Opinion
B208022.
4-23-2009
THE PEOPLE, Plaintiff and Respondent, v. JULIUS LAMAR NEAL, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
INTRODUCTION
Appellant Julius Lamar Neal appeals from the judgment entered following a jury trial in which he was convicted of two counts of first degree murder, four counts of attempted murder, and a single count of assault with a deadly weapon. The jury also found a multiple murder special circumstance allegation and firearm-use enhancement allegations true. Appellant contends the trial courts denial of his motions to sever particular counts and bifurcate the gang enhancement allegations violated due process. We affirm.
FACTS
The charges against appellant stemmed from three separate incidents in which appellant fired a gun at or near a commercial establishment.
The Rattlers Club incident (counts 1 and 2)
Larence "Lo" Nelson was shot to death outside the Rattlers Club motorcycle bar in the early morning hours of June 16, 2001. Patrina Johnson, who was walking nearby, was struck in the jaw by a bullet.
Nelson and his friend Brian Jackson went to the Rattlers Club in separate vehicles. As Jackson searched for a parking place, he drove past Rattlers and saw Nelson standing outside talking to appellant. Nelson and appellant were about five feet apart and no one else was near them. As Jackson walked from a side street to the club, he heard two gunshots. As Jackson turned the corner, he heard a third shot and saw Nelson on the ground, with appellant standing a few feet away. Jackson saw appellant tuck a gun into his waistband before he left in a car. Jackson had seen appellant on prior occasions when Jackson and Nelson were together at the Royal Aces motorcycle club. About a year before Nelsons death, Jackson and Nelson were "working the front door" of the Royal Aces, searching people coming into the club. Jackson and Nelson refused to let appellant enter because appellant had a weapon in his waistband. Appellant argued with Nelson and they engaged in "a little shoving match" before Jackson and others separated them. Appellant caused trouble at the Royal Aces on several other occasions. Less than a month before Nelsons death, Jackson and Nelson were outside the Rattlers Club when appellant walked past them. Nelson said, "Whats up with you, dude?" and appellant replied, "Its nothing up with this .357 in my pocket." Jackson knew appellant was called "J-Loc."
A short time before the shooting, Nelson spoke to his friend Charles Cabaong outside the club and said, "Me and that guy right there dont get along. . . . [H]e has a problem with me about something." Cabaong thought Nelson left to go home. After Cabaong heard gunshots, he saw the shooter standing about 10 feet from Nelson. Cabaong selected appellants photograph from an array of six photographs ("six-pack") and told the detectives appellant looked "familiar" and "similar" to the shooter, who had been in and out of the bar that evening. The recording of Cabaongs police interview was played at trial.
As far as the record reveals, Cabaong did not testify or tell the police that the shooter was the person Nelson pointed out to him.
The gas station incident (counts 3 and 4)
Late on the night of September 28, 2003, appellant attempted to pump gasoline at the China Petrol gas station. Appellant shouted and cursed at the cashier, Alin Aferaontieri, telling Aferaontieri to start the pump. Aferaontieri was located in a booth made of bullet-resistant glass. Aferaontieri told appellant he had to pay before pumping gasoline. Appellant came up to the cashiers booth window and cursed at Aferaontieri. Station manager Giorgian Beliciu left his office and went out to speak to appellant. Appellant approached Beliciu rapidly and attempted to hit Beliciu with a fist. Beliciu blocked appellants punch with his arm. Appellant swung at Beliciu again, and Beliciu pushed back at appellant. Appellants companion attempted to calm appellant, and Beliciu went back inside the building. Appellant approached the cashiers window again and said he was going to go get his gun and would kill them. Appellant pointed his hand at Beliciu in imitation of a gun, said he would return, and left.
After about half an hour, appellant returned to the gas station. He walked up to the window of the cashiers booth and fired four to six shots toward Beliciu and Aferaontieri, then walked away. The first shot hit the window and the others struck the wall beneath it.
The shooting and the prior altercation with appellant were captured on the gas stations video surveillance cameras. Beliciu provided the police with the recordings, portions of which were played at trial. The police recovered five expended . 45 caliber cartridge casings.
