P. v. Scott
Filed 10/17/13 P. v. Scott CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JAMES RAY SCOTT, JR.,
Defendant
and Appellant.
E056447
(Super.Ct.Nos.
RIF134516 &
RIF147109)
OPINION
APPEAL
from the Superior Court
of
County. Christian F.
Thierbach, Judge. Affirmed.
David
L. Kelly, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, A.
Natasha Cortina and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff
and Respondent.
A
jury found defendant and appellant James Ray Scott, Jr., guilty of (1) three
counts of robbery (Pen. Code, § 211);
subd. (a)(1)); and (3) two counts of actively participating in a criminal
street gang (§ 186.22, subd. (a)).
As to the first count of robbery, the jury found true the allegations
that (1) it was a street gang crime and defendant carried a firearm during the
commission of the offense (§ 12021.5, subd. (a)); (2) defendant personally used
a firearm during the commission of the offense (§ 12022.53, subd. (b)); and (3)
the crime was committed to benefit a criminal
street gang (§ 186.22, subd. (b)).
For the second and third robbery convictions, the jury found true the
allegations the crimes were committed to benefit a criminal street gang. (§ 186.22, subd. (b).)
Defendant
admitted he was on bail when he committed the third
gang participation offense (§ 186.22, subd. (a)). (§ 12022.1.) Defendant also admitted
suffering (1) a prior strike conviction (§§ 667, subds. (c) & (e), 1170.12,
subd. (c)(2)(A)); and (2) a prior serious felony conviction (§ 667, subd.
(a)). The trial court sentenced
defendant to prison for a term of 47 years, 8 months.
Defendant
contends the trial court erred by (1) not severing the November 2008 charges
from the January 2007 charges, and (2) not severing the gang allegations. Defendant asserts his trial counsel was
ineffective for (1) not requesting bifurcation of the gang allegations, and (2)
failing to move for a new trial. We
affirm the judgment.
A. 2007 CRIMES
In
January 2007, Troy Lynn Proctor (Proctor), went to a liquor store on Alessandro
Boulevard in Riverside to cash her paycheck.
Proctor was accompanied by her husband (Husband) and a friend. Proctor cashed her check, which was
approximately $300. Defendant was at the
liquor store with two other people when Proctor received the money from her paycheck.
Proctor,
Husband, and Proctor’s friend, drove from the liquor store to a gas station
across the street. Defendant and his two
friends ran to their car and followed Proctor’s car. When Husband finished pumping gas and was
getting back inside the car, where Proctor was already in the backseat, two men
approached the car. Defendant was one of
the men who approached the car. One of
the men asked Husband if they could use his cell phone. Husband said he did not have a cell phone.
One
of the two men then said to Husband, “‘Give me your money, or ‘You know what
this is, give me your money.’†Husband
gave the men $20 and said, “‘That’s all I got.’†One of the two men said, “‘We just seen her
cash her check. We know she has got
money.’†One of the men said, “‘Give me
the money, bitch.’†Defendant pointed a
gun at Proctor. Defendant said to
Husband, “‘Tell your bitch to give me some money, or I am going to put one in
her.’†Husband told Proctor to give
defendant her money. Proctor gave all
the cash from her paycheck, approximately $300, to Husband. The men took the money from Husband, ran to a
car, and “took off.†Husband and Proctor
followed defendant, recorded defendant’s license plate number, and called the
police.
B. 2008 CRIMES
In
November 2008, Thurmon Jackson III (Jackson) went to a liquor store with his
friend. While in the parking lot,
Jackson saw a young black male walk into the liquor store and pick up a
soda. Jackson saw seven or eight young
black males in front of the liquor store; defendant was part of the group in
front of the store. The young men were
wearing “[l]ow pants†and had “[b]andannas hanging out [of] their
pockets.†The group of males outside the
store were crouched down, looking through the store’s windows, while hiding
behind a sign.
When
the young man inside the store went to the counter to make his purchase, the
group outside the store “rushed in†and began “[h]itting him and assaulting
him.†The store owner chased the group
out of the store. Jackson was outside
the store, holding his cell phone.
Jackson told defendant, “[W]e d[o]n’t need this is our
neighborhood.†Defendant called Jackson
“an Uncle Tom.†Jackson informed
defendant he was calling the police.
Defendant ripped a gold chain from Jackson’s neck. Jackson suffered bruises on his neck from
defendant ripping the chain away.
After
defendant took the chain, he ran toward a car.
As defendant was leaving he said, “This is Edgemont and Dorner
Blocc.†The group of men, including
defendant, entered a car and left.
Jackson called the police.
