P. v. Hays
Filed 4/4/13 P. v. Hays CA2/1
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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
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVION HAYS,
Defendant and Appellant.
B227157
(Los Angeles
County
Super. Ct.
No. BA302646)
APPEAL from
a judgment of the Superior Court
of
County. William C.
Ryan, Judge. Reversed.
William J.
Kopeny for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Marc A. Kohm and Alene M. Games,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
>
Davion Hays
appeals from a judgment entered after a jury convicted him of one count of
willful, deliberate and premeditated murder and two counts of willful,
deliberate and premeditated attempted
murder and found firearm enhancement
allegations to be true. The trial
court sentenced Hays to two consecutive life terms plus 100 years to life. Hays contends there was insufficient evidence
to prove he did not act in self-defense.
We disagree, finding sufficient evidence in the record supporting Hays’s
convictions for premeditated murder and premeditated attempted murder.
Hays also contends the trial court
committed reversible error in
admitting evidence of uncharged possession of a sawed-off shotgun not related
to the charged offenses. We agree and
reverse.
BACKGROUND
At trial,
Hays did not dispute he fired seven rounds from a handgun he owned (a
10-millimeter Glock) at Rolling 60’s Crips gang members and associates, while
he was a passenger in a vehicle driving on Crenshaw Boulevard at about 3:50
a.m. on May 15, 2005. Hays claimed he
fired his gun in self-defense as two or three men on foot chased the vehicle
Hays was riding in and fired upon it.
The prosecution argued Hays committed premeditated murder and attempted
murder, which was motivated by Hays’s association with the Inglewood Family
Bloods gang, a neighboring gang and “violent†enemy of the Rolling 60’s Crips.
Because
there was no criminal street gang
enhancement allegation alleged in the information,
the trial court ruled the prosecution must put on its evidence of the murder
and attempted murders before it could call its gang expert to testify regarding
the purported motive for the crimes.
Prosecution Evidence
Sometime
after 3:00 a.m. on May 15, 2005, Jamal Wallace, an
admitted Rolling 60’s Crips gang member, and Timothy Green, a Rolling 60’s
associate, were socializing outside Chris Burgers, a fast-food restaurant on Crenshaw
Boulevard in Los Angeles. There were about 20 to 30 people standing in
the parking lots adjacent to Chris Burgers.
Chris Burgers is located inside territory claimed by the Rolling 40’s
Crips gang, an ally of the Rolling 60’s, and is a place where Crips gang
members are known to congregate.
As Wallace
was walking among the people in the parking lot, a gray and white Chevy Tahoe
sport utility vehicle “caught [his] attention.â€
The Tahoe was driving on Crenshaw Boulevard
and it circled the area around Chris Burgers three times. The sight of this vehicle circling the area
caused Wallace concern and he was ready to get in his car and drive away if
something bad started to happen.
Suddenly,
Wallace heard gunshots coming from Crenshaw Boulevard
in rapid succession. It sounded like
they were being fired from the same gun.
Wallace was shot in the back of the leg before he could run to his
car. He was struck after the first or
second gunshot he heard. Wallace
continued to hear rapid gunfire after he fell to the ground. He was able to get into his car and drive
himself to the hospital. The bullet was
not removed from his leg.
Timothy
Green, who had been standing near Wallace, was shot in the neck resulting in
paralysis. At the time of trial, he was
in a wheelchair, able to move only his head and the upper portion of his arms.
Los Angeles
Police Officer Robert Canizales arrived on the scene. He saw 30 to 40 people standing outside Chris
Burgers, some of whom he believed to be East Coast Crips and Rolling 60’s Crips
gang members. He requested an ambulance
for Green, who was lying on the ground, bleeding from his neck wound. As Canizales waited for the ambulance and
additional officer assistance, he heard a car skid to a stop in the middle of
the intersection. Several men exited the
vehicle. One of the passengers was holding
his neck, which was bleeding. The
injured man, Tramon Harrison, ran toward Canizales. The other men from the vehicle surrounded Harrison,
and started screaming, “‘This is 60’s, Cuz.
This is 60’s.’†Harrison
collapsed onto the ground. Other civilian
vehicles pulled up and stopped in the area.
The men in the now even larger crowd began fighting amongst
themselves. Harrison
died at the scene.
At the
crime scene, officers recovered seven 10-millimeter casings on Crenshaw
Boulevard; two .22 caliber casings on the western side of the parking lot; one
.22 caliber casing on the eastern side of the parking lot; one .25 caliber
casing on the eastern side of the parking lot; two 9-millimeter casings on the
western side of the parking lot, near Timothy Green’s parked vehicle; and one
9-millimeter live round.
Los Angeles
Police Detective Wallace Tennelle, the investigating officer on this case, did
not have a suspect until October 2005.
