PEOPLE v. JENKINS

Filed 9/25/06

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

APPEAL from a judgment of the Superior Court of Sacramento County, Gary S. Mullen, Judge. Affirmed as modified.

E. Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Catherine Chatman, Deputy Attorney General, for Plaintiff and Respondent.

Defendant appeals from the judgment of conviction after a jury found him guilty as charged of two counts of battery with serious bodily injury (Pen. Code, § 243, subd. (d); counts 1 and 3)^[1] and two counts of assault with a deadly weapon upon the victims Seeva and Steven Cherms. (§ 245, subd. (a)(1); counts 2 and 4.) The jury found true the great bodily injury enhancements alleged in connection with the aggravated assault charges (§ 12022.7, subd. (a)) and the criminal street gang enhancement alleged as to all four counts. (§ 186.22, subd. (b)(1).) The court sentenced defendant to a total unstayed prison term of 22 years and four months. It made count four, the aggravated assault on Steven Cherms, the principal term, imposed a consecutive term on count two for the aggravated assault on Seeva Cherms, and imposed concurrent terms on counts one and three for felony battery. The court stayed the sentence on count three but did not stay the sentence on count one.

On appeal, defendant contends the judgment must be reversed because the trial court committed prejudicial error by denying his motion to bifurcate trial of the criminal street gang allegation enhancement and there was prosecutorial misconduct and cumulative error.

Defendant also claims the constitutional doctrine of double jeopardy requires that the battery convictions be vacated and the abstract of judgment be amended to reflect that a stay of the sentence was imposed on count one pursuant to Penal Code section 654.

With respect to double jeopardy, respondent contends this claim has no merit because the double jeopardy clause does not apply to a unitary criminal case and the use of a sentence enhancement to determine whether one offense is included in another is an unauthorized expansion of section 954. We agree.

In the published portion of the opinion we will conclude that the multiple punishment proscription of the double jeopardy clause does not prohibit multiple convictions for the offenses of aggravated assault resulting in great bodily injury and battery with serious bodily injury.

However, we agree with defendant that the sentence on count one should be stayed pursuant to section 654 and shall direct that the trial court amend the judgment to reflect a stay of the sentence imposed on count one. In all other respects, we shall affirm the judgment.

FACTUAL BACKGROUND

A. The Assaults

In August 2004, Seeva and Steven Cherms^[2] were looking for their 15-year-old daughter, Hailey, who had run away from home. On August 13th, Steven received a telephone call advising him that his daughter may be at a certain apartment complex off of Edison and Howe Avenue in Sacramento County. The complex was in the same area the Cherms had lived in 25 years earlier.

Joshua, a friend of theirs, drove the couple to the apartment complex in his sport utility vehicle (SUV). He parked across the street from an apartment complex on Edison Avenue and he and Steven walked up to the iron gate. Just as the manager opened the gate for them, Steven thought he saw his daughter walking down the street and shouted to Seeva, “hey, that looks like Hailey right there.”

Seeva exited the SUV and followed Steven, but then looked back and saw two people in the SUV, a young adult later identified as defendant and a 12 to 14-year old juvenile. Seeva could see defendant trying to start the vehicle and shouted for Steven because many of their valuable personal belongings, contained in several bags, were in the SUV.^[3] Defendant and the juvenile took the bags and ran between the apartments.

As Seeva walked towards Howe Avenue looking for defendant and the juvenile, she asked a man and woman who were standing near the corner if they had seen where the two males had gone with her bags. The couple was cordial but told Seeva her belongings were gone and advised her to “write it off.” Seeva called 911 from her cellular phone to report the theft. After she made the call, the woman told her the “kid” had gone in the direction of Howe and Edison and pointed out an apartment complex where the stolen property would be unloaded.

