P. v. Harris

Filed 7/26/07 P. v. Harris CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Eric C. Taylor, Judge. Affirmed

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and James William Bilderback III, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________________

Rodrick Harris appeals from the judgment entered following a jury trial in which he was convicted of first degree murder with personal and intentional discharge of a firearm, and possession of a firearm by a convicted felon. In a bifurcated court trial, defendant was found to have suffered two prior felony convictions, one of which qualified under the Three Strikes law. Defendant contends that the trial court erred in permitting evidence of gang activity and witnesses fear of testifying, in allowing use of preliminary hearing testimony, and in denying his request to exclude gruesome photographs of the victim. We affirm.

BACKGROUND

Defendant was convicted of murdering Trent Martin, a man in his mid-30s. Libby Simpson, who is an alcoholic and drug addict, had known Martin since he was a little boy. She had also known defendant, who was in his mid-20s at the time of the murder, since defendant was a little boy. Defendant was an active member of the Playboys street gang. Martin had been a member of the Hoovers gang.

On the night of October 27, 2003, Simpson was approaching the house of some friends on 93rd Street in Los Angeles when she saw Martin, whom she did not recognize, sitting on a bicycle in a nearby alleyway. Simpson heard shots coming from behind and saw Martin fall to the ground. Simpson stepped over Martin, who called for help as Simpson proceeded to her friends house. Simpsons friends, who were originally going to give her a ride home, said Simpson would have to wait because there were gunshots outside. Simpson then left the house, again stepping over Martin (still not recognizing him). At that point, defendant approached and said, Excuse me, Libby, to Simpson. Defendant next bent down over Martins body and shot him multiple times. Following that, Simpson left the scene.

Simpson further testified that, although intoxicated at the time of the shooting and while testifying at the preliminary hearing (at which she identified defendant), her identification testimony was accurate. (In March 2004, Simpson had identified defendant to the police at the behest of Martins brother.) Simpson conceded that she had described Martin to police as wearing different clothes from those depicted in police photographs taken at the scene.

Neighbor Carmen Metcalf testified she heard more than 15 shots in two groups, fired 5 to 20 seconds apart. She looked out the window and recognized defendant, whom she saw only in silhouette, fleeing with a companion. Metcalf next heard footsteps going up the stairs of her neighbor, Tiffanie Travillion. The following morning, Metcalf saw defendant, his same companion, and Travillion get into Travillions car and leave. Defendant was lying down in the front passengers seat.

On the night of the murder, sheriffs deputies who were patrolling in the area also heard the gunshots. Martins body was lying in the driveway. Martin died from multiple gunshot wounds. A total of 19 expended cartridge casings, most likely fired from an Uzi, were found at the scene.

Officers went to Travillions apartment but did not see any suspects. Later investigation established the existence of blood on the riser of one of the stairs leading up to the apartment that matched Martins blood. Blood was also found on a size 9 shoe inside the apartment but in a quantity too small to test. (In court, defendant was wearing size 8 shoes.)

Martins brother testified that he had known defendant for 15 years or more and never had any problems with him. He saw defendant often, usually at least three times a week.

The alley where the shooting took place was a hangout for the Playboys gang. Defendant had Playboys gang tattoos on his body, and photographs of himself and other Playboys flashing gang signs and a tracing template for a Playboys tattoo were found in a search of defendants room. Martin had been a member of the Hoovers gang. He had a gang tattoo on his upper forearm and on the web between the thumb and index finger of one of his hands. Graffiti in the area of the shooting showed that the Playboys claimed the neighborhood and that there was a problem or a conflict between the two gangs.

In defense, a private investigator testified that she had contacted Simpson several times in an attempt to interview her. Each time, Simpson was too intoxicated to be interviewed. Attorney Jerome Haig, who had represented defendant at the preliminary hearing (which was referred to as a prior proceeding), testified that at the preliminary hearing Simpson was the most severely intoxicated person he had ever seen and that she had fallen asleep while being cross-examined. According to Haig, It was just very difficult to carry on with a normal question and answer like you would with a regular sober witness. She just had difficulty answering, focusing, looking. She was just a mess. Haig further testified that before the start of the preliminary hearing, Simpson told him she had been smoking crack cocaine that day.

DISCUSSION

1. Gang Evidence

Defendant contends that the trial court abused its discretion in allowing the introduction of gang evidence before the jury. We disagree.

