P. v. Webb
Filed 8/2/12 P. v. Webb CA2/8
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
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH WILLIE WEBB,
Defendant and Appellant.
B234641
(Los Angeles
County
Super. Ct.
No. BA351123)
APPEAL from
a judgment of the Superior Court of
County. Monica Bachner, Judge. Affirmed.
Matthew
Alger, 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, Linda C. Johnson and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
A jury
found defendant Kenneth Willie Webb guilty of
deliberate, and premeditated attempted murder.
The jury also found true allegations that Webb personally and
intentionally used and discharged a firearm, causing death. On appeal, Webb contends: (1) the trial
court erred in allowing the prosecution to introduce gang evidence, and the
court should have granted Webb’s related motions for a mistrial; and (2) the
trial court erred in instructing the jury on the
aggressor. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We
summarize the factual background in accordance with the usual rules on
appeal. (People v. Virgil (2011)
51 Cal.4th 1210, 1263.) On January 12,
2008, Eron Mull and several friends went to a party in west Los Angeles. The party was thrown by a “party crew”; a
group that sponsors and promotes parties for teenagers. While Mull and his friends were waiting to
enter, a fight started at the front of the line. Security officers used pepper spray to break
up the fight and shut the party down.
The line dispersed. Mull’s group
went to a nearby restaurant to help one friend rinse pepper spray from his
eyes. While in front of the restaurant,
they saw people fighting in the street, and other people kicking and “stomping
on” cars.
Webb also
went to the January 12 party with a group of friends. He was a member of a party crew. A few weeks earlier, Webb had attended
another party hosted by a party crew at the Fredo’s Grill restaurant. Webb’s friend, Kevin Bernard, had an
altercation with a third person, and Webb intervened to support Bernard. Webb and others were detained by security. Webb later told another friend that at
Fredo’s Grill, “this big-ass nigger just banged on me. I’m going to fuck him up.”
Before the January 12 party, Webb’s
friend Ellsworth Andrews told Webb “not to bring anything,” by which he meant
Webb should not bring any weapons to the party.
Andrews had “heard of [Webb] before with a gun.” Once at the party, Webb and his friends went
in through a back entrance. At one
point, Webb’s girlfriend showed another friend a handgun she had in her purse. Webb’s girlfriend was crying for reasons
related to Webb. While Webb and his
friends were at the party, security shut it down. There were a lot of people in the street, and
several fights. Webb and his friends got
in a car to leave. Webb’s girlfriend
gave Webb the gun from her purse. As the
group was driving away, Webb said he wanted to get out of the car. His friends got out with him. Webb took Andrews’s bandana and ran off.
In the meantime, Mull and his
friends had left the restaurant and were returning to their car. They passed two “guys” at the entrance of an
alley, one of whom was Webb. To Kevin
Burton, one of Mull’s friends, Webb and the other person looked “suspicious,”
so he told Mull, “let’s get in the car.”
Mull was walking with Napoleon Bridges, behind his other
companions. Bridges was around six feet
four inches tall, and weighed about 250 pounds.
Mull said: “Hey, aren’t you from . . .” and identified a
place, or “Where do you know us from”
According to Bridges, Mull was usually quiet, but he spoke because of
the way Webb was staring at them.
Although Bridges was texting, he put his phone away, fearing they were
about to be robbed. Bridges then said to
Webb, “Yo, mother-fucker, do you know us from somewhere” Webb was with “two girls and a guy.” Webb moved towards Bridges and Mull and
pulled at his pants in a gesture that indicated he wanted to fight. Bridges responded in kind. Webb pulled a gun from his back. Webb’s companions ran away. Bridges said, “Oh, shit,” and Webb fired the
gun. Webb then ran away. Mull was fatally shot in the throat.
When Webb’s friends heard the
gunshot, they ran back to their car.
Webb followed. He was no longer
wearing the sweater he had on before he got out of the car. They drove to a nearby gas station. Webb’s friends asked what had happened. Webb said he aimed and shot the wrong
person. The group drove back to the
alley to retrieve Webb’s sweater and the gun.
Webb grabbed his sweater but could not find the gun. Someone in the group subsequently threw the
sweater away in a trash bin. They all
agreed not to tell anyone about what happened.
