P. v. Gwin
Filed 8/15/12 P. v. Gwin CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
GEVONTE
GWIN,
Defendant and Appellant.
B230533
(Los Angeles County
Super. Ct. No. VA101332)
APPEAL from a judgment of the Superior
Court of Los
Angeles County, Eleanor J. Hunter, Judge.
Affirmed.
John A. Colucci, 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, Victoria B. Wilson and Viet H. Nguyen, Deputy Attorneys
General, for Plaintiff and Respondent.
Appellant Gevonte Gwin was charged
with five counts arising from three separate incidents: count 1, discharge of a firearm with gross
negligence on May 5, 2007 (Pen. Code § 246.3, subd. (a))
count 2, murder of Lashaun Menefee on September 2, 2007 (§ 187, subd.
(a)); count 3, attempted murder of Darryl Penniman on October 14, 2007
(§ 664/187, subd. (a)); count 4, assault with a firearm on Penniman
(§ 245, subd. (a)(2)); and count 5, discharge of a firearm with gross
negligence on October 14, 2007 (§ 246.3, subd. (a)). The information included firearm allegations
(§§ 12022.5, 12022.53, subds. (b), (d)) and criminal street gang
allegations (§§ 186.22, subds. (b)(1)(A), (B), & (C)).
The jury found appellant guilty of
counts 1, 2, and 3, and not guilty of counts 4 and 5. The jury found the murder of Menefee to be in
the first degree and the attempted murder of Penniman to be willful,
premeditated, and deliberate. The
firearm and gang allegations were found to be true. The trial court sentenced appellant to 40
years to life on count 3, a consecutive term of 50 years to life on count 2,
and a consecutive two-year term on count 1.
This appeal followed.
BACKGROUND
Count 1: Discharge of a Firearm with Gross Negligence,
Denny’s, May 5, 2007
On May 5, 2007, around 1:00 a.m.,
Kolena Simmons was working as a server and hostess at a Denny’s restaurant in
the city of Lakewood. A group of four or
five young African-American men entered the restaurant, talking loudly and
using profanity. Simmons asked if they
could “keep it down” because it was a family restaurant. They agreed, but then continued to be
loud. The manager asked them to
leave. Many of the restaurant patrons
were leaving because the group was so loud.
As Simmons watched the men leave, one
of them, whom she identified as appellant, pulled something out and raised his
hands in the air. Appellant was outside at the time, between the restaurant
and parking lot. Simmons then heard two
gunshots. She ducked under a counter,
waited a few seconds, and then looked to see if appellant was still there. He was still there, but he no longer had the
gun in his hands.
Kamilah Dennis was at the Denny’s with
some friends and family members. While
waiting, she heard a loud pop, and her cousin yelled that someone had a
gun. Dennis saw a young African-American
man with braids, a purple T-shirt, and jeans.
He held a gun in his hand, pointed toward the ground.
Los Angeles County Deputy Sheriff
Michael Varvais was nearby, heard gunshots, and immediately drove to the
Denny’s. Other units soon arrived. Simmons pointed out appellant to Deputy
Varvais. Deputy Varvais walked over to
appellant, who was standing between two cars.
As Deputy Varvais approached, he heard the “clank of a metal object
hitting the ground” near where appellant was standing. He ordered appellant to come to him, and
appellant complied. Deputy Varvais put
appellant in the back of his police car and then searched the area where
appellant had been standing. He saw a
gun under a car and retrieved it.
name="_ftnref2" title="">[2]
Kamilah Dennis identified appellant in
a field show up. At trial, she testified
that appellant resembled the person she saw, except that, at the time of trial,
appellant did not have braids and wore glasses.
Count 2: Murder of Lashaun Menefee, Chevron Gas
Station, September 2, 2007
On September 2, 2007, Justin Holyfield
was part of a group of about 20 persons, including Lashaun Menefee, in four
cars that stopped at a Chevron gas station on Artesia Boulevard in Bellflower
on the way to a party. The group was
half male and half female, and the men were dressed in baggy white T-shirts and
jeans or shorts. Holyfield is not a gang
member, and he did not think any of the people he was with were gang
members.
After three of the cars left for the
party, Holyfield was standing at the gas station facing a wall. He was drunk and was rolling his head around,
trying to “get [his] head back together” when he heard a barrage of gunshots
and dropped to the ground. He did not
see who shot. None of the people with
him was armed.
