Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Coneal

California Court of Appeals, First District, Fifth Division

November 6, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
JERRY CONEAL, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

          Superior Court of San Mateo County, No. SC080432A, Hon. Lisa Novak, Judge.

          Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano and J. Michael Chamberlain, Deputy Attorneys General, for Plaintiff and Respondent.

          SIMONS, J.

         Jerry Coneal appeals following his conviction for first degree murder (Pen. Code, § 187, subd. (a)).[1] In the published portion of the opinion, we consider his challenge to the admission of five rap videos featuring appellant and/or members of appellant's gang. As we explain, the rap videos had minimal probative value, either because they were cumulative of other, less prejudicial evidence, or because their probative value depended on construing the lyrics as literal statements of fact or intent without a persuasive basis to do so. This minimal probative value was substantially outweighed by the highly prejudicial nature of the violent, inflammatory lyrics, and the admission of these videos was therefore an abuse of discretion under Evidence Code section 352. In light of the substantial other evidence of appellant's guilt, however, we find the error harmless. In the unpublished portion of the opinion, we reject appellant's remaining contentions.

         BACKGROUND

         The Shooting

         At approximately 8:21 p.m. on October 5, 2012, police responded to reports of gunfire on a residential street in East Palo Alto. Police found Christopher Baker at the top of a driveway, breathing but unresponsive, with apparent gunshot wounds. A bicycle lying in the middle of the street was later identified as belonging to Baker. Baker died at the scene from multiple gunshot wounds.

         On the other side of the street, a running but unoccupied silver Ford Escort was on the sidewalk, apparently stuck on a fence. The driver's door was open, the front passenger seat was steeply reclined, and the headlights were off. Appellant's blood was found in the Ford Escort and on the outside of a nearby parked car.

         The Ford Escort was registered to Lakeisha Campbell. Campbell testified that she loaned the car to Miguel Rivera, her then-boyfriend and a friend of appellant's, at around 7 p.m. on October 5, 2012. A couple of hours later, Rivera called Campbell, told her the car had been stolen, and directed her to report the theft to the police. About 30 minutes later, Rivera arrived at their home, with blood on his stomach but no apparent injuries.

         Gang Evidence[2]

         Appellant and Rivera were members of the “Taliban” gang, whose territory extended through parts of East Menlo Park and East Palo Alto. The Taliban had a longstanding and violent rivalry with another East Palo Alto gang, “Da Vill.” The People played rap videos made before the shooting depicting Taliban and Da Vill members taunting rivals and bragging about violence they had committed or intended to commit.

         On September 30, 2012-less than a week before Baker was killed-two Taliban members were shot by a Da Vill member and a member of a gang allied with Da Vill. On October 5, a memorial for a murdered Da Vill member called “Box” was held around the corner from where Baker's body was found. Baker, a Da Vill member, attended the memorial and was wearing a shirt memorializing Box when he was killed. On October 7-shortly after Baker was killed-a Da Vill member shot two Taliban members, one fatally.

         Appellant's Actions the Day of the Shooting

         On October 5, 2012, around 11 a.m., appellant “liked” a Facebook post expressing birthday wishes to Box, the deceased Da Vill gang member whose memorial would be held later that day.

         Around noon, appellant sent a message on Facebook to a member of a gang allied with Da Vill, trying to identify a person who had been looking for appellant. The other gang member wrote, “Damn. Shit real serious?” Appellant replied, “Yup. It's gone get real too.” The People's gang expert testified this indicated there would be a retaliation for what was perceived to be disrespectful conduct.

         In the early afternoon, appellant sent messages on social media indicating that he was trying to buy firearms.

         Neighborhood Testimony and Crime Scene Evidence

         On the evening of the shooting, a resident of the block on which Baker was killed saw a car with two occupants pass in front of his house three times in less than ten minutes. The resident heard gunfire 10 to 15 minutes later and, when he went outside, saw what he thought was the same car crashed against a fence.

