P. v. Saxton
Filed 11/12/13 P. v. Saxton CA2/7 (11/7/13 modification & unmodified opn. attached)
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID SAXTON,
Defendant and Appellant.
B236087
(Los Angeles
County
Super. Ct.
No. BA374252)
ORDER
CORRECTING
MODIFICATION
The
modification of the captioned opinion, filed on November 7, 2013 is corrected to reflect the proper superior
court case number, BA374252.
PERLUSS, P. J.
>
Filed
11/7/13 P. v. Saxton
CA2/7
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opinion has not been certified for publication or ordered published for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
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID SAXTON,
Defendant and Appellant.
B236087
(Los Angeles
County
Super. Ct.
No. BA374242)
ORDER MODIFYING OPINION;
NO CHANGE IN JUDGMENT
THE COURT:
It is
ordered that the opinion filed October
10, 2013, and not certified for publication, be modified in the
following respects:
1. On page 2, third paragraph, in the first
sentence, the name “Demiya†should read “Demyiaâ€. The second sentence, which begins with “After
questioning,†should read, “After questioning the others about the murder,
police arrested appellant in connection with an unrelated assault on Jesse
White and robbery of Kenneth Bell, known as ‘Chaboy,’ which occurred before the
murder of Xray.â€
2. On page 3, in the first sentence of the first
paragraph, “Demiya†should read “Demyiaâ€.
3.
On page 4 of the opinion, in the fourth full paragraph, the first
sentence reads as follows: “Nash was
taken into custody on October 16,
2010.†It should read: “Nash was taken into custody in October
2010.â€
4. On page 6, in the first line, the first full
sentence which begins with “Later on,†should be modified to read, “Later on,
in the courthouse holding cell, appellant and Chaboy were involved in a second
fistfight.â€
5. On page 6, in the last paragraph, the first
sentence, which begins with “Appellant was charged,†the phrase “the assault of
Chaboy on July 15†should be modified to read “the assault of Chaboy on July
19â€.
6. On page 9, the first word on the page should
be “Nash†instead of “appellant.†7.
On page 9, in the second full paragraph, the first sentence, beginning
with “Chaboy testified,†should be modified to read “Chaboy testified at trial
that he met appellant once.â€
8. On page 16, in the second full paragraph, the
fourth sentence which begins with “According to Nash,†the words “and Sandersâ€
should be deleted.
9. On page 19, in the third full paragraph, the
last sentence reads “Chaboy and Nash gave consistent versions about the confrontation
in the holding cell.†That sentence
should be deleted.
Saxton’s
petition for rehearing is denied. The
foregoing does not change the judgment.
PERLUSS, P. J. WOODS, J. ZELON, J.
>
Filed
10/10/13 (unmodified version)
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
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID SAXTON,
Defendant and Appellant.
B236087
(Los Angeles
County
Super. Ct.
No. BA374252)
APPEAL
from a judgment of the Superior Court of
County. Ronald S.
Coen, Judge. Affirmed.
Marleigh A. Kopas, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Eric E. Reynolds and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
David
Saxton (appellant) was convicted by a jury of
§ 245, subd. (a)(1)
title="">[1])
and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). In a bifurcated proceeding, he admitted that
he suffered two prior convictions for serious or violent felonies within the
meaning of section 1170.12, subdivisions (a) through (d) and section 667,
subdivisions (b) through (i); and five prior convictions for which he had
served separate prior prison terms (§ 667.5, subd. (b)). He was sentenced to 55 years to life in
prison consisting of 25 years to life for the assault, 25 years to life for
dissuading a witness, and one year for each of the five prior prison
terms. He appeals, contending that the
court erred in refusing to allow him to impeach a key prosecution witness and
in allowing the prosecutor to present gang evidence; the prosecutor committed
on his gang affiliation; he was repeatedly denied effective assistance of
counsel; his constitutional rights were violated; and the cumulative effect of
the errors was prejudicial. We affirm.
FACTUAL & PROCEDURAL BACKGROUND
Summary
In the
early morning hours of July 19, 2010,
appellant called 9-1-1 about
a shooting in the skid row area of Los Angeles
near 6th and Maple Street. Appellant remained at the scene. The body of the victim, a man known as Xray,
area but no gun was recovered. Police
interviewed appellant at the station and a gunshot residue test was performed
on his hands. The test results were
inconclusive. Appellant was
released.
The police
questioned several others who were in the area, including Demiya Sanders and
Wendell Nash. After questioning the
others about the murder, police arrested appellant in connection with an
unrelated assault and robbery on Kenneth Bell, known as “Chaboy,†which
occurred before the murder of Xray.
