People v. Love CA2/2 ( 2024 )

Filed 5/21/24 P. v. Love CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B326635
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA138408)
v.
DAVAUGHN LOVE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Conditionally
reversed and remanded with directions.
Kelly C. Martin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Gary A. Lieberman, Deputy
Attorney General, for Plaintiff and Respondent.
******
Davaughn Love (defendant) appeals the trial court’s denial,
following an evidentiary hearing, of his petition for resentencing
under Penal Code section 1172.6.1 We reject six of his seven
arguments for reversal, but remand for a hearing on whether
defense counsel’s representation, at the outset of the hearing,
that defendant had “waived” his right to appear was based on a
voluntary, knowing and intelligent waiver. If it was, the trial
court’s denial of relief is affirmed; if it was not, the trial court is
directed to conduct a new evidentiary hearing.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Underlying crimes
In August 2015, defendant belonged to the “Blocc Crips”
gang, which is a subset of the “Rolling 100s” gang. The month
before, a prominent member of the Rolling 100s gang was gunned
down, and the Rolling 100s—and their affiliates—openly declared
war on all rival gangs; they called it “100 Days, 100 Nights.” The
Hoover Criminals gang was one of those rival gangs.
On August 11, 2015, defendant and his fellow Blocc Crips
gang member Antwoine Vaughn (Vaughn) asked their friend
1 All further statutory references are to the Penal Code
unless otherwise indicated.
Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
We therefore refer to the law formerly codified at section 1170.95
as section 1172.6.
2
Timothy Boykins (Boykins) if they could use his car to drive into
Hoover Criminals territory. When Boykins declined, defendant
and Vaughn decided that (1) defendant would drive Vaughn in a
white Dodge Magnum registered to Nichelle Carter (Carter), a
woman with whom defendant was in a relationship (rather than
in the Audi defendant owned in his own name); and (2) Boykins
would follow them separately in his own car, so he could
videotape their exploits.
When they arrived in Hoover Criminals territory,
defendant pulled up alongside Akeem Bladen (Bladen), his
girlfriend, and their two children, who were all walking on the
sidewalk. Bladen was not a gang member, and did not know
defendant or Vaughn. Defendant stopped the car, and Vaughn
got out and approached Bladen. After asking each other, “What’s
up?” Vaughn immediately opened fire, shooting Bladen in the
back of the leg. When Bladen tried to get away by running across
the adjacent intersection, Vaughn continued to shoot him from
behind, even after Bladen fell to the ground and continued to
crawl away. Vaughn ultimately unloaded 10 bullets into
Bladen—in his head, chest, hand, and leg. Miraculously, Bladen
survived. Vaughn was shooting “wildly,” and three other bullets
he shot struck a passing car. Defendant waited for Vaughn to
finish his rampage and get back into the car, and then drove off
with him.
The following day, defendant texted Vaughn to remind him
to “move” his gun. He signed off the message with “HK,” which a
gang expert explained is short for “Hoover Killer.”
In an October 2015 jailhouse call, defendant and others
discussed the shooting and defendant did not deny his
“involvement.”
3
B. Prosecution, conviction, and appeal
The People charged defendant with (1) the attempted
premeditated murder of Bladen (§§ 187, subd. (a), 664), and (2)
shooting at the occupied vehicle (§ 246). The People further
alleged that these crimes were committed “for the benefit of, at
the direction of, or in association with” a criminal street gang (§
186.22, subd. (b)(4)), and that a principal discharged a firearm
causing great body injury (§ 12022.53, subds. (d) & (e)(1)). The
People additionally alleged that defendant had two prior “strike”
convictions within the meaning of our “Three Strikes” law (§§
1170.12, subds. (a)-(d), 667, subds. (b)-(j)).
