlfriend) posted that “shit on
[F]acebook?†Shawn said he would check,
but that he did his “stuff†and would do more later. According to the detective, they were talking
about Clarence and getting paperwork on him.
II. Procedural background.
On February 24, 2012, a jury found
Caleb guilty of count 1, willful, deliberate and premeditated attempted murder
(Pen. Code, §§ 187, subd. (a), 664)
name="_ftnref5" title="">[5]
and found true personal gun-use allegations (§ 12022.53, subds. (b), (c),
(d)). The jury also found Caleb guilty
of count 2, shooting from a motor vehicle (§ 12034, subd. (c)), and found
true a personal gun-use allegation (§ 12022.5, subd. (a)).
On April 20, 2012, the trial court
sentenced Caleb, on count 1, to life plus 25 years to life for the gun-use
enhancement. The court imposed but
stayed sentences on count 2 and the remaining enhancements.
DISCUSSION
I. Prior crimes evidence.
Caleb contends that admitting
evidence of his prior criminal history and uncharged crimes was an abuse of the
trial court’s discretion and denied him due process and a fair trial. We agree that the evidence should have been
excluded but find that he was not prejudiced by the error in admitting the
evidence.
A.
Additional facts.
Before the audiotape of Clarence’s
interview was played, defense counsel asked, under Evidence Code section 352,
that it be edited to exclude reference to the time Caleb spent in the Youth
Authority. The prosecutor said that the
reference was “pretty vague†but she did not have a problem with editing it
out. But the trial court found that the
evidence was not unduly prejudicial.
“Also this witness has kind of put the defendant’s character into play
because he says he’s not the type of guy that would do this. [¶] So
based on the totality of this witness’s testimony, I don’t think it’s unduly
prejudicial, and I will not exclude it under 352.â€
At trial, Clarence’s unedited
interview was played for the jury. In it
he said, “He [Caleb] known in the projects for––like he a YE baby. We call him a YE baby. He’s a youngster that went to YE California
Youth Authority.†He later repeated that
Caleb was “somewhere in YE,†and the interrogating officer said, “Right. Right.
He’s a Youth baby.†Clarence also
referenced a prior uncharged crime: “He
got hurt, from what I heard, from what my baby mama told me today, he got a
warrant out for his arrest because he beat up his baby mama. Beat the baby out of her or something like
that.†When the interrogating officer said,
“Wow,†Clarence agreed, “Yeah. And they
had a house somewhere––I think it was––somewhere out there. But he beat her up and some stuff.â€
B.
not prejudicial.
We agree that the evidence was
either irrelevant or, if relevant, should have been excluded under Evidence
Code sections 352 and 1100.
Only relevant evidence is
admissible. (Evid. Code,
§ 350.) Evidence is relevant if it
has a “tendency in reason to prove or disprove any disputed fact that is of consequence
to the determination of the action.â€
(Evid. Code, § 210.) The abuse of
discretion standard of review applies to a trial court’s ruling on the
admissibility of evidence, including a ruling concerning relevance. (People
v. Waidla (2000) 22 Cal.4th 690, 717.)
A trial court therefore has broad discretion in determining the
relevance of evidence, but lacks discretion to admit irrelevant evidence. (People
v. Cowan (2010) 50 Cal.4th 401, 482.)
The relevance of the evidence here
at issue is not apparent. Caleb did not
testify, and it therefore was not relevant to his credibility or to a material
fact in dispute. The trial court,
however, found that because Clarence testified that Caleb was not the kind of
guy who would shoot him, the prosecutor could introduce evidence Caleb
this. We see several problems with this
reasoning.
First, it appears to be based on
Evidence Code section 1102. That section
provides, among other things, that evidence of a criminal defendant’s character
is admissible if the prosecutor offers it to rebut evidence adduced
v. Loker (2008) 44 Cal.4th 691, 709.)
The exception in Evidence Code section 1102 does not apply here because
defendant did not first introduce evidence of his good character. Rather, Clarence, the prosecutor’s witness,
testified that Caleb was his friend and wouldn’t have shot him.
The second problem is it permitted
the admission of character evidence that was relevant only to establish Caleb’s
propensity for violence. Evidence a
defendant committed misconduct other than that currently charged is generally
inadmissible to prove conduct on a specified occasion or to show the defendant
has a bad character or a disposition to commit the charged crime. (Evid. Code, § 1101, subd. (a);
782.) An exception is where the evidence
is relevant to prove, among other things, motive, opportunity, intent,
knowledge, preparation, identity, or the existence of a common design or
plan. (Evid. Code, § 1101, subd. (b);
400.) No argument was made below that
Caleb’s commitment to the Youth Authority and his beating his girlfriend so
severely that she lost her baby was relevant to prove a material fact such as
his intent in this case.