Appellant was not charged with the murder of Xray.
The police interviews
on July 19th
Demiya
Sanders was interviewed informally outside the police station the evening of
Xray’s murder. She was then taken inside
the station and interviewed by Los Angeles Police Officer Sergio Ortiz in a
videotaped session. She told the police
she had seen an earlier altercation between appellant and Chaboy,
appellant’s name. She said appellant
was wearing red, and during the fight with Chaboy, he called someone on the
phone. Shortly thereafter, another person
arrived in a doo-rag and blue-hooded sweater.
Sanders referred to him as appellant’s “brother.†The person in the hooded sweater took out a
gun, and appellant said, “Give me the thing.â€
The “brother†fired one shot, and Chaboy fell and started running. Sanders also said that the person in blue
changed to a green and black shirt.
Sanders left the area, walked around for about 30 minutes and then heard
two shots. Someone came up to her and
told her Xray had just been shot after an argument by someone wearing red
flannel. Sanders had known Xray for
several years. Sanders did not see the
shooting of Xray. When asked if she knew
the person in red flannel, Sanders said she knew he was a Blood from Laudas
Park.
Wendell
Nash was also interviewed on July 19th by two other officers. Nash saw appellant in a red and black plaid
shirt talking to a man in the neighborhood known as Xray. Xray appeared to be angry and appellant was
calm. Nash left the area. Nash did not tell police he saw appellant
shoot Xray. Nash did not identify
appellant by name, just by a description of his clothing.
On July
21st, Officer Ortiz interviewed Jesse White, Chaboy’s brother, who had been
arrested on an unrelated charge. White’s
nickname was “Pooh.â€
On July 22, 2010, Chaboy walked into the
police station on his own. He was
interviewed and the interview was videotaped.
Chaboy told Officer Ortiz that appellant came up to him and his brother
on July 15, 2010. Chaboy did not know appellant’s name but knew
what gang he belonged to and knew that people called him “the guy from
Hacienda.†Chaboy said appellant “comes
up banging on everyone. He’s making sure
that everybody’s a Blood that’s around us.â€
Appellant pointed a pistol at him and Chaboy ran. Appellant took Pooh’s cell phone and ID. A few days later, Chaboy, his brother Pooh,
and Sanders were sitting on a crate in the street on the corner of 5th and San
Julian Streets. Appellant approached,
wearing a red coat. Appellant and Chaboy
argued and appellant hit Chaboy. Someone
rode up on a bicycle and appellant called him “his brother.†Appellant’s friend pulled a pistol and shot
at Chaboy. Chaboy ran. About 15 minutes later, Xray was shot. Chaboy identified appellant from a
photographic line up.
Officer
Ortiz realized there was a possible connection between the Xray shooting and
the Chaboy shooting because Sanders, Nash and Chaboy all described someone
wearing a red and black flannel shirt or jacket.
Arrest
Appellant
was arrested on July 29, 2010,
on 7th Street between Wall
and San Julian Streets, about two to three blocks from the location where
Chaboy was assaulted.
Nash’s subsequent statements
On July 30, 2010, Nash identified
appellant’s photograph during a taped interview with Detective Oritz but did
not say he had seen the shooting of Xray.
Nash was
taken into custody on October 16,
2010. He wrote a letter to
the District Attorney identifying appellant as the one who shot Xray. Police then interviewed Nash on October
25th. Nash wrote another letter to the
District Attorney in November 2010. The
letter said appellant was the shooter in a cold blooded killing.
Nash was
interviewed again by Officer Ortiz on November
30, 2010. Nash told him that
on July 19th, shortly after midnight,
he saw a confrontation between two
brothers and a man dressed in a red plaid shirt with a black baseball cap. Sanders walked away from the men and she told
Nash the man in red had a gun. Nash
heard the man in red talk to one of the brothers. The man in red got “huffy†and someone else
arrived. The man in red called the
newcomer a “Blood.†The man in red
punched the older brother, and said “Let me see that.†The older brother ran, then the shooter took
aim and shot. The older brother fell by
San Julian and 5th Streets, so Nash thought he had been shot, but the brother
got up and ran.
Nash then
walked back across the street. The man
in red stayed at the scene and confronted someone named Xray in front of the
Los Angeles Mission. The man in red
said, “I’m little somebody from Hacienda,†and Xray said, “I’m from
Watts.†The man in red said he wanted to
talk to Xray privately. Nash then heard
a shot.
The preliminary
hearing
At the
preliminary hearing, appellant represented himself.
Nash
testified at the preliminary hearing
in disguise so appellant could not identify him. He was afraid for his life. He said he was on 5th and San Julian Streets
shortly after midnight on July 19, 2010.