Defendant and Vaughn were tried together, but before
separate juries. The trial court instructed defendant’s jury that
defendant could be found guilty of attempted premeditated
murder if defendant (1) directly aided and abetted Vaughn in
committing attempted murder; or (2) aided and abetted Vaughn
in committing assault or conspiracy to commit assault, if
attempted murder was a natural and probable consequence of
those lesser crimes.
A jury convicted defendant of both crimes and found all
enhancement allegations to be true.
The trial court sentenced defendant to prison for 47 years
to life, comprised of seven years to life for the attempted murder,
25 years to life for the discharge of a firearm, and 15 years to life
for the shooting at an occupied vehicle—all to run consecutively.
II. Procedural Background
On September 18, 2019 and October 7, 2019, defendant
filed two separate petitions for resentencing under section
1172.6.
4
After multiple appeals and remands occasioned by changes
in the law, the trial court set the matter for an evidentiary
hearing. The court held the hearing on October 31, 2022, at
which the parties elected to rely on the trial record and did not
introduce any new evidence.
The trial court denied relief, finding that the People had
proven defendant guilty of attempted murder under a currently
valid theory beyond a reasonable doubt.
Defendant filed this timely appeal.
DISCUSSION
Defendant raises seven challenges to the trial court’s denial
of his section 1172.6 petition. We consider each in turn.
I. Insufficient Record of Waiver of Defendant’s
Presence
When defendant did not appear at the evidentiary hearing
despite the trial court’s issuance of an order to the prison to allow
him to participate remotely, the trial court asked defendant’s
attorney whether defendant had “waived his appearance for
these purposes.” The attorney responded, “Yes,” but there was no
further discussion of the issue.
Defendant argues that this was error because the record
does not affirmatively demonstrate the validity of defendant’s
waiver. To be valid, a criminal defendant’s waiver of his presence
at trial must be “voluntary, knowing and intelligent.” (People v.
Davis (2005) 36 Cal.4th 510, 531.) What is more, when a
defendant’s lawyer communicates the defendant’s waiver of his
presence (rather than the defendant personally making the
waiver), “there must be some evidence” in the record “that [the]
defendant understood the right [to be present that] he was
waiving and the consequences of doing so.” (Id. at p. 532.)
5
In the brief exchange between the trial court and
defendant’s lawyer in this case, defendant’s lawyer did not relay
that he had informed defendant of his right to attend the
evidentiary hearing or described to defendant the consequences of
not attending. Consequently, and as the People concede, the
waiver is not valid on the record before us.
However, because defendant’s attorney in this case
indicated that defendant “waived” his right—rather than counsel
merely asserting that he was appearing on his client’s behalf
(People v. Quan (2023) 96 Cal.App.5th 524, 535) or that the client
had no right to appear that necessitated a waiver (People v.
Basler (2022) 80 Cal.App.5th 46, 59-60)—the defect here is not
the total absence of a waiver; instead, we are confronted with an
inadequate record by which to assess whether the waiver was
voluntary, knowing and intelligent. As a result, we remand to
the trial court to assess whether defendant’s attorney’s prior
indication of “waiver” was made while defendant was aware of
his right to appear and of the consequences of failing to appear.
If the waiver was voluntary, knowing and intelligent—and hence
was valid—the court’s order denying relief under section 1172.6
shall remain in force (in light of our resolution of the other issues
below); but if the waiver was not voluntary, knowing and
intelligent—and hence was invalid—then the denial of relief
must be vacated and defendant must be accorded a new
evidentiary hearing.
II. Reliance on Evidence Inadmissible Under
Confrontation Clause
Defendant argues that the trial court erred in relying on
testimony given by Carter that (1) she was defendant’s wife on
the day of the shooting; and (2) defendant approached her that
6
day to use the white Dodge Magnum, which was registered to
her. However, Carter’s testimony was admitted at trial only
against Vaughn (and thus only heard by Vaughn’s separate jury);
it was inadmissible against defendant because Carter had
invoked her spousal privilege not to testify. Because a trial court
conducting an evidentiary hearing under section 1172.6 may only
consider evidence that was “previously admitted at any prior . . .
trial” or “is admissible under current law” (§ 1172.6, subd. (d)(3)),
the trial court erred in resting its implicit finding that defendant
acted with the requisite intent to kill partly on the fact that
defendant “us[ed] his wife’s car” rather than his own car—which
tended, in the court’s view, to show that defendant knew in
advance of the grave nature of what he and Vaughn were about
to do. The People concede error.
