APPEAL from a judgment of the Superior Court of San Joaquin County, Linda L. Lofthus, Judge. Reversed. (Super. Ct. Nos. SF093917A, SF093917B).
The opinion of the court was delivered by: Cantil-sakauye, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Clara M. Levers, Deputy Attorney General, for Plaintiff and Respondent.
A fight broke out in the parking lot of a Stockton bar between a group of mostly large, very drunk young men and two members of the Jus Brothers motorcycle club, defendants Robert Memory and Frankie Prater. When the fight ended and Memory, Prater, and Prater's wife left on their motorcycles, two of the drunken group had been stabbed and a third young man, who had arrived during the fight, had been stabbed and killed.
Prater was convicted of second degree murder (Pen. Code, § 187) (count 1) with two weapon enhancements (Pen. Code, § 12022, subd. (b)). Memory was convicted of two counts of attempted voluntary manslaughter (Pen. Code, §§ 664/192) (counts 2 and 3) with weapon enhancements (Pen. Code, § 12022, subd. (b)) and two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (counts 4 and 5) with weapon and great bodily injury enhancements (Pen. Code, § 12022.7, subd. (a)).*fn2
On appeal, both defendants raise numerous claims of error challenging evidentiary rulings and instructions and claiming prosecutorial and jury misconduct.
Both defendants contend the trial court erred in admitting prejudicial, gang-type evidence of the Jus Brothers motorcycle club, and the admission of that evidence denied them a fair trial. We find the trial court erred in admitting this evidence. There was no foundation that the Jus Brothers were a gang or a criminal enterprise; the evidence was not probative on motive, but instead was used to show defendants' criminal disposition; the limited probative value of the evidence to show identity and bias of certain witnesses could have been handled with considerably less evidence; and the evidence was inflammatory. Much of the evidence admitted, and argued by the prosecution, was inadmissible character evidence. The error in admitting this evidence was compounded by the prosecutor's argument linking the Jus Brothers to the notorious motorcycle gang, the Hell's Angels.
As the trial court recognized, the defense in this case relied entirely on credibility determinations. Even the prosecution evidence conflicted as to what happened that night. Further, the jury was presented with numerous questions about not only what happened, but also what the defendants perceived and the reasonableness of their belief in the need for self-defense or defense of others. This was not a case presenting a simple choice between guilty as charged or not guilty; the evidence would support various lesser offenses. The error in admitting irrelevant, inflammatory evidence harmed the defendants' credibility and provided evidence of their criminal disposition such that, absent the error, it is reasonably probable they would have received a better result on all counts.
Memory also contends the evidence is insufficient to sustain his convictions. We agree only as to count two, the attempted voluntary manslaughter of Jeremy Miller. While there was evidence Memory stabbed Miller, there was insufficient evidence he did so with a specific intent to kill.
We reverse counts 1 through 5. Retrial is barred on count 2.
The night of November 5, 2004, a group of young men, including five men in particular, Clifford Enos, Jeremy Miller, Derrick Scott, Justin Hood, and Jack Barton (also referred to as the Enos and Miller group), were at Shakers Bar in Stockton. The group had been drinking for several hours and was drunk. Enos was a short man; he was a hothead who started fights when intoxicated. The week before, he had been asked to leave Shakers for fighting. The other four men were much larger than Enos. Miller was 6 feet 5 inches tall and weighed 250 pounds. Scott and Barton weighed about 250 pounds each. Hood was 5 feet 9 inches tall and weighed 180-190 pounds.
After the Enos and Miller group had been at the bar for awhile, defendants Prater and Memory, and Prater's wife Teresa, entered. Prater and Memory were members of the Jus Brothers motorcycle club; they were wearing vests with the Jus Brothers patch. After a beer or two, the bikers left. Some of the young men, particularly Enos and Miller, followed them into the parking lot and began yelling at them. Someone told Memory to "have a white night."*fn3 Others told the bikers to "get the fuck out of here" or they would "beat their ass." Witnesses heard, "man to man with no weapons" and "my boys against you."
