P. v. Bryant
Filed 6/26/12 P. v.
Bryant CA3
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
TOM CURTIS BRYANT,
Defendant and Appellant.
C068481
(Super.
Ct. No. 08F07257)
Defendant Tom
Curtis Bryant was charged with three counts of
in each count it was alleged that defendant intentionally discharged a firearm,
causing great bodily injury
(§ 12022.53, subd.
(d)), and committed the offense for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)). Counts one and two were based
on a shooting on July 9, 2008, and count three was based on a shooting on July
28, 2008.
A jury found
defendant guilty of count three and found true its enhancement
allegations. As to counts one and two
the jury was unable to reach a verdict, and the trial court declared a mistrial
as to those counts. Sentenced to
defendant appeals, contending (1) the trial court erred by admitting certain
gang evidence; (2) the trial court erred by not instructing, on its own
initiative, on attempted voluntary manslaughter; (3) there was insufficient
evidence of great bodily injury; and (4) his sentence is unconstitutionally cruel
and unusual. We shall affirm the
judgment.
FACTUAL BACKGROUND
Between 7:30 and
8:00 p.m. on July 28, 2008, DeMarea Fulbright and his good friend, Phillip
Tigner, were riding on a light rail train.
Fulbright was a member of G‑Mobb, an African-American street gang;
Tigner was not affiliated with a gang.
Several members of a rival African-American gang, Fourth Avenue Blood
(FAB), including defendant,
name="_ftnref4" title="">[4]
were also riding on that light rail train.
One of the FAB members recognized Fulbright as being the person who may
have “jumped” (fought) another FAB member.
When Fulbright and Tigner got off the train, a group of 10 to 15 FAB
members, including defendant, confronted them.
After defendant
and the other FAB members yelled gang slurs, they surrounded Fulbright and
attacked him with their fists. Tigner
joined the fight, exchanging punches with those who were fighting
Fulbright. During the melee, Tigner felt
something hard hit him on the back of the head, which he suspected was a
gun. He turned around and punched the
person who had struck him; this person was later identified as defendant.
Seconds later,
Tigner heard a gunshot and took off running down the street. After a few blocks he stopped, because he
felt a “burning” sensation on his side.
He lifted his shirt and realized that he had been shot in his
torso. There was a hole and he was
bleeding. He began to feel “dizzy,” but
managed to make it on foot to Fulbright’s home where they called for an
ambulance. Tigner was taken to the
hospital where he was treated for a “through-and-through”
gunshot wound to his right torso. He was
released the next day after tests revealed no vital organs had been
damaged.
Right after the
incident, defendant and the other FAB members involved got back on the light
rail. On the light rail, defendant told
Keenan Williams, an FAB member, “I think I popped that
Nigger. . . . I think I
popped that Nigger ’cause after that I—I actually seen him run around the
corner and I think he fell.” In
addition, defendant handed the gun to Christopher Jones, another FAB
member. According to Jones, he gave the
gun back to defendant because he (Jones) did not want to be blamed for the
shooting.
On August 12,
2008, defendant was interviewed by Detective Justin Saario of the Sacramento
Police Department. After initially
denying any knowledge of the shooting,
defendant admitted that he pulled a gun from his pocket and fired it at the
ground. According to defendant, the
bullet skipped up and struck Tigner. In
addition, defendant acknowledged there was an ongoing dispute between FAB and G‑Mobb.
Defendant was
interviewed a second time by Detective Saario.
During this interview, defendant gave an alternate story about how
Tigner was shot. Defendant stated that
he was aiming for Tigner’s legs, but when he pulled the trigger the gun “jerked
up,” which apparently caused him to hit Tigner’s torso. Defendant added that he shot Tigner following
a sequence of fisticuffs in which Tigner hit two guys defendant was with, then
defendant hit Tigner in the back of the head, and then Tigner hit
defendant.
DISCUSSION
I. Gang Evidence
and the Letter
Defendant
contends the trial court erred by admitting (1) “irrelevant, highly
prejudicial and cumulative evidence” of defendant’s gang membership and
uncharged gang crimes, and (2) a letter containing, among other things, threats
against witnesses. We disagree.
A. Gang Evidence
Background
At trial, the
prosecution sought to introduce expert testimony from Detective Saario, an
expert on African-American gangs in Sacramento.
The testimony to be elicited included evidence of FAB and G‑Mobb
violence that erupted after defendant’s charged shooting;
the prosecutor described this evidence as a “direct effect” or “a chain
reaction” resulting from the charged crimes.
