PEOPLE v. HILL







Filed 1/13/11






CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE HILL, Defendant and Appellant.

A117787 (San Francisco City and County Super. Ct. No. 196842)

Story Continued From Part II………….



The evidence of the 14 prior gang-related shootings was directly relevant to establish the gang purpose alleged in count 4, possession of the assault rifle. Even if the trial court erred in admitting this evidence, under the Watson standard we conclude the error was harmless. The primary danger flowing from admission of these other gang-related crimes evidence is its tendency to persuade the jury that the defendant “had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished.” (Albarran, supra, 149 Cal.App.4th at p. 230; see also People v. Memory (2010) 182 Cal.App.4th 835, 859.) Such evidence may, therefore, create an emotional bias against the defendant that impacts the jury’s determination of all of the charges, not just the gang enhancement. (Albarran, at p. 230.) But this danger was much reduced because in this case none of the shootings involved appellant. In addition, it is clear that the “jury’s passions were [not] inflamed by the evidence of [the] uncharged offenses.” (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) The prosecutor sought a first degree murder verdict and argued that the evidence established premeditation and deliberation in the shooting of Espinoza. But the jury rejected this and found only murder of the second degree. (Cf. Williams, supra, 170 Cal.App.4th at pp. 612-613.) Finally, appellant’s trial strategy undermines his claim of prejudice. (See People v. Jennings (2010) 50 Cal.4th 616, 653.) Appellant did not dispute the existence of a violent gang rivalry, punctuated by numerous revenge shootings. In fact, as his opening statement made clear, his defense was premised on it: “To hesitate is to die. To hesitate as a gang member is to die. To hesitate as a gang member on rival turf in the Bayview at night is to die.” There were “gunfights beyond sight between West Mob and Big Block.” The evidence of the 14 prior gang-related shootings helped provide essential background for appellant’s claim of self-defense in shooting two strangers who approached him.^[1] Without that evidence, the defense would have had no logical basis for its theory of the case.^[2]
II. Testimony by Other Police Officers^*
Appellant next contends the court erred in overruling his hearsay and relevancy objections to testimony by 11 different police officers to support the prosecution’s theory that it was common knowledge in the Bayview that police officers patrolled in unmarked police cars and gang members alerted each other to the presence of such unmarked police cars. The trial court found the evidence relevant and overruled the hearsay objections on the ground the evidence was not admitted for its truth.^[3]
Appellant expressly points to the following testimony:
(1) Parker testified that young men he believed to be West Mob members told him, “We can see you coming a mile, miles away.”
(2) Former San Francisco Police Officers Scott Kendall and Stephen Jonas testified that while patrolling the Bayview in plainclothes and in unmarked police cars, each would sometimes exit the patrol car and, while on foot, have conversations with young men thought to be West Mob members. Each witness testified these young men would sometimes be adversarial and would say things such as, “Fuck the police,” “Fuck you,” “You guys are always hassling us,” “What the fuck are you looking at,” and “Get the fuck out of here.”
(3) San Francisco Police Officer Len Broberg testified that, in 2002, he saw graffiti in the Bayview that said, “Fuck Officer Len and the White Ghost,” with Broberg’s name crossed out.
(4) Numerous San Francisco police officers testified that sometimes, while patrolling the Bayview in plainclothes and in an unmarked police car, they would hear people mimic a siren or give verbal signals or alerts that the police had arrived such as, “oh, oh, oh,” “wooop,” “five-oh on the block,” “po-po,” “white whale,” “gray ghost,” “woo-woo,” “yo,” “lay-ow, lay-ow,” “aye-oh” and “roller.”
The trial court’s rulings on the admissibility of evidence are reviewable for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Hearsay evidence is evidence of a statement made by an out-of-court declarant that is offered to prove the truth of the matter stated and is inadmissible unless the proffered evidence comes within an exception to the hearsay rule. (Evid. Code, § 1200.) Thus, if an extrajudicial utterance is offered without reference to the truth of the matter asserted, the “[h]earsay rule” does not apply. (People v. Dalton (1959) 172 Cal.App.2d 15, 19.)
