Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Super.Ct.No. FSB037072
Mr. William Salisbury, under appointment by the Court of Appeal, for Defendant and Appellant.Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Angela Borzachillo and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
Both appellate attorneys are to be commended for their work on this case. Appellate counsel for the defendant was tenacious and appellate counsel for the People was thorough to a point that we, unfortunately, rarely see.
RAMIREZ, P.J.
A jury convicted defendant of second degree murder (Pen. Code, § 187, subd. (a)), during which he discharged a firearm, proximately causing death (Pen. Code, § 12022.53, subds. (b), (c), (d) & (e)). The jury also convicted him of possessing cocaine base and marijuana for sale (Health & Saf. Code, §§ 11351.5, 11359), possessing cocaine (Health & Saf. Code, § 11377) and possessing a sawed-off shotgun (Pen. Code, § 12020, subd. (a)). The jury found that each of these offenses had been committed to benefit a criminal street gang (Pen. Code, §186.22, subd. (b)(1)) and the possession for sale of cocaine had occurred within 1000 feet of a high school. (Health & Saf. Code, § 11353.6, subd. (b).) Defendant was sentenced to prison for 11 years, plus 15 years to life plus 25 years to life. He appeals, claiming his motion for severance should have been granted, certain evidence should not have been admitted, his conviction of count III (possession of cocaine) is improper, insufficient evidence supports some of the convictions and a true finding and sentencing error occurred. The People agree that defendant’s conviction for possession of cocaine is in error and, therefore, we reverse it. We also agree with defendant’s contention that insufficient evidence supports the true finding that he possessed cocaine for sale within 1000 feet of a high school. Therefore, we reverse that finding and its attendant four year sentence. We also direct the trial court to correct errors in the abstract of judgment and minutes of the sentencing hearing. Otherwise, we reject defendant’s contentions and affirm.
In sentencing defendant, the trial court struck the findings under Penal Code section 12022.53, subdivisions (b) & (c).
I.
Facts
On July 27, 2002, defendant, a member of the North Side Ghost Town Crips gang, killed the unarmed victim, a member of the West Side Verdugo gang, during a drive-by shooting. On October 30, 2002, police officers entered an apartment where defendant’s frequent companion and 4th Street Hustla Crip member Tyrone Hampton, defendant’s brother and another of defendant’s friends were. In the apartment, the officers found, inter alia, cocaine base and marijuana packaged for sale, the gun the defendant had used to kill the murder victim, a sawed-off shotgun bearing defendant’s fingerprints and a videotape, filmed in part by defendant, in which defendant was shown participating in and promoting the activities of his gang, sometimes in the apartment. Defendant, who had left the apartment just before the officers arrived, was arrested across the street. An undercover police officer had made a drug buy at the apartment about two weeks previously. More facts will be discussed in connection with the issues addressed.
II.
Issues and Discussion
1. Motion for Severance
Defendant, while representing himself before trial, moved to sever the trial of the murder count from the trial of the remaining charges. In his moving papers, defendant asserted that the murder had nothing to do with the other offenses and he would be prejudiced because the evidence of the other crimes would make the murder case against him appear to be strong. Although there was no written opposition to the motion filed by the People, they relied upon their previous motion to consolidate all the charges, which appellate counsel for defendant failed to designate as part of the record before this court.
At the hearing on the motion, the prosecutor pointed out that the murder weapon had been seized from the apartment where the drugs and sawed-off shotgun had been found. Additionally, the videotape, which showed defendant holding the murder weapon, had been seized from the same apartment. Therefore, the prosecutor argued, the murder weapon and the videotape were cross-admissible items of evidence.
Defendant added nothing new to his argument during the hearing, save that he believed he would be convicted if the prosecutor talked about gangs, and he asserted that the murder was not gang-related. The prosecutor disputed this latter assertion and the trial court pointed out that the prosecutor intended to talk about gangs whether or not severance was granted. While admitting that he possessed the shotgun, defendant asserted that he did not possess the drugs.
The trial court denied defendant’s motion, concluding that evidence of the seizure from the apartment of the murder weapon and the videotaping showing defendant with the murder weapon were cross-admissible. It further stated that it had considered the strengths and weaknesses of the evidence for all counts and the potential prejudice resulting from joinder, and concluded that the existence of the gang allegation as to each crime intertwined all.