However, one member of the group, Lori Ross, later told a counselor at
her high school, then police, about the shooting.
Bridges identified Webb from a
photographic lineup. He also told law
enforcement he recognized Webb from a party crew sponsored party at a “grill
type of place.” Bridges told police Webb
had “pulled a gun out on people” before security detained him.
At trial, Ross admitted that at the
preliminary hearing she testified Webb returned to the car after the shooting
and said: “I thought it was a gun,” in addition to saying he aimed and shot the
wrong person. However, at trial she
testified that, despite her previous testimony, she did not remember hearing
Webb say, “I thought it was a gun.” Webb
did not testify at trial or offer any evidence.
The defense argued Webb acted in self-defense.
A jury convicted Webb of one count
of first degree murder as to Mull (Pen. Code, § 187, subd. (a); count 1),
and one count of attempted murder as to Bridges (§§ 664, 187, subd. (a); count
2). As to both counts, the jury found
true allegations that Webb personally and intentionally discharged a firearm
which caused Mull’s death (§ 12022.53, subd. (d)); personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)); and personally
used a firearm (§ 12022.53, subd. (b)).
As to count 2, the jury found true an allegation that the attempted
murder was willful, deliberate, and premeditated. The trial court sentenced Webb to a total
prison term of 50 years to life on count 1, and a concurrent sentence of 25
years to life on count 2.
DISCUSSION
I. Admission
of Gang Evidence Was Not Reversible Error
Webb
contends the trial court erred by admitting evidence that he was affiliated
with a gang, and by denying his two mistrial motions. We find any error was harmless.
Background
In his
opening statement, defense counsel told the jury they would hear that Webb was
not involved with gangs and that “none of these witnesses were gang people from
either side. [Webb’s] friends and [Mull’s]
friends. They’re not gang-bangers. They’re kids from the neighborhood.” While describing what he expected the
evidence to show about the shooting, he suggested that Webb and his friends did
not know who among the crowd were gang members because sometimes gang members
showed up to cause trouble at party crew sponsored parties. Counsel indicated that by the time of the
confrontation in the alley, tensions were heightened, and “people [were]
frightened.”
Prosecution witnesses testified
that Mull was not involved in a gang, and no one in Mull’s group was using gang
signs or claiming a gang on the night of the shooting. Mull’s friend Kevin Burton testified on
cross-examination that while no one in their group was throwing gang signs, he
did see others throwing gang signs that night.
Defense counsel asked Burton whether Bridges issued a “gang-type
challenge” to Webb. Burton said he did
not perceive Bridges’s question to be a gang challenge.
The prosecutor asked Ellsworth
Andrews, one of the witnesses who was with Webb on the night of the shooting,
if Webb ever claimed membership in a gang.
Andrews responded: “Claiming,
yes, but being a part of it, affiliated, personal knowledge, no.” The prosecutor asked what gang Webb
claimed. Defense counsel objected that
there was no gang enhancement alleged, and the matter was irrelevant and
inadmissible under Evidence Code section 352 (section 352). At sidebar, the prosecutor asserted the issue
was relevant because defense counsel “made the argumentative point that nobody
involved in this case was involved in any gangs. I think more importantly relevant to [Webb’s]
conduct on that night that he saw some friends fighting, according to this
witness, that he jumped out of the car, and he ran off in the direction that
those friends were running with a loaded gun. . . . I think that if he is a
gang member -- and counsel made the point that there were a lot of gang members
at this party, that his confrontation ultimately that led to the shooting, the
jurors could reasonably find that he was acting more as aggressor in that
situation than as somebody who just happened to be standing around and was . .
. the victim which I think is going to be the defense’s position.” The prosecutor agreed with the court’s
assessment that the gang evidence would be offered to prove motive.
Defense
counsel argued Bridges would testify that the exchange had nothing to do with
gangs, so the only purpose of the evidence would be to disparage Webb. The court asked the prosecutor for an offer
of proof as to relevance. The prosecutor
indicated that, prior to the incident, Bridges and his friends were involved in
an altercation with one of Webb’s friends over a cap “referred to by witnesses
as a bird in the hat which is a group that hangs out at the nest that’s
associated with a street gang.” The
prosecution theory was that Webb and Bridges recognized each other on January
12 and Webb had a motive to shoot Bridges.