         Other residents testified they heard gunshots that evening: most heard an initial grouping of shots, a pause, and then a second grouping. “ShotSpotter”-an acoustic gunfire detection and location system-recorded 15 shots at 8:20 p.m. around the location Baker was killed and then, after a break of about eight seconds, 19 additional shots a half-block away, near the location of Box's memorial.[3] Two residents, after hearing the shots, saw two people running away.

         Five cartridge casings were recovered from the street near the bicycle, and four more cartridge casings were found in the driveway where Baker lay. These cartridges were all fired from the same Glock semiautomatic firearm. In addition, two bullet fragments were removed from Baker's body and a third was removed from the garage door in the driveway where Baker died. These three bullet fragments-which came from three separate bullets-were fired from a second gun, a revolver. Based on this evidence, a firearms and ballistics expert opined there were at least two guns involved in the shooting resulting in Baker's death.

         Sixteen additional casings were found at the corner of the block, near the location of Box's memorial, all of which came from the same Glock firearm. This firearm (not the same Glock that fired casings found near the bicycle and Baker's body) was used two days later when a Da Vill member shot two Taliban members. Multiple bullet fragments recovered from the Ford Escort exhibited characteristics typical of bullets fired from Glock firearms. The People's theory was these casings were from the second round of shots and were fired by Da Vill members attending Box's memorial who had heard the first round of shots.

         A handgun was found under Baker's body. Although the gun was one bullet shy of being fully loaded, loading the last bullet into the gun was a cumbersome process that the prosecution argued Baker did not likely undertake. The gun was also corroded, making it difficult to operate. Baker had particles consistent with gunshot residue on his hands, which could have resulted from firing a gun, being in the vicinity of a gun when it was fired, or touching a surface with gunshot residue on it.

         There was evidence that the crime scene could have been contaminated: the original crime scene tape did not cover the entire crime scene; the responding officer had run to the driveway where Baker lay, possibly disturbing casings or fragments; and the morning after the shooting, officers found the crime scene tape was down, allowing people to move through the crime scene.

         Appellant's Actions After the Shooting

         Warner Travis, a friend of appellant's and fellow Taliban member, testified pursuant to a plea agreement in a separate murder case that guaranteed him a sentence of 25 years to life in exchange for his truthful testimony. Appellant told Travis that he and Rivera went to the neighborhood where the crime took place during a gathering for Box, intending to “shoot somebody.” While there, appellant shot the victim “off his bike” and in the face, [4] Rivera also fired shots, and then they tried to drive off but crashed. Appellant told Travis he was worried because he had been injured and might have left blood in the car. Travis thought Anthony Fuller was probably there when appellant said he shot Baker, but Fuller testified that he never heard any such statements.

         Appellant appeared in a rap video titled “On Da Boulevard, ” in which he rapped, “I don't know who baked the last cake, /All I know was the place got yellow taped.” Although the video was first posted to YouTube a few weeks after Baker's death and the prosecutor argued the quoted lyrics referred to his killing, it was unclear whether appellant's lyrics were recorded before Baker was shot (see further discussion post, part II).

         In November 2012, appellant, while in jail, was recorded on a phone call reciting lyrics from a new rap song he had written called “Jailhouse Gas.”[5] The lyrics referred to catching someone “slippin for the mob[6] he got sprayed up.../And I got so close in, like I was going for a lay up”; “Two shooters on one hit that's how I like to move”; “nine tore his chest out... had that boy stretched out. Got his partners mad and left his fams stressed out”; “Caught him in the driveway, and chased him up to the porch.”

         Appellant was interviewed by police in July 2013 and again in November.[7] Appellant denied knowing anything about a Ford Escort with his blood in it or hanging out with Rivera.

         Appellant's Testimony

         Appellant testified in his own defense at trial. He was a member of the Taliban. On October 5, 2012, Rivera, a fellow Taliban member, drove with appellant to the street where Baker was killed because Rivera “wanted to go drop or get some money from his girlfriend's little sister.” Appellant did not know they would be near a memorial gathering for Box, who had been friends with appellant and was not in Da Vill. Appellant also did not initially know that Rivera had a gun.