Holyfield saw that Menefee had been
shot, and the rear window of her car had been shot out. He and a friend drove her in Menefee’s car to
a hospital, where she died. An autopsy
revealed that the cause of death was a single .45 caliber gunshot that entered
her right arm and perforated her
Shyndona Dickerson was driving
northbound on Downey Avenue near the Chevron station around 12:30 a.m. on
September 2, 2007.
title="">[3] She heard gunshots, and slowed down. A car was passing her slowly in the opposite direction,
and she saw the driver leaning out the window and sparks coming from the
window. She caught a glimpse of the
driver’s face. Dickerson was reluctant
to stop. Not until the next morning,
when she saw police tape at the gas station, did she decide to contact the
police.
Dickerson spoke with Detective Jimmie
Gates, the investigating officer, and, on September 5, 2007, she met with a
composite artist to make a sketch of the person she had seen. On May 5, 2007, Dickerson identified appellant
as the shooter from a six-pack photographic lineup. She also identified him at trial.
Count 3: Attempted Murder of Darryl Penniman, Barbary
Coast, October 14, 2007
On October 14, 2007, around 11:00
p.m., Darryl Penniman went to a party at a strip club called the Barbary Coast
in Gardena. The friend who drove him
parked at a Taco Bell next to the club.
About five minutes after Penniman
entered the club, a fight broke out and he heard gunshots. Penniman was not a gang member and was not
involved in the fight. After the shots
stopped, he left the club with his friends and walked to the Taco Bell parking
lot. When he looked back, he saw an
African-American man pointing a gun at him.
The man said, “What, you want some, too[]” The man was looking side to side as if
getting ready to shoot, and Penniman began running. The man shot at him about nine times,
striking him once in the back of his right leg.
Penniman did not get a good look at the man’s face or clothing.
Gardena Police Officer Mike Sargent
was one of many officers who responded to the shooting. A green car started backing out of a parking
space in the Taco Bell lot and Officer Sargent heard the metallic noise of a
hard object hitting the ground. He told
the driver to stop, and he saw a black .380 semiautomatic Browning handgun on
the ground next to the car’s tire.
Another officer removed the magazine and a live round from the gun.
Gardena Police Officer Peter Graffeo
saw appellant leaning into the rear passenger area of a Toyota Camry. Officer Graffeo ordered appellant to come
over, and when he hesitated, Officer Graffeo ordered him on the ground at
gunpoint and handcuffed him. A .25
caliber handgun was later discovered in a Fritos bag in the back seat of the
Camry. When appellant was booked at the
jail, a .25 caliber round was found in
his pocket.
Investigation
Ballistics comparisons showed that the
.380 caliber gun found by Officer Sargent in the Taco Bell parking lot
following the shooting of Penniman ejected the .380 shell casings found in that
lot. The gun also ejected the .380
caliber casings found at the Chevron station in connection with the Menefee
murder. Appellant referred to this gun
in a monitored and recorded telephone call on March 26, 2008, while in custody
following his arrest (portions of this recording and others made while
appellant was in custody were played at trial).
In this conversation, appellant referred to the gun and its connection
to the Menefee murder, stating “the gun is enough to bail me over but at the
same time there’s loopholes with the gun because you know it was reported
stolen and I didn’t get caught with it right after the murder happened and all
that.”
In other monitored calls, appellant
made incriminating statements concerning the shooting of Penniman. On September 29, 2008, appellant said that it
was “good that [Penniman] might not come [to court]. But if he comes, we need him to be, like, he
didn’t shoot me, woo woo woo.” At trial,
surveillance videos from the Barbary Coast and the Taco Bell parking lot were
played. Appellant was visible in the
videos. On March 3, 2009, appellant
acknowledged that the video showing the area outside the Barbary Coast showed
him shooting: “The only part is that it
show outside like where it looks like I shot the gun one time. No more than one time. Like, they’re trying to make it seem like I
just unloaded the gun into a group of people. . . . You don’t see . . . no group of people on the
tape. . . . Like you don’t even see
nobody else in the camera but me, Brandon, and Little.” On March 8, 2009, appellant said that the
video showed him firing one shot, but did not show him unloading “into a group
of people.”
On March 8, 2009, he acknowledged that
the video of the inside of the Barbary Coast depicted him during the fight that
erupted inside the club. “And you see me
in the picture [inside the club], and then you see everything out the picture.
. . . That shit is hard to explain,
but it was funny as fuck . . . Boom. And
you see me, Little, and Little Scrap take off.
I still got the fucking pool stick in my hand. Boom.
When I get by the door, I . . . drop the pool stick. I get out the door. And in the parking lot you see a bunch of
motherfuckers running in the parking lot.”
In the March 3 and 8 2009 calls,
appellant discussed his strategy to “beat” the charges of murdering Menefee and
shooting Penniman. On March 3, he
mentioned that his attorney wished to sever the charges. On March 8, referring to the two cases, he
said, “so I got to beat that shit. . . .