The prosecutor explained there was information that Bridges was
associated with a “rival gang, which would provide motive for the
shooting.” The prosecutor also indicated
that during a search of Webb’s home, police found schoolbooks containing
writings referring to the Rolling 40s gang.
Defense counsel continued to argue the testimony was irrelevant and
unduly prejudicial. The prosecutor
responded: “It’s not my intent to prove that Mr. Webb is a gang member, but if
he and, on the other side, Napoleon Bridges and/or Eron Mull, by way of whatever
allegiances had allied themselves with certain gang identities that are rival
and hostile to each other, then that’s relevant to show motive.”
The trial
court concluded the expected testimony was relevant to motive and the probative
value outweighed any prejudicial effect.
The court also offered to instruct the jury with CALCRIM No. 1403 at the
end of the trial. When testimony
resumed, the prosecutor again asked if Webb claimed membership in a gang. Andrews testified that sometimes Webb would
call out different gang names as if he were a gang member, mainly when he was
dancing.
joke.”
The next
day, during a break in the testimony of Lori Ross, the prosecutor informed the
court he wished to ask Ross whether Webb ever claimed membership in the Rolling
40s gang. Defense counsel objected that
the case was not a gang case, the shooting was not gang-related, and the
testimony would only serve to attack Webb’s character. The court stated its ruling had not changed
from the day before and it would allow the question and testimony. Defense counsel moved for a mistrial on the
ground that the testimony was overly prejudicial and would unfairly bias the
jury. The court noted the evidence had
not yet come in and denied the motion.
However,
the court subsequently asked the prosecutor for a good-faith basis for
questions about Webb’s reputation as a gang member. The prosecutor said he had information that
during the confrontation a few weeks before the January 12 incident, “the
confrontation was between the Rolling 40s, the defendant’s friends, himself,
versus Napoleon Bridges who witnesses have suggested or in their minds believed
to be a 60s. And they have described
them as rivals. . . . That witness knows the defendant as T.K. from the Rolling
40s.” The trial court overruled the
defense objection, but offered to give a limiting instruction either at the end
of trial, or earlier at counsel’s request.
Defense counsel asked that the court give the limiting instruction
immediately after the prosecutor asked the questions.
Ross
testified that Kevin Bernard was a Rolling 40s gang member and that he was
involved in the Fredo’s Grill confrontation.
She testified she had no reason to believe Webb was a Rolling 40s gang
member, but that she had seen him with Rolling 40s gang members. She believed Webb was “backing up another
Rolling 40s” during the Fredo’s Grill incident.
The court then gave CALCRIM No. 1403: “Ladies and gentlemen, you may
consider evidence of gang activity only for the limited purpose of deciding
whether the defendant had a motive to commit the crimes charged. You may not consider this evidence for any
other purpose. You may not conclude from
the evidence that the defendant is a person of bad character or that he has
disposition to commit crime.”
The trial
court later heard argument on the proposed introduction of gang-related
graffiti in school notebooks found at Webb’s house. The books included writing such as “Baby
Tramp Killa,” “R40,” and “R20.”
name="_ftnref4" title="">[4] Defense counsel objected that the evidence
was inadmissible under section 352, lacked foundation, and added nothing to the
case. The prosecutor argued the gang
writing showed an allegiance or identification with the Rolling 40s gang and
was “relevant to his association with that organization. That in and of itself corroborates the
witness’s testimony that he came to the back-up of [a Rolling 40s member at
Fredo’s Grill].” The prosecutor further
argued that the Fredo’s Grill incident was relevant because there was evidence
Webb left Fredo’s Grill angry at someone and he indicated he would retaliate
against that person, whom the prosecutor believed was Bridges. Defense counsel objected that evidence of a
gang allegiance was highly prejudicial and irrelevant because it was not a gang
case. Defense counsel again pointed out
that Bridges told police the shooting was not gang-related.
The trial
court overruled the defense objections.
