Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. SF094122A
MORRISON, Acting P.J.
A fight broke out at a bar in Stockton, followed by shooting in the parking lot that killed two people. Thereafter defendant shot and seriously wounded Dewayne Jackson; he aimed and fired a gun at Ronnie Franklin, but the gun did not discharge. In the first trial, a jury convicted defendant of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)), and defendant admitted he had a prior serious felony conviction (Pen. Code, §§ 667, subds. (a) & (b); 1170.12, subd. (b)), and had served a prison term (Pen. Code, § 667.5, subd. (b)). In the third trial, after two mistrials for hung juries, the jury convicted defendant of two counts of attempted murder. (Pen. Code, §§ 664, 187.) As to count one, the jury found true allegations that defendant personally and intentionally fired a firearm and inflicted great bodily injury. (Pen. Code, §§ 12022.53, subds. (b), (c), & (d); 12022.7, subd. (b).) As to count two, the jury found true that defendant personally used a firearm. (Pen. Code, § 12022.53, subd. (b).) The trial court found true allegations defendant had a prior conviction. Defendant was sentenced to 30 years to life plus life in prison with the possibility of parole.
On appeal, defendant contends the trial court erred in admitting evidence he was a gang member and abused its discretion in limiting the cross-examination of victim Franklin. He contends there was insufficient evidence of attempted murder of Franklin. He further contends it was error to allow the jury to use a magnifying glass and not to allow the jury to view the crime scene. We find no prejudicial error and affirm.
FACTS
The prosecution theory was that after two men were killed and one injured, defendant became involved in the fight. He took a gun from his injured friend and fellow gang member, shot Jackson and then threatened and attempted to shoot Franklin. The defense version of events was that defendant’s friend, Marcus McDaniel, did the shooting.
On the evening of October 22, 2004, Leon Smith, known as Big Man, his roommate Dewayne Jackson, and a friend, Vern, went to Donald’s Place, a bar and club in Stockton. There they met their friend Harold Jones and played pool.
Ronnie Franklin also went to Donald’s Place that night. He took his son’s mother and her friend; he stayed because they wanted him to pick them up later and he did not want to drive across town.
A fight broke out near the pool table after Troy Latin called Harold Jones a snitch. The fight escalated, many people were involved. The bartender called 911. The group hit and kicked Harold Jones, while he was under the pool table. Defendant knocked a female bartender to the floor and apologized. Smith and Jackson left the club and headed to their car. Franklin also left the club when the fight broke out.
As Smith and Jackson went to their car, five men tried to sucker punch Smith. Jackson told them they were not trying to fight, but just going home. At the car, Smith got a gun and walked back towards the club. Smith went up to the group of men and said “jump me now.” One of the men, Terry Gaines, told Smith, “that’s what you guys get, you know, you don’t belong here anyway.” Smith got in Gaines’ face and shot and killed him. Smith and Gaines had a problem with each other stemming from a homicide at the Rose Garden apartments.
Franklin was Gaines’s second cousin. Someone ran up to Franklin and told him Gaines had been shot. Telling the women he was with to stay in the car, Franklin ran to Gaines and then called 911.
There were more shots and Smith was killed. Marcus McDaniel was shot in the leg. McDaniel returned to the club, saying he had been shot. Defendant helped him.
Defendant left the club and looked at Smith’s body. He saw Jackson and shot him. Jackson was hit in the lower spine and paralyzed. Jackson looked up and defendant was in his face; Jackson looked right in defendant’s eyes. Defendant pulled the trigger again, but the gun did not fire. Defendant kicked Jackson and hit him with the gun. Jackson grabbed his cell phone and called his mother.
Franklin saw defendant standing over Jackson with the gun and saw defendant hit and kick Jackson. Defendant looked around and saw Franklin. Franklin told defendant he was not affiliated and did not gang bang. Franklin had been a Blood gang member, but stopped affiliating in 1997 after a robbery conviction. Defendant pointed the gun at Franklin and pulled the trigger. Franklin heard the gun click, but it did not fire. Franklin left and called 911 again. He called the police because Gaines and Jackson were shot; he would not have reported just the assault upon himself.
