Opinion
C076754
02-21-2017
THE PEOPLE, Plaintiff and Respondent, v. BRIAN KEITH JONES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F08153)
A jury found defendant Brian Keith Jones guilty of the first degree murder of Duane Lomax (Pen. Code, § 187, subd. (a)) and shooting at an occupied motor vehicle (§ 246). The jury also found true an allegation that defendant used and personally and intentionally discharged a firearm and thereby proximately caused death to Lomax within the meaning of section 12022.53, subdivisions (b), (c), and (d) in the commission of both offenses. Prior to trial, defendant pleaded no contest to being a felon in possession of a firearm (§ 29800, subd. (a)(1)).
Further undesignated statutory references are to the Penal Code.
Sentenced to 58 years to life in prison, defendant appeals. His sole contention on appeal is that the trial court abused its discretion in admitting evidence of his "Pure Hate," "White Power," swastika, and iron cross tattoos. He argues that such evidence was unduly prejudicial under Evidence Code section 352 in that it transformed the shooting into "a racially-motivated homicide" and unfairly contributed to the first degree murder verdict. We shall conclude that the evidence was relevant and not unduly prejudicial, and thus, affirm the judgment.
Defendant was sentenced to 25 years to life for first degree murder, plus a consecutive 25 years to life for the firearm enhancement, and the upper term of three years for being a felon in possession of a firearm and five years for the prior conviction. Defendant's sentence for shooting at an occupied motor vehicle was stayed pursuant to section 654. --------
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution
On the night of December 7, 2012, defendant's sister Karrina Slabbekorn and her fiancée Vanessa Reyes went to a club in Sacramento. Reyes drove them to the club in her car. They left the club around 1:15 a.m. and headed home to North Highlands. As they exited the freeway at Watt Avenue, there was a car stopped on the off ramp, blocking the road. Reyes honked and the driver of the stopped car, later identified as Lomax, eventually began to move but repeatedly hit his brakes, frustrating Reyes. Reyes pulled into a Wendy's parking lot to cool down, and Lomax pulled in next to her, rolled down his window, and began yelling. The two exchanged words, and at one point, Lomax threatened to have someone come and beat up Reyes and Slabbekorn. After a few minutes, Reyes pulled out of the parking lot and continued down Watt Avenue. Lomax eventually pulled alongside the passenger side of Reyes's car and looked directly at her. Reyes began speeding, and so did Lomax. Reyes was scared and continued to speed. When Reyes turned onto Elkhorn Boulevard, Lomax followed behind her. Reyes continued on Elkhorn Boulevard to Walerga Road, then turned right on Galbrath Drive, at which point she began driving down different streets. Lomax continued to follow.
Meanwhile, Slabbekorn called defendant and told him that "this ghetto black guy is following me." She also called him a "nigger," "bastard and every name in the book" because she was scared. She denied using the word "nigger" because she knew it would affect defendant. She asked defendant what they should do, and he told her that they should drive slowly to the school near his home. Defendant also said that he was "getting bullets," and she begged him, "No, brother, don't, I just want you to tell him to quit following me."
Reyes circled around the school and past Adieu Court, where defendant lived. Defendant drove out of Adieu Court in front of Reyes as Reyes turned into Adieu Court, made a U-turn, and stopped. As Reyes was making the U-turn, defendant jumped out of his car with his hands up, and yelled at Lomax, "[W]hy are you following my sisters?" Lomax drove toward defendant, who jumped back and fell down. Defendant then got up and fired four or five shots as Lomax put his car in reverse and began backing up. One or two of the shots were fired as Lomax was backing up. Lomax's car continued to travel in reverse before coming to a stop.
After firing the shots, defendant returned to his car and drove off. Reyes followed. As Reyes drove past Lomax's car, she saw him slumped over the center console. Defendant and Reyes were pulled over by law enforcement minutes later. B. The Defense
Defendant testified on his own behalf at trial. He was asleep on the couch when his sister called. She was hysterical. She told him that a "black guy," later identified as Lomax, was chasing her and Reyes and had followed them all the way back to their neighborhood. She also told him that Lomax had threatened them. Defendant believed she was in great danger. He told her to drive to a school near his home, and he would meet them there. It did not occur to him to tell her to call 911, and he did not call 911 himself.
Defendant got in his car, drove to the end of his court, and stopped. While he was stopped, he saw two sets of headlights heading toward him. He recognized the first car as Reyes's, pulled out behind her, turned his car sideways, and blocked the road so that Lomax could not pass. He then jumped out of his car, ran toward Lomax's car, raised his hand in front of him, and yelled for Lomax to stop. Lomax's car appeared to slow, and then to accelerate. Defendant took a couple of steps backwards and simultaneously pulled a gun out of his pocket. When he realized Lomax was not going to stop, he fired one shot into the hood of the car to scare Lomax off. As he fired, he quickly stepped to the side, lost his footing, and fell down.
