Opinion
C063252 Super. Ct. No. 08F03777
10-11-2011
THE PEOPLE, Plaintiff and Respondent, v. DOSHMEN JAMAAL JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Doshmen Jamaal Johnson of the first degree murder (Pen. Code, § 187, subd. (a)) of Perry Steele with a special circumstance finding that defendant intentionally committed the murder by discharging a firearm from a vehicle (§ 190.2, subd. (a)(21)). The jury also found true allegations that the murder was committed for the benefit of a street gang (§ 186.22, subd. (d)) and by defendant's personally discharging a firearm, causing death (§ 12022.53, subd. (d)).
References to undesignated sections are to the Penal Code.
Defendant was sentenced as follows: for the murder and special circumstance finding, life in prison without the possibility of parole; for personally discharging a firearm, causing death, 25 years to life; and for the gang enhancement, a term of 10 years.
On appeal, defendant contends (1) the wrongful admission of gang evidence obtained from a Myspace online social networking account alleged to be his denied him due process; (2) without the Myspace evidence, the evidence was insufficient to prove he was the killer; and (3) a criminal conviction assessment of $30 must be stricken as it violates ex post facto principles. We reject the contentions and affirm the judgment.
Defendant also contends the trial court erred when it imposed the 10-year term for the gang enhancement because he received a life without possibility of parole sentence. The People concede the error; however, after the briefs in this case were filed, the Sacramento Superior Court, on its own motion, struck the 10-year enhancement. Consequently, we need not address this contention.
FACTS
The facts will be set forth in greater detail in parts I and II of the discussion, which address defendant's first two contentions.
On April 14, 2008, at approximately 1:00 a.m., Perry Steele, accompanied by Omari O'Neil and Franki Jones, was driving to a liquor store on Del Paso Boulevard. Steele and O'Neil were members of the Del Paso Heights Bloods (DPHB), a criminal street gang; Jones was the girlfriend of Fred Patton, another DPHB member, who was at that time in jail.
Jones, who was in the rear passenger seat behind the driver, testified that while Steele was stopped at a traffic light, she saw defendant in the front passenger seat of a black four-door car next to them. Defendant was trying to get Steele's attention, and Jones so informed Steele. Steele opened his car door and defendant asked Steele if he had "weed." Steele replied no and shut the car door.
Steele drove to the liquor store, and as he, O'Neil, and Jones were getting out of Steele's car, the black car containing defendant drove in behind them. Jones heard somebody from the black car yell, "[W]here are you from," and defendant began shooting, fatally wounding Steele. The black car then drove off.
Detective Robert Quinn, an expert on criminal street gangs, testified that defendant was a member of TNA (Tearin Niggas Appart), which is a subset of the street gang NHGC (North Highland Gangster Crips), and that Steele was a member of DPHB, a rival gang. Quinn opined that gang rivalry was the motive for the killing of Steele and that the killing was done to benefit the street gang to which defendant belonged.
Although defendant did not testify, he called as an expert witness Dr. Mitchell Eisen, who testified regarding the unreliability of eyewitness identification by persons under stress and who may have been influenced in their identification by other factors.
DISCUSSION
I
Defendant contends the admission of the Myspace evidence testified to by Detective Quinn was error, and the error was prejudicial because its admission permitted "cumulative, inflammatory and prejudicial gang evidence" to be put before the jury for the purpose of allowing the prosecution a "means of urging the jury to convict [him] simply because he was a dangerous gang member." We assume for purposes of appeal that the Myspace evidence was wrongfully admitted, but conclude its admission was not prejudicial as argued by defendant.
Because we are assuming the admission of the Myspace evidence was error, albeit harmless, we need not address the People's contention that defendant's failure to object on due process grounds in the trial court has forfeited the argument that the admission of this evidence violated due process.
Detective Quinn testified that the Myspace account was listed as belonging to "Lil' D," one of defendant's nicknames, and bore both his age and his birth date. The account had a photograph of defendant with two handguns and a blue rag as his "avatar" (usually a photo of the account user). The name at the top of the Myspace account listed "Lil' D," saying "Ya' Bitch and Free TNA Street Up." Lil' D's occupation was listed as "Cripin," meaning a Crips gang member. Of the friends listed on the Myspace account, Quinn estimated that 75 percent were NHGC members.