In response to the angry crowd, Memory pulled out a crescent wrench and Prater got a Maglite flashlight from his saddlebag. They later had knives. The confrontation continued; there were 15 to 25 people in the parking lot when Mark Donahue and his friends arrived. Donahue yelled at Teresa Prater. She called for Prater, who hit Donahue with the flashlight and then the two men wrestled on the ground. A few moments later someone yelled, "he's got a knife." Miller and Scott both announced they had been stabbed. Donahue stood, staggered a few steps and fell; he had been stabbed. The bikers took off quickly. Donahue died hours later from shock and hemorrhage from the stab wound; he bled to death. Miller and Scott each suffered one stab wound.
These basic facts are undisputed. Witnesses gave varying accounts of the specifics surrounding the stabbings; some of their stories changed over time. Viewing the evidence in the light most favorable to the verdicts, as we must on appeal (People v. Henning (2009) 173 Cal.App.4th 632, 635), it is impossible to determine exactly what happened that night. We recount the varying specifics below.
Shakers Bar is located in a building with a Chinese restaurant. Across the street is a car wash. The bathroom is shared with the restaurant and accessed from outside. There is a very small parking lot, holding four or five cars. Bill Johnson, the owner, lives upstairs and monitors the activities of the bar with a closed circuit television.
According to Jamie Whipp, the lone bartender, the crowd that night was rowdy, men who liked to drink. In addition to the Enos and Miller group, there was another group. This group knew the defendants and included Riley Cox, Bill Walker, Josh Thrasher, and Josh's parents Hans and Cherie Knoepfle. Richard Bird joined this group for two hours; he left before the fighting. The Enos and Miller group was by the front door, "hooting and hollering" and having a good time. They tried to trip people when they went to use the bathroom. Hans Knoepfle was wearing a Harley Davidson T-shirt. Hans told Bird he heard three or four of the rowdy group talking about bikers and how they were going to get them.
Shortly before 11:00 p.m., Memory, Prater, and Teresa Prater arrived at the bar. Memory and Prater were wearing leather vests with a Jus Brothers patch. They parked their two motorcycles directly in front of the bar. At the bar they kept to themselves. After a short time, they left and went out to their motorcycles. According to the bartender, Enos started arguing with the bikers in the bar and told her there was going to be a fight. Enos admitted he might have said that. A lot of people followed the bikers outside to the parking lot. Barton claimed the bar cleared out.
Enos testified he told Memory to "have a nice night," possibly in a "smart ass" manner. Miller testified Enos actually said, "have a white knight" and Enos admitted someone said that. Memory got angry and said, "what did you fucking say?" Enos was yelling at Memory. Enos claimed the situation was "solved" and he and Memory shook hands. Whipp saw Enos challenging Memory with his fists up, bobbing and weaving like a boxer.
Miller was arguing with Prater. Miller was "pissed off" and told Prater to leave and he would "beat his ass." Prater did not try to leave. Some of Miller's friends were also outside; eventually they all were. Prater got out a Maglite flashlight. Miller said, "Let's sling him," meaning "let's fight."
The bikers had been about to leave; several witnesses said the motorcycles, or at least one, were on. Others said the motorcycles were not on. The bikers had their helmets on. A customer out on the patio heard the motorcycle engines revving and her boyfriend thought they might be about to do tricks.
Cox, a young plumber who had met Prater a few times, claimed he was on the patio when he heard yelling. He went out to the parking lot and saw a group around Memory and Prater. Cox asked, "why don't you just let these guys ride home?" A guy brushed his arm away and said, "Do you want some, too?" The crowd was yelling and circling Memory. Someone said he wanted to fight. Cox told Prater he should leave; Prater did not and the crowd closed in on him. There was a scuffle in the street and people jumped on Prater. It happened fast. Cox left the scene without talking to the police. He did not tell the police he saw Prater being beaten by six or seven men.
There was a great amount of yelling, with members of the Enos and Miller group arguing with the bikers. They were telling the bikers to leave. Some witnesses heard threats to kick over the motorcycles. Barton, part of the Enos and Miller group, said the bikers were commanded to leave, but would not follow orders. Miller told someone he would beat his ass. Barton yelled, "get the fuck out of here or you will get beat up" eight or 10 times.
The bikers did not try to leave. Memory pulled out a cell phone and made a call to a fellow Jus Brother to come to Shakers. Enos thought the phone was a gun and dove for cover behind a car. Whipp, the bartender, testified Memory pulled out a knife. At that point she went inside the bar and closed the door. She later testified Memory pulled out something blue about the size of a cell phone and she was not sure it was a knife. Enos may have told Memory to put the phone away or not to call friends.
