Summary
noting defendant states that victim "owed him some money, some shit like that"
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NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FSB049039, Colin J. Bilash, Judge.
O'ROURKE, J.
A jury convicted Michael Thomas Crawford of first degree murder. (Pen. Code, § 187, subd. (a)), and found true that he personally and intentionally discharged a firearm causing great bodily injury and death. (§ 12022.53, subd. (d).) It also found true that the murder 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. (§ 186.22, subd. (b)(1)(C).) The court sentenced him to 60 years to life as follows: 25 years to life for the murder, 25 years to life for the weapon enhancement and 10 years for the gang enhancement.
All further statutory references are to the Penal Code unless otherwise stated.
Crawford contends the trial court violated his due process rights under the state and federal Constitutions by erroneously instructing the jury regarding accomplice testimony. He further contends insufficient evidence supported the gang enhancement allegation and the abstract of judgment should be corrected.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Lee Flaherty is Crawford's cousin. On March 26, 2005, between 7:00 and 8:00 a.m., Flaherty drove his Mercedes to Raymond Nelson's house, where Crawford had spent the night. Before they left Nelson's house, Flaherty noticed Crawford near the trunk of the Mercedes, where a revolver was stored. The three men went to buy marijuana in the Mercedes. Afterwards, Flaherty drove to Nelson's home with Nelson in the front passenger seat and Crawford in the backseat. Near an intersection, Crawford told Flaherty to stop the car. Flaherty did so and Crawford got out. Flaherty saw Crawford talk to and shoot a man, later identified as Gaspar Perez-Beltran. Crawford ran back to the car, carrying the revolver in his hand. Flaherty drove to Nelson's house, which was a block and a half away. Nelson argued with Crawford about the incident, and stated, "the man just got killed."
The police interviewed Flaherty approximately two days after the murder. He initially lied to them, including by claiming his name was "Michael Crawford" and denying ownership of the Mercedes or any connection to it. Flaherty later realized he probably would face murder charges and started to tell the truth.
Flaherty pleaded guilty to being an accessory after the murder because he disposed of the gun; he also admitted to a gang enhancement allegation. He agreed to testify truthfully in this case. One week before Crawford's trial, he was released from almost 3 years of custody. Flaherty testified that Crawford was a member of the Delmann Heights Bloods gang, and had the moniker "Terminator." When he, Crawford and Nelson discussed the shooting, there was mention of a "teardrop," which is a tattoo on the right or left side of the eye worn by some gang members and non-gang members. When the prosecutor asked him at trial whether Crawford had said he wanted a teardrop, Flaherty responded, "I can't give you words verbatim. I don't want to say something that I do not know or I do not recall or I think."
Nelson testified that he saw Crawford standing by the open trunk of Flaherty's Mercedes before the three of them went to buy marijuana. As they were returning to Nelson's home, Crawford had the revolver in the back seat. Crawford told Flaherty to stop the car. Crawford jumped out and ran towards a bus stop, where Crawford pulled up a man who was kneeling on the ground, and shot him in the face. Crawford returned to the car, hitting his head upon getting inside.
The police interviewed Nelson two days after the incident. Nelson initially lied but later told the truth about Crawford's gang membership. Nelson told the police Crawford had stated that by shooting the victim, Crawford was "putting work in for the hood to justify his name as the Terminator." Nelson initially was charged with murder in this case, and spent approximately one year in custody. He pleaded guilty to voluntary manslaughter with a gun enhancement, and in return agreed to testify truthfully in Crawford's trial.
Gregory Johnson testified that at approximately 7:00 a.m. on March 26, 2005, he was in his yard, which is located near a bus stop in the City of Highland, San Bernardino. He saw a black male wearing a white shirt and blue pants run alongside Johnson's fence. Immediately afterwards, Johnson heard a gunshot and ran inside his home. He returned outside and saw a vehicle driving by with a partially hanging dealer plate.
Samuel Perez testified that early the same morning he was driving to work and heard gunshots. He saw a black male holding what appeared like a gun in his waistband running from the sidewalk and jump into the back seat of a white Mercedes with a dangling license plate. The car sped away with three individuals inside. Perez saw a man on the ground in the direction from which the black male had run. Perez reported the incident to police.
