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People v. Fairley

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Feb 14, 2012
2d Crim. No. B231495 (Cal. Ct. App. Feb. 14, 2012)

Opinion

2d Crim. No. B231495 Super. Ct. No. BA367820

02-14-2012

THE PEOPLE, Plaintiff and Respondent, v. DESEAN FAIRLEY, Defendant and Appellant.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

(Los Angeles County)

A jury convicted Desean Farley of first degree premeditated murder of Eric Hopkins (count 2; Pen. Code, §§ 187, subd. (a), 189). with gang and firearm enhancements (§§ 186.22, subd. (b)(1)(C); 12022.53, subds. (b)-(d)). After the verdict was entered, appellant entered a change of plea on count 1 to attempted first degree murder of Charlotte Jenkins (§§ 664/187, subd. (a)) with gang and firearm enhancements (§§ 186.22, subd. (b)(1)(C); 12022.53, subd. (d)). The trial court sentenced appellant to an aggregate term of 50 years to life state prison. Appellant contends, among other things, that the trial court erred in admitting evidence of the attempted murder (count 1) to show motive, intent, and lack of self-defense with respect to the Hopkins murder. (Evid. Code, § 1101, subd. (b)). We affirm.

All statutory references are to the Penal Code unless otherwise stated.

These two counts had been severed for trial.

Appellant was sentenced 50 years to life state prison on count 2 (a 25 years to life term for murder, plus 25 years to life on the firearm enhancement; § 12022.53, subd. (d)) and a concurrent 40 years to life on count 1 for attempted murder (15 years to life plus 25 years to life on the firearm enhancement; § 12022.53, subd. (d)).

Facts

Viewing the evidence in a light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 576), the record shows as follows: appellant, age 16, was a Denver Lane Bloods gang member. On January 15, 2010, he armed himself with a .38 caliber revolver and waited for Eric Hopkins, Danny Geeter and Robert McKinzie to leave a liquor store. After they exited the store, appellant shot and killed Hopkins. Hopkins was unarmed, as were Geeter and McKinzie.

Appellant was arrested several weeks later after he shot, but only wounded, Hoover gang member Charlotte Jenkins. In a Miranda interview (Miranda v. Arizona (1966) 384 U.S. 436 ), appellant told Detective Roger Guzman that Hopkins "flinched at the wrong time . . . . " Appellant did not see a weapon or see Hopkins make a threatening gesture. This was corroborated by a store surveillance video. Appellant hated the Hoovers and told Detective Guzman that the Hoovers had threatened him before. "I don't care how you all look at it, . . . I got revenge . . . ." "[A] nigger got shot that's what happened. If you all say it's me, I know it's me, then it shouldn't be more to be said."

Appellant also waived his Miranda rights as to Charlotte Jenkins shooting. He told Detective Teresa Hernandez that Jenkins was a Hoover gang member. He admitted shooting Jenkins six times.

The Trial Proceedings

After the jury was selected, the trial court granted the prosecution's motion to introduce evidence of the Jenkins shooting to show intent and rebut appellant's self-defense claim. (Evid. Code, § 1101, subd. (b); see e.g., People v. Matson (1974) 13 Cal.3d 35, 40 [burglary count severed but could be treated as other crimes evidence in rape trial].)

The evidence showed that appellant was a self-admitted member of the Denver Lane Bloods, had gang tattoos, and went by the moniker "Crip Killer." Appellant hated the Hoover gang and wore a belt with "Hoover Killer" symbols.

A gang expert, Los Angeles Police Officer Warner Carias, testified that the Denver Lane Bloods was a criminal street gang whose primary activities included murder, attempted murder, armed robbery, assault with deadly weapons, carjacking, vandalism and burglary. The Denver Lane Bloods and Hoovers were rivals and committed retaliatory homicides to maintain respect. In response to a hypothetical, Officer Carias opined that the Hopkins shooting was committed to benefit the Denver Lane Bloods.

Appellant claimed that he acted in self-defense and testified that a Hoover gang member, possibly Geeter, shot at him a week earlier.

Other Crimes Evidence: Jenkins Shooting

Appellant contends that the trial court erred in granting the prosecution's motion to introduce evidence of the Jenkins shooting to show motive, intent, and to rebut the claim of self-defense. (Evid. Code, § 1101, subd. (b).) Appellant argued lack of notice and claimed the motion was "a total surprise" and impacted jury voir dire.

The prosecution argued that appellant did not disclose the self-defense claim "until we were already in the middle of jury selection." "There's no unfair surprise here. [Appellant] would have been prepared to go forward with that count . . . since the Court just severed it [i.e., count 1 for attempted murder] a few days ago . . . ."

The trial court ruled that the Jenkins shooting was admissible to show intent and rebut the self-defense claim. (Evid. Code, § 1101, subd. (b).) "I don't think this is unfair in the slightest, especially since the evidence being offered is material that you have had in your possession . . . . All the People want to bring in is the evidence that - pertaining to Count 1 to show essentially a prior bad act - or to . . . negate the claim of self defense basically, and . . . they're entitled to do [so]. [¶] Also under the [Evidence Code section] 352 argument, undue consumption of time, I don't think so. I don't think it's going to take a full day. . . . This is a couple more hours tops."

