People v. Ervin CA2/6

Filed 11/21/13 P. v. Ervin CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B242752 (Super. Ct. No. TA117136-01) Plaintiff and Respondent, (Los Angeles County)

v.

WILL A. ERVIN,

Defendant and Appellant.

Will A. Ervin appeals a judgment following his conviction of first degree murder (Pen. Code, § 187, subd. (a), 189),1 with jury findings that he personally and intentionally discharged a firearm causing the death of James Hampton (former § 12022.53, subd. (d)), and that he committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). We conclude, among other things, that: 1) Ervin has not shown prosecutorial misconduct because of a gang expert's brief reference to an inadmissible matter while discussing gang and prison tattoos, and 2) the trial court did not abuse its discretion by denying a motion for a mistrial. We affirm. FACTS Ervin and William Abner were members of the Kelly Park Crips gang. They shared the use of a burgundy SUV.

1 All statutory references are to the Penal Code.

On February 7, 2009, Ervin told Abner of his confrontation with Anthony King, a member of the Atlantic Drive Crips, a "rival" gang. Ervin was angry because King pointed a gun at him. Abner went with Ervin to help him find King so that Ervin could "kick his ass." Ervin drove the SUV to the home of Abner's girlfriend. Abner went into the residence and stayed for 45 minutes. While Abner was visiting his girlfriend, Ervin drove the SUV to the Jack Rabbit liquor store, went in the store, came out and drove the vehicle back to the residence. Abner came out and decided he wanted to drive the SUV, so Ervin moved to the passenger seat. Abner drove the vehicle in front of the Jack Rabbit liquor store. Ervin saw that James Hampton, a member of the Atlantic Drive Crips gang, was "sitting in his car" in the parking lot. Ervin told Abner to "go around" because he wanted to "holler at him." Abner drove the car down a side street, came back and entered the Jack Rabbit liquor store parking lot. He stopped the vehicle. Ervin got out, opened the back door and pulled out an AK-47 assault rifle. He ran over to Hampton, who was unarmed, and fired six shots at him. Hampton died as a result of "multiple gunshot wounds." Ballistics evidence showed that bullet fragments found at the crime scene were fired from an assault rifle, such as an AK-47. Abner testified that he did not shoot Hampton and did not get out of the vehicle when Ervin fired his weapon. After the shooting, Ervin went to Arizona. Abner was subsequently arrested. He pled guilty to voluntary manslaughter and received a 13- year prison sentence. Ervin was arrested in Phoenix, Arizona, on March 10, 2011. Luzell Caver testified that around 8:10 p.m. on February 7, 2009, he saw two "black" men get out of an SUV. They "started shooting towards the door of [the] Jack Rabbit" liquor store. The driver of the SUV had a revolver and the passenger was firing an automatic weapon. They fired 12 shots, got back in the SUV and drove away. The liquor store security camera video showed the two men that Caver saw get out of and then back into the SUV after the shooting. Caver identified the driver as Abner.