The coroner testified that Gaspar Perez-Beltran died from a gunshot head wound inflicted from a close-range of no more than 12 inches. The victim died within seconds.
Sergeant James Williams of the San Bernardino County Sheriff's Department investigated the killing. He testified that the Mercedes was located outside Nelson's house and registered to Flaherty's father. The police found in it three unfired cartridge bullets consistent with one found lodged in the victim's head. The police found a composition book with what appeared to be gang writings, a photograph of a gun, and a white T-shirt with blood stains in Nelson's bedroom.
At trial, the parties stipulated that Aurelio Martinez, a crime scene specialist, used the Hemastix Method on the T-shirt, which tested positive for the presence of blood stains.
Sergeant Williams interviewed Crawford twice in the days following the incident. A recording of the interviews was played at trial. In the first interview, Crawford denied knowledge of or involvement in the killing. He maintained he had gone to the beach that day. He also stated that if he knew about the killing he would not tell the police because he does not "snitch."
In the second interview, after the detectives told Crawford that witnesses had seen him at the crime scene, Crawford continued to deny he shot the victim. But he admitted he was at the crime scene, saying, "[I]t was really four dudes in the car.... [It] wasn't really three." He added, "[T]he other person in the car, you know, I ain't gonna say where they at.... I ain't gonna say none of that stuff like that. But like I said. The witnesses got me confused.... [Flaherty, Nelson] and me, you know what I'm saying? We had nothing to do with it. We was just inside the car."
Crawford identified the fourth individual as the shooter, and gave this description: "The dude name is Rob. He about my same height, long hair just like me, braids just like me, dark skin just like me... look almost the same, just like me.... [Flaherty and Nelson], they didn't do shit... I didn't do shit.... I was right there. I seen the whole thing happen.... I don't know how the fuck Rob got away.... You ask [Flaherty]... Same height, same complexion, same hair length and all that."
Crawford explained his actions at the crime scene: "I was in the backseat. I was on [Flaherty's] side of the car.... Rob was on [Nelson's ] side.... We pulled up to the light. We right here. The [victim] is sitting over there. Rob hop out of the car... you know he got into it with the [victim] from way back, you know, money type shit. The motherfucker like a bum. The motherfucker like he had no money.... Rob did what he did, hopped his ass back in the car. My dumb ass, you know what I'm saying? I hopped out the car to see what was going on.... [without] knowing that, that shit is gonna fuck me up.... So my dumb ass hop out and see if he really did this shit. You know what I'm saying? To see if he really trying to pull.... I don't know what the fuck man. I don't know what the fuck was going through my head man. But to see if he really did it, and motherfucker really did the shit. You know, I don't know what the fuck was going through my head. But motherfucker did it. I don't know how the fuck he got away, but [Flaherty] dropped him off, we had went around the corner."
When asked specifically about the shooting, Crawford responded: "It was, it was like I said. [Rob] was trying to prove hisself [sic].... That, that that was the whole thing. But the dude must've lied and said the [victim] must've owed him some money, some shit like that.... when I looked... to see that [Rob] did it, and he did it.... But when he came back in the car we asked, 'Why the fuck you doing that?'... All [']because the [victim] owe me some money['] and woopdy, woo, woo, and shit like this. And [']I, I had to do that shit.['] You know? [']I had to do that shit.['] You know what I'm saying? Hey."
This exchange ensued between the detective and Crawford:
"[Detective]: Did you go over to the [victim]?
"[Crawford]: Yeah, I went over to him. I (unintelligible) make sure he was dead. That's my fault. That's my... That's my stupidity.
"[Detective]: Okay.
"[Crawford]: That's why they must've seen me. That's my stupidity. That's my stupidity.
"[Detective]: So you walked over to where the [victim] was at?
"[Crawford]: I walked up over there to where the [victim]... and looked at [him] See what [Rob] did. That's my stupidity."
Detective Michael Martinez of the San Bernardino County Sheriff's Department testified as a gang expert. He investigated this case and knew that Crawford self-identified as a member of the Delmann Heights Bloods, whose primary activities are "murder, robberies, carjackings, burglaries and narcotics violations, including sales." Crawford's mother told the police that Crawford had recently gotten a black eye and told her he had been initiated into that gang. Nelson had told the police that Crawford used the killing to establish his gang moniker. Detective Martinez stated that in 2003, Lamont Poulk, another member of the Delmann Heights Bloods, committed murder in a drive-by shooting.