Get them all separated. Get the
gang shit separated. Fight that
separate. Fight the attempt
separate. And fight the murder
separate.”
Gang Evidence
Appellant belonged to the Naughty and
Nasty Crip gang, also called the 2Ns. According
to the prosecution gang expert, Long Beach Police Detective Chris Zamora, at
least one of appellant’s tattoos attested to his membership. Appellant had a tattoo on his elbow saying
“NIP Chubbz.” “NIP” stands for “Naughty
in Peace,” a play on the abbreviation “RIP,” which stands for “Rest In
Peace.” “Chubbz” referred to the moniker
of a fellow gang member, Darryl Tucker, who was killed in a gang-related
shooting in 2005.
On November 10, 2007, in a routine
inspection of the cell of appellant’s brother at the Pitchess Detention Center,
a deputy discovered in the bunk bed a letter written by appellant that made
several gang references. According to
Detective Zamora, appellant wrote that he is an original gang member and signed
the letter with the moniker “Banng’em Skrap.”
In a monitored telephone call after the letter was discovered, appellant
said that he had written his brother a letter which contained gang references
and that the letter had been found in his brother’s bunk. In a monitored call on April 24, 2008,
appellant mentioned his newly coined gang moniker, “Banng’em”: “I’m going to get the pistol on my hip and
it’s going to say bang bang. It’s going
to say Mr. Banng’em on the . . . set.”
In a call on November 16, 2008, he again referred to himself as
“Banng’em.”
A letter appellant received while in
custody included a photograph of him displaying the gang signs of the Naughty
and Nasty gang. In a monitored telephone
call after the letter was seized, appellant told the sender to stop sending
photos of him displaying the N2 hand signs.
Detective Zamora had met appellant on
several occasions during his investigation of the Naughty and Nasty gang. Appellant admitted his gang affiliation to
another officer in March 2006. Detective
Zamora opined that appellant was a high-ranking, active member of the 2Ns. He relied on the recorded phone calls, in
which appellant was heard giving out gang monikers and making decisions about
gang hierarchy.
According to Detective Zamora, the
Chevron station in Bellflower where Menefee was killed was within 2N
territory. Also, the clothing of
Holyfield and his companions as depicted in the surveillance video of the
station was in the style gang members wear, and it is not uncommon for people
to be mistaken for gang members when wearing such clothing. When asked a hypothetical question by the
prosecutor that used the facts of the Menefee killing and referred to appellant
as a member of the 2Ns, Detective Zamora opined that the shooting was done to
benefit the Naughty and Nasty gang because it was in their territory, involved
gang attire, and was a violent drive-by shooting that promoted fear in the
community.
As for the shooting of Penniman,
Detective Zamora testified that on the surveillance video taken inside the
Barbary Coast club, one of appellant’s companions is seen displaying the 2Ns
gang sign. After some others persons
began displaying gang signs, appellant talked with them, and then the fight
started.
Asked a hypothetical question using
the facts of the Penniman shooting and referring to appellant as a “shot-caller
in 2Ns, also named Skrap or Banng’em,”
Detective Zamora testified that the shooting was committed for the
benefit of the gang because it illustrated appellant’s willingness to escalate
a fight by getting a gun, and because he came to the club with a gun.
I. Prosecutorial
Misconduct
Appellant contends that prosecutorial
misconduct rendered the trial unfair and deprived him of his right to due
process. He alleges five instances of
prosecutorial misconduct: (1) eliciting
inadmissible hearsay evidence; (2) misstating the evidence during questioning
of witnesses; (3) commenting on appellant’s exercise of his right to severance
and bifurcation; (4) disobeying the court’s exclusion order; and (5) arguing
facts not in evidence.
“The standards governing review of
misconduct claims are settled. ‘A
prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the federal
Constitution when they infect the trial with such “‘unfairness as to make the
resulting conviction a denial of due process.’”
[Citations.] Under state law, a
prosecutor who uses such methods commits misconduct even when those actions do
not result in a fundamentally unfair trial.
[Citation.] In order to preserve
a claim of [prosecutorial] misconduct, a defendant must make a timely objection
and request an admonition; only if an admonition would not have cured the harm
is the claim of misconduct preserved for review. [Citation.]’
[Citation.]” (
359 (Parson).)
If a defendant establishes
rights under the federal Constitution, the harmless error standard of
18, applies. (People v. Lenart (2004) 32 Cal.4th 1107, 1130.) If prosecutorial misconduct does not rise to
the level of a federal constitutional violation, we determine, after reviewing
the totality of the evidence, if “it is reasonably probable that a result more
favorable to a defendant would have occurred absent the misconduct. [Citations.]”