Prior to that time, he received information that this was a drive-by
shooting, possibly gang-related, and that the shooter might have been traveling
in a red Chevy Tahoe. Witnesses reported
seeing a red Tahoe circling the area around Chris Burgers.
On October 26, 2005, Detective Tennelle interviewed a man
named Dexter Glasgow who was incarcerated for bank robbery. After Dexter
was arrested, he told the police he had information on three murders, including
this case, that he would share in exchange for leniency when he was
sentenced. Tennelle decided to interview
Dexter after hearing from another officer that Dexter knew a 10-millimeter
semiautomatic handgun had been used in the shooting at Chris Burgers. This was information law enforcement had not
made public.
Dexter had
known defendant Hays for most of Hays’s life because their families had been
neighbors in Inglewood, in an area
claimed by the Inglewood Family Bloods gang.
Dexter’s brother, Dwayne, was close friends with Hays.
On or about May 16, 2005, Hays attended a party at Dexter’s
sister’s house to celebrate her birthday and Dwayne’s birthday. Hays approached Dexter and said he had had “a
little problem†at Chris Burgers when he went there with his friend, Mark. Hays said Mark drove them to Chris Burgers in
his Chevy Tahoe.
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into an argument with some men who were in the parking lot at Chris Burgers and
one of them pulled out a gun. Hays shot
two men with his 10-millimeter Glock. He
saw one of the men fall and believed the man was dead. Mark and Hays left the area quickly. Hays did not say anyone fired shots at him
and Mark.
Hays asked Dexter what he could do
to make the gun “unrecognizable if it ever got into the hands of the
police.†Hays explained, after the
shooting, he “altered the firing pin, he scraped up the firing pin.†Dexter told Hays to get rid of the gun, but
Hays said he did not want to do that.
Dexter suggested Hays search the Internet for information on ways to
make a gun unrecognizable or to alter it.
Hays said Mark had gotten his Chevy Tahoe repainted since the
shooting.
After this conversation with Hays
at the birthday party, Dexter saw Mark’s black Chevy Tahoe parked in front of
Hays’s house. Hays introduced Mark to
Dexter. Hays told Dexter Mark was a
member of a Bloods gang.
On November 1, 2005, Los Angeles Police Officer Christopher
Giargiari was on patrol when he saw four men standing outside who appeared to
be drinking alcohol in public. One of
the men was Hays. As Giargiari and his
partner exited their patrol car, the four men began to walk away quickly. Giargiari’s partner ordered the four men to
stop. Only Hays complied with the
order. As the officers approached, Hays
told them he had a gun in his waistband.
The officers detained Hays and handcuffed him. The gun was a 10-millimeter semiautomatic
Glock. It was loaded with one round in
the chamber and eight rounds in the magazine.
At the police station, Hays informed the officers he purchased the gun
for protection because someone had shot at him and his girlfriend. He was not referring to the shooting in this
case. He also stated he was a security
guard and was getting certified to become an armed security guard. Giargiari’s partner searched and found a
police report stating in June 2003, Hays reported someone had fired upon him
with a rifle, striking his vehicle six times.
The gun recovered from Hays on November 1, 2005 was registered to
Hays. A Los Angeles Police Department
firearms examiner determined the seven 10-millimeter casings found at the crime
scene at Chris Burgers were fired from Hays’s gun. The serial number on Hays’s gun was not
scraped off. The firearms examiner also
determined a bullet recovered from Timothy Green was either a 10-millimeter or
.40 caliber bullet. It had been
contaminated with body fluids and the markings had eroded away. No bullet or bullet fragment was recovered
from Tramon Harrison’s body.
Hays was placed under surveillance
after his November 1, 2005
arrest. On November 8, 2005, Hays visited a residence in the Inglewood
neighborhood where he lived and spoke to a man who was known to law enforcement
to be an Inglewood Family Bloods gang member.
When Hays left the residence, an officer saw Hays and the man exchange a
Bloods gang hand sign—“the ‘B’ sign.â€
Later the same day, Hays returned to that residence wearing a red bomber
jacket. An officer saw four other men at
that location who also were wearing red jackets.
At some point, Detective Tennelle
determined that the man who drove Hays to Chris Burgers on May 15, 2005 was a man named Michael Roundtree
(not “Mark†as Dexter had referred to him).
Tennelle interviewed Roundtree on November 23, 2005.
At the time of the shooting, Roundtree owned a gray and white Chevy
Blazer (not a Tahoe). After the
shooting, Roundtree had his vehicle repainted black. Roundtree told Tennelle he was a gang
member. Tennelle determined that
Roundtree was an Inglewood Family Bloods gang member.
On December 15, 2005, a Los Angeles Police Department
criminalist examined Roundtree’s Chevy Blazer.