Statements (2) through (4), listed above, were not admitted for their truth, but only to show that gang members were hostile to the police or recognized unmarked police cars. Even if statement (1) were admitted for its truth, any error in overruling the defense objection to it would have been harmless because of the large volume of other admissible evidence to the same effect.
III. There Was No Brady Error, Prosecutorial Misconduct or Instructional Error Regarding Adams^*
Appellant contends that, as to West Mob member Adams, the prosecutor repeatedly refused to comply with his discovery obligations under Brady v. Maryland (1963) 373 U.S. 83 (Brady). Appellant further contends the court erred in refusing to instruct the jury not to consider the prosecutor’s improper comments made about Adams during the opening statement. He argues that the impact of these errors was prejudicial.
Prior to trial, on March 14, 2006, defense counsel stated that the prosecutor had declared his intention to have Adams testify at trial; and, therefore, defense counsel asked for “full discovery” regarding Adams, including “Brady material.” On July 12, 2006, at an Evidence Code section 402 hearing (402 hearing) regarding Adams’s interaction with appellant on the night of April 10, 2004, Adams invoked the Fifth Amendment, was granted immunity and ordered to testify regarding the Espinoza murder. Defense counsel stated he still did not have full discovery regarding Adams, particularly regarding statements made by appellant to Adams. On numerous other occasions, appellant sought Brady material regarding Adams, including material in the hands of federal authorities. On October 10, 2006, following jury selection, the prosecutor provided the defense with discovery documents regarding Adams, which the federal court had ordered released pursuant to a federal protective order.
During his opening statement on October 16, 2006, the prosecutor described the role Adams had played in the events of April 2004: (1) a few days before Espinoza was killed, Adams took appellant and West Mob member Hamilton to the San Ramon apartment of West Mob member Marvin Jeffery, where assault weapons were provided to appellant and Hamilton; (2) on the day of the shooting, appellant telephoned Adams and said he had “a line on” Dow’s killer; (3) appellant decided to avenge Dow’s murder by killing Dow’s murderer, Allen, and Allen lived near the intersection where Espinoza was killed; (4) after killing Espinoza, appellant asked Adams to pick him up at his grandmother’s house, which Adams did; (5) Adams then drove appellant to Oakland; and (6) appellant ended up at Jeffery’s San Ramon apartment.
On October 23, 2006, at the conclusion of a 402 hearing, defense counsel asserted there was a joint federal/state investigation of Adams and requested all Brady material on Adams in the possession of federal authorities. On November 6, appellant submitted a written request for federal Brady material regarding Adams and others. Defense counsel requested that Adams not testify due to the prosecutor’s Brady violation. The trial court denied, without prejudice, the motion to exclude Adams, but excused the jury for a week to review the issues involved.
Later that day at a defense ex parte hearing, the court reviewed two FBI incident reports (called “302’s” just received from the United States Attorney, which defense counsel stated established the Brady violation and should bar Adams as a witness. The two documents regarded FBI interviews with Adams conducted in November and December 2004 that defense counsel said were exculpatory because Adams repudiated “the heart of what he has to say in this case” as a prosecution witness. Adams’s statements were made in the presence of San Francisco Police Officer Robert McMillan, an officer “cross-designated” as a gang expert between state and federal authorities, and San Francisco Police Officer Michael Philpott. Defense counsel argued that if the court was unwilling to exclude Adams as a witness, the two 302’s should not be revealed to the prosecution and the jury should be instructed that there was a Brady violation. The court deferred the request to exclude Adams until his testimony at a 402 hearing.
On November 8, 2006, the federal prosecutor provided defense counsel and the state prosecutor with the two 302’s regarding Adams that the court had considered at the ex parte hearing on November 6. Defense counsel asserted there was a “serious Brady issue” because the two reports had been withheld from the defense. Thereafter, defense counsel conceded he had been provided with the reports in May 2005, but insisted the prosecution had still violated Brady. Defense counsel stated that at the time he received the reports in May 2005, it “wasn’t that important to me” because Adams was not a “substantial” witness in the case. However, defense counsel said the two 302’s were now of “central importance” because the prosecutor was “putting [Adams] at the center of the case” based on Adams’s claims about his telephone call with appellant on the day of the shooting. He also argued that in late 2004, when Adams made the statements in the 302’s, Adams was out of custody and had not yet made the incriminating statements on which the prosecutor intended to rely.
