P. v. Garnett

Filed 1/19/10 P. v. Garnett CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed.

Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

Farrar Garnett appeals from the judgment entered following his conviction by a jury for murder and attempted murder with special findings by the jury Garnett had personally discharged a firearm causing death or great bodily injury and had committed the offenses to benefit a criminal street gang and by the court in a bifurcated proceeding he had suffered a prior serious or violent felony conviction. On appeal Garnett argues the trial court erred in failing to bifurcate the trial of the gang enhancement allegations from the trial of the substantive offenses and there was insufficient evidence to support the jurys true findings on the gang allegations. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1.      The Charges

Garnett was charged by information with murder (Pen. Code,  187, subd. (a))^[1](count 1), attempted willful, deliberate and premeditated murder ( 187, subd. (a), 664) (count 2)and possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 3). As to the murder and attempted murder charges, the information specially alleged Garnett had personally used a firearm ( 12022.53, subd. (b)), personally and intentionally discharged the firearm ( 12022.53, subd. (c)) and, as a result of discharging the firearm, caused great bodily injury or death ( 12022.53, subd. (d)) and those offenses were committed to benefit a criminal street gang ( 186.22, subd. (b)(1)(A)).^[2] The information also specially alleged Garnett had suffered one prior serious or violent felony conviction within the meaning of section 667, subdivision (a)(1), as well as the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served two prior prison terms for felonies ( 667.5, subd. (b)). Although Garnett initially pleaded not guilty and denied the special allegations, before trial he withdrew his not guilty plea with respect to count 3 and pleaded nolo contendere.

2.      Summary of the Evidence Presented at Trial

a.       The Peoples evidence

On May 14, 2005 Maurice Brown, his fiance, Haneefa Gibson, and his brother Danny drove in Maurices Ford Expedition to Tobos, a bar in Long Beach.^[3] Danny testified the group left Tobos after they had had a couple of drinks because he noticed the bar was decorated with banners in black and graythe colors of the Insane Crips gangand became uneasy. Danny, who said neither he nor Maurice was a gang member, believed a friend of the Insane Crips had been buried that evening.

Gibson got into the front passenger seat of Maurices Expedition; Danny sat behind Gibson. Maurice drove out of his parking space but stopped to wait behind the car of his niece, Shawndrika, who was going with them to another bar. While they were waiting, Danny noticed a person with a gun, wearing a black hoody over his face, approach the Expedition. Danny testified all he could remember after this point was that the Expedition accelerated and hit a pole. Maurice was killed by gunshot wounds to his head and chest. Danny was shot six or seven times, resulting in multiple surgeries and the need to wear leg braces.

Shawndrika testified, when the Expedition stopped behind her car, Gibson began talking through the open passenger door window to Latoya Burger,^[4]who was sitting in her car parked next to Shawndrika. While they were talking, Shawndrika saw Garnett, whom she recognized from school, and a man she knew as Cocktail walk across the street and then to the parking lot. Garnett approached the drivers side of the Expedition. Shawndrika heard gunshots and saw flashes from a gun in Garnetts hand before the Expedition accelerated and crashed.

Burger testified that, while she was talking to Gibson, she saw Garnett walk behind the Expedition and then heard gunshots. As the Expedition drove away, Garnett ran behind it, shooting. Burger had met Garnett about five months before the incident and knew him as Little Crawf. Burger, who was 33 years old at the time of trial, admitted she had been in the Insane Crips gang since she was 14 years old but claimed she had retired in 1998. Nevertheless, Burger kept apprised of the gangs activities and knew Garnett and Cocktail were members.

Burger drove to the police station immediately after the shooting and was interviewed by Long Beach Police Detective Hector Gutierrez. Burger identified Little Crawf as the shooter, describing him as five feet nine inches tall and wearing a white shirt with horizontal stripes, and said Cocktail was with him at the time of the shooting. Burger later identified Garnett and Cocktail from photographs.

