P. v. George

Filed 3/19/07 P. v. George CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael K. Kellogg, Judge. Affirmed.

Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

Travis George (appellant) was convicted by a jury of the murder of David Anthony Lyles. (Pen. Code, 187, subd. (a).)[1] The jury also found that a principal personally used and discharged a firearm, causing great bodily injury and death ( 12022.53, subds. (b), (c), (d), and (e)), and that the murder was committed for the benefit or at the direction of a criminal street gang ( 186.22, subd. (b)(1)(A)). Appellant was sentenced to 50 years to life in state prison. He appeals, contending that the court erred by refusing to admit evidence of a witnesss prior inconsistent statement, denying his motion for mistrial, and refusing to allow a defense witness to testify as a gang expert, and that the cumulative effect of the above errors deprived him of a fair trial and his constitutional right to due process. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 18, 2004, David Anthony Lyles was shot in front of 921 West 62nd Street and died shortly thereafter. Marasho Mazique testified that on December 18th, he and his sons were at a birthday party at the home of his neighbor, Michael Hammond, on West 62nd Street near Menlo Avenue. Lyles arrived at the party at around 6:30 p.m. Mazique left the party and went home. At approximately 8:30 p.m. Mazique heard eight gunshots in rapid succession coming from the street. Mazique went outside and saw Lyles in the street. Lyles was screaming, Marasho, Im hit. Mazique saw Lyles looking in the direction of two males running toward Menlo Avenue. One was wearing a red t-shirt and the other was wearing a white t-shirt. Both were wearing blue jeans. Lyles said, Those are the motherfuckers that shot me, and began firing a gun at the two men. The men got into a car and left. Lyles collapsed and Mazique took him into Maziques car. Mazique took Lyless gun and later gave it to Lyless wife, Jacquelyn.

Michael Hammond testified that he was outside his house when he heard 10 to 11 gunshots from a few feet away. Hammond heard Lyles scream that he was shot and saw him stumble into the middle of the street. Hammond saw two men running toward Menlo. One was wearing a white T-shirt.

Both Mazique and Hammond testified that their neighborhood was in the territory of the Brims street gang, which was an offshoot of the Bloods.

That night, Los Angeles Police Officer Matthew Jacobik and his partner were on patrol on Vermont near 61st Street. They heard a series of about 10 gunshots and Officer Jacobik saw two males running across Vermont on 61st Street. He briefly detained one of them, determined that he was a member of the Brims gang, and then heard another series of five gunshots.

Officer Thomas Redshaw responded to Jacobiks broadcast of a shooting and found Hammond. Hammond took him to Lyles, who was seated in a car, with a wound to his neck. Officer Redshaw called paramedics. Lyles received four gunshot wounds and was pronounced dead later that evening.

At approximately 8:40 p.m., Takema Lawrence, who lived on 81st Street was at home with her son and her cousin Gregory Smith, when she heard moaning and groaning outside. Smith and Lawrence went outside and saw appellant, a friend of Smiths, shirtless and bleeding from what Smith described as a gunshot wound to his chest. Smith took off his own shirt and tied it around appellants wound. Lawrence called 911. Smith testified that he put his bloody shirt in a trash bag which was in the front yard.

Los Angeles Police Officer James Carroll responded to Lawrences call. Appellant was sitting in Lawrences home. Appellant told Officer Carroll that a car pulled up and fired three rounds at him, but he did not know who the shooter was. When asked where he was shot, appellant initially pointed east, in the direction of Figueroa, then said it was toward 81st Street. Appellant said he was going to visit his grandmother in the area of 82nd Street, and had been visiting a friend on 81st Street. When Carroll asked the name of appellants friend and where he lived, appellant said he did not know.

Police detectives found blood drops on the sidewalk near 915 West 62nd Street, and several bullet casings nearby. They collected blood samples. Four vehicles in the area had bullet impacts. A ballistics expert later determined that four of the five bullet casings were fired from the same gun, and none of the casings were fired from Lyless gun.

Officer Carroll and several other officers went to the area where appellant claimed he had been shot on 81st Street and did not find any blood, bullets, casings, or evidence of shots fired, nor did they find a bloody t-shirt. They questioned people in the neighborhood who said they had not seen or heard anything.

Police Detective Frank Alvelais interviewed appellant at the hospital. Appellant told him that he had been with Smith at Lawrences home on 81st Street, and decided to walk home. A car drove by and he was shot, but he did not see the gun or the face of the shooters. He said he was wearing jeans and a white t-shirt with no writing, and that he did not know what happened to his shirt. He admitted he was a member of the 8-Tre Hoover gang and that his gang moniker was Infant Cartoon. Detective Alvelais went to Lawrences house. He found a trash bag suspended from a fence. Inside the bag were three shirts: a white shirt exhibiting the words Crabs and Slobs, with a hole in the upper left portion; a muscle shirt; and a black shirt. Smith identified the black shirt as the one that he applied to appellants wound.

