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People v. Williams

California Court of Appeals, Second District, First Division
Feb 17, 2011
No. B221139 (Cal. Ct. App. Feb. 17, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. No. NA076870, Mark C. Kim, Judge.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael A. Katz, Deputy Attorney General, for Plaintiff and Respondent.


MALLANO, P. J.

Defendant Eric Jerome Williams appeals from the judgment entered following a jury trial in which he was convicted of conspiracy to commit robbery and two counts of second degree robbery, with personal firearm-use and gang findings. Defendant contends the trial court erred by admitting gang evidence, even though it bifurcated the trial of the gang enhancement, and violated his confrontation right by permitting his codefendant to testify to statements made to him by a third codefendant. We affirm.

BACKGROUND

About 8:00 p.m. on December 21, 2007, two men wearing hooded sweatshirts and bandanas over their lower faces entered Vera’s Market in Long Beach. (All further date references pertain to 2007 unless otherwise noted.) One of the men was four or five inches taller than the other one. The men pointed guns at Isela Vera, who was standing by the cash register. Isela smiled at the men because she recognized them as customers and thought they were joking. Both men fired their guns at the ceiling. The shorter robber walked around to Isela’s side of the counter and demanded that she put all of the money from both drawers of the cash register into a pillowcase he had brought into the store. Isela complied. The taller robber approached two customers, Yesenia Cisneros and Bryan Lopez, and demanded their money. Cisneros said, “No.” Lopez handed the robber $20 and said, “This can’t be real.” One or both of the robbers then shot Cisneros in the abdomen and Lopez in the shoulder. Isela testified that both robbers shot Lopez and Cisneros; Isela’s 16-year-old nephew, David Vera, testified the taller robber shot them; and Lopez testified that the shorter robber shot them. The taller robber approached David and asked if he had anything. David emptied his pockets. The taller robber then demanded that David hand over his white tennis shoes. David complied, and both robbers left the store.

At trial and from photographic arrays, David identified defendant as the taller robber and codefendant Daaron Hammond as the shorter robber. David testified that he recognized defendant from a distinctive mark on his cheek. Isela selected Hammond’s photograph and another man’s (not defendant’s) from a photographic array. At the preliminary hearing, Isela identified defendant as the taller robber, but at trial she testified that she recognized defendant as a customer but was uncertain whether he was one of the robbers. At trial she identified Hammond as the shorter robber. Cisneros testified that the robber who shot her had “something” on his cheek, just beneath his eye. At the preliminary hearing, she identified defendant as the robber who shot her and Chris Gaither as the taller robber, who took the money from the register.

The two robbers got into a gray or silver 2003 or 2004 Mustang. An employee of Vera’s Market and his brother followed the getaway car in their own car and alerted passing police officers and another civilian, who pursued in his own car and wrote down part of the Mustang’s license plate. A gang detective who assisted in the investigation of the robbery “came up with a possible plate, ” which was registered to defendant.

Margaret Bradley testified at trial, and a recording of her interview with Detective Todd Johnson was played at trial. Defendant, his cousin Gaither, and Joaquin Hamilton lived in her apartment at the time of the crimes. Gaither and defendant arrived at Bradley’s apartment around 11:30 p.m. on December 21, and defendant walked in carrying a pair of white tennis shoes.

The police executed a search warrant at Bradley’s apartment. In one room they recovered a pair of white tennis shoes and a “red New York Yankees” baseball cap. David Vera identified the shoes as the ones that were taken from him during the December 21 robbery. Bradley gave the officers permission to search her car, and they found a loaded nine-millimeter handgun under the driver’s seat. Ballistics analysis established that that gun fired an expended nine-millimeter casing found inside Vera’s Market.

Johnson interviewed defendant on December 22. The initial portion of the interview was not recorded. Johnson testified that defendant gave him an alibi and said that no one else had driven his Mustang on the night of December 21. Johnson told defendant that he knew defendant was lying because they “had” his car’s license plate and knew he was involved. Defendant began to cry and said he would tell the truth. With defendant’s knowledge, Johnson recorded the remainder of the interview, which was played at trial. Defendant admitted that he participated in the December 21 robbery, his car was used as the getaway car, he was carrying the gun that was found in Bradley’s car, he fired the gun once during the robbery, he took money out of the cash register, and he took someone’s shoes after his accomplice told “the boy” to take them off. Defendant claimed he was running out of the market when he heard gunshots.