Meanwhile, Joshua picked Seeva up in the SUV and drove down Howe Avenue looking for defendant and the juvenile. Unable to find them, he drove back to the apartment complex and parked the SUV in front of the Royal Gardens Apartments on Howe Avenue. Seeva exited the vehicle and saw Steven walking towards her. Meanwhile, a group of about 10 individuals had gathered nearby, all wearing white T-shirts and jeans. As the group started to approach the Cherms, Seeva recognized defendant as the person who tried to take the SUV. When he stepped toward her in a threatening manner, she realized she was in danger, took a step back, and told him she had no problem with him, she was just trying to retrieve her belongings.^[4]

At that time, Steven approached and Seeva told him they should wait for the police, however defendant pushed her to get to Steven who was bewildered and backing away. At the same time, defendant also began giving orders to the other males in the group, directing some to take the SUV and telling others to make sure Steven did not go anywhere. When Steven was surrounded, a male known as J-Mack hit him in the head, followed by defendant, who hit him using what appeared to be homemade brass knuckles. Defendant struck Steven in the temple and eye and than hit him in the right cheek, causing Steven to stumble and fall to the ground.

Seeva began yelling, “Stop, he’s disabled . . . [h]e doesn’t want to fight you. He wants nothing to do with this. Stop. Please stop.” Hoping to scare them, she also told the group “the police are on their way.” Undeterred, defendant walked towards her, smiled, showing gold teeth, and then hit her in the face with his fist. The blow knocked her off her feet, causing her to fall to the ground and lose consciousness. Defendant ran away, but 15-year old Terrance C. (hereafter Terrance) began kicking her in the head and stomping on her stomach and the left side of her body. In an effort to protect his wife, Steven ran over to Seeva and lay on her, suffering a few additional kicks before the police arrived.

When Seeva regained consciousness, she felt searing pain in her head and her sides. She had difficulty breathing and was intubated and taken by ambulance to the hospital where she spent a week. She had a dislocated jaw, a closed head injury associated with amnesia and loss of consciousness, a fractured rib, and bruising around her ribs and back. Dr. Owens, director of the Mercy San Juan Trauma Center, characterized her injuries as “moderately severe” and consistent with a “rather significant” beating.

As a result of the beating, Steven sustained a “giant retinal tear” and “traumatic vitreous hemorrhage” in his right eye. He underwent surgery on August 27, 2004, to re-attach his retina and will require two or three additional surgeries. At the time of trial, he had no actual sight in his right eye and his visual prognosis was guarded due to the severe trauma to his eye. The blows to his face also broke two of his teeth and knocked the shell of a recent root canal and temporary filling out of his mouth.

B. The Investigation

Terrance advised law enforcement officers that after the Cherms confronted defendant and another friend about taking their property, defendant punched the man in the face a couple of times and when the woman yelled at defendant, he turned and punched her in the face, causing her to fall. Terrance refused to give the deputy any further information about his two friends because he was scared they would kill him if he did.

On September 1, 2004, Ken Silva, defendant’s probation officer, went with his partner and a detective to defendant’s address. When they arrived, Silva saw defendant standing outside. When they made eye contact with him, he ran away. Later that day, Silva was asked to identify a patient at Kaiser Permanente Medical Center who was giving a false name and was believed to be defendant. Silva identified defendant who was sitting in the emergency room with a heavily bandaged arm. He was awaiting surgery. Defendant told Silva he cut his arm on a fence he jumped over while running from Silva earlier that day.

The following day, on September 2, 2004, defendant agreed to speak with Detective Rivera. He told Rivera the Cherms approached him and accused him of taking their property. Steven became verbal with him, punched him in the face, and a fistfight ensued. Defendant denied hitting Seeva but said Terrance was present.

C. The Gang Enhancement

Defendant and Terrance are both members of the street gang known as the Del Paso Heights Bloods (DPH Bloods). Terrance carved the letters “DPH” in his arm because it was a “gang thing” and showed he was from Del Paso Heights.

Detective Elaine Stoops of the Sacramento County Sheriff’s Department gang unit testified as an expert on gang psychology and gang-related crime. The DPH Bloods are a gang with over 200 validated members in the northern area of Sacramento County. The letters DPH are a symbol commonly used to signify that gang and are used by gang members as a verbal challenge. The gang has been present in the Del Paso Heights area since the late 1980’s and gang members have been seen in the area of the Royal Gardens Apartments, which is within a couple of miles of Del Paso Heights.

