IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
April 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SHAUN THOMAS BENNETT, DEFENDANT AND APPELLANT.
Super. Ct. No. 08F05690
The opinion of the court was delivered by: Hull, J.
P. v. Bennett
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant of first degree burglary (Pen. Code, §
459; unspecified statutory references that follow are to this code),
attempted murder (§664/187, subd. (a)) with personal use of a knife
(§12022, subd, (b)(1)), and two counts of assault with a deadly weapon
(§ 245, subd. (667.5, subd. (b (b)-(i); 1170.1
(1)). Defendant admitted a prior prison term (§
and two prior serious felonies (§§ 667, subds. (a) &.
We note that, although defendant admitted his 1998 juvenile adjudication as both a five-year enhancement and a strike, because it was a juvenile adjudication and not a conviction, it does not qualify as an enhancement under section 667, subdivision (a). (People v. West (1984) 154 Cal.App.3d 100, 110.) The trial court did not impose an enhancement based on this prior conviction; instead, it imposed a five-year enhancement for the 2005 prior on both counts 2 and 4. (People v. Williams (2004) 34 Cal.4th 397, 405.)
Sentenced to 13 years plus 52 years to life in prison, defendant appeals. He contends it was an abuse of discretion and a violation of due process to admit evidence he had ties to the Aryan Brotherhood and that his mother had pleaded no contest to burglary based on the events we will set forth momentarily. He further contends the cumulative effect of these errors requires reversal and, to the extent any claim was forfeited, he received ineffective assistance of counsel. Defendant contends, and the People concede, that the case must be remanded for resentencing on the attempted murder count. We remand for resentencing and with directions to strike the prison term enhancements, and otherwise affirm, finding no prejudicial error in the admission of the challenged evidence due to the overwhelming, uncontroverted evidence of defendant's guilt.
FACTS AND PROCEEDINGS
Jennifer M. and Starla S. shared an apartment in Sacramento. Defendant's mother, Angela Bennett, was a neighbor. (To avoid confusion, Angela Bennett is hereafter referred to as Angela or defendant's mother.) Jennifer M. knew defendant and they had been intimate in the past. Everyone, including his mother, called defendant "Hate."
On April 1, 2008, Kenny M., a homeless youth, was at the apartment staying with Jennifer M. and Starla S.; Jennifer M.'s boyfriend Tommy D. was also there. Defendant walked by the window and exchanged heated words with those in the apartment. Later that night, defendant's mother knocked on the door. When Starla S. opened it, defendant pushed his way into the apartment. He fought with Kenny M. and during the fist fight a pocket knife fell to the ground. The fight moved to the kitchen where defendant cut both Kenny M. and Tommy D. with a knife. Defendant fled with his mother and her boyfriend.
These facts are undisputed, but Jennifer M., Starla S., Kenny M. and Tommy D. gave differing versions of exactly what happened. Because resolution of this case turns on whether the erroneous admission of evidence was prejudicial because it adversely affected defendant's claim of self-defense, we describe the varying versions of events in some detail.
The witnesses disagreed about whom defendant argued with initially. Both Starla S. and Jennifer M. claimed defendant argued with Tommy D. Starla S. testified the argument began when defendant yelled at Tommy D. because he thought Tommy D. gave him a dirty look. Starla S. and Jennifer M. tried to break up the argument. Starla S. went outside and talked to defendant; Starla S. walked with him to his mother's and returned 10 minutes later. Jennifer M. claimed Tommy D. yelled racial slurs such as "skinhead" and "white power" at defendant. Defendant at first walked away, but he came back and asked who said that. After Jennifer M. told defendant it was Tommy D., defendant and Tommy D. began arguing and tried to get at each other. Kenny M. asked why they were fighting. Eventually defendant left.
Both Kenny M. and Tommy D. testified the argument was between defendant and Jennifer M. Kenny M. testified defendant came to the window and argued with Jennifer M. Defendant then challenged Kenny M. and Tommy D. to a fight. Kenny M. called defendant a "punk." Tommy D.'s testimony was similar. Defendant wanted to talk to Jennifer M., but their conversation soon escalated into an argument. Tommy D. pulled Jennifer M. away and tried to calm her down. Defendant said he would kick everyone's ass and challenged them to a fight. Kenny M. said he was not afraid of defendant and called him a punk. Tommy D. told Kenny M. to shut his mouth. Starla S. helped Tommy D. pull Jennifer M. away and then Starla S. went outside and talked with defendant.
