Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F05535
DAVIS, P.J.
A jury convicted defendant Michael Cherry of carjacking, kidnapping, and two counts of being a felon in possession of a firearm. (Pen. Code, §§ 215, 207, subd. (a), 12021, subd. (a)(1), respectively.) The jury acquitted defendant of the greater charge of kidnapping to commit a carjacking, found allegations that defendant personally used a firearm to commit the kidnapping untrue, and deadlocked on the personal gun use allegation accompanying the carjacking conviction. (§§ 209.5, subd. (a), 12022.5, 12022.53, subd. (b).) In a separate, related case, defendant pleaded guilty to failing to appear in court the day of the jury verdicts in his carjacking-kidnapping case. (§ 1320.5.) Sentenced to a prison term of 11 years, defendant has filed appeals to both cases (C051364, C051462), which have been consolidated.
Hereafter, undesignated section references are to the Penal Code
On appeal, defendant raises a bevy of contentions that center on the admission of gang and shooting evidence. These contentions cut across the following legal lines: evidentiary, necessity defense, prosecutorial misconduct and ineffective assistance. We conclude that defendant, in his direct examination, opened the door to the gang evidence, and that the shooting evidence was also properly admitted. Consequently, we affirm.
BACKGROUND
On June 16, 2004, about 1:25 p.m., a Sacramento police officer responded to a call of four or five shots being fired near a house in the Oak Park community. The residence was empty and a rear window had been broken out as if someone had jumped through. On the front lawn of the residence, the officer found two spent silver .45 caliber Federal bullet casings that smelled as if they had just been shot.
At the scene, a witness directed the officer to a blue Cadillac parked in front of the residence. The officer ordered the car towed, and performed an inventory search of it. The car was registered to Tahnesha Green, who later was determined to be defendant’s girlfriend. On the front passenger floorboard of the car, the officer found a box of ammunition, with two bullets missing, that matched the two spent casings found on the front lawn. Three relatively current receipts were also found in the car: the first showed that the ammunition had been purchased at a Big 5 store in the general vicinity of the shooting (on Mack Road, in south Sacramento) about one hour and 20 minutes before the shooting; the second was an auto parts receipt in the name of M.C. Cherry (defendant), listing work done for the blue Cadillac; and the third listed M.C. Cherry and described auto work for a Lincoln Continental.
Meanwhile, about 1:30 p.m. the same day (June 16, 2004), John P., while driving his City of Sacramento garbage (recycling) truck in the vicinity of the reported shooting, also heard the four to five gunshots. Shortly thereafter, John was backing up his truck for a load when he saw defendant running down the opposite side of the street. Defendant fell directly across from John’s truck, dropping a semiautomatic handgun in the process. Defendant jumped up, retrieved the gun and ran straight for John’s driver’s side door. Looking terrified and holding the gun, but not pointing it at John, defendant said, “‘Get me the fuck out of Oak Park.’” Scared, John responded, “‘Let’s go,’” and defendant got in the passenger side of the truck.
Defendant told John P. that somebody was trying to kill him. Initially defendant sat so the gun was under his arm, pointing at John. Bloody wounds adorned defendant’s hand and leg. Defendant had John drive him to a house in the G Parkway area. During the journey, defendant pulled out a cell phone and made a call. At the house, defendant got out of the truck and John drove on to his corporation yard, where he reported the incident to his supervisors.
Another commercial driver in the area at the time of the shooting, Ernesto G., testified that he saw a man (whom he could not identify) run, fall, drop what looked like a black gun, go to the driver’s side of a garbage truck and then get into the truck’s passenger side. Ernesto added that when he initially saw the man running, there were some adults and children in the area who screamed and scattered.
Katherine R., a Big 5 cashier, identified defendant at trial as the person who bought .45 caliber ammunition from her on June 16, 2004.
There were some discrepancies in investigating officers’ reports of the incident. The most prominent of these had John P. describing the man who got in his garbage truck as 6 feet tall with short twisties in his hair. (Defendant is 6 feet 6 inches tall, and apparently did not have twisties in his hair.) However, John P. identified defendant at trial, positively identified him in a pretrial photo lineup, and, most significantly, defendant testified at trial that he was in John’s truck just after the shooting.
Defendant testified that he drove the blue Cadillac to a friend’s house in Oak Park around 1:15 p.m. on June 16, 2004. As he was leaving from the house about 45 minutes later, he was confronted by three boys in the front yard. The boys wanted to know why defendant was in the area--they called him “M.C.,” which he acknowledged, and asserted that defendant was “from G Parkway.” The boys uttered, “This is Oak Park Blood,” and defendant denied having anything to do with that; he was simply visiting a friend. After the friend intervened, the boys started shooting. Defendant ran toward the house, then through it, and jumped out the back window.
