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People v. Withers

Court of Appeals of California, Second Appellate District, Division Seven.
Nov 19, 2003
No. B162764 (Cal. Ct. App. Nov. 19, 2003)

Opinion

B162764.

11-19-2003

THE PEOPLE, Plaintiff and Respondent, v. THORNTON WITHERS, Defendant and Appellant.

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Scott A. Taryle, Deputy Attorney General, for Plaintiff and Respondent.


A jury convicted appellant, Thornton Withers, of one count of assault with a firearm.

He received a sentence of 30 years to life as a third strike offender. He contends his conviction must be reversed because the trial court erred in ruling the victims prior testimony was admissible for its truth as inconsistent statements; the prosecutor committed misconduct; the court erred in admitting irrelevant gang expert testimony; and the court erred in finding he had failed to show good cause to warrant granting his Pitchess motion. We find no reversible error. Accordingly, we affirm.

Penal Code section 245, subdivision (a)(2).

Pitchess v. Superior Court (1974) 11 Cal.3d 531.

FACTS AND PROCEEDINGS BELOW

On February 16, 2002, then 12-year-old Tarrence Thenarse went to a party held at a housing project known as the Blue Gates apartments. He left without his mothers permission. Tarrences mother sent his then 16-year-old sister, Bridgette Bullard, to find Tarrence and bring him home.

Bridgette arrived at the party between 9:00 and 10:00 p.m. She saw between 40 to 50 people at the party inside and outside the apartment. Most of the people were teenagers. While standing outside with some of her friends, Bridgette saw three or four people playing a dice game. Appellant was one of the players. She recognized appellant because she had seen him around the neighborhood. She had also seen him on prior occasions in the local liquor store and at the grocery store.

Appellant got into an argument about money with one of the young dice players. Appellant accused the young boy of cheating. Appellant hit the boy. The boy ran into the apartment for help as appellant yelled after him, "Tell them Taco did it."

A few minutes later an older boy around appellants size and age came out of the apartment with about 20 of the partygoers. The older boy said something like, "You mess with my homeboy?" Appellant walked away. A crowd of people, including Tarrence, left the party and chased after him. Appellant ran into one of the apartments. Moments later a woman stepped outside the apartment and asked the crowd, "Whos messing with my babys daddy?"

Bridgette heard three or four shots. She then saw appellant come out from around the apartment building holding a gun in his hand. He continued shooting from a position a few feet from where the woman had stood while yelling at the crowd about "messing with her babys daddy." Bridgette believed she heard more than ten shots altogether. While shooting, appellant had on the same blue and white checkered shirt he had on while playing dice outside the party.

Tarrence and several others had already turned around to start walking back to the party. Once they heard the shots, he and the others started running. One of the shots hit Tarrences lower leg. He fell to the ground. He did not see the shooter.

Bridgette ran into a nearby apartment with some of her friends. When she heard her brother had been shot she called their mother but did not go outside to be with Tarrence.

Los Angeles Police Officer Andres Dorcas and his partner Officer Massey responded to a call about shots fired at the Blue Gates apartments shortly before 10:00 p.m. When they arrived Tarrence was on the ground surrounded by approximately 100 people. The officers perceived the crowd as hostile and called for additional officers. Paramedics waited for the crowd to be controlled before they went into the complex to assist Tarrence. Eventually paramedics took Tarrence to the hospital. A bullet had shattered a bone in his left leg and he had to wear a cast for two months. At the time of trial he still had visible scars from the bullet entry and exit wounds.

Officer Dorcas and his partner attempted to interview Tarrence at the hospital. Tarrence was not particularly cooperative. He told the officers he attended a party, went outside to watch a fight, heard gunshots, walked away, turned around and saw a black man, 20 to 25 years old, shooting a gun.

The next day Bridgette told their mother she saw who shot Tarrence and the persons name was "Taco." Their mother notified the police who arranged to interview Bridgette the next day.

Investigating Officer Detective Gamino asked Christian Mrakich of the Los Angeles Police Departments gang investigation unit if he knew of anyone who had a street moniker of "Taco." Mrakich knew of two persons who called themselves "Taco." One was a Hispanic male who the officer believed was either deceased or incarcerated. Appellant, who is Black, and was then 24 years old, also went by the street moniker "Taco." The officer gave Detective Gamino appellants name and photograph.

Based on this information Detective Gamino prepared a "six-pack" photo array which included a photo of appellant, but not the one Officer Mrakich had provided. Bridgette identified appellant from the photograph as the person who got into a fight with the boy during the dice game and identified him as the shooter. Bridgette provided a written statement with her identification of appellant. Bridgette stated: "The reason I picked this picture is because he looked like the guy I seen the night of the party, he also assembles [sic] the man I seen in the dark. Also, because I have seen him at a liquor store, and while visiting a family member in the same housing he lives in. When I seen the victim [sic] at the party, I seen him holding the gun. Also I seen him when he hit the other little boy before the shooting started, and he also was the one who said, `Tell him Taco did it."

Bridgette identified appellant as the shooter at his preliminary hearing. However, two weeks after the preliminary hearing Bridgettes mother called the district attorneys office and the public defenders office to tell them Bridgette no longer wanted to testify. Bridgette told a defense investigator she had made a mistake. Bridgette thought if she claimed she had made a mistake she would not have to testify again. She did not want to testify "because [she] felt uncomfortable about testifying when his family members were in the courtroom."