C. GANG EVIDENCE
Edgemont
Criminals and Dorner Blocc were two major criminal gangs in Moreno Valley. In 2003, Edgemont Criminals, Dorner Blocc,
and Young Paper Chasers, merged to form a single gang referred to as the
Edgemont Dorner Blocc (EDB). EDB has a
rivalry with another Moreno Valley gang known as Sex Cash. When a member of EDB sees a member of Sex
Cash, the EDB member is supposed to start a confrontation with the Sex Cash
member.
On
February 24, 2007, Riverside County Sheriff’s Detective Colmer conducted a
vehicle stop in an area known to be EDB “turf,†along Alessandro
Boulevard. Defendant was inside the
vehicle with three people the detective knew to be members of EDB. Detective Colmer believed the robbery
involving Proctor and Husband was committed to benefit a criminal street gang,
due to (1) the crime occurring within EDB’s “primary turfâ€; (2) robbery being
consistent with prior crimes by EDB members; and (3) the people involved in the
crime.
Devon
King (King) was the person who approached Proctor’s car with defendant. Detective Colmer knew King to be a member of
the Big Johnson Crew, which is “aligned and affiliated†with EDB. King is known as C-Mel and has various
tattoos, such as “‘Fuck Sex Fags,’†which is a disrespectful reference to Sex
Cash. The third individual involved in
the 2007 robbery was Jorge Martinez, who has a tattoo referencing the Young
Paper Chasers.
Detective
Colmer believed defendant was an active member of EDB due to (1) the 2007
robbery occurring within EDB territory, (2) the crime being consistent with
EDB’s activities, (3) King and Jorge Martinez being part of the 2007 robbery,
(4) defendant being found in the car with EDB members in February 2007,
and (5) police reports listing defendant as a suspect in jailhouse fights
where he was fighting rival gang members or fighting alongside EDB
members.
Riverside
County Sheriff’s Deputy Moreno believed defendant participated in the feud
between EDB and Sex Cash because, while incarcerated, defendant engaged in
physical fights with members of Sex Cash, defendant yelled at members of Sex
Cash, and “threw†gang signs at members of Sex Cash. Deputy Moreno believed defendant was an
active gang member due to (1) defendant’s contacts with gang members; (2)
defendant’s criminal history; (3) defendant committing the 2008 robbery in gang
territory; (4) defendant yelling “Edgemont or Dorner†while leaving the 2008
robbery; and (5) defendant having the moniker “Ray Ruk.â€
Deputy
Moreno believed the 2008 robbery was committed to benefit a criminal street
gang because: (1) the crime was
committed in EDB territory; (2) defendant said “‘This is Edgemont Dorner
Blocc,’†when leaving the liquor store; and (3) defendant was with known gang
members during the 2007 robbery.
D. PROCEDURAL HISTORY
On
March 29, 2007, the district attorney filed an information charging defendant
with two counts of robbery (§ 211), conspiracy (§ 182, subd. (a)(1)), and
active gang participation (§ 186.22, subd. (a)) for the 2007 robbery involving
Proctor and Husband. The information
further alleged defendant suffered a prior strike conviction and was on
probation when he committed the 2007 robberies.
On
March 5, 2009, the district attorney filed an information charging defendant
with robbery (§ 211) and active participation in a criminal street gang (§
186.22, subd. (a)) for the 2008 robbery involving Jackson. The information included allegations that the
robbery was committed to benefit a criminal street gang (§ 186.22, subd. (b)) and
the crimes were committed while defendant was released from custody on a
pending case (§ 12022.1). The
information also set forth allegations that defendant suffered a prior strike
and prior serious conviction.
On
June 11, 2009, the prosecutor moved to consolidate the two cases. Defense counsel did not object. The trial court granted the consolidation
motion. On April 13, 2011, the district
attorney filed an amended information charging defendant with three counts of
robbery (§ 211), conspiracy (§ 182, subd. (a)(1)), and two counts of active
gang participation (§ 186.22, subd. (a)).
The information set forth allegations that the three robberies were
committed to benefit a criminal street gang (§ 186.22, subd. (b)),
defendant personally used a firearm during the 2007 robberies (§ 12022.53,
subd. (b)), and defendant carried a firearm during a street gang crime
(§ 12021.5, subd. (a)). The amended
information included allegations of two prior strikes and a prior serious
felony conviction.