He saw appellant with a red plaid shirt having an argument with a
light-skinned man about a girl.
Appellant made a phone call, telling someone to “come on down.†Someone else arrived in a few minutes and
talked to appellant. Appellant hit the
light-skinned man. Appellant appeared to
have his hand on a weapon inside his pocket.
Nash saw a gun in the other man’s hand.
Appellant said, “Let me see that,†or “Give me that,†to his
friend. The light-skinned man ran and
appellant walked away calmly.
Nash said
he also saw appellant in a confrontation with Xray, and then he saw appellant
running away. He did not see appellant
shoot Xray but thought appellant had the motive to do so because they “both
gang bang.†Nash did not report the
shooting of Xray to the police.
During the
preliminary hearing Nash testified that he was smoking marijuana on the night
of the shooting and was on medication for
knowledge that the neighborhood where the shooting occurred is a place to buy
and sell drugs.
Chaboy
testified at the preliminary hearing that he was currently in custody and that
he had a confrontation with appellant in the Twin Towers of county jail that
day because appellant said he “snitched on him.†Appellant had shown him some paperwork with
Chaboy’s name on it. Appellant
physically attacked Chaboy. Chaboy did
not report the incident when it occurred.
Later on, in the courthouse holding cell, appellant hit Chaboy in the
face. This incident was videotaped.
Chaboy had
seen appellant on July 16, 2012, when Chaboy and his brother were sitting on a
wall and appellant drew a gun after they had an argument about a girl. Appellant did not shoot but took his
brother’s cell phone at gun point.
A few days
later on July 19th, appellant came up to Chaboy and his brother again and tried to hit Chaboy. Someone else came up on a bike, and took a
gun out. A shot was fired but Chaboy did
not see who fired the gun. Chaboy ran
off and the man on the bike chased after him.
Chaboy remembers that appellant was wearing a red jacket.
Chaboy did
not know Xray, but knew his name. He did
not know appellant’s name but he knew he was from the Hacienda gang. Appellant had approached Chaboy and
identified himself as affiliated with the Hacienda Village gang. Chaboy knew that appellant “hustle[s]†in the
area.
Chaboy did
not report the incident where appellant confronted him and his brother because
of “a code in the streets . . . – what
happens in the streets, stays in the streets.â€
Chaboy admitted being a “drug offender.â€
Appellant
testified on his own behalf at the preliminary hearing. He denied calling Chaboy a snitch because he
did not even know who Chaboy was. He
claimed Chaboy came up and hit him. He
denied fighting with Chaboy. He claimed
he said he went downtown with his girlfriend and called 9-1-1 to report the
shooting of Xray. He did not see who
shot him, but heard a shot as he walked past Xray. He denied being in a gang. He denied carrying a gun. He denied calling someone to come and meet
him on July 19th. He admitted arguing
with Pooh but denied there was a physical altercation.
Charges against
appellant
Appellant
was charged with the robbery of Pooh on July 15th, the assault of Chaboy on
July 15, and dissuading a witness (Chaboy) by force or threat on August 16,
2010. The robbery charge was later
dismissed.
Trial testimony
Appellant
was represented by counsel at trial.
Sanders
testified at trial that around midnight on July 18th she saw appellant wearing
a red and black sweater. She was talking
with Pooh and Chaboy when appellant walked up.
She had never seen appellant before.
Appellant and Chaboy argued about a female and Chaboy accused appellant
of robbing him. Chaboy and appellant
went into the street and were about to fight.
They never hit each other. A man
rode up on a bike and appellant said to the man on the bike, “Shoot him.†Appellant appeared to know the man. Sanders walked away and 15 to 20 minutes later
saw appellant being detained by the police.
She told the police that appellant actually tried to hit Chaboy. She did not tell police that appellant said,
“Shoot him.â€
On
cross-examination, appellant’s counsel asked her if she was using or selling drugs
that night. She denied doing
either. She testified that appellant had
on a red flannel shirt and a black baseball cap. She said that after the shot was fired she
started walking towards Los Angeles Street, met some friends, walked up towards
6th Street. Fifteen minutes later, she
heard another shot fired. Someone then
told her that Xray had been shot but she did not witness the shooting.
Defense
counsel again asked her if she had been drinking that night. The following colloquy took place: “Q.
You are not a drug user? A. No.
Q. Ever? A. No.â€
Defense
counsel then asked, “Did anyone ever make any reference to gangs?†and Sanders
answered, “Blood? Not, ‘Where are you from?’
But, Blood, yes.â€
On
re-direct, Sanders testified that she had been homeless for about one and half
years. Sanders said she usually stayed
at the Midnight Mission, playing cards in the park. When asked why she did not report Chaboy’s shooting
she said she was just trying to get away and did not know if she would be
followed.
