P. v. Price and Austin
Filed 7/29/13 P. v. Price and Austin CA4/1
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COURT
OF APPAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KESHAWN LYNELL PRICE AND GEORGE
V. AUSTIN,
Defendants and Appellants.
D060993
(Super.
Ct. No. SCD233723)
APPEAL from judgments of the Superior
Court of
County, Howard H.
Shore, Judge. Affirmed as to Keshawn Lynell Price. Affirmed with directions as to George V.
Austin.
Russell S. Babcock, under appointment by the Court of Appeal, for
Defendant and Appellant Keshawn Lynell Price.
Christian C. Buckley, under appointment by the Court of Appeal, for
Defendant and Appellant George V. Austin.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting
and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Keshawn Price and George Austin each appeal from his
judgment of conviction after the jury found Price guilty of count 3,
§ 245, subd. (a)(1)) and Austin
guilty of counts 1 through 5, as follows: robbery (§ 211; count 1);
assault by means likely to produce great bodily
subd. (a)(1); count 2); assault by means likely to produce great bodily
injury (ibid.; count 3); and assault
with a deadly weapon and by means of force likely to produce great bodily
injury (ibid.; counts 4 & 5).
count 3 and Austin committed counts 1 through 5 for the benefit of a
subd. (b)(1)). The trial court sentenced
Price to five years and Austin to
17 years in state prison.
Price on appeal contends the trial court erred and thus abused its
discretion when it refused to sever his trial from Austin's
trial and when it refused to bifurcate the gang allegations from the
substantive charges. He also contends
the court erred in failing to give sua sponte a unanimity instruction. Lastly, he contends the court erred and
therefore abused its discretion when it ordered him to pay restitution jointly
and severally with other codefendants.
As we explain, we reject each of these contentions and affirm Price's
judgment of conviction.
Austin contends his
robbery conviction in count 1 must be reversed for lack of substantial
evidence. He also contends the trial
court erred in failing to instruct sua sponte on simple theft as the lesser
included offense of robbery and in instructing the jury on the gang
enhancement.
title="">[3] Finally, Austin
contends and the People agree that his abstract of judgment should be
corrected.
As we also explain, other than correction of the abstract of judgment,
we reject each of these contentions and affirm Austin's
judgment of conviction.
FACTUAL AND PROCEDURAL OVERVIEW
Heveen Toma managed the Moonlight
Market (store) located within the territory of the East Side Skyline Piru
criminal street gang (Skyline gang) in the Skyline neighborhood of San
Diego. In the
evening of April 5, 2011,
store employee Mukhles Daud was working the register while Heveen, Heveen's
cousin Karlos Toma and store employee Salwan Toma were busy loading cases of
Hennessy liquor onto a truck parked in the store parking lot for transport to
another location. As Karlos guarded the
truck, Heveen, assisted by Salwan, used a dolly to take the cases from the
storeroom, through the front door of the store, to the truck. Each case contained twelve 750 milliliter
bottles of Hennessy, and each bottle sold for $30. Approximately 35 cases were loaded into the
bed of the truck, and 20 smaller cases were loaded inside the truck's
cabin.
The jury viewed video taken from multiple surveillance cameras at the
store that showed a black vehicle driven by a man later identified as Austin
back into a parking space in front of the store. Five men, including Austin, exited the
car. As Heveen came through the front
door of the store with a dolly loaded with cases of Hennessy, the surveillance
video shows Austin and another man later identified as Norman Berry smacking
the cases of Hennessy. Heveen testified
the men loudly said, "'oh, this is mine'" and "'give me that'"
as they did so. Heveen continued walking
to the truck to finish unloading the cases and returned to the store. Meanwhile, Austin purchased a bottle of
Hennessy.
When he came back outside, Heveen observed Austin and Berry in a loud
tone say to Karlos, "where are you guys going with that" and
"give me that" and "I want to take some of that," referring
to the cases of Hennessy. Karlos
responded, "You guys just have yourselves a good night. We're just doing our jobs." As Heveen loaded the cases of Hennessy onto
the truck, Austin and Berry continued to ask where they were taking the
Hennessy. Heveen testified he then went
back into the store and told Salwan, "'hurry up'" and "'let's
try to finish,'" because he was concerned Austin, Berry and the rest of
their group would attempt to take the Hennessy.
Heveen next heard Austin and Berry say, "'this is Skyline,'"
"'[w]e're going to follow you wherever you're going to go [with the
cases]'" and "'this is our area.'" Heveen testified he associated these words
and/or expressions with the fact that the men, including Austin and Berry, were
part of a gang that was from the Skyline area, inasmuch as at the time of the
incident Heveen had worked at the store for more than three years and knew
gangs were located in the area. Berry
also began "throwing gang signs up" as he and Austin paced back and
forth in front of the store.
Heveen testified that just as they finished loading the Hennessy,
Austin got into the black car and slowly moved it to another part of the store
parking lot. Austin then exited the car
and said, "'Now you're blocked in.
You're not going to go anywhere."
As this was occurring, Barry continued "throwing up . . .
gang signs" and repeated "'this is Skyline'" and "'this is
our area,'" and words to that effect.
After Austin threw a two-liter soda at Heveen and Karlos, Austin came
around his car and said, "'This is our Area. You guys are not going anywhere. We're going to take your shit.'" Austin and Berry also said, "'this is
Piru territory'" and repeated, "'this is Skyline.'" The two also made gang signs with their
hands.
Heveen testified that Karlos told him to call the police. Heveen called 911, but was unable to get an
operator on the line. Nonetheless, at
Karlos's suggestion, Heveen pretended to speak to the police on his phone because
he was fearful of being robbed and hoped Austin, Berry and the others would
just leave.
Austin, Berry and the others then got back in the black car. Before Berry got into the car, Heveen
testified Berry went to the passenger side of the car and appeared to retrieve
something and put it in his back pocket, such as a weapon. Berry then said, "I got something for
you." After they were all in the
car, Heveen testified Austin revved the engine and, as also shown by the video,
then drove the car towards Karlos, clipping him on the shin and causing him to
fall onto the hood of the car.
