Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA087992, Allen J. Webster, Jr., Judge.
Janice Wellborn, 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, Assistant Attorney General, Paul M. Roadarmel, Jr., and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Martel Drea Fleming (defendant) appeals from the judgment entered following a jury trial that resulted in his conviction of attempted murder with a finding of deliberation and premeditation (Pen. Code, §§ 664/187, subd. (a)), and with additional findings that he had personally and intentionally used and discharged a firearm proximately causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)), that he had suffered one prior conviction triggering a five-year enhancement and sentencing pursuant to the “three strikes” law (§§ 667, 1170.12), and that the offense was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). At sentencing, the trial court exercised its discretion and imposed and stayed the gang enhancement. It imposed a total term of 40 years to life, consisting of a term of life with a minimum term of 15 years, plus a consecutive term of 25 years to life for the discharge of a firearm proximately causing great bodily injury.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that the trial court committed prejudicial error by allowing evidence and permitting final argument regarding “snitching.”
The contention lacks merit, and we affirm the judgment.
FACTS
1. The Prosecution’s Case-in-chief
On October 19, 2006, on his way home from football practice at Locke High School, the teenage victim (L.) and two other football players, T.W. and J.L., were walking on San Pedro Street with a female friend, Keandra. L.’s grandmother drove up with his mother in the front passenger seat of her car, wanting to give L. a ride home. A white car, occupied by six males drove by and then made a sudden U-turn nearby. Defendant got out of that car with one or two other young men and approached L., who was now walking to the rear passenger side of his grandmother’s car.
Defendant said, “F Bloods.” L. told defendant, whom he knew from high school, that defendant was well aware that he was not a gang member. L.’s mother stepped out of the car and interjected that her son did not “gang bang.” Nevertheless, defendant, a member of the 118th Street East Coast Crip gang, took out a handgun and started shooting at L. around his mother.
L. ran and was wounded, but nevertheless escaped around the corner to a residence. Defendant had shot L. three times: twice in one shoulder and once through the lower arm below the elbow. L. was hospitalized. At the time of trial, L.’s injuries prevented him from comfortably rolling his shoulder, and he had some nerve damage in his arm. Initially after being shot, he could not make a fist or do his schoolwork.
Soon after the shooting, L., his mother, and his grandmother identified defendant in a six-pack photographic lineup as the shooter. At trial, they also identified defendant as the gunman. L.’s mother, grandmother, and T.W. testified at trial, corroborating L.’s testimony about the events of the shooting. At trial, T.W. identified defendant as the gunman. The mother, grandmother, and T.W. heard defendant make gang-related claims during the shooting.
The grandmother gave the police a partial license plate number for the white car. The officers discovered that the partial license plate number given matched that on a white car belonging to another 118th Street East Coast Crip gang member. The grandmother testified that just as L. escaped around the corner, she heard another youth standing outside the white car exclaim in frustration and ask for a gun. One of the car’s occupants handed a gun to him, however, by that time, L. was out of sight.
L. testified that a year earlier he had had a verbal altercation with defendant at school over a girl.
At trial, L. was impeached with his failure to previously inform the authorities that defendant had yelled out a gang reference prior to or during the shooting.
A gang officer gave his opinion, based on four police contacts, that defendant was a member of the 118th Street East Coast Crip gang. The gang officer also testified to the evidence necessary to prove the elements of the gang enhancement.
2. The Defense
Defendant’s sister testified that defendant was not the assailant and that he did not participate in the shooting. She claimed that she and defendant were present at the shooting scene. She explained that they had taken the bus to the market to shop for dinner and were walking home from the market when the shooting began. However, they did not see the assailant because as soon as the shooting began, they ran off. She also claimed that when the shooting began, there was only one car on the street, the white car, and the grandmother and the mother were not there in the grandmother’s car.
Defendant called two police officers as witnesses, as well as 17-year-old J.L., to contradict certain details in the eyewitnesses’ testimony. J.L. testified that he heard someone shooting at L. and acknowledged that L. had been shot. He also said that when the shooting began, L. was standing on the sidewalk with J.L., and J.L. did not see the grandmother and the mother until he ran to L.’s residence. There, he got into the grandmother’s car with L.’s grandmother and drove back to the shooting scene in order to find L.
