P. v. Flowers

Filed 1/22/09 P. v. Flowers CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed.

Rico Flowers appeals from a judgment convicting him of murder and shooting at an occupied motor vehicle, with true findings on enhancements for discharging a firearm causing death and committing a felony for the benefit of a gang. He contends his due process rights were violated because the trial court instructed the jury that it could consider evidence of gang activity when evaluating witness credibility. We reject his argument and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of December 11, 2005, Marshanae Johnson, Damien Carmichael, David Larkins, Enchante Turner, and Tyneisha Richards were sitting in a vehicle parked in the parking lot of the Bay Vista Apartments in San Diego. A man approached the car and started shooting. Johnson was shot and killed by the bullets.

Flowers, age 15, and Darrell Brown, age 26, were charged with the crime. Brown and Flowers were members of the Skyline gang. The Bay Vista Apartments were located in the territory of the rival Lincoln Park gang, and two occupants of the vehicle (Carmichael and Larkins) were Lincoln Park gang members.

Three of the vehicle occupants made statements identifying Flowers as the shooter. Carmichael told vehicle occupant Turner that the shooter looked like Flowers, and told a detective (in a recorded interview) that both he and Larkins thought the shooter was Flowers. Larkins told his girlfriend (Marilyn Johnson) that the shooter was " 'Rico from Skyline,' " and told the victim's cousin (Anthony Saunders) that he recognized the shooter as Flowers.[1] Richards (who did not know Flowers) recognized Flowers in a

pretrial lineup, and also identified him at trial as the shooter.[2]

Circumstantial evidence and admissions by Flowers also tied Flowers to the shooting. Darnell Moore, who had been riding in a car with Flowers and Brown on the night of the shooting, testified that at one point in the early morning hours he had fallen asleep in the back seat. When he woke up, the car was parked on a street behind the Bay Vista Apartments. Brown (who had been driving) was sitting in the driver's seat, but Flowers was not in the car. Moore did not hear any gun shots and did not know what occurred while Flowers was gone. When Flowers returned to the car, Brown drove them to their homes. Later that same morning, Flowers called Moore and stated that he shot some girl in a car who he thought was Moore's sister, and suggested that Moore check. Moore's sister was dating a man from the Lincoln Park gang and was a frequent visitor at the Bay Vista Apartments complex. Moore checked and found his sister asleep in their mother's bedroom.

Sometime after 10:00 p.m. on December 11, 2005, Flowers left on a Greyhound bus and went to his sister's home in Virginia. On December 16, 2005, he turned himself in to the police in Virginia. When interviewed by the police in San Diego, Flowers denied going to the Bay Vista Apartments, denied being a Skyline gang member, and denied killing Johnson. However, Flowers acknowledged he might have had disputes with Carmichael in the past.

The prosecution presented additional evidentiary items suggesting Flowers's guilt, including Flowers's failure to deny a statement made by another Skyline gang member to Flowers that Flowers had " 'shot a fucking female,' " and Flowers's statements in a letter to a friend detailing the " 'story' " he was going to tell the police.

Flowers presented a mistaken identity defense, pointing out weaknesses in the prosecution's identification evidence and presenting, inter alia, evidence suggesting the witnesses may have seen a third party who resembled him commit the shooting.

Flowers was tried as an adult and found guilty of first degree murder and shooting at an occupied vehicle, with true findings on firearm discharge and gang enhancements.[3] He was sentenced to an indeterminate term of 50 years to life, consisting of 25 years to life for first degree murder and 25 years to life for the enhancement of discharging a firearm causing death.

DISCUSSION

Flowers contends the trial court's instruction to the jury that it could consider evidence of gang activity when evaluating the credibility of a witness violated his due process rights.

Using the language of CALCRIM No. 1403, the trial court instructed the jury on the purposes for which it could use evidence of gang activity, stating as follows:

"You may consider evidence of gang activity only for the limited purpose of deciding whether the defendants acted with [the] intent, purpose, [and] knowledge that are required to prove the gang-related crimes and allegations charged; [or] that the defendants had a motive to commit the[] crimes charged. You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching that expert's opinion. [] You may not consider this evidence for any other purpose. You may not conclude [from this] evidence[] that a defendant is a . . . person [of] bad character or has a disposition to commit crime." (Italics added.)