Defendant continued running, and then fell with his cell phone spilling in front of him (he did not have a gun). Injured, bleeding and petrified, he looked up and saw a garbage truck. The truck driver asked if he needed help and defendant pleaded, “‘Can you get me the fuck out of Oak Park?’” The driver, who was John P., obliged and off they went.
As defendant and John P. were departing the Oak Park area for the G Parkway, defendant was startled upon seeing the boys who had confronted him, now driving in a burgundy Malibu. John counseled calm, noting that defendant would not be recognized in a garbage truck.
On June 23, 2004, when defendant was arrested, he had a loaded .357 caliber revolver on the floorboard of his car, along with two ammunition speed loaders. He had these items because of the shooting incident a week earlier. Defendant also had a Thompson .45 caliber automatic carbine in the trunk of his Lincoln Continental in his garage. In fact, defendant and his girlfriend, Tahnesha Green, testified that on June 16, Green, at defendant’s direction while in her blue Cadillac, went to the Big 5 store on Mack Road and bought a box of .45 caliber bullets to see if they would fit the Thompson gun; defendant tried two bullets from the box, but they did not fit.
On cross-examination, defendant denied being a validated member of the G Mob gang from G Parkway; denied being aware that Oak Park is considered a rival turf of the G Mob; and claimed again he was unarmed when he went into Oak Park on June 16.
In rebuttal, a Sacramento police detective gang expert testified that defendant is a G Mob gang member and that the G Mob and the Oak Park Bloods were rival gangs with an “ongoing war” in June of 2004. The gang expert opined that defendant would have been foolish to go into Oak Park unarmed during that time, and that defendant “most definitely” would be carrying a gun at that point if he did not have an associate with him.
Also in rebuttal, an emergency medical technician at Methodist Hospital testified that on June 16, 2004, between 2:00 and 2:20 p.m., he assisted a Black male in his late teens or early 20’s from the back seat of a burgundy Chevrolet Impala, who had a gunshot wound to his knee and another to his hip. Another young Black male drove the car off after the victim got out; the victim was not forthcoming during questioning by hospital staff and law enforcement. (This evidence constitutes the challenged “shooting evidence.”)
DISCUSSION
1. Gang Evidence and Shooting Evidence
a. Gang Evidence
Defendant contends the trial court abused its discretion by admitting gang evidence. We disagree. Defendant opened the door to this evidence.
A trial court’s ruling on the admissibility of evidence, including gang evidence, is reviewed for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194 (Carter).) “Gang evidence is admissible if it is logically relevant to some material issue in the case other than [bad] character evidence [for, e.g., identity or motive], is not more prejudicial than probative, and is not cumulative.” (People v. Avitia (2005) 127 Cal.App.4th 185, 192 (Avitia); accord, Carter, supra, 30 Cal.4th at p. 1194.)
During the pretrial conference, the prosecution raised the issue of gang affiliation and activity. Defendant moved to exclude such evidence, and the prosecution agreed that it would not be part of the prosecution’s case-in-chief. However, the prosecution warned that such evidence could be used to rebut defense claims, or to rebut the last element of a proffered necessity defense (that element is that the defendant did not substantially contribute to the emergency). (See Judicial Council of Cal. Crim. Jury Instns. (2007-2008), CALCRIM No. 3403.)
During his direct testimony, defendant testified about his confrontation in the front yard with the three boys as follows:
“Q. And what happened?
“A. They turned to me and was like, “‘What the “F” are you doing over here in this area? You’re from G Parkway’ . . . . [¶] . . . [¶]
“THE WITNESS: ‘. . . Is your name M.C.?” [¶] . . . [¶]
“And then, ‘This is Oak Park Blood,’ the gang member thing.
“And, you know, the whole time I’m like, ‘I’m over here visiting a friend. I have nothing to do with none of that. I’m visiting a friend.”
Later in his direct testimony, defendant added:
“. . . I was . . . trying to basically talk my way out of it, like, ‘I’m not from -- I don’t do all that thing.’”
Defendant argues that this direct testimony did not provide a basis on which to admit gang evidence against him because he was merely restating the confrontation conversation and talking his way out of the confrontation, rather than denying any gang affiliation per se. But defendant did offer this evidence on direct examination, and, at the least, this evidence broached the issue of defendant’s gang affiliation, if any.
