target="F062617_files/props0008.xml">
v. Brame
Filed
1/25/13 P. v. Brame CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
FRED BRAME,
Defendant and Appellant.
F062617
(Super. Ct. No. BF127390)
APPEAL
from a judgment of the Superior Court of
Harry
Zimmerman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Charles A. French and
Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A
jury convicted defendant Fred Brame of possession of a firearm by a felon
(former Pen Code, § 12021, subd. (a)(1)) and active participation in
a criminal street gang (Pen. Code, § 186.22, subd. (a)).
offense, the jury found true a gang-enhancement allegation. In bifurcated
proceedings, the trial court found true allegations that Brame had suffered
prior felony convictions and served prior prison terms.
Brame
contends that his trial counsel provided ineffective assistance by failing to
file a pretrial motion pursuant to Pitchess
v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)
seeking discovery of police personnel files.
After trial, new counsel filed a Pitchess
motion, which the trial court granted, and relevant records were
disclosed. Following the
filed a motion for new trial on the
ground that Brame received ineffective assistance of counsel at trial. The motion was denied.
In
this appeal, Brame contends that the trial court abused its discretion by
denying the motion for new trial. He
also asks that we review the police personnel records filed under seal, which
the trial court reviewed in camera after granting the Pitchess motion. Brame
further contends there was insufficient evidence to support either his
conviction for the substantive offense of active gang participation or the true
finding with respect to the gang-enhancement allegation. Finally, Brame raises two challenges related
to his sentence. We affirm.
FACTUAL AND PROCEDURAL HISTORIES
Around
9:00 p.m. on March 20, 2009, Bakersfield police officers responded to a
report of a possible fight at a large gang-related party on the 3400 block of
Horne Street. Three men were seen
running from the area of the party westbound toward Lotus Lane. Officers Kroeker and Stratton were in a
patrol car with a side-mounted spotlight driving north on Lotus when they
spotted Brame and two other men in a vacant field. Brame was on his knees and appeared to be
making a digging motion with his hands.
The other two men—identified as Franklin Langston and Lydell Chaney—were
lying on the ground on their stomachs.
Kroeker estimated that the field was about 30 or 40 yards wide and about
100 yards deep, and the three men were around three to five feet away from each
other. There were weeds and brush in the
dirt field, which looked to Kroeker like it may have had houses at one time,
but was now empty.
The
officers pulled over and approached the men on foot. Langston and Chaney got up and ran away, but
Brame remained in the field. Kroeker put
Brame in handcuffs and took him to the patrol car. Langston and Chaney were apprehended by other
officers the same night. After Brame was
taken away, Officer Stratton found a revolver-style firearm in the field. It was partially buried—there was a dirt hole
and the firearm protruded from the hole and was covered by a little bit of
dirt. Stratton estimated it was within a
foot or two from where they had found Brame.
According to Kroeker, when Langston and Chaney were lying in the field,
they had been within an arm’s length of where the firearm was found.
Brame
was asked what he was doing in the vacant field. According to Officer Kroeker, Brame responded
that he was leaving the party on Horne Street and he went to urinate in the
field, and then he heard fighting, so he got down on the ground. The officer asked why he was digging and
Brame denied that he was digging. Brame
also denied any knowledge of the firearm.
Kroeker had not seen any wet spots in the area of the field where he
found Brame.
In
an amended information, the Kern County District Attorney charged Brame with
three counts: (1) carrying a loaded
firearm by a gang member (former § 12031, subd. (a)(2)(C));
(2) possession of a firearm by a felon (former § 12021,
subd. (a)(1)); and (3) active participation in a criminal street gang
(§ 186.22, subd. (a)). With
respect to the first and second counts, it was alleged that the offense was
committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) With respect to the first and third counts,
it was alleged that the offense was a serious felony, and Brame had been
convicted of a prior serious felony within the meaning of section 667,
subdivision (a). For all three
counts, it was alleged that Brame had been convicted of a prior felony offense
(§§ 667, subds. (c)-(j), 1170.12) and had served two prior prison
terms (§ 667.5, subd. (b)).
A
jury trial began on May 14, 2010.
Officers Kroeker and Stratton testified about apprehending Brame in the
vacant field. Stratton explained that
when a person is booked into Kern County jail, he is asked a series of
questions concerning potential safety issues, including health status and gang
affiliation. Stratton testified that
when Brame was booked into jail that night, he identified himself as a Country
Boy Crip and asked to be housed as such.
Further, Brame had the words “Country Boy†tattooed above his eye and
had gang tattoos on his chest, arms, and back.
In addition, Stratton was familiar with the other two men in the field,
Langston and Chaney. He had arrested
Langston for possession of narcotics for sale, possession of a firearm,
participation in a criminal street gang, and resisting arrest. Langston was known as “Precious†or
“Prep.†Stratton believed that Chaney
was a gang member.
The
prosecution called Bakersfield Police Officer Woessner as an eyewitness and
gang expert. On the night of Brame’s
arrest, Woessner was on duty and present at the gang party on Horne Street. He saw a large group of people gathered in
the street and on the sidewalk and heard people yell, “rollers†and “5-0,â€
referring to law enforcement. He saw
three men running westbound, two wore dark clothing and one was dressed in
red. Another officer reported about the
three men over the police radio.
In
his capacity as a gang expert, Woessner testified that the Country Boy Crips
are a street gang engaged in an ongoing pattern of criminal conduct. The gang-related party and the vacant field
where Brame was found are within Country Boy Crips territory.
firearms are used in gangs to instill fear or respect and are often shared
among gang members. He explained, “I
have seen that a lot of times when there are more than one or two gang members
around, typically most of those individuals will know where the firearm is kept
should they need to retrieve it during some type of rival gang activity, or
they will want to know where it is in case law enforcement comes into the area
and they can distance themselves from that.â€
Officer
Woessner reviewed booking reports, field interview cards, street checks, and
police reports for Brame, Langston, and Chaney.
