Opinion
B229808
11-10-2011
THE PEOPLE, Plaintiff and Respondent, v. BRANDON L. JONES, Defendant and Appellant.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Stevene D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA044333)
APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa M. Chung, Judge. Affirmed as modified.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Stevene D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Brandon Jones was convicted, following a jury trial, of two counts of attempted murder in violation of Penal Code sections 664 and 187, subdivision (a), two counts of assault with a firearm in violation of section 245, subdivision (a)(2) and one count of robbery in violation of section 211. The jury found true the allegations that all the offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22. The jury also found true the allegations that a principal was armed in the commission of the attempted murders and robberies within the meaning of section 12022.53, subdivisions (b) and (c)(1), personally and intentionally discharged a firearm in the commission of the attempted murders within the meaning of section 12022.53, subdivisions (c) and (e)(1) and the discharges caused great bodily injury within the meaning of section 12022.53, subdivisions (d) and (e)(1). The jury further found true the allegations that appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court sentenced appellant to a total term of 95 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting testimony by two police officers which referred to uncharged offenses by appellant and his fellow gang members. Appellant further contends that there is insufficient evidence to support the true findings on the gang allegations.
Facts
On December 12, 2008, beginning about 8:00 p.m., Vonneisha McMurray hosted a party for her daughter's 16th birthday. Guests had to enter through the front door, submit to a pat-down search, pay an entry fee of $3 to $5 and wear a green wristband. The party drew a large crowd.
About midnight, two acquaintances of Vonneisha's came to the party with a group of six African-Americans. One of the six was appellant. At the door, some of the men in the group used the term "Blood" to address each other. Vonneisha told them that the party was a family function and there was "no gang banging here." One of the men apologized, and she allowed them all to enter.
Once the men were inside the house, one guest heard someone in the group say "BPS," which can stand for the initials of the Black P Stones gang. Another guest heard the men yell out "P Stones." A third guest heard one of the men say that they were "Bloods."
At some point after appellant and his companions arrived, guests heard people shouting out gang names, including "BPS." The music stopped and the lights went off. The DJ announced that this was a family function and that "gang banging" would not be tolerated. She told the guests that if they didn't like it, they could leave.
The lights came back on and the music resumed, but the crowd yelled even more. Some people were pushed around.
Robert Whitmore heard people in appellant's group say that they were from "BPS." Whitmore understood this to refer to the Black P Stones gang. Appellant, who was wearing a black hat and a gray hoodie, approached Whitmore and asked him where he was from. Whitmore replied that he did not "bang." Appellant pulled out a black revolver and shot Whitmore in the left side of his stomach. Whitmore ran upstairs. He was shot in the buttocks as he fled.
More gunshots followed. Shanelle Martin got down on the floor, but was shot in her arm and leg anyway. She believed the shots were fired by a person wearing a black hoodie and hat and carrying a dark-colored gun.
People tried to flee the party. Dechara Harris started to flee, was shot in the leg and went upstairs. Shenterra Bryant ran outside and jumped over a wall. At least two gunmen chased her and other partygoers, and fired at them. Bryant identified appellant as one of the shooting pursuers. Bryant escaped uninjured.
Isaac Martin also fled from the house. After a few minutes, he returned and encountered two men who robbed him. One man held a gun while the other man pushed him to the ground. The two men told Isaac to empty his pockets, which he did. One of the men took Isaac's wallet, then hit him in the head and left.
Appellant and his companions went to their vehicle. Appellant shot himself in the leg as he was getting into the vehicle.
Police arrived and discovered that several guests had been shot and two had been robbed. Police contacted local hospitals to be on the look-out for a gunshot victim. They also provided a description of the men's car to various law enforcement agencies in the area.
In the early morning hours of December 13, Los Angeles Police Officer Fabiola Humphrey observed a white Sebring convertible pass her on the 405 freeway going about 90 miles per hour. She pulled the car over. The driver and at least two of the passengers jumped out and yelled that their friend had been shot. The friend was appellant. Officer Humphrey observed what appeared to be a gunshot wound in appellant's upper leg. The men were taken into custody.
Appellant and his companions were charged with assaulting and attempting to murder Robert Whitmore, Dechara Harris, Gerald Johnson, Anthony Rebeaud, Garnesha Hawkins, and Shanelle Martin. Appellant was convicted of the assault and attempted murder charges involving Robert Whitmore and Shanelle Martin. He was also convicted of the robbery of Isaac Martin.
At trial, Los Angeles County Sheriff's Detective Tyrone Berry testified as a gang expert about the Black P Stones gang, and about gang culture. Appellant had admitted to law enforcement personnel that he was an active BPS member.
Discussion
1. References to other crimes
Appellant contends that the trial court erred under state law and violated his rights under the Fifth, Sixth and Fourteenth Amendment to the United States Constitution by admitting evidence of uncharged crimes. Specifically, appellant contends that the evidence was barred by Evidence Code section 1101.
Evidence Code section 1101 "prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion." (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Nothing in section 1101 prohibits the admission of such evidence to prove some fact other than a defendant's criminal disposition. (Ibid.)
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Appellant points to two specific pieces of evidence. The first was a statement by Detective Pickett that the photo of appellant used in the six-pack photographic lineup shown to the victims came from a prior arrest. The second was Detective Berry's statement that members of the BPS gang were "suspected in another dozen or so homicides this year alone."