Because we exercise our discretion to overlook defendant’s
forfeiture of this issue, our analysis comes down to whether the
trial court’s error was harmless beyond a reasonable doubt (due
to the Confrontation Clause implications) (see People v. Burney
(2009) 47 Cal.4th 203, 232), and whether the error was
reasonably likely to result in a different outcome (due to the
statutory error in admitting the evidence) (People v. Clark (2021)
62 Cal.App.5th 939, 968). We conclude that the error is not
reversible because the trial court’s consideration of Carter’s
testimony was harmless beyond a reasonable doubt for two
reasons.
First, Carter’s testimony itself adds very little beyond the
evidence properly considered from defendant’s trial. Carter’s
testimony that she was his wife is of little consequence because
the jury elsewhere heard that she was in a “relationship” with
him; the precise nature of that relationship adds little. Moreover,
7
Carter’s testimony that defendant asked her to use her Magnum
prior to the shooting—from which the trial court inferred that he
had “switched cars” and hence was trying to avoid detection
because he was about to commit a very serious crime—is also of
little consequence because the jury elsewhere heard that
defendant opted to drive a Magnum not registered in his name
rather than the Audi registered in his name, which gives rise to
the same inference that defendant tried to avoid detection
because he was about to commit a very serious crime.
Second, the evidence regarding defendant’s efforts to avoid
detection was but a sliver of the much larger pie of evidence that
the trial court relied upon to find that defendant acted with the
intent to kill. In totality, the trial court relied upon evidence that
(1) defendant had a motive to kill people he believed to be rival
gang members—specifically, (a) the ongoing “100 Days, 100
Nights” feud, and (b) a rap music video made within six weeks
before or after Bladen’s shooting, which referred to sadness at the
death of the Rolling 100s gang member as well as the need for
retaliation, and which featured Vaughn pretending to shoot
people and prepping a gun while in the passenger seat of a car;
(2) defendant took actions in advance of the shooting that
indicate an intent to avoid detection for a more severe crime—
specifically, defendant drove the Magnum that was owned by
Carter rather than the Audi owned in his name; (3) defendant
and Vaughn planned to commit a shooting rather than a
fistfight—specifically, (a) only Vaughn exited the car, which
seems more consistent with a plan that Vaughn be a shooter
rather than a pugilist (where Vaughn might need defendant as
backup), and (b) defendant and Vaughn asked Boykins to trail
them in a separate car that could act as a diversion after the
8
shooting; (4) defendant took actions during the incident
indicating his foreknowledge that it would involve a shooting
rather than a fistfight—namely, defendant waited in the
Magnum for Vaughn to fire off numerous shots; (5) defendant
reminded Vaughn after the shooting to get rid of the gun; and (6)
defendant failed to deny involvement in the shooting during the
October 2015 jail call. All of this evidence was properly admitted
at the trial and exists independently of Carter’s testimony; the
trial court’s erroneous reliance on Carter’s testimony was
accordingly harmless beyond a reasonable doubt.
Defendant resists this conclusion with three arguments.
First, he argues that the sole evidence that Carter was his “wife”
was her testimony. This is true, but the exact legal status of
their relationship is of little import for the reasons explained
above. Second, he argues that it was “not unusual” for him to
drive the Magnum, but the frequency with which defendant chose
to drive the Magnum does not negate the importance of the fact
that he specifically decided to drive a vehicle not registered in his
name to the shooting. Third and lastly, defendant argues that,
absent Carter’s testimony that the Magnum defendant drove that
day was hers, there is insufficient evidence that the Magnum did
not belong to him. But there is no evidence of anyone else
involved in the shooting owning a white Dodge Magnum.