Defense counsel again moved for a mistrial. Counsel explained he had defended other cases
in which the court did not realize until the end of trial that gang-related
evidence was prejudicial, but at that point there was nothing to be done. Counsel further stated his “sense is even a
limiting instruction doesn’t cure that because of the paranoia that surrounds
gangs in this community, so I would move for a mistrial at this point.” The court denied the mistrial motion,
stating: “I ruled earlier on this very issue, although this is a different
manner of presenting the evidence. I
ruled that it was admissible, and gang evidence in general in the case, and I
already gave a limiting instruction. And
the court reconsidered this new evidence, this additional evidence. I’ve considered all the various issues
presented by counsel, and my ruling remains the same. It is admissible, so the motion for a
mistrial is denied.” Defense counsel
requested that the court give a limiting instruction at the end of trial.
The
investigating police officer in the case testified Bridges told him that as far
as he (Bridges) knew, the shooting was not gang-related. Bridges did not think Webb was wearing “gang
colors” during the incident. Bridges
said he did not belong to a gang and was not affiliated with a gang. Law enforcement had no indication that either
Mull or Webb were active gang members.
The officer also testified that Bridges said he did not “bang.” The officer explained “banging” meant “he did
not identify himself or portray himself to be a gang member or affiliated with
any gang.” On cross-examination, defense
counsel asked, regarding “banging,” “And that’s when a person would identify
himself as being affiliated with a gang; right” The officer answered: “Yes. And there was additional - - or portray
themselves to be.” The colloquy
continued:
“[Defense counsel]: Or portray themselves to be. And one way of banging would be, ‘where you
from,’ right, as a challenge
“[Officer]: Yes, given the context of the situation, yes.
“[Defense counsel]: Okay. One gang member sees another gang member or
person that looks like a gang member, where you from, that would be banging;
right
“[Officer]: Yes.”
The
prosecution did not offer any evidence establishing that Bridges was affiliated
with a gang, or that anyone perceived Bridges to be associated with a gang that
is a rival of the Rolling 40s. In the
final instructions to the jury, the trial court repeated CALCRIM No. 1403.
In his closing statement, the
prosecutor argued: “Defendant lived in
two worlds, so it appears from the evidence.
He had these friends who were somewhat enterprising, somewhat positive,
it appears, and then had his friends like Kevin Bernard who were Rolling 40s,
gang members, troublemakers, and he was straddling both sets of friends.” When describing the Ross testimony, the
prosecutor stated: “[S]he caught what
looked like the tail end of something where the defendant was coming to the
back-up of Kevin Bernard. By her
testimony and her demeanor on the stand, he is somebody that she wanted nothing
to do with, he’s a Rolling 40s gang member, the defendant was backing him up
that night at that party, and although she didn’t see the defendant with a gun
that night, that is the same party that [Bridges] referenced where he said the
defendant pulled out a gun.” The
prosecutor later argued: “Before the crime we know that [Webb] associates with
Rolling 40s gang members. Is he a
Rolling 40s I don’t know. Is he formally a member of the gang I don’t know.
I haven’t alleged that he is. I’m
not going to ask you to find that he is.
But you know he associates with them.
He backs them up, he has Rolling 40s related graffiti in his books. He is – at least loyal to and sympathizes
with that gang. That’s part of his state
of mind. That’s part of who he is. His own friend . . . talked about the fact
that he’s friends with those people.
He’s also known to carry a gun.
He backs people up. He got
involved in that party at Fredo’s that apparently had nothing to do with him in
the first place . . . . The prosecution
is telling you that [Webb] was up there with a purpose, and when [Bridges]
walked out of the Norm’s lot, he started to mad-dog him. Don’t underestimate what staring at someone
means to these young people, especially the ones who are gang-related. A term for it, they call it mad-dogging. It is a sign of disrespect. They respond to that.”
Defense
counsel argued gangs were peripheral to the case. Counsel asserted: “They try to paint [Webb]
as some quasi-gang member, that he would have motive to kill because he jumped
to the defense of his friend who was in a gang.
Well, he must be loyal to the Rolling 40s gang because he jumped to the
defense of this five-foot-five-and-a-half inch guy. [Loyal] to the gang or loyal to a
friend These kids go together to school
from kindergarten. Just because a
person, one becomes a gang member, and one doesn’t, does not necessarily mean
that you stop friendships. That’s real
life.”
