Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. MA038607 Hayden Zacky, Judge.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Attorney General, and David E. Madeo, Deputy Attorney General for Plaintiff and Respondent.
GRIMES, J.
SUMMARY
Defendant Deandre Traymon Jackson was convicted of second degree murder (Pen. Code, § 187, subd. (a)), and a gang allegation was found to be true (Pen. Code, § 186.22, subd. (b)(1)(C)). He was sentenced to an indeterminate term of life with a minimum of 15 years in state prison. He contends the trial court erred by: (1) excluding a witness identified during Pitchess discovery offered to impeach respondent’s key witness; and (2) denying his motion to bifurcate trial on the gang enhancement. He additionally contends insufficient evidence supports the gang enhancement. Because we conclude no prejudicial error occurred, and substantial evidence supports the gang enhancement, we affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTS
On May 2, 2007, Juan Velasquez (Velasquez) was found dead in a portable toilet at a construction site in Palmdale, California, by roofer Don Cowan, Jr., and his coworkers. Velasquez was stiff and his head was covered in dried blood. He died from blunt force trauma to the head. He had a skull fracture, broken nose, and cuts on his back from having been dragged. His head injuries were caused by his head having been slammed or stomped onto the pavement. He tested positive for cocaine. Blood and drag marks leading to the portable toilet started in the alley between 10th Place East and 10th Street East.
The night before, Thelton Palmer (Palmer), a resident of the apartment building next to the alley, heard an argument between defendant, known as “Bird, ” and a Latino man. He went outside to investigate. Palmer recognized the Latino man, as he had seen him in the alley a couple of times. He also knew defendant. Palmer heard defendant yelling that the Latino man owed him “ten bucks.” Defendant was agitated, and a fight erupted between the two men. Defendant quickly knocked the man out, using his fists.
Palmer went back inside his apartment, from which he heard female voices yelling, “Stop, Bird.” One of those voices sounded like his neighbor, Darnnesha Shavers. Palmer later saw the Latino man lying in the carport, not moving. He heard someone say something about having to “move him.” The next morning, the alley was blocked off with police tape, and Palmer suspected the beating had something to do with it. He approached Detective William Pickett and told him what he had seen.
Earlier on the day of the murder, defendant and Palmer socialized and discussed getting some ecstasy.
On the night of Velasquez’ s murder, defendant was staying with his girlfriend, Darnnesha Shavers (Shavers), in her second floor apartment in the same complex where Palmer lived. They took ecstasy together the night of the murder. On the day the body was discovered, Detectives Ty Labbe and Martin Rodriguez asked Shavers who lived in her apartment. She did not tell them defendant was there, sleeping in the bedroom. Defendant left Shavers’s apartment later that day, after the police left the crime scene. When sheriffs later searched Shavers’s apartment, they found empty gauze and bandage packages, which were purchased on the morning of Velasquez’s murder, at a nearby liquor store. Shavers told sheriffs that defendant had an injury on his hand but the medical supplies were for a sore in the groin area.
Shavers’s friend, Latoya Jones (Jones), went to Shavers’s apartment on the morning Velasquez’s body was found, to see what the police activity was about. Shavers was not home, and defendant answered the door. Jones knew defendant because he and her husband sold drugs in the alley. When he answered the door, he said: “A N----- need to stop taking these pills”.... “I f----- up.” His hands were cut and swollen. She heard male voices in the back of the apartment talking about “burning evidence.” When she talked to Shavers later, Shavers told her she had gone to the store to get medical supplies to treat defendant’s hands.
