Filed 1/30/18 P. v. Peavy CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Jeffrey F. Fraser, Judges. Affirmed.

Kessler & Seecof and Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Emanual James Peavy of first degree murder (Pen Code,[1] 187, subd. (a); count 1) and attempted murder (§§ 664, 187, subd. (a); count 2). As to count 1, it found true allegations Peavy intentionally and personally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)); he was a principal, and in the commission of the offense at least one principal personally used a firearm, proximately causing great bodily injury and death to a person (§ 12022.53, subds. (d), (e)(1)); and he committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). As to count 2, it found true allegations Peavy intentionally and personally discharged a semi-automatic handgun (§ 12022.53, subd. (c)), and he committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court sentenced Peavy to 39 years plus 50 years to life.

Peavy contends (1) the court erroneously admitted evidence of a separate shooting conviction that was substantially more prejudicial than probative, thus denying his due process rights under the 14th Amendment of the federal Constitution[2]; and (2) the court erred by denying his request to represent himself under Faretta v. California (1974) 422 U.S. 806 (Faretta), thus violating his rights under the 6th and 14th Amendments of the federal Constitution. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

J.R. testified that on April 12, 2014, at about 10:40 p.m. she was driving home with her cousin, Gregory Benton. She parked her vehicle and she and her cousin walked towards her family's house. She saw a black car approaching them. Suddenly, a man hopped out and, referring to a street gang's name, asked them, "How's that Brim life?" Immediately afterwards he shot at them. J.R. ran, and the only impression she got of the shooter was that he was African-American and wore all black clothing. When J.R. returned to the crime scene, she saw that Benton had been shot.

Benton died that night. A medical examiner testified his manner of death was homicide caused by multiple gunshot wounds.

April 15 Shooting

At trial, B.T. testified regarding the April 15 shooting that at around 2:00 a.m. on that day, he and a friend were standing out on the street. A man drove up near them, got out of his car and, referring to a street gang, said: "This is Crip; this is Crip," and shot B.T. in the foot. B.T. ran but then stopped. He saw the car turn around and head toward him in the wrong direction of a one-way street. Shortly afterwards, B.T.'s friend picked him up in a vehicle and while they were going to the hospital, police stopped them. That night, B.T. described the shooter and his attire to police.

The jury viewed security camera video of the incident in which the shooter was seen firing a gun and running away. Because of a birth defect, Peavy has no left hand. A homicide detective testified that after watching the video several times, he did not see the shooter's left hand.

Police Investigation

On May 10, 2014, police arrested Peavy as he was leaving a gathering of the "5-9 Brim" street gang. At the time, he was driving that same vehicle used in the April 15 shooting. That vehicle was rented by Peavy's girlfriend, who sometimes loaned it to Peavy. Police searched Peavy's apartment and found a digital scale with some white residue on it, a nine-millimeter Taurus handgun, a .22-caliber bullet, a sweatshirt worn by the shooter in the April 15 incident, a black ski mask, a ballistic vest, and a pair of gloves that Peavy was seen wearing in other photos the police found on his phone.

A criminalist compared the bullets found in the firearm located in Peavy's room to the spent cartridges found at four different crime scenes, including that of the Benton shooting, and concluded the cartridges had characteristics that were consistent with them being from Peavy's firearm.

The probation report lists Peavy's race as African-American. DNA extracted from the shell casings recovered from the Benton crime scene matched Peavy's DNA. DNA extracted from the sweatshirt found in Peavy's room matched that of three people, including Peavy as a possible major contributor. That sweatshirt also tested positive for gunshot residue.

A detective testified as a gang expert that Peavy was a member of a subset of the 5-9 Brim criminal street gang. Based on a hypothetical mirroring the facts of Benton's shooting, the expert opined that the crime would have been carried out in association with and for the benefit of the street gang, which needed to recover its respect on the streets. The parties stipulated that the 5-9 Brim is a criminal street gang as defined in the Penal Code.

Defense Case

A detective testified as a gang expert that Victor Ware, a 5-9 Brim gang member, was convicted of shooting a victim in West Coast Crips' territory in March 2014. Shell casings recovered from that crime scene were similar to the casings found in the present case; specifically, they were nontoxic bullets produced by the same manufacturer. Ware and Peavy were friends.

