P. v.
Filed 7/3/12 P.
v. Berry CA2/1
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
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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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES BERRY,
Defendant and Appellant.
B227545
(Los Angeles County
Super. Ct. No.
YA076772)
APPEAL from a judgment of the Superior Court of
County. James R.
Brandlin, Judge. Affirmed.
Melanie K. Dorian, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Xiomara Costello, Supervising Deputy Attorney
General, and Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and
Respondent.
_________________________________
Defendant Charles
Berry appeals from the judgment entered following a jury trial in which he was
convicted of dissuading a witness with gang enhancement and use of force
findings. Defendant contends that
enhancement finding and the trial court committed evidentiary error in relation
to the testimony of the prosecution’s gang expert. We affirm.
BACKGROUND
In
2006, Arron Saraki moved with his mother and siblings to 97th Street
near Normandie Avenue. At some point, Saraki
joined a 10-person neighborhood gang called HPNW or the Dubs. Defendant, defendant’s sister, and
defendant’s close friend Carl Banks (also known as C-Mack, sometimes spelled
C-Mac in the reporter’s transcript) belonged to the Dubs gang. The parties stipulated that the Dubs gang
constituted a criminal street gang within the scope of Penal Code section
186.22 (undesignated statutory references are to the Penal Code), and that
defendant was a member of the Dubs gang.
The Dubs gang did not get along with any of the other gangs in the area,
including the Hoover Crips gang, although several Dubs gang members joined the
Hoover Crips gang.
In
2007, Saraki witnessed a fight between Banks and a man he knew as
“Country.†Soon after, Country was
killed. Saraki told his mother what he
had seen, and she took him to the Lennox sheriff’s station to speak to detectives. Although Saraki was concerned that he would
become known as a “snitch,†he provided information to Detective Richard
Biddle. Thereafter, members of the Dubs
gang and other gangs began harassing Saraki and calling him a snitch. On one such occasion, at his mother’s
direction, he went down the street to get a person from a neighboring apartment
building. James Hearn, a member of the
Dubs gang, and Raymond Russell, a Five-Nine Hoover gang member
who was a friend of Banks and defendant, confronted Saraki and told him no
snitches were allowed on the grounds.
Saraki understood this as a reference to him providing information in
the case against Banks. Saraki was angry
and wanted to get a knife or bat to fight them, but his mother prevented him
from doing so. Saraki’s mother’s
boyfriend, a veteran Hoover gang member, accompanied Saraki back to the site of the
confrontation and directed Saraki to fight one of them to put an end to the
harassment. Saraki fought Hearn.
Around
3:00 p.m. on May 13, 2009, Saraki walked from
his home to Normandie, and then south along Normandie. As he walked past an alley, defendant
approached him and asked him whether he was “snitching†on defendant’s
“homeboy,†C-Mack. Saraki told defendant
he was not, and that he did not know what defendant was talking about. Defendant pulled a gun from his waistband and
pointed it at Saraki from a distance of eight or night feet. Saraki slowly backed away from defendant, but
they continued to talk. Defendant then
put the gun and his backpack down on the ground. Saraki said he did not want to fight and
began to walk away. Defendant punched
Saraki in the jaw, and Saraki fell to the ground. Defendant then hit Saraki four or five times
and kicked him twice. Two older men
crossed the street and stood over Saraki.
Saraki lost consciousness.
Sheriff’s
deputies and paramedics responded to a 911 call by an unidentified person
regarding the attack on Saraki. (A
recording of the 911 call was played at defendant’s trial.) One of the deputies testified that Saraki was
in and out of consciousness and reluctant to provide information, but said he
was attacked by four male Black juveniles.
The paramedics transported Saraki to a hospital, where he was treated
for his injuries, which included a bruised and swollen face, a profusely
bleeding arm, and a gash and knot on the back of his head.
Biddle
testified that Saraki’s mother, Fanesha McCrosky, told him that on May 14, 2009, she saw defendant walking to school and asked him why he attacked
and pulled a gun on her son. Defendant
responded that he just showed Saraki a gun but did not point the gun at Saraki. Defendant stated that he had beaten Saraki
because Banks had called him from jail and asked him to assure that Saraki
would not testify against Banks.
McCrosky sent Saraki to live with relatives who lived far away.
Biddle
interviewed Saraki on May 18, 2009. Saraki told Biddle that after he told
defendant he was not snitching, defendant said that Banks had told defendant
that Saraki was snitching.
On
July 16, 2009, Biddle drove Saraki to testify at Banks’s murder trial. Saraki told Biddle in the car that he was
afraid to testify and concerned for his safety as a result of the May 13, 2009 attack and prior threats.