Long Beach Police Officer Ernest Armond testified, while he was booking Garnett after his arrest on February 9, 2006, Garnett told him he had been a member of the Insane Crips for nine years and used the moniker Lil Crawf. Long Beach Police Officer Bryan McMahon testified Garnett has Insane tattooed in large block letters across the back of his shoulders, and a photograph of the tattoo was introduced into evidence.

Detective Gutierrez, who had been assigned to the gang unit in Long Beach for 14 years, testified as a gang expert. Gutierrez explained the Insane Crips was a criminal street gang involved in, among other crimes, murder, robbery, carjacking, felony assault and narcotic sales. The Insane Crips and the Rolling 20s Crips, a rival gang claiming some of the same territory, used to be one gang; but they had been feudingincluding shooting, stabbing and assaulting each otherfor at least the 18 years Gutierrez had been a police officer. According to Gutierrez, although Tobos was more an Insane Crips bar, members of both gangs went there; and there had been numerous shootings between the gangs at that location. Gutierrez knew Maurice and Dannys sister, Tasha, and said she was a pretty high up on the ladder member of the Rolling 20s Crips and a shot caller.^[5] Gutierrez, however, did not personally know Maurice or Danny (prior to the incident) or whether they belonged to a gang.^[6]

Detective Gutierrez opined the offenses in this case were committed to benefit a criminal street gang based on facts including the shooting had occurred at Tobos, Burger and Shawndrika had identified an Insane Crips gang member as the suspect, Garnetts own self-identification as an Insane Crips gang member, the presence of Cocktail (another Insane Crips member) at the incident and the familial relationship between Maurice and Tasha, who was a high ranking member of the Rolling 20s Crips. The shooting, according to Gutierrez, benefited the Insane Crips because it communicated the gang was violent and to be feared, thus minimizing the chance community members would cooperate with law enforcement to solve crimes and discouraging rival gang members from attacking Insane Crips gang members.

b.      The defenses evidence

Garnett did not testify in his own defense. Michelle Sanford, who had known Garnett for about 10 years, testifying for the defense said she had been drinking in a friends car parked about 54 feet away from the Ford Expedition when she heard gunshots and saw a flash inside the Expedition and the outline of a person near the vehicle. Sanford said the person, who she estimated was five foot eight inches tall, was too short to have been Garnett, who is six feet two inches tall.

3.      The Jurys Verdict and Sentencing

The jury found Garnett guilty of first degree murder and attempted willful, deliberate and premeditated murder and found true the firearm-use and criminal street gang allegations. In a bifurcated proceeding Garnett admitted the prior serious felony conviction and prior prison term allegations.

The trial court sentenced Garnett to an aggregate state prison term of 135 years to life: 25 years to life for murder, doubled pursuant to the Three Strikes law, plus 25 years to life for personal use of a firearm causing death or great bodily injury and five years for the prior serious felony enhancement; and a consecutive term of 15 years to life for attempted murder (because of the criminal street gang enhancement; see  186.22, subd. (b)(i)), doubled pursuant to the Three Strikes law, plus 25 years to life for the firearm enhancement. The court imposed a concurrent 16 month term (the lower term) for possession of a firearm by a felon, doubled pursuant to the Three Strikes law, and dismissed the prior prison term enhancements pursuant to section 1385.

DISCUSSION

1.      Denial of Garnetts Motion To Bifurcate Did Not Violate His Right to Due Process

To obtain a true finding on a special allegation of a criminal street gang enhancement, the People must prove the crime at issue was committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . ( 186.22, subd. (b)(1).) To prove a gang is a criminal street gang, the prosecution must demonstrate it has as one of its primary activities the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and it has engaged in a pattern of criminal gang activity by committing two or more such predicate offenses. ( 186.22, subds. (e), (f); see People v. Gardeley (1996) 14 Cal.4th 605, 617.)^[7]

Bifurcation of the trial of a gang enhancement allegation is permitted, but the decision to bifurcate lies within the discretion of the trial court. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050.) As the Supreme Court observed in Hernandez, gang evidence often is relevant to establish motive, identity, modus operandi or specific intent. (Id. at p. 1049.) Bifurcation is required only when evidence of the predicate acts required to establish the gang enhancement, which need not be related to the charged crime or even the defendant, is unduly prejudicial or when gang evidence relating to the defendant is so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendants actual guilt. (Ibid.)