To be a validated member, an individual must meet two of 10 standard criteria and have been an active gang member within the last five years. Members of the DPH Bloods frequently engage in the sale of narcotics, robberies, drive-by shootings, and homicides.

According to Detective Stoops, defendant has been a validated member of the DPH Bloods since February 2003. The validation was based upon a field contact by Deputy Jaymon Martinez, at which time defendant admitted he was a member of that gang while he was in the company of two other validated gang members and was wearing red clothing, the color associated with the DPH Bloods. Additionally, he had committed a gang-related crime, which may be a crime involving narcotic sales, arson, robbery, drive-by shootings, or homicide.

According to Stoops, a gang member’s whole livelihood is about respect and disrespect. Gang members want and expect others to “respect” them, meaning to fear them. Gang members do not like to be labeled as snitches and a snitch can expect severe retribution from other members in the form of a “beat down” or shooting. A “beat down” occurs when the gang surrounds a person and beats the person up until he or she goes down and is no longer moving or causing the gang a problem. Some of these beat downs result in homicide.

Committing a theft and participating in a beat down as in the present case benefits a gang member by bolstering his status in his gang and other gang sets and reinforces the fear and intimidation of the community. Other members of the community are reluctant to speak to law enforcement authorities because they fear reprisal from gang members.

Males as young as seven are brought into the gang because they are naïve and impressionable and are willing to do what they are told without asking a lot of questions. Older gang members test young males by ordering them to do various acts in the commission of a criminal offense to prove their trustworthiness and loyalty to the gang.

Stoops also testified that Charles Yerger and William Fields are validated members of the DPH Bloods, that in October 2002, Yerger made a threat to commit a crime resulting in great bodily injury or death (§ 422) for which he was charged and convicted with a gang enhancement (§ 186.22), and that Fields suffered two prior convictions for assault with a firearm sometime in December 2002 or 2003.

D. Defense

Defendant took the stand, denied he was a gang member, and testified he was acting in self-defense when he hit Steven Cherms. According to defendant, the day of the attack, he went to the Royal Gardens Apartments with his girlfriend to visit friends. While they were sitting in front of the apartment complex, he heard a lot of yelling, which drew his attention to a white couple. The man was upset and was yelling at some kids saying “You little bastards, where’s my stuff at?” while the woman was pointing at people. The woman approached him, pointed at him and said “He’s one of the ones that took my property.” When the man started yelling at him, defendant stood up and said he did not know what they were talking about. The man hit him in the face and a fight ensued. Defendant stopped fighting when his girlfriend pulled him away and he went back into the apartment complex. He left the area a short time later when his ride arrived. At that time, the man and the woman were both standing on their feet yelling at the kids. He never hit the woman and never saw anyone else hurt her.

DISCUSSION

I.

Bifurcation

Defendant contends the trial court’s denial of his motion to bifurcate the trial of the gang enhancement allegation resulted in the denial of his right to due process. Respondent contends the trial court did not abuse its discretion in denying the motion because the evidence was independently relevant on the issues of motive, intent, and defendant’s credibility. We agree with respondent.

A. Procedural Background

The prosecution alleged that all four charged offenses were “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).)

Prior to trial, defendant moved for a bifurcated trial on the gang enhancement allegations. The trial court denied the motion stating as follows: “The conduct that’s alleged, the reason for the crime, the resulting [theft], whose conduct inflicted which blow, the motive . . . for crimes, all of those things . . . are inextricably intertwined . . . in the case such that it would make no sense to prosecute the case and not tell the jury why this group of young men would assault these people just out of the blue.

The victims are just driving up, have their possessions loaded in the vehicle and are swarmed by the defendant and the others.

And I would note that defendant is alleged -- he’s 20. The others are all juveniles. He’s the older and it’s the People’s theory of the case that he is the leader of the group. And, thus, it would explain what’s occurring and the reasons behind the actions.”