As a result of this direct testimony, we conclude that the prosecutor, on cross-examination, properly asked defendant whether he was a validated member of the G Mob gang, whether the Oak Park Bloods would recognize him in Oak Park as from G Mob on June 16, 2004, and therefore whether he was armed that day, all of which defendant denied. And, as a result of this proper cross-examination, the trial court did not abuse its discretion in admitting rebuttal evidence from the Sacramento police gang expert contradicting these denials. The gang evidence was logically relevant to material issues other than showing bad character (defendant’s credibility and whether he was armed), was not more prejudicial than probative (given that defendant raised the issue of gang context and the jury was now entitled to have that context explained), and was not cumulative. (Avitia, supra, 127 Cal.App.4th at p. 192; Carter, supra, 30 Cal.4th at p. 1194.)
b. Shooting Evidence
Defendant also claims the trial court erred by admitting evidence that defendant shot the person admitted to Methodist Hospital. Defendant argues there was no evidence connecting him to this shooting. We disagree.
As the People note, there was “abundant circumstantial evidence” linking defendant to this shooting. The entire shooting escapade, which encompassed four or five shots, occurred around 1:30 p.m. on June 16, 2004, and the apparent victim of that shooting was admitted to Methodist Hospital with two gunshot wounds around 2:00 p.m. that day. At the scene of the shooting, two just-fired .45 caliber Federal bullet casings were found that matched a box of ammunition (with two bullets missing) that was found in defendant’s girlfriend’s car that was parked at the shooting scene. There was evidence that defendant had purchased the box of ammunition about one hour and 20 minutes before the shooting. John P., the victim of the carjacking/kidnapping, testified that defendant was armed with a handgun just after the shooting; this testimony was corroborated by another commercial driver in the area at that point, Ernesto G.
Another witness, Tina T., saw two Black males get in a car and drive away just after the shooting; and still another witness, Detrecie W., described the car’s color as burgundy. Defendant himself confirmed that the boys who shot at him were driving a burgundy Malibu. Two Black males arrived at Methodist Hospital in what looked like a burgundy Impala (a Malibu and an Impala are both mid-size Chevrolet sedans); one of them had been shot twice and was uncooperative in providing information; the other drove off after the victim was out of the car.
Finally, there was the properly admitted gang evidence that defendant is a G Mob gang member, that there was an ongoing war between the G Mob and the Oak Park Bloods at the time of the shooting, and that it was likely defendant was armed when he ventured into Oak Park on the day of the shooting.
In the end, defendant sought to limit the evidence of the shooting to a simple one-sided affair in which he was merely in the wrong place at the wrong time. During his direct examination, defendant claimed that he was unarmed and that the garbage truck driver, John P., was merely a good Samaritan who offered help and gave him a ride out of the area. But through his direct testimony, defendant raised issues of a gang-based shooting that involved both himself and the Oak Park Bloods. The gang evidence and the shooting evidence were properly admitted on the issues of defendant’s credibility, whether he was also armed, and his motive as to a carjacking and kidnapping (i.e., motive to carjack and kidnap at gunpoint).
2. Necessity Defense
Defendant claims the trial court erred by failing to instruct sua sponte (on its own motion) on the defense of necessity, and by requiring him to admit he possessed a gun in order to assert that defense. Defendant is mistaken.
A trial court has a duty to instruct sua sponte on a defense “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’” (People v. Breverman (1998) 19 Cal.4th 142, 157 (Breverman), quoting People v. Sedeno (1974) 10 Cal.3d 703, 716, italics added by Breverman.) In a nutshell, the necessity defense arises where a defendant commits a crime in an emergency to prevent a significant bodily injury or a greater evil, and the defendant did not have any adequate legal alternative and did not substantially contribute to the emergency. (See CALCRIM No. 3403.)
During the discussion on jury instructions, the following colloquy occurred between the court and defense counsel:
“THE COURT: And we are also not instructing on the affirmative defense of necessity. Am I correct, [defense counsel], that the defense is not requesting that instruction?
“[DEFENSE COUNSEL]: That’s correct, Your Honor. Our position is that my client did not have a gun. Necessity would stand for the proposition that, yes, my client had a gun, but he used it because he needed to. It has been our position throughout that he did not have a gun.
“THE COURT: So instructing on the defense of necessity would be inconsistent with the defense theory as to Counts One [kidnapping to commit carjacking] and Two [kidnapping].
“[DEFENSE COUNSEL]: Yes, and I have requested -- I have affirmatively requested that instruction not be given.”
There it is, straight from the defense’s mouth--defendant was not relying on the necessity defense, and that defense was inconsistent with defendant’s theory of the case. Consequently, the trial court did not err in failing to instruct sua sponte on this defense. (Breverman, supra, 19 Cal.4th at p. 157.)
As for defendant’s second point, that the trial court erroneously conditioned the necessity defense on defendant’s admission of gun possession, defendant has not provided any record citation for it. Consequently, defendant has forfeited that point. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
3. Prosecutorial Misconduct
Defendant asserts the prosecutor committed several acts of misconduct, primarily involving the shooting evidence and the gang evidence.