On
April 3, 2012, defense counsel (different counsel than in 2009) moved to sever
the charges pertaining to the 2008 robbery from the charges pertaining to the
2007 robbery. In the written motion,
defense counsel asserted the evidence concerning the 2008 robbery was much
stronger than that for the 2007 robbery, and that the crimes involved distinct
fact patterns, witnesses, and took place nearly two years apart. Defendant argued there was “inherent
prejudice†in the jury hearing the facts of both robberies, especially given
that the 2007 robbery involved a firearm, while the 2008 robbery did not.
The
Honorable Helios J. Hernandez held a hearing on the severance motion on April
12, 2012. At the hearing, defense
counsel asserted the gang evidence for the 2007 offense was “incredibly weak,â€
while the 2008 robbery was “clearly a gang case,†due to defendant yelling,
“‘This is Edgemont and Dorner Blocc,’†when fleeing. Counsel further asserted the witnesses for
the 2007 robbery provided inconsistent statements, while the witnesses for the
2008 robbery were much more credible.
The
prosecutor asserted the gang evidence for the 2007 robbery was not weak, given
the crime was committed with known gang members. The prosecutor also explained that the
witnesses’ statements for the 2007 robbery were not inconsistent, because their
statements could be interpreted in a manner that was consistent.
The
trial court found the two cases involved the same class of crimes, in that they
were both robbery cases, the cases were committed close in time, and in the
same city, but the court noted the crimes involved different witnesses. The court concluded one case did not appear
stronger than the other. The trial court
reasoned that the alleged inconsistent witness statements for the 2007 robbery
could assist the defense in defending the 2008 robbery by making the
prosecution’s case appear problematic.
The trial court said, “They’re in the same class of crimes and I don’t
see that one [case] is great and the other one is terrible. They both have their problems. So motion denied.â€
A. SEVERING THE 2007 AND 2008 CHARGES
Defendant
contends the trial court erred by not severing the 2007 charges from the 2008
charges. We disagree.
“An
accusatory pleading may charge two or more different offenses connected
together in their commission, or different statements of the same offense or
two or more different offenses of the same class of crimes or offenses, under
separate counts, and if two or more accusatory
pleadings are filed in such cases in the same court, the court may order
them to be consolidated.†(§ 954.)
“‘“In
determining whether a trial court abused its discretion under section 954 in
declining to sever properly joined charges, ‘we consider the record before the
trial court when it made its ruling.’â€
[Citation.] “The relevant factors
are whether (1) the evidence would be cross-admissible in separate trials, (2)
some charges are unusually likely to inflame the jury against the defendant,
(3) a weak case has been joined with a strong case, or with another weak case,
so that the total evidence may unfairly alter the outcome on some or all
charges, and (4) one of the charges is a capital offense, or joinder of the
charges converts the matter into a capital case.†[Citation.]
“[I]f evidence underlying the offenses in question would be
‘cross-admissible’ in separate trials of other charges, that circumstance
normally is sufficient, standing alone, to dispel any prejudice and justify a
trial court’s refusal to sever the charged offenses.†[Citations.]’†(People
v. Scott (2011) 52 Cal.4th 452, 469-470.)
The
2007 charges involved allegations that defendant (1) actively participated in
the EDB gang (§ 186.22, subd. (a)), and (2) the robbery was committed to
benefit EDB (§ 186.22, subd. (b)). The
2008 charges included allegations that defendant (1) actively participated in
the EDB gang (§ 186.22, subd. (a)), and (2) the robbery was committed to
benefit EDB (§ 186.22, subd. (b)).
The
evidence about EDB was cross-admissible.
For example, evidence of (1) whether EDB was an ongoing
organization, (2) the primary activities of the gang, (3) whether the gang has
a common name, and (4) whether the members have engaged in a pattern of
criminal gang activity. (§ 186.22, subd.
(f).) These factors needed to be
established in both cases. As a result,
there was cross-admissible evidence pertaining to the substantive gang charges
and the gang enhancements. As a result,
the trial court’s decision to not sever the charges was within reason, because
the trial court could reasonably conclude there was sufficient cross-admissible
gang evidence to keep the charges joined.
Defendant
asserts the 2007 and 2008 charges should have been severed because (1) the 2007
case was a “non-gang caseâ€; (2) the trial court noted the gang expert would be
available for separate trials; and (3) the trial court did not indicate its
decision was based upon the cross-admissibility of the gang evidence. First, contrary to defendant’s assertion, the
2007 case involved a charge of active gang participation and a gang
enhancement. Ultimately, at trial, the
evidence of the 2007 offense showed defendant committed that robbery with
active gang members. Thus, we are not
persuaded by the argument that the 2007 case was a “non-gang case.â€
Second,
the trial court remarked that “the officer is going to be here anyway . . .