B. Bifurcation

Section 186.22 is part of the Street Terrorism Enforcement and Prevention Act (STEP Act), which prescribes increased punishment for commission of a felony committed in connection with criminal street gangs. Under this provision, “’the prosecution must prove that the crime for which the defendant was convicted had been “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” [Citation.] In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)’” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047, quoting People v. Gardeley (1996) 14 Cal.4th 605, 616-617, fn. and italics deleted.) The statute specifies 30 predicate offenses. (§ 186.22, subd. (e).)

In People v. Hernandez, supra, 33 Cal.4th 1040, the court held that section 1044 provides the trial court with discretion to bifurcate the trial of the charged offense from the trial of a gang enhancement allegation. However, the court found “less need” for bifurcation of gang enhancement allegations than for prior conviction allegations. “A prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense.” (Id. at p. 1048.)

The court in Hernandez explained that “evidence 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.]” (Hernandez, 33 Cal.4th at pp. 1049-1050.)

Thus, the trial court’s discretion to deny a motion to bifurcate the trial of a charged gang enhancement is broader than its discretion to admit gang evidence when a gang enhancement is not charged. (Hernandez, supra, 33 Cal.4th at p. 1050.) Indeed, bifurcation is warranted only when (1) proof of the predicate offenses offered to establish a “pattern of criminal gang activity” are “unduly prejudicial” because they are unrelated to the crime or the defendant or (2) when the other gang evidence is “so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (Id. at p. 1049.)

Applying these standards, we find no abuse of discretion because the gang evidence was relevant on the issues of motive, intent, and defendant’s credibility and was not so extraordinarily prejudicial that it threatened to sway the jury’s verdict. (People v. Hernandez, supra, 33 Cal.4th at pp. 1049, 1051.)

Evidence of the charged offenses shows that an unarmed and unsuspecting middle age couple wandered into an apartment complex in an area where they used to live 25 years earlier. They were looking for their teenage daughter who had run away from home. Their property was taken and two witnesses told them to forget about their property. When the Cherms continued their search, they were approached and surrounded by a group of males who engaged in a violent and unprovoked attack or “beat down” of the couple. By denying he assaulted Seeva and testifying he hit Steven in self-defense, defendant placed his identity, intent, and credibility, in issue.

As the trial court found, without the gang evidence, these beatings appeared random and senseless as did the eye witnesses’ reaction to the theft, namely to “write it off.” Evidence that gangs commit “beat downs” to create fear and intimidation and that older members order younger members to commit such offenses to prove their loyalty was relevant to explain the modus operandi and motive for the beatings. Evidence that gangs recruit boys to the gang was relevant to explain how defendant could order this group to cooperate in the attack and why Terrance participated in it. Evidence that a gang member who snitches can expect severe retribution explained the inconsistencies between his trial testimony and his prior statements to the officers. Thus, the gang evidence allowed the jury to properly evaluate the credibility of the Cherms and defendant so that they could properly assess the Cherms’ testimony that defendant attacked them without provocation and weigh their testimony against defendant’s testimony that he acted in self-defense.

Nor was the evidence of the prior convictions suffered by defendant, Yerger, and Fields prejudicial. That evidence was offered to prove the gang enhancement element of “pattern of gang activity” and the jury was so instructed. As to defendant, Stoops testified he was convicted of the sale of cocaine base. However, that evidence was also properly admitted to impeach his credibility on cross-examination (Cal. Const., art. I, § 28, subds. (d) and (f); Evid. Code, § 788; People v. Castro (1985) 38 Cal.3d 301, 317), and defendant does not claim it was erroneously introduced for that purpose.

The prior convictions pertaining to Yerger and Fields were not the same offenses as those charged herein, they were not of a particularly inflammatory nature, there was no evidence defendant was personally involved in any of them, and no details were elicited about them. Thus, for the same reason these predicate offenses were not relevant to the charged offenses, they also were not prejudicial and there was no danger the jury would be confused or seek to punish defendant for the predicate offenses rather than the charged offenses.