The prosecutor also sought to introduce testimony from Saario regarding
the shooting of G‑Mobb member Douglas (“Tiger”
Livingston. It was believed that defendant had somethingto do with this shooting because he boasted about it on his MySpace page. The prosecutor explained the evidence was
meant to illustrate how the “gang war” between FAB and G‑Mobb began and
continued, even after the arrest of defendant.
It was the prosecutor’s belief that this evidence tended to show the
motive for the charged crimes and tended to prove that the charged crimes were
committed for the benefit of a criminal street gang.
Over defendant’s
Evidence Code section 352 objection, the trial court agreed with the
prosecution and ruled that the testimony to be elicited from Detective Saario
was relevant and probative. However, the
trial court excluded a prosecution exhibit that showed all of the uncharged
crimes, because it suggested that defendant was “somehow responsible for all of
that [(the uncharged crimes)], [and the jury] could be easily misled to think
that.”
During trial,
Detective Saario testified about the rivalry between FAB and G‑Mobb,
about how defendant supposedly boasted on his MySpace page that he was involved
in a prior shooting (according to the victim of that shooting, “Tiger”
Livingston, a G‑Mobb member), and about how the charged incidents and the
subsequent murder of one Robert Haynes escalated the gang rivalry, resulting in
approximately 26 more shootings in a year-and-a-half time frame. In addition, Saario opined that, based on
defendant’s own statements, tattoos, and involvement “in gang-related crimes as
well as being involved in gang-related activities,” defendant was a member of
FAB.
Analysis
Evidence Code
section 352, the basis of defendant’s objection to this evidence,
provides: “The court in its discretion
may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.”
In addition,
“California courts have long recognized the potential prejudicial effect of
gang membership evidence. However, they have admitted such evidence when the
very reason for the crime is gang related.
(See, e.g., People v. Manson
(1976) 61 Cal.App.3d 102 [motive for murders]; In re Darrell T. (1979) 90 Cal.App.3d 325, 328-334 [motive];
38 Cal.App.3d 176, 194 [motive]; People
v. Frausto (1982) 135 Cal.App.3d 129 [motive and intent].) Due to its potential prejudicial impact on a
jury, our Supreme Court has condemned the introduction of ‘evidence of gang
membership if only tangentially relevant, given its highly inflammatory impact.’ (People
v. Cox (1991) 53 Cal.3d 618, 660.)”
(People v. Ruiz (1998)
62 Cal.App.4th 234, 239-240.)
We review the
trial court’s ruling under an abuse of discretion standard. (People
v. Kipp (2001) 26 Cal.4th 1100, 1121.)
The record does
not support defendant’s contention that the gang evidence “had no relevance” to
his intent, and was “extraordinarily inflammatory.” Detective Saario described the violent
rivalry between FAB and G‑Mobb, and how the violence escalated after
defendant was charged with the shooting of Tigner. This evidence was relevant and probative to
the street gang enhancement, where the prosecution was required to prove the
underlying felony was committed “for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)
Moreover,
evidence that defendant was suspected of being involved in the shooting of
“Tiger” Livingston, a G‑Mobb member, was relevant to show that defendant
himself had animosity towards G‑Mobb as an FAB member. This evidence also provided a motive for why
defendant shot Tigner; it was meant to benefit defendant’s street gang and if
defendant did not use the gun it would make FAB look “weak.” Furthermore, this evidence was not covered by
defendant’s rejected stipulation to the prosecution that he was an FAB
member.
In addition, the
testimony regarding the murder of Robert Haynes and the testimony stating, “[I]n
a year and a half time frame [after the charged incidents in July 2008 and the
murder of Robert Haynes in August 2008], there were approximately 26 shootings
between these two gangs [(FAB and G‑Mobb)] where people were actually
shot and hit,” was not irrelevant nor an abuse of discretion to admit. Again, this evidence was meant to illustrate
the motive for the charged shooting and to show the charged shooting was meant
to benefit the criminal street gang. The
evidence was also relevant to the jury’s assessment of witness credibility
because it tended to show the bias and motives for how some of the witnesses
testified. (People v. Harris (1985) 175 Cal.App.3d 944, 957 [“evidence of
gang membership was relevant on possible threats to prosecution witnesses,
resulting in obvious bias during testimony”].)
Defendant relies
largely on People v. Albarran (2007)
149 Cal.App.4th 214 (Albarran),
but Albarran is distinguishable. In Albarran,
the trial court admitted gang evidence for the purpose of showing a gang
respect motive and intent for the defendant’s attempted murder charge. (Id.
at p. 222 & fn. 4.) On
appeal, the court reversed. (
a case about gang respect; the shooters did not announce their presence or
purpose, before, during or after the shooting.
