P. v. Dewey
Filed 7/23/13 P. v. Dewey CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
EDWARD J. DEWEY,
Defendant and
Appellant.
2d Crim. No.
B240744
(Super. Ct.
No. BA343051)
(Los
Angeles County)
Edward J. Dewey appeals
a judgment following his conviction for possession
of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1))
(count 3). Dewey was also charged with
murder (§ 187, subd. (a), 189) (count 1) and attempted murder
(§§ 664, 187, subd. (a)) (count 2).
The information alleged he committed those two offenses for the benefit
of a criminal street gang.
(§ 186.22, subd. (b)(1)(C).)
The jury deadlocked on counts 1 and 2, and the trial court declared a
mistrial as to those counts. The court
denied Dewey's requests to exclude photographs taken from his cell phone that
showed, among other things, Dewey posing with a handgun a few days prior to the
date of the charged offenses. We
conclude, among other things, that those photographs were properly admitted 1)
as proof of the charged offenses, 2) to impeach defense witnesses, and 3) as
gang evidence. We affirm.
FACTS
Dewey was a member of
the Southside Montebello gang. Jose Luis
Casillas was formerly an active member of the Eastside Paramount gang.
On July 4, 2008, Santos Ramirez and Casillas went to
a park to "view some fireworks."
When they arrived, a man began staring at Ramirez. He appeared to be aggressive. Ramirez responded by stating, "What's
up?" A second man approached. He "[g]ot in [Ramirez's] face" and
said, "Don't be disrespecting my homie.
This is my fucking vario."
Ramirez replied, "I ain't from around here. I kick it on the east side." Someone hit Ramirez in the face. He fell to the ground and people began to
kick him. Ramirez saw a handgun pointing
at his head. It was not a revolver. He "took off running." Shots rang out. Casillas was shot in the head and he died. The man holding the gun was bald-headed and
was wearing a white shirt.
Four days later the
police arrested Dewey. Dewey was charged
with the murder of Casillas and the attempted murder of Ramirez by firing a
"handgun." He was also charged
with possession of a handgun by a felon on July 4th. He stipulated that he had a 2005 prior felony
conviction.
At trial, Carlos Vargas
testified that on July 4, 2008,
he saw several individuals fighting.
Vargas knew Dewey. He saw Dewey
pull out a silver and black handgun "from his waist." Vargas heard three gunshots. The prosecutor showed Vargas a photograph of
a handgun that was found on Dewey's cell phone (People's exhibit 22). That photograph was taken on June 30, 2008. Vargas said the gun shown in exhibit 22 was
"similar to the handgun" he saw Dewey holding on July 4th. He said Dewey was wearing a white shirt.
Edward Garcia testified
that on July 4, 2008, he and his friends were watching fireworks when
"[he] heard someone say 'gun.'"
He saw a man wearing a white shirt holding a gun.
At the crime scene,
police found nine-millimeter shell casings.
They did not find the weapon.
On July 8, 2008, the police
located Dewey who had been living in a motel room. They arrested him and searched his room. In the search, police found "[d]ifferent
types" of bullets, including nine-millimeter ammunition. They also found a wallet, Dewey's driver's
license, credit cards and a cell phone.
Photographs retrieved from the cell phone showed Dewey posing with a
handgun. The prosecution used some of
the cell phone photographs in its case in chief, contending the gun shown in
those photographs was similar to the gun witnesses saw Dewey holding on July
4th.
In the defense case,
Fernando Valle, a police officer, testified that after the shooting, Vargas
told him the man with the gun was named "Paul." Police detective David Kim testified that
Vargas told him the gun he saw was black.
Kim said that although Vargas referred to the man with the gun as Paul,
he identified Dewey in "a photo lineup."
Donna Hoffman, Dewey's
great aunt, testified that Dewey was a "caring" and
"compassionate" person. She
said he did not have a "character for aggressiveness or acts of
violence." "He's never been
violent." She said he was always
"smiling" and "happy."
