People v. Bradford CA4/1 ( 2015 )

Filed 3/4/15 P. v. Bradford CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064873
Plaintiff and Respondent,
v. (Super. Ct. No. SCN313589-4)
MICHAEL BRADFORD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kimberlee A. Lagotta, Judge. Affirmed.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da
Silva, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Michael Bradford of assault with a deadly weapon (Pen. Code,
§ 245, subd. (a)(1)) and robbery (Pen. Code, § 211).1 The jury also found true
allegations Bradford committed these crimes for the benefit of, at the direction of, or in
association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1).) The trial
court sentenced Bradford to 15 years in state prison.
Bradford appeals, contending we must reverse his conviction because the trial
court prejudicially erred by failing to exclude his statements to police detectives and
certain gang expert testimony. He additionally contends there was insufficient evidence
to support his conviction for assault with a deadly weapon under the natural and probable
consequences doctrine, and the accumulation of the trial court's errors deprived him of a
fair trial. We are not persuaded by Bradford's contentions and affirm the judgment.
BACKGROUND
Bradford, James Williams, and Dorian Larkin attacked an 18-year-old man,
robbed him of his backpack and cell phone, and then fled in a car driven by Bradford.2
During the robbery, the victim resisted and Williams stabbed him multiple times,
including once in his left shoulder, once in his left chest, and once in his right abdomen
below his ribcage. The latter wound lacerated the right ventricle of the victim's heart.
1 The jury could not reach a verdict on a charge for attempted murder (Pen. Code,
§§ 187, subd. (a), 664).
2 Williams pleaded guilty to attempted murder and to robbery. He also admitted the
truth of a gang enhancement allegation. Larkin pleaded guilty to attempted murder.
2
Within an hour of the stabbing, uniformed gang suppression officers encountered
Williams, Larkin, and a juvenile at a nearby home improvement store. One of the
officers patted down the men and found folding knives in Larkin's and the juvenile's
possession. A week after the stabbing a field evidence technician also found a folding
knife in a pocket behind the driver's seat of the car Bradford drove.
Police detectives subsequently located the victim's backpack in a dumpster at the
end of a dead-end road not far from the home improvement store. A district attorney's
office investigator located a folding knife, with its blade extended, in vegetation in the
same area. The knife was consistent with the type of knife that could have inflicted the
victim's abdomen injury.
Bradford told Detective Douglas Baxter he happened upon Williams, Larkin, and
the juvenile after the trio decided to rob a pedestrian. He reluctantly agreed to act as their
getaway driver. Neither he nor the juvenile participated in the robbery itself, although he
got out of the car to yell at Williams and Larkin to hurry up. As the group fled the scene,
Williams admitted stabbing the victim and threw the knife out of the car window.
Bradford denied advanced knowledge Williams was carrying a knife.
Bradford, Williams, and Larkin were all members of the East Side Crook
Mobsters Crip gang (gang). The officer who contacted Williams, Larkin and the juvenile
at the home improvement store testified gang members commonly carry concealed
weapons, particularly folding knives. Detective Ryan Davis, the prosecution's gang
expert, also testified gang members commonly carry weapons, primarily for protection.
3
Detective Davis additionally testified gang members who go out in squads to
commit robberies are commonly armed to ensure their success. Consequently, resistance
from a victim is typically met with a violent assault.
Detective Davis further testified it is important for every member of the robbery
squad to know who is carrying weapons. This was particularly true for the getaway
driver because the getaway driver is generally in charge. Moreover, because bringing a
weapon into a car puts the driver at risk, it would be viewed as disrespectful not to inform
the driver of the weapon.
In response to hypothetical questions mirroring the evidence in this case, Detective
Davis opined the robbery was committed in association with the gang and benefited both
the gang and the gang's members. In addition, he opined the gang members involved in
the robbery would know whether an accomplice was armed. He also opined it was
foreseeable the victim might try to resist and one of the gang members might try to injure
or kill the victim.