That night, defendant's mother knocked on the door of the apartment and, when Starla S. opened the door, defendant rushed in. Starla S. and Jennifer M. testified defendant had a baseball bat. Jennifer M. said he swung it at Kenny M. and then it was knocked away. Defendant lunged at Kenny M.; they wrestled and fought. Starla S. testified defendant slammed Kenny M. into the coffee table, breaking it. She thought defendant dropped the bat when he punched Kenny M. Kenny M. testified he grabbed defendant's legs and took him down. According to Kenny M. and Tommy D., both defendant and Kenny M. stood up and continued to fight; they ended up outside the apartment.
During this fight, Starla S. claimed Kenny M. put his hands up like he did not want to fight; defendant still wanted to punch Kenny M. Defendant threatened to kill Kenny M.; he threatened everyone.
While Kenny M. and defendant were fighting, a pocket knife fell on the floor. Starla S. testified defendant pulled a pocket knife out of his pocket; it was open. Starla S. picked it up when it fell on the floor. Jennifer M. testified a knife fell out of defendant's pocket and Starla S. picked it up. Kenny M. heard yelling about a knife. The police found a pocket knife on a bookcase.
Tommy D. claimed he heard Kenny M. say, "he's got a knife," but he understood Kenny M. to say "he's got a nine," meaning a nine millimeter gun. So Tommy D. ran to the kitchen and grabbed a knife. Kenny M. testified he broke off his fight with defendant and ran into the kitchen. Jennifer M. said defendant chased Tommy D. into the kitchen and then chased Kenny M. and Tommy D. around the apartment with a butcher knife.
The testimony differed on the details of the actual stabbing. Starla S. testified when Kenny M. backed into the kitchen after his fight with defendant, defendant followed and got a knife. Defendant told Kenny M. he would kill him. Defendant lunged at Tommy D. and cut him. Because Tommy D. jumped back, defendant cut him on the collarbone instead of the throat. Defendant stabbed Kenny M. in the back. Kenny M. ran out and defendant followed.
Kenny M. said when he ran to the kitchen, Tommy D. was there with a knife. Defendant came in and grabbed another knife. Kenny M. told both men to drop the knives. Tommy D. did so and defendant grabbed that knife. Defendant sliced or slashed Tommy D. in the forehead and chest. It looked like defendant was going for his throat. Tommy D. pushed defendant away and ran outside. Kenny M. pushed defendant against the wall and defendant stabbed him in the back. Kenny M. ran outside.
Jennifer M. did not see Tommy D. or Kenny M. with a weapon. She said defendant stabbed Kenny M. in the shoulder when he chased Kenny M. around the apartment and defendant put Tommy D. in a headlock and sliced him.
Tommy D. testified when he was in the kitchen with a knife, defendant told him the knife was not going to help him and asked if he was ready to die. Defendant had a knife. Tommy D. hesitated and then put his knife down and put his hands up. Defendant grabbed the knife and nicked Tommy D.'s chest and collarbone as Tommy D. leaned back. Defendant also cut his forearm and forehead. Tommy D. had stepped back before defendant went for his throat. Tommy D. thought defendant had cut his windpipe, but then realized the cut was not as bad as he first thought.
Defendant followed Kenny M. and Tommy D. out of the apartment, but, according to Starla S. and Jennifer M., he returned and then got into a truck with his mother and her boyfriend. Jennifer M. said defendant's mother grabbed the bat before she left.
Kenny M. and Tommy D. met up at a BevMo store. Kenny M. had a wound on his back; Tommy D. could see fatty tissue. Tommy D. told Kenny M. he should go to the hospital. Kenny M. said he had problems with the law and was trying not to go back. Kenny M. was on juvenile probation; he was supposed to be at a camp but left without permission. He was concerned about the police due to an arrest warrant. He never went to the hospital, but after the police left he returned to the apartment and had Jennifer M. and Starla S. superglue his wound shut. Tommy D. ran into the police on his way back to the apartment. An ambulance took him to the hospital.