(People v. Castillo (2008) 168
Cal.App.4th 364, 386.) “‘Additionally,
when the claim [of prosecutorial misconduct] 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. Ochoa (1998) 19 Cal.4th 353, 427 (Ochoa).)
A.
Appellant contends that the prosecutor
attempted to elicit inadmissible hearsay from Darryl Penniman, the victim of
the attempted murder outside the Barbary Coast, and Officer Graffeo, who
detained appellant after the shooting.
However, appellant forfeited these claims of misconduct by failing to
object on that ground at trial and failing to request an admonition. (Parson,
supra, 44 Cal.4th at p. 359.) In any event, the incidents were innocuous
and clearly not misconduct or prejudicial.
While Penniman was testifying about
the Barbary Coast security video, the prosecutor asked him to identify the
person he previously had told her was in the fight. After defense counsel objected, the
prosecutor agreed to ask who was in the fight rather than asking him to repeat
what he had told her. Obviously, there
was no misconduct and no inadmissible evidence was introduced.
The prosecutor asked Officer Graffeo
for the description that he received from dispatch of the suspect in the
Barbary Coast shooting. The court
sustained defense counsel’s hearsay objection, but Officer Graffeo nonetheless
answered that the suspect was a male black.
Thereafter, under questioning by the prosecutor, Officer Graffeo gave a
description of the suspect. Again, there
was clearly no misconduct in this minor incident, and certainly no
prejudice. The evidence, including the
security video, left no doubt that the shooter was black. There was also little doubt that appellant
was the shooter – he admitted as much in two of his monitored telephone
calls. On March 3, 2009, appellant
acknowledged that the video showing the area outside the Barbary Coast showed “where it looks like
I shot the gun one time.” On March 8,
2009, appellant said that the video showed him firing one shot, but did not
show him unloading “into a group of people.”
B.
Appellant contends that the prosecutor
mischaracterized witnesses’ testimony in order to make their answers more
favorable to the prosecution.
Shyndona Dickerson, who identified
appellant as the shooter in the Menefee killing, testified that she had two
federal convictions for drug trafficking, one in 1990 and one in 1999. The prosecutor asked, “These, you think drug
trafficking or drug convictions, when did that happen” Appellant argues that, by characterizing the
prior convictions as either drug trafficking or drug convictions, the
prosecutor implied that Dickerson was convicted of simple drug possession,
which is not a crime of moral turpitude.
To state the contention is to dispose of it: it is, to say the least, unlikely that the
prosecutor’s question could have been misconstrued in the manner appellant
claims. (Ochoa, supra, 19 Cal.4th
at p. 427.) Moreover, the claim is
forfeited because appellant did not object in the trial court. (Parson,
supra, 44 Cal.4th at p. 359.)
Appellant also argues that the
prosecutor mischaracterized Dickerson’s preliminary hearing testimony so as to
convey greater certainty that appellant resembled the shooter than Dickerson
actually expressed. Although the record
shows that prosecutor’s questioning of Dickerson regarding her preliminary
hearing testimony was somewhat misleading, defense counsel repeatedly objected
on the ground of misstating the evidence, and his objections were
sustained. The trial court admonished
the prosecutor several times to read from the preliminary hearing transcript,
rather than summarizing Dickerson’s testimony, and to follow the court’s
rulings. However, defense counsel never
objected on the ground of prosecutorial misconduct and did not ask for an
admonition. The claim of misconduct
accordingly has been forfeited. In any
event, there was no prejudice, given the strong evidence of appellant’s guilt
of the Menefee shooting, including his statement in a monitored phone call that
“the gun is enough to bail me over but at the same time there’s loopholes with
the gun because you know it was reported stolen and I didn’t get caught with it
right after the murder happened and all that.”
C.
Bifurcation
During closing argument, the
prosecutor commented several times on appellant’s desire, expressed in his
monitored phone calls, to sever the charges.
At one point, the prosecutor argued that it was “very interesting how
[appellant] repeatedly wanted to get his cases separated,” stating that he
wanted to separate them so that the jury could not “consider all the evidence
in his crime spree.” She later quoted
appellant’s statement that, if he could separate the “gang shit” and have his
cases tried separately, “it’s a wrap.”
The prosecutor argued that this statement did not sound like one made by
someone wrongly charged with murder, and later, that it did not “sound like a
guy who just happened to be picked out of the blue for this murder.”
Defense counsel objected to the line
of argument as improper. The court
overruled the objection, and admonished the jury that it needed to consider
each charge separately.
