People v. BECKLEY

• Decision Date: 22 September 2010
• Docket Number: No. B212529.,B212529.
• Citation: People v. Beckley, 185 Cal.App.4th 509, 110 Cal.Rptr.3d 362 (Cal. App. 2010)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Albert Jerome BECKLEY, Jr., et al., Defendants and Appellants.

185 Cal.App.4th 509

110 Cal.Rptr.3d 362

The PEOPLE, Plaintiff and Respondent,

v.Albert Jerome BECKLEY, Jr., et al., Defendants and Appellants.

No. B212529.

Court of Appeal, Second District, Division 1, California.

June 9, 2010.

Certified for Partial Publication. ^*

As Modified on Denial of Rehearing June 24, 2010.

Review Denied Sept. 22, 2010.

COPYRIGHT MATERIAL OMITTED.

Robert D. Bacon, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant Albert Jerome Beckley, Jr.

Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and Appellant Darrell Amont Finn.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sarah J. Farhat

and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, J.

In this opinion we hold that the prosecution's failure to authenticate a photograph and “gang roster” downloaded from internet web sites should have barred their admission but that the errors were harmless as to both defendants. We also conclude there was insufficient evidence to support the street gang enhancement of each defendant's sentence. We modify the judgments as to each defendant by striking the street gang enhancements. We further modify Finn's judgment by striking the gun use enhancements under Penal Code section 12022.53, subdivisions (b) through (d) and remand for resentencing. In all other respects, we affirm the judgments.

FACTS AND PROCEEDINGS BELOW

Following a jury trial, Albert Jerome Beckley, Jr., and Darrell Amont Finn were each convicted of one count of first degree murder and two counts of attempted premeditated murder. The jury also found true as to each defendant the gang-benefit enhancement allegations under Penal Code section 186.22, subdivision (b) ¹ and the firearm use allegations under section 12022.53, subdivisions (b), (c), and (d). The court sentenced each defendant to a term of 50 years to life consisting of 25 years to life for the murder and a consecutive 25 years to life for firearm discharge by a principal resulting in death during a gang-benefiting offense ( § 12022.53, subds. (d) and (e).) Sentences on the remaining counts and enhancements were imposed to run concurrently or stayed.

We summarize the evidence in the light most favorable to the judgments.

In late April 2007, the Mahone brothers, Matthew and Jamal, attended a party in Compton where Jamal got into a fight. After the fight, Jamal agreed to meet his opponent for a rematch in Southside Park, a park claimed by the Southside Crips as their territory. About 50 people were waiting for Matthew and Jamal and their 20 to 25 friends when they arrived at the park. The fight lasted about nine minutes. Jamal lost. Afterward, Matthew fought with Beckley and knocked him out. The two groups then fought each other. When the fighting ended, Matthew considered the “problems” between him and the other group had been settled.

Approximately two weeks later, while walking home, Matthew saw Beckley and Finn near a liquor store. Beckley called out to Matthew, “Southside Compton Crips.” Matthew walked away and did not respond. He knew Beckley and Finn only by their gang monikers, “Bluebird” and “Little Freaky.”

On May 14, 2007, at approximately 7:30 p.m., Matthew and Jamal were standing outside their residence, within territory claimed by the Neighborhood Crips, a rival of the Southside Crips. Rene Duncan, Jerrica Allen and Andrew B., a minor, were also present. A car passed by twice before stopping in front of the house. The brothers spoke with the two female occupants of the car for a few minutes. The women accused the brothers of involvement in a club shooting the prior week. When the women asked Jamal his name and nickname, he responded, Jamal and Maleemal. After the women drove off, Matthew advised everyone to go inside because he thought they were being set up for a drive-by shooting.

Within minutes, a tan or silver car similar to the one driven by the woman drove by. Finn was the driver and Beckley, along with one or two others, was a passenger. Beckley, who was seated behind the driver, pulled himself partly out of the rear window and fired at Matthew, Jamal and Duncan from over the car's roof. Jamal died from a single gunshot wound to his chest. A bullet grazed Duncan's forehead and struck the side of her foot. Matthew was unharmed.

Detective Joseph Valencia, the People's gang expert, testified that Beckley and Finn were members of the Southside Compton Crips. In his opinion, this drive-by shooting was in retaliation for the earlier fight in the park and “directed at members of the Neighborhood Compton Crip street gang.” Valencia also testified, however, that neither Mahone brothers was a member of the Neighborhood Crips. Another police officer testified at trial that Beckley admitted to him in April 2007, that he belonged to the Southside Compton Crips.