To negate defendant's claim of self-defense, the prosecution offered evidence of two incidents from 1997 and 1995 where defendant, as the aggressor, used a knife against others. In 1997, when defendant was 16, he got into an argument with his mother, brandished a knife and threw it at her. The knife missed her. Two years earlier, when defendant was 14, he stabbed a friend. At trial, the friend called it an accident, but at the time the friend told the police defendant had said he would cut the friend's penis off.
Admission of Defendant's Association with the Aryan Brotherhood
Defendant contends it was an abuse of discretion and a violation of due process to admit evidence that he had ties to the Aryan Brotherhood and bragged about beating and stabbing African Americans.
The issue first arose in discussions about redacting the 911 call Jennifer M. made to the police. In the call she described defendant as a "White Supremacist." The court deferred ruling on whether to redact this description until an Evidence Code section 402 (hereafter section 402) hearing was held with Jennifer M. The defense objected to use of the name "Hate" and any reference to tattoos. The prosecutor argued even his mother called defendant "Hate" and the trial court noted defendant had tattoos that were visible when he wore a long sleeved shirt. He had "916" on his throat, as well as the Chinese characters for "Hate" and vampire bites. "On the top" (while the record is unclear, we assume the reference is to the top of defendant's head) defendant had a tattoo of horns and a devil, with the words "blue eyed devil."
At the section 402 hearing Jennifer M. testified she was scared due to what happened in the house. She had received direct threats from people who called and said they had followed her and would kill her. Defendant associated with the Aryan Brotherhood and White Supremacists. He had been involved with the Aryan Brotherhood since he went to prison. He told Jennifer M. he tortured people, targeting blacks. He told her Aryan Brotherhood does hateful things to people not of their color.
The defense objected that Jennifer M.'s testimony was not specific. The court ruled it would exclude evidence that defendant had been in prison and would give a limiting instruction that there was no evidence defendant had done anything he claimed to have done. The court did not exclude references to the Aryan Brotherhood or White Supremacists.
At the section 402 hearing, the court asked defense counsel what else he wanted to exclude. Counsel responded, "a lot of things," specifically mentioning the testimony about torturing black people. Counsel also thought much of the testimony was cumulative. The court told him he would have to object when he thought the evidence was cumulative.
At trial, Jennifer M. testified, without objection, that she was afraid of defendant because of what happened at the house and because defendant told her he and his friends committed hate crimes on others. They liked to do things to black people, such as beat them up and stab them. Jennifer M. thought defendant was bragging; he also mentioned he belonged to the Aryan Brotherhood. The court gave a limiting instruction that cautioned the jury that it was to use the evidence only to evaluate Jennifer M.'s testimony and not as proof of defendant's prior violence.
Jennifer M. testified on the night of the incident defendant said he would kill her. Since then she had received calls and people followed her; they threatened to kill her and said they were defendant's cousins or friends. The court further admonished the jury there was no evidence that defendant was responsible for any threats to Jennifer M. The jury was not to assume defendant was behind them.
The People argue defendant has forfeited this contention because he failed to articulate an objection under Evidence Code section 352 and specifically objected only to testimony about torturing blacks, not to defendant's association with the Aryan Brotherhood. Instead, according to the People, he objected only on the basis that there was no proof that anything such as torturing blacks had ever happened and the evidence was "[j]ust too prejudicial." The entire discussion following the section 402 hearing, however, shows the trial court considered whether to exclude evidence of the Aryan Brotherhood in response to the defense concerns. The court ruled such evidence was admissible to show its effect on Jennifer M. and her fear in testifying. There is no reason to conclude a more specific objection would have brought a different analysis by the trial court or a different ruling. The contention was not forfeited.
On appeal, we review the trial court's rulings concerning the admissibility of the evidence for abuse of discretion. (People v. Thornton (2007) 41 Cal.4th 391, 444-445.) To establish a federal due process violation, the defendant must show there were no permissible inferences the jury could have drawn from the evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1246; People v. Albarran (2007) 149 Cal.App.4th 214, 229-230.) The erroneous admission of evidence offends due process only where it makes the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.)