Hammond’s grandmother testified that she did not know that Hammond was involved with a gang.

Hammond testified that at the time of the robbery, he was 16 years old and had been a member of the Young Foundation Crew set of the Insane Crips gang for a year or two. He insisted he did not hang out with other members of the gang when they committed crimes and that he was not expected to commit crimes as a result of his membership in the gang. Gaither was a member of the same gang set. On the night of December 21, Gaither phoned Hammond and admitted robbing a store and shooting two customers on the way out. Gaither told Hammond to “take the rap for the shooting” because Hammond was a juvenile and would probably just go to camp, whereas Gaither was 19 and might get a life term. Hammond agreed to confess to the crimes because he was concerned that if he refused, the gang would harm him or his family. Gaither’s family was “notorious as far as people that are in the gang.” When Hammond was arrested and questioned, he repeatedly told them he did not commit the robbery, which was the truth, but after prolonged questioning, he falsely confessed, using the facts about the crimes that Gaither and the police had given him. In his statement, he nevertheless implicated Gaither. Hammond explained that he could testify truthfully at trial because his family had moved away and Gaither “already has time for something.”

Hammond testified that a week before his testimony, defendant showed, but did not give, Hammond a letter in Gaither’s handwriting. Hammond took the letter away from defendant. According to questions by Hammond’s attorney, the letter said, “I am about tired of Hammond telling people he is not taking the blame for me and he better not be telling on me.” It also said, “Tell 3 [sic] keep my name out of his mouth... and don’t try telling on me. If he does cuz no west up.” Hammond said “no west up” meant that he would know “what’s up” if he did not “take the rap.” The letter also said, “So keep C.G. out his [sic] mouth, and he better hope they don’t ever give us the same court date because I’m a [sic] punch him out.” Although the letter was marked for identification and Hammond testified about its contents, it was not admitted in evidence.

A recording of Hammond’s police interview was played at trial. In it, Hammond stated that he had been riding around in defendant’s car with defendant and Gaither, and they stopped and went into Vera’s Market to make a purchase. After they came out, defendant and Gaither proposed robbing the market. Hammond went along with the plan. Defendant and Hammond went into the market to rob it, while Gaither drove the getaway car. Hammond carried a revolver, and defendant had an “automatic.” They wore their hoods up and had on cloth masks. When they entered the market, the clerk was smiling at them, showing them a lack of respect, so they fired their guns at the ceiling. A man in the store said Hammond’s gun was not real, which angered Hammond. The man came toward Hammond and tried to take his gun. Hammond backed toward the door and fired twice toward the man. Hammond fired a total of three shots inside store, but he thought defendant fired just once.

Hammond was about five feet five inches or five feet six inches tall at the time of trial, and probably a little shorter at the time of the crime. When defendant was booked, he reported his height as five feet ten inches.

Hammond, Gaither, and defendant were jointly charged. Gaither pleaded guilty or no contest about seven months before Hammond and defendant went to trial. The trial court impaneled separate juries for defendant and Hammond and bifurcated the trial of the gang enhancement allegation against defendant. The jury convicted defendant of conspiracy to commit robbery and two counts of second degree robbery. It acquitted defendant of the attempted murder and robbery of Lopez and the attempted murder and attempted robbery of Cisneros. The jury found personal use and personal discharge of a firearm allegations (Pen. Code, § 12022.53, subds. (b) and (c)) true with respect to one of the robbery counts and a personal use of a firearm allegation true with respect to the other robbery count. In the bifurcated trial, the jury found that each of the offenses was 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. (Because defendant has not challenged the finding on the gang enhancement allegation, we do not summarize the evidence presented at the trial of that allegation.) The court sentenced defendant to 35 years in prison.

DISCUSSION

1. Admission of gang evidence

Defendant contends that the trial court violated its bifurcation order and abused its discretion by permitting defendant’s jury to hear gang evidence in the trial of the charges and firearm enhancements.