At the November 9, 2006 continued 402 hearing, McMillan testified that in 2004 he was sworn in and cross-designated to perform certain federal duties and investigations. He admitted being present on November 22, 2004, when FBI agents took a statement from Adams at the San Mateo County jail. McMillan said he did not take notes or record the interview and did not provide a 302 to Pera, Toomey or the prosecutor. McMillan said he and Philpott (also cross-designated) were present on December 1, 2004, when FBI agents took another statement from Adams at the San Mateo County jail. Again, McMillan did not tape, create notes, or provide a report regarding the December 1 statement to Pera, Toomey or the prosecutor. The December 1 interview of Adams focused almost completely on the death of Espinoza and the prosecution of appellant. A week later, McMillan told Pera that Adams’s second statement, from December 1, contradicted a statement McMillan took from Adams in July 2004. Specifically, in the July 2004 statement, Adams denied driving appellant and Hamilton “to San Francisco from Oakland”; in the December 2004 statement, Adams said he did so. McMillan did not otherwise discuss the December 1 statement with Pera.
The court found that the two incident reports regarding Adams were material statements and the prosecutor violated section 1054 by failing to timely disclose them. However, it concluded there was no Brady violation and no prejudice to the defense because the defense was already in possession of the information.
Subsequently, at a closed hearing, Adams stated he would invoke his Fifth Amendment right not to testify as to three unrelated homicide cases between 1997 and 2001 and various other offenses that the defense wished to cross-examine him on. Adams was prepared to testify regarding other offenses. The court stated that, because Adams had invoked the Fifth Amendment, the defense could not effectively cross-examine him. At the request of the defense, the court ruled Adams unavailable as a witness.
The court proposed a witness unavailability instruction regarding Adams, which it ultimately provided to the jury: “On November 16, 2006, the [c]ourt declared . . . Adams legally unavailable to be a witness at trial. Neither the [p]rosecutor nor the [d]efense is responsible for that legal unavailability. The jury must not draw any inference as to any matter at issue in the trial from the fact that . . . Adams was legally unavailable to be a witness.” The court rejected the defense request to modify the instruction to add, “The jury should not consider for any reason any reference to . . . Adams made during opening statement by the district attorney or the defense.”
A. There Was No Brady Violation
“In Brady, the United States Supreme Court held ‘that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ [Citation.] The high court has extended the prosecutor’s duty to encompass the disclosure of material evidence, even if the defense made no request concerning the evidence. [Citation.] The duty encompasses impeachment evidence as well as exculpatory evidence. [Citation.]” (People v. Hoyos (2007) 41 Cal.4th 872, 917 (Hoyos).) “. . . ‘There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ [Citation.] Prejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ [Citations.]” (People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043 (Salazar).) To establish materiality a defendant “ ‘must show a “reasonable probability of a different result” ’ ” had the prosecution disclosed the evidence. (Ibid.) “ ‘A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (Hoyos, at p. 918.)
We apply a de novo standard of review to the issue of whether appellant established the elements of a Brady claim. (Salazar, supra, 35 Cal.4th at p. 1042.)
Appellant asserts that the two Adams statements provided in 2004 and memorialized in 302’s did not “com[e] to light” until November 2006, two weeks after the prosecutor’s opening statement. He argues that since “the Adams impeachment material was not discovered by the defense and/or disclosed by the prosecutor” until after the prosecutor’s opening statement, appellant was unable to effectively counter the impact of the prosecutor’s opening statement, resulting in a Brady violation that deprived him of due process.
Appellant’s argument ignores the fact that he had received these 302’s from an independent source long before the prosecution’s opening statement. As our Supreme Court stated in Salazar: “If the material evidence is in a defendant’s possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence. [Citations.] Accordingly, evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it ‘ “by the exercise of reasonable diligence.” ’ [Citations.]” (Salazar, supra, 35 Cal.4th at p. 1049, italics added.)^[4]
B. The Court Did Not Err in Refusing Appellant’s Requested Instruction
After the trial court granted appellant’s request to exclude Adams’s testimony, appellant requested that the jury be instructed that it “should not consider for any reason any references to . . . Adams made during opening statement by the district attorney or the defense.” Appellant argues the trial court’s refusal to do so violated his rights to due process and a fair trial.