Given the highly inflammatory impact of evidence of membership in a gang, especially one as notorious as the Aryan Brotherhood, great caution should be used in admitting such evidence where there are no gang enhancements charged and the evidence is only tangentially relevant to the charged offenses. (People v. Albarran, supra, 149 Cal.App.4th at p. 223.) Such evidence may be relevant to a witness's credibility by showing a fear of testifying (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368) or fear of retaliation. (People v. Malone (1988) 47 Cal.3d 1, 30.) Evidence of a witness's fear and possible threats and intimidation by gang members is relevant to explain possible witness bias during testimony. (See People v. Harris (1985) 175 Cal.App.3d 944, 957.)
Here Jennifer M.'s fear of testifying and her fear of retaliation were amply shown by her testimony about defendant's threats that night and the threatening calls she had received. But, even assuming it was error to admit the evidence of defendant's association with the Aryan Brotherhood, we find the error harmless.
The erroneous admission of evidence requires reversal only where there is a miscarriage of justice. (Evid. Code, § 353; see also Cal. Const., art. VI, § 13 [no reversal unless "the error complained of has resulted in a miscarriage of justice"].) In People v. Watson (1956) 46 Cal.2d 818, the Supreme Court established the test for determining whether an error in the trial court resulted in a miscarriage of justice. The court concluded that a miscarriage of justice occurred when "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Id. at p. 836.)
We find any error in admitting evidence of defendant's claimed association with the Aryan Brotherhood harmless because the evidence of defendant's guilt was overwhelming. Although the four main witnesses told differing stories, all testified defendant forced his way into the apartment, immediately began an unprovoked attack on Kenny M., went to the kitchen and stabbed Tommy D. and Kenny M., who were both then unarmed. Defendant's sole defense was self-defense, but the evidence provided no version of events that supported self-defense. While it is unclear exactly what happened that night, it is clear defendant forced his way into the apartment and attacked Kenny M., thus he was the initial aggressor. Defendant contends that he was justified in using deadly force once he was in the kitchen outnumbered by Kenny M. and Tommy D., with Tommy D. wielding a large knife. The evidence, however, indicated that Tommy D. dropped the knife, either on his own or at the urging of Kenny M., so defendant did not face an immediate peril justifying self-defense. (§ 197, subd. (3) [self-defense requires imminent danger of felony or great bodily injury].)
Defendant argues he had no way of knowing if Kenny M. also had a knife and at least one juror might have found defendant swung the knife at Tommy D. (and later at Kenny M.) in self-defense to get out of a frightening situation. Such a scenario of self-defense is not supported by either the evidence or the law. The evidence was that defendant followed Tommy D. to the kitchen, rather than fleeing or otherwise withdrawing once Kenny M. stopped fighting him. Rather than retreating when Tommy D. dropped his knife, defendant attacked both men and chased them when they fled until his mother called him to escape. Further, defendant's fear of future harm from Kenny M. or Tommy D. would not support self-defense, which requires fear of imminent harm. "'Fear of future harm--no matter how great the fear and no matter how great the likelihood of the harm--will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury.' [Citation.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
Defendant contends the erroneous admission of this evidence violated due process and was fundamentally unfair, so the proper standard of harmless error is the Chapman standard of harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) We disagree. Since the jury could draw the permissible inference that this evidence showed Jennifer M.'s fear and thus use it to evaluate her credibility, as instructed by the court, there was no due process violation. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) Further, given the weight of the evidence against defendant, we find its admission, if it was error, was harmless beyond a reasonable doubt.
Admission of Evidence Regarding Defendant's Mother
Angela Bennett, defendant's mother, was charged with all four counts in this case. Prior to defendant's trial, Angela entered a plea of no contest to count one, burglary of a residence. The People sought to introduce Angela's conviction to corroborate the testimony of Starla S. and Jennifer M. about Angela's participation and to provide circumstantial evidence of defendant's guilt. After defendant's objection under Evidence Code section 352 was overruled, the parties stipulated to her no contest plea at trial. Defendant did not request, and the trial court did not give, any limiting instruction on the use of this evidence.
Defendant contends it was an abuse of discretion and violated due process to admit this evidence. He asserts it was inadmissible to prove his guilt and it had little probative value to corroborate the testimony of Starla S. and Jennifer M. That limited probative value was substantially outweighed by the prejudicial effect that the jury would use Angela's plea to conclude he was guilty as well since her guilt was wholly derivative of his.