Stabbing of Miller and Scott
Memory then pulled out a crescent wrench from his vest. He waved it about, giving as much chase as the crowd. He swung the wrench at Scott, but did not hit him. Scott swung his jacket so he did not get hit. When the customer on the patio saw the bikers with weapons and heard someone say, "man to man with no weapons," she called 911.
According to Enos, two guys came at him from the car wash. They had knives and screwdrivers and circled him. Miller said Enos was fighting with friends of the bikers. Miller joined that altercation and was stabbed. Miller did not see who stabbed him. Scott also saw the two guys from the car wash. He said Memory and Miller squared off to fight and Memory stabbed Miller under the arm with a three and a half inch knife. Scott was getting ready to defend himself from the guys from the car wash when Memory ran behind Scott and stabbed him. Scott placed these events on the sidewalk. Barton, who did not see the actual stabbing, said Scott was in the crowd in the street. After Scott said, "He stabbed me," Miller said, "He got me too." Miller was stumbling around the middle of the road.
Thrasher and Walker's Version
Thrasher and Walker, who knew the defendants, were at Shakers earlier that evening. They left to go to other bars before the fight broke out. On their way home, they passed by Shakers and saw a group of 10 to 15 people around Memory and Prater in the parking lot. The group was large men; they were yelling, "Okieville" and "fuck you." Thrasher and Walker parked near the car wash and went to Memory's aid. Walker grabbed a screwdriver and put it in his pocket. He did not see Thrasher with a knife. A guy who had been fighting with Memory lunged at them with a knife. Walker pulled out his screwdriver. He and Thrasher tried to distract the man to keep him from stabbing them; the man chased them around. Walker and Thrasher backed up to their car, trying to get to a phone. The guy with the knife hit the door of the car with the knife. Pictures of the scratch on the car door were admitted into evidence.
Thrasher ran to his home nearby and returned with his brother. When he left, Memory and Prater were on the ground with several people hitting each of them. When he returned Memory and Prater were gone. Thrasher did not tell the police he knew Memory or Prater or that he saw them being beaten. He also did not tell the police about the guy with a knife. Walker claimed he did not tell the police that night what had happened because a large man threatened "to beat the shit out of us." Walker identified the man with a knife as a short man, with scraggly hair wearing a grey sweater. He claimed he told the police about this man.
Bill Johnson, the bar owner, testified he saw Enos waving a knife that night. That night he told the police he thought it was a knife. Enos left and returned later. Enos admitted he took off running after the stabbings and called his cousin to pick him up. He returned later and the police threw him in a police car. Johnson claimed when Enos returned, he was wearing a different style shirt. Johnson told the police about Enos, but they were more interested in identifying the bikers. Johnson told the bartender not to talk to the police. One of the officers who responded that night called Johnson "anti-police."
Mark Donahue was 6 feet 4 inches tall and weighed 200 pounds and in "very good shape." Friends described him as happy and docile when he drank. At 8:00 p.m. that night he visited his girlfriend at a restaurant where she worked and made plans to see her later. Later that night Donahue told her he was taking some underage friends to Shakers and he would meet her afterwards at Stockton Joe's.
Donahue joined a group of friends, including Brian Shirk and Richard Contreras, and went to Shakers.*fn4 When they arrived, there was a crowd in the parking lot; they heard angry shouting. Shirk described the confrontation as a large group against two bikers. He saw Memory being chased by and chasing two men, one of them short. Contreras told Donahue and Shirk they should all wait in the car until the confrontation was over, but the others thought it would end soon and continued towards the bar.
A group was arguing with Prater. Some witnesses claimed Miller was squared off with Prater. Others had several men against Prater. Shirk testified the group arguing with Prater spread out; each side was making advances, jumping back and forth, trying to make it known they meant business. Prater reached into his saddlebag and retrieved a Maglite flashlight. Pulling out the flashlight escalated the situation; the yelling got louder. Johnson, the bar owner, claimed Miller backed off Prater when Prater retrieved the flashlight, but Miller later took Prater down.
Miller described the situation as a "rumble"; the crowd was fighting. The customer on the patio saw a lot of pushing and shoving. Contreras said everyone was fighting, running and glancing blows at people. He said there were a lot of people "with shit in their hands."