The Trial Court Error in Admitting the Gang Evidence Was Harmless
On appeal, Webb contends the
trial court abused its discretion in admitting gang-related evidence and
denying his related mistrial motions.
Webb asserts the error was prejudicial and violated his
The trial court admitted gang-related
evidence based on the prosecutor’s offers of proof, which indicated the People
would show the shooting was related to a rivalry between the gangs with which
Webb and Bridges were affiliated. While
the trial court’s admission of gang-related evidence may have been appropriate
based on the initial offers of proof, the People did not, in fact, introduce
evidence of a gang rivalry, or that Bridges was connected to a rival gang of
the Rolling 40s. Without evidence that
Bridges was affiliated with a gang, or of a relevant gang rivalry, the People’s
gang-related evidence was not probative of Webb’s motive. Admission of the gang-related evidence thus
became erroneous. However, we conclude
that the error was harmless and did not deprive Webb of his right to due
process. (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.)
“Although
evidence of a defendant’s gang membership creates a risk the jury will
improperly infer the defendant has a criminal disposition and is therefore
guilty of the offense charged—and thus should be carefully scrutinized by trial
courts—such evidence is admissible when relevant to prove identity or motive,
if its probative value is not substantially outweighed by its prejudicial
effect.” (People v. Carter (2003)
30 Cal.4th 1166, 1194.) “ ‘Gang evidence
is relevant and admissible when the very reason for the underlying crime, that
is the motive, is gang related.
[Citation.]’ [Citation.]” (People
v. Memory (2010) 182 Cal.App.4th 835, 858 (Memory).) However, “ ‘[g]ang
evidence should not be admitted at trial where its sole relevance is to show a
defendant’s criminal disposition or bad character as a means of creating an
inference the defendant committed the charged offense.’ [Citation.]
[¶] . . . [¶]
. . . ‘In cases not involving the gang enhancement
. . . evidence of gang membership is potentially prejudicial and should not be
admitted if its probative value is minimal.
[Citation.]’ [Citation.]” (Id.
at pp. 859-860.) “[T]he decision on
whether evidence, including gang evidence, is relevant, not unduly prejudicial
and thus admissible, rests within the discretion of the trial court. [Citation.]”
(People v. Albarran (2007) 149 Cal.App.4th 214, 224-225 (
But even if
gang evidence is improperly admitted, the error does not necessarily deprive
the defendant of the right to due process, or constitute prejudicial
error. “ ‘Ordinarily, even
erroneous admission of evidence does not offend due process unless it is so
prejudicial as to render the proceeding fundamentally unfair.’ [Citations.]
. . . . ‘To prove a deprivation of federal due process rights, [a
defendant] must satisfy a high constitutional standard to show that the
erroneous admission of evidence resulted in an unfair trial.’ [Citation.]
‘ “The dispositive issue is . . . whether the trial
court committed an error which rendered the trial ‘so “arbitrary and
fundamentally unfair” that it violated federal due process.’ [Citations.]”
[Citation.]’ [Citation.]” (People
v. Covarrubias (2011) 202 Cal.App.4th 1, 20 (Covarrubias); see also People
v. Partida (2005) 37 Cal.4th 428 (Partida).) “ ‘Only if there are no permissible
inferences the jury may draw from the evidence can its admission violate due
process. Even then, the evidence must
“be of such quality as necessarily prevents a fair trial.” [Citations.]
Only under such circumstances can it be inferred that the jury must have
used the evidence for an improper purpose.’
[Citation.]” (
811, 817.)
Here, the
gang-related evidence was limited. It
consisted of testimony that Webb had friends who were Rolling 40s gang members,
he sometimes called out the names of various gangs while dancing, he had a
nickname that had gang connotations, and he wrote gang names and his “moniker”
in school notebooks. The investigating
officer testified that Webb was not identified as an active gang member in law
enforcement records, and Webb’s friends testified they had no reason to believe
he was actually a gang member. There was
no general evidence about gangs, and no evidence about the Rolling 40s gang in
particular.
Moreover, the case against Webb was
based primarily on other evidence. (
evidence. According to prosecution
witnesses, several of whom were Webb’s friends or associates, Webb was involved
in an altercation with someone weeks before the January 12 party. Webb told a friend someone had “banged” on
him and Webb planned to “fuck him up.”