Saraki testified at Banks’s trial, but he did not tell the truth because
Russell was in the courtroom during Saraki’s testimony, and this intimidated
Saraki.
After
this case was filed, defendant’s “homeboy†went to McCrosky’s residence,
apologized for what happened to Saraki, and told McCrosky to advise Saraki not
to testify in this case.
Prosecution
gang expert Detective Mark Marbach was familiar with the Dubs gang. He testified that graffiti written by
defendant in 2006 contained the name of the gang, a reference to 97th Street
(the territory claimed by the gang), defendant’s moniker, and Banks’s moniker,
thus indicating defendant’s respect for Banks.
Marbach
testified that it is important to gang members to earn respect within their
gang by participating in gang activities.
Intimidation of the community is an important gang activity because
witnesses who fear the gang will not cooperate with the police or testify, and
this allows the gang to get away with its crimes. Intimidation of witnesses is “the way you’re
able to operate as a criminal gang.â€
Snitches are often beaten and may be shot. The worst thing a gang member can do is be a
snitch against another gang member, even against a member of a rival gang. Marbach opined that the attack on Saraki
benefited the Dubs gang because Saraki was going to testify against a Dubs gang
member and “the defendant in this case here was going to try and stop him from
testifying.â€
The
jury convicted defendant of dissuading a
witness with findings that he used force or a threat of force or violence
in the commission of the offense and that the offense was committed for the benefit
of, at the direction of, or in association with a criminal street gang, with
the specific intent to promote, further, or assist in criminal conduct by gang
members. The jury found not true an
allegation that defendant personally used a firearm in the commission of the
offense and it acquitted him of assault with a firearm. The court sentenced defendant to prison for
seven years to life.
DISCUSSION
Defendant
contends that the trial court abused its discretion by (1) allowing Marbach to
testify to an opinion regarding defendant’s “actions and state of mind,†and
(2) sustaining an objection to a question defense counsel asked Marbach.
A trial court has wide discretion to
admit or exclude expert testimony. (People
v. Valdez (1997) 58 Cal.App.4th 494, 506.)
We review the trial court’s ruling for abuse of discretion. (People
v. Mayfield (1997) 14 Cal.4th 668, 766.)
An
expert’s opinion testimony is admissible on subjects sufficiently beyond common
experience that the opinion would likely assist the trier of fact. (Evid. Code, § 801.) A criminal street gang’s culture and habits
constitute such a subject, and qualified police officers are permitted to
provide expert testimony regarding gangs.
(People v. Williams (1997) 16
Cal.4th 153, 196; People
(1994) 31 Cal.App.4th 1355, 1370–1371.)
The gang expert may testify to an opinion based upon facts shown by the
evidence that are restated in a hypothetical question asking the expert to
assume the truth of those facts. (
932, 946.) But an expert may not opine on an
individual’s subjective mental state, for example that the defendant had a
specific intent or particular knowledge.
(People v. Garcia (2007) 153 Cal.App.4th 1499, 1513; In re
Frank S. (2006) 141 Cal.App.4th 1192, 1197–1199 (Frank S.); People
v. Killebrew (2002) 103 Cal.App.4th 644, 658 (Killebrew),
disapproved on another ground in People v. Vang (2011) 52 Cal.4th 1038,
1049 (Vang).)
a. Opinion
regarding defendant’s actions and subjective mental state
The
prosecutor asked Marbach, “And in your opinion, was this crime committed for
the benefit of the Dubs criminal street gang?â€
Defendant objected that the prosecutor must use a hypothetical question
to elicit Marbach’s opinion on this point.
The prosecutor replied that she never uses hypothetical questions, but
if the court wanted her to do so, she would.
The court overruled the objection, but cautioned the prosecutor to
elicit the basis for Marbach’s opinion.
The prosecutor restated the question, and Marbach stated his
opinion: “That it does benefit the
gang.†The prosecutor asked the basis
for Marbach’s opinion, and he replied, “Well, like I was talking about, with
intimidation, intimidation allows a gang to operate in the area. And in this particular case, the victim was
supposed to, or did in fact testify in another trial involving a fellow gang
member. And he was testifying against
that gang member.†Defendant objected
that Marbach’s response was factually flawed, in that Saraki had not testified
at the time of the charged offense. The
court overruled the objection, and Marbach continued: “The fact that the victim in this case was a
witness, and was testifying in another—a different trial against a fellow gang
member from HPNW. [¶] In doing so, as I mentioned, that’s basically
a capital crime in the gang world, to testify against one of your fellow gang
members. Cooperating with the police,
coming to court and actually testifying.