Guns of different calibers were used in each of the three incidents giving rise to the charges against appellant.
Before the shooting, Beliciu received threats from members of the Eight Trey Gangster Crips after he caused their vehicles to be towed from the gas station when they parked there to patronize the Bottom Line Nightclub next door.
The Bottom Line incident (counts 5 through 8)
On the night of December 13, 2003, appellant annoyed and fought with Monica Borunda, who was working as a cocktail waitress at the Bottom Line Nightclub. Appellant stuck a dollar bill, then his face, into Borundas cleavage. Borunda told appellant to "keep it movin." Appellant insulted Borunda, called her offensive names, and repeatedly threatened to hit her. After Borunda threatened to have appellant thrown out of the club, appellant punched Borundas face with his hand and a cane he was holding in that hand. Borunda struck appellant with her serving tray, and appellant began beating her with his fists. Borunda fought back. After several minutes, other patrons intervened and stopped the fight. Appellant retreated through the nightclubs back patio and out through the rear gate. Appellant stood outside the gate speaking on a mobile phone while shouting at Borunda. He shouted that he was going to kill Borunda and said, "This is 8 Trey Gangster Crip, and this is my hood and we fixin to take over." Borunda shouted back, "Fuck [your] hood." Appellant came back onto the patio, swinging his cane at people and yelling that he was going to kill Borunda as he attempted to move toward her. Other people, including Darrin the bartender and Borundas mother, Brenda Lee, blocked appellant from reaching Borunda. Darrin struck appellant with a fist several times, took away appellants cane, and drove him back outside the gate. Appellant again took out his mobile phone and again yelled "Im going to kill you, bitch. This is 8 Trey Gangster Crip. Bitch. We takin over, bitch." Four or five minutes later, as Borunda waited for Lee in the car, she heard five or six gunshots from the back of the nightclub.
Unless otherwise noted, all unspecified date references pertain to 2003.
William Collins was fatally wounded by the gunfire.
Before she saw a photograph of appellant, Borunda worked with a sketch artist to develop a sketch of her assailant. She later selected appellants photograph from a six-pack. She was certain of her identification and wrote on the array that the features were the same and she was "very sure that this is the man that hit me." She also identified appellant at the preliminary hearing.
Lee testified she was present at the Bottom Line on the night of December 13. Upon hearing that Borunda was fighting with a man, Lee went to the back patio, where she saw appellant waving a cane and threatening to kill Borunda. Appellant also shouted, "This is Eight Treys." Lee stood within 18 inches of appellant, attempted to calm him for several minutes, pressed her body against him, and slowly backed him through the security gate. Appellant continued to shout "Eight Treys" from outside the gate. Someone opened the gate and appellant came back through, swinging his cane at everyone. Darrin struck appellant, took away his cane, and pushed him back outside the gate. Lee took Borunda to the car and went back to tell friends they were leaving. On her way back to the car, Lee heard five or six shots from the nightclub.
Lee selected appellants photo from the detectives six-pack, but she feared getting involved in the case, so she wrote that the man she selected "could be the same person that hit my daughter and was telling her that he was going to shoot her." However, she was actually sure that the man in the photograph she selected was the man she saw yelling at Borunda. At the time of trial, she was completely certain appellant was that man.
Charlie Woods testified he was also present at the Bottom Line on the night of December 13. From a distance of about four feet, Woods witnessed an argument between the waitress and a man outside the back gate. The man attempted to hit the waitress with a stick. The bartender came outside, hit the man, and pushed him into the alley. About 20 minutes later, Woods saw the same man return and fire a gun from the alley or parking lot towards the back gate of the nightclub. Appellant was about 12 feet from Woods when he began shooting. Woods did not see anyone else shooting. A bullet struck Woodss leg. Woods identified appellant from the six-pack and at trial.