(Ibid.) The trial court had allowed in evidence of
gang-graffiti threats to kill police officers (the attempted murder was not of
an officer), descriptions of the criminal activities of other gang members, and
reference to the Mexican Mafia, constituting a “panoply of incriminating gang
evidence, which . . . had no bearing on the underlying charges.” (Id.
at p. 227.) In the final analysis,
the only evidence in Albarran to
support the gang respect motive was the defendant’s gang affiliation; because
of this, the court reversed. (
Here, the
prosecution did not present a “panoply of incriminating gang evidence”; rather,
the gang evidence was probative of defendant’s intent and motive concerning the
charged offense and the gang enhancement.
The gang motive in this case dealt with a gang rivalry that was not
present in Albarran. (Albarran,
relevant gang rivalries].)
Because the
challenged gang evidence was probative and relevant to motive and intent, was
not highly inflammatory, and because the instant case is distinguishable from
its discretion in admitting this evidence.
B. The Letter
Background
Also admitted
into evidence, over defense counsel’s objection, was a letter that was
purportedly written by defendant. The
letter described, among other things, the incident at the light rail station,
that a prosecution witness was on the author’s “hit list,” and it also
instructed potential witnesses to fabricate testimony. According to the trial court, the letter was
self-authenticating because it was written by “Tom-Tom” (defendant’s gang
nickname), it contained information only defendant would know, and, when
compared with another letter defendant had written, it appeared to be penned by
defendant. Moreover, the trial court
believed the probative value of the letter outweighed its prejudicial effect
because the letter was unlikely to invoke a uniquely emotional response from
the jury.
Defendant argues
that the trial court abused its discretion in admitting the letter because the
prosecution failed to authenticate it.
Again, we disagree.
Analysis
Evidence Code
section 1401, subdivision (a) requires a writing to be authenticated before it
may be admitted into evidence. Evidence
Code section 1421, in turn, states, “A writing may be authenticated by evidence
that the writing refers to or states matters that are unlikely to be known to
anyone other than the person who is claimed by the proponent of the evidence to
be the author of the writing.”
Contrary to
defendant’s argument, the trial court did not err by admitting the letter. The author specifically referred to himself
as “Tom-Tom,” which was defendant’s gang nickname, and the letter was sent to a
fellow FAB member, identified as Diquan Davis.
In addition, the letter stated facts peculiar to defendant: The letter referred to a shooting the author
committed at a light rail station; it threatened a witness who implicated
defendant in the shooting (referring to “Man-Man” who was identified as Keenan
Williams); and it referred to another witness who stated that defendant handed
him a gun (corroborating Christopher Jones’s statement to Detective
Saario). This constituted sufficient
evidence for the trial court to have deemed the letter written by
defendant. (See People v. Gibson (2001) 90 Cal.App.4th 371, 383 [stating
circumstantial evidence, content and location are valid means of authentication].)
II. Voluntary
Manslaughter Instructions
Defendant next contends the trial court erred
by failing to instruct the jury, on the court’s own initiative, on the lesser
included offense of attempted voluntary manslaughter. Defendant argues there was enough evidence
for the jury to conclude that he acted in a heat of passion or sudden quarrel,
or acted in imperfect self-defense—two legal theories that negate the malice
element required to prove murder—and therefore the jury could have concluded
that he committed attempted voluntary manslaughter. (§ 192, subd. (a); People v. Cruz (2008) 44 Cal.4th 636, 664.) We disagree.
“[T]he existence
of ‘any evidence, no matter how weak’
will not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant is guilty only
of the lesser offense is ‘substantial enough to merit consideration’ by the
jury. [Citations.] ‘Substantial evidence’ in this context is
‘“evidence from which a jury composed of reasonable [persons] could
. . . conclude[]”’ that the lesser offense, but not the greater, was
committed.” (People v. Breverman (1998) 19 Cal.4th 142, 162, citing
668, 684.)
A. Heat of
Passion or Sudden Quarrel
The evidence
here of heat of passion or sudden quarrel was not substantial enough to merit
the jury’s consideration.
Heat of passion
or sudden quarrel must result from provocation, either from the victim or
conduct reasonably believed by the defendant to have been from the victim. (People
v. Lee (1999) 20 Cal.4th 47, 59.)
This conduct may be physical or verbal, but it must be sufficiently
provocative to cause a reasonable person to act rashly or without due
deliberation and reflection. (
“A light blow, though it may constitute a battery, can not constitute a
reasonable provocation; but a violent, painful blow, with fist or weapon,
ordinarily will do so. . . .
