P. v. Weldon

Filed 8/15/08 P. v. Weldon CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert P. ONeill, Judge. Affirmed.

Lisa M. Bassis for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Appellant Jason Dion Weldon appeals from a judgment entered after a jury convicted him of four counts of robbery in violation of Penal Code section 211.^[1] The jury also found that appellant had committed each robbery for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). We affirm.

CONTENTIONS

Appellant contends that: (1) the trial court abused its discretion in admitting evidence that a witness had been threatened by members of appellants gang prior to trial; (2) the People committed prosecutorial misconduct by vouching for the credibility of a witness; and (3) trial counsels failure to raise prosecutorial misconduct objections constitutes ineffective assistance of counsel.

FACTS AND PROCEDURAL HISTORY

Appellant, a member of the Rollin 60s Neighborhood Crips, goes by the moniker of Lunatic or Tic, and bears the tattoo YG on his abdomen, which stands for young general, a status higher than a soldier in a gang.

On October 2, 2005, appellant and fellow gang members approached Antisa Lindsey (Lindsey) and Shanese Bonman (Bonman) as they were paying for gas at a gas station in Los Angeles. The two women tried to avoid them and rejoin their friends who were waiting in the car. Appellant asked the womens friends, Eddie Magee (Magee) and Sheldon Edwards (Edwards), where they were from. The men replied that they did not bang.

Appellant and at least one other took purses, watches, and necklaces from Lindsey, Bonman, Magee, and Edwards. He and the other men punched and slapped Magee and Edwards. Appellant and his group yelled Six O Crip repeatedly throughout the episode. Appellant and some of his companions drove off, and the victims chased them in their car. The remainder of appellants companions followed the victims in a second car. The second car passed the victims and stopped. The occupants then got out and shot at the victims four or five times.

Prior to presenting evidence about threats made to Magee, warning him not to testify, the prosecutor made an offer of proof to the court at an Evidence Code section 402 hearing. At the hearing, the People represented that a week before trial, members of appellants gang had followed Magee to the DMV, made threats against Magee there, and warned him not to testify. Thereafter, someone fired shots at Magees home, hitting Magees friend several times as he was standing outside Magees house. The trial court admitted the evidence of threats, concluding that it was relevant to Magees credibility, motive, and fear of retaliation, but gave the jury the following limiting instruction. Any evidence of threats, verbally or otherwise, have been received as I stated for a very limited purpose, and that purpose is to determine if at all how those statements would affect this witness testimony, his demeanor in court, his reluctance to testify, his state of mind, that is the only way you can consider the testimony related to these actions that occurred as the witness has testified [about] last week. There is no evidence that [appellant] was involved in any of these actions and you cannot use any of that against [appellant]; it is solely limited to [Magee] and his state of mind and his credibility as a witness.

Lindsey identified appellant at trial. Los Angeles Police Officer David Ross, a gang expert who was assigned to the Rollin 60s Crips gang from 2000 to 2006, had encountered appellant several times before the commission of the instant crime. On each occasion, appellant was in the presence of other Rollin 60s Crips gang members. Officer Ross identified appellant as one of the robbers from a gas station videotape taken during the robbery. He pointed out appellants distinctive hairstyle which he wore every time Officer Ross encountered him, as well as in the videotape. Officer Ross testified that Rollin 60s Crips frequently intimidate witnesses and victims to keep them from testifying. A week before trial, Officer Ross took a report from Magee and noticed that Magee was fearful and intimidated by the threats and was reluctant to report the crime or identify the perpetrators. At trial, Magee testified that he did not want to be in court and that he did not want to testify. He stated that he did not appear at the preliminary hearing because he did not want to cooperate. He further testified that while he was at the DMV, two women asked him if he had testified in court. One of the women was on the phone with a man who told her to tell Magee not to testify. Another man approached him at his car, asked for his address, and said that Six O would come to his house if he did not cooperate with them. The man pushed him and again warned him not to testify. The women and the man then drove away. After Magee returned home and closed his front door, someone shot at the house, hitting Magees friend, who was standing in front of the house, in the neck, side, hand, knee, and leg. Magee identified the man who threatened him and pushed him at the DMV and the woman who drove the car from photographs.

DISCUSSION

I. The trial court did not abuse its discretion in admitting evidence of threats made against Magee

Appellant contends that the threat against Magee had no impact on his testimony and should have been excluded as irrelevant. We disagree.

Pursuant to Evidence Code section 352, the trial court has the discretion to exclude evidence if its probative value is outweighed by the probability that its admission will cause undue prejudice. Evidence of gang involvement has significant probative value on the issue of a witnesss credibility. (People v. Sanchez (1997)58 Cal.App.4th 1435, 1450 [admission of witness testimony that he was afraid to identify the defendant because of the presence of a gang member in his store during the presentation of an photographic array was not an abuse of discretion pursuant to Evidence Code section 352].) Evidence that a witness is afraid to testify is relevant to the credibility of that witness and is admissible. (People v. Sanchez, supra, at p. 1449.) Inconsistent testimony, equivocal responses, testimony regarding fear of testifying, and hesitancy in responding to questions are all directly relevant to witness credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142.)

