P. v. Norman

Filed 6/22/06 P. v. Norman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Darren J. Norman appeals the judgment following his jury trial and conviction of first degree murder of Travon Coleman. (Pen. Code, §§ 187, subd. (a), 189.)[1] The jury found true several firearm use allegations. (§ 12022.53, subds. (b), (c) & (d).) The trial court sentenced appellant to 50 years to life in prison, including 25 years to life for murder and a consecutive 25-year-to-life enhancement for personal firearm use. Appellant claims error in the admission of gang evidence and that he received ineffective assistance of counsel regarding gang evidence. We affirm.

FACTS

Travon Coleman lived in Lancaster with his wife, Tracey Lashone Grace-Coleman, her daughters, Tatianna and Taija, her other children, her grandchild, and her nephew, Anthony James Ainsworth. Travon and Tracey did not allow guests to visit their home after 8:30 p.m. Appellant dated Tatianna and often visited at her window after the household's 8:30 p.m. curfew.

On October 15, 2003, around 8:00 or 8:30 p.m., Travon's dogs were barking. Travon went outside, where he found Anthony and appellant. He scolded them about annoying the dogs. Travon complained that appellant kept trying to sneak through Tatianna's window after her curfew, and that appellant was disrespectful. Travon also told appellant that he could not come to his house any more. Using a loud, angry voice, appellant countered that Travon could not tell him what to do, that Tatianna was his girl, and he could come to see her at any time. Travon hit appellant and knocked him against a wall or gate. Appellant pulled out a gun and pointed it at Travon. Anthony hit appellant, and the gun slipped from appellant's hands. Fearing that appellant would shoot him and Travon, Anthony kicked the gun. Travon hit appellant with a chair. Appellant fell to the ground, looked toward a cigarette pack and his fallen gun, and said, "No, let me get my stuff." When Travon started hitting him again, appellant grabbed his cigarettes and ran. Appellant did not hit Travon or Anthony.

After appellant left, Travon unloaded appellant's gun (a .38 caliber), wrapped it in a shirt and put it in a basket in Tracey's closet. He left it there and planned to give the gun to the police the next day.

After leaving Travon's house, appellant saw Brianne Bogdanski, who lived near Travon, driving her car. Brianne gave appellant a ride and noticed blood on his tank top. Appellant told her that a group of Mexicans had jumped him that night. He and Brianne saw Travon in front of his house, sitting in the passenger seat of a parked, white car. A large man who appellant called his "Big Hommie" sat in the driver's seat. Brianne stopped to let appellant out, at his request. He approached the passenger side of the white car.

Before driving away, Brianne twice heard appellant tell Travon, "I need my gun back," and heard him say, "Give me my gun, cuz. Just give me my gun and I'll leave." Travon refused to do so, and appellant said, "Cuz, cuz, I'm Eight-Trey." Travon replied that he was Four-Trey. Appellant and Travon continued exchanging gang slang. "Cuz" is gang slang for "Crips." "Big Hommie" urged Travon to give the gun to him instead of giving it to appellant. Travon declined because he did not want to get shot. He said he would give the police the gun. As appellant left, appellant said he would kill Travon and Anthony.

Tracey came home around 9:00 p.m., when Travon, Anthony and appellant were outside. "Big Hommie" was also there, in the white car. Anthony and appellant appeared to be arguing. Later that night, a man in a van went to Travon's home and asked for the gun. Travon told the man to leave. "Big Hommie" returned to Travon's house and asked for the gun again. Travon refused to give it to him and said, "You can take it how you want to. You can take [it] as a personal thing or as a hood thing."

At approximately 2:00 a.m., appellant went to Tatianna's window, talked, and stayed in her room for two or three hours. He returned to the window, around 8:45 a.m., and invited her to go to the store. Tatianna went outside where appellant was talking with a man named Charles. Appellant wore a zipped black jacket over his shoulders but his arms were not in the sleeves.

A few minutes before 9:00 a.m., Travon left his house and walked toward his car, after saying that he was going to the store. Travon, who was left-handed, had his left hand in his front pants pocket. He looked toward appellant, Charles, and Tatianna, and exchanged nods with Charles. Travon approached Tatianna, Charles, and appellant, and either said something like, "What's up?" or "What's up, cuz?" to Charles, or "What's up, cuz?" to appellant. Tatianna saw a bulge in Travon's pocket. She feared that his pocket held the gun that appellant had dropped the previous night. Tatianna's fear grew as Travon continued approaching them.

Travon then started to remove his hand from his pocket. Appellant said, "I said, 'What's up?'" and started shooting Travon when he was within three to five feet of him. Travon clutched his chest, turned around, and ran. Appellant continued shooting at Travon until Tatianna told him to stop. Tatianna thought that she heard between five and seven shots. Taija heard gunshots and saw appellant run by her bedroom window a few seconds later, holding a gun and wearing the partially zipped black jacket, with his arms inside the jacket, but not in its sleeves. Appellant ran away without responding when Taija asked what had happened.

Later that morning, appellant went to Brianne's apartment, carrying a bag and wearing the same blood-stained tank top that he wore the night before. Appellant told Jamar Sims (Brianne's boyfriend) that Travon had beat him with a chair and that five Mexicans had jumped him. Before appellant left the apartment, Brianne gave him a T‑shirt to wear and a grocery bag to hold his tank top. The police later found a black plastic trash bag containing appellant's bloody T‑shirt and a black jacket in Brianne's living room closet.

Travon died as a result of internal bleeding caused by the gunshot wound. The coroner retrieved a .22 caliber bullet from Travon's chest. A worker found a .22 caliber revolver in the backyard immediately north of Travon's yard. The revolver's cylinder held three expended casings and three live rounds.