Flowers asserts that instructing the jurors that they could consider the evidence of gang activity (which includes the act of joining a gang) to evaluate a witness's credibility in effect told them they could reject a witness's testimony solely because of the witness's gang membership. He contends that because mere gang membership is not a crime (People v. Rodriguez (1993) 21 Cal.App.4th 232, 239), standing alone it does not show the moral turpitude required to make witness misconduct evidence relevant for general impeachment. (See People v. Wheeler (1992) 4 Cal.4th 284, 289, 295-296 [impeachment based on evidence of witness's misconduct limited to conduct that involves moral turpitude (i.e., readiness to do evil), thereby supporting inference of willingness to lie].)

Accordingly, Flowers argues the instruction stating that gang activity evidence could be used to evaluate witness credibility was overbroad, and the jury should have been given a limiting instruction stating that it may not reject testimony simply because it came from a gang member. He asserts the instruction violated his due process right to present a defense because statements supporting his mistaken identify defense (made by Larkin and Carmichael in their trial testimony and by himself during the police interview) were made by gang members and the instruction permitted jurors to reject this testimony based solely on gang membership.

Generally, evidence is admissible to attack witness credibility if "it will establish a fact that has a tendency in reason to disprove the truthfulness of the witness's testimony." (People v. Humiston (1993) 20 Cal.App.4th 460, 479; see People v. Wheeler, supra, 4 Cal.4th at p. 291.) As acknowledged by Flowers, it is well established that gang membership evidence may be used to evaluate witness credibility when the gang membership is relevant on such issues as the witness's fear or bias. (See, e.g., People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450 [evidence of defendant's gang membership relevant to show witness's fear of retaliation for making statements against defendant]; People v. Ruiz (1998) 62 Cal.App.4th 234, 239-241 [evidence of common gang membership between defendant and third party who made statement exculpating defendant relevant to show third party's bias in favor of defendant].)

Thus, the statement in CALCRIM No. 1403 that the jury may consider the gang activity evidence to evaluate witness credibility was a correct statement of the law. Further, the instruction was pertinent to witness credibility issues in this case, including the reluctance or refusal of witnesses to make statements against Flowers, which the jury could infer was generated by a fear of gang retaliation or a bias in favor of gang members.[4] This use of gang membership evidence for impeachment is relevant because the gang membership creates a reason why the witness might be untruthful. This is distinct from general impeachment of a witness based on the witness's misconduct and is not subject to the moral turpitude relevancy requirement.

Defense counsel did not request that CALCRIM No. 1403 be amplified to advise the jury that the mere fact that a witness is a gang member may not be used as misconduct evidence to infer that the witness has a willingness to lie. Generally, when a trial court correctly instructs the jury on the law, it has no sua sponte duty to give clarifying or limiting instructions. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051; People v. Richardson (2008) 43 Cal.4th 959, 1022-1023.) Accordingly, defense counsel's failure to request a clarifying or limiting instruction forfeits the issue on appeal. (People v. Richardson, supra, at pp. 1022-1023.)

Flowers requests that we nevertheless exercise our discretion to review the instruction because it involves important due process rights, or because his counsel provided ineffective representation by failing to object to the instruction. Even reviewing the instruction on the merits, we find no error.

In deciding whether an instruction is erroneous, we inquire whether there is a reasonable likelihood the jury understood the instruction in a way that violates the Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) We presume the jurors use intelligence and common sense when applying an instruction. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1396.) We do not evaluate the instruction in isolation, but rather view it in the context of all the instructions. (People v. Frye, supra, 18 Cal.4th at p. 957.)

The jury was given several instructions related to its task of evaluating witness credibility, including CALCRIM No. 226, CALCRIM No. 316, and CALCRIM No. 1403. CALCRIM No. 226 told the jury that it should use its common sense and experience when judging the credibility of a witness, and that it could consider anything that tends to prove or disprove the truth of the witness's statements, including, inter alia, such factors as whether the witness's testimony was influenced by a bias; the witness's attitude about the case; whether the witness made prior inconsistent statements; and whether the witness had engaged in conduct that reflected on his or her believability. CALCRIM No. 316 told the jury that if it found a witness has committed a crime or other misconduct, it could consider that fact only to evaluate the witness's credibility; the crime or misconduct does not necessarily destroy or impair the witness's credibility; and the jury should decide what weight to give the evidence.[5] Finally, the complained of instruction, CALCRIM No. 1403, told the jury that it could consider the evidence of gang activity when evaluating witness credibility.