The prosecutor showed Hoffman a cell phone photograph. It depicted Dewey posing, making a gang sign
with his fingers and holding a sign, which included the phrase "Montebello
13 'Demon'" (People's exhibit 84).
The defense raised a section 352 objection claiming it showed Dewey
"in gang posture" and "gang circumstances." The trial court overruled the objection. Hoffman viewed the photograph and said Dewey
did not appear that way when she was with him.
The photograph did not change her opinion of him.
Rami Shuraki, a business
manager, testified that Dewey "was definitely nonviolent." On cross-examination, the prosecutor showed
him a cell phone photograph of Dewey and another man each holding a gun to each
others' heads (People's exhibit 64).
Shuraki said, "The time that I knew him, . . . he was
nonviolent. . . . I don't
know what he did at 2:00 in the morning.
I wasn't with him."
Objection
to Photographs of Dewey with a Handgun
At trial, Dewey's
counsel objected to the admission of photographs of Dewey with a handgun which
police found on his cell phone. The
prosecutor said those photographs were relevant because they "show a
handgun similar in description" to the gun seen "by
eyewitnesses." The trial court
overruled the objection. It found that
"the probative value outweighs the prejudicial effect." It said the photographs were taken
"close in time" to the charged offenses and they depict a type of gun
that is consistent with the ballistics evidence.
DISCUSSION
Admitting
Dewey's Cell Phone Photographs
Dewey contends the trial
court abused its discretion by not excluding his cell phone photographs taken
before the July 4th incident. Those
photographs showed, among other things, a handgun and Dewey posing with that
weapon. Dewey claims this evidence was
unduly prejudicial and inadmissible for any purpose. (Evid. Code, § 352.) We disagree.
"'A trial court's
exercise of discretion in admitting or excluding evidence is reviewable for
abuse [citation] and will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.'" (People
v. Brown (2003) 31 Cal.4th 518, 534.)
"Evidence is relevant when no matter how weak it may be it tends to
prove the issue before the jury." (
642, 676.) But "[t]he court in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
The prosecution may
introduce evidence of the defendant's possession of weapons if they are
relevant to prove the charged offenses.
(People v. Homick (2012) 55
Cal.4th 816, 876.) Our Supreme Court has
stated, "'[W]e have also held that when weapons are otherwise relevant to
the crime's commission, but are not the actual murder weapons, they may still
be admissible.'" (
"When the specific type of weapon used to commit a homicide is not
known, it may be permissible to admit into evidence weapons found in the
defendant's possession some time after the crime that could have been the
weapons employed. There need be no
conclusive demonstration that the weapon in defendant's possession was the
murder weapon." (
577, overruled on other grounds in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Photographs of guns that could have been used
to commit the charged offenses may be admitted into evidence. (People
v. Price (1991) 1 Cal.4th 324, 434.)
Here Dewey was charged
with murder (count 1), attempted murder (count 2), and possession of a firearm
by a felon (count 3). The prosecution
alleged that he committed counts 1 and 2 for the benefit of a
committed all three counts with "a handgun." Dewey ultimately was only convicted on count
3. But we review the trial court's
decision from the perspective of the charges pending at the time the court made
its rulings and the grounds for admitting that evidence.
Photographs on the Murder Count
Dewey notes all of his
cell phone photographs and photographs of him with the handgun were taken in
late June. He claims they were not
relevant because they were taken before the July 4th incident. We disagree.
People's exhibit 22 is a
June 30, 2008, photograph of the handgun taken from Dewey's cell phone. The trial court found the handgun depicted in
this exhibit was consistent with the ballistics
evidence. That evidence showed that
the weapon fired on July 4th was a nine-millimeter handgun.
Prosecution's exhibit 63
shows Dewey with a handgun in his waistband.
The trial court found the gun "is partially displayed" as only
the "butt" of the weapon is shown "in the waistband." This photograph was taken on June 29, 2008,
from Dewey's cell phone.
