Opinion
A147011
08-17-2018
THE PEOPLE, Plaintiff and Respondent, v. SHERARD M. KING, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN222274)
On November 13, 2014, the San Francisco District Attorney (District Attorney) filed an amended information charging Sherard M. King (King or appellant) with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and possession of ammunition by a prohibited person (Pen. Code, § 30305, subd. (a)(1)). The information additionally alleged that King had a prior serious felony conviction for assault with a firearm (§ 245, subd. (a)(2)), which he admitted. On November 14, 2014, a jury found King guilty on both counts. Thereafter, the trial court struck the prior serious felony, but declined to reduce the current felony convictions to misdemeanors. In October 2015, King was sentenced to two years in state prison, with credit for 892 days of presentence custody time.
All statutory references are to the Penal Code unless otherwise specified.
King now argues on appeal that his convictions should be reversed because the trial court erred in allowing evidence of his past gang membership to be presented to the jury. King further claims that his trial counsel was ineffective in failing to object to the admission of certain other evidence regarding a later robbery in which he was involved. Concluding that the trial court acted well within its discretion in admitting both of these items of evidence, we affirm.
I. FACTUAL BACKGROUND
Around 9:30 a.m. on the morning of May 8, 2014, two San Francisco police officers stopped King in the Tenderloin neighborhood of San Francisco for riding a bicycle on the sidewalk. Officer Castro recognized King from a previous arrest and was aware of his criminal history. As he approached King, Officer Castro saw a small black folding knife tucked into the waistband of King's pants. Officer Castro took the knife and began a pat down search, asking King if he had any additional weapons on him. King responded that he had an "antique" gun. Officer Castro felt the gun in King's jacket pocket, seized it, and placed King under arrest for unlawful possession of a firearm by a felon. During a subsequent search incident to arrest, Officers Castro and Dudy additionally discovered two small bindles of suspected heroin and two .357 caliber cartridges in King's jacket pockets.
At trial, King stipulated that he was a felon for purposes of the unlawful possession charges. In addition, a firearms identification examiner from the San Francisco Crime Lab testified that the gun found on King was operable. She further opined, however, that the .357 caliber cartridges located on King would not fit the .38 caliber gun.
After the prosecution rested, King presented a necessity defense, arguing that he carried the firearm because he feared for his safety. In this regard, King testified that he lived in the Tenderloin area of San Francisco, a high crime neighborhood. He worked as a barber, but sold drugs when the haircutting business was slow. According to King, in January 2014—some four months prior to the arrest in question—he was robbed and shot while he was riding his bicycle in the neighborhood and selling drugs. Specifically, two men approached him, one of whom pulled out a gun and told he to hand over whatever he had. Before King could respond, the man shot him in the hip. King then dropped the drugs and ran away. As he fled, the man shot King twice more, once in the thigh and once in the back. Police responded and transported King to the hospital, where he provided a statement and identified two suspects in hospital showups. According to King, the police told him the two suspects were Norteño gang members and that, after a high-speed chase, two other suspects had eluded arrest.
To establish a necessity defense, King was required to prove: that he acted in an emergency to prevent a significant bodily harm or evil to himself; that he had no legal alternative; that his acts did not create a greater danger than the one avoided; that, when he acted, he actually believed that the act was necessary to prevent the threatened harm or evil; that a reasonable person would also have believed that the act was necessary under the circumstances; and that he did not substantially contribute to the emergency. (CALCRIM No. 3403; see People v. Verlinde (2002) 100 Cal.App.4th 1146, 1164-1165, disapproved on another ground as stated in People v. Cook (2015) 60 Cal.4th 922, 924, 939.)
Two San Francisco police officers who had been involved in the investigation of the January 2014 shooting were called by the defense and their testimony generally matched King's account of the incident. Officer Moody testified that, during the showups at the hospital, it was possible one of suspects may have seen King.
Although the two men who had robbed him were in custody, King testified that he feared that their associates might harm him. King reported going to a victim services office seeking relocation assistance, but his request was denied. King further testified that, on April 30, 2014—shortly before his arrest in this case—he was hit by a bus while riding his bicycle. He reported a fractured leg, cheek, and jaw, and believed that these injuries made him more vulnerable to criminal attacks. King claimed that, after his release from the hospital in April, his uncle gave him the gun and ammunition at issue for protection. He admitted, however, that no one had threatened him between the January 2014 shooting and his May 2014 arrest.
After deliberation, the jury rejected King's necessity defense, convicting him on both counts as described above. King's timely notice of appeal now brings the matter before this court.
