P. v. George 9/15/04 CA4/1

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2004 » P. v. George 9/15/04 CA4/1

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D042980

Case Date: 09/15/2004

Preview:Filed 9/15/04

CERTIFIED FOR PARTIAL PUBLICATION1 COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. KEYON GEORGE, Defendant and Appellant.

D042980

(Super. Ct. No. SCE228278)

APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed in part, reversed in part and remanded.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Tami Falkenstein Hennick, Deputy Attorney General, for Plaintiff and Respondent.

1 Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I and II.

This case presents the issue of whether the trial court's imposition of a discretionary upper term sentence based on certain aggravating facts found by the court violates a criminal defendant's right to a jury trial in accordance with United States Supreme Court's recent decision in Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531] (Blakely). In the published part of this opinion, we conclude that Blakely precludes a trial court's determination of facts not found by the jury or admitted by the defendant (other than those arising out of a prior conviction) as a basis for imposing an upper term sentence. In the unpublished portion of the opinion, we reject the defendant's arguments that the trial court erred in (1) denying his request to bifurcate trial on the enhancement allegations that he acted for the benefit of a criminal street gang in committing the underlying offense, (2) admitting hearsay and expert evidence relating to the enhancement, and (3) failing to give a limiting instruction regarding the jury's use of such evidence. However, we agree with the defendant's contention that the evidence was insufficient to support his conviction of a second robbery count. We reverse the judgment as to the second robbery count and the sentence and remand the matter for resentencing. FACTUAL AND PROCEDURAL BACKGROUND Kenyon George and three other young men (Jerry Grinston, Darrow Haygood and Anthony Gardner) robbed Jesse Savage at gunpoint while Jesse was in his bedroom at his parents' home, where Gardner had previously lived for a period of time. The men took $800 in cash, marijuana, CDs, DVDs, a cell phone, a hat, and Jesse's identification. As the men were leaving, Grinston and Gardner confronted Jesse's older brother, Paul, as he emerged from the bathroom; Grinston "jammed" a gun against Paul's chest, telling Paul 2

to get upstairs and saying "I'm Piru. I'll smoke you." Grinston ordered Paul to lie down in Jesse's bedroom. After Paul complied, all four assailants left the house and ran off in different directions; George carried many of the stolen items with him. Jesse called 911 and La Mesa Police Officer Malcolm Chambers was in the area on his police motorcycle when he received a dispatch call about the incident. Officer Chambers saw George in a "dead run" and, stepping out from behind a vehicle with his gun drawn, stopped George, who was wearing clothing in colors associated with the Eastside Piru gang and a hat later identified as Jesse's. In a curbside lineup, Jesse identified George as one of the assailants; he also identified the revolver George had used in the incident, which officers found discarded near the Savages' home. Officer Chambers arrested George, who had Jesse's cell phone and identification and $820 in cash with him. As the officer was putting George into the police car, George sang the word "Piru." Police also arrested Gardner and the district attorney filed an information charging both men with two counts of residential robbery in concert and alleging that they personally used a firearm and acted for the benefit of a criminal street gang as to each count. The information also alleged that George had a serious felony prior and a strike prior. Police subsequently arrested Haygood and Grinston as well. At the time of his arrest, Grinston told the officers he was a member of the Eastside Piru gang At George's trial, the prosecution introduced evidence of the foregoing, as well as testimony of gang expert Detective John Davis that, based on the circumstances, George committed the robbery to promote, further or assist the Eastside Piru gang. In his 3

defense, George introduced evidence that he was not a gang member, but had participated in the incident because he thought Grinston, who he knew was a Piru gang member, would kill him, members of his family or his girlfriend if he refused to do so. He also testified that he was highly intoxicated at the time and that he was wearing pants and shoes he had borrowed from Grinston, with whom he was temporarily living, because his clothes were dirty. The jury convicted George of both counts and made a true finding that George had acted for the benefit of a criminal street gang. It also found that George was not personally armed with a firearm. In a bifurcated proceeding, the trial court found true the allegation that George suffered a serious felony strike prior and thereafter sentenced George to prison for 33 years, consisting of (1) an upper term of 18 years plus 10 years for the gang enhancement on count 1, (2) a concurrent term of 18 years plus a 10 year gang enhancement on count 2, and (3) a 5 year enhancement for George's serious felony prior. DISCUSSION I Admission of Evidence Relevant to the Gang Enhancements George argues that the trial court violated his constitutional rights to due process and confrontation of witnesses against him by refusing to bifurcate the gang allegation, admitting gang evidence and failing to give a limiting instruction regarding the purposes for which the jury could consider such statements.