He explained that officers complete a field interview card after they
have made contact with a person on the street.
A card contains general information about the person such as name, date
of birth, and address, along with information about tattoos, manner of dress,
and the reason for the contact. A street
check is a computerized version of the field interview card. In his opinion, they all were members of the
Country Boy Crips.
Woessner
reviewed 13 police reports involving Brame.
He found seven reports to be significant to his opinion that Brame was a
gang member. In most of the reports, the
significance was Brame’s association with other known Country Boy Crips
members. In some of the reports, Brame
was arrested for crimes related to gang activity; in one instance, he was
wearing gang colors. Woessner reviewed
five field interview cards and street checks involving Brame and found four of
them to be significant. In the most
recent street check—from April 2008—an officer asked Brame if he was a Country
Boy Crips gang member and he responded, “Yes, sir, I’m Country.†Reviewing booking information, Woessner found
that Brame usually identified himself as a member of the Crips and many times
indicated that he was a member of the Country Boy subset of the Crips. Brame asked to be kept away from members of
the Bloods and other rival gangs.
Woessner
testified that, in his opinion, if three members of the Country Boy Crips were
found lying in a vacant field within their gang territory with a partially
buried firearm nearby, all three would have possession of the firearm and they
would possess the firearm for the benefit of the Country Boy Crips.
The
defense theory of the case was that Brame was no longer an active gang member
and he had nothing to do with the firearm, which belonged to Langston. Brame had been a gang member in the past, but
he had turned his life around recently.
He was now a hard worker, he did not take drugs, and he stayed out of
trouble. He was not at the gang party
that night; he was at a barbecue in the same neighborhood. As Brame’s attorney explained in his opening
statement, the other two men in the field ran from the police because they were
doing something wrong, but Brame remained “because he had nothing to hide. He was just an ordinary guy, walking through
the field.â€
A
defense witness testified that Brame was at the witness’s father’s house on
March 20, 2009, for a barbecue.
Brame left the house around 8:00 or 8:30 p.m. He said he was going to the store. Another witness testified that she had been
at the party on the 3400 block of Horne Street from noon until the police came,
and she never saw Brame at the party.
She also testified that she was sure there were Country Boy Crips at the
party because it is their neighborhood.
An office manager at the staffing company where Brame worked testified
that Brame was a great employee—hard-working, responsible, and punctual.
Deborah
Wesson, Brame’s mother, testified that she had seen a big change in her son in
the previous three years. She used to be
disappointed in him because of the people he hung around and his lack of
responsibility, but now he was working, he had a bank account for the first
time, and he dressed neatly. Wesson
retained a defense attorney for her son in this case, which she had never done
before, although he had been arrested numerous times and had been sent to
prison in the past.
Shelly
Miller, Brame’s girlfriend, testified that he had changed in the time she has
known him. In the previous five years,
Brame did not claim gang membership, and she had never seen him carry a gun. In addition, Miller worked at a Chevron
mini-mart, and she knew Officer Kroeker because he would stop by the mini-mart
and chat with her. Miller testified that
Kroeker came into the mini-mart some time after Brame was arrested, and she
asked him why he was lying about her boyfriend.
Miller told him that it made no sense, that a person being chased by the
police would try to dig a hole and bury a gun.
Miller’s coworker then asked Kroeker, “Well, who [do] you think had the
gun?†According to Miller, Kroeker
responded that he believed Precious had the gun.
Kathleen
Cooper Birks, Miller’s coworker at Chevron, also testified. Birks recalled that Kroeker came into the
mini-mart in January 2010 in his police uniform. Kroeker said, “Hi Shelly. You know you love me.†Miller responded that they were not friends
and she had nothing to say to him.
Miller asked Kroeker why he lied about her boyfriend. He said, “You know that he was at that partyâ€
(presumably referring to the gang party).
Miller responded that he was not.
Kroeker asked how Brame had the money to pay for a private defense
attorney, and Miller said it was none of his business. Kroeker said, “Shelly, you know one of the
three of them had the gun. There were
three of them there.†He explained that
Brame did not have to physically have the gun to have possession of the
gun. At this point, Birks interrupted
and asked Kroeker if he had seen Brame with the gun. Kroeker said that he did not see anybody with
the gun and it was found in the field.
Birks asked who he really thought had the gun, and Kroeker said, “I
think it belonged to Precious.â€
The
defense’s last witness was Langston. He
testified that he was a Country Boy Crips gang member and the police call him
“Precious.†On the night he was
arrested, Langston was standing on Horne Street across the street from a
party. He was wearing red and black
clothing and was carrying a firearm and rock cocaine in his pocket. He saw women in the street fighting, and when
the police showed up, he ran. At the
next street, the police shined a light on him, and he lay down in a field. Langston testified that he dropped his
firearm; it fell out of his pocket.
Langston did not recall whether anyone was around him in the field. The prosecutor asked if Chaney was with him,
and Langston responded that he did not know who that was. He was familiar with Brame, however, because
their wives were best friends. Langston
ran from the police because he did not want to go jail, but he was arrested that
night. He was charged with possession of
rock cocaine base for sale, possession of a loaded firearm, and gang
participation. He took a plea bargain,
and at the time of Brame’s trial, Langston was serving a prison term for
possession of a firearm.
The
prosecution recalled Officer Kroeker as a witness. He testified that he spoke to Langston the
night he was arrested, and Langston denied that he was in the vacant field and
denied knowledge of the firearm. Kroeker
confirmed that he used to stop at the mini-mart where Miller worked. He described their relationship as casual and
joking before Brame was arrested.
Kroeker did not recall saying that he loved her. He testified that Miller said that she
believed the firearm belonged to Precious.
He denied telling Miller that the firearm belonged to Precious. Kroeker did not recall mentioning Precious to
Miller, although he did talk about how the crime of possession of a firearm did
not require a person to be holding it.
He talked about how gang members who are around a firearm can be arrested
for possession of it. He did not recall
that Birks interjected during any conversation he had with Miller.