4
DISCUSSION
I
Admission of Police Interview
A
1
Approximately a month after the incident, Detectives Baxter and Davis
interviewed Bradford.3 A patrol officer, whom Bradford knew from prior contacts, was
present during the interview. Before the interview commenced, the patrol officer
collected Bradford's property and engaged in small talk with him. They talked about the
weather, Bradford's work, and Bradford's friends and family.4 Bradford asked whether
the collection of his property meant he was going to jail and the patrol officer explained it
was a routine procedure.5
Once the interview commenced, Detective Baxter immediately informed Bradford
he was under arrest and provided him with the advisements required by Miranda v.
Arizona (1966) 384 U.S. 436, 478. After listening to and confirming his understanding
3 The prosecution played a video recording of the interview for the jury.
4 The patrol officer also engaged in small talk with Bradford during breaks in the
interview.
5 Although not reflected in the interview, the patrol officer arrested Bradford in
connection with the investigation of an attempted murder and an assault with a deadly
weapon before transporting him to the police station for the interview.
5
the advisements, Bradford agreed to speak with the detective. Bradford initially denied
having anything to do with the stabbing and offered alibis for the relevant time period.
Detective Baxter summarized the incident, summarized some of what Bradford's
accomplices had said about the incident, told Bradford his accomplices were blaming
him, and warned him, "If you don't tell me the truth what these dudes said is gonna get
you in the same boat as them and these guys are in f—ing serious trouble."
Bradford asked, "I'm going to jail?" Detective Baxter responded, "Yeah, jail is
like the least you have to worry about, prison, okay?" Bradford clarified, "You're saying
tonight I'm going to jail." Baxter responded, "Yeah, if you don't tell me what happened
you are and tell me the truth."
After Detective Baxter continued to implore Bradford to tell the truth, Bradford
admitted he was driving his sister's car when he came upon Williams, Larkin, and the
juvenile.6 The trio told him they were trying to rob somebody.
Detective Baxter interjected and encouraged Bradford to continue telling the truth.
Bradford said, "I just don't wanna go to jail for nothing." Baxter responded, "You're not
gonna go to jail for what they did I'm telling ya, just tell me the truth." Bradford
lamented further, "I know basically I'm gonna go to jail." Baxter responded, "I don't
know but you gotta tell me but I gotta tell you one thing if you tell me the truth about
6 While Detective Baxter was imploring Bradford to tell the truth, and in the context
of explaining why Bradford's brother decided not to lie for Bradford, Baxter mistakenly
described the incident as a "capital offense." However, there was no other suggestion
during the interview Bradford was facing capital charges, nor was there any apparent
perception by Bradford he was facing such charges.
6
what happened as I know it you're not in anywhere near the amount of trouble they are
but you have to tell me what you did . . . ."
Bradford continued his narrative, stating his accomplices told him who they were
planning on robbing and, applying peer pressure, they persuaded him to be the getaway
driver. He said he stayed in the car until they returned and then dropped them off at
Larkin's girlfriend's house, and then went to his own sister's house. The juvenile called
him later and told him it was a "burnt mission," meaning they did not get anything from
the robbery. The juvenile also told him Williams had stabbed someone during the
robbery. Bradford said he left for Nevada a few days later.
Detective Baxter questioned the veracity of Bradford's claim he stayed in the car
the whole time because it was inconsistent with his accomplices' statements and
eyewitness accounts. Baxter then implored Bradford once again to tell the truth,
implying Bradford's accomplices had named Bradford as the person who actually stabbed
the victim. Baxter also told Bradford, "[I]f you don't tell me who actually stabbed this
kid, you're gonna be in the same boat as everybody else."