III. Prosecutorial Error
Defendant argues that the prosecutor impermissibly
referred to evidence never introduced at trial or at the
evidentiary hearing—namely, that defendant and his wife
“switched [cell] phones” prior to the shooting. To be sure, a
prosecutor errs by “misstat[ing] the evidence or go[ing] beyond
the record.” (People v. Fayed (2020) 9 Cal.5th 147, 204.) Here,
9
the evidence indicated that Carter had two phones registered to
her—one that she used, and one that defendant used. There was
no evidence that Carter and defendant “switched phones” on the
day of the shooting. Thus, the prosecutor committed error. The
People concede as much.
Because we exercise our discretion to overlook defendant’s
forfeiture of this issue, our analysis once again comes down to
whether this error was harmless beyond a reasonable doubt (to
the extent it implicates the federal due process protection against
prosecutorial error) or whether the error was reasonably likely to
result in a different outcome (to the extent it implicates merely
the state due process protection). (People v. Fernandez (2013) 216
Cal.App.4th 540, 564.)
Although the trial court recited the prosecutor’s
misrepresentation that Carter and defendant switched phones as
one of the court’s many reasons for finding defendant harbored
an intent to kill, the prosecutor’s error was harmless beyond a
reasonable doubt for two reasons.
First, whether defendant “switched phones” is pertinent to
whether he was trying to avoid detection due to the more
egregious nature of the crime he was planning to commit, which
tends to show he and Vaughn were intending to kill rival gang
members rather than assault them. As noted above, however,
the evidence that defendant drove a car not registered in his
name rather than one traceable to him establishes that very
same inference.
Second, whether defendant took actions to avoid detection
is just one of the many categories of evidence—all described
above—that overwhelmingly support the trial court’s finding that
defendant acted with the intent to kill.
10
Defendant’s chief rejoinder is that the trial court’s citation
of this nonexistent evidence means that it “influenced the court’s
ruling” and mandates reversal because “there is no way to know
how heavily the court weighed that factor.” Accepting this
argument would mean that reversal would always be required
whenever a trial court relies in part on a prosecutor’s
misstatement of the evidence. That is not the law. Instead, the
law requires us to evaluate whether the remaining evidence on
the point at issue is so overwhelming in quantity or quality that
the trial court’s reliance on the prosecutor’s misstatement was
harmless beyond a doubt. That is the analysis we have
undertaken.
IV. Trial Court’s Violation of Jury Instruction
In independently assessing whether defendant acted with
the intent to kill, the trial court was obligated to follow
CALCRIM No. 224—the instruction that obligates a trier of fact
able to “draw two or more reasonable conclusions from the
circumstantial evidence,” when “one of those reasonable
conclusions points to innocence and another to guilt,” to “accept
the one that points to innocence.” (CALCRIM No. 224.)
Defendant urges that the trial court erroneously disregarded this
instruction when it (1) rejected Boykins’s testimony that the plan
was to commit a “beatdown” (the reasonable conclusion favoring
innocence) in favor of the inference that Boykins had
accompanied them in a separate car to provide a diversion (the
reasonable conclusion favoring guilt); and (2) rejected the
People’s gang expert’s testimony that the letters “HK” used by
defendant to sign off the post-shooting text message did not
“relate[] to the shooting itself” (the reasonable conclusion
favoring innocence) in favor of the inference that “HK” is an
11
acronym for “Hoover Killer” and hence is evidence of defendant’s
motive (the reasonable conclusion favoring guilt).
We independently determine that the trial court did not
err.
