P. v. Kelly

Filed 6/27/06 P. v. Kelly CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Patrick Kelly was tried before a jury and convicted of first degree murder. (Pen. Code, §§ 187, subd. (a), 189.)^[1] Firearm and gang enhancement allegations were found true and he was sentenced to prison for a term of 50 years to life. (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d), 186.22, subd. (b)(5).) Appellant contends the judgment must be reversed because the court admitted irrelevant and unduly prejudicial evidence and incorrectly defined an element of the gang allegation during its oral jury instructions. We affirm.

FACTS

Appellant is a longtime member of Barrio Van Nuys (BVN), a street gang whose members engage in a variety of criminal activities. Mara Salvatrucha (MS) is a rival gang. Respect is paramount in the gang culture, and retaliation is the norm when a gang member is killed by a rival gang.

BVN member Victor Mariscal, or "Stretch," was killed by members of MS on May 2, 2002. On October 15 of that year, Miguel Gaona, or "Puas," was fatally shot by a man who approached him on foot while he was making a call at a telephone booth located in MS territory. BVN graffiti appeared at the scene shortly afterward that suggested the shooting was in retaliation for Mariscal's murder: "Puas was for Stretch," "B.V.N.S.," "R.I.Piss Puas," "We got Puas." Gaona was not a documented gang member, but his physical appearance and presence in MS territory might have suggested that he was affiliated with that gang.

Eric A. was a telephone company service technician who witnessed the Gaona shooting. He saw a dark-skinned young man wearing a beanie cap approach Gaona and shoot him four times with a silver revolver. Two of the shots were fired while Gaona was standing; two were fired after he fell to the ground. Eric A. selected appellant's photograph from a line-up by holding a piece of paper above the eyes of the subjects to simulate the beanie cap the shooter had been wearing. Because he could not use this technique during a subsequent live line-up, he chose two subjects (appellant and another man) who could have been the shooter. At court hearings and at trial, Eric A. was "absolutely certain" appellant was the shooter.

Felipe P. was a neighbor who was moving boxes across the street and saw the shooting. He gave a description to police that was similar to Eric A.'s and identified appellant as the shooter after he saw him in court during the preliminary hearing in this case. Felipe P. later identified appellant in a photographic line-up, a live line-up, two court hearings and the trial. He was positive appellant was the shooter, even though he had said at the time of his initial identification that he "resembled" the shooter.

Police searched appellant's home and found a .357-magnum revolver hidden in a trap door of the closet in the bedroom that he shared with two of his brothers. The gun was similar in appearance to the gun used to kill Gaona, and bullets that were test fired from the gun had the same caliber and general rifling characteristics as those recovered from Gaona's body. Due to rust in the gun's barrel and some pitting near its muzzle, it was not possible to replicate results during a test fire and the gun could not be confirmed or eliminated as the murder weapon.

Police found a letter from appellant to another BVN member while searching the latter's home. In the letter, appellant discussed putting in "work" or doing "jobs" for BVN. He also mentioned several BVN gang members and used their monikers.

Pamela C. was a friend of Gaona's who lived near the scene of his shooting. She walked outside when she heard the shots and noticed a blue car driving away. She had seen MS gang members in that car on other occasions.

DISCUSSION

Admissibility of Evidence

Appellant contends the trial court committed reversible error when it denied his pretrial motion to exclude the .357 revolver that was found in his closet during the search of his home. He argues that the evidence was irrelevant and unduly prejudicial because forensic testing did not confirm it was the murder weapon. (Evid. Code, §§ 210, 352.) We disagree.

"'When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence [a] weapon[] found in the defendant's possession some time after the crime that could have been the weapon[] employed. There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon.'" (People v. Cox (2003) 30 Cal.4th 916, 956.) Evidence that the defendant possessed a gun that is the possible murder weapon is relevant and admissible as proof that the defendant committed the crime. (Id. at pp. 955-956; People v. Carpenter (1999) 21 Cal.4th 1016, 1052.) The revolver discovered in appellant's closet had the general characteristics of that which was used to shoot Gaona and could have been the murder weapon. The trial court did not abuse its discretion by admitting it into evidence. (Cox, at p. 955.)