In
his closing argument, Brame’s counsel pointed out what was missing from the
prosecution’s case. Fingerprints were
not taken of the firearm, which could have established that Brame possessed the
gun. In addition, there were no
photographs of Brame’s hands from the night he was arrested, which could have
shown whether his hands were crusted with dirt or his fingernails were filled
with dirt, as would be expected if he had dug a hole in the dirt with his
hands.
The
jury reached a verdict on May 24, 2010.
It found Brame not guilty of count 1, carrying a loaded firearm by
a gang member. The jury found Brame
guilty of count 2, possession of a firearm by a felon, and count 3,
active participation in a criminal street gang.
The jury also found true the gang-enhancement allegation for
count 2.
The
trial court then held a bench trial on the allegations that Brame had prior
felony convictions and had served prior prison terms. The court found all of the enhancement
allegations true based on criminal cases from September 1999 and May 2006.
After
a conflict developed between Brame and his attorney, the court appointed new
counsel to represent Brame in a motion for new trial and at sentencing. Brame’s new counsel filed a motion for new
trial on the ground that Brame received ineffective assistance of counsel at
trial.
On
May 16, 2011, the trial court denied the motion and sentenced Brame. On May 25, 2011, the court held another hearing
and corrected the sentence. Brame was
sentenced to 12 years for count 3, and the term for count 2 was
stayed. He filed a notice of appeal the
same day.
DISCUSSION
I. Motion for new trial
Brame
contends that the trial court abused its discretion by denying his motion for
new trial. We disagree.
On
January 28, 2011, Brame’s new counsel filed a Pitchess motion, seeking police records for Officers Kroeker and
Stratton related to complaints “for fabrication of the truth, misstating facts
or material misstatements in reports or other unethical behavior.†In the motion, Brame denied that he was
digging in the field the night he was arrested and denied that he tried to hide
from the police. He also denied that he
claimed Country Boy Crips gang membership when he was booked into jail that
night.
The
trial court granted the Pitchess
motion and conducted an in camera review of the personnel files of the
officers, including citizen complaints filed against either officer. It determined that three complaints related
to Kroeker and six complaints related to Stratton were relevant and had to be
disclosed.
On
April 22, 2011, Brame’s new counsel filed a motion for new trial on the
ground that trial counsel provided constitutionally ineffective assistance by
failing to file a pretrial Pitchess
motion.
title="">[3] From the citizen complaints
disclosed following the posttrial Pitchess
motion, investigators for Brame’s new counsel were able to locate two
witnesses, Anthony English and his mother, Loretta English, who had filed
complaints against both Kroeker and Stratton.
In one complaint, Anthony asserted that the police pulled him over
without cause, and Kroeker gave him an “untruthful ticket.â€
July 20, 2009, and the incident allegedly occurred that month.
In
another complaint, Anthony claimed that Stratton and another officer arrested
Anthony for public intoxication although he was not drunk. This incident occurred in November 2009, but
the complaint form was dated January 14, 2010. In a third complaint, dated March 17,
2010, Loretta complained that Stratton approached her and was looking for
Anthony; Loretta believed that Stratton “placed some type of threat on Anthony’s
life.†It is not clear from the
complaint, however, why she thought Stratton was threatening her son.
In
Brame’s motion for new trial, he argued that if Anthony and Loretta had been
discovered pretrial, they could have been called as witnesses to challenge the
credibility of Kroeker and Stratton. Brame further argued that if these witnesses
had been presented to impeach the officers, it was possible that Brame would
have testified on his own behalf. He
explained, “If Loretta and Anthony English had been discovered and presented at
trial then Mr. Brame[’]s testimony denying the representations made by the
officers would not have been seen in a vacuum and self-serving.†Appearing to acknowledge that he could not
demonstrate how trial counsel’s failure to file a Pitchess motion caused him prejudice, Brame argued reversal was
required “despite an absence of demonstrated prejudice .…â€
In
an opposition, the prosecutor argued, first, that trial counsel was not
constitutionally ineffective, noting that he did extensive investigation and
presented many witnesses for the defense, and, second, that Brame failed to
demonstrate prejudice. The opposition
included police records showing that Anthony was on probation with search terms
for narcotics and weapons at the time of the alleged incidents, and he was a
known active member of the East Side Crips.
In addition, documents showed that Anthony was arrested in May 2010 and
later went to trial and was convicted of possession and transportation of
marijuana for sale and active gang participation. If Anthony had testified at trial, the
prosecutor argued, his gang and criminal activity would have been used to
impeach his credibility, “as was done with witness Mr. Langston.â€
On
May 16, 2011, the trial court heard argument on the
were nine people (apparently referring to other complainants disclosed from the
Pitchess motion), but his
investigator could not find any of them.
He speculated that the complainants may have been found if trial counsel
had known about them before trial and argued that there was prejudice in “the
time delay as to finding witnesses who could have been available at
trial.â€
Brame’s
new counsel further argued: “[T]he only
testimony that came in about Mr. Brame’s position [in the vacant field], Mr.
Brame digging the hole, … where the gun was found … came in through
the officers.… [Brame’s girlfriend
Miller and Birks] basically stated that at some point an officer …
suggested that they got Mr. Brame on a trumped up charge. That’s not what was said but it was
basically … we got your boyfriend … [on a charge of] having a gun
when it really wasn’t his.†A pretrial
witnesses who would testify about the officers’ lack of credibility.
The
trial court denied the motion for new trial.
The court explained that it did not matter that nine other complainants
had been disclosed; the motion for new trial was based only on the identified
witnesses, Anthony and Loretta English.
“Nine names may have been released but that’s the nature of
Pitchess. Not always do we find the
individuals whose names are released.â€
The
court recalled that evidence was presented impeaching Kroeker’s testimony about
his conversation with Miller at the mini-mart.
The court stated:
“Now
as to the issue of … credibility.