Defendant sets forth in his opening brief 15 instances of conversation that, according to Detective Quinn, defendant had with various persons on the Myspace account. Typical of these are the following:
From Ralph: "Yo' what's good. This is Ralph. This is Profit. You remember that nigga that hooked it with a lil' dime sack and a pack of cigarettes. Hit me back. One." "Is this Ralph?" "Nah, cuz'. This is Lil' D."
From "[P]rincess Jasmine: "[M]y boo (boyfriend) wit' you?" "Who the fucc [sic] is that?" "Wow you're playin' dumb, Doshmen. You know who my boo is. And, yeah, yo' page tight. I seen it like a million times. I know who did yo' shit too." "Yeah, I know who did yo' shit, and don't be calling my boo a dowboy (nickname for a particular TNA member) nigga."
From Candace: "What's good, D. You never write me back. Cuz', what's up with that?" "'Cause I don't know who the fuck you is." "Cuz', dis Candace."
From a DPHB member to Lil' D: "Fake-ass Highlands bitch this the Heights. Stupid ass squad shit. We out here. And stop showing guns that's not yours, bitch. Come to the Heights and see some of my artillery, Blood." "Go ask yo big homies about our guns on the dark side, how they do it anyway, slobk (the letter "b" is often followed by "k" to indicate Blood killer)." "They doing yo mom's bitch ass nigga, you fake ass nigga, and I am my big homie, bitch." "Yeah, okay, slob. Stop Internet banging and see me in the street. Slob, dumb ass TNA bitch." "Nigga, stop showing your weak ass bb guns on MySpace and come to the Heights and see some shit, bitch."
Defendant's sole and repeated claim of prejudice is that admission of the Myspace evidence provided the prosecutor a "means of urging the jury to convict [him] simply because he was a dangerous gang member." He argues "the prosecution used this MySpace evidence to create a powerful prejudice in the jury that [defendant] should be convicted because he lived a gang lifestyle and was therefore generally dangerous," and that "[d]efendant should be convicted of the Perry Steele murder simply to get him off the streets even if the evidence did not prove him guilty beyond a reasonable doubt."
That the prosecutor was attempting to "set up [the foregoing] mentality" is, according to defendant, demonstrated by the prosecutor's eliciting the following testimony from Detective Quinn regarding Quinn's interaction with a "Target Team" of prosecutors:
"Q. What is a Target Team?
"A. A Target Team is a group of district attorneys that if I [Detective Quinn] have a gang member who gets caught with a gun, normal prosecution techniques would go through unless I take it to the Target Team at which time I show them this guy is a violent gang member who is carrying this gun and he may have committed other crimes, may not [sic], but I pitch it to them and if they deem that that person is worthy then they try to get as much prosecution as they can out of it. (Underscoring by defendant.)
"Q. Would it be fair to stay [sic] the whole point is to get the gang members and their guns out of the schools and out of the communities? (Underscoring by defendant.)
"A. Absolutely."
From the above exchange, defendant concludes: "Having set up the idea of the criminal propensity of street gang members, the prosecutor then proceeded to ask Detective Quinn about a plethora of irrelevant and cumulative MySpace hearsay from multiple unauthenticated declarants to reinforce the idea that, whether proven guilty beyond a reasonable doubt or not, [defendant], as [a] street gang member, posed a general danger to the community and should be locked up based on any opportunity that could be created."
Defendant's reading of the record is not reasonable. The cited passage shows nothing more than the unsurprising proposition that law enforcement is seeking to remove from society the most violent gang members for the longest period of time legally possible by requesting the Target Team prosecutors "to get as much prosecution as they can out of it." In other words, the request is to have prosecutors charge any and all crimes and seek maximum sentences for such gang members. The passage cannot reasonably be read as a request for prosecutors to try to convince a jury that a gang member should be found guilty of an offense not because he was in fact guilty of it, but because he was too dangerous a person to be left on the street.
Indeed, to offset such a possibility, the court instructed the jury: "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crime, enhancements, and special circumstances, allegations charged; [¶] Or, the defendant had a motive to commit the crime charged. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
"In the absence of evidence to the contrary," and in this case there is none, "we presume the jury understood and followed the court's instructions." (People v. Williams (2009) 170 Cal.App.4th 587, 635.) Consequently, we reject defendant's contention that the jury was being asked or permitted to find him guilty based on his being a gang member.