Sometime during or after the preliminary hearing Bridgette, Tarrence and their mother learned their family had a familial connection of sorts to appellants family. Bridgette claimed this was not what was bothering her and also claimed she was not scared to testify. Bridgette explained she was simply not comfortable "telling with his [appellants] family in here." Nevertheless, she testified at appellants first trial, and at this, his second trial "[b]ecause that is the truth. That is what I seen, and that is who I seen, and I told what I seen."

Kathryn Wooten is Bridgettes and Tarrences mother. At the time of the shooting she was getting ready to go to Wal-Mart to work the late shift. When she received Bridgettes phone call she instead went to the Blue Gates apartments. After seeing Tarrence at the hospital she went to work. When she came home the next morning Bridgette told her she had seen the shooting and the shooters name was "Taco."

At appellants preliminary hearing she saw appellants brother. She recognized him as the person who had had a long-term relationship with a friend she considered her sister and as the man who had fathered her friends child. At the conclusion of the preliminary hearing Ms. Wooten told a probation officer she believed appellant had not shot her son intentionally and expressed the wish the court show leniency to appellant. Ms. Wooten explained she was motivated to make these statements on appellants behalf because of the recently discovered family connection and because she did not like to see a young Black man go to jail for a long time.

Ms. Wooten explained she contacted the district attorneys office and public defenders office at Bridgettes request. Bridgette originally explained she was no longer 100 percent sure of her testimony and no longer wanted to testify. Bridgette was anxious about testifying "[t]o the point of crying." Ms. Wooten stated she learned for the first time at trial Bridgette wanted to change her statements because she was afraid. Ms. Wooten noted they lived near Grape Street gang members. She further noted testifying against a gang member is "a no-no," regardless of the area.

Appellant presented affirmative defenses. Appellant and one of his friends testified to an alibi. Appellants family members presented evidence tending to show Ms. Wooten and her children had fabricated the entire story against appellant as a means to extort money from his father and brother.

Appellants mother, Carolyn Carter, has known Ms. Wooten since the early 1970s. Carters granddaughter and Bridgette are cousins. Mrs. Carter testified Ms. Wooten and her children were not afraid of appellants family, and instead enjoyed a comfortable friendly relationship. Mrs. Carter recalled that sometime after the preliminary hearing, and before the first trial, some of the young people from their two families went to the movies together, chauffeured by appellants father.

Appellants father, Robert Withers, remembered Ms. Wooten from years ago when she used to flirt with him. He had not seen her in years before seeing her at appellants preliminary hearing. They talked for a long time and exchanged telephone numbers.

As the parents were talking, Tarrence approached appellants brother Kelvin Carter and pulled him to the side. Tarrence told Kelvin, "You give me a thousand dollars, I will get up there and tell the truth, and I will just make this thing disappear." Kelvin refused and told Tarrence to deal with his father. Kelvin motioned to his father to come over. Tarrence told Mr. Withers if he gave him $2,500, he, Tarrence, would make the case "disappear." Mr. Withers said he could not get that amount of money right away and told Tarrence he would have to think about it.

According to Mr. Withers, soon thereafter he and Ms. Wooten started seeing each other and their friendship evolved into a sexual relationship. He was often at Ms. Wootens house and sometimes drove her to work. He described the interior of her home. He stated he never threatened Ms. Wooten or her children. He believed Ms. Wootens children seemed comfortable around him.

According to Mr. Withers, Ms. Wooten asked him for $1,000 to help with household and other expenses after one of the court hearings. Ms. Wooten told him if he paid her the money they would stop playing games and tell the truth about the case against his son. He did not give Ms. Wooten or her son any money. However, he did once drive all the children to the movies, and he did buy Tarrence a pair of Nike Air tennis shoes after the preliminary hearing. Mr. Withers admitted having several prior felony convictions.

Ms. Wooten denied having a relationship with Mr. Withers and denied she had ever asked him for money. Bridgette testified she was not even aware of the relationship Mr. Withers claimed to have with her mother and stated she had never seen him at her home. Bridgette also denied Mr. Withers had ever taken her and her girlfriends to the movies.

Tyrine Martinez is appellants friend. Martinez also lived at the Blue Gates apartments a building or so away from appellants girlfriends apartment. On February 16, 2002, appellant came over to his apartment between 3:00 and 4:00 p.m. to play video games. They twice went out to go to the liquor store but both times returned to Martinezs apartment. Appellant finally left around 10:00 to 10:30 p.m. During the evening Martinez noticed music playing somewhere but did not see a crowd of people in the courtyard and did not hear shots fired.

Appellant testified in his own defense. In the morning of February 16, 2002, he had been at his mothers house. He returned home to his girlfriends apartment at the Blue Gates apartments around 3:00 p.m. He then went to Tyrine Martinezs apartment. He knew there was going to be a party at the apartment that evening but he did not attend. He and Martinez played video games and they went to the liquor store a few times during the course of the day. He left Martinezs apartment around 10:00 p.m. Appellant met up with his friends Aaron Blalock, Bob Tonica and Johnny Gladden and stayed with them until 11:00 p.m. He then returned to his girlfriends apartment.

Appellant had originally agreed to chaperone the party at the Blue Gates apartments. He later learned people from "Peter Rose," an offshoot of the Grape Street gang, would be at the party and decided not to attend. Appellant denied being at the party, denied playing dice outside the party, denied saying, "Tell them Taco did it," and denied shooting a gun. On the other hand, appellant acknowledged he was an active member of the Grape Street gang and went by the moniker "Taco." He also acknowledged he had been convicted in 1996 of two counts of second-degree robbery and in 2002 of felony possession of cocaine.