On appeal, appellant argues that the
prosecutor’s comments violated his supposed
analogizing to the ban on prosecutorial comments about a defendant’s exercise
of the right to counsel or the right not to testify. He further argues that the trial court’s
admonition to the jury did not address the prosecutor’s implication that
appellant’s efforts to sever his cases indicated consciousness of guilt.
We find no misconduct. “The prosecution is given wide latitude
during closing argument to vigorously argue its case and to comment fairly on
the evidence, including by drawing reasonable inferences from it. [Citations.]”
(People v. Lee (2011) 51
Cal.4th 620, 647 (Lee).) “‘“Whether the inferences the prosecutor
draws are reasonable is for the jury to decide.”’ [Citation.]”
(People v. Thornton (2007) 41
Cal.4th 391, 454.)
It was perfectly proper for the
prosecutor to argue that appellant’s expressed desire to “beat” the cases
through severance suggested a consciousness of guilt. Appellant’s monitored conversations as a
whole strongly indicate that he knew he was guilty of the Menefee murder and
the Penniman attempted murder. He also
wished to “beat that shit. . . . Get
them all separated. Get the gang shit
separated. Fight that separate. Fight the attempt separate. And fight the murder separate.” The prosecutor’s comments simply drew the
obvious inference that appellant wanted to “beat” the cases despite knowing he
was guilty. The comments were fair, were
based on the evidence, and did not constitute an attempt to have the jury draw
an adverse inference from appellant’s mere exercise of his right to seek
severance. (Cf. People v. Hughes (2002) 27 Cal.4th 287, 375.)
D.
Prior to Officer Graffeo’s testimony
about the security videos inside and outside the Barbary Coast club, defense
counsel requested a sidebar to argue that Officer Graffeo should not be allowed
to identify appellant as the person seen in the videos. The court reasoned that the videos inside the
club were close enough to identify appellant, but the outside videos were too
far away to identify him. The court thus
ruled that, as to the outside videos, the prosecutor could only ask Officer
Graffeo if the appearance of the person seen in the videos was consistent with
appellant’s appearance.
The prosecutor then proceeded to ask
Officer Graffeo if the person seen on the outside video was the same person he
identified on the inside video, prompting an objection from defense counsel
that was sustained by the court. The
court admonished the prosecutor to be mindful of its prior ruling. However, the prosecutor again asked Officer
Graffeo a question identifying appellant as the person seen in the outside
video, leading to objections and a sidebar in which the court asked the
prosecutor why she was not following its order.
“It is misconduct for a prosecutor to
violate a court ruling by eliciting or attempting to elicit inadmissible
evidence in violation of a court order.
[Citation.] . . . Because we consider the effect of the
prosecutor’s action on the defendant, a determination of bad faith or wrongful
intent by the prosecutor is not required for a finding of prosecutorial
misconduct. [Citation.] A defendant’s conviction will not be reversed
for prosecutorial misconduct, however, unless it is reasonably probable that a
result more favorable to the defendant would have been reached without the
misconduct. [Citation.]” (People
v. Crew (2003) 31 Cal.4th 822, 839.)
The prosecutor violated the court’s
order by seeking to elicit evidence that the court had excluded, and thereby
committed misconduct. However, it is not
reasonably probable that a result more favorable to appellant would have been
reached without the misconduct. The
jurors saw the videos themselves and could draw their own conclusions as to
whether the person in the video resembled appellant. Indeed, during deliberations, the jury asked
for a DVD player and projector to watch the videos. Moreover, there was no doubt that appellant
was depicted in the videos – he acknowledged that fact in his monitored phone
calls. Thus, it is not reasonably
probable that appellant would have received a more favorable result without
Officer Graffeo’s identification of him in the outside video.
E.
Appellant argues that the prosecutor
committed misconduct when she argued that appellant admitted shooting a gun
when Penniman was shot. During closing
argument, the prosecutor stated that, “all the witnesses link the defendant to
the guy who eventually ditches the 380 by that car to the defendant being the
one that actually has this 380, the defendant even admits it.” She later stated, “The defendant is proned
out at the Taco Bell drive-thru and he admits shooting the gun.”
Appellant failed to object to these
comments on any ground. Thus, the
objection is forfeited. (
Cal.App.4th 1311, 1323.) In any event,
there was no harm.
“While counsel is accorded ‘great
latitude at argument to urge whatever conclusions counsel believes can properly
be drawn from the evidence [citation],’ counsel may not assume or state facts
not in evidence [citation] or mischaracterize the evidence [citation].” (People
v. Valdez (2004) 32 Cal.4th 73, 133-134; accord People v. Bordelon, supra, 162 Cal.App.4th at p. 1323 [“‘Counsel
may not state or assume facts in argument that are not in evidence. [Citation.]’”].)