If I suppose we’re attacking what they observed in the field that
certainly I guess is some issue of credibility that could be tested in the form
of evidence that may have been disclosed at a Pitchess with regard to
honesty. But the issue of the honesty
that was directed in this particular event had nothing to do with what was
observed in the field. The direction of
the dishonesty had to do with whether or not Officer [Kroeker] made the
statement in the convenience store.
“Now,
two witnesses testified that he did. As
I recall, he didn’t remember stating it in that fashion. But I disagree that it was in the nature that
this was a trumped up charge. The nature
of the statement as I recall the evidence was … not that … Mr. Brame
was not in the vicinity of the gun or was not in the area of where he was
attempting to flip dirt on the gun. It
was they didn’t believe that it was his gun.â€
The
court then considered the potential testimony of Anthony and Loretta
English. The court observed that, in
Brame’s case, the last motion date prior to trial was December 15,
2009. Thus, any complaints by the
Englishes made after that date would not have been disclosed even if trial
counsel had filed a pretrial Pitchess
motion. The court recognized that
Anthony’s complaint regarding an incident with the police in July 2009 was
relevant to Kroeker’s credibility, but it noted that Anthony was on felony
probation for possession of a gun at the time of the incident and was also
known to be a member of the East Side Crips.
The court questioned whether Anthony’s complaint was credible:
“So the 402 hearing would have been
very interesting as to whether or not the court would have allowed the
Englishes to testify in any event because all of the information and the
evaluation and the other witnesses involved in the incident would have had to
have been brought in in order to testify with regard to the internal
investigation itself and what it revealed and how the conclusion of the
internal investigation resulted in the findings that it did, all of which the
defense doesn’t have but we would have conducted it and they would have been
disclosed in the 402 and it would have been determined that it was as I recall
unfounded. [
is on probation for possession of a weapon with search terms, it certainly is
dubious they are claiming harassment when they’re requested to stand for
search.â€
In
addition, Anthony was arrested for selling drugs and active gang participation
before Brame’s trial started. Under
those circumstances, the court doubted that Anthony’s counsel would have
advised him to testify in Brame’s case.
The court reasoned that it was unlikely that Anthony’s testimony would
have been admitted. “[S]uffice it to say
I know and I conceded that Mr. English would not say anything kind about the
veracity of either Kroeker or Stratton.
That’s a given. But whether or
not he would even have been allowed to testify at the trial even without the
charges pending I think is questionable at best and I doubt seriously that I
would have granted a 402 hearing to present the evidence after determination of
the nature of the case.†Since it was
highly unlikely Anthony would have testified, there was no showing of
prejudice. The court concluded:
“Now,
we all have the hindsight of 20/20 looking back to see what would have
occurred, but I think that Mr. English’s situation provides largely collateral
evidence of veracity when I had direct evidence of veracity that was admitted
during the course of the trial that indicated that [Kroeker] was being
dishonest. So that being the case, I
don’t see a lot of substantial prejudice to Mr. Brame because English couldn’t
have testified in any event and probably wouldn’t have testified in any event
because of the charges that he would have had hanging over his head and the
other circumstances that would have been brought out had he testified even at a
402 hearing with regard to his gang involvement .… So the circumstances I find I cannot find
that there’s substantial prejudice.â€
B. Analysis
We
review for abuse of discretion a trial court’s ruling on a motion for new
trial. (People
v. Thompson (2010) 49 Cal.4th 79, 140.)
“A trial court’s ruling on a motion for new
trial is so completely within that court’s discretion that a reviewing court
will not disturb the
and unmistakable abuse of that discretion.â€
(People v. Hayes (1999) 21
Cal.4th 1211, 1260-1261.)
A
motion for new trial may be based on alleged ineffective assistance of
counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582.) A claim of ineffective assistance of counsel
has two components. A defendant must
establish: “[1] that his counsel
failed to perform with reasonable competence and [2] that it is reasonably
probable a determination more favorable to the defendant would have resulted in
the absence of counsel’s failings.†(
v. Ledesma (1987) 43 Cal.3d 171, 217.)
Brame
contends that investigation is a central part of effective representation and
by failing to file a Pitchess motion,
trial counsel failed to conduct an adequate investigation. We need not decide whether reasonably
competent representation required the filing of a pretrial Pitchess motion in this case because Brame has failed to
demonstrate prejudice.
Brame
argues that the posttrial Pitchess
motion “yielded impeachment material†in the potential witnesses Anthony and
Loretta English. He also speculates that
it would have been more likely that the other nine complainants disclosed in
the posttrial Pitchess motion would
have been found if the motion had been filed before Brame’s trial.
We
agree with the trial court that any complaints made after the motion’s deadline
would not have been disclosed in a pretrial Pitchess
motion and therefore are not relevant to Brame’s
ineffective-assistance-of-counsel claim.
We also agree that speculation about other complainants does not
demonstrate prejudice. (
773 [claim of ineffective assistance of counsel cannot be established by mere
speculation about testimony of potentially available witnesses].)
Brame’s
argument ignores the trial court’s reasoning that it was highly unlikely that
Anthony’s testimony about the July 2009 traffic stop by Officer Kroeker would
have been presented at trial. First, it
was unlikely that Anthony would have chosen to testify, given that he was in
criminal proceedings himself during Brame’s trial. Second, as the trial court explained, it was
doubtful that it would have allowed Anthony to testify, suggesting that the
court would have found Anthony’s testimony about his interactions with the
police in July 2009 not to be credible.
When
a motion for new trial is based on newly discovered evidence, “the trial court
may consider the credibility as well as materiality of the evidence in its
determination whether introduction of the evidence in a new trial would render
a different result reasonably probable .…â€
(People v. Beyea (1974) 38
Cal.App.3d 176, 202, disapproved on other grounds by People v. Blacksher (2011) 52 Cal.4th 769, 808; see also
890 [no abuse of discretion where trial court found new evidence “‘inherently
untrustworthy … and not worthy of belief’â€].)