An information charged appellant with one count of assault with a deadly weapon. The information further alleged appellant personally inflicted great bodily injury, had personally used a firearm and had previously been convicted of two counts of robbery within the meaning of the Three Strikes law. After a first jury trial ended in deadlock, a second jury found appellant guilty of assault with a firearm, found the gun use enhancement allegation true, but found the great bodily injury allegation not true. In a bifurcated proceeding the trial court found the prior conviction allegations true. The court sentenced appellant to 25 years to life plus five years. This appeal followed.

Penal Code section 245, subdivision (a)(2).

Penal Code section 12022.7, subdivision (a).

Penal Code sections 12022.5, 1192.7 and 667.5, subdivision (c).

Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).

DISCUSSION

I. THE TRIAL COURT PROPERLY ADMITTED TARRENCES PRIOR INCONSISTENT STATEMENTS.

Appellant contends the trial court prejudicially erred in admitting statements Tarrence made at the preliminary hearing and at the first trial for their truth as inconsistent statements.

In the current trial Tarrence testified when he heard the argument over the dice game he ran outside the apartment with everyone else to watch the confrontation. The prosecutor asked Tarrence what he saw when he got outside. Tarrence replied, "Everybody started chasing somebody—chasing somebody." The prosecutor asked Tarrence whether the person was in the courtroom. Tarrence said "no," he was sure the person was not in the courtroom. Tarrence later stated he "didnt even see the man."

The prosecutor proposed to impeach this testimony with Tarrences statements from prior proceedings. At side bar defense counsel objected on the ground the prosecutor had not yet laid a sufficient foundation for the impeachment evidence, and in addition, claimed the prosecutor had to first permit the witness to read his prior testimony. The court overruled defense counsels objections.

Tarrence testified he remembered the prosecutor asking him in July (the prior trial) whether he saw appellant when he ran out of the apartment to witness the confrontation over the dice game. Tarrence stated he remembered and testified he had answered "no," he had not seen appellant outside the party. The prosecutor then read a portion of Tarrences testimony from the first trial as follows:

"`Question: When you came out of the house did you see Mr. Withers?"

Tarrence broke into the prosecutors reading and answered, "no." The prosecutor explained he was reading Tarrences testimony from the prior proceeding in July and began again:

"`Question: When you came out of the house, did you see Mr. Withers?

"`Answer: Yes.

"`Question: And where did you—and how far away from Mr. Withers were you standing?

"`Answer: Like 20 feet away from him."

Tarrence repeated in his current testimony he had not seen appellant and claimed he "got mixed up back then."

The prosecutor then asked Tarrence whether he remembered being asked the identical question in May (the preliminary hearing). Tarrence stated he recalled being asked the question but stated he could not remember how he had responded. The prosecutor proposed to read into the record a portion of Tarrences testimony from the preliminary hearing. Defense counsel objected on the ground Tarrence had not expressed an inability to recall. The court overruled counsels objection.

The prosecutor then read a portion of Tarrences testimony from the preliminary hearing as follows:

"`Question: Did you come outside?

"`Answer: When the whole crowd was running outside, I was running with them.

"`Question: So you were running with the big crowd?

"`Answer: Yes.

"`Question: What happened?

"`Answer: He, Taco, the man right there [indicating the defendant], ran to the house, I guess; and I was turning around, walking away; and I was in the back of the crowd.

"`Question: When you said "Taco," can you point to the person you are referring to."

Defense counsel interrupted to object on the grounds reading his prior testimony into the record was an inappropriate method to refresh the witnesss memory. The court overruled defense counsels objection.

The prosecutor resumed reading Tarrences prior testimony: "`Question: When you said "Taco," can you point to the person you are referring to.

"`Answer: And you pointed indicating to [sic] the defendant, Mr. Withers."

Tarrence testified he recalled giving this earlier testimony identifying appellant as the man the crowd chased into the apartment but claimed his testimony was based on what other people told him. He stated he had not personally seen the person. Tarrence later denied ever seeing appellant before and denied knowing any of appellants family members.

Evidence Code section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770."

Evidence Code section 770 provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:
"(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or
"(b) The witness has not been excused from giving further testimony in the action."

"A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770. The `fundamental requirement of section 1235 is that the statement in fact be inconsistent with the witnesss trial testimony. (People v. Sam (1969) 71 Cal.2d 194, 210.) Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witnesss prior statement describing the event. (People v. Green (1971) 3 Cal.3d 981, 988.) However, courts do not apply this rule mechanically. `Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness prior statement [citation], and the same principle governs the case of the forgetful witness. (Ibid.) When a witnesss claim of lack of memory amounts to deliberate evasion, inconsistency is implied. (Id. at pp. 988-989.) As long as there is a reasonable basis in the record for concluding that the witnesss `I dont remember statements are evasive and untruthful, admission of his or her prior statements is proper. (People v. OQuinn (1980) 109 Cal.App.3d 219, 225.)"

People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220, footnote omitted [preliminary hearing testimony should not have been admitted because witnesss expression of uncertainty was the same as she expressed at the prior proceeding]; see also, People v. Ervin (2000) 22 Cal.4th 48, 84-85 [witnesss testimony was properly impeached with her prior testimony because the trial court correctly found her claimed memory loss was a deliberate evasion].

