P. v.
Filed 9/6/12 P. v. Franklin CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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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.
DAMON L. FRANKLIN,
Defendant and Appellant.
B232449
(Los Angeles
County
Super. Ct.
No. GA071789)
APPEAL from a judgment of the Superior Court of
County, Suzette Clover, Judge.
Modified, and as modified, affirmed.
Mark S. Givens, 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,
Steve D. Matthews and Roberta L. Davis, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury
found defendant and appellant Damon L. Franklin guilty of attempted murder,
being a felon in possession of a firearm,
and criminal threats. The jury also
found true gun and gang allegations.
Defendant contends on appeal that the trial court abused its discretion
by excluding evidence he was not the shooter and by admitting certain gang
evidence. We reject these contentions
but modify the judgment to correct defendant’s sentence. We affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. 2002: Defendant and Coleman fight in
In 2002,
Kevin Eugene Coleman and defendant were housed together for about six to seven
weeks in Ironwood State Prison. Coleman
was a member of the Pasadena Denver Lanes, a Blood gang, and defendant was a
member of the Raymond Avenue Crips.
While in prison, Coleman and defendant had a pre-arranged “cell fight”
outside the presence of guards. Coleman
thought he had the upper hand in the fight.
B.
2007: Coleman is threatened.
Five years
later, defendant and Coleman were no longer in prison. On the morning of June 7, 2007, Coleman was at Jim’s Burger, a known
Blood hangout, in Altadena. Coleman was talking to Ricky Pickens, a gang
specialist for the Pasadena Police Department, when defendant drove up in a
teal or blue car owned by his girlfriend.
gang signs, made his fingers into a gun figure and “ ‘pulled’ ” the
trigger, and yelled at defendant, “ ‘I’m going to kill you, cuz.’ ” Concerned, Coleman left.
C.
2007: Coleman is shot.
On June 12, 2007, five days after seeing
defendant at the burger stand, Coleman was at home at 1675 Marengo. He walked outside and was shot multiple
times. At the hospital, Coleman told his
aunt and the police that Tank (defendant’s moniker) from Raymond Avenue Crips
shot him.
On the same
day Coleman was shot, his neighbor, Gwendolyn Hall, who witnessed the shooting,
identified defendant as the shooter from a photographic six-pack.
After his
hospitalization, Coleman returned to 1675 Marengo for nine months to
recuperate, but he hasn’t been to the house since then. Getting shot changed Coleman’s life, causing
him to renounce his gang lifestyle. A
year after the shooting, he gave a class to gang officers about gangs.
D. June
2007: Defendant’s mother finds a gun in
her house.
In June
2007, defendant lived with his mother.
She found a gun in her dresser.
Defendant admitted at trial that the gun was his.
E. Gang
evidence.
Coleman belongs to a Blood gang, the Pasadena Denver
Lanes, and he was an “Original Gangster” or “O.G.” Coleman testified that he was jumped into the
gang when he was 12, and that his gang’s main rivals are the Altadena Block
Crips and the Raymond Avenue Crips.
Los Angeles Sheriff’s Department Detective Joel Nebel
testified as the People’s gang expert.
The Raymond Avenue Crips has over 200 documented members, and the gang’s
primary activities range from loitering and public drinking to murder and
attempted murder. The color blue is
associated with the gang. Defendant is a
Raymond Avenue Crip, and his moniker is Tank or Little Tank. He has gang tattoos, including the letters
“R” and “C” and “BK” for Blood Killer.
Detective Nebel also testified that the Altadena Block
Crips and Raymond Avenue Crips have a violent relationship with the Pasadena
Denver Lanes Bloods. From January 2006
to the end of December 2006, there were a lot of shootings between the Crips
and Pasadena Denver Lanes Bloods, and 2007 was about the same. Officers believe that the catalyst for the
violence was the murder by Crips of a respected Pasadena Denver Lanes Bloods
member, Draper Manning, in January 2006.
Thereafter, on Manning’s birthday, June 4, 2007, Laron Brown, a Crip, was shot and killed by,
it is believed, a Pasadena Denver Lane. That same day, June 4, 2007, a Crip shot a Pasadena Denver Lanes
member in the arm. The next day, Crips
drove by a well-documented Blood hangout and shot Michael Pugh, a Blood, in the
arm. Three days later, on June 7,
defendant threatened Coleman at Jim’s Burgers, and five days after that,
Coleman was shot.
According to Detective Nebel, respect means everything to
gang members. To gain respect, gang
members must “put in work,” which can be making money for the gang, and
fighting and killing rival gang members.
A gang member gets more respect for putting in violent work, and most of
the Original Gangsters have a violent history.