As shown in the video and testified to by Heveen, Karlos then stood up
on the hood of the car and stomped on the car's windshield. The windshield cracked. As the black car started backing up, Karlos
jumped off the hood, took off his jacket and angrily said, "'Now come
on. Get out [of] the car.'" The video shows Karlos then hitting the
passenger side window of the car, which also was confirmed by Heveen's
testimony.
The black car driven by Austin left the parking lot. Heveen testified the car quickly stopped next
to a utility box, and the group of men then got out of the car and charged
them. Heveen testified and the video
surveillance from the store shows that Berry took a swing at Heveen, and Heveen
swung back. Heveen also testified Austin
had a knife estimated to be about five inches long in his hand when he got out
of the car and came at Karlos, but Karlos grabbed a trashcan lid and used it as
a shield to ward off the attack. As the
other men were attacking Karlos, Austin went to the truck loaded with Hennessy,
grabbed two cases and threw them to the ground.
Austin then tried to open the cases.
After Austin threw a third case of Hennessy to the ground, Heveen
testified a group of about 10 to 15 people, including Price, came on the scene
from the direction of Skyline. Some of
these people joined in the fight. Others
started throwing bottles of Hennessy at Heveen and Karlos from one of the cases
Austin had thrown to the ground. Austin
threw a bottle of Hennessy at Karlos, but he missed and the bottle hit the
ground and shattered. Price punched
Karlos and unsuccessfully attempted to hit Karlos with a bottle.
During the melee, Karlos was knocked to the ground. As Karlos lay on the ground, he was kicked
and punched, including by a man in a black shirt later identified as Laquan
Jordan who used his fists to "pound[] away" at Karlos. At the same time Jordan was punching Karlos
in the face, Austin tried to stab Karlos.
Several others also kicked Karlos, including Price. Heveen testified that he also saw Price throw
a bottle of Hennessy at Karlos while Karlos lay on the ground.
While Karlos appeared to be unconscious on the ground, people were
yelling "beat his ass." In an
effort to assist Karlos, Heveen punched Austin, who in turn swung the knife at
Heveen but missed. After a woman punched
Heveen in the face, he got angry, picked up a bottle of Hennessy and threw it
at Jordan, who was still punching Karlos.
The bottle struck Jordan in the chest.
Austin next ran to the driver's side of the black car and got
inside. The others in the group
followed, and the car driven by Austin left.
Heveen saw Price and others run away.
Heveen checked on Karlos, who lay motionless on the ground. As Heveen approached, he could hear Karlos
"was having trouble breathing."
Karlos's face was bloody, and his nose appeared to be badly broken. Salwan testified Karlos's body was
"shaking," and Karlos was unresponsive.
Because Heveen estimated he had waited about six minutes for dispatch
to pick up his 911 call, Heveen called the El Cajon Police Department, who was
in the process of transferring the call to the San Diego Police Department when
Heveen flagged down a patrol car passing the store and reported the crime.
During the incident, Heveen was struck by three thrown bottles of
Hennessy. Salwan and Mukhles also were
struck by thrown bottles. Additionally,
during the attack, Salwan testified he heard the words "Blood" and
"Piru" being yelled by the attackers.
John Frazier testified he observed the attack from his vehicle while
stopped at a stoplight near the store.
From the car, he could smell something "strange in the air"
and determined it was a "liquory" smell. He saw a group of African-American men trying
to steal liquor from a parked truck that was being "frantically"
defended by another man. Frazier said
the group "viciously" attacked the man, including throwing bottles at
him and kicking him while he lay on the ground.
Frazier called 911 and then saw a group of men involved in the attack
get inside a "dark-colored" sedan and speed away. Frazier followed the speeding sedan for a few
miles in an unsuccessful attempt to obtain a license plate number.
Patricia Ennis testified she observed the attack from the bus she was
driving. Surveillance video of the
incident taken from cameras on the bus was shown to the jury. Ennis stopped the bus and observed bottles
being thrown by at least six African-American males at a man that she
previously had seen yelling at occupants of a black car that was moving very
slowly in the store parking lot. Shortly
thereafter, Ennis saw the man who had been standing in the middle of the
parking lot on the ground and observed several African-American men punching
him. Ennis radioed dispatch and reported
the attack. Ennis later told police she
saw some of the men in the group take some of the bottles.
Karlos suffered numerous cuts and abrasions, and his broken nose
required plastic surgery as a result of the attack. Karlos spent two or three days in the
hospital following the attack.
Police at the scene observed several broken bottles and areas of
liquid on the asphalt of the store parking lot.
Police estimated there were eight broken bottles and 12 bottles missing
from the cases. Heveen testified that 36
bottles of Hennessy were broken, damaged or missing as a result of the incident
and valued the store's loss at about $1,000.
Police reviewed the video surveillance of the attack and recognized
Austin as one of the attackers. Salwan
and Mukhles each identified Austin in separate photographic lineups.
A few weeks later, Price returned to the store to make a
purchase. Mukhles was working the cash
register and recognized Price as one of the individuals involved in the April
5, 2011 attack. Police later reviewed
the store's surveillance video and identified Price.
San Diego Police Detective Jon Brown testified as the prosecution's
gang expert. Detective Brown was a
member of the gang unit and, as both a detective and a patrol officer, had
investigated over 200 crimes involving the Skyline gang. Additionally, Detective Brown contacted
hundreds of Skyline gang members and reviewed arrest reports and field
interviews related to the Skyline gang.
Detective Brown testified that the Skyline gang then had about 400
members, it has been in existence since the 1970's, it is a "Blood
set," and its primary color is red.
The Skyline gang is comprised of several smaller gangs, including one
known as the O'Farrell Park gang.
According to Detective Brown, the Skyline gang's primary rival is the
Lincoln Park gang, also a "Blood set."
Detective Brown testified he was familiar with Austin based on his own
contacts with Austin, his review of documents, including field interviews, and
from speaking with other law enforcement.
Based on that information and based on Austin's admission of being a
gang member, Austin's gang-related tattoos including "8 Piru 0"
across his chest and from his review of the surveillance video showing Austin
making hand signs that were consistent with the Skyline gang, Detective Brown
opined that Austin was a member of the Skyline gang, going by the monikers
"Gee" and "Monkey Blood."