Appellant argues Tarrences testimony in the current trial was not inconsistent in fact. In the current trial he denied seeing the person chased by the crowd and in his prior testimony he testified he saw appellant when he ran outside the party to witness the argument over the dice game. Appellant claims admitting the prior testimony thus gave the jury the inappropriate impression the court and prosecutor had knowledge from outside the record the person the crowd was chasing was appellant.

Even assuming the prosecutor provided the jury with Tarrences prior testimony somewhat prematurely when he had not yet denied knowing it was appellant the crowd chased into the apartment, it is immaterial because he so testified very shortly thereafter. In any event, Tarrence had not yet been excused, was still on the stand, and had the opportunity to explain or deny his earlier inconsistent statements.

As his testimony developed Tarrences statements he did not see appellant at all the night of the shooting, and did not know who the person was the crowd chased into the apartment, were in fact inconsistent with his prior testimony stating he saw appellant during the alternation over the dice game and his prior testimony identifying appellant as the person the crowd chased away. In addition, Tarrences current denials of only having seen "someone" being chased, and not seeing appellant at all that night, and never having seen appellant before, suggest his responses were deliberately evasive, warranting admission of the impeachment evidence. "Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness prior statement . . . ."

People v. Green (1971) 3 Cal.3d 981, 988. That this rule also happens to apply to a deliberately forgetful witness does not mean the rule applies exclusively to a claimed memory loss amounting to deliberate evasion.

In short, we find no error.

II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ADMITTING EXPERT GANG EVIDENCE FOR THE LIMITED PURPOSE OF ESTABLISHING IDENTITY AND FOR ITS RELEVANCE IN WEIGHING THE CREDIBILITY OF THE WITNESSES.

Appellant argues the trial court erred in admitting expert gang testimony. He contends there were no gang elements to the shooting and thus admission of gang evidence was more prejudicial than probative and should have been excluded for all purposes.

In a pretrial hearing the prosecutor informed the court appellant allegedly hit a young boy after the argument over the dice game at the party and when the boy went for help stated, "Tell them Taco did it." The prosecutor stated he proposed to call Officer Mrakich as a gang expert who would testify appellant belonged to the Grape Street gang and went by the moniker of "Taco." He explained the officers testimony would be relevant and probative on the issue of identity.

Defense counsel asked why the prosecutor proposed to call Officer Mrakich when Officer Plugge had had more recent contacts with appellant and had testified in the prior proceedings. The prosecutor explained Officer Plugge was then on family leave and unavailable as a witness. Defense counsel objected because Officer Mrakich had had no personal contact with appellant in this case, his latest contact with appellant was 1989, and the moniker "Taco" was so common its limited probative value to prove identification was substantially outweighed by the danger of undue prejudice from the gang evidence. Defense counsel argued a gang expert was unnecessary and suggested the prosecution call in people from appellants neighborhood to testify they knew appellant by his nickname of "Taco" instead. Defense counsel argued, "There are no gang elements to this shooting. They can bring in people from the neighborhood. They dont need a gang officer. That could be the name his mother calls him by, so I say it is highly prejudicial."

The trial court noted these matters went to the weight rather than the admissibility of the identity evidence. The court ruled it would allow the officers testimony for the limited purpose of proving identity only. The court made it clear it would not permit a wide-ranging discussion about gangs in general, or this gang in particular. Defense counsel stated, "Maybe we will offer a stipulation" appellant was known by the name "Taco." The court commented a stipulation would be acceptable but it was up to counsel, not the court, to arrange.

There is no evidence defense counsel ever proposed such a stipulation.

After several of the prosecution witnesses had testified, the parties revisited the issue of Officer Mrakichs proposed gang testimony. The trial court ruled, assuming the officer was qualified to testify as an expert, then as an expert he could give his opinion and could identify the types of materials he relied on in forming his opinion, but could not divulge the contents of those materials, at least on direct examination.

In three pages of testimony, Officer Mrakich described his qualifications as a gang expert and gave the names of the various gangs who claimed and coexisted in the general area, and specifically in the area of the Blue Gates apartments. Officer Mrakich testified the Grape Street gang was at the border of this general territory.

Bridgette testified it took between 30 to 40 minutes to walk to the party from her house.

Officer Mrakich then testified he had minimal involvement in the present case. Detective Gamino asked him if he knew of a person who went by the street moniker of "Taco." He provided Detective Gamino with appellants given name and a photograph of appellant and stated he was aware appellant was a member of the Grape Street gang. The officer also knew of a Hispanic gang member who went by the moniker "Taco" who the officer believed was either dead or incarcerated. From a review of computerized criminal history, field contact cards and old gang files, Officer Mrakich determined the most recent indication appellant was a member of the Grape Street gang was from 1997.

During the officers testimony the court interrupted to tell the jury, "Evidence concerning this witness testimony is relevant for two purposes, and two purposes only: one, whatever light it might shed on the identity of the individual who might have done the shooting, and any shooting you are to draw that conclusion, what affect it might have on the witnesses who might have testified; and the existence of a gang and how that affects the credibility in the gang. [¶] The fact that Mr. Withers was or was not a gang member is not an issue and is not otherwise relevant."