Meanwhile, Lomax swung his car to the right of defendant, so that when defendant fell he was behind Lomax's car. Lomax then drove his car in reverse as defendant was getting up from his fall. Defendant shot toward the body of the car, emptying his gun, to scare Lomax. Defendant believed that if he had not jumped out of the way, Lomax would have backed over him.
Defendant brought the gun with him when he got out of his car because he did not know what Lomax's intentions were and Slabbekorn had told him that Lomax had threatened her. He admitted throwing the gun out of his car prior to being stopped by law enforcement. He acknowledged that he should not have done so but said that he had panicked. He denied hearing Slabbekorn use the word "nigger."
DISCUSSION
Defendant contends the trial court abused its discretion and violated his constitutional right to a fair trial by admitting evidence of his various tattoos. According to defendant, "[t]he tattoos painted [him] as a racist and impelled a verdict of first degree murder, when the shooting was perfect or imperfect defense of another." As we shall explain, the tattoo evidence was relevant and was not unduly prejudicial. Accordingly, the trial court did not abuse its discretion in admitting it.
Defendant was charged with the first degree murder of Lomax. At trial, defendant did not dispute that he shot and killed Lomax; rather, he asserted that he did so in self-defense.
Defendant testified on his own behalf at trial. During cross-examination by the prosecutor, he denied hearing his sister state that a "nigger" or a "black ghetto man" was following her. His recollection was that she said a "black guy" was chasing her. When the prosecutor asked whether he liked Black people, defendant responded, "My wife's dad is black, and so is her brother and sisters. You're trying to turn this into a racial thing and it's not." At that point, the prosecutor requested a sidebar.
Following the unreported sidebar, the trial court excused the jurors so that it could consider questions the prosecutor wanted to ask defendant with respect to defendant's tattoos. Defense counsel argued that the issue before the court was defendant's feelings at the time of the incident, and to his knowledge the tattoos in question "do not exist and did not exist" at the time of the incident. He also argued such evidence should be excluded under Evidence Code section 352. The prosecutor responded that defendant's "state of mind is absolutely pertinent in regard to what he did and why he did it and why he determined to leave his house with a fully loaded weapon." "[I]f, as [defendant] indicated, he feels differently today, I think it is something for this jury to be able to evaluate in regard to what his mind set was. [¶] And in particular, because of the nature and number of tattoos that we're talking about -- just for the record he has pure hate that [i]s tattooed on the right side of his neck. He has an iron cross, which is still on the front of his chest and throat area. On his left calf he has a white power with a swastika. He's now tattooed over his left hand where he had SWP, supreme white power, and a swastika. . . . [¶] All of these things -- this isn't just a person who casually had these feelings. When you put body art on yourself indicating that you have this affiliation, these feelings, that is something that absolutely goes to his mind set at the time, and I think it is appropriate to go into this area."
The trial court ruled that "those tattoos that are in existence at the time of the shooting in 2012, those are relevant to his state of mind at the time, given the fact that the racially-charged language was used, and it could very well be argued it goes to premeditation. So it is relevant. It's going to be allowed."
Thereafter, the prosecutor continued her cross-examination of defendant:
"Q: . . . Mr. Jones, when we left off, you indicated that you are not hostile towards people of color and in particular individuals who are African American; is that correct?
"A: Yes.
"Q: You didn't always feel that way; did you, Mr. Jones?
"A: I made some bad decisions when I was a kid.
"Q: I'm sorry. I can't hear you.
"A: I said I made some bad decisions when I was a kid and got some tattoos I shouldn't have.
"Q: Well, as a matter of fact, you
"A: And I've regretted it ever since.
"Q: --tattooed yourself with racially hateful tattoos in some places; isn't that true?
"A: Yes.
"Q: On your neck we see up there right now, the left-hand side of your neck, what does that say?
"A: Pure hate.
"Q: Pure hate means pure hate for all other races except the white race, correct, Mr. Jones?
"A: No.
"Q: What does pure hate mean to you, Mr. Jones? [¶] . . . [¶]
"A: It's, uh, just a tattoo I got when I was a kid. It didn't -- it's not indicating against any race at all.
"Q: Mr. Jones, on the back of your left calf, you also have a swastika and white power tattooed there, correct?
"A: Yes.
"Q: And that is again based on a belief in hate of people of other races other than white races, correct?
"A: Like I said, when I was a kid in Y.A. I made some decisions that I shouldn't have, but I grew up and started getting them covered up.
"Q: You still have pure hate on the side of your neck, correct? Is that correct?
"A: Yes.
"Q: You still have the swastika and white power on the back of your left calf, correct?
"A: Yes.
"Q: In addition, you have a tattoo on your chest of an iron cross, correct?
"A: Yes.
"Q: That is also about white power; is it not, Mr. Jones?
"A: No, it's not.
"Q: When did you get the tattoo on your chest of the iron cross?
"A: 2009. 2010 maybe. Late 2009. Early 2010. It's a Harley -- Harley, uh -- Norcal Choppers. Harley symbol.