Austin was known to associate with about 15 Skyline or O'Farrell Park
gang members.
Detective Brown also opined that Price was a member of the Skyline
gang and went by the monikers "Little Boolin YG" and "Baby L.K.
Mad," with the "L.K." meaning "Lincoln Killer." Detective Brown reached this conclusion in
part based on Price's gang-related tattoos, including the tattoo "BIP
GFO." According to Detective Brown,
"BIP" meant "rest in peace" but with the "B"
replacing "R" because Price was a "Blood" gang member, and
GFO stood for "Greg from O'Farrell."
Detective Brown testified that an individual named Gregory Harper had
been a Skyline gang member killed by his own gang set. Price also admitted to law enforcement in
October 2010—before the instant attack—that he was an O'Farrell Park gang
member.
Given a hypothetical situation consistent with the facts involving the
instant offenses in which four or five Skyline gang members came to a market
located in their gang territory, harassed employees of the market and demanded
alcohol while mentioning and/or displaying their gang affinity, and ultimately
beat one of those employees while throwing gang signs, Detective Brown opined
these hypothetical crimes were committed for the benefit of and in association
with a criminal street gang.
In that instance, Detective Brown noted there was a clear
"association because the gang members are acting with each other. They're telling the victims whatever gang set
they're from, so they're not only assaulting them, but they're letting them
know who it is, which is going to create fear in the community. [¶] So
the gang members get status because they're putting in violent acts to up their
status, and the gang gets the benefit because any time you get violent gang
members, that reflects upon the gang and now the gang gets to be known as more
violent, not only to rival gang members, but to community members that go to
that market or just live in the area and happen to see it on the news."
Detective Brown further opined that in considering the facts of the
same hypothetical, such conduct by the gang members would promote, further or
assist criminal conduct by the gang members because in that hypothetical
instance gang members are "working as a team; they're backing each other
up. So even though one kind of starts to
fight, they all jump in and they work as a team to have a group attack against
the victims."
DISCUSSION
A.
Price's Motion to Sever His Trial
from Austin's Trial
1. Brief Additional Background
Before trial, Price moved to sever his trial from the trial of
Austin. Price contended that he would be
"unduly prejudiced" by a joint trial because the evidence regarding
the robbery in count 1 allegedly was "much greater with regard to Mr.
Austin" than him and because he could be convicted "simply by his
[Price's] association with Mr. Austin or with the Skyline Piru street
gang."
During oral argument on the motion, Price contended that a joint trial
involving him and Austin would be "highly prejudicial" to him because
Price allegedly had a "limited role" in the attack. The People disagreed and argued that both
Price and Austin were charged with nearly the same offenses from the same
attack on the same victims, where the same evidence would be presented.
In denying Price's motion to sever, the trial court relied on section
1098 (discussed post) and noted
factors to consider included cross-admissibility of evidence and whether one of
the defendants had a number of more serious charges not involving the other
defendant. The court found those factors
did not apply to the instant case because "everything that has been
alleged occurred on April 5, 2011, and all but one of the counts involve
allegations against both of the defendants."
The court found that based on the proposed evidence, the instant case
"involves one continuum, one course of conduct. Although Mr. Price became allegedly involved
at a later time than Mr. Austin, it still involves allegations relating to the
same victims basically arising out of the same initial
contact . . . . [¶]
. . . [¶] And, hypothetically,
it seems to me, based on the way the facts are described in the People's trial
brief, even if I were to sever the [trials of] defendants, I would have to
allow the People to present the entire sequence of events in order for the jury
to understand the charges against Mr. Price, so it would basically be the same
witnesses to the same evidence . . . . So I don't find that there is any basis for
severing the defendants at this time because I believe the evidence is
essentially going to be the same; the jury will be instructed as to the
specific charges and allegations with regard to each of the two
defendants. [¶] And, of course, they will have to consider
each defendant individually and decide what he is guilty or not guilty of
separately, and they'll be told that. So
I don't believe there's any danger of undue prejudice sufficient to warrant a
severance at this time, so I'm going to respectfully deny the request to sever
Mr. Price from Mr. Austin at this time."
2.
"Section 1098 expresses a legislative
preference for joint trials. The statute
provides in pertinent part: 'When two or
more defendants are jointly charged with any public offense, whether felony or
misdemeanor, they must be tried jointly, unless the court order[s] separate
trials.' [Citations.] Joint trials are favored because they
'promote [economy and] efficiency' and '"serve the interests of justice by
avoiding the scandal and inequity of inconsistent verdicts."' (Zafiro v. United States (1993) 506
U.S. 534, 537.) When defendants are
charged with having committed 'common crimes involving common events and
victims,' as here, the court is presented
a '"classic case"' for a joint trial.
[Citation.]
guided by the nonexclusive factors enumerated in People v. Massie (1967)
66 Cal.2d 899, 917, such that severance may be appropriate 'in the face of an
incriminating confession, prejudicial association with codefendants, likely
confusion resulting from evidence on multiple counts, conflicting defenses, or
the possibility that at a separate trial a codefendant would give exonerating
testimony.' (Fns. omitted.) Another helpful mode of analysis of severance
claims appears in Zafiro v. United States, supra, 506 U.S. 534.
There, the high court, ruling on a claim of improper denial of severance
under rule 14 of the Federal Rules of Criminal Procedure, observed that
severance may be called for when 'there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants, or prevent
the jury from making a reliable judgment about guilt or innocence.' [Citations.]
