THE PEOPLE, Plaintiff and Respondent, v. JOHN BENSON, Defendant and Appellant.
B334490
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT
Filed 4/28/25
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. TA151039-01)
Deborah L. Hawkins, 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, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
John Benson, convicted of the first degree murder of Chloe Evans and other felonies, appeals his convictions. Benson contends the trial court erred by admitting certain evidence, granting a continuance during trial, and failing to investigate a juror; he also claims prosecutorial error during closing argument. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Investigation and Charges
On October 25, 2019, Chloe Evans was shot to death while engaged as a commercial sex worker in Los Angeles. At first, police had little information about the shooter. However, on November 10, 2019, Kiera Furlow told Los Angeles Police Department Officer Manuel Armenta that she had been working as a sex worker nearby on the night of the shooting. Furlow told Armenta that shooter, driving a white Chevy Impala, repeatedly approached and harassed several commercial sex workers on the street over the course of two hours. Furlow said the man repeatedly said he was from the Main Street Mafia Crips and was there “on some gang bangin[g] shit.” Furlow described witnessing the shooting and gave the police a physical description of the shooter, whose name she did not know.
Armenta shared this information with Michael Levant, the detective assigned to investigate the shooting, and on November 13, 2019, they consulted Los Angeles Police Department Officer Alex Zamora, who monitored the Main Street Mafia Crips and the Hoover Criminals for the Southeast Gang Enforcement Detail. Based on the physical description and gang association information given to him by Levant and Armenta, including information about a tattoo with the letters M and A on the left arm, Zamora identified Benson as a potential suspect.
Furlow told Levant the man picked Evans up, then robbed her and took her phone. Furlow told Levant she believed the man was looking for a girl associated with the Hoover gang, a Main Street enemy, because he told Chocolate he was there on some “hood business” and Evans was from Hoover. She said “word on the street” was that the shooter targeted Evans because her pimp was supposed to be from Hoover.
Evans reported to her pimp, Joshua Ellis, what had happened, and the shooting occurred when Ellis arrived on the scene. Furlow saw the shooter point a gun, and she both heard the gun fire and saw the muzzle flash. The driver of the white car began shooting first, and Ellis fired back. Furlow believed Evans was caught in the crossfire.
Furlow gave Levant a description of the driver. She said if she saw the man again, she would know “exactly who he is because [she had] seen him face to face.” She was confident she would recognize him: “I would know exactly who he is because . . . I seen him too many times that night. And literally when he pulled up to the side of us, he had his window down and was sitting there talkin[g] to Chocolate for a good five minutes.” Furlow also told Levant she had been seen the man before the night of the shooting. As soon as the man mentioned Main Street, she realized that was how she knew him. Furlow knew some gang members, including a woman known as S.K. from Main Street, and Furlow had seen the man on S.K.‘s social media.
Furlow identified Benson from a photographic lineup. She was confident in her identification, saying, “For sure he was driving the car. That I—I know his face, yep,” and “No if, ands, but[]s about it. It was him. He was the driver.”
In a later interview, Furlow told Levant she had seen Benson previously at parties for S.K.‘s children. According to Furlow, on the night of the shooting she and Benson recognized each other. She said Benson told her he remembered her “from S.K.”
B. First Trial
Benson had two jury trials. In 2022, during Benson‘s first trial, Furlow identified Benson in court as the shooter. The trial court allowed Furlow to testify Benson had told her before the shooting, “I‘m here on some gang shit.” Benson‘s first trial ended in a mistrial with a hung jury.
C. Second Trial
Furlow was so reluctant to testify at the second trial that she had to be arrested to secure her appearance. The prosecutor asked the court for permission to question Furlow about how she knew Benson, his gang ties, her fear of testifying, and the fact that she had to be arrested in order to compel her testimony. The court declined to change its prior rulings on gang evidence, but said, “It can be asked of [Furlow] that she did not want to come to court and that she had to be arrested to come to court, but we will not elaborate into any gang evidence.” The court said Furlow could testify “[i]t was a Main Street Mafia gathering and that‘s all and it‘s not an elaboration in regards to that being a gang, what it is.”