Defendant argues that contrary to the trial court’s finding, the gang evidence was not inextricably intertwined with the facts of the underlying offenses. He also argues that much of the expert gang evidence was unnecessary. He does not claim however, that the evidence was erroneously introduced nor could he, given the gang enhancement allegation. The question of bifurcation turns in large part on the relevancy of the gang evidence to the charged offenses, not whether it is “inextricably intertwined” with the facts of the charged offenses.

Accordingly, because the gang evidence was relevant to the charged offenses and was not unduly prejudicial, we conclude the trial court did not abuse its discretion in denying the motion to bifurcate the trial on the gang enhancement allegation.

II.

Prosecutorial Misconduct

Defendant contends the prosecutor committed prejudicial misconduct by asking him on cross-examination to comment on the veracity of other witnesses, and that the misconduct deprived him of a fair trial. Respondent contends this claim was forfeited by counsel’s failure to make a timely objection and request for admonition and there was no misconduct. We find defendant’s claim has no merit.

A. Factual Background

Defendant took the stand and testified he was not and had never been a gang member. His testimony contradicted prosecution witnesses who testified that he was a gang member and had made admissions to that effect. More specifically, the prosecutor cross-examined him on the following inconsistencies:

Probation officer Wendy Reyes testified that in 2003 defendant admitted to her that he was a member of the DPH Bloods. On cross-examination, the prosecutor asked defendant whether he heard Reyes testify that he had told her he was a gang member, and when defendant denied making any such statement, the prosecutor stated, “Okay. So I don’t want you to characterize what her state of mind is, meaning I don’t want you to say if she’s mistaken or lying or anything like that, but when she said that, she was just flat out wrong; correct?” Defense counsel objected on the ground the question called for speculation and the objection was overruled. The prosecutor then asked, “Wrong as far as you being a Blood. Is that correct?” and defendant said “Yes, sir.”

Detective Stoops testified that in 2003 defendant admitted his gang membership during a field contact with Officer Jaymon Martinez. After defendant denied making that admission, the prosecutor again said, “So I’m not asking you to characterize someone as lying or mistaken, but whatever the facts are, that person would be wrong, too; correct?” Defendant responded, “Exactly.” Counsel again objected on the grounds of speculation and the trial court overruled the objection.

Detective Stoops also testified that defendant had “numerous altercations with Crips gang members as well as with staff in which he made references to the fact he was a DPH gang member” while in juvenile hall and county jail. The prosecutor questioned defendant about eight incident reports reflecting those altercations. Defendant said he did not remember the incidents, denied invoking his status as a gang member, and indicated as to two of the incidents that the officers were “lying.” The prosecutor concluded his questioning as to five of the incidents by asking defendant if the person reporting the incident was “flat-out wrong?” The prosecutor concluded his questioning about these incidents by asking “[a]nd for all those people who said you were [a DPH Blood], they were just wrong” and “I’m not going to go through all of these, sir, if your position is that everybody in here is just wrong. That is your position, right?” to which defendant responded “Basically.”

Defense counsel objected to the prosecutor’s questions relating to the sixth incident on the ground it was cumulative and the objection was overruled. Counsel also objected as argumentative to the prosecutor’s question “and why is it that when you get into assaults with other inmates, they tend to be Crips?” The court agreed “[a]s phrased.” No other objection was made to this line of questioning nor did counsel request an admonishment.

B. Misconduct

To preserve a claim of prosecutorial error on appeal, defendant must have made a timely and specific objection to the alleged misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Zambrano (2004) 124 Cal.App.4th 228, 237.) A defendant is excused from these requirements if either would be futile. (People v. Hill, supra.)

To be continue as Part II...

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^* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Parts I, II and IV of the Discussion.

^[1] A reference to a section is to the Penal Code unless otherwise specified.

^[2] In the interests of clarity, we shall refer to Mr. and Mrs. Cherms by their given names and intend no disrespect.

^[3] Because Steven was in the process of changing banks when he went to look for his daughter, the entire contents of the Cherms’ safe deposit box were in the SUV that day.

^[4] Seeva identified defendant in court as the adult who tried to steal the SUV and then assaulted her. Steven also identified defendant in court as the one who hit him in the face.