The
videotape of Sanders’ interview with police was played for the jury. She explained that the person with the
doo-rag and a blue-hooded sweatshirt was the man on the bike. She also explained that a stocking cap and a
doo-rag were the same thing and she referred to both of those when referring to
the shooter.
Nash
testified at trial that he was familiar with the area of 5th and San Julian
Streets. He did not know appellant. He knew Chaboy and knew Pooh vaguely. He did not know Sanders. On July 19, Nash saw appellant, wearing a
red “lumber jacket,†challenging Chaboy.
Appellant said something about “Niggers from Chicago and think that they
could just move down here†and sell narcotics.
Nash felt it was a territorial dispute.
Appellant called someone on his cell phone. Nash heard appellant call himself “Little
Dave from Hacienda.†Nash later saw
appellant running on Maple Street, say something to Xray, hold up a gun and
shoot Xray in the head.
The
prosecutor played a DVD of Nash’s November 30, 2010 police interview for the
jury and provided it with a redacted transcript of the audio recording.
Nash said
he came to the preliminary hearing in disguise and used an accent because he
did not want to testify. He was worried
about his own safety. He was arrested on
a narcotics charge after the incident with appellant and wrote to the District
Attorney’s office trying to negotiate a deal on his own case in exchange for
testimony about appellant.
Nash
admitted he was currently serving a prison sentence for narcotics sales. He was being housed in the “mental ward†for
psychological problems and was currently being medicated.
Nash said
when he was in a holding cell with appellant a few days earlier, appellant told
him to say he lied about everything if called as a witness.
On
cross-examination, Nash said that on July 19th police came up to him on the
street and asked him to come inside the station. Nash admitted that he was smoking marijuana
that evening. He did not tell the police
that he saw appellant shoot Xray because he was afraid due to “street
laws.†In response to defense counsel’s
questions, appellant said he was afraid because he believed appellant to be a
gang member. Nash said he thought
appellant was a Hacienda Blood and he called himself “Little David.â€
The first
time he told police about the shooting of Xray was in the letter he wrote to
the District Attorney on October 19 of 2010.
In his first letter, he claimed he saw appellant shoot Xray point-blank
in the head. In a second letter he said
“the robbery victim is a suspected and known drug dealer†and a “known gang
banger.†He said appellant was “a
vicious and extremely violent and heartless murderer that has put a hit out on
my life.†He hoped the letters would get
him into a drug program.
Chaboy
testified at trial that he met appellant once, when he was in custody on his
own case. He never saw appellant with a
handgun, and never saw him rob his brother.
He admitted talking to Officer Ortiz but said he was lying. He claimed he was pressured by another
officer into saying things and into agreeing with his brother’s statement. He circled appellant’s photograph because he
knew him. He remembered getting into a
physical altercation with appellant in the jail and another verbal altercation
in the Twin Towers. He identified his
signature, he identified his picture at the police station, and said he did not
want to testify. He denied feeling his
life was in danger.
Chaboy’s
July 22nd police interview was played for the jury and the jury was provided
with a transcript of the recording. When
shown the portion of the videotape where he said appellant pointed the gun at
him and his brother, Chaboy denied seeing appellant point a gun at his
brother.
Chaboy
admitted he was in custody for selling narcotics. Chaboy’s preliminary hearing testimony was
read to him when he described the two altercations. The videotape of the altercation in the
courthouse was shown to him. Chaboy said
it showed appellant pushing him against a wall but also showed him attacking
appellant. Chaboy then testified he lied
about the incident to the District Attorney and lied at the preliminary
hearing.
Officer
Ortiz testified. He had interviewed
Chaboy, Sanders, and Pooh. All the
witnesses said something about a red flannel shirt and some sort of cap. Chaboy walked into the police station on his
own. Chaboy told Ortiz that appellant
pointed a gun at him in a videotaped interview.
Nash initially identified appellant on the 19th by describing the red
jacket. He did not identify him by name
until the 30th. Nash did not implicate
appellant until October 16 when he wrote to the District Attorney.
Sanders
told him appellant was involved in the murder of Xray. Sanders did not tell Ortiz that appellant
said, “Shoot him,†but said “Give me that thing.†Sanders told Ortiz that the shooter was
wearing a doo-rag on his head but Chaboy said there was nothing on the
shooter’s head.
At trial,
appellant testified in his own defense.
He admitted to four prior convictions.