Finn fled to Seattle shortly after the shooting. He was in custody there on another matter when he was interviewed by Detective Brian Schoonmaker of the Los Angeles County Sheriff's Department. In the interview Finn admitted that he belonged to the Southside Compton Crips and that he was known to his friends as Little Freaky. Finn also admitted that he was near the Mahone brothers' residence when he heard the gunshots on the night of May 14th and that he knew he was wanted for murder before he left for Seattle.

Finn did not testify.

Beckley presented a defense based on alibi and mistaken identity. He testified that he had been a Southside Compton Crips gang member but denied active membership after he began dating Kyeera Fulmore in February or March 2006. He stated that he knew Finn through working as a disc jockey at Finn's parties in Long Beach. He denied that Finn was a Southside Compton Crips gang member. Beckley also denied that he killed Jamal, had fought with Matthew at the park or had seen him at a liquor store.

Beckley's girlfriend, Fulmore, testified that Beckley babysat her two-year-old daughter at his Long Beach house while Fulmore attended classes at Camilla College from 4:00 p.m. until 10:00 p.m. Monday through Friday. She stated that she attended class the night of May 14th and presented documentary proof of her attendance. She denied associating with gang members and stated that when she began dating Beckley she insisted he stop “running with the [gang]” and was sure that he had complied with her demand. She further testified that she had never seen Beckley and Finn together.

Tiffany Garcia testified that immediately after the shooting she saw four or five individuals in a tan car. Someone she knew as “Brim,” “Dossey,” or “Dorsey,” not Beckley, was the person in the back seat.

In rebuttal to Beckley's and Fulmore's testimony denying Beckley's gang involvement, Detective Schoonmaker testified regarding gang-related evidence he recovered from the MySpace.com internet accounts of Finn and Beckley

DISCUSSION

I. ADMISSIBILITY OF KYEERA FULMORE'S PHOTOGRAPH

[1] To rebut Fulmore's testimony that she did not associate with the Southside Compton Crips and that she insisted Beckley stop his association with the gang, the prosecution offered a photograph purportedly showing Fulmore flashing the Southside Compton Crips gang sign. Detective Schoonmaker testified that he downloaded the photograph from Beckley's home page on the internet website MySpace. The trial court admitted the photograph over both defendants' objections that it had not been authenticated. We agree with defendants that the court erred in admitting the photograph but we conclude that the error was harmless. ²

[2] A photograph is a “writing” and “[a]uthentication of a writing is required before it may be received in evidence.” (Evid.Code, §§ 250, 1401, subd. (a).)

A photograph or other writing may be authenticated by “the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is” (Evid.Code, § 1400), including the two kinds of evidence described by our Supreme Court in People v. Bowley (1963) 59 Cal.2d 855, 31 Cal.Rptr. 471, 382 P.2d 591,. “It is well settled,” the court stated, “that the testimony of a person who was present at the time a film was made that it accurately depicts what it purports to show is a legally sufficient foundation for its admission into evidence.” ( Id. at p. 859, 31 Cal.Rptr. 471, 382 P.2d 591.) In addition, the court noted, authentication of a photograph “may be provided by the aid of expert testimony, as in the Doggett case, although there is no one qualified to authenticate it from personal observation.” ( Id. at p. 862, 31 Cal.Rptr. 471, 382 P.2d 591.) In People v. Doggett (1948) 83 Cal.App.2d 405, 188 P.2d 792, the Court of Appeal upheld the admission of a photograph showing the defendants committing a crime. Because only the victim and the defendants, none of whom testified, were present when the crime took place and one of the defendants took the photograph, there was no one to testify that it accurately depicted what it purported to show. The People, however, produced evidence of when and where the picture was taken and that the defendants were the persons shown committing the crime. Furthermore, a photographic expert testified that the picture was not a composite and had not been faked. The court held this foundation sufficiently supported the photograph's admission as substantive evidence of the activity depicted. ( Id. at p. 410, 188 P.2d 792.) Citing Doggett with approval, the Supreme Court held in Bowley that “a photograph may, in a proper case, be admitted into evidence not merely as illustrated testimony of a human witness but as probative evidence in itself of what it shows.” ( People v. Bowley, supra, 59 Cal.2d at p. 861, 31 Cal.Rptr. 471, 382 P.2d 591.)

Although defendants conceded that the face in the MySpace...