Opinion
B221341
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ROBERT HUBBARD, Defendant and Appellant.
Edward H. Schulman, under appointment of the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA041498)
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles A. Chung, Judge. Affirmed.
Edward H. Schulman, under appointment of the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.
Following a jury trial, Michael Robert Hubbard was convicted of first degree murder and five counts of attempted murder. On appeal, Hubbard contends: (1) the trial court erred in admitting a recording of a conversation with his co-defendants while they were in a holding cell; (2) the imposition of a 25-year enhancement under Penal Code section 12022.53, subdivision (d) violated the double jeopardy clause; and (3) the double jeopardy clause should be applied to bar multiple punishments within a unitary trial. We affirm the judgment.
Hubbard's co-defendants were Robert Anderson and Taurus Miller. We consider Anderson's and Miller's appeals separately in case No. B219922.
All further statutory references are to the Penal Code unless otherwise noted.
FACTS
We summarize the evidence in accordance with the usual rules on appeal. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) On February 1, 2008, R.L. was at her home with several family members. A group of men came to the apartment looking for another family member, Anthony L., who was not there. The encounter concerned allegedly stolen money. When Anthony L. arrived at the apartment a short time later, he, Lawrence D.H., D.H., Brian M., Christian D., and George O. left to find the men who had come to the apartment about the stolen money. They saw Robert Anderson by a bus stop with a girl. Anderson stared at them. Brian M. stepped off of the sidewalk into the street in Anderson's direction and yelled, "What's up? 98 Main Street." Anderson replied with the words, "This West Boulevard Crip," or "West Boulevard," or "West Boulevard Mafia." Brian M. appeared agitated. Anderson began to run away. The group followed as Anderson ran to an apartment complex. As he ran, Anderson yelled, "Hey 'cuz. Hey 'cuz." Anderson entered the apartment complex and went to the balcony or patio area of one of the apartments.
Anderson went into the apartment and came out with his brother, Michael Hubbard, and Taurus Miller. The two groups exchanged words. R.L. had caught up with the Brian M. group in a car, and she called out that this was not the same group of men who had come by her house earlier. Brian M. said to Anderson something along the lines of "I see now that you have your boys out here, you want to talk mess." Brian M. and the others then turned and walked away. Hubbard raised a gun and shot at the group, hitting Lawrence Hart in the chest. Miller then took the gun and fired a number of additional shots. Witnesses heard between two and five additional shots.
Hubbard, Anderson, and Miller immediately fled. Elizabeth H., Hubbard and Anderson's sister, was at the apartment at the time of the shootings. She called her boyfriend, M.S., after the incident. Elizabeth H. told M.S. that Hubbard had just shot someone. She said Miller loaded the gun.
The defendants went to stay with Miller's girlfriend, Christina C., in Compton. Christina C. overheard a conversation between Hubbard and his girlfriend. Hubbard told his girlfriend he had shot somebody. He explained that he had "gotten into it" with some men who were trying to jump Anderson and Anderson ran to get him. Hubbard said he came out with a gun and started shooting, and his first shot hit a boy in the head. He then dropped the gun. Hubbard told his girlfriend he was going to have to go on the run for a while.
Around one week later, Christina C. received a telephone call from Miller, who was on the run in Las Vegas. Hubbard was on the line, along with another friend, Rodney D. During the telephone call, Hubbard told Rodney D. that on the day of the shooting, some men were trying to jump Anderson. Hubbard came out with a gun and fired. Hubbard said he thought he had shot the victim in the head.
At the scene of the shooting, police found three .45 caliber expended cartridge casings and a .45 caliber copper jacketed bullet. In the living room of Hubbard and Anderson's apartment, police found three live .45 caliber bullets, an empty .45-caliber ammunition clip, and one additional .45-caliber bullet in a pair of pants. Police also recovered mail bearing Miller's name, and a cell phone that said "Taurus" and "Shamrock" on the screen. There was a backpack containing pieces of paper, some of which displayed Hubbard's name, and others Anderson's name. In addition, police found a green notebook with Hubbard's name on the cover. Inside the notebook were notations referring to gangs in Long Beach, the 49th Street Hustler Crips, the West Boulevard Crips, and music lyrics or other gang-themed writings.
