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People v. Shepard

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 26, 2012
B230718 (Cal. Ct. App. Jan. 26, 2012)

Opinion

B230718

01-26-2012

THE PEOPLE, Plaintiff and Respondent, v. LAMONT SHEPARD, Defendant and Appellant.

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA114263)

APPEAL from a judgment of the Superior Court of Los Angeles County, Pat Connolly, Judge. Affirmed.

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

Lamont Shepard (appellant) was convicted by a jury of first degree murder with a finding that he personally used a semiautomatic firearm. (Pen. Code, §§ 187, subd. (a); 12022.5, subd. (a).) He was sentenced to prison for 29 years to life. He appeals, contending that the trial court erred in admitting evidence about criminal street gangs. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 5:00 p.m. on August 2, 1995, 13-year-old Isunero Pounds was in front of his home, talking to a friend who was in a parked Cadillac. His mother, Rose Benson, was watching him from the front porch about 15 feet away. A brown car with at least one passenger pulled up alongside the Cadillac. The passenger in the car pointed a gun at Pounds and fired several times, killing him. The car drove away quickly.

Los Angeles County Sheriff's Detective George Betor responded to the Benson home. Benson told him that the shooter was a muscular Black male with thick ponytails. She said she could identify him.

Benson later identified appellant's photo. She was told his name and asked to attend a live lineup at the county jail. Before the lineup, she received a letter signed with appellant's name, stating, "It's all a misidentification." She also received phone calls telling her to stop cooperating in appellant's prosecution. She told Los Angeles County Sheriff's Detective Brennan about the letter and the phone calls. At around the same time, Benson's daughter was shot. Benson attended the live lineup but did not identify anyone. She told the detectives that she failed to identify appellant in order to protect her family. The case against appellant was then dismissed when the prosecution could not locate Benson or another witness to testify.

In May 1998, Los Angeles County Deputy District Attorney Gilbert Wright received a letter from appellant, admitting that he had murdered Pounds. Appellant referred to the specific number of the case that had been filed against him and was later dismissed. Wright had previously prosecuted appellant in another case. Wright turned the letter over to Detective Brennan. Detective Brennan and another detective interviewed appellant in prison. Appellant acknowledged writing the letter to Wright, and told them the details of the Pounds shooting. He said he was riding in a stolen car in "the Spook Town neighborhood." He shot at someone but did not know who it was. The detectives asked him, "What was this all about?" and appellant responded, "Just rivalry." Appellant admitted sending a letter to Benson in 1995. He also said at the time of the shooting his hair was in braids.

Nothing transpired in this case until 2010, when Los Angeles County Sheriff's Detective Purcell began reviewing it. Purcell contacted Benson, who attended a preliminary hearing in 2010 and identified appellant.

Appellant was initially charged with the murder of Pounds, two counts of attempted murder, and a criminal gang enhancement (Pen. Code, § 186.22). The gang enhancement was dismissed at the preliminary hearing after the prosecutor notified the court that he did not have the documentation regarding the predicate acts of the gang.

Prior to trial, defense counsel objected to the introduction of any gang evidence. The trial court allowed the prosecution to present the evidence to prove motive, and said it would wait to see what other evidence developed before it ruled on whether other gang evidence would be admitted to prove identity.

In her opening statement, the prosecutor stated: "In this case you will be given a glimpse of the world of criminal street gangs, and you will learn that it's a world ruled not by decency or compassion, but by violence, where lives are easily taken and lost over a misguided sense of respect. The gang that you will learn a little about is the gang that [appellant] chose to be part of, and it's a gang called Nutty Block Crips. You will learn that for members of this gang, they gain status and prestige for themselves and for their gang by committing violent acts. And the ultimate way that they gain points, so to speak, would be by murdering a rival gang member. And you will learn that in this time period one of their main rivals was a gang called Spook Town Crips. It was a territorial gang. Unfortunately for Isunero, he lived in that territory claimed by Spook Town Crips. You will learn that when it comes to killing a rival gang member, that it became such an easy feat for them, because all it takes is for them to get into a car, armed with guns, they basically go to their rivals' territory and, essentially, hunt down people who they perceive to be their rival."