According to Shirk, Teresa Prater squeezed between him and Donahue and in front of a pickup truck. As she brushed past Donahue, she pushed him forward. It was a violent shove; Donahue lunged forward. Contreras saw the woman glare at Donahue then walk behind him. Donahue looked around to see who pushed him. He yelled at Teresa, "What are you doing? I'm not part of this. I don't know you." Shirk told the police the woman looked completely harmless and she cowered when Donahue yelled at her. According to Contreras, Donahue said, "What the fuck? I don't even fuckin' know you. Why are you yelling at me?" Donahue backed up with his hands raised. Contreras told the police Donahue "went off" on Teresa. The customer on the patio remembered someone being pushed up against a truck; she thought it was a man.
Teresa yelled for Prater. Prater ran up with his flashlight and hit Donahue over the head. Prater and Donahue began wrestling and fell to the ground. Punches were thrown. Three to five others were kicking them and trying to pull them apart. Shirk told the police Prater looked like a cornered animal, a man defending himself. Prater said, "get off of me." Donahue said the same. Then someone yelled, "he's got a knife." Donahue tried to push himself up; he stumbled and fell in the street. Contreras ran over to help. He rolled Donahue over; he looked terrible, his teeth were broken and he was bleeding. Donahue's hand had a deep cut, as if he had grabbed the knife. It took Contreras a moment to recognize his best friend. The fight happened quickly; it was only a few minutes from when Donahue arrived until he was lying in the street.
The bikers took off very fast. When the bikers left, so did the blue Neon by the car wash.
The Three Victims' Injuries
Donahue was given CPR on the way to the hospital. He suffered respiratory and cardiac arrest. Donahue had substantial blood loss and was bleeding from the pulmonary artery. He survived surgery, but died at 3:25 a.m. There was a deep slash, a defensive wound, to his left palm. His upper front teeth were knocked out. Lacerations to his head were made by a blunt instrument and consistent with a Maglite. The injuries to his face were not consistent with a single fall. His blood- alcohol level was 0.12 percent, and there was a small amount of benzodiazepine or Valium.
Scott had been stabbed on the left side under his arm. He had a one-inch wide incision below his shoulder. On the way to the hospital he complained of shortness of breath. He had a hemothorax, blood between his lung and chest cavity; doctors performed surgery to determine if there was injury to his diaphragm. Scott was in the hospital five days with a punctured lung. His blood-alcohol level was 0.13 percent at 12:46 a.m.
A paramedic treated Miller as he sat on the curb. He was bleeding from the left armpit area. Someone had already placed a bandage on Miller. The paramedic offered aggressive treatment he did not really think necessary; a pressure bandage with Vaseline gauze to create a seal. The report indicated Miller had a one- to two-inch laceration in the armpit area. Miller's vital signs were stable. Miller was aggressive and under the influence. Miller did not want to go in the ambulance; he did not think he was hurt and wanted to avoid "the $1,000 ride." He received stitches at the hospital and later had to be restitched. He missed a month of work.
Law Enforcement Response and Investigation
When the police responded, Donahue was lying in the street unresponsive. Whipp told them, "Don't let him die. . . . I know who did it." She identified Enos as the "short, crazy guy."
Enos was agitated; he smelled of alcohol and was put in a patrol car. Miller was intoxicated several hours later, but cooperative. Johnson would not identify the bikers; he was adamant in placing the focus on Enos and Miller. Scott was interviewed four days later in the hospital.
The police did not find any weapons at the scene. They found two pair of glasses on the ground. Johnson pointed out one pair of glasses; he claimed they flew off Memory when he was tackled.
A description of the suspects was broadcast. The suspects were two White males, late 30's to 40's, with longish hair and facial hair, goatees and mustaches. One wore glasses. There was also a White female in her early 40's with long hair in a ponytail and dark clothing. The males wore Jus Brothers vests or jackets. Eddie Nieves, the sergeant at arms for the Jus Brothers, was stopped on his motorcycle nearby. He later told the police he had received a call, "they're on us." Witnesses could not identify him as one of the bikers.
Enos gave the police pictures he downloaded from the Jus Brothers Web site. Heather Ewing was originally identified as the female and the Ewings were arrested. Memory and Prater were identified from a group photo found at the Ewings' house. The ...