She and her
team discovered one bullet hole on the passenger side of the vehicle, “above
the rear wheel well.†The bullet hole
had been repaired. It was visible from
the inside, but not from the outside of the vehicle. The criminalist could not determine the
caliber or trajectory of the bullet.
Detective Tennelle and other
officers searched the home where Hays lived with his family in Inglewood. The officers recovered information from the hard drive of a
computer that Hays said was his. There
were photos of Hays with his 10-millimeter Glock. There were 50 to 60 photos of Inglewood
Family Bloods gang graffiti. There were
photos of Hays posing in his bedroom and dressed in a manner that made Tennelle
believe he may have been involved in gangs.
Tennelle testified: “[H]e’s in
the pictures posing with guns and wearing red jackets, red ski masks, what
generally is known on the street as flaming when they talk about Bloods. They call it -- he’s flamed out. He’s got red from head to toe.â€
In two of those photos, Hays was holding a
sawed-off shotgun, a firearm not related to the charged offenses. Also on the computer’s hard drive was an
article about changing the ballistic fingerprint of a gun by changing the
firing pin and barrel.
Los Angeles Police Officer David Ross testified as the
prosecution’s gang expert. Before his
testimony, the trial court read the jury an instruction regarding the limited
purpose of the gang evidence.
Officer Ross is an expert on the Rolling 60’s Crips
gang. He is familiar with the Inglewood Family
Bloods gang and knows it to be a “violent†enemy of Rolling 60’s.
Officer Ross testified about some of the photos
recovered from Hays’s computer. In one
photo, Hays was wearing a red jacket with a Cleveland Indians logo on it. Ross believed the photo showed an association
with Inglewood Family Bloods because of the color red and the letter “I†in
Indians which could stand for Inglewood. Gang members often wear the sports gear of
teams that have the same first initial as the gang name. According to Ross, this photo of Hays showed
“a typical gang poseâ€â€”holding a weapon (a sawed-off shotgun) and “dressed down
in the gang’s clothing.†In another
photo from Hays’s computer, individuals (not Hays) appeared to be making gang
signs with their hands.
Officer Ross stated that not all gang members have
gang tattoos.
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Rolling 60’s who have no tattoos†and do not dress in gang attire.
According to Officer Ross, gang members typically
commit crimes with guns that are bought illegally or stolen. Acknowledging that the gun Hays fired at
Chris Burgers was registered in his name, Ross testified he was not familiar
with any other case in which a gang member committed a crime with a gun
registered in his own name.
Ross formed the opinion Hays was an Inglewood Bloods
Family gang member based on his conduct while on surveillance (visiting the
residence of a known Inglewood Family Bloods gang member, exchanging a Bloods
hand sign with the man, and returning later to the residence dressed in red to
meet up with a group of men also dressed in red); the photos on his computer;
and the fact he wore a red jacket and circled the area of a known Crips hangout
(Chris Burgers), accompanied by an Inglewood Family Bloods gang member (Roundtree).
Defense Evidence
Perry
Clayton, a resident of the area around Chris Burgers, testified he heard
“[g]ang slogans†before he heard gunshots on May 15, 2005. He could not remember
anything more specific about the gang slogans.
A criminalist for the coroner testified that decedent
Tramon Harrison had gunshot residue on his hands, but that did not necessarily
mean he had fired a gun. He could have
been “in an environment of gunshot residue†or he could have “received
particles from an environmental source.â€
Dwayne Glasgow and Brandon Anderson,
friends of Hays, testified on Hays’s behalf.
Dwayne had known Hays for about 22 years. Anderson had known Hays for about
three and a half years. Neither man knew
Hays to be a gang member.
Dwayne and Anderson both said they
witnessed the shooting at Chris Burgers on May 15, 2005, each from his own
car. May 15 is Dwayne’s birthday. Dwayne testified that he was planning to meet
up with Hays and Anderson and they were going to
cruise Crenshaw Boulevard like they did most Saturday
nights. Anderson testified the friends were
planning to find a restaurant where they could celebrate Dwayne’s
birthday. According to Anderson, the men did not discuss
cruising Crenshaw Boulevard that night.
The friends were following each
other on Crenshaw Boulevard. Anderson was driving alone in his
car. Hays was behind Anderson in the Chevy Blazer driven
by Michael Roundtree. Dwayne was driving
alone in his car, following Roundtree.
That night was the first time Dwayne and Anderson had met
Roundtree. Roundtree told Dwayne he was
not a gang member.
At some point, Anderson became
separated from the group as he went through a traffic light. He was the first to drive by Chris
Burgers. He saw a lot of people standing
on the street to the right of him. He
was driving slowly, waiting for Roundtree and Dwayne to catch up to him. About 10 men jumped out in front of his
car. The men were making gang signs with
their hands and saying, “‘Hey, Cuz. Hey,
Cuz. This is 60’s, Cuz.’†Anderson saw one man holding a gun. Anderson drove away and made a right
turn. He called Dwayne and told him not
to drive by the intersection of Crenshaw Boulevard and Vernon where Chris
Burgers is located.