Peavy's girlfriend testified that in April 2014, she sometimes loaned her rental car to Peavy and other friends and family members who had gang associations.

Reginald Washington, a former gang member, testified as a gang expert that gang members sometimes shared guns and ammunitions. They also kept their weapons in different hiding places.

DISCUSSION

I. Evidence of the April 15 Shooting

Peavy contends the court erroneously admitted evidence regarding the April 15 shooting and such evidence was substantially more prejudicial than probative; thus, the court violated his due process rights under the federal Constitution.

A. Background

The People moved in limine to admit into evidence testimony regarding the April 15 shooting, arguing it was relevant to prove intent, motive and identity. Peavy opposed the motion, arguing the evidence was not admissible to show a common design, plan or scheme, knowledge or identity, and it was excludable under Evidence Code section 352.

In granting the motion, Judge Rogers ruled: "The People's theory is that Mr. Peavy committed the crimes that he is charged with on April 12 and then three days later that he did this other shooting for which he has been found guilty at a jury trial. The other shooting has a number of similarities. . . . [¶] A jury has found beyond a reasonable doubt that Mr. Peavy committed the April 15 incident. . . . [¶] That is one of the factors, I think, that goes into the probative value side of the equation. That's common sense. . . . [¶] Next, I think that [the prosecutor] has proffered intent and motive for committing the crime. The motive seems inextricably tied in with the gang culture. [The prosecutor] also suggests identity. And, frankly, I had thought common plan or scheme, even though I realize [the prosecutor] didn't really brief that. [Defense counsel] briefed it in opposition."

The court concluded that under Evidence Code section 352, the probative value of the April 15 shooting was "exceptionally high. And I think that it goes to, frankly, the intent with which the act on [April] 12th, our charged counts, were committed. I think it is exceptionally strong in terms of the gang motive for committing these crimes. And, frankly, I am mindful that just under [Evidence Code section 1101, subdivision (b)], the degree of similarity required for identity is the highest degree of similarity. But I think this passes muster for identity as well."

Defense counsel again opposed the admission of evidence about the April 15 shooting before the trial judge, Judge Fraser, who rejected those arguments, ruling: "[H]ere, we have similar acts. And the idea is you have similar acts with similar intent. And obviously, murder has an intent requirement to it. . . . [¶] We also have motive which is really important, especially in a gang context, where you can use the gang membership at times to show a motive for a particular murder or a motive for a particular shooting." Judge Fraser continued: "[W]e have more than enough to show plan. We have more than enough to show intent. And we have more than enough to show motive. [¶] The next part of this obviously is—so we have the materiality, first prong. Clearly, it's relevant. And it's something that would help the jurors do their job." Judge Fraser concluded that under Evidence Code section 352, evidence of the April 15 shooting was substantially probative and not prejudicial to Peavy. He further concluded that the jury would not be misled because the charged crimes and the April 15 shooting were separate incidents.

At trial, just before B.T. testified about the April 15 shooting, the court gave the jury the following limiting instruction: "The People will present evidence that the defendant committed another offense that was not charged in this case. You may consider this evidence only if you thought [it] proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. [¶] Proof by preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide the defendant committed the uncharged offense, you may but are not required to consider that evidence for the limited purpose of deciding whether or not, (a), identity, or the defendant was the person who committed the offense alleged in this case or, intent, the defendant acted with the intent to commit murder in this case or, motive, defendant had a motive to commit the offense alleged in this case or, common plan, the defendant had a plan or scheme to commit the offense alleged in this offense. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense. Do not consider this evidence for any other purpose. Do not conclude from this evidence the defendant has a bad character or is predisposed to commit crimes. [¶] If you conclude the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of the crime charged in this case. The People must prove each charge—each charge or allegation beyond a reasonable doubt."

During final instructions, the court instructed the jury with CALCRIM No. 303: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other."

B. Applicable Law

Evidence Code section 1101, subdivision (a) "prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion." (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, evidence of other crimes or bad acts is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).)

Evidence Code section 1101, subdivision (b) "clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (Ewoldt, supra, 7 Cal.4th at p. 393, fn. omitted.) Specifically, Evidence Code section 1101, subdivision (b) provides that nothing in that section "prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."