However, Bradford remarked he was "basically already in the same boat as
everybody else" because they were blaming the incident on him. Detective Baxter
continued to press him, advising him to tell the truth so he did not "go down for stabbing
somebody if [he] didn't do it." Bradford pointed out he was "gonna go down regardless
either, either way for something else." Baxter agreed Bradford was in trouble if Bradford
was involved in the stabbing; however, Baxter asserted there was "a gigantic difference"
7
between being the stabber and being one of the other participants and implied the stabber
would be in more trouble. Baxter also insisted he was the only one who believed
Bradford was not the stabber, Bradford's friends "did [him] no good in this case," and
Bradford needed to stand up for and help himself by telling the truth.
Bradford agreed. He explained Larkin and Williams accosted the victim and, as
they tussled with him, Williams stabbed him. He denied being involved in the tussle. He
said he got out of the car and yelled at them to "come on 'cause they was taking too long."
The victim finally let go of his backpack and they left. He dropped off Williams, Larkin,
and the juvenile at an apartment complex and then went home himself. Williams threw
the knife out of the car window along the way.
After Bradford finished this account, Detective Baxter reiterated, "[Y]ou get
involved in something like this like I said earlier I can't say you're not in trouble, you are
but don't you see the tremendous difference between somebody who stabbed somebody
over nothing as compared to somebody who's yelling come on, come on let's get out of
here? . . . [¶] . . . [¶] It's a big difference, right? You get arrested but in the end there's a
trial, there's court, the lawyers talk to each other what are we gonna do, let's shake this all
together what comes out at the end?"
Detective Baxter clarified a few points with Bradford and then told him, "Okay,
um, like I said you're gonna have to go to jail tonight the uh regardless of what we
[talked] about tonight the district attorney's office wants you arrested from what your best
friends said about you, okay and running away didn't help." In addition Baxter explained,
8
"[I]n the end I don't know really what's gonna happen about this but we did clear up that
you did not stab somebody, okay? That's really, really important super important, right?"
Bradford asked what he was being charged with and Baxter responded, "Right
now conspiracy and conspiracy for robbery and conspiracy for attempted murder."
However, Baxter explained the charges could change depending on other factors.
The interview paused while Bradford took Detective Baxter and the patrol officer
to the area where he thought Williams discarded the knife. When the interview resumed,
Detective Davis took over and asked Bradford questions about Bradford's gang
involvement. Bradford said he had been a member of the gang for about three years and
his moniker was Little Savage. Williams, Larkin, and the juvenile were also members of
the gang.
Bradford showed Detective Davis the gang's hand sign and provided him with
background information about the gang, including the gang's territory, colors, name,
membership, history, structure, activities, and rivals. Bradford admitted he had to and did
"put in work" for the gang to make a name for himself.
After the interview concluded, but while he was still being recorded, Bradford
used his cell phone to call someone. Bradford informed the person he was going to jail.
He also informed the person of the charges he was facing and that, if found guilty, he
could be facing a 10- or 15-year sentence.
9
2
Before trial, Bradford moved to exclude any statements he made during the
interview, arguing the statements were the involuntary product of implied promises of
leniency. The trial court viewed the video recording of the interview and heard the
parties' arguments. The court determined from the totality of the circumstances Detective
Baxter's comments during the interview did not amount to implied promises of leniency
and Bradford's statements were voluntary.
B
" 'An involuntary confession is inadmissible under the due process clauses of both
the Fourteenth Amendment to the federal Constitution [citation] as well as article I,
sections 7 and 15 of the California Constitution [citation].' [Citation.] 'Under both state
and federal law, courts apply a "totality of circumstances" test to determine the
voluntariness of a confession.' [Citation.] '[C]oercive police activity is a necessary
predicate to the finding that a confession is not "voluntary" within the meaning of the
Due Process Clause of the Fourteenth Amendment.' [Citation.] '[T]he question in each
case is whether the defendant's will was overborne at the time he confessed. [Citations.]