Appellant contends the trial court abused its discretion by admitting gang evidence for any purpose. He argues the crime was not gang related or motivated and any other witness could have testified appellant used the nickname "Taco." He also argues the gang evidence lacked probative value to assist the jury in judging and weighing the relative credibility of the witnesses. He claims this is so because there was no evidence appellant had actually attempted to suppress evidence, or had personally intimidated witnesses, or had personally promised gang members would retaliate against any witness who testified against him. Accordingly, he argues, the evidence should have been excluded under Evidence Code section 352 as more prejudicial than probative.

Evidence Code 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."

The Supreme Court has recognized "admission of evidence of a criminal defendants gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. (People v. Champion (1995) 9 Cal.4th 879, 922, citing People v. Pinholster (1992) 1 Cal.4th 865, 945.)" For this reason gang evidence "should be carefully scrutinized by the courts." Gang evidence is nevertheless "admissible when relevant to prove identity or motive, if its probative value is not outweighed by its prejudicial effect. [Citation.]" We review the trial courts evidentiary ruling for abuse of discretion.

People v. Williams (1997) 16 Cal.4th 153, 193.

People v. Carter (2003) 30 Cal.4th 1166, 1194.

People v. Carter, supra, 30 Cal.4th 1166, 1194.

People v. Carter, supra, 30 Cal.4th 1166, 1194; People v. Champion (1995) 9 Cal.4th 879, 923.

We find no abuse. Identity was the most crucial issue in the case. The person who instigated the argument outside the party by hitting the young boy, who was chased by the crowd and into an apartment, and who reappeared moments later from the same area firing the gun had identified himself only by his street moniker of "Taco." It was thus necessary for the prosecution to present evidence appellant used the moniker "Taco," to establish at least circumstantially he was the person who yelled, "Tell them Taco did it," and the person who moments later started firing his weapon. Thus, evidence showing appellant was known within the local Grape Street gang as "Taco" tended logically to prove appellants identity as the shooter.

This evidence was also relevant to explain why prosecution witnesses were reluctant to testify. This in turn assisted the jury in weighing the relative credibility of the witnesses—another material issue at this trial. Appellant attacked Bridgettes credibility because of her failure to come forward at the scene of the crime, her delay in admitting she had seen the shooter, and her statements to the defense investigator after the preliminary hearing she had made a mistake and was no longer 100 percent sure of her testimony. Based on these perceived flaws appellant urged the jury to find Bridgette had fabricated her testimony.

The jury also heard evidence Tarrence was reluctant to provide any information to the police at the hospital, other than to say the shooter was a Black male, between 20 and 25 years old. In addition, they heard his conflicting and varying accounts of what he had witnessed the night of the shooting. Because these were the only percipient witnesses, and because their testimony conflicted with the defense theories of alibi and recent fabrication, it was important for the jury to learn of all relevant factors bearing on their testimony.

Contrary to appellants argument it was not necessary to show he personally threatened the witnesses, or personally attempted to suppress evidence, before gang evidence bearing on a witnesss credibility became admissible. "`"Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. (Evid. Code, § 780; People v. Warren (1988) 45 Cal.3d 471, 481.) Testimony a witness is fearful of retaliation similarly relates to that witnesss credibility and is also admissible. (People v. Malone (1988) 47 Cal.3d 1, 30.) It is not necessary to show threats against the witness were made by the defendant personally, or the witnesss fear of retaliation is directly linked to the defendant for the evidence to be admissible (People v. Green (1980) 27 Cal.3d 1, 19-20 [testimony witness was afraid to go to jail because defendant had friends there relevant to witnesss credibility].)" (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.) (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.)"

People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450.

In the present case, the trial court admitted the gang evidence as relevant and probative on the witnesses credibility. This purpose is thus distinguishable from the situation in which the prosecutor instead seeks to prove a defendants consciousness of guilt, as appellant correctly points out, does require evidence the defendant or someone acting on his behalf has threatened witnesses to prevent them from testifying.

See, e.g., People v. Hannon (1977) 19 Cal.3d 588, 599; People v. Terry (1962) 57 Cal.2d 538, 565-566.

In any event, appellant testified on his own behalf at trial and admitted his gang membership. As he had at the prior trial, appellant testified he was a member of the Grape Street gang and further testified his moniker was "Taco." Thus, the limited gang evidence in this case was at least as relevant, probative and admissible to judge the credibility of his own testimony, as it was to judge the prosecution witnesses testimony.

In sum, we find no error.

III. APPELLANT HAS FAILED TO ESTABLISH THE PROSECUTOR COMMITTED MISCONDUCT.

Appellant contends the prosecutor committed prejudicial misconduct by allegedly insinuating appellant had intimidated prosecution witnesses and by allegedly insinuating appellants family members had bribed the prosecution witnesses.

To recall, on direct examination Tarrence denied seeing the shooter, denied seeing appellant outside the party and denied having ever seen appellant before. His testimony was impeached with his inconsistent testimony given at the preliminary hearing and at the first trial. On redirect examination, the prosecutor explored the possible reasons why Tarrences testimony had changed at this trial. The prosecutor asked Tarrence whether he was familiar with the Grape Street gang. He answered, "yes," without objection. The prosecutor then asked whether there were people at his school who belonged to the Grape Street gang. Appellant objected to the question as irrelevant and requested an offer of proof. The court overruled the objection and Tarrence answered he did not know. The prosecutor next asked whether there were people at the party who belonged to the Grape Street gang. Again Tarrence answered he did not know. Tarrence also testified he did not know whether appellant was a member of that gang, and further stated he would not be scared to testify against someone who belonged to the Grape Street gang.

Appellant claims these questions were irrelevant in the absence of evidence appellant had personally threatened Tarrence.