With respect to the first point, the trial court was not
confronted with a conflict between Boykins’s testimony and a
competing inference. That is because the trial court disbelieved
Boykins’s explanation that the plan was merely to assault rival
gang members; the court observed that it was not “just
automatically” going to “believe everything [Boykins] says.” To
the extent defendant suggests that a trial court must always find
witnesses credible when assessing whether there are conflicting
inferences under CALCRIM No. 224, we reject that suggestion
because it flies in the face of the settled rule that assessing
witness credibility is inherently within the province of the trier of
fact. (People v. Mumin (2023) 15 Cal.5th 176, 202.) With respect
to the second point, the trial court did not face conflicting
inferences necessitating resort to CALCRIM No. 224. The
expert’s testimony that “HK” did not “relate[]” to Bladen’s
shooting and hence was not an admission to Bladen’s shooting
does not conflict with the trial court’s assessment that
defendant’s use of an abbreviation for “Hoover Killer” still
constituted evidence of his motive for shooting people he believed
to be Hoover Criminals gang members.
V. Procedural Error
Defendant argues that none of the trial exhibits—
specifically, the post-shooting text message, the rap music video,
and the jailhouse call—were formally admitted into evidence at
the evidentiary hearing, and thus cannot support the trial court’s
denial of his section 1172.6 petition. He is wrong. The plain text
12
of section 1172.6 states that “[t]he admission of evidence in the
[evidentiary] hearing shall be governed by the Evidence Code,
except that the court may consider evidence previously admitted at
any prior hearing or trial that is admissible under current law . . .
.” (§ 1172.6, subd. (d)(3), italics added.) This italicized language
provides that the evidence “previously admitted at . . . trial”—
which in this case indisputably includes the trial exhibits—may
be considered at the evidentiary hearing; nothing in the statute
requires formal re-admission of that evidence during the
evidentiary hearing. We decline to create an additional
procedural step obligating the trial court to utter the magic words
“I re-admit this” in order to recognize evidence that is already
part of the record of conviction. That would elevate form over
substance and turn section 1172.6 proceedings into a game of
procedural “gotcha.”
VI. Admission of Rap Music Video
Defendant argues that the trial court erred in relying on
the rap music video in assessing whether defendant acted with
the intent to kill because Evidence Code section 352.2 altered the
standard by which the admission of such evidence is considered.
The parties argue at length about whether Evidence Code section
352.2 applies “retroactively,” and the question of retroactivity is a
complex one in this case: Section 1172.6 provides that a trial
court at an evidentiary hearing “may consider evidence
previously admitted at any prior hearing or trial that is
admissible under current law” (§ 1172.6, subd. (d)(3), italics
added), and section 352.2 was enacted but was not yet effective at
the time of defendant’s evidentiary hearing. We need not address
the question of the applicability of Evidence Code section 352.2
because, even if we assume it is retroactively applicable in this
13
case, the trial court did not abuse its discretion in admitting the
rap music video under the new standard.
Evidence Code section 352.2 effectively modifies the default
standard for assessing whether the probative value of proffered
evidence is substantially outweighed by the danger of undue
prejudice set forth in Evidence Code section 352. (Compare Evid.
Code, § 352.2 with id., § 352.) More specifically, section 352.2
makes two modifications pertinent to this case. First, it dictates
that the “probative value” of any “form of creative expression”—
which indisputably includes the rap music video at issue in this
case—“is minimal” unless it was (1) “created near in time to the
charged crime or crimes,” (2) “bears a sufficient level of similarity
to the charged crimes or crimes,” or (3) “includes factual detail
not otherwise publicly available.” (Evid. Code, § 352.2, subd. (a).)
Second, it explains that “undue prejudice” “includes, but is not
limited to,” (1) “the possibility that the trier of fact will . . . treat
the expression as evidence of the defendant’s propensity for
violence or general criminal disposition,” and (2) “the possibility
that the evidence will explicitly or implicitly inject racial bias into
the proceedings.” (Ibid.)
