Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. TA092936 Ronald V. Skyers, Judge. Affirmed.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Davonte Kendre Tolfree was convicted, following a jury trial, of the attempted murders of Al Evans III and Patricia Reyes in violation of Penal Code sections 664 and 187, subdivision (a). The jury found true the allegations that appellant personally discharged a firearm in the commission of the attempted murders within the meaning of section 12022.53, subdivisions (b) through (d). The trial court sentenced appellant to 7 years to life in state prison for the attempted murder conviction of Al Evans III, plus 25 years to life for the firearm enhancement, and sentenced appellant to an identical term to be served concurrently for the conviction of the attempted murder of Patricia Reyes.
Appellant appeals from the judgment of conviction, claiming that the trial court abused its discretion in excluding three felonies from a witness's past for purposes of impeachment. Appellant further argues that the admission of gang evidence was cumulative and highly prejudicial and thus qualified as a reversible abuse of discretion on the part of the trial court. Finally, appellant contends that the jury instructions that permitted the jury to consider gang evidence to decide whether the appellant acted with the required intent was a reversible error and violated appellant's Fourteenth Amendment rights. It is claimed the cumulative effect of these errors violated appellant's Sixth and Fourteenth Amendment rights. We find the trial court did not abuse its discretion in excluding the felonies from the impeachment nor did the court abuse its discretion in allowing the admission of gang evidence. We find that there was error in the jury instructions, but that it was not a reversible error, as the specific intent requirement for attempted murder was satisfied by other facts in the case. In light of these rulings, there was no danger in the cumulative effect. The judgment is affirmed.
FACTS
On September 3, 2007, Al Evans III (hereafter Evans) was sitting on a bike in Magic Johnson Park. The park was crowded as people were celebrating the Labor Day weekend. Evans saw Tamoi Williams, appellant, Terry Archie, and an unidentified female as they drove up and got out of a car. Around this time Evans called the police from his cell phone. Appellant "flashed a pistol" at Evans before appellant, Williams, and Archie entered an apartment in the Ujima Village projects. A few minutes later the three came back outside. Without saying anything, appellant opened fire at Evans and began running towards him, causing Evans to flee into the parking lot. A bullet grazed the side of his head. Evans remained on the phone with the 911 operator throughout the incident. This tape was later played for the jury. A bullet struck Mauricio's daughter, Patricia, in the arm. Similar testimony was taken from Mauricio's wife, Magdalena Poblano Romero, and from the neighbors, Martin and Leticia Cordero. However, none of these witnesses could positively identify the shooter.
Soon after the shooting, a police cruiser arrived. Evans told Deputy Francine Vital that Davonte or "Bully" from Village Town Piru had shot at him. That night at the hospital, Detective Francis Espeleta showed Evans a six pack photographic lineup and Evans identified appellant as the shooter.
Roughly two weeks after the shooting, appellant was arrested in Stockton, California.
In October 2007, Terry Archie spoke to the police, saying that he was in Ujima Village when the shooting took place. During this discussion Archie admitted that he was "from Village Town" and the Holic Boys clique and showed Detective Espeleta his tattoos. Archie told Detective Espeleta that Tamoi Williams was also a member of Holic Boys. Archie claimed to have seen a Holic Boys tattoo on appellant. Archie explained why it was that appellant was known as "Bully." Archie continued to say that Evans had fired first and that appellant had "probably shot back." However, at trial, after listening to the tape of that interview, Archie maintained that everything he had told Detective Espeleta had been a lie and that he, Williams, and appellant were not in Ujima Village during the shooting and were, in fact, at the movies. Furthermore, Archie testified that he had not been affiliated with Village Town Piru since the 10th grade, that he did not believe either Williams or appellant were members of Village Town Piru, and that he had never heard appellant referred to as "Bully."
Detective Espeleta opined at trial, as a gang expert, that appellant was a member of Village Town Piru and Holic Boys clique. His opinion was based on his knowledge of the Village Town Piru gang and prior conversations with Terry Archie and Tamoi Williams. Following Archie's contradictory testimony, appellant's tattoos were deemed admissible as evidence. Appellant had tattoos of a U on his right shoulder and a V on his left shoulder as well as a Holic Boys tattoo on his right bicep area. Espeleta testified that such tattoos are consistent with tattoos worn by members of Village Town Piru and Holic Boys clique and discussed the ramifications of those outside the gang and clique possessing such tattoos.
DISCUSSION
I. Evans's Prior Felony Convictions
Appellant's trial counsel sought to impeach Evans with all of his five prior felony convictions of moral turpitude: (1) 1992 possession for sale of drugs; (2) a 1992 Vehicle Code section 10851 vehicle theft; (3) 1993 felony evading; (4) 1996 grand theft; (5) 1997 marijuana for sale. The trial court excluded the three oldest convictions, dating back to 1992 and 1993. Appellant contends this was an abuse of discretion and that the exclusions violated his federal constitutional rights to present a defense and to a fair trial by limiting his ability to effectively cross examine a key witness for the prosecution.