The next alleged instance involved Bridgette. She testified about how after the preliminary hearing she had her mother contact the district attorneys office and the public defenders office to inform them she wanted to retract her testimony, claiming she had made a mistake. She thought by saying she had made a mistake she would not have to testify again. Bridgette stated she felt "uncomfortable about testifying when his family members were in the courtroom." The prosecutor asked whether appellants family had been present in the courtroom when she testified at the preliminary hearing. Appellant objected. At a side bar conference the court ruled the prosecutor could ask Bridgette whether anything in the courtroom bothered her. Before the jury, Bridgette answered "yes," appellants family was in the courtroom and their presence made her uncomfortable. She testified she was not scared, just uncomfortable testifying while his family members were in the courtroom. Bridgette explained she was not uncomfortable testifying in the current trial because none of appellants family members were then present.

The next instance of alleged insinuations of intimidation involved Ms. Wooten. The prosecutor asked Ms. Wooten whether Grape Street gang members lived in the area where she lived. She answered, "Yes." The prosecutor then asked whether there was some street "code" against coming into court to testify against a gang. Ms. Wooten answered, "Thats a no-no." The trial court overruled appellants objections of speculation and lack of foundation. Ms. Wooten then explained what she meant by the phrase, stating "I mean, you dont come to court on gang members. Thats anywhere."

After the testimony the court admonished the jury as follows: "Ladies and gentlemen, this testimony is not being offered to prove the truth of the matter, again, as it might affect the testimony being offered in court."

In closing arguments the prosecutor discussed the quandary Ms. Wooten found herself in after learning her son had been shot and after learning her daughter identified the shooter as "Taco." The prosecutor argued: "The day after the shooting, the mother is confronted with the situation: What is she going to do? Is she going to call her children into court, which they do not want to do and she certainly doesnt want to do? Is she going to have them testify, and are they going to testify against a gang member who lives in the same community? Is she going to have them do all of these [sic] when the only injury that happened, although it was significant was a shot through her sons leg? Is she going to go through all of that?"

Appellant claims these questions and argument were improper because they baselessly insinuated the prosecution witnesses faced retaliation for any testimony against appellant. He argues only evidence he actually attempted to threaten witnesses or suppress evidence is admissible to infer a consciousness of guilt. He thus claims these implied charges of intimidation were inadmissible and evidence of prejudicial prosecutorial misconduct.

Citing People v. Hannon, supra, 19 Cal.3d 588, 599; People v. Terry, supra, 57 Cal.2d 538, 565-566 and People v. Weiss (1958) 50 Cal.2d 535, 544.

We note appellant did not object to the challenged portion of the prosecutors closing argument. Accordingly, any claim of prosecutorial misconduct based on these statements has been forfeited.

See, e.g., People v. Adcox (1988) 47 Cal.3d 207, 237-238 [failure to object to a line of argument waives any claim of prosecutorial misconduct on appeal].

We also note the purpose of the questions and argument was not to establish a consciousness of guilt as appellant suggests. Thus, his argument and authorities for this proposition are inapposite. Not once in either questioning or argument did the prosecutor imply or suggest appellant personally, or others at his direction, had actually threatened the witnesses. The evidence was instead admitted for the purpose of explaining the witnesses were possibly reluctant to testify because of a generalized fear of gang retaliation. For this purpose, the evidence was relevant and admissible to assist the jury in evaluating their testimony. The questioning of Tarrence regarding his knowledge of the Grape Street gang, the evidence Bridgette was uncomfortable testifying before appellants family members, and Ms. Wootens testimony testifying against gang members was a "no-no," which was true "anywhere," was instead admitted for (and the court expressly instructed it could be used exclusively for) the effect it may have on the credibility of the testifying witnesses. For this purpose it was unnecessary to present evidence appellant had made actual attempts to suppress these witnesses testimony.

People v. Warren (1988) 45 Cal.3d 471, 484-486 [evidence one witness was told to "keep her mouth shut," another had been warned not "to snitch on anybody" and a third witness was reluctant to testify because he lived in the same neighborhood with the defendants, was relevant on the witnesses credibility]; People v. Padilla (1995) 11 Cal.4th 891, 943-944 [evidence witnesses were reluctant to testify because of a code of silence, because they lived in the same neighborhood, and did not want to be labeled a snitch, was relevant on the issue of the witnesses credibility and thus counsel was not ineffective for failing to object on the ground the prosecutor had improperly insinuated the defendant and his associates had threatened the witnesses].

People v. Green (1980) 27 Cal.3d 1, 29-20; People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.

In short, appellants claims of prosecutorial misconduct on these grounds are not well taken.

Appellant next claims the prosecutor committed misconduct by insinuating appellants family members had bribed Tarrence. On cross-examination appellants brother Kelvin Carter testified he never gave Tarrence the money he asked for at the preliminary hearing, and to the best of his knowledge, neither had his father Mr. Withers. The prosecutor asked Kelvin, "Yet Tarrence got up on the witness stand and said he never saw who shot him; is that right?" Kelvin answered, "Yes," without objection. The prosecutor then asked, "Do you know why he would do that if he never gave him any money?" Appellant objected, claiming the question called for speculation. The trial court sustained the objection and Kelvin did not answer the question.

Appellant now argues this question was improper because it implied to the jury facts outside the record, namely the prosecutor had information Tarrence had seen the shooter and Tarrence altered his testimony in exchange for money from appellants father.