Defendant did not testify.
DISCUSSION
Defendant contends that he was denied due process when the trial court ruled that L. could testify about his understanding of “snitching” and by allowing the prosecutor to argue issues of fear and retaliation during her closing comments to the jury. Specifically, he complains that: (1) L. was permitted to testify about what a “snitch” or a “rat” was and that the fear of gang retaliation explained certain preliminary hearing testimony; (2) the gang expert testified that community members are afraid to testify during trials involving gang members as then the witness would be labeled a “snitch,” and thereafter the witness’s life would be in danger due to possible gang retaliation; (3) the prosecutor questioned J.L. about his reluctance to testify and that he understood what a “snitch” was; and (4) during her closing remarks to the jury, the prosecutor commented on J.L.’s credibility and his fear of testifying and fear of retaliation.
The contentions lack merit.
I. Background
During the prosecutor’s redirect examination of L., she pointed out that at the preliminary hearing, L. replied, “No,” when he was asked whether the gunman said anything during the shooting. L. explained that at the preliminary hearing, he was not frank in disclosing that defendant said, “F Bloods.” He said that he had not wanted to testify or be in court during the preliminary hearing. After some prodding, he also admitted that he did not want to be in court and testify at trial either. L. explained that he was afraid because “I still have to live around in the area.”
Upon inquiry from the prosecutor, L. admitted knowing what it meant to be a “rat.” Defendant objected in the absence of any specific threat having been made to L., as it was “just too prejudicial for this witness to testify about his fear about being a snitch or a rat and in this gang context.” The trial court overruled the objection and explained that the testimony was admissible because the witness had been impeached with contradictory testimony, and the prosecutor was entitled to have L. explain why he had previously been less than candid.
L. then testified that a “snitch” and a “rat” were the same thing, that is a person who “tells on gang members.” When asked what happens to snitches, L. replied that they “[g]et beat up . . . or sometimes they get killed,” and “[b]asically,” that’s what he was afraid of and that is why he was less than candid at the preliminary hearing.
The prosecutor then asked whether L. was telling the whole truth at trial, and why the jury should believe him now. He explained that at the time of the preliminary hearing he was still in high school, and he had to live in the area and walk back and forth to school. Now, he was leaving the area and “going off to college.” He would soon be out of town and out of state, and could now tell the truth.
Subsequent to the shooting, T.W. told a police officer that the assailant was light-complected, something that apparently was blatantly untrue.
The gang expert testified that witnesses in gang cases are frequently reluctant to cooperate with the authorities as they are afraid to tell the police everything they know. The officer explained that the witnesses who live in the neighborhood are often afraid for their safety and do not want to come to court to testify against gang members. Also, witnesses are reluctant to complain about gang crimes because “it [may] label[] them” as a “snitch.” If it becomes known that a person is a “snitch,” the person’s “life expectancy” is “reduced.” The officer testified that they “don’t like snitches in Southeast Division.”
J.L. testified to what appeared to be the incredible claims that he had heard, but had not seen the shooting, thereby implying that he also did not see the gunman. Thus, he could not identify the shooter. J.L. also asserted that L.’s mother and grandmother were not in the area when the shots were fired and that L. was on the sidewalk with J.L. when the shooting began. When questioned by the prosecutor, J.L. admitted that he knew what a “snitch” and a “rat” were, but that he was unaware that anything bad was likely to happen to someone who had cooperated with the authorities. J.L. acknowledged that he did not want to be a witness and that his mother had been reluctant to allow him to testify.
In closing arguments, the parties argued witness credibility and commented to the jury on the issues related to fear and retaliation. Specifically, in rebuttal, the prosecutor said that J.L. was “a scared young man.” J.L. was in a position where he would continue to live in the neighborhood, whereas T.W. and L. would be going to college and moving out of the area. The prosecutor suggested that J.L. and his family would have suffered if J.L. had revealed what he knew about the incident. Thus, J.L. was not “entirely forthcoming” during his testimony and had not revealed what he saw nor elaborated on the details of the shooting.