When the police arrived, the scene was chaotic and the crowd was hostile. There were three victims: Gaines, Smith and Jackson. Smith had been shot multiple times. McDaniel had left. No guns were recovered. Based on the bullets found at the scene, a criminalist determined there were nine shots from a nine-millimeter gun and at least three from a .38-caliber gun. He could not say if the .38-caliber bullets were fired from the same gun.
The police collected several surveillance tapes from the club. The tapes showed the fight around the pool table and the various participants in the shooting entering and leaving the club. The tapes showed Gaines with a gun and defendant with a gun, and later smiling. The prosecution later made a reenactment tape, showing its version of the shooting. This tape was played for the jury.
At the hospital, Jackson told the police the shooter was a Black male, 5 foot 10 or 11, 200 pounds, wearing a blue hooded sweatshirt and blue jeans with a blue rag. He initially picked McDaniel’s photograph out of a lineup, but told the police the shooter had a thinner face. Jackson told the police the shooter might be in the photograph on the cover of a rap CD. When shown the CD, however, Jackson did not identify anyone.
When McDaniel’s picture appeared in the newspaper, identified as the shooter, Jackson called the police and said McDaniel was not the shooter. Jackson had seen the shooter before in a white Ford Explorer. Months before the shooting, the police had stopped defendant in a white Explorer with McDaniel and two other men. Jackson thought a girl he knew had a picture of the shooter in her room. She did not want to get involved so he called the girl’s cousin. Through the cousin, Jackson learned the shooter’s name was Jeffrey Jones and he went by the name Smooth. Jackson called detectives with this information. When shown pictures of both defendant and McDaniel, Jackson selected defendant as the shooter. Jackson recalled that he had seen defendant sitting with McDaniel at the club before the shooting. He identified defendant in court.
The morning after the shooting, Franklin gave police a detailed statement. He described his assailant as dark complected, 5 foot 8 to 10, 170-190 pounds, 23 to 27 years old, with a hat and a blue hooded sweatshirt. Franklin initially identified McDaniel as the shooter in a photographic lineup. Franklin claimed he identified defendant as the shooter when he saw him at Gaines’s funeral. Defendant did attend the funeral. Franklin did not contact the police after he saw defendant. In fact, he tried to avoid the detective handling the case because he did not want to be involved. When shown DMV photographs of defendant and McDaniel, Franklin pointed to defendant.
Franklin did not respond to a subpoena in an earlier trial. He admitted he had not always told the police the truth; he did not trust them due to bad experiences. He was arrested after his failure to appear and refused to talk unless granted immunity. He admitted he lied both before and after the grant of immunity. Sometimes he just went along with what the police suggested. The defense request to cross-examine Franklin about another shooting was denied.
In his statement to the police, defendant denied he had a gun that night. He had known McDaniel two years and they were good friends. They were both Crips, a gang associated with the color blue.
A number of defense witnesses testified that defendant was inside the club when the shots were fired. One witness testified McDaniel was the shooter.
A defense expert testified to the unreliability of eye witness identification.
DISCUSSION
I. Admission of Evidence of Gang Membership
Defendant contends the trial court abused its discretion in admitting evidence that he and McDaniel were members of the Crip street gang. He contends the evidence was only marginally relevant and extremely prejudicial. He asserts its admission denied him due process and a fair trial.
Before the first trial, defendant moved to exclude evidence he was involved or associated with any street gang. The evidence that defendant was a Crip came from his statement to Detective Gardiman. In the first trial, the court ruled the evidence was admissible and Detective Gardiman testified defendant told him that both he and McDaniel were Crips.
Before the third trial, defendant again moved to exclude the evidence of his gang membership, arguing there were no allegations the crimes were gang related. Although the evidence had been admitted in the two earlier trials, the defense argued it was unnecessary this time because the People had other evidence tying defendant and McDaniel together. The prosecutor argued the evidence was reliable because it was defendant’s own statement and it was probative on the issue of motive, explaining why defendant went outside the club that night. The court ruled the evidence was admissible because “the jurors are entitled to understand the full nature of the association between the defendant and Marcus McDaniel.” Acknowledging there was some prejudice, the court found it did not substantially outweigh the probative value of the evidence to show motive.
In closing argument the prosecutor argued defendant’s motive was that he and McDaniel were Crips. “They truly had a special relationship. The motive in this case is revenge and a gun.” The prosecutor argued defendant was a lone avenging soldier.