The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction standing alone. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) The court instructed the jury, pursuant to CALCRIM No. 102: “Opening statements are not evidence.” It also instructed, pursuant to CALCRIM Nos. 104 and 222: “Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys . . . discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses’ answers are evidence.” The court also instructed, pursuant to CALCRIM No. 200, “You must decide what the facts are. It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial.”
Appellant contends the court had a duty to instruct “as to what is not evidence.” Appellant further argues that his requested instruction was a pinpoint instruction related to the defense theory of the case, i.e., that Adams was a liar and Adams’s statements, referred to in the prosecutor’s opening statement, were untrue.
Though imaginative, this argument fails. Upon request, the trial court must give jury instructions that pinpoint a theory of the defense, but it may refuse instructions that highlight “ ‘specific evidence as such.’ ” (People v. Wright (1988) 45 Cal.3d 1126, 1137.) Appellant succeeded in his efforts to obtain a court ruling barring Adams from testifying. It is illogical for appellant to argue that, following this ruling, a “theory” of his defense was that Adams’s testimony was a lie and he was entitled to a pinpoint instruction supporting this theory. Further, the trial court need not give a pinpoint instruction if it merely duplicates other instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.)
We conclude the instructions given by the court adequately informed the jury that it was to decide the case based solely on the evidence and that counsel’s opening statement was not evidence. “In the absence of evidence to the contrary, we presume the jury followed the court’s instructions. [Citation.]” (People v. Osorio (2008) 165 Cal.App.4th 603, 618.)
IV. Prosecutorial Misconduct^*
Next, appellant contends the prosecutor committed misconduct during cross-examination of defense expert Fraser by insinuating that Fraser was forced to resign his position at the University of Southern California (USC). He also contends the prosecutor committed Griffin error (Griffin v. California (1965) 380 U.S. 609) by posing questions to Fraser that only appellant could have answered. He asserts these prosecutorial errors violated his Fifth and Fourteenth Amendment rights.
A. The Prosecutor’s Cross-examination of Fraser Was Not Misconduct
Fraser, a neurophysiologist, testified as an expert on the effects of high stress on human functioning. On direct examination, Fraser stated that for more than 35 years, he had taught at the medical school and psychology departments at the University of Washington, Stanford University, and USC, and currently taught at the University of California, Los Angeles (UCLA), and the medical school at USC.
Appellant points to the following colloquy during the prosecutor’s cross-examination of Fraser:
“[The Prosecutor:] You mention you teach at some universities. Are you a tenured professor at the University of Washington‌
“[Fraser:] No.
“[The Prosecutor:] Are you a tenured professor at [USC]‌
“[Fraser:] I’m currently not. I was a tenured professor but I’m not anymore.
“[The Prosecutor:] When you left USC, that was against your will; is that correct‌
“[Fraser:] Absolutely false. I resigned.
“[The Prosecutor:] You resigned from being a tenured professor at USC‌
“[Fraser:] Correct. I accepted a position as CEO, I had a number of medical health problems. I needed a different career path.
“[The Prosecutor:] Are you a tenured professor at [UCLA]‌
“[Fraser:] No, I’m not a tenured professor anywhere.”
Defense counsel objected that there was “no good faith basis” for the prosecutor’s allegation that Fraser resigned from USC against his will and the question was a “stab in the dark.” Defense counsel requested that the court admonish the jury. The court ruled that the prosecutor’s questioning was not done in bad faith, denied the request that the jury be admonished, and noted the jury would be generally instructed that the questions of counsel are not evidence.
In reliance on People v. Hill (1998) 17 Cal.4th 800, appellant argues the court “used the wrong standard by implying that the prosecutor’s questioning would be misconduct only if it was done in bad faith.” “ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (Hoyos, supra, 41 Cal.4th at p. 923.) The trial court acted within its discretion in concluding that the prosecutor’s questions regarding Fraser’s reasons for leaving USC did not render the trial fundamentally unfair and were not “deceptive or reprehensible”; no prosecutorial misconduct is demonstrated. Moreover, the court did not abuse its discretion when it rejected defense counsel’s request for an admonition and concluded that other instructions would ameliorate any harm from the prosecutor’s questioning of Fraser.