Richard Alvarado was also at the Bottom Line on the night of December 13 and also witnessed an argument between a waitress and a customer. Alvarado saw the customer up close when they met face-to-face outside the restroom. A little later the customer hit the security guard with a stick he was swinging around like a Samurai. Later, Alvarado heard shots, and comforted a man who had been shot and "was dying." Alvarado recognized the photograph of appellant as depicting the customer who fought with the waitress and he told the detectives this. Alvarado refused to circle the photograph, however, because he had heard that "the guy" was a member of the Eight Trey gang and he feared for the safety of his family members who lived in the area.
Ursula Santifer was also at the Bottom Line on the night of December 13 and also witnessed an argument between a waitress and a customer. About 15 to 20 minutes later, she heard gunfire and a bullet struck her ankle. Santifer could not identify appellant in court, but selected his photograph from the six-pack because he looked familiar for unknown reasons.
Timothy Jackson was awakened by voices outside the abandoned car in which Jackson was sleeping. Someone said, "You didnt have to light the whole club up like that." Another man said, "Motherfuckers shouldnt have pissed me off." Jackson recognized the second voice as that of his acquaintance J-Loc. J-Loc also said, "I dont give a fuck, and Ill be back over there and Ill shoot it up again." The next morning, Jackson heard the news about the shooting at "the club." At the time he heard the conversation, Jackson was a homeless crack cocaine addict. He told the police about what he overheard a few months later, after the police arrested him for selling crack cocaine. Jackson selected appellants photo from the six-pack, but expressed fear for himself and his family if he were later called as a witness. Jackson was a reluctant witness who claimed not to remember either the conversation he overheard or his interview with the detectives. Jackson told a detective his brother and sister had received phone calls shortly before trial asking why Jackson was testifying in appellants case.
After both sides rested, the trial court dismissed count 6, which charged the attempted murder of Edgar Banks, and struck all Penal Code section 12022.53 firearm-use allegations for count 2 (assault with a firearm upon Johnson). The jury convicted appellant of first degree murder with respect to Nelson and Collins; attempted murder with respect to Beliciu, Aferaontieri, Woods, and Santifer; and assault with a deadly weapon upon Johnson. The jury found multiple murder special circumstance allegations (§ 190.2, subd. (a)(3)) true. It also found that each attempted murder was willful, deliberate, and premeditated; appellant personally fired a gun, causing death or great bodily injury in the commission of both murders and the attempted murders of Woods and Santifer (§ 12022.53, subd. (d)); appellant personally fired a gun in the commission of the attempted murders of Beliciu and Aferaontieri (§ 12022.53, subd. (c)) and personally used a gun in the assault with a deadly weapon upon Johnson (§ 12022.53, subd. (a)(1)). The jury found, however, that none of the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).) The court sentenced appellant to two consecutive terms of life in prison without possibility of parole, plus 128 years to life, plus 47 years.
Unless otherwise noted, all unspecified statutory references pertain to the Penal Code.
DISCUSSION
1. Denial of appellants severance motion
Appellant filed a pretrial motion to sever the trial of the charges pertaining to the Bottom Line incident from the trial of the remaining charges. Appellants motion argued there was limited cross-admissibility of evidence and the strength of the prosecutions proof regarding the gang enhancements was greater with respect to the Bottom Line charges and would prejudice appellant with respect to the remaining charges. He also pointed out perceived weaknesses in the prosecutions eyewitness evidence regarding each of the incidents.
The trial court denied the motion, saying all of the charges were of the same class and had common characteristics of substantial importance. The court noted that all of the crimes occurred within the territory of the same gang, all involved the use of a handgun, two of the incidents occurred at bars, the Bottom Line and gas station incidents "involved intimidation-type shootings with strong gang overtones, and all of them involve the same character of crime; basically, the way I see it, the defendants retaliation or revenge against people who stood up to his attempt to push them around." The court found that "theres nothing especially weak about any of the cases in relation to the others," and noted that there were eyewitnesses for each incident. The court further found that appellant had not shown actual prejudice from the joinder.
Testimony later given at trial indicated that the Rattlers Club was not within the territory claimed by the Eight Trey gang.
Appellant contends the trial courts denial of his severance motion violated his state and federal due process rights.