Evidence of gang affiliation and activity is admissible where it is relevant to an issue such as motive, intent, or the truth of a gang enhancement allegation. (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Gardeley (1996) 14 Cal.4th 605, 619–620.) But the trial court must carefully scrutinize such evidence because it may tend to inflame the jury. (Williams, at p. 193.) Evidence that the defendant is a gang member creates a risk that the jury will improperly infer that the defendant has criminal propensities, acted in accordance with such propensities, and is thus guilty of the charged offense. (Ibid.) Due to these potential dangers, gang evidence is admissible only if its probative value is not substantially outweighed by the risk of undue prejudice. (Ibid.; Evid. Code, § 352.)

At trial and on appeal, defendant seemingly argues that the trial court not only bifurcated trial of the gang enhancement allegation, but ruled that defendant’s jury would hear no gang evidence whatsoever until the trial of the gang enhancement allegation. No such ruling appears in the appellate record, and the trial court expressly rejected such a view in midtrial discussion with counsel: “See, this is where you are wrong, [counsel for defendant]. You think that any mention of gang [sic] just because violates the bifurcation of gang is not true [sic].”

The trial court implemented the bifurcation order by sending defendant’s jury out of the courtroom when gang evidence pertaining to Hammond was presented and rejecting the prosecutor’s attempt to introduce gang evidence as to both defendant and Hammond to show motive and identity. But the trial court denied defendant’s request to exclude his jury from the courtroom while Hammond testified. It rejected defendant’s assertion that any mention of a gang in the presence of his jury was “prejudicial under 352” because the jury would assume that defendant was one of the “other O.G.’s that put [Hammond] up to it.” The court instead ruled that defendant should object when necessary and instructed Hammond’s attorney to direct Hammond not to mention defendant’s gang membership.

On appeal, defendant first complains that his jury heard Hammond’s testimony that “he was a gang member who ‘hung out’ with other gang members[, ] including codefendant Gaither who was an especially dangerous gang member from a notorious gang family.” In actuality, Hammond did not testify that he hung out with Gaither, just that they belonged to the same gang. Defendant did not object to this testimony, nor did he object when Hammond testified that Gaither’s family was notorious. No evidence was introduced to show that Gaither “was an especially dangerous gang member.” And none of this evidence suggested that defendant was a gang member. Defendant did not show in the trial court, and has not shown on appeal, that the risk of undue prejudice to defendant substantially outweighed the probative value of the evidence.

Defendant next argues that “Hammond also testified in front of [defendant’s] jury that [defendant] and codefendant Gaither acted in concert and for the gang’s benefit to threaten codefendant Hammond’s life unless he testified in the gang’s favor.” The record contains no such testimony. The portions of the record cited by defendant pertain to Hammond’s testimony that defendant showed him Gaither’s note and he took it away from defendant. Although defendant objected to evidence of the note on the grounds of late discovery, hearsay, and foundation, he did not seek its exclusion under Evidence Code section 352. As far as questioning by Hammond’s attorney regarding the note revealed, the note made no express or implicit reference to a gang. It instead indicated that Gaither would personally retaliate against Hammond.

Similarly, defendant complains that “Hammond also testified in front of [defendant’s] jury panel that [defendant] passed notes to him from codefendant Gaither that threatened codefendant Hammond’s safety.” This claim also pertains to Gaither’s note, which Hammond testified he took away from defendant after defendant showed it to him. As noted in the preceding paragraph, defendant did not assert an Evidence Code section 352 objection to testimony regarding the note and the note itself apparently made no reference to a gang. Defendant further complains that the trial court admitted Gaither’s note. It did not. The note was marked for identification; it was not admitted in evidence.

Next, defendant complains of Hammond’s testimony about being a gang member. This testimony did not mention defendant or reflect upon him. Defendant also complains that Hammond testified that defendant “associated” with Gaither and “‘hung out’” with Hammond. Hammond did not testify that defendant associated with Gaither. On the page of the record cited in defendant’s brief in support of this argument, Hammond testified-without objection-that he saw Gaither and defendant on the day of the charged crimes. Nor did Hammond testify that he “‘hung out’” with defendant. In the portion of the record cited by defendant, the prosecutor asked Hammond about Gaither’s height and weight. Hammond said Gaither was “like six foot.” The prosecutor then asked, “And back in 2007, when you were hanging out with him, was he about the same height, like six foot?” Hammond replied, “Yes.” This testimony pertained to Gaither, not defendant. Defendant did not object to this testimony, and it pertained to neither a gang nor defendant.