II. The Relevant Legal Principles
‘“Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. (Evid. Code, § 780; People v. Warren (1988) 45 Cal.3d 471, 481.) Testimony a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible. (People v. Malone (1988) 47 Cal.3d 1, 30.) It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible. (People v. Green (1980) 27 Cal.3d 1, 19-20 [testimony witness was afraid to go to jail because defendant had friends there relevant to witness’s credibility].)’ (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.)” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368 (Olguin); accord, People v. Gonzalez (2006) 38 Cal.4th 932, 945-946; see People v. Ward (2005) 36 Cal.4th 186, 211.)
The court in Olguin explained, as follows: “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. . . . [¶] Regardless of its source, the jury would be entitled to evaluate the witness’s testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness’s fear. A witness who expresses fear of testifying because he is afraid of being shunned by a rich uncle who disapproves of lawyers would have to be evaluated quite differently than one whose fear of testifying is based upon bullets having been fired into her house the night before the trial.” (Olguin, supra, 31 Cal.App.4th at pp. 1368–1369.)
“When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers ‘substantially outweigh’ probative value, the objection must be overruled. (See People v. Babbitt (1988) 45 Cal.3d 660, 688.) On appeal, the ruling is reviewed for abuse of discretion. [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
III. Waiver
At trial, defendant objected only to L.’s testimony about what L. knew about snitches. On appeal, defendant claims the failure to object to that testimony is excused because the trial court had previously overruled his one, initial objection. However, this court is unaware of any authority excusing a failure to object merely because one, initial objection is unavailing. A “‘“defendant’s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable.’” (People v. Partida (2005) 37 Cal.4th 428, 434.) Nevertheless, to forestall a claim of ineffective trial counsel, we address the contention on its merits. (People v. Norman (2003) 109 Cal.App.4th 221, 229–230; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
IV. The Analysis
Defendant argues that the “snitch” and “rat” testimony had little probative value in proving the legitimate matters to be considered by the jury. He urges that the evidence was highly prejudicial because it “unfairly bolstered” the prosecution witnesses’ testimony and “diminished without basis” J.L.’s claim that defendant was not involved in the shooting. The use of such testimony also risked that the jury would reach the unwarranted conclusion that defendant had intimidated witnesses or attempted to do so.
Witness credibility was the central issue at trial since almost all the witnesses knew defendant prior to the shooting, and most of the eyewitnesses had identified defendant as the assailant. Defendant’s counsel noted a number of discrepancies in the eyewitnesses’ testimony and argued that such discrepancies or conflicts in witnesses’ testimony demonstrated that the People had failed to prove defendant’s guilt. On the other hand, the prosecutor attributed any small discrepancies in the testimony to innocent misperception and misrecollection, to lapse of time, or to deliberate distortions created by the witnesses’ fear or fear of gang retaliation prior to or after the trial.
The gist of defendant’s trial objection was that the use of the fear evidence risked the improper conclusion by the jury that defendant or his gang made specific threats to the witnesses. However, that concern could have been addressed by appropriate limiting jury instructions requested by the defense. (See People v. Hernandez (2004)33 Cal.4th 1040, 1052.) The evidence complained of on appeal was properly admissible as it was highly probative to the issues and to witness credibility. In this case, fear and fear of gang retaliation explained a number of discrepancies or conflicts in the witnesses’ testimony. As is recognized by the decision in People v. Green, (1980), 27 Cal.3d 1, 19-20, the prosecution need not show a specific threat before fear evidence is admissible.
Also, the evidence did not improperly diminish J.L.’s testimony in defense. The thrust of J.L.’s testimony was that he did not witness the shooting, and by implication, he did not see the gunman. The jury was entitled to fully evaluate his believability by being aware of his biases. The fear and fear of retaliation evidence permitted the jury to evaluate J.L.’s trial testimony in light of the effect the existence of the gang had on J.L.’s testimony, if any.
The trial court properly exercised its discretion by admitting the fear and the fear of retaliation testimony as any risk of misleading the jury was outweighed by the importance of having the jury fully evaluate witness credibility. (People v. Gonzalez, supra, 38 Cal.4th at pp. 945–946.) There was no abuse of discretion, much less error, that rendered the trial “‘so “arbitrary and fundamentally unfair” that it violated federal due process.’” (Reiger v. Christensen (9th Cir. 1986) 789 F.2d 1425, 1430 ; see also, People v. Prince (2007) 40 Cal.4th 1179, 1229.)
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, Acting P. J. DOI TODD, J.