Two boys, who had been walking in Pounds's neighborhood at the time of the shooting, testified that someone in a brown car fired at them, followed them to the front of Pounds's house, and fired again. They did not hear any gang names or slogans being yelled either before or after the shots were fired.

Detective Brennan testified that he was an expert in gangs and had investigated many crimes involving the Nutty Block Crips gang. He had seen appellant in the neighborhood of the Nutty Block Crips, and based on appellant's statements and his tattoos, believed appellant was a member of the Nutty Block Crips gang. Detective Brennan testified about how gang members committed shootings to enhance their reputation and the reputation of their gangs. Gang members would target people who appeared to belong to a rival gang. The Spook Town Crips were the main rivals of the Nutty Block Crips in the 1990's. The rivalry was manifested by numerous shooting incidents. The shooting of Pounds took place in Spook Town Crips's territory. Defense counsel's objections to some of Detective Brennan's testimony about gang behavior were overruled.

The jury was instructed with CALCRIM No. 1403 that evidence pertaining to street gangs could be considered only for the purpose of deciding whether appellant had a motive to commit the crime charged and could not be considered for any other purpose. The jury was told that gang evidence could not be used to conclude that appellant is a person of bad character or that he had a disposition to commit a crime. The jury also was instructed with CALCRIM No. 370 that provides the prosecution is not required to prove that the defendant had a motive; however that having a motive may be a factor tending to show appellant is guilty and the absence of a motive may be a factor tending to show appellant is not guilty.

The prosecutor argued in closing: "Another piece of corroboration in this case is the gang evidence. Now, you have to be very mindful that the gang evidence was introduced for a specific reason, and that goes towards the motive. If all I have proven to you is that [appellant] is a gang member and that he belongs to Nutty Block Crips and nothing else, please do not convict him just based on that. Evidence of his gang membership was brought in to provide you with a possible motive as to this tragedy. . . . Do you have to be convinced beyond any reasonable doubt that that was the reason why [appellant] murdered Isunero Pounds? No. Because you're actually told in one of the jury instructions that the motive component is not an element of the charge, and that the People are not required to prove to you beyond a reasonable doubt that that was the motive for the murder. However, you can consider it, because a motive may tend to show that the defendant is guilty. And that a lack of motive may tend to show that the defendant is not guilty." She referred to Detective Brennan's expertise on the Nutty Block Crips gang, and his testimony that a rivalry existed between that gang and the Spook Town Crips, and the shooting occurred within the Spook Town Crips's territory.

DISCUSSION

Appellant contends that he was prejudiced by the trial court's admission of evidence about street gangs. He argues that because the gang enhancement allegation was stricken, the evidence was not relevant to any issue before the jury. He asserts the introduction of gang evidence caused the jury to believe that he had a propensity for violence and "tipped the scales," resulting in the first degree murder conviction.

"[E]vidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative. [Citations.]

Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. [Citation.] '"[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." [Citations.]' (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; [citations].)" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168.)

Appellant explained the reason for the shooting was "[j]ust rivalry." Appellant was identified as a gang member and admitted that the shooting took place in territory of a rival gang, Spook Town Crips. The victim, Pounds, was a member of Spook Town. Thus, the gang evidence had significant probative value. In addition, the gang testimony was also relevant to explain Benson's failure to initially identify appellant at a lineup. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450.)

Because of the probative value of the evidence, its exclusion was not warranted under Evidence Code section 352. (People v. Samaniego, supra, 172 Cal.App.4th at p. 1168.) In addition, the jury was given a limiting instruction informing it that the gang evidence was relevant solely with respect to motive. We presume the jurors followed that instruction. (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)

Finally, appellant admitted to shooting Pounds because of a gang rivalry, and Benson identified him. Therefore, even assuming the gang evidence should have been excluded, the error was harmless by any standard.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J. We concur:

EPSTEIN, P. J.

WILLHITE, J.


Summaries of

People v. Shepard

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 26, 2012
B230718 (Cal. Ct. App. Jan. 26, 2012)
Case details for

People v. Shepard

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LAMONT SHEPARD, Defendant and…

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

Date published: Jan 26, 2012

Citations

B230718 (Cal. Ct. App. Jan. 26, 2012)