Defendant here contends that the trial court erred in denying his motion. While acknowledging that he had the burden below to “‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried’” (People v. Davis (1995) 10 Cal.4th 463, 508) the record clearly demonstrates that he did not meet this burden. Defendant here asserts that the trial court should have evaluated whether the weak charge(s) against him would be unfairly bolstered by joiner to the stronger one(s). However, below, he presented no facts which demonstrated that either set was weak, other than his unsubstantiated assertion that the murder charge was. Interestingly, on appeal, he asserts the contrary -- that it was evidence of the drug and shotgun counts that was weak. This being a matter that was not asserted below, he waived it. (People v. Valdez (2004) 32 Cal.4th 73 [appellate court must consider record before the trial court at the time it ruled on the motion].) Moreover, not only before trial did he fail to offer any evidence to support such a position, but having reviewed the entire trial transcript, we cannot agree with his assertion that the drug and shotgun possession evidence was weak. (People v. Arias (1996) 13 Cal.4th 92, 127.)
Thus, the trial court was called upon to determine whether evidence pertaining to the drug and shotgun charges, in the form of evidence of the search of the apartment, would have been admissible at the murder trial. It was never called upon to determine if evidence pertaining to the murder would have been admissible at the trial of the drug and shotgun possessing charges.
As already stated, he admitted possessing the shotgun.
We also disagree with defendant’s assertion that evidence pertaining to the drug and shotgun counts would not have been admissible during trial for the murder and vice-versa. It was alleged that all the charges were committed to benefit defendant’s gang. The videotape seized from the apartment where the drugs and shotgun were found helped establish that allegation for all the offenses. Contrary to defendant’s assertion, his motive for committing all the crimes was the same, i.e., his membership in his gang. Moreover, evidence of defendant’s commission of the murder for the benefit of a gang could have been introduced at a separate trial of the drug and shotgun possession counts containing the same allegation. Therefore, we cannot conclude that the trial court abused its discretion (People v. Alvarez (1996) 14 Cal.4th 155, 188) in denying defendant’s motion.
Defendant’s reliance on Williams v. Superior Court (1984) 36 Cal.3d 441 is misplaced because the facts therein are distinguishable from those here. In Williams, the defendant was alleged to have participated in one set of crimes in which the victims were friends of members of a gang that rivaled defendants. (Id. at p. 445.) The victim of a murder, which occurred nine months later, and did not involve the same weapon as the first set of crimes, was not associated with any gang, although he was standing in territory belonging to and wearing clothing associated with a gang that rivaled defendant’s. (Id at pp. 445-446.) There was no allegation that any of the crimes were committed for the benefit of a gang. The Supreme Court concluded that the evidence of the two sets of crimes was not cross-admissible, more importantly, that evidence of gang membership, the sole common factor in both sets of offenses, might have a very prejudicial, if not inflammatory effect on the jury, and, finally, that one of the offenses was a capital crime. (Id. at pp. 451, 453-454.)
2. Admission of Evidence
During the first part of his direct testimony, defendant stated that he had been going to Youth Build, a program of education and on-the-job training, Monday through Friday from 8:00 a.m. to 3:00 p.m. for eight months before the July 2002 murder. He denied having been jumped into the North Side Ghost Town Crips, claiming he became a member in 2001 merely by “socializing and hanging around” with gang members. He said there were about six members of the gang that hung around together all the time, but he was not one of them. He claimed his presence in the gang video was due only to the fact that he was present as part of a gathering of people who were drinking and having fun and this occurred after the shooting. He said he collected $750 per month in social security benefits due to his sickle cell anemia and made $300-$500 every two weeks for work he performed at Youth Build. When asked what his day-to-day life was like during the month in which the murder occurred, he said that he consistently attended Youth Build, then went home to the place he shared with his mother and siblings and walked around there. He denied hanging around with his gangster friends every day after Youth Build, saying that he saw them only when they came to his home. He said that during August, September, October and up until his arrest in November, 2002, he was at Youth Build from 8:00 a.m. to 3:00 p.m. each weekday. On weekends, he was with his brothers, and at times, they were with Tyrone Hampton. He said he was hospitalized two or three times, for 3 to 5 days each, in 2002, due to his sickle cell. He said in 2002, he got together “with [his gang] [¶] . . . [¶] [o]nce or twice” and these occasions were not like “a meeting that you have with the [gang]” but the members merely “kick[ed] it. . . . [s]mok[ed], [then went their] separate ways.”