Garnett does not dispute the propriety of the trial courts denial of his motion to bifurcate the gang enhancement prior to the commencement of trial.^[8] Rather, Garnett contends, as in the context of a motion to sever joined charges, even if a trial courts ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts or defendants for trial resulted in gross unfairness depriving the defendant of due process of law. (People v. Soper (2009) 45 Cal.4th 759, 783.) Garnett argues the primary issue in the case was the identity of the shooter and the highly prejudicial gang evidence introduced to establish motive as a means of proving identity was negligibly probative because there was no clear rivalry between the Insane Crips and the Rolling 20s Crips. Garnett also argues determining whether Shawndrika and Burger were more credible than Sanfordthe key to proving the shooters identitydid not require consideration of any gang evidence.

The analogy between bifurcation and severance is not perfect. (People v. Hernandez, supra, 33 Cal.4th at p. 1050.) Assuming, however, it is appropriate to determine on appeal whether bifurcation, like severance, in fact resulted in gross unfairness, Garnetts burden to demonstrate prejudice is high. (See People v. Falsetta (1999) 21 Cal.4th 903, 913 [admission of relevant evidence will not offend due process unless that evidence is so prejudicial as to render the defendants trial fundamentally unfair]; Kotteakos v. United States (1946) 328 U.S. 750, 764 [66 S.Ct. 1239, 90 L.Ed. 1557] [[i]f, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand]; United States v. Lane (1986) 474 U.S. 438, 449 [106 S.Ct. 725, 88 L.Ed.2d 814] [[a]n error involving misjoinder affects substantial rights and requires retrial only if the misjoinder results in actual prejudice because it had substantial and injurious effect or influence in determining the jurys verdict]; People v. Albarran (2007) 149 Cal.App.4th 214, 229 [[t]o prove a deprivation of federal due process rights, [defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial].) We start with the premise that, [t]o the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. (See People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) We also consider, from the severance context, the independent evidence of the defendants guilt actually introduced at trial. (See People v. Turner (1984) 37 Cal.3d 302, 313, overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1149.)

The gang evidence bearing on motivethe ongoing conflict between the Insane Crips and Rolling 20s Cripswas not as unequivocal or minimally probative as Garnett argues. To be sure, as Burger testified, she had friends and family who were members of the Rolling 20s Crips even though she had been a member of the Insane Crips and they all got along. Danny also testified he knew and spent time with members from both gangs who all grew up together. And, members from both gangs frequented Tobos. But Gutierrez testified the two gangs had been feuding for more than 18 years and there had previously been shootings at Tobos. Even Burger acknowledged that, although the gangs generally had been able to get along when she was an active member, there had been some shootings and she believed there was tension between the gangs before Maurice was murdered. The evidence the shooting may have been part of a long-lasting feud that waxed and waned in intensity over the years was properly offered to assist the jury in determining whether to credit Shawndrika and Burgers identification of Garnett or Sanfords claim it could not have been Garnett because the shooter was shorter than Garnett. It was also relevant to the question whether Garnetts offenses were committed with premeditation or deliberation. Thus, as evidence relevant to the substantive offenses, properly weighed by the jury to determine whether the People or the defenses characterization of the relationship between the two gangs was more accurate, any inference of prejudice is dispelled.

