P. v. Chafford

Filed 9/21/07 P. v. Chafford CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A113404

v. (AlamedaCounty

Super. Ct. No. C148757)

DEMETRIUS CHAFFORD,

Defendant and Appellant.

_______________________________________/

Demetrius Chafford appeals from a judgment entered after a jury convicted him of first degree murder. (Pen. Code,  187, 189.)^[1] He contends his conviction must be reversed because (1) the trial court erred when it admitted evidence of his prior misconduct, (2) the court erred when it allowed a witness to testify about the meaning of certain words that were used in recorded telephone calls, and (3) the prosecutor committed misconduct during final argument. We reject these arguments and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was convicted of murdering McKinley Williams by shooting him in the head as they sat next to each other in a parked car. The evidence at trial indicated appellants motivation was revenge: He believed Williams was a snitch. The essential facts are as follows:

Appellant, Williams, and a man named James Pierce had known each other for many years. They sold drugs together claiming the area around 24th Street and Martin Luther King, Jr., Boulevard in Oakland as their turf. Their base of operations was a house on 24th Street.

Although appellant, Williams, and Pierce worked together, there was tension between them. In early 1999, Pierce provided information to Oakland Police Officer Chris Crabtree that led to appellants arrest for drug trafficking. Subsequently, appellant told Crabtree that he believed Williams was the informant.

On September 24, 2002, officers served a search warrant at the house on 24th Street. The next day, appellant called Officer Crabtree and asked if Williams and Pierce were informants. Crabtree replied that he could not say. Appellant was angry and he stated, Those guys are up to something. I hope they are not snitching.

On October 1, 2002, officers served a second search warrant at the 24th Street house. They arrested Williams and two others. When appellant and Pierce heard about the arrests, they went to the police station to post bail. They were told Williams was not there. At that point, Williams called Pierce and said he had already posted bail. Appellant and Pierce thought this was strange because it usually takes many hours to be processed after an arrest. They believed Williams had been released so quickly because he was an informant.

The next day, Williams returned to the police station to retrieve some of his possessions. Officer Crabtree told Williams he should watch out for himself.

On October 17, 2002, officers served a third search warrant at the 24th Street house. As part of the search, officers searched appellants car and they damaged it in the process. Appellant was irate about the damage.

On October 21, 2002, near 1:30 p.m., Jefferson Miles was collecting bottles and cans on Sycamore Street near the old Sears building in Oakland. He heard a bang and saw glass fall from the window of a car that was parked nearby. He also saw someone get out of the car and walk away.

An Oakland police officer responded to the scene. He found Williams in the drivers seat of a Honda. He had been killed by a single gunshot to the head. The bullet entered the right side of Williamss head and exited the left side. Stippling around the wound indicated the gun was less than three inches from Williamss head when it was fired. The drivers side window was shattered.

An evidence technician examined the Honda for evidence. Appellants fingerprint was found on the front passenger side interior door handle. A bullet casing was found on the right front floorboard.

That same day, Pierce encountered appellant at a friends house. Appellant told Pierce he should drive to Sears and tell him what he saw. Pierce drove to the Sears store on Telegraph Avenue. He called appellant and told him he did not see anything. Appellant told Pierce he had gone to the wrong place, and that he should go to the old Sears building. Pierce drove to the old Sears building, and as he got close, he saw a great deal of police activity. He also saw Williamss car parked on the street. Appellant called Pierce who told him what he had seen. Appellant told Pierce that Williams was inside the car leaking.

Appellant and Pierce met the next day. Appellant told Pierce that he shot Williams while sitting in the passenger seat of Williamss car. Appellant said Williams was snitching and that he had to let him have it.

Subsequently, while appellant was incarcerated on other charges, he again admitted the crime. Appellant told a cellmate, Andre Thompson, that he had smoked Williams on the side of Sears. Appellant told Thompson on at least three occasions that he killed Williams.

Based on these facts, an information was filed charging appellant with murder. (  187.) As is relevant, the information also alleged appellant had personally and intentionally discharged a firearm resulting in a death. ( 12022.53, subd. (d).)

