P. v. Crawford
Filed 11/14/13 P. v. Crawford CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIN CRAWFORD,
Defendant and Appellant.
C071437
(Super. Ct. No. 09F07975)
In
May 2012, a jury found defendant Erin Crawford guilty of
personally used a gun. The trial court
sentenced him to 12 years in state prison.
Defendant’s
focus on appeal centers on a photographic exhibit of him, in which
he appears to be holding a gun. He
contends the trial court abused its discretion under Evidence Code section 352
in admitting the photo into evidence, and trial counsel was ineffective for
failing to argue other bases for excluding it.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In
August 2009, the pregnant victim and her husband had returned to their home
after an outing at about 9:45 p.m. They parked the car in their stall
immediately in front of their apartment, and began to unload the trunk. As her husband handed her purse to the
victim, two men approached them from behind.
Both were masked. One of them
snatched the purse from the victim with sufficient force to bruise the shoulder
on which she had started to place the strap.
The robber holding the purse jumped over a nearby fence. The remaining robber was unsuccessful in his
first attempt to scale the fence. As the
husband started to approach him, the second robber pulled up his shirt. The victim heard him tell her husband that he
had a gun, but did not see one. Her
husband, who did not recall either of the robbers saying anything, could see
what appeared to be a “silver-looking gun†(of the type that loads from the
bottom with a magazine and has a slide on the top) tucked into the second
robber’s waistband. The second robber
pulled it out slightly, indicating that the husband should not pursue him. The armed robber then successfully jumped
over the fence.
Neither
the victim nor her husband could identify the robbers because of the
masks. To the husband, the first robber
appeared thinner and the second appeared out of shape. The purse-snatcher was about six feet tall,
and the armed robber was a couple of inches shorter. The husband had been approached a couple of
days earlier out of the blue by a couple of Latino neighbors when he was
outside, who had engaged him in what he thought was a “suspiciousâ€
conversation. Because he saw these
neighbors drive away at a high rate of speed after the robbery, he initially
described the robbers as being Latino during the 911 call. (These neighbors actually were Indian, and
were in fact attempting to chase down the robbers, but lost them in the
darkness of a field.) However, in
talking to the police later, the husband “was pretty positive†the robbers were
“two Black males†because “their hands look[ed] dark.†The victim also saw dark skin through the
eyeholes of the masks. Although she
could not identify defendant in court as one of the robbers, she thought his
eyes protruded in a similar fashion to one of the robbers.
The
victim had run away, screaming for help while dialing 911 on her cell
phone. One of the neighbors was standing
outside talking on his cell phone when she caught his attention. Based on the skin color of their exposed
wrists, he believed the robbers were “two Black males.†Before the second robber had vaulted the
fence, he removed his mask and the neighbor could see his face momentarily, and
his dreadlocked hair. He was about 100
feet away. However, as he admitted to the
police, it was dark and he could not get a good look.
On
their return, the Indian neighbors found a cell phone at the base of the wall
where the robbers had scaled it. They
gave it to the police, who were talking to the neighbor who had seen the one
robber’s face. The neighbor looked at
the cell phone’s “wallpaper†and recognized it as a picture of the robber he
had just seen. The neighbor later
selected defendant’s picture in a photo lineup that police had prepared after
identifying defendant as the person owning the phone; the neighbor was 60
percent certain of the identification.
In
examining the Kyocera cell phone, the police determined there had been an
exchange of calls between defendant and his then-girlfriend shortly before the
robbery. The girlfriend also attempted
to call the phone later on the night of the robbery. There was a photo stored to the cell phone a
week earlier. It showed defendant
holding what appeared to be a silver gun.
In the opinion of the investigating detective, this was a real gun
because a replica typically has a different-colored tip, usually orange. She could not tell from the picture if it was
an “airsoft†gun (one which fires air-pressured rounds).
When
interviewed in October 2009, defendant asserted that he had lost the cell phone
soon after buying it. At trial,
defendant testified the lost phone was a different one. His girlfriend had bought the recovered cell
phone for him, and had playfully seized it from him on the day before the
robbery. He believed it was still in her
possession on the day of the robbery, when he went to dinner and a movie with
his girlfriend and her family. The gun
in the picture of him was a BB gun that was in his girlfriend’s possession;
just before taking the picture, she had pretended to threaten to kill him with
it if he ever were unfaithful to her. When she saw that he took her seriously, she
asked him to pose with it because she found “bad boys†arousing. She took the gun back after photographing
him. Defendant never felt the need to
have his former girlfriend produce the BB gun in his defense.
DISCUSSION
Before
trial, defense counsel sought to exclude the photo of defendant with the gun,
asserting “No gun was ever recovered from the scene of the robbery. No gun was ever recovered from [defendant’s]
home or person.†The prosecutor argued
that the victim’s husband had described what appeared to be a silver
semiautomatic handgun, and defendant was holding what appeared to be a silver
semiautomatic handgun in the photo.