Detective Martinez testified that the underlying murder was committed to further both Crawford's and the Delmann Heights Blood's notoriety for violence. The prosecutor asked Detective Martinez on direct examination, "Hypothetically, if a gang member were to walk up and shoot someone who was just standing there — killing that person with a gun — would that person in that gang attain any status furthering himself with that gang due to that crime?" The expert agreed and stated that such a gang member would gain notoriety and show his "willingness to commit violent acts, which is looked at or feared by other rival gangs and persons of the community." Detective Martinez based that opinion "on the fact of that event, though Mr. Nelson is not a member of the Delmann Heights gang, in my opinion, the day of the murder, he was associated with them; therefore, he would gain the same status or the elevation of the status as Crawford does in the shooting."
At the prosecutor's request, and for the purpose of establishing that the Delmann Heights Bloods engaged in a criminal pattern of activity, the court took judicial notice of the court file involving Poulk's conviction.
On redirect examination, the prosecutor asked Detective Martinez, "So for a newer gang member to come in and just kill an innocent person sitting at a bus stop, that would create status, whereas if he kills a rival gang member without permission, that could create havoc. Is that correct?" Detective Martinez responded, "Correct." Detective Martinez also opined that the Delmann Heights Bloods itself would achieve a violent notoriety within the community based on the killing.
On cross-examination, Detective Martinez testified that Nelson was a member of the Treetop Piru gang, which Martinez was not familiar with, except that it was another Bloods gang from Los Angeles County. When asked if members of that gang were allied with those of the Delmann Heights Bloods, Martinez said, "I have never heard that, other than in this case."
DISCUSSION
I.
A.
Crawford contends the trial court's instruction with CALCRIM No. 334 was erroneous because it omitted "key elements of the [form] instruction, including (1) the testimony of Messers. Flaherty and Nelson should be viewed with caution, (2) there must be independent corroborating evidence, and (3) the testimony of one accomplice such as Mr. Nelson could not be used to corroborate the testimony of another accomplice such as Mr. Flaherty."
The trial court instructed in the language of CALCRIM No. 334 as follows: "Before you may consider the statement or testimony of Ray Nelson and/or Lee Flaherty as evidence against the defendant regarding the crime of murder, you must decide whether Ray Nelson and/or Lee Flaherty was an accomplice to that crime.
"The person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she knew of the criminal purpose of the person who committed the crime... and he or she intended to and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime.
"The burden is on the defendant to prove that it's more likely than not that Ray Nelson or Lee Flaherty are accomplices.
"An accomplice need not be present when the crime is committed. On the other hand, a person is not an accomplice just because he or she is present at the scene of the crime, even if he or she knows the crime is going to be committed or is being committed and does nothing to stop it.
"If you decide that a witness wasn't an accomplice, then supporting evidence is not required, and you should evaluate his statements or testimony as you would any other witness."
The trial court excluded from its instruction the following paragraphs from the standard CALCRIM No. 334 form instruction:
"If you decide that a (declarant/[or] witness) was an accomplice, then you may not convict the defendant of _________ <insert charged crime [s]> based on his or her (statement/[or] testimony) alone. You may use the (statement/[or] testimony) of an accomplice to convict the defendant only if:
"1. The accomplice's (statement/[or] testimony) is supported by other evidence that you believe;
"2. That supporting evidence is independent of the accomplice's (statement/[or] testimony);
"AND
"3. That supporting evidence tends to connect the defendant to the commission of the crimes[s].
"Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime[s], and it does not need to support every fact (mentioned by the accomplice in the statement/[or] about which the accomplice testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
"[The evidence needed to support the (statement/[or] testimony) of one accomplice cannot be provided by the (statement/[or] testimony) of another accomplice.]
"Any (statement/[or] testimony) of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that (statement/[or] testimony) the weight you think it deserves after examining it with care and caution and in the light of all the other evidence."