The case proceeded to trial where the prosecution presented the evidence we have set forth above. The prosecution also played several audio tapes of telephone calls appellant made while he was in jail. During the calls, appellant encouraged his friends to find Pierce and Thompson and prevent them from testifying.

The jurors considering this evidence found appellant guilty of first degree murder and found the use allegation to be true. After the court sentenced appellant to an aggregate term of 50 years to life in prison, he filed this appeal.

II. DISCUSSION

A. Evidence Regarding Other Crimes

Pierce and Thompson both testified that appellant told them he killed Williams because he was a snitch. In an attempt to bolster the credibility of Pierce and Thompson on this point, the prosecutor presented evidence that appellant had made similar admissions about other shootings he had committed. Pierce testified that appellant told him he killed two people: a woman on 24th Street, and a man named Michael Kahn in Oakland; and that he shot two others, Art Young and Vincent Scott. Thompson testified that appellant said he shot Art Young and Vincent Scott.

Subsequently, the parties stipulated that a woman named Brenda Williams was the victim of a homicide on 24th Street in Oakland on August 25, 2002, that Michael Kahn was the victim of a homicide in Oakland on May 5, 2002, and that Vincent Scott had been shot on May 27, 2001 in Fairfield. An officer testified that Art Young had been shot on Sycamore Street in Oakland. The parties stipulated that casings found at the scene of Youngs shooting matched the casing that was found in Williamss car.

Appellant now contends the trial court erred because the evidence from Pierce and Thompson about his prior bad acts was character evidence that was inadmissible under Evidence Code section 1101.^[2] We are unpersuaded.

The evidence in question was intended to bolster the credibility of Pierce and Thompson not to establish that appellant had a propensity for violence. In the factual context of this case, this distinction, though subtle, is significant. Jurors might well question Pierce and Thompsons claims that appellant would brag to them about murdering someone. Evidence that appellant had bragged to them in the past about shootings that had, in fact, occurred tends to corroborate their testimony. And the admissiblity of such corroborating testimony is not addressed by Evidence Code section 1101. The court in People v. Stern (2003) 111 Cal.App.4th 283, faced this same issue. There, the defendant threatened the victim during a telephone call, saying he would slit [his] mothers throat and force [him] to watch it. (Id. at p. 295.) The defendant bragged he had stabbed somebody else just a couple of days earlier, and that he had no regard for anybody. (Ibid.) At trial, the court admitted evidence that the defendant had in fact stabbed someone else not long before the threatening telephone call. On appeal the defendant argued the court erred when it admitted evidence of the prior stabbing incident. The Stern court disagreed: there is no merit to the suggestion that Evidence Code section 1101, subdivisions (a) and (b) have anything to do with the proper resolution of this case. The evidence of the uncharged offense was received solely on the issue of Mr. Hirds believability-an obviously important issue. Accordingly, the restrictions on character evidence in Evidence Code section 1101 were inapplicable. Evidence Code section 1101, subdivision (c) states, Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness. The Law Revision Commission comment to Evidence Code section 1101 states in relevant part: Nor is Section 1101 concerned with evidence of character offered on the issue of the credibility of a witness; the admissibility of such evidence is determined under Section 786-790. See Evidence Code 1101(c). (Cal. Law Revision Com. com., 29B pt. 3 Wests Ann. Pen. Code (1995) foll. 1101, p. 438.) The late Presiding Justice Bernard S. Jefferson explained the effect of Evidence Code section 1101, subdivision (c) as follows: The Law Revision Commissions comment to Evidence Code section 1101 points out that this section is not intended to refer to character-trait evidence offered to prove a fact relating to credibility of a witness: Nor is Section 1101 concerned with evidence of character offered on the issue of the credibility of a witness; the admissibility of such evidence is determined under Sections 786-790. The quoted Law Revision Commissions comment to Evidence Code section 1101 points out unmistakably that the admissibility of character-trait evidence on the issue of credibility of a witness is governed by Evidence Code sections 786 to 790 and not by section 1101. (People v. Thompson (1979) 98 Cal.App.3d 467, 475.) (People v. Stern, supra, 111 Cal.App.4th at p. 296, fn. omitted.)^[3]

We conclude the evidence in question was not inadmissible under Evidence Code section 1101.