Defendant also complains that his jury heard Hammond’s grandmother testify that “Hammond was in gang [sic] and gravitated toward gang activity.” Hammond’s grandmother in fact testified, without objection, that she did not know that Hammond was involved with a gang.

Next, defendant complains that the court “allowed Detective Carlos Grimaldo, who investigated the case and arrested codefendant Hammond, to testify that he was assigned to the gang enforcement section” of the police department. In actuality, Grimaldo’s involvement in this case was limited to participating in the execution of a search warrant at Hammond’s home. Before Grimaldo testified, defendant’s attorney told the court he had no problem with defendant’s jury hearing about the search of Hammond’s home. At the start of Grimaldo’s testimony, he said that he was a “Long Beach police officer, assigned as a detective to the gang enforcement section.” Defendant did not object. The participation of a gang detective in the search of Hammond’s home was later explained by Hammond’s testimony that he belonged to a gang. This testimony in no way reflected upon defendant.

Defendant next complains that Officer Victor Thrash testified that he found a red New York Yankees cap inside Bradley’s apartment. Before Thrash testified, the court and counsel discussed the subject of his testimony. Defendant’s attorney stated he had no objection to Thrash testifying about finding the Yankees cap, the gun, and the white shoes at Bradley’s residence. It was far from obvious that the cap had any gang significance, and no evidence was introduced to establish such during the first portion of the trial.

Defendant also complains that the court admitted a photograph of Gaither indicating he was in a gang. The portion of the record cited in support of this contention refers to photographs of the rooms and items seized during the search of Bradley’s residence, as to which there was no objection. It appears defendant meant to refer to a photograph of Gaither marked as a defense exhibit during defendant’s own cross-examination of Officer Thrash, then withdrawn. The photograph was then introduced by Hammond, without objection by defendant. Thrash testified, without objection by defendant, he recovered the photograph at Bradley’s home. Bradley viewed the photograph and identified the person in it as Gaither. In addition, Gaither was brought into court and viewed by both juries. The trial court informed the juries that the parties stipulated that the person they viewed was Gaither. Defendant was not depicted in the photograph of Gaither and it in no way indicated that defendant was a gang member.

The trial court’s admission of the evidentiary matters of which defendant complains neither violated the bifurcation order nor constituted an abuse of discretion.

Even if we were to conclude that the court erred by permitting defendant’s jury to receive any of the evidence of which defendant complains, we would necessarily conclude that the error was harmless. Defendant confessed to committing the robberies, David Vera identified defendant as the taller robber, Bradley testified that defendant walked into her apartment carrying some white tennis shoes, David Vera identified the white shoes recovered from Bradley’s apartment as those stolen from him during the robbery, and the spent casing found at the crime scene matched the gun that defendant admitted using during the robbery. It is not reasonably probable that defendant would have obtained a more favorable result if his jury had not heard any or all of the matters of which he now complains.

2. Admission of Gaither’s statements through Hammond’s testimony

Citing People v. Aranda (1965) 63 Cal.2d 518 (Aranda), abrogated by California Constitution, article I, section 28, subdivision (d), as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465; Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620] (Bruton); and Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] (Crawford), defendant contends that the trial court violated his constitutional right of confrontation by permitting Hammond to testify about Gaither’s statements and written note.

In Aranda, supra, 63 Cal.2d 518, the California Supreme Court held, as a rule of practice, that in a joint trial in which the prosecution seeks to introduce an extrajudicial statement by one defendant that implicates a codefendant, the trial court must sever the trials or exclude the statement unless it can delete every part of the statement implicating the codefendant without prejudicing the declarant. (Id. at pp. 530–531.) In Bruton, supra, 391 U.S. 123, the United States Supreme Court concluded that introduction in a joint trial of a defendant’s extrajudicial statement that implicates a codefendant violates the codefendant’s federal constitutional right of confrontation. (Id. at p. 137.) Where the codefendant whose extrajudicial statement is admitted testifies at trial, no confrontation violation occurs. (Nelson v. O’Neil (1971) 402 U.S. 622, 626–627 [91 S.Ct. 1723].)