Offenses that are of the same class of crime or connected in their commission may, in the trial courts discretion, be charged and tried together. (§ 954.) Cross-admissibility of evidence is not required. (§ 954.1; People v. Ochoa (2001) 26 Cal.4th 398, 423 disapproved on another ground in People v. Prieto (2003) 30 Cal.4th 226, 263.) However, severance may be required if joinder would be so prejudicial that it would make the trial unfair. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243-1244 (Musselwhite).) Relevant factors include whether evidence would be cross-admissible in separate trials; whether some of the charges are unusually likely to inflame the jury against the defendant; whether the prosecution has joined a weak case with a strong case, so that there might be a spillover effect from the aggregate evidence; and whether any of the charges carries the death penalty or their joinder turns the matter into a capital case. (Id. at p. 1244.) Where evidence supporting the charges would be cross-admissible in separate trials, any inference of prejudice is dispelled, and a severance motion is properly denied. (People v. Carter (2005) 36 Cal.4th 1114, 1154.)
Where the evidence is not cross-admissible, the party seeking severance must clearly show a substantial risk of prejudice from joinder, and that the substantial danger of undue prejudice outweighs the benefits of joinder, such as timely disposition of criminal charges and conservation of judicial resources and public funds. (Musselwhite, supra, 17 Cal.4th at p. 1244 ; People v. Bean (1988) 46 Cal.3d 919, 939-940 (Bean).) An extreme disparity in strength or inflammatory character is required in order to demonstrate the potential for a prejudicial spillover. (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1284.) The presentation of evidence of a defendants commission of multiple offenses is not considered in assessing prejudice. (People v. Hill (1995) 34 Cal.App.4th 727, 735.)
Denial of a motion to sever is reviewed for abuse of discretion in light of the showing made to the trial court and the facts then known, not in light of what happened at trial. (Musselwhite, supra, 17 Cal.4th at pp. 1244, 1246.) Nonetheless, even if the ruling was correct when made, reversal is required if appellant shows that joinder actually resulted in gross unfairness amounting to a denial of due process. (People v. Arias (1996) 13 Cal.4th 92, 127.)
All of the offenses charged in this case belonged to the same class, i.e., violent assaultive conduct. Moreover, every charged offense involved shooting at people. Accordingly, the charges met the statutory requirement for joinder.
Cross-admissibility pertains to the admissibility of evidence tending to prove a disputed fact of consequence, not the cross-admissibility of another charged offense. (People v. Geier (2007) 41 Cal.4th 555, 576.) Because a gang enhancement was alleged with respect to each charged count, the vast majority of the evidence by which the prosecutor sought to prove the gang enhancements would have been admissible in separate trials of the same charges. In addition, a significant portion of the gang evidence was relevant to show at least one possible motive—or aspect of the motive—for each incident, i.e., appellants need to retaliate for the "disrespect" shown by the intended victims refusal to submit to appellants attempt to dominate him or her, and to thereby repair or preserve his reputation within his gang. Some portion of the gang evidence was also admissible to explain the reluctance of witnesses to the Rattlers incident (Cabaong), as well as the Bottom Line incident (Lee, Alvarado, and Timothy Jackson). Accordingly, although cross-admissibility is not required, the necessity of introducing essentially the same gang evidence in separate trials supported the trial courts denial of the severance motion and dispelled any inference of prejudice.
Even if the evidence were not cross-admissible, severance was not required because none of the other factors for assessing the prejudice arising from joinder support appellants contention. Disregarding the gang enhancement allegations for the moment, the prosecution had a strong case regarding each incident. For each incident, the prosecution had one or more eyewitnesses who not only identified appellant but either saw him committing the offense (Beliciu with respect to the shootings at the gas station and Woods in regard to the Bottom Line shootings) or saw him standing over the victim with a gun immediately after hearing shots fired (Jackson with respect to the Rattlers incident). Notably, the evidence regarding each incident included facts from which a motive could be readily inferred. With respect to the Rattlers incident, which appellant characterized as the "weakest" of the charges, eyewitness Jackson knew appellant and knew of a history of appellants animosity toward and threats against victim Nelson. The gas station charges were supported by surveillance video and the strong identification testimony of Beliciu and Aferaontieri, who observed appellant at a short distance and for a significant period of time under bright lights.