The court also instructed with CALCRIM No. 301: "Except for the testimony of anyone you find to be an accomplice, which requires supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence."
We agree the court's instruction was erroneous. Despite the fact CALCRIM No. 301 included language omitted from CALCRIM No. 334 stating that a defendant may not be convicted based on an accomplice's testimony alone, neither CALCRIM No. 301 nor any other instruction given supplied other portions omitted from CALCRIM No. 334: a statement or testimony of an accomplice "that tends to incriminate the defendant should be viewed with caution;" and, the evidence needed to support the testimony of one accomplice cannot be provided by the testimony of another accomplice.
Nonetheless, we conclude any error was harmless. A judgment may not be reversed on appeal, even for error involving "misdirection of the jury," unless "after an examination of the entire cause, including the evidence," it appears the error caused a "miscarriage of justice." (Cal. Const., art. VI, § 13.) A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. (People v. Cole (2004) 33 Cal.4th 1158, 1209 (Cole); People v. Watson (1956) 46 Cal.2d 818, 835.) Under federal law, a trial court's failure to instruct on an element of a crime requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict. (Cole, supra,at p. 1209.)
Section 1111 states, "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." But a trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is " 'sufficient corroborating evidence in the record' [Citations.] To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. [Citations.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ' " [T]he corroborative evidence may be slight and entitled to little consideration when standing alone." ' " (People v. Avila (2006) 38 Cal.4th 491, 562-563 (Avila).) "The necessary corroborative evidence for accomplice testimony can be a defendant's own admissions." (People v. Williams (1997) 16 Cal.4th 635, 680.)
Here, the testimonies of Flaherty and Nelson were sufficiently corroborated by independent evidence so as to render the trial court's instructional omission harmless. When Crawford was interviewed after his arrest, he initially denied being in the vicinity of the bus stop when the killing took place; he denied any knowledge of the incident. He insisted he was at Nelson's home in the early morning and from there went to the beach. "Defendant's initial attempt to conceal from the police his involvement in the activities culminating in the murder[] implied consciousness of guilt constituting corroborating evidence." (Avila, supra, at p. 563.) Crawford eventually admitted he was in the Mercedes with Flaherty and Nelson. He exonerated them from responsibility for the murder, and admitted that at the bus stop he jumped out the Mercedes, was close to the victim, and saw him die. (See, e.g., People v. Hathcock (1973) 8 Cal.3d 599, 618, disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 33 [corroborating evidence included testimony that defendant was in the presence of the two victims shortly before their deaths].)
Crawford told the detectives that an individual named Rob killed the victim, but he conceded that Rob bore striking similarities to himself: "about my same height, long hair just like me, braids just like me, dark skin just like me... look almost the same, just like me." The jury was entitled to find — and by their conviction apparently did — Crawford's reference to Rob was self-serving and a thinly veiled disguise for Crawford himself. Separately, Samuel Perez's testimony that he saw a black male with a gun enter the rear door of the Mercedes corroborates the testimonies of Flaherty and Nelson that Crawford had a gun in the back seat.
Even Crawford's attorney apparently was incredulous regarding whether Rob existed, and he stated in closing argument: "I would certainly agree that all three of these characters [Flaherty, Nelson and Crawford] are pretty much unbelievable, including my client, Mr. Crawford. You heard him talking. At least he came out and said he was not going to snitch. He wasn't going to tell on his buddies. So he comes up with this fourth person, this mysterious Rob character you heard him talk about."
In light of our conclusion that sufficient corroborating evidence supported the murder conviction, we need not address Crawford's other claim that the court failed to "instruct the jury the time to evaluate whether a person is an accomplice is the time of the crime, and not the time of trial."
II.
Crawford contends the true finding on the gang enhancement under section 186.22 was not supported by sufficient evidence because the prosecution failed to prove the shooting benefited a street gang and that he intended to benefit a street gang.
"Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jury's verdict." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382, overruled on another ground by People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) The standard of review is the same when the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) The same standard of review applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
Section 186.22, subdivision (a), states, "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished... in the state prison for 16 months, or two or three years." (Italics added.) Under section 186.22, subdivision (a), "liability attaches to a gang member who 'willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' [Citation.] In common usage, 'promote' means to contribute to the progress or growth of; 'further' means to help the progress of; and 'assist' means to give aid or support." (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.)