On July 19th, he was standing at Maple Avenue when he heard a shot fired
and saw a man fall. He called
9-1-1. He identified the man as Jody
Heard. He talked to police when they
arrived and identified himself as the one who called 9-1-1. He talked to Officer Ortiz and was taken into
the police station. He was interviewed
over a 16-hour period. He did not see
Sanders or Nash at the station and he was not asked about Pooh or Chaboy.
During the
period around July 19, 2010, he was living in Newhall but came down to the
neighborhood of San Julian and 5th Street when he was arrested. He remembered getting into a disagreement
with Pooh about a girl, four or five weeks prior to the shooting of Heard. He did not have a confrontation with
Chaboy. On July 19, he had come to the
area with his girlfriend to buy some “weed†and they were renting a room in the
area for the weekend. He had never seen
Nash, Chaboy, or Sanders prior to this case.
He did not recall seeing Chaboy in jail.
Someone came towards him and he tried to defend himself. After he fought with Chaboy they were put
into separate “tanks†with plexiglass barriers.
On
cross-examination he testified that he saw Chaboy’s and Nash’s names on the police
reports he was given since he was representing himself at the time. He admitted that on July 19, 2010 he was
wearing a red and black jacket with a black hat. He admitted being in the area to buy
marijuana with his girlfriend and had done so more than 50 times in the
past. He said he did not have friends in
the area, and they were not people that he sees on a regular basis in that
area.
The
prosecutor then read preliminary hearing testimony from Chaboy about how he
knew appellant and Xray. Defense counsel
objected to introduction of this testimony because there was a reference to
gang membership. The court overruled the
objection because the reference to the Hacienda gang related to the issue of
identification. Chaboy answered “ I know
you by your gang.†When asked what gang,
Chaboy said “From Hacienda Village.†At
trial, the prosecutor asked appellant where Hacienda Village was, and said he
grew up near that area.
The
prosecutor then read preliminary hearing
testimony from Chaboy wherein he stated he did not report the incident with
appellant because “what happens in the streets stays in the streets.†The prosecutor asked appellant if he was
familiar with the “code of the streets.â€
Appellant said he was familiar with the code, but did not think Chaboy
or Nash had “snitched†on him. He saw
Nash and Chaboy in the same tank in the courthouse and confronted them for
lying.
The
prosecutor again asked appellant on cross-examination about what gangs were in
the area where he grew up. Defense
counsel objected on the grounds of relevance, but the court overruled the
objections. Appellant identified several
gangs in the area. The prosecutor then
asked what kind of gang Hacienda Village was or what they do and defense
counsel objected on grounds of speculation and foundation. The court overruled those objections. Appellant identified Hacienda as a “Blood
gang.â€
DISCUSSION
1. Sanders’ prior criminal history
Sanders had
two sustained juvenile petitions for selling drugs. During direct examination by the prosecutor,
but out of the presence of the jury, defense counsel sought to impeach her with
evidence of these prior petitions. The
court denied the request, stating, “[A]fter hearing the main thrust of
[Sanders’] testimony, I do find that the probative value of utilizing such
prior conviction . . . is outweighed by the fact that as a juvenile petition
some years back that it would cause confusion to the jury. I am utilizing this in light of the fact that
I understand other witnesses are in custody already for other matters. The use of the impeachment is denied.†When defense counsel cross-examined Sanders,
he asked her if she was drinking the night of the shooting. She said she was not and denied being a
“drinker†or a “drug user†“[e]ver.â€
Defense
counsel then renewed his request to impeach her with her prior sustained
petitions. The following colloquy
occurred: “THE COURT: It’s not narcotic sales. Denied.
[¶] [DEFENSE COUNSEL]: She has denied using them. I would like to question her. I just thought I would go to sidebar before I
did and got in trouble with her. I would
like to question her further about her selling them because it just seems to me
it’s now becoming relevant. [¶] THE COURT:
The objection is denied. The
question should have been objected to, but it wasn’t. But the ruling remains the same.â€
Appellant
contends that the court abused its discretion in refusing to allow the
impeachment.
Evidence
Code sections 788 and 352 give the trial court discretion to exclude evidence
of prior felony convictions when their probative value on credibility is
outweighed by the risk of undue prejudice.
(People v. Muldrow (1988) 202
Cal.App.3d 636, 644.)
Evidence of
a witness’s past criminal conduct can be admitted to demonstrate the witness’s
lack of veracity, subject to the discretion of a trial court. (People
v. Wheeler (1992) 4 Cal.4th 284, 295, superseded by statute on other
grounds as stated in People v. Duran
(2002) 97 Cal.App.4th 284.)