II. Procedural background.
On January
25, 2010, a jury found defendant guilty of count 1, deliberate, willful and
Code, §§ 187, subd. (a), 664);
name="_ftnref4" title="">[4]
count 2, possession of a firearm by a felon (former § 12021, subd.
(a)(1));
and count 3, criminal threats (§ 422).
The jury also found true gang allegations under section 186.22,
subdivision (b)(1)(C), as to counts 1 and 3, and gun-use allegations under
section 12022.53, subdivisions (b), (c), and (d), as to count 1.
On February
17, 2011, the trial court sentenced defendant, on count 1, to 15 years to life
in prison, doubled to 30 years based on a prior strike that the court found
true, plus 25 years to life for the gun enhancement. The court sentenced him, on count 3, to a
consecutive two years, doubled to four years, plus five years for the prior
serious felony (§ 667.5). The court
imposed and stayed the sentence on count 2.
The court gave defendant 1,513 days of
DISCUSSION
III. The trial court did not abuse its
discretion by excluding evidence defendant was not the shooter.
Defendant
contends that the trial court abused its discretion by excluding evidence the
victim, Coleman, said defendant was not the shooter. We disagree with this contention, because the
court never made an order excluding the evidence.
Only
relevant evidence is admissible. (Evid.
Code, § 350.) “ ‘Relevant evidence’
means evidence, including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; see also
642; People v. Mills (2010) 48
Cal.4th 158, 193; People v. Williams
(2008) 43 Cal.4th 584, 633-634.)
Relevant evidence, however, may be excluded, in the trial court’s
discretion, 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.
(Evid. Code, § 352; Lee, at p.
643.) A trial court has broad discretion
in determining whether evidence is relevant and whether Evidence Code section
352 precludes its admission. (
apply the abuse of discretion standard to a trial court’s rulings on the
admissibility of evidence, including those turning on the relevance or
probative value of the evidence in question.
(Lee, at p. 643.)
Gwendolyn
Hall was defendant’s neighbor and a percipient witness to the shooting. Before she testified, defense counsel
disclosed that Hall told him about a conversation she had with Coleman, who
said he couldn’t testify truthfully about who shot him because the real shooter
was a criminal confederate who could implicate Coleman in criminal conduct and
send him to prison. The trial court
said, “[o]bviously, that’s not hearsay and could go to Mr. Coleman’s
credibility, depending on what she ultimately says.” But because Hall had already proven to be a
volatile witness prone to making inconsistent statements, the court asked
defense counsel to make an offer of proof as to what Hall would testify.
Hall
therefore testified at an Evidence Code section 402 hearing (402 hearing) that
while she was on a three-way call with her uncle and Coleman, Coleman said he
didn’t know who shot him and he’d lied because he didn’t want to go to
jail. Believing that her uncle was
behind the call, Hall told her uncle she would have him put in jail for witness
tampering.
trial court and counsel had an extended conversation about what portions of
Hall’s testimony were admissible. At no
time during that proceeding did the parties expressly discuss Coleman’s
statement to Hall that defendant wasn’t the shooter. At no time did the trial court make an
express ruling that Hall’s testimony about Coleman’s statement was inadmissible.
Defendant,
however, appears to rely on this admonishment the trial court gave to Hall
before she testified: “Miss Hall, I need
to remind you that you are not going to talk about anything about your
uncle.” In the context of the entire
proceedings involving Hall, however, the court was clearly referring to Hall’s
accusation that her uncle, in setting up the three-way call with Coleman, was
tampering with a witness. Thus, the
court said that “[t]he stuff about why she lied and the uncle is not relevant.” The court did not say that Coleman’s
statements made during that three-way call about the shooter were
irrelevant. In fact, the court had
previously clearly said that the statements were not hearsay and went to
Coleman’s credibility. The court never
said anything to the contrary.
We conclude that the trial court
did not exclude Hall’s testimony about Coleman’s statement. Therefore, the court neither abused its
discretion nor deprived defendant of any federal
evidence.
IV. Gang evidence.
Next, defendant contends that
the trial court abused its discretion by failing to exclude excessive gang
evidence that was irrelevant and unduly prejudicial and amounted to improper
propensity evidence. We disagree that
the trial court abused its discretion.
A.
Evidence of warfare between Bloods and Crips
and defendant’s tattoos.
The prosecutor sought to introduce
a “multi-page printout” delineating a history of various gangs and the warfare
between Bloods and Crips. Defense
counsel objected under Evidence Code section 352. After discussing the matter and agreeing that
some of evidence was cumulative, the prosecutor suggested limiting the time
frame to two months before the shooting through June 20, 2007 and to seven
incidents. The trial court found that
the probative value of that evidence outweighed any prejudice and admitted the
evidence and a timeline of the seven incidents.