There was no evidence at trial that
appellant admitted shooting a gun when he was arrested at the Taco Bell. But in his monitored telephone calls
appellant admitted shooting a gun. Thus,
even if there was misconduct (a conclusion we do not reach), it was
harmless.
II.
Probationary Status
Appellant contends that the trial
court violated his Sixth Amendment right to confront and cross-examine
witnesses when the court did not allow defense counsel to cross-examine
Dickerson about being on probation. The
trial court allowed Dickerson to be impeached with two prior federal drug
trafficking convictions, but did not allow defense counsel to question her
about her probation status.
“Evidence about the status of a
prosecution witness’s parole is admissible to show the witness’s potential bias
resulting from concern about possible revocation. [Citation.]”
(People v. Price (1991) 1
Cal.4th 324, 486.) Nonetheless, the
admission of the evidence is within the trial court’s discretion. (People
v. Chatman (2006) 38 Cal.4th 344, 374 (Chatman).) Where there was no evidence or offer of proof
that the witness spoke with law enforcement “around the time of her placement
on probation or thereafter,” and there was no showing that her probationary
status could have affected her testimony, the court does not abuse its
discretion in excluding the evidence. (
Dickerson’s federal drug trafficking
convictions were in 1990 and 1999, many years prior to the September 2007
murder of Menefee. There was no evidence
or offer of proof that she spoke with law enforcement about the shooting
“around the time of her placement on probation or thereafter.” (Chatman,
supra, 38 Cal.4th at p. 374.) Thus,
the court did not abuse its discretion in precluding defense counsel from
cross-examining Dickerson about her probation status.
III.
Appellant contends that the admission
of evidence of his gang moniker was inadmissible character evidence pursuant to
Evidence Code section 1101, subdivision (a).
“‘Evidence is relevant if it tends
“‘logically, naturally and by reasonable inference’ to establish material facts
such as identity, intent, or motive.”’
[Citations.] Even if relevant,
evidence 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.) Rulings regarding relevancy and Evidence Code
section 352 are reviewed under an abuse of discretion standard. [Citations.]”
(Lee, supra, 51 Cal.4th at pp. 642-643.)
“A trial court’s decision to admit or exclude evidence is a matter
committed to its discretion ‘“and will not be disturbed except on a showing the
trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.”’ [Citation.]”
(People v. Geier (2007) 41
Cal.4th 555, 585 (Geier).)
Defense counsel objected to the
introduction of appellant’s recorded phone calls on several grounds. As pertinent here, he objected to the
introduction of a conversation in which appellant is heard discussing gang monikers
because it could influence the jury to find appellant guilty, even though it
had nothing to do with the crimes. The
court overruled the objection because it found the evidence relevant to show
motive for the murder. Defense counsel
objected to another conversation that contained gang monikers, arguing that,
because he had conceded that appellant had gang connections, this evidence was
cumulative and could influence the jury to find him guilty. The court found that the evidence was not
cumulative and overruled the objection.
Defense counsel subsequently learned
that Detective Zamora was going to testify that appellant created the moniker
“Banng’em” for himself “because that’s what he does. He bangs, he shoots.” The trial court excluded the testimony but
allowed the prosecutor to argue it in closing, reasoning that the evidence of
appellant’s moniker and of his desire to get a tattoo of a pistol was contained
in the recorded phone calls. Defense
counsel objected to the court’s ruling that the prosecutor could make this
argument because monikers could sometimes be used to convey the opposite
meaning. The court told defense counsel
he could elicit such testimony from Detective Zamora if he wished. Defense counsel also objected on the basis
that the prosecutor would be relying on evidence that did not address whether
appellant committed the crime to argue that he did commit the crime. The court excluded the evidence under
Evidence Code section 352, but allowed the prosecutor to point out that
appellant was now calling himself “Mr. Banng’em” and argue that it meant
appellant considered himself a shooter or killer.
After defense counsel elicited
testimony from Detective Zamora that monikers are sometimes descriptive and
sometimes counter-descriptive, the court allowed the prosecutor on redirect to
elicit testimony that a gang moniker such as “Banng’em” could be
descriptive. The prosecutor repeatedly
referred to appellant as “Mr. Banng’em” throughout
Appellant contends that the admission
of the moniker evidence and the prosecutor’s repeated use of the moniker during
closing argument constituted rendered
the trial fundamentally unfair because it allowed him improperly to be
convicted based upon bad character evidence.
(Evid. Code, § 1101, subd. (a).)
The trial court did not abuse its
discretion in admitting the moniker evidence.