A witness
may not be impeached with the fact of a prior juvenile adjudication because it
is not a “conviction.†Evidence of the
underlying conduct, however, is admissible, if the conduct involved moral
turpitude. (People v. Wheeler, supra,
4 Cal.4th 284, 291-292, 295; People v.
Lee (1994) 28 Cal.App.4th 1724.)
Moral turpitude has been defined as a “readiness to do evil.†(People
v. Castro (1985) 38 Cal.3d 301, 314.)
The past misconduct involving moral turpitude may suggest a willingness
to lie. (People v. Wheeler, supra, 4 Cal.4th at pp. 295-296.) Sale of narcotics involves moral
turpitude. (People v. Castro, supra, 38 Cal.3d at p. 317.)
In
determining whether to admit the prior criminal history, the trial court should
consider (1) whether the prior conviction reflects adversely on an individual’s
honesty or veracity; (2) the nearness or remoteness in time of the conviction;
(3) whether the prior conviction is for the same or substantially similar
conduct to the charged offense; and (4) the effect if the defendant does not
testify out of fear of impeachment by the prior convictions. The first factor goes to the admissibility of
the prior conviction, which the court must resolve before exercising its
discretion based on the remaining factors.
(People v. Green (1995) 34
Cal.App.4th 165, 182-183, citing People
v. Beagle (1972) 6 Cal.3d 441.)
“On appeal,
the trial court’s discretion is reviewed for abuse of discretion. . . . In most instances, the appellate courts will
uphold the exercise of discretion even if another court might have ruled
otherwise.†(People v. Feaster (2002) 102 Cal.App.4th 1084, citing
655.) The trial court has broad
discretion in deciding whether to admit acts of moral turpitude. (People
v. Doolin (2009) 45 Cal.4th 390, 442-443.)
We cannot interfere with the trial court’s exercise of discretion unless
it was clearly abused. (
59, 65-66.)
The record
reveals the trial court carefully considered the evidence under Evidence Code
section 352 but concluded that its probative value did not outweigh the danger
of undue prejudice.
Initially
we note, as the trial court did, that Sanders denied using drugs, but her prior
adjudications were for selling drugs.
However, even if evidence of her past history were admitted, we find
that any mention of them would not have affected the weight of her
testimony. Sanders told police the same
version of the incident as Chaboy and Nash.
All of their descriptions pointed to a man wearing red whom they
recognized as a gang member who frequented the area.
Due to the
fact that the witnesses and victims all lived in the area which was known for
narcotics sales, the fact of Sanders’ prior narcotics sales activity should not
have surprised anyone. As the trial
court noted, “other witnesses are in custody already for other matters.†Nash admitted he had a prior criminal
history, including narcotic related convictions, and admitted he was in custody
and on psychotropic medications at the time of trial. Chaboy was in custody on a narcotics
charge. Nash described Chaboy as a known
drug dealer and said appellant was angry that Chaboy was selling drugs in his
territory. Appellant admitted to drug
use. Any evidence that Sanders was also
selling drugs would not have outweighed the striking similarities in the
descriptions of the assault. Any error
in excluding the evidence was harmless.
(People v. Feaster, supra, 102
Cal.App.4th at p. 1094.)
Appellant
also contends that his federal constitutional
Fourteenth Amendments to the U.S. Constitution) was violated when the trial
court did not allow counsel to impeach Sanders.
He then argues that if he is prevented from raising these claims on
appeal because his counsel did not object at trial on federal constitutional
grounds, then he is entitled to claim ineffective assistance of counsel.
To show a
deprivation of federal due process rights, appellant must show that the
erroneous admission of evidence resulted in an unfair and arbitrary trial. (People
v. Albarran (2007) 149 Cal.App.4th 219, 229.) Since we have found that any error in the
court’s refusal to allow impeachment of Sanders was harmless, we find no
violation of appellant’s federal Constitutional rights. (People
v. Castro, supra, 38 Cal.3d at p. 317.)
There was no ineffective assistance of counsel due to appellant’s
counsel’s failure to object on federal constitutional grounds.
verdict would have occurred even if the impeachment evidence were
admitted. (People v. Cudjo (1993) 6 Cal.4th 585, 634-635; People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37, fn. 2.)
2. Gang evidence
Prior to
trial, there was a discussion between counsel over the use of the police field
identification cards to show appellant’s gang affiliation. The prosecutor stated she would only
introduce gang evidence to the extent it had to deal with the circumstances of
the robbery and assault.