Appellant attempts to demonstrate a disparity in the strength of the three cases on the basis of inconsistent identifications and defects in descriptions by a few witnesses for each of the three incidents. The failure of Cabaong and Lee to firmly and consistently identify appellant did not detract from the proof of the charges stemming from the Rattlers and Bottom Line incidents, as Jackson, Borunda, and Woods identified appellant with certainty. Moreover, Lee identified appellant at trial and plausibly explained her prior reluctance to identify him from a six-pack. Although Belicius apparently erroneous statement to police that appellant had a ponytail provided appellant with a basis for arguing that Beliciu was not credible, it did not undermine or even seriously weaken Belicius strong identification testimony, which was corroborated by Aferaontieris identification testimony and pretrial photographic identifications of appellant by both men. Similarly, appellant obtained a credibility argument regarding Borundas identification testimony by juxtaposing Borundas statement to police that appellant wore earrings with the testimony of appellants expert that appellants ears showed no sign of piercing. This contradiction, however did not significantly weaken the evidence proving that appellant was the person who committed the crimes at the Bottom Line. Borunda had a prolonged interaction with appellant and never wavered in identifying him. Her identification was corroborated by Woods and Alvarado, who identified appellant as the person who was fighting with the waitress, and by Lees trial identification of appellant. Woods also saw appellant fire the shots that gave rise to the charges regarding the Bottom Line incident. In addition, jurors were shown the sketch of the Bottom Line gunman developed with Borundas help before she saw a photograph of appellant. Jurors could consider the degree of resemblance between appellant and the sketch in assessing Borundas credibility. Under the circumstances, the earring discrepancy did not weaken the evidence that appellant was the Bottom Line gunman.
Admittedly, the prosecutions proof of the gang enhancement allegation was marginally stronger in regard to the Bottom Line shootings due to appellants invocation of the name of his gang. On the whole, however, the evidence unequivocally indicated both the Rattlers and Bottom Line incidents stemmed from a personal altercation between appellant and either the victim (Jackson) or intended victim (Borunda). The gas station incident appeared to stem from appellants anger at having to pay before pumping gasoline. The prosecutions case with respect to the gang enhancement allegations was therefore actually weak with respect to all three incidents. The jurys rejection of every gang enhancement allegation confirms this assessment and establishes that no spillover occurred with respect to the gang evidence.
None of the incidents was more inflammatory than the other two. As appellant concedes, "[a]ll three [incidents] involved violent confrontations between the assailant and employees or patrons of businesses." All involved appellant firing a gun toward other people, killing or attempting to kill some and injuring or attempting to injure others. Appellants conduct was equally egregious in each incident.
Moreover, the court instructed the jury that each count charged a distinct crime, and directed the jury to decide each count separately. (CALJIC No. 17.02.) We presume the jury followed this instruction. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)
Accordingly, the trial court properly denied appellants severance motion. Because appellant has not shown that joinder of the charges actually resulted in gross unfairness, his due process claim has no merit.
2. Denial of appellants motion to bifurcate gang enhancement allegations
Appellant also moved prior to trial to bifurcate the trial of the gang enhancement allegations as to all counts. His motion argued that he would be prejudiced by the admission of the evidence regarding crimes committed by other members of his gang that the prosecutor would introduce to prove a pattern of criminal gang activity pursuant to section 186.22, subdivision (e). The trial court denied the motion, saying that, based upon the testimony at the preliminary hearing, the gas station and Bottom Line incidents appeared to be gang-related, and the Rattlers incident had "gang implications." The court further explained that "gang evidence is relevant to all three to explain motive and background for the crimes, relevant to explain the defendants actions and intent, particularly as to why he, under the Peoples theory, was so quick to use deadly force against someone who stood up to him. In as much as the three crimes occurred within the alleged territory of the gang in question. [Sic.]"
As noted, testimony later given at trial indicated only two of the three crime scenes were within the territory of appellants gang.