The high court noted that less drastic measures than severance, such as
limiting instructions, often will suffice to cure any risk of prejudice. [Citation.]
for abuse of discretion, judged on the facts as they appeared at the time of
the ruling. [Citation.] Even if a trial court abuses its discretion
in failing to grant severance, reversal is required only upon a showing that,
to a reasonable probability, the defendant would have received a more favorable
result in a separate trial. [Citation.]" (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 40-41; see also
109 ["'If the court's joinder ruling was proper when it was made, however,
we may reverse a judgment only on a showing that joinder "'resulted in
"gross unfairness" amounting to a denial of due process.'"' [Citations.]"].)
discretion in denying Price's motion for severance.
the decisions of our high court in People
v. Souza, supra, 54 Cal.4th at
page 109, People v. Burney (2009) 47 Cal.4th 203,
236, and People v. Lewis (2008) 43 Cal.4th 415, 452, here, the record shows this was a
"'classic case'" for a joint trial inasmuch as Price and Austin, with
one exception, were both charged for committing "'common crimes involving
common events and victims'" (People
v. Lewis, supra, at pp. 452-453).
Moreover,
both Price and Austin were also charged with a gang-related enhancement under
section 186.22, subdivision (b), and both were alleged to be part of the same
(or a related or "sister set") criminal street gang. (See People
v. Conerly (2009) 176 Cal.App.4th 240, 249 [when defendants are charged
with the same offenses, "'a trial court must order a joint trial as the "rule" and
"exception"'"], citing People
v. Alvarez (1996) 14 Cal.4th 155, 190; cf. People v. Ortiz (1978) 22 Cal.3d 38, 42 [ruling it was error for
the trial court to deny motion to sever because the defendant "was not
jointly charged with his codefendants in any count of the information"].)
Price nonetheless contends the court erred in denying his motion to
sever his trial from Austin's trial because the evidence against him was
"meager" when compared to the evidence against Austin, inasmuch as
Price contends he did not join the attack until after Karlos was struck by the
black car driven by Austin. We
disagree. Looking at the facts as they
appeared at the time of the trial court's ruling denying the motion to sever
(see People v. Coffman and Marlow,
there was sufficient evidence before the trial court showing Price's
involvement in the attack on Karlos, including testimony from at least three
witnesses in the preliminary hearing that Price both struck and attempted to
strike Karlos with a bottle of Hennessy and also kicked Karlos while he lay
unconscious on the ground.
We also conclude that any alleged error in conducting a joint trial
was harmless in the instant case because the evidence concerning the conduct of
both Price and Austin would have been admissible in either a joint or a
separate trial. (See
Cal.App.3d 37, 41 [concluding joint trial was appropriate because "all
codefendants, whether jointly charged or not, committed offenses at the same
time and place and as part of the same transaction" and because, as
relevant here, "evidence concerning the conduct of both [codefendants]
would have been admissible in either a joint or separate trial"];
Cal.App.3d 936, 939, 940 [concluding joint trial was appropriate because the
defendants were charged with various sexual offenses arising from a gang rape
in which the defendants "jointly committed a series of crimes against the
same victim at the same time and in the same place" and because
"evidence concerning the conduct of all of the victim's assailants would
have been admissible in either a joint or separate trial"].)
B. Motion
to Bifurcate Gang Allegations from Substantive Charges
Price contends he was denied a fair trial when the court refused to try the
gang allegations separately from the substantive offenses brought against him.
1. Additional
Background
Before
trial, Austin moved to bifurcate the section 186.22, subdivision (b)(1) gang
enhancement allegation attached to counts 1 through 5 from the substantive
charges in those counts. Price joined in
that motion. After lengthy argument by
counsel, the court denied each defendant's motion, ruling in part as follows:
"I
think the Hernandez case is a very
informative case -- People [v.] Hernandez
at 33 Cal.4th 1040 -- because it's within the last eight years or so
. . . and it's from the California Supreme Court. [¶]
There are gang cases in which there is conflict between rivals; there
are cases in which gang allegations occur where the victims have nothing to do
with gangs and are not gang members.
There are different types of gang-related cases, and the
involved an allegation of robbery.
"And
[defense counsel] argues there's no evidence of gang -- there's no evidence of
intent when they pulled up. I can't say
there's no evidence without hearing the evidence. But clearly the People are going to be
relying on and proving intent and gang affiliation or gang intent
circumstantial evidence, and the jury is going to be instructed at the end of
trial, if there are two reasonable interpretations, one points to innocence and
one points to guilty, then they must accept the interpretation consistent with
innocence.
"But
that's very different from saying that there is no evidence of something. The evidence is circumstantial; it's for the
jury to decide what it proves. That's
the court's obligation during in limine hearings to try the case and decide
whether it's the defense version that's true or the People's version. Obviously they are two very different
versions, and there may be three very different versions. I don't know.
But certainly the People's version was all of this was gang related.
"Now,
in the Hernandez case, the facts
there would indicate to somebody unfamiliar with gangs that the initial contact
and demand for property had nothing to do with gang activity.
"In
the Hernandez case, two people were
sitting in their Honda, parked in front of one of their homes, and the
defendants approached the passenger side of the car and asked one of the two
for a cigarette. Now, obviously that by
itself would not be indicative of gang activity. She handed one of the defendants a cigarette,
and then he said, 'I need another cigarette.
You'd better give me another cigarette.'
She said she had no more, and he demanded a dollar, and then for the
first time he injected gangs. He said,
'You don't know who you're dealing with.'
He told her she was dealing with Hawthorn Little Watts -- probably the
name of the gang -- and she suspected that he was referring to a gang. He said that if they don't get the money,
they were going to take the Honda, the car they were sitting in.
"The
defendants [in Hernandez] opened the
passenger door, pulled her from the car, the other defendant grabbed her by the
neck, choked her and took the necklace while Mr. Hernandez, the codefendant,
pointed a knife at her neck. And then
she screamed, 'Somebody call 911.'
"So
there's a situation where no rival gangs were involved at all. It was simply gang members using their
membership in gangs to commit a robbery on innocent victims.
"Now,
the gang expert who testified in Hernandez
testified -- and this is at 33 Cal.4th 1046 -- that gang members frequently
reveal the name of their gang during the commission of crimes because they want
the victims to know who committed the offense, and they give multiple
goals: to gain respect for the gang, to
instill fear in the community and to increase their own level of respect within
the gang.
"And
so we can see from the Hernandez case,
the commission of the crime itself, although on the surface at least before
gangs were mentioned, would seem to have very little to do with gang activity
in the context of the expert testimony indicated that it was part of a pattern
that gangs follow in committing crimes against innocent victims, not gang
rivals.