B. There Was No Griffin Error
Noting that he did not testify at trial, appellant argues the following cross-examination of Fraser constituted Griffin error:
“[The Prosecutor:] And here today, . . . you’re not representing yourself as an expert on gang culture, gang habits in any way, sir‌
“[Fraser:] Certainly not.
“[The Prosecutor:] Which means you can’t tell us about [appellant]’s knowledge of unmarked police cars, whether he’s a gang member or not, you can’t tell us about his knowledge of unmarked police cars, can you sir‌
“[Fraser:] I can tell you nothing about [appellant]’s history and knowledge base. I made no assessment of that.
“[The Prosecutor:] Based on that last answer, you can’t tell us about [appellant]’s experience with police officers in the Bayview‌
“[Fraser:] No, that’s correct.
“[The Prosecutor:] You can’t tell us about his attitude towards the police based on his experience in the Bayview‌
“[Fraser:] That’s also correct.
“[The Prosecutor:] You can’t tell us how [appellant] reacted when he saw a Crown Victoria in the area of Newhall . . . that night‌”
The court then overruled defense counsel’s objection that the prosecutor was “commenting on [appellant’s] sitting here in trial and not testifying.” Thereafter, the following colloquy ensued:
“[Fraser:] I don’t know anything about that . . . .
“[The Prosecutor:] Now, . . . please assume [appellant] is a gang member and assume that he’s in possession of an assault rifle, and assume that he sees police officers approaching, and he recognizes them as police officers at 9:30 at night on the 1300 block of Newhall. As I understood some of the things you told us earlier, that set of circumstances could set off some kind of threat reaction in [appellant]; is that right‌
“[Fraser:] It could.
“[The Prosecutor:] And [appellant] could perceive a threat not to his life, but one of the other kinds of threats that you mentioned a few minutes ago, a threat of being arrested, could have perceived a threat that he would be arrested‌
“[Fraser:] Certainly.
“[The Prosecutor:] But you can’t tell us what kind of threat, if any, [appellant] perceived that night on Newhall, can you, sir‌
“[Fraser:] That’s correct, I cannot, both legally and ethically, that’s correct. I mean I as an individual could make a judgment if I were a trier of fact, obviously, but that’s not my role and I can’t do that from the witness box, and I won’t. That’s for the jury to decide.”
Appellant argued that the prosecutor’s questions were designed to highlight appellant’s decision not to testify at trial and therefore constituted Griffin error. The court disagreed and rejected the claim of Griffin error.
Under Griffin, a defendant’s Fifth Amendment privilege against self-incrimination is violated when the prosecutor comments directly or indirectly upon the defendant’s failure to testify in his defense or urges the jury to infer guilt from the defendant’s silence. (Griffin, supra, 380 U.S. at p. 615; People v. Medina (1995) 11 Cal.4th 694, 755; People v. Hardy (1992) 2 Cal.4th 86, 154.) In assessing a claim of Griffin error, we view the prosecutor’s allegedly offensive comments (here questions) in context. (People v. Mayfield (1993) 5 Cal.4th 142, 178.)
On direct examination, Fraser testified hypothetically about how persons act when they are under the influence of marijuana and in high stress situations. The questions posed by the prosecutor on cross-examination served to highlight the differences between this testimony and the testimony of certain prosecution witnesses who were able to opine on appellant’s membership in a gang, gang members’ knowledge of police practices and the relationship between gang members and the police. The question also highlighted that Fraser’s testimony about the reactions of people under stress was not inconsistent with the prosecution’s theory that appellant responded to the threat of arrest in shooting Espinosa. The prosecutor’s cross-examination questions were proper and did not constitute comments on appellant’s not testifying at trial. No Griffin error is demonstrated.
V. The Prosecution’s Rebuttal Evidence Was Properly Admitted^*
Appellant next contends the court erred in permitting the prosecution to present improper rebuttal evidence.