The admission of gang involvement over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial courts decision exceeds the bounds of reason. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)

Appellant claims that because Magee had always been a reluctant witness and had never been able to identify appellant, the threat was not relevant to explain his demeanor or his inability to identify appellant at trial. We disagree. The jury could well infer that Magee knew from the outset of the robbery that a gang was involved because the attackers repeatedly shouted their gang name. The jury could have believed that Magee was afraid of the gang and that his testimony would be affected by his fear. Indeed, at trial, Magee admitted that he did not want to be there, and did not like testifying, especially in a case like this. He also acknowledged that he did not appear at the preliminary hearing and that he did not want to cooperate. Accordingly, it was up to the jury to evaluate Magees credibility in this context, and we conclude that the trial court did not abuse its discretion when it determined that the probative value of the threats substantially outweighed the prejudicial effect it may have.

Further, appellants argument that the jury linked him to the threats is not persuasive because the trial court specifically admonished the jury that appellant was not involved in the threats, and we presume it followed this instruction. (People v. Guerra, supra, 37 Cal.4th 1142 [jurors presumed to follow admonishment that threats made must not be attributed to defendant].) Nor are we convinced by appellants argument that the instruction improperly implied that the threats influenced Magees testimony. Rather, the instruction clearly directed the jury to determine how, if at all, the statements affected Magees testimony.

In any event, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Even if the evidence of threats had not been admitted, Magee stated that he was reluctant to testify, especially in a case like this. The jury could infer from that statement that he was afraid of the gang. Also, the evidence of appellants guilt was very strong. Both Lindsey and Officer Ross unequivocally identified appellant as one of the robbers at trial. And, in closing argument, appellants trial counsel vigorously argued that Magees inability to identify the robbers was sincere and not out of fear.

We conclude the trial court did not abuse its discretion in admitting the evidence of threats to Magee.

II. The People did not commit prosecutorial misconduct

Appellant contends that the People improperly vouched for the reliability and credibility of Lindsey by representing that she had a photographic memory, even though no evidence on that point was admitted.

We first note that appellant waived the issue by failing to object in the trial court. (People v. Zambrano (2007) 41 Cal.4th 1082, 1154 [failure to object or seek a jury admonition, which could have cured any prejudice, forfeits claim on appeal].)

[A] prosecutor is free to give his opinion on the state of the evidence, and in arguing his case to the jury, has wide latitude to comment on both its quality and the credibility of witnesses. (People v.Padilla (1995) 11 Cal.4th 891, 945, 946 [overruled in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 to the extent that People v. Padilla suggests thata showing of bad faith is required to establish prosecutorial misconduct in argument to the jury].) It is misconduct, however, to suggest to the jury in arguing the veracity of a witness that the prosecutor has information undisclosed to the trier of fact bearing on the issue of credibility, veracity, or guilt. The danger in such remarks is that the jury will believe that inculpatory evidence, known only to the prosecution, has been withheld from them. (People v. Padilla, supra, at p. 946.) Thus, arguments that the witness is going to tell you what happened, and [going] to tell you truthfully; that the witness is probably the most honest witness you heard; that [t]here was a lot of honesty there; and that what the witness tells you is true, are examples of permissible argument. (People v.Stewart (2004) 33 Cal.4th 425, 500-501, italics omitted.) In People v. Stewart, the court held that by drawing inferences as to credibility on the basis of evidence presented to the jury, the prosecutor was not vouching for the credibility of witnesses on grounds not revealed to the jury. (Id. at p. 499.)

Appellant complains that the prosecutor improperly vouched for the credibility of Lindsey during closing argument by twice referring to Lindseys photographic memory that enabled her to remember the license plate and appellants face. Taken in context, however, these brief remarks do not suggest that the prosecutor was relying on evidence that the jury did not hear. Rather, our examination of the transcript convinces us that the prosecutor was commenting on the quality and believability of Lindseys testimony. The prosecutor argued that Lindsey was a credible witness because she testified that she got a very good look at appellants face and she consistently identified appellant through multiple hairstyle and eyeglass changes.

In any event, there was no prejudice. The trial court repeatedly instructed the jury that the arguments of counsel were not evidence and that the jury was required to decide the case based upon the evidence adduced at trial. Furthermore, appellants trial counsel argued that nobody testified that Lindsey had a photographic memory and challenged her description of appellants height. Not only was appellant unequivocally identified as the robber by Lindsey, but also by Officer Ross, which provided an independent basis for conviction. The prosecutors brief remarks did not pervade his argument and could not have resulted in a miscarriage of justice within the meaning of the Constitution. (People v.Stewart, supra, 33 Cal.4th at p. 502.)

III. Ineffective assistance of counsel

Appellant next contends that his trial counsels failure to object to the prosecutors closing argument or to request a curative instruction constitutes ineffective assistance of counsel if this court concludes that his prosecutorial misconduct argument was waived. We conclude that appellant has failed to show ineffective assistance of counsel.

In order to show ineffective assistance of counsel, the defendant must show that his counsels representation fell below an objective standard of reasonableness under prevailing professional norms; and the defendant suffered prejudice such that in the absence of counsels failings, the result would have been more favorable to the defendant. (In re Jones (1996) 13 Cal.4th 552, 561-562.) Here, appellants trial counsel used the prosecutors use of the term photographic memory as a strategy to undermine Lindseys testimony by arguing that there was no evidence that she had a photographic memory, and pointing out that same photographic memory was flawed because she had testified that appellant was five foot six, when he was actually six feet tall. And, as previously discussed, appellant suffered no prejudice from the prosecutors brief statements. We therefore conclude appellant failed to show ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.

CHAVEZ

We concur:

_________________________, Acting P. J.

DOI TODD

_______________________, J.

ASHMANN-GERST

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^[1] All subsequent code section references are to the Penal Code unless otherwise indicated.