[¶] So in—because of that, it
was—you know, the defendant in this case here was going to try and stop him
from testifying. In order to do that, he
was going to have to confront the victim.
[¶] And in this case, he
assaulted the victim and threatened him, told him he shouldn’t be
snitching. And that he better not come
to court. [¶] And again, as I, you know—he assaulted him in
the course of doing this. And you know,
my understanding is that the assault definitely affected the victim’s testimony
in that trial because he was afraid based on what had occurred.†Defendant objected to “that conclusion†and
moved to strike. The court overruled his
objection.
The
prosecutor’s initial question improperly sought Marbach’s opinion as to whether
defendant’s intent in committing the offense was to benefit the Dubs gang. The prosecutor should have asked Marbach to
render an opinion based upon a hypothetical question tracking the evidence in
the case. (Vang, supra, 52 Cal.4th
at p. 1049.) The trial court should have
sustained defendant’s objection, in that the question ran afoul of Killebrew, supra, 102 Cal.App.4th at page 658, and Frank S., supra, 141 Cal.App.4th at pages 1197–1199. But the court’s error was harmless because
Marbach responded that the crime benefited the Dubs, which permissibly
addressed the effect of the crime, not defendant’s intent.
Of
greater concern is Marbach’s improper testimony that defendant both committed
the offense of dissuading a witness and that he acted with the intent to stop
Saraki from testifying. The trial court
should have sustained defendant’s objection and motion to strike this
testimony. Marbach “had no personal
knowledge whether [defendant] assaulted [Saraki] and, if so, how or why; he was
not at the scene. The jury was as
competent as the expert to weigh the evidence and determine what the facts
were, including whether [defendant] committed the assault. So [the expert] could not testify directly
whether [defendant] committed the assault for gang purposes.†(Vang, supra,
52 Cal.4th at p. 1048.)
“The erroneous admission of expert testimony
only warrants reversal if ‘it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the
error.’†(People v. Prieto (2003) 30 Cal.4th 226, 247, quoting People v.
Watson (1956) 46 Cal.2d 818, 836.)
Here, had the court sustained defendant’s objection and struck Marbach’s
improper opinion testimony, the prosecutor could have utilized a hypothetical
question that tracked the evidence to ask Marbach’s opinion about whether the
offense described in the hypothetical question would have been committed for
the benefit of the gang. Marbach’s
response to such a hypothetical question would have put the same information
before the jury. In any event, Saraki’s testimony that defendant asked him whether he
was “snitching†on defendant’s “homeboy,†C-Mack, before beating him, coupled
with Marbach’s unobjectionable testimony about gangs’ attitude toward, and
response to, “snitching,†and the importance to gangs of witnesses to gang
crimes not cooperating with the police or testifying supported a finding
(without Marbach’s improper opinion testimony) that defendant intended to
dissuade Saraki from testifying against Banks and engaged in the dissuasion for
the benefit of the Dubs street gang and with the intent to promote, further, or
assist criminal conduct by the members of the Dubs gang. Defendant has thus failed to demonstrate a reasonable
probability that he would have obtained a more favorable result in the absence
of the error.
It is
unclear whether defendant also contends the error violated due process. “[T]he admission of
evidence, even if erroneous under state law, results in a due process violation
only if it makes the trial fundamentally unfair.†(People v. Partida (2005) 37 Cal.4th 428, 439.) Marbach’s improper opinion testimony added
little or nothing to the other very strong evidence in the record from which
the jury could infer defendant’s intent to dissuade Saraki from testifying
against defendant’s “homeboy†and defendant’s intent to benefit his gang and promote, further, or assist criminal conduct by his gang. Marbach’s improper testimony did not render
defendant’s trial fundamentally unfair.
b. Sustaining
objection on cross-examination of Marbach
On
cross-examination, defendant repeatedly attempted to have Marbach testify that
defendant’s sole motive for dissuading Saraki from testifying against Banks may
have been defendant’s friendship with Banks, not an intent to benefit their
gang. He began by asking, “[I]s it
possible the sole reason, if [defendant] did in fact assault Mr. Saraki, that
it was because Mr. Saraki was going to testify against his friend? Hypothetically, I mean, could that be a basis
of the assault?†Marbach responded,
“Well, the thing—they’re friends, they’re fellow gang members. You are friends with your fellow gang
member. [¶] So to say he’s doing the assault for his
friend, it’s the same as saying does the assault for his fellow gang
member.†Defendant asked essentially the
same question, and Marbach replied, “As I said, they’re friends. They’re fellow gang members. It’s one and the same. They’re friends as part of the gang.†Defendant then asked, “What if the reason he
was doing it and his intent was solely because the person is testifying against
his friend? [¶] Are you saying that’s impossible?†After the court overruled the prosecutor’s
objection that the question called for speculation, Marbach replied, “In my
opinion, when you’re fellow gang members, your gang members can’t snitch on
gang members. He is committing this
assault because a fellow gang member is being testified against, and he’s
trying to prevent that testimony.â€
Defendant
continued in the same vein, asking repeatedly whether it was possible that
defendant’s sole motive was friendship, and Marbach continued to opine that
their friendship was inseparable from their common gang membership. Eventually, the trial court called counsel to
the bench and remarked, “We seem to be going round and round on this same
issue. It’s pretty clear to me that the
witness doesn’t want to accept the hypothetical facts as you describe them,
which asks the witness to assume to be true that the motivation for the
defendant is because of close friendship as opposed to the fact that the other
individual is also a fellow gang member.
