Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. TA097811, Jerry E. Johnson, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Jonathan Darnell Jones was convicted, following a jury trial, of one count of felony stalking in violation of Penal Code section 646.9, subdivision (a), one count of misdemeanor battery in violation of section 243, subdivision (e)(1), one count of assault with a firearm in violation of section 245, subdivision (a)(2) and one count of dissuading a witness from reporting a crime in violation of section 136.1, subdivision (b)(1). Appellant admitted that he had served four prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a total of three years 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 instructing the jury on circumstantial evidence and admitting evidence of appellant's gang membership. We affirm the judgment of conviction.
Facts
Appellant and Shyjuanna Collins dated from mid-May to June 1, 2008. On May 29, 2008, Collins moved in with appellant's grandmother, Jennifer Moss, and agreed to take care of her in exchange for payment. Appellant lived with Moss part-time.
On May 29, 2008, Collins was driving her car on the freeway. Appellant, Collins's sister and Collins's three-year-old daughter were in the car. Appellant and Collins got into an argument over money. Appellant called Collins a bitch and hit her in the face with his fist, nearly causing her to have an accident. The blow caused swelling and bruising to Collins's face. Collins got off the freeway and told appellant to get out of the car. He did so, telling Collins as he left: "Bitch, if you ever call the fucking police on me, I will have you killed or I will have somebody kill you." Collins did not report the incident to the police.
During the following days, appellant frequently telephoned Collins to harass and threaten her.
On June 1, appellant and Collins were both in Moss's home. Appellant demanded that Collins give him money. Collins refused. Appellant called one of his girlfriends, Kim, to come and pick him up. Appellant continued to argue with Collins. Collins told appellant their relationship was over. Appellant left with Kim. Collins took her belongings and went to her cousin Leta Smith's house.
Later that day, appellant and Kim drove by Smith's house. Still later, appellant walked up to the house, said, "Bitch, I'm going to kill you," and punched Collins twice in the chest. Collins and Smith went to the police station and reported the incidents. Los Angeles Police Officer Eric Loomis photographed the injuries to Collins's chest.
About 10:20 p.m. that night, Collins was driving her car. Collins's daughter and a friend were with her. Kim's car pulled up next to Collins. Appellant pointed a gun at Collins. Collins drove away, found a pay telephone and called police. She was afraid of appellant and believed that he would carry out his threat. Part of her fear arose from her belief that appellant was a gang member.
Over the next few days, appellant called Collins repeatedly on her cell phone, telling her to drop the charges and that he was not going to hurt or threaten her anymore. Appellant said that he wanted to see her.
On June 5, Collins agreed to meet with appellant. She called police and told them about the meeting. Appellant said that he was sorry. Police arrived to arrest appellant. During the arrest process, appellant's brother and girlfriend, two women and appellant's "homeboys from his hood" approached Collins and were "talking crap" about her having appellant arrested.
Members of appellant's family later threatened Collins. She failed to appear for the preliminary hearing in this matter. Detectives had to find Collins and bring her to court for the trial of this matter. She did not want to testify because she was afraid for her life.
Appellant did not present a defense.
Discussion
1. CALCRIM No. 224
Appellant contends that CALCRIM No. 224, given alone, implied that the prosecutor's burden of proof applied only to circumstantial evidence and not to direct evidence, and that the trial court's use of CALCRIM No. 224 violated his federal constitutional rights. We do not agree.
Respondent contends that appellant has forfeited this claim by failing to raise it in the trial court. Section 1259 permits review of an instruction given by the trial court even though it was not objected to, if the substantial rights of the defendant were affected thereby. "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim -- at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Where error is combination of instructions given and not given, claim may be reviewed on appeal pursuant to section 1259 even though defendant would otherwise have waived claim concerning instruction not requested to be given. (People v. Chavez (1985) 39 Cal.3d 823, 830.) Hence we review this claim.
CALCRIM No. 224 provides: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
Appellant's claim is identical to the claim rejected by the Third and Fifth District Court of Appeal in People v. Anderson (2007) 152 Cal.App.4th 919 and People v. Ibarra (2007) 156 Cal.App.4th 1174. We agree with the reasoning of those Courts.