At the trial, the People offered the testimony of gang expert Long Beach Detective Gary Hodgson. Hodgson was familiar with a gang known as the 49th Street Hustler Crips. The gang had five members on record. Hodgson testified that because of the gang's small size, it had formed an alliance with Sex, Money, Murder, a larger gang. According to Hodgson, Miller had admitted to other detectives that he was a member of the 49th Street Hustler gang. Hodgson also opined that Hubbard was a member of the 49th Street Hustler gang based on photographs of Hubbard's tattoos and attire, and writing from Hubbard's notebook.
Based on a hypothetical summarizing the evidence presented at trial, Hodgson opined that the shooting was carried out to benefit the 49th Street Hustler Crips. Hodgson explained that the shooting would elevate the position of the shooter in the gang and would also create a reputation for the gang in that neighborhood. Hodgson testified: "[If] they commit a crime, they are less likely to have somebody report it because they don't want to be involved with the gang. They don't want the gang coming at them. And it shows to the other gangs around that area that they take care of business and not to mess with them."
At trial, the People also played the jury an excerpted recording of a conversation among Hubbard, Anderson, and Miller while they were in a police holding cell. In the conversation, the three discussed what they had told police. Miller said he told the police he fired three shots. Hubbard asked if Miller talked to police about him. The three discussed what was at Hubbard and Anderson's house:
"MILLER: They think it was two guns.The three also talked about other people, including someone "from 49." Hubbard said he would handle matters: "Hey, I'm telling you, cuz. Hey. Hey. Bro, I'm gonna handle this shit. Don't trip. I'm gonna handle this shit. If I get out none of the niggers is coming to court. If I get out, I'm going to make sure -- I was just trying to say this you feel me -- I'll make sure that you get out and he get out." The three debated whether they could beat the charges and what evidence the police had. They also discussed the rumored gang affiliation of Lawrence Hart, and interactions among gang members in jail.
"HUBBARD: Why?
"ANDERSON: Why?
"MILLER: I don't know. They told, um, they -- they think it's two guns.
"HUBBARD: Cuz why?
"ANDERSON: Oh. Because they found that shit in our house.
"MILLER: Was there two there, the rest of them, what?
"ANDERSON: And I assume they found that shit in our house.
"MILLER: Which one?
"ANDERSON: The shit that the shit man, you know what I'm -- the shit in our house.
"MILLER: You talking about your bedroom?
"HUBBARD: Fuck.
"ANDERSON: No. There there wasn't shit in the house.
"MILLER: There was only one gun though. That clip --
"ANDERSON: ____ they said they told you they found it?
"MILLER: Yeah. He was like, he told me my fingerprints was on the clip. [¶] . . . [¶] . . . Just the clip that just we ____. I mean it wasn't [¶] . . . [¶] . . . used in a crime or nothing."
Hubbard testified in his own defense. According to Hubbard, on the day of the shooting he was packing a bag and preparing to go to Long Beach. He heard a commotion outside and went to the window. He saw a lot of people chasing someone. When he saw that it was Anderson being chased he went outside and hopped over the balcony. He heard people in the group saying, "Where are you runnin,' you bitch ass nigger. Bring your ass back here." Hubbard walked closer to the group and asked what was going on. Someone pulled up in a car and said "That's not the people," but the crowd did not care. Miller approached and told Hubbard the crowd had a gun. Miller handed Hubbard a gun. Hubbard held the gun in the air to show the crowd he had it. The group that had gathered ran off and Hubbard walked around the corner to make sure they had all left. Hubbard was scared. He thought there were 10 to 15 people assembled. He displayed the gun to scare the crowd and make the people run away. Although most were running away, Hubbard saw a few men turn as if to run towards him. The gun he was holding went off. He was puzzled that the gun had fired, then he looked down and saw it at his feet. Miller picked up the gun. Hubbard did not recall hearing any additional shots. Anderson ran up to Hubbard and said, "What the fuck you just do?" Hubbard answered that he did not know, and they ran away.
Hubbard testified that he did "nothing really" as a 49 Street Hustler Crips member. He went to parties and hung out with the group. He explained that he was using a lot of street terms in the holding cell conversation because he wanted to sound tough, not scared. He indicated that when he went onto the balcony during the incident and was handed a gun, he was not thinking about being a 49th Street Hustler Crip, nor did he have such thoughts when the gun went off. He claimed to have no connection with the Sex, Money, Murder gang and knew of no connection between the gang and the 49th Street Hustler Crips.