Based on this testimony, the prosecutor obtained permission from the trial court to introduce evidence that defendant was present with Tyrone Hampton and a fellow gang member during a murder on November 15, 2002, and defendant was with Tyrone Hampton and two others during carjackings on November 10 and 13, 2002. The trial court reasoned that the prosecutor was entitled to rebut with evidence of his participation in the three crimes defendant’s claim that he had had one or two contacts with his gang during 2002, and otherwise had been spending all his time at Youth Build, around his mother’s home and in the hospital. The trial court noted the close proximity of these crimes to the charged offenses, particularly those to which defendant denied any participation (the drug and shotgun possession counts) and concluded that, although highly prejudicial, their probative value was greater.
Defendant referred to these two as his “crew” but was not more specific as to whether they were fellow gang members.
To prevent the prosecutor from introducing this evidence first, defense counsel asked defendant about all three crimes during the second portion of defendant’s direct testimony. Not surprisingly, defendant denied involvement in all three, blaming each on the other(s) present. The prosecutor asked him nothing about these crimes during cross examination and introduced no evidence about them.
Although when the parties initially discussed the admissibility of this evidence, they referred to defendant’s claims of leading an upstanding and unremarkable life (aside from the instant charges) as character evidence, the trial court soon put them straight, saying that it was not character evidence “per se” and the label was thereafter dropped from discussion. Ignoring this, defendant here claims that the trial court considered his direct testimony character evidence, that it was not and therefore the trial court erred by ruling that evidence rebutting it was admissible. However, the trial court never called his direct testimony character evidence and, in fact, said it was not. The trial court correctly observed that defendant had claimed that he had little or no contact with his gang affiliates during 2002 and his time was occupied with non-illegal endeavors. Evidence of his involvement in three serious offenses with gang members contradicted this claim. Contrary to defendant’s assertion, the evidence was not admitted to show his character or a trait of it or his disposition to commit criminal offenses or even to impeach his credibility as a witness with evidence that he committed acts evincing moral turpitude.
Defendant’s claim that the trial court abused its discretion under Evidence Code section 352 in ruling that the evidence was admissible is unpersuasive. As defendant
points out, there was no evidence that he was responsible for any of the crimes because his version of his involvement was the only one the jury heard. This inured to defendant’s benefit, not to his detriment. The fact that the prosecutor abandoned his plan to introduce independent evidence of the latter’s involvement if he denied it on cross-examination helped defendant. In allowing defendant to present only his version of his involvement in these offenses, the prosecutor accomplished his goal of informing the jury that, regardless of defendant’s level of criminal culpability for these other crimes, he had, in fact, been spending time with gang members, doing things other than smoking marijuana, in contradiction to his claims during the first part of his direct testimony. The fact that defendant was unfettered in his attempt to minimize his involvement in these other crimes convinces us that the trial court did not abuse its discretion in concluding that evidence of them was more probative than prejudicial.
Finally, the fact that the trial court did not give a limiting instruction was due solely to the failure of defendant to request one, and, therefore, cannot constitute error. (People v. Ledesma (2006) 39 Cal.4th 641, 697.) Moreover, the proper purpose for this evidence was sufficiently clear to the jury, thus obviating the need for a limiting instruction.
3. Conviction of Count III
Defendant was charged, in count III, with possession of cocaine base while armed with a handgun. However, the jury convicted him of the lesser included offense of simple possession of a controlled substance. The jury also convicted him of the charged offense of possessing cocaine base for sale, which was count II. The parties agree that because his conviction of possessing a controlled substance is a lesser included offense of possessing cocaine base for sale, he cannot be convicted of both and his conviction for the former must be reversed.
4. Insufficiency of the Evidence
Appellate counsel for defendant refers to Exhibit 58, the gang video, in his briefs. However, he ignored our directive to request early transmission of this exhibit to this court. (Notice to Appellant of March 22, 2006.) Particularly, as here, where appellate counsel is contending that the evidence before the jury, which included this video, is insufficient to support the verdicts, ignoring this directive is vexing and its caused unnecessary delay.
a. Possession of a Short-Barreled Shotgun
Defendant, himself, was willing to admit pretrial that he possessed the shotgun. (See fn. 4, ante.) He did this either because he, in fact, possessed it, or because the evidence presented at the preliminary hearing proved he did to the point that he was unwilling to argue otherwise.
