Unreported / Non-Citable
Background
Michael G. Higginbotham was charged by information on February 15, 2019, with the November 30, 2016 murder of Jermaine Jackson Jr., with special circumstances of lying in wait and shooting from a motor vehicle, firearm enhancements, and prior-conviction allegations. The People's theory tied the killing to a longstanding feud between the Big Block/Harbor Road and Westmob gangs; gang expert Lieutenant Daniel Manning opined that Higginbotham was an active Big Block member and Jackson an active Westmob member. The defense maintained that Higginbotham's younger brother Matthew shot Jackson while borrowing Higginbotham's Chevrolet Malibu.
On April 7, 2023, a jury convicted Higginbotham and found true the shooting-from-a-motor-vehicle special circumstance and the firearm enhancements. After his motion for new trial was denied, he was sentenced on March 28, 2024 to life without parole plus a consecutive term of 25 years to life. The prosecution's evidence included GPS and cell-phone data placing the Malibu and Higginbotham's phone at the scene, matching .45-caliber casings, a box of ammunition missing exactly 11 rounds, gunshot residue on his sweatshirt, and extensive texts and social-media posts.
Higginbotham testified that Matthew borrowed the car and committed the shooting, explaining his texts and internet searches as efforts to obtain ammunition for Matthew, who was barred from possessing firearms. In rebuttal, the People introduced Snapchat posts from Matthew's account showing him engaged in ordinary activities around the time of the shooting, contradicting Higginbotham's account of Matthew as agitated and nervous after allegedly confessing.
The Court’s Holding
The Court of Appeal affirmed. On gang evidence, the court held the trial court did not abuse its discretion under Evidence Code section 352, distinguishing People v. Albarran and People v. Renteria: the evidence placed the crime in the Big Block-Westmob rivalry and showed Higginbotham's meaningful connection to Big Block through tattoos, social media, photographs, and texts, and the jury was instructed to consider it solely for motive under a modified CALCRIM No. 303.
On the admission of Mattesha White's preliminary hearing testimony, the court found the prosecution's efforts to secure her attendance timely and diligent, distinguishing People v. Cromer and People v. Ayala; there was no reason to anticipate White would be unavailable or uncooperative, and any error was harmless because her testimony was not critical given the other evidence of guilt. The court also upheld the exclusion of neuropsychological testimony about Higginbotham's cognitive functioning, finding no abuse of discretion and no prejudice.
The court upheld the rebuttal Snapchat evidence because Higginbotham's testimony about Matthew's demeanor made it necessary, and it was not crucial case-in-chief evidence withheld for tactical advantage. It rejected the juror-misconduct claim because the investigator's declarations were inadmissible hearsay and did not comply with Evidence Code section 1150, found no error in the readback response, and found no cumulative error requiring reversal.
Key Takeaways
- Gang evidence is admissible to prove motive when it establishes a meaningful connection between the defendant, the gang, and the charged offense, even where the defendant acted alone and did not claim credit for the crime.
- Due diligence in securing an unavailable witness depends on the importance of the testimony and whether the prosecution had reason to suspect the witness would flee or refuse to cooperate; the prosecution need not keep periodic tabs on a cooperative witness.
- Rebuttal evidence that contradicts specific assertions in the defendant's testimony is permissible even if it could have been offered in the case-in-chief, so long as it is not crucial evidence of guilt withheld for tactical advantage.
- Juror statements about subjective reasoning and feelings are inadmissible under Evidence Code section 1150, and a juror's use of professional experience to help other jurors understand trial evidence is not misconduct.
- A readback responsive to the jury's request is not error, and even the assumed errors here were harmless singly and cumulatively.
Why It Matters
The opinion reinforces the line between gang evidence offered to prove motive, where a meaningful connection to the offense suffices, and gang enhancements, which require specific intent to benefit the gang; the lone-actor concerns of People v. Renteria carry less weight in the motive context. It also illustrates the due-diligence standard for witness unavailability, confirming that the prosecution need not monitor cooperative witnesses continuously and that reasonableness turns on the importance of the testimony and any warning signs of unavailability.