A. The Murders of Junious and Baker
In the prosecution’s case-in-chief, Chaplin testified that the Bayview double murder of Junious and Baker was gang related. In the defense case, during cross-examination of journalist and Bayview resident Jones, the prosecutor elicited that Jones had written about the Junious and Baker murders. According to Jones, Baker was accused of being affiliated with Big Block and Junious was neither accused nor affiliated with any gang. Jones said that while some people he spoke with described the double murder as gang related, he would not.
Thereafter, the prosecutor sought to rebut Jones’s testimony with proof that the Junious/Baker murders were gang related through testimony by Chaplin and three photographs. Defense counsel objected, but the court ruled that the prosecutor’s proffered rebuttal testimony was “appropriate.”
Chaplin then viewed the three photographs and testified that Baker was a member of Big Block at the time he was murdered, and the bandana on the ground near Baker at the scene of the Junious/Baker murders supported Chaplin’s opinion that Baker’s killing was gang related.
“Prosecution rebuttal evidence must tend to disprove a fact of consequence on which the defendant has introduced evidence. [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1088) The prosecution may not cross-examine a witness on a collateral issue and then introduce impeachment on that issue in rebuttal. (People v. Lavergne (1971) 4 Cal.3d 735, 744.) “The decision to admit rebuttal evidence rests largely within the discretion of the trial court and will not be disturbed on appeal in the absence of demonstrated abuse of that discretion. [Citations.] ‘ “[P]roper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.” ’ [Citation.]” (People v. Harris (2005) 37 Cal.4th 310, 335-336.) “Restrictions are imposed on rebuttal evidence (1) to ensure the presentation of evidence is orderly and avoids confusion of the jury; (2) to prevent the prosecution from unduly emphasizing the importance of certain evidence by introducing it at the end of the trial; and (3) to avoid ‘unfair surprise’ to the defendant from confrontation with crucial evidence late in the trial. [Citations.]” (People v. Young (2005) 34 Cal.4th 1149, 1199.) “The order of proof rests largely in the sound discretion of the trial court, and the fact that the evidence in question might have tended to support the prosecution’s case-in-chief does not make it improper rebuttal. [Citations.]” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 68.)
Appellant argues that the Junious/Baker rebuttal evidence was improper because Jones acknowledged on direct examination that “some” people would describe the Junious/Baker murders as gang related. Further, appellant argues the rebuttal evidence was cumulative to testimony by Chaplin and San Francisco Police Sergeant Lucio Perez, submitted by the prosecution during its case-in-chief, that the Junious/Baker murders were gang related.
Since Jones testified on cross-examination that in his opinion the Junious/Baker double murder was not gang related, the prosecutor was entitled to rebut that testimony with gang-expert testimony by Chaplin and supporting photographs. While it is true Chaplin testified on direct examination in the prosecution’s case-in-chief that the Junious/Baker double murder was gang related, his rebuttal testimony and the three photographs did not unduly magnify the importance of the evidence. We conclude there was no abuse of discretion.
B. Chaplin’s Testimony Regarding Telfor
As we discussed in more detail above, Telfor testified for the defense about his observations minutes before the shootings on April 10, 2004, particularly regarding appellant’s purchasing marijuana at Newhall and Newcomb. On cross-examination, Telfor said that in early 2004 he spent a fair amount of time at Newhall and Newcomb selling drugs. He denied being a member of or affiliated with a gang in early 2004. However, he conceded he had a “1700 Block” tattoo on his chest. Telfor said that 1700 Block did not consider itself a gang. Telfor said 1700 Block was predominately African-American men, but it did have one Latino member, Telfor’s friend “Chris.”
The prosecutor sought to rebut Telfor’s testimony that 1700 Block had a Latino member and to establish that a tattoo is evidence of gang membership. Defense counsel objected that the proffered rebuttal by Chaplin was a repetition of testimony elicited during the prosecution’s case-in-chief, and it was improper to permit the prosecution to rebut evidence elicited by the prosecution on cross-examination. The court overruled the objection. Thereafter, Chaplin testified he was unaware of any Latino male who, in early 2004, was an active participant in 1700 Block. Chaplin also testified that a tattoo that says “1700 Block” would be evidence of a person’s participation in that gang.


To Be Continue As Part IV………


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