During her opening statement, the prosecutor told the jury Benson said, “‘I‘m not here for the girls. I‘m here on some gang shit.’ And [Furlow] recognized him because she had seen him before. [¶] She had seen him before at a gang type event and that‘s what caused her to recognize him when he said that.”
On direct examination, Furlow was uncooperative, recanted the vast majority of her prior statements, and repeatedly claimed she did not want to testify because she was scared of the police, whom she accused of forcing her to lie. The prosecutor asked Furlow if she had told the police during her December 2019 interview that before the shooting, Benson had said, “We‘re over here on some gang banging shit. We‘re not on no, you know, not on no hoe shit. We‘re on some gang banging shit.” Furlow said she did not remember. She was not sure if she was questioned about this when she previously testified, saying, “I know that I was coached and I know that I was forced to say stuff,
Furlow denied telling the police in December 2019 that she had recognized Benson. When asked if she said she remembered him because she had seen him at a barbecue with some people from Main Street, Furlow responded, “No, that‘s incorrect.” Furlow claimed not to recognize Benson, and when asked to confirm she had previously identified Benson in court, Furlow responded, “Because you guys—yes, the police department. Yes, my safety and everything is at risk. My life, my children, everything is at risk because of what you guys did and what you guys are trying to make me do.” Furlow testified she was being forced by “you guys” to be there, and she was scared. Furlow said she feared for her safety and had been traumatized by being taken into custody to secure her testimony. She alleged the prosecution had threatened her.
On cross-examination, defense counsel delved deeply into Furlow‘s fears, gang issues, and Furlow‘s accusations against the police and prosecution. When asked what she was afraid of, Furlow said she had been harassed by detectives, and then said, “As well as the safety. Like I said, that they—the—as far as gangs, everything, everything. As far as gangs.”
Defense counsel asked, “Are you afraid of Main Street?” Furlow answered, “As far as this case, yes.” Defense counsel asked Furlow why, and she said, “Because of the situation. This is not something light. This is a murder charge.” “And does that fear have anything to do with Mr. Benson, my client?” asked defense counsel.
Furlow responded, “As far as—I‘m not sure if, you know, he‘s, like, you know—Main Street as far as the gang, I mean, yes. As far as him, I‘m not sure what he‘s capable of, you know. I don‘t know—I don‘t know anything about him.” She continued, “I‘m just saying as far as Main Street. I‘m not saying that he has anything to do with it. I‘m talking about the gang.” In response to defense counsel‘s questioning, Furlow testified she was not concerned for her safety from any other gang.
Defense counsel asked Furlow whether, from the time she first spoke with police to the present day, “has anyone from Main Street done anything to you?” Furlow responded in the negative. Defense counsel then asked, “Is it
“Correct,” answered Furlow.
After cross-examination, the prosecutor argued the defense had opened the door to all gang evidence by questioning Furlow about gangs and Main Street. The prosecutor contended statements Furlow made to the police at the start of the investigation about her views of Main Street, how they were looking for women associated with the Hoover gang, and that Evans was targeted were all now relevant. As Furlow previously had been clear that she was afraid of Benson but now claimed fear of the police, the prosecutor wanted to explore that “really she‘s afraid of the defendant and we now need to know why.” She argued Benson‘s repeated identifications of himself as from Main Street and Furlow‘s understanding of why Benson was there that night were relevant to why she was now uncooperative and recanting.
Over defense objection, the court authorized the prosecutor to ask Furlow why she was afraid of Main Street and what she had heard the night of the shooting about the gang and hunting Hoover women. The court ruled evidence Furlow was afraid of Main Street and what happened that night “specifically can come in because it is quite inconsistent with what she has said on the stand now that in regards to why she is afraid and that she was—solely her fear is from police harassment.”
On redirect examination, Furlow denied telling Levant she did not want to testify because she knew Benson would recognize her. She denied telling the police in November 2019 that she had seen the shooter and knew he was from Main Street. She denied voluntarily speaking with Levant in December 2019. Furlow claimed she was handcuffed and forced to go to the police station, where she was held for an hour. She denied identifying a photograph of Benson as the driver of the car.