Before the January 12 party, one of Webb’s friends made a point of
telling Webb not to bring any weapons because he was known to carry a gun. Despite this request, Webb’s girlfriend had a
gun in her purse on the night of the party.
She showed the gun to Lori Ross.
The girlfriend was distraught for reasons related to Webb, and, the jury
could infer, Webb in relation to the gun.
After Webb and his friends left the party, Webb’s girlfriend gave the
gun to Webb. The scene outside the party
was chaotic, with fights breaking out.
While there was conflicting testimony about why Webb and his friends
drove away, only to stop and return to the fray, it was undisputed that Webb
walked or ran off ahead of the group once they got out of the car.
confrontation, but the only available evidence indicated it was Webb’s
“challenging” stare that led Bridges to notice him. Despite Bridges’s provocative statement, Webb
did not speak except to gesture that he wanted to fight. He said nothing before he fired the gun. When Webb joined his friends after the
shooting, he described aiming before he shot.
The evidence was overwhelming that Webb committed a deliberate,
premeditated killing, erring only in that he shot Mull instead of Bridges.
In
contrast, Webb’s theory that he thought Bridges had a gun was nearly devoid of
evidentiary support. Webb did not
testify. Bridges testified but claimed
to remember nothing about the incident.
The only evidence regarding the timing of the events immediately before
the shooting came from Bridges’s prior statements to the investigating
officer. In those statements, Bridges
said Mull asked Webb if he knew them.
Bridges had been texting, but once he heard Mull speaking, he put his
phone away. Bridges then posed Mull’s
question in a more provocative way. Webb
pulled at his pants indicating he wanted to fight. Bridges also pulled at his pants, at which
point Webb fired the gun. Thus, although
defense counsel argued Webb may have thought the phone was a gun, this was in
tension with the evidence, which indicated Bridges put his phone away at the
very beginning of the confrontation, and when he reached for his pants he was
mimicking Webb’s gesture. Indeed, the
only indication that Webb thought Bridges had a gun came from Ross’s
preliminary hearing testimony, which she recanted at trial. And, at both
the preliminary hearing and trial, Ross testified Webb said: “I aimed and shot
the wrong person.”
Further, the trial court twice
instructed the jury it could not consider the gang-related evidence to conclude
that Webb was a bad person or was disposed to commit crime, and that it could
whether Webb had a motive to commit the crime.
We presume the jury followed the court’s instruction. (People
v. Thomas (2011) 51 Cal.4th 449, 489.)
The gang-related evidence was not “uniquely inflammatory.” (Albarran,
supra, 149 Cal.App.4th at p. 230.)
There was no evidence that Webb was an actual gang member. There was no evidence that on the night of
the shooting he was in the company of gang members. There was no general evidence offered about
gangs, the culture or activities of the Rolling 40s gang, or any inference that
Webb had been involved in gang-related activities prior to the Fredo’s Grill
incident. Even if the trial court erred
in admitting the evidence, the error did not rise to the level of a
constitutional due process violation.
(See Kyles v. Whitley (1995) 514 U.S. 419, 434 [assessing alleged
due process violation as concerning whether trial resulted in a verdict “worthy
of confidence”].)
“ ‘Absent
fundamental unfairness, state law error in admitting evidence is subject to the
traditional Watson test: The
reviewing court must ask whether it is reasonably probable the verdict[s] would
have been more favorable to the defendant absent the error. [Citations.]’ [Citation.]”
(Covarrubias, supra, 202
Cal.App.4th at p. 21, fn. omitted, quoting Partida,
supra, 37 Cal.4th at p. 439.) Two
cases involving gang-type evidence are instructive in considering this
question.
In People v. Memory, supra, 182 Cal.App.4th 835, the Court of Appeal
concluded the admission of gang-related evidence was prejudicial error. The defendants were convicted on charges of
second degree murder, attempted voluntary manslaughter, and assault with a
deadly weapon, arising out of a fight in the parking lot of a bar. (Id.
at p. 837.) The defendants were
members of a motorcycle club. There were
conflicts within the prosecution’s evidence as to the relevant incidents and
defendants’ role in the fight. The
defendants contended they acted in self-defense. The trial court allowed the prosecutor to
introduce evidence portraying the motorcycle club as an “outlaw” organization,
even though it did not rise to the level of a criminal group like the Hell’s
Angels. (Id. at pp. 852, 860.)
