Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino, Cara Hutson, Judge, No. FSB051307
HUFFMAN, J.
A jury convicted Ariel Bolton and Davion Keel of first degree murder and found true a related enhancement as to Bolton. Keel appeals contending the court erred in admitting evidence of his use of a firearm in the current offense, which firearm was used earlier by a gang member in an unrelated homicide. Keel also contends the trial court erred in failing to bifurcate the issue of the alleged gang enhancement during the trial and contends the abstract of judgment must be amended to delete a firearm enhancement, which was not found true by the jury. Bolton also contends the issue of the gang enhancement should have been bifurcated from the guilt phase of the trial. Bolton also joins in the remaining issues to the extent they may affect his case. The Attorney General properly concedes the error in the abstract of judgment regarding Keel. We will order the judgment to be modified to remove the enhancement regarding Keel. As to the remaining contentions we will find no abuse of discretion and affirm the judgments as modified.
FACTS AND PROCEDURAL BACKGROUND
Bolton and Keel were convicted of first degree murder (Pen. Code, §§ 187, 189). The jury also found that Bolton personally discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (b)-(e)). The jury was unable to reach a verdict on the alleged gang enhancement (§ 186.22, subd. (b)(1)). The gang allegation was dismissed by the trial court.
All further statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Bolton to an indeterminate term of 50 years to life. Keel was sentenced to an indeterminate term of 25 years to life.
On July 31, 2005, the victim, Barry Knight, and Deantre Conner approached Bolton and Keel near the intersection of Spruce and G Street in San Bernardino.
Knight and Conner wanted to purchase cocaine from the two men. Conner knew that both Bolton and Keel were members of the Eastside IE street gang. Conner had previously encountered the two men, and they had shaken down Conner before and had gone through his pockets.
When Conner and Knight approached appellants, Knight said he had $20. Bolton asked who had the money. Bolton was armed with a MAC-10 weapon and Keel had a silver, snub-nosed revolver. Appellants told Conner to leave and he walked away. As he walked away, Conner heard Knight say that all he had was a "20." Conner observed the appellants struggling with Knight. Conner saw Knight walk away from appellants, at which time he heard several gunshots.
Knight ran across the street and collapsed in front of a motel. Conner and another bystander observed Knight and ran to his aid. About the same time a San Bernardino Police sergeant heard the shooting and found Knight lying on the ground outside the motel. Knight died as a result of a gunshot wound to the chest that penetrated his lung.
Police found nine millimeter cartridges at the scene of the shooting. They all appeared to have been fired from the same weapon, which was likely a MAC-10 or 11.
The bystander, Artis Wright, testified that he saw the shooting. He had not seen Bolton or Keel before the shooting, although he testified he had seen Keel earlier that evening. Wright identified Keel as the shooter and said that Keel was armed with a revolver.
About 12 hours after the shooting Keel was arrested a block away from the scene of the crime. Keel was arrested for possession of an unloaded.38 caliber revolver.
Conner identified Keel and Bolton from photographic lineups. He described Bolton as the person who did the shooting. Conner said Keel was the one in possession of the revolver.
Two days after the shooting, police interviewed Charlie Copeland, who lived at a senior center near the shooting scene. Although Copeland was afraid to be seen talking to the police because he feared retaliation, he did talk to the police and ultimately submitted to an interview at the police station. Copeland identified Bolton as the shooter and identified Keel as the person with Bolton. Copeland told police he had seen Bolton the day after the shooting. At that time Bolton asked Copeland what he had seen. Copeland told Bolton he had not seen anything.
At trial, Copeland testified he had heard the shots on the day of the shooting, but because of his poor vision he did not see anything and denied he had identified anyone involved in the crime.
Both Bolton and Keel admitted they were members of the Eastside Crips or East Side IE gang.
Cosoa Harvey, an informant who was in the jail where Bolton was confined, testified that Bolton told him that Bolton was a member of the Eastside IE gang and that he was charged with a murder that occurred in San Bernardino. Bolton said the victim ran to a nearby motel and collapsed. Bolton told Harvey that he had demanded $20 from the victim and that Bolton had shot the victim with a MAC-11.
Bolton asked Harvey to "handle" the witnesses, Copeland and Conner. Harvey agreed to handle the witnesses. Bolton also asked him to contact Keel's family to make sure that Keel did not testify against him.