The trial court’s consideration of the rap music video in this
case was proper because the court would have acted within its
discretion in admitting it under Evidence Code section 352.2.
Although the new statute deems the probative value of creative
expression to be “minimal” except in three circumstances, two of
those circumstances are present here: The video was “created
near in time to the charged” murder on August 11, 2015 because
the video was necessarily made between July 17, 2015 (the date
the prominent Rolling 100s member was gunned down, as he was
referred to in the video), and September 28, 2015 (the date
14
defendant, who appeared in the video, was arrested); the video
also “bears a sufficient level of similarity to the charged” murder
because it features Vaughn mimicking shooting and shows him
loading a gun while in the passenger seat of a car, which is where
Vaughn sat prior to getting out to shoot Bladen. Because the
video is not deemed to have “minimal” probative value, its
probative value in helping to establish defendant’s motive and
either a plan to kill (if it was made before the shooting) or a
memorialization of a past killing (if it was made after the
shooting) is not insignificant. And although there is some undue
prejudice as defined by Evidence Code section 352.2 because
there is always a “possibility” a video might be misused as
evidence of propensity and a “possibility” of injecting racial bias
into the proceedings, the trial court here explained why it found
the video to be probative—and its reason did not include either of
those unduly prejudicial reasons. Thus, the court would not have
abused its discretion in concluding that the probative value of the
video was not substantially outweighed by the danger of unfair
prejudice.
Defendant responds with what boils down to three
arguments.
First, he argues that Evidence Code section 352.2 dictates a
finding that the probative value of the video is “minimal” because
(1) it was not made close in time; and (2) it is insufficiently
similar to the shooting of Bladen because (a) Vaughn only
pretended to shoot the gun he wielded in the video, and (b)
Vaughn was depicted pretending to shoot at people in a crowd,
while Bladen was only with his girlfriend and their children
when the shooting started and then moved away from them as
the shooting continued. In our view, plus or minus six weeks on
15
either side of the shooting is close in time. Further, we do not
construe Evidence Code section 352.2 as requiring the level of
similarity necessary to show identity or modus operandi. The
trial court relied on the video as evidence of defendant’s motive,
and the video is sufficiently similar to the charged attempted
murder to prove motive as it refers to the recent death of a
Rolling 100s member and refers to retaliation involving
depictions of gunplay.
Second, defendant argues that the injection of racial bias is
inevitable, and hence undue prejudice arising therefrom will
always mandate exclusion of rap music videos. We reject this
reading of Evidence Code section 352.2 because the statute does
not call for—yet it could have called for—blanket exclusion of
such evidence; instead, it calls upon courts to engage in a more
finely tuned balancing.
Third and lastly, defendant argues that the trial court
mistakenly believed that defendant was in the driver’s seat of the
car during the video. But this mistake does not bear on the
reason why the trial court relied on the video—to show motive for
the killing.
VII. Cumulative Error
Defendant lastly argues that the trial court’s errors, when
considered cumulatively, necessitate reversal. Although courts
may consider whether “errors that are individually harmless may
. . . have a cumulative effect that is prejudicial” (In re Avena
(1996) 12 Cal.4th 694, 772, fn. 32, dis. opn. of Mosk, J.), the two
errors in this case—namely, the trial court’s erroneous reliance
on Carter’s testimony regarding she and defendant “switching
cars” and the prosecutor’s erroneous reference to “switching
16
phones”—do not cumulatively call into question the
overwhelming other evidence of defendant’s intent to kill.
DISPOSITION
We conditionally reverse the order denying relief under
section 1172.6, and remand for the trial court to determine
whether defendant voluntarily, knowingly and intelligently
waived his right to be present at the October 31, 2022 evidentiary
hearing. If there is a valid waiver, the order denying relief is
otherwise valid and is affirmed. If there is not, the trial court
must conduct a new evidentiary hearing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
17