If so, the confession cannot be deemed "the product of a rational intellect and a free
will." ' [Citation.] The burden is on the prosecution to show by a preponderance of the
evidence that the statement was voluntary. [Citation.] 'When, as here, the interview was
tape-recorded, the facts surrounding the giving of the statement are undisputed, and the
10
appellate court may independently review the trial court's determination of
voluntariness.' " (People v. Dowdell (2014) 227 Cal. App. 4th 1388, 1400-1401.)
"In evaluating the voluntariness of a statement, no single factor is dispositive.
[Citation.] The question is whether the statement is the product of an ' "essentially free
and unconstrained choice" ' or whether the defendant's ' "will has been overborne and his
capacity for self-determination critically impaired" ' by coercion. [Citation.] Relevant
considerations are ' "the crucial element of police coercion [citation]; the length of the
interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's
maturity [citation]; education [citation]; physical condition [citation]; and mental
health." ' " (People v. Williams (2010) 49 Cal. 4th 405, 436.)
" 'In assessing allegedly coercive police tactics, "[t]he courts have prohibited only
those psychological ploys which, under all the circumstances, are so coercive that they
tend to produce a statement that is both involuntary and unreliable." ' " (People v.
Williams, supra, 49 Cal.4th at p. 436.) "It is well settled that law enforcement may
confront a witness with what they know. [Citation.] They may also discuss any
advantages that ' "naturally accrue" ' from making a truthful statement. [Citations.] They
may explain the possible consequences of the failure to cooperate as long as their
explanation does not amount to a threat contingent upon the witness changing her story.
[Citations.] They may even engage in deception as long as it is not of a type 'reasonably
likely to produce an untrue statement.' " (People v. Quiroz (2013) 215 Cal. App. 4th 65,
79.)
11
In this case, Bradford points to two tactics he contends caused his statements to be
involuntarily coerced. First, he contends the patrol officer impermissibly engaged in
ingratiating small talk to soften him up before Detective Baxter provided him with the
Miranda advisements and, thereby, reduced the impact of the advisements. Second, he
contends Detective Baxter impermissibly implied he would be treated more leniently if
he confessed.
Regarding the first contention, the Supreme Court has held a waiver of Miranda
rights is involuntary if it " 'result[ed] from a clever softening-up of a defendant through
disparagement of the victim and ingratiating conversation.' " (People v. Gurule (2002) 28
Cal. 4th 557, 602, citing People v. Honeycutt (1977) 20 Cal. 3d 150, 160-161.)
Nonetheless, the Supreme Court has also held this rule does not apply where, as here, the
police do not discuss the victim and there is no other evidence the small talk overbore the
defendant's free will. (People v. Gurule, supra, at p. 602; People v. Scott (2011) 52
Cal. 4th 452, 478.)
Regarding the second contention, the Supreme Court in People v. Holloway
(2004) 33 Cal. 4th 96, addressed whether "suggestions that defendant would benefit from
giving a truthful, mitigated version of the crimes . . . constituted implied threats and
promises of leniency sufficient to render the subsequent admissions involuntary." (Id.
at p. 115.) The Court concluded that, as occurred here, "suggesting that defendant might
benefit in an unspecified manner from giving a truthful, mitigated account of events"
does not cross the fine line between permissibly "factually outlining the benefits that may
12
flow from confessing" and impermissibly "impliedly promising lenient treatment in
exchange for a confession." (Id. at p. 117.) Accordingly, we conclude Bradford has not
established the trial court prejudicially erred in denying his motion to exclude his
statements to police detectives.
II
Admission of Bradford's Remarks About Prior Crimes and Custody
A
After the court denied Bradford's motion to exclude his statements to police
detectives, Bradford moved under Evidence Code section 352 to exclude specific remarks
he made during the interview about prior crimes and custody, including that he was
"locked up," "got out of jail," "got out of jail in August," "did a burglary before," "got
caught for [his] burglary," and "robbed a few houses and got caught." Bradford argued
the admission of these remarks would cause the jury to improperly perceive him to be a
repeat offender and prevent the jury from independently analyzing the charged crimes.