“[A]s [a] general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. [Citation.] Consequently, gang evidence may be relevant to establish the defendant’s motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. [Citations.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 223.)
“The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason. [Citation.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) “When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers ‘substantially outweigh’ probative value, the objection must be overruled.” (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
In arguing the trial court abused its discretion, defendant relies on cases where the court found an abuse of discretion to admit evidence of gang membership to show the bias of a defense witness in favor of defendant. Thus, in People v. Cardenas (1982) 31 Cal.3d 897, it was an abuse of discretion to admit evidence a defense witness and defendant belonged to the same gang. “The probative value of the gang membership evidence was minimal at best. The evidence was offered to establish possible bias of the defense witnesses in favor of appellant. The prosecution sought to prove that the witnesses and appellant ‘live[d] in the same neighborhood’ and ‘had the same circle of friends.’ However, these facts had already been amply established by other testimony before the prosecutor began his inquiries into the witnesses’ gang affiliations.” (Id. at p. 904.)
Here, the prosecution offered the evidence of common gang membership of defendant and McDaniel not to show bias, as in Cardenas, but to show motive based on the nature of the relationship. “The People are entitled to ‘introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.’ (People v. Funes (1994) 23 Cal.App.4th 1506, 1518, 28 Cal.Rptr.2d 758.) ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ (People v. Lopez (1969) 1 Cal.App.3d 78, 85 [81 Cal.Rptr. 386]; see also People v. Martin (1994) 23 Cal.App.4th 76, 81 [28 Cal.Rptr.2d 660] [gang activity or membership admissible where ‘important to the motive . . . even if prejudicial’].)” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
The evidence indicated the shooting began with a challenge to Smith and his response of getting a gun. Gaines told Smith he did not belong there and there was bad blood between the two due to an earlier homicide. The prosecution theory was that defendant became involved only after his friend and fellow Crip McDaniel was shot and injured. Defendant came to McDaniel’s aid when he returned to the club, and then went out and sought revenge on Jackson and Franklin.
The trial court did not abuse its discretion in finding the probative value of the gang evidence as to motive was not substantially outweighed by its prejudicial effect. (Evid. Code, § 352.) The gang evidence was limited to membership. Unlike in People v. Maestas (1993) 20 Cal.App.4th 1482, 1499, there was no general testimony about gangs, violence, fear, and retribution. Further, defendant’s argument that the gang evidence was unfairly prejudicial is weakened by the fact that such evidence was introduced in all three trials and argued by the prosecution, but the first two trials resulted in a hung jury on the attempted murder charges.
II. Limitation of Cross-Examination of Franklin
Franklin was a key prosecution witness as he provided the sole evidence that defendant attempted to kill him. There was no other witness or corroborating evidence. The defense stressed Franklin provided the only evidence on count two and argued he was not credible because he had lied before. In an attempt to impeach Franklin, the defense sought to question Franklin about his involvement in another homicide. Franklin had been involved in a drug deal that resulted in the shooting death of Raymon Lacy (the Swank incident). The prosecution asked the court to determine the scope and relevancy of evidence of this incident before it was admitted. The defense wanted to question Franklin about the incident to show his lack of truthfulness and cooperation with the police, his open defiance of police investigation, as well as his use of guns. Specifically, the defense wanted to question Franklin as to 33 statements he made in the preliminary hearing of that case and four items in the sheriff’s report.
The trial court ruled the defense could not cross-examine Franklin on most of the enumerated issues. The court excluded the questioning under Evidence Code section 352, finding questioning about another case would consume too much time and confuse the issues. The court did not want a minitrial on the other homicide.
Defendant contends the trial court abused its discretion and deprived him of due process by restricting cross-examination of Franklin as to the incident where Lacy was killed. He contends he should have been allowed to cross-examine Franklin fully about his participation in that incident, his changing stories, his refusal to cooperate until given immunity, and his telling the police what they wanted to hear even if not true.
“‘[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, “to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.”’ [Citations.] However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 946.)
The Attorney General contends cross-examination was adequate and characterizes defendant’s complaint as not being allowed “to beat a dead horse.” Defendant contends jurors would have received a different impression of Franklin’s credibility if defendant had been allowed to pursue fully the Swank incident. We find the cross-examination was adequate. The defense was able to show that Franklin had lied to the police in the Swank incident, thus raising questions about his credibility.
