P. v. Flowers

Filed 8/22/06 P. v. Flowers CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.George R. Gonzalez-Lomeli, Judge. Affirmed.

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.

Jason Ryan Flowers appeals following his conviction by jury of one count of attempted murder (Pen. Code, §§ 664/187; undesignated section references are to that code), with findings he personally discharged a firearm and caused great bodily (§ 12022.53, subd. (d)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)), and one count of possession of a firearm by an ex-felon (§ 12021, subd. (a)(1)). The jury further found that appellant committed both offenses for the benefit of a criminal street gang, with specific intent to further criminal conduct by gang members (§ 186.22, subd. (b)(1)). Appellant was sentenced to a term of 42 years to life.

Appellant contends that (1) The court erroneously admitted gang experts' opinions concerning various unqualified matters; (2) the prosecutor committed misconduct; (3) the trial court engaged in misconduct, during voir dire; and (4) the foregoing issues are preserved even without objection below, either because objections would have been futile or the failure to object constituted ineffective assistance of counsel (IAC). We discern no reversible error, and affirm.

FACTS

Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed as follows. The victim, Dante Youngblood, was unavailable as a witness, and his preliminary hearing testimony was read. He stated that at about 6:15 p.m. on December 28, 2003, he was in the area of Vernon and 45th Streets. A car pulled up, and he was shot three times, in the chest and legs. Youngblood could not identify the car or say who shot him; he claimed that Los Angeles Police Officer John Richardson had told him it was the driver of a green Cadillac. Youngblood acknowledged being shown a six-pack at the hospital, but denied making an identification. He also admitted having grown up in the area of the Rollin' 30's gang, but denied gang-banging. On cross-examination, Youngblood stated that the shots could even have come from across the street.

Youngblood further testified that after the shooting he was placed in a car driven by his friend Kenneth Hall, with Emery Blanche riding in front. At Youngblood's direction, they pulled up to a group of police cars, to get speedier assistance (as Youngblood feared he was dying). There and again at the hospital, officers inquired whether Youngblood knew who had shot him, or the color of the car, but he did not. He was shown a photo of appellant, but made no identification. Youngblood denied telling police that no. 4 in the six-pack was the one who'd shot him, or that it had been some Rollin' 40's, in a green Cadillac. He had previously seen appellant in the neighborhood, and had briefly spoken with him.

Contemporaneous with the shooting, Los Angeles Police Officer Jeremy Duncan and his partner were summoned to a location nearby. Officer Duncan saw appellant, whom he had interviewed months before, walking toward him. When the officer asked appellant if he had heard shots, appellant became agitated. After checking appellant for weapons, Officer Duncan let him go. The officer then saw a white Toyota that had crashed, and a green Cadillac in the same condition. The Cadillac had cartridge casings in and outside of it. It was stipulated that the car was registered to appellant and his fiancee. A wallet containing appellant's identification and Social Security cards also was found in the vehicle. Officer Duncan assembled a six-pack, with appellant's photo in position no. 4. At the hospital, he turned it over to other officers, to show to Youngblood.

Los Angeles Police Detective Marco Morales visited Youngblood in the hospital. Youngblood told the detective his assailants had been Rollin' 40's (hereafter 40's). Shown the six-pack, Youngblood identified no. 4 (appellant) as the person who had shot him. He told Detective Morales's partner that he had been shot from a car while walking, and the car had driven away and crashed. The partner's report stated that Youngblood had been walking south on Gramercy Place, and the car had been driving in the same direction. A total of 10 shells were found in the Cadillac's vicinity, one of them inside. Three were .45 caliber, while the rest were nine-millimeter. Two bullet fragments also were found.

Officer John Richardson, a gang expert concentrating on the Rolling 30's Crips, recognized both Youngblood and one of his two companions at the juncture of police cars as members of that gang, while the other was a member of an allied gang. Youngblood told him the 40's had done it. In the ambulance, Youngblood referred to â€