Conversely, the People argued the remarks were relevant to the gang enhancement
allegations because the remarks tended to prove Bradford's gang involvement and the
gang's primary activities. The People also argued the remarks showed Bradford was
criminally sophisticated and were, therefore, relevant to his credibility and whether he
was culpable for any crimes under the natural and probable consequences doctrine. The
People suggested the court give a limiting instruction directing the jury not to infer
Bradford's guilt simply because he had committed crimes in the past.
13
The trial court found the remarks admissible under Evidence Code section 352,
noting Bradford volunteered the remarks to provide context for his statements mitigating
or distinguishing his conduct from his accomplice's conduct and they were relevant to the
gang enhancement allegations. To reduce the remarks' potential prejudice, the court
instructed the jury, "You have heard evidence of statements made by Mr. Bradford to
Detectives Baxter and Davis regarding prior criminal conduct that Mr. Bradford has
engaged in, gang affiliation or gang membership, and references to Mr. Bradford having
previously been incarcerated. You must not conclude from this evidence that
Mr. Bradford is a bad person, has a bad character, or has a disposition to commit crimes."
B
Evidence Code section 352 permits a court to "exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury." " 'The "prejudice" referred to in
Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against defendant as an individual and which has very little effect on the
issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with
damaging.' " (People v. Bolin (1998) 18 Cal. 4th 297, 320.)
14
A trial court has broad discretion to determine both the relevance of evidence and
whether its prejudicial effect outweighs its probative value. (People v. Jones (2011) 51
Cal. 4th 345, 373.) " 'A trial court's exercise of discretion in admitting or rejecting
evidence pursuant to Evidence Code section 352 "will not be disturbed on appeal unless
there is a manifest abuse of that discretion resulting in a miscarriage of justice." ' "
(People v. Thomas (2011) 51 Cal. 4th 449, 485; accord, People v. Scott, supra, 52 Cal.4th
at p. 491.)
Here, Bradford made nearly all of the challenged remarks during his interview
with Detective Davis. As the trial court noted, the remarks were volunteered, not elicited,
and Bradford made them in the context of minimizing his involvement in the stabbing
and distinguishing himself from the other gang members. Considered in their context,
the remarks had direct bearing on whether the gang was a criminal street gang, whether
Bradford was affiliated with and actively participated in the gang, and whether Bradford
could reasonably foresee an assault on the victim with a deadly weapon was a natural and
probable consequence of the robbery of the victim. While the remarks were potentially
prejudicial, the trial court mitigated the prejudice with its limiting instruction, which we
presume the jury followed. (People v. Adams (2014) 60 Cal. 4th 541, 578.)
Consequently, Bradford has not established the trial court manifestly abused its discretion
in determining the remarks were not substantially more prejudicial than probative.
15
III
Admission of Gang Expert Evidence
A
Before trial, Bradford moved to exclude any gang expert testimony opining a gang
member in general and a getaway driver in particular knows when a cohort is armed. The
trial court denied the motion, finding the testimony was proper and relevant.
B
We review a trial court's decision to admit expert testimony for abuse of
discretion. The trial court's exercise of its discretion "is not grounds for reversal unless
' "the court exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice." ' " (People v. Ochoa (2001) 26 Cal. 4th
398, 437-438, abrogated on another ground in People v. Prieto (2003) 30 Cal. 4th 226,
263, fn. 14.)
If relevant to a case, a gang expert may testify about the culture and habits of
criminal street gangs. (People v. Gonzalez (2006) 38 Cal. 4th 932, 944 (Gonzalez).) The
gang expert may also give opinions in response to hypothetical questions mirroring the
evidence in a case. (Id. at p. 946; People v. Xue Vang (2011) 52 Cal. 4th 1038, 1045.)