Roundtree circled the area around
Chris Burgers, looking for Anderson.
Dwayne followed Roundtree. Dwayne
saw 20 to 30 people standing outside Chris Burgers. Dwayne knew Chris Burgers was in Crips
territory and that it was a “gang-infested†place. Dwayne knew it was dangerous to stop at Chris
Burgers because a gang member might think he was a gang member. Hays was wearing his red Cleveland Indians
jacket that night. Dwayne testified he
does not wear a lot of red. When the
prosecutor asked why, Dwayne responded, “I’m not a Blood.â€
The second time Roundtree and Dwayne
circled the area, Dwayne heard men screaming “‘60’s’†and saw them making gang
signs with their hands. Roundtree and
Dwayne could not drive quickly out of the area because there were cars in front
of them in both lanes. According to
Dwayne, two men ran alongside Roundtree’s Blazer and fired bullets at the
passenger side of the vehicle where Hays was sitting. Dwayne also heard the sounds of other guns
being fired. A bullet struck the rear of
the Blazer and the rear passenger side tire went flat. After the first of the two shooters that
Dwayne saw fired six or seven rounds with his pistol, Hays stuck his arm out of
the window and fired six or seven rounds at the first shooter, who was about
seven to eight feet away from Hays. The
first shooter continued to fire and came within five or six feet of the
Blazer. The second shooter fired four or
five shots with a Tech-9. He came within
four or five feet of the back of the Blazer.
Dwayne testified the shooting ended when the first shooter dropped to
the ground and the second shooter stopped firing.
Anderson testified he was parked
nearby at the time of the shooting. He
saw a red sport utility vehicle with its brake lights on. Next he saw Roundtree’s brake lights come on,
and then Dwayne’s brake lights came on.
He saw a flash of light and heard gunfire. Anderson saw three shooters running toward
the Blazer. One of the shooters appeared
to be close enough to the Blazer to touch it.
After the shooting started, Anderson saw Hays stick his arm out the
window and fire his gun. One of the
shooters fell to the ground. Neither
Dwayne nor Anderson reported the shooting to the police.
Hays called an expert witness to testify regarding “shooting
reconstruction.†Based on evidence
gathered from the crime scene, he concluded that shooting victim Timothy Green
could not be ruled out as the shooter of the 9-millimeter gun. Based on a blood trail, he concluded that
decedent Tramon Harrison moved from the center area of the parking lot to the
eastern area of the parking lot. The
location of the .22 caliber casings indicates movement by the shooter. The expert concluded the .22 caliber shooter
would have been in the line of fire of the 9-millimeter shooter. It cannot be determined from the physical evidence
which gun fired the bullet which hit Green, Wallace or Harrison or which gun
was fired first.
Hays’s uncle and a Los Angeles
Police Department detective who had known Hays his whole life both testified as
character witnesses. They did not believe
Hays was a gang member and did not believe he was a violent person. Prior to the incident, neither witness knew
Hays owned a gun. They had never seen
Hays dress like a gang member.
Hays also called Detective Tennelle
as a witness. He testified he did not
find any firearms in Hays’s home during the search. The 10-millimeter Glock was the only gun
registered to Hays. Neither Hays nor
Michael Roundtree had a criminal record and neither was listed in the Calgang
database.
Rebuttal Evidence
The prosecution called Kerry Tripp,
an officer from the Inglewood Police Department gang intelligence unit. He believed Michael Roundtree was an
Inglewood Family Bloods gang member. The
same day Tripp testified in this case, he testified at a preliminary hearing in
an attempted murder case in which Roundtree was the victim. A fellow Inglewood Family Bloods gang member
tried to kill Roundtree. Prior to that
attempted murder, Roundtree and two Inglewood Family Bloods gang members
(including the defendant in the attempted murder case) had been involved in a
drive-by shooting of a rival gang member.
Tripp did not know Hays.
Officer Tripp testified about some
of the photos recovered from the hard drive of Hays’s computer. In one photo, Tripp recognized the Inglewood Family
Bloods gang member who was making the “B†sign for Bloods with one hand and the
“F†sign for Family with the other hand.
In another photo, a woman Tripp did not recognize was making the “Fâ€
sign with her hand.
Officer Tripp looked at a photo of Hays wearing his
red Cleveland Indians jacket. Tripp
testified: “We stopped several Inglewood
Family gang members wearing that same kind of jacket. The ‘I’ is for Inglewood. We’ve even stopped Inglewood Family gang
members who had Cleveland Indians logo tattooed on . . . their body.â€
Officer Tripp testified that he suspected Hays was a
gang member because:
“He’s involved in a drive-by shooting, number
one. The drive-by shooting is a crime
that is almost specific to gang members.