Similarly,
in this case, the trial court could consider the credibility and materiality of
Anthony’s potential testimony to determine whether there was prejudice from the
failure of trial counsel to discover the Englishes. The trial court stated that Anthony’s
allegations of police misconduct were “dubious†and indicated that if there had
been a hearing under Evidence Code section 402 regarding Anthony’s
testimony, the court likely would not have allowed the testimony. In addition, the court could have excluded
Anthony’s testimony under Evidence Code section 352, which allows “the
trial court broad power to control the presentation of proposed impeachment
evidence ‘“‘to prevent criminal trials from degenerating into nitpicking wars
of attrition over collateral credibility issues.’ [Citation.]â€â€™â€ (People
v. Mills (2010) 48 Cal.4th 158, 195.)
To
establish prejudice to support his motion for new trial, Brame had to show that
it was reasonably probable he would have obtained a more favorable result if
trial counsel had filed a pretrial Pitchess
motion and learned of Anthony’s complaint against Kroeker. Given that the trial court would not have
allowed Anthony to testify, there could be no possible prejudice to Brame; the
trial would have proceeded as it did, without impeachment testimony from
Anthony.
Brame
argues, however, that the trial court erred by using the wrong legal standard
to decide the motion for new trial. He
relies on the fact that the court used the phrase “substantial prejudice†twice
in explaining its ruling. The court
stated, for example, “I don’t see a lot of substantial
prejudice to Mr. Brame because English couldn’t have testified in any event
and probably wouldn’t have testified in any event .…†(Italics added.) Brame argues that the trial court must have
imposed a higher burden on Brame than the burden to show prejudice. We are not persuaded. We assume that the trial court simply
misspoke when it used the word “substantial†since nothing else in the
reporter’s transcript indicates that the trial court misunderstood the
prejudice standard.
Further,
as we have discussed, the trial court essentially determined that Anthony would
not have testified at Brame’s trial, either because Anthony would have chosen
not to testify or because the court would have excluded his testimony. As a result, there could be no prejudice to
Brame under any standard.
Brame
also argues that the trial court’s decision was erroneously based on its
finding that Anthony’s testimony “provides largely collateral evidence of
veracity .…†The trial court was
correct, however, in describing Anthony’s proposed testimony as
collateral. If allowed as a witness,
presumably Anthony would testify that Kroeker gave him an “untruthful ticketâ€
during a traffic stop in July 2009.
While this testimony would be relevant to attack Kroeker’s credibility,
it would be “collateral†in that it would not be directly relevant to the
issues being tried.
name="_ftnref6" title="">[6] Had trial counsel offered
Anthony’s testimony at trial, the trial court would have had broad discretion
to exclude Anthony’s testimony to avoid “nitpicking wars of attrition over
collateral credibility issues,†such as whether there was a legitimate basis
for the ticket Anthony received in July 2009, whether Kroeker honestly believed
there was a legitimate basis for issuing Anthony a ticket, and Anthony’s
credibility. (People v. Mills, supra,
48 Cal.4th at p. 195.) The trial
court did not abuse its discretion by taking this into consideration in
deciding the motion for new trial.
Finally,
Brame argues that the trial court abused its discretion when it erroneously
found that “the issue of the honesty … had nothing to do with what was
observed in the field.†We
disagree. The court correctly recalled
that at trial there was evidence contradicting Kroeker’s testimony about his
conversation with Miller at the mini-mart, but there was no testimony
contradicting the officers’ version of what they observed in the vacant field
the night they arrested Brame. Brame did not testify and Langston
did not recall seeing anyone in the field.
As a result, no testimony was presented to contradict the officers’
testimony that they saw Brame making a digging motion with his hands. The court’s statement does
not suggest to us that it abused its discretion in deciding the motion for new
trial.
II. Sufficiency of the evidence
Brame next contends there was
insufficient evidence to support either his conviction for count 3, the
substantive offense of active gang participation, or the true finding for the
gang enhancement in count 2. We
conclude that Brame’s contention is without merit.
When an
appellant raises a claim of insufficiency of the evidence, “the court must
review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.†(People
v. Johnson (1980) 26 Cal.3d 557, 578.)
“We presume in support of the judgment the existence of every fact that
could reasonably be deduced from the evidence.
[Citation.] We may reverse for
lack of substantial evidence only if ‘“upon no hypothesis whatever is there
sufficient substantial evidence to supportâ€â€™ the conviction or the
enhancement. [Citation.]†(People
v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)
A. Active
gang participation
Section 186.22, subdivision (a),
provides: “Any
person who actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious
criminal conduct by members of that gang, shall be punished by imprisonment in
a county jail for a period not to exceed one year, or by imprisonment in the
state prison for 16 months, or two or three years.â€
Our
Supreme Court has explained that the offense of active gang participation has
three elements: “(1) active
participation in a criminal street gang, in the sense of participation that is
more than nominal or passive; (2) knowledge that the gang’s members engage
in or have engaged in a pattern of criminal gang activity; and (3) the
willful promotion, furtherance, or assistance in any felonious criminal conduct
by members of that gang.†(
56 (Albillar).)
In
this case, Brame argues that the prosecution failed to present sufficient
evidence that he continued to be an active gang member after he was released
from prison in 2007. We disagree. First, there was testimony that Brame
identified himself as a member of the Country Boy Crips on the night he was
arrested. The circumstances of the
arrest were that he was found near a gang party in a vacant field with two
other known Country Boy Crips. He had
gang tattoos on his face and body.
Officer Woessner testified that Brame told a police officer in April
2008 that he was a member of the Country Boy Crips. This was substantial evidence of continued
active gang membership. (See, e.g.,
Cal.App.4th 1324, 1331 [sufficient evidence of active gang membership where
gang expert relied on, among other things, defendant admitting he was gang
member after arrest and gang tattoo over defendant’s eyebrow];
Cal.App.4th 587, 626 [sufficient evidence that defendant was active gang member
based on, among other things, defendant’s gang tattoos and his admission of
gang membership during jail intake process and during previous traffic
stop].)