Section 186.22, subdivision (b)(1) increases the punishment for gang-related crimes for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members...." (Emphasis added.) The additional term for a violent felony as defined in section 667.5, subdivision (c), is 10 years. (§ 186.22, subd. (b)(1)(C).) Because subdivision (b) shares the same "promote, further or assist" language as subdivision (a), we interpret it similarly.
It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Here, the hypothetical facts presented to the gang expert were properly rooted in the evidence presented at trial. (See People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley.)
The first prong of section 186.22, subdivision (b)(1), that Crawford acted "for the benefit of" a gang was satisfied by Nelson's testimony that Crawford was "putting in work for the hood to justify his name as the Terminator" and the Detective Martinez's testimony the notoriety of both Crawford and the Delmann Heights Bloods gang would increase as a result of the murder. (Accord, People v. Morales (2003) 112 Cal.App.4th 1176.)
The second prong of section 186.22, subdivision (b)(1) requiring that Crawford act with the specific intent to "promote... any criminal conduct by gang members" is met here also based on Nelson's testimony that Crawford's motive for the murder was his "putting work in for the hood to justify his name as the Terminator." Nelson's testimony was corroborated by Detective Martinez, who testified that Crawford, who was newly initiated into the gang, would gain notoriety by his manner of committing the murder, which was to walk to a bystander and, unprovoked, shoot him. Moreover, Crawford's murder showed his willingness to commit violent acts, which would be feared by other rival gangs and persons of the community. (Accord, People v. Hill (2006) 142 Cal.App.4th 770, 774 [finding a defendant's criminal threat qualified as the gang-related criminal activity he was promoting.].)
Crawford relies on In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) for his contention that the evidence here was insufficient to support the gang enhancement. In Frank S., an officer detained a minor when he failed to stop at a red traffic light while riding his bicycle. (Id. at p. 1195.) The officer discovered a knife, a bindle of methamphetamine, and a red bandana on the minor. (Ibid.) The People charged the minor with carrying a concealed dirk with a corresponding gang enhancement, as well as other charges. (Ibid.) The prosecution's gang expert testified that the minor was a gang member and that the substantive charge was committed to benefit his gang. (Ibid.) She testified that "a gang member would use the knife for protection from rival gang members and to assault rival gangs." (Ibid.)
The appellate court reversed the enhancement, finding that "nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife." (Frank S., supra, 141 Cal.App.4th at p. 1199.) "[U]nlike in other cases, the prosecution presented no evidence other than the expert's opinion regarding gangs in general and the expert's improper opinion on the ultimate issue to establish that possession of the weapon was 'committed for the benefit of, at the direction of, or in association with any criminal street gang....' [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor's statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor's specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Ibid.)
Frank S., supra, 141 Cal.App.4th 1192 is inapposite because as noted above, the expert's testimony was not limited to the fact of Crawford's gang membership. Moreover, the expert did not impermissibly testify regarding Crawford's specific intent. We conclude that based on Detective Martinez's testimony alone, the jury could reasonably infer Crawford's unprovoked shooting was gang related. (Accord, Gardeley, supra,14 Cal.4th at p. 619 [finding that an expert testified that an assault by a group of gang members acting together "was a 'classic' example of gang-related activity"; the expert explained "that criminal street gangs rely on such violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang's drug-dealing stronghold"].)
The People concede and we agree the trial court's imposition of the 10-year term for the gang enhancement was erroneous; instead, because Crawford has been sentenced to life, the court should have imposed a minimum parole eligibility term of 15 years under section 186.22, subdivision (b)(5). (People v. Lopez (2005) 34 Cal.4th 1002, 1004.)
III.
The People concede and we agree the abstract of judgment should be corrected to include the trial court's credit award as stated at the sentencing hearing: "[Crawford will] be given credit for time served in this matter of 1,062 days actual, no conduct credits pursuant to Penal Code section 2933.2."
DISPOSITION
The judgment is affirmed. The trial court is directed to resentence Crawford and correct the abstract of judgment in accord with this opinion and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: NARES, Acting P. J., AARON, J.