Furlow denied telling the police in November and December 2019 that the “talk” about what happened the night Evans died was that Benson was from Main Street. She denied telling the police in November 2019 that the driver of the car was from Main Street. She also denied reporting to the police that Benson recognized her because he had seen her before at a mutual friend‘s party attended by Main Street gangsters. She denied telling the police Benson had said he was not there to pick up women but to target women affiliated with the Hoover gang.
In a series of questions, the prosecutor asked Furlow whether it was true she had shared this information with the police, she believed it still, and she
Recordings of Furlow‘s interviews were played for the jury. Additionally, Levant testified he had temporarily relocated Furlow and her family because, in addition to Furlow and Benson having a mutual friend associated with Main Street, Furlow had told him Benson recognized her and knew where she lived, and her twin sister and mother were in fear based on the location of their home. He testified Furlow had expressed fear for her safety.
Also at the second trial, the prosecutor sought to introduce the description of Benson‘s tattoo and evidence that police officers who were experts on Main Street identified Benson as a possible suspect based on the description of the shooter and his tattoo. Defense counsel argued that all the jury needed to know was that based on information from a witness, the police took particular actions. The court thought this would confuse the jury, but offered to give a limiting instruction that the testimony was not being offered for its truth but for its effect on the listeners. Defense counsel asked for the limiting instruction.
The court found admissible the evidence that the investigating officers consulted officers who specialized in gangs, “[a]nd because they work Main Street Mafia, they think they know the individual, not that he‘s from Main Street Mafia, et cetera, then they put together this six-pack with that particular tattoo and that‘s how it came up with the person.” The court specifically precluded the prosecutor from eliciting testimony from the gang officers that they knew Benson was a documented gang member. However, the officers could testify about their expertise, in “that they work the Main Street Mafia Crips gang, et cetera, whatever, but without saying this individual is a Main Street Mafia Crip or any acknowledgment of that, but they‘re familiar with this particular tattoo and that‘s it and this individual.”
Zamora, the officer who had identified Benson as a possible suspect, testified he had been assigned to a gang enforcement detail and monitored both the Main Street Mafia Crips and the Hoover Criminals. He testified Levant and Armenta gave him the following description of a possible suspect: a stocky Black man in his late 20‘s or early 30‘s, with short hair and
Benson was acquitted of the attempted murder of Ellis but convicted of first degree murder, shooting at an occupied motor vehicle, shooting from a motor vehicle, and possession of a firearm by a felon. Benson was sentenced to 120 years to life in state prison. He appeals.
DISCUSSION
I. Evidence Pertaining to Gangs
“Only relevant evidence is admissible. (
Although in the opening brief Benson sets forth all or nearly all the references to gangs at trial, and he generally asserts it all was erroneously admitted because it was irrelevant, his legal argument concerns four specific pieces of evidence he claims to have been irrelevant:2 Benson‘s statement
conclude the trial court did not abuse its discretion by admitting this evidence, as it was relevant to issues of identity, witness credibility, and motive.
Although Benson claims the issue at the second trial was whether he fired in self-defense, the record shows Benson also contested the element of identity. During her opening statement, defense counsel referred to “Benson or whoever was in that white car, whoever you believe was in the white car,” and she told the jury, “I am confident, ladies and gentlemen, at the end of this case, you will not be able to conclude beyond a reasonable doubt that Mr. Benson had any other choice but—if it was him, that he had no other choice but to return fire.” In closing argument, defense counsel questioned whether Benson was the person in the white car, stating, “[W]as Mr. Benson in that car? I don‘t think there‘s sufficient evidence to say he was.”
Benson‘s statement to Furlow before the shooting that he was from Main Street and was there on gang business rather than to hire a commercial sex worker supplies a motive for the shooting and explains why Benson had been hanging around the area for hours rather than engaging in a transaction and then departing. Additionally, Benson‘s identification of his gang and his purpose bore on the question of identity because they prompted Furlow to recognize him. Given that Furlow‘s interaction with Benson on the night of the shooting had been brief, this explanation of how Furlow recognized him allowed the jury to assess both the accuracy of her identification of Benson as the shooter and her credibility as a witness. Finally, this evidence was highly relevant to Furlow‘s overall credibility because her intense and extreme fear
The evidence of Benson‘s tattoo was also relevant to the issue of identity. The fact that Benson‘s tattoo matched a witness‘s description of the shooter‘s tattoo tended to establish his identity as the shooter. We cannot say it was arbitrary, capricious or patently absurd for the trial court to conclude the specific text of the tattoo was relevant to the identity of the shooter when a partial description of the shooter‘s tattoo had been provided.