In arguing there was insufficient evidence to support the jury’s conclusion that defendant possessed the sawed-off shotgun, he allows that there was evidence that his prints alone were on the weapon, he admitted knowing how to use it and he was seen in the video going in and out of the apartment when it was found. However, he omits a great deal of the other evidence establishing that crime. He ignores his admissions on the stand that he slept at the apartment when he got drunk, that it’s tenant had “signed it over” to Tyrone Hampton, which was documented on the video and that he frequently was at the apartment because he bought marijuana there and visited his aunt and cousins at their nearby home. Additionally, defendant was seen leaving the apartment one minute before the police arrived and there was evidence, some being defendant’s own testimony on the stand, that he spent a great deal of time with Tyrone Hampton, who was in the apartment when officers entered. Defendant’s brother and a man he testified was his friend were also in the apartment when the police arrived, but neither had money or drugs on them. Defendant had $360 on him when he was arrested. One gang expert opined that Tyrone Hampton was selling drugs from the apartment, based, in part on the presence of this weapon. The expert also offered his opinion that Crip sets will cooperate to sell drugs, that defendant’s presence there, as a hard core member of one of the three Crip sets that were selling drugs from the apartment, assisted in the sales and that the apartment complex had a fairly high number of gang members either living or hanging out there daily. Another gang expert opined that defendant was a hardcore member of his gang, that Crips from different sets will cooperate, and that the gang video showed members of three Crips sets coming together to establish themselves in San Bernardino County and to further their activities. This expert was also of the opinion that even if defendant did not actually deal drugs, his presence and that of the sawed-off shotgun in the apartment assisted in the sales. This was sufficient to support the verdict.
Yet, according to defendant, Tyrone did not live there.
See footnote 8, ante.
Defendant’s reliance on U.S. v. Landry (7th Cir. 1958) 257 F.2d 425 is misplaced. Therein, according to defendant, Landry’s housemate and not Landry was actually in possession of narcotics, having some on her person and more in her bedroom. This case has no application here, as the shotgun was found in the kitchen of an apartment which was accessible to defendant, as well as Hampton and others, but it had only defendant’s prints on it.
For similar reasons, People v. Francis (1969) 71 Cal.2d 66, which defendant also cites, is inapposite. Therein, one bag of marijuana each was sold to defendant and his three companions, one of whom was an undercover police officer. The California Supreme Court concluded that there was insufficient evidence that defendant possessed the bag of marijuana sold to the undercover officer, because only the seller and the officer had ever had possession or control of it or the right to possession or control. The Supreme Court pointed out, however, that constructive possession is established where the defendant and another have joint dominion and control over an item. This was the case here, as there was evidence from which a reasonable jury could conclude that both defendant and Hampton had dominion and control over the shotgun.
Contrary to defendant’s assertion, his self-serving claim that he touched the shotgun only once three weeks before October 30 proved that his dominion and control over it was merely transitory and therefore insufficient ignores the jury’s ability to reject this claim and to accept all the other evidence outlined above.
b. Possession of Cocaine Base for Sale and Marijuana for Sale
As stated before, an undercover officer bought marijuana at the apartment about two weeks before the police searched it. The officer also asked to buy rock cocaine and was told to come back to the apartment later.
When police searched the apartment on October 30, they found pre-packaged rock cocaine on a table on a wall between the kitchen and living room, pre-packaged marijuana in a purse in an open area under the stairs within arm’s reach of the living room couch and in the kitchen, methamphetamine in the pocket of a jacket in one of the upstairs bedrooms and a digital scale and materials used to sell drugs. The drugs were accessible to “pretty much anybody in the apartment.” Police also found the loaded sawed-off shotgun in the kitchen closet and the loaded .50 caliber handgun, which had been used to kill the murder victim, on the couch under Tyrone Hampton. Bullets for the gun were found in defendant’s bedroom at the home he shared with his family. Police also found the gang video, parts of which had been filmed by defendant. A gang and narcotics expert opined that the drugs were possessed for sale.