The prosecutor elicited testimony about the criminal activities of
other members of the club even though they were not involved in the charged
crimes. (Id. at p. 854.)
The prosecutor also “sarcastically referred to defendants just
happening to have deadly weapons with them,” while suggesting their membership
in the club made this behavior predictable, and that “that’s the kind of people
they are.” (Id. at pp. 855-856.) The
trial court instructed the jury that evidence regarding the activities of other
members of the club could not be considered for proving the likelihood the
defendants committed the crimes charged.
(Id. at p. 856.)
The Court
of Appeal found the trial court abused its discretion in admitting the evidence
because it was offered only to show the defendants had a criminal disposition
to fight with deadly force when confronted, even though there was no evidence
of that disposition. (
859.) The court noted the “prosecutor
sought through its opening statement, structure of its case in chief,
examination of witnesses, and in closing arguments, to continually portray
defendants as members of a violent . . . outlaw motorcycle club akin to the
Hell’s Angels. The Attorney General
argues that since there was no evidence about the Hell’s Angels, any connection
between the [defendants’ motorcycle club] and the Hell’s Angels was
benign. Again, we disagree. The lack of specific evidence about the
Hell’s Angels allowed free rein to the jury’s bias and prejudice.” (Id. at
p. 861.) The court further concluded the
error was prejudicial because it damaged the defendants’ credibility and
“[tainted the jurors’] view of events with the inference of defendants’
criminal disposition.” (
case “depended heavily on questions of defendants’ mental state,” and it “was
not a case where the jury had only to choose between the People’s and the
defense’s version of events and the evidence was overwhelming in favor of the
prosecution.” (Id. at p. 863.) “The
prosecutor relied heavily on the [motorcycle club] evidence to show defendants
were guilty and in arguing ‘this case is strong for intent.’ ” (Ibid.)
In
possession of marijuana for sale and transporting more than 28.5 grams of
marijuana into California. (
p. 3.) The trial court admitted expert
testimony from a law enforcement agent who testified about the structure and
practices of drug trafficking organizations.
The Court of Appeal determined admission of the evidence was error
because the prosecution presented no evidence associating the defendant with a
drug trafficking organization. (
not constitute a due process violation and was harmless. Although the testimony was a significant
portion of the prosecution case, “it was far from the primary evidence” of the
defendant’s guilt. (Id. at p. 20.) The court
also noted the jury could have inferred the defendant was part of a drug
trafficking organization from the fact that the defendant had a large quantity
of marijuana in his possession and because of statements he made to law
enforcement agents. The expert testimony
“merely corroborated a reasonable inference that the jurors likely would have
drawn without such testimony.” (
The court additionally concluded
that because the expert’s testimony presented drug trafficking organizations as
operating a business rather than as criminal organizations committing violent
acts, the testimony was “not so ‘uniquely inflammatory’ as to render the trial
fundamentally unfair.” (
p. 21.) The jury was not faced with
a “close case” and the defendant’s arguments were implausible. (Id.
at p. 22.) Thus, the court concluded it
was not reasonably probable the verdicts would have been more favorable to the
defendant had the trial court excluded the challenged testimony.
The court’s reasoning in
that of Memory provides a helpful
contrast. Unlike the evidence in Memory, the prosecution evidence here had few conflicts. Although, as was true in Memory, Webb’s state of
mind was a crucial aspect of the case, here there was minimal evidence to
support Webb’s interpretation of the evidence, while in Memory the testimony of several witnesses supported the defense
version of the facts. While in
the defendants’ membership in the motorcycle club and impermissible inferences
the jury might draw from that membership, here the gang-related evidence was
limited, was only minimally referred to in the prosecution’s closing argument
and not in his opening statement, and represented only a small portion of the evidence
at trial.