[¶] I’m not sure how much further
you’re going to be able to get with that point.â€
Defendant
changed his approach and began asking Marbach about whether the intent of the
perpetrator mattered if his acts created a benefit for the gang. Marbach agreed that the perpetrator’s intent
was relevant. Defendant then asked, “If
the intent was for the purpose of friendship—now, I’m not asking whether you
agree with that or not. I’m saying if it
is for that purpose, then the result is not necessarily to enhance, even if the
gang is enhanced, that does not come within 186.2 (sic) of an enhancement, the gang enhancement; right?†The court sustained the prosecutor’s
objection that the question called for a legal conclusion.
Defendant
contends that the court erred by sustaining the prosecutor’s objection to the
final question quoted because “this is precisely what the prosecution was
permitted to do earlier when Marbach essentially informed the jury ‘how he
believed the case should be decided.’â€
The
trial court did not err. The question
asked whether an act motivated by friendship would satisfy one of the elements
of section 186.22, subdivision (b)(1).
The question sought a legal conclusion, which is not a proper subject for
expert opinion. (Downer v. Bramet (1984) 152 Cal.App.3d 837, 841.)
Any
due process claim defendant intended to assert on appeal is meritless. Proper
application of the rules of evidence does not impermissibly infringe upon the
defendant’s right to present a defense.
(People v. Thornton (2007) 41
Cal.4th 391, 443.)
Defendant
contends that the evidence was insufficient to support a finding that defendant
“attempted to dissuade [Saraki] from testifying against C-Mack, for the benefit
of Dubs and with the specific intent to do so.â€
Defendant’s contention is largely based upon a theory he argued at
trial: his friendship with Banks, not
their common gang membership, motivated his conduct.
To
resolve this issue, we review the whole record in the light most favorable to
the judgment to decide whether substantial evidence supports the conviction, so
that a reasonable jury could find guilt beyond a reasonable doubt. (People
v. Ceja (1993) 4 Cal.4th 1134, 1138.) Where substantial evidence supports the
verdict, we must affirm, even though the evidence would also reasonably support
acquittal. (People v.
Section
186.22, subdivision (b)(1) provides a sentence enhancement for anyone convicted
of a felony “committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.†The “for the benefit of . . .†element
essentially means that the crime must be “‘“gang related.â€â€™â€ (People
v. Albillar (2010) 51 Cal.4th 47, 60.)
Substantial
evidence supported the jury’s finding, even excluding that portion of Marbach’s
testimony we concluded was improper. The
parties stipulated that defendant was a member of the Dubs gang, and Saraki
testified that Banks was, as well.
Marbach’s unobjectionable testimony about gangs’ attitude toward
“snitching†and the intimidation of witnesses explained how a gang benefits by
preventing a witness to a gang crime from cooperating with the police or
testifying. The prior incident in which
Dubs gang member James Hearn and Hoover gang member Raymond Russell harassed
Saraki for being a snitch indicated that Saraki’s cooperation with the police
in the case against Banks was a source of concern to members of both the Dubs
gang and at least one other local gang.
Defendant’s statements to Saraki before attacking him clearly showed
that defendant intended to dissuade Saraki from testifying against Banks, and
defendant’s references to “snitching,†“homeboy,†and Banks’s moniker C-Mack
implied that defendant was at least partially motivated by his common gang
membership with Banks. Collectively,
this evidence supported the jury’s finding that defendant committed the
dissuasion for the benefit of the Dubs street gang and with the intent to
promote, further, or assist criminal conduct by the members of the Dubs
gang. Defendant’s friendship arguments
effectively ask this court to reweigh the evidence, which is not a permissible
approach to a sufficiency of evidence claim.
That theory was before the jury, which rejected it, perhaps because
nothing in the record showed that defendant’s sole motive was friendship.
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We concur:
ROTHSCHILD, J.
JOHNSON, J.