Evidence Code Section 1101

On appeal, a trial court's ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) Evidence of defendant's criminal conduct on another occasion may be admitted to prove the defendant's motive, intent, or lack of self-defense. (Evid. Code, § 1101, subd. (b).)"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result. . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish . . . the presence of the normal, i.e., criminal, intent accompanying such an act. . . .' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

"'If evidence of an uncharged offense is relevant, there is no distinction between an offense that is prior to and one that is subsequent to the date of the charged offense.' [Citation.]" (People v. Balcom (1994) 7 Cal.4th 414, 425.)

The Jenkins shooting was sufficiently similar to support the inference that appellant had the requisite intent, motive, malice, and premeditation to murder Hopkins. (See e.g., People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Appellant armed himself, entered Hoover gang territory, and shot Jenkins with a .38 caliber revolver. Jenkins, like Hopkins, was unarmed and believed to be a Hoover gang member. The Jenkins evidence was also admissible to rebut appellant's self-defense claim and prove the gang enhancement, i.e., that the Hopkins homicide was gang motivated and to benefit the Denver Lane Bloods. (Id., at p. at pp. 1517-1518.)

Citing People v. Lopez (2011) 198 Cal.App.4th 698, appellant argues that the probative value of the other crimes evidence was outweighed by the potential for prejudice. (Evid. Code, § 352.) In Lopez, defendant was charged with and convicted of residential burglary. The Court of Appeal held that the trial court erred in admitting evidence of a prior car burglary and car theft to prove intent. "Evidence regarding the Mendocino burglary showed that someone entered the kitchen of the Mendocino residence and took two purses. Assuming appellant committed the alleged conduct, his intent in so doing could not reasonably be disputed - there could be no innocent explanation for that act. Thus, the prejudicial effect of admitting evidence of a prior car burglary and prior car theft outweighed the probative value of the evidence to prove intent as to the Mendocino burglary charge. [Citation.] [¶] Simply put, evidence of uncharged acts cannot be used to prove something that other evidence showed was beyond dispute. . . " (Id., at p. 715.)

Unlike Lopez, the probative value of the other crimes evidence outweighed the potential for prejudice and went to a disputed issue, e.g. whether appellant acted in self-defense. (Evid. Code, § 352.) Testimony concerning the Jenkins shooting was no more inflammatory than the charged offense, was not unduly time consuming, and did not confuse the jury. (See e.g., People v. Funes, supra, 23 Cal.App.4th at pp. 1518-1519 [gang evidence admissible to prove motive, intent, malice and premeditation with respect to murder charge].) The jury was instructed that the other crime evidence was received for a limited purpose and could not be considered as evidence of bad character or predisposition to commit the murder. (CALCRIM 375.) It is presumed that the jury understood and followed the instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

The CALCRIM 375 instruction stated in pertinent part: "If you decide that the defendant committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant had a motive to commit the offense alleged in this case; or [¶] [t]he defendant had a plan or scheme to commit the offense alleged in this case. [Or] [t]he defendant acted in self-defense in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character of disposition to commit crime. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder or any other offense in this case. The People must still prove the charge and each allegation beyond a reasonable doubt."

Appellant complains that the prosecutor told the jury that the Jenkins shooting could be considered to prove motive, intent, appellant's absence of fear of the Hoover gang, lack of self-defense, and the gang allegation. Appellant did not object or request a curative admonition, thereby waiving the alleged error. (People v. Farnam (2002) 28 Cal.4th 107, 167.) Waiver aside, the prosecutor's remarks were proper and patterned on the CALCRIM 375 instruction. In closing argument, the prosecution warned the jury that the other crimes evidence was admitted for a limited purpose and "you are not deciding anything as far as guilty or not guilty on the shooting of Charlotte Jenkins." There was no prosecutorial misconduct.

Due Process

Appellant asserts that the other crimes evidence violated his due process rights but waived the claim by not raising it below. (See e.g., People v. Partida (2005) 37 Cal.4th 428, 435; People v. Boyette (2002) 29 Cal.4th 381, 424.) Waiver aside, no federal due process rights are implicated where the disputed evidence is relevant and admissible on the issue of intent, motive or some other basis specified in Evidence Code section 1101, subdivision (b). (People v. Catlin (2001) 26 Cal.4th 81, 122-123.)