DNA tests revealed that the blood on the black shirt matched one of the blood stains at the scene of the shooting, which in turn matched a saliva sample from appellant. Detective Alvelais then initiated an arrest warrant for appellant.

Police Detective Robert Quiroz testified as a gang expert. He knew from his past contacts and appellants tattoos that appellant was an active member of the 8-Tre Hoover gang. The 8-Tre Hoovers did not associate with either the Bloods or Crips. The terms Crab and Slob were derogatory terms that 8-Tre Hoovers used for the Crips and the Bloods. Their territory was around 81st Street and Lawrences house. The area near 62nd Street belonged to the Brims, who were rivals of the 8-Tre Hoovers. Quiroz explained that younger gang members, known as rascals, are the ones who commit the shootings. Appellant had a tattoo which was typical of a rascal tattoo. When presented with a hypothetical that a member of the 8-Tre Hoovers had entered the heart of Brims territory, wearing a shirt insulting the Brims, committed a shooting, and returned to his own gangs territory, Quiroz opined that the shooting was for the purpose of elevating the status of the 8-Tre Hoover gang and promoting the shooters own rise in rank in the gang.

The sole witness presented by the defense was Los Angeles Police Officer Orlando Diaz, who testified that he spoke to Mazique on the day of the incident. Mazique told Diaz that a Black male in dark clothing approached from the east and shot at Mazique.

DISCUSSION

I. Prior Inconsistent Statement

Gregory Smith, who was on 81st Street at Takema Lawrences house, testified that he did not know if he heard any shots the night Lyles and appellant were shot. However, he testified that on prior occasions when he had heard shots in the neighborhood, he would decline to go outside. The prosecutor then asked him if he remembered a pretrial interview with the prosecutor and Detective Alvelais during which Smith said that he thought it was unusual that he had not heard any gunshots before appellant showed up wounded on his doorstep. Smith said he remembered making that statement during the interview. On cross-examination, defense counsel did not ask Smith any questions relating to whether he heard gunshots. After redirect, Smith was excused.

The next witness, Officer James Carroll, was asked on cross-examination whether Smith told him he heard three gunshots in the area just before appellant appeared. He replied, Yes, he did, and the prosecutor objected on the grounds of hearsay and that Smith had just testified. The court overruled the objection and the prosecutor asked for a bench conference, and stated her objection was based on the fact that Smith was never given an opportunity to explain or deny the statement as required by Evidence Code section 770. During the conference, defense counsel stated that the question was standard impeachment. The court then responded, No, because both of you were aware. Both of you were aware of a prior inconsistent statement. Neither one neither one set the proper foundation. So your objection is sustained.

However, a careful examination of the record reveals that although the trial court reversed its ruling and sustained the prosecutors objection during the sidebar conference, it did not inform the jury of that fact. The court did not tell the jury that it had stricken Officer Carrolls testimony. As far as the jury was concerned, the prosecutors objection to Carrolls testimony relating Smiths prior inconsistent statement was overruled. The answer remained in evidence.

In any event, any conceivable error was harmless. First, in the face of Lawrences testimony that there were no gunshots in the neighborhood prior to appellants arrival at the house and Officer Carrolls testimony that no one in the neighborhood heard anything unusual at the time appellant claimed to have been shot, the impact of Smiths prior inconsistent statement was indeed minimal. Second, there was no physical evidence to support appellants claim that he was shot on 81st Street. Third, there was compelling physical evidence that appellant was shot at the scene of Lyless murder on 62nd Street.

II. Denial of Mistrial Motion

The prosecutions gang expert, Officer Quiroz, was asked whether the presence of tattoos on an individual had any bearing on Quirozs opinion that the individual committed an act for the purpose of benefiting the gang. Quiroz answered, in part, And somebody wearing that shirt and being a member of the 8-Tre Hoovers [there] would be no way that they would go into 6-Deuce Brim area without a gun and without a specific mission on going over there to shoot somebody.

Defense counsel lodged an objection. The court sustained the objection on the ground that the officer was giving a personal opinion on the question whether appellant was armed. It ruled that the officers testimony was not proper opinion testimony. The court denied defense counsels motion for a mistrial. The court informed the jury that it had sustained counsels objection and ordered Quirozs last answer, which included the portion set forth above, stricken.

Appellant points to the testimony and now argues that Quiroz offered an opinion as to appellants intent and state of mind at the time of the offense. He contends an expert may not give such testimony. He asserts that Quirozs testimony was so inflammatory that the jury could not have followed the courts instruction to ignore it. Thus, his mistrial motion should have been granted.