[H]owever, [a defendant] may not have his homicide reduced to voluntary
manslaughter if he himself by his own prior conduct (as by vigorously starting
the fracas) was responsible for that violent blow.” (2 LaFave, Substantive Criminal Law (2d
ed. 2003) Manslaughter; Suicide Assistance, § 15.2(b)(1), p. 496
(LaFave); 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000)
Crimes Against the Person, § 214, pp. 826-827 (Witkin & Epstein); see
also People v. Hoover (1930)
107 Cal.App. 635, 639 [one who has instigated a quarrel may not reasonably
contend he was acting in heat of passion or sudden quarrel].)
Here, defendant
fails to point to any substantial evidence that the jury could have reasonably
relied on in determining defendant acted under heat of passion or a sudden
quarrel. Instead, defendant merely
notes, “the shooting occurred during a confrontation with rival gang members,
after the victim punched [defendant],” and he points to People v. Ramirez (2010) 189 Cal.App.4th 1483 (
heat of passion-attempted voluntary manslaughter.
Defendant not
only understates the facts, but fails to articulate how this amounts to heat of
passion or sudden quarrel. Defendant
does not point out the severity of the blow he received nor the amount of pain
defendant felt as a result of it. After
reviewing the record, the only evidence as to the severity of the blow was the
prosecution’s statement that defendant may have been “dazed.” As noted, defendant hit Tigner in the back of
the head with a gun before Tigner hit defendant. More importantly, defendant and his friends
started the fracas with Fulbright and Tigner, and were therefore the
aggressors. Thus, even if the punch to
defendant was a “violent blow” sufficient for provocation, he is still barred
from claiming heat of passion or sudden quarrel because his conduct was
responsible for the blow. (See
2 LaFave, supra,
§ 15.2(b)(1), p. 496; 1 Witkin & Epstein,
present case from Ramirez; in
defendant had struck the victim before the victim punched him, and no evidence
that the defendant had provoked the gang-related confrontation. (Ramirez,
B. Imperfect Self-defense
Defendant also
argues that since this altercation involved rival gang members who are often
armed and expected to use a firearm during a confrontation, defendant was
acting under the actual but unreasonable belief he was in imminent danger of death
or great bodily injury and therefore needed to use his firearm. This argument is without merit.
Attempted
voluntary manslaughter may also be based on an attempted killing in imperfect
self-defense—i.e., when the defendant attempts to kill in the actual but
unreasonable belief that he was in imminent danger of death or great bodily
injury. (See People v. Cruz, supra,
Here, defendant
relies solely on Detective Saario’s testimony regarding gangs and gang
mentality. Defendant does not point to
any evidence regarding his actual belief that he was acting in imperfect
self-defense, nor did defendant claim in his interview with Detective Saario
that he fired at Tigner because he feared death or injury. Instead, defendant’s argument is based on
speculation and nothing more.
Furthermore, were we to adopt the premise underlying defendant’s
argument, we would venture toward creating an additional nonstatutory offense
of voluntary manslaughter based simply on rival gang confrontations. We reject defendant’s claim that the trial
court erred by not instructing, on its own initiative, on imperfect
self-defense.
III. Great
Bodily Injury
Defendant also
claims there was insufficient evidence
to support the great bodily injury finding for the section 12022.53,
subdivision (d) firearm enhancement.
Defendant argues that because Tigner did not require surgery and did not
testify that he suffered any excessive pain or any prolonged aftereffects, the
evidence therefore failed to amount to great bodily injury. We disagree.
“‘Great bodily
injury’ means a significant or substantial physical injury,” which is commonly
established by evidence of the severity of the victim’s physical injury, the
resulting pain, or the medical care required to treat or repair the
injury. (§ 12022.7, subd. (f); People v. Cross (2008) 45 Cal.4th 58, 63, 66.) For there to be a significant or substantial
physical injury, it is not necessary for “the victim to suffer ‘permanent,’
‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily
function.” (People v. Escobar (1992) 3 Cal.4th 740, 750.) The determination of great bodily injury is a
question of fact for the jury to decide, and if there is sufficient evidence to
sustain the jury’s finding, an appellate court is bound to accept it. (Ibid.)
Here, there was
sufficient evidence to support the jury’s finding. In fact this case is no different than
176 Cal.App.3d 460, a case where the court upheld a great bodily injury
finding. In Lopez, two victims were shot during a confrontation. (Id. at
p. 462.) One victim was shot in the
hip and felt only his fall to the ground because he was “dazed.” (Ibid.) The other victim was shot in the leg, having
the bullet penetrate and exit her thigh.