Angela's plea could not be admitted to prove defendant's guilt. The guilty plea of a co-defendant cannot be used as substantive evidence to prove the guilt of a defendant. (Hudson v. North Carolina (1960) 363 U.S. 697, 702-703 [4 L.Ed.2d 1500, 1504].)
"While the evidence may not be used to establish a defendant's guilt, it may properly be considered by the jury in evaluating witness credibility. [Citation.]" (United States v. Halbert (9th Cir. 1981) 640 F.2d 1000, 1004.) Our Supreme Court, however, has held a co-defendant's guilty plea is more prejudicial than probative "when offered simply to bolster the credibility of another witness." (People v. Cummings (1993) 4 Cal.4th 1233, 1322.) In Cummings, evidence of Cummings's guilty pleas was admitted in the trial of co-defendant Gay. "The trial court ruled that evidence of Cummings's guilty pleas was admissible because it corroborated Pamela's testimony regarding the robberies and the conspiracy. It did so only insofar as she had testified that Cummings participated in those offenses, however. It does not corroborate her testimony that Gay was a participant unless one infers that Gay was Cummings's crime partner in all of the robberies committed by Cummings. Any probative value attached to that inference is clearly outweighed by the prejudicial impact of the evidence. [Citation.]" (Ibid.)
We have the same situation here. Angela's no contest plea corroborates the testimony of Jennifer M. and Starla S. that Angela was present and participated in the crimes that night, but such testimony was collateral to the issue at trial which was defendant's participation and actions. Angela's no contest plea does not corroborate their testimony as to what defendant did unless the jury used the plea to show defendant's guilt, an improper purpose.
Under California law it was error to admit evidence of Angela's no contest plea. However, since the evidence could properly be used to assess the credibility of Jennifer M. and Starla S. under federal law, its improper admission did not deprive defendant of his right to due process of law. (See People v. Steele, supra, 27 Cal.4th at p. 1246; see also People v. Albarran, supra, 149 Cal.App.4th at pp. 229-230.)
For the reasons set forth ante, we find the error in admitting evidence of Angela's no contest plea harmless because the evidence of defendant's guilt was overwhelming.
Cumulative Error and Ineffective Assistance of Counsel
Defendant contends the cumulative effect of the evidentiary errors requires reversal. His cumulative error claim has no greater merit than his individual assertions of error, which we have rejected as harmless.
Since we have addressed both claims of evidentiary error and have not found forfeiture, there is no ineffective assistance for failing to make a proper objection and preserve the claim for appeal.
In sentencing defendant on the attempted murder charge, the trial court stated, defendant "having been convicted of attempted murder of Tommy D[.], which carries five years, seven years, or nine years, the law requires that the Court choose the highest of three options in sentencing, that is, three times the upper base term."
Defendant contends the trial court abused its discretion in sentencing because it erroneously believed the law required it to select the upper term for attempted murder before tripling the sentence under the three strikes law. Defendant contends the matter must be remanded for resentencing to permit the court to exercise its discretion as to the proper sentence on attempted murder. The People concede the error. We accept the concession.
Under the three strikes law, when a defendant has two strikes, the court sentences defendant to a life term with a minimum term that is the greatest of three options. The first option is "[t]hree times the term otherwise provided as punishment for each current felony conviction . . . ." (§§ 667, subd. (e)(2)(A)(i); 1170.12, subd. (c)(2)(A)(i).) "[T]the procedure for calculating the minimum term under option 1 is as follows: The trial court selects the upper, middle or lower term in accordance with section 1170, subdivision (b) just as it would if there were no three strikes law. The court then triples the selected term." (People v. Keelen (1998) 62 Cal.App.4th 813, 820.) Where the court fails to exercise its discretion, but mistakenly believes it must select the upper term, we remand for resentencing. (Ibid.)
Our review of the record reveals another sentencing error. The same 2005 conviction for assault with a deadly weapon and car theft was alleged and used as the basis for both the one-year enhancement under section 667.5, subdivision (b) and the five-year enhancement under section 667, subdivision (a). This was error. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1153.)
The case is remanded to the trial court with directions to strike the one-year enhancement of defendant's sentence on counts 2 and 4 for his prior offense of assault with a deadly weapon and car theft under subdivision (b) of section 667.5, and for resentencing on count 2, attempted murder. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P.J. MAURO, J.
© 1992-2011 VersusLaw Inc.