(Peo. Ex. 15.)
Detective Nebel then testified
about the gang warfare between the Raymond Avenue Crips (defendant’s gang) and
the Pasadena Denver Lanes (Coleman’s gang).
In January 2006, Crips killed Draper Manning, a Blood. On Manning’s birthday, June 4, 2007, Pasadena
Denver Lane killed Laron Brown. That
same day, a Crip shot a Pasadena Denver Lanes member in the arm. The next day, Crips shot a Blood in the
arm. Three days later, on June 7,
defendant threatened Coleman at Jim’s Burgers, and five days after that,
Coleman was shot.
Detective Nebel also testified
about defendant’s tattoos and their significance.
2. Defendant’s testimony.
Defendant
testified in his defense. On direct
examination, defendant testified he was a member of the Raymond Avenue Crips
and thought of himself as a current member “to some extent.” He joined the gang when he was 16 or 17, and
he associated primarily with Crips while in prison. On June 12, 2007, the day Coleman was shot,
defendant was at Huntington Memorial Hospital, unaware Coleman was in the emergency
room. Defendant encountered Blood gang
members, and when Detective Okamoto responded to the scene, defendant told the
detective he was a member of Raymond Avenue Crips. Officer Michael Gligorijevic, however,
testified that defendant told him at the hospital that he was an ex-gang member.
On
cross-examination, the prosecutor asked defendant what gang members do when
they hang out, how he became a Raymond Avenue Crip, the color of clothing he
wore, why and how gang members put in work, and about his tattoos. Defense counsel objected to the questioning,
describing it as only marginally relevant, given that defendant wasn’t denying
he was almost a lifelong Raymond Avenue Crip.
The prosecutor said he would question defendant a little more about his tattoos
and how they relate to defendant’s intent.
The trial court cautioned the prosecutor not to extend his questions to
past bad acts. Defense counsel argued,
that the “stress being laid on gang membership is inherently prejudicial and
involves the concept of guilt by association that courts and the Legislature
has permitted under [section] 186.22 legislation.” He therefore “federaliz[ed]” his
objection. The court told the prosecutor
he could go into the areas he had talked about but to move it along.
On resuming
cross-examination of defendant, the prosecutor asked defendant about the “B”
and “K” tattooed on his shoulders and the “R” and “C” on his calves. The “B” and “K” stand for Blood Killer, and
the “R” and “C” stand for Raymond Crips.
The prosecutor asked about respect, and whether respect is a form of
currency on the streets. He asked
whether putting in work includes shooting a rival.
B. The
trial court did not abuse its discretion by refusing to exclude the gang
evidence.
Defendant
contends that this evidence should have been excluded, under Evidence Code
section 352, because it was irrelevant and unduly prejudicial. We disagree.
“Gang
evidence is admissible if it is logically relevant to some material issue in
the case other than character evidence, is not more prejudicial than probative,
and is not cumulative. [Citations.] . . . .
[¶] However, gang evidence is
inadmissible if introduced only to ‘show a defendant’s criminal disposition or
bad character as a means of creating an inference the defendant committed the
charged offense. [Citations.]’ [Citations.]”
(People v. Avitia (2005) 127
Cal.App.4th 185, 192-193 (Avitia);
see also People Williams (1997) 16
Cal.4th 153, 193.) Even where relevant,
gang evidence should be carefully scrutinized before it is admitted because it
may have a highly inflammatory impact on the jury. (Avitia,
at pp. 192-193.) A trial court’s
admission of evidence, including gang testimony, is reviewed for abuse of
discretion. (People v. Brown (2003) 31 Cal.4th 518, 547.) The trial court’s ruling will not be
disturbed in the absence of a showing it exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a miscarriage
of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
Although
defendant concedes here that some gang evidence was admissible, he argues that
the evidence introduced was excessive.
But where, as here, the case is gang-related and a gang enhancement is
alleged, gang evidence is admissible if relevant to motive or identity, so long
as its probative value is not outweighed by its prejudicial effect. (People
v. Williams, supra, 16 Cal.4th at p. 193; People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [“But
evidence of gang membership is often relevant to, and admissible regarding, the
charged offense. Evidence of the
defendant’s gang affiliation—including evidence of the gang’s territory,
membership, signs, symbols, beliefs and practices, criminal enterprises,
rivalries, and the like—can help prove identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues pertinent to
guilt of the charged crime”]; People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1167 [“Gang evidence is relevant and
admissible when the very reason for the underlying crime, that is the motive,
is gang related”].)