The police spoke with Tracey after the shooting and retrieved appellant's .38 caliber gun from the basket where Travon had placed it. Tracey gave the police four .38 caliber rounds that Travon had removed from the gun. One other .38 caliber round fell from Travon's pants after the shooting.

Three days after the shooting, appellant and Tatianna had a telephone conversation. He told her that he shot Travon because he thought that Travon had a gun in his pocket or that Travon was reaching for a gun.

CONTENTIONS

Appellant contends that the trial court committed prejudicial error in admitting evidence regarding his "alleged gang affiliation, propensity for

guns, and monikers." We disagree.

Before trial, the parties agreed that statements regarding gang membership and involvement made by percipient witnesses to the October 15 fight and the October 16 shooting would be admitted for the limited purpose of showing motive, and that the court would instruct the jury that such evidence could be used only for the limited purpose of showing motive and not to establish appellant's propensity for violence or his bad character. Anthony, Tracey, and Jamar testified that appellant belonged to the Eight-Trey gang. Jamar, Brianne, and Tatianna testified that appellant was known as "Vicious." Jamar also testified that appellant had an Eight-Trey tattoo on his shoulder. In addition, the parties stipulated that "[o]n March 4th, 2004, . . . Los Angeles Police Department gang detail [officers] arrested [appellant] for possession of a loaded .380 caliber blue steel semiautomatic handgun . . . in Eight-Trey territory, and [he] was wearing a hat with a T, symbolizing the Eight-Trey gang." Some of the gang-related evidence was admitted despite appellant's objections.

In claiming error, appellant argues that gang evidence that is only minimally probative should not be admitted if no gang enhancement is charged. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v. Avitia (2005) 127 Cal.App.4th 185, 192-193.) This argument mistakenly assumes that the gang evidence below was only minimally probative and that the shooting "had no connection to gang issues."

When appellant returned to Travon's home on October 15, he cited his Eight-Trey membership in urging Travon to return the gun. Travon invoked his own affiliation with the Four-Trey gang, declined to return the gun, and said he would give it to the police. Appellant responded by stating he would kill Travon and Anthony; then he left. Appellant's "Big Hommie" made two visits to Travon's home that night, asking for the gun. Travon told Big Hommie that "[he could] take it how [he wanted] to . . . as a personal thing or as a hood thing."

In arguing that appellant shot Travon in self-defense, appellant's trial attorney reminded the jury: "Travon claimed Four-Trey membership. Now, that is important. . . . [T]hat is . . . evidence that [appellant] had. And so when you are determining what [appellant] thought, that . . . piece of evidence [will] . . . show you that [appellant] was afraid of Travon, not only because he had been beaten up the night before, but because he claimed gang membership, and . . . he [now had] the gun."

It is well settled that evidence of gang membership and gang activity is admissible when relevant to issues of motive or intent so long as its probative value is not outweighed by its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) In appellant's case, nearly all of the gang-related evidence was admissible to show motive or intent.[2]

Moreover, any possible error in the admission of the gang-related evidence was harmless. It is not reasonably probable that a result more favorable to appellant would have been reached absent the evidence that he was an Eight-Trey Gang member known as "Vicious," who carried guns and wore an Eight-Trey tattoo, and who was arrested months after this case in Eight-Trey territory carrying a gun and wearing an Eight-Trey hat. Other evidence overwhelmingly supports the verdict. Appellant went to Travon's home, armed, and shot Travon several times, from very close range, as Travon walked toward him, Charles, and Tatianna. Appellant continued shooting after Travon turned and ran away. He then ran from the scene, discarded a .22 caliber gun in a nearby yard, and tried to hide his bloody shirt and the jacket he had worn during the crime at Brianne's apartment. Tatianna's testimony about appellant's having said that he thought Travon may have been pulling a gun from his pocket was inconsistent. In addition, although appellant spoke with Jamar, Taija, and Brianne soon after shooting Travon, he did not then claim that he had shot Travon in self-defense.

The court repeatedly instructed the jury that the gang-related evidence was admissible for the limited purpose of showing motive or intent. It is presumed that jurors understand and follow limiting instructions. (People v. Guerra (2006) 37 Cal.4th 1067, 1115.) It is not reasonably probable that the jury would have reached a more favorable result absent the admission of the gang-related evidence. (See People v. Cudjo (1993) 6 Cal.4th 585, 611.)

Recognizing that he has waived his claims regarding most of the evidence he now challenges, appellant argues that his trial counsel was ineffective. We disagree. To prevail on a claim of ineffective assistance, appellant must show that counsel's performance was objectively deficient and that such deficiency prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Appellant has failed to establish that counsel's performance was objectively deficient. Defense counsel's tactical choices are entitled to deference on appeal. (People v. Avena (1996) 13 Cal.4th 394, 444.) There is not a reasonable probability that the result would have been more favorable to appellant, but for counsel's purported errors (Strickland, at p. 694), which appellant claims resulted in the admission of the gang-related evidence. As we have explained, it is not reasonably probable that the result would have been more favorable to appellant absent the admission of that evidence.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Christopher G. Estes, Judge

Superior Court County of Los Angeles

______________________________

Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.

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

[2] While the evidence of appellant's habit of carrying a gun may be of arguable relevance, the prejudicial impact of that evidence is nonetheless minimal. The jury heard other admissible evidence that appellant (1) carried a .38 caliber gun that he aimed at Travon during their October 15th argument; (2) personally and through his friends exerted substantial efforts to try to retrieve that gun; and (3) within less than 24 hours, obtained, carried, and fatally shot Travon with a .22 caliber gun.