Prior felonies may be used to impeach a witness, subject to the discretion of the court. (People v. Clair (1992) 2 Cal.4th 629, 655.) The trial court's ruling must be upheld unless there is a "showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) In People v. Clair the trial court excluded a conviction 22 years old and the Supreme Court upheld this as a valid use of discretion stating that "another court might have concluded otherwise. That fact, however, reveals nothing more than that a reasonable difference of opinion was possible. Certainly, it does not establish that the court here 'exceed[ed] the bounds of reason....'" (People v. Clair, supra, 2 Cal.4th at p. 655, quoting People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
Appellant contends that the court should consider multiple factors when deciding whether to exclude prior felonies under Evidence Code section 352. The trial court excluded the prior convictions for remoteness, but appellant points out that the trial court failed to expressly consider Evans's age, the length of the sentence he served, the nature of the convictions, and his subsequent conduct. Appellant concludes that the totality of the factors required admission.
These are only factors for the judge to consider. In People v. Williams the defendant claimed the record showed the trial court's comments were too short and conclusory regarding an exhibit to show the required balancing under Evidence Code section 352. However, the Supreme Court stated that a court need not "expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code 352." (People v. Williams (1997) 16 Cal.4th 153, 213.)
Considering the repetitious nature of the felonies, the admission of two felonies of dishonesty, the remoteness of the earliest felonies, and Evans's law-abiding behavior for a period of 10 years, it cannot be said that the trial court exercised its discretion in an "an arbitrary, capricious or patently absurd manner." (People v. Jordan, supra, 42 Cal.3d at p. 316.) For this reason and since appellant was able to impeach Evans with other prior convictions, any federal constitutional error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
II. Admission of Gang Evidence
Appellant sought to exclude the photographs of the gang tattoos and the testimony of a gang expert at trial on the basis that it was highly prejudicial, cumulative, and its probative value was minimal. He claims that the admission of such evidence constitutes a violation of his federal constitutional due process rights.
In a hearing held outside the jury's presence, the trial court initially established that gang evidence would only be allowed in for purpose of establishing identity. Photographs of tattoos and details of "snitching" would not be allowed, but the trial court left open the opportunity to later bring up the tattoos, should those details become necessary. Following Terry Archie's testimony that neither he nor appellant were gang members, another hearing was held outside of the jury's presence in which the trial court admitted photos of appellant's tattoos. The trial court reasoned they were now relevant to Archie's bias and credibility. Gang evidence was not allowed to establish motive.
The overarching theme of appellant's objection to gang evidence, both at the trial court and here on appeal, was that its highly prejudicial nature far outweighed any probative value associated with it. Appellant contends that gang evidence allowed to establish identity was cumulative since Evans had already identified appellant as "Vonte" and his street name "Bully." Similarly, appellant argues that gang evidence was cumulative as to bias, given the close relationship that already established between Archie and appellant. Appellant objected to admitting photographs of his tattoos for the above basis and argued that the tattoos could not lead to any reasonable inference as to Archie's conduct in his testimony as a member of the same organization.
Gang evidence is admissible in a criminal trial if it is relevant to some material issue in the case, and if the probative value of the evidence outweighs the possibility of prejudice under Evidence Code section 352. (People v. Ochoa (2001) 26 Cal.4th 398, 438-439.) Specifically, the California Supreme Court has held that gang evidence is admissible to prove identity. (People v. Williams, supra, 16 Cal.4th at p. 193.) Also, evidence of gang membership may be admitted to show bias. (United States v. Abel (1984) 469 U.S. 45.) However, once a witness admits to being a close friend of the defendant's, potentially any evidence pertaining to gangs offered to show the witness's bias is cumulative. (People v. Munoz (1984) 157 Cal.App.3d 999, 1013.) Additionally, "'[t]he prosecution has no right to present cumulative evidence which creates a substantial danger of undue prejudice to the defendant.'" (People v. Cardenas (1982) 31 Cal.3d 897, 905, quoting from People v. De La Plane (1979) 88 Cal.App.3d 223, 242, cert. den. (1979) 444 U.S. 841 [100 S.Ct. 81, 62 L.Ed.2d 53].)
Section 352 provides: "The 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."
In favor of his position, appellant cites People v. Cardenas, supra, 31 Cal.3d 897.However, that case is distinguishable from the present case. In Cardenas, admission of gang membership and the display of gang tattoos were held cumulative of the fact that a close relationship existed between the individuals, and there was no contradictory evidence on those issues. Defendant's membership in the El Monte Flores youth gang was not in dispute. Defendant's friends who were also members did not attempt to claim that neither they nor the defendant were members. The plurality concluded that admission of these facts created a substantial danger of undue prejudice. (People v. Cardenas, supra, 31 Cal.3d 897, 903.)
In the present case, however, bias was not the only basis for admitting the gang evidence. A key witness for the defense claimed that neither he nor the defendant were members of the Village Town Piru gang or the Holic Boys clique, that appellant was not called "Bully," and that he and defendant were not in Ujima Village at the time of the shooting, in direct contradiction of an earlier, recorded interview at a police station with Detective Espeleta. Therefore, the evidence that the two belonged to the same gang was introduced to highlight inconsistencies in a witness's testimony, making it highly relevant to Archie's credibility.