"Q: Do you have other Harley Davidson tattoos?
"A: No.
"Q: Do you have any other motorcycle tattoos, Mr. Jones?
"A: No.
"Q: Mr. Jones, when you got your racial tattoos, that was based on the feeling you had of hate towards members of other races; isn't that true? [¶] . . . [¶]
"THE WITNESS: No.
"THE COURT: She said when you got them.
"THE WITNESS: When you're incarcerated, you gotta, I guess, fit in. [¶] . . . [¶]
"Q: . . . Mr. Jones, isn't it true that you would have reacted entirely differently if your sister would have told you that there was white guy in a car behind her?
"A: Absolutely not. Anybody that's chasing little girls in the middle of the night, I'm going to go see what's going on."
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Id. § 210.) " 'The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.]" (People v. Bivert (2011) 52 Cal.4th 96, 116-117.)
Relevant evidence may be excluded "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." (Evid. Code, § 352.) Undue prejudice for purposes of Evidence Code section 352 means " 'evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt.' " (People v. Valdez (2012) 55 Cal.4th 82, 133; accord, People v. Crew (2003) 31 Cal.4th 822, 842.)
We will not disturb a trial court's exercise of discretion in admitting or excluding evidence "except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
In this case, evidence of defendant's tattoos tended logically, naturally, and by reasonable inference to show that defendant hates non-Whites, and thus, may have been motivated to shoot Lomax because he was Black. Such evidence also was relevant to rebut the defense theory that defendant shot Lomax in self-defense and to impeach his testimony that he was not hostile toward people of color. That such evidence revealed defendant to be a racist did not render it inadmissible. (See People v. Monterroso (2004) 34 Cal.4th 743, [racist tattoo "was relevant to show a motivation for" murder, and its probative value was not "substantially outweighed by its potential prejudicial effect"].)
The cases cited by defendant in support of his contention that the tattoo evidence was unfairly prejudicial are inapposite. In In re Victor L. (2010) 182 Cal.App.4th 902, the court held that a prohibition on acquiring tattoos while on juvenile probation was valid and did not unduly impair the probationer's First Amendment rights even though the probationer was 18 years old and could lawfully get a tattoo. (Victor L., at pp. 927-928.) In doing so, the court explained: "Just because it is lawful for an 18 year old to get a tattoo does not mean it is wise." (Id. at p. 929.) In addition to noting the health risks involved, the court observed that "a heavily tattooed appearance tends to give rise to prejudices or suspicions about the tattooed person—warranted or not—that could interfere with a ward's future aspirations, such as employment opportunities." (Id. at p. 930.) Defendant relies on the court's observation as support for his position that the introduction of the tattoo evidence in this case was prejudicial. His reliance is misplaced. The issue here was not that defendant simply had tattoos; rather, it was the racist content of the tattoos. As previously discussed, the content of those tattoos was relevant to disputed issues in this case - -namely defendant's motive and intent. That some people react negatively to tattoos in general does not make the introduction of the tattoo evidence here unduly prejudicial.
In People v. Medina (1995) 11 Cal.4th 694, 749, the court held that the trial court did not abuse its discretion in admitting testimony that defendant had tattoos of a " 'Nazi swastika and the grim reaper,' " from a witness who was otherwise able to link defendant to the gun and car allegedly used to commit the crimes. That case is wholly consistent with our conclusion that the trial court did not abuse its discretion in admitting evidence of defendant's racist tattoos in this case.
Finally, in United States v. Newsom (6th Cir. 2006) 452 F.3d 593, the court ruled that evidence the defendant had various tattoos, including ones of a firearm-wielding individual and other subjects that indicated he lived a " 'thug life' " was not probative regarding whether he possessed a firearm found under the seat of a sport utility vehicle. (Id. at p. 603.) "Simply put, the fact that Newsom had a tattoo of a gun-wielding man or the words 'thug life' on his arm did not make it any more likely that he possessed the particular gun . . . on the day in question." (Ibid.) The court also found that the admission of such evidence "was unfairly prejudicial because it suggested . . . Newsom had a hostile, criminal disposition, and a conviction on that basis is obviously improper. [Citation.] Because there was no legitimate probative force of the evidence concerning the details of Newsom's tattoos, the prejudice to Newsom was 'unfair,' as opposed to being the 'damage to a defendant's case that results from the legitimate probative force of the evidence.' [Citation.]" (Id. at pp. 603-604.) Here, the fact defendant had tattoos that read "Pure Hate" and "White Power," along with an image of a swastika did make it more likely that he shot Lomax at least in part because he was Black and following his sister, and that defendant was not acting in self-defense but had other motivations. Thus, unlike Newsom, in this case there was a " 'legitimate probative force of the evidence' " "concerning the details of [defendant's] tattoos."
For all the foregoing reasons, we conclude that the trial court acted well within its discretion in admitting evidence of defendant's tattoos.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Duarte, J.