Defendant’s assertion that the foregoing, along with the evidence outlined in regards to the shotgun, was insufficient to establish his possession of the drugs is without merit. He contends there was insufficient evidence he even knew there were drugs in the apartment. However, he, himself, testified that he purchased his marijuana there and he was seen in the video waving drugs in front of the camera.
The three federal cases defendant cites in support of his argument lack one essential element found in this case, i.e., gang involvement. There was evidence that drugs were sold from the apartment as part of a scheme by three sets of Crips, including the one to which defendant belonged. Defendant’s relationship to the apartment and the activities that occurred there, including the sales of drugs, was established by his own testimony, the gang video, circumstantial evidence and the opinion of the two gang experts.
c. Possession of Cocaine Base for Sale within 1000 feet of a High School
Health and Safety Code section 11353.6, subdivision (b)’s enhancement for possessing cocaine base “within 1000 feet of a . . . high school” requires the possession occur in “a . . . public area . . . which is located within 1000 feet of any . . . high school.” Defendant contends there is insufficient evidence to support the finding because there was no evidence that the apartment where the cocaine was located was a public place. The People counter, arguing that defendant actually committed the crime by being across the street from the apartment, providing “muscle” for the drug dealing out of the apartment and where he was standing across the street was a public place.
Although creative, we have a few problems with the People’s argument. First, there was evidence that defendant was arrested “across the street” from the apartment in the 300 block of West Winchester on the south side of the street and the apartment was “on the very southwest corner of Clifford and Washington.” There was evidence that the apartment was less than 1000 feet from Eisenhower High School. However, there was no evidence how far from the school the place was where defendant was arrested. Second, while there was evidence that defendant’s presence “in the [same] area . . . where narcotics are being sold” furthered the activities of the gang, there was no evidence that his being across the street did so and the prosecutor never argued to the jury that defendant aided and abetted the possession by being across the street when officers entered the apartment. Finally, there was no further evidence about the nature of the place where defendant was arrested. Therefore, there was no basis upon which the jury could conclude that it was a public place. Moreover, the jury was never called upon to determine that the place where the crime of possession occurred, whether it was in the apartment, near or outside it or across the street where defendant was arrested, was a public place. The finding must be reversed.
The jury was shown no diagrams, maps or photographs of the area.
Rather, he argued generally that defendant aided and abetting the sales of drugs inside the apartment.
The parties agree that the jury failed to make a finding under Health and Safety Code section 11353.6, subdivision (b) with regard to possessing marijuana for sale and that such a finding would have been inappropriate. Therefore, the trial court’s imposition of a four year enhancement for this allegation must be stricken, as well as any mention of the finding in the abstract of judgment and minutes of the sentencing hearing.
5. Sentencing
The trial court imposed the upper term for possessing the sawed-off shotgun and ran it concurrent with the other terms imposed. It did not provide a reason for selecting the upper term and defendant did not object to this below. While acknowledging that a defendant waives such error by failing to object when he has been provided a meaningful opportunity below, defendant asserts that he was not because the “sentence has already been pronounced.” However, we have seen many a sentencing hearing during which one party or the other points out an error the court has made as part of its final pronouncement of judgment, which is then promptly corrected. This was entirely possible here, and if defendant had objected, no doubt, any conscientious sentencing court would have done its duty under the California Rules of Court. Therefore, we do not agree with defendant that he had no meaningful opportunity below to object to the trial court’s failure to state reasons for imposing the upper term.
III.
Disposition
Count III (possession of cocaine base) and the true finding that it benefited a criminal street gang and the true finding that count II occurred within 1000 feet of a high school are reversed and the trial court is directed to amend the abstract of judgment and minutes of the sentencing hearing to omit mention of them and the four year term imposed for the last. This leaves a total determinate term of 7 years, which the abstract and minutes should be amended to reflect. The court is also directed to omit from the abstract and minutes of the sentencing hearing any reference to a finding under Health and Safety Code section 11353.6, subdivision (b) being made in connection with count IV (possessing marijuana for sale), as no such finding was made by the jury. In all other respects, the judgment is affirmed.
The abstract currently incorrectly lists count III as a conviction for possession of methamphetamine.
We concur: McKINSTER , J., MILLER , J.