The People, however, argue that the
evidence was relevant to “impeach Clarence’s testimony†in two ways: first, evidence that Caleb had a violent past
rebutted Clarence’s testimony that Caleb “wouldn’t do nothing like†shoot him;
and, second, it explained why Clarence recanted his prior statement. As to first argument, this just repeats the
trial court’s incorrect justification for admitting the evidence. As to the second argument, the specific facts
that Caleb was in the Youth Authority and beat his girlfriend did not impeach
Clarence’s testimony. Rather, the
evidence showed that Caleb had a violent past, hence, the jury should infer he
committed the crime at issue. Evidence
Code section 1101, however, does not permit prior crimes evidence to be used
for such a purpose. The proper way to
impeach Clarence was to introduce his prior inconsistent recorded statement to
detectives that Caleb shot him. (Evid.
Code, § 1235; People v. Brown (1995)
35 Cal.App.4th 1585, 1596-1597.) It was
improper to impeach Clarence with Caleb’s propensity for violence.
Because the evidence was not
admissible, we must determine whether its admission prejudiced Caleb. The admission of prior crimes evidence can be
highly prejudicial. (
404.) Prejudice can be alleviated by
giving a limiting instruction, such as CALCRIM No. 375.
instruct sua sponte on the limited admissibility of prior crimes evidence. (People
v. Mendoza (2011) 52 Cal.4th 1056, 1094.)
An exception is where the past offenses are a dominant part of the
evidence against the defendant and is highly prejudicial and minimally
relevant. (Ibid.) The prior crimes
evidence here was not a dominant part of the case. Rather, the references to Caleb’s time in the
Youth Authority and the beating of his girlfriend were brief and isolated.
In any event, even in the absence of
the limiting instruction, the admission of this evidence did not prejudice
Caleb, whether we review prejudice under People v. Watson (1956) 46 Cal.2d 818, 836 (whether it is
reasonably probable that a result more favorable to the appellant would result
in the absence of the error), or under Chapman
v. California (1967) 386 U.S. 18, 24 (whether the error was harmless beyond
a reasonable doubt) the result is the same.
Nor did the
admission of the evidence violate Caleb’s federal constitutional rights. Even where a trial court renders an erroneous
evidentiary ruling, a defendant’s due process rights are usually not
violated. (Montana v. Egelhoff (1996) 518 U.S. 37, 52-53 [such due process
claims, usually citing Chambers v.
Mississippi (1973) 410 U.S. 284, are often overbroad, as
case]; People v. Falsetta (1999) 21
Cal.4th 903, 913.)
Both Clarence and Sheena gave
separate recorded statements implicating Caleb in the crime. Their statements, made soon after the
shooting, matched in material respects.
Both saw Caleb drive past Sheena’s apartment that morning before the
shooting, with Sheena saying she saw Caleb several times. Both heard about the same number of shots: three to five or four to five. After he was shot, Clarence turned and saw a
tan or brown car he had seen Caleb driving.
Sheena also saw this car, and she identified it from a photograph. Sheena also unequivocally identified Caleb as
the shooter.
Other evidence corroborated
Clarence’s and Sheena’s recorded statements.
Clarence said he tried to flag Caleb down as he drove past, a fact he
denied at trial but that was corroborated by video surveillance showing
Clarence waving. Sheena said that after
the shooting, Caleb fled in his car around “the bend†on Parmelee. Video surveillance showed a car going away as
Sheena described.
Detective Shear explained why
Clarence and Sheena retreated from their initial statements: snitching on a gang member could lead to
violent retribution. The worst kind of
snitching is by a gang member against another gang member. Clarence, like Caleb, was a Bounty Hunter,
and Sheena lived in Bounty Hunter territory.
Both knew people closely associated to Caleb, including his brother,
Shawn. In fact, Clarence admitted he
attended court with Shawn. Clarence and
Sheena therefore had powerful reasons to retract their statements—they did not
want to be labeled snitches and face the consequences.
Based on this evidence, we conclude that the error in
admitting the criminal propensity evidence was harmless.
Caleb, however, contends that his counsel was
ineffective for failing to object to the evidence and for failing to request a
limiting instruction. (See generally,
668, 687; People v. Hernandez (2012)
53 Cal.4th 1095, 1105.) Defense counsel
did object to the statements concerning Caleb’s time in the Youth Authority,
although he did not object to statements about beating his girlfriend or
request a limiting instruction.
name="_ftnref8" title="">[8] In any event, because we have found that Caleb
was not prejudiced by the admission of the prior crimes evidence, we also
reject his claim that his trial counsel was ineffective for failing to object
to the evidence or for failing to request the limiting instruction.
The judgment is affirmed.
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
name="_ftn1" title="">[1] Because some witnesses share a
surname, we use first names.
name="_ftn2" title="">[2] The recordings were played for the
jury.