Ronald Jones, known as “Black, ” was arrested on suspicion of being an accessory to the murder, because he was cited for trespassing in the alley the day of the crime and was known to associate with defendant. He told Detective Labbe that defendant was a Rollin’ 90’s Crip. “Black” was a Blood, but the Bloods allowed defendant to sell drugs in the alley because he was good at it, and it benefited the neighborhood. “Black” did not want to be a “rat, ” but admitted that Shavers told him “ ‘Bird went crazy’ ” and “ ‘beat up this Mexican guy.’ ”
Police found a pool of thick blood in the carport next to the alley. Also, a piece of cardboard at the construction site had a large blood stain. A Dodger’s baseball cap was also found, with blood stains on it. Criminalist Tiffany Shew tested the ankle portion of Velasquez’s socks for DNA, since it appeared from the injuries to the back of his skull, the dirt and debris in his hair and on the back of his shirt, and the bunching of his clothes that he had been dragged to the portable bathroom by his ankles. Both socks were secured in one paper bag, and his shoes were secured in another paper bag. Tests found a mixture of DNA matching defendant and Velasquez, along with that of an unidentified third party. Shew also tested the cardboard that had Velasquez’s DNA, and the cap, which had a mixture of DNA, from which defendant could not be excluded as a contributor.
Defendant’s DNA expert, Marc Taylor, thought sheriffs mishandled the evidence because both socks were placed in the same bag and not labeled right or left. Taylor’s testing found DNA matching defendant on the foot portion of one sock. Also, the DNA of an unidentified third person was recovered. DNA matching defendant was also found inside one of Velasquez’s shoes. Taylor opined that finding DNA in so many locations meant that DNA got there by contamination rather than by defendant “dragging” the decedent. A crack pipe was also found stuffed in decedent’s shoe, and it had no DNA on it. Taylor believed the pipe could be the source of defendant’s DNA, reasoning defendant’s DNA could have been wiped off of the pipe onto decedent’s sock.
When defendant was interviewed by the sheriffs following his arrest, he said he had seen Velasquez in the alley “plenty of times, ” but that he “never had any contact” with him. When asked whether Velasquez “used to buy dope in the alley, ” defendant responded, “I seen him come through.”
William Pickett, a detective with the sheriff’s department, testified as a gang expert. The Antelope Valley, where Palmdale is located, is unique in Los Angeles County for how the gangs divide turf and interrelate with each other. Whereas clear divisional lines between gang territories characterize the rest of the county, the Antelope Valley is known as “Tombstone, ” because gang areas are open and undefined. Gang members often form friendships and alliances with members of rival gangs, and territories shift and overlap.
Detective Pickett opined that defendant was a member of the Rollin’ 90’s Crip gang, based on his previous admission of membership in a field interview, and his prevalent gang tattoos, including “Neighbor Hood Crip, ” “Rollin’ 90’s, ” and “Tiny Toons.” He also had a tattoo of a rival gang, “Hoover Criminals, ” crossed out as a sign of disrespect. When police searched his home on the day Velasquez’s body was discovered, they found a roster of gang members on his bedroom door. One of the primary activities of defendant’s gang is selling narcotics.
The alley where Velasquez was murdered is a high narcotics area and is Blood territory. That Bloods permitted defendant, a Rollin’ 90’s gang member, to deal drugs in their territory demonstrates that he has a high status in their neighborhood. A gang’s status is hurt if drug debts remain unpaid, and inflicting violence to collect these debts benefits the gang.
Palmer knew defendant to be a member “9, 0.” Sometime after he testified at defendant’s preliminary hearing, he was the target of shooting near his apartment. The shooters called him a “Punk ass n-----.” He never had problems with violence before, and believed the shooting was connected to his cooperation in this case.
DISCUSSION
Defendant contends the trial court erred by: (1) excluding an impeachment witness identified during Pitchess discovery, and (2) denying his motion to bifurcate trial on the gang enhancement. He also contends insufficient evidence supports the true finding on the gang enhancement. We conclude the trial court did not abuse its discretion when it excluded the Pitchess witness, because the evidence was only minimally relevant, and the potential for undue consumption of time was great. No constitutional violation resulted from the exclusion of the witness, and in any event, defendant was not prejudiced due to the overwhelming evidence supporting his guilt. We also find ample evidence supports the gang enhancement, and denial of the motion to bifurcate was not improper, as the gang evidence was relevant to motive and identity.