The alleged error, if any, in admitting the other crimes evidence was harmless and did not deny appellant a fair trial. (See e.g., People v. Marks (2003) 31 Cal.4th 197, 226- 227.) The evidence was overwhelming. Before the shooting, appellant armed himself, entered Hoover gang territory, crossed the street, and waited for Hopkins to exit the liquor store. Appellant did not see weapons or see anyone make a threatening gesture and shot Hopkins in the chest. Appellant testified that it was "a good thing" to kill Hoover gang members and that he had shot at Hoover gang members in the past and was proud of it. Appellant makes no showing that the other crimes evidence was "so extraordinarily prejudicial, and of so little relevance to guilt, that it threaten[ed] to sway the jury to convict regardless of defendant's actual guilt." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)

Gang Expert Testimony

Appellant claims that the gang expert testimony usurped the role of the jury in determining intent and guilt. The argument is based on the theory that the hypotheticals were too fact specific and Officer Carias's responses were tantamount to an opinion as to appellant's guilt. Appellant forfeited the claim by not objecting. (Evid. Code, § 353; People v. Rogers (1978) 21 Cal.3d 542, 548.)

On the merits, it is settled that expert testimony is admissible to explain how and why a crime was committed to benefit a gang. (§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 619.) "A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a 'classic' example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence. [Citation.]" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4; see e.g., People v. Olguin (1994) 31 Cal.App.4th 1355, 1369-1370 [expert testimony admissible to explain gang motive, retaliatory killing].)

Citing People v. Killebrew (2002) 103 Cal.App.4th 644, appellant argues that experts may not testify on ultimate issues of fact that are reserved for the jury such as the defendant's guilt. Killebrew was disapproved by our Supreme Court in People v. Vang (2011) 52 Cal.4th 1038. "To the extent Killebrew, supra, 103 Cal.App.4th 644, purported to condemn the use of hypothetical questions, it overlooked the critical difference between an expert's expressing an opinion in response to a hypothetical question and the expert's expressing an opinion about the defendants themselves. Killebrew stated that the expert in that case 'simply informed the jury of his belief of the suspects' knowledge and intent on the night in question, issues properly reserved to the trier of fact.' (Killebrew, supra, 103 Cal.App.4th at p. 658.) . . . Here, the expert gave the opinion that an assault committed in the manner described in the hypothetical question must be gang related. The expert did not give an opinion on whether defendants did commit an assault in that way, and thus did not give an opinion on how the jury should decide the case." (People v. Vang, supra, 52 Cal.4th at p. 1049.)

The same analysis applies here. Officer Carias opined that a shooting committed in the manner described in the hypothetical question was gang related and committed to benefit the gang. Officer Carias did not give an opinion on appellant's intent or guilt or "on how the jury should decide the case." (Ibid.)

The jury was instructed that it was not required to accept expert testimony as true or correct and "[y]ou may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." (CALCRIM 332.) The trial court instructed: "A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion." (Ibid.)

It is presumed that the jury understood and followed the instruction. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) "Whether to accept the expert's opinion and, if so, how to apply it to the actual case was for the jury to determine." (People v. Vang, supra, 52 Cal.4th at p. 1050, fn. 5.)

Officer Carias gave his opinion and explained it. There was nothing improper about the hypotheticals asked or the officer's responses. (See e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 946-947.) "[T]he prosecutor's hypothetical questions had to be based on what the evidence showed [this defendant] did, not what someone else might have done. The questions were directed to helping the jury determine whether [this defendant], not someone else, committed a crime for a gang purpose. Disguising this fact would only have confused the jury." (People v. Vang, supra, 52 Cal.4th at p. 1046.)

Ineffective Assistance of Counsel

Under the rubric of ineffective assistance of counsel, appellant argues that his trial attorney should have objected to the hypothetical questions and the gang expert's responses. Appellant makes no showing that counsel's performance was deficient and that, but for counsel's alleged errors, there is a reasonable probability that appellant would have obtained a more favorable verdict. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698]; People v. Bolin (1998) 18 Cal.4th 297, 333,) The Sixth Amendment does not require trial counsel to make futile objections or motions. (People v. Memro (1995) 11 Cal.4th 786, 834.)

Appellant's remaining arguments have been considered and merit no further discussion.

Appellant argues, for the first time on appeal, that he was intoxicated and could barely stay awake when he was interviewed about the Jenkins shooting.
Appellant also argues that he was "forced to stipulate to facts that devastated his defense and sealed his fate on the attempted murder charge . . . ." After appellant was convicted of first degree premeditated murder, appellant entered into a negotiated plea on count 1 for attempted murder in exchange for a concurrent 40 years-to-life sentence. The trial court found that it was a highly favorable plea because appellant was facing a 90 years-to-life aggregate sentence. We concur. "[D]efendants who have received the benefit of the bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellant process. [Citations.]" (People v. Hester (2000) 22 Cal.4th 290, 295.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

William C. Ryan, Judge

Superior Court County of Los Angeles

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.


Summaries of

People v. Fairley

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Feb 14, 2012
2d Crim. No. B231495 (Cal. Ct. App. Feb. 14, 2012)
Case details for

People v. Fairley

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DESEAN FAIRLEY, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

Date published: Feb 14, 2012

Citations

2d Crim. No. B231495 (Cal. Ct. App. Feb. 14, 2012)