People v. Harris
| Decision Date | 03 January 2023 |
| Docket Number | B311884 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. SHANE HARRIS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NA106458, Richard R. Romero, Judge. Affirmed in part and reversed in part with directions.
Alan Siraco, 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, Assistant Attorney General, David E. Madeo and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Shane Harris appeals from a judgment convicting him of murder (Pen. Code, § 187, subd (a))[1] and discharging a firearm from a motor vehicle (§ 26100 subd. (c)), both based on Harris's shooting Felipe Balanzar, a fellow member of the Rancho San Pedro gang (the gang). Harris's appeal raises numerous issues.
First Harris argues the court erred in denying his pretrial motion to dismiss the section 186.22, subdivision (b)(1) gang enhancement charge against him. Harris's motion argued there was insufficient evidence presented at the preliminary hearing to justify a trial on the gang enhancement charge. At trial, the jury ultimately found the gang enhancement allegations untrue. But Harris argues that permitting the gang enhancement charge in the first place enabled the prosecution to present gang evidence that was irrelevant to the other charges against him, yet prejudiced the jury's assessment of those charges, and that he is therefore entitled to a new trial. (See People v. Ramirez (2016) 244 Cal.App.4th 800, 813 (Ramirez) [].) Citing In re Estrada (1965) 63 Cal.2d 740 (Estrada), Harris further argues that, in reviewing the denial of his pretrial motion to dismiss the section 186.22 enhancement allegations, we must apply the version of section 186.22 that went into effect long after the preliminary hearing, because the judgment ultimately resulting from the criminal proceedings below is not yet final.
We conclude that Estrada and its progeny do not support such a result. We further conclude that, under the version of section 186.22 that was in effect at the time the court denied the pretrial motion, the evidence was sufficient to support the allegation.
Second, Harris argues that the gang expert's trial testimony about the intent of a hypothetical shooter under hypothetical circumstances modeled after those supported by the evidence was improper and should have been excluded. We conclude that this testimony did not, as Harris contends, improperly usurp the role of the jury to decide the ultimate issues at trial, and hold there was no abuse of discretion in admitting it.
Third, Harris argues the court prejudicially erred by preventing Harris from offering expert testimony intended to educate the jury about circumstantial factors relevant to the use of self-defense and the use of lethal force in self-defense. Because this testimony was within the common understanding of jurors, it was not proper expert testimony, and the court was within its discretion to exclude it.
Fourth, Harris contends the court improperly denied his request to give a clarifying instruction that the jury could consider any past threats the victim made in assessing Harris's claim that he acted in self-defense. Even assuming this was error, Harris has not shown the requisite level of prejudice therefrom to warrant relief on appeal, because the self-defense instruction given already informed the jury they were to consider all relevant circumstances in assessing self-defense. The evidence showed that Balanzar had threatened Harris just hours before the shooting and during the same social gathering at which Harris shot Balanzar. These threats were thus logically part of the relevant circumstances the jury was already instructed to consider.
Fifth, Harris argues there is insufficient evidence to support his conviction for violating section 26100, subdivision (c), discharging a firearm from a vehicle, because Balanzar was partially in the car when Harris shot him. The statutory language is unambiguous and does not require, as Harris suggests it does, that the victim of such a crime be "fully" outside the car at the time of the shooting. Substantial evidence supports the jury's conviction under section 26100, subdivision (c) as properly interpreted.
Sixth, Harris contends that the trial court should have struck rather than stayed a firearm enhancement under section 12022.53, subdivision (h). We agree and, upon remand, instruct the court to correct the abstract of judgment to reflect that the enhancement is stricken.
Finally, we agree with both parties that Assembly Bill No. 1869 requires that any portion of the $150 attorney fee not collected after July 1, 2021 be vacated.
In the early morning hours of May 9, 2017, Balanzar, a member of the gang, died from a single gunshot wound to his chest in the driveway of a building in San Pedro known as "the Bungalows," a "hangout" for the gang. Undisputed evidence presented at trial reflected the following facts regarding the events of that evening:
Balanzar was at the Bungalows socializing and drinking with friends and fellow members of the gang. Balanzar's blood alcohol level was between .239 and .285, he had methamphetamine and marijuana in his blood, and he was acting intoxicated.
Harris arrived at the Bungalows with L.B., S.T. and V.M. Harris, also known as "Villain," was a member of the gang as well. Harris had just come from the hospital where he had been treated for a gunshot wound received earlier that evening. A photograph found on L.B.'s cell phone showed L.B., S.T. and V.M. in a hospital bathroom with Harris smoking methamphetamine.
After arriving at the Bungalows, Harris sat next to Balanzar. At one point, Harris got up and, unbeknownst to him, a handgun he had been carrying dropped from his person onto the ground. Balanzar picked up the gun. When Harris returned and learned Balanzar had his gun, he asked Balanzar why he had taken it, and the two began to argue and "push[ ]" each other.
L.B. and S.I., another individual socializing at the Bungalows, decided to leave and drive to a bar. They went out to L.B.'s car, which was parked in an alley next to the Bungalows. L.B. sat in the driver's seat, and S.I. sat in the front passenger seat. Harris, S.T., and V.M. climbed in the back seat from the driver's side. Harris had to move a child's car seat to the far right side between him and the door in order for the three to fit. V.M. was partly on Harris's lap and S.T. sat behind L.B.
After Harris, L.B., S.I., V.M., and S.T. were all in the car, Balanzar, appearing intoxicated, emerged from the Bungalows. He came to the driver's side front window and spoke to L.B. before walking around the front of the car to the door of the front passenger seat, where S.I. was seated. S.I.'s door was partially open, and Balanzar reached into the passenger compartment and punched her in the face. As Balanzar continued to reach in and attack S.I., L.B. got out of the car with a drawn handgun. Harris, while still seated in the back seat of the car, shot Balanzar from where he sat in the back seat. Balanzar dropped to the ground. L.B. drove away with S.I., Harris, and S.T. A responding emergency medical technician later pronounced Balanzar dead at the scene.
L.B. drove to the bar as planned, where he, Harris, S.T., and S.I. drank and socialized. Photographs recording their evening show them making hand signs for the gang and two "cliques" thereof.
Based on the shooting and death of Balanzar, the Los Angeles County District Attorney charged Harris with murder (§ 187, subd. (a)) and discharging a firearm from a car at a person who was not an occupant of the car (§ 26100, subd. (c)). The information alleged that during both offenses Harris personally used and fired a firearm causing injury as defined by subdivisions (b) through (d) of section 12022.53 and that he committed each charged offense for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Harris was also charged with having suffered a prior conviction qualifying as a serious or violent felony (§ 667, subd. (a)) and a "strike." (§§ 667, subds. (b)-(i), 1170.12.)
At the preliminary hearing, in support of the gang enhancement allegations, Officer Dante Pagulayan of the Los Angeles Police Department (LAPD) offered expert testimony that Harris, L.B., and Balanzar were members of the gang, which the parties stipulated was a criminal street gang as defined by the relevant statute at that time. Pagulayan testified that the gang claimed the city of San Pedro as its territory.
Pagulayan also testified about gangs more generally, opining that "gangs' main focus is to instill fear and intimidation within the community" and thereby forestall any community members reporting criminal activity by the gang's members. According to Pagulayan's testimony, because of this, when an individual gang member commits a violent crime-even against another member of the same gang-this benefits the member's gang by increasing its reputation for violence and instilling more fear in the community, further insulating its criminal activities.
Relatedly a gang member committing a violent crime also...
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