1. Impeachment Evidence
During Palmer’s cross-examination, defense counsel asked him whether he told a defense investigator he “did not want to testify against Mr. Jackson by giving inaccurate information, but [he was] afraid of what the police would do to [him] if [he] didn’t say or do what they wanted [him] to do.” Palmer responded “no.” On redirect, he testified his participation in the proceedings was not threatened or coerced. Defense investigator Michael Gorman then testified that when he initially contacted Palmer and gave him his business card, Palmer was reluctant to talk to him, but eventually called and told him he was afraid of Detective Pickett. Palmer denied ever telling the investigator he was afraid of detectives.
Defendant sought to call a witness identified during Pitchess discovery to testify that Detective Pickett lied in a police report and threatened her to make a false identification in a case that had recently been tried in the superior court, People v. Dill (Dill). At the trial in the Dill matter, the witness recanted her identification made to police. A deputy district attorney who knew the witness believed she provided false testimony at trial. The witness apparently lost her Section 8 housing for her role in the Dill case and blamed Detective Pickett. During the course of the sheriff’s department internal review of her complaint against Detective Pickett, she withdrew her claim that Pickett coerced her, and instead maintained that Pickett had simply made a mistake in his report.
The trial court excluded the witness under Evidence Code section 352, concluding the evidence was “marginally relevant... [but] the probative value is substantially outweighed by undue consumption of time.... [¶]... Mr. Palmer... was asked if he ever was pressured to make an identification or was scared of Detective Pickett. He said[] no. [¶] And the defense did put on their own investigation to impeach Palmer, so that evidence is out there already.... [¶] Now if this [witness] was called, ... the people would be entitled to rebut... that evidence. And by doing so, it may result in a trial within a trial, opening up the proverbial can of worms.” Defendant contends the trial court abused its discretion, violated his Sixth Amendment right to confrontation, and violated his due process right to call witnesses in his defense by excluding the evidence.
Evidence Code section 352 vests the court with discretion to exclude evidence, where the probative value of the evidence is outweighed by the probability that its admission will necessitate undue consumption of time, pose a substantial danger of undue prejudice or confusion of the issues, or mislead the jury. (Evid. Code, § 352.) A trial court’s ruling to admit or exclude evidence under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.) “ ‘Where... a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation].” (Ibid.)
In this case, the trial court reasonably concluded that testimony about Detective Pickett’s alleged coercion of a witness in another, unrelated case would be unduly time consuming, particularly since several witnesses would be called in rebuttal to challenge the Pitchess witness’s credibility. This testimony would have resulted in a reexamination of the Dill proceedings, as well as an examination of Detective Pickett’s involvement in the revocation of the witness’s Section 8 housing, among other matters. The testimony was only minimally probative for impeachment purposes, and was cumulative of other evidence already presented challenging the truthfulness of Palmer’s testimony. In fact, Palmer was vigorously cross-examined about the alleged coercion, and defense investigator Michael Gorman impeached Palmer’s denial that any coercion occurred. Although the Pitchess witness’s testimony may have lent marginal credibility to the investigator’s version of the facts, the trial court was free to conclude that this marginal relevance was overcome by the potential for undue time consumption litigating the witness’s veracity.
We also find no constitutional violation. Under the Sixth Amendment of the United States Constitution, a defendant has the right to confront and cross-examine the witnesses presented against him. (Douglas v. Alabama (1965) 380 U.S. 415, 418-419.) This right may be violated when appropriate cross-examination or impeachment is prohibited. (Olden v. Kentucky (1988) 488 U.S. 227, 231.) Also, a defendant “has a due process right to present evidence material to his defense so long as the evidence is of significant probative value.” (People v. Shoemaker (1982) 135 Cal.App.3d 442, 450 (Shoemaker).)