Hubbard, Anderson, and Miller were tried jointly, but with dual juries; one jury for Hubbard, and one for Anderson and Miller. The jury found Hubbard not guilty of willful, premeditated and deliberate first-degree murder for the killing of Lawrence Hart. Instead, the jury found him guilty of one count of second-degree murder. (Pen. Code, § 187, subd. (a).) It found true an allegation that Hubbard personally and intentionally discharged a firearm which proximately caused Hart's death within the meaning of section 12022.53, subdivision (d). However, the jury found a gang enhancement associated with the count not true. The jury also found Hubbard not guilty on five counts of attempted murder or attempted voluntary manslaughter. The court sentenced Hubbard to a total prison term of 40 years to life.
DISCUSSION
I. The Trial Court Did Not Abuse its Discretion in Admitting the Holding Cell Recording
Hubbard argues the trial court erred in admitting the holding cell recording. Hubbard contends the recording was cumulative and prejudicial. He further asserts the erroneous admission of the evidence rendered his trial fundamentally unfair and violated his federal due process rights. We conclude the trial court did not err in admitting the recording.
At trial, Hubbard objected to the admission of the recording on the ground that it had no evidentiary value. That Hubbard was a gang member was uncontested, and the defendants' discussions about the criminal case were irrelevant. Hubbard contended the language the defendants used was "street talk," and was highly prejudicial. The court ruled there was no "undue prejudice" under Evidence Code section 352. The court found the recording was relevant to the gang allegation charged in the case. The court further noted that none of the defendants asserted the charges were fabricated or unjust, or that they were innocent. In response to counsel's argument that the recording contained "street talk" and could only serve the purpose of indicating that Hubbard was a "bad person," the trial court concluded: "There is some street talk in there but it's nothing beyond what the average person would probably hear just walking to the grocery market."
Under Evidence Code section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review a trial court's ruling under Evidence Code section 352 for an abuse of discretion. (People v. Doolin (2009) 45 Cal.4th 390, 437 (Doolin); People v. Ennis (2010) 190 Cal.App.4th 721, 733.)
" ' " 'In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" [Citation.] [¶] . . . [E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' [Citation.]" (Doolin, supra, 45 Cal.4th at p. 439.)
In this case, the recording was relevant to the theory that Hubbard was a member of a gang, and that the shootings were gang-related. Hubbard argues that to the extent this was true, the evidence was cumulative. We disagree. It is true that the prosecution had other evidence of Hubbard's gang membership, such as his tattoos and his notebook containing gang-themed writing. However, Hubbard testified that despite these indicia of his gang membership, he did "nothing really" as a gang member, and he tried to distance himself from the gang. The recording was relevant to the prosecution's theory that Hubbard was an active, involved gang member who was steeped in gang culture, and tended to disprove Hubbard's testimony to the contrary.
Further, the recording was not unduly prejudicial to Hubbard. Admittedly, Hubbard, along with the other two defendants, used expletives and slang in the recording. However, the trial court could reasonably conclude that the defendants' use of profanity and "street talk" was not so extreme or offensive that it would inflame the emotions of the jury and provoke them to use the recording illegitimately. The trial court did not abuse its discretion in finding the probative value of the recording outweighed any potential prejudice.
Moreover, even if we assumed the trial court improperly admitted the recording, we would find any error harmless. Anderson and Miller did the majority of the talking captured in the recording, while Hubbard mainly asked questions about what the other two had told police. Hubbard suggested the three should fight the charges, but said very little about the actual incident. In addition, the evidence of his conduct during the shooting was largely undisputed. And, although the recording was highly relevant to the gang enhancement, the jury found the enhancement not true. Under any standard, the admission of the evidence was harmless. (Doolin, supra, 45 Cal.4th at p. 439; Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. The Imposition of the Section 12022.53, Subdivision (d) Enhancement Did Not Violate Double Jeopardy Principles
Hubbard contends the imposition of the 25-year enhancement under Penal Code section 12022.53, subdivision (d) - based on the jury's finding attendant to the murder count that Hubbard discharged a firearm causing death - must be vacated because the jury's finding of guilt on the murder charge already encompassed any contemplated punishment for causing Hart's death. We reject Hubbard's contention because, as he concedes, our Supreme Court has rejected his argument in a similar context. (People v. Izaguirre (2007) 42 Cal.4th 126, 130-134.) Our Supreme Court has also rejected Hubbard's argument that the double jeopardy clause should be applied to multiple punishments within a unitary trial, rather than only to successive prosecutions. (People v. Sloan (2007) 42 Cal.4th 110, 121.) We are bound by the decisions of our high court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J. We concur:
RUBIN, J.
GRIMES, J.