II
Defendant contends the evidence is insufficient to support his murder conviction. He argues that without the Myspace evidence, the only evidence he was the shooter was his identification by Franki Jones, an unreliable witness. Jones was unreliable, defendant claims, because Jones was a runaway prostitute; Jones's identification of defendant had been influenced by her boyfriend, Fred Patton, who during a phone call from jail told her the person who shot Steele might be the same person who had shot at Patton the previous year; Jones's identification was further influenced by street gossip that defendant was the shooter; Jones had told the police the night of the shooting that she had never seen defendant before, but later she told them she had seen him at a party; and Jones selected defendant from a photo lineup, but only after first stating he was not in the lineup. We are unpersuaded by the argument.
"In reviewing a criminal conviction challenged as lacking evidentiary support, '"the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'" (People v. Maury (2003) 30 Cal.4th 342, 396.) "[T]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citation.]" (People v. Leigh (1985) 168 Cal.App.3d 217, 221; Evid. Code, § 411 ["Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact"].) To warrant rejection by a reviewing court, the testimony must be physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).)
While the Myspace evidence showed a lethal rivalry between the TNA and DPHB gangs and thus provided a motive for the killing, it was not the only evidence demonstrating such animosity and motive. Independent of the Myspace evidence, which we again assume was erroneously admitted, is the following unchallenged testimony of Detective Quinn. Quinn testified that the NHGC and DPHB gangs were rival criminal street gangs whose members engaged in various fights and shootings with each other. The primary activities of the NHGC were shootings, robberies, burglaries, narcotic sales, gun possession, and auto theft. Photos found in defendant's cell phone showed gang signs associated with NHGC and TNA, and defendant throwing these gang signs. A camera found in the home of Anthony Bonds, a validated NHGC member, contained photos of defendant and others throwing NHGC and TNA gang signs. Anthony Bonds and Matt Jones, also a validated Crips gang member, said that defendant was an NHGC or TNA member.
While Jones's testimony suffered inconsistencies, her identification of defendant as the shooter was neither physically impossible nor inherently improbable. She was at a lighted intersection when she saw defendant in the vehicle next to the one she was in, she looked at him while he asked Steele for "weed," and she saw him at the liquor store when he commenced shooting. Jones explained that her reluctance to identify defendant from the photo lineup was due to her fear of being known as a "snitch," which could entail gang retaliation. However, she relented and identified defendant's photo after discussing the matter with her mother. She also identified defendant in person at the trial. While Jones's testimony suffered from inconsistencies and raised questions as to her credibility, this presented no more than a circumstance for the jury to resolve. (Young, supra, 34 Cal.4th at p. 1181 ["Resolution of . . . inconsistencies in the testimony is the exclusive province of the trier of fact"].)
Consequently, Jones's testimony was properly considered by the jury, and her identification coupled with Detective Quinn's unchallenged testimony regarding gang rivalry constitutes substantial evidence supporting the verdict.
III
Defendant contends that the $30 assessment imposed by the court pursuant to Government Code section 70373, subdivision (a)(1) must be stricken on ex post facto grounds because the statute is punitive. Defendant committed his offense on April 14, 2008, was convicted on September 18, 2009, and was sentenced on October 16, 2009. Government Code section 70373 became effective January 1, 2009. (Stats. 2008, ch. 311, § 6.5.)
Government Code section 70373, subdivision (a)(1) provides: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction."
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Several cases have rejected defendant's ex post facto argument and none have endorsed it. (See People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1415 (3d Dist.); People v. Fleury (2010) 182 Cal.App.4th 1486, 1492-1494 (3d Dist.); People v. Davis (2010) 185 Cal.App.4th 998, 1000-1001 (2d Dist., Div. Four); People v. Phillips (2010) 186 Cal.App.4th 475, 477-479 (5th Dist.); People v. Knightbent (2010) 186 Cal.App.4th 1105, 1111-1112 (3d Dist.)
In light of the reasoning in these cases, we reject defendant's position.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur:
ROBIE, J.
BUTZ, J.