People v. Price

THE PEOPLE, Plaintiff and Respondent, v. MARCEL DESEAN PRICE, Defendant and Appellant.

D076731

COURT OF APPEAL FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

March 5, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCD277378)

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed and remanded with directions.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Senior Assistant Attorneys General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Marcel Desean Price of premeditated attempted murder (Pen. Code,¹ §§ 664, 187, subd. (a), 189; counts 1-3), assault with a firearm (§ 245, subd. (a)(2); counts 4-6), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 7). It found true allegations that as to counts 1 and 4 Price personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); as to all counts that he personally used a firearm within the meaning of section 12022.5, subdivision (a); and as to counts 1 through 3 he personally and intentionally used a firearm within the meaning of section 12022.53, subdivision (b), intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and did so causing great bodily injury to a person other than an accomplice (§ 12022.53, subd. (d)). Price admitted allegations that he committed the offenses while on felony probation (§ 1203, subd. (k)). The court sentenced him to an indeterminate term of 96 years to life in prison, and imposed various fines, fees and assessments.²

Price contends the trial court prejudicially erred by (1) admitting irrelevant gang evidence, which violated his due process rights and rendered the trial fundamentally unfair; (2) permitting a detective to testify based on surveillance videos that Price was the shooter; and (3) permitting the prosecutor to elicit testimony from a witness about his fear of testifying dueto the defendants' gang membership. Price contends his counsel was prejudicially ineffective if he forfeited either or both of the latter two contentions. Price further contends the fines, fees and assessments must be vacated because they violated his federal and state due process or equal protection rights, and were cruel and/or unusual, without a finding he had the ability to pay them. Price further contends the required sentence for his attempted premeditated murder convictions in counts 1 through 3 is life with the possibility of parole, not seven years to life. He maintains the combined errors require reversal of the judgment.

The People concede we should correct Price's sentence on the attempted murder convictions without remand. We agree the proper sentence on counts 1 through 3 is life with the possibility of parole and direct the court to correct the abstract of judgment accordingly. Otherwise, we reject Price's contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Price does not challenge the sufficiency of the evidence of his underlying convictions, so we summarize the underlying facts as necessary to address questions of prejudice.

During the night of June 8, 2018, and the early morning hours of June 9, 2018, Price, a Skyline (also known as East Side) Piru gang member, and three other men, two of whom were associated with the O'Farrell Park gang, were at a North Park bar drinking and socializing when Price and one of his companions, Ted Mercer, got into an altercation and fight with others. Mercer was associated with the O'Farrell Park gang. A security guard heard Mercer say, "Fuck you and Fuck East Side," before the initial punch. Afterwards, Mercer yelled that they had gotten "maxed out," meaning they got beat up or lost the fight. He was injured and angry, feeling that thebouncers had thrown him back into the fight. When the fight was over, security guards would not let Price or Mercer back into the bar. When Price and Mercer tried to reenter, two of the guards grabbed Price and tried to flip him over a railing. Mercer slapped one of the guards and the guard responded by punching him a few times in the face. Price and Mercer finally left the bar with their group, angry about what had happened there. While in the car driving away from the bar, Mercer exchanged calls with Hune using the phone of a friend who was at the bar that night.

At about 2:50 a.m., two of the security guards were standing outside the bar when they heard gunshots. One of the guards was shot in the upper chest area. Witnesses hearing the gunshots saw a black Chrysler 300, later determined to be registered to Hune, speeding down an adjacent street. One witness saw an individual run into the car after the gunshots and described him as an African-American male, five feet nine inches to six feet one inch tall, with a medium build on the slender side, wearing baggy clothes and a dark sweatshirt with a hood over his head.³ The man appeared to be shoving something inside his waistband.

San Diego Police Department Detective Andrew Tafoya was assigned to the matter. He contacted the bar's manager and sought out surveillance video from surrounding businesses. He identified the men in the bar video by asking a gang unit detective if she recognized the men from the bar that night, and from that he was able to identify Price and Jordan Bingham. Detective Tafoya also viewed surveillance footage from the bar on June 8 showing Price and his colleagues entering the bar and the fight that ensued. The video showed the clothing and shoes Price was wearing that night.Detective Tafoya obtained surveillance footage from other local businesses that showed a black Chrysler 300 pull up and a male exit the car and commit the shooting, which occurred around 2:52 a.m. The video showed the vehicle pull up at 2:51 a.m. and a man exit the passenger side within 10 seconds. It also showed the first six numbers of the car's license plate, leading to records establishing that the car was Hune's. Detective Tafoya compared still photographs of the surveillance footage from the bar with the other business, and testified based on the similarities in clothing and shoe markings, as well as Price's height, stature and gait, that he believed the male who exited the Chrysler 300 was Price.⁴ The detective also obtained a photograph from Jordan Bingham's Facebook page showing Bingham and Price together on June 8, throwing what appeared to be gang signs.

Officers arrested Price about 12 days after the shooting. In a jail telephone call later that month, Price told the call recipient, "I'm done." Though he said he "didn't do nothing," he also said he had "fucked up" and was "fucked right now . . . but it's my fault. The only person I'm mad at is me. I'm not upset with nobody else but myself." The Chrysler 300 was later located in the Rancho Cucamonga area.

I. Admission of Expert Gang Evidence

A. Background

Before trial, when the case was proceeding against both Price and Hune, the People moved to admit evidence of Price's and Hune's gang affiliations and gang culture—specifically, among other things, the significance of June 8 as a day of celebration and the importance of respect—to prove motive, Price and Hune's shared intent, and knowledge. They argued that while motive was not an element of any crime, the gang evidence could be admitted as relevant to that issue and others such as identity and modus operandi. They also argued gang affiliation could be relevant to proving the codefendants' relationship with one another and their involvement in the charged crime. The People argued that the evidence was relevant to help explain why the defendants would react so violently to a "seemingly innocuous situation at a bar"; that in the present case, "there is no other explanation for the crime but the fact that Price felt the need to retaliate and intimidate the security guards due to his affiliations and the culture of gang criminal behavior." Price moved to exclude the evidence on grounds its probative value, if any, was outweighed by its prejudicial effect.

At arguments on the motions, Price's counsel objected to admission of testimony concerning Price's documented gang member status, arguing Price was not provided due process as the documentation oftentimes is done without a person's knowledge. Counsel pointed out there was no gang connection to the victims, the location or why the incident started; that the occurrence was completely unrelated to any gang activity. He argued that the reference to June 8 "would be to paint the picture of a day of mayhem or just a lawless day," and unfairly depicted his client as a "monster" on that day. He argued Facebook posts showing his client throwing gang signs shedan unfairly prejudicial light on Price. The People acknowledged they did not allege a section 186.22 gang allegation because no gang rivals were involved. The prosecutor argued, however, that "the gang mentality, the gang connection, that association and that sense of needing to ban together to retaliate in obligation to one another is what makes it relevant." She argued it was evidence that "helps to explain really the unexplainable" to the jury.

The court granted the motion, finding the gang evidence had "some significant probative value" on motive and intent that was not outweighed by its prejudicial effect in misleading or confusing the jury, or prolonging the trial. In response to further argument from codefendant Hune's counsel, the court explained it would not permit the expert to opine that on the particular day Hune had a...