The right to confront witnesses is subject to reasonable judicial limitations. (People v. Brown (2003) 31 Cal.4th 518, 545.) Exclusion of evidence under Evidence Code section 352 does not generally violate a defendant’s Sixth Amendment right to confrontation. (31 Cal.4th at p. 545.) Rather, such an application of state evidentiary law will violate a defendant’s constitutional right only if the defendant can show that the “ ‘prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility.” [Citation].’ ” (Id. at pp. 545-546.) Further “a defendant has no constitutional right ‘to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.’ ” (Shoemaker, supra, 135 Cal.App.3d at p. 450.)
In this case, Palmer’s credibility would not have been seriously undermined by testimony that Detective Pickett had coerced a witness in an unrelated case, especially since the witness had a grudge against Pickett and, during the investigation of her charge, she changed her story. Even if there had been a violation of defendant’s constitutional rights, the conviction is not subject to reversal because any claimed error was harmless. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Palmer was vigorously cross-examined. He was impeached with a prior conviction for giving false information to a police officer, and by defense investigator Gorman’s testimony that he was scared of Detective Pickett. Palmer’s testimony was not the “smoking gun” leading to defendant’s conviction. DNA evidence linked defendant to the murder, and ample circumstantial evidence supported the jury’s verdict, such as the testimony that his hands were cut, his admission that he “f----- up, ” testimony from other sources that Shavers said defendant beat up a “Mexican guy, ” Shavers’s concealment of his whereabouts, the purchase of bandages to treat his hands, and his gang-related motive for the killing. Palmer’s testimony was also corroborated by other witnesses. Defendant’s conviction was based on the convergence of many facts, verified and corroborated by a number of witnesses and by physical evidence. As such, any purported error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
Incidentally, the lesser Watson standard of harmless error is also satisfied, and therefore even if the trial court abused its discretion in excluding the evidence under Evidence Code section 352, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
2. Bifurcation
Before trial, defendant moved to bifurcate the trial of the gang enhancement, on the basis that the gang evidence was prejudicial and unnecessary to establish any elements of the charged crime. The prosecutor countered that the evidence was relevant to prove defendant’s motive. The trial court denied the motion, concluding the evidence was probative of “motive and intent, perhaps identity and credibility of witnesses.”
We review the denial of a motion to bifurcate the trial of a gang enhancement from the trial of the associated offense for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Hernandez held the legal basis for bifurcation of a prior conviction allegation also permits bifurcation of a gang enhancement allegation. (Id. at p. 1049.) However, “the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Id. at p. 1048.)
Hernandez noted gang evidence may be relevant to “identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Hernandez, supra, 33 Cal.4th at p. 1049.) “To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at pp. 1049-1050.) However, “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself -- for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged -- a court may still deny bifurcation.” (Id. at p. 1050.)
Noting the benefits of unitary trials, Hernandez explained a “trial court’s discretion to deny bifurcation of a charged gang enhancement is... broader than its discretion to admit gang evidence when the gang enhancement is not charged.” (Hernandez, supra, 33 Cal.4th at p. 1050.) Bifurcation is required only where a defendant can “ ‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.]” (Id. at p. 1051.)
Here, the gang evidence was relevant to motive, identity, and witness credibility. The evidence explains why defendant beat someone to death for failing to pay a small drug debt of $10, why witnesses were scared to testify, and why some testimony was inconsistent with previous statements to police. Therefore, any inference of prejudice is necessarily dispelled. (Hernandez, supra, 33 Cal.4th at p. 1050.)
Defendant’s attempt to factually distinguish Hernandez is unpersuasive. In Hernandez, one of the defendants called out his gang affiliation during the commission of a robbery, and therefore the Supreme Court determined the gang evidence was not collateral to the charged crime, because the “announcement of his gang affiliation... was relevant to motive and the use of fear.” (Hernandez, supra, 33 Cal.4th at pp. 1045, 1051.) Defendant contends that he did not identify himself as a gang member, and that the crime occurred on rival gang territory, making the gang evidence collateral to the charged offense. We find the evidence was highly probative to explain defendant’s motive to kill over a small drug debt.