In arguing the court erred, appellant relies primarily on a statement made in People v. Brown (1993) 17 Cal.App.4th 1389, 1396, where the court said that [a]s a general rule courts have interpreted Evidence Code section 1101 as not permitting introduction of prior acts solely to corroborate the credibility of a witness. To the extent Brown means that Evidence Code section 1101 does not permit the introduction of prior acts to prove credibility, we agree. Evidence Code section 1101 does not address and therefore does not authorize the admission of evidence to support the credibility of a witness as subdivision (c) of the section makes clear. As the Stern court explained, Evidence Code section 1101 has nothing to do with evidence that is admitted to support a witnesss credibility.

Next, appellant argues that evidence of the prior bad acts was not admissible to show propensity or character under Evidence Code section 1101. Since Evidence Code section 1101 was not applicable in this context, we need not determine whether the evidence would have been admissible under that section.

Appellant argues that even if the evidence of the uncharged acts was admissible on the issue of motive under Evidence Code section 1101, the court should have excluded it as more prejudicial than probative under Evidence Code section 352. Since the court did not admit the evidence under Section 1101, there is no need to determine whether evidence admitted under that section should have been excluded as more prejudicial than probative.^[4]

Appellant argues that admission of the uncharged acts violated his right to due process because there were no permissible inferences that could be drawn from the evidence. That is not true. Article I, section 28, subdivision (d) of the California Constitution states: Except as provided by statute . . . relevant evidence shall not be excluded in any criminal proceeding . . . . As the Stern court explained, there is nothing in article I, section 28, subdivision (d) to prevent the use of relevant testimony to prove a crime victim, or any other witness for that matter, is telling the truth. (People v. Stern, supra, 111 Cal.App.4th at p. 300.) The Stern courts analysis on this point is consistent with other authority. (See People v. Hayes (1999) 21 Cal.4th 1211, 1261-1263 [the defendants accomplices could bolster their credibility by relaying defendants statement that he was a member of the Mafia and had been engaged in drug activity.] See also Simons, Cal. Evidence Manual (2007)  6:19, pp. 451-452.)

Finally, appellant suggests that the courts failure to give a limiting instruction allowed the jurors to use the prior acts to prove character or propensity. However a trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. (People v. Collie (1981) 30 Cal.3d 43, 64, fn. omitted.) Furthermore, defense counsel agreed that the jurors should not be given a limiting instruction because the evidence in question had been so limited. Any possible error on this point is invited and therefore waived. (People v. Cooper (1991) 53 Cal.3d 771, 831.)^[5]

B. Testimony About the Meaning of Certain Words

Appellant was incarcerated in jail prior to his trial. While in jail, appellants telephone calls were recorded. At trial, while Pierce was testifying, the prosecutor played tapes from many of appellants phone calls. They demonstrated appellant wanted others on the outside to prevent Pierce and Thompson from testifying.

The tapes are difficult to understand because appellant and those with whom he is talking use so many different slang terms. At several points, the prosecutor asked Pierce to identify some of the more obscure slang terms. For example, in one of the tapes a man tells appellant I just caught me a new hammer . . . . Appellant approves and tells the man you gotta start pushing around . . . Pierce testified that the word hammer meant a gun.

At another point, someone tells appellant that he got one of them big boys right now. Appellant replies that the man should start using those mother fuckers. Pierce testified that a big boy is a large gun like an Uzi or a shotgun.

There are many other examples. According to Pierce, the term feed em meant kill them, apologizing meant driving around looking for a person, and regulate meant getting people out of the way. Pierce also testified that a D case is a drug case, flipped meant working with the police, and po-po meant police.