Additionally, the expertise of Zamora, the officer who initially followed up on the evidence of the tattoo and physical description, was central to the investigative process of identifying Benson as the shooter and bore upon the credibility of the evidence of identity. Witnesses’ physical descriptions of Benson, including a description of his tattoo, combined with information that the shooter was from Main Street, allowed Zamora, who monitored Main Street, to identify Benson by name as a possible suspect. Levant had this knowledge when he prepared the photographic lineup from which Furlow identified Benson as the person who shot Evans. We cannot say the trial court abused its discretion when it concluded a complete sanitization of how the police came to identify Benson as a suspect would confuse the jury. The jury had already learned Benson said he was from Main Street because this was otherwise relevant, as discussed above; learning the officer who pinpointed him as the suspect was consulted because of his familiarity with Main Street gave context and explained how the investigation proceeded while not providing any new information to the jury. Benson argues the evidence was unnecessary because the police knew Benson‘s name “as early as [Furlow‘s] six-pack identification,” but it was not Furlow‘s identification from a photographic lineup that gave the police Benson‘s name; rather, it was Zamora‘s identification of Benson (based on physical description and gang affiliation) that led to the preparation of the photographic lineup from which Furlow then identified Benson.
II. Continuance
During trial, and over defense objection, the trial court granted a one-week continuance due to the out-of-state death of a member of the prosecutor‘s family. We review the decision to grant a continuance for abuse of discretion. (People v. Beames (2007) 40 Cal.4th 907, 920.)
Benson does not allege the continuance was not supported by good cause. Rather, he claims the prosecutor should have filed a written motion at least two court days before the scheduled hearing, and he faults the trial court for not holding a hearing and making findings on the record. Benson forfeited these procedural objections when he did not object to the absence of a written motion, ask for a hearing, or request findings be made on the record in the trial court, when the court could have corrected any error in this regard. (See People v. Dudley (1967) 250 Cal.App.2d Supp. 955, 960 [“defendant never objected in the trial court to the failure to record the reasons for the continuance in the minutes. He cannot raise this question for the first time on appeal“], disapproved on another ground in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 257, fn. 13; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468–1469 [interests of fairness to the sentencing court, fairness to the opposing party, and the needs for an orderly and efficient administration of law and judicial economy require a defendant to make a timely objection in the trial court to preserve an issue for appeal].) Moreover,
Benson claims the absence of a hearing “supports the inference” that the trial court did not properly weigh the factors involved in deciding whether to grant a continuance, and the absence of findings on the record “supports an inference” that the court granted the prosecutor‘s request for a continuance without inquiring into the possibility of an alternative solution protecting his interests. We do not assume the trial court erred. “[I]t is a fundamental principle of appellate procedure that a trial court [order or] judgment is
Benson compares his case to People v. Santamaria (1991) 229 Cal.App.3d 269, People v. Dinsmore (1894) 102 Cal. 381 (Dinsmore), and People v. Engleman (1981) 116 Cal.App.3d Supp. 14 (Engleman), abrogated on other grounds as stated in People v. Wolterman (1992) 11 Cal.App.4th Supp. 15, 20, each of which found error from a trial continuance. Each of those cases is distinguishable from the circumstances presented here. In contrast to Santamaria, where the court imposed an “unwarranted” 11-day continuance during jury deliberations for the court‘s convenience (Santamaria, at pp. 272, 277, 281), the reason for the continuance here was significantly more compelling—the death of a member of the prosecutor‘s family and funeral services in another state. The impact of the continuance here was also of lesser magnitude. In Santamaria, the Court of Appeal emphasized the continuance came “at the most critical period in the trial,” jury deliberations, when all the evidence and argument had already concluded. (Id. at p. 281.) The Santamaria court noted the impact of the continuance would not have been as great if the continuance had taken place mid-trial because counsel‘s closing argument might have minimized or countered the effect of the delay on jurors’ recall. (Id. at p. 282.) Here, the continuance did take place in the middle of the trial, and the jury received additional evidence and heard instructions and closing argument after the continuance. Santamaria does not aid appellant here.