Generally, a defendant may not complain on appeal of prosecutorial misconduct unless he timely and specifically noted the misconduct and requested that the jury be admonished to disregard it. (People v. Hill (1998) 17 Cal.4th 800, 820.) An ordinary evidentiary objection is insufficient to preserve the issue for appeal. (People v. Erickson (1997) 57 Cal.App.4th 1391, 1403.) Defendant failed to note the misconduct and request admonition. Consequently, defendant has forfeited these assertions.
4. Ineffective Assistance
Defendant argues that his counsel was ineffective in allowing the shooting evidence and the gang evidence to be admitted. He also claims his counsel was ineffective in failing to move to suppress evidence found in the blue Cadillac (the ammunition box and receipts) and in withdrawing the necessity defense. We find no prejudicial ineffectiveness.
To establish ineffectiveness of counsel, a defendant must show that his counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted (i.e., a probability sufficient to undermine confidence in the outcome). (People v. Anderson (2001) 25 Cal.4th 543, 569; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
In reviewing a claim of ineffectiveness on appeal, we accord great deference to a counsel’s tactical decisions so as not to second-guess counsel’s trial strategy. (People v. Frye (1998) 18 Cal.4th 894, 979.) Accordingly, to reverse on appeal for ineffectiveness, the appellate record must affirmatively disclose that counsel had no rational tactical purpose for the act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) In all other cases, the conviction will be affirmed on appeal and the defendant will be relegated to an evidentiary habeas corpus proceeding. (Id. at pp. 581-582.)
a. Ineffectiveness--Shooting Evidence
Defendant contends that his counsel was ineffective in failing to object to the evidence that defendant shot the person admitted to Methodist Hospital on June 16, 2004. We disagree.
As delineated in part 1.b. of this Discussion, to which we direct the reader, there was abundant admissible (circumstantial) evidence linking defendant to this shooting. It simply is not the case--as defendant has maintained throughout this appeal--that there was no evidence that he shot a gun or shot a person. Consequently, defense counsel was not ineffective in failing to object to this admissible evidence.
b. Ineffectiveness--Gang Evidence
Defendant claims his counsel ineffectively allowed him to be cross-examined on gang membership/association; according to defendant, he never denied on direct examination that he was involved with gangs.
As we have seen from part 1.a. of this Discussion, to which we direct the reader, defendant twice suggested during his direct examination that he was not involved in gangs, and this opened the door to cross-examination on his gang membership/association.
In the context of ineffective assistance, however, this does raise the question as to why defense counsel had defendant on direct examination broach the gang subject. The gist of this direct testimony by defendant was that those who confronted defendant identified themselves as Oak Park Bloods, and defendant twice stated that he had nothing to do with any of that.
Defense counsel argued at trial that this testimony did not provide a basis on which to admit gang evidence against defendant because defendant was merely restating the confrontation conversation and talking his way out of the confrontation, rather than denying any gang affiliation per se. The trial court did not see it that way and, as we have determined, did not abuse its discretion in allowing the prosecutor to inquire about defendant’s gang membership/association on cross-examination. Defense counsel reasonably may have decided as a tactical matter to raise the issue of the Oak Park Bloods (1) to demonstrate how terrified defendant was, showing how John P. was drawn to help him, and (2) to “slip” in that defendant was not involved in gangs, preemptively minimizing any gang evidence or inferences that might come out and bolstering the view that defendant was not armed. Moreover, the transcript of the confrontation testimony does not show that defense counsel elicited any gang testimony; perhaps defendant went this way on his own.
On the appellate record before us, then, we cannot say that defense counsel ineffectively represented defendant regarding this point.
c. Ineffectiveness--Motion to Suppress
Defendant contends his trial counsel was ineffective for failing to move to suppress the evidence found in the blue Cadillac that defendant was driving.
Because the legality of this search was never challenged or litigated, we do not have the facts necessary to determine this issue. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Cudjo (1993) 6 Cal.4th 585, 627.)
d. Ineffectiveness--Necessity Defense
Lastly, defendant asserts that his trial counsel was ineffective by withdrawing his necessity defense. We disagree.
As noted in part 2 of this Discussion, the defense theory of the case was that the garbage truck driver, John P., voluntarily drove defendant out of the Oak Park area. This theory, tendered as a rational tactical choice, is inconsistent with the necessity defense, which requires that a (justified) crime has been committed. (See CALCRIM No. 3403.)
DISCUSSION
The judgments in appeal Nos. C051364 and C051462 are affirmed.
We concur: NICHOLSON, J., BUTZ, J.