The admissibility of evidence under Evidence Code section 1101, subdivision (b) depends on the degree of similarity between the uncharged act and the charged offense. (People v Zepeda (2001) 87 Cal.App.4th 1183, 1210 (Zepeda), citing Ewoldt, supra, 7 Cal.4th at p. 402.) The California Supreme Court has explained that for evidence of uncharged acts to be admissible under Evidence Code section 1101, subdivision (b) to prove such facts as motive, intent, identity, or common design or plan, the charged offenses and uncharged acts must be "sufficiently similar to support a rational inference" of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (Ewoldt, supra, 7 Cal.4th at p. 402.) To be admissible to prove intent, the uncharged misconduct need only be "sufficiently similar [to the charged offense] to support the inference that the defendant ' "probably harbor[ed] the same [or similar] intent in each instance." ' " (Ibid.; see People v. Memro (1995) 11 Cal.4th 786, 864-865 [evidence of defendant's uncharged conduct of possessing sexually explicit photographs of young males admissible as probative to show intent to sexually molest young boy].)

If the trial court determines that uncharged misconduct is admissible under Evidence Code section 1101, subdivision (b), it must then determine whether the probative value of the evidence is " 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code,

§ 352.) "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." (Zepeda, supra, 87 Cal.App.4th at p. 1211.) "The probative value of the evidence is enhanced if it emanates from a source independent of evidence of the charged offense." (People v. Tran (2011) 51 Cal.4th 1040, 1047.) "On the other hand, the prejudicial effect of the evidence is increased if the uncharged acts did not result in a criminal conviction. This is because the jury might be inclined to punish the defendant for the uncharged acts regardless of whether it considers the defendant guilty of the charged offense and because the absence of a conviction increases the likelihood of confusing the issues, in that the jury will have to determine whether the uncharged acts occurred." (Ibid.) "The potential for prejudice is decreased . . . when testimony describing the defendant's uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense." (Ibid.)

"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.)

We review the trial court's rulings under Evidence Code sections 1101 and 352 for an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) We will not disturb the trial court's exercise of discretion except upon a showing that it "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

C. Analysis

We conclude the two judges who ruled on this issue did not abuse their discretion or violate Peavy's federal constitutional due process right to a fair trial by admitting under Evidence Code section 1101, subdivision (b) the evidence that Peavy committed the April 15 shooting. That evidence was material and highly probative on the issues of his intent and motive with respect both to the substantive charges of murder and attempted murder and the gang and firearm allegations.

As already discussed, the least degree of similarity between an uncharged act and a charged offense is required in order to prove intent, and—to be admissible to prove intent—the uncharged misconduct need only be sufficiently similar to the charged offense to support the inference that the defendant probably harbored the same or similar intent in each instance. (Ewoldt, supra, 7 Cal.4th at p. 402; see People v. Memro, supra, 11 Cal.4th at pp. 864-865.) Although motive normally is not an element of any crime, evidence of motive is always relevant because it " 'makes the crime understandable and renders the inferences regarding defendant's intent more reasonable.' " (People v. Riccardi (2012) 54 Cal.4th 758, 815, abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192, 1216.)

Here, during both the charged crimes and the April 15 shooting, Peavy acted similarly: either late night or early morning, he was in a vehicle that approached individuals on the street; he got out of the vehicle; he made a gang reference to the individuals, and, unprovoked, fired shots at them. Here, as in Zepeda, supra, 87 Cal.App.4th 1183, the evidence of Peavy's other gang-related assault with a firearm in response to minimal or nonexistent confrontation, provocation, or challenge to Peavy's gang was relevant and admissible to prove his motive and intention to engage in hostile action against a perceived rival gang member for no reason other than to benefit or promote his gang and his own gang reputation, and to " 'follow the dictates of the gang . . . to pursue gang policy.' " (Id. at p. 1211.) The similarity requirement is met because the evidence showed the April 15 shooting incident occurred a few days after the charged crimes, and it was gang-related and sufficiently similar to the charged crimes to support the inference that Peavy probably harbored the same or similar intent, and in each instance acted with a similar motivation. (See Ewoldt, supra, 7 Cal.4th at p. 402.)[3]

Under Evidence Code section 352, testimony regarding the April 15 shooting was substantially more probative than prejudicial. Peavy had been convicted of the April 15 shooting in separate proceedings, and the source of information regarding it was independent of the source regarding the charged offense. The court concluded the testimony would not confuse the jury or consume undue time. Moreover, we point out the court's limiting instruction further minimized any prejudice to Peavy.