"So
I'm just using those facts as an example with how it's not always black and
white as to the exact motivations of particular defendants and particular
crimes, which is why we have juries to decide and why we have rules of evidence
to allow the People who do have the burden of proof beyond a reasonable doubt
to at least attempt to prove their case.
If they can't, the defendants will be found not guilty; if they can,
they will be found guilty. But that's an
issue for the jury.
"Now,
in the Hernandez case, the court
discusses . . . several things relating to gang evidence, but in
regard to bifurcation, [it cites to] . . . People
v. Calderon . . . it's 9 Cal.4th 69.
That was the case that talked about bifurcated trials for prior
convictions.
"And
the Hernandez court distinguishes
which discuss the fact that a prior conviction of a defendant relates to the
status of the defendant as a convicted felon.
The court in Hernandez goes on
to say, 'By contrast, the criminal street gang enhancement is attached to the
charged offense and is by definition inextricably intertwined with that
offense,' so less need for bifurcation generally exists with a gang enhancement
than with a prior conviction allegation.
[¶] . . . [¶]
"The
bottom line is they conclude at the bottom of page 1050 onto page 1051 on 33
Cal.4th, quote, 'Much of the gang evidence here was relevant to the charged
offense. Indeed, defendant Hernandez
himself injected his gang status into the crime. He identified himself as a gang member and
attempted to use that status in demanding money from the victim.
"Although
[the codefendant] did not specifically identify himself as a gang member, the
evidence showed the robbery was a coordinated effort by two gang members who
used gang membership as a means to accomplish the robbery. [The] expert testimony helped the jury
understand the significance of Hernandez's announcement of his gang affiliation,
which was relevant to motive and the use of fear.' [¶] . . . [¶]
"Finally,
the court says . . . '[a]ny evidence admitted solely to prove the
gang enhancement was not so minimally probative on the charged offense, and so
inflammatory in comparison that it threatened to sway the jury to convict
regardless of defendants' actual guilt.
Accordingly, defendants did not meet their burden "to clearly
establish that there was a substantial danger of prejudice requiring that the
charges be separately tried."' [¶]
. . . [¶]
"So
evaluating the People's theory of the case and the offer of proof -- and that's
all I can go by at this point is the offer of proof and keeping in mind what
the defense theory of the case is -- I find that there is not a sufficient basis
to conclude that there is a substantial danger of prejudice if the allegations
are not bifurcated, so I'm going to deny the request for bifurcation of the
gang allegations at this time."
2. Governing
Law and Analysis
As
the trial court here recognized in its well-reasoned discussion of the issue, a
court has discretion to bifurcate trial issues, including enhancements. (See People
v. Hernandez (2004) 33 Cal.4th 1040, 1048; People v. Calderon (1994) 9 Cal.4th 69, 74-75.) "In cases not involving the gang
enhancement, we have held that evidence of gang membership is potentially
prejudicial and should not be admitted if its probative value is minimal. [Citation.]
But 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
would be dispelled, and bifurcation would not be necessary. [Citation.]" (People v. Hernandez, supra, 33 Cal.4th at pp.
1049-1050.) "
a charged offense, the 'burden is on the party seeking severance to clearly
establish that there is a substantial danger of prejudice requiring that the
charges be separately tried.'" (
These rules guide our analysis.
Here, the trial court properly exercised its discretion when it denied
defendants' motion to bifurcate because the gang evidence clearly was relevant
to the charged offenses of both Price and Austin. The gang enhancement codified in section
186.22, subdivision (b)(1) was attached to each of the charged offenses brought
against Price and Austin. Moreover, we
note that like the defendant in People v.
Hernandez, the record in the instant case shows that Austin and others in
his group clearly and unequivocally made their gang status and affiliation
relevant when they began flashing gang signs and making gang-related statements
such as "Piru," "Blood," "this is Skyline" and
"this is our area" when first demanding store employees give them the
Hennessy and later, during the attack.
Indeed, the evidence in the record shows that the store was located in
the heart of the Skyline gang's territory and that as soon as Austin and his
group rushed the store, at least 10 to 15 other people—including Price, who was
a member of the same or related gang as Austin—joined in the attack. The record further shows that several Skyline
gang members lived in homes in close proximity to the store. This evidence supports the inference that the
attack on the store employees was a coordinated effort by the gang.
Thus, the gang evidence was admissible to explain not only the reason
these 10 or 15 additional people joined in the attack, as further explained by
the People's gang expert that members of a gang are expected to back each other
and put in work for the gang, but also to show the intent and motive of the
group, including Price and Austin, in
connection with the robbery of the Hennessy and/or the assault of the
store employees who, despite the group's threats, refused to turn over the
Hennessy. (See People v. Hernandez, supra,
33 Cal.4th at p. 1050.)
That the jury heard testimony unrelated to the attack—including
evidence of predicate acts of other members of the Skyline gang offered to
prove the section 186.22, subdivision (b)(1) gang enhancement and evidence of
prior contacts between law enforcement and Price and/or Austin in connection
with their gang membership and affiliation—does not mean the trial court
improperly exercised its discretion in denying bifurcation. As recognized by our Supreme Court in
enhancement would be inadmissible at a trial of the substantive crime
itself—for example, if some of it might be excluded under Evidence Code section
352 as unduly prejudicial when no gang enhancement is charged—a court may still
deny bifurcation." On this record,
we conclude Price did not satisfy his burden to show a "substantial danger
of undue prejudice" when the court denied his bifurcation motion. (Ibid.)
We also agree with the People that any purported error by the trial
court in refusing to bifurcate the gang enhancement allegations from the
substantive charges was harmless under any
standard of review.
(See Chapman v. California (1967)
386 U.S. 18, 24; People v. Watson (1956)
46 Cal.2d 818, 836.) As noted
at trial was relevant to the substantive charges brought against Price and
Austin on the issues of motive, intent and even identity.