Detective Pickett testified that the Rollin’ 90’s gang’s primary activities include narcotics sales, and that violence is routinely used to collect drug debts. The crime occurred in a gang-controlled territory known for drug sales. The evidence is not rendered collateral because it occurred on rival gang territory. Detective Pickett testified that the normal territorial rules do not apply in the Antelope Valley, and that rival gangs often form alliances. Also, there was evidence that defendant was dealing drugs in the alley with the Bloods’ permission, because it “benefitted the neighborhood.” The robbery in Hernandez was also committed by members of different gangs, working in concert. (Hernandez, supra, 33 Cal.4th at pp. 1046, 1051.) Therefore, this case cannot be meaningfully distinguished from Hernandez.
3. Sufficiency of the Evidence
Lastly, defendant contends insufficient evidence supports the true finding for the gang enhancement. Specifically, defendant argues Detective Pickett’s testimony was speculative and unsupported, and the evidence instead demonstrates the crime was self-motivated, and not gang related, because it occurred in a rival gang’s territory, and because there was scant evidence of defendant’s gang affiliation. We disagree.
Before a judgment of conviction can be set aside for insufficiency of the evidence, it must clearly appear that on no hypothesis whatsoever is there sufficient substantial evidence to support the judgment. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Johnson (1980) 26 Cal.3d 557, 575-578.) The record must be reviewed in its entirety when determining whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 316-320; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable double.” (People v. Johnson, supra, at p. 578.) The substantial evidence standard of review is the same when the evidence of guilt is primarily circumstantial. (People v. Holt (1997) 15 Cal.4th 619, 668.)
Penal Code section 186.22 provides for increased penalties for a crime “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.” (Pen. Code, § 186.22, subd. (b)(1).) “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. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez).) An expert opinion, however, must have some basis in fact, and must not be purely speculative. (See People v. Gardeley (1996) 14 Cal.4th 605, 618.)
Ferraez is directly on point. In Ferraez, the court rejected arguments similar to those made here and concluded that sufficient evidence supported a gang enhancement where defendant was caught selling drugs in a different gang’s territory, admitted to being a gang member, told officers he was selling drugs with the permission of the other gang, but claimed the drugs were being sold for his personal benefit. Expert testimony established that drug sales routinely benefit gangs, as the money can be used to buy weapons or as bail for other members. (Ferraez, supra, 112 Cal.App.4th at pp. 928, 930-931.) Here, the evidence established that defendant was selling drugs in a gang-controlled area, with the permission of a rival gang, the drug sales “benefitted the neighborhood” and were assented to by local gang members. Also, the evidence established that drug sales are a primary activity of defendant’s gang, that gangs use violence to enforce drug debts, and that decedent was a drug user. There also was ample evidence supporting Detective Pickett’s opinion that defendant was a gang member, such as his self-admission, his gang-tattoos, and the presence of a gang roster in his home.
This case is unlike those cited by defendant, where improper opinions, not based on evidence, were the only evidence supporting a gang enhancement. (See People v. Ochoa (2009) 179 Cal.App.4th 650, 654-655 [expert opinion was speculative; there was no evidence that crime was committed in gang territory or that there was special gang permission to commit the crime]; People v. Albarran (2007) 149 Cal.App.4th 214, 227 [expert admitted he did not know the reason for the shooting, therefore there was insufficient evidence that the shooting was gang related where circumstances did not evidence any gang connection]; In re Frank S. (2006) 141 Cal.App.4th 1192, 1195-1197 [expert’s testimony based only on weak inferences].) In this case, Detective Pickett’s opinion was not based on speculation, but was based on conclusions drawn from a well-established factual record that more than amply supports the jury’s verdict.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J.FLIER, J.