Here, as in Anderson and Ibarra, the jury was instructed pursuant to CALCRIM No. 220 that the People have the burden of proving the defendant guilty beyond a reasonable doubt. The jury was also instructed with CALCRIM No. 223, which explained that direct evidence is evidence which can prove a fact by itself, while circumstantial evidence does not directly prove the fact to be decided, but may support a conclusion that the fact in question is true. CALCRIM No. 223 also told the jury that neither form of evidence was entitled to greater weight than the other.
CALCRIM No. 224 instructs the jury on how to deal with circumstantial evidence which gives rise to two or more competing inferences. It tells the jury that it may only accept reasonable inferences, and if there are two reasonable inferences, the jury must accept the one which favors innocence. It would make no sense to give a similar instruction on direct evidence. As the Court in Anderson explained: "Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence." (People v. Anderson, supra, 152 Cal.App.4th at p. 931.)
Appellant contends that the instruction should not be limited to circumstantial evidence because California courts have long recognized the principle that where two reasonable interpretations of the evidence exist, the one favoring the defendant's innocence must be adopted by the jury. As the Court in Anderson explains, "this argument mixes apples with oranges. Defendant cites as support a number of cases where the juries had been instructed that if two conclusions can be drawn from the evidence as a whole, one pointing to guilt and the other pointing to innocence, it must find the defendant not guilty. (See People v. Bender (1945) 27 Cal.2d 164, 175-177, 163 P.2d 8 (Bender); People v. Foster (1926) 198 Cal. 112, 127-128, 243 P. 667; People v. Barthleman (1898) 120 Cal. 7, 10-11, 52 P. 112; People v. Naumcheff (1952) 114 Cal.App.2d 278, 281-282, 250 P.2d 8; People v. Haywood (1952) 109 Cal.App.2d 867, 872, 241 P.2d 665; People v. Carroll (1947) 79 Cal.App.2d 146, 150, 179 P.2d 75.) But the question addressed by CALCRIM No. 224 is not how to consider the evidence as a whole but how to consider specific circumstantial evidence. The instruction concerns whether a necessary fact may reasonably be inferred from circumstantial evidence when that evidence can be construed in a way that points to the defendant's innocence, not whether the evidence as a whole may reasonably be construed to point to the defendant's innocence." (People v. Anderson, supra, 152 Cal.App.4th at pp. 931-932.) Appellant relies on the same cases cited by the appellant in Anderson. We agree with the Anderson Court that those cases do not require an instruction on how to consider specific pieces of direct evidence.
2. Gang evidence
Appellant contends that the trial court erred in admitting evidence that he was a gang member. We see no abuse of discretion.
"[E]vidence 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." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) A defendant's gang membership can be relevant to show the reasonableness of a victim's fear in a criminal threats case. (People v. Mosley (2007) 155 Cal.App.4th 313, 324.)
Here, appellant was charged with stalking. An element of that offense is that the defendant make a credible threat with the intent to place the victim in reasonable fear for his or her safety. (§ 646.9.) The defendant's conduct "must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person." (§ 646.9, subd. (e).)
Collins testified that appellant had told her that he was a gang member, she had met friends of appellant's whom she believed were gang members, and that this was part of the reason that she was afraid of appellant. This testimony is clearly relevant to show that she was in both reasonable and actual fear of appellant's threats and that she suffered reasonable and actual emotional distress.
The evidence of appellant's gang membership was highly probative of the victim's state of mind. The testimony was brief and unadorned. Collins's testimony, summarized above, was the only evidence about appellant's gang membership. There was no testimony about the gang itself or any of its activities, or any other gang members. While there may be a small amount of prejudice from this testimony, it was far outweighed by the probative value of the evidence. The trial court did not abuse its discretion in admitting the evidence.
Even assuming that the evidence was admitted erroneously, we would see no prejudice. Appellant's defense was that Collins was angry at him for ending their relationship and was "boldface making up lies about him." The only evidence of appellant's gang membership came from Collins's testimony. She also testified that he pointed a gun at her, threatened her, and did other bad things. Collins's claim that appellant was a gang member did not make the rest of her testimony more credible, and so could not have contributed to the verdict.
Although appellant's counsel did not specifically mention the gang references in his closing argument, he again argued that Collins was not credible and was making things up and "there's no corroborating proof to back up her story in any way, shape, or form."
Disposition
The judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.