It could reasonably be inferred that appellant coined the nickname,
Banng’em, while in custody after the shootings in this case, and that his
desire, to get a tattoo of a “pistol . . . and it’s going to say bang bang
[and] Mr. Banng’em” was evidence that he committed the shootings so as to be
entitled to have that tattoo and gang moniker.
(See People v. Leon (2010) 181
Cal.App.4th 452, 461 [evidence that defendant had moniker “Chucky,” a reference
to a homicidal doll character in movies, was relevant for, among other reasons,
to “show his fellow gang members that his moniker was well warranted since he,
like the Chucky doll, was also a killer”].)
Hence, the court’s finding that appellant’s discussion of the moniker
could be relevant to show motive was not “‘“arbitrary, capricious, or patently
absurd . . . .”’ [Citation.]” (Geier,
supra, 41 Cal.4th at p. 585.)
Nor did the court abuse its discretion
in allowing the prosecutor to refer to the moniker during closing
argument. As stated above, “[t]he
prosecution is given wide latitude during closing argument to vigorously argue
its case and to comment fairly on the evidence, including by drawing reasonable
inferences from it. [Citations.]” (Lee,
supra, 51 Cal.4th at p. 647.) The prosecutor’s argument that appellant’s
choice of moniker indicated that he considered himself a shooter was a
reasonable inference that could be drawn from the evidence.
IV. Hearsay
Evidence of Appellant’s Gang Affiliation
During an Evidence Code section 402
hearing, defense counsel objected on Confrontation Clause grounds to testimony
by Detective Zamora that appellant admitted his gang affiliation to another
officer. The court found the evidence
admissible because it went to the foundation of Detective Zamora’s
opinion. Appellant contends that the
admission of this hearsay testimony violated his right to confrontation under
the Sixth Amendment and Crawford
“As our appellate courts have
repeatedly found consistent with the Supreme Court’s Sixth Amendment
precedent: ‘Hearsay in support of expert
opinion is simply not the sort of testimonial hearsay the use of which
‘The rule is long established in California that experts may testify as
to their opinions on relevant matters and, if questioned, may relate the information
and sources on which they relied in forming those opinions. Such sources may include hearsay. (See People
v. Gardeley (1996) 14 Cal.4th 605, 618–619; Evid. Code, § 801, subd.
(b) [an expert’s opinion may be based on matter “whether or not admissible,
that is of a type that reasonably may be relied upon by an expert in forming an
opinion upon the subject to which his testimony relates”].)’ [Citation.]”
(People v. Sisneros (2009) 174
Cal.App.4th 142, 153.)
Appellant argues that the caselaw
allowing hearsay evidence to support a gang expert’s opinion that an assault
was gang-related is incorrectly decided, citing People v. Hill (2011) 191 Cal.App.4th 1104, 1129-1130, which
criticized this line of thinking. We
need not address this issue because, even if the evidence was admitted in
error, it was harmless beyond a reasonable doubt given the overwhelming other
evidence of appellant’s gang affiliation.
(See People v. Brown (2003) 31
Cal.4th 518, 538.)
V. Gang
Hypotheticals
Appellant objected below to and
challenges on appeal the gang hypotheticals posed by the prosecutor to
Detective Zamora. In both hypotheticals,
the prosecutor named appellant, described him as a “shot-caller” in the 2Ns
gang, and used the facts of the Chevron shooting and the Barbary Coast
shooting.
The California Supreme Court addressed
the propriety of “thinly disguised” hypothetical questions in
Vang held that a prosecutor’s
hypothetical question needs to be based on the evidence in the case because
“[a] hypothetical question not based on the evidence is irrelevant and of no
help to the jury.” (Id. at p. 1046.) The court
commented that expert testimony regarding whether the specific defendant at
issue acted for a gang reason might be objectionable, but it declined to
address the issue because the expert there did not testify directly about the
defendant. (Id. at p. 1048 & fn. 4.)
Here, the prosecutor asked Detective
Zamora to testify directly about appellant in her hypotheticals. Nonetheless, “[t]he erroneous admission of
expert testimony only warrants reversal if ‘it is reasonably probable that a
result more favorable to the appealing party would have been reached in the
absence of the error.’ [Citations.]” (People
v. Prieto (2003) 30 Cal.4th 226, 247.)
“[E]xpert testimony is permitted even
if it embraces the ultimate issue to be decided. (Evid. Code, § 805.) The jury still plays a critical role in two
respects. First, it must decide whether
to credit the expert’s opinion at all.
Second, it must determine whether the facts stated in the hypothetical
questions are the actual facts, and the significance of any difference between
the actual facts and the facts stated in the questions.” (Vang,
supra, 52 Cal.4th at pp.
