Jury instruction: “Nickname of ‘Zombie’ is not evidence of guilt”
In this murder case decided a few weeks ago in California, “Zombie” is the defendant’s gang nickname and the Court specifically instructed the jury not to use the name against him.
COURT OF APPEAL OF CALIFORNIA,
SECOND APPELLATE DISTRICT, DIVISION EIGHT
2012 Cal. App. Unpub. LEXIS 4618
NOTE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. AS PER CALIFORNIA RULES OF COURT, RULE 8.1115(a)
The opinion filed June 21, 2012 is written by Judge Grimes (Judges Rubin and Flier concurring):
A jury convicted defendant Ruben Velasquez of first degree murder and found an accompanying firearm enhancement to be true. Defendant’s only claim on appeal is that the trial court erred in admitting evidence that defendant was a gang member and that witnesses were afraid to testify because of defendant’s status as a gang member, when no gang enhancement was charged. Defendant’s contention has no merit and we affirm the judgment.
From the facts:
On May 17, 2010, between 10:00 and 10:30 p.m., defendant shot and killed Brandon Hanson at a bar. The killing, and many of the events leading up to the killing, was captured on videotape. At defendant’s trial, his counsel told the jury, before any evidence was presented, that defendant pulled out a gun and shot the victim, but that it was a case of manslaughter, not murder.
Castaneda testified that he was a member of the West Side Wilmas, as was defendant, but he only knew defendant “by what people used to call him, Zombie,” not by his real name.
The trial court gave the jury a limiting instruction: “The fact that witnesses may have testified that defendant has either been a member of Wilmas or have a nickname of ‘Zombie‘ is not evidence of guilt and must not be considered by you as any evidence that he is more likely to be guilty than not guilty. This evidence is admitted for the limited purposes of establishing the defendant’s identity. This evidence is also admitted for the limited purpose of establishing believability of the witness testifying about said matter and the weight to be given the testimony of that particular witness. Do not consider this evidence for any purpose except the limited purpose for which it has been admitted.”
In his summation, the prosecutor said:
“As the court has already pointed out to you, the evidence that you heard about gang affiliation, moniker of Zombie, is not being given to you to suggested [sic] by the People that that makes the defendant more likely to have committed the offense. But as you can tell, from having listened to the witnesses in this case, the civilian witnesses in that bar, and seeing what actually happened, the fear, the locality in some cases to the gang, those affect what people have to say ultimately when they come into the courtroom and sit in front of family members and testify.”
Here, on appeal, the judgment is affirmed:
In short, we cannot say the trial court exercised its discretion in an “arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice.” (Avitia, supra, 127 Cal.App.4th at p. 193.) And, if error could be found, it would be harmless beyond a reasonable doubt.