In addition, the court instructed the jury regarding the limited use
of the gang evidence, including that such evidence was not admissible to show a
defendant was a person of "bad character" or had a "disposition
to commit crime." We presume the jury
followed the court's instructions (see People
v. Wilson (2008) 44 Cal.4th 758, 803), and there is nothing in the record
in the instant case to suggest otherwise.
In fact, given that Price admitted he was a member of the Skyline gang
and given the connection between the gang evidence and the substantive offenses
as discussed ante, it appears the
jury followed the court's instructions inasmuch as the jury acquitted Price of
counts 1, 4 and 5.
C.
Unanimity Instruction
Price next contends the trial court
erred when it failed to give sua sponte a unanimity instruction in connection
with count 3, assault by means likely to produce great bodily injury.
1.
Governing Law
The California Constitution requires a unanimous jury verdict to
support a criminal conviction. (See People
v. Russo (2001) 25 Cal.4th 1124, 1132; see also Cal. Const., art. I,
§ 16.) "The [unanimity]
instruction is intended to eliminate the danger that the defendant will be
convicted even though there is no single offense which all the jurors agree the
defendant committed." (People v.
Sutherland (1993) 17 Cal.App.4th 602, 612.)
Thus, when the evidence suggests there is more than one discrete crime,
the prosecution must elect a specific crime or the trial court must
the jury on unanimity of the decision. (People v. Russo, supra, at p. 1132.)
case, a unanimity instruction is not required when the
"continuous conduct" rule applies, such that the alleged acts are so
closely connected that they are considered to be part of the same
transaction. (People v. Stankewitz
(1990) 51 Cal.3d 72, 100.) This
well-recognized exception applies "when the defendant offers essentially
the same defense to each of the acts, and there is no reasonable basis for the
jury to distinguish between them."
(Ibid.; cf. People v.
Wolfe (2003) 114 Cal.App.4th 177, 185 [noting a trial court is
required to give a unanimity instruction when the acts are fragmented by time
and space].)
In People v. Flores (2007)
157 Cal.App.4th 216, 222-223, the court held no unanimity instruction was required in connection with the
defendant's conviction for assault with a deadly weapon among other crimes
because according to witnesses, the defendant's firing of seven rounds from a
semiautomatic weapon occurred "without indicating a significant delay"
between the individual discharges and thus the evidence showed the defendant's
multiple acts of firing the weapon involved a continuous course of
conduct. (See also People v. Dieguez (2001)
89 Cal.App.4th 266, 275 [concluding no unanimity instruction was required in
the defendant's conviction for making false material statements in support of a
workers' compensation award because the series of statements made by the
defendant to his doctor occurred at the same appointment, "they were
successive, compounding, and interrelated to one another," and they were
made with the single objective of obtaining workers' compensation benefits];
cf. People v. Diedrich (1982) 31 Cal.3d 263, 282-283 [concluding court
erred in failing to give unanimity instruction because evidence showed the
defendant engaged in discrete acts of bribery in two unrelated transactions but
was only charged with and convicted of a single count of bribery].)
2. Analysis
Here, the evidence that
Price threw a bottle of Hennessy at Karlos, kicked Karlos and attempted to
strike Karlos while holding a bottle of Hennessy in his hand involved a single,
continuous transaction. Indeed, all the
conduct for which Price was criminally charged took place at the same location,
and the acts comprising the assault occurred merely seconds apart and involved
the same victim, Karlos. We thus reject
Price's contention that the court was required to give sua sponte the unanimity
instruction. (See People v. Melendez (1990) 224 Cal.App.3d 1420, 1429 ["The
'continuous course of conduct' exception—when the acts are so closely connected
that they form one transaction—is meant to apply not to all crimes occurring
during a single transaction but only to those 'where the acts testified to are
so closely related in time and place that the jurors reasonably must either
accept or reject the victim's testimony in toto.' [Citations.]"], disapproved on another
ground as stated in People v. Majors (1998)
18 Cal.4th 385, 408.)
In any event, we conclude any alleged error in failing to give the
unanimity instruction was harmless under any harmless error standard of
review. (See Chapman v. California, supra, 386 U.S. at p. 24; People
v. Watson, supra, 46
Cal.2d at p. 836.) The record shows the
jury was instructed with CALCRIM No. 3515, as modified, which provided,
"Each of the counts charged in this case is a separate crime. You must consider each count separately and
return a separate verdict for each one."
The jury also was given CALCRIM No. 3550, which as modified provided in part,
"Your verdict on each count and any special findings must be
unanimous. This means that, to return a
verdict, all of you must agree to it. Do
not reach a decision by the flip of a coin or by any similar act."
In addition, the record shows that Price offered the same defense to
the criminal acts and conduct for which he was charged, namely that he was not
the person in the video seen throwing bottles of Hennessy and that he was not
involved in the attack on Karlos.
Clearly, the jury rejected this contention, and the evidence proffered
by Price in support of it, when it found him guilty in count 3 of assault in
violation of section 245, subdivision (a)(1).
Thus, any such alleged error by the court in not instructing the jury
sua sponte with the unanimity instruction was harmless.
D. Award of Restitution
Heveen testified that about 36 bottles of Hennessy were broken,
damaged or missing following the incident at the store. Heveen, the manager of the store, stated the
store incurred losses of about $1,000 as a result of the incident.
1. Brief Additional Background
The probation report prepared following Price's conviction on count 3
stated that Heveen claimed total losses on behalf of the store of $1,100, equal
to $900 for the loss of Hennessy and $200 for cleanup.
of $1,100 be paid jointly and severally to the store by Price, Austin and the
others involved in the attack. At
sentencing, the court without objection imposed restitution in this amount to
be paid jointly and severally by "any codefendants" in this
case.
2. Governing Law and Analysis
"Section 1202.4, subdivision (f) provides for a direct
restitution order 'in every case in which a victim has suffered economic loss
as a result of the defendant's conduct.'
The order is to be for an amount 'sufficient to fully reimburse the
victim or victims for every determined
economic loss incurred as the result of the defendant's criminal conduct.' (Id., subd. (f)(3).)" (
1037, 1074-1075.)