We are not persuaded by appellant's reliance on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, which found a due process violation in the admission of evidence that the defendant had previously possessed knives that could not be linked to the charged homicide. In McKinney, the only purpose for admitting the knives was to prove the defendant's propensity to possess such weapons. This was improper character evidence and irrelevant to any material issue in the case. (Id. at p. 1384.) The revolver found in appellant's room was not offered to prove that he had a propensity to possess guns, but to show that he possessed a weapon possibly used in the murder. McKinney does not apply.

Appellant next argues that the court should have excluded evidence of the graffiti written at the scene of the shooting in which BVN appeared to take credit for killing Gaona. He contends the graffiti was irrelevant because there was no showing that appellant was its author, and he claims it was more prejudicial than probative in a case where substantial evidence of his gang affiliation had already been introduced.

Trial courts have wide discretion to determine the relevance of gang evidence and whether its probative value outweighs the danger of undue prejudice. (People v. Harris (2005) 37 Cal.4th 310, 337.) Although such evidence is undoubtedly prejudicial, it is admissible when it tends to prove a material element in the case. (Ibid.) Evidence of the gang graffiti was highly relevant because whether or not appellant wrote it himself, it demonstrated that someone in BVN was taking credit for the killing, and that the murder was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). (Contrast People v. Avitia (2005) 127 Cal.App.4th 185, 193-194 [gang graffiti inadmissible where no allegation that crime was gang related].) The evidence was not merely cumulative, because it explicitly linked the shooting to BVN in a way the remaining gang evidence did not.

Appellant finally challenges as cumulative the trial court's admission of the letter he wrote to a fellow gang member stating that he wanted to do jobs and put in work for BVN. The letter was not offered merely to prove that appellant was the member of a gang. It was offered to show that he was willing to participate in the gang's criminal activities, which in turn made it more likely that he had committed a retaliatory killing on the gang's behalf. The court did not abuse its discretion in admitting the evidence.

Error in Oral Jury Instructions

The gang allegation under section 186.22, subdivision (b) required proof that BVN's "primary activities" included the commission of one or more enumerated crimes. The prosecution's gang expert testified that BVN's primary activities included the commission of offenses such as shootings, assaults and drug sales, and that the gang had no legitimate, non-criminal purpose. Appellant contends the jury's finding on the gang allegation must be reversed because in reading the definition of primary activities to the jury, the court misspoke and stated, "'The primary activities' as used in these allegations means that the commission of one or more of the crimes identified in the allegation be one of the group's chief or principal occupations. This would of necessity include the occasional commission of identified crimes by the group's members." (Italics added.) The court provided the jury with a written copy of CALJIC No. 17.24.2, which correctly stated that primary activities would "exclude the occasional commission of identified crimes by the group's members." (Italics added.)

When there is a conflict between a court's written and oral instructions, we presume the jury was guided by the written instructions. (People v. Prieto (2003) 30 Cal.4th 226, 255; People v. Osband (1996) 13 Cal.4th 622, 687, 717.) The written instructions in this case correctly defined primary activities and we have no reason to conclude the jury looked elsewhere for its definition of this element. (Compare People v. Huggins (2006) 38 Cal.4th 175, 190-193 [no written instructions were given].) Moreover, this element was not reasonably subject to dispute. The defense position was that the prosecution had not proven appellant's identity as the shooter; no evidence was offered to contradict the gang expert's opinion that qualifying crimes were part of the primary activities of BVN. We can say beyond any reasonable doubt that the court's misstatement did not affect the outcome of this trial. (Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Huggins, supra, 38 Cal.4th at p. 258 (dis. opn. Kennard, J.).)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Barry Taylor, Judge

Superior Court County of Los Angeles

______________________________

Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kyle S. Brodie, Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] Further statutory references are to the Penal Code unless otherwise indicated.