At a hearing conducted pursuant to Evidence Code section 402, defendant sought to exclude evidence of gang activity on the ground that it was unduly prejudicial. Defendant conceded that it would be proper to refer to defendants gang moniker to explain how witnesses use of that moniker led him to become a suspect in the case. But defendant argued that because there was evidence of a long-standing nonhostile relationship between himself and Martin, no evidence that Martin was an active gang member, and no evidence that any gang references had been made at the time of the shooting, it would be pure speculation to link the shooting with gang activity. The prosecutor disagreed, arguing that gang evidence was highly relevant to establish motive.

Evidence presented at the section 402 hearing established, as noted above, that defendant was an active Playboys member and Martin still had tattoos depicting his affiliation with the Hoovers. Although the police were unaware of any conflict between the Playboys and the Hoovers at the time of the shooting and the two gangs had generally been tolerant of each other, such hostilities did exist. At the scene of the shooting, the letter H had been crossed out of graffiti on the ground, evincing disrespect for the Hoovers by the Playboys, in whose territory the murder took place. Following the shooting, a Playboys gang member told officers of a conflict between the two gangs. In addition, more graffiti appeared in the area, including another crossed-out H that was adjacent to a gang sign for the Playboys. The graffiti showed that the Playboys claimed the area and that the Hoovers were their rivals.

After extensive argument, the trial court ruled that gang evidence could be introduced at trial. We find no fault with that ruling.

Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. [Citations.] A properly qualified gang expert may, where appropriate, testify to a wide variety of matters, including gang graffiti. [Citations.] [] However, gang evidence is inadmissible if introduced only to show a defendants criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.] [Citations.] In cases not involving a [Penal Code] section 186.22 gang enhancement, it has been recognized that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] [Citations.] Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, trial courts should carefully scrutinize such evidence before admitting it. [Citation.] [Citations.] (People v. Avita (2005) 127 Cal.App.4th 185, 192193.)

A trial courts ruling on the admissibility of gang evidence is reviewed for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) As such, it will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]. (People v. Rodriguez (1999) 20 Cal.4th 1, 910.)

Given the absence of any personal animus between defendant and Martin, evidence of recent hostility between the gang to which defendant belonged and the gang in which Martin had at least once been active was highly relevant to establish the existence of motive. And, as required, the gang evidence was carefully scrutinized before it was admitted. Accordingly, defendant has not shown an abuse of discretion in the trial courts ruling.

2. Evidence of Witnesses Fear

At trial, Libby Simpson stated that she had been asked to lie, threatened, and beaten by numerous people with regard to her testimony in the case. The threats frightened her, but she felt she had to stand up . . . and just go through this battle for the truth. Carmen Metcalf testified that she was concerned that by testifying, members of defendants gang might harm her.

Defendant contends that this evidence was improper because the only credibility issue with Simpson pertained to the effects of her being intoxicated, and as to Metcalf, there was no implication that her fear of gang retaliation had any bearing on her credibility as a witness. The law provides otherwise.

Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witnesss fear is likewise relevant to her credibility and is well within the discretion of the trial court. [Citations.] (People v. Burgener (2003) 29 Cal.4th 833, 869.) It is not necessary to show threats against the witness were made by the defendant personally, or the witnesss fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citation.] [Citation.] (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.)

In accordance with these principles, defendants jury was instructed under CALJIC No. 2.20 to assess witness credibility by various factors, including [t]he demeanor and manner of the witness while testifying. (See People v. Lewis (2001) 26 Cal.4th 334, 361 [under Evid. Code,  780, subd. (a), witnesss demeanor while testifying and the manner in which he testifies may be relevant to credibility].) Thus, here, as in People v. Olguin, supra, 31 Cal.App.4th at page 1369, [t]he trial court acted well within its discretion in insuring the jury would have such evidence [of fear] and would properly evaluate it.

3. Preliminary Hearing Testimony

Defendant contends that the trial court committed two prejudicial errors in allowing evidence of Libby Simpsons preliminary hearing testimony to be introduced at trial. We disagree.

a. During the prosecution case

On Simpsons direct examination, it was established that after telling the police defendant had murdered Martin, prosecution personnel helped Simpson move away from the area and placed her in a recovery facility for alcoholism. On cross-examination, defense counsel referred to Simpson voluntarily submitting herself to custody during the trial. Simpson explained she did so to help ensure that she got to court. Simpson was further asked what she had said while speaking with one of the officers before taking the witness stand. Simpson responded that she had inquired about her medication and whether the officer who had been providing assistance found more clothes like she did the last time when I was in rehab. Simpson continued that she understood she would get her medication in jail, although she had been taken off Librium for the alcohol.