The prosecution presented a police gang expert to testify about the activities of the Eastside Crips and the various crimes in which the gang was involved. He also testified that both Keel and Bolton were active members of the gang. The witness opined that the crime in this case was committed for the benefit of the gang. The officer also testified that the revolver taken from Keel had been used several days before this crime by a different gang member to commit a murder.
DISCUSSION
I
MOTION TO BIFURCATE THE TRIAL OF THE GANG ENHANCEMENT
Both Bolton and Keel contend the trial court erred in denying their joint motions to bifurcate the gang allegation and to try the allegation after the verdict on guilt and innocence. They argue that the trial court's error resulted in the jury being exposed to prejudicial gang evidence during the guilt phase of the trial, which evidence would not have otherwise been presented until after the jury decided if the defendants were guilty of the charged crime. We are satisfied the trial court acted within its discretionary authority in denying the motion.
We review the trial court's ruling under the abuse of discretion standard at the time of the ruling. (People v. Hardy (1992) 2 Cal.4th 86, 167; see People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1050 (Hernandez).) In order to justify a finding of abuse of discretion the appellant must demonstrate a substantial danger of prejudice if the enhancement is tried along with the offense. (People v. Bean (1988) 46 Cal.3d 919, 938.) However, even if the court correctly denied the motion before trial, if the defendant can show the resulting trial was rendered unfair and a denial of due process, the conviction can be reversed. (People v. Mendoza (2004) 24 Cal.4th 130, 162.)
The court in Hernandez recognized that gang evidence is often relevant to the underlying charge and thus may be admissible even in the absence of the alleged enhancement. (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) Thus the question presented by this appeal is whether the failure to bifurcate the enhancement resulted in undue prejudice to these appellants. We believe the answer to that question is no.
The trial court was well aware of its discretion and exercised it in denying the motion to bifurcate the trial. The court said: "It is within the Court's discretion to bifurcate; however, in this situation, the Court is not inclined to bifurcate the gang [enhancement] allegation. The Court finds that the evidence that comes in will be intertwined with gang information no matter what, and having two different trials regarding, essentially the same issue, would not be efficient."
Indeed there were a number of instances in which the defendant's gang membership was important. First Conner knew both men to be gang members, and to the extent they are members it enhances Conner's identification of both. Copeland was reluctant to testify for fear of retaliation, and in fact recanted his identifications at trial, presumably out of such fear. The jail informant related Bolton's version of the events, including the gang membership, Bolton's desire to have witnesses "handled" and to pressure Keel's family to prevent him from testifying against Bolton.
In addition, the prosecution based its claim of motive for the crime and the joint participation of the two defendants based in part on their active gang membership. That both Bolton and Keel were active gang members may have been helpful to explain their joint action, and the senseless shooting over a $20 drug purchase, which went awry.
Neither appellant claims the overall gang testimony was otherwise irrelevant or inadmissible, with the exception of Keel's challenge to the evidence regarding the prior gang use of the revolver in his possession when he was arrested. Instead, they claim that if the case had been bifurcated, the jury would not have heard evidence about the gang activities prior to deciding the issue of guilt as to the underlying offense. While there may have been some differences in the trial had the court granted bifurcation, there would still have been substantial overlapping of gang related evidence even if there had been two trials. Given the interrelationship of the gang evidence to both the offenses and the allegations, we cannot say the trial court abused its discretion in declining to bifurcate the gang allegation. Nor do we find any gross unfairness in the trial of the charged offense as a result of the joint trial. (People v. Mendoza, supra, 24 Cal.4th 130, 162.)
Appellants rely in part on the majority opinion in People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran). In Albarran, the trial court granted a new trial on the gang allegation but denied the motion for new trial on the underlying crimes. The defendant had claimed the evidence was not only insufficient to sustain the gang allegation, but that its introduction had prejudiced the trial. The majority in Albarran found the trial court had erred in denying the motion for new trial for the underlying offense because of the prejudicial evidence introduced at trial. The dissent disputed the claim of prejudice and argued the majority was overly influenced by the trial court's granting of a new trial on the allegation while leaving the convictions in place.
Without choosing between the dissent and the majority in Albarran, supra, 149 Cal.App.4th 214, we distinguish that case on the basis the trial court found the gang evidence insufficient and the majority decision appears heavily influenced by the unusual facts of that case. In this case, as we have indicated, gang evidence was admissible to explain the conduct of the appellants and the reluctance of witnesses to testify. As such, we believe the trial court in the present case could reasonably conclude that the balance of interests favored a joint trial.