[¶] He’s in a car with another
gang member, Michael Roundtree. They go
to a known gang hangout, Chris Burgers, at 43rd and Crenshaw, which is a known
Rolling 60’s Crip hangout, which is a rival [of] Inglewood Family. They circle the area at least twice, and then
they shoot and end up killing at least one individual there.
“The defendant has an affinity for the color red. He has gang graffiti of Inglewood Family
gangster Bloods with him. He’s been seen
at the residence of other Inglewood Family Gangster Bloods. He has photographs of at least one Inglewood
Family Blood gang member and a photograph of this female here who appears to be
throwing an ‘F’ up for Inglewood Family, and I say that because this picture
was a part of the pictures with the gang graffiti and the pictures of the other
gang members.
“Now, this gang graffiti is Inglewood Family gang
graffiti on a wall, and you have Rolling 60’s Crips crossed out, which is a
sign of disrespect. When a gang member
or a gang crosses out somebody else’s name or somebody else’s gang, that’s a
direct challenge and insult to that gang, and I’m saying I have no respect for
you. I hate you. I want you dead.â€
Verdicts and Sentencing
The jury found Hays guilty of the
willful, deliberate and premeditated murder of Tramon Harrison, and the
willful, deliberate and premeditated attempted murders of Timothy Green and
Jamal Wallace. On all three counts, the
jury found firearm enhancement allegations to be true. (Pen. Code, § 12022.53, subds. (b)-(d).)
On the murder count, the trial court
sentenced Hays to 25 years to life plus a consecutive term of 25 years to life
for the firearm enhancement under section 12022.53, subdivision (d) [personal
and intentional discharge of a firearm proximately causing great bodily injury
or death]. On each attempted murder
count, the court sentenced Hays to a life term, plus a consecutive term of 25
years to life for the firearm enhancement under section 12022.53, subdivision
(d). The total sentence is two
consecutive life terms plus 100 years to life.
DISCUSSION
I. Sufficiency
of Evidence
Hays
contends the evidence presented at trial was insufficient to prove beyond a
reasonable doubt he did not act in self-defense. He asserts there is no evidence “the shooting
in this case was initiated by the defendant.â€
Hays argued self-defense to
the jury and the trial court properly instructed the jury on self-defense using
CALCRIM No. 505. This instruction
provides, in pertinent part: “The defendant
is not guilty of murder or attempted murder if he was justified in killing or
attempting to kill someone in self-defense.
The defendant acted in lawful self-defense if : [¶]
1. The defendant reasonably
believed that he or someone else was in imminent danger of being killed or
suffering great bodily injury; [¶]
2. The defendant reasonably
believed that the immediate use of deadly force was necessary to defend against
that danger; [¶] AND [¶]
3. The defendant used no more
force than was reasonably necessary to defend against that danger. [¶] . . . [¶]
The People have the burden of proving beyond a reasonable doubt that the
killing and the attempted killings were not justified. If the People have not met this burden, you
must find the defendant not guilty of murder and attempted murder.†The jury rejected self-defense.
“In assessing a claim of
insufficiency of evidence, the reviewing court’s task is to review the whole
record in the light most favorable to the judgment to determine whether it
discloses substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.
[Citation.] The federal standard
of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails
not the determination whether the reviewing court itself believes the evidence
at trial establishes guilt beyond a reasonable doubt, but, instead, whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
[Citation.] The standard of review
is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] . . .
‘“‘“If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant a reversal of
the judgment.â€â€™ [Citations.]â€â€™ [Citation.]â€
(People v. Rodriguez (1999) 20
Cal.4th 1, 11.)
Substantial evidence presented at
trial demonstrated: Hays dressed in a
red Cleveland Indians jacket, armed himself with a loaded 10-millimeter Glock,
met up with an Inglewood Family Bloods gang member, and circled the area around
Chris Burgers, a place where Crips gang members were known to congregate. About 20 to 30 people were standing outside
Chris Burgers. Yet Roundtree and Hays
did not retreat. They came back around
and drove past the crowd again.
Jamal Wallace, a Rolling 60’s Crips gang member, heard
gunshots coming from Crenshaw Boulevard and was struck by the first
or second shot he heard. A reasonable
inference from this evidence is that Hays—the person who fired from Crenshaw Boulevard toward the people standing
outside Chris Burgers—fired first.
Although Hays argues the killing and attempted killing
were justified, he did not report the shooting to the police. He asked Dexter how he could alter his gun,
and he downloaded a document to his computer about changing the ballistic
fingerprint of a gun.
Hays asked the jury to believe that
two men were firing multiple rounds at the Blazer, and each man came within
about five feet of the vehicle, but between them they only managed to make one
bullet hole in the Blazer.