It is misconduct for a prosecutor to refer to "facts not in evidence. [The Supreme Court has] explained that such practice is clearly . . . misconduct, because such statements `tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, although worthless as a matter of law, can be dynamite to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence. Statements of supposed facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal."

People v. Hill (1998) 17 Cal.4th 800, 828, internal citations and quotation marks omitted.

The prosecutors question could be understood as implying appellants family had bribed the prosecution witness. On the other hand, it could have been understood by the jury as questioning why Tarrence denied seeing the shooter while testifying on the stand when he described the shooter as a Black male between the ages of 20 and 25 years old while at the hospital. From our reading of the record, the prosecutors question appears to be a sarcastic attack on the defense theory Tarrence and his sister had fabricated the entire story of the shooting as a way to extort money from appellants family members. In any event, potential harm was averted because the court sustained appellants objection and the witness did not answer the question.

In any event, the prosecutors question was technically not based on facts outside the record as appellant asserts. When viewed in light of all the evidence the prosecutors question was based on the evidence Tarrence had allegedly asked for money to "tell the truth" and make the entire case against appellant "disappear." Moreover, the entire thrust of the prosecutors overall efforts was to establish the contrary position. The prosecutor sought to convince the jury the defenses claim Tarrence had asked for money should not be believed because the truth was Tarrence did provide damaging evidence against appellant. In closing arguments, the prosecutor pointed out at the preliminary hearing Tarrence testified he saw appellant outside the party involved in an argument after he hit the young boy in the dice game. At the preliminary hearing he also testified the crowd chased appellant into the apartment and identified appellant in court as the person chased and as the person called "Taco." Tarrence also testified he saw appellant outside the party at the first trial. Based on this testimony the prosecutor argued the defense claims Tarrence had extorted money could not be true and urged the jury to reject the defense claims the entire event had been fabricated by the prosecution witnesses.

In summary, appellant has failed to establish prejudicial prosecutorial misconduct warranting reversal.

IV. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANTS PITCHESS MOTION.

Appellant filed a motion for discovery pursuant to Pitchess v. Superior Court seeking information regarding every officer who had testified in the case or who had been involved at any level in the case, regarding matters which may or may not have occurred in his case. The motion sought information "relating to fabrication of charges and/or evidence, fabrication of probable cause and/or illegal search and seizure, violation of Miranda rights, falsified statements attributed to the suspect, allegations that these officers have filed false police reports, committed acts of perjury and/or have given false testimony, and any and all other allegations of acts of dishonesty and/or involving moral turpitude and weighing on the officers[] veracity . . . ."

Pitchess v. Superior Court, supra, 11 Cal.3d 531.

For example, this case did not involve any searches, seizures, Miranda issues, probable cause issues, or excessive force.

A criminal defendant has a limited right to discovery of police officer personnel records. The Supreme Court in Pitchess v. Superior Court established the guidelines and motion procedure for such discovery. In Pitchess the court held a defendant who claimed self-defense to a charge of battery on a peace officer was entitled to limited discovery of records of citizen complaints against the officer for excessive force where it was shown such records may lead to admissible evidence concerning the officers propensity to commit acts of violence.

Pitchess v. Superior Court, supra, 11 Cal.3d 531, 537-538.

The Legislature subsequently codified the Pitchess holding and procedures in Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. "The statutory scheme carefully balances two directly conflicting interests: the peace officers just claim to confidentiality, and the criminal defendants equally compelling interest in all information pertinent to the defense."

City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53.

Evidence Code sections 1043 and 1045 establish a two-step procedure for discovery of peace officer personnel files by a criminal defendant. In the first step, Evidence Code section 1043 requires the defendant to file a written motion for discovery of peace officer personnel records. The motion must include "[a] description of the type of records or information sought" supported by "[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has the records or information from the records."

Evidence Code section 1043, subdivision (b)(2); City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9.

"The California Supreme Court has clarified the meaning of the `good cause requirement in Evidence Code sections 1043 and 1045. A showing of `good cause requires a defendant to demonstrate the relevance of the requested information by providing a `specific factual scenario which establishes a `plausible factual foundation for the allegations of officer misconduct committed in connection with defendant."

California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020, quoting City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86.

In seeking confidential police personnel records, "only documentation of past officer misconduct which is similar to the misconduct alleged by defendant in the pending litigation is relevant and therefore subject to discovery."

California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th 1010, 1021.

These "`relatively relaxed standards for showing good cause are offset by the protective provisions [in step two] for in camera review."

People v. Hustead (1999) 74 Cal.App.4th 410, 416, quoting City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d 74, 84.

In City of Santa Cruz v. Municipal Court the court held the defendant made the requisite showing of good cause by asserting the specific factual scenario the officer used excessive force in his arrest, and supported the assertion with a plausible factual foundation by showing the police reports stated considerable force was used in the arrest. Based on this showing the court concluded prior complaints against the officers of excessive force or violence were discoverable under Evidence Code section 1043.

City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d 74, 93.

In People v. Hustead, the court concluded the defendant was entitled to discover prior complaints of false police reports. The officer accused the defendant of reckless driving nearly causing a collision, evading arrest and nearly hitting pedestrians. The defendant cited a specific factual scenario by claiming the officers report contained numerous specific misstatements. The defendant denied driving recklessly, denied his driving had almost caused collisions and even denied he had driven the route described by the officer in his report. This was sufficient to establish a plausible factual foundation for the claim the officer made false accusations in his report. These allegations and factual support, in turn, constituted a sufficient showing of good cause to warrant discovery of the officers records regarding accusations of filing false police reports in prior cases.