Brame
points out that, other than the street check in April 2008, Officer Woessner
did not provide the dates of the booking reports, field interview cards, street
checks, and police reports on which he relied.
Brame argues that Woessner relied on “untested, unverified hearsay
recitals by victims and witnesses, as well as extrajudicial statements by
arrestees and the police.†Even without
the gang expert testimony, however, the circumstances of Brame’s arrest, his
admission of gang membership, and his tattoos were sufficient evidence of his
current active gang membership.
Further,
“[e]xpert testimony may be founded on material that is not admitted into
evidence and on evidence that is ordinarily inadmissible, such as hearsay, as
long as the material is reliable and of a type reasonably relied upon by
experts in the particular field in forming opinions.†(People
v. Duran (2002) 97 Cal.App.4th 1448, 1463.)
“Thus, a gang expert may rely upon conversations with gang members, his
or her personal investigations of gang-related crimes, and information obtained
from colleagues and other law enforcement agencies.†(Ibid.) Brame cites no authority for the proposition
that the police reports and other records Woessner reviewed are not the type of
material gang experts reasonably rely upon in forming opinions.
B. Gang
enhancement
Section 186.22,
subdivision (b)(1), provides a sentencing enhancement to “any person who
is 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 .…â€
Brame does not challenge the
sufficiency of the evidence supporting his conviction for count 2,
possession of a firearm by a felon. He
only contends that there was insufficient evidence to show the offense was
committed (1) for the benefit of the Country Boy Crips and (2) with
the specific intent to promote, further, or assist in any criminal conduct by
gang members.
Brame argues that a defendant’s
record of prior offenses and past gang activities is insufficient to show that
the current crime benefited the gang.
Not every crime committed by a gang member is for the benefit of a
gang. (
In this case,
however, there was additional evidence from which the jury could find that
Brame’s crime was committed for the benefit of the Country Boy Crips. Three men were seen running from a gang party
and, immediately thereafter, Brame was found with two other gang members hiding
in a field nearby. Brame appeared to be
digging a hole in the dirt, and minutes later, a firearm was found in the dirt
partially buried. Langston, one of the
other gang members, testified that he had been carrying the firearm. Officer Woessner testified that firearms are
used in gangs to instill fear, gain respect, commit crimes, and for protection
from rival gangs. He also explained that
gang members often share firearms. From
the evidence, the jury reasonably could deduce that Brame was at the gang party
with Langston and another gang member.
Given the jury’s uncontested finding that Brame had possession of the
firearm, the evidence also supports a finding that Brame possessed the firearm
for the benefit of the Country Boy Crips—likely sharing possession with fellow
gang member Langston.
Brame argues that a gang expert’s
testimony alone is insufficient to show that an offense is gang-related. People
v. Albillar, supra, 51 Cal.4th
47, is instructive in assessing gang expert testimony. In that case, three gang members forcibly
raped a 15-year-old girl, with one after the other raping her. (Id.
at pp. 50-52) A gang expert
testified that a hypothetical gang rape under these circumstances would have
been committed for the benefit of, at the direction of, or in association with
a criminal street gang. He based his
opinion on the way the gang members worked together to accomplish the rape and
the enhancement to the reputations for violence and viciousness of the gang and
the participating gang members. (
insufficient evidence to support a gang enhancement to their rape convictions,
but the Supreme Court rejected their claim.
The court relied on the gang expert’s opinion, explaining, “Expert opinion that particular criminal conduct benefited a gang by
enhancing its reputation for viciousness can be sufficient to raise the
inference that the conduct was ‘committed for the benefit of ... a[]
criminal street gang’ within the meaning of section 186.22(b)(1).†(Id.
at pp. 59, 63.) Likewise, in this
case, expert opinion that possession of a firearm would benefit a gang by
instilling respect and fear was sufficient to raise an inference that Brame
possessed a firearm for the benefit of the Country Boy Crips.
Finally, we reject Brame’s claim
that there was insufficient evidence that the offense was committed to promote,
further, or assist in any criminal
conduct by gang members. Brame was
arrested with two fellow gang members, one of whom testified that he was
carrying the firearm and that he subsequently took a plea bargain and was in
prison for possession of a firearm.
Evidence that Brame shared possession of the firearm with another member
of the Country Boy Crips was sufficient to support a finding that he committed
the offense to promote, further, or assist in criminal conduct by gang
members. (Albillar, supra, 51
Cal.4th at p. 68 [“[I]f substantial evidence
establishes that the defendant intended to and did commit the charged felony
with known members of a gang, the jury may fairly infer that the defendant had
the specific intent to promote, further, or assist criminal conduct by those
gang membersâ€]; People v. Villalobos (2006) 145 Cal.App.4th 310, 322
[“Commission of a crime in concert with known gang
members is substantial evidence which supports the inference that the defendant
acted with the specific intent to promote, further or assist gang members in
the commission of the crimeâ€].)
III. Pitchess motion
Brame filed a posttrial
related to complaints of dishonesty against Officers Kroeker and Stratton. Brame asks that we review the sealed record
of the trial court’s in camera review of the personnel files of Kroeker and
Stratton.
“In Pitchess, supra, 11
Cal.3d 531 …, the court ‘established that a criminal defendant could
“compel discovery†of certain relevant information in the personnel files of
police officers by making “general allegations which establish some cause for
discovery†of that information and by showing how it would support a defense to
the charge against him.… To initiate
discovery, the defendant must file a motion supported by affidavits showing
“good cause for the discovery,†first by demonstrating the materiality of the
information to the pending litigation, and second by “stating upon reasonable
belief†that the police agency has the records or information at issue.’ [Citation.]â€
(People v. Nguyen (2007) 151
Cal.App.4th 1473, 1477 (Nguyen).)