The parties engage in a spirited discussion as to whether Quiroz proffered improper opinion testimony.[2] They lose sight of the only relevant issue. As the court ordered the testimony stricken, we examine appellants contention that [o]nce the jury heard the experts opinion that [his] intent on going into 6-Deuce Brim territory, wearing an insulting t-shirt, could only be for the purpose of shooting someone, the harm had been done, and no admonition to disregard the testimony could undo it. We reject his assertion.

We review the denial of a motion for mistrial under the deferential abuse of discretion standard. (People v. Cox (2003) 30 Cal.4th 916, 953.) A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] (People v. Haskett (1982) 30 Cal.3d 841, 854.)

Applying these standards, we conclude the trial court did not abuse its discretion. Initially, we note that Quirozs testimony was offered to establish the killers intent. It had no bearing on the identity of the party responsible for Lyless death. Thus, it would be exceedingly difficult to find that appellants trial was irreparably tainted. As to the gang allegation, the jury heard considerable evidence concerning the connection between the gang location of the shooting and appellants gang. At the time of the shooting, he was in the heart of 6-Deuce Brim gang territory wearing a t-shirt that openly disrespected that gang. We cannot conclude that the experts one sentence stating his opinion on the intent of the party in the hypothetical resulted in a fundamentally unfair trial. Appellant has directed us to no case similar to ours that holds to the contrary. (He quotes extensively from People v. Aranda (1965) 63 Cal.2d 518, 525-526. Aranda dealt with the propriety of admitting a codefendants out-of-court statement that implicated the accused. The potential prejudice in our case pales by comparison.) The jury was told to disregard the experts answer and we presume it followed the courts instruction. (People v. Avila(2006) 38 Cal.4th 491, 574.)

III. Refusal to Allow Appellants Gang Expert

After the prosecution had rested, defense counsel indicated that she wished to call Kerwin Scott as an expert witness to impeach the testimony of Officer Quiroz. Counsel informed the court that Scott was a former 8-Tre Hoover member (he dropped out of the gang between 1979 and 1981), had knowledge of South Central Los Angeles gangs, including the two involved in the case, had worked in a market located in the South Central area, had more than 40,000 conversations with gang members, and had two brothers who used to be in gangs. One of his brothers, for whom Scott had worked as an administrative assistant, had written a book on gangs. Officer Quiroz testified he had read that particular book. The court noted that Scotts personal gang experience ended years ago and questioned whether merely talking to other gang members about their experiences necessarily made Scott an expert on the subject of gangs. Ultimately, the court ruled that while Scotts brother, the author of the gang book, qualified as an expert on gang culture, Scott did not. Appellant takes exception to this ruling.

A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. . . . (Evid. Code, 720, subd. (a).) The trial courts determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) Appellant claims Scotts testimony was relevant to rebut testimony about gang culture given by Quiroz. He contends Scotts life experiences in gang territory were sufficient to qualify him as an expert. However, Scotts only recent gang contact was with the gang members who frequented the market where he worked. Scott spoke to them and conducted undocumented informal interviews. Scott also worked as an administrative assistant for his author brother, but nothing in the record explains what Scotts job entailed. While Scott may have possessed anecdotal knowledge of gangs in general, he lacked both personal knowledge and a sufficient basis upon which to offer an expert opinion on the specific gangs at issue. We find the trial court did not abuse its discretion in excluding Scotts testimony. (People v. Ramos (1997) 15 Cal.4th 1133, 1175.)

Appellant argues the exclusion of Scotts testimony was relevant and vital to the defense [and constituted] a violation of [his] constitutional rights. We disagree. The United States Supreme Court has repeatedly acknowledged the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. (People v. Ramos, supra, 15 Cal.4th at p. 1175, quoting Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.) Generally, the application of evidentiary rules do not improperly limit a defendants constitutional right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The exclusion of the evidence at issue was not critical to appellants defense. Appellants offer of proof established that Scott was going to testify about purely tangential matters (whether all gang members are jumped in when they join; whether all young gang members or rascals are shooters; whether it was possible for 8-Tre Hoover gang members to enter 6-Deuce Brim territory for an innocent reason). At best, this evidence would have contradicted the prosecution expert on minor details of gang life. Appellant was not precluded from presenting his defense.

IV. Cumulative Error

Appellant contends that even if each of his claimed errors could individually be found to constitute harmless error, their cumulative effect deprived him of a fair trial. As we have found no error, this argument fails.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J.

MANELLA, J.

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[1] All further undesignated statutory references are to the Penal Code.

[2] The Attorney General also suggests appellant forfeited the issue on appeal by not requesting a mistrial on the grounds he raises here. We disagree. The case cited by the Attorney General holds that an appellant may not argue on appeal that an objection should have been sustained on grounds not raised in the trial court.