Appellant has forfeited these claims. He did not object to either statement on the ground that it was barred by Evidence Code section 1101 or on the ground that it violated his constitutional rights and did not move to strike the offending statements. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21; People v. Millwee (1998) 18 Cal.4th 96, 128-129.)
With respect to the prior arrest photo, appellant's counsel did request a sidebar immediately after the statement and there expressed "concern" about the reference to a prior arrest. The trial court asked if counsel wanted the comment stricken, but noted that this might just bring more attention to the remark. Counsel agreed with the court and chose not to have the testimony stricken. Appellant did not object that the reference to a prior arrest violated any of his constitutional rights.
With respect to Detective Berry's testimony, appellant objected once based on his Miranda rights and once on hearsay grounds.
Even assuming for the sake of argument that appellant had preserved his claim and that both pieces of evidence were erroneously admitted, we would find any error harmless under any standard of review.
The evidence of appellant's participation in the crimes was strong. The prosecution's witnesses basically corroborated each other. Witnesses who identified appellant as the shooter were not impeached on their identification. Appellant presented no defense.
There may have been some very slight prejudicial potential in Detective Pickett's reference to a prior arrest, but no details were provided about that arrest. In discussing the criminal activities of the BPS gang, Detective Berry testified that they "are responsible for dozens and dozens of homicides. They are suspected in another dozen or so homicides this year alone." (Italics added.) Given that BPS gang members had been found responsible for "dozens and dozens" of homicides in the past, it is difficult to see how the additional fact that they were suspected in "another dozen or so" homicides made the gang or its members look worse. Thus, we see no possibility or probability of a more favorable verdict in the absence of the uncharged crimes evidence.
Further, the primary reason for restricting evidence of uncharged crimes is to minimize the risk that the jury will convict merely because of the defendant's criminal propensity or bad character regardless of whether guilt is proven beyond a reasonable doubt. (People v. Alcala (1984) 36 Cal.3d 604, 631 disapproved on other grounds by People v. Falsetta (1999) 21 Cal.4th 903.) Here, the jury acquitted appellant on nine of the fourteen counts against him. This is a clear demonstration that the jury was not prejudiced against appellant because of the uncharged crimes evidence.
2. Sufficiency of the evidence - gang allegation
Appellant contends that there is insufficient evidence to show that the primary activities of the BPS gang were the offenses specified in section 186.22, and therefore insufficient evidence to support the true finding on the gang enhancement.
"'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citations.]'" (People v. Nelson (2011) 51 Cal.4th 198, 210.)
Here, the prosecutor asked Detective Berry: "And what would you say are the primary activities of Black P Stones and its members?" Detective Berry answered: "This particular gang is very well established. It's been around for several decades. They have hundreds of members. They are entrenched in that particular part of the city. And as gangs with that type of history and a long standing -- I mean, there are generations of gang members. There are grandfathers that are gang members and their grandsons now are in the same gang literally because that's how long it's been going on. [¶] Gangs that I have experienced with that particular history, they have a longer and a broader span of criminal activity. They are responsible for dozens and dozens of homicides. They are suspected in another dozen or so homicides this year alone. They participate in assaults with firearms, carjackings, drive by shootings, trafficking of narcotics and weapons. [¶] There have been several task forces of different law enforcement agencies assigned to this particular gang to curtail the violence and activity. I believe in 2006 or 2007, there was a gang injunction placed upon those particular gang, the Black P Stones, in the city of Los Angeles."
Appellant contends that this testimony was simply a generalization about how well-established gangs function and does not refer to BPS's activities specifically. He concludes that this is insufficient evidence of BPS's primary activities.
An answer need not repeat the words of the question to be responsive and comprehensible. "Ordinary human communication often is flowing and contextual. Jurors know this." (See People v. Margarejo (2008) 162 Cal.App.4th 102, 107 [rejecting claim that expert's testimony was insufficient because he did not repeat the word primary in response to question about a gang's primary activities].)
Here, the prosecutor asked about the primary activities of BPS. Detective Berry explained that BPS was a large gang with a long history, and that such gangs have "a longer and a broader span of criminal activity." This portion of Detective Berry's testimony is most reasonably understood as setting the stage for the extensive list of serious criminal activity by BPS that the detective next provided. Detective Berry then said, "They are responsible for . . . homicides" and "They participate in assaults [and other crimes]." Following that, he mentioned that there had been several task forces "assigned to this particular gang to curtail the violence and activity." Considered in context, it is reasonable to understand Detective Berry's statements that "they" commit and participate in crimes as referring to members of BPS. Taken as a whole, Detective Berry's answer clearly conveyed that the BPS gang engaged in homicides, assaults, carjackings, drive by shootings, and drug and weapons trafficking, and that these crimes were the primary activities of the gang.
We note that in his first claim on appeal, appellant contends that the statement "They are suspected in another dozen homicides" would have been understood by the jury as referring to BPS. He offers no reason that the jury would have understood this sentence as referring to BPS, but not the preceding or subsequent sentences.
3. Custody credit
Appellant contends, and respondent agrees, that he is entitled to an additional day of custody credit. We agree as well. Appellant was arrested on December 13, 2008 and sentenced on December 2, 2010. That is a total of 720 days in custody. The trial court awarded appellant only 719 days of custody.
Disposition
Appellant is awarded one additional day of actual custody credit, for a total of 720 days of actual custody. The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting this change, and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J. We concur:
TURNER, P. J.
MOSK, J.