In the usual case, a defendant files
a Pitchess motion before trial, in
preparing defenses for trial. In
defendant filed a Pitchess motion
after trial, seeking police personnel records to support a new trial motion in
which he intended to claim ineffective assistance of counsel based on trial
counsel’s failure to file a pretrial Pitchess
motion. In this situation, the
whether the requested records would support a motion for new trial:
“After defendant was convicted, the
‘pending litigation’ to which the requested records had to be material was his
new trial motion claiming ineffective assistance. [Citations.]
To prevail on this claim, defendant would have to show a ‘reasonable
probability’ that competent performance would have led to a different
result. [Citation.] Thus, the proper standard for reviewing
defendant’s posttrial Pitchess motion
was whether a reasonable probability existed that disclosure of the requested
records would have led to a different result at trial.†(Nguyen, supra,
151 Cal.App.4th at p. 1478.)
The Nguyen court went on to affirm the trial court’s ruling, explaining
that “the [trial] court correctly reviewed [defendant’s] posttrial
new trial motion claiming ineffective assistance—this was the only litigation
pending at the time.†(
p. 1478.)
In the present case, the question
before the trial court was whether the requested records were material to
Brame’s motion for new trial based on ineffective assistance of counsel. We review the trial court’s ruling on the
discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.) “Consistent with customary procedure, the
records have been made part of the record on appeal but have been sealed, and
appellate counsel for defendant have not been permitted to view them.†(Ibid.)
We have reviewed the files for
Officers Kroeker and Stratton. We find
no abuse of discretion, with the possible exception of one complaint that may
have been relevant to the Pitchess
motion but was not disclosed. This
complaint is dated October 15, 2008, and was filed against Stratton. In the narrative section of the complaint
form, the complainant wrote that Stratton went to her residence on
September 14, 2008, and “fabricated that he was seizing my house without a
warrant nor probable cause pursuant to the 4th and 14th Amendment[s] placing
his foot inside my doorway preventing me from closing door .…†The investigation report attached to the
complaint shows that an investigator was unable to contact the complainant for
an interview.
It is possible that the trial court
did not recognize this complaint as potentially responsive to the
allegations were described as “[h]arassment†and “[i]llegal entry,†not “false
statements,†“false arrest,†or other allegations that would indicate
misstatements by the officer. We see no
possible prejudice from this omission, however, because a related complaint
filed by the complainant’s boyfriend was disclosed. The boyfriend’s complaint described the same
incident, and the allegations were characterized as “false arrest.†We also observe that the complainant was
identified in her boyfriend’s complaint as a witness to the incident. Under these circumstances, the failure to
disclose the girlfriend’s complaint could not result in prejudice to
Brame.
IV. Sentencing issues
On
May 16, 2011, the trial court issued its sentence. Brame’s trial counsel previously filed an
invitation to the court to exercise its discretion under section 1385 to
dismiss Brame’s prior felony from May 2006.
He asked the court to consider that Brame was 35 years old and most of
his criminal history related to his use of crack cocaine. He had been able to find full-time employment
and maintain a long-term relationship with his girlfriend. He also had the support of his family. He had not been convicted of violent acts and
he denied affiliation with the Country Boy Crips for many years. Brame’s counsel argued, “Unfortunately, due
to Mr. Brame’s location of family and friends and his prior tattoos, none [of]
which were recently acquired, he cannot avoid coming into contact with gang
members or being associated with them.â€
He asked the court to take mercy on him.
The
probation officer’s report identified three aggravating factors: (1) Brame’s prior convictions as an
adult are numerous; (2) he was on parole when the crime was committed; and
(3) his prior performance on probation and parole was unsatisfactory in
that he continued to reoffend and failed to abide by terms and conditions. The report recommended the upper term for
both counts.
The
court denied Brame’s request to dismiss the prior felony, observing that Brame
was on parole for the May 2006 conviction at the time he was arrested in this
case. The court sentenced Brame to the
middle term of four years for count 2, plus four years for the gang
enhancement (§ 186.22, subd. (b)(1)), another five years for the
prior felony conviction (§ 667, subd. (a)), and one year for a prior
prison term (§ 667.5, subd. (b)), for a total fixed term of 14 years. For count 3, the court stated, “On this
I will impose the upper term because of the nature of this particular case and
the evidence presented.†The court
denied probation and sentenced Brame to six years in state prison. The sentence for count 3 was stayed
pursuant to section 654.
On
May 25, 2011, the trial court held another hearing. The court explained that after the sentencing
hearing, it became aware that certain charges and enhancements did not
apply. In particular, the five-year
enhancement of section 667, subdivision (a), did not apply to
count 2 (possession of a firearm by a felon); as a result, count 2
could not be the principal term. The
court stated, “Accordingly, the court is electing to recall the sentence under
1170(D) for the purpose of clarifying the record and reallocating the
enhancements.†The court asked for
comments and Brame’s new counsel had none and submitted.
The
court sentenced Brame to the upper term of six years for count 3, plus
five years for the prior felony conviction (§ 667, subd. (a)), plus
one year for a prior prison term (§ 667.5, subd. (b)), for a total
fixed term of 12 years. For
count 2, the court sentenced Brame to the middle term of four years, plus
four years for the gang enhancement (§ 186.22, subd. (b)(1)), and
stayed the sentence.
On appeal, Brame argues that the
trial court erred in recalling his sentence and abused its discretion in
failing to dismiss his prior conviction.
A. Recall
of sentence
Section 1170,
subdivision (d), provides that a trial court may, within 120 days of the
date of commitment, “recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if he or she had not previously
been sentenced .…†“This
factors which support the exercise
of its discretion in denying
the defendant to state prison.†(
88, 90-91.)
Brame contends that the trial
court failed to state the reasons for its sentencing choices when it
resentenced him on May 25, 2011.
The People respond that Brame has forfeited the issue by failing to
object. (People v. Powell (2011)
194 Cal.App.4th 1268, 1297 [“By failing to raise a contemporaneous request for
the court to state reasons for its sentencing decisions, defendant failed to
preserve the claim for reviewâ€].) We
agree that the issue has been forfeited.