From the beginning, Franklin appeared less than a cooperative witness. He refused to provide the usual personal information and appeared in court only because he was under a subpoena. He had failed to appear previously because he did not want to be involved. After he saw defendant at Gaines’s funeral and made a certain identification, he did not contact the police. In fact, he tried to avoid Detective Gardiman.
The defense was able to raise significant questions about Franklin’s credibility during cross-examination. Franklin was cross-examined extensively about his selection of McDaniel’s photograph in the first lineup and inconsistencies between his trial testimony and that at the preliminary hearing. The defense was able to show his lack of truthfulness and cooperation with the police, particularly with respect to the Swank incident. Franklin admitted he had bad experiences with the police and did not always tell them the truth. He admitted he lied to the police. In February 2006, the time of the Swank incident, he demanded immunity before he spoke to the police. Despite the grant of immunity, he repeatedly lied to them. Franklin did not want to testify at the trial and he did not trust the police. Under defense questioning, Franklin admitted he could not possess a weapon because he was a felon. When he first spoke to the police about the Swank incident, he lied; he just went along with what the police said. Franklin never clarified his lies.
The trial court did not abuse its discretion in limiting cross-examination of Franklin. Defendant has not shown that additional questioning about the Swank incident would have produced a significantly different impression of Franklin.
III. Sufficient Evidence of Attempted Murder of Franklin
Defendant contends there is insufficient evidence he attempted to kill Franklin. He contends there is insufficient evidence he had the specific intent to kill because the gun was empty when he pointed it at Franklin and he knew it was out of bullets because the gun had clicked and not fired the second time he tried to shoot Jackson. Defendant contends firing a gun one knows is empty is at most brandishing, not attempted murder.
Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (Pen. Code, § 21a; People v. Lee (2003) 31 Cal.4th 613, 623.) That the gun did not fire does not preclude a conviction for attempted murder. (See People v. Buskirk (1952) 113 Cal.App.2d 789, 793 [attempted murder conviction where gun failed to fire due to defective recocking mechanism].)
“[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. . . .” [Citation.]’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 741.) The jury could infer from defendant’s actions in shooting at Franklin at close range that defendant intended to kill him.
Defendant’s argument is premised on the assertion that the evidence established that he knew the gun was empty when he pulled the trigger. The gun did not fire when defendant pointed it at Franklin; Franklin heard the gun click. Jackson had also heard the gun click the second time defendant tried to shoot him. The firearms expert testified an empty gun would click.
Defendant’s premise, however, is pure speculation. There was no evidence that a click necessarily meant the gun was empty or that defendant knew the click meant the gun was out of ammunition or even that he heard it. No guns were recovered, so there was no evidence the gun defendant fired was actually out of ammunition; it may have jammed or otherwise failed to operate. Defendant bases his argument that the gun was empty on the number of bullets known to be fired. But the firearms expert could not say these bullets were all fired from the same gun. There was no evidence establishing the number of guns present that night.
The circumstances of defendant’s attempt on Franklin’s life, especially his actions in pointing a gun directly at Franklin at fairly close range and pulling the trigger, provided sufficient evidence of an intent to kill for attempted murder. (People v. Lashley (1991) 1 Cal.App.4th 938, 946.)
IV. Jury’s Use of Magnifying Glass
Defendant contends the trial court erred in permitting the jury to use a magnifying glass, arguing he was denied the right to present a defense to all evidence presented against him. Defendant further contends the court erred in refusing to allow the defense to reopen the case to present a defense as to any new material that might be noticed with a magnifying glass.
During deliberations the jury asked if it could use a magnifying glass. The defense objected, stressing there had been no defense or cross-examination as to use of a magnifying glass. The prosecutor noted the photographs from the surveillance tape had been magnified to three or four times their original size by use of an overhead machine known as an Elmo and the defense had an opportunity to respond to that.
The trial court ruled the use of a magnifying glass was permissible, relying on People v. Turner (1971) 22 Cal.App.3d 174. The defense then requested reopening the case to present evidence regarding magnification, but it could not specify what such evidence it would present. The court permitted the jury to use a hand held magnifying glass that magnified images three and half times. It denied the request to reopen without prejudice. If the defense wanted to develop something, they were to present it as soon as possible.