[s]o there’s no witness convenience issues.â€
Policy reflects joinder is the preferred course of action because it
promotes efficiency. (
In this case, it can be inferred from the trial court’s remark that the
same gang officer would testify about EDB at both trials if the cases were
severed. Thus indicating there would be
redundancy in the gang officer testifying to the same information at separate
trials. While the officer might have
been available for two separate trials, the issue remains that the same
information about EDB would have been elicited at both trials. As a result, we find defendant’s argument
about the officer’s availability to be unpersuasive given the preference for
joinder.
Third,
in rendering its ruling, the trial court said it found the crimes were of the
same class, close in location, and sufficiently close in time thus explaining
why there was no reason to sever the charges.
We review the trial court’s ruling, not its reasoning. (Florio
v. Lau (1998) 68 Cal.App.4th 637, 653.)
As explained ante, there was
cross-admissible evidence relevant to the 2007 and 2008 charges; as a result,
the trial court’s decision was within reason.
Thus, we are not persuaded by defendant’s argument concerning the trial
court’s reasoning.
B. GANG ALLEGATIONS
Defendant
contends the trial court erred by not severing or bifurcating the gang allegations. The People assert defendant forfeited this
argument by failing to move the trial court to sever or bifurcate the gang
allegations. Defendant concedes he did
not move the trial court to sever or bifurcate the gang allegations. A trial court does not have a sua sponte duty
to order severance or bifurcation. (
850 [severance]; People v. Hernandez
(2004) 33 Cal.4th 1040, 1050-1051 [defendant bears the burden to show
bifurcation should be granted].) Since
defendant did not move to sever or bifurcate the gang allegations, we conclude
the issue concerning the trial court’s alleged error in severing or bifurcating
the gang allegations has been forfeited.
(People v. Fuiava (2012) 53
Cal.4th 622, 653 [issue not raised below is forfeited].)
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant
contends his trial counsel was ineffective for failing to (1) request
bifurcation of the gang allegations, and (2) move for a new trial. We disagree.
“To
establish ineffective assistance of counsel, defendant must show both: (1) that counsel’s performance was
deficient; and (2) that the deficient performance prejudiced the defense. [Citations.]â€
(People v. Cowan (2010) 50
Cal.4th 401, 493, fn. 31.) When the
reasons for an attorney’s decisions are not apparent from the record, “‘we will
not assume inadequacy of representation unless counsel had no conceivable
tactical purpose.’ [Citation.]†(People
v. Hines (1997) 15 Cal.4th 997, 1065.)
Gang
enhancements are often “inextricably intertwined†with the substantive
offense. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) “[E]vidence of gang membership is often
relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including
evidence of the gang’s territory, membership, signs, symbols, beliefs and
practices, criminal enterprises, rivalries, and the like—can help prove
identity, motive, modus operandi, specific intent, means of applying force or
fear, or other issues pertinent to guilt of the charged crime. [Citations.]
To 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.
[Citation.]†(
In
this case, the evidence concerning defendant’s gang affiliation and the rivalry
with Sex Cash was needed in order to explain the events surrounding the 2008
robbery. The gang evidence provided
context for the jury to understand why Jackson confronted defendant and why
Jackson had enough time to see defendant in order to identify him. If the evidence were whittled down to reflect
only that defendant ripped a chain from Jackson’s neck, the jury could question
the truth of the seemingly random incident and how Jackson had time to see
defendant. Accordingly, defendant’s
trial attorney could reasonably conclude that a
would have been futile, given the intertwined nature of the 2008 gang evidence
and substantive offense evidence. As a
result, we cannot assume trial counsel’s representation was inadequate, since
there is a reasonable explanation for the failure to request bifurcation.
Defendant
asserts there could be no tactical purpose for trial counsel failing to request
bifurcation of the gang allegations because the gang evidence was “highly
inflammatory.†As explained
have reasonably concluded a motion to bifurcate would have been futile given
the intertwined nature of the gang evidence and 2008 substantive robbery
evidence. Accordingly, we find
defendant’s argument to be unpersuasive.
Defendant
contends his trial counsel was ineffective for not moving for a new trial after
the verdict was rendered. Defendant
asserts his counsel should have argued for a new trial based upon the
introduction of “highly inflammatory†gang evidence because the gang
allegations should have been bifurcated.
Defendant’s arguments concerning the motion for new trial are the same
as his argument for the bifurcation motion.
Since we have already discussed these issues ante, we do not discuss them again here. We find defendant’s argument concerning the
motion for new trial to be unpersuasive.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All
subsequent statutory references will be to the Penal Code unless otherwise
indicated.