There is nothing in these instructions that suggests the jurors should consider gang membership in a vacuum to conclude that a witness is not telling the truth merely because he or she is a gang member. To the contrary, the instructions advised the jury to evaluate witness credibility based on a wide variety of factors that could tend to prove or disprove a witness's testimony. (CALCRIM No. 226.) Further, the jury was told that other misconduct does not necessarily mean a witness is untruthful, and it should determine how much weight to give the misconduct evidence. (CALCRIM No. 316.) With these instructions, the jury would know it could not automatically conclude a gang member lacks veracity, but rather it must scrutinize the testimony in a manner that considered all relevant matters that might affect honesty or dishonesty. Indeed, the prosecution, as well as the defense, used statements from gang members to support their respective cases.

Thus, it is not likely the jury thought it could resolve credibility issues merely by relying on the fact of a witness's gang membership.

Further, assuming gang membership alone may not be used as general impeachment evidence based on a witness's misconduct, we are satisfied the jurors did not interpret CALCRIM No. 1403 in this fashion. First, there is nothing in CALCRIM No. 1403's statement that the jurors could consider the evidence of gang activity to evaluate credibility that explicitly stated they could discredit a witness based on the mere fact of gang membership. Likewise, CALCRIM No. 316the instruction that tells the jury how to evaluate a witness's credibility based on the witness's misconductmade no reference to gang membership alone as constituting misconduct relevant to impeachment. Additionally, based on the language of CALCRIM No. 226, the trial court told the jurors that they could evaluate credibility based on "anything that has a tendency and reason to prove or disprove the truthfulness" of a witness's statements.[6] (Italics added.) From this latter instruction, the jurors would have understood that to infer a witness was not being truthful based on a particular fact about the witness, there needed to be some reason why that fact would cause the witness to be untruthful.

Viewing the instructions as a whole, we are satisfied that absent express instruction (which did not occur here), the jury would not have on its own interpreted the instructions to mean that it could properly use gang membership alone as misconduct evidence supporting an inference of a willingness to lie. Rather, the jury would have understood that unless there was a logical reason why gang membership caused a witness to be untruthfulsuch as the witness's bias, fear, or other factor providing a reason to liethere was no basis to infer from the mere fact of gang membership that the witness's testimony was not credible.

In sum, the jurors were not told they could reject a witness's testimony simply because the witness was a gang member. Rather, the jurors were instructed they could consider any factors that tended to prove or disprove the witness's testimony. Under this instruction, the jurors would not have applied the evidence of gang membership to reject a witness's testimony unless the gang membership created a proper basis to find that the witness had a reason to lie. Flowers's contention of instructional error fails.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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[1] At trial both Carmichael and Larkins recanted their pretrial identifications, claiming they were unable to identify the shooter. Saunders also recanted at trial, testifying that Larkins did not identify Flowers as the shooter. Johnson testified that she knew a person named Rico who was in the Skyline gang, but that this person was not one of the defendants in court. However, she stated she did not know which person Larkins was referring to when he stated " 'Rico from Skyline.' "

[2] Richards did not initially identify a person at the pretrial live lineup as being the shooter, although she noted similarities between some of the men at the lineup (including Flowers) and the shooter. She later contacted the authorities and stated she had recognized a man at the lineup (Flowers) as the shooter, but she had been afraid to make the identification because she felt like the men in the lineup could see her.

[3] Brown was also found guilty of first degree murder.

[4] There were several witnesses who initially failed to disclose information to the authorities or changed their statements at trial, and the jury could properly consider whether Flowers's gang membership and/or the witness's gang membership contributed to these inconsistencies, either because of fear of gang retaliation or bias in favor of a gang member. For example, Moore described threats he received and his fear of retaliation for being a "snitch," and acknowledged he did not initially tell the authorities about the phone call from Flowers where Flowers admitted shooting a girl. Carmichael and Larkin at times told the authorities they could not identify the shooter, and at trial denied that they could identify the shooter and acknowledged they could be labeled a "snitch" for "tell[ing]" on someone. At trial Saunders denied that he told the authorities that Larkins stated Flowers was the shooter. Richards testified that she failed to identify Flowers at the lineup because she was afraid.

[5] Based on the language of CALCRIM No. 316, the jury was told: "If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating a witness's credibility. The fact of a felony conviction does not necessarily destroy or impair a witness's credibility. It's up to you to decide what weight you are going to give that fact in making a determination as to whether or not a witness is credible. [] If you find that a witness has committed any crime or other misconduct, you may consider that fact only in evaluating the credibility of a witness's testimony.Thefact that a witness may have committed a crime or other misconduct doesn't necessarily destroy or impair a witness's credibility. It's up to you to decide what weight you are going to give those particular facts." (Italics added.)

[6] The trial court slightly modified the standard language of CALCRIM No. 226, which states: "[Y]ou may consider anything that reasonably tends to prove or disprove the truth or accuracy of [a witness's] testimony."