In Dinsmore, the trial court granted a 63-day continuance during trial due to a witness‘s illness. (Dinsmore, supra, 102 Cal. at pp. 382-383.) One week does not remotely compare to nine weeks. In Engleman, the court ordered a three-week trial continuance after the People had rested but before the defense had the opportunity to present its case. (Engleman, supra, 116 Cal.App.3d Supp. at pp. 20–21.) In that case the reason for the continuance was, again, the court‘s schedule, and the problematic impact of the continuance was that it left the jury having heard the full People‘s case but no defense—a one-sided presentation of the case that the reviewing court believed caused the jury to determine the case before hearing both sides. (Id. at p. 21.) Here, the continuance was one-third as long as that in Engleman, the basis for the continuance was more significant than court scheduling, and its impact was lessened by the fact that the People were still in the process of presenting evidence. The jury was not left for weeks with the one-sided presentation of the case. Neither Dinsmore nor Engleman establishes an abuse of discretion here.
III. Juror Investigation
At the beginning of voir dire, the trial court asked the potential jurors in the courtroom whether they recognized the defendant, the judge, either attorney, courtroom staff, or any of the potential witnesses. No potential juror raised their hand.
Juror No. 1 was selected for the jury. After the jury was sworn and seated, but before opening statements, defense counsel asked the trial court to either investigate Juror No. 1‘s possible bias or to dismiss him. The basis for this request was a conversation between the juror and the court that is not included in the record on appeal, but was described by defense counsel as follows: The juror said he believed he recognized Benson, but he could not tell the court how he recognized Benson, from what source he recognized Benson, or from where he recognized Benson. Apparently the court reseated Juror No. 1 without explaining its thought processes, as defense counsel continued, “[I]t‘s my impression that the court either didn‘t find it relevant or felt that maybe he was just trying to get out of jury duty, I don‘t know which—.”
“You‘re absolutely correct,” the court interjected.
Defense counsel expressed concern the issue was not fully explored and requested the court either dismiss Juror No. 1 or ask him if he could be fair and impartial since he believed he had previously seen Benson. The court denied defense counsel‘s request, stating its decision was “based on his answers, the fact that came up after he became a sworn juror.”
Later, after the jury reached its verdicts, Benson moved for a new trial, identifying as one basis for the motion the court‘s refusal to excuse Juror No. 1. The court denied the motion, stating, “[T]hat juror was interviewed and the court was satisfied with the answers the juror gave that the juror could be fair.”
Benson argues the trial court‘s refusal to make further inquiry of the juror was an abuse of discretion because “[r]ather than fairly assessing the record of Juror No. 1‘s voir dire and making the inquiry that [defense counsel] requested, the trial court, relying on its own bias against jurors who raise concerns after being sworn, concluded, without substantial evidence, that Juror No. 1 was being dishonest.” Without a record of what the judge asked the juror and the juror told the judge, however, we cannot ascertain whether the court possessed information which, if proven to be true, would constitute good cause to doubt Juror No. 1‘s ability to perform his duties and would justify his removal from the case, nor can we determine what inquiry was reasonably necessary to determine whether the juror should be discharged, whether the court satisfied that duty, and whether refusing to further question the juror was an abuse of discretion. (See Martinez, supra, 47 Cal.4th at pp. 941–942.) The appellant bears the burden of providing an adequate record affirmatively demonstrating error, and when an appellant fails to supply a record adequate to review a claim, the claim fails. (People v. Whalen (2013) 56 Cal.4th 1, 85, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.)
IV. Prosecutorial Error
During closing, the prosecutor‘s arguments about willful, premeditated, and deliberate murder included analogies to deciding whether to swing at a pitch in baseball and deciding whether to proceed through an intersection when the traffic light is changing. Benson contends these analogies and arguments misled the jury about the distinction between first and second degree murder, as well as about the extent of the reflection required for first versus second degree murder.
Benson did not object on these grounds at trial, and he does not contend on appeal that an objection and/or request for admonition would have been futile or an admonition would have been insufficient to cure the
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.