People v. Evans
| Docket Number | D079167 |
| Decision Date | 11 August 2022 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DERRICK L. EVANS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No SCE381756 Patricia K. Cookson, Judge. Affirmed in part reversed in part and remanded.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
Derrick L. Evans appeals from a judgment imposed after a jury convicted him of crimes arising from an attempted robbery of a marijuana dispensary. Under newly enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) eff. Jan. 1, 2022 (Assembly Bill No 333), we reverse the jury's true findings on the gang enhancements, but otherwise find no reversible error and affirm the judgment.
Karla R. and Anthony B. worked at an illegal marijuana dispensary in Spring Valley on the second floor of a business complex. It was a cash business. The cash was stored in a drawer underneath a laptop computer used to record sales. Inside the dispensary, there were seven surveillance cameras connected to a monitor in the back room.
On April 16, 2018, between 11:00 and 11:30 p.m., two armed men entered the dispensary and tried to rob it. They were carrying duffel bags and semiautomatic firearms. One of the men pointed his gun at Karla and ordered her to put the cash from the drawer into one of the duffel bags. She complied. The other man was near Anthony, demanding to know the location and combination for the safe. When Anthony did not tell him, the man pushed him and struck him in the head with his gun.
After being forced to the ground, Anthony got up, ran out of the dispensary, and jumped from the second floor to the ground to escape the robbers. The two robbers followed him out of the dispensary. Shortly after they exited, Karla heard a gunshot. She gathered her belongings, went outside to her car, and drove home. On her way home, she called 911.
When the police arrived, they found Anthony on the ground outside the dispensary. He was bleeding from a laceration to his head, but no gunshot injury. Inside the dispensary, there was blood on the floor in multiple locations. The police also found two duffel bags in the dispensary; one containing cash and the other containing marijuana product. They collected the surveillance videotape. They also lifted a palm print and partial fingerprint from a glass countertop.
Anthony appeared to be traumatized from the incident. He never identified either of the robbers and did not provide a description. There were several customers in the dispensary at the time of the robbery, but they were gone by the time the police arrived and were never identified.
Karla was the only eyewitness to the robbery who testified at trial. Karla testified that she would not be able to recognize the robbers if she saw them again and was not able to recognize anybody in court. She could not identify anything distinguishing about either of the two men. She was never shown a photo lineup or physical lineup and had never identified either of the two robbers.
The police viewed the surveillance videotape of the robbery. It showed that one of the robbers had tattoos on the back of his left hand with a dollar sign and other designs surrounding it. He was wearing red and white shoes, jeans with frayed rips above and below the left knee and below the right knee, and a black jacket with silver snaps or buttons and a white inner lining. The hood of the jacket was pulled over his face. It was not possible to identify this robber from the videotape, because it did not show a clear shot of his face.
The videotape showed that during the robbery, the other robber put his left hand down on the glass countertop in the location where the police later recovered the palm print and fingerprint. The police identified this palm print as the left palm of Donald Sheffield. At trial, Detective Alan Campagna identified Sheffield as one of the two robbers from a "pretty clear shot of his face" on the surveillance videotape.
The police executed search warrants for Sheffield's social media accounts, which led them to Evans's social media accounts. Photos posted on Evans's social media accounts before the robbery showed that he had a dollar sign tattoo on the back of his left hand, and he wore ripped jeans, red and white shoes, and a black jacket. Another photo showed Evans and Sheffield together. (!4 RT 257)!
About six weeks after the robbery, the police arrested Sheffield and searched the vehicle he was driving. In the vehicle, they found a semiautomatic handgun and loaded magazine.
The police arrested Evans at an apartment in San Diego the same week. Inside a duffel bag where Evans kept his clothing, the police found his identification card, a pair of red and white Air Jordan shoes, and ripped jeans.
On direct examination, Detective Campagna testified that the red and white shoes recovered from Evans's duffel bag "resemble the shoes that were used during the robbery." He described them as "pretty much identical" but acknowledged he could not testify they were "the exact same shoes that were worn that night." In his opinion, the similarities included "the shininess of the toe portion." Detective Campagna further testified that the red and white shoes worn by Evans in a photo posted on his social media "appear to be the shoes that I collected when I arrested him and the shoes that were worn during the robbery."
According to Detective Campagna, the ripped jeans recovered from Evans's duffel bag were also "similar to the jeans that were used in the crime." He based this on the unique pattern of the rips and fraying that was also visible on the videotape. In his opinion, the ripped jeans Evans was wearing in one of his social media postings also appeared to be the same ripped jeans worn by the robber and recovered from Evans's belongings.
Detective Campagna further testified that the black jacket worn by Evans in one of his social media postings "does appear to be the jacket that was worn during the robbery as well." He based his opinion on "the middle button being so low, it's an unusual place to put a button."
Finally, Detective Campagna testified that the dollar sign tattoo depicted on the back of Evans's left hand in his social media postings "pretty much resembles the person that committed the crime." He based this on the design of the tattoo and "the way it's surrounded by the existing tattoos and . . . the space around it, and also the space that's towards the bottom part of his hand...." Although Detective Campagna had seen dollar sign tattoos before, he had never seen one surrounded by these other designs.
On cross-examination, Detective Campagna admitted that Air Jordan shoes are "very common." He also admitted he could not say "definitively" that the Air Jordan shoes recovered from Evans's belongings were the same ones worn by the robber.
Detective Campagna also admitted he could not tell what brand or size the jeans were from the videotape. He acknowledged that ripped jeans are common, and that pre-ripped jeans are sold in stores. However, he believed "it would be extremely difficult for someone to replicate those holes, the threading and the whole nine yards." Detective Campagna could not prove "definitively" that they were the same jeans, but testified, "I would bet to say they are."
On redirect, Detective Campagna testified that the Air Jordan shoes recovered from Evans were "definitely the same shoe, make and model" as the ones worn by the robber, but there was nothing distinctive or personalized about them. However, the jeans appeared to him to be more personalized. He explained:
The prosecution played the surveillance videotape during trial. The court admitted into evidence the videotape and still images from the videotape. The court also admitted into evidence photos of the Air Jordan shoes and ripped jeans recovered from Evans's belongings, photos from his social media postings showing his dollar sign tattoo and him wearing the Air Jordan shoes, ripped jeans, and black jacket, and the photo he posted of himself with Sheffield.
The parties stipulated that the Neighborhood Crips is a criminal street gang within the meaning of Penal Code section 186.22.[1]
Detective Sabakhan Sharrieff testified as a gang expert. He testified the Neighborhood Crips gang has adopted the Milwaukee Brewers logo of a baseball glove with four fingers. The gang also uses hand signs with four fingers, and its members have tattoos and other symbols with the numbers "4-1" and the word "Ace."
Detective Sharrieff identified Sheffield and Evans as members of the Neighborhood Crips. He identified Evans as a member based on his association with other gang members, the location of his prior police contacts, and his gang-related tattoos and social medial postings. Evans has one tattoo with the numbers "4-1," another with the word "Ace," and another depicting a Milwaukee Brewers...
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