There is sufficient evidence in the
record supporting Hays’s convictions for premeditated murder and premeditated
attempted murder.
II. Admission of Evidence of Uncharged
Possession of Sawed-Off Shotgun
The
prosecutor introduced and the trial court received in evidence a photograph
recovered from the hard drive of Hays’s computer, showing Hays from the waist
up, posing in his bedroom, wearing a red ski mask and a red Cleveland Indians
jacket over a black bulletproof vest, and holding a sawed-off shotgun (People’s
Exhibit No. 60). Another photograph
received in evidence is nearly identical except Hays is not wearing the red
Cleveland Indians jacket (People’s Exhibit No. 61).
discretion in admitting evidence of the uncharged possession of the sawed-off
shotgun, a firearm not related to the charged offenses.
It was
undisputed at trial that Hays fired a 10-millimeter semiautomatic Glock during
the incident from which the charges arise.
There is no evidence in the record indicating Hay brought a sawed-off
shotgun to the crime scene, or that a sawed-off shotgun was fired during this
incident, or that Hays had ever used a sawed-off shotgun on any occasion.
In
577, disapproved on other grounds in People
v. Chapman (1959) 52 Cal.2d 95, 98, our Supreme Court concluded: “When the prosecution relies . . . on a
specific type of weapon, it is error to admit evidence that other weapons were
found in [the defendant’s] possession, for such evidence tends to show, not
that he committed the crime, but only that he is the sort of person who carries
deadly weapons.†Evidence of a defendant’s
possession of a firearm not used in the crime “is not admissible when it[s]
sole effect is to show a criminal
disposition, but if it ‘tends logically and by reasonable inference to
establish any fact material for the prosecution, or overcome any material fact
sought to be proved by the defense, [it] is admissible although it may connect
the accused with an offense not included in the charge.’ [Citations.]â€
(Id. at p. 578;
774, 821-822 [stun gun found in the defendant’s vehicle was properly admitted
on the issue of premeditation to prove the defendant was prepared to immobilize
his victims].) We review the trial
court’s admission of this evidence for abuse of discretion. (People
v. Jablonski, supra, 37 Cal.4th
at p. 821.)
The
Attorney General argues: “Here, the
purpose of the photograph [People’s Exhibit No. 60] was not just to show
appellant holding an illegal weapon. It
was the manner he posed in the photograph.
According to Detective Tennelle, ‘Well he’s in the pictures posing with
guns and wearing red jackets, red ski masks, what generally is Bloods. They call it – he’s flamed out. He’s got red from head to toe.’ [Citation.]
Appellant staged the photograph to show he was a gangster. Therefore, when appellant armed himself,
dressed in red and drove to a rival gang’s neighborhood, his actions indicated
his gang-related motive, intent, knowledge, and preparation.â€
The
prosecution introduced and the trial court received in evidence other
photographs of Hays wearing red, including one in which he is wearing a red
baseball cap and a red shirt and posing with his 10-millimeter semiautomatic
Glock (People’s Exhibit No. 63), one in which he is wearing a red baseball cap
and a red shirt and posing with a pellet gun (People’s Exhibit No. 62), one in
which he is wearing his red Cleveland Indians jacket (People’s Exhibit No.
64A), and one in which he is wearing a red cap and wearing a black bulletproof
vest (People’s Exhibit No. 36). The
prosecution also introduced and the trial court received in evidence three
other photographs of Hays posing with his 10-millimeter Glock while not wearing
red (People’s Exhibit Nos. 35, 55 & 56).
evidence of Hays wearing red and posing with guns, aside from the two
photographs of Hays holding the sawed-off shotgun.
Moreover,
the prosecution presented evidence highlighting the illegality and nefarious
uses of sawed-off shotguns. The
prosecutor asked gang expert, Officer Ross:
“Now, you were asked [on cross-examination] specifically about the
weapon in this photograph, if it was distinctive in any way for gang members,
and you said somewhat or I don’t remember what your answer was, but can you
explain the significance, if any, to the jury.â€
Officer Ross responded:
“Yes. I believe I said that it
could be significant, and the significance of that weapon is that it’s a shotgun. It’s a sawed-off shotgun. Both the barrels have been sawed off fairly
short, and also, the stock has been sawed off, and what that does is it reduces
the size of the weapon to where it can be easily concealed on a person. [¶] It
can be stuck down a person’s trousers.
It can be hidden under a long jacket or under a long baggy t-shirt. It can be hidden inside of a vehicle to where
it’s still a shotgun. It still has the
same deadly effect up close, but it’s a lot more concealable, and this is a
weapon that really in my opinion, although I’m not a weapons expert, a weapon
like that really has no use other than for some type of criminal
activity.†The prosecutor next asked
Officer Ross if sawed-off shotguns are illegal, and he responded affirmatively.