Appellant now contends the trial court erred when it allowed Pierce to testify about the meaning of the slang terms that were used. First, appellant contends that Pierces testimony was not relevant because Pierces thoughts about what appellant meant simply was not an issue at trial. However, Pierce was not attempting to interpret appellants thoughts. He was describing his understanding of the slang terms that were used. Evidence is relevant if it has any tendency in reason to prove or disprove any

disputed fact that is of consequence to the determination of the action. (Evid. Code,  210.) Here, the parties disagreed about appellants intent during the phone calls. The defense interpreted the tapes to mean that appellant was simply trying to intimidate Pierce and Thompson into not testifying. The prosecutor argued appellant was asking others to murder Pierce and Thompson or their families. Pierces testimony helped the jurors understand the import of appellants statements and whether he was in fact, soliciting the murder of witnesses against him.

Next, appellant argues that Pierces testimony was unfounded speculation because it lacked any foundation. This is incorrect. Pierce testified that he had sold drugs on the streets of Oakland since 1996, and that people on the street use a certain slang when they talk. The trial court could reasonably conclude Pierces testimony about the slang terms that were used was not speculative and that it was founded upon his experience selling drugs on the streets of Oakland.

In a related argument, appellant argues that Pierces testimony was in the Nature of Expert Testimony, But Pierce Was No Expert. A witness is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. (Evid. Code,  720, subd. (a).) Here, the trial court reasonably could conclude Pierces experience selling drugs on the streets of Oakland qualified him as a expert on the slang terms that are used by people who live and work in that environment.

Appellant argues Pierce cannot be considered as an expert because the trial court never expressly qualified him to testify in that capacity. While this is true, the reason for this omission is apparent. Appellant never challenged Pierces qualification to provide expert testimony. The law does not require that an experts qualifications be set forth unless an opposing party objects. (Evid. Code,  720, subd. (a); see also Simons, Cal. Evidence Manual, supra,  4:1, p. 264.)

Next, appellant argues that Pierce could not provide valid expert testimony because he was not a disinterested party in the case. However, appellant has not cited any authority that holds only a disinterested party can provide expert testimony of this type, and the cases he does cite do not stand for that proposition. People v. Johnson (1993) 19 Cal.App.4th 778, 789-790, discusses expert testimony, but does not state whether testimony from an expert who might have some interest in the case must be excluded. While People v. Kelly (1976) 17 Cal.3d 24, 38, does state that an expert should be disinterested, it did so in another context: when deciding whether evidence based on a new scientific technique should be admitted. Since we are not addressing the validity of a new scientific technique, Kelly is not relevant. We conclude the court was not required to reject Pierces testimony about the meaning of the slang terms that were used simply because he may have had some interest in the case.

Finally, appellant contends the trial court should have excluded Pierces testimony about the meaning of the slang terms because it was more prejudicial than probative. (Evid. Code  352.) According to appellant, the evidence was unduly prejudicial because it suggested that appellant was out to get Pierce and that he wanted Pierce killed. However, all evidence that tends to prove guilt is prejudicial. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. (People v. Yu (1983) 143 Cal.App.3d 358, 377.) The section is not designed to avoid the prejudice or damage to a defense that naturally flows from relevant probative evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) Here, Pierces testimony was highly probative because it tended to show appellant was inducing others to kill Pierce and Thompson and thus demonstrated consciousness of guilt. (CALCRIM No. 371.) The court was not required to exclude that evidence simply because it was damaging.

C. Comments During Final Argument

During final argument, defense counsel told the jurors that the proof beyond a reasonable doubt is the highest standard that we have in our democracy. He said the standard is reserved for serious decisions and is higher than other standards of proof that are found in American law.

During his rebuttal, the prosecutor addressed defense counsels comments on this point as follows:

Now, reasonable doubt, I want to touch on that. Reasonable doubt was presented to you by Mr. Keller as some type of insurmountable burden. Its not. Its not only the same burden thats used in this case, its the same burden or standard of proof thats used in every criminal court in California and in the country. People are convicted beyond a reasonable doubt every day, so it is not this great insurmountable burden.

Its built into the system that we have . . . and as such, its always used as a defense. Crime wasnt proven to you beyond a reasonable doubt. Thats always a defense to any criminal case. Its kind of like you make the analogy: you cant have Thanksgiving without turkey. Well, you cant have a criminal trial without the defense being reasonable doubt. Thats just the way it is. Its built right into the system.