The history
of warfare between the Pasadena Denver Lanes and the Raymond Avenue Crips was
relevant to establish a motive for the shooting of Coleman. To prove this motive and intent for the
shooting, the prosecutor introduced evidence that the two men fought while in
prison together, for no apparent reason other than they were from rival
gangs. Detective Nebel testified that
the rivalry between the two gangs intensified when Crips shot a prominent Blood
member in 2006. That shooting gave rise
to subsequent incidents in 2006 and 2007, including the June 7, 2007 criminal
threats to Coleman and the June 12, 2007 shooting of Coleman. Placing the shooting in this context
explained why defendant would shoot Coleman.
The risk of
undue prejudice was minimized by the trial court’s careful consideration of the
proposed evidence. Although the prosecutor initially asked to
introduce a more extensive history of the rivalry between the Crips and Bloods,
the court limited the evidence in time and in scope—to a period of about one
year before Coleman’s shooting to the date of his shooting and to seven
incidents, including the criminal threats made to Coleman and the shooting of
Coleman. Detective Nebel’s testimony
about those incidents were limited to the bare facts, and there was no
suggestion defendant was involved in any incident other than those concerning
Coleman.
Defendant’s
argument that his concession of membership in the Raymond Avenue Crips rendered
evidence of his gang tattoos irrelevant ignores his attempt at trial to
downplay the nature of his gang membership.
Defendant testified that at the time Coleman was shot, he (defendant)
was a member of Raymond Avenue Crips only “to some extent.” He also suggested that “BK” and “RC” tattoos
are common. Those tattoos, however, were
relevant to his active status in the gang.
Therefore, even though the defense stipulated that photographs of
defendant accurately depicted his tattoos, that stipulation did not render the
prosecutor’s questions about the tattoos unnecessary or unduly prejudicial.
Given that
the crimes at issue were possibly connected to a concerted effort to intensify
the war between the Raymond Avenue Crips and the Pasadena Denver Lanes, we
cannot say that the trial court abused its discretion by admitting evidence of
that warfare or of defendant’s active status in the gang. (Cf.
Avitia, supra, 127 Cal.App.4th 185 [it was an abuse of discretion to admit
gang evidence where there was no gang allegation or evidence the crime was
gang-related]; People v. Bojorquez (2002)
104 Cal.App.4th 335 [gang evidence was admissible on the limited issue of bias,
and the trial court abused its discretion by admitting wide-ranging gang
evidence].)
Defendant also contends that the introduction
of “excessive” gang evidence violated his federal constitutional right to a
fair trial. (See, e.g.,
70; People v. Albarran (2007) 149
Cal.App.4th 214.) In
connection with a shooting. Gang
evidence was admitted to establish motive and intent with respect to the
underlying charges and to prove gang-enhancement allegations. After a jury found Albarran guilty of the
charges, the trial court found there was insufficient evidence to support the
true findings on the gang-enhancement allegations and granted Albarran’s new
trial motion on that issue. The Court of
Appeal found that the trial court should have granted the motion in its entirety,
namely, as to the underlying charges as well as to the gang allegations,
because admission of the gang evidence rendered the trial fundamentally
unfair. (Id. at pp. 227-232.) In
contrast to Albarran, we have found
that the gang evidence was properly admitted.
There was no improper or excessive use of highly inflammatory evidence
and no undue prejudice.
V. The gang expert’s
testimony.
Defendant
next contends that the prosecutor, in asking the gang expert hypothetical
questions that closely tracked the facts of the case, improperly elicited
testimony from the expert on the ultimate issue. Based on recent California Supreme Court
authority, we reject this contention.
Generally,
an expert may render opinion testimony on the basis of facts given in a
hypothetical question that asks the expert to assume their truth. (People
v. Gardeley (1996) 14 Cal.4th 605, 618.)
“It is required, not prohibited, that hypothetical questions be based on
the evidence.” (People v. Vang (2011) 52 Cal.4th 1038, 1041, see also
questions must be rooted in the evidence of the case being tried, not some
other case”].) And although an expert’s
opinion on a defendant’s guilt or innocence is inadmissible because it is of no
assistance to the trier of fact, testimony in the form of an opinion that is
otherwise admissible is not objectionable because it embraces the ultimate
issue to be decided by the trier of fact.
(Id. at p. 1048.) The jury still must determine whether to
credit the expert’s opinion at all and whether the facts in the hypothetical
questions are actual facts. (
Here, the
prosecutor asked hypothetical questions of the gang expert that closely tracked
the facts of the case:
“[The
prosecutor]: . . . I want you to assume a hypothetical. An individual is driving a teal-colored
car. Person driving the car is wearing a
blue bandana identified as a Crip gang member.