People's exhibit 64
shows Dewey and another man pointing guns at each others' heads. The trial court found the handgun was
"partially displayed" in Dewey's hand. This cell phone photograph was taken on June
30, 2008.
The prosecutor properly
introduced the photograph of the handgun (exhibit 22) and the photographs of
Dewey posing with the handgun (exhibits 63 and 64) to show that the handgun
"could have been" the murder weapon in the July 4th shooting. (People
v. Riser, supra, 47 Cal.2d at p.
577, see also People v. Price,
805 [evidence that defendant possessed a .38-caliber gun prior to the date of
the offenses "clearly" was admissible].)
The trial court said the
photographs were "[v]ery relevant" and were taken "close in
time" to the charged offenses.
Vargas's testimony tied the gun in exhibit 22 to Dewey on July 4th. Vargas said Dewey pulled the gun "from
his waist." Exhibit 63 showed Dewey
with the handgun in his waistband. The
prosecution claimed the man with the gun was right-handed. Exhibit 64 showed Dewey holding the gun in
his right hand.
Dewey cites
1380, 1392-1393, and contends the trial court erred by introducing the cell
phone photographs. In
committing murder with a knife. The
Court of Appeal held the trial court erred by admitting several knives that
police had discovered. It noted that
only two of the knives were properly admitted as relevant evidence. The additional knives were erroneously
admitted because they could not have been the murder weapon. They were not relevant "to determination
of the guilt or innocence of the defendant." (Id.
at p. 1393.) Consequently, where
the prosecution introduces weapons it claims to be the murder weapons, evidence
about other weapons may be excluded. (
Here, by contrast, the
prosecution did not have the murder weapon.
Unlike Archer, the prosecutor
in this case had Vargas's testimony as relevant evidence to claim the handgun
in the photographs was admissible because it could have been the murder
weapon. (People v. Riser, supra,
47 Cal.2d at p. 577.)
Introducing
the Cell Phone Photographs as Evidence on Count 3
The cell phone
photographs were also probative evidence on the possession of a firearm by
felon offense (count 3).
(§ 12021.) They were taken
in late June 2008, only four or five days before the section 12021 offense that
was alleged to have been committed on July 4th.
They showed his access to the weapon and a highly probative course of
conduct. In the days shortly before July
4th, Dewey repeatedly posed with a handgun he was prohibited from possessing as
a felon.
Dewey suggests
photographs taken before the July 4th date charged in the information were not
admissible for the section 12021 offense.
But appellate courts have rejected that claim. (People
v. Neese (1969) 272 Cal.App.2d 235, 244-245 [evidence of defendant's
possession of a gun prior to date of the section 12021 offense alleged in the
information was properly admitted].)
"The proof need not conform to the exact date laid in the
information, it being sufficient to prove the commission of the offense at any
time prior to the filing of the information within the statutory
period . . . ."
(Id. at p. 245.) "Possession of a firearm for even a
limited time and purpose may be sufficient to bring defendant within the
statute." (Ibid.) "'Possession of
[a gun] may be proved circumstantially . . . .'" (Ibid.)
The photographs in
combination with eyewitness testimony
and other evidence constitute strong proof that Dewey possessed the firearm on
July 4th. An expert testified that a
nine-millimeter ammunition round found in a search of Dewey's property had the
same gun markings as the nine-millimeter shell casings found at the crime
scene. (People v. Thompson (1977) 72 Cal.App.3d 1, 5.) Vargas testified the gun shown on Dewey's
cell phone photograph (exhibit 22) was similar to the one he saw Dewey holding
on July 4th. Photographs showing Dewey's
willingness to repeatedly pose with that handgun were admissible and highly
probative evidence on the possession element of the section 12021 offense. (People
v. Neese, supra, 272 Cal.App.2d at pp. 244-245.) Ramirez's description of the man holding the
gun on July 4th was consistent with Dewey's appearance. Dewey claims this evidence was
prejudicial. But "[t]he prejudice
that section 352 'is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative
evidence.'" (People v. Branch (2001) 91 Cal.App.4th 274, 286.) Dewey has not shown error.