1049-1050.) As in Vang, the trial court here instructed the jury that the meaning and
the importance of expert opinion was for the jury to decide, and that it was
for the jury to decide whether facts used in hypotheticals have been
proved. (Id. at p. 1050.) Thus, even
if it was error for the prosecutor to use appellant’s name in her
hypotheticals, it is not reasonably probable that a result more favorable to
appellant would have been reached in the absence of the error.
VI. Sufficiency
of Evidence to Support Gang Enhancements
Appellant contends that the evidence
was insufficient to support the gang enhancements as to the murder and
attempted murder counts because there was no evidence that the shootings were
committed for the benefit of a gang.
Section 186.22, subdivision (b)(1) provides that “any person who is
convicted of a felony 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, shall, upon conviction
of that felony, in addition and consecutive to the punishment prescribed for
the felony or attempted felony of which he or she has been convicted, be
punished as follows . . . .”
“‘We review the sufficiency of the
evidence to support an enhancement using the same standard we apply to a
conviction. [Citation.] Thus, we presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the
evidence.’ [Citation.]” (People
v. Wilson (2008) 44 Cal.4th 758, 806.)
“On appeal, an appellate court
deciding whether sufficient evidence supports a verdict must determine whether
the record contains substantial evidence – which we repeatedly have described
as evidence that is reasonable, credible, and of solid value – from which a
reasonable jury could find the accused guilty beyond a reasonable doubt. [Citation.]
‘In evaluating the sufficiency of evidence, “the relevant question on
appeal is not whether we are convinced beyond a reasonable doubt” [citation],
but “whether ‘“any rational trier of fact”’ could have been so persuaded.” . . .’
[Citation.]” (
983, 996-997, italics deleted.)
“It is well settled that a trier of
fact may rely on expert testimony about gang culture and habits to reach a
finding on a gang allegation.
[Citation.]” (
1192, 1196 (Frank S.).) However, “[n]ot every crime committed by gang
members is related to a gang.” (
60.) The statute “requires that a
defendant commit the gang-related felony ‘with the specific intent to promote,
further, or assist in any criminal conduct by gang members.’” (Id.
at p. 64.)
Appellant relies on
the imposition of a gang enhancement that was based on the minor’s possession
of a red bandana, his admission of affiliation with a gang, and his stated need
of a knife for protection. The court
held that the gang enhancement was not supported by substantial evidence,
reasoning that “[t]he prosecution did not present any evidence that the minor
was in gang territory, had gang members with him, or had any reason to expect
to use the knife in a gang-related offense.”
(Frank S.,
Appellant points out that there was no
evidence here that gang members used the shootings to gain respect and enhance
their status within the gang by, for example, announcing their presence or
purpose at the shooting, bragging about their involvement or creating graffiti
about the shooting. (
Cal.App.4th 214, 227 (Albarran).)
The evidence presented here in support
of the gang allegation consisted primarily of the testimony of Detective
Zamora. He testified that it is
important for a gang to maintain its reputation through fear and intimidation
because it makes it easier for them to conduct criminal activity. According to Detective Zamora’s testimony,
gangs commit violent acts so that victims and witnesses will not want to come
forward. He further testified that an
individual gang member can maintain his own reputation through violence.
It is true that there was no evidence
here that gang members announced their presence or purpose at any of the
shootings, bragged about their involvement or created graffiti and took credit
for the shootings. (Albarran, supra, 149
Cal.App.4th at p. 227.) Nonetheless, on
appeal, “[w]e view the evidence in the light most favorable to the prosecution,
adopt all reasonable inferences and presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence. [Citation.]” (People
v. Vazquez (2009) 178 Cal.App.4th 347, 352.) Applying this standard of review, we conclude
that a reasonable jury could find beyond a reasonable doubt that appellant
committed the offenses for the benefit of a gang.
VII. Cumulative
Effect of Alleged Trial Errors
Appellant contends that the cumulative
effect of the alleged trial errors deprived him of his
trial. “‘[A] series of trial errors,
though independently harmless, may in some circumstances rise by accretion to
the level of reversible and prejudicial error.’
[Citation.]” (
Cal.App.4th 762, 785.)
Assuming there was error here, “we
would not say the whole of the trial court’s errors outweighed the sum of their
parts [citation], a result more favorable to [appellant] would have been
reached in the absence of the errors [citation], or [appellant] suffered a
miscarriage of justice [citation].” (
212, 228-229.)
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
name="_ftn1" title="">[1] All further statutory references are
to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] The gun was destroyed before
trial. According to Deputy Varvais, it
was jammed with two rounds in the chamber.
It smelled like gunpowder, indicating
that it had been fired. An
expended nine-millimeter casing was found in the parking lot.