Appellant contends the denial of his bifurcation motion violated due process because it permitted the prosecution to enhance its "weak eyewitness identification cases with highly inflammatory and otherwise inadmissible evidence of appellants gang membership."
A gang enhancement allegation differs from a prior conviction allegation, in that it is "attached to the charged offense and is, by definition, inextricably intertwined with that offense." (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) The need for bifurcation of a gang enhancement allegation is therefore far less than that for a prior conviction allegation. (Ibid.) The trial court thus has broader discretion in determining whether to bifurcate a gang enhancement allegation than in making the same determination regarding a prior conviction enhancement allegation. A defendant must "`clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." (Id. at p. 1051, quoting Bean, supra, 46 Cal.3d at p. 938.)
Appellant has shown neither that the trial court abused its discretion nor that the denial of the motion to bifurcate rendered his trial fundamentally unfair. As noted in the preceding section, the eyewitness identification evidence was not weak with respect to any of the three incidents. And, just as in Hernandez, appellant "himself injected his gang status into the crime[s]" at the Bottom Line when he "identified himself as a gang member and attempted to use that status" to intimidate those at the Bottom Line who had argued with him and expelled him from the club. (Hernandez, supra, 33 Cal.4th at pp. 1050-1051.) Appellants self-proclamation of his gang membership and the implicit gang menace in his simultaneous threat to kill Borunda was part and parcel of the prosecutions proof pertaining to the Bottom Line incident. Not only were the gang references part of the witnesses descriptions of what happened, they contributed to the prosecutions proof of appellants motive and identity. Appellant proclaimed himself a member of the local gang that was "fixin to take over" and threatened to kill Borunda. A short time later, someone fired numerous shots at the club. Evidence that appellant was, as he proclaimed, an admitted member of the gang that claimed that neighborhood tended to corroborate evidence that he was the person who fired the shots at the club. The gang evidence also tended to show motive, in that Borunda insulted appellants gang and others expelled him from the club, thereby necessitating retaliation to prevent damage to the gangs reputation and appellants status within the gang. In addition, evidence of appellants gang membership tended to explain the reluctance of prosecution witnesses, such as Alvarado and Timothy Jackson.
The prosecutor did not introduce any gang evidence beyond that necessary to prove the charges and gang enhancement allegations and explain witnesses reluctance to testify. Furthermore, apart from appellants statements proclaiming his gang affiliation at the Bottom Line, the gang evidence presented at appellants trial was relatively brief and limited in scope. Three police officers testified that in 1997 and on various dates in 2004, appellant admitted to the officers that he was a member of the Eight Trey gang and told them he was known as "Jay-Loc" and "J." Officer Louis Marin then testified as an expert on the Eight Trey gang. He testified the gang has about 400 documented members, and its primary activities include homicides, robberies, assaults, and narcotics sales. Marin also described the gangs hand signals and graffiti symbols. To establish a pattern of criminal gang activity, the prosecutor introduced certified records of the convictions of three Eight Trey gang members for driving a vehicle without the owners consent, carrying a loaded gun, drawing or exhibiting a gun, carjacking, evading the police, and possession of a firearm by a felon. The nature of the predicate offenses was mild in contrast to the charges against appellant and the evidence proving those charges. Marin testified that the gas station and the Bottom Line were located within the territory claimed by the Eight Trey gang. He further testified that, in his opinion, appellant was a member of the Eight Trey gang. Marin testified regarding the importance of respect to gang members, the concept of "putting in work" for the gang, and gangs attitudes toward "snitches." In response to the prosecutors three separate hypothetical questions based on the evidence regarding each incident, Marin opined that each incident was committed for the benefit of a criminal street gang.
Finally, the significance of the jurys rejection of the gang enhancement allegations as to every single count cannot be overemphasized. In the face of the "not true" findings, appellants claim that the jury was inflamed by the gang evidence is simply implausible. Accordingly, we conclude the denial of appellants bifurcation motion was not an abuse of discretion and did not violate due process.
DISPOSITION
The judgment is affirmed.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.