Crawford, supra, 541 U.S. 36, held that with respect to testimonial evidence, such as statements to the police, the Confrontation Clause demands both unavailability of the witness and a prior opportunity for cross-examination. (Id. at p. 68.) Otherwise, such testimonial hearsay is inadmissible.

On appeal, defendant specifically complains of Hammond’s testimony that Gaither told him that defendant took money out of the cash register. On direct examination, Hammond was asked, “Did Chris Gaither give you any details on how the robbery took place?” Hammond replied, “Told me that when they went in the store, that they went in there, and I guess the lady started laughing at them, so they shot in the air. And he said that Eric had got the money out of the register.” The trial court sustained defendant’s hearsay objection, struck the portion of Hammond’s answer dealing with defendant, and admonished the jury to “act as if you did not hear that.” The court then admonished Hammond “to tell the court what Mr. Gaither said about him, no one else.” Even if defendant’s hearsay objection preserved his confrontation claims, the court took every step to correct the error by striking the testimony and admonishing the jury. Defendant thereafter sought a mistrial based, in part, upon the stricken testimony, but on appeal he does not challenge the trial court’s denial of that motion. Notably, in defendant’s confession, which was admitted at trial, he admitted that he took money out of the cash register.

Defendant next complains that Hammond testified that defendant “passed codefendant Hammond a threatening note” from Gaither. As previously addressed, Hammond did not testify that defendant “passed” him the note. Instead, defendant showed him the note and Hammond took it away from defendant. This testimony pertained to conduct by defendant and by Hammond, not to statements by Gaither inculpating defendant. Defendant’s challenge has no greater merit if it was intended to pertain to the statements Gaither made in the note, as the note was introduced for a nonhearsay purpose of showing that Hammond falsely told the police he participated in the crimes because he was pressured and intimidated by Gaither. The confrontation clause does not restrict the introduction of out-of-court statements for nonhearsay purposes. (Crawford, supra, 541 U.S. at p. 59, fn. 9; People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6.) In addition, because neither defendant’s conduct regarding the note nor the contents of the note inculpated defendant, it created no Aranda-Bruton problem.

Defendant also complains that Hammond was allowed to testify that Gaither told him the facts of the robbery and pressured him to claim responsibility for the robbery. This testimony by Hammond did not inculpate or even mention defendant, and thus created no Aranda-Bruton problem. To the extent defendant’s argument relies upon inferences from other evidence introduced at trial to make Hammond’s testimony regarding Gaither’s statement reflect upon defendant, this also fails to create an Aranda-Bruton problem. (Richardson v. Marsh (1987) 481 U.S. 200, 208 [107 S.Ct. 1702].) Hammond’s testimony also created no Crawford issue because it was admitted for a nonhearsay purpose of showing that Hammond falsely told the police he participated in the crimes because he was pressured and intimidated by Gaither.

Even if we were to conclude that one or more of the matters raised on appeal violated defendant’s right of confrontation, we would necessarily conclude that the error was harmless. Violations of an accused’s confrontation rights are subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824], that is, the error is harmless if it appears beyond a reasonable doubt that it did not contribute to the jury’s verdict. (People v. Geier (2007) 41 Cal.4th 555, 608; Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 [106 S.Ct. 1431]; Harrington v. California (1969) 395 U.S. 250, 254 [89 S.Ct. 1726].) Here, defendant confessed to committing the robberies, David Vera identified defendant as the taller robber, Bradley testified that defendant walked into her apartment carrying some white tennis shoes, David Vera identified the white shoes recovered from Bradley’s apartment as those stolen from him during the robbery, and the spent casing found at the crime scene matched the gun that defendant admitted using during the robbery. Given the extremely strong evidence against defendant, any violation of his right of confrontation was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

We concur: ROTHSCHILD, J., CHANEY, J.


Summaries of

People v. Williams

California Court of Appeals, Second District, First Division
Feb 17, 2011
No. B221139 (Cal. Ct. App. Feb. 17, 2011)
Case details for

People v. Williams

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERIC JEROME WILLIAMS, Defendant…

Court:California Court of Appeals, Second District, First Division

Date published: Feb 17, 2011

Citations

No. B221139 (Cal. Ct. App. Feb. 17, 2011)