On redirect examination, the prosecutor asked whether Simpson had previously testified in the same manner that she had been testifying that day. Defense counsel objected, and a sidebar conference ensued. At sidebar, the prosecutor argued, among other things, that Simpsons identification of defendant at the preliminary hearing was admissible as a prior consistent statement under Evidence Code section 791, subdivision (b).^[1] Following argument in which defense counsel asserted that much of the assistance Simpson had received was provided before the preliminary hearing, defendants objection was overruled. When proceedings resumed before the jury, Simpson was asked if she remembered identifying defendant at a prior court proceeding. She answered in the affirmative, and no further questions were asked about Simpsons identification of defendant at that proceeding.

Although Simpson received certain assistance from prosecution personnel before the preliminary hearing, defendants cross-examination at trial implied that Simpsons identification in the trial court was influenced by the additional assistance that had been given, thereby raising the specter of Evidence Code section 791, subdivision (b). But regardless of whether Simpsons reference to her identification of defendant at the preliminary hearing was properly admitted, this brief testimony merely affirmed an identification of a young man whom Simpson had known since he was a little boy, about which she first told the police before the preliminary hearing, and which she adamantly reaffirmed at trial. Accordingly, any error in allowing this testimony must be deemed harmless.

b. During the defense case

While cross-examining defense witness Jerome Haig (who had represented defendant at the preliminary hearing), the prosecutor asked whether Simpson had been consistent in her testimony at the prior proceeding. Defendant objected. At sidebar, the prosecutor argued that he wanted Simpsons preliminary hearing testimony to be considered by the jury to impeach Haigs testimony on direct examination that Simpson was intoxicated and had difficulty answering questions. The prosecutor asserted that the transcript would instead show that Simpson was not intoxicated and that she was able to respond in a consistent and coherent manner. Defendants objection was overruled, the court commenting that through Haigs testimony, defendant had called into question the accuracy of [Simpsons] testimony so I think its only fair for [the prosecutor] to be able to respond to it. Testimony then resumed with Haig being questioned with reference to the transcript of the preliminary hearing.

Contrary to defendants contention that the transcript was irrelevant because it did not contradict Simpsons testimony at trial, the transcript provided relevant evidence to counter Haigs testimony by demonstrating that Simpson could and did answer the questions posed to her. Nor is it pertinent, as defendant contends, that Simpson was not unavailable to testify. Although defendant is correct that the hearsay exceptions of Evidence Code sections 1291 and 1294 pertaining to former testimony require that the witness be unavailable, the former testimony here was properly admitted as impeachment. (See People v. Archer (2000) 82 Cal.App.4th 1380, 1391.) Defendants contention must therefore be rejected.

3. Photographs of the Victim

Defendant contends that photographs of the victim should have been excluded from evidence as unduly prejudicial. Again, we disagree.

At trial, the prosecutor asked that various photographs taken of Martin at the scene of the murder and at the autopsy be admitted into evidence. As argued by the prosecutor, the photographs show the multitude of wounds to the victims body and its a first degree murder, so intent to kill is clearly an issue. [] Additionally, the fact that it was willful and premeditated and deliberate is also an issue. Further, the stippling visible on the victims face would corroborate testimony of witnesses (whose credibility had been attacked) that the victim had been shot at close range. The trial court carefully reviewed each of the proffered photographs, commenting both on their relevance and their potential for prejudice, and excluding several of them.

The admission of allegedly gruesome photographs is basically a question of relevance over which the trial court has broad discretion. [Citation.] A trial courts decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value. [Citation.] (People v. Roldan (2005) 35 Cal.4th 646, 713.)

As in Roldan, [w]e have examined the photographs in question and conclude the trial court did not abuse its discretion. They are not unduly bloody or gruesome and are relevant to the manner in which the victim was killed. As [the Supreme Court has] previously noted, murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant. [Citation.] (People v. Roldan, supra, 35 Cal.4th at p. 713.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

ROTHSCHILD, J.

JACKSON, J.^*

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^[1] Evidence Code section 791 provides: Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [] . . . [] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.

^* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.