II. DISCUSSION
A. Evidence of Former Gang Membership
As stated above, King advanced a necessity defense in this case, arguing that his fear of possible gang retaliation or other victimization forced him to carry the gun on the day of his May 2014 arrest. In this regard, King called Sergeant Knoble to testify that King was the victim of the January 2014 robbery and shooting described above. At the time of the incident, Sergeant Knoble was assigned to a gang task force unit, and he detailed his initial suspicions that the men involved in the robbery and shooting were Norteño gang members. He testified that it was his responsibility to try and determine whether or not the incident was gang related. On cross-examination, the district attorney confirmed that Sergeant Noble had looked into the gang affiliations of all of the parties to the robbery/shooting. Sergeant Noble testified that the two perpetrators had an "association" with the Norteños, but "were not looked at as Norteño gang members themselves." He further stated that the circumstances did not indicate a gang-related incident, but simply the robbery of a drug dealer, which he reported to be a "very common" occurrence in the area.
When the District Attorney first asked whether King, himself, was affiliated with a gang, defense counsel objected and a discussion was held off the record after which the trial court stated: "All right. With that understanding, you can ask him about January." Later in the cross-examination, when the District Attorney again asked Sergeant Noble whether he had been able to determine if King had any gang affiliations, defense counsel objected a second time and the following colloquy took place:
"THE COURT: It's overruled as to that time in January.
"THE WITNESS: As in the same manner that I was looking at the suspects: Are these guys gang members? How do they fit in? If they are identified as associates, why is that. I also looked at Mr. King. Through my conversation I had identified Mr. King as—if I recall correctly, he had tattoos indicating he was part of Westmob.
"THE COURT: In January.
"THE WITNESS: January.
"And Westmob is a well-known African-American gang from San Francisco. But I did not have knowledge of Mr. King, which indicated to me potentially he has an old association with them.
"THE COURT: But in January, apparently, you could not find that he had—was associated with them in January; is that right?
"THE WITNESS: Correct. Part of my conversation with Mr. King—I actually asked him about that. He indicated that it was from days gone by. And I followed up on that with guys in my office that handle Westmob, Oakdale, those African-American gangs. And they corroborated Mr. King's statement that they have nothing to indicate he was an active participant of Westmob gang at that time.
"THE COURT: Gang members; right? He was not a gang member; correct?
"THE WITNESS: Correct. Once again, we go into the
"THE COURT: In January he was not a gang member?
"THE WITNESS: You're asking me a definitive question.
"THE COURT: In January—there was no evidence that in January he was an active gang member?
"THE WITNESS: Correct.
"THE COURT: Okay. And there was no evidence that in January he was a gang associate?
"THE WITNESS: Correct.
"[DISTRICT ATTORNEY]: He was just a drug dealer who was ripped off that night?
"THE WITNESS: Yes." (Italics added.)
On appeal, King claims that allowing the jury to hear this testimony regarding his former gang membership violated state evidence laws because it was irrelevant to any material issue in the case and far more prejudicial than probative. He also asserts that the error was so egregious that it violated his constitutional rights to due process and a fair trial. We are not persuaded.
The Attorney General contends that King has forfeited this argument by failing to preserve an adequate record for our review. It is true that, as described above, the trial court held an off-the-record discussion regarding the admissibility of this evidence which was not transcribed or otherwise memorialized for our consideration. However, it is clear from the court's comments on the record that it found the evidence admissible to the extent it focused on King's gang affiliation at the time of the January 2014 robbery/shooting. Further, when the District Attorney later re-raised the issue, defense counsel objected on grounds of "[p]rejudicial" and "352." We believe this was sufficient to preserve King's evidentiary challenge.
Generally speaking, evidence of gang membership "is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative." (People v. Albarran (2007) 149 Cal.App.4th 214, 223 (Albarran); People v. Avitia (2005) 127 Cal.App.4th 185, 192 (Avitia).) In contrast, "gang evidence is inadmissible if introduced only to 'show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]' " (Avitia, supra, 127 Cal.App.4th at p. 192.) "In cases not involving a section 186.22 gang enhancement, it has been recognized that 'evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal.' " (Ibid.) Indeed, "[e]ven if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, 'trial courts should carefully scrutinize such evidence before admitting it.' " (Ibid.; see also People v. Carter (2003) 30 Cal.4th 1166, 1194; Albarran, supra, 149 Cal.App.4th at p. 224.)
Despite its potential for prejudice, however, we review the admission of gang-related evidence, like other evidentiary decisions, for abuse of discretion. (Albarran, supra, 149 Cal.App.4th at pp. 224-225; Avitia, supra, 127 Cal.App.4th at p. 193.) Thus, "[t]he trial court's ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice." (Avitia, supra, 127 Cal.App.4th at p. 193.) Moreover, in this context, the burden is on the appellant to establish both an abuse of discretion and prejudice. (Albarran, supra, 149 Cal.App.4th at p. 225.)