. . . .

Ladies and gentlemen, reasonable doubt is there for a reason. Its there to protect the innocent; it is not meant to be used as a legal loophole for the guilty. Remember that when youre discussing reasonable doubt.

Appellant now contends the prosecutors comments on reasonable doubt were misconduct that requires the reversal of his conviction.

We note first that appellant never objected to the comments he now challenges. As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless he objected to the misconduct in the court below and asked that the jury be admonished to disregard the impropriety. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If no objection was made, the point is reviewable on appeal only if an admonition would not have cured the harm caused by the misconduct. (Id. at pp. 1000-1001.) Here, any harm caused by the misconduct alleged could have been cured by an appropriate admonition. Therefore, appellants failure to object bars his claim on appeal.

We also conclude appellants argument is unpersuasive. A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] (People v. Morales (2001) 25 Cal.4th 34, 44.) Measured by this standard, we conclude the prosecutors comments were not misconduct.

First, appellant contends the comments we have quoted were misconduct because they misstated and lowered the burden of proof. According to appellant, the prosecutor urged the jury to convict, not because of the proof in this case, but because every jury does it. We are unpersuaded. The prosecutor was not arguing that appellant should be convicted simply because every jury does it. He simply was explaining that the beyond-a-reasonable-doubt standard was not so high that it cannot be overcome. It is not reasonably likely the jurors construed the prosecutors remarks as appellant contends.

Next, appellant contends the prosecutors comments were misconduct because they characterized the beyond-a-reasonable-doubt standard as a defense when in fact it is the standard by which the prosecution must prove its case. While appellant is technically correct, the jurors were instructed on this point.^[6] Furthermore, it is also true that defense counsel frequently highlight the prosecutions failure to prove its case beyond a reasonable doubt as a way of defending the charges that have been filed. We do not think it is reasonably likely the prosecutor interpreted the prosecutors comment in a way that was prejudicial to appellant.

Next, appellant contends the prosecutor committed misconduct when he likened

the beyond-a-reasonable-doubt standard to turkey at Thanksgiving. He notes that in People v. Nguyen (1995) 40 Cal.App.4th 28, 36, the court held the prosecutor had improperly diminished the beyond-a-reasonable-doubt standard by analogizing it to the decision to marry or to change lanes in a car. However, the prosecutor simply said that the reasonable doubt standard is applied in every criminal case, just like turkey is served at every Thanksgiving meal. He did not suggest that the decision the jury was called upon to make was like the decision to have turkey at Thanksgiving. Nguyen is distinguishable.

Finally, appellant challenges the prosecutors comment that the beyond-a-reasonable-doubt standard was intended for the innocent, not the guilty. Appellant contends the jurors would have interpreted this comment to mean that if they believed appellant was guilty, they should convict him irrespective of whether they found proof beyond a reasonable doubt. However, the prosecutor did not tell the jurors they should convict appellant if they believed he was guilty regardless of what standard they were obligated to apply. It is not reasonably likely the jurors interpreted the prosecutors comment as appellant suggests.

We conclude the prosecutor did not commit prejudicial misconduct.

III. DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Gemello, J.

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^[1] Unless otherwise indicated, all further section references will be to the Penal Code.

^[2] Evidence Code section 1101 states:

(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.

(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.

^[3] Appellant does not contend that the evidence in question was inadmissible under any of the provisions set forth in Evidence Code sections 786 to 790.

^[4] Appellant has notargued that even if the court could properly admit the evidence to support the credibility of Pierce and Thompson, the court should have excluded it under Evidence Code section 352. We decline to develop an argument for appellant on this point. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)

^[5] In his reply brief, appellant argues his trial counsel was ineffective because he failed to request a limiting instruction. We do not address arguments that are raised for the first time in a reply brief. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)

^[6] The jurors were instructed with CALJIC No. 2.90 as follows: A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether the persons guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption is to place upon the state the burden of proving him guilty beyond a reasonable doubt. [] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.