"Identity of a defendant charged with a crime is the 'guts' of any prosecution for the crime charged. And although the testimony of a competent person who is the victim of a crime and who has been over a period of time in close contact with a named defendant is as close to demonstration of the fact of identity as evidence can make it, excessive care in this facet of a criminal prosecution needs no justification." (People v. Rogers (1985) 173 Cal.App.3d 205, 213.)
The only evidence of the identity of the shooter came from Evans and Archie. Evans was in an extremely emotional state when he identified appellant. Archie initially admitted being with appellant during the shooting and stated that appellant only shot back in defense, but recanted all of this at trial. On these facts, identity was still in question, augmented by the presentation of an alibi defense. Thus, police evidence that appellant was in fact Bully from Village Piru did not merely duplicate Evans's testimony and Archie's police statement, it strengthened them. (People v. Contreras (1983) 144 Cal.App.3d 749, 754 [where participant in the crime told police that fellow gang member "Fat Johnny" was involved in crime but later recanted and defendant denied that he was a gang member or was known as Fat Johnny, it was not error to introduce expert police testimony that defendant was a gang member known as Fat Johnny]; People v. Rogers, supra, 173 Cal.App.3d at p. 213 [rejecting claim that testimony by witness that defendant committed crime against her which was identical to charged crime should have been excluded because it was cumulative of victim's identification].)
Even assuming error in admitting the gang evidence to establish bias, the question of whether it was a prejudicial error remains. Given that the court correctly admitted the evidence to establish identity and to attack Archie's credibility, any error in admitting it for purposes of establishing bias could not have had any effect on the outcome of the trial. There was thus no violation of appellant's federal due process rights. (Chapman v. California, supra, 386 U.S. at p. 24.)
III. Instructional Error
Appellant claims that after ruling to exclude any gang evidence pertaining to motive, the trial court erred prejudicially in giving the instructions, which permitted the jury to consider the gang evidence to decide if appellant acted with an intent to kill, and that this error violated his federal constitutional right to due process.
If a defendant's substantial rights are affected, he retains the right to appeal despite a failure to object at trial. "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim -- at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) When it is asserted that an error has violated the U.S. Constitution, the People have the burden of proving beyond a reasonable doubt that the error did not contribute to the outcome of the case. (Chapman v. California, supra, 386 U.S. at p. 24.)
The trial court only admitted gang evidence for considerations of bias and identity, not for motive. Nonetheless, the following instructions were given to the jury in their final deliberations:
"You may consider evidence of gang activity only for the limited purpose of deciding whether:
"The defendant acted with the intent, purpose, and knowledge that are required to prove the charge;
"Or the defendant had a motive to commit the crimes charged.
"You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.
"You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
Appellant contends that the limiting instruction as given was prejudicially misleading and allowed the jury to consider gang activity in deciding whether appellant acted with the required intent to kill. Appellant further claims that the error created an unconstitutional permissive inference that he had a specific intent to kill. For these reasons appellant finds the instructional error to have contributed to the verdicts obtained.
It was an error for the trial court to submit these instructions to the jury. However, it is not a reversible error, because beyond a reasonable doubt, the error did not contribute to the verdict. The charge of attempted murder requires that the prosecution prove that it was done willfully, or with intent to kill, and that there was premeditation and deliberation. Attempted murder requires a specific intent to kill and a finding of implied malice will not suffice. (People v. Lee (1987) 43 Cal.3d 666, 670.) Rarely will a person explicitly express or state their intent to kill another. "Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killer's actions and words." (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) Firing a gun at close distance "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill." (Id. at p. 945.) Viewing the circumstances in their entirety, the evidence here supports a strong inference of intent to kill. Appellant fired multiple shots at the victim's head area, as shown by the grazing wound the victim sustained to the side of his head, while pursuing him through the park. Therefore, the error of allowing the jury to consider the gang evidence for purposes of intent is not reversible, as it is logical that the jury relied only on the facts of the case to establish intent to kill Evans.
Likewise, the Supreme Court has upheld the idea of "concurrent intent" drawn from the creation of a "kill zone" or zone of danger. (People v. Bland (2002) 28 Cal.4th 313, 329.) When the "defendant has intentionally created a 'kill zone' to ensure the death of his primary victim, [] the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim." (Id. at p. 330.) This has been found even in the instance where the shooter could not see all of his victims. (People v. Vang (2001) 87 Cal.App.4th 554, 564.) The jury reasonably could have inferred from the "kill zone" created by the multiple shots fired at Evans in a crowded park on Labor Day a concurrent intent to kill Patricia Reyes.
Additionally, "[a] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." (Francis v. Franklin (1985) 471 U.S. 307, 314-315.) The finding of the requisite intent was justified by reason by the proven facts to the jury. Thus, the instruction did not violate due process and any error was harmless beyond a reasonable doubt for the reasons discussed above.
DISPOSITION
The judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.