II
EVIDENCE REGARDING KEEL'S POSSESSION OF A REVOLVER
The trial court admitted evidence that Keel was discovered disposing of a.38 caliber revolver, near the scene of the shooting, some hours after the events had occurred. The court also allowed prosecution evidence that the revolver in Keel's possession had been used by a different Eastside Crips gang member to commit an unrelated murder. Keel contends the court erred in both decisions. Specifically Keel argues that his disposal of the revolver is irrelevant to the charged offense. He also contends the evidence of use of the revolver by a different gang member to commit an unrelated crime constituted "other crime" evidence, which was inadmissible under Evidence Code section 1101. We find the fact of possession of the revolver relevant under the facts of this case, both as it related to the underlying offense and as to the truth of the alleged gang enhancement. We do not believe the evidence regarding prior use of the gun by a different gang member to commit an unrelated crime can be considered other crime evidence regarding Keel. Accordingly, we will find no error in the admission of the challenged evidence.
2. Bolton mentions the evidence regarding the use of the revolver in an unrelated crime in his discussion of the prejudice that occurred because the alleged gang enhancement was not bifurcated for trial. He does not provide any argument or authority on the question of relevancy or the possibility of a violation of Evidence Code section 1101. Accordingly we will not address any issue of the admissibility of the evidence as to Bolton.
Evidence Code section 210 defines relevant evidence as evidence that has a tendency in reason to prove or disprove a disputed fact that is of consequence to the determination of the action. The trial court has broad discretion in making evidentiary decisions, particularly in determining the relevancy of proposed evidence. (People v.Scheid (1997) 16 Cal.4th 1, 14.) We review the trial court's evidentiary rulings under the abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.)
Witnesses to the shooting described Keel as a participant in the attempted robbery and shooting of the victim. They said that Keel had a snub-nosed (two-inch barrel) revolver. It is unclear whether the revolver was fired since the fatal wounds to the victim appeared to come from a larger caliber weapon and there were no shell casings from a revolver at the scene, although a revolver does not eject shell casings like the MAC-10 does. However, whether or not Keel fired the revolver during the crime does not make its possession irrelevant. That Keel was participating in the attempted robbery while armed with a revolver is certainly relevant to show his intent to aid Bolton in his efforts to rob the victim. It would also support an inference that Keel was aware of death of the victim as a natural and probable consequence of Bolton's action.
The question here is whether possession of a similar revolver shortly after the crime is relevant to the homicide offense. The trial court could reasonably conclude that possession of the revolver at the particular location and time would permit an inference that it was the same revolver. There could also be an inference that since Keel was attempting to dispose of a revolver shortly after this crime, he was conscious of his own guilt. The fact that the revolver found in his possession cannot be scientifically connected with this homicide goes to the weight of the evidence, but does not undermine the conclusion that the evidence was relevant.
Even if the evidence was relevant, Keel argues that it amounted to "other crimes" evidence prohibited by Evidence Code section 1101, subdivision (a). That section provides: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
The prohibition contained in Evidence Code section 1101, subdivision (a), applies to character evidence including specific instances of conduct by the defendant when offered to prove the defendant's conduct on a particular occasion. Clearly the evidence of the use of the gun by another gang member at a different time cannot be interpreted as evidence of Keel's prior bad acts. The evidence did tend to show gang conduct and corroborated the prosecution's expert regarding the practice of gangs passing around firearms. The evidence did not directly or indirectly indicate that Keel had committed some prior bad act in connection with the firearm. Accordingly, we find the trial court properly admitted evidence of prior use of the revolver by another gang member at a different time.
The Attorney General contends Keel waived the issue of other crimes evidence by failing to raise a specific objection on such grounds. Although the objection made by defense counsel is a bit rambling, it did complain about the tendency of the evidence to connect Keel to "another crime." Exercising our discretion, we find the objection sufficient to preserve the issue for appellate review.
DISPOSITION
The judgment is modified to delete the finding of the allegation under section 12022.53, subdivisions (b) and (e)(1) as to Keel. The trial court is directed to amend the abstract of judgment to reflect the deletion of the enhancement as to Keel and to forward an amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.