As in Covarrubias, this was not a close case and the evidence was not
uniquely inflammatory. And, as was the
case in Covarrubias, the gang-related
testimony was “far from the primary evidence” of Webb’s guilt. Even without the challenged evidence, the
jury would likely have inferred Webb planned to commit a violent act because he
brought a loaded gun to a party, and stated he would respond to Bridges’s
“banging” by “fuck[ing] him up.” The
challenged evidence was subject to a twice-repeated limiting instruction. The jury deliberated for less than three
hours and concluded that Webb’s actions were willful, deliberate, and
premeditated. (Cf. People v. Cardenas (1982) 31 Cal.3d
897, 907 [admission of cumulative, minimally probative gang evidence was
prejudicial error where prosecution case was “not overwhelming” and jury
deliberated for 12 hours].) As in
admission of the evidence and denial of Webb’s related mistrial motions do not
warrant reversal.
title="">[6]
II. The Trial Court’s Instruction of the Jury
with CALCRIM No. 3471 Was
Not Prejudicial
Webb further contends the trial
court prejudicially erred in instructing the jury with CALCRIM No. 3471. We need not determine whether giving the
instruction was error because any error was harmless.
CALCRIM No.
3471, as given at trial, states: “A
person who is the initial aggressor has a right to self-defense only if:
1. He actually and in good faith tries
to stop fighting; and 2. He indicates by
word or by conduct to his opponent in a way that a reasonable person would
understand that he wants to stop fighting, and that he has stopped
fighting. If a person meets these
requirements, he then has a right to self-defense if the opponent continues to
fight. If you decide the defendant
started the fight using nondeadly force, and the opponent responded with such
sudden and deadly force that the defendant could not withdraw from the fight,
then the defendant had the right to defend himself with deadly force and is not
required to try to stop fighting. The
person does not have the right to self-defense if he or she provoked the fight
or quarrel with the intent to create an excuse to use force.”
Webb
contends no substantial evidence supported the theory addressed by CALCRIM No.
3471, and even if there were substantial evidence to support giving the
instruction, the court erred because the instruction was inconsistent with
Webb’s theory of the case and the defense opposed it. However, we can only conclude that any error
was harmless. We find no “ ‘reasonable
likelihood’ that the jury misconstrued or misapplied the law in light of the
instructions given, the entire record of trial, and the arguments of counsel.” (People
v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
We agree that CALCRIM No. 3471 did
not apply to the facts of this case. But
the court instructed the jury: “Some of these instructions may not apply,
depending on your findings about the facts of this case. After you have decided what the facts are,
follow the instructions that do apply to the facts as you find them.” CALCRIM No. 3471 instructs the jury that a
person who starts a fight only has a right to self-defense if he first tries to
stop fighting. It is not reasonably
probable that the jury construed the exchange between Webb and Bridges as a
“fight,” or that the jury would have concluded Webb could have “stopped
fighting.” There was no evidence that
Webb and Bridges exchanged anything other than words and a gesture before Webb
fired a gun. Defense counsel argued the
instruction was inapplicable because Webb was not the aggressor since he only
stared at Bridges, and there was no “fight.”
The prosecutor did not specifically refer to the instruction, but also
argued there was no physical fighting, stating:
“We don’t even know if a fight would have happened at all,” had Webb not
pulled out a gun. In rebuttal, the
prosecutor noted: “We didn’t get beyond -- we didn’t even get to an argument
here, and the defendant pulled out a gun and killed.”
Without a fight, or in other words,
some form of actual combat or use of force, the instruction cannot be
meaningfully applied. Under the
circumstances, Webb’s “assertion that no substantial evidence supported the
instruction does not warrant our finding reversible error because the jury is
presumed to disregard an instruction if the jury finds the evidence does not
support its application.” (
Cal.App.4th 266, 278.)
Thus, we
find no basis for reversal.
DISPOSITION
The
judgment is affirmed.
BIGELOW, P. J.
We concur:
RUBIN,
J.
FLIER,
J.
told police the Fredo’s Grill party was after the January 12 shooting. At trial, Ross testified she witnessed part
of the Fredo’s Grill incident but also that she had never seen Webb with a gun
before the January 12 party.
testified: “You would hear sometimes ‘40s.’
Sometimes you’d hear ‘60s,’ sometimes you’d hear ‘seven-0,’ sometimes
you would hear ‘Blood.’ Just a variety
of different things.”