Even
if the issue had not been forfeited, however, there would be no reversible
error. The trial court stated its
reasons for its sentencing choices when it first imposed Brame’s sentence on
May 16, 2011. The court imposed the
upper term for count 3. Nine days
later, the court resentenced Brame using count 3 as the principle term and
again imposed the upper term. As the
People note, Brame does not suggest that any facts changed between May 16
and May 25, 2011. Nor has Brame
pointed to any mitigating factors or other considerations likely to affect the
court’s decision on remand. Since there
is no reasonable possibility that the court would alter its conclusion if
required to state reasons, we would not remand the case for resentencing. (People
v. May (1990) 221 Cal.App.3d 836, 840.)
Brame
also argues that the court’s failure to follow section 1170’s statutory
command violated his right to due process at sentencing. He relies on Hicks v. Oklahoma (1980) 447 U.S. 343 (Hicks) for his argument.
There is no merit to this argument.
In
Hicks, the jury was instructed under
a habitual-offender statute, which was later declared unconstitutional, to
sentence the defendant to a mandatory 40-year prison term. By Oklahoma statute, the defendant was
entitled to have his punishment fixed by the jury. Had the jury been instructed correctly, it
could have imposed any sentence of not less than 10 years. The state appellate court acknowledged that
the jury instruction was unconstitutional but affirmed the sentence, reasoning
that the defendant was not prejudiced because his sentence was within the range
of punishment that he could have received.
(Hicks, supra, 447 U.S. at
pp. 345-346.) The
States Supreme Court held that the state appellate court deprived the
defendant of his liberty without due process of law. The court explained:
“Where … a State has provided for
the imposition of criminal punishment in the discretion of the trial jury, it
is not correct to say that the defendant’s interest in the exercise of that
discretion is merely a matter of state procedural law. The defendant in such a case has a
substantial and legitimate expectation that he will be deprived of his liberty
only to the extent determined by the jury in the exercise of its statutory
discretion, [citation], and that liberty interest is one that the Fourteenth
Amendment preserves against arbitrary deprivation by the State. [Citations.]
In this case Oklahoma denied the petitioner the jury sentence to which
he was entitled under state law, simply on the frail conjecture that a jury might
have imposed a sentence equally as harsh as that mandated by the invalid
habitual offender provision. Such an
arbitrary disregard of the petitioner’s right to liberty is a denial of due
process of law.†(Hicks, supra, 447 U.S. at p. 346.)
There
is no analogous “arbitrary disregard of [Brame’s] right to liberty†in this
case. Brame does not argue that the
statutes under which he was sentenced are unconstitutional. He was not deprived of his right to have his
sentence set by the trial court. His
claim raises a technical statutory violation only.
B. Discretionary
dismissal of prior “strikeâ€
Brame contends that the trial court
abused it discretion when it declined to dismiss his prior “strikeâ€
conviction.
A trial court’s decision not to
dismiss a prior “strike†conviction under the Three Strikes law is subject to
review under the deferential abuse of discretion standard. (People
v. Carmony (2004) 33 Cal.4th 367, 374.)
The appellant bears the burden of establishing that the trial court’s
decision was unreasonable or arbitrary.
(People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts
to achieve lawful sentencing objectives].)
We do not substitute our judgment for that of the trial court. (People
v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) “It is not enough
to show that reasonable people might disagree about whether to strike one or
more of [the defendant’s] prior convictions.â€
(Ibid.) “[A] trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person
could agree with it.†(
Brame has not met his burden of
showing the court’s decision was irrational or arbitrary. He argues that the trial court limited itself
to consideration of only a single factor—the fact that Brame was on parole at
the time he committed the offense—and failed to consider all the factors
weighing in favor of dismissing his prior conviction. A similar argument was rejected in
considered the defendant’s motion, which raised certain mitigating
circumstances, but decided to deny his request to dismiss the prior strikes. “The court is presumed to have considered all
of the relevant factors in the absence of an affirmative record to the
contrary. [Citation.] Thus, the fact that the court focused its
explanatory comments on the violence and potential violence of appellant’s
crimes does not mean that it considered only that factor. Accordingly, appellant has not demonstrated
that the trial court abused its discretion in denying his motion to strike
prior convictions.†(
Here, Brame’s trial counsel filed a
request to dismiss his prior felony, identifying factors in mitigation—Brame’s
age, the lack of violence in his criminal history, his current employment, and
stable relationships. The court was
aware of these factors but declined to dismiss the prior felony. The record discloses no abuse of
discretion. Since we conclude the trial
court did not abuse its discretion, we also reject Brame’s due-process claim,
which is premised on the assumption that the court failed to exercise its discretion.
DISPOSITION
The judgment is affirmed.
| Description | A jury convicted defendant Fred Brame of possession of a firearm by a felon (former Pen Code, § 12021, subd. (a)(1)) and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)).[1] With respect to the firearm offense, the jury found true a gang-enhancement allegation. In bifurcated proceedings, the trial court found true allegations that Brame had suffered prior felony convictions and served prior prison terms. Brame contends that his trial counsel provided ineffective assistance by failing to file a pretrial motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) seeking discovery of police personnel files. After trial, new counsel filed a Pitchess motion, which the trial court granted, and relevant records were disclosed. Following the Pitchess motion, Brame’s new counsel filed a motion for new trial on the ground that Brame received ineffective assistance of counsel at trial. The motion was denied. In this appeal, Brame contends that the trial court abused its discretion by denying the motion for new trial. He also asks that we review the police personnel records filed under seal, which the trial court reviewed in camera after granting the Pitchess motion. Brame further contends there was insufficient evidence to support either his conviction for the substantive offense of active gang participation or the true finding with respect to the gang-enhancement allegation. Finally, Brame raises two challenges related to his sentence. We affirm. |
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