4

1.

Denial of Bifurcation of the Enhancements Prior to trial, George sought bifurcation of the trial of the criminal street gang

enhancements from the trial of the underlying offenses, arguing that the gang-related evidence was unduly prejudicial as to the substantive offenses. The prosecutor responded that the enhancement was too intertwined in the underlying offenses to allow bifurcation and that virtually every witness would have to be recalled if the court granted George's request. The trial court denied the request and on appeal George contends that the combined trial of the enhancement and underlying offenses was unduly prejudicial and denied him a fair trial. The primary consideration for the trial court in ruling on a request to bifurcate a sentence enhancement is whether the admission of evidence relating to the enhancement during the trial on the charged offenses would pose a substantial risk of undue prejudice to the defendant. (People v. Calderon (1994) 9 Cal.4th 69, 77-78 [prior conviction enhancement].) The determination of whether the risk of undue prejudice to the defendant requires bifurcation is within the sound discretion of the trial court. (Id. at p. 79.) On appeal, we review the trial court's ruling for an abuse of discretion, based on a review of the record that was before the trial court at the time of the ruling. (People v. Price (1991) 1 Cal.4th 324, 388.) However, even if the trial court's ruling was correct at the time it was made, reversal is required if the defendant shows that the failure to bifurcate resulted in "'gross unfairness' amounting to a denial of due process." (People v. Mendoza (2000) 24 Cal.4th 130, 162, quoting People v. Arias (1996) 13 Cal.4th 92, 127.)

5

Bifurcation of a sentence enhancement is generally not required where the evidence relevant to the enhancement is also relevant and admissible in the trial of the underlying offenses. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1051 [criminal street gang enhancement]; People v. Calderon, supra, 9 Cal.4th at pp. 78-79 [prior conviction enhancement].) Thus, we consider whether the evidence relating to the gang enhancement was also admissible in the trial of the underlying offenses. 2. Admissibility of the Gang Evidence At trial, the court admitted the following evidence offered by the prosecution: (a) Jesse's testimony that after Grinston and Gardner arrived at his parents' apartment but before George and Haygood got there, Grinston gave Gardner a "pep talk," saying "I know you're cool. I know you're down. I know you've got heart. You're going to have to prove to these guys"; (b) Jesse's testimony that during the robbery, one of the assailants said "Piru"; (c) Paul's testimony that Grinston told him "I'm Piru. I'll smoke you"; (d) Officer Chambers's testimony that George sang the word "Piru" just after his arrest; and (e) police testimony regarding Grinston's admission about his membership in the Eastside Piru gang. The court also allowed the testimony of the prosecution's gang expert about gangs generally (including the criteria for determining whether someone is a documented gang member and how new gang members "put in work" committing crimes for the gang to gain respect and recognition within the gang and to advance the gang's reputation in the community) and the Eastside Piru gang in particular (its colors and common criminal activities), as well as the expert's opinions that based on the circumstances of the case, the assailants were involved in a conspiracy to commit a gang-related robbery and George 6

committed the robberies with the specific intent to promote, further or assist the Eastside Piru gang. George contends that the trial court erred in admitting this evidence because (i) the evidence was not relevant to the underlying charges and was unduly inflammatory and prejudicial, (ii) certain of the evidence was inadmissible hearsay, (iii) the admission of the hearsay evidence violated his state and federal constitutional rights of confrontation and cross-examination, and (iv) the expert testimony regarding the assailants' subjective intent was improper. A. Gang Evidence Generally Gang evidence is admissible in the prosecutor's case-in-chief, regardless of whether there is a criminal street gang enhancement allegation, where such evidence is relevant to establish motive, intent or some fact other than the defendant's criminal propensity, provided that the probative value of the evidence is not substantially outweighed by its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193; generally Evid. Code,

Download P. v. George 9/15/04 CA4/1.pdf