Halfway
during trial, defense counsel requested a bench conference in which he stated
that the Deputy District Attorney had just given him an arrest report for
appellant which indicated that appellant was an active gang member for Hacienda
Village Bloods. Defense counsel said he
had previously been under the impression that there was no documentation of
appellant’s gang membership. The
prosecutor stated that he
name="_ftnref6" title="">[6] was not planning on
introducing any sort of formal gang evidence, but when defense counsel had
“pushed and prodded†for evidence of appellant’s gang affiliation, he asked
Officer Ortiz to investigate it, and the officer came up with the report. The prosecutor stated “At this point I don’t
intend on using any of it in my case in chief.â€
Defense counsel said that if appellant testified he was not a member of
a gang, he could be impeached with that information, and requested time to
investigate. The court granted him the
rest of the following day after the prosecution rested.
In this
trial, there was no gang expert called as a witness and no gang allegation
against appellant.
As
indicated previously, Sanders, Nash and Chaboy all referred to appellant as a
gang member. They testified that he
referred to the man on the bike as a “brother†or a “Blood†and that appellant
used the word “Blood†just before the Chaboy shooting. Appellant contends that these multiple
references to gang membership were irrelevant and inflammatory. Appellant also contends the court erred by
allowing the prosecutor to elicit irrelevant and inflammatory evidence about
the Hacienda gang from the witnesses and from appellant on cross-examination.
Gang
evidence is admissible when it is relevant to motive, intent, identity and
modus operandi. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049;
76, 81.) Gang evidence should not be
admitted if it is only admitted to prove a criminal disposition or if it is
tangentially relevant and will have a highly inflammatory impact. (People
v. Williams (1997) 16 Cal.4th 153, 193; People
v. Ruiz (1998) 62 Cal.App.4th 234, 240.)
We review
the admission of gang evidence for abuse of discretion. (People
v. Carter (2003) 30 Cal.4th 1166, 1194.)
A trial court abuses its discretion when it exceeds the bounds of reason, all of the
circumstances being considered. (
72.)
The
evidence that appellant had gang ties was relevant to the issues of
identification and motive. Appellant’s
defense was an alibi, that he was not at the scene. Chaboy, Sanders, and Nash identified
appellant by his gang, and said he was known in the neighborhood. Sanders and Nash heard appellant identify
himself as a “Blood.†According to Nash
and Sanders, appellant’s motive for assaulting Chaboy was interference with
appellant’s narcotics sales territory.
While this was not a gang dispute, appellant called on someone whom he
referred to as a “brother†to assist in the confrontation. Appellant admitted he grew up in the Hacienda
Village neighborhood, corroborating identity.
The gang
evidence was also relevant because it explains why Nash did not tell police
what he saw and testified in disguise at the preliminary hearing and why Chaboy
completely recanted his eyewitness account at trial. In order to explain why the shooting took
place, and to tie in the varying witness accounts, the prosecution was entitled
to demonstrate that appellant was an alleged gang member. (People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168.)
Any abuse
of discretion in admitting gang evidence was harmless in light of the
eyewitness accounts identifying appellant as someone the witnesses all knew and
the consistent descriptions of him wearing a red shirt. Here, in contrast to the cases cited by
appellant, People v. Albarran, supra, 149
Cal.App.4th 219 and People v.
the challenged evidence had direct relevance to and was directly probative of
the charges against appellant. Moreover,
we find no reasonable likelihood that the jury’s passions were inflamed by the
evidence of gangs. Under the harmless
error standard of review, the outcome of the trial could not have been more
favorable to appellant had the gang evidence been excluded. (People
v. Fields (2009) 175 Cal.App.4th 1001, 1018.)
3. Prosecutorial misconduct
Appellant
contends the prosecutor committed misconduct by eliciting prejudicial gang
evidence during cross-examination of appellant, and during closing argument,
arguing facts not in evidence. Upon
questioning by the prosecutor, appellant testified he lived in the same
neighborhood as Hacienda gang territory and named several other gangs in the
neighborhood. Several of the gangs he
named had the word “Crips†in their name.
Appellant then testified that Hacienda Village was a Blood gang, but
appellant never admitted he was a member of that gang, nor was he asked about
his affiliation. Counsel argued in
closing: “And what are the odds that the defendant happened to know or seemed
to know. I don’t know whether it’s true
or not, whether he was correct, happened to know, exactly what the gangs there
were [in] that area and who their rivals were.â€
In addition, the prosecutor argued, “How else would all the fingers
point at the Hacienda Blood, the guy who identified himself as such, and just
so happens to be wearing red and just so happens to have grown up in the area
in which that gang frequents?†Appellant
contends that the prosecutor was improperly appealing to the jurors’ emotions
and fear.
“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.’ (People
v. Morales (2001) 25 Cal.4th 34, 44, . . .)
In other words, the misconduct must be ‘of sufficient significance to
result in the denial of the defendant’s right to a fair trial,’ (United
States v. Agurs (1976) 427 U.S. 97, 108. . . .)†(People
v. Coffman (2004) 34 Cal. 4th 1, 92.)