Defense counsel pointed out that the prosecution had never even
established a foundation for the photo by asking the husband whether the gun in
the photo looked like the one he had seen in the robbery. In admitting the photo, the trial court
concluded it was highly probative because it showed defendant possessed a gun
similar in attributes to the one that the husband had described. It did not find any prejudice substantially
outweighing this probative value.
Defendant
argues that without any evidence that it was the same gun, the photo did not
have any probative value other than the impermissible inference that because he
posed in the past with what appeared to be a gun, he was the robber holding a
similar gun. As a result, trial counsel
was ineffective for failing to move to exclude the photo on this basis
pursuant to section 1101 as improper character evidence. Defendant also contends the trial court
abused its discretion in balancing what he considers minimal at best probative
value against the substantial prejudice of depicting him as a person who would
pose with a gun.
Other
than debate general principles of relevance and prejudice, neither of the
parties discuss directly relevant precedent involving the admission of evidence
of a defendant’s possession of weapons.
As is succinctly explained in People
v. Rinegold (1970) 13 Cal.App.3d 711, 720-721, “Where the
prosecution’s evidence is circumstantial, an implement by means of which it is
likely that a crime was committed is admissible in evidence if it has been
connected with the defendant [citations].
If the specific type of weapon
used to commit a homicide is not known[,]
any weapons found in the defendant’s
possession after the crime that could have been employed are admissible.
conclusive demonstration that the weapon in defendant’s possession was the murder
weapon. But if the prosecution
weapons were found in the defendant’s possession, as this tends to show not
that he committed the crime but only that he is the sort of person who carries
deadly weapons (People v. Riser
[(1956)] 47 Cal.2d 566, 576-577; [citations]). [¶]
The distinctions set forth in [Riser]
are not exclusively applicable to homicide cases [citations] and provide a
useful guide for the instant case where we are not concerned directly with the
admission of the weapon but testimony that the day before the assault, [the] defendant
was seen with a revolver.†(Some italics
omitted, our italics added.) As a
result, “testimony that defendant had a revolver the day before the assault . . .
would tend to connect defendant with the crime†and was relevant on that
basis. (Rinegold, at p. 721.)
Similarly, in Riser, the
defendant’s possession of a holster for a gun consistent with the caliber of
the unknown murder weapon was “clearly admissible†(Riser, supra,
47 Cal.2d at p. 577) because it tended to connect the defendant with
the crime and was thus relevant. (1 Jefferson, Cal.
Evidence Benchbook (Cont.Ed.Bar 2d ed. 1982) § 21.4,
pp. 551-552.) Consequently,
defendant is incorrect that the photo is irrelevant except on the
inadmissible basis of improper character evidence,
and trial counsel accordingly could not have been ineffective in failing to
raise this inapplicable ground for exclusion.
(People v. Thompson (2010) 49 Cal.4th
79, 122 [no duty to make futile objections]; People v. McPeters (1992) 2 Cal.4th 1148, 1173 [no duty to
make frivolous objections].)
As
for his argument regarding the trial court’s application of section 352, the
photo had more than minimal probative value under the above principles. Although defendant adverts to the possibility
that it was not necessarily a real gun, this ultimately is beside the
point. The gun displayed during the
robbery also could have been a replica, but it was used to good effect in
thwarting resistance from the husband.
The relevance lay in defendant’s possession of a similar implement,
regardless of whether either of them was a real gun or not. (The use of even a replica to effect a
robbery is sufficient to support a finding of personal use (
1432, 1437).) We also do not find that
there was a high risk that the jury would decide the case based on an
emotional bias against defendant unrelated to the evidence and issues (
390, 439) for photographing himself with a gun.
Again, this is not an act illegal of itself and we are certain that
there are numerous otherwise law-abiding citizens whose pride in gun ownership
would be reflected through photographing themselves with their weapons. In rejecting the merits of defendant’s
substantive claim, we necessarily reject his further argument that admission of
the photo evidence had the result of depriving him of due process.
Furthermore,
this was not a case in which the guilty verdict could only be the product of
the challenged photo evidence.
Defendant’s alibi and explanation that his cell phone was in his
girlfriend’s possession did not begin to account for the presence of his Kyocera
cell phone beneath where the robbers scaled the wall, and the exchange of phone
calls with his girlfriend just before the robbery, evidence of which was stored
on that phone, along with the photo at issue.
Even if the identification evidence otherwise was not the strongest, we
are convinced beyond a reasonable doubt that the verdicts would not be
different if the photo evidence were to be excluded.
DISPOSITION
The
judgment is affirmed.
BUTZ ,
J.
We concur:
NICHOLSON , Acting P. J.
HULL ,
J.
Evidence Code.
name="_ftn2" title="">[2] Moreover, possession of weapons—not being an
illegal act per se—does not even constitute evidence of a character trait
excluded pursuant to section 1101 unless the prosecution is seeking to
introduce it as proof of intent (1 Jefferson, Cal. Evidence Benchbook,
present case.