“It is a fundamental rule that all evidence shall be taken in open court and that each party to a controversy shall have knowledge of, and thus be enabled to meet and answer, any evidence brought against him. It is this fundamental rule which is to govern the use of such exhibits by the jury. They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter. They may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.” (Higgins v. L. A. Gas & Electric Co. (1911) 159 Cal. 651, 656-657.)
Use of a magnifying glass to scrutinize photographic exhibits is not classified as an experiment introducing new evidence into the trial. In People v. Turner, supra, 22 Cal.App.3d 174, the jurors used a magnifying glass to scrutinize a photograph of the defendant taken from a video at the market where she purportedly negotiated a forged check. By using the glass, the jurors could discern the lines on defendant’s outstretched hands in the picture and compare them to defendant’s when she stood before the jury in the same position. (Id. at p. 179.) The appellate court refused to classify the jury’s use of the magnifying glass as an experiment because it introduced no new evidence. Because this photograph had been introduced at trial, use of the magnifying glass only allowed “‘a more critical examination’” of the evidence already offered at trial. (Id. at p. 183.) “At most, the use of the magnifying glass involved an extension of the jury’s sense of sight [citation].” (Ibid.)
Defendant objects that he was not allowed to present evidence to defend against this use of magnification. Defendant’s motion to reopen was denied without prejudice; the court would reconsider if defendant could articulate what evidence he wished to offer. Both below and on appeal, defendant has failed to identify what evidence he sought to introduce. Nor has he shown how the magnification by means of the magnifying glass differed in any significant way from the magnification presented to the jury by the use of the Elmo machine.
The trial court did not err in permitting the jury to use a magnifying glass or in denying defendant’s motion to reopen the case for additional evidence.
V. Refusal to Allow Jury to View Crime Scene
Defendant contends the trial court abused its discretion in denying the defense request that the jury view the crime scene. Defendant contends the jury view “in a case like this would be extremely useful in showing the improbability of certain victim claims and the relative positions of the various places involved.” We find the court acted well within its discretion in denying the viewing.
After Franklin testified, the jury submitted a number of questions to the court. One question asked for measurements of the building, the walkway and the parking lot. The prosecutor indicated his witness the next day would provide measurements. The defense attorney requested a jury view of the crime scene. The prosecutor argued a jury view was unnecessary, given the large number of photographs in the case. The defense reminded the court that it had allowed a jury view in the second trial, and argued an actual viewing was better than a two-dimensional picture.
The court denied the request because the scene could be recreated through photographs. The court also noted there had been remodeling changes since the crime. Recognizing its ruling differed from its previous ruling, the court concluded it had made a mistake in permitting the view in the prior trial.
Penal Code section 1119 permits a court to determine that “it is proper that the jury should view the place in which the offense is charged to have been committed.” A trial court’s decision whether to permit a jury view is reviewed for an abuse of discretion. (People v. Price (1991) 1 Cal.4th 324, 421.) “When the purpose of the view is to test the veracity of a witness’s testimony about observations the witness made, the trial court may properly consider whether the conditions for the jury view will be substantially the same as those under which the witness made the observations, whether there are other means of testing the veracity of the witness’s testimony, and practical difficulties in conducting a jury view. [Citations.]” (Id. at p. 422.) “The fact that physical conditions upon or about the premises may have been to any degree altered is a fact to be considered by the trial court in exercising its discretion to permit or refuse to permit such view and its conclusion in that regard will not be disturbed upon appeal in the absence of a clear showing of an abuse of such discretion.” (People v. Pompa (1923) 192 Cal. 412, 421.)
Defendant has failed to show an abuse of discretion. Although on appeal he argues the view would be useful to assess the witnesses’ veracity, below he argued only that the view would be helpful to answer the jury’s questions about measurements and that the court had permitted it before. The jury was provided with ample evidence to assess the scene of the crime. In addition to the numerous photographs of the scene presented to the jury, a prosecution investigator made a video reenactment of the crime, showing clearly the locations outside Donald’s Place. In addition, the investigator provided the measurements between various locations at the scene. This evidence also provided sufficient means to test the witnesses’ veracity as to what happened there.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.