He drives up to Jim’s Burger, pulls up, and threatens an O.G. Blood
gangster there. O.G. gangster gets into
his car and leaves. Is that
disrespectful to the Blood gang
“[Detective
Nebel]: Yes; very disrespectful.
“[The
prosecutor]: Why is that
“[Detective
Nebel]: As part of the intimidation that
gangs have is they will drive around and drive into known gang member or
rivals’ territories and try to provoke incidents and/or just taunt at the
enemy.”
The
prosecutor later asked:
“[The
prosecutor]: I’ll take you back to my
earlier hypothetical. I want you to
assume there is a known Blood hangout.
An individual rolls up with the Crib rag around his neck, drives up,
points to an O.G. Blood, and threatens to kill him. Is that threat against an O.G. Blood for the
benefit of the gang
“[Detective
Nebel]: Yes, it is.
“[The
prosecutor]: How does that act benefit
the gang
“[Detective
Nebel]: Based on the fact that the
individual is first of all telling him and causing the fear or intimidation
that he’s giving him, that benefits him and benefits the gang in general as the
fear can continue.
“[The
prosecutor]: I want you to assume
another hypothetical. Assume there is an
O.G. Blood gangster at his home. Assume
that a Crip comes up to his home, goes up to him, shoots him six times, and he
survives. Is the act of going up to the
Blood gangster and shooting him at his home, is that benefitting or done for
the benefit of the Crip gang
“[Detective
Nebel]: Yes.
“[The
prosecutor]: What are you basing that
opinion on
“[Detective
Nebel]: Also based on the fact that the
individual is a Crip. He goes to a
Blood’s rival’s house. It’s benefiting
the gang on the fact that he was able to put work in on one of the enemies and
benefited the Crips by getting the notoriety of having that crime. It also instills fear in the community which
also benefits the Crips in the fact that they gain respect that way. So it also benefits them in that sense.”
Under
proper. In Vang, the only differences between the trial testimony and the
hypothetical were the parties’ names:
the prosecutor called the victim a “ ‘ “young baby
gangster” ’ ” instead of his name and referred to the four defendants
as “ ‘ “three baby gangsters and one O.G.” ’ ” (People
v. Vang, supra, 52 Cal.4th at p. 1045.)
“Hypothetical questions must not be prohibited solely because they track
the evidence too closely, or because the questioner did not disguise the fact
the questions were based on the evidence.”
(Id. at p. 1051.) The prosecutor’s questions here were posed in
the form of hypotheticals. The facts in
the hypothetical questions were based on the evidence. There was evidence, for example, that the man
who threatened Coleman at Jim’s Burgers drove a teal car and wore a blue
bandana, that Coleman was an “O.G.,” and that Coleman was shot multiple
times. The hypothetical questions were
therefore appropriate.
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In attacking the propriety of the
hypothetical questions, defendant appears to suggest we should rely on Justice
Werdegar’s concurrence in Vang
stating that although an expert may properly testify on gang culture and
practices, expert opinion is generally not necessary to explain how a crime
might be gang-motivated. (
1052-1055 [conc. opn. of Werdegar, J.].)
We are, however, bound by the majority opinion in Vang. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
VI. Custody credits.
The trial
court found that defendant had 1,513 days of custody credit: 1,344 actual days plus 169 days of
good-time/work-time. Defendant, however,
was arrested on June 20, 2007 and presumably booked that day. He was sentenced on February 17, 2011. The actual days of custody therefore is
1,339. Fifteen percent of 1,339 is 200,
and, adding those numbers is 1,539. (§
2933.1.) Defendant is entitled to a
total of 1,539 days of credit. (§
2900.5, subd. (a); People v. Ravaux (2006)
142 Cal.App.4th 914, 919-921 [a defendant is entitled to credit for the day he
was booked through and including the day he was sentenced].)
DISPOSITION
The
abstract of judgment is modified to reflect 1,539 days of credit. The clerk of the superior court is ordered to
modify the abstract of judgment and to forward the modified abstract of
judgment to the Department of Corrections. The judgment is otherwise affirmed as
modified.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ALDRICH,
J.
We concur:
KLEIN, P. J.
KITCHING, J.
Coleman identified defendant as the driver of the car, Pickens testified at
trial that he did not know whether defendant was the driver.
initially did not make an identification from gang photographs officers showed
her, although she thought one man had features similar to the shooter. Defendant wasn’t in the gang books she was
shown.