A
"victim" for purposes of section 1202.4, subdivision (f) includes a
"business" or "commercial entity when that entity is a direct
victim of a crime." (See
§ 1202.4, subd. (k)(2).) A court
has authority to order that codefendants share joint and several liability for
victim restitution. (See
787, 800; see also People v. Blackburn (1999)
72 Cal.App.4th 1520, 1535.)
Price
contends the court erred when it held him and any other codefendants jointly
and severally liable to pay restitution to the store of $1,100 because he was
not convicted of any crime related to property damage of the store (i.e.,
unlike Austin, who was convicted of robbery) and because at most the evidence
supports a finding he was personally responsible for perhaps one broken bottle
of Hennessy (i.e., the one Price threw at Karlos).
We conclude Price forfeited this claim by failing to raise it in the
trial court. (See People v. O'Neal (2004) 122 Cal.App.4th 817, 820.) Indeed, "all 'claims involving the trial
court's failure to properly make or articulate its discretionary sentencing
choices' raised for the first time on appeal are not subject to review. [Citations.]" (People
v. Smith (2001) 24 Cal.4th 849, 852.)
In any event, assuming the imposition of the restitution fine falls
within the exception to the forfeiture rule (see People v. Smith, supra,
when an error involves a pure question of law and can be corrected independent
of any factual issues presented by the record at sentencing]), we still
conclude the trial court properly ordered Price to pay restitution to the store
jointly and severally with the other codefendants. Although Price, unlike Austin, was not
convicted of robbery, the jury did find Price guilty of assault, which included
Price's attack of Karlos with one or more bottles of Hennessy. Equally important, the jury also made a true
finding that Price committed the assault for the benefit of a criminal street
gang, in violation of section 186.22, subdivision (b)(1). We thus conclude the trial court properly
found Price's involvement with other Skyline gang members in the attack caused
the store to suffer economic loss. (See
§ 1202.4, subd. (f).)
name="_ftnref8" title="">[8]
E.
Robbery Conviction
Austin contends there was insufficient evidence
to support his robbery conviction on count 1 because he never intended to
"steal" or "take" the Hennessy, but rather
"armed" himself with the Hennessy "because it was available"
for use in the fight.
In deciding the sufficiency of the evidence, we draw all reasonable
inferences from the record to support the judgment. (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.) We do not weigh the
evidence or decide the credibility of the witnesses. (Ibid.)
"Robbery is the
felonious taking of personal property in the possession of another, from his
[or her] person or immediate presence, and against his [or her] will,
accomplished by means of force or fear."
(§ 211; see People v. Hall (1967) 253 Cal.App.2d 1051,
1054.) "Robbery requires the
specific intent to deprive the victim of his or her property
permanently." (In re Albert A.
(1996) 47 Cal.App.4th 1004, 1007.)
"The specific intent with which an act is performed is a question of
fact." (Id. at p.
1008.) However, the "intent
required for robbery . . . is seldom established with direct evidence but
instead is usually inferred from all the facts and circumstances surrounding
the crime. [Citations.]" (People
v. Lewis (2001) 25 Cal.4th 610, 643.)
"[A]n intent to permanently deprive someone of his or her property
may be inferred when one unlawfully takes the property of another." (People
v. Morales (1993) 19 Cal.App.4th 1383, 1391.) "If any substantial evidence supports
the trier of fact's finding on this issue, we will not disturb it." (In re Albert A., supra, at p.
1008.)
Significant to the issue raised by Austin, the People were not
required to prove that Austin took the Hennessy with the intent to retain it,
or even use (i.e., drink) it or for the purpose of gain; rather, a taking for
purposes of robbery occurs "even if the defendant's sole intent is to
destroy the property." (
overruled on another ground as stated in People
v. Martinez (1999) 20 Cal.4th 225, 234, 235-239.)
Here, viewing the evidence in the light most favorable to the judgment
(see People v. Bloyd (1987) 43 Cal.3d
333, 346-347), we conclude there is sufficient evidence in the record to
support the finding that Austin intended permanently to deprive the store of
its property (i.e., the Hennessy). Even
before the fight, the record shows that Austin and others from his group were
demanding that they be given some of the Hennessy being loaded onto the truck
by store employees. The record also
shows that as store employees continued to load the Hennessy cases, Austin
became more insistent, demanded to know what they were doing with the Hennessy,
said "this is Skyline" and threatened to follow the truck loaded with
the Hennessy.
The record also shows that Austin next got back into the black car he
had driven to the store and moved it so that the loaded truck was now prevented
from leaving the parking lot. After
that, Austin exited his car and said, "Now you're blocked in. You're not going to go anywhere." Austin then walked around his car and said,
"This is our area. You guys are not
going anywhere. We're going to take your
shit." In addition, during this
confrontation, Austin threw gang signs and told the concerned store employees,
"this is Piru territory" and "this is Skyline."
This evidence, which we conclude is substantial, supports the finding
that Austin acted with the requisite intent to permanently deprive the store of
its property once the fight began between the Skyline gang members and others
associated with the gang, on the one hand, and the store employees on the
other, when Austin pulled out a five-inch knife and attacked Karlos and then
went to the truck that was being guarded by Karlos, picked up at least three
cases of Hennessy and threw the cases onto the asphalt pavement; he also threw
at least one bottle of Hennessy.
Although Austin does not dispute other elements of his
evidence also supports the taking finding (see People v. Hill (1998) 17 Cal.4th 800, 852 [noting that the
"'taking element of robbery has two necessary elements, gaining possession
of the victim's property and asporting or carrying away the loot'" and noting
that to "satisfy the asportation requirement for robbery . . .
'it is not necessary that the property be taken out of the physical presence of
the victim'" and that "slight movement" is sufficient to satisfy
the asportation requirement]) and the finding that the taking occurred by means
of "force or fear" (see § 211; see also People v. Wright (1996) 52 Cal.App.4th 203, 210 [noting that the
"force" required for robbery must be at least "a quantum more
than that which is needed merely to take the property . . . of the
victim"]; Miller v. Superior Court (2004)
115 Cal.App.4th 216, 222 [noting that the force or fear element of robbery is
satisfied when the defendant uses force or fear (i) to acquire initially the
victim's property and/or (ii) to retain, escape with or destroy it]).