A prosecutor’s conduct violates California law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the
court or the jury. (Ibid.)
Appellant
did not object to any statements in closing argument nor did he request an
admonition from the court. Appellant has
therefore forfeited this issue on appeal.
(People v. Coffman, supra, 34
Cal.4th at p. 100.)
In any
event, we have determined that the gang references were admissible due to their
relevance to identity and therefore, the prosecutor did not commit misconduct
when eliciting evidence with gang references.
A
prosecutor enjoys wide latitude in commenting on the evidence, including urging
the jury to make reasonable inferences and conclusion therefrom. (People
v. Tafoya (2007) 42 Cal.4th 147, 179.)
In our view the challenged comments fell within the permitted range of
fair comment on the evidence. Appellant
was repeatedly identified as a gang member by three eyewitnesses. He lived in the same neighborhood as the gang
they identified. The prosecutor was
drawing a fair inference from this testimony.
The statement about rivals was also a logical conclusion from his
testimony that some of the gangs in the neighborhood were Crips and the
Hacienda gang was a “Blood gang.†There
was no reasonable likelihood any juror would have applied the prosecutor’s
comments erroneously. We conclude any
misconduct was harmless, given the fleeting nature of the comment and the
overwhelming weight of the evidence against appellant. (People v. Huggins (2006) 38 Cal.4th 175, 252-253.)
4. Ineffective assistance of Counsel
Appellant
contends that he received ineffective assistance of counsel because his trial
counsel made promises in opening statement that he would establish appellant
was not a gang member and then failed to provide that evidence, because his
counsel failed to request exclusion of gang evidence under Evidence Code
section 352 and because his trial counsel elicited prejudicial evidence when
cross-examining Nash which portrayed appellant as a vicious murdering gang
member.
To
establish ineffective assistance, appellant must show that his counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms. Next he must
establish that absent counsel’s error, it is reasonably probably that the
verdict would have been more favorable to him.
(People v. Gray (2005) 37
Cal.4th 168, 206-207; In re Fields
(1990) 51 Cal.3d 1063, 1069-1070.) On
appeal, the court defers to reasonable tactical decisions made by counsel. If the record on appeal does not reveal why
counsel acted in the manner challenged, we reject the claim of ineffective
assistance unless counsel was asked for an explanation and failed to provide
one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
In his
opening statement, defense counsel told the jury that some of the witnesses
would make statements about appellant being a gang member. He continued, “Whoever may or may not have
done these things, apparently, represented themselves as a Hacienda Village
Blood. The problem is that [Officer
Ortiz ] will tell you that it’s not so.
[Appellant] has never been a Hacienda Village Blood or any other. He is not any gang ‘Blood.’â€
At trial,
appellant never admitted being a Hacienda Blood gang member. He merely testified that he grew up in the
area and knew which gangs were in that area.
Officer Ortiz never testified that he knew appellant to be a Hacienda
Blood member. The statements defense
counsel made were consistent with the defense of mistaken identity in the face
of conflicting evidence from the prosecution witness. Defense counsel may have been making a
tactical decision to meet the gang evidence head on, since he knew that various
witnesses had referred to appellant by his gang membership in videotaped police
interviews.
Since it
was a reasonable inference that counsel made a tactical decision to address the
gang evidence, and the record does not suggest that counsel failed to provide
an explanation about this decision when asked, the ineffective assistance claim
must be rejected. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.) In addition, appellant failed to demonstrate
a reasonable probability the outcome of the trial would be different absent the
alleged errors. Three eyewitnesses
described the assault on Chaboy and identified appellant. Chaboy and Nash gave consistent versions
about the confrontation in the holding cell.
With
respect to the gang evidence elicited from witnesses, as we have discussed, the
gang evidence was relevant to the issue of identity. The trial court did rule that the evidence
was relevant, prior to and during trial.
Any objection to the introduction of this evidence would have been
futile. (People v. Waidla (2000) 22 Cal.4th 690, 719.)
5. Cumulative Error
Appellant
claims that the cumulative effect of the errors requires reversal. We do not agree. The alleged errors did not affect the process
nor did they accrue to his detriment. (
565; People v. Osband (1996) 13
Cal.4th 622, 688.)
DISPOSITION
The
judgment is affirmed.
WOODS,
J.
We concur:
PERLUSS, P. J.
ZELON, J.
name="_ftn1" title="">[1] All
further undesignated statutory references shall be to the Penal Code.
name="_ftn2" title="">[2] Xray’s
given name was Josey or Jody Heard.