Such opinions may encompass whether a gang member would know whether a fellow
gang member was armed because such information is " ' "sufficiently beyond common
experience that the opinion of the expert would assist the trier of fact." ' " (Gonzalez,
supra, at p. 944.) Contrary to Bradford's assertions, People v. Killebrew (2002) 103
16
Cal. App. 4th 644 (Killebrew) does not bar such opinions because the Supreme Court
expressly "disapprove[d] of any interpretation of Killebrew . . . as barring, or even
limiting, the use of hypothetical questions. Even if expert testimony regarding the
defendants themselves is improper, the use of hypothetical questions is proper." (People
v. Xue Vang, supra, at p. 1048, fn. 3.) As the gang expert in this case testified in response
to hypothetical questions, and not about whether Bradford himself knew Williams was
armed, the gang expert's testimony was proper and the trial court did not abuse its
discretion by declining to exclude it.
IV
Sufficiency of Evidence to Support Conviction for Assault with a Deadly Weapon
Bradford contends there was insufficient evidence to support his conviction for
assault with a deadly weapon under the natural and probable consequences doctrine. In
evaluating a sufficiency of the evidence claim, " 'we review the whole record to
determine whether any rational trier of fact could have found the essential elements of the
crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial
evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. [Citation.]
"Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the
17
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for
insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever
is there sufficient substantial evidence to support' " the jury's verdict.' " (People v.
Manibusan (2013) 58 Cal. 4th 40, 87.)
"The natural and probable consequences doctrine is based on the recognition that
those who aid and abet should be responsible for the harm they have naturally, probably,
and foreseeably put in motion." (People v. Avila (2006) 38 Cal. 4th 491, 567.) Under the
doctrine, " '[a] person who knowingly aids and abets criminal conduct is guilty of not
only the intended crime [target offense] but also of any other crime the perpetrator
actually commits [nontarget offense] that is a natural and probable consequence of the
intended crime. The latter question is not whether the aider and abettor actually foresaw
the additional crime, but whether, judged objectively, it was reasonably foreseeable.
[Citation.]' [Citation.] Liability under the natural and probable consequences doctrine 'is
measured by whether a reasonable person in the defendant's position would have or
should have known that the charged offense was a reasonably foreseeable consequence of
the act aided and abetted.' " (People v. Medina (2009) 46 Cal. 4th 913, 920.) " '[T]o be
18
reasonably foreseeable "[t]he consequence need not have been a strong probability; a
possible consequence which might reasonably have been contemplated is enough." ' "
(Ibid.)
Here, the evidence viewed most favorably to the judgment showed Bradford aided
and abetted a strong-arm robbery. The evidence also showed: (1) robbery victims will
sometimes resist; (2) Bradford and his accomplices were gang members, (3) gang
members commonly carry weapons, particularly folding knives, to protect themselves
and ensure successful endeavors; and (4) gang members, particularly getaway drivers,
will know whether anyone in their group is armed. This evidence was bolstered by the
discovery of knives in the getaway car and in the possession of Larkin and the juvenile.
Under such circumstances, a reasonable person in Bradford's position would have or
should have known the commission of an assault with a deadly weapon was a reasonably
foreseeable consequence of the commission of the robbery he aided and abetted. As the
applicable test is an objective one rather than a subjective one, whether Bradford actually
knew Williams had a weapon is immaterial. (People v. Montes (1999) 74 Cal. App. 4th
1050, 1056.) Therefore, Bradford has not established there was insufficient evidence to
support his conviction for assault with a deadly weapon under the natural and probable
consequences doctrine.
19
V
Cumulative Impact of Claimed Errors
Bradford contends the cumulative impact of the above trial court errors deprived
him of his federal and state constitutional due process right to a fair trial. Because we
have rejected his other claims of error, we must necessarily reject this contention as well.
(People v. Williams (2013) 58 Cal. 4th 197, 291.)
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
20