F. Theft as a Lesser Included Offense of Robbery
Austin also contends the court erred when it failed sua sponte to
instruct the jury on theft as a lesser included offense of robbery in count
1.
It is settled that in criminal
cases, even in the absence of a request, a trial court must instruct the
jury on the general principles of law relevant to the issues raised by the
evidence. (People v. Breverman
(1998) 19 Cal.4th 142, 149.) The general
principles of law include instructions on lesser included offenses if there is
a question about whether the evidence is sufficient to permit the jury to find
all the elements of the charged offense.
(Ibid.) "'"Theft
is a lesser included offense of robbery, which includes the additional element
of force or fear."'" (
1292, 1331.)
However, a trial court is not obligated to instruct the jury on
theories that do not have substantial evidentiary support. (People v. Breverman, supra, 19 Cal.4th at p.
162.) "[T]he existence of 'any
evidence, no matter how weak' will not justify instructions on a lesser
included offense, but such instructions are required whenever evidence that the
defendant is guilty only of the lesser offense is 'substantial enough to merit
consideration' by the jury." (Ibid.) Evidence is substantial if it would permit
the jury to conclude the lesser offense was committed but the greater offense
was not. (Ibid.)
Here, based on the evidence summarized ante, we conclude on this record that no reasonable jury could find
that Austin committed a simple theft rather than a robbery because the evidence
in the record overwhelmingly shows that Austin used force and/or fear when he
mentioned his gang affiliation, threw up gang signs at the same time he
demanded the employees of the store turn over the Hennessy and wielded a
five-inch knife immediately before he threw the cases of Hennessy onto the
pavement.
However, even assuming the trial court erred in failing sua sponte to
instruct the jury that it was entitled to find theft as a lesser included
offense of robbery, we conclude that error was harmless. "The failure to instruct on a lesser
included offense in a noncapital case
the entire record establishes a reasonable probability that the error affected
the outcome.' (People v. Breverman, supra, 19 Cal.4th at p.
165.) 'Such posttrial review focuses not
on what a reasonable jury could do, but what such a jury is likely
to have done in the absence of the error under consideration. In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the
result.' (Id. at p.
177.)" (People v. Thomas (2012) 53 Cal.4th 771, 814, fn. omitted.)
Here, any evidence that Austin committed a mere theft (i.e., did not
use force or fear in the taking of the Hennessy) was relatively weak when
compared to the substantial and significant evidence (summarized
in the record supporting the finding that Austin took (i.e., destroyed) the
Hennessy by use of force and/or with fear.
Our conclusion the error was harmless is buttressed, moreover, by the
fact the jury found that Austin committed four counts of assault by means likely
to produce great bodily injury and assault with a deadly weapon and by means of
force likely to produce great bodily injury, which findings strongly suggest
that the jury believed force was utilized in the taking of the property.
G. Gang Enhancement Jury Instructions
Austin next contends, and the People concede, that the trial court
erred when it omitted a portion of the gang enhancement jury instruction
defining the term "pattern of criminal gang activity" that is used in
determining whether an organization or association is in fact a "criminal
street gang." The parties dispute,
however, whether that error was harmless.
1. Additional Background
Using an "[e]xact copy of CALCRIM No. 1401, except [with]
adaptations" that was then applicable, the court instructed the jury on
the gang enhancement as follows:
"If you find the defendant guilty of the crimes charged in Counts
One through Five, you must then decide whether, for each crime, the People have
proved the additional allegation that the defendant committed that crime for
the benefit of, at the direction of, or in association with a
proved this allegation for each crime and return a separate finding for each
crime.
"To prove this allegation, the People must prove that:
"1. The defendant
committed the crime for the benefit of, at the direction of, or in association
with a criminal street gang;
"AND
"2. The defendant intended
to assist, further, or promote criminal conduct by gang members.
"A criminal street gang is
any ongoing organization, association, or group of three or more persons,
whether formal or informal:
"1. That has a common name
or common identifying sign or symbol;
"2. That has, as one or
more of its primary activities, the commission of murder, attempted murder,
assault, robbery, firearms or firearms offenses;
"AND
"3. Whose members, whether
acting alone or together, engage in or have engaged in a pattern of criminal
gang activity.
"In order to qualify as a primary
activity, the crime must be one of the group's chief or principal
activities rather than an occasional act committed by one or more persons who
happen to be members of the group.
"The crimes, if any, that establish a pattern of criminal gang
activity, need not be gang-related.
"The People need not prove that the defendant is an active or
current member of the alleged criminal street gang.
"If you find the defendant guilty of a crime in this case, you
may consider that crime in deciding whether one of the group's primary
activities was commission of that crime and whether a pattern of criminal gang
activity has been proved.
"You may not find that there was a pattern of criminal gang
activity unless all of you agree that two or more crimes that satisfy these requirements
were committed, but you do not have to all agree on which crimes were
committed.
"The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not
met this burden, you must find that the allegation has not been
proved."
The court did not, however, instruct on the meaning of the term
"pattern of criminal gang activity."
CALCRIM No. 1401 states this phrase means:
"1. [The] (commission
of[,] [or]/ atte
| Description | Defendants Keshawn Price and George Austin each appeal from his judgment of conviction after the jury found Price guilty of count 3, assault (Pen. Code,[1] § 245, subd. (a)(1)) and Austin guilty of counts 1 through 5, as follows: robbery (§ 211; count 1); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 2); assault by means likely to produce great bodily injury (ibid.; count 3); and assault with a deadly weapon and by means of force likely to produce great bodily injury (ibid.; counts 4 & 5).[2] The jury also found true that Price committed count 3 and Austin committed counts 1 through 5 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Price to five years and Austin to 17 years in state prison. Price on appeal contends the trial court erred and thus abused its discretion when it refused to sever his trial from Austin's trial and when it refused to bifurcate the gang allegations from the substantive charges. He also contends the court erred in failing to give sua sponte a unanimity instruction. Lastly, he contends the court erred and therefore abused its discretion when it ordered him to pay restitution jointly and severally with other codefendants. |
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