The trial
court abused its discretion in admitting evidence of Hays’s possession of a
sawed-off shotgun. The fact Hays
possessed a sawed-off shotgun did not tend to show he committed the charged
offenses. It tended to show Hays “is the
sort of person who carries deadly weapons.â€
(People v. Riser,
received in evidence showing Hays wearing red and holding guns.
The
erroneous admission of this evidence requires reversal because it was
prejudicial. Despite the fact there is substantial
evidence in the record supporting the convictions for premeditated murder and
premeditated attempted murder, the prosecution’s evidence supporting the
crimes is not overwhelming. The evidence
indicated multiple guns were fired at the scene, and no witness testified Hays
fired first. There was no bullet
recovered from Tramon Harrison’s or Jamal Wallace’s body. The bullet recovered from Timothy Green was
either a 10-millimeter or .40 caliber bullet.
Hays presented evidence of self-defense, but the improper admission of
evidence of his possession of a sawed-off shotgun improperly undermined his
defense. The prosecution’s gang expert
testified that a sawed-off shotgun “really has no use other than for some type
of criminal activity.†In closing
argument, the prosecutor pointed out Hays was “in possession of an illegal
weapon.†The erroneously admitted
evidence is not comparable to evidence of Hays’s possession of a legal firearm
lawfully registered in his name. Hays
presented evidence that he possessed the 10-millimeter Glock for protection and
because he was getting certified to become an armed security guard. The sawed-off shotgun is not connected to the
charged offenses and there is no evidence Hays ever used the sawed-off
shotgun. Evidence of Hays’s possession
of a sawed-off shotgun does not tend to show he committed the charged offenses,
but it does tend to show he is someone who commits crimes with illegal weapons,
based on Officer Ross’s testimony that this weapon has no use other than
criminal activity. We find it is reasonably
probable Hays would have obtained a more favorable result if the evidence of
his possession of a sawed-off shotgun had been excluded. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
Accordingly, we reverse Hays’s convictions.
We briefly
address below two other issues which are likely to arise if the case is
retried.
of Evidence of Uncharged Sales of Fake Marijuana
Hays contends the trial court erred
in admitting evidence indicating he was engaged in sales of fake marijuana.
During
defense counsel asked him: “During the
course of the two year investigation that you conducted, did you come up with
evidence of -- any evidence of Davion Hays ever engaging in any gang activity,
such as, committing robberies, carjacking, rapes, bank robberies or any of
those things that these gang members do?â€
Tennelle responded, “No.â€
Outside the
presence of the jury, the prosecutor informed the trial court and defense
counsel she wanted to follow up on that question during redirect of Detective
Tennelle. She explained: “His answer was, no, [sic] I don’t believe
that to be correct. So I was going to
ask him about that, and I wanted to bring to Counsel’s attention the fact that
there -- and I wasn’t going to -- and I didn’t bring this up in my direct, but
now that I believe the door has been opened, there was a lengthy article
called, ‘Dealin’ Notes’ about what you need to do to become a good drug
dealer. [¶] And, also, Detective Tennelle did see evidence
of drug sales at the house that he ignored and didn’t collect but noted so I
believe that is evidence. Obviously,
drug dealing is a very, very big part of gang activity. I do believe that Counsel has opened the
door. I don’t need to introduce this document
because I do believe it’s lengthy, and it’s very detailed. [¶]
But I would like the opportunity to be able to ask Detective Tennelle
about it because the door has been opened on cross-examination, not on
direct. I was not intending to bring it
up.â€
Defense
counsel objected, arguing “the fact that someone looked up on the Internet and
read about certain things and downloaded it from the Internet, that’s not
evidence of the person engaging in that conduct, the conduct being at issue,
being a drug dealer, selling drugs.