People v. Hustead, supra, 74 Cal.App.4th 410.

People v. Hustead, supra, 74 Cal.App.4th 410, 417.

People v. Hustead, supra, 74 Cal.App.4th 410, 418.

In the present case the trial court reviewed appellants motion and defense counsels affidavit. At the hearing on the motion, the court permitted defense counsel to orally supplement her affidavit as counsel wished. At the conclusion of the hearing, the trial court denied the motion, finding appellants combined written and oral showing was insufficient to establish good cause to trigger in camera review of the police officers personnel files. We review the courts decision for abuse of discretion.

Pitchess v. Superior Court, supra, 11 Cal.3d 531, 535; People v. Memro (1995) 11 Cal.4th 786, 832.

The "specific factual scenarios" in counsels affidavit are as follows: Counsel stated Officer Mrakich, the gang expert, "was equivocal, evasive willfully false and unfairly prejudicial to defendant even though Myrakic [sic] had had no personal contact with defendant." Counsel explained her opinion of Officer Mrakich was based in large measure on prior dealings with the officer in other cases in which she alleged he had harassed people by fabricating probable cause and the like.

Regarding Officer Plugge, counsel accused him of lying at the first trial because when he arrested appellant on another matter the officer claimed appellant identified himself as a gang member, yet this statement appeared nowhere in the police report Officer Plugge prepared in the other matter.

Regarding the officers who responded to the crime scene and/or interviewed witnesses in this case, Officers Gamino, Dorcas and Massey, counsel stated some of their testimony regarding crowd conditions and the number of shots fired conflicted with other witnesses testimony in the first trial.

At the hearing on the motion, counsel amplified her complaints about Officer Mrakich. Counsel stated in the first trial he was "very unforthcoming, very ambiguous in his testimony" and based on the equivocal nature of his testimony she believed he was lying or "pandering to the questions." When pressed, however, counsel could not cite any specific instances in his prior testimony representative of her accusations, although she was counsel at the first trial and had the transcripts from the trial.

The court noted counsel had failed to cite any particular act of misconduct and that counsels complaints were primarily disagreements about the officers trial testimony. Counsel conceded this was true regarding Officers Gamino, Dorcas and Massey, the officers actually involved in the present case.

However, counsel did orally cite a specific instance of alleged misconduct regarding Officer Plugge. He apparently had testified at the prior trial when he arrested appellant on the other matter he claimed to have filled out a field identification card stating appellant on arrest identified himself as "Taco" from Grape Street. Counsel claimed he must have lied because this information was not only missing from his police report but the police department had not yet been able to produce the field identification card in question. When he testified at the first trial he apparently relied instead on a Cal. Gang computer printout and did not produce the field identification card.

The court found insufficient allegations of misconduct to find good cause for in camera review. The court stated if counsel wished she could file a supplemental motion after going through the transcript from the prior trial to find specific examples of misconduct. Counsel did not want to delay the trial, and the police department would not waive time for its statutory notice. Appellant did not file a supplemental Pitchess motion.

We find no abuse of discretion. Counsels generalized complaints about Officer Mrakich failed to provide an adequate showing of a specific factual scenario of misconduct. Even assuming he had committed misconduct in other cases, this information, unless related in some material respect to the present case, was irrelevant, absent an allegation of similar misconduct in the present case. An allegation a police officer is generally known to lie is insufficient to discover police personnel records without first complying with the good cause requirements of Evidence Code section 1043.

California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th 1010, 1024.

The only officers with any personal involvement in the present case were Officers Gamino, Dorcas and Massey. Counsels affidavit contained no allegations of misconduct regarding these officers and counsel at the hearing conceded the issue with these officers was a disagreement over their trial testimony. Moreover, any disagreement with these officers testimony pertained only to the relatively minor matters of crowd conditions and the number of shots fired.

Counsels most specific allegation of misconduct pertained to Officer Plugge. However, it pertained to his actions in another case. Accordingly, there was no direct correlation between the alleged prior misconduct and the present case in which he was not the arresting, booking, or investigating officer. Moreover, information Officer Plugge may have lied about appellant identifying himself as a gang member on arrest became irrelevant in the present matter. Officer Plugge was unavailable, did not testify, and no other officer in this trial testified to his allegedly false statement appellant had identified himself as a gang member when arrested in the other case.

See, e.g., People v. Hustead, supra, 74 Cal.App.4th 410, 416 [allegation police officers used excessive force became irrelevant and thus immaterial with the dismissal of the resisting arrest count].

In sum, we conclude the trial court did not err in finding appellant had failed to establish the materiality of the information sought and thus good cause for the discovery of these officers personnel files.

Evidence Code section 1043, subdivision (b); City of Los Angeles v. Superior Court, supra, 29 Cal.4th 1, 9-10.

DISPOSITION

The judgment is affirmed.

We concur: PERLUSS, P.J., ZELON, J.


Summaries of

People v. Withers

Court of Appeals of California, Second Appellate District, Division Seven.
Nov 19, 2003
No. B162764 (Cal. Ct. App. Nov. 19, 2003)
Case details for

People v. Withers

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. THORNTON WITHERS, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division Seven.

Date published: Nov 19, 2003

Citations

No. B162764 (Cal. Ct. App. Nov. 19, 2003)

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