P. v. Boxie

Filed 7/9/09 P. v. Boxie CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Affirmed.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

Jarrod Anthony Boxie was convicted by a jury of attempted first degree residential burglary. (Pen. Code, 459, 664.) The jury, however, found not true the allegation that the attempted burglary was committed for the benefit of a criminal street gang. After the trial court found that Boxie had suffered prior convictions (667.5, subd. (b)), he was sentenced to three years in state prison. He appeals on the sole issue of whether the trial court erred when it denied his motion to bifurcate the trial of the gang allegation from the trial of his charged offense. We affirm.

FACTS AND PROCEEDINGS

I. Commitment Crime

On March 6, 2007, Mark Ricketts alarm was activated when one of the side doors to his home was kicked open. A camera mounted on Ricketts garage, triggered by a motion sensor, recorded the event. The time and date stamped on the video showed a group of men in Ricketts backyard at approximately 2:52 p.m. One of the men kicked in his door but they left when the alarm sounded. The video also showed three men, including Boxie, in Ricketts backyard earlier in the day at 12:50 p.m. The video did not show Boxie on Ricketts property at 2:52 p.m. when the door was kicked open.

Ricketts reported the break-in to Officer Christopher Campagna, a member of the Los Angeles Police Departments gang enforcement detail. Officer Campagna watched Ricketts video recording and obtained a copy from him. Campagna also printed still shots of the men seen in the recording. Because one of Campagnas duties at the time was to document the different gang members in the area and because he knew that gang members had been responsible for other burglaries in the area, he reviewed the tape a few times to note distinguishing characteristics of the people in the video, including height, hair line and tattoos.

On April 1, 2007, Campagna and his partner were conducting a crime suppression effort around Western Avenue and 92nd Street in Los Angeles when Campagna saw Boxie. Because he thought Boxie bore a striking resemblance to one of the men in Rickettss video, they arrested him and transported him to the 77th Street Station. Once there, they admonished him of his Miranda[1]rights via a written form supplied by the police department. On the form, Campagna wrote, yes after each admonishment and Boxie initialed each response.

II. Gang Evidence

Boxie admitted to Campagna that he was a member of the Rolling 90s Neighborhood Crips. Boxie told Campagna that he had gone to Ricketts home with two members of the Rolling 30s Harlem Crips to fight someone he thought had robbed his mothers house several years ago. One of his companions kicked in the door and Boxie waited to see if anyone would come out to fight him. When no one did, Boxie decided to leave. Campagna paraphrased Boxies story in a written statement and had Boxie review it and sign it. Although Boxie denied he knew it was a burglary, Campagna also noted in his report that Boxie told him, After a few minutes, I decided to leave because I didnt want to be part of the burglary anymore. Although he was not in the interview room the entire time, Campagnas partner corroborated the statements made in Campagnas report.

At trial, the People presented testimony from Officer Bobby Romo as a gang expert who had focused on the Rolling 90s Neighborhood Crips for the past one and a half years. He identified Boxie as a Rolling 90s Neighborhood Crips from his tattoo and from interviews with other members of the gang. Romo testified that Crips gangs are often divided into neighborhoods and that the Rolling 90s, 60s and 30s were subdivisions of the same gang and often worked together to further the goals of the Crips umbrella organization. Finally, Romo opined that the burglary of Ricketts home was made for the benefit of the gang to obtain guns, money, and other valuables.

III. Request to Bifurcate

Boxie moved to bifurcate the trial of the gang enhancement from the trial of the charged offense on the ground the evidence of gang activity was more prejudicial than probative. The trial court denied the request, finding:

I just think the problem you have here is you have a group of gang members that are associating together. And there are somesome inferences that could be drawn from that. And the jury is entitled to know that, when a group of people who belong to an overall gang structure do something, that one of the reasons they commit crimes is to bring back benefits to the gang. And among the benefits they bring back are money, in the case of stealing or in the case of selling drugs; or the other thing that they can bring back sometimes is, if they break into houses, it may be to get guns and so forth.

But I think this is something that, based on my overall reading of the preliminary hearing transcript, I think theit is prejudicial. Theres no doubt about that, but I think the probative value here outweighs the prejudicial value, and it helps explain to the jury why these people were working together, whey these four or five people were working together and doing what they were doing.

Boxie was convicted and sentenced as discussed above. He timely appealed.

DISCUSSION

While it is true that a trial court has discretion to bifurcate the trial of a gang enhancement allegation from the guilt of the underlying charge, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) We find no abuse of discretion in the trial courts denial of Boxies request for bifurcation. We agree with the trial court that evidence of gang membership was relevant to motive. (Id. at p. 1050.)

The evidence showed the attempted burglary was a coordinated effort by members of the same gang organization to further the purposes of the gang. Romos expert testimony helped the jury understand why that particular group of people worked together to break into Ricketts home. Also, the evidence of Boxies gang affiliation was independently admitted by his own statement to Campagna about his membership in the Rolling 90s Neighborhood Crips and the other individuals membership in other subsets of the Crips gang.

Even assuming the gang evidence should have been bifurcated (People v. Hernandez, supra, at pp. 1047-1051; cf. People v. Albarran (2007) 149 Cal.App.4th 214, 227), the record shows that the gang evidence was not so inflammatory that it threaten[ed] to sway the jury to convict regardless of [Boxies] actual guilt since the jury found the gang allegation not to be true. Boxie has not met his burden to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (People v. Hernandez, supra, at p. 1050.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

FLIER, Acting P. J.

BAUER, J.*

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[1]Miranda v. Arizona (1966) 384 U.S. 436.

* Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.