That’s way off in left field.â€
The trial
court overruled defense counsel’s objection, stating: “Well, I don’t agree it’s way off in left
field. You know, I do think you opened
the door. Basically, you put your
client’s character in issue by asking the question, and I think you’re not
entitled to create a false aura of respectability for the jury when that is not
the case. It is what it is for what it’s
worth, and you can certainly show that -- you can certainly argue that having an
article on your computer is not the same as committing the crime. But it is there, and I think the People are
allowed to go into it.â€
On
redirect, the prosecutor asked Detective Tennelle: “Detective, you also were asked on
cross-examination if you found any evidence at all of the defendant engaging in
any gang activity, and you were asked specifically about carjacking and bank
robberies. Did you find any evidence
that the defendant was involved in any sort of gang activities that gang
members do?†Tennelle responded
affirmatively. On Hays’s computer,
Tennelle found “a lesson plan on how to deal drugs successfully,†called
“‘Dealin’ Notes.’â€
title="">
The
prosecutor also asked Detective Tennelle:
“Did you find any other evidence that led you to believe that he was
involved in drug dealing?†Tennelle
responded affirmatively. He
testified: “During the search of his
bedroom, I found a box. It looked like
maybe a shirt box. I’d say maybe 2 and a
half inches deep, 1 inches [sic] by maybe 16 inches, and it was filled with a
green, leafy substance which at the time resembled marijuana, and I thought
that’s what it was. [¶] I then sniffed it, and having worked
undercover and purchased a lot of marijuana in my time as an undercover
officer, I realized it was oregano, and there was also some plastic baggies,
and there was a little maybe 2 by 2 plastic baggies. [¶]
Well, that’s what they used to fit -- they filled the plastic baggies and
sell them as either nickel bags or dime bags of marijuana. [¶]
And, normally, when I saw something like that, that’s generally from
someone who is transient, but they’re dealing dope. And what they do is they sell bunk dope, what
we call bunk dope, and they’d immediately leave. They never return to the same location so
they don’t have to worry about retaliation.â€
On
recross-examination, defense counsel asked Detective Tennelle about this
evidence of drug dealing. Tennelle
testified, based on the evidence he found in Hays’s home, that Hays was
dealing. Tennelle did not reference the
baggies or oregano in his report.
Tennelle never saw Hays selling bunk dope. While Hays was under surveillance no officer
ever reported seeing Hays interacting with drug dealers or buying drugs. Detective Tennelle did not know whether Hays
read the “Dealin’ Notes†found on his computer.
The trial
court abused its discretion in admitting evidence of sales of fake
marijuana. (People v. Jablonski, supra,
37 Cal.4th at p. 805.) The evidence is
not relevant. (Evid. Code, § 210
[“‘Relevant evidence’ means evidence . . . having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination
of the actionâ€].) It does not tend to
show Hays committed murder or attempted murder.
Nor does it tend to show Hays is a gang member. The prosecution did not present any evidence
indicating sales of fake marijuana is a common gang activity. Instead, the evidence tends to show Hays has
a disposition to commit bad acts—acts unrelated to the crimes charged in this
case. Because we are reversing the
judgment on other grounds, we need not decide whether the erroneous admission
of evidence of sales of fake marijuana was prejudicial.
IV. Gang Evidence
Hays does not dispute gang evidence may be admitted in
a murder case to prove motive and intent.
(People v. Hernandez (2004) 33
Cal.4th 1040, 1049.) He argues, however,
the gang evidence in this case—specifically Officer Tripp’s testimony quoted
below—was improper because it was based on an assumption Hays was guilty of the
charged offenses.
As set forth in the background section of this
opinion, the first reason Officer Tripp gave in support of his opinion Hays was
a gang member is: “He’s involved in a
drive-by shooting, number one. The
drive-by shooting is a crime that is almost specific to gang members. [¶]
He’s in a car with another gang member, Michael Roundtree. They go to a known gang hangout, Chris Burgers,
at 43rd and Crenshaw, which is a known Rolling 60’s Crip hangout, which is a
rival [of] Inglewood Family. They circle
the area at least twice, and then they shoot and end up killing at least one
individual there.â€
Officer Tripp testified Hays committed a “crime†and
“end[ed] up killing†someone. By
labeling the shooting a “crime,†he gave his opinion Hays did not shoot in
self-defense. Officer Tripp’s testimony
was not an admissible opinion based on a hypothetical. (See People v. Vang (2011) 52 Cal.4th 1038, 1041.) Rather, his
testimony was an improper opinion on Hays’s guilt. (Id. at
p. 1048 [“‘A witness may not express an opinion on a defendant’s guilt’â€];
37, 46-47 [same].)
We agree with the Attorney General’s position that
gang evidence was properly admitted in this case to prove motive and
intent. Hays fired his weapon at Rolling
60’s Crips gang members. The Inglewood
Family Bloods gang is a neighboring gang and violent enemy of the Rolling 60’s
Crips. The prosecution was entitled to
present evidence that the shooting was premeditated and motivated by Hays’s
association with the Inglewood Family Bloods gang. However, it was improper for the
prosecution’s gang expert to base his opinion that Hays was a gang member on
his opinion that Hays was guilty of a crime in this case. Because we are reversing the judgment on
other grounds, we need not decide whether the admission of this evidence was
prejudicial.
DISPOSITION
The
judgment is reversed.
NOT TO BE PUBLISHED.
CHANEY,
J.
We concur:
ROTHSCHILD,
Acting P. J. JOHNSON,
J.
At the
preliminary hearing, the prosecution did not present evidence to support the
gang enhancement allegation and conceded the allegation should be dismissed.
We refer to
him by his first name because both Dexter and his brother, Dwayne Glasgow,
testified at trial.