         They did not circle the block. Instead, Rivera said something about not remembering the house and got out of the car. Appellant, who had been smoking marijuana all day, remained in the car, leaning back in his seat. Appellant saw a guy ride by on a bicycle and then heard shots. Appellant ducked as the shooting continued and, when it stopped, he looked back and saw Rivera running to the car with a gun in his hands. As soon as Rivera got in the car, more shots were fired, hitting the car. Appellant's thumb was injured either from a bullet or broken glass. Rivera tried to drive but backed the car into a fence and got stuck, so they got out of the car and ran.

         Although Taliban and Da Vill were rival gangs, being a Taliban member did not mean that appellant wanted to kill Da Vill members. Appellant tried to buy a gun on the day Baker was killed because he thinks guns are cool, but he was not able to buy a gun that day. Appellant told Travis that he was there when Baker was killed, but he did not tell Travis he had shot Baker. Appellant lied to police in the interviews because he “didn't want to get [Rivera] in trouble” and did not want to inadvertently cast suspicion on himself.

         Appellant had been rapping since he was around 11 years old. He rapped about violence and the gang lifestyle to make himself “look like a gangster” so he could get “ladies” and hopefully become a famous rapper. Only some of the things he rapped about related to reality. He writes “about stuff I don't do all the time.” For example, although he admitted the lyrics to Jailhouse Gas were about Baker's murder, he “just took what somebody told me and put it in my rap.” Rapping about killing Baker was different than being “out on the streets claiming I did that.” He wrote the lyrics in On Da Boulevard before Baker was killed.

         Verdict and Sentence

         The jury convicted appellant of first-degree murder (§ 187, subd. (a)) and found true allegations that appellant committed the crime by means of lying in wait and to further the activities of his criminal street gang (§ 190.2, subd. (a)(15) & (22)); committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)); personally discharged a firearm causing death (§ 12022.53, subd. (d)); and committed the crime for the benefit of a criminal street gang and a principal in the crime personally discharged a firearm causing death (§ 12022.53, subd. (e)). The trial court sentenced appellant to life in prison without the possibility of parole, with a consecutive term of 25 years to life and a second consecutive term of 25 years to life stayed pursuant to section 654.

         DISCUSSION

         I. Gang Evidence

         Appellant argues the trial court's admission of gang evidence was an abuse of discretion under Evidence Code section 352. He argues that the “sheer volume” of the gang evidence was excessive and, in particular, he targets the admission of several rap videos published before the shooting that feature appellant and/or other Taliban members.

         A. Additional Background

         1. Detective Soares

         Menlo Park Police Detective Ed Soares testified as an expert on criminal street gangs in East Palo Alto and Menlo Park.[8] Soares identified Taliban clothing, hand signs, and sayings; for example, the expression “ ‘anybody can get it,' ” which was used by the Taliban to “instill[] a fear that anybody within the community, even their own gang members, can get assaulted, killed.” Soares identified more than a dozen individuals as Taliban members, based on his personal observations of them associating with known Taliban members, displaying Taliban hand signs, wearing Taliban colors, and/or having Taliban tattoos.

         Soares had investigated Taliban members for crimes including armed robbery, assault with a deadly weapon, attempted murder, murder, and narcotics sales. In 2008, Soares personally witnessed a Taliban member shooting at a car associated with the Da Vill gang. Soares testified that in the East Palo Alto gang subculture, “if you have a gang and one of your members gets killed and it's by another gang..., you are expected to retaliate.”

         In November 2012, Soares contacted appellant at a Taliban hangout. Appellant had “Stone” tattooed on one forearm and “Nation” tattooed on the other, a reference to Stoney Gipson, an older and respected Taliban member who had been killed. Soares also testified about a photograph he found in March 2013 on a Taliban member's phone depicting appellant flashing a Taliban hand sign and associating with two Taliban members.

         2. Inspector Draper

         San Mateo County District Attorney's Office Inspector Jamie Draper also testified as an expert on criminal street gangs, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.