Admitting
Dewey's Cell Phone Photographs as Impeachment and Gang Evidence
Dewey contends the trial
court should have excluded prosecution exhibit 84. Dewey and the People claim exhibit 84 shows
Dewey with "a firearm at his waist."
But they are not correct as there is no gun shown in that exhibit. It is simply a cell phone photograph showing
Dewey posing as a gang member. The
prosecution introduced this photograph to impeach Hoffman. Hoffman testified Dewey was not violent or
aggressive. She said he was a very
"caring" and "compassionate" person, and that he was always
happy and smiling. But when she saw this
photograph, she admitted this was not the way he appeared when she was with
him. "'[T]he trial court retains
discretion to admit . . . evidence offered for
impeachment.'" (
The prosecution could show that her positive opinion of Dewey was based
on incomplete knowledge.
The prosecutor also used
a cell phone photograph of Dewey pointing a gun at the head of another man
(exhibit 64) to impeach Shuraki's credibility after he testified that Dewey was
nonviolent. The defense made no objection
and waived a claim of error. (
924.) But even on the merits, the result
is the same.
The defense introduced
Shuraki's and Hoffman's testimony to prove Dewey had a nonviolent
lifestyle. The defense suggested Dewey had
distanced himself from the gang. The
prosecution's gang expert testified that a gang member who wants to distance
himself from the gang would not: 1)
"hang out with fellow gang members" or 2) "take pictures of
himself holding a gun to someone's head." Exhibit 81 showed Dewey with another gang
member and exhibit 64 showed him holding a gun to a man's head. Exhibit 84 showed him posing as a gang
member. The cell phone photographs were
properly introduced as impeachment evidence (People v. Abel, supra, 53
Cal.4th at pp. 928-929; People v.
claim that Dewey was currently living a gang lifestyle (People v. Garcia (2008) 168 Cal.App.4th 261, 277-278 [photograph of
gang members "brandishing guns" was properly introduced as part of
relevant gang evidence]).
Dewey argues this
evidence should have been excluded as cumulative because the trial court
admitted gang expert testimony. But the
prosecution had the burden to prove the gang allegations that the defense was
disputing. The photographs show the most
current view of his lifestyle near the time of the charged offenses. A cumulative evidence objection is properly
overruled where, as here, the evidence may assist "the jury in understanding
and evaluating the testimony presented to them." (People
v. Wilson (1992) 3 Cal.4th 926, 938; see also People v. Crittenden (1994) 9 Cal.4th 83, 134-135 [photographs do
not have to be excluded simply because the prosecution introduced testimony on
the same subject matter].) The
photographs were not unduly prejudicial or inflammatory given the subject
matter and the testimony about the violent nature of the charged offenses. (People
v. Abel, supra, 53 Cal.4th at
p. 929.)
The
Expert's Photograph of a Handgun
Dewey claims it was
prejudicial error for the trial court to admit prosecution exhibit 69, a
"photograph of a profile of a semi-automatic firearm." We disagree.
The prosecution introduced evidence showing the relevance of this type
of weapon for this case.
Moreover, as the People
note, there was no undue prejudice to Dewey.
Dewey was not in this photograph and this was not one of the photographs
from his cell phone. As the prosecutor
noted, it was simply a photograph used "as an example" of the parts
on the firearm and how the firearm leaves "characteristic
marks." The prosecution's expert
used this exhibit to testify how the weapon operates. This was evidence that may be admitted to
show the mechanics of how the crime was committed. (People
v. Lindsay (1964) 227 Cal.App.2d 482, 498.)
The photograph was properly admitted to assist in the presentation of
the expert testimony. (
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Monica
Bachner, Judge
Superior
Court County of Los Angeles
______________________________
Roberta Simon, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code unless otherwise stated. References to section 12021 are to the
version in effect prior to January 1, 2012.
