P. v. Russell
Michael Russell committed multiple crimes with his cousins, Stephan Cartwright and Sidney Maiden. Following a trial severed from that of his relatives, a jury found Russell guilty of two counts of attempted first degree robbery (Pen. Code § 664/§ 212.5, subd. (b));[1] three counts of assault with a deadly weapon (§ 245, subd. (b)); two counts of second degree robbery (§ 212.5, subd. (c)); one count of possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)); and one count of active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found true enhancement allegations that Russell personally used a firearm during the second degree robbery and gang participation offenses (§ 12022.5, subd. (a); § 12022.53, subd. (b)), and that he acted for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). Russell was sentenced to a total prison term of 38 years and eight months.
Russell raises two issues on appeal. He challenges the trial court’s denial of his request to display tattoos on his arms to the jury, a request made following police testimony which described the tattoos as being red in color, apparently suggesting affiliation with the Bloods street gang. The court ruled that such a display would be testimonial for purposes of the Fifth Amendment and impermissible unless Russell subjected himself to cross-examination. Russell claims this was reversible error.
Russell also challenges the convictions and findings related to his personal use of a firearm. He asserts the jury’s verdict was based on “physically impossible†and/or “inherently improbable†eyewitness testimony. These arguments flow from the contention made at trial, and again on appeal, that Russell’s left arm is paralyzed.
While we agree that the ruling which prohibited Russell from displaying his tattoos to the jury was erroneous, the error did not affect the verdict and was therefore harmless. Furthermore, the record discloses substantial evidence to support the jury’s true findings concerning the gang allegations and his personal use of a firearm. We affirm the judgment.
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