The independent evidence of Garnetts guilt was also strong. Although there were some conflicts in the descriptions of the shooterwhat he was wearing and whether he had a baseball cap, hoody or do-rag on his headthese are the kinds of differences in the details of an identification that can be expected. Indeed, both Shawndrika and Burger, who were much closer to the gunman than Sanford when the shooting occurred, clearly recognized Garnett. Sanford, on the other hand, admitted that she was looking down at the drink she was pouring when she heard gunfire and that it was difficult to see when she looked up because of the glare from the shots. Although important to ensure the People proved its case beyond a reasonable doubt, the gang evidence relevant to motive and intent was not so extraordinarily prejudicial, and of so little relevance to guilt that it is likely the jury convicted Garnett regardless of his actual guilt. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.)

With respect to any undue prejudice from admission of the predicate acts to show a pattern of criminal activity, neither the general list of crimes committed by the Insane Crips nor the evidence of the predicate acts (murder, attempted murder and various felonies) was particularly inflammatory or heinous. Moreover, any potential for undue prejudice was mitigated by the trial courts limiting instruction: Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes for which defendant is on trial. This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered only by you for the limited purpose of determining if it tends to show that the crime or crimes charged were committed 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 any criminal conduct by gang members. We, of course, must presume the jury understood and followed this limiting instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139 [we and others have described the presumption that jurors understand and follow instructions as [t]he crucial assumption underlying our constitutional system of trial by jury].)

2.      Substantial Evidence Supportsthe Jurys True Findings on the Criminal Street Gang Enhancements

To assess a claim of insufficient evidence in a criminal case, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdicti.e., evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.] [Citation.] A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jurys verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

Garnett does not dispute the jurys findings the crimes were committed for the benefit of, at the direction of or in association with the Insane Crips gang. He contends only the evidence of a rivalry between the Insane Crips and the Rolling 20s Crips was too weak to support the inference he specifically intended to promote, further, or assist in any criminal conduct by gang members ( 186.22, subd. (b)(1)). Rarely is there direct evidence of the defendants mental state; specific intent must often be inferred from circumstantial evidence. (People v. Beeman (1984) 35 Cal.3d 547, 558-559.) Thus, [c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198-1199 [intent to commit robbery in association with other known gang members supported inference of intent to assist criminal conduct by fellow gang members].) In addition, a jury may rely on expert testimony about gang culture and habits to reach a verdict on a gang-related offense or a finding on a gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 [expert testimony drug offense was gang-related plus evidence defendant received permission from a gang to sell illegal drugs at a mall and admission of gang membership constituted sufficient circumstantial evidence defendant intended to benefit gang].)

As discussed, the evidence of the rivalry between the two gangs was not as weak or equivocal as Garnett contends. This evidence, supported by Detective Gutierrezs testimony the crimes were committed to benefit the Insane Crips and the evidence Cocktail, another Insane Crips gang member, walked across the street with Garnett and returned with him seconds before the shooting occurred, was sufficient for the jury to infer Garnett shot at the Ford Expedition with the intent to benefit the gang.

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Statutory references are to the Penal Code unless otherwise indicated.

^[2] For simplicity on occasion this opinion uses the shorthand phrase to benefit a criminal street gang to refer to crimes that, in the statutory language, are committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b).)

^[3] Because Maurice, Danny and other members of the Brown family share the same last name, we refer to them by their first names for convenience and clarity. (See Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)

^[4] Burger testified she was Maurice and Dannys cousin; Danny testified Burger was simply a close family friend, raised mostly by his father since she was a baby.

^[5] Tasha was murdered during an earlier trial in this case, resulting in a mistrial.

^[6] Burger testified Danny, who she believed was about 36 years old at the time of trial, had been involved with the Rolling 20s Crips when he was in his early twenties. Burger also said other members of Danny and Maurices family associated with the Rolling 20s Crips.

^[7] To establish a pattern of criminal activity, Gutierrez testified Hector Miles, who had convictions in 2000 for murder and attempted murder, and Donald Arrington, who was convicted in 2003 for various felonies, were members of the Insane Crips.

^[8] The trial court denied Garnetts bifurcation motion on the grounds the facts being presented by the People [are] so intertwined with the gang allegation and the evidence of [Garnetts] gang membership [was] admissible at trial on the charged offense to establish motive, identity or whatever.