(Ibid.) This victim felt “fire” in her leg, but still
managed to drag the other victim to safety.
(Ibid.) Although in the present case, Tigner
testified that he had not immediately realized that he had been shot, he did
testify that after he ran a few blocks he felt a “burning” on his side. After a few more blocks, Tigner testified
that he began to feel “dizzy” and felt that this could “be something serious.” When Tigner arrived at Fulbright’s house, he
called for an ambulance to take him to the emergency room. At the hospital, Tigner was treated for a
“through-and-through” gunshot wound, meaning the bullet entered and exited
Tigner’s body. The injury suffered by
Tigner is no different than the victims’ injuries in Lopez and is sufficient to support the great bodily injury
finding.
IV. Cruel and
Unusual Punishment
Lastly,
defendant claims his prison sentence of 42 years to life constitutes cruel and
unusual punishment. Defendant was 17
years old at the time of the offense, and 19 when he was sentenced. Relying on Graham v. Florida (2010) 560 U.S. ___ [176 L.Ed.2d 825] (
is 61, thereby depriving him of a “meaningful opportunity” to be released
within his lifetime, and constituting a disproportionate and de facto sentence
of life without parole for a nonhomicide offense.
In
held that the federal Constitution’s Eighth Amendment—which prohibits cruel and
unusual punishment—prohibits a sentence of life without parole (LWOP) for a
juvenile offender who commits a nonhomicide offense. (Graham,
supra, 560 U.S. at p. ___ [176 L.Ed.2d
at p. 845].) The Supreme Court
ruled, “A State is not required to guarantee eventual freedom to a juvenile
offender convicted of a nonhomicide crime.
What the State must do, however, is give defendants . . . some
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation. It is for the State, in
the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the
Eighth Amendment forbids a State from imposing a life without parole sentence
on a juvenile nonhomicide offender, it does not require the State to release
that offender during his natural life.
Those who commit truly horrifying crimes as juveniles may turn out to be
irredeemable, and thus deserving of incarceration for the duration of their
lives. The Eighth Amendment does not
foreclose the possibility that persons convicted of nonhomicide crimes
committed before adulthood will remain behind bars for life. It does forbid States from making the
judgment at the outset that those offenders never will be fit to reenter
society.” (Graham, at p. ___ [176 L.Ed.2d at pp. 845-846].)
In
Division Two, considered a sentence of 84 years to life for a defendant who was
16 years old at the time of his offenses, which included one count of
carjacking, one count of assault with a firearm, and seven counts of second
degree robbery, all of which were committed for the benefit of a criminal
street gang. (Id. at p. 50.) After
noting the life expectancy for an 18-year-old male was 76 years (Mendez was 18
when sentenced), the court concluded that his sentence (which would have made
him eligible for parole at 88) was “‘materially indistinguishable’” from an
LWOP sentence. (Id. at p. 63.) While
noting Graham was not technically
controlling in the case, the court concluded the principles of
at pp. 63-64 [concluding the sentence imposed did not give the defendant a
meaningful opportunity for release].)
Even assuming
defendant is correct that he will not be eligible for parole until the age of
61 (the People maintain it is a few years sooner), we believe defendant’s case
is distinguishable from Graham and
Citing Mendez, defendant
claims his life expectancy ranges from 64 to 72 years of age. However, Mendez
states the life expectancy of an 18-year-old male is 76 years. (See Mendez,
supra, 188 Cal.App.4th at
p. 63 [citing a June 2010 report by the National Center for Health Statistics,
Centers for Disease Control].)
Therefore, unlike Mendez, who
was eligible for parole after his life expectancy passed, defendant is eligible
for parole 15 years prior. Fifteen years
is enough time to allow defendant to have a “meaningful opportunity” to be
released within his lifetime under Graham
and Mendez.
DISPOSITION
The judgment is
affirmed.
BUTZ , J.
We concur:
NICHOLSON , Acting P.
J.
MURRAY , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the Penal Code in
effect at the time of defendant’s sentencing on June 10, 2011, prior to
the enactment of the Criminal Justice Realignment Act of 2011, which became
operative on October 1, 2011.
(Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1.)
name="_ftn2" title="">[2] The sentence was calculated as follows: the middle term of seven years for attempted
murder, plus a consecutive 10 years for the gang enhancement, and a consecutive
indeterminate term of 25 years to life for the firearm enhancement.