Also, contrary to Peavy's contention that the video made the evidence of the April 15 shooting more prejudicial than the charged crime, we point out that the charged crime evidence was more serious because it involved a death, while the uncharged crime did not.

II. Faretta Motion

Peavy contends the court erroneously denied his Faretta motion, thus depriving him of his right to self-representation. Peavy contends his request for self-representation was unequivocal and the court "made no finding concerning how [his] presentencing self-representation request would have disrupted the proceedings at that stage of the case." He further argues that while he did not specifically say so at the motion hearing, his statements reflected that he was arguing for a new trial on the grounds of ineffective assistance of counsel.

A. Background

On September 6, 2016, the day scheduled for sentencing, Peavy requested to represent himself.[4] The court cleared the courtroom and asked Peavy, "What do you want? This is a [hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden)]. So [it] essentially means you want to fire your lawyer." Peavy agreed and explained that his trial counsel "didn't mitigate at all. So I have no recommendation letters or anything. My family couldn't contact [defense counsel]."

The court explained the sentence was mandated by law and the court did not have much discretion in sentencing him: "The only thing I really have discretion at is a triad on the attempt murder [five, seven, or nine years]. Other than that, really there's nothing." Peavy responded that he understood that, adding: "But there's a lot of things that I want to get together and show you. [¶] I mean, it's a—it's ineffective counsel, for one, leading, impeachment. I don't know if it's probably corruption. There's a lot going on on the trial." The court replied: "I actually was very impressed with [defense counsel]. He focused on what needed to be focused on. And the defense of essentially that gangs pass the guns around, that made a lot of sense to me. You know, in a sense, it's a whodunit. You got DNA. So you've got to explain away the DNA somehow because in the modern world, DNA trumps everything. It just does." After listening to Peavy's additional complaints about his defense counsel, the court denied the Marsden motion. Peavy told the court: "It's not a Marsden. I'm wishing to go pro per. I mean, I'm going to get whatever I get anyways." In response, the court separately denied that Faretta motion as untimely. Peavy proceeded to complain to the court about his defense counsel's trial performance. The court told him: "I'm not here [to] relitigate your trial." Immediately after that proceeding, the court sentenced Peavy to the same term recommended by the probation officer.

B. Applicable Law

Under the Sixth Amendment of the United States Constitution, defendants have a right to represent themselves in criminal trials. (Faretta, supra, 422 U.S. at p. 819.) "On appeal, a reviewing court independently examines the entire record to determine whether the defendant knowingly and intelligently invoked his right to self-representation." (People v. Doolin (2009) 45 Cal.4th 390, 453.) A legitimate concern of the trial court is whether defendant's request is untimely and would needlessly delay trial. (Id. at p. 454.) A motion made after the guilt phase is untimely and subject to the trial court's discretion. (Ibid., citing People v. Mayfield (1997) 14 Cal.4th 668, 810.) "Much as a request to represent oneself at trial must be made a reasonable time before trial commences, the request for self-representation at sentencing must be made within a reasonable time prior to commencement of the sentencing hearing." (People v. Miller (2007) 153 Cal.App.4th 1015, 1024.)

C. Analysis

Peavy brought his motion just before the sentencing hearing began; therefore, it was untimely. Although the court did not elaborate on its reasons for the denial beyond stating it was untimely, we conclude that on this record no more explanation was needed. Peavy had indicated that he needed to gather records to support his arguments about trial counsel's purported errors made at trial. Peavy presumably would have needed a continuance for that purpose. The court could have reasonably decided that such delay in sentencing would have served no purpose. As the court stated, the sentencing hearing was not the venue for relitigating defense counsel's trial performance. We conclude the court did not abuse its discretion in denying Peavy's untimely motion.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.