We see no abuse of discretion on these facts. Evidence of King's gang history was relevant in this case given King's necessity defense under which he posited that, after the January 2014 robbery and shooting, he was forced to carry a gun to avoid retaliation by Norteño gang members. King's history vis-a-vis gangs was relevant both to the motivations underlying the robbery as well as to his expressed fear of retaliation. Moreover, Sergeant Knoble's testimony regarding King's Westmob association in "days gone by" was not unduly prejudicial for purposes of Evidence Code section 352. (People v. Kipp (2001) 26 Cal.4th 1100, 1121 (Kipp) [under section 352 " 'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues"].) In his brief discussion of the matter, Sergeant Knoble emphasized that he had no evidence that King was a current gang member or gang associate and stated that he was "very cooperative" during the investigation. Moreover, the District Attorney did not use the testimony as a basis for discussing street gangs in general, to dwell on issues of gang violence, or to imply that King's former gang association showed bad character. (Cf. Albarran, supra, 149 Cal.App.4th at p. 228; People v. Ruiz (1998) 62 Cal.App.4th 234, 241.) Since the evidence was relevant and not unduly prejudicial, its admission was not error. B. Evidence of Subsequent Robbery
Although we recognize that compliance with state evidence laws may be "neither a necessary nor a sufficient basis" for denying relief on federal due process grounds (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919-920), we reject King's due process claims for similar reasons. "[T]he admission of evidence . . . results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.) Indeed " '[o]nly if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.' " (Albarran, supra, 149 Cal.App.4th at p. 229, italics added.) And, "[e]ven then, the evidence must 'be of such quality as necessarily prevents a fair trial.' " (Ibid.) As described above, there were many permissible inferences that the jury could draw from the limited evidence of King's gang history admitted in this case, some of which might even have been helpful to King. Certainly, the admission of that evidence did not render the trial fundamentally unfair.
King additionally challenges the admission of evidence that he committed a robbery on August 25, 2014, several months after the offenses here at issue. Specifically, King testified on cross-examination that, on that date, he was riding his bicycle to his mother's house in the South of Market Area (SOMA) of San Francisco when he grabbed a women's cell phone and was arrested. He further admitted that he was not afraid when he took the phone. King now asserts on appeal that his trial attorney was ineffective for failing to object to this testimony as irrelevant and unduly prejudicial. However, trial counsel has no obligation to raise a meritless objection. (People v. Ochoa (1998) 19 Cal.4th 353, 463.)
Unless a statutory exception applies, all relevant evidence is admissible. (People v. Bivert (2011) 52 Cal.4th 96, 116; see also Evid. Code, § 351.) Relevant evidence is that which has any tendency in reason to prove or disprove any disputed fact material to the outcome of the case. (See Evid. Code, § 210.) " ' "The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.] The trial court has broad discretion in determining the relevance of evidence . . . ." ' " (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) This broad discretion extends to trial court rulings on the admissibility of potentially inflammatory evidence. (See, e.g., People v. Brown (2003) 31 Cal.4th 518, 547; Avitia, supra, 127 Cal.App.4th at p. 192; see also Evid. Code, § 352.) We see no abuse of the trial court's discretion here.
Prior to trial, the District Attorney argued that evidence of this subsequent robbery was relevant because "it goes to the fact that he's in this same area doing illegal behavior, and again, you create your own emergency." Defense counsel responded, stating: "I'm afraid [] that really starts to sound like propensity." The District Attorney disagreed, again emphasizing that it was relevant "to rebut this necessity defense." Although it delayed ruling on the motion, the trial court seemed to agree. Specifically, it noted that the robbery evidence "also negates fear. I mean, if he's there and he's doing what they claim he's doing, that sort of negates this emergency situation." When King was questioned briefly about the August 2014 robbery at trial, his attorney did not renew her objection.
On appeal, King argues that the robbery evidence at issue was irrelevant because the incident was "opportunistic and momentary" and thus "had no tendency to counter" his necessity defense. We disagree. As stated above, to establish a valid necessity defense King was required to prove, among other things, that at the time of his May 2014 arrest, there was an emergency; he actually believed that carrying the gun was necessary to prevent the threatened harm (gang retaliation or other victimization); he did not substantially contribute to the emergency; and he had no adequate legal alternative. (CALCRIM No. 3403.) The fact that King was willing to attract the attention of both the public and the police while out on the streets was relevant both to the existence of an ongoing emergency and to the sincerity of his fear in that environment. Moreover, rather than keeping a lower profile by declining to commit further crimes, King continued to create the dangerous situations in which he found himself. Thus, the robbery evidence was clearly relevant, and it was not presented in a way that would tend to " ' "evoke an emotional bias" ' " against King. (Kipp, supra, 26 Cal.4th at p. 1121.) Rather, the testimony at trial was short, was not inflammatory, and was elicited from King, himself, rather than from the victim or the police. Under these circumstances, the admission of the robbery